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Appeals Panel Decision Manual - Liability/Compensability Issues

Acronym List

Liability/Compensability Issues Part 3

For sections C01 - C16, please see Liability/Compensability Issues PART 1.

For sections C17 - C21, please see Liability/Compensability Issues PART 2.

Other Compensability Issues (C00)

Course and Scope of Employment

For an injury to be compensable, it must have occurred while the IW was in the course and scope of employment. Course and scope of employment is defined as an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. Section 401.011(12). Course and scope of employment includes an activity conducted on the premises of the employer or at other locations. Evidence that an employer may have paid an IW workers' compensation benefits is not competent evidence that an IW was acting within the course and scope of his or her employment. Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007).

Section 401.011(12) specifically excludes certain activities from the definition of "course and scope of employment." The excluded activities are as follows:

Separate portions of Section 401.011(12) are commonly referred to as the "coming and going rule", the "special mission exception", and the "dual purpose doctrine".

Section 401.011(12)(A) is commonly referred to as the coming and going rule. Section 401.011(12)(A)(i), (ii), and (iii) are exceptions to the coming and going rule, with Section 401.011(12)(A)(iii) being commonly referred to as the special mission exception. Section 401.011(12)(A) provides that an injury which occurs during transportation to and from the place of employment is not compensable unless:

(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;
(ii) the means of transportation are under the control of the employer; or
(iii) the IW is directed in the IW's employment to proceed from one place to another place.

Section 401.011(12)(B) is commonly referred to as the dual purpose doctrine. Section 401.011(B) provides that an injury which occurs while the IW is traveling in the furtherance of the affairs or business of the employer, and also in furtherance of the personal or private affairs of the IW is not compensable unless:

(i) the travel to the place where the injury occurred would have been made even if there had been no personal or private affairs of the IW to be furthered by the travel; and
(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.

The IW has the burden of proof to establish that the injury was sustained while in the course and scope of employment. APD 041487. Whether the IW was in the course and scope of his or her employment at the time the claimed injury occurred is a question of fact for the HO to resolve. APD 030780.

Access Doctrine. The access doctrine is an exception to the coming and going rule, which provides that injuries that occur while going to or coming from the place of employment are not compensable. The test for determining whether the access doctrine applies is set out in Texas Workers' Compensation Insurance Company v. Matthews, 519 S.W.2d 630 (Tex. 1974). The test has two parts:

1. Whether the employer has evidenced an intention that the particular access route area be used by the employee in going to and from work; and
2. Whether such access route or area is so closely related to the employer's premises as to be fairly treated as a part of the premises.

An injury is in the course and scope of employment if the IW is injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer's premises. Standard Fire Ins. Co. v. Rodriguez, 645 S.W.2d 534 (Tex. App.-San Antonio 1983, writ ref'd n.r.e.); APD 950156. Whether an injury is compensable due to the application of the access doctrine is a question of fact for the HO to resolve. APD 040159.

In Course and Scope Under the Access Doctrine.

On Employer's Premises. The IW clocked out during her one-hour lunch period and ate in the office. During the lunch period and after eating her lunch, the IW decided to leave the employer's premises to perform a personal errand. As the IW was exiting the building, she fell down the steps and sustained multiple injuries. The HO determined that the IW did not sustain a compensable injury because she was leaving to perform a personal errand. The AP reversed and rendered a decision that the access doctrine applied to the facts of this case. The AP noted that the IW was leaving work and passing from her work area by a way over her employer's premises with the express or implied consent of the employer. APD 021369.

Off Employer's Premises. The IW's employer only leased the third floor of the building where she worked. The only access to the third floor was from the building's loading dock. The IW was injured when she fell going down the stairs of the loading dock while leaving work. The IW's employer was aware its employees followed this path to and from work. A jury found the IW was in the course and scope of her employment and a court of appeals affirmed, holding that although the IW was not on the employer's premises, the IW was at or near the place of work and on a means of ingress and egress impliedly permitted and recognized by the employer as being a means of access to the work. If an injury occurs while the IW is going to or coming from his or her work place, with the express or implied consent of the employer, over the premises of another, the injury is compensable even though it did not occur on the employer's premises if the premises of the other is in such proximity and relation to the employer's premises as to be in practical effect a part of the employer's premises. Standard Fire Ins. Co. v. Rodriguez, 645 S.W.2d 534 (Tex. App.-San Antonio 1983, writ ref'd n.r.e.). Whether an injury which occurs while passing over the premises of another is compensable under the access doctrine presents a question of fact for the HO to resolve. APD 012248.

Not In Course and Scope Under the Access Doctrine.

On Employer's Premises. The IW was employed at the self-insured's hospital. The IW worked on the first floor of the hospital, and her primary care physician (PCP) had an office on the third floor of the hospital. The IW had a pre-scheduled appointment to see her PCP at 9:00 a.m. on the DOI. The IW arrived at work at 6:00 a.m. and at 8:30 a.m., she informed her supervisor that she was going to her pre-scheduled appointment. The IW "punched out" and went to her appointment on the third floor of the hospital. The evidence reflected that there were several ways for the IW to get from her workstation to her PCP's office. After her appointment, the IW was returning to her workstation when her foot gave way causing her to fall to the ground and resulting in injury to her cervical spine. The HO determined that the injury was not compensable under the access doctrine because the IW failed to prove that the employer intended that she take the particular access route she was taking at the time the injury occurred. Whether an IW has established that the access doctrine applies is a question of fact for the HO to resolve. APD 960521.

Off Employer's Premises. The IW sustained her injuries when she was struck by a car while crossing a public street on her way to work. At the time of the injury, the IW was proceeding toward her place of work from the parking garage which was owned by the employer. The garage was located approximately 100 feet from the IW's place of employment. In determining that the injury was not compensable, it was noted that there was no evidence to show that the employer maintained or exercised control over the public street, no evidence that the employer intended this particular access route to be used by its employees, and therefore, it was not shown that the location of the injury was so closely related to the employer's premises as to be fairly treated as part thereof. Whether an IW has established that the access doctrine applies is a question of fact for the HO to resolve. APD 960959.

Act of God. [Cross reference: Not in Course and Scope Because of Other Grounds (C10)]. An IC is not liable for compensation if the injury arose out of an act of God, unless the employment exposes the IW to a "greater risk of injury from an act of God than ordinarily applies to the general public." Section 406.032(1)(E). A court of appeals has defined "act of God" as follows:

By the term "act of God" as used herein is meant any accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight, pain or care, reasonably exercised, could have prevented. The act must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause of the resulting mischief. The term implies the intervention of some cause not of human origin and not controlled by human power. Transport Ins. Co. v. Liggins, 625 S.W.2d 780, 782-83 (Tex. App.-Fort Worth 1981, writ ref'd n.r.e.).

Burden of Proof. The IW has the burden of proof to establish that his or her employment exposes the IW to a greater risk of injury from the act of God than ordinarily applies to the general public. Whether the IW's employment exposes him or her to a greater risk of injury than the general public is a question of fact for the HO to resolve. APD 002641.

Injury Not Caused by an Act of God. The following are examples of situations where the IC has argued that it should be relieved from liability under the "act of God" provision of the Act. In each example it was determined that the cause of the injury was not an act of God. It should be noted that the mere fact that the injury was not caused by an act of God does not automatically make the injury compensable. The IW is required to prove that he or she was (1) in the course and scope of employment and that (2) the injury was of such kind and character as had to do with and originated in the employer's work, trade, business or profession. Both of these requirements present a question of fact for the HO to resolve.

Insect Bite. Insect bites and stings have been held not to be acts of God and have been held to be compensable when causation is established. It is not enough to show that the injury occurred while in the course and scope of employment. The IW must also prove that the injury was of such kind and character as had to do with and originated in the employer's work, trade, business or profession. Standard Fire Ins. Co. v. Cuellar, 468 S.W.2d 880 (Tex. Civ. App.-San Antonio 1971, writ ref'd n.r.e.). To show causation, the IW must prove that the conditions and obligations of the employment placed the IW in harm's way. Texas Workers' Comp. Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.-San Antonio 1998, no writ.).

The IW was employed as a school bus driver and sustained injuries when she was bitten behind the knee by a brown recluse spider while driving her route. The school bus was stored in a remote location at the bus barn and the school bus door remained open at night. The HO found the injury was compensable. Whether the IW's injury was of such kind and character as had to do with and originated in the employer's work, trade, business or profession was a question of fact for the HO to resolve. APD 020446.

