IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Employer-Below/Appellant, : C.A. N0. K18A-04-002 JJC
In and for Kent County
v.
NICHOLAS GATES,

Claimant-BeloW/Appellee.
Submitted: September 17, 2018
Decided: November 16, 2018
MEMORANDUM OPINION AND ORDER

Upon Consideration of Appellant’s Appealf’om Decision of
Industrial Accident Board - AFFIRMED

Walt F. Schmittinger, Esquire, Schmittinger and Rodriquez, Dover, Delaware for
Claimant BeloW/Appellee.

John J. Klusman, Jr., Esquire, Tybout, Redfeam and Pell, Wilmington, Delaware
for Employer-BeloW/Appellant.

Clark, J.

Appellant State of Delaware (hereinafter “State” or “Employer”) appeals an
adverse decision by the Industrial Accident Board (hereinafter “the IAB” or “the
Board”) in favor of Mr. Nicholas Gates (hereinafter “Mr. Gates”). Mr. Gates was a
road maintenance equipment operator for the State who suffered injuries in an
accident while responding to an emergency overtime call. At the hearing, the State
alleged that its Merit Rule 4. 16 fixed the time of Mr. Gates’s accident to be outside
the course and scope of his employment because of t_he going and coming rule.
The IAB disagreed and found that Mr. Gates suffered a compensable work injury
because it found him to have been due compensation from the State at the time of
the accident pursuant to his employment agreement with the State.

Here, the Court holds that the Board did not commit legal error in looking to
the course of conduct between the parties when determining the terms of Mr.
Gates’s employment contract. Furthermore, the Court finds that the Board’s
decision that Mr. Gates’s travel at the time of the accident was work related and
compensable was supported by substantial evidence. For these reasons, and the

reasons that follow, the Board’S decision is AFFIRMED.

I. FACTS OF RECORD AND PROCEDURAL BACKGROUND

On November 29, 2016, Mr. Gates injured his head and neck in a motor
vehicle accident He alleged that these injuries were compensable because they
Were work related. The Employer disputed his claim, arguing that Mr. Gates was
not acting within the course and scope of his employment at the time of the motor
vehicle accident.

The IAB held its hearing on March 15, 2018, and concluded final
deliberations on April l4, 2018. It considered testimony from Mr. Gates and Ms.
Brittany F ord (hereinafter “Ms. Ford”), a human resource representative who

testified on the Employer’s behalf. It also considered documents submitted by the

Employer regarding overtime service, stipulated facts, and competing medical
expert testimony.

At the hearing, Mr. Gates testified that he was twenty-four years old at the
time of the motor vehicle accident and had worked for the State for four months as
an equipment operator. Primarily, his job duties included road maintenance Mr.
Gates’s regular hours of employment were 7:00 a.m. to 3:0() p.m., Monday through
Friday. He was also classified as essential personnel and drew overtime pay for
work outside his regular work hours. The Employer referred to such overtime as
“call-back” time.

Mr. Gates testified that the Employer frequently called him back for Work
after hours. It paid him a minimum of four hours overtime even if he only worked
one hour. At the time of the accident, crew leaders recorded the regular working
hours of employees, while employees recorded their own call-back hours. Mr.
Gates also testified that he started recording his call-back time from the moment he
received the call-back and stopped recording his time when he completed the job.
On the day of the accident, Mr. Gates received a phone call between 3:30 and 3:45
p.m., after his shift had ended at 3100 p.m. The Employer directed him to respond
to a road side accident after going to the Employer’s worksite to retrieve
equipment. During his travel to the yard to retrieve his equipment, Mr. Gates
suffered the injuries at issue in a motor vehicle accident,

The Employer’s representative, Ms. Ford, testified that State Merit Rule 4.16
prescribes that call-back pay is calculated “from the time the employee arrives at
the designated worksite and begins work until the time the employee has
completed all call-back requests and has left the worksite.” She explained the
Employer’s position that Merit Rule 4.16 formed part of Mr. Gates’s employment
agreement She also testified that it and other merit rules were referenced in the

one-hour orientation provided to all new employees She acknowledged, however,

that the State did not provide physical copies of the Merit Rules to new employees
Rather, it merely referenced the Merit Rules during employee orientations.
Furthermore, she admitted that the call-back policy was not discussed during the
new employee orientation. Instead, she acknowledged that supervisors were
responsible for explaining the call-back policy to new employees

