DONALD M. SMITH, Employee/Appellant, v. METRO TRANSIT, SELF-INSURED/METROPOLITAN COUNCIL, Employer, and FAIRVIEW HEALTH SERVS., UNIVERSITY OF MINN. PHYSICIANS, and HEALTHPARTNERS, INC., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 17, 2011
ARISING OUT OF & IN THE COURSE OF - PROHIBITED ACT. Substantial evidence supported the compensation judge’s decision denying compensation on the ground that the employee’s injury occurred as a consequence of his violation of the employer’s specific rule prohibiting bus drivers from leaving their seats to confront unruly passengers.
Determined by: Johnson, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. Randall S. Lane and Adam J. Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge’s finding that his injury resulted from the performance of an act prohibited by the employer and therefore did not arise out of the employment. We affirm.
Donald Smith, the employee, began working as a bus operator for Metro Transit, the employer, in February 1993. On February 2, 2010, the employee was operating a bus with two passengers remaining on board. One of the passengers asked to get off at a non-designated bus stop. The employee felt that location was unsafe and refused the passenger’s request. At the next scheduled stop, the passenger began to exit the bus. As he did so, he turned toward the employee from about two feet away, spat in the employee’s face, laughed and then ran off the bus. The employee became enraged, left the bus and chased the passenger, catching up with him near the back of the bus. The passenger shoved the employee and he fell, landing on and injuring his left shoulder.
The employer published and distributed a Bus Operator’s Rule Book & Guide. According to Rule 534 of the Guide,
Metro Transit bus operators should avoid physical confrontations wherever possible. This means refraining from leaving the bus operator’s seat to settle disputes unless it is necessary to do so to defend yourself or customers from physical attacks. It also means avoiding physical contact unless you or a customer are being attacked. If you are under direct physical attack, and you believe physical harm, serious injury, or death may result, use only enough force to subdue the attack and restore order. Once the attack ceases, do not pursue the assailant. If you use more force than necessary, you may be personally liable for having acted outside the scope of your employment.
(Resp. Ex. 1.) On March 14, 2001, the employer issued a Bulletin No. 12, headed “SELF DEFENSE - YES: RETALIATION - NEVER,” which provided, in part,
Metro Transit bus operators should avoid physical confrontations whenever possible. This means refraining from leaving the operator’s seat to settle disputes unless it is necessary to do so to defend yourself or customers from physical attacks. It also means avoiding physical contact unless you or a customer are being attacked. If you are under direct physical attack, and you believe physical harm, serious injury or death may result, use only enough force to subdue the attack and restore order. Once the attack ceases, do not pursue the assailant. If you use more force than necessary, you may be personally liable for having acted outside the scope of your employment.
* * *
Leaving the bus seat and pursuing assailant(s) is expressly forbidden when they are for the purpose of retaliation.
(Resp. Ex. 2.)
Prior to the February 2, 2010, incident, the employee had other encounters with unruly passengers. In 2001, the employee was struck on the arm by a passenger who then exited the bus but remained just outside, screaming obscenities and calling to the employee to come out and fight. The employee remained on the bus, indicating that he did so because he knew that exiting the bus to confront the passenger would constitute a serious violation of the employer’s rules. (See Resp. Ex. 10.) In another incident, occurring on September 22, 2009, two passengers on the employee’s bus refused to pay their fares and then threw rocks at the bus after they exited. The employee stopped the bus and, when he got out to check for damage, the passengers approached him with knives drawn. The employee drew his own knife in response but then retreated back onto the bus without further incident. As a consequence of this incident, the employer gave the employee a written Final Record of Warning, which stated that the employee had violated Rule 534 and Bulletin No. 12. The employee was warned,
Mr. Smith misconduct like this will not be tolerated. You may have been seriously hurt or worse. If you are involved in another incident that violates Metro Transit’s Bus Operator’s Rulebook & Guide on fare disagreements or physical encounters while on duty, you may be subjected to more severe disciplinary action up to and including discharge.
(Resp. Ex. 9.) The employee was given a three-day suspension for that misconduct.
The employer determined that the employee’s conduct on February 2, 2010, violated the provisions of the Final Record of Warning, and the employer terminated the employee from his employment. The employee was later reinstated but was not able to return to work as a bus operator due to the injuries he sustained to his left shoulder.
The employee filed a claim petition seeking benefits related to the February 2, 2010, injury. Following a hearing, the compensation judge found that the employee’s left shoulder injury arose out of the performance of a prohibited act and was not, therefore, compensable under Minnesota Workers’ Compensation Act. The employee appeals.
“Where 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 his employment and injuries resulting therefrom are not compensable even though the act might be considered to be in furtherance of the employer’s business.” Bartley v. C-H Riding Stables, Inc., 296 Minn. 115, 120, 206 N.W.2d 660, 663, 26 W.C.D. 675, 679 (1973); see also Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999). In Hassan v. Spherion Corp., 63 W.C.D. 491 (W.C.C.A. 2003), this court set out six factors to be considered in resolving the issue of whether compensation should be barred under the prohibited act doctrine:
1) Whether the employee knows of the prohibition;
2) Whether the prohibition was customarily observed;
3) Whether the employer took reasonable steps to enforce the prohibition;
4) The reason for the prohibition;
5) Whether the performance of the prohibited act was unreasonably dangerous; and
6) Whether it was reasonably foreseeable by the employer that the expressly prohibited act would occur.