Ice. The IW was injured when the truck he was driving at night rolled over when it hit a patch of ice on the road. The IC argued that the injury was caused by an act of God because the ice on the road was not foreseeable, was caused by the forces of nature without human intervention, and that the employer did not have control over the road where the MVA occurred. However, the issue is not whether the employer could have taken some action to remove the ice, the issue is whether something can be done, through human intervention, to prevent accidents on ice. The HO may consider factors such as ice on the roads can be, and often are, covered with sand by crews, chains may be used by drivers, and warning signs may be posted by highway departments. The HO determined that the injury was not caused by an act of God. Whether the ice on the road was an act of God exposing the IW to a greater risk of injury than the general public was a question of fact for the HO to resolve. APD 991714.

Evidence That the Injury Caused by an Act of God Is Compensable. The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is compensable, and that the "act of God" exception to compensability does not apply. For each of these fact circumstances there may be cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

Lightning. The IW was employed by a retail store. The employer required all employees to park in a designated area beyond the "cart corrals." The employer further required that all employees enter the store through the main entrance, there were no exceptions to this policy. The IW exited her car and was headed toward the entrance of the store when she was struck by lightning near the first "cart corral." Also in the same area where the IW was struck by the lightning was a small tree supported by metal stakes four to five feet high. There was evidence that the lightning struck one of the stakes, traveled along the ground, went through the metal "cart corral," and struck the IW. The IW also presented expert evidence that she was at greater risk of being struck by lightning because she was required to park further out in the lot and was required to use a specific entrance, thereby increasing the likelihood of an employee being injured by lightning by increasing the amount of exposure time. The expert further noted that the metal stakes also increased the risk of injury from lightning. The HO determined that the injury was compensable. Whether the IW's employment exposed her to a greater risk of injury than the general public was a question of fact for the HO to resolve. APD 002641.

Tornado. The IW was employed as a truck driver. On the DOI, he was pulling two trailers on an interstate highway. The IW testified that he was unaware of any bad weather in the area, and that his truck was blown over by a tornado causing him injury. The trailers the IW was pulling were thirteen feet six inches tall. The HO determined that the IW was at a greater risk than the general public due to his job as an over-the-road truck driver and the size and relative weight of the trailers he was pulling. Whether the IW's employment exposed him to a greater risk of injury than the general public was a question of fact for the HO to resolve. APD 002179.

Evidence That the Injury Caused by an Act of God Is Not Compensable. The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is not compensable, and that the "act of God" exception to compensability does apply. For each of these fact circumstances there may be cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

Lightning. The IW was employed as a custodian. Part of his usual duties was to pick up trash outside of the building. IW testified that on the DOI, there was lightning in the area but that his supervisor refused to allow him to seek shelter. The IW testified that he was directed to use a metal stick to pick up the trash. The IW was struck by lightning causing injury. The HO determined that the IW was not at greater risk of injury from lightning than the general public. The HO noted that at the time of the lightning strike, the IW was near a telephone pole and two buildings which were higher than the IW. The HO determined that the mere fact that the IW was using a metal stick was insufficient for him to prove he was at greater risk of injury from lightning than the general public and his claim was not compensable. Whether the IW 's employment exposed him to a greater risk of injury than the general public was a question of fact for the HO to resolve. APD 951820.

Tornado. The IW was working as a driver's education teacher. On the DOI, the weather deteriorated and strong winds were blowing, making it difficult for her students to control the self-insured's vehicle which she was using to instruct them. The IW decided to end the instruction early. The IW testified that the self-insured's policy required her to return the drivers' education vehicle back to its premises and that she was not permitted to drive it home. The IW returned the vehicle to the self-insured's premises, got her own vehicle, and started for home. On the way home, the IW encountered a tornado and was injured by debris which crashed through her back window. The IW asserted that she was at a greater risk of injury from the tornado than the general public because she had to return the self-insured's vehicle to its premises before seeking the shelter of her home. The HO determined that the IW was not at a greater risk of injury from the tornado than the general public at the time of her injury and her claim was not compensable. Whether the IW's employment exposed her to a greater risk of injury than the general public was a question of fact for the HO to resolve. APD 002884.

Attempt to Injure Another. [Cross reference: Willful Attempt to Injure (C11)]. An injury is not compensable if it was caused by the IW's willful intention to unlawfully injure another person. Section 406.032(1)(B). An injury caused by the IW' s willful intention and attempt to injure another person is not in the course of employment, unless the injury results from a dispute arising out of the IW's work or in the manner of performing it and the IW's acts growing out of such dispute are done in a reasonable attempt to prevent interference with the work or in reasonable self-defense. The IC has the initial burden of proof when asserting this affirmative defense. N. River Ins. Co. v. Purdy, 733 S.W.2d 630 (Tex. App.-San Antonio 1987, no writ). Whether such an injury is compensable is a question of fact for the HO to resolve. APD 971539.

In Course and Scope. The IW and his foreman got into an argument regarding the IW's job skills. The IW testified that after the argument he resigned, and as he was leaving the job site the foreman attacked him from behind thereby causing the claimed injury. In determining that the IW sustained a compensable injury, the HO found that the physical confrontation resulted from an argument over how the work should be done, and not from any personal disagreement unrelated to the work activities. Whether the cause of the altercation and subsequent injury arose out of the IW's work or the manner in which he was performing it was a question of fact for the HO to resolve. APD 011253.

The IW and his foreman got into a disagreement regarding the manner in which the work should be performed. The IW asserted that the foreman grabbed his arm and attacked him, so the IW defended himself by striking the foreman and placing him in a headlock. After the IW let go of the foreman, the foreman struck the IW multiple times with a hammer causing the claimed injuries. The HO found that the injury was compensable because it was not caused by the IW's willful attempt to unlawfully injure another person, the initial altercation had ceased when the foreman attacked the IW again causing the claimed injuries, and the altercation arose out of the manner in which the IW was performing his job, not because of any personal animosity. Whether the cause of the altercation and subsequent injury arose out of the IW's work or the manner in which he was performing it was a question of fact for the HO to resolve. APD 962472.

Not In Course and Scope. The IW sustained a broken wrist in a fight with a co-worker over the use of a piece of equipment. The IW testified that the co-worker had started the fight. The co-worker testified that the IW was the one that started the fight; that another co-worker broke up the fight; and that after the fight was broken up, he was returning to his work duties, and the IW attacked him again. The IW was not in the course and scope of his employment because after the initial fight had ended, the IW renewed the fight with the unlawful intent to injure another, and it was at that point that the IW sustained his injury. Whether the IW was injured while unlawfully trying to injure another was a question of fact for the HO to resolve. APD 980020.

The IW and the employer's owner got into a fight at work which resulted in the claimed injury. The evidence was sharply conflicting regarding the cause of the fight, and who had started the fight. The IW testified that he was operating a piece of equipment when the owner approached him and they began to argue. The IW further testified that the owner attacked him, ripped his shirt, and kicked him above the eye causing him to fall and sustain his injuries. The owner testified that the IW appeared to be intoxicated; was not operating the machinery properly; was told to get off the machine; and quit his employment. The owner and a supervisor both testified that the IW became angry and attacked the owner, and that the owner kicked the IW in self-defense. The HO determined that the IW did not sustain a compensable injury because the IW both started the fight and was unlawfully trying to injure another at the time the injury occurred. Whether the IW was injured while unlawfully trying to injure another was a question of fact for the HO to resolve. APD 992275.

Attempt to Injure Self. The Act provides that an injury is not compensable if the injury was caused by the IW's willful intention and attempt to injure himself. Section 406.032(1)(B). The IC has the initial burden of proof when asserting this affirmative defense. Whether an IW was injured by a willful attempt to injure himself presents a question of fact for the HO to resolve. APD 971539.

In Course and Scope. The IW asserted that she sustained a compensable injury when she went outside on her break and slipped and fell on some ice while walking to a food vendor. The IC presented evidence that the IW had told co-workers earlier that day that she was going to stage a fall. The HO found the IW's assertion that the fall was not intentional or staged to be more credible than the IC's evidence to the contrary, and held that an injury occurred in the course and scope of employment. Whether the injury occurred as a result of a willful intent to injure oneself presented a question of fact for the HO to resolve. APD 971784.

Not In Course and Scope. In a case with conflicting evidence, the HO determined that the IW was injured when he intentionally fell down some stairs. The IC presented evidence that prior to the fall, the IW had been counseled regarding excessive absences; that the IW wanted the following day off; that the IW had previously joked about staging a slip and fall if he needed time off from work; and that he had questioned a co-worker's attorney spouse regarding how people get away with falling down stairs. Whether the injury occurred as a result of a willful intent to injure oneself presented a question of fact for the HO to resolve. APD 982048.

