E-Filed Document Nov 2 2015 20:06:38 2015-WC-00850-COA Pages: 15 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO. 2015-WC-00850-COA JAMES W. BENNETT Appellant v. MISSISSIPPI STATE DEPARTMENT OF HEALTH Appellee REPLY BRIEF OF APPELLANT JAMES W. BENNETT ORAL ARGUMENT REQUESTED ON APPEAL FROM THE MISSISSIPPI WORKERS COMPENSATION COMMISSION Submitted by Counsel for Appellant James W. Bennett: J. Peyton Randolph, II (MSB# 4620) Law Offices of J. Peyton Randolph, II 613 Steed Road Ridgeland, Mississippi 39157 TEL: 601.605.8537 FAX: 601.605.8539 peyton@jprii.com Rick D. Patt (MB #8747) PATT LAW FIRM, PLLC P.O. Box 70 Madison, MS 39130-0070 Telephone: 601.856.3834 Facsimile: 601.510.9045 rick@pattlawfirm.net
TABLE OF CONTENTS Table of Contents... i Table of Authorities... ii I. Introduction.....1 II. Reply to Appellee s Statement of the Case...1 A. Reply to Appellee s Procedural History...1 B. Reply to Appellee s Statement of Facts...2 III. Reply to Appellee s Summary of Argument...4 IV. Reply to Appellee s Standard of Review Section...4 V. Reply to Appellee s Argument...5 A. Reply to Appellee s Going-And-Coming Rule Section... 5 B. Reply to Appellee s Traveling Employees Section... 6 C. Reply to Appellee s Exceptions to the Going-And-Coming Rule Section...9 VI. Conclusion...11 Certificate of Service...12 i
TABLE OF AUTHORITIES Cases: Babcock & Wilcox Co. v. McClain, 149 So.2d 523 (Miss. 1963)......5 Bouldin v. Mississippi Dept. of Health, 1 So. 3d 890 (Miss.App. 2008)...6 Duke exrel Duke v. Parker Hannifin Corp, 925 So.2d 893 (Miss.App. 2005)......10 Hurdle and Son v. Holloway, 749 So.2d 342 (Miss.App. 1999)...6 Johnson v. Ferguson, 435 So.2d 1191 (Miss. 1983)...5 Lane v. Hartson-Kennedy Cabinet Top Company, 981 So.2d 1063 (Miss.App. 2008). 6, 7, 9, 10 Miss. Transp. Comm n v. Dewease, 691 So.2d 1007 (Miss. 1997)...5 Persons v. Stokes, 76 So.2d 517 (Miss. 1954)...6 Short v. Wilson Meat House, LLC, 36 So.3d 1247 (Miss. 2010).....4 Smith & Johnson, Inc. v. Eubanks, 374 So.2d 235 (Miss. 1979)..... 6 State Oil & Gas Bd. V. Miss. Mineral & Royalty Owner s Ass n, 258 So.2d 767 (Miss. 1971).........5 United States v. Harper, 450 F.2d 1032 (5 th Cir. 1971)......5 ii
I. INTRODUCTION I. As stated in the Brief of Appellant, the question in this case is whether the Mississippi Workers Compensation Commission (hereinafter Commission ) erred in its decision reversing the Order of the Administrative Law Judge that found that the Claimant James Bennett (hereinafter Appellant, Claimant, or Bennett ) was in the course and scope of his employment when he was injured in a motor vehicle accident on June 12, 2012, which Full Commission reversal had the effect of dismissing his claim under the workers compensation statutes of Mississippi. As set out in greater detail in the Brief of Appellant, Bennett requested this appellate court to determine whether this decision of the Full Commission that such injury was not compensable was supported by the substantial evidence, whether the Commission s decision was arbitrary and capricious, or if it was based on an erroneous interpretation of our State s laws. Due to the ruling of the Commission on this one issue, there are no other issues before this Court at this time, such as medical costs or compensation due under the statutory scheme. The ruling of the Commission was dispositive of all claims, and therefore the issue in this appeal will only concern whether this Court should uphold the Commission s ruling, or reverse and find that the Commission erred in finding that the Claimant was not a traveling employee and/or acting in the course and scope of his employment, and therefore remand to the Commission for a determination of benefits. II. REPLY TO APPELLEE S STATEMENT OF THE CASE A. Reply to Appellee s Procedural History In reviewing Section I of Appellee s Statement of the Case, concerning the Procedural History before the Commission (contained on p. 2 of Brief of Appellee), Appellant Bennett can 1
reply that this subsection of Appellee s Brief appears to correctly state the procedural history of the matter before the Commission, when combined with the procedural history as recounted by the Claimant in his Procedural History section in his Brief of Appellant. B. Reply to Appellee s Statement of Facts In reviewing Section II of Appellee s Statement of the Case, concerning the Statement of Facts (contained on pp. 2-5 of Brief of Appellee), Appellant would restate that, in his capacity as a Senior Systems Administrator (hereinafter SSA ), for the Department of Health, it is undisputed that employees in his position were required have a personal vehicle when hired (R. 36; R.E. 3) and that the employees could use the Employer s vehicles, if one was available, or they could simply use their own vehicles, for which they could get