Smith v. Husky Terminal Restr., Inc.

GOLDEN, Justice.

Appellant Dorothy E. Smith (employee) challenges the trial court’s order denying her temporary total disability benefits under W.S. 27-12-402 (June 1983 Repl.)¹ She presents the following issues on appeal:

I. Whether the injury sustained by the Claimant arose out of and in the course of employment.

A. Whether there is a causal nexus between the accident of the Claimant and the course of employment.

B. Whether the accident occurred due to the employee acting outside the ultimate work to be done or whether the accident occurred when the employee used a prohibited method of work in her course of her employment.

II. Whether the trial court used the proper test in evaluating the evidence before it.

III. Whether the trial court erred in delaying its order pursuant to Wyo.Stat. 27-12-604(d) (1977), by delaying its order from the hearing of April 15, 1987 to issuing an order on February 1, 1988.

We affirm.

In October of 1985, employee became a cashier for appellee Husky Terminal Restaurant, Inc. (employer), in Pine Bluffs, Wyoming. She held that position through mid-January 1986, when she was laid off temporarily and then rehired as a dishwasher. A few days later employer hired her to cook. She held that position through July 1986. One of her cooking duties during that time involved draining a five-gallon bucket of marinated chickens. She did this task many times between January and July of 1986. Sometime during this same time period she began to feel pain in her back. She was uncertain what caused this pain; neither party could say it was work related. She complained of back pain to her supervisor, Mr. Santini, and he told her to see a doctor. The doctor gave her muscle relaxers, and ordered rest and relaxation. This treatment did not stop the pain, and eventually she was admitted to a hospital for some bed rest. This treatment worked, and employee later returned to work at the restaurant as a waitress. Her doctor ordered her not to do any heavy lifting, particularly not to attempt to lift anything heavier than fifteen pounds.

During the late summer of 1986, Mr. Santini and his supervisor, Mr. Olson, contacted employee’s doctor to inquire about her ability to return to work as a fill-in cook at the restaurant. In early September employer received a letter from employee’s doctor stating that employee’s work must not include any lifting of objects heavier than fifteen pounds.² At employee’s hearing she testified that this letter was posted above the desk in the restaurant office after it was received. At the same hearing Mr. Santini testified that upon receiving this letter he met with employee and the assistant manager to discuss the medical weight restriction that had been imposed upon employee’s work. This discussion concerned her reemployment as a fill-in cook at the restaurant conditioned on her agreement not to lift anything heavier than fifteen pounds. He also gave her instructions to have someone else lift any heavy items for her if that became necessary.

After the lifting restriction was imposed, employee returned to the restaurant working as a fill-in cook. Employee testified that during this period she did ask other restaurant personnel to lift the marinating chickens for her. While working the October 10-11, 1986, night shift, employee found the bucket of marinating chickens in the walk-in cooler and tried to drain them by herself. Lifting the bucket, she injured her back. Employee’s explanation for picking up the bucket was that the restaurant had become extremely busy during the early morning of October 11, 1987, and she had so much work to do that she just did not stop and remember that the bubket of marinating chickens was too heavy for her. She also testified that she had tried to awaken employer’s temporary manager, Mr. Stockmeyer, who was sleeping in a trailer behind the building, to lift the bucket for her. She testified that, before lifting the bucket, she slapped on the door of his trailer on her way by it to dump some grease. Last, employee indicated she knew the chickens had to be drained before the next cooking shift, and she feared not draining them might endanger her job as a cook.

Employer countered these explanations with testimony that the night of October 11, 1987, was not a particularly busy night at the restaurant with roughly sixty orders during a six-hour shift. Mr. Santini testified that it was not an extraordinary shift. Neither party introduced any evidence concerning when the orders came in during the course of the shift. Mr. Stockmeyer testified that he never heard employee slap the side of his trailer that night. None of the restaurant managers indicated that employee had a reason to believe her job was in jeopardy if she did not drain the chickens before going off her shift.

After injuring her back, employee returned to her doctor at the urging of an assistant manager. She was treated with more bed rest, therapy, and pain medication, none of which relieved the pain. Eventually, employee’s back was treated surgically. Her ability to work is now limited to light housework.

Employee filed her claim for temporary total disability on October 28, 1986. Employer made a proper written objection on January 22,1987, and a hearing was set for April 15, 1987. The testimony described above was heard at that hearing, which took place as scheduled. Based on the evidence introduced at the hearing, the district court issued a January 7, 1988, decision letter denying benefits. The order denying benefits was filed on February 3, 1988. This appeal followed. Culpable negligence is not an issue presented in this appeal since the district court expressly found that employee was not intentionally or culpably negligent.

