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State v. Gates

Superior Court of Delaware, Kent

November 16, 2018

STATE OF DELAWARE, Employer-Below/Appellant,
NICHOLAS GATES, Claimant-Below/Appellee.

          Submitted: September 17, 2018

          Upon Consideration of Appellant's Appeal from Decision of Industrial Accident Board

          Walt F. Schmittinger, Esquire, Schmittinger and Rodriquez, Dover, Delaware for Claimant Below/Appellee.

          John J. Klusman, Jr., Esquire, Tybout, Redfearn and Pell, Wilmington, Delaware for Employer-Below/Appellant.


          Jeffrey J. Clark, Judge.

         Appellant 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 State.

         Here, 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.


         On 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.

         The IAB 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.

         At the 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.

         Mr. 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.

         The 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.

         Mr. 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 paid overtime.

         The 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.

         Thereafter, 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 substantial evidence.


         This 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.[1] Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[2]On appeal, the Court views the facts in the light most favorable to the prevailing party below.[3] Moreover, the Court does not weigh the evidence, determine questions of credibility, or make its own factual findings.[4] 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.[5] The Board abuses its discretion when its decision exceeds the bounds of reason in view of the circumstances.[6]

         III. ANALYSIS

         Here, 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."[7] 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.[8]"[A]rising out of and "in the course of employment" are two distinct concepts and must be established separately.[9] "In the course of employment" refers to the time, place and circumstances of ...

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