This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On February 9, 1999, a contested case hearing (CCH) was held. The issues disputed at the CCH were whether the appellant, who is the claimant, sustained an injury on ___________, while in the course and scope of employment, and whether she had disability from this. The decision was rendered against the claimant on both issues; the Appeals Panel reversed and remanded in Texas Workers’ Compensation Commission Appeal No. 990465, decided April 15, 1999. The Appeals Panel specifically held that the finding of fact that the claimant’s last day of work was March 19, 1998, was against the great weight and preponderance of the evidence. The Appeals Panel noted, however, that regardless of this finding, an analysis and determination had to be made of whether the claimant was within the course and scope of employment on the day of her injury while she was carrying a box of personal items down a stairwell to her car. Finally, the Appeals Panel asked that the determination regarding disability be reviewed as well.
The hearing officer did not hold another hearing before issuing a decision. The fact finding that the claimant’s last day of work was March 19, 1998, was repeated. The hearing officer held that the claimant (who had voluntarily resigned) was “terminated” before her accident on ___________, and that retrieval of personal belongings from her office was not in the course and scope of employment for the employer. He found that if it were determined that the claimant’s injury was compensable, then she was unable to obtain and retain employment due to the injury for the period from _______ to July 27, 1998.
The claimant has appealed, pointing out that the hearing officer once more found that her last day of work was March 19, 1998. The claimant argues that she had not deviated from the course and scope of employment, and that it was undisputed that she had been working that day winding up her work as well as clearing out her office. The claimant asks that the finding that her injury was not compensable be reversed and that she be found to have disability for the period that she was unable to work. The carrier responds that the decision is supported by the evidence. The carrier asserts that the claimant was not paid salary after March 18th.
DECISION
Reversed and rendered.
For ease of reading, we will repeat the facts set out in our previous decision. The claimant worked as a supervisor for (employer). It was undisputed that on March 18, 1998, she submitted a letter to the employer saying that she would be resigning effective ___________, which was the (day) of that week. She stated that this meant that (day) would be her last day. The note stated: “As of [(day)], ___________, I will no longer be an [employer’s name] employee.” The note then said that the claimant had to leave but would be in “tomorrow.” A personnel change notice completed by the employer on March 19th stated that the claimant submitted her resignation effective ___________. While this pre-printed notice checked off “termination” as the reason for leaving, there is no other block that covers actions that would be taken with respect to voluntarily ending employment with the company. (There is no block to check “resignation,” for example).
The claimant was paid through March 29, 1998. Her final check included a vacation time balance of slightly over 25 hours (or slightly over three full time days). A sworn affidavit from a person in the employer’s payroll department said that the claimant was a salaried employee, paid on a weekly basis regardless of the actual hours worked. The affiant said that the claimant had not performed any work for the employer since March 18, 1998. This affidavit originally stated that the claimant was paid her regular salary for the period ending March 29, 1998, but this was crossed out and “accrued vacation” was substituted and initialed for the words “regular salary.”
Concerning the short notice of resignation, the claimant said that she ordinarily would have given two weeks notice, but that she had the opportunity to begin work right away for another employer, which would allow her to work out of her home. She said that although the wage was slightly less, it would be made up in the savings from her expenses of commuting to the city where her employer was located.
It was undisputed that on March 19th, the date the hearing officer found was the claimant’s “last day of work,” she was actually out sick and did not report to the employer on that day. The claimant said that on (day), ___________, she reported for work at her usual time and began activities to wind up her employment for the employer. She said that she turned in her badge and building keys to her supervisor, (Mr. R), copied pertinent information for a successor supervisor onto a computer diskette, took attendance roll of the employees she supervised, and handed out assignments for work. She then cleaned out her office by packing up her personal items in boxes and, with the assistance of (Ms. T), another supervisor, was carrying them out to her car when she fell down the stairs. The extent of her injuries included two sprained ankles, a twisted knee, and back strain. The claimant said she had intended to return to work after putting her items in the car and had asked Ms. T if she had her badge, since they would need this to reenter the building. The claimant said that she was in such pain that she went to a hospital emergency room instead. Ms. T helped her out to her car. The claimant said that no one from the employer had discussed with her, one way or the other, what procedure to follow on her last day of work.
An incident report filed on ___________ by (Ms. C), a manager, described the incident as happening on the claimant’s “last day.” Ms. T was identified as a witness. Questions were directed to Ms. T, who answered them in writing sometime on or about November 4, 1998 (as indicated by the “fax” receipt date line at the top). Asked if the claimant performed any work functions on the date of her injury, Ms. T answered that the claimant handed out work assignments. She stated that the claimant was planning to return to her workstation after her personal items were carried out to her car. There was a reference to Ms. T’s statement’s having been taken by the adjuster on April 27th, but this was not put into evidence.
In a recorded statement that Mr. R gave to the adjuster on April 27, 1998, Mr. R stated initially that the claimant was, in his opinion, not performing her regular duties when injured because she had resigned. Mr. R said that the claimant left work around noon on March 18th. Mr. R also said that he would “presume that the 19th really was her last day.” However, as one of the facts he assumed in stating that her last day was “technically” the 19th, he stated that he believed she had no vacation time left.
In the interview (he did not personally testify), Mr. R said that Ms. C paged him the afternoon of the injury and told him about it and related that the claimant was not going to pursue any legal recourse. Mr. R said that he wrote up a performance improvement plan on March 4th to help the claimant become more effective and did not characterize it as a disciplinary action in which she was “written up.” He found it “curious” that she was using the stairs at the time of her injury because she usually used the elevator. There was, however, no evidence that the injury was faked or staged. In describing his suspicions, he commented that she was using the stairs on her “last day of employment.” He also summarized the events by characterizing her resignation notice as one stating that ___________ was her last day.