Coming and Going Rule. Generally, the "coming and going rule" provides that an injury occurring in the use of the public streets or highways in going to and returning from the place of employment is noncompensable. Am. Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957). The rationale for the rule is that "in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer." Tex. Gen. Indem. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963). Section 401.011(12)(A) provides that an injury which occurs during transportation to and from the place of employment is not compensable unless:

(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;
(ii) the means of transportation are under the control of the employer; or
(iii) the IW is directed in the IW's employment to proceed from one place to another place.

401.011(12)(A)(i). For an injury to be compensable under this exception, it is not enough that the employer has furnished or paid for the transportation. The mere furnishing of transportation by an employer does not automatically bring the IW within the protection of the Act. If this were not the law in this State, then each and every accident in a company vehicle, including those operated for purely personal reasons would be compensable under the Act. Wausau Underwriters Ins. Co. v. Potter, 807 S.W.2d 419 (Tex. App.-Beaumont 1991, writ denied). Even if an IW falls within one of the exceptions to the coming and going rule, the IW must be in the furtherance of the employer's business at the time of the injury. Poole v. Westchester Fire Ins. Co., 830 S.W.2d 183 (Tex. App.-San Antonio, 1992); APD 032487. This is true even if there is evidence that the IW was being reimbursed for his or her transportation costs. Dunlap-Tarrant v. Ass'n. Cas. Ins. Co., 213 S.W.3d 452 (Tex. App.-Eastland 2006, no pet.). Whether the IW is in the furtherance of the employer's business presents a question of fact for the HO to resolve. APD 93634.

In Course and Scope. IW was employed as a foreman. He was assigned a company truck which he was allowed to drive to and from work every day. The IW decided to have his crew meet at the shop early on the DOI so that they could perform extra work. On the way from home to the shop, the IW reached for the two-way radio to call an employee at the shop. The purpose for the call was to determine if he needed to pick up any parts. As he reached for the two-way radio, a MVA occurred causing the injuries in question. The injury was found to be compensable because by attempting to call the shop, the IW was engaged in his duties as a supervisor in the furtherance of the employer's business at the time the MVA occurred. Whether the IW was in the furtherance of the employer's business at the time of injury was a question of fact for the HO to resolve. APD 93634.

The IW (deceased), a chief executive officer of a company, was driving to his home in a company car to pick up his wife. The two were then going to drive to a John Deere Company to purchase a part for the company. The IW was a short distance from his home when he was killed in a MVA. At the time of the MVA, the IW was talking on his cell phone to a vice president of his company about a problem related to the company. The HO determined that the IW was not in the course and scope under the special mission exception of Section 401.011(12)(A)(iii) at the time of his fatal MVA because his action of departing from the most direct route to the business where he was going to buy the part to pick up his wife was a deviation from the course and scope of employment, and the AP affirmed this determination. However, the AP stated that because the IW's transportation was paid for by the employer he was not automatically excluded under the coming and going rule, and that the issue of whether he was in the course and scope of employment turned on whether he was engaged in or about the furtherance of the affairs or business of the employer at the time of the MVA. The AP found that the action of a chief executive officer discussing a business problem with the vice president was an action furthering the affairs and business of the employer, and therefore reversed the HO and rendered a decision that the IW was in the course and scope of his employment. APD 031900-s.

The IW, a police officer, was injured in a MVA while driving his patrol car to work. Police Department Policy 40 provided that "on duty assignments" include going to and from work. Based on this policy the AP rendered a decision that the IW was in the course and scope of his employment. APD 002546-s.

Not In Course and Scope. The IW testified that his truck, gasoline, and maintenance were provided by his employer and that the means of transportation were under the employer's control. The IW was injured when he was involved in a MVA while on a direct route home from the job site to take a few days off. The HO determined that the IW did not sustain a compensable injury because while the transportation was provided by the employer, the IW failed to prove that he was furthering the employer's business at the time of the MVA. The IW was merely going home. Whether the IW was in the furtherance of the employer's business at the time of injury was a question of fact for the HO to resolve. APD 992399.

401.011(12)(A)(ii). The mere fact that the means of transportation are under the control of the employer is insufficient to establish that an injury is compensable. The IW must also prove he was engaged in an activity in furtherance of the affairs of the employer and which was of a kind that originated in and had to do with the work of the employer. Whether the IW is in furtherance of the affairs of the employer presents a question of fact for the HO to resolve. APD 93880.

In Course and Scope. The IW (deceased) was employed on a drilling crew. He was assigned to work at a remote location which had no housing facilities. The IW was informed that he would be paid an hourly rate while working at the drilling site. The IW was also told that the crew members went to and from the site in private vehicles and that the crew member furnishing his vehicle for the transportation of himself and his fellow crew members would receive a travel reimbursement of seven cents per mile for the round trip. On the DOI, the IW was driving his own vehicle, accompanied by two crew members, home from the drilling site when he was involved in a fatal MVA. It is undisputed that the IW was not being paid an hourly wage at the time of the MVA. The injury was compensable because due to the remote location of the drilling site, it was essential for the employer to provide free transportation in order to induce people to work there. Providing free transportation furthered the employer's affairs. Texas Employers' Ins. Ass'n. v. Inge, 146 Tex., 347, 208 S.W.2d 867 (1948).

Not In Course and Scope. The IW was in a MVA on the way to work. The IW's transportation to work was provided by the employer as a favor to the IW. At the time of the accident the IW was not doing any work to further the business affairs of the employer. The IW's injuries were not compensable because the employer's affairs were not being furthered at the time of the MVA, and the transportation was furnished to the IW as a favor to him. Whether the IW was in the furtherance of the employer's business at the time of injury was a question of fact for the HO to resolve. APD 970666.

401.011(12)(A)(iii) (Special Mission). [Cross references: Travel; Dual Purpose, this section]. An injury which occurs while an IW is traveling from one place to another may be compensable if the travel is done at the express or implied direction of the employer. Freeman v. Texas Comp. Ins. Co., 603 S.W.2d 186 (Tex. 1980). This is commonly known as the special mission exception. Whether an IW is on a special mission presents a question of fact for the HO to resolve. APD 021238.

In Course and Scope. The IW arrived at work at his usual time. The IW was told that he was going to have to go on an out-of-town job which would last several days. The IW was told to go home and pack, and return to the office prior to departing for the out-of-town job. The IW did not clock out when he left for home because per company policy, he was still on the clock while preparing to leave town. The IW packed personal items not used or worn in the performance of his job. After packing, and on his way back to the employer's premises, the IW was injured in a MVA. The HO found the injury was not compensable because the IW was on a personal errand and was not furthering the employer's affairs. The AP reversed and rendered a decision that the IW was on a special mission and that preparation for travel to the out-of-town job was furthering the employer's affairs. It was irrelevant that the IW packed personal items not used or worn in the performance of his job. APD 000503.

Not In Course and Scope. An employer may direct an IW to start work at an alternate location without creating a special mission. Evans v. Ill. Employers Ins. of Wausau, 790 S.W.2d 302 (Tex. 1990); APD 020211. An employer may direct an IW to start work at an earlier or later time without creating a special mission. APD 950361. A Saturday basketball practice scheduled by the IW is not a special mission. Newsom v. Ballinger Indep. Sch. Dist., No. 03-07-00022-CV, 2007 Tex. App. LEXIS 5690 (Austin, July 17, 2007, no pet.)(mem. op.). Whether the IW was on a special mission at the time of the injury presents a question of fact for the HO to resolve. APD 021238.

The IW went to work at a job site, but could not work that day due to rain. Rather than return home, the IW elected to go to a different job site to pick up his pay check. On the way to the second job site, he was injured in a MVA. The HO found that the IW was not on a special mission, and not in the course and scope of his employment at the time of the MVA as the IW was not directed to go to the employer's other job site to pick up his paycheck. Whether the IW was on a special mission presented a question of fact for the HO to resolve. APD 021238.

The IW (deceased) was a deputy sheriff and normally worked from 7:00 a.m. to 3:00 p.m., but was subject to varying assignments on a daily basis. On the evening prior to his death, the IW was called by his supervisor and told to report to work at a school zone earlier than he normally started work. On route to his assignment the IW was involved in a fatal MVA. The death was not compensable because the IW was merely going to an alternate work site at a different time. There was no evidence that the IW was performing any law enforcement activity at the time of the MVA. Whether the IW was on a special mission presented a question of fact for the HO to resolve. APD 950361.

