Course & Scope of Employment Archives

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 2, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) was not in the course and scope of his employment when involved in a motor vehicle accident (MVA) on (date of injury); (2) because there was no compensable injury, the claimant had no disability; and (3) the respondent (carrier) is not liable for the payment of accrued benefits pursuant to 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3) resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.

The claimant appealed, disputing all of the ALJ’s determinations. The carrier responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part, reformed in part, and reversed and remanded in part.

The parties stipulated, in part, that the claimant was involved in a MVA on (date of injury). The claimant testified that he was returning to the job site after a personal errand to a pharmacy to pick up a prescription when he was involved in a MVA on (date of injury). In evidence are the Employer’s First Report of Injury or Illness (DWC-1) dated January 19, 2018, and the Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) dated February 2, 2018. The carrier’s PLN-1 was filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on February 2, 2018.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

COURSE AND SCOPE OF EMPLOYMENT

The issue before the ALJ as reflected on the Benefit Review Conference (BRC) Report and as agreed to by the parties is “[w]as the [c]laimant in the course and scope of his employment when involved in a [MVA] on (date of injury)?” The ALJ found that the claimant did not sustain damage or harm to the physical structure of his body while in the course and scope of employment on (date of injury), as a result of the MVA; this finding is supported by sufficient evidence and is affirmed.

We note that the ALJ states in the summary paragraph on page one that the claimant was not in the course and scope of his employment when he was involved in a MVA on (date of injury); however, the ALJ states in the Decision section on page five that the claimant did not sustain a compensable injury on (date of injury). The ALJ also failed to make a conclusion of law of whether the claimant was in the course and scope of his employment on the date of injury, which was an issue properly before her to determine. Rather, in Conclusion of Law No. 3, she states (as she did in the Decision section) that the claimant did not sustain a compensable injury on (date of injury). We correct the Decision section on page five and Conclusion of Law No. 3 to correspond to the issue as stated and as determined by the ALJ. Accordingly, we reform the Decision section on page five and Conclusion of Law No. 3 to state that “the claimant was not in the course and scope of his employment when he was involved in a MVA on (date of injury).”

NOTICE OF DENIAL/DISPUTE

The ALJ’s determination that the carrier is not liable for the payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury is supported by sufficient evidence and is affirmed.

DISABILITY

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due.

The ALJ states in Conclusion of Law No. 4, the summary paragraph on page one and Decision section on page five that because there is no compensable injury, the claimant had no disability. Although the ALJ made a conclusion of law, decision, and discussed the disability period in her discussion of the evidence, the ALJ failed to make a finding of fact whether the claimant had disability resulting from the claimed injury. Because the ALJ’s decision contains no findings of fact regarding the disability issue, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the ALJ’s determination that because there is no compensable injury, the claimant had no disability as being incomplete, and we remand the issue of whether the claimant had disability resulting from the claimed injury. See Appeals Panel Decision (APD) 132339, decided December 12, 2013, and APD 180839, decided, June 4, 2018.

SUMMARY

We reform the Decision section on page five and Conclusion of Law No. 3 to state that the claimant was not in the course and scope of his employment when he was involved in a MVA on (date of injury).

We affirm the ALJ’s determination, as reformed, that the claimant was not in the course and scope of his employment when he was involved in a MVA on (date of injury).

We affirm the ALJ’s determination that the carrier is not liable for the payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.

We reverse the ALJ’s determination that because there is no compensable injury, the claimant had no disability as incomplete, and we remand the issue of whether the claimant had disability resulting from the claimed injury to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make a finding of fact, conclusion of law and a decision regarding whether the claimant had disability resulting from the claimed injury.

Pending resolution of the remand, 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 ALJ, 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 Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 27, 2017, with the record closing on July 31, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ).^[1] The ALJ resolved the disputed issues by deciding that the decedent did not sustain a compensable injury on (date of injury), that resulted in his death; that the decedent was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury); and that the appellant (claimant beneficiary) is not entitled to reimbursement for burial benefits from the respondent (carrier).

The claimant beneficiary appealed the ALJ’s determinations as being contrary to the overwhelming weight of the evidence and argued that the decedent was in the course and scope of his employment when he suffered fatal injuries on (date of injury). The carrier responded, urging affirmance.

DECISION

Reversed and rendered.

It is undisputed that the decedent died on (date of injury), when the motorcycle he was riding was struck by another vehicle. Evidence in the record reveals that the decedent arrived at the workplace and began his workday at approximately 6:58 a.m. on (date of injury); that he left the workplace at 7:03 a.m. to return to his residence to retrieve a laptop computer, owned by his employer and used in the performance of his duties, which he had forgotten to bring with him to work that morning; and that, while traveling back to the office, he was involved in the motor vehicle accident that resulted in his death. The record further reveals that the claimant beneficiary incurred liability for the costs of the decedent’s burial. The determinant issue is whether the decedent’s travel at the time of the motor vehicle accident was in the course and scope of employment.

As a general rule, an injury occurring in the use of the public streets or highways while an employee is traveling to or from work is not compensable. American General Insurance Co. v. Coleman, 303 S.W.2d 370 (Tex. 1957). The rule is known as the “coming and going” rule. The rationale of the rule is that “in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer.” Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex. 1963). This general rule is reflected in Section 401.011(12) which defines course and scope of employment as an 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. However, course and scope of employment as defined in Section 401.011(12) generally does not include transportation to and from the place of employment except in certain limited circumstances.

In Evans v. Illinois Employers Insurance of Wausau, 790 S.W.2d 302 (Tex. 1990), the Texas Supreme Court affirmed the lower court’s summary judgment in favor of the insurance carrier holding that the decedent in that case was not on a special mission and in the course and scope of employment when traveling to attend a mandatory, regularly scheduled Monday morning safety meeting prior to traveling to his primary work site. The court held that attendance at the meeting was an integral part of the job and therefore “travel to the safety meeting was simply travel to work.” In its opinion, the court stated:

Had Mr B and Mr E been injured while en route from the safety meeting to the primary work site (at (employer) these injuries would have been covered by the Act. However, since neither of them had begun work, their injuries fall squarely within the “coming and going” rule. . . .

