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Put it in Practice July 2022: Monthly Tips for Florida WC Professionals

Firm News

GOING & COMING RULE / EXCLUSIVE PERSONAL USE

When is an injury that occurs while driving to and from work in a company vehicle NOT compensable?

As strange as it may seem, an injury under these circumstances is USUALLY not compensable.  That’s because Florida has a unique statute on this concept, and it all depends on something called “exclusive personal use.”

Per Florida Statute 440.092(2),  “An injury suffered while going to or coming from work is not an injury arising out of and in the course and scope of employment, whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.”

So, what  is “exclusive personal use?  The issue crops up frequently, with little guidance by the court until Kelly Air Systems, LLC v. Kohlun  (Fla. 1st DCA, 3-16-22).  In Kohlun, the Court found “The question is whether it is available for his exclusive personal use for travel to and from work.“  The carrier must determine whether “the employee’s transportation is available exclusively to that employee and that the employee can use the transportation as if it were personal property for the purpose of going to and coming from work.

Takeaways:

  • Just  because the claimant was in a company-provided vehicle doesn’t automatically make the injury compensable.
  • Look at whether the claimant is able to use the vehicle to transport himself to and from work.
  • It is not necessary that the claimant be allowed to use the vehicle for any personal reason he desires.

If there is ever a question about this topic, please feel free to reach out to one of us at HR Law and we will guide you through it.

This month’s author is Jonathan Cooley.  jcooley@hrlawflorida.com