Coming and Going Rule Distinguished. The IW was employed by a temporary staffing agency as an on-site trainer of office equipment. The staffing agency contracted with a company to supply on-site trainers for the client company's equipment. The IW worked out of her home using her own computer, internet service, and telephone. On the morning of the DOI, the IW logged onto her computer at approximately 8:30 a.m., received an assignment from the client company by e-mail, confirmed that e-mail, and contacted a supervisor at the client company. The IW also called a contact person at the location of her first assignment to confirm the appointment and to give the contact person some "phone training." Shortly after the IW left her home to go to her first assignment she was involved in a MVA. The regional sales manager for the staffing agency testified that the staffing agency billed for the IW's time anytime she was out training. The HO determined that the IW was not in the course and scope of employment because she was traveling from home to work at the time of the MVA. The AP reversed the HO and rendered a decision that the IW was in the course and scope of her employment. The AP noted that while the HO treated this case as a strict coming and going case, the great weight and preponderance of the evidence established that the IW had logged on to her computer, obtained her assignment, and had actually begun to work prior to the MVA. The AP further held that what the IW was doing at 9:05 a.m. on the DOI (driving to her first assignment) was an integral part of her employment, was an activity that originated with the employer's business, and therefore furthered the affairs or business of the employer. APD 050874-s.

Deviation. [Cross references: Dual Purpose Doctrine; Personal Comfort Doctrine, this section.] An injury is not compensable if it occurs during a deviation by the IW from the course and scope of employment, but after the deviation is over, injuries thereafter received are compensable. Gen. Ins. Corp. v. Wickersham, 235 S.W.2d 215 (Tex. Civ. App.-Fort Worth 1950, writ ref'd n.r.e.). A deviation occurs if at the time of the injury the IW is engaged in and pursuing personal work or objectives that do not further the employer's interest. An injury received under such circumstances is not from a hazard that has to do with and originates in the employer's business, work, trade or profession. Lesco Transp. Co., Inc. v. Campbell, 500 S.W.2d 238 (Tex. Civ. App.-Texarkana 1973, no writ). However, an injury arising from an activity that could also be experienced outside of work is not necessarily noncompensable for that fact alone. An IW injured while performing a work-related activity at the employer's premises does not assume the additional burden of proving that the activity causing the injury does not parallel an activity that could have occurred outside of employment, or that an underlying instability was not in some respect a cause of the accident. APD 012376-s. Whether an injury is not compensable due to a deviation is a question of fact for the HO to resolve. APD 041783.

In Course and Scope. The IW sustained his injuries when he was struck by a motorcycle while in his employer's parking lot. The IW was on a paid break, and the evidence reflected that it was common for employees to go outside on breaks. The IC asserted that the IW had deviated from his employment while being a spectator to a dangerous sport. The HO determined that the IW was merely looking at two motorcycles his co-workers had been riding; that the IW declined to ride; and that one of the IW's co-workers lost control of the motorcycle he was riding and struck the IW. The HO determined that the IW had not deviated from the course and scope of his employment. Whether the injury occurred during a deviation from the course and scope of employment presents a question of fact for the HO to resolve. APD 041783.

The IW participated in a blood drive held in a mobile unit just outside the employer's premises. After donating blood, the IW walked back into the employer's building, lost consciousness, and fell to the floor sustaining numerous injuries. In his discussion section the HO stated that "the dispositive question here is whether the actions of the [IW] in participating in the blood drive up to the time she logged back in at her workstation were a significant, not incidental, departure from the course and scope of her employment as to be a deviation from employment that made the injury non-compensable." The HO determined the IW was not in the course and scope of employment because she deviated from her employment and therefore did not sustain a compensable injury. The AP reversed and rendered a decision that the IW did sustain a compensable injury. The AP stated that the IW's deviation ended when she returned to the employer's premises before the fall occurred. APD 042922-s.

Not In Course and Scope. The IW was employed as a mechanic. The employer had a policy that allowed employees to purchase items from its building supply outlet for 10% over cost. While on the clock, the IW purchased 25 80-pound bags of concrete for his personal use. The IW planned to load the bags onto a pallet, transport them to his truck, and load them onto the truck. The IW was injured as he picked up one of the bags of concrete. The HO found the injury compensable and the AP reversed and rendered a decision that it was not compensable. The time it would have taken to load the bags onto the truck was a significant departure from the IW's duties and was a deviation from the course and scope of his employment. APD 010163-s.

Dual Purpose. An injury which occurs while the IW is traveling in the furtherance of the affairs or business of the employer and also in the furtherance of personal or private affairs is not compensable unless (1) the travel would have been made even had there been no personal or private affairs of the IW to be furthered, and (2) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel. Davis v. Argonaut Southwest Ins. Co., 464 S.W.2d 102 (Tex. 1971). This is commonly referred to as the dual purpose doctrine. Section 401.011(12)(B). The IW has the burden to prove both elements of the test in order to establish compensability. Whether an injury is compensable under the dual purpose doctrine presents a question of fact for the HO to resolve. APD 031099.

In Course and Scope. The IW was employed as an insurance agent. He made a noon business appointment outside of his assigned area or "agency." At some point during the trip, the IW intended to go to his home to check on a sick child. The IW left his agency at approximately 11:00 and stopped at a carwash to have his car washed. After leaving the carwash, the IW proceeded on a route that would take him both to his home and to the location of his appointment. Prior to reaching a point where he would have to turn one way or the other, depending on if he was going home or to the appointment, the IW was involved in a MVA. The IW testified that at the time of the MVA, he was headed to the business appointment. After the police report was filled out, the IW decided to go home settle himself, check on the child, and to see if the appointment was still on for noon. The HO determined that the IW was in the course and scope of his employment at the time of the MVA because (1) the trip to the location of the MVA would have occurred even if the IW had no intention of going home, and (2) the IW would not have made the trip to the location of the MVA had he not had a business appointment. Whether the injury was compensable under the dual purpose doctrine presented a question of fact for the HO to resolve. APD 93667.

Not In Course and Scope. The IW was a secretary and also did some cleaning tasks for the employer. On April 1, the employer asked the injured worker to buy two cans of cleanser "the next time she was in town." On April 2, the IW withdrew cash from petty cash because she thought that she may do some shopping that evening. She did not. On April 3, the IW left the office for lunch and headed for town. The IW was involved in a MVA while on her way to town. The IW testified that the reason she was going to town was so she could buy the cleanser, and that while she was there she was going to have lunch. The IW testified that if she was not going to buy the cleanser, she would not have gone to town. A co-worker testified that when the IW left, she said she was going around the corner to get cigarettes, but did not mention anything about going to buy cleanser. The IW's supervisor testified that there was no urgency for the cleanser; that he did not expect the IW to make a special trip for such an inexpensive item; that the IW never indicated that she was going to purchase the cleanser on the DOI; that the IW sometimes went to town to eat lunch; and that the IW almost never stayed at the office for lunch. The HO determined that the injury was not compensable because the IW would not have made the trip had there been no personal or private affairs to be furthered by the trip and that the IW would not have made the trip to the injury site solely to buy two cans of cleanser for the employer. Whether the injury was compensable under the dual purpose doctrine presented a question of fact for the HO to resolve. APD 92026.

Emergency/Rescue Doctrine. An injury which occurs as a result of an emergency may be compensable, even if the injurious activity was not part of the IW's defined job duties. It is not necessary that an IW should have been at the time discharging some specific duty required by the employment, but it is sufficient that the IW was at the time of the injury engaged in doing something incidental to the employment. The Act does not require that the injury be inflicted during work hours or within the zone of the labor to be performed. It is only required that the injury occur during the IW's course of employment, and that it be incident thereto or growing out of the IW's employment. Hartford Accident & Indem. Co. v. Frye, 55 S.W.2d 1092 (Tex. Civ. App.-Amarillo, 1932, writ dism'd). Whether an injury is compensable under the emergency/rescue doctrine presents a question of fact for the HO to resolve. APD 992468.

In Course and Scope. The IW was employed as a clerk in the employer's security department. The IW wore a security uniform, and on occasion worked as a backup parking attendant in the employer's garage. On the DOI, the IW was performing her duties as a clerk when she received a call from the parking attendant who indicated that someone was trying to remove her car from the garage. The IW told the attendant to hold the car at the gate, and that she was on her way to the garage. On the way to the garage, the IW fell and injured herself. It was determined that the car in question was not the IW's. The HO determined that the injury was compensable because the IW had the implied permission of the employer to check on the reported theft of her car. The IW was advancing the work of the employer in maintaining a safe and secure parking facility as well as investigating the theft of her car. The IW acted in a manner which was reasonable and necessary to respond to an emergency and advance the work of the employer. Whether an injury is compensable under the emergency/rescue doctrine is a question of fact for the HO to resolve. APD 93271.