We hold in this case that the decedent was not simply traveling to or from work but had begun his workday at 6:58 a.m. on (date of injury), when he arrived at his office and that, since the travel which resulted in his death occurred after he had begun work, such travel did not fall within the coming and going rule. See also Appeals Panel Decision 960562, decided April 19, 1996, a case where a deputy sheriff, who had begun work, was held to have sustained a compensable injury when he returned to his residence to retrieve a logbook used to record his work activities and was thereafter involved in a motor vehicle accident on his way back to his office.

As mentioned above, in order for an injury to be compensable, the injury must occur while the employee is engaged in furtherance of the affairs or business of the employer and the activity must originate in the work, business, trade, or profession of the employer. There is no bright-line rule for determining whether the employee travel originated in the employer’s business. Rather each situation is necessarily dependent on the facts. Proof of origination can come in many forms. See Zurich American Ins. Co. v. McVey, 339 S.W.3d 724 (Tex. App.-Austin 2011, pet. denied).

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.”

We disagree. 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. The decedent obviously believed it necessary to have access to his assigned computer at work that day as there is no evidence of any personal or other purpose which was furthered by his travel back to his residence after beginning his workday on (date of injury).

Under the specific facts of this case, the decedent’s workday began when he accessed the workplace on (date of injury), at 6:58 a.m. His travel to and from his residence after having begun his workday was for the purpose of retrieving his assigned laptop computer which he deemed necessary for the performance of his duties at work that day. 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. We hold that the ALJ’s determination that the decedent was not in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), to be incorrect as a matter of law and against the great weight and preponderance of the evidence. We accordingly reverse the ALJ’s decision and render a new decision that the decedent did sustain a compensable injury on (date of injury), that resulted in his death; that the decedent was in the course and scope of his employment when he was involved in a motor vehicle accident on (date of injury); and that the claimant beneficiary is entitled to reimbursement for burial benefits from the carrier.

SUMMARY

We reverse the ALJ’s decision that the decedent did not sustain a compensable injury on (date of injury), that resulted in his death and render a new decision that the decedent did sustain a compensable injury on (date of injury), that resulted in his death.

We reverse the ALJ’s decision that the decedent was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the decedent was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury).

We reverse the ALJ’s decision that because the injury of (date of injury), was found not to be compensable, the claimant beneficiary is not entitled to reimbursement for burial benefits from the carrier and render a new decision that the claimant beneficiary is entitled to reimbursement for burial benefits from the carrier.

The true corporate name of the insurance carrier is OLD REPUBLIC INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

Section 410.152 was amended in House Bill 2111 of the 85th Leg., R.S. (2017), effective September 1, 2017, changing the title of hearing officer to ALJ.

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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 22, 2017, with the record closing on June 7, 2017, in (city), Texas, with (administrative law judge (ALJ)) presiding as (ALJ).^[1] The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the claimant’s horseplay was not a producing cause of the claimed injury and the respondent (carrier) is not relieved of liability for compensation; (3) the claimed injury was not caused by the claimant’s willful intention and attempt to injure himself and the carrier is not relieved of liability for compensation; (4) the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons not related to the employment and the carrier is not relieved of liability for compensation; and (5) the claimant did not have disability resulting from the claimed injury.

The record reflects that the claimant did not appear at the CCH on May 22, 2017, nor did he respond to the ALJ’s letter dated May 23, 2017, affording him the opportunity to respond within 10 days and request that the hearing be reconvened in order for him to present evidence concerning the disputed issues and to show good cause for his failure to attend the CCH. Having received no response to her 10-day letter, the ALJ issued her decision on June 16, 2017.

The claimant appeals the ALJ’s determinations arguing that his failures to attend the May 22, 2017, CCH and to respond to the ALJ’s 10-day letter dated May 23, 2017, are the result of his failure to receive notices of the CCH or the ALJ’s 10-day letter. The claimant further complains of the ALJ’s determinations that he did not sustain a compensable injury on (date of injury), and that he did not have disability resulting from a compensable injury. The carrier argues that the appeal is untimely and that the ALJ’s determinations are supported by the evidence and should be affirmed.

DECISION

Reversed and remanded.

Section 410.168(f) provides that the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall send a copy of the ALJ’s decision to each party. 28 TEX. ADMIN. CODE § 142.16(d) (Rule 142.16(d)) provides that the Division shall furnish a copy of the ALJ’s decision no later than seven days after the decision is filed with the Division. Section 410.202(a) provides that to appeal the decision of an ALJ, a party shall file a written request for appeal with the Appeals Panel not later than the 15th day after the date on which the decision of the ALJ is received from the Division and shall on the same date serve a copy of the request for appeal on the other party. Section 410.202(d) provides that Saturdays and Sundays and holidays listed in Section 662.003 are not included in the computation of the time in which to file an appeal or a response. Rule 143.3(d), effective December 13, 2009, provides that a request for review shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of deemed receipt of the ALJ’s decision; and (2) received by the Division not later than the 20th day after the date of deemed receipt of the ALJ’s decision. The Appeals Panel has held that both portions of Rule 143.3(d) must be complied with for an appeal to be timely. Appeals Panel Decision (APD) 042688, decided December 1, 2004.

Records of the Division reflect that the ALJ’s 10-day letter and decision were mailed on May 23, 2017, and June 23, 2017, respectively, to the claimant at (address 1), (city), Texas. Assuming the decision was mailed to the claimant’s correct address, pursuant to Rule 102.5(d), the claimant would be deemed to have received the ALJ’s decision 5 days later on June 28, 2017. With the deemed date of receipt of the ALJ’s decision on June 28, 2017, in accordance with Section 410.202, excluding Saturdays and Sundays and holidays listed in Section 662.003, the claimant’s appeal would have to have been filed or mailed no later than July 20, 2017.

The claimant’s request for review is dated August 7, 2017, and was sent to and received by the Division via facsimile transmission on that date. Therefore, the claimant filed what would appear to be an untimely appeal; however, records of the Division reflect that the ALJ’s 10-day letter and decision were mailed to the claimant at an incorrect address. Attached to the claimant’s appeal is a copy of the claimant’s Employee’s Claim for Compensation for a Work-Related Injury (DWC-41) filed on April 18, 2017, and listing the claimant’s address as (address 2), (city), Texas rather than (address 1), (city), Texas, the address contained in the Division’s records as of June 2017. Because the ALJ’s decision was not mailed to the claimant’s correct last known address, the claimant is not deemed to have received a copy of the decision. We therefore hold, under the facts of this case, that the deadline for filing an appeal prescribed in Section 410.202 was not triggered.