mileage for travel in the Jackson area. (R. 36; R.E. 3). On the day before the accident, the Claimant s supervisor, Mr. Staples, testified that he was aware that the Claimant was going to ride his motorcycle to work the next day, that the Claimant had told him the day before that he might have to change vehicles if there was a likelihood of rain, and that he knew that such computer equipment could not get wet. (R. 36; R.E. 3; Transcript, p. 18). Appellant would refer this Court to a fully-detailed Statement of Facts contained in the Brief of Appellant which would fully responds to the Statement of Facts set out in the Brief of Appellee, but Appellant would respond to certain points set out in the Brief of Appellee. On page 4 of the Brief of Appellee, Appellee sets out two underlined statements, that Claimant knew the day before what work orders he would be servicing on the day before, and the claim that he was aware that he needed to haul either a printer, PC, or more equipment to the job site. However, what is omitted is the fact that Appellant reported that morning to the BioTerrorism office for his work for that day. He actually testified that when he was done with 2
the laptop at the BioTerrorism Office, that it probably gone [sic] be a CPC [sic] and printer, but that he had to go back to the office to make sure that that was what I needed. (Transcript, p. 48). If he would not have finished at the BioTerrorism office that day, he would not have had to go on to the job in Canton. Once he left lunch, Claimant also testified that he needed to go back to the office to find out if the computer equipment needs had changed (Transcript, p. 52) and that he had seen the work order, but that it had been in his box for several weeks and he needed to see if it had changed. (Transcript, p. 53). He just knew, and his superior knew, that if it started to rain, he may have to change his vehicles to protect whatever equipment was needed from the rain. (Transcript, p. 46). Additionally, in the Brief of Appellee on pages 4-5, Appellee made the statement that the Claimant was not entitled to nor did he intend to seek reimbursement for the trip from Five Guys to his home and back to his original destination, the office. Although the Claimant testified that he was not going to plan to charge mileage reimbursement (to the taxpayers) for him going home to change vehicles, it is undisputed by all sides in this matter that he would be entitled to at least some mileage reimbursement if he would have made it back to the office (the mileage distance from the BioTerrorism Office back to his main office). As set out in fuller detail on pages 18-19 of the Brief of Appellant, this fact and his statement that he would not charge the State for the mileage back to his home does not change the fact that the Claimant was engaged in an activity within the course and scope of his employment at the time of the accident, the obtaining of a vehicle to properly protect the computer equipment belonging to the State. His statement about the mileage reimbursement was simply reflective of his desire not to charge the taxpayers for him having to go back to get a covered vehicle in order to protect the computer equipment from the rain. 3
III. REPLY TO APPELLEE S SUMMARY OF ARGUMENT In reply to Appellee s Summary of the Argument, Appellant would counter Appellee s argument that the trip home to swap vehicles was purely a personal errand which constituted a distinct departure from his State employment by repeating Claimant s assertions and the uncontradicted evidence that the only reason that the Claimant was traveling to his home to swap vehicles was that he had finished his main job that morning. Therefore he had time to go to Canton for another job, for which he would have to swap vehicles in order that State equipment that might be needed would not be damaged. He even informed his supervisor the day before that he may have to switch vehicles if it rained. Were he not concerned about protecting the potential State computer equipment from the rain, Claimant would have driven back to the office to check the work order, then gone to Canton on his motorcycle, as he had no concerns about just himself getting wet. (Transcript, pp. 34, 46). It was his desire to protect the equipment of the State which was the only reason that he was engaged in the travel which led to the accident, during which time he should be seen to be engaging in the activities conducted in the course and scope of his employment and for his employer s interest. IV. REPLY TO APPELLEE S STANDARD OF REVIEW SECTION In reply to the Standard of Review section set forth in the Brief of the Appellee, Appellant Bennett would not have a dispute with the caselaw citations set forth by the Appellee therein, and would refer also to the Standard of Review section contained in the Brief of Appellant for a full discussion of the substantial evidence standard, noting that [s]ubstantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred." Short v. Wilson Meat House, LLC, 36 So.3d 4