Not In Course and Scope. The IW was employed as a school teacher. The DOI was the last day of the school year and there were no students in the building. Neither the principal nor assistant principal were at the school when the MVA occurred. While in the lounge, the IW heard a screeching so she went out to the parking lot to investigate. The IW saw that a fellow teacher had been involved in a MVA and that the fellow teacher was not conscious so 911 was called. After the teacher had been removed from her car, the IW grabbed the teacher's purse and got into the cab of the ambulance to accompany her to the hospital. While getting out of the ambulance at the hospital, the IW injured her back. The HO determined that the IW's back injury was not compensable because the IW was not requested to accompany the co-worker to the hospital by any supervisor; the IW deserted her employment when she left to go to the hospital; the IW rendered no medical care to the co-worker at the scene and any emergency involvement for the IW ended when the ambulance arrived; the IW was not furthering the affairs or interests of the employer when she went to the hospital; and as such, the IW was not in the course and scope of her employment at the time she sustained her injury. Whether an injury is compensable under the emergency/rescue doctrine is a question of fact for the HO to resolve. APD 992468.

Horseplay. [Cross reference. Not in Course and Scope Because of Other Grounds (C10)]. Section 406.032(2) provides that an IC is not liable for compensation if the IW's horseplay was a producing cause of the injury. Horseplay is considered the producing cause of an injury where there is an unbroken chain of events showing that the horseplay did not cease before the injury, where the injured party participated in the horseplay, and where the horseplay was an active and not an outside force causing the injury. See United Gen. Ins. Exch. v. Brown, 628 S.W.2d 505 (Tex. App.-Amarillo 1982, no writ); APD 91029. If an IW willingly engages in an act of horseplay which results in injury to the IW, then the horseplay is a deviation from the IW's course of employment. See Calhoun v. Hill, 607 S.W.2d 951 (Tex. Civ. App.-Eastland 1980, no writ) and APD 022324.

Although not defined by the Act and the Division rules, horseplay involves "rough and boisterous play," "pranks," "fooling," or "friendly attacks," which take the IW out of the course and scope of employment. APD 982732; APD 982250. Whether the conduct in which an IW was engaged at the time of the injury was horseplay is a question of fact for the HO to resolve. APD 93013.

Evidence of Horseplay. IW's job did not involve chopping boards. He injured his wrist at work chopping a board with a Karate chop. That was found to be horseplay. APD 92072.

Not Evidence of Horseplay. A non-participating victim of horseplay may recover compensation for injuries sustained as a result of the horseplay of others. APD 92536.

Idiopathic Falls. The causal link between the injury and the employment will be established if an idiopathic fall would not have carried the consequences it did except for the employment, and the accidental injuries may therefore be found to arise out of the employment. See Garcia v. Texas Indem. Ins. Co., 209 S.W.2d 333 (Tex. 1948). An attempted distinction between cases in which the IW falls into a hole, against an object, or from a ladder as opposed to cases in which the IW falls to the ground or floor is without a reasonable basis. See Gen. Ins. Corp. v. Wickersham, 235 S.W.2d 215 (Tex. Civ. App.-Fort Worth 1950, writ ref'd n.r.e.). An instrumentality of the employer does not have to cause the fall; the fall can be due to an idiopathic condition. APD 051610-s.

Compensable Idiopathic Fall. The IW worked as a truck driver for the employer. On the DOI the IW drove the employer's truck to the place of business of an employer's customer to pick up a load. The IW parked the truck, walked across the parking lot to a security guard for admittance into another parking lot, and as he was walking back to the truck the IW fell, striking his body on the pavement of the parking lot. The IW could not recall falling down or why he had fallen. The HO found that the IW was in the course and scope of his employment when he sustained the injuries but determined the IW did not sustain a compensable injury because he found that the IW's injuries were not a result of any instrumentality of the workplace. The AP reversed and rendered a new decision that the IW sustained a compensable injury. The AP examined several Texas court cases and APDs and stated that an instrumentality of the employer does not have to cause the fall, the fall can be due to an idiopathic condition. The AP found that the HO misapplied the law in determining the IW's injuries were not a result of any instrumentality of the workplace, noting that the IW was at the customer's location performing a work activity and that the customer's paved parking lot was part of the conditions and environment of the IW's employment. The AP stated that falling against the customer's paved parking lot was a hazard to which the IW was exposed because of his employment and it did not matter that the fall may have been from a syncopal episode as found by the HO. APD 051610-s.

Intoxication. [Cross references: Alcohol Intoxication (C08); Drug Intoxication (C09)]. An injury which occurs in the course and scope of employment is not compensable if at the time of the injury, the IW was intoxicated. Section 406.032(1)(A). The intoxication exception does not require a causal connection between the injury and the employee's intoxication and serves as an absolute exception to liability, regardless of the cause of injury. See Tex. Indem. Ins. Co. v. Dill, 42 S.W.2d 1059 (Tex. App.-Eastland 1931), aff'd 63 S.W.2d 1016 (Tex. Comm'n App. 1933). Whether or not an IW was intoxicated at the time of the injury is a question of fact for the HO to decide. APD 002818.

Intoxication may be found due to the ingestion of alcohol or drugs. Therefore, this topic is divided into two sections; the first is alcohol intoxication and second is drug intoxication.

Alcohol Intoxication. [Cross reference: Alcohol Intoxication (C08)]. There are two definitions of alcohol intoxication under the Act. Under the first definition, intoxication is defined as having an alcohol concentration to qualify as intoxicated under Section 49.01, Penal Code. Section 401.013(a)(1). Under the second definition, intoxication is defined as the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage, as defined by Section 1.04 of the Texas Alcoholic Beverage Code. Section 401.013(a)(2)(A). When an IC seeks to establish an IW was intoxicated due to alcohol, the IC must provide evidence of either (1) alcohol concentration of .08 or more, or (2) the lack of normal use of mental and physical faculties. Once an IC establishes an IW had an alcohol concentration of .08 or more, by definition the IW was intoxicated. Sanchez v. State Office of Risk Mgmt., 234 S.W.3d 96 (Tex. App.-El Paso 2007, no pet.). A finding that the IW was intoxicated at the time of the claimed injury under either definition will relieve the IC from liability and make the injury non-compensable. Section 406.032(1)(A). The IW is presumed to be sober at the time of the injury. Bender v. Fed. Underwriters Exch., 133 S.W.2d 214, (Tex.Civ.App.-Eastland, 1939, writ dism'd judgm't correct).

Affirmative Defense. Alcohol intoxication is an affirmative defense raised by an IC to contest the compensability of a claimed injury. An IC that fails to properly raise intoxication as a specific issue and defense to course and scope and/or compensability at the administrative level waives the right to do so in the future. [Cross reference: Issue not previously raised (P02)].

The IC failed to raise intoxication as a defense at the BRC, CCH, and appeal to the AP. The IC sought judicial review and attempted to assert an intoxication defense in district court. The trial court refused to allow evidence of intoxication because the IC had not properly raised the issue at the administrative level. The IC appealed to the court of appeals. The court of appeals ruled as follows:

We hold that the defense of intoxication must be raised by the employer in the administrative review process in order to preserve the issue for appeal to the trial court. In this case, ESIS failed to raise the defense of intoxication at any stage of the administrative review process. As a result, the defense was waived, and the trial court was barred from adjudicating the issue on appeal. Therefore, we hold that the trial court did not abuse its discretion in refusing to introduce evidence on the defensive issue of Johnson's intoxication. ESIS, Inc. Servicing Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.-Fort Worth 1995, writ denied).

Burden of Proof. When an IC properly raises the defense of alcohol intoxication, there is a "shifting burden of proof." Since the IW is presumed to have been sober at the time the injury occurred, the initial burden is on the IC to present evidence that the IW was in a state of intoxication due to the IW's voluntary introduction into the body of an alcoholic beverage. When the IC presents "probative evidence" of alcohol intoxication to rebut the presumption of sobriety, then the IW has the burden to prove that he or she was not intoxicated at the time of the injury. March v. Victoria Lloyds Ins. Co., 773 S.W.2d 785 (Tex. Civ. App-Fort Worth 1989, writ denied).

Sufficient Evidence to Shift the Burden of Proof of Sobriety. An extrapolation of a blood-alcohol concentration can be sufficient evidence to shift the burden of proof to the IW to prove that he was not intoxicated from the voluntary introduction into the body of alcohol. APD 002818. A test revealing a blood alcohol concentration which is less than that provided for in Penal Code Section 49.01(2), along with other evidence, may be sufficient to shift the burden of proof regarding sobriety to the IW. APD 982483.