Mr. R stated that he told the claimant that human resources wanted to meet with her for an exit interview but the claimant told him she did not have time for that. He said that he offered help, if she needed it, to pack up her personal belongings.
The claimant said that she was unable to start her new job so her son’s girlfriend returned the computer that had been supplied by the new employer. However, she was contacted by the new employer in late July about whether she was able to start work, and she did so on July 28, 1998, working from her home as originally planned. The claimant said she could not have worked at her home job immediately after her injury because she could not sit up for long, and she was unable to walk due to two sprained ankles. The claimant’s treating doctor was (Dr. Q), who took her off work until April 30, 1998. Dr. Q wrote in a May 7, 1998, report that her knee and ankles had full range of motion and no swelling or tenderness. Dr. Q advised that physical therapy should continue for her lumbar spine.
The operative definition for analyzing compensability in this case was whether, at the time of her injury, the claimant was in the “course and scope of employment.” The definition is contained in Section 401.011(12), and states that it includes:
[A]n activity of any kind or character 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.
Employee is defined in 401.012(a) as:
In this subtitle, “employee” means each person in the service of another under a contract of hire, whether express or implied, or oral or written.
As the Appeals Panel stated in Texas Workers’ Compensation Commission Appeal No. 93972, decided December 8, 1993, quoting Professor Larson:
Compensation coverage is not automatically and instantaneously terminated by the firing or quitting of any employee. He is deemed to be within the course and scope of employment for a reasonable period while he winds up his affairs and leaves the premises.
* * * *
Collecting one’s personal effects on leaving employment is logically no different from collecting one’s pay, since both are necessary incidents of an orderly termination of the employment relationship.
Larson, The Law of Workmen’s Compensation, Volume 1A, 1992, §26.10, page 5-132, and § 26.40, page 5-340.
Appeal No. 93972 also cited the “paycheck” case of Bryant v. INA of Texas, 673 S.W.2d 693 (Tex. App.-Waco 1984), aff’d, 686 S.W.2d 614 (Tex. 1985), which distinguished an earlier tort case, Ellison v. Tailite, Inc., 580 S.W.2d 614 (Tex. App.-Houston [14th Dist.] 1979, no writ), that had opined that posttermination activities were not within the course and scope of employment. The court in Bryant, supra, found a fact issue to be present on course and scope for a laid-off worker injured while picking up her paycheck. The Supreme Court, in affirming, stated that if plant practice required the worker to pick up her paycheck, then the injury occurred in the course and scope of employment. The court went on to say:
We hold that when an employee is directed or reasonably believes from the circumstances she is required by the employer to return to the place of her employment to pick up her pay after termination and an otherwise compensable injury occurs, then such injury is reasonably incident to her employment and is incurred in furtherance of the employer’s affairs.
In this regard, whether, at the time of the injury, she was regarded as a “technical employee” on ___________, we believe that the appropriate inquiry was whether she was, at the time of her injury, performing activities in furtherance of the activities of her employer. We cannot interpret this phrase as covering only those employees injured in the middle of the contract of hire, rather than the end of the contract.
The hearing officer has no discussion in his decision on remand, but a series of string citations. The cases by and large involve involuntary termination situations. One, Texas Workers’ Compensation Commission Appeal No. 961497, decided September 12, 1996, upheld compensability for a worker injured in the course of cleaning out an office after termination. Another involved an injury on a trip to the food service area after termination. A third involved injury while moving from an apartment furnished by the employer where the employee had been allowed to stay on well after termination from employment. The last case cited by the hearing officer involved a post-termination trip to a restroom on another floor, on a day that the employee was not permitted to do work for the employer. We do not regard the cited decisions as directly on point or supportive of the decision reached by the hearing officer in this case, and Appeal No. 961497 frankly supports reversal.
The hearing officer repeated the finding that the claimant’s last day of work was March 19, 1998, and much of his decision flows from this finding. We stated in the previous decision that this was against the great weight and preponderance of the evidence and, there being no new evidence developed during any hearing on remand, we see no reason to adopt a contrary position.
The hearing officer further found:
Claimant’s retrieval of her personal belongings was not reasonably incident to her employment or in furtherance of employer’s affairs.
Claimant’s retrieval of her personal belongings was not in the course and scope of her employment for employer.
Claimant was terminated prior to the time she slipped and fell on ___________.
Because this was a voluntary resignation, we do not agree that the matter of “termination” did not arise in this case. While the hearing officer might have undertaken to analyze when the claimant’s resignation was intended to be effective, he has not done so. The evidence from the claimant and a witness for the carrier was uncontradicted as to the fact that she performed duties on ___________ in addition to clearing out her office. Several persons for the employer described the ________ as the claimant’s last day of work. She also turned in her security items. We cannot agree that the action of clearing one’s office on the last day of work is not reasonably incident to the employment in this case. Finally, we note that the evidence establishes that the claimant was paid for that entire week of her injury as a work week.
The decision of the hearing officer will be set aside only if the evidence supporting the hearing officer’s determination is so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Atlantic Mutual Insurance Company v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). We agree that this was the case here and, accordingly, reverse the determination that the claimant was not injured in the course and scope of employment on ___________, and render a decision that she sustained a compensable injury on that date, with disability for the period from ________ through July 27, 1998.
Susan M. Kelley – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Tommy Lueders – Appeals Judge