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Workers' Compensation

Texas: TPCIGNA v Brooks 03-10-00428

Stuart Colburn   By Stuart D. Colburn, Esq., Shareholder, Downs Stanford

This case concerns application of the TX Supreme Court's decision in Leordeanu v. American Protection Ins. Co., 330 S.W.3d 239 (Tex 2010).

The claimant in Tex. Prop. & Cas. Ins. Guar. Ass'n v. Brooks, 2011 Tex. App. LEXIS 7269 (Tex. App. Austin Aug. 31, 2011) was an oil rig driller, supervising a crew of three.  He drove his personal vehicle and transported his crew from home to the job location.  He was paid an hourly wage plus $50 per diem.  Brooks testified he was offered $50 per diem as "driver's pay" to compensate him for ensuring his crew showed up for work on time (This testimony was allowed over a hearsay objection.)

TPCIGNA argued the dual purpose doctrine should apply.  There is no question Brooks was involved in a MVA on the way home from a drill site.  Leordeanu makes it clear the "coming and going" rule cases are mutually exclusive from dual purpose doctrine cases.  The claimant was traveling from work to home and thus the "coming and going" rule applied.  Applying Leordeanu, the dual purpose doctrine does not apply if the coming and going rule does.

Tex Labor Code 401.011 (12) codifies the coming and going rule and the following exception:  "Transportation is furnished as part of the contract of employment or is paid for by the employer."  The jury was free to consider $50 per diem paid only to Brooks was "driver's pay" provided by verbal contract at the time of hire (or even as payment by the employer.)  Hence, the court found the claimant proved an exception to the general prohibition against injuries travelling to and from work.  The "driver's pay" provision also made the travel work related and the injury during such travel compensable.

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