Mr. Gates testified that he did not receive formal training regarding time
sheet submission, but was “groomed” by older and more experienced employees
who told him that the start time for overtime began at the time he received the call-
back. He had been called-back many times prior to the accident and had,
consistent with such instruction, submitted multiple time Sheets for approval to the
secretary without issue. On all of these time sheets, he recorded his start time from
the moment he received the call. He testified that for the first time, on the day of
the accident, he was not paid overtime.

The Board found, based on the totality of the circumstances that Mr. Gates
acted within the course and scope of his employment at the time of his motor
vehicle accident. In so finding, it concluded that there was a reasonable causal
connection between the injury Mr. Gates suffered and his employment duties The
Board noted that the Employer required Mr. Gates to respond to call-backs and his
failure to do so would result in termination. The Board also found Mr. Gates’s
testimony credible and concluded that his trip to the worksite on his way to his
overtime job was, under the totality of the circumstances, within the course and
scope of his employment. Alternatively, the Board found that even if Mr. Gates’s
action on the day of the accident did not fall within the scope of his employment
agreement, he would qualify under the special errand exception to the going and
coming rule at the time of his injury.

Thereafter, the State appealed the matter to this Court. In its appeal, the

State contends that the Board committed an error of` law by concluding that Mr.

Gates’S injury was a compensable injury under the Worker’s Compensation Act. It

also contends that the Board’s decision was not supported by substantial evidence.

II. STANDARD OF REVIEW

This Court’s appellate review of an IAB decision is limited to determining
Whether the Board’s decision was supported by substantial evidence and whether
the Board committed an error of law.l Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”2
On appeal, the Court views the facts in the light most favorable to the prevailing
party below.3 Moreover, the Court does not weigh the evidence, determine
questions of credibility, or make its own factual findings4 Absent any errors of
law, which are reviewed de novo, a decision of the IAB supported by substantial
evidence will be upheld unless the Board abused its discretion.5 The Board abuses
its discretion when its decision exceeds the bounds of reason in view of the

circumstances.6

III. ANALYSIS
Here, the Court finds no error of law in the Board’s decision. A claimant is
entitled to worker’s compensation benefits for personal injury or death when that

injury is sustained “by accident arising out of and in the course of employment.”7

 

1 Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing General
Motors v. Freeman, 164 A.2d 686, 689 (Del. 1960)).

2 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm ’n, 383
U.S. 607, 620 (1966)).

3 Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).

“ Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.
1965)).

5 Hojj%cker v. Lexus of Wilmington, 2012 WL 341714, at *1 (Del. Feb. 1, 2012).

6 Id.

7 Spellman v. Christiana Care Health Serv., 74 A.3d 619, 623 (Del. 2013)(quoting 19 Del. C. §
2304).

Determining if an injury arises out of and in the course of employment is a highly
factual inquiry that is resolved using a totality of the circumstances test.8
“[A]rising out of” and “in the course of employment” are two distinct concepts and
must be established separately.9 “In the course of employment” refers to the time,
place and circumstances of the employee’s injury,10 whereas “arising out of the
employment” refers to the origin and cause of the injury.ll

From the Delaware Worker’s Compensation Act,12 the courts have derived
the doctrine commonly referred to as the going and coming rule.13 Pursuant to the
going and coming rule, injuries resulting from accidents during an employee’s
regular travel to and from work are non-compensable14

The Delaware Supreme Court recently clarified the two-step analysis for
determining whether an employee’s injury falls within the course and scope of
their employment as opposed to being not compensable pursuant to the going and
coming rule.15 First, the Board must focus on the employment agreement between
the employer and employee to see if it “resolves the issue of whether the injury
arose out of and occurred in the course of the [employee’s] employment.”16 If the

employment contract gives the necessary guidance, the analysis stops there.17 If,

 

8 Id. (citing Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 345 (Del. 1993)).

9 Id.

1° Id. (citing Tickels v. PNC Bank, 703 A.2d 633, 637 (Del. 1997)).

