Was Worker in Car that Flipped on Way to Jobsite ‘In Course Of’ Employment?

What Do You Think?

Employees injured on the way to or from work are generally not entitled to workers’ compensation benefits for their injuries. There’s an exception to that rule where the employer provides the transportation. But what if a coworker regularly gives the employee rides to job sites, and the company knows about it?

A case involving a remodeling company addresses that issue. When it hired the claimant, the company knew he didn’t have a car and that it would have to arrange for his transportation. One of the owners used to drive employees who needed transportation to worksites. This practice began before it hired the worker. Eventually, a coworker did the driving for the claimant, and sometimes for other employees.

One day, the claimant was being driven by the coworker to a worksite when they were struck by a drunk driver. The car flipped and the claimant was severely injured and sought workers’ compensation benefits.

The company argued that he wasn’t injured in the course and scope of employment because he was, at the time, commuting. The workers’ compensation commission disagreed, and awarded him benefits. The company appealed.

An employee’s injury sustained while going to or from work is generally not compensable because the employee isn’t acting in the course of employment. There are exceptions to that rule, however, such as where the employer provides the means of transportation.

Was the claimant injured in the course of employment?

A. Yes. The company knew that if it wanted to have him as an employee, it would need to transport him to job sites.

B. No. He wasn’t on the clock yet; he was merely commuting to work, and he wasn’t being paid for his travel time.

If you selected A, you agreed with the court in Hercules Remodeling, LLC v. Moncho, No. 1024-24-4 (Va. Ct. App. 06/24/25, unpublished), which found there was an implied contract that the company would transport the claimant.

When an employer makes transportation available to an employee gratuitously, the worker generally  isn’t acting in the course of employment during the ride. 

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However, he is in the course of employment if:

1. The transportation is provided per an express or implied agreement (based on the circumstances) between the employer and the worker;
2. The transportation is furnished by custom to the extent that it is incidental to and part of the contract of employment; or 
3. The transportation is the result of a continued practice in the course of the employer's business which is beneficial to both the employer and the employee.

      Bristow v. Cross, 210 Va. 718, 719 (1970).

Here, even before the company hired the claiming, it had a custom of providing some employees rides to the job site. 

“Although claimant was not paid for his time while in transit to work, he clearly benefited from the arrangement, as neither owning a car nor being able to drive, the Hercules-provided transportation was his only means of working,” the court said. The company also benefited by ensuring it had enough workers available for remodeling jobs.

The court affirmed the commission’s decision that the worker’s injuries sustained in transit occurred in the course of employment and were compensable.

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