Following a contested case hearing held in ________, Texas, on December 12, 1995, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, ____________, resolved the two disputed issues by concluding that _____________ (decedent) sustained a compensable fatal injury on _________, and that the requirement that the respondents, ___________ (Ms. S), the decedent’s widow, and their nine children (beneficiaries), file a claim for compensation with the Texas Workers’ Compensation Commission (Commission) within one year of the fatal injury was extended to September 12, 1996, because of the failure of Mrs. Baird’s Bakeries (employer) to timely file a written report of injury with the Commission when the employer had been given notice or had actual knowledge of the fatal injury. The appellant (carrier) challenges these two legal conclusions and certain of the underlying findings of fact. The carrier first contends that the evidence is not sufficient to support the compensable death determination because the decedent’s death in a motor vehicle accident while driving the employer’s van to his place of employment did not come within one of the exceptions to the “coming and going” rule and, alternatively, that even if it did, the decedent was not at the time in the course and scope of employment. The carrier further contends that the employer must be given notice that the death is claimed as a compensable injury before the employer is required to file with the Commission the report required by Section 409.005, that nothing about the traffic accident put the employer on notice to file “its required report,” and, thus, that this case should be remanded “for further inquiry concerning this issue.” The carrier asks us, first, to reverse and render a decision that the decedent did not receive a fatal injury in the course and scope of his employment and that the beneficiaries did not timely file a claim for death benefits. In the alternative, the carrier asks that we remand the case for the hearing officer “to determine those factual issues addressed above.” The beneficiaries filed a response asserting that the evidence is sufficient to support the challenged findings and conclusions.
DECISION
Affirmed.
At the outset of the hearing, the carrier advised the hearing officer that the facts were not in dispute and the carrier iterates that assertion in its Request for Review. In that neither party indicates disagreement with the hearing officer’s “Statement of the Evidence” and since that statement contains an accurate and sufficient recitation of the evidence, we adopt it for purposes of this decision and will refrain from setting out a detailed summary of the evidence. Succinctly, at the time of his tragic death at approximately 5:00 a.m. on Monday, _________, the decedent had worked for the employer for approximately 11 years, having progressed from route salesman to sales supervisor. He supervised the 10 route salesmen who worked their routes from the employer’s Alamo Downs warehouse (warehouse) in San Antonio (the City), which had been opened by the employer about two years earlier and which was in a different area in the City from employer’s main bakery. According to the testimony of Ms. S, before his death decedent would normally leave the house between 4:00 and 6:00 a.m. and go to the warehouse, although on occasion he might first go to the main bakery or to a store or somewhere else. She said that she got up with the decedent at about 4:00 a.m. on _________, and he told her he had to pick up another sales supervisor at the main bakery at 6:00 a.m. to go do a “reset” (product rearrangement) at a store but that before he did that he was first going to go to the warehouse to deliver new employer uniforms to route salesman AM (Mr. M) and a letter of reprimand to route salesman RF(Mr. F), having previously attempted to do so and missing them. Ms. S said that the decedent left their residence in the City driving the employer’s van, which had the employer’s logo on the sides and back. As the hearing officer stated, at approximately 5:00 a.m., “a drunk driver ran into the Decedent’s van at an intersection” resulting in his death.
According to the testimony of HB (Mr. B), the general sales manager and decedent’s supervisor, the decedent worked out of the warehouse supervising 10 route salesmen and was considered “the boss” at that location. He indicated that the employer had not instructed the decedent to drive to the warehouse on the morning of the accident to deliver the uniform items and administer the reprimand, but he also indicated that it was not uncommon for decedent, being the sole supervisor at the warehouse site, to pick up the required uniforms at the main bakery for his 10 route salesmen from time to time. There was no contention either that as the supervisor of the 10 route salesmen, the administration of reprimands did not fall within the ambit of decedent’s supervisory duties. Mr. B further indicated that while the decedent worked from the employer’s warehouse site, as a supervisor his duties included calling on customers, checking on the salesmen’s routes and performance, making special deliveries, attending meetings at the main bakery and so forth and that it was up to the decedent to decide when he started and stopped work and where he might first go on any given day. Mr. B also said that the employer provided the decedent and the other five supervisors with vans which could be driven to and from work but which were for business use only, such as calling on customers, checking on the salesmen, delivering special orders and so forth. As he stated, the decedent “needed a vehicle to do his job and rather than pay mileage, we provided a van.” He indicated that the employer not only owned the vans but paid the costs of operating and maintaining them. He also agreed that the employer received an advertizing benefit from its logos on the vans. Mr. B further testified that he had called a meeting of his supervisors including the decedent for 7:00 a.m. on _________, at the main bakery which the decedent was to attend, and indicated that later that day he learned of the decedent’s death.
