Boilermaker's per diem doesn't justify comp for accident during drive to work

In Wyoming, an employment contract that expressly states that per diem payments do not include pay for travel time or mileage will prevent an accident during a worker's commute from home to work from being considered compensable.

Case name: Bilyeu v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, No. S-12-0051 (Wyo. 11/02/12).

Ruling: The Wyoming Supreme Court held that a boilermaker's injury while driving his motorcycle to work was not compensable.

Sub-subcontractor's employee not entitled to coverage from contractor (02/25/13)
Cleaner's use of helpers indicates independent contractor status (11/01/12)
Statement made weeks before termination moves claim forward (09/30/11)
Failure to rebut rehab counselor's report boosts driver's claim (04/19/12)
Hospital not subject to penalties for worker's fall in elevator shaft (04/19/12)

What it means: In Wyoming, an employment contract that expressly states that per diem payments do not include pay for travel time or mileage will prevent an accident during a worker's commute from home to work from being considered compensable.

Summary: A boilermaker for a construction company had his home in Texas but was living in Wyoming near his job site. The company paid him a per diem amount of $60 per day because his time in Texas was more than 50 miles from the job site. The union contract applicable to his employment stated that the per diem allowance did not include pay for travel time or mileage. The boilermaker was driving his motorcycle to work when he was involved in an accident. He sustained a broken ankle, broken ribs, a broken collar bone, a collapsed lung, and lacerations. He sought workers' compensation benefits. The Wyoming Supreme Court held that he was not entitled to compensation.

An injury sustained by an employee while traveling to or from work is not compensable by workers' compensation unless the employee is reimbursed for travel expenses or is transported by a vehicle of the employer. The court explained that a "compensable nexus" is created where the employed assumed the cost of traveling between home and work.

In this case, the boilermaker said that the $60 per day he received was for travel, meals, and other expenses associated with getting to and from the work site. The company's project manager testified that the per diem amount paid to employees was an allowance for living expenses and did not include pay for travel time of mileage. The project manager acknowledged that the per diem was based on mileage from the boilermaker's home.

The court pointed out that the union contact expressly stated that per diem did not include pay for travel time or mileage. Also, no evidence showed that the boilermaker actually used the $60 payment for gas or vehicle maintenance or that anyone told him what the payment was for.

Read more at the WorkersComp Forum homepage.

February 18, 2013

Newsletter Sign-up