1247 ( 19) (Miss. 2010). (citing United States v. Harper, 450 F.2d 1032 (5th Cir.1971), quoting Johnson v. Ferguson, 435 So.2d 1191 (Miss.1983)); Babcock & Wilcox Co. v. McClain, 149 So.2d 523 (Miss.1963); State Oil & Gas Bd. v. Miss. Mineral & Royalty Owners Ass'n, 258 So.2d 767 (Miss.1971)). Additionally, as noted in the Brief of Appellant, "Workers' Compensation claims, and the laws that govern them, are to be construed broadly and liberally in favor of the claimant." Miss. Transp. Comm'n v. Dewease, 691 So.2d 1007, 1016 (Miss.1997). V. REPLY TO APPELLEE S ARGUMENT A. Reply to Appellee s Going-and-Coming Rule Section As set forth in the Brief of Appellant, the only issue before the appellate court is whether the ruling of the Mississippi Worker s Compensation Commission finding that the Claimant was not engaged in the course and scope of his employment at the time of the accident was in error, was not supported by substantial evidence, and was arbitrary and capricious, and/or an erroneous application of the existing law to the facts in this matter. Whether the Claimant was a traveling employee or a regular employee who was eligible for compensation under an exception to the going and coming exclusion, all hinge around one issue: whether substantial evidence supported the Commission s ruling that Claimant was engaged in a purely personal activity at the time of the injury, which thereby caused a distinct departure from employment so as to take him out of acting in the course of his employment. Appellee argued in the section of its Brief concerning the going-and-coming Rule, and the case citations in that section of Appellee s Brief support the general principal of law set forth in the Brief of Appellant and the key question to be determined in this case: whether the Claimant was on a distinct departure on a personal errand at the time of the accident. Appellant 5
agrees with the Appellee s citation of the law that in the case of an employee having a fixed place of employment, the employee generally assumes the hazards associated with going to and from the place of employment, and such injuries received during these times are generally not compensable under workers compensation. Lane v. Hartson-Kennedy Cabinet Top Company, 981 So.2d 1063, 1067-68 ( 12) (Miss. App. 2008) (citing Hurdle and Son v. Holloway, 749 So.2d 342, 348( 16) (Miss.Ct.App.1999)). Appellant had argued in his initial Brief that under both the general and traveling employee rule, if the employee engages in a personal activity or errand that constitutes an abandonment from the employer's business, an injury occurring during the abandonment is not compensable. Smith and Johnson, Inc. v. Eubanks, 374 So.2d 235, 237 (Miss. 1979); Persons v. Stokes, 222 Miss. at 486, 76 So.2d 517, 519 (Miss. 1954). If an employee turns aside from the employer's business, the employee has deviated from the course of employment, unless the deviation is so slight as to be considered insubstantial. Bouldin v. Mississippi Department of Health, 1 So.3d 890 ( 15) (Miss.App. 2008). B. Reply to Appellee s Traveling Employees Section Although Claimant did have a main office from which he worked, it was uncontradicted that he set his schedule and would many times go directly to and from the work sites from his home. He provided uncontradicted testimony that he sometimes would go to directly to a remote site at 5:30 a.m., and he has on occasion worked at a remote job site until 10:00 p.m., depending on what would need to be done. (Transcript, pp. 38-39). Appellee in its Brief (on page 9) stated that he was choosing to leave his home that morning and travel directly to the BioTerrorism Office which can only be characterized as a specified and identifiable workplace. However, this 6
location was just one of many offices to and from which the Claimant would have to travel, rather than his specified and identifiable workplace, and he could travel directly to and from there without going to his main office on Woodrow Wilson Drive in Jackson. Appellee went into detail concerning the Lane case, also cited in the Brief of Appellant, noting that Lane was a traveling employee while on a delivery route, but that when he returned to his home base and then went home to shower between shift he was subject to the general goingand-coming rule, unless he could meet one of the exceptions to the going-and-coming rule (discussed further in a subsequent section of this Reply Brief). Appellee even stated a listing of facts that Appellee felt supported the Order, to which Appellant would offer