Mr. M testified that the decedent, who was his supervisor, had on previous occasions brought him uniform items from the main bakery which he had ordered, that decedent was to do so again at the time of his death, and that sometime after ________, he was given the uniform items which had broken glass on them. Mr. F testified that the decedent, who was his supervisor, had previously brought him uniform items also and had also given him letters of reprimand the content of which they discussed before Mr. F signed them and they were placed in his personnel file. He said he never received the reprimand recovered from the van after the accident but indicated he was aware it was coming.
With respect to the timely claim issue, the documentary evidence showed that an unsigned, undated Employer’s First Report of Injury or Illness (TWCC-1) was received at the Commission on September 12, 1995, and that the Notice of Fatal Injury or Occupational Disease and Claim for Compensation for Death Benefits (TWCC-42) was signed by Ms. S on “6-23-95” and date stamped received by the Commission on June 27, 1995. The carrier’s first Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21), dated “5-9-94,” stated that the carrier’s first written notice of injury was received on “5-3-94” and that it had requested documentation to determine entitlement to death benefits. Its second TWCC-21, dated “5-12-94,” contained the same date of first written notice of injury and under “Notice of Refused or Disputed Claim” stated that decedent’s death “did not occur while in course and scope of employment nor as a result of his job duties.”
THE COMPENSABLE DEATH ISSUE
“As a general rule, an injury received while traveling to and from work is not compensable. [Citation omitted.] Instead, such injuries are considered to be suffered as a consequence of the same risk to which the general public is subject, rather than having to do with the employer’s business. [Citation omitted.]” Rose v. Odiorne, 795 S.W.2d 210, 213 (Tex. App.-Austin 1990, writ denied). The hearing officer determined that notwithstanding the general bar to the compensability of injury or death sustained in transportation to and from the place of employment, codified in the definition of course and scope of employment, Section 401.011(12)(A), the decedent’s travel fell within two exceptions provided for in the statute. Sections 401.011(12)(A)(i) and (ii) state that the term (course and scope of employment) does not include “transportation to and from the place of employment unless: (i) the transportation is furnished as a part of the contract of employment or is paid for by the employer; (ii) the means of the transportation are under the control of the employer; . . . . ” The hearing officer made clear in his discussion that he found inapplicable the so-called “special mission” exception (Section 401.011(12)(A)(iii)) and the “dual purpose” doctrine (Section 401.011(12)(B)) and those determinations are unappealed.
Not appealed are findings that the decedent was driving the employer’s motor vehicle from his home to his place of employment when he sustained his fatal injury on _________, that the employer maintained and repaired the vehicle and paid for the gasoline in the vehicle, and that the employer provided the vehicle to the decedent for use in his employment duties and to drive to and from his house to his place of employment but not for personal use. The carrier does appeal the finding that the employer provided the vehicle to the decedent in lieu of paying the decedent mileage costs for using his private vehicle in his employment and also to obtain the benefit of free advertizing from the employer’s name on the vehicle, and the carrier makes repeated references to the van’s having been “gratuitously” provided. However, Mr. B’s testimony squarely covered these facts and we find them to be sufficiently supported by the evidence. The carrier does not challenge the finding that the motor vehicle was transportation furnished by the employer as part of decedent’s employment contract and was paid for by the employer. The carrier does challenge the finding that the motor vehicle was under the employer’s control. The uncontroverted testimony of Mr. B was that other than decedent’s driving to and from his work, the employer required that the van be driven only for business purposes and Ms. S testified that the decedent complied with that policy. We are satisfied that the challenged findings on this issue have sufficient support in the evidence and that they establish that decedent’s transportation at the time of his death was within the two statutory exceptions.