In APD 042634, decided November 29, 2004, the Appeals Panel noted that the purpose of the 10-day letter process is to give the non-appearing party the opportunity to meaningfully participate in the dispute resolution process. In APD 020273, decided March 29, 2002, a claimant made a number of factual allegations in her appeal regarding good cause for failing to attend the CCH and her attempts to respond to the 10-day letter, and the Appeals Panel remanded the case to the ALJ to take evidence concerning the claimant’s allegations and to permit the claimant to present evidence on the merits of her claim at the CCH on remand.

In this case, the claimant makes factual allegations that if true, could constitute a basis for the claimant’s failure to attend the May 22, 2017, CCH and to respond to the ALJ’s 10-day letter dated May 23, 2017. Accordingly, because the 10-day letter and the ALJ’s Decision and Order were not mailed to the claimant’s correct last known address, we reverse the ALJ’s determinations that the claimant did not sustain a compensable injury on (date of injury); that the claimant’s horseplay was not a producing cause of the claimed injury and the carrier is not relieved of liability for compensation; that the claimed injury was not caused by the claimant’s willful intention and attempt to injure himself and the carrier is not relieved of liability for compensation; that the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons not related to the employment and the carrier is not relieved of liability for compensation; and that the claimant did not have disability resulting from the claimed injury and we remand this case to the ALJ to allow the claimant to present evidence concerning whether he had good cause for his failure to appear at the CCH on May 22, 2017, and to present evidence relevant to the disputed issues.

The true corporate name of the insurance carrier is SERVICE LLOYDS INSURANCE COMPANY and the name and address of its registered agent for service of process is

JOSEPH KELLY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

Section 410.152 was amended in House Bill 2111 of the 85th Leg., R.S. (2017), effective September 1, 2017, changing the title of hearing officer to ALJ.

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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 13, 2016, with the record closing on February 3, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent, (self-insured), was not the appellant’s (claimant) employer for purposes of the 1989 Act; (2) the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury); (3) the self-insured is not relieved from liability under Section 409.004 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (4) the claimant did not have disability; (5) the average weekly wage (AWW) is $760.20; and (6) the claimant did not sustain a compensable injury on (date of injury).

The claimant appealed the hearing officer’s determinations that the self-insured was not the claimant’s employer for purposes of the 1989 Act; that the claimant was not in the course and scope of employment when involved in a motor vehicle accident on (date of injury); that the claimant had no disability; and that the claimant did not sustain a compensable injury as contrary to the preponderance of the evidence.

The self-insured responded, urging affirmance.

The hearing officer’s determinations that the self-insured is not relieved from liability under Section 409.004 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001 and that the AWW is $760.20 were not appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The claimant testified that he had worked for approximately 20 years detasseling seed corn for the self-insured in cornfields located in (city), Texas and Plymouth, Indiana. He further testified that the work of detasseling was performed during periods lasting approximately six weeks each during the spring and fall in Texas and during the summer in Indiana and that in between the three detasseling seasons when he worked for the self-insured, he was free to work for other employers.

As he had in previous years, the claimant attended a recruitment meeting in Texas with representatives from the self-insured who traveled to Texas for the purpose of recruiting workers willing to travel to Indiana to assist local work crews in detasseling seed corn. During the recruitment meeting, which occurred on May 31, 2014, the claimant signed a Worker Disclosure & Information Statement (disclosure). The claimant testified that he was to be paid for his attendance at the recruitment meeting and that he understood he was hired when he signed the disclosure. The disclosure states it is only a disclosure of the terms of potential employment with the self-insured, including the rate of pay, provisions for a housing stipend and an additional $120.00 stipend to be paid to the claimant upon his arrival in Indiana. The disclosure further provides that the claimant is responsible for obtaining his own transportation to and from the state of Texas and that work in Indiana is expected to run from approximately July 10, 2014, to July 24, 2014.

The claimant testified that, also as in years previous, he planned to travel to Indiana together with seven co-workers in a truck owned and operated by one of his co-workers; that the luggage of the workers was transported in a separate vehicle operated by the self-insured’s crew leader (Mr. R); that the trip to Indiana required two full days; and that he paid the owner of the truck in which he rode the sum of $100.00 for transportation to Indiana. The claimant testified that upon arrival in Indiana, prior to beginning work in the fields, he would receive “arrival pay” and a housing stipend. Work in the fields would begin a day or two following arrival of the workers in Indiana.

A transcript of the testimony of (Ms. H), Administrative Coordinator for the self-insured at the Plymouth, Indiana plant, was admitted into evidence. Ms. H testified that all pre-employment paperwork for workers recruited in Texas, including state tax forms, federal tax forms, the payroll choice form, the worker disclosure form and the USCIS I-9 Employment Eligibility Verification form is completed in Texas and turned in to the self-insured prior to the workers departing for Indiana. Ms. H further testified that the self-insured uses E-Verify to determine eligibility of its employees; that company policy requires that e-verification be obtained no later than the first day of employment but not before the job offer is accepted by the employee; and that e-verification was completed in Texas prior to the claimant and his co-workers leaving for Indiana.

It is undisputed that the claimant was injured in a motor vehicle accident on (date of injury), after beginning travel from Texas to Indiana when the vehicle in which he was riding sustained a blowout and was involved in a rollover accident near Georgetown, Texas.

It is the claimant’s position that he was the employee of the self-insured in the course and scope of his employment at the time of the accident.

The self-Insured argues that the claimant and his co-workers would not become employees of the self-insured until they arrived in Indiana, collected their arrival pay and housing stipend and attended a brief safety meeting.

EXISTENCE OF EMPLOYMENT RELATIONSHIP

Section 401.012(a) defines employee as a person in the service of another under a contract of hire, whether express or implied, or oral or written. As we stated in Appeals Panel Decision (APD) 93443, decided July 19, 1993, Professor L has noted that "the compensation concept of ‘employee’ is narrower than that of the common law concept of ‘servant’ in the respect that most statutes insist upon the existence of an express or implied contract of hire as an essential feature of the employment relation. 1C Larson, Workmen's Compensation Law, §§ 47.00, 47.10." We have also noted that whether a contract for hire exists is a mixed question of law and fact. APD 93931, decided November 23, 1993. In that case, we affirmed the finding of the hearing officer that a contract for hire had not been proven even though the claimant put on protective clothing at the plant site and was instructed in the use of the equipment. Fatal to the claim of a contract for hire was the lack of evidence of any payment or promise to pay the claimant for this time.