11 Ia'.

12 See 19 Del. C. § 2301 (18) a. (providing that “[p]ersonal injury sustained by accident arising
out of and in the course of the employment [s]hall not cover an employee except while the
employee is engaged in, on or about the premises where the employee’s services are being
performed, which are occupied by, or under the control of, the employer or while the
employee is engaged elsewhere in or about the employer’s business where the employee’s
services require the employee’s presence as part of such service at the time of the injury. . .”).
13 Spellman, 74 A.3d at 623 (citing Histed, 621 A.2d at 343).

14 See Histed, 621 A.2d at 343 (providing that the rationale for this doctrine is that during an
employee’s daily commute, they face the same risks as the general public).

15 Spellman, 74 A.3d at 625.

15 Id.

17 Id.

however, the employment agreement does not resolve the dispute, the fact finder

”18 The exception to the going

must look to a “veritable potpourri of exceptions
and coming rule most arguably applicable in this instance is the special errand
exception. Under the special errand exception, the going and coming rule does not
apply when the accident occurs during a work-related trip that, because of the
special inconvenience, hazard or urgency of` making the trip, rises to the level of a
special errand that is integral to the work itself.19

Applying Spellman’s two-step test, the Court must first examine the
employment agreement between the parties Employment agreements may be
written, but are also often based upon oral terms and the course of conduct between
the parties20 As the Board correctly noted, the Employer presented no written
employment contract or agreement between it and Mr. Gates Rather, it presented
only a written policy outlined in the State’s Merit Rules The Board found no
evidence suggesting that Mr. Gates received a copy of the Merit Rules. Instead,
the Employer merely referenced the Merit Rules during his new employee
orientation. The Board found that the Employer provided him with only an
employee handbook and information regarding where to find the Merit Rules.

Employee handbooks, such as the one Mr. Gates received, are generally not
considered employment contracts because they lack the traditional prerequisites of

a contract.21 Delaware courts have found that an employee handbook can supply

 

18 See Spellman v. Christiana Care Health Ser'v., 2012 WL 1980341, at *l (Del. Super. May 17,
2012) (exceptions to the going and coming rule include the special errand exception, the
personal comfort exception, and the exception where a personal trip has both a personal and
professional purpose) and Spellman, 74 A.3d at 624 (noting further exceptions to the going and
coming rule including the compensation exception, the premises exception, and the exception for
traveling employees).

19 Spellman, 74 A.3d at 624.

2° Kerly v. Battaglia, 1990 WL 199507, at *2 (Del. Super. Nov. 21, 1990).

11 See 27 Am. Jur. 2d Employment Relationship § 10 (2014) (recognizing generally that
employee handbooks are not considered employment contracts, unless it is clearly indicated so,
because employment handbooks are a “unilateral Statement of company policies and procedure,

terms to an otherwise unwritten contract between employers and employees if the
parties intended it to do so.22 To determine if a provision contained in an employee
manual is part of the employment contract, “the trier of fact must examine the
language used in the manual and any oral representations or course[s] of conduct

”23 Likewise,

[that] support a reasonable reliance on the part of the employee.
policy provisions such as Merit Rule 4.16 may supply terms to or outline an
employment agreement if the parties so intended.

Here, however, the Board found that Merit Rule 4.16 did not add a term to
Mr. Gate’s employment agreement In reviewing the record to evaluate whether
substantial evidence supported the Board’s decision, the Court finds that it contains
Ms. Ford’s testimony that the Merit Rules were “part of basically [Mr. Gates’s]
contract of hire,” that the Merit Rules were “referenced” during the new employee
orientation, and that the Merit Rules were “likely referenced” in a welcome packet
that employees received.

The Board articulated in its decision, however, that as the finder of fact, it
found Mr. Gates’s testimony to be more credible regarding the issue. In relying on
his testimony, it found that the parties’ course of conduct regarding call-back time
was different than that prescribed in the particular Merit Rule at issue. Moreover,
Merit Rule 4.16, by its very language, qualifies itself by providing that it
constitutes only “Guidelines and Recommena’ed Procedure[s]” for call-back pay.
The Court’s reliance on the parties’ actual course of conduct in assessing the terms
of his employment contract was supported by the record.

