Pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act), a contested case hearing was held in (city), Texas, on April 12, 1993, (hearing officer) presiding as hearing officer. He determined that the appellant (claimant) deviated from the furtherance of his employer’s business affairs at the time of an automobile accident and that he was not injured in the course and scope of his employment. Claimant urges that he did not deviate from the course and scope of his employment pointing out that he is licensed to sell insurance throughout Texas, that his designated area is only to make collections, that he does not have regular office hours and that he conducts significant business out of his residence. He argues that it was expected of him to have a clean car and that at the time of his accident he was on the way to visit a client. He also complains that a tape recorder used to take a telephone interview between himself and an agent for the carrier was not produced. Respondent (carrier) asserts the evidence is clear and supports the hearing officer and asks that the decision be affirmed. Carrier also asserts that the appeal is not timely and does not meet procedural requirements.
DECISION
Determining that the hearing officer failed to make essential findings of fact to support his decision under the factual setting of this case, the decision is reversed and the case remanded.
Initially we note that the appeal is timely, the decision of the hearing officer having been mailed to the parties on April 23, 1992, and the appeal mailed on May 7, 1993, within the 15 day filing requirements, not even accounting for allowable mail time for the decision to reach the parties. We also determine that the appeal is procedurally sufficient and adequately raises the matters in dispute.
The single issue in the case was whether the claimant had deviated from his employment at the time of his accident on (date of injury), so as to take him out of the course and scope of his employment. The facts in the case are not complex and the case and decision focused on the intention of the claimant at the time of his involvement in an automobile accident. The provisions of the 1989 Act directly related to the case are found in Article 8308-1.03(12)(B) which provide that the term “course and scope of employment” does not include:
(B)travel by the employee in the furtherance of the affairs or business of his employer if such travel is also in furtherance of personal or private affairs of the employee unless:
(i)the trip to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the trip; and
(ii)the trip would not have been made had there been no affairs or business of the employer to be furthered by the trip.
The claimant was employed as a life insurance agent. According to his testimony he did not have regular office hours and he had an assigned area in Harlingen, Texas, which he termed his “agency.” On (date of injury), he was apparently in his agency and had made arrangements to have a business lunch at 12:00 p.m. with a client to get a preauthorization bank card (although not entirely clear from the evidence the client had at sometime apparently indicated a possible problem with that time and that the meeting might have to be delayed). In any event, the claimant testified that he left his agency work area around 11:00 a.m. heading to the bank where he was to meet the client. In route he stopped at a car wash and then proceeded down a street that could be used whether he was going to his residence or to the particular bank, although at some point along the route one would have to turn off one way to go to the bank and another way to go to the residence. Several blocks after leaving the car wash, he was involved in an apparent relatively minor rear end automobile accident. After the police report was accomplished he decided to go to his residence to settle himself and see how his 14 year old sick child at home was doing (his wife works). He stated that one reason he decided to go to his residence was because it was still “a little bit early” to go to the bank for the 12:00 meeting. He denied that he had planned on going to the residence to check on his child when he originally left his agency work area and that it only occurred to him after the accident and that his plan was to check on the child after his meeting. When asked if it wasn’t true that if the accident had not occurred he would have been a lot earlier going to his appointment, the claimant stated that it was true but that he “was in no hurry, not rushing.” Once at his residence, he called the client and found out that she would not be available until 1:00 p.m. He subsequently kept the appointment. He went to a doctor some nine days following the accident complaining of back pain. The claimant acknowledged that at one point during the interview with the carrier’s agent he said that one purpose of going to the residence was to also check on his child; however, he repeatedly stated during the interview that he was going to the bank. He maintained that he had no plans to go to his residence until after the accident occurred.
Initially we note that there was no objection or other matter raised at the hearing regarding the production of a tape recorder, the one apparently used during the interview. Too, we note that the claimant introduced the interview transcription as his exhibit during the hearing. Under the circumstances, we do not find any basis for any action on our part regarding this portion of the claimant’s appeal.
Based upon the testimony of the claimant and the evidence of record, the hearing officer found as follows:
FINDINGS OF FACT
8.Claimant deviated from the furtherance of the affairs or business of Employer when he stopped to have his personal vehicle washed.
9.After leaving the car wash establishment, claimant was involved in an automobile accident at 11:15 a.m. on a route directly in line from his work area to both his residence and to the bank where he was to meet his client at 12:00 Noon.
10.Following the accident investigation by the police, Claimant proceeded directly to his residence to check on his sick child.
11.By leaving his work area at 11:00 a.m. en route to a 12:00 Noon business appointment at a place no further than a 15 minute drive from his work
area, Claimant demonstrated an intent to deviate from the immediate pursuit of his employer’s business affairs by driving to his residence to check on his son.
12.Claimant deviated from the furtherance of his employer’s business affairs when he left his work area at 11:00 a.m. to drive to his residence to check on his son.
As indicated, the hearing officer found that getting the car washed was a deviation; however, this is not of particular significance in this case as the hearing officer found that at the time of the accident, the claimant was back on the direct route that would take him to his business engagement as well as his residence. See General Insurance Corp. v. Wickersham, 235 S.W.2d 215 (Tex. Civ. App.-Fort Worth 1951, writ ref’d n.r.e.). Our concern with this case, which causes us to remand, centers on what has become known as the “dual purpose doctrine” in the travel area. As we stated in Texas Workers’ Compensation Commission Appeal No. 92026, decided March 9, 1992, “[w]hen the evidence supports the determination that both the furtherance of the affairs or business of the employer and the furtherance of the employee’s private or personal affairs are involved, the two-prong test of the dual purpose doctrine comes into play,” and as we observed in Texas Workers’ Compensation Commission Appeal No. 91071, decided December 30, 1992, the “dual purpose rule [does] not apply unless both the employer’s interest and the personal affairs of the worker were being furthered.” Not only does the evidence in this case compellingly give rise to this doctrine, the hearing officer’s findings of fact support its application. His findings include the fact that when the claimant left his work area he was going to a business appointment and also going to his residence to check on his son. He also found that at the time of the accident (the place of occurrence of the injury) he was on a route directly in line to both locations. This scenario compellingly brings into consideration the dual purpose considerations under Article 8308-1.03(12)(B) set forth above. American States Insurance Co. of Texas v. Caddell, 644 S.W.2d 884 (Tex. App.- Tyler 1982, no writ). See also United States Fidelity & Guaranty Co. v. Harris, 489 S.W.2d 312 (Tex. Civ. App.- Tyler 1972, writ ref’d n.r.e); Underwriters Insurance Co. v. Potter, 807 S.W.2d 419 (Tex. App.-Beaumont 1991, error denied); Bissett v. Texas Employers Insurance Association, 704 S.W.2d 335 (Tex. App.- Corpus Christi 1986, writ ref’d n.r.e.). Unfortunately, although there is evidence giving rise to the application of Article 8308-1.03(12)(B), the hearing officer makes no findings or determinations regarding subparagraphs (i) and (ii) under (12)(B). Under the circumstances, reversal and remand is appropriate. Accordingly, the decision is reversed and the case is remanded for further consideration, consistent with this opinion and development of evidence as deemed necessary by the hearing officer.
A final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Article 8308-6.41. See Texas Worker’s Compensation Commission Appeal No. 92642, decided January 20, 1993.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Gary L. Kilgore – Appeals Judge