Under the facts of this case, where the claimant attended a recruitment meeting on May 31, 2014, for which he was to be paid; that he completed all pre-employment paper work on May 31, 2014, and had his employment eligibility verified electronically, which the self-insured’s policy dictates must be completed after a job offer is accepted by the employee but no later than the first day of employment, and given that, as in years past, upon arrival in Indiana and prior to beginning work in the fields, the claimant was to be paid “arrival pay” and a housing stipend from which payroll deductions would be withheld, we hold that the hearing officer’s decision that the self-insured was not the claimant’s employer for purposes of the 1989 Act is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We accordingly reverse the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and render a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act.

COURSE AND SCOPE OF EMPLOYMENT

Section 401.011(12) provides in pertinent part that “course and scope of employment” means an 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. Course and scope of employment as defined in Section 401.011(12) generally does not include transportation to and from the place of employment except in certain limited circumstances. The “special mission” exception provided by Section 401.011(12)(A)(iii) arises where the employee is directed in his employment to proceed from one place to another.

The key to this case is whether the claimant was an employee of the self-insured at the time of the injury. In his discussion, the hearing officer stated “[s]ince it was determined that [the] [c]laimant was not an employee of [the] [self-insured] for purposes of the [1989 Act], it was further determined that he was not in the course and scope of his employment when involved in a motor vehicle accident. . . .” As noted above, we have reversed the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and rendered a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act. The claimant’s travel on (date of injury), from Texas was at the direction of and in furtherance of the business affairs of the self-insured and would not have been made had there been no business of the self-insured to be furthered by the travel. Accordingly, we reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the claimant was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury). Because the claimant was in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), we reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).

DISABILITY

Given that we have reversed the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and rendered a new decision that the claimant did sustain a compensable injury on (date of injury), we reverse the hearing officer’s determination that the claimant did not have disability and we remand the issue of whether the claimant had disability from July 13, 2014, through July 1, 2015, to the hearing officer to make a determination consistent with this decision.

SUMMARY

We reverse the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and render a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act.

We reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the claimant was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury).

We reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).

We reverse the hearing officer’s determination that the claimant did not have disability and we remand the issue of disability from July 13, 2014, through July 1, 2015, to the hearing officer to make a determination consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to make findings of fact, conclusions of law and a determination regarding the issue of disability from July 13, 2014, through July 1, 2015, which are supported by the evidence and consistent with this decision. The hearing officer is not to consider additional evidence on remand.

Pending resolution of the remand, 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 Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is E.I. DUPONT DE NEMOURS & COMPANY, INC. (a certified self-insured) and the name and address of its registered agent for service of process is

RUSSELL STALLINGS

c/o CRAWFORD & COMPANY

769 KINGFISHER LANE

LEANDER, TEXAS 78641.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Contested case hearings were held on November 15, 2016, and December 13, 2016, with the record closing on February 3, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent, (self-insured), was not the appellant’s (claimant) employer for purposes of the 1989 Act; (2) the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury); (3) the self-insured is not relieved from liability under Section 409.004 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (4) since the claimant did not sustain a compensable injury, he has no disability; (5) the average weekly wage (AWW) is $760.20; and (6) the claimant did not sustain a compensable injury on (date of injury).

The self-insured responded, urging affirmance.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The claimant testified that he had worked for a number of years detasseling seed corn for the self-insured in cornfields located in Weslaco, Texas and Plymouth, Indiana. He further testified that the work of detasseling was performed during periods lasting approximately three weeks during the spring and fall in Texas and during the summer in Indiana and that in between the three detasseling seasons when he worked for the self-insured, he was free to work for other employers.

The claimant testified that, also as in years previous, he planned to travel to Indiana together with seven co-workers in a van owned and operated by (Mr. C); that the luggage of the workers traveling with Mr. C was transported in a separate vehicle operated by the self-insured’s crew leader (Mr. R); that Mr. R and Mr. C coordinated the travel using their cell phones; that the crew spent the night mid-trip in Hope, Arkansas; that the claimant planned to pay Mr. C the sum of $100.00 for transportation to and from the state of Texas; and that Mr. R paid Mr. C the additional sum of $300.00 to cover costs of the trip to Indiana. The claimant testified that upon arrival in Indiana, prior to beginning work in the fields, he would receive “arrival pay” and a housing stipend and would attend a brief safety meeting. Employee payroll deductions, including state and federal taxes, were withheld from the arrival pay and housing stipend paid to the claimant. Work in the fields would begin within a week or sooner following arrival of the workers in Indiana.

(Ms. H), Administrative Coordinator for the self-insured at the Plymouth, Indiana plant testified that all pre-employment paperwork for workers recruited in Texas, including state tax forms, federal tax forms, the payroll choice form, the worker disclosure form and the USCIS I-9 Employment Eligibility Verification form is completed in Texas and turned in to the self-insured prior to the workers departing for Indiana. Ms. H further testified that the self-insured uses E-Verify to determine eligibility of its employees; that company policy requires that e-verification be obtained no later than the first day of employment but not before the job offer is accepted by the employee; and that e-verification was completed in Texas prior to the claimant and his co-workers leaving for Indiana.

It is undisputed that the claimant was injured in a motor vehicle accident on (date of injury), after beginning travel from Texas to Indiana when Mr. C’s vehicle sustained a blowout and was involved in a rollover accident near Georgetown, Texas.

It is the claimant’s position that he was the employee of the self-insured in the course and scope of his employment at the time of the accident.

EXISTENCE OF EMPLOYMENT RELATIONSHIP

Section 401.012(a) defines employee as a person in the service of another under a contract of hire, whether express or implied, or oral or written. As we stated in Appeals Panel Decision (APD) 93443, decided July 19, 1993, Professor Larson has noted that "the compensation concept of ‘employee’ is narrower than that of the common law concept of ‘servant’ in the respect that most statutes insist upon the existence of an express or implied contract of hire as an essential feature of the employment relation. 1C Larson, Workmen's Compensation Law, §§ 47.00, 47.10." We have also noted that whether a contract for hire exists is a mixed question of law and fact. APD 93931, decided November 23, 1993. In that case, we affirmed the finding of the hearing officer that a contract for hire had not been proven even though the claimant put on protective clothing at the plant site and was instructed in the use of the equipment. Fatal to the claim of a contract for hire was the lack of evidence of any payment or promise to pay the claimant for this time.