The compensation judge considered these factors and concluded that the employee’s injury was not compensable because it occurred as a result of the performance of a prohibited act. The employee contends that the compensation judge erred in her analysis and the inferences she drew from the evidence.
The compensation judge concluded the employee was fully aware of the employer’s prohibition against leaving the bus to pursue unruly passengers. The employee asserts he did not leave the bus in order to retaliate against the passenger but, rather, that it was his intent to hold the passenger for the police. Accordingly, the employee contends he did not intentionally violate the rule. We are not persuaded. This prohibition was contained in the employer’s Guide and in Bulletin No. 12, and the employee’s violation of these rules resulted in the 2009 written warning. Bus operators are to avoid physical confrontations and are not to pursue an assailant. The employee was not injured by the passenger until he left the bus. Whatever his reason, the employee intentionally left the bus, violating a rule of which the employee was well aware.
The compensation judge also concluded that the employer’s prohibition was customarily observed. In response to this conclusion, the employee cites to the testimony of Russ Dixon, a bus operator and a union representative, who stated that other drivers have left their seats to confront passengers and that not all were disciplined by the employer. Accordingly, the employee contends, the judge erred in her conclusion as to this factor. We disagree. Jay Kluge, an assistant transportation manager for the employer, testified that the rule prohibiting an operator from leaving the bus seat was customarily observed. He also stated that he was aware of only three incidents over the course of ten years in which a bus operator exited his seat and, in each case, the employer took it very seriously and administered appropriate discipline. The employee himself admitted that on multiple occasions he had recognized his obligation to remain on the bus during stressful situations. Substantial evidence therefore supports the compensation judge’s conclusion that the prohibition was customarily observed.
The judge next determined that the employer took reasonable steps to enforce the prohibition. The employee agrees but also points to the testimony of Mr. Kluge and Mr. Dixon, indicating that enforcement of the rule varied depending upon the unique circumstances of each individual case. The employee argues that, because the prohibition was inconsistently enforced by the employer, the compensation judge erred in her conclusion. We disagree. Mr. Kluge testified that management took seriously any violation of the prohibition against a bus operator leaving the bus to pursue an unruly passenger. That the employer took violations of the no-pursuit rule seriously is evidenced by the discipline imposed on the employee following both the 2009 and 2010 incidents. As such, the compensation judge’s conclusion on this point is supported by substantial evidence.
The compensation judge stated that the no-pursuit rule was intended to keep bus operators and passengers safe. This is undisputed.
The compensation judge further found that the employee’s performance of the prohibited act was unreasonably dangerous. The employee asserts he believed he was acting in a prudent manner, because he was concerned about his safety due to the possibility of transmission of disease through contact with the passenger’s saliva. He contends his intent was not to retaliate but rather to restrain the passenger until the police arrived. Viewed this way, the employee argues, his conduct was not unreasonably dangerous. We disagree. The employee conceded he became enraged after being spat upon. As the compensation judge stated, the employee’s anger made it likely that any contact with the passenger would end violently. Although he contends his intent was to restrain the passenger for the police, the employee had not called for help before leaving the bus. By leaving the bus, the employee placed both himself and his sole remaining passenger in potential danger. In 2009, the employee left the bus and was threatened by two youths with knives. Given this experience, the employee had to have known that leaving the bus in pursuit of an unruly passenger could place him in serious danger. The compensation judge’s conclusion that the prohibited act was unreasonably dangerous is amply supported by the evidence.
Finally, the compensation judge found that it was not reasonably foreseeable by the employer that the prohibited act would occur. The employee contends, however, that, because the employee previously violated the prohibition, another violation was foreseeable by the employer. Further, the employee asserts that he was under significant emotional stress in February 2010, making it more likely he would react to a confrontation by an unruly passenger, and that the employer was aware of his stress. Accordingly, the employee contends the compensation judge’s determination as to foreseeability was clearly erroneous. We are not persuaded.
In Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999), this court noted that the more routine or minor the prohibited conduct, the more foreseeable it is that an employee will violate the rule. In this case, the prohibited conduct was neither routine nor minor. Rather, the employer viewed a bus operator leaving his seat as a serious violation, for which it consistently administered discipline. There is no question but that the employee was well aware of the prohibition, having been disciplined in 2009 for similar conduct. Substantial evidence, therefore, supports the compensation judge’s conclusion that it was not reasonably foreseeable by the employer that the prohibited act would occur.
The compensation judge’s findings of fact and order are not clearly erroneous or unsupported by substantial evidence in view of the entire record as submitted. Accordingly, we affirm the judge’s decision. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).