Home Health Aid - Traveling Salesman or Coming and Going Rule How to Analyze the Risk

By: John H. Ruocchio

            Home health aids or as they are known by the trademark name, Visiting Angels, or other such entities, pose an interesting dilemma in analyzing compensability.  Are they treated like traveling salesmen, i.e., always on the job once they leave their home or is a more appropriate analysis akin to the coming and going rule such that an employee is not a workers’ comp risk until that employee reaches and enters his place of employment?  The court has addressed this matter in two primary cases. 

            The first is the Chavis v. TLC Home Healthcare, which is a 2005 Court of Appeals case.  In that matter, plaintiff worked as a home health aid and was involved in a motor vehicle accident.  The question was whether plaintiff was in the course of her employment at the time of the incident.  The court indicated there were a couple of points necessary in order to analyze exposure.  In essence, it is a facts and circumstance test.  The court wanted to know the following:  (1) Did plaintiff have to continually travel to and from different homes; (2) Did the plaintiff have fixed hours; (3) Did the plaintiff have a fixed number of patients. 

            In the Chavis case, the home health aid was in the process of traveling between multiple patients and, therefore, the motor vehicle accident was found to be compensable.  The court ruled that plaintiff did not have fixed hours, was continually traveling between different homes, and did not have a fixed number of patients for the day.  As such, the court analyzed same as one would a traveling salesman.  As such, under those facts, there is risk from portal to portal or from the moment the home health aid leaves her house to begin her patient runs.

            The other case, the Court of Appeals addressed in 2002 was Hunt v. Tender Loving.  This case also is a motor vehicle accident case.  However, in this matter, the individual was simply going to one patient.  She was not required to attend multiple patients.  Further, the employer did reimburse plaintiff for travel, but only if it was greater than 30 miles.  Plaintiff did not travel greater than that amount and, therefore, did not receive reimbursement, but did have the potential to receive same.  Given these facts and since plaintiff was traveling less than 30 miles to a single destination to attend to one patient for the complete day, the case was not compensable.  As such, plaintiff was not on the job until at the patient’s home.

            As such, analyzing these cases depend on a facts and circumstances test.  As a practical matter, the fact that the court recognized payment of mileage, it may be prudent for individual companies not to pay mileage beyond a certain distance to entice employees to accept such assignments.  It may be better practice to offer a little big higher hourly rate to induce further travel.  Nonetheless, compensability is a facts and circumstances test to be determined on a case-by-case basis using the above analysis.

Should you have any questions regarding issues you encounter in handling claims, please be sure to reach out to the workers’ compensation professionals at Lewis & Roberts, PLLC for additional guidance.