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You Be the Judge

Accident Timing Muddies Compensability

A block of driving time split between personal and professional errands creates confusion about whether injuries occurred in the course and scope of employment.
By: | March 12, 2018 • 3 min read

A worker for the Texas Health and Human Services Commission was driving to attend a mandatory training in another office when he was injured in a car accident.

On the day of the accident, the employer released several employees at noon so they could attend a 1:30 p.m. training. The worker was injured in an accident at 12:06 p.m. on a road that was a possible route to the training.

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The worker’s supervisor said that her preferred route was different from the worker’s and used expressways. She said that this route was the quickest but was “pretty hectic.”

The supervisor stated that the normal lunch hour was from noon to 1 p.m. The lunch hour was uncompensated, and workers could leave the office during the lunch hour. Employees were not required to use their lunch hour to travel to the training. They were provided 30 minutes of compensated travel time before the training.

A supervisor also stated that employees would be entitled to seek mileage reimbursement for using a personal vehicle to travel to the other office to attend the training. The reimbursement amount was limited to the shortest distance.

The worker filed a workers’ compensation claim. The jury determined that the worker sustained a compensable injury in the course and scope of his employment. The trial court awarded the worker benefits. The State Office of Risk Management appealed.

Did the trial court properly determine that the worker’s claim was compensable?

  • A. Yes. The worker’s travel to attend mandatory, work-related training furthered the employer’s business.
  • B. No. The jurors could have inferred that the worker was on a distinct errand or departure because his lunch hour had just begun.
  • C. No. The worker was “off the clock” at the time of the accident.

How the Court Ruled

B is incorrect. The court explained that evidence of travel on a possible route to the other office that was not described as “pretty hectic” allowed for a reasonable inference that the worker was traveling to the other office.

C is incorrect. The court explained that compensation is not included in the definition of scope of employment. Also, supervisors testified that there was no workplace prohibition on lunchtime travel to the other office. The court said that even if the jury should have considered compensation, there was evidence that the worker would be reimbursed for his travel.

A is correct. In State Office of Risk Management v. Pena, No. 13-16-00598-CV (Tex. Ct. App. 02/01/18), the Texas Court of Appeals held that the worker sustained a compensable injury while in the course and scope of his employment.

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Texas law defined “course and scope of employment: as an activity that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The court found that a reasonable fact finder could conclude that the worker’s travel originated in his employment because the training was mandatory.

The court also found that a reasonable fact finder could conclude that the work-related travel to attend mandatory training furthered the employer’s affairs. Therefore, the worker sustained a compensable injury in the course and scope of his employment.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

2018 Risk All Stars

Stop Mitigating Risk. Start Conquering It Like These 2018 Risk All Stars

The concept of risk mastery and ownership, as displayed by the 2018 Risk All Stars, includes not simply seeking to control outcomes but taking full responsibility for them.
By: | September 14, 2018 • 3 min read

People talk a lot about how risk managers can get a seat at the table. The discussion implies that the risk manager is an outsider, striving to get the ear or the attention of an insider, the CEO or CFO.

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But there are risk managers who go about things in a different way. And the 2018 Risk All Stars are prime examples of that.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Goodyear’s Craig Melnick had only been with the global tire maker a few months when Hurricane Harvey dumped a record amount of rainfall on Houston.

Brilliant communication between Melnick and his new teammates gave him timely and valuable updates on the condition of manufacturing locations. Melnick remained in Akron, mastering the situation by moving inventory out of the storm’s path and making sure remediation crews were lined up ahead of time to give Goodyear its best leg up once the storm passed and the flood waters receded.

Goodyear’s resiliency in the face of the storm gave it credibility when it went to the insurance markets later that year for renewals. And here is where we hear a key phrase, produced by Kevin Garvey, one of Goodyear’s brokers at Aon.

“The markets always appreciate a risk manager who demonstrates ownership,” Garvey said, in what may be something of an understatement.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Dianne Howard, a 2018 Risk All Star and the director of benefits and risk management for the Palm Beach County School District, achieved ownership of $50 million in property storm exposures for the district.

With FEMA saying it wouldn’t pay again for district storm losses it had already paid for, Howard went to the London markets and was successful in getting coverage. She also hammered out a deal in London that would partially reimburse the district if it suffered a mass shooting and needed to demolish a building, like what happened at Sandy Hook in Connecticut.

2018 Risk All Star Jim Cunningham was well-versed enough to know what traditional risk management theories would say when hospitality workers were suffering too many kitchen cuts. “Put a cut-prevention plan in place,” is the traditional wisdom.

But Cunningham, the vice president of risk management for the gaming company Pinnacle Entertainment, wasn’t satisfied with what looked to him like a Band-Aid approach.

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Instead, he used predictive analytics, depending on his own team to assemble company-specific data, to determine which safety measures should be used company wide. The result? Claims frequency at the company dropped 60 percent in the first year of his program.

Alumine Bellone, a 2018 Risk All Star and the vice president of risk management for Ardent Health Services, faced an overwhelming task: Create a uniform risk management program when her hospital group grew from 14 hospitals in three states to 31 hospitals in seven.

Bellone owned the situation by visiting each facility right before the acquisition and again right after, to make sure each caregiving population was ready to integrate into a standardized risk management system.

After consolidating insurance policies, Bellone achieved $893,000 in synergies.

In each of these cases, and in more on the following pages, we see examples of risk managers who weren’t just knocking on the door; they were owning the room. &

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Risk All Stars stand out from their peers by overcoming challenges through exceptional problem solving, creativity, clarity of vision and passion.

See the complete list of 2018 Risk All Stars.

Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]