Not Sufficient Evidence to Shift The Burden Of Proof Of Sobriety. An IW's refusal to submit to a drug or alcohol test does not shift the burden of proof on the issue of intoxication as a matter of law. That is not to say that a HO is precluded from finding, in light of all of the evidence presented, that the IW's refusal to submit to testing could be sufficient to overcome the presumption of sobriety. APD 033057.

Intoxicated From The Consumption Of Alcohol: As A Matter Of Law. An IW who tests at or above the legal limit for alcohol concentration at the time of the claimed injury is intoxicated for purposes of the Act as a matter of law.

For claims based on a compensable injury that occurs on or after September 1, 1999, Section 401.013(a)(1), provides an alcohol concentration meeting the stated limit contained in Penal Code Section 49.01(2) (currently 0.08 or more) is by definition intoxication, and there need be no further analysis of whether the IW had the "normal use" of his faculties. APD 042113

For claims based on a compensable injury that occurs before September 1, 1999, intoxication is defined in Section 401.013(a)(1) as having an alcohol concentration as defined by Section 49.01 of the Texas Penal Code, of 0.10 or more.

In such a case, an IW would still remain free to try to prove that the tested level was inaccurate or that the tested concentration was impacted by some other condition or medication (excessive blood loss or analgesic medications, for example). APD 022407 and APD 011341.

Intoxicated From The Consumption Of Alcohol: Not As A Matter Of Law. There are many cases in which the IC asserts that the claimed injury is not compensable based upon the affirmative defense of alcohol intoxication. Often, the IC asserts that the IW was intoxicated from the voluntary consumption of alcohol at the time the injury occurred, but the testing upon which the IC relies was not performed until some time after the injury occurred.

This is not unusual in that most employers do not have the equipment or expertise to administer proper testing on the premises and immediately following a claimed injury. As such, the test may not have been administered until hours or days after the alleged injury. In these cases, either the IW's blood alcohol concentration may be too low to make a determination that the IW was intoxicated as a matter of law at the time of the injury, or so much time has elapsed that the blood alcohol concentration level could have occurred due to post-injury consumption of alcohol.

In such situations, the IC may present other evidence to show that at the time the claimed injury occurred, the IW did not have the normal use of his or her mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage.

In cases where the evidence fails to establish that at the time of the claimed injury, the IW was intoxicated as a matter of law due to the voluntary consumption of alcohol, but there is sufficient evidence to shift the burden of proving sobriety over to the IW, the issue of intoxication at the time of the claimed injury becomes a question of fact for the HO.

Evidence That IW Was Intoxicated From Alcohol. The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is not compensable because the IW was intoxicated from the consumption of alcohol at the time the injury was sustained. For each of these fact circumstances there are cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

It was undisputed that the IW was injured "while doing his job." The IW testified that the evening prior to the injury, he ate dinner, consumed 6-8 beers, and went to bed around 10:00 p.m. The following morning, the IW went to work and had been doing his job for at least two hours without incident when he sustained his injury at approximately 9:30 a.m. The IW was taken to the ER and a blood-alcohol test performed at 10:48 a.m. showed a blood alcohol level of 0.069. The IC presented expert testimony regarding the normal metabolism rate for alcohol by the liver. By using extrapolation, the IC's expert testified that the IW's blood alcohol level at the time of the injury was between 0.084 and 0.089, and that in reasonable medical probability the IW was intoxicated at the time of the injury. The IW testified that he was not intoxicated, and presented statements from coworkers to support that assertion. While the blood test failed to establish that the IW was intoxicated as a matter of law, the HO chose to give greater weight to the IC's evidence and determined that the injury occurred while the IW was in a state of intoxication. Whether or not the IW had the normal use of his mental and physical faculties at the time of the injury was a question of fact for the HO to resolve. APD 002818.

The IW was injured in an MVA. IW testified that the evening before he was injured, he drank one 24-ounce can of beer and part of a second, and then went to bed around 10:30 p.m.; that he arrived at the employer's yard around 6:00 a.m. the following morning and commenced his duties as a delivery driver; that about 45 minutes into the drive he pulled over to sleep for a while; that he recalled resuming the drive; and that he had no recollection of the MVA. The hospital records indicated a "heavy odor of alcohol" and the airlift report indicated that alcohol was a possible contributing factor. The ER blood-alcohol test indicated the IW's blood alcohol concentration was 0.015. The IC's expert extrapolated the IW's blood alcohol level at the time of the injury to be 0.045 on the low end, 0.067 in the middle, and 0.115 at the high end. The IC conceded that the IW's blood alcohol concentration at the time of the accident was not high enough to meet the presumptive level for alcohol intoxication, but asserted that the evidence did show that the IW did not have the normal use of his mental or physical faculties. Based upon the evidence, the HO made a factual determination that the injury was not compensable because it occurred while the IW was in a state of intoxication. APD 010982.

Evidence That The IW Was Not Intoxicated From Alcohol. The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is compensable because the IW was not intoxicated from the consumption of alcohol at the time the injury was sustained. For each of these fact circumstances there are cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

IW testified that around 9:00 p.m. his employer contacted him and told him they wanted him for a long-term job; that the IW informed the employer that he had been drinking and didn't want to go to work; that the employer said that was alright and not to drink anymore; that he was picked up and taken to the employer's drilling rig; that he started working at 11:00 p.m. that night; and that at 1:45 a.m. (2 hours and 45 minutes later) he sustained his injuries. The IW testified that the employer's safety man arrived at the scene around 5:00 a.m.; asked the IW to give a urine sample in a clear plastic bag; that the bag was placed in the safety man's truck; that the IW was taken to one hospital and then to a second where he arrived about 9:00 a.m.; and that the bag with the urine sample was still in the truck when he arrived at the second hospital. The individual that hired the IW for the job presented an affidavit that stated he contacted the IW regarding the job at about 8:45 p.m.; that the IW said he had drank three or four beers; that the IW was told not to drink anymore and was picked up and taken to the work site; that he was with the IW from the time he picked the IW up until the time of the accident; and that he believed the IW had the normal use of his mental and physical faculties and was not in any way impaired from the time the IW was picked up until the time of the accident. Another co-worker also submitted an affidavit stating that the IW had the normal use of his mental and physical faculties, and the IW was in no way impaired. The IC presented evidence from a toxicologist who reviewed the drug test results and concluded that at the time of the injury, the IW's blood alcohol concentration was from 0.155 to 0.168 and that the IW was legally intoxicated. The urine sample tested was stated to have been in a sealed specimen bottle. The HO determined that the IW was not intoxicated at the time of the injury and was skeptical of the validity of the drug test because she believed the IW when he said he gave the sample in a bag. APD 000582.

The IW was injured when he fell from a scaffold. A blood sample was collected approximately two hours and fifteen minutes after the fall at the ER. The blood test revealed that the IW had a blood alcohol level of 0.061. The IC presented evidence from a toxicologist who stated the normal metabolism rate for alcohol by the liver is about .015 to .020 gm/dl/hour. The toxicologist did not perform a retrograde extrapolation to determine the IW's blood alcohol level at the time of injury because the toxicologist did not know how much time had passed between the injury and the taking of the sample. The IC argued that the HO should have done the extrapolation on his own. The HO declined to do so and this was not error because in evaluating the reliability of a retrograde extrapolation the fact finder can consider whether several factors were considered, including weight, gender, typical drinking pattern and tolerance for alcohol, how much the person drank, and what and when the person had to eat. Based upon the IW's testimony, and that of his supervisor, the HO was likewise not persuaded that the IW did not have the normal use of his mental and physical faculties. These were questions of fact for the HO to resolve. APD 032338.

Drug Intoxication. [Cross reference: Drug Intoxication (C09)]. Intoxication is defined as not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code; a dangerous drug as defined by Section 483.001, Health and Safety Code; an abusable glue or aerosol paint as defined by Section 485.001, Health and Safety Code; or any similar substance, the use of which is regulated under state law. Section 401.013(a)(2).

Drug intoxication does not include intoxication from drugs taken in accordance with and as prescribed for the IW by the IW's doctor, and drug intoxication does not include inhalation or absorption of drugs incidental to the IW's work. Section 401.013(b)(1) and (2).

If there is a blood test or urinalysis in evidence showing the presence of a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code, the IW is presumed to have been intoxicated at the time of the injury and does not have the normal use of mental or physical faculties. Section 401.013(c). Otherwise, the IW is presumed to have been sober at the time of the injury. By creating the statutory presumption in Section 401.013(c), the Texas Legislature codified former case law. See Tex. Mut. Ins. Co. v. Havard, No. 01-07-00268-CV, 2008 Tex. App. LEXIS 1614 (Houston, March 6, 2008, no pet.)(mem. op.). The IW's refusal to take a drug test does not as a matter of law rebut the presumption of sobriety. APD 033057.