COURSE AND SCOPE OF EMPLOYMENT

The key to this case is whether the claimant was an employee of the self-insured at the time of the injury. In his discussion, the hearing officer stated “[s]ince it was determined that [the] [c]laimant was not an employee of [the] [self-insured] for purposes of the [1989 Act], it was further determined that he was not in the course and scope of his employment when involved in a motor vehicle accident. . . . As noted above, we have reversed the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and rendered a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act. The claimant’s travel on (date of injury), from Texas was at the direction of and in furtherance of the business affairs of the self-insured and would not have been made had there been no business of the self-insured to be furthered by the travel. Accordingly, we reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the claimant was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury). Because the claimant was in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), we reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).

DISABILITY

Given that we have reversed the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and rendered a new decision that the claimant did sustain a compensable injury on (date of injury), we reverse the hearing officer’s determination that the claimant did not have disability and we remand the issue of disability to the hearing officer to make a determination consistent with this decision.

SUMMARY

We reverse the hearing officer’s determination that the claimant did not have disability and we remand the issue of disability to the hearing officer to make a determination consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to make findings of fact, conclusions of law and a determination regarding the issue of disability which are supported by the evidence and consistent with this decision. The hearing officer is not to consider additional evidence on remand.

The true corporate name of the insurance carrier is E.I. DUPONT DE NEMOURS & COMPANY, INC. (a certified self-insured) and the name and address of its registered agent for service of process is

RUSSELL STALLINGS

c/o CRAWFORD & COMPANY

769 KINGFISHER LANE

LEANDER, TEXAS 78641.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 6, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) was not in the course and scope of his employment when involved in the motor vehicle accident on (date of injury); and (2) the claimant did not have disability resulting from an injury sustained on (date of injury).

The claimant appealed, contending that the hearing officer’s determinations are against the great weight and preponderance of the evidence. The respondent (carrier) responded, urging affirmance of the hearing officer’s determinations.

DECISION

Reversed and rendered.

The claimant testified that he was a general foreman for the employer and was working at the employer’s Midland location when he was told on May 2, 2016, that he was being sent to work at the employer’s Baytown location. The claimant was told to choose a crew to bring with him to Baytown for a May 4, 2016, safety meeting. The claimant testified that he went to work at the Midland location on the morning of (date of injury), then, along with one of the two employees he chose to go to Baytown, went to pick up the second employee at that employee’s hotel. The claimant testified that he and the two employees drove to an RV park in which the claimant was staying to pick up the claimant’s luggage. The claimant testified that he planned to pick up his luggage, then go to the first employee’s hotel to pick up his luggage, then go to Discount Tire to repair his tire, then drive to Baytown. However, upon arriving at the RV park the claimant discovered that his wife had not completed packing his luggage. The claimant testified that he decided to drive to a Discount Tire store approximately five miles from the RV park to have the tires on his truck repaired while waiting for his luggage to be packed because he felt his tires were unsafe for the approximate 10-hour drive from Midland to Baytown. After the tires were repaired and while on the way back to the RV park to pick up his luggage the claimant’s truck was rear-ended by another vehicle. The claimant testified that he and one of the other employees were transported by ambulance to the hospital where they were both treated and released.

COURSE AND SCOPE OF EMPLOYMENT

In the Discussion portion of the decision the hearing officer stated that, although he found the evidence that the claimant had been directed by his employer to go from Midland to Baytown to be persuasive, he also found that changing and repairing tires on the claimant’s truck was a personal errand and that the claimant deviated from the course and scope of employment during that personal errand.

Course and scope of employment as defined in Section 401.011(12) generally does not include transportation to and from the place of employment except in certain limited circumstances; one of these, the “special mission” exception, arises where the employee is directed in his employment to proceed from one place to another. Section 401.011(12)(A)(iii). Generally, an employee on a special mission does not go into and out of the course and scope of employment while on that special mission. This is sometimes referred to as the principle of “continuous coverage.” Appeals Panel Decision (APD) 980924, decided June 22, 1998; APD 950973, decided July 31, 1995; APD 050051, decided February 28, 2005. It applies to special missions unless there is a deviation from or abandonment of the course and scope of employment while on a personal errand. APD 000118, decided February 24, 2000. Regarding this area of the law, the Appeals Panel has frequently cited PHILLIP HARDBERGER, TEXAS WORKERS’ COMPENSATION TRIAL MANUAL p. 11-4 (Parker-Griffin Publishing 1991) as stating:

An Employee whose work involves travel away from the employer’s premises is in the course of employment continuously during the trip, except when a distinct departure on a personal errand is shown.

The question of whether the claimant is engaged in a personal errand is a fact question for the hearing officer to resolve. See APD 980907, decided June 15, 1998; APD 101035, decided September 30, 2010.

In an unappealed finding of fact the hearing officer found that the travel from the Midland work site to the employee’s hotel, to the claimant’s RV, to the other employee’s hotel, and then from Midland to Baytown was a continuous course of events in the employer-directed trip from Midland to Baytown. However, the hearing officer also found that the claimant deviated from the journey from Midland to Baytown to have the tires on his truck repaired at a local Discount Tire location. Therefore, the question in this case is whether the claimant deviated from the course and scope of his employment when he traveled to Discount Tire to have the tires on his truck repaired.

The claimant testified that the truck he was driving at the time of the accident was his personal vehicle, but the employer paid him $30 per day for the use of his truck. In evidence is a statement from Richard Winn (Mr. W) dated July 26, 2016, in which Mr. W confirmed that hourly foremen and operators are reimbursed for use of their personal vehicles at a rate of $30 per day. The claimant testified that the $30 covers things like maintenance and insurance, that he was responsible for maintenance of his truck, and that he was paid $30 per day for each day worked plus one additional day each month regardless of whether or not the truck needed maintenance.

The claimant contended that he was furthering the employer’s business affairs when he went to Discount Tire to have his tires repaired because he was transporting himself and two other employees to the work site in Baytown as directed by his employer. We agree. The evidence established that the employer directed the claimant to choose a crew of men to report with him to Baytown for a safety meeting on May 4, 2016; on (date of injury), the claimant and the two employees were preparing to travel in the claimant’s truck to Baytown for the safety meeting held the following day; and the claimant went to Discount Tire on (date of injury), to have his tires repaired before traveling to Baytown to ensure the safety of himself and the other two employees.

