Hospice Family Care v. Allen – Dependent Spouse Owed Burial and Death Benefits

The issue of workers’ compensation death benefits is one that is important to review with an attorney because spouses and other dependents may be entitled to collect payments for certain expenses and for years after. sadness2

N.C.G.L. 97-38 allows for death benefits where a fatality results from a work injury or occupational disease. If death proximately results form a compensable injury or occupational disease within six years thereafter or within two years of a final determination of disability (whichever comes later), the employer has to pay death benefits equal to 66 2/3 percent of the average weekly wage of the decedent worker at the time of the accident, plus burial expenses.

But when there is any question about whether a firm should have to pay workers’ compensation death benefits, they will fight it because it’s usually costly. Families must fight back because often, the financial stability of the family is at stake. 

In the recent case of Hospice Family Care v. Joseph Allen, before the Alabama Court of Civil Appeals, there was a question raised about whether decedent’s spouse was owed workers’ compensation death benefits or whether they were barred under the so-called “Coming and Going Rule.”

The coming and going rule, which is followed in most states, including North Carolina, holds that an employee is not acting in the course and scope of employment while traveling to and from work. However, there are all sorts of state-specific exceptions to this rule. They generally include cases wherein an employee is the company parking lot or when they are driving to and from job sites.

In the Allen case, the questions raised included:

  • Was decedent spouse’s claim barred by the coming-and-going rule?
  • Was the claim barred because employee deviated from her employment?
  • Was employer entitled to an off-set for certain insurance benefits provided by employer?
  • Was trial court right to award $6,500 in burial expenses?

Employee worked as a day shift nurse who drove to and from patient’s homes. She was also responsible for communicating with the night shift nurses, charting her patients and entering billing codes. Nurses in her role were given laptops and encouraged not to return to the office to chart.

Employer reimbursed workers for mileage, but not the mileage from the last patient’s house to the employee’s home. Nurses were required to be available in case of emergency until 4:30 p.m. each day, even if they had already treated each patient on their list for the day. The only way to avoid this duty was to specifically ask to leave early.

One day in February 2014, decedent called her spouse and told him she was leaving her last patient’s home and was coming home. She had to stop at the pharmacy for a personal prescription and then would go home. She then stopped at the pharmacy and was on her way home. It was then she was involved in a car accident in which she died. The accident happened prior to that 4:30 p.m. cutoff. At the time, she had not yet recorded her voicemail messages for the incoming night nurses and she hadn’t completed her billing entries or charting.

Her husband sought workers’ compensation death benefits. Employer argued she should not receive them because she was on her way home and was running a personal errand.

In the Alabama Court of Civil Appeals’ decision, although the coming-and-going rule may well have been applicable, as the worker was traveling home, this case fell within an exception because she was engaged in some duty that was in furtherance of the employer’s work. Specifically, the employee was still “available” until 4:30 p.m. and had her laptop to complete her other daily duties. So the fact that she stopped and picked up a personal prescription and the fact that she was on her way home was still within her duties because she had not specifically requested to leave before 4:30 p.m.

The court ruled the trial court did not err in awarding burial expenses to the spouse, who was also entitled to workers’ compensation death benefits.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Hospice Family Care v. Joseph Allen, June 6, 2016, Alabama Court of Civil Appeals

More Blog Entries:

National Safety Council Releases 7 Top Workplace Hazards, June 11, 2016, Charlotte Workers’ Compensation Attorney Blog

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