A Side Note

Going or coming?

One rule of statutory construction is that the courts make assumptions based on prior law - that is if a legislature does, or doesn't in some cases, specifically deal with or mention a particular concept of law, such as the "going and coming rule" in workers' compensation, then the courts will assume that the law makers didn't want to mess with the "old" law.

This is particularly true when the legislature does deal with other details.

The Oklahoma Court of Civil Appeals reminded the state's work comp participants of this propensity in a recent case, Robinson Medical Group/Castlepoint Insurance vs. True (113,528 - 10/07/2015).

Tommy True worked as a registered nurse for the Robison Medical Resource Group. His job required that he work at various hospitals throughout northeast Oklahoma – mostly in Claremore, Pryor and Mayes County and occasionally other locations.

True was supposed to go to Claremore to work on March 8, 2014, but Robison asked him to go out to Grove since a sleet storm had left the hospital there short of staff.

True testified that he negotiated a higher payment at a rate of $40 per hour representing his hourly rate of $37.50 and an extra $2.50 per hour for his mileage. Castlepoint did not offer any rebuttal testimony on payment arrangement.

On his way home from work, True's car hydroplaned when he swerved to avoid a deer. He crashed into a tree, sustaining severe injuries that almost cost him his leg.

The Administrative Law Judge found True's accident to be compensable last June, and Castlepoint appealed.

The Commission upheld the ALJ.

The Court of Civil Appeals found there was substantial competent evidence to support the ALJ's finding that Robison had compensated True for his mileage in driving to and from the Grove hospital because although Castlepoint offered evidence that the payment arrangement was not standard, there was no evidence to rebut True's testimony as to the specifics of pay.

The question then became whether Robison's payment of compensation for True's travel time kept him within the course and scope of his employment, even though he had already left work and was heading home on a public roadway, the court said.

Section 2(13)(a) of the AWCA defines the "course and scope of employment" as excluding a worker's travel to and from work, the court noted. "(T)his language is substantially similar to what, under the Workers' Compensation Act, was the general rule," often referred to as the "going and coming rule," the court said. Thus, the court reasoned Section 2(13)(a) represented "an express attempt by the Legislature to adopt that general rule."

The court observed that the AWCA expressly adopted, abrogated and modified many of the formerly recognized exceptions to the going and coming rule.

Under the Workers' Compensation Act, the going and coming rule did not apply when a worker was hurt while traveling to or from his workplace to perform a special task outside of his regular work hours, at the request of his employer, for the employer's benefit, the court said.

So, since there were expressed limitations and exceptions, etc. in the Act, the legislature's failure to eliminate the special task exception meant that it still applied.

As "Legislative silence on a well-established point of law is not indicative of the abrogation of the prior law," the court said it had to find the paid-travel exception "survives intact under the AWCA and it applies to this case."

Now, a side note.

You may have noticed that I inserted the insurance company's identity in place of the employer's identity relative to the procedural decisions in this case.

I will do this in the future when possible - the reason: employer's don't make litigation decisions (unless they are self insured/administered) in the vast majority of cases (and if an employer does direct the litigation, then YOU let me know!).

Overwhelmingly, the decision to deny, defend, litigate, etc. is delegated by the employer to the insurance company via the insuring contract.

Robison's, in this instance, would not have wanted this case to fall outside the exclusive remedy of workers' compensation because of the exposure to civil liability - which, by the way, would have been denied by the general liability carrier as a work comp claim: the proverbial Catch-22.

The courts are largely responsible for confusing the responsibilities of the employer and carrier because the courts have made it a habit, either through procedural rules or just customary practice, to lump the two together.

But an employer has distinctly different interests than the carrier does. That's the nature of the insurance relationship.

So, unless an employer actually does control litigation decisions and that point is distinctly available from the record, I'm going to assume that it's the insurance company that makes those decisions - and will criticize (or praise) accordingly.

In this Robison case, it is quite obvious to me that the decisions were those of the carrier. And, by the way, the management of evidence, particularly witness rebuttal to True's pay testimony, is telling - there was no evidence to rebut True, and that should have driven Castlepoint's decision to drop the litigation and pay the claim.

But other interests got in the way - and that's a rant for another day.