Affirmative Defense. As with alcohol intoxication, drug intoxication is an affirmative defense raised by an IC to contest the compensability of a claimed injury. Section 406.032(1)(A) provides that an IC is not liable for compensation if the injury occurred while the IW was in a state of intoxication.

Burden Of Proof. When an IC properly raises the defense of drug intoxication based on a blood test or urinalysis in evidence showing the presence of a controlled substance or controlled substance analogue, as defined by Section 481.002 of the Health and Safety Code, the burden of proof then shifts to the IW to prove the IW had normal use of his or her mental or physical faculties. Section 401.013(c).

Section 401.013, as amended, effective September 1, 2005, does not require that the rebuttable presumption of intoxication of Section 401.013(c) can only be rebutted by expert scientific or medical evidence and the AP declined to establish such a requirement. However, under the facts of 062507-s, the IW's one-line statement that he was not intoxicated did not overcome the rebuttable presumption of intoxication established by the positive drug screen. It was error for the HO to apply a "common knowledge" standard on the metabolism rate of methamphetamine and to fail to comment or make findings on the rebuttable presumption of intoxication based on the positive amphetamine test result. APD 062507-s.

The HO erred in applying a "presumption of sobriety" standard, rather than a rebuttable presumption of intoxication standard, once a positive drug screen for marijuana was admitted into evidence. The HO applied the wrong legal standard to determine whether the IW was in a state of intoxication at the time of the claimed injury. This was legal error. APD 071008.

In Am. Interstate Ins. Co. v. Hinson, 172 S.W. 3d 108 (Tex. App.-Beaumont 2005, pet. denied) the jury found the IW was not intoxicated at the time of the injury, which occurred prior to the enactment of Section 401.013(c), despite a drug test showing the IW tested positive for marijuana and an expert's testimony that the IW was intoxicated at the time of injury. The Court of Appeals upheld the jury's verdict, explaining that the expert's testimony was not binding on the jury, and that circumstantial evidence that the IW behaved normally is some evidence that he was not intoxicated.

Repetitive Trauma Injuries. [Cross reference: Compensability/Occupational Disease (C14)]. The IW sustained a repetitive trauma injury over a period of time with a DOI of September 11. The IC presented evidence that the IW may have been intoxicated on September 12, the date of the drug test. The HO correctly determined that the IW was not intoxicated and that the IC did not present sufficient evidence to rebut the presumption that the IW was sober because there was only evidence of intoxication on one day and the injury occurred over a period of time, not on a single day. APD 023060-s.

Personal Animosity Doctrine. [Cross reference: Act of a Third Party/Personal Reasons (C12)]. An injury is not compensable if it was caused by an act of a third person intended to injure the IW because of a personal reason and not directed at the IW in his or her capacity as an employee or because of the employment. Section 406.032(1)(C). The purpose of the exception is to exclude from coverage under the Act, injuries resulting from a dispute which has been transported into the place of employment from the IW's private or domestic life. However, if the conditions of employment worsen or are factors contributing to the event that causes the injury, the injury is compensable. Nasser v. Security Ins. Co., 724 S.W.2d 17 (Tex. 1987).

Burden Of Proof. The IC has the initial burden of proof when asserting this affirmative defense. Once the IC produces probative evidence that the IW's injuries were caused due to personal reasons unrelated to the employment, the IW has the burden to establish by a preponderance of the evidence that the injuries were caused due to his or her capacity as an employee or because of the employment. APD 971538. Whether such an injury is compensable is a question of fact for the HO to resolve. APD 971051.

Personal Animosity Found. The IW and coworker A had a history of arguments from other jobs and problems working together. On the morning of the DOI, the IW was upset with the coworker because he had incorrectly placed a tub too close to where the IW needed to work. A second coworker moved the tub for the IW. At some point after that, the IW challenged coworker A to a fight, but no fight occurred at that time. The IW and coworker A continued to have words with each other. The IW testified that he returned to work and coworker A struck him in the head with a hammer. Other testimony reflected that the IW and coworker A continued to taunt each other and then went outside where coworker A struck the IW with a hammer. Both the IW and coworker A ran to the IW's car (where the IW had a gun); coworker A got there first; and the IW was shot in the foot. The HO determined that the IW's injuries were not compensable because they were caused by the long-standing ill feelings between the IW and coworker A, and had nothing to do with the employment. The determination of whether the injury was caused by personal animosity, and unrelated to the employment, presented a question of fact for the HO to resolve. APD 001802.

Personal Animosity Not Found. Several nurses alleged that a doctor had sexually harassed them while at work and brought suit against their hospital employer. However, the court found that the nurses' problems with the doctor were not transported into the workplace from their private or domestic lives; rather, their problems with the doctor only occurred while at work in the hospital. The hospital was the exclusive setting for the doctor's harassment of the nurses. The personal animosity exception did not apply. Walls Reg. Hosp. v. Bomar, 9 S.W.3d 805 (Tex. 1999).

The IW was harassed by coworkers. The injury was sustained when the IW had a fight with one of the coworkers that had harassed him. The HO determined that there was no relationship or contact between the IW and any of the harassing coworkers other than at the workplace during work hours. The HO determined that the injury was compensable and that the personal animosity exception did not apply. The determination of whether the injury was not caused by personal animosity, and was related to the employment, presented a question of fact for the HO to resolve. APD 011962-s.

Personal Comfort Doctrine. To be compensable, an injury does not have to occur while the IW is actually performing work or some duty for the employer. Such an injury may be found compensable if it occurred while the IW was engaged in an activity to administer to his or her "personal comfort." The Supreme Court of Texas has described the "personal comfort" doctrine in the following terms:

An employee need not have been engaged in the discharge of any specific duty incident to his employment; rather an employee in the course of his employment may perform acts of a personal nature that a person might reasonably do for his health and comfort, such as quenching thirst or relieving hunger; such acts are considered incidental to the employee's service and the injuries sustained while doing so arise in the course and scope of his employment. Yeldell v. Holiday Hills Ret. and Nursing Ctr., Inc., 701 S.W.2d 243, 245 (Tex. 1985).

Whether an injury is compensable under this exception is a question of fact for the HO to resolve. APD 012957.

Personal Comfort Doctrine Applied. The IW was on her break and on her way to her car when her knee twisted as she was going down a set of stairs on the outside of the employer's building. At the time of the injury, the IW was going to check her car to determine if she would need to have a coworker help start the car after work. The AP reversed the HO and rendered a decision that the IW's injury was compensable explaining that an act reasonably anticipated to be performed by an employee, performed while on the employer's premises, and that does not deviate from the course and scope of employment to the extent that an intent to abandon employment can be inferred, remains within the course and scope of employment. APD 001700.

The IW worked as a customer service representative. On the DOI, the IW ate lunch in the building where she worked, and afterwards decided to take a walk on a sidewalk which ran through the employer's campus during the remainder of her break. The employer allowed taking such walks during breaks. While on her walk, the IW fell and sustained an injury. The HO determined that the injury was compensable because the IW was injured while walking for health and recreation while on a scheduled break; she was on a sidewalk that was either part of or directly adjacent to the employer's premises; and such walks were permitted, and even encouraged by the employer. Whether an injury is compensable under the personal comfort doctrine is a question of fact for the HO to resolve. APD 010564.

Personal Comfort Doctrine Did Not Apply. The IW was employed making golf clubs. The evidence reflected that the IW regularly complained of neck pain by the end of the workday. The IW had fashioned a traction device which he hung over a door to help alleviate his pain. The IW was found over the noon hour by a coworker. The IW was hanging by the neck and was dead. There was no evidence presented to show that anyone at the work site was aware of the IW's use of the traction device. The HO determined that the death was not compensable because the IW's actions in using the self-made traction device to ease his pain was not reasonable. Whether an injury is compensable under the personal comfort doctrine is a question of fact for the HO to resolve. APD 971572.

Social Activity. Generally, an injury is not compensable if it arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the IW's work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employer. Section 406.032(1)(D). Such an injury is compensable if (1) participation in the activity is expressly or impliedly required by the employer; or (2) the employer derives some benefit from the activity, other than the health or morale of the IW; or (3) where the injury takes place at the place or immediate vicinity of employment while the IW is required to hold himself or herself in readiness for work, and the activity takes place with the employer's express or implied permission. Mersch v. Zurich Ins. Co., 781 S.W.2d 447 (Tex. App.-Fort Worth 1989, writ den'd). If the IW establishes that any one of the above three factors was present at the time of the injury, the injury is compensable. APD 000062. Whether the IW's injury is compensable under one of the three factors is a question of fact for the HO to resolve. APD 971330.