In reviewing a “great weight” challenge, we must examine the entire record to determine if: (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence. See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

In reviewing this evidence in the instant case, the claimant did not deviate from the course and scope of his employment when he traveled to Discount Tire to repair the tires on his truck in preparation of the 10-hour drive to Baytown directed by the employer. Accordingly, we hold that the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We reverse the hearing officer’s determination and we render a new decision that the claimant was in the course and scope of his employment when involved in the motor vehicle accident on (date of injury).

DISABILITY

The hearing officer found that the claimant sustained damage or harm to the physical structure of his body in the motor vehicle accident, and that as a result of the damage or harm sustained the claimant was unable to obtain and retain employment at wages equivalent to his pre-injury wage from May 4, 2016, through the date of the CCH. The hearing officer’s findings were not appealed. Given that we have reversed the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), and have rendered a new decision that the claimant was in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), we also reverse the hearing officer’s determination that the claimant did not have disability resulting from an injury sustained on (date of injury), and we render a new decision that the claimant had disability from May 4, 2016, through the date of the CCH.

SUMMARY

We reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), and we render a new decision that the claimant was in the course and scope of his employment when involved in the motor vehicle accident on (date of injury).

We reverse the hearing officer’s determination that the claimant did not have disability resulting from an injury sustained on (date of injury), and we render a new decision that the claimant had disability from May 4, 2016, through the date of the CCH.

The true corporate name of the insurance carrier is NORTH RIVER INSURANCE COMPANY and the name and address of its registered agent for service of process is

MIKE HICKS

2400 LAKESIDE BOULEVARD, SUITE 200

RICHARDSON, TEXAS 75082.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 25, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) (decedent) was not within the course and scope of his employment with the employer at the time of his motor vehicle accident (MVA) of [date of injury]; (2) the untimely filing of the Beneficiary Claim for Death Benefits (DWC-42) relieves respondent/cross-appellant (carrier) of liability for death benefits as to [SKA] and [AP] but does not relieve carrier of liability for death benefits as to [SA], a minor child.

The carrier appealed, disputing Finding of Fact No. 3. The appeal file does not contain a response from the appellants/cross-respondents (claimant beneficiaries) to the carrier’s limited appeal.

The claimant beneficiaries appealed, disputing the findings and decision of the hearing officer. The carrier responded, urging affirmance of the hearing officer’s determination that the decedent was not in the course and scope of employment at the time of his MVA as well as the determination that the untimely filing of the DWC-42 relieves carrier of liability for death benefits as to SKA and AP. The hearing officer’s determination that the untimely filing of the DWC-42 does not relieve carrier of liability for death benefits as to SA, a minor child, was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

It was undisputed that the decedent had a MVA on [date of injury], which subsequently resulted in his death on July 4, 2011. At issue was whether the decedent was in the course and scope of his employment at the time of his fatal MVA of [date of injury].

TIMELY FILING OF A CLAIM

The hearing officer’s determination that the untimely filing of the DWC-42 relieves carrier of liability for death benefits as to SKA and AP is supported by sufficient evidence and is affirmed.

COURSE AND SCOPE

Section 401.011(12) provides in part that course and scope of employment means an 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. The term includes an activity conducted on the premises of the employer or at other locations. Course and scope of employment does not include (A) 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; or (iii) the employee is directed in the employee’s employment to proceed from one place to another place.

The hearing officer found in Finding of Fact No. 3 that “[a]t the time of the [MVA] made the basis of this case [the decedent] was traveling from his home to either [e]mployer’s office or to his initial job assignment of [date of injury].” There is no bright-line rule for determining whether employee travel originated in the employer’s business. Rather each situation is necessarily dependent on the facts. See Zurich American Ins. Co. v. McVey, 339 S.W.3d 724 (Tex. App.-Austin 2011, pet. denied). In the instant case, the hearing officer failed to make a finding of fact regarding the specific nature or purpose of the claimant’s travel to resolve the issue in dispute. Rather, the hearing officer in Finding of Fact No. 3 found the claimant was traveling to either one of two different places. Accordingly, we remand the issue of whether the decedent was in the course and scope of employment at the time of his fatal MVA of [date of injury]. On remand the hearing officer is to make a finding as to the exact nature and purpose of the claimant’s travel and then make a determination of whether the decedent was in the course and scope of employment at the time of his fatal MVA of [date of injury].

Pending resolution of the remand, 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 Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is NEW HAMPSHIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 5, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the disputed issues before him, the hearing officer determined that: (1) the appellant/cross-respondent (claimant) was in the course and scope of her employment when involved in a motor vehicle accident (MVA) on [date of injury] (issue resolved by the parties stipulation at the CCH); (2) the claimant is barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group health insurance policy; (3) the respondent/cross-appellant (self-insured) is not relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003 (issue added at the request of the self-insured and upon a finding of good cause); and (4) the self-insured’s second Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1), filed with the Division on February 13, 2012, was based on newly discovered evidence that could not reasonably have been discovered at an earlier date, but the self-insured failed to exercise due diligence in asserting that defense and the self-insured’s defense on compensability is limited to the election of remedies defense listed on the first PLN-1 that was filed with the Division on December 1, 2009 (issue added by the hearing officer). We note that Issue 4, which was added by the hearing officer, refers to an Amended PLN-1 filed on February 13, 2012; however, the Amended PLN-1 in evidence is date-stamped February 6, 2012.

The claimant appealed the hearing officer’s determination on election of remedies, contending that she did not make an informed and voluntary choice to use her group health insurance policy for the injuries sustained in the [date of injury], MVA. The claimant also contends that the Amended PLN-1 filed on February 6, 2012 (which asserted late filing of a claim and election of remedies defenses) replaced and superseded the December 1, 2009, PLN-1 (which only asserted election of remedies defense). Because the hearing officer found that the Amended PLN-1 filed on February 6, 2012, was not filed after the exercise of due diligence, the claimant asserts then the self-insured also waived the defense of election of remedies included in the February 6, 2012, Amended PLN-1. The self-insured responded to the claimant’s appeal, urging affirmance of the election of remedies determination and objecting to the raising for the first time on appeal, the argument that the self-insured waived the defense of election of remedies by filing the Amended PLN-1.

