Disability Law

"Special Hazard" Exception to the "Going and Coming" Rule Applies Where Employee Uses "Usual" or "Expected" Route to Work

By David A. McCranie, Esq.

In order to be compensable under the Florida Workers' Compensation Law, the employee's accident must have been sustained while he was "in the course of" his employment.  Under what has become known as the "going and coming rule," the employee is not considered to be "in the course of" his employment when he is injured in an accident sustained while going to work or while coming home from work.  But there are exceptions to the "going and coming" rule, one of which is the "special hazard" exception, that is, an accident will be compensable even if it is sustained while "going to" or "coming from" work if it is caused by a "special hazard" on a "normal and customary route" used by the employee as a means of entry to and exit from the workplace.

In Kramer v. Palm Beach County, decided on 3/31/2008, the claimant was a bridge tender who habitually parked his car in the morning at a nearby shopping center and walked the remainder of the way to work.  He was injured when he tripped over a pile of debris while walking from his car to the jobsite.  The JCC concluded that the accident was not compensable because of the "going and coming" rule, but the First DCA disagreed.  The Court held that the "special hazard" rule applies if the injury occurs as the result of a "special hazard" encountered on a route that is either the "usual" or "expected"  route.  While the JCC's order demonstrated that Kramer did not use the "expected" route (the employer had provided alternative parking facilities instead of the shopping center parking lot), the order was silent on whether the route he took was the "usual" route.  There was evidence that many of Kramer's fellow employees had continued to park in the shopping center parking lot even after the employer provided the alternative parking facilities.  The Court remanded that case to the JCC for specific findings on whether the route Kramer took was the "usual" route to the jobsite.

Full post as published by Florida Workers’ Compensation Law Blog on March 31, 2008 (boomark / email).