In light of this evidentiary finding, it was not legal error for the Board to find

the injuries to be compensable As the Delaware Supreme Court held in Histed v.

E.I. DuPont de Nemours & Co., “a compensated trip is within the course and scope

 

because its terms are not bargained for, and because no mutual consent occurs”).
12 Kerly, 1990 WL 199507, at *2.
21 Id.

of employment.”24 In Mr. Gates’s case, the employment agreement provided that
the trip at issue was compensated. It therefore follows that Mr. Gates’s injuries are
compensable work injuries

In reviewing the Board’s decision, the Court also finds that the Board
correctly recognized that the Spellman two-step test should not permit an employer
to avoid compliance with the Worker’s Compensation Act as excluding by policy
or rule that which should be compensable based upon a common part of the
employment25 The General Assembly enacted the Worker’s Compensation Act to
be a remedial law and it should be “interpreted liberally to fulfill its intended
compensation goal.”26 Coverage must not be denied “wherever the injuries can
fairly be characterized as arising out of the employment.”27

In this instance, the Board believed Mr. Gates’s testimony that he was
instructed by his senior co-workers to start recording his call-back time from the
moment he received the call-back. Mr. Gates adopted this practice and submitted
multiple time sheets while following this practice. The Board also believed his
testimony that his supervisors had never corrected him for following this
procedure. The Board permissibly found that he was furthering the Employer’s
business at the time of the accident. Had he not received the call-back, he would
not have been in that specific location at the time of the accident, Accordingly,
the Board’s finding that Mr. Gates’s trip to retrieve equipment to respond to an

after hours emergency ca11 arose out of and in the course of his employment was

supported by substantial evidence.

 

11 Histed, 621 A.2d at 345.

15 See 19 Del. C. § 2305 (providing that “[n]o agreement, rule, regulation or other device shall in
any manner operate to relieve any employer or employee in whole or in part from any liability
created by this chapter, except as specified in this chapter.”).

16 Histed, 621 A.2d at 342.

11 Collier v. State, 1994 WL 381000, at *2 (Del. Super. Jul. 11, 1994).

The State relies on State v. DeSantis28 in support of its argument that Mr.
Gates’s injuries were not compensable That case is properly distinguished In
DeSantis, the plaintiff was injured on his way home from an after hours function
that was not included as a compensable time pursuant to his employment
contract.29 Mr. Gates on the other hand was injured on his way to the worksite to
retrieve equipment and to respond to an accident, As the Board found, this task
included activities that, based upon the course of conduct between the parties
included time for which he received compensation The court in DeSantis found
that the terms of the employment contract expressly stated that the claimant would
not be compensated for travel time or mileage for travel between home and Work.30
To this effect, there was no dispute that the employment contract at issue in
DeSantis did not include paid travel time31 In the case at hand, however, the
Board made the factual finding that the terms of Mr. Gates’ employment contract,
though not in writing, provided that Mr. Gates’s injury occurred while he was in
the course of his employment and that it arose out of his employment because his
employment agreement provided that he would be compensated for that time

The State further argues that the Board’s interpretation of Spellman would
enable any employee to disregard the terms of their contract as long as they did so
with regularity. The Court disagrees As the Board permissibly concluded after
considering the totality of the circumstances Merit Rule 4.16 did not provide a
term of his employment agreement.

A totality of the circumstances review, by its very nature, is an intensely
factual matter. Here, the Board permissibly found that under the totality of the

circumstances Mr. Gates’s employment contract fixed, as compensated, the time

 

18 State v. DeSantis, 2017 WL 4675765, at *3 (Del. Super. Oct. l7, 2017).
19 Ia'. at *l.

1° Ia'. at *3.

11 Id.

10

he traveled to the worksite to retrieve equipment after receiving his call-back.
Given the substantial evidence supporting that finding, the Court elects not to
address the Board’s alternative ruling that if the employment agreement did not
address the issue, the secondary default presumption regarding special errands
requires the same result.

IV. CONCLUSION

For the reasons discussed, the Board’s decision in this matter is

AFFIRMED.
IT IS SO ORDERED.
/s/ Jeffrey J Clark
Judge
JJC/dsc

oc: Prothonotary

11