The self-insured cross-appealed the hearing officer’s finding that the self-insured did not exercise due diligence in asserting the defense of late filing of a claim within one year and the hearing officer’s determinations that the carrier is not relieved of liability because of the claimant’s failure to timely file a claim with the Division within one year and that the self-insured’s defense on compensability is limited to the election of remedies defense listed on the December 1, 2009, PLN-1. The claimant responded to the self-insured’s cross-appeal, urging affirmance of the adverse determinations to the self-insured.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The appeal file in this case indicates there is only one compact disc (CD) for the CCH and the appeal file does contain one CD. However, the CD in the appeal file does not contain a complete recording of the CCH. The CD recording was stopped during the claimant’s testimony when the hearing was recessed for a break. The CD recording was not turned back on after the recess or, for whatever reason, did not record after the recess. The hearing officer’s decision indicates that not only did the claimant testify at the CCH, but also [SH], [CT], [RM], and [PW] testified at the CCH. The file indicates that there was no court reporter and the file does not contain a transcript, or tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the complete CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

Pending resolution of the remand, 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 Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is (a governmental entity self-insured) and the name and address of its registered agent for service of process is

[DIRECTOR]

[ADDRESS]

[CITY], TEXAS [ZIP CODE].

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 28, 2010. The hearing officer resolved the disputed issues before her by determining that: (1) the appellant (claimant) was not in the course and scope of employment when involved in a motor vehicle accident (MVA) on ____________; (2) the respondent (carrier) is relieved of liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (3) the carrier is relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of injury as required by Section 409.003; and (4) the claimant is barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group insurance policy. The claimant appealed the hearing officer’s determinations. The carrier responded, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

It was undisputed that the claimant was injured in a MVA on Saturday, ____________.

COURSE AND SCOPE OF EMPLOYMENT, TIMELY NOTICE TO EMPLOYER, AND

TIMELY FILING OF CLAIM FOR COMPENSATION

The hearing officer’s decision that the claimant was not in the course and scope of employment when involved in a MVA on ____________, is supported by sufficient evidence and is affirmed.

The hearing officer’s decision that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001 is supported by sufficient evidence and is affirmed.

The hearing officer’s decision that the carrier is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of injury as required by Section 409.003 is supported by sufficient evidence and is affirmed.

ELECTION OF REMEDIES

Election of remedies is an affirmative defense raised by the carrier to the claimant’s claim under the Act. See Allstate Ins. Co. v. Perez, 783 S.W.2d 779 (Tex. App.—Corpus Christi 1990, no writ). The carrier has the burden of proof on this issue. See Am. Cas. Co. v. Martin, 97 S.W.3d 679 (Tex. App.—Dallas 2003); Appeals Panel Decision (APD) 032585, decided November 6, 2003.

In Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980), the Texas Supreme Court held that an election of remedies is only made as a result of an (1) informed choice (2) between two rights, remedies, or states of fact that (3) are so inconsistent (4) as to constitute manifest injustice. Also, the Bocanegra case makes clear that an election of remedies defense should be imposed sparingly, reserved for instances where the “assertion of a remedy, right, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust.” Id. at 851. See APD 990525, decided April 16, 1999.

In Valley Forge Insurance Company v. Austin, 65 S.W.3d 371 (Tex. App.—Dallas 2001, pet. denied with per curiam opinion), the court of appeals held the election of remedies affirmative defense was abolished by Section 409.009 because it permitted subclaims by insurance carriers and health care providers as a means to prevent double recoveries. The Texas Supreme Court affirmed the underlying decision on the merits for other reasons and stated it left open the question of whether Section 409.009 abolished the election of remedies affirmative defense. See Valley Forge Insurance Company v. Austin, 105 S.W.3d 609 (Tex. 2003). See also APD 030473, decided April 15, 2003.

The claimant testified that on the Monday, following the weekend MVA, he went into the office and told the general manager and assistant general manager that he had been hurt and needed to see the doctor. However, there was conflicting evidence from the employer that although the claimant stated that he was hurt in a MVA over the weekend, the claimant did not tell the employer it was a work-related injury.

The claimant testified that he was told by his employer to go to the hospital emergency room and that when he asked how he would pay for the visit, was told by his employer to use his group health insurance and that it would all be sorted out later. The claimant further testified that he paid for his medical treatment with his group health insurance although he objected to doing so many times with his employer. The claimant also testified that the assistant general manager told him “[d]on’t worry. We’ll work it out . . . . You just take care of your health first. That’s all that matters. All this will work out in the end . . . . He just kept telling me that.”

The claimant testified, which was supported by his answers to the carrier’s interrogatories, that he obtained a civil suit settlement from the insurance carrier of the driver of the pickup truck that rear-ended him. He stated that an amount of $7,920.00 each was paid to his attorney handling the claim, to his group health insurance carrier, and to him.

We hold that the evidence in this case does not meet the standards set forth in Bocanegra, supra, for imposing a binding election, and we accordingly reverse the hearing officer’s decision that the claimant is barred from pursuing Texas workers’ compensation benefits based on an election to receive benefits under a group health insurance policy, and we render a decision that the claimant is not barred from pursuing Texas workers’ compensation benefits based on an election of remedies.

SUMMARY

We affirm the hearing officer’s decision that the claimant was not in the course and scope of employment when involved in a MVA on ____________.

We affirm the hearing officer’s decision that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001.

We affirm the hearing officer’s decision that the carrier is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of injury as required by Section 409.003.

We reverse the hearing officer’s decision that the claimant is barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group insurance policy and render a new decision that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group insurance policy.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 25, 2010. The hearing officer determined that the decedent was in the course and scope of his employment when involved in a fatal motor vehicle accident (MVA) on __________, and that the respondent (claimant beneficiary) is a proper legal beneficiary of the decedent, entitling her to death benefits. The appellant (carrier) appealed the hearing officer’s compensability and death benefits determinations. The claimant beneficiary responded, urging affirmance.

DECISION

Reversed and rendered.

BACKGROUND INFORMATION

The parties stipulated that on __________, the decedent was involved in a fatal MVA; the decedent died as a direct result of the injuries sustained during the MVA on __________, and that the claimant beneficiary is a proper legal beneficiary of the decedent.

COURSE AND SCOPE OF EMPLOYMENT

Section 401.011(12) provides in part:

“Course and scope of employment” means an 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. The term includes an activity conducted on the premises of the employer or at other locations.

