Typically, a worker's injury while commuting to and from work is not compensable under Kentucky workers compensation law because of the "coming and going" rule. There are some exceptions to the "coming and going" rule, one being where the employer induces the employee to accept or continue employment by substantially subsidizing the employee's commute. The Kentucky Supreme Court recently applied this exception in Fortney v. Airtran Airways, No. 2009-SC-429-WC (June 17, 2010).
Clarence Fortney was a pilot employed by Airtran Airways. He lived in Lexington and commuted to and from Atlanta, where Airtran was headquartered. Tragically, Fortney was killed in the Comair flight 5191 crash in Lexington on August 27, 2006, while commuting to work. Airtran had an arrangement with Comair, which allowed Fortney to fly free or at the very reduced fare to and from Lexington and Atlanta. The evidence indicated that this commuting subsidy induced Fortney to accept employment with the Airtran.
The Kentucky Supreme Court, in an opinion authored by Justice Lisabeth Abramson, employed an analytical mixture of economic analysis and the benefit principle in concluding that Fortney's commute to Atlanta was in the course of his employment and his death compensable under Kentucky workers compensation law:
The fact that an employer uses transportation or transportation expense as an inducement to accept or continue employment is material to supporting compensability, particularly when the journey is sizable and when the employer pays all or substantially all of the expense. We note that such an inducement benefits the worker who accepts it and places a financial burden on the employer but also that the inducement benefits the employer when its purpose is accomplished. An employer is unlikely to provide such an inducement unless it views the resulting benefit as outweighing the burden.
