San Antonio Court Concludes Claimant Died in the Course and Scope
The San Antonio Court of Appeals has affirmed a trial court’s ruling that an employee’s fatal traffic accident occurred in the course and scope of his employment. In American Casualty Co. of Reading Pa v. Bushman, the court also addressed a jurisdictional issue: when does the clock begin to run on filing suit for judicial review if a represented claimant’s attorney is not provided with a copy of the appeals panel’s decision?
The claimant was represented, but her attorney was not sent a copy of the appeals panel’s decision. The court of appeals held that the time for filing suit was extended because of the Division’s failure to notify the attorney.
The parties dispute whether the “date on which the decision of the hearing officer is received” is (a) the date on which the claimant or her counsel first receives the decision or (b) the date on which both the claimant and her counsel have received the decision. This issue was decided by one of our sister courts in Frank v. Liberty Insurance Corporation. 255 S.W.3d at 320. The Frank majority held the date of receipt is determined by the date a represented claimant’s counsel receives the decision. 255 S.W.3d at 325. The Frank majority reasoned the WCD adopted a dual-notice rule to protect the rights of represented claimants that requires notice of the hearing officer’s decision to be sent to both the claimant and the claimant’s counsel. Id. It further reasoned the worker’s compensation statute “must be construed liberally to achieve its purposes of compensating injured workers.” Id. American Casualty argues the dissenting opinion in Frank is correct—the date on which either the claimant or her counsel received the decision is the “date on which the decision of the hearing officer is received.” Id. at 328 (Waldrop, J., dissenting).
We agree with the Frank majority’s reasoning and adopt its holding—the date the decision “is received” is the date on which a represented claimant’s counsel receives the decision. See id. at 325-27. We hold the hearing officer’s decision was deemed received on January 5, 2012, the date on which Denise’s counsel received the WCD’s decision letter. It is undisputed that Denise appealed the WCD hearing officer’s decision the day after the letter was faxed to her counsel. Because the appeal was filed within fifteen days of the date Denise’s counsel received the WCD’s hearing officer’s decision, Denise exhausted her administrative remedies. See id. at 320, 325-27. Therefore, the trial court had jurisdiction and did not err by denying American Casualty’s plea to the jurisdiction.
The claimant was a truck driver who was sent to another city for a week-long assignment to train a new dispatcher. His journey to the second city was found to be within the course and scope of his employment as a matter of law.
The origination element is satisfied when the employee’s travel was pursuant to an express or implied condition of the employee’s contract. Id.
“Courts have generally employed a fact-intensive analysis to determine whether an employee’s travel originated in the employer’s business, focusing on the nature of the employee’s job, the circumstances of the travel, and any other relevant facts.” Id. “Proof of origination can come in many forms.” Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex. App.—Austin 2011, pet. denied). “Evidence that an employee was on a ‘special mission’ for his employer is . . . probative of whether an employee’s trip originated in his employer’s business.” Id. Courts also consider whether the employer provided or paid for the transportation. Id. “No singular fact is necessarily dispositive.” Id.
Salem has a carrier division of its company that requires dispatching truck drivers. According to Safety Director, Timmy Sides, Clayton “drove a truck for Salem” and was a “truck driver” who would on occasion serve as a dispatcher out of Salem’s various offices. Salem instructed Clayton, who lived in Seguin, to report to Elgin and work there for a week to train a new dispatcher. And although he primarily worked as a Salem truck driver in San Antonio, he had on a few prior occasions worked as a dispatcher, but never as a dispatcher trainer. Salem did not ordinarily reimburse Clayton for travel from his home in Seguin to the truck yard in the San Antonio area, but Salem would reimburse Clayton for his travel expenses for traveling from Seguin to Elgin and his lodging expenses if he chose to stay overnight in Elgin. On the day of the accident, Clayton was traveling to Elgin and his travel was necessary if Clayton was to perform his job as his employer instructed. Clayton was not traveling to Elgin by his own choice but was required to go and perform a job outside of his ordinary job duties and away from his ordinary job site. See id. at 733 (reasoning that traveling away from ordinary job site to perform task that was not part of ordinary job duties supported origination element). Citing Evans v. Illinois Employers Insurance of Wausau, 790 S.W.2d 302 (Tex. 1990), American Casualty argues Clayton was not on a special mission because he was merely traveling to an alternate work site. American Casualty’s comparison of this case to Evans is unpersuasive. In Evans, the only change to the employees’ daily routine was a slight alteration in the time and location of their regular safety meeting. Here, Clayton was traveling to a week-long job assignment and Salem was going to pay for Clayton’s mileage, lodging, and travel expenses and gave him the option of staying overnight in Elgin. Clayton’s travel to Elgin was not merely a trip from home to a nearby job site to begin a regular workday, but rather was an atypical assignment in a different city.
We hold the evidence establishes Clayton’s required work travel to Elgin to train a dispatcher originated in Salem’s work, business, trade, or profession. See McVey, 339 S.W.3d at 730-34.
The decision represents another in a growing line of Texas cases that find traveling employees to be in the course and scope of their employment.
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