GQ Corner
Q. Claimant is an employee of a medical clinic. The employer says it is a violation of their policy for employees who are not physical therapists to participate in physical therapy. Claimant volunteered herself to assist with a patient’s PT care, and sustained injuries as a result. Are these injuries compensable?
A. There is a basis for dispute over violation of the employer’s policies, but it is very rare and hard to defend. Violation of an employer’s policy or instructions will not, as a general rule, remove the worker from the right to compensation where the rule relates to the manner of doing work, as opposed to a rule intended to limit the scope of employment. Maryland Cas. Co. v. Brown, 115 S.W.2d 394 (Tex. 1938); see also Westchester Fire Ins. Co. v. Wendeborn, 559 S.W.2d 108 (Tex. Civ. App.-Eastland 1977, writ ref’d n.r.e).
As an example, in APD 080320-s the ALJ found that the claimant suffered injuries due to a MVA while talking on a cell phone as she drove a school bus for the school district employer; that the employer had a policy prohibiting the use of cell phones by bus drivers while driving the employer’s buses; and that the claimant was aware of this policy. The ALJ determined the claimant was not in the course and scope of employment and did not sustain a compensable injury because the claimant’s use of a cell phone at the time of her injury, which violated the employer’s policy, removed her from the course and scope of employment. The ALJ stated “[h]er conduct in using her cell phone while driving the bus is not viewed as merely violating a workplace rule governing simply the method by which she was to perform her work. For this reason, claimant’s injury is not compensable and the Self-Insured is not liable for compensation.”
The AP reversed and rendered a decision that the claimant was in the course and scope of her employment. In so doing the AP stated that the employer’s prohibition against using a cell phone while driving the bus was a safety policy in prescribing the manner in which the main job (driving the school bus) was to be performed, and was not a rule limiting the scope of employment, and therefore the violation of the employer’s policy in this case would not remove the claimant from the course and scope of her employment.
In short, unless your insured has a specific policy that essentially dictates that volunteering for PT care takes the employee out of the scope of their employment, then you don’t have a viable defense to compensability under that theory in this case.
FOLIO