As the carrier notes, however, finding decedent’s travel to have come within the two exceptions does not end the inquiry since the decedent’s activities still must have been within the course and scope of his employment, that is, having to do with and originating in the work or business of the employer and performed by him while engaged in or about the furtherance of the affairs or business of the employer. The Rose court stated the proposition as follows:
If a worker is injured during travel to and from work, he is deemed not to be injured in the course of his employment, and his injury is not compensable unless he meets one of the requirements of §1b [prior statute] by showing, for example, that the employer paid for or furnished the transportation [citation omitted]. If the employee comes within one of the §1b exceptions, then his injury may be considered the basis for a claim. In the event transportation is furnished or paid for by the employer, the employee may be entitled to compensation if he can prove that he sustained his injury in the course and scope of his employment within the criteria set forth in §1. [Citations omitted.]
In this regard, the hearing officer found (and the carrier challenges) that on _________ the decedent was taking a uniform to one employee and a letter of reprimand to another at his place of employment and that both functions were within the decedent’s employment duties; that his fatal injury occurred while he was engaged in or about the furtherance of the affairs or business of his employer; that decedent’s activity when he sustained his fatal injury was of a kind and character that had to do with and originated in the work and business of the employer; and that his travel when he sustained his fatal injury was not in furtherance of any personal or private affairs of the decedent. We regard the testimony of Ms. S, Mr. M, Mr. F and Mr. B as sufficient to support these findings. Whether the decedent’s travel came within a statutory exception and was otherwise in the course and scope of his employment presented the hearing officer with questions of fact to resolve. The hearing officer is the sole judge of the materiality, relevance, weight and credibility of the evidence. Section 410.165(a). As an appellate review body, we will not disturb the challenged factual findings unless they are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust and we do not so find them. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
THE TIMELY CLAIM ISSUE
Section 409.007(a) provides that a person must file a claim for death benefits with the Commission not later than the first anniversary of the date of the employee’s death. The hearing officer found that the decedent died from a fatal injury received in a motor vehicle accident on _________, and that Ms. S filed a TWCC-42 claim for death benefits on behalf of herself and her nine children on June 27, 1995. Notwithstanding that the TWCC-42 in evidence was signed by Ms. S on June 23, 1995, and date stamped as received by the Commission on June 27, 1995, the carrier has challenged this latter finding. Section 409.005 provides, in part, that an employer shall file a written report with the Commission and the carrier if an injury results in the absence an employee from work for more than one day, that the report must be mailed or delivered to the Commission and the carrier not later than the eighth day after the employee’s absence from work for more than one day due to an injury, and that the Commission may adopt rules relating to the content of such reports. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 120.2 (Rule 120.2) provides, in part, that the employer shall file a written report, the TWCC-1, with the Commission and the carrier not later than the eighth day after receiving notice of the death. Section 409.008 provides, in part, that if an employer or an employer’s insurance carrier has been given notice or has knowledge of an injury to or death of an employee, and the employer or the carrier fails, neglects or refuses to file the report under Section 409.005, the period for filing a claim for compensation under Section 409.007 does not begin to run against the claim of a legal beneficiary until the day on which the Section 409.005 report has been furnished.
The hearing officer found (and the carrier challenges) that the employer had knowledge on _________, of the decedent’s death and notified the carrier of the death on ___________, and that the employer did not file a written report with the Commission pursuant to Section 409.005 until September 12, 1995. We are satisfied that the testimony of Mr. B and the documentary evidence mentioned above sufficiently support these findings and that the findings sufficiently support the conclusion that the time for Ms. S to file her claim was extended to September 12, 1996. The carrier argues that the requirement for an employer to file a TWCC-1 only applies to a death claimed to be compensable and that there was nothing inherent in the decedent’s traffic accident “which would put the employer on notice to file its required report.” Rule 120.2 does not state that in the case of the death of an employee the employer need not file a TWCC-1 until the employer discovers whether a claim will be filed. We find no merit in this assertion given that the decedent was driving the employer’s van to work at 5:00 a.m. on a Monday morning in the course and scope of his employment.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Judy L. Stephens – Appeals Judge