the following rebuttal: 1) Ability to use other vehicles: The Claimant put forth uncontradicted testimony it was easier and faster to use his personal vehicle, as it was allowed and the agency discouraged them from attempting to obtain a department vehicle at short notice. (Transcript, p. 39); 2), 3), 4) Claimant s purely discretionary decision to go home to switch vehicles: Claimant transporting a small tool bag to carry in pockets; and Automobile not required for transportation of equipment: All three of these facts were belied by the fact that the Claimant only went to his house to switch vehicles to protect present and future equipment from the rain, and it is speculation unsupported by evidence in the record that the hard drive he was carrying would be protected from the rain no matter its size. Claimant testified that if the weather did not change to threaten rain, he would have still been on the motorcycle, and he would not have gone home to change vehicles if it was just a matter of him getting wet, instead of the equipment. (Transcript, p. 46). In fact, he testified that it actually had started raining just before he had the accident. (Transcript, p. 47); 7
5), 6) Claimant s knowledge as to equipment/tools needed for next job; Prior to work ticket review, no job-related need to switch vehicles: Appellant/Claimant stated in his testimony that since he was finished with the laptop at the Bio Terrorism office, he knew the next items on the agenda would probably be a computer and printer in Canton, and that he would have to go back to his office in Jackson to check the work order to see what was needed. (Transcript, p. 48); 7) Claimant did not intend to work from home: This assertion is correct, as Claimant intended to simply retrieve a vehicle to protect computer equipment. On page 11 of the Brief of Appellee, it is stated that no one told him to go home and change vehicles. However, permission from a superior was not needed by Claimant to go home and change vehicles. And it is uncontradicted, and even supported by testimony of his superior, Mr. Staples, that he was aware that the Claimant was going to ride his motorcycle to work the next day, that the Claimant had told him the day before that he might have to change vehicles if there was a likelihood of rain, and that he knew that such computer equipment could not get wet. (R. 36; R.E. 3; Transcript, p. 18). There was no testimony in the record that his superior ever objected to this potential vehicle swap. On page 12 of the Brief of Appellee, the Appellee stated that [t]o argue that had it not rained, Claimant would not have gone home to retrieve his jeep is nothing more than speculation However, as mentioned above, Claimant testified that if the weather did not change to threaten rain, he would have still been on the motorcycle, and he would not have gone home to change vehicles if it was just a matter of him getting wet, instead of the equipment. (Transcript, p. 46). What is speculation is the question posed on page 12 of the Brief of Appellee asking why did he not return to his office, which was in the opposite direction of the inclement weather?, and stating that he drove his motorcycle straight into the rain. 8
Claimant testified that it started to rain before he made it to his house, but there was nothing in the record that would indicate that it was not raining at or around his office on Woodrow Wilson at the same time. Any inference that his office was in the opposite direction of the inclement weather is completely unsupported by any facts in the record. Additionally, on page 13 of the Appellee s Brief, Appellee argues that there is no legal or factual basis for the analogy concerning a traveling judge found on pp. 18-19 of the Brief of Appellant and having that hypothetical judge deviate from travel due a forgetting an item at home. The analogy would still hold whether the judge forgot something or rather went back to retrieve an item that they consciously left at home, not thinking that he or she would need it when leaving earlier that day. So forgetfulness or intent would lead to the same situation. And Appellee should note, as set out in the Brief of Appellant, that the main reason that the Appellant brought up the analogy with a judge deviating from a trip to retrieve a needed item (or even vehicle) is the continued reliance by the Opinion of the Full Commission (R. 65), the position of the Employer/Carrier (R. 58), and the Appellee in its Brief that the Claimant testified that he would not charge mileage to his home to retrieve the vehicle. The main purpose of the judge analogy was to state that a judge who forgot or needed to travel extra miles to retrieve or swap items would likely not charge the taxpayers for the extra mileage, and would instead likely just charge the direct mileage route, as it would not be the taxpayer s fault that the judge either forgot the item or decided that he or she would need to swap out a vehicle due to a need to protect a state-issued item. C. Reply to Appellee s Exceptions to the Going-and-Coming Rule Section Appellee is correct in the assertion that the Lane Court addressed the fact that although he 9