Injury Found Compensable. It is undisputed that the IW was injured while attending a mandatory company picnic. The injury occurred when the IW fell while playing volleyball. The IC asserted that while the IW's attendance at the picnic was mandatory, his participation in the volleyball game was not. The HO determined that the IW's injury is compensable because attendance at the picnic was mandatory. The HO declined to carve the picnic up into individual activities. Whether the IW was injured during a required social activity was a question of fact for the HO to resolve. APD 000621.

Injury Not Found Compensable. The IW was injured at home while lifting a cooler of meat for the company picnic into her car. The IW testified that she felt she was required to participate in the preparation for the picnic. The IW felt the requirement was implied and that even though she had a choice of whether to participate, she felt to keep up good relations with her boss and to maintain company morale she really had no choice. The IW's boss testified that the IW's participation in the preparations was entirely voluntary. The HO determined that the injury is not compensable because it occurred while the IW was voluntarily participating in an off duty social activity. Whether the IW's participation in the preparations was voluntary or impliedly required was a question of fact for the HO to resolve. APD 971330.

Travel. Generally, an IW engaged in business travel, such as a special mission, does not go into and out of the course and scope of employment while on the special mission. This is sometimes referred to as the principle of continuous coverage. Aetna Cas. & Sur. Co. v. 0rgon, 721 S.W.2d 572 (Tex. App.-Austin 1986, writ ref'd n.r.e.). The IW remains in the course and scope of employment for the duration of the special mission unless there has been a deviation from or abandonment of the course and scope of employment. APD 050051. This type of travel is to be distinguished from the usual coming to and going from work and cases involving starting work at an alternate location.

Injury Found Compensable. The IW was employed as a flight attendant. While staying at a hotel during a layover, the IW sustained multiple insect bites. The IW testified that while her employer did not require that she stay at the hotel she chose, it was the only hotel her employer would reimburse her for. The IW was paid for the time she was on her layover, and had to make herself available to the employer in the event of a schedule change. The HO determined that the injury was compensable because staying in the hotel room was necessitated by the IW's job. Whether the injury was sustained in the course and scope of the IW's employment was a question of fact for the HO to resolve. APD 980924.

Injury Found Not Compensable. The IW was employed as a flight attendant. The IW had a layover in El Paso. The IW and two coworkers decided to go across to Mexico for dinner. The IW and her coworkers next purchased a camera and some alcoholic beverages, and then went to a scenic overlook. The IW got up on the wall at the overlook to pose for a picture. She lost her balance and fell to the concrete 15 to 18 feet below and sustained an injury. The IW made no assertion and gave no explanation as to (1) how driving to the scenic overlook and posing for a picture on top of the barrier wall somehow constituted an activity which originated in or had to do with her employer's business; (2) how she was furthering the business or affairs of her employer at the time of the injury; or (3) how her accident resulted from a risk or hazard reasonably inherent in or incidental to her employment. The HO determined that the IW did not sustain a compensable injury. Whether the injury was sustained in the course and scope of the IW's employment presented a question of fact for the HO to resolve. APD 960313.

Temporary Direction. An injury may be compensable even if it occurs while the IW is performing duties outside of the usual course and scope of the employer's business. An IW employed in the usual course and scope of the employer's business who is directed by the employer to temporarily perform services outside the usual course and scope of the employer's business is still an "employee" for purposes of the Act. Section 401.012(b)(1). This is commonly referred to as the "temporary direction" exception. The Supreme Court of Texas discussed the temporary direction exception in Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624 (Tex. 1981).

The IW was a clerk employed by a law firm. The IW performed, at the direction of the principal attorney, his two associates, and the other law firm employees, numerous personal errands. The evidence reflected that the IW, at the direction of one of the associates, routinely collected rent and made repairs on an apartment building owned by the associate. The IW turned in his hours for doing these outside duties to the law firm's bookkeeper. The IW was paid for this time by the law firm. The IW testified that he was sure that the principal attorney was aware of the work he was doing for the other employees because the principal attorney often made comments about it and the IW was paid for the outside work from the law firm account. The IW testified that to him, everyone at the law firm was the boss. The principal attorney denied that he knew he was paying the IW for the outside work performed for the associate and other employees. The IW was injured when he fell from the roof of the associate's apartment building while making repairs.

The jury determined that the IW was in the course and scope of his employment at the time of his injury.

The court of appeals reversed the jury verdict and determined that the temporary direction exception did not apply to this case because (1) the exception only applies to directions given by employers and the evidence was undisputed that the IW was directed to make the repairs by the associate, not the principal attorney; and (2) there was no testimony or testimonial inference that the associate's directions to the IW to repair the roof were given with the principal attorney's authority.

The Supreme Court reversed the court of appeals holding because there was evidence that the associate's use of the IW to perform his personal errands was within the limits of his apparent authority, the temporary direction exception applied to bring the IW within the course of his employment for purposes of workers' compensation. The Supreme Court noted:

Under this so-called "temporary direction" exception, if an employee is directed by his employer and is then injured, his injury is sustained in the course of his employment. In other words, an employee does not forfeit his workers' compensation coverage while acting in obedience to his employer's orders. [citation omitted]. The purpose underlying the enactment of the exception was to eliminate a dilemma that would otherwise face an employee when instructed to perform a task outside his employers' usual business, to-wit: either obey his employer and lose his compensation coverage or disobey his employer and lose his job...

[T]he exception also applies to work ordered by a supervisor so long as the order is authorized by the employer, regardless of whether the order benefits the employer's business or is personal in nature…

Apparent authority is based on the doctrine of estoppel, and one seeking to charge the principal through apparent authority of an agent must establish conduct by the principal that would lead a reasonable prudent person to believe that the agent has the authority that he purports to exercise. [citation omitted]. When an agent acts within the scope of this apparent authority, the acts bind the principal as though the agent actually possessed such authority. [citation omitted]. Apparent authority provides authorization where the actual authority of the agent is lacking. Likewise, an employee should be allowed to rely on apparent authority to establish a supervisor's authority from the employer in order to bring his injury under the "temporary direction" exception, when actual authority on the part of the supervisor is lacking.

The Court concluded that under the facts of this case, there was some evidence that the associate had the apparent authority from the principal attorney to use the IW for personal errands including repairing the roof on the DOI. There was evidence that the principal attorney knew and acquiesced in the use of the IW by the associate and other employees for personal errands. The jury could have concluded that the principal attorney's conduct induced the IW to believe that the associate had the authority to use him for personal errands. The Court held that the IW was covered under the temporary direction exception.

Termination. An injury sustained by an IW at the IW's job site or while leaving the job site after the IW has been terminated (either by the IW's resignation or by being fired) is not an injury sustained in the course and scope of employment if the termination occurs in a place of safety and the IW is not subject to any inherent hazards arising from the employment itself. However, this is not true where an IW is required, or reasonably believes he or she is required, to remain at or return to the employer's premises for his or her final paycheck or to tend to some duty incidental to the termination. Bruno v. Trinity Universal Ins. Co. of Kan., No. 13-03-038-CV, 2004 Tex. App. LEXIS 11326 (Corpus Christi, December 16, 2004, no pet.)(mem. op.).

Walking. [Cross reference: Compensability/Injury (Existence) (C06)]. The IW was walking to a work meeting on the employer's premises when she experienced a pop in her right knee. The next day a doctor provided work injury diagnoses of a right knee strain and a tear of the calf muscle. The claimed injury was a specific injury, not a repetitive trauma injury. The HO determined that the IW did not sustain a compensable injury because the overwhelming evidence supported that the mechanism of injury was simply walking. The AP reversed and rendered a decision that the IW sustained a compensable injury. The injury occurred in the course and scope of employment and the injury arose from the employment. It was not necessary for the IW to prove that a pivot, twist, turn, or other type of untoward body motion occurred while walking to the work-related meeting to establish that the injury arose from the employment. In Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W.72 (1922), the Texas Supreme Court stated that "an injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business." The AP declined to follow APD 980631, which held that a claimed specific injury was not compensable under similar facts. APD 070284-s.

Violation Of Employer's Policy. 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).

The HO found that the IW 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 IW was aware of this policy. The HO determined the IW was not in the course and scope of employment and did not sustain a compensable injury because the IW'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 HO 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, the [IW's] injury is not compensable and the Self-Insured is not liable for compensation." The AP reversed and rendered a decision that the IW 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 IW from the course and scope of her employment. APD 080320-s.



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