Submitted: September 17, 2018
Consideration of Appellant's Appeal from Decision of
Industrial Accident Board
F. Schmittinger, Esquire, Schmittinger and Rodriquez, Dover,
Delaware for Claimant Below/Appellee.
J. Klusman, Jr., Esquire, Tybout, Redfearn and Pell,
Wilmington, Delaware for Employer-Below/Appellant.
MEMORANDUM OPINION AND ORDER
Jeffrey J. Clark, Judge.
State of Delaware (hereinafter "State" or
"Employer") appeals an adverse decision by the
Industrial Accident Board (hereinafter "the IAB" or
"the Board") in favor of Mr. Nicholas Gates
(hereinafter "Mr. Gates"). Mr. Gates was a road
maintenance equipment operator for the State who suffered
injuries in an accident while responding to an emergency
overtime call. At the hearing, the State alleged that its
Merit Rule 4.16 fixed the time of Mr. Gates's accident to
be outside the course and scope of his employment because of
the going and coming rule. The IAB disagreed and found that
Mr. Gates suffered a compensable work injury because it found
him to have been due compensation from the State at the time
of the accident pursuant to his employment agreement with the
the Court holds that the Board did not commit legal error in
looking to the course of conduct between the parties when
determining the terms of Mr. Gates's employment contract.
Furthermore, the Court finds that the Board's decision
that Mr. Gates's travel at the time of the accident was
work related and compensable was supported by substantial
evidence. For these reasons, and the reasons that follow, the
Board's decision is AFFIRMED.
FACTS OF RECORD AND PROCEDURAL BACKGROUND
November 29, 2016, Mr. Gates injured his head and neck in a
motor vehicle accident. He alleged that these injuries were
compensable because they were work related. The Employer
disputed his claim, arguing that Mr. Gates was not acting
within the course and scope of his employment at the time of
the motor vehicle accident.
held its hearing on March 15, 2018, and concluded final
deliberations on April 14, 2018. It considered testimony from
Mr. Gates and Ms. Brittany Ford (hereinafter "Ms.
Ford"), a human resource representative who testified on
the Employer's behalf. It also considered documents
submitted by the Employer regarding overtime service,
stipulated facts, and competing medical expert testimony.
hearing, Mr. Gates testified that he was twenty-four years
old at the time of the motor vehicle accident and had worked
for the State for four months as an equipment operator.
Primarily, his job duties included road maintenance. Mr.
Gates's regular hours of employment were 7:00 a.m. to
3:00 p.m., Monday through Friday. He was also classified as
essential personnel and drew overtime pay for work outside
his regular work hours. The Employer referred to such
overtime as "call-back" time.
Gates testified that the Employer frequently called him back
for work after hours. It paid him a minimum of four hours
overtime even if he only worked one hour. At the time of the
accident, crew leaders recorded the regular working hours of
employees, while employees recorded their own call-back
hours. Mr. Gates also testified that he started recording his
call-back time from the moment he received the call-back and
stopped recording his time when he completed the job. On the
day of the accident, Mr. Gates received a phone call between
3:30 and 3:45 p.m., after his shift had ended at 3:00 p.m.
The Employer directed him to respond to a road side accident
after going to the Employer's worksite to retrieve
equipment. During his travel to the yard to retrieve his
equipment, Mr. Gates suffered the injuries at issue in a
motor vehicle accident.
Employer's representative, Ms. Ford, testified that State
Merit Rule 4.16 prescribes that call-back pay is calculated
"from the time the employee arrives at the designated
worksite and begins work until the time the employee has
completed all call-back requests and has left the
worksite." She explained the Employer's position
that Merit Rule 4.16 formed part of Mr. Gates's
employment agreement. She also testified that it and other
merit rules were referenced in the one-hour orientation
provided to all new employees. She acknowledged, however,
that the State did not provide physical copies of the Merit
Rules to new employees. Rather, it merely referenced the
Merit Rules during employee orientations. Furthermore, she
admitted that the call-back policy was not discussed during
the new employee orientation. Instead, she acknowledged that
supervisors were responsible for explaining the call-back
policy to new employees.
Gates testified that he did not receive formal training
regarding time sheet submission, but was "groomed"
by older and more experienced employees who told him that the
start time for overtime began at the time he received the
callback. He had been called-back many times prior to the
accident and had, consistent with such instruction, submitted
multiple time sheets for approval to the secretary without
issue. On all of these time sheets, he recorded his start
time from the moment he received the call. He testified that
for the first time, on the day of the accident, he was not
Board found, based on the totality of the circumstances, that
Mr. Gates acted within the course and scope of his employment
at the time of his motor vehicle accident. In so finding, it
concluded that there was a reasonable causal connection
between the injury Mr. Gates suffered and his employment
duties. The Board noted that the Employer required Mr. Gates
to respond to call-backs and his failure to do so would
result in termination. The Board also found Mr. Gates's
testimony credible and concluded that his trip to the
worksite on his way to his overtime job was, under the
totality of the circumstances, within the course and scope of
his employment. Alternatively, the Board found that even if
Mr. Gates's action on the day of the accident did not
fall within the scope of his employment agreement, he would
qualify under the special errand exception to the going and
coming rule at the time of his injury.
the State appealed the matter to this Court. In its appeal,
the State contends that the Board committed an error of law
by concluding that Mr. Gates's injury was a compensable
injury under the Worker's Compensation Act. It also
contends that the Board's decision was not supported by
STANDARD OF REVIEW
Court's appellate review of an IAB decision is limited to
determining whether the Board's decision was supported by
substantial evidence and whether the Board committed an error
of law. Substantial evidence means "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."On appeal, the
Court views the facts in the light most favorable to the
prevailing party below. Moreover, the Court does not weigh the
evidence, determine questions of credibility, or make its own
factual findings. Absent any errors of law, which are
reviewed de novo, a decision of the IAB supported by
substantial evidence will be upheld unless the Board abused
its discretion. The Board abuses its discretion when its
decision exceeds the bounds of reason in view of the
the Court finds no error of law in the Board's decision.
A claimant is entitled to worker's compensation benefits
for personal injury or death when that injury is sustained
"by accident arising out of and in the course of
employment." Determining if an injury arises out of and
in the course of employment is a highly factual inquiry that
is resolved using a totality of the circumstances
test."[A]rising out of and "in the
course of employment" are two distinct concepts and must
be established separately. "In the course of employment"
refers to the time, place and circumstances of ...