may not have been a traveling employee at the time of the accident, he may qualify for benefits if he was acting in the scope of his employment at the time of the wreck. Generally, travel to and from home is outside of the course and scope of employment unless he meets one of the exceptions to the general rule: (1) where the employer furnishes the means of transportation, or remunerates the employee; or (2) where the employee performs some duty in connection with his employment at home; or (3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; or (4) where the employer furnishes a hazardous route; or (5) where the injury results from a hazardous parking lot furnished by the employer; or (6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises; or (7) when the employee is on a special mission or errand for his employer, or where the employee is accommodating his employer in an emergency situation. Lane, 981 So.2d at 1068-69 ( 15). However, the Court stated that doubtful cases must be resolved in favor of compensation in order to fulfill the beneficent purposes of the statute. Id. (citing Duke exrel. Duke v. Parker Hannifin Corp., 925 So.2d 893, 897-98 (Miss.App. 2005)) (emphasis added). The Lane claimant was found to meet the second exception, by taking a shower at home when ordered by his employer in order to save the employer money. In the Brief of Appellant (pp. 20-21), the Claimant set out for exception (1) that he would get remuneration for his travel from the morning work site to his main office, but would just not add in the extra miles to his home. For exception (2), although the work was not to be performed at home, the trip home was necessary for the protection of State equipment and the only reason for the detour. Under exception (7), the exception applies if the Claimant is going to the home on a special mission or errand for his employer. It is clear from the undisputed facts of this case that the Claimant was going on a special mission or errand for his employer, the retrieval of a proper vehicle to be used to transport the Employer s computer equipment so that it would not 10
get rained upon. VI. Conclusion Substantial evidence does not support the Commission s finding that the Claimant was not on a special mission or errand for his employer, and the ruling of the Commission that substantial evidence supported that he was on a purely personal errand was arbitrary and capricious. For these reasons and those set out in greater detail in the prior-filed Brief of Appellant, James Bennett respectfully requests this Court to reverse the decision of the Mississippi Workers Compensation Commission, find that the Commission erred in finding that there was a showing of a distinct departure on a personal errand at the time of the accident, rule that the Claimant s injury was compensable under the Mississippi Workers Compensation Act, and remand for a determination of any benefits and/or payments owed to Claimant. RESPECTFULLY SUBMITTED this, the 2 nd day of November, 2015. JAMES BENNETT, Appellant /s/rick D. Patt By: RICK D. PATT (MB# 8747) Counsel for Appellant James Bennett: Rick D. Patt, MB # 8747 PATT LAW FIRM, PLLC P.O. Box 70 Madison, MS 39130-0070 TEL: (601) 856-3834 FAX: (601) 510-9045 rick@pattlawfirm.net J. Peyton Randolph, II (MSB# 4620) Law Offices of J. Peyton Randolph, II 613 Steed Road Ridgeland, Mississippi 39157 TEL: 601.605.8537 FAX: 601.605.8539 peyton@jprii.com 11
CERTIFICATE OF SERVICE I, Rick D. Patt, certify that I have this date served a true and correct copy of the above and foregoing Reply Brief of Appellant filed by Appellant James W. Bennett by filing the same with the Mississippi Electronic Courts Supreme Court & Court of Appeals Official Court Electronic Document Filing System, which thereafter electronically served the following: Michael D. Young, Esq. J. Andrew Faggert, Esq. MARKOW WALKER, P.A. P.O. Box 13669 Jackson, MS 39236-3669 Attorney for Appellee Mississippi State Department of Health and carrier and also sent by U.S. Mail, First-Class, Postage-Prepaid, a copy to: Hon. Liles B. Williams Hon. Thomas A. Webb Hon. Beth Harkins Aldridge Mississippi Workers Compensation Commission P.O. Box 5300 Jackson, Mississippi 39296-5300 Hon. Tammy Green Harthcock Administrative Judge Mississippi Workers Compensation Commission P.O. Box 5300 Jackson, Mississippi 39296-5300 SO CERTIFIED THIS, the 2 nd day of November, 2015. /s/rick D. Patt RICK D. PATT 12