COURSE AND SCOPE OF EMPLOYMENT / Travel Home To Retrieve Laptop For Work Furthered Employer’s Business & Originated In The Employment
Appeal 171936
The administrative law judge determined that the decedent did not sustain a compensable injury when he was involved in a motor vehicle accident resulting in his death. In the Discussion section of her Decision and Order, the ALJ indicated that there was no evidence that the decedent was required to return to his residence to retrieve his laptop computer and that, for such reason,“his travel was not in the course and scope of his employment.” However, while the decedent’s supervisor testified that the decedent did not need his laptop to connect to the company network and that the decedent could access such information from another computer at the workplace, he also indicated that the decedent would need his laptop to access information stored on its hard drive. Therefore, the decedent obviously believed it necessary to have access to his assigned computer at work that day as there was no evidence of any personal or other purpose which was furthered by his travel back to his residence after beginning his workday. Such travel was not simply transportation to and from the place of employment but was travel that both furthered the employer’s business and originated in such business.
Accordingly, the Appeals Panel reversed and rendered a new decision that the decedent did sustain a compensable injury.
COURSE AND SCOPE OF EMPLOYMENT / Injury While Crossing Public Street To Get To Parking Lot Is Not Covered Under Access Doctrine
Appeal 190602
At the end of claimant’s work day, she was struck by a car while crossing a public street to get to the parking lot where she parks her car. The ALJ ruled that she sustained a compensable injury under the access doctrine.
Citing prior case law, the Appeals Panel reversed noting that “no case has extended the ‘access exception’ out into the public streets where other members of the public are subject to the same hazard.” In the instant case, the claimant’s injury occurred while she was walking in the roadway of a public street and was thus “a consequence of risk and hazards to which all members of the traveling public are subject rather than risk and hazards having to do with and originating in the work or business of the employer.”
COURSE AND SCOPE OF EMPLOYMENT / Firefighter Determined To Have Sustained Digestive Cancer By Presumption / AP Determines Expert Testimony Did Not Rebut
Appeal 191065
The claimant was a 10-plus-year employee of the self-insured as a firefighter. The ALJ found that the claimant has been diagnosed with a pancreatic neuroendocrine tumor and metastatic neuroendocrine tumor of the liver (digestive cancers) and that digestive cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as determined by the IARC. The ALJ found that the claimant established the presumption under Government Code Chapter 607, Subchapter B. These findings were not appealed.
However, the ALJ ruled against the claimant after determining that the self-insured rebutted the presumption by proving that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician caused the claimant’s pancreatic and liver cancers relying on the testimony and written report of (Dr. K). Specifically, the ALJ found that the claimant’s cancer was the result of family history because the claimant’s father had suffered from kidney cancer.
The AP reversed the ALJ’s decision and rendered that the claimant did sustain a compensable injury. It was undisputed that the claimant did not have any genetic testing to determine if he possessed any of the genetic syndromes which have been identified to cause pancreatic neuroendocrine tumors. No evidence was offered to show what type of tumors the claimant’s father developed in the kidneys. Dr. K could not explain any other cause of the claimant’s cancer other than to say it was due to family history and not the result of firefighting. With that, it was determined that the ALJ’s decision was against the great weight and preponderance of the evidence.
COURSE & SCOPE OF EMPLOYMENT / Any Prior Use Of Tobacco Enough To Defeat Firefighter Cancer Presumption If The Type Of Cancer At Issue Can Be Caused By Tobacco Use
Appeal 200100-S
A firefighter prevailed at CCH on the compensability of bladder cancer with the ALJ finding that he met the gateway requirements for the presumption under Government Code Section 607.052(a)(1), (2), and (3). This was in spite of evidence that after high school, the claimant smoked around 6 cigarettes over the course of a year back in 2005. The ALJ had reasoned that the claimant’s prior use was so limited that he was not excluded from establishing the presumption.
The Appeals Panel had a different opinion. Government Code Section 607.052 indicates that the presumption does not apply if the cancer in question can be caused by the use of tobacco and the claimant has been a user of tobacco. The AP noted that “the statute does not define a minimal amount of tobacco used or the length of time tobacco has been used by the firefighter or emergency medical technician that would preclude the cancer presumption. We decline to impose a threshold amount or time frame when the legislature has not done so.” The case was remanded for a decision on the question of whether the claimant sustained a compensable injury in the form of an occupational disease without applying the cancer presumption.
COURSE AND SCOPE OF EMPLOYMENT / Travel To Work Not In Course & Scope Just Because Supervisor Asked Claimant To Show Up Earlier Than Usual
Appeal 200798
The claimant was asked by his supervisor to show up to work early the next day to open up the shop and turn on the lights because a new rig was going out that day. On the way to work in the company truck, the claimant rear-ended a semi-trailer and sustained an injury. At the CCH, the ALJ determined that there was sufficient evidence to say that the claimant was in the course and scope of his employment because the supervisor asked him to show up early and he was doing what he was told.
The AP looked at it in a different way. They noted that injuries in public streets are generally not covered because the employee is at no greater risk of injury than the general public. An exception to the general rule is the special mission, when an employee proceeds from one place to another at the direction of a supervisor. Even though the supervisor asked the claimant to show up early on the date of injury, he was reporting to work at the location where he always reports to work. A change in time alone is not enough to invoke the special mission exception to the coming and going rule.
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What is the course and scope of employment in a Texas workers’ compensation case?
Video: Texas Workers’ Compensation Injuries In The Course And Scope Of Employment