Generally, an employee engaged in business travel, such as a special mission, does not go into and out of the course and scope of employment while on that special mission, which is sometimes referred to as the principle of “continuous coverage.” See Aetna Casualty & Surety Co. v. Orgon, 721 S.W.2d 572 (Tex. App.—Austin 1986, writ ref’d n.r.e.).

The salient facts are undisputed. The decedent, a service representative for the employer’s oil field production business, began each work week picking up supplies and parts from the main office in (City A) and then traveling to (City B). The decedent spent the week working in the area of City B, living in an apartment maintained by the employer for its employees. There are restaurants available for eating in City B. The employer also paid for groceries for the employees to cook in the apartment. There is evidence that the decedent usually ate his meals in City B; however, he as well as other employees and the owner, had traveled to (City C). The distance from City B to City C is approximately 35 to 40 miles.

On (day before date of injury), the decedent drove to City C with a personal friend (NM). The decedent ate supper at a restaurant in City C with NM and a co-worker (MS), who had driven to City C earlier for an oil change in his company vehicle. Following their meal, the three men went to a bar to watch a basketball game, drink, and play pool. In the early morning hours of __________, the decedent and NM were driving back to the apartment in City B when the decedent lost control of his company vehicle and died in a fatal MVA approximately 7 miles away from the apartment.

The carrier contends that at the time of the fatal MVA, the decedent was not in the course and scope of employment because he had undertaken a trip solely for his pleasure and entertainment. The claimant beneficiary contends that the decedent was within the course and scope of his employment under the principle of continuous coverage when he chose to eat in City C and if there was a deviation in going to the bar, the deviation was over when the decedent began to return to the apartment in City B on the same road traveled to the restaurant in City C.

It is well-settled that “[a]n employee whose work involves travel away from the employer’s premises is in the course and scope of employment continuously during the trip, except when a distinct departure on a personal errand is shown. Injuries arising out of the necessity of sleeping in hotels and eating in restaurants away from home are usually compensable.” PHILLIP HARDBERGER, TEXAS WORKERS’ COMPENSATION TRIAL MANUAL p. 11-4 (Parker-Griffin Publishing 1991). The question of whether the claimant is engaged in a personal errand is a fact question for the hearing officer to resolve. See Appeals Panel Decision (APD) 980907, decided June 15, 1998. In APD 950973, decided July 31, 1995, we noted that the geographically closest restaurant need not be chosen in order for the claimant to continue in the course and scope of her employment when going to eat while traveling.

In the Background Information section of the decision, the hearing officer states:

The [decedent] went to [City C] to eat, which the then-owner of the employer testified was permissible and understandable once a week or so. While the time traveling to and the time at the location where he watched the basketball game and played pool was a deviation, when the [MVA] occurred the [decedent] was on the road between [City C] and [City B], returning to the apartment belonging to the employer. It is the road on which the [decedent] would have been even if he had not made the deviation. Based on the reasoning and outcome of the more recent [APD 000679, decided May 15, 2000], the [Appeals Panel] limited reference to the earlier decision cited by the carrier [APD 950973, supra], and generally the more recent decisions of the Appeals Panel that an employee does not go in and out of coverage absent a clear deviation, the claimant/beneficiary carried her burden of proof to establish that the [decedent] was in the course and scope of his employment when he suffered the injuries that resulted in his death.

The hearing officer erred in his factual determination by relying on APD 000679, supra. The facts in that case are distinguishable from those in the instant case. In APD 000679, there was no evidence that the injured worker was on some form of personal errand or off-duty social or recreational activity that was not required by her employment or the necessity of sleeping or eating away from home at the time the injured worker, a flight attendant on a layover, took a 10 to 15 minute shuttle bus ride to a restaurant to eat, tripped and fell walking towards the restaurant. Rather the facts in the instant case are similar to those in APD 950973, supra, in which the injured worker was at an out-of-town job site, staying at a motel. After work, the injured worker, who was without transportation, went with his supervisor to eat at a restaurant approximately 15 miles away from his motel, although there were restaurants within walking distance of his motel. At the restaurant, the injured worker ate and drank while joined by other co-workers. There was no evidence that any business was discussed. Enroute to the motel, there was a MVA. The Appeals Panel reversed the hearing officer’s determination that the injured worker was in the course and scope of his employment, stating that:

an employee, when housed near a job site by employer and away from his city of residence or when away from his hometown temporarily on order of his employer, may, or may not, be covered for injury under the 1989 Act when eating “close” or “nearby” the job site or the housing provided or while occupying the assigned residence. We expressly do not require that food be sought from the geographically nearest source for injury to possibly be compensable in the situation described. In parts of Texas, seeking food “nearby” may result in a need to travel several miles. “Close” or “nearby” does not include driving from a town . . . 15 miles to another town to eat.” The finding of fact that claimant was not engaged in personal pleasure . . . in travelling that distance in the situation described while other food sources were available nearby, even if only available by walking, was against the great weight and preponderance of the evidence.

In a review of the evidence in the instant case, the choice made by the decedent that evening to eat, drink, play pool, and watch television in City C, 35 to 40 miles away from his accommodations, was made due to his personal pleasure and recreation and was not an incident of his employment. See APD 950973, supra; APD 992094, decided November 3, 1999.

Accordingly, we hold that the hearing officer’s determination that the decedent was in the course and scope of his employment when involved in a fatal MVA on __________, to be so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We reverse the hearing officer’s determination that the decedent was in the course and scope of his employment when involved in a fatal MVA on __________, and we render a new decision that the decedent was not in the course and scope of his employment when involved in a fatal MVA on __________.

LEGAL BENEFICIARY

The hearing officer’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent is supported by sufficient evidence and is affirmed. Given that we have reversed the hearing officer’s compensability determination, we reverse that portion of the hearing officer’s determination by striking that the claimant beneficiary is entitled to death benefits and we render a new decision that the claimant beneficiary is a proper legal beneficiary of the decedent.

SUMMARY

We affirm that portion of the hearing officer’s decision that the claimant beneficiary is a proper legal beneficiary of the decedent but we reverse that portion of the hearing officer’s decision by striking that the claimant beneficiary is entitled to death benefits and we render a new decision that the claimant beneficiary is a proper legal beneficiary of the decedent.

We reverse the hearing officer’s decision that the decedent was in the course and scope of his employment when involved in a fatal MVA on __________, and we render a new decision that the decedent was not in the course and scope of his employment when involved in a fatal MVA on __________.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge