CAROL L. SPENCER, Employee/Appellant, v. JEDLICKI TRUCKING, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 16, 2007
ARISING OUT OF & IN THE COURSE OF - PROHIBITED ACT. Substantial evidence supports the compensation judge=s finding that the employee expressly or implicitly allowed her husband to drive the employer=s truck in violation of the employer=s specific prohibition, as well as the judge=s finding that there was a causal relationship between the prohibited act - - allowing her seriously ill husband to drive the truck - - and the motor vehicle accident in which the employee was injured.
Determined by: Johnson, C. J., Rykken, J., and Pederson, J.
Compensation Judge: Bradley J. Behr
Attorneys: Luke M. Seifert and Megan E. Burkhammer, Quinlivan & Hughes, St. Cloud, MN, for the Appellant. Joan G. Hallock, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s denial of her claim for workers= compensation benefits based upon the prohibited act doctrine. We affirm.
Carol L. Spencer, the employee, and her spouse, Darol Spencer, began working as truck drivers for Jedlicki Trucking, Inc., the employer, in 1996. Both were employed on a part-time and intermittent basis, primarily during the summer months, and they often drove as a team. On occasion, the employee drove alone but she did not like to take long trips by herself. The Spencers last drove as a team in April 2005.
On June 21, 2005, Mr. Spencer was seen in the emergency room complaining of a fever and shortness of breath. The examining physician noted Mr. Spencer had advanced chronic obstructive pulmonary disease (COPD) requiring continuous oxygen and a past medical history that included atrial fibrillation, possible congestive heart failure, an aortic valve replacement and bilateral shoulder replacement. A diagnosis of lung cancer had been made in July 2004. Mr. Spencer was admitted to St. Gabriel=s Hospital for treatment of pneumonia complicated by COPD and lung cancer. He was discharged from the hospital on June 24 with a diagnosis of pneumonia related to lung cancer, COPD, atrial fibrillation, valvular heart disease, congestive heart failure, hypertension, gout, sleep apnea, and hyperlipidemia. Dr. McNamara stated Mr. Spencer was not stable to be discharged to his home because of his gout and severe weakness, so he was discharged to a nursing home where he remained for a week.
After his discharge from the nursing home, on July 1, 2005, the employee returned to see Dr. McNamara. Mr. Spencer was then on continuous oxygen and the doctor noted his cough and fatigue were improved. On examination, Mr. Spencer=s lungs were clear without wheezing and Dr. McNamara saw no evidence of pneumonia. The doctor=s diagnosis was resolved pneumonia and atrial fibrillation. Mr. Spencer stated he wanted to go home and return to his usual activity level including driving a car and mowing the lawn. Dr. McNamara told Mr. Spencer that he Adid not want him to drive for at least a month. His pC02 was 67 while in the hospital and his saturations today dropped down to 85% with sitting in the office with me and talking. I really feel that he needs to be on oxygen fairly continuously but definitely with activity.  I will see him back in a month for follow up and we will see how things are going at that point.  We also broached the topic of hospice. I really feel that hospice would be appropriate for him and it would also pay for his medications and he and his wife are contemplating that.@ (Resp. Ex. 4.)
Later that month, the employer offered the employee the opportunity to transport a load to Milwaukee, Wisconsin. The employee asked Kenneth Jedlicki, the owner of Jedlicki Trucking, Inc., whether Mr. Spencer could ride along on the trip, and, understanding that the employee did not like to travel alone and sometimes needed help with directions, he granted permission. It was clearly understood by the employee, Mr. Spencer, and Mr. Jedlicki, however, that Mr. Spencer was permitted only to ride along and was not authorized to drive the truck. Mr. Jedlicki was aware of Mr. Spencer=s lung cancer, of his oxygen dependency, of his recent hospitalization and convalescence at the nursing home, and that he had been instructed not to drive by his family doctor.
After making the delivery in Milwaukee, the employee agreed to transport a second load to Kansas and then to pick up a third load to be delivered to Minnesota. At some point during the third leg of the trip, the employee and Mr. Spencer stopped for food in Nebraska. The employee testified that after dinner she told her husband she was tired and she retired to the sleeper portion of the cab. At the time, Mr. Spencer was sitting in the passenger seat of the truck. The employee testified she put the keys to the truck in her purse which she placed on top of a cabinet behind the driver=s seat.
Mr. Spencer then drove the truck from the Nebraska meal stop to Sioux Falls, South Dakota. In the early morning hours of July 29, 2005, the truck slid off the side of an exit ramp near Sioux Falls and turned over. An accident report prepared by a South Dakota highway patrol officer stated the truck, driven by Mr. Spencer, was northbound on Interstate 229 approaching an exit to travel westbound on Interstate 90. The truck Awas traveling too fast to execute the curve . . . and Unit #1 slid out of control. Unit #1 struck a delineator post and overturned on its side on the north side of the entrance ramp. The vehicle came to rest on the driver=s side and was situated on an incline which hampered resue [sic] workers efforts for a quick extraction of the driver and passenger. It was raining at the time of the accident.@ (Resp. Ex. 8.) Mr. Spencer sustained lacerations in the wreck and was pinned in the cab of the truck for about an hour. During extrication from the truck by emergency personnel, Mr. Spencer suffered cardiac arrest and he died en route to the hospital. The employee was in the sleeper portion of the cab at the time of the accident and was also injured.
Initially, the insurer voluntarily commenced payment of benefits to the employee. The employer and insurer then filed a petition to discontinue benefits asserting the injury resulted from the employee=s violation of a prohibited act. A hearing was held before a compensation judge at the Office of the Administrative Hearings. The parties stipulated the employee sustained a personal injury on July 29, 2005, arising out of her employment with the employer and had been permanently and totally disabled since then as a result of injuries she sustained in the accident. In a decision issued April 17, 2007, the compensation judge found Athe employee either expressly or implicitly permitted Darol Spencer to drive the employer=s truck on 7/29/05. This was a direct violation of the employer=s explicit prohibition.@ (Finding 10.) The judge further found there was a causal connection between the prohibited act and the motor vehicle accident in which the employee was injured. Accordingly, the compensation judge denied the employee=s claim for workers= compensation benefits. The employee appeals.
The defenses of contributory negligence and assumption of risk are barred in workers= compensation cases. Matheson v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N.W. 71 (1914). Thus, as a general rule, the negligent or intentional misconduct of an employee is not a defense to a claim for workers= compensation benefits. A common law exception to the general rule, however, is the so-called Aprohibited act@ doctrine. A[W]here an employer expressly prohibits the doing of a certain specific act, the disregard of which is not reasonably foreseeable to the employer, a violation thereof takes the employee outside the scope of [her] employment and injuries resulting therefrom are not compensable . . . .@ Bartley v. C-H Riding Stables, Inc., 296 Minn. 115, 206 N.W. 2d 660, 26 W.C.D. 675 (1973). The employee concedes the employer expressly prohibited Mr. Spencer from driving. She asserts, however, that she did not engage in a prohibited act by either explicitly or implicitly permitting Darol Spencer to drive the truck, and contends the compensation judge=s finding to that effect is unsupported by substantial evidence, clearly erroneous, and must be reversed. We are not persuaded.
The employee testified she had been the sole driver until just before the accident. She further testified she never asked or instructed her husband to drive the truck or gave him permission to drive the truck. The employee stated that after having dinner on the evening of July 29 she was tired and went into the sleeper portion of the cab where she intended to nap for at least four hours. She testified she put the keys to the truck in her purse which she placed on top of a cabinet behind the driver=s seat. She then went to sleep and sometime later heard some crunching, found herself in an awkward position and assumed there had been an accident. She maintained she was a very sound sleeper and did not hear the truck start up and did not realize it was in motion. The employee explained she had slept in cabs of moving trucks many times in the past and was used to sleeping through many miles of shifts, mufflers, and loud noises.
On the other hand, the employee was driving a diesel truck which needed to be shifted thirteen times to attain highway speed. The employee acknowledged the truck=s muffler exited the truck on the driver=s side near the sleeper portion of the cab where her head was positioned and it was somewhat noisy in the cab.
Mr. Jedlicki testified the truck the employee was driving had an open cab with a cabinet behind each seat containing drawers with a bed behind the cabinets. A sliding-cloth curtain separated the sleeping compartment from the driving area. The sleeping compartment had a harness system containing three separate seatbelts that crossed the shoulder, stomach and legs of the person in the sleeper compartment. Mr. Jedlicki testified the noise level in the sleeper is 70% louder than it is in the cab because the truck exhaust is right next to the sleeper compartment. In his experience, the noise from a moving truck prevents restful sleep. Mr. Jedlicki testified:
In my own personal opinion, I cannot imagine how anybody could not know that that vehicle was moving. I mean, first of all, the noise level is loud enough where you couldn=t sleep. And just for the movement on the truck going around curves and slowing down and stopping and going, I mean, if you are not strapped in there, I mean there is no way you can fall asleep and have a restful sleep. You could doze off periodically, but, in my opinion, it=s almost impossible that you would not know that.
(Resp. Ex. 2 at 31.)
Mr. Jedlicki also testified he talked to the employee a couple of weeks after she got out of the hospital and they discussed how the accident occurred:
She said that she was tired. That they had stopped to eat, and they came out, and she had told Darol that she was tired, that she would like to lay down and take a nap. And Darol said that he was not tired, and he could get her up to the fuel stop.
Mr. Jedlicki said he responded, ACarol, you know Darol was not supposed to drive. . . . In his medical condition, . . . how could you even think about shutting your eyes and letting him drive?@ Mr. Jedlicki testified the employee replied, AThat=s water under the bridge, we ain=t going to worry about it now.@ (Resp. Ex. 2 at 20-21.)
Clara York, the office manager of the employer, testified she spoke with the employee a week or two after the accident and asked the employee how the accident occurred:
She [the employee] told me - - Because I had asked her about, I says, AI can=t believe you let Darol drive for as weak and sick as he was.@ . . . Now, I don=t know if they had stopped to eat or a potty break. But she said when they were coming back out to the truck, she said she told Darol that she was really tired and that she didn=t want to drive. She said, As long as we=re here, let=s just stay parked and go to bed. And he says, No, he says, you go ahead and lay down. He says, I=m not really tired; I=ll get you to South Dakota - - or I=ll get you down the road a ways. It=s one of them. Anyways, he will, you know, get going down the road. And I says, AWell, you should have put your foot down.@ And she says, AWell, that=s hindsight.@
(Resp. Ex. 1 at 21-22.)
Based upon this evidence, while a different inference could be made, the compensation judge could reasonably conclude the employee explicitly or implicitly allowed Darol Spencer to drive the truck contrary to the express prohibition of the employer. That finding must, therefore, be affirmed. Hengemule v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn.1984).
The employee next contends her injuries are compensable because they were caused by the act of a third person who did not intend to injure the employee. Minn. Stat. ' 176.011, subd. 16, provides that a personal injury does not include Aan injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons and not directed against the employee as an employee, or because of the employment.@ The employee asserts that although Mr. Spencer obviously intended to drive, he did not intend to injure his wife. Thus, since the employee=s injuries were caused by the unintentional act of a third person, the employee contends she is entitled to workers= compensation benefits. We disagree. The parties stipulated the employee sustained a personal injury on July 29, 2005, arising out of her employment, thus the intentional injury exclusion is not applicable in this case. See, e.g., Meinstma v. Loram Maintenance of Way, Inc., 672 N.W.2d 224 (Minn. Ct. App. 2003).
Rather, the issue is whether the violation of a prohibited act took the employee outside the scope of her employment at the time of the injury. The employee essentially concedes that, if the judge=s finding that the employee allowed Mr. Spencer to drive the truck is affirmed, the elements of a prohibited act are met in this case. The employee argues, however, that no causal relationship exists between the prohibited conduct and the injury, thus benefits cannot be barred by the prohibited act doctrine. We disagree.
To deny benefits under the prohibited act doctrine there must be a causal relationship between the prohibited conduct and the injury. Yacoub v. American Nat=l Ins. Co., 59 W.C.D. 104, 108 (W.C.C.A 1999). Here, the employee and her husband were specifically instructed that Mr. Spencer was not to drive the truck. Approximately a month before the accident, Mr. Spencer was hospitalized for treatment of pneumonia complicated by COPD and lung cancer. He was discharged from the hospital on June 24, 2005, with a diagnosis of pneumonia related to lung cancer, COPD, atrial fibrillation, valvular heart disease, congestive heart failure, hypertension, gout and sleep apnea. Mr. Spencer=s treating physician, Dr. McNamara, concluded he was not capable of going home due to his severe weakness, so Mr. Spencer was discharged to a nursing home. The employee was seen by Dr. McNamara on July 1, after his discharge from the nursing home. The doctor found Mr. Spencer=s oxygen saturation was low and he concluded Mr. Spencer needed to be on oxygen fairly continuously but definitely with activity. Mr. Spencer was specifically told by Dr. McNamara that he was not to drive for at least a month. There is no dispute that Mr. Spencer=s physical condition made it unreasonably dangerous for him to drive the truck. The reason for the prohibition was that Mr. Spencer might be physically unable to safely drive the truck. An accident was a foreseeable result of Mr. Spencer driving in his physical condition. Therefore, there exists a causal relationship between the prohibited act of allowing Mr. Spencer to drive the truck and the employee=s injury.
The compensation judge found, and we have affirmed, that the employee allowed Mr. Spencer to drive the truck in violation of the employer=s explicit prohibition. The evidence supports a causal relationship between the employee=s prohibited act, that is, expressly or implicitly permitting her seriously ill husband to drive the truck, the accident, and the injuries she sustained in the accident. The compensation judge=s conclusion the employee violated a prohibited act which took her outside the scope of her employment, therefore, is affirmed.
 Darol Spencer was born on December 5, 1930, and was 74 years old. On March 16, 2005, Mr. Spencer was seen by Dr. Leblanc for a Department of Transportation medical examination to assess his continued fitness for a commercial driver's license. In his health history, Mr. Spencer denied any preexisting medical conditions except a heart valve replacement in 1999. Mr. Spencer did state he was taking Coumadin, a blood thinner. Dr. Leblanc stated the employee met the standards for a commercial driver=s license, but qualified him for one year only because of the Coumadin prescription. (Pet. Ex. B.) On July 29, 2005, Mr. Spencer had a valid Minnesota commercial driver=s license.
 In her brief, the employee stated: AHere, the parties agree that the employer had expressly forbidden Mr. Spencer to drive. The employee concedes that she knew of the prohibition, and that the prohibition was customarily observed (as she did all of the driving on the July, 2005 trip up until the date of the accident). She also agrees that Mr. Spencer=s ill health furnished a valid reason for the prohibition . . . ; and that it would likely be unreasonably dangerous for Mr. Spencer to drive.@ (Appellant=s Brief at pp. 8-9.) See Hassan v. Spherion Corp., 63 W.C.D. 491, 495 (W.C.C.A. 2003).