A passenger tried to board a bus with an expired transfer ticket. The bus driver told him that his transfer was no good and asked him to get off the bus. The passenger called the driver an obscene name and threw a fake punch at him. As the passenger was getting off the bus, he spit on the driver.
In response, the driver "jumped up" and got off the bus "to pursue him." Within a few steps, the driver fell, and he crawled back onto the bus. According to a video from the bus, the incident did not last more than 30 seconds.
The driver continued to drive the bus but later called for help and was taken to the hospital. The driver ruptured his left Achilles tendon and right quadriceps tendon, which were surgically repaired. He returned to work four months later with a 5 percent permanent partial disability.
The driver filed a workers' compensation claim for lost wages, medical expenses, and permanent disability. The bus company refused to pay, arguing that his injuries did not occur during the scope of his employment. The administrative law judge found that the driver was not entitled to workers' compensation benefits because he violated the company's rules that a driver should not leave his seat or confront a passenger.
The Labor and Industry Review Commission reversed, finding that the driver's actions at most constituted an impulsive, momentary and insubstantial deviation from his employment that did not bar recovery. The company appealed.
Was the commission correct in granting benefits to the driver?
A. No. The driver deviated from his employment, so he was not entitled to benefits.
B. Yes. The driver's response to the unruly passenger was impulsive, momentary and insubstantial.
C. No. The driver's deviation was substantial because he broke the company's rules by getting out of his seat and leaving the bus to go after someone for a personal reason.
How the court ruled: B. The Wisconsin Court of Appeals held that the driver was entitled to benefits because his deviation was impulsive, momentary and insubstantial. Milwaukee Transport Services, Inc. v. Labor and Industry Review Commission, No. 2012AP2255 (Wis. Ct. App. 06/04/13).
The court explained that upon entering an employer's premises and beginning work, a worker is presumed to be continuing to work unless he removed himself in an act of deviation. Here, the driver's response to the passenger was a knee-jerk reaction. The deviation did not last more than 30 seconds and he went no further than four yards from the bus.
The court also rejected the company's argument that the driver "abandoned" his work duties by attempting to chase the passenger and the deviation would have been much longer if he had not fallen.
A is incorrect. The court explained that the Wisconsin Supreme Court has "moved away" from the rule that any deviation from employment would prevent an award of benefits and adopted the rule that an impulsive, momentary and insubstantial deviation would not bar recovery.
C is incorrect. Although the driver broke the company's rules by chasing the passenger, his deviation was insubstantial. The court pointed out that the driver returned to his seat after the incident and continued to drive the bus.
Editor's Note: This feature is not intended as instructional material or to replace legal advice.
September 9, 2013
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