Driver injured in forklift accident while cruising for dog biscuits
It is not uncommon to see workers' comp cases hinge on whether the injuries both arose out of and in the course of their employment.
A truck driver injured while driving a forklift to get dog treats did not substantially deviate from the course of his employment, ruled the Court of Appeals of Arizona.
Gordon McChesney (McChesney) regularly drove a flatbed truck for freight company CRST International to several cities near Phoenix, Arizona, to pick up bales of cardboard at retail stores to bring back to a recycling facility. In April 2020, McChesney was at the first of three stops when he took a break to get dog treats for his furry friends at home, using a forklift to drive around the building. The forklift hit a rock and tilted; though it did not tip over, McChesney hit his head twice and, upon exiting the forklift, immediately lost consciousness. McChesney was taken to and treated at a local hospital before a family member drove him home.
CRST and its insurer denied McChesney’s claim for workers’ compensation, claiming the trip was not within the scope of employment because “McChesney was on a personal errand and was prohibited from going into the store or using the forklift for transportation.”
Before an administrative law judge (ALJ), McChesney testified that he had never seen such a rule, and that using a forklift as he had been was both a common practice and something he had done before. The company safety manager agreed that employees could take breaks and “shop” in a store while “off duty,” but maintained that employees were not to use forklifts as transportation. CRST witnesses agreed with the safety manager, who himself admitted to having used a forklift for transportation, but all agreed that the rule was unwritten. The manager of the store where McChesney was injured testified that CRST employees had been informed, via text message, to only come into the store to use the facilities or to buy food or drinks in order to limit in-person interactions due to COVID-19. McChesney said he did not get that text, and the operations manager “admitted that he did not confirm McChesney received the text.”
The ALJ rule McChesney’s injury compensable, in part because driving a forklift around a store “was not out of the ordinary for CRST employees” and using a forklift in such a manner “was not a clear violation of a work rule or so out of the ordinary as to constitute a deviation from his employment.” CRST and their insurer appealed.
The standard for a compensable workers’ compensation injury, said the court, has three parts: An accident that both arises out of and in the course of a claimant’s employment. CRST argued that McChesney was not injured “in the course of” employment because he had “deviated” from his work duties. The court, however, said deviation meant “an activity so remote from customary or reasonable practice that it cannot be said to be an incident of the employment.” The judges found no error in the ALJ’s decision that McChesney had not “substantially deviated” from his employment, going so far as to say “[i]f there was any deviation from employment … it was slight.” The award to McChesney was affirmed.
Insurance Coverage Law Center editor’s note: It is not uncommon to see workers’ compensation cases end up in court over whether the claimant’s injuries both arose out of and in the course of their employment. The “arising out of” component deals with the relationship between the nature of the employment and the injury, which was not contested in this case, while “in the course of” employment addresses the timing of an injury, such as whether an injured employee was on or off the clock when they were injured, or whether a break was scheduled or unscheduled.
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