By Sarah Byrne, staff attorney, Nashville

On Monday, the Appeals Board reversed the trial court in Bibiane Francoeur v. Amerimed Medical Solutions, LLC. The employer appealed an expedited award of temporary disability for Ms. Francoeur, whose no-driving restriction prevented her from getting to work—where Amerimed could’ve accommodated her work restrictions.

The decision “hinge[d] on whether it is reasonable to require an employer to accommodate every restriction assigned by a treating physician, even if such restrictions are wholly unrelated to the employee’s job duties,” wrote the Board.  

For Ms. Francoeur, the work injury didn’t prevent her ability to work but rather her ability to get to work. While her light-duty assignment didn’t require any driving, her assertion that she had no way of getting there without driving was unrefuted.

Although “most employees must arrange transportation to and from work,” the trial court wrote when awarding Ms. Francoeur temporary disability, “a work injury resulting in a no-driving restriction changes the obligations of an employer.”

Yet a lack of statutory or regulatory authority for that proposition—coupled with longstanding precedent suggesting that an employee’s commute is not an employer’s obligation—resulted in the reversal.

“Given the plethora of case law indicating that an employee’s commute is generally not within the course of employment,” the Board wrote, “we cannot, in the absence of a specific statutory or regulatory mandate, impose such an obligation on employers.”

While injuries sustained during travel are compensable if traveling is a substantial part of the employment and compensation, usually “travel to and from work is primarily for the benefit of the employee: if he doesn’t present himself at the workplace, he is not compensated for his labors,” read the opinion, quoting from Howard v. Cornerstone Medical Association, P.C., a 2001 Tennessee Supreme Court opinion.

And “no statutory provisions,” the Board observed, “speak to an employer’s obligations to provide or reimburse an injured worker’s travel to and from work.” While the statute allows for mileage reimbursement to medical appointments, that is the “single statutory provision that addresses an employee’s travel following a work-related injury.” As for regulations, “We found no regulations that address an injured worker’s travel … and none have been cited to us.”

Without that authority, an employer’s only obligation is to “make a reasonable return-to-work offer that accommodates every restriction assigned by the authorized treating physician that impacts the employee’s ability to do the essential functions of that job,” according to the Board’s opinion.

If the employee declines the offer, she “must prove to the court that the decision [to deny the employer’s offer] was reasonable in light of the circumstances of the case.”

The Board held oral arguments in the case on Oct. 1. Because the appeal was made at the interlocutory stage, Ms. Francoeur cannot further appeal the decision.

Photo by Judge Amber Luttrell, Jackson.