Employee’s first issue is whether an employee who knows and understands specific work restrictions adopted for her safety, exceeds the scope of her employment and loses her rights to benefits under the worker’s compensation statutory provisions by disregarding those restrictions. If the answer is “yes,” we must also review this record to determine if sufficient evidence exists to support the district court’s denial of benefits.

For an injury to be compensable under the worker’s compensation system as it existed at the time of employee’s injury, the employee’s injury must “arise out of and in the course of [the] employment. § 27-12-102(a)(xii), W.S.1977 (June 1983 Replacement).” Claims of Naylor, 723 P.2d 1237, 1241 (Wyo.1986). The injury and the employment must also be causally connected. Id. The employee has the initial burden to prove these and all other essential elements of a claim by a preponderance of the evidence. In the Matter of Bagshaw, 753 P.2d 1044, 1045 (Wyo.1988).

Our standards of review in worker’s compensation cases further require that we review the district court’s factual findings by accepting the evidence of the successful party below as true. We do not consider conflicting evidence presented by the unsuccessful party below, and we grant every favorable inference that can be fairly and reasonably drawn from the successful party’s evidence. Id.; and Matter of Injury to Klevgard, 747 P.2d 509, 510 (Wyo.1987).

Precedent concerning the type of misconduct that is a deviation from the scope of a particular employment focuses on whether the employee knowingly does certain work specifically prohibited, as opposed to an employee’s doing authorized work in an unauthorized way. Bill Lawley Ford v. Miller, 672 P.2d 1031, 1033 (Colo.App.1983); and Brown v. Arrowhead Tree Service, Inc., 332 N.W.2d 28, 30 (Minn.1983). Professor Larson articulates this distinction as the difference between a work restriction on the ultimate work to be done and a work restriction concerning the method by which the ultimate work is to be done. 1A A. Larson, Workmen’s Compensation Law, § 31.00 at 6-8 to 6-14 (1985). See also Id., § 27.14 at 5-325 to 5-327 (1985) (citing Hoover v. Ehrsam Company, 218 Kan. 662, 544 P.2d 1366, 1370 (1976); Scheller v. Industrial Comm’n, 134 Ariz.App. 418, 656 P.2d 1279, 1281 (1982)); and Witt v. Marcum Drilling Company, 73 N.M. 466, 389 P.2d 403 (1964). A specific restriction on the ultimate work to be done can restrict a task of the same character as other tasks which are not prohibited, and still place the prohibited task outside the scope of an employment. See, e.g., Brown, 332 N.W.2d at 29; and Scheller, 656 P.2d at 1280.

This court has recognized this scope of employment rule but has never applied it directly. See Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203, 207-208 (1943) (decided on the issue of culpable negligence). Although not quoting the rule, we used its rationale in Richard v. George Noland Drilling Company, 79 Wyo. 124, 331 P.2d 836, 839-840 (1958), where we affirmed a district court order denying benefits to a worker who was asphyxiated while sleeping on the floor of the oil drilling rig without his employer’s permission.

Considering this precedent, it is apparent that there are limited situations in which an employer can put on evidence to refute an employee’s preponderance showing that the work causing her injury occurred within the scope of her employment because a work restriction was violated. We hold that an employee can be found to have acted outside the scope of employment by violating a work restriction when the following elements are shown: (1) the employer expressly and carefully informs the employee that she must not perform a specific task or tasks while in his employ; (2) the employee knows and understands the specific restriction imposed; (3) the employer has not knowingly continued to accept the benefit of a violation of the restriction by the employee; and, (4) the injury for which benefits are claimed arises out of conduct that clearly violates the specific restriction.

In this case the presence of these four elements is supported by sufficient evidence. Before employee began working as a cook, which she was doing when she reinjured her back, her employer gave her specific and express instructions not to lift anything heavier than fifteen pounds. Her employer did not rehire her as a cook until it received written confirmation from her doctor of what her physical capabilities would be. Her employer discussed this with her and posted her doctor’s letter above the manager’s desk. Employee’s own testimony was that she understood the restriction on lifting the bucket of chickens; further, she had asked other restaurant employees to drain the bucket of chickens for her on occasion before she injured herself at work. Employee considered this restriction on the night of her injury, as illustrated when she tried to awaken Mr. Stockmeyer to lift the bucket for her before she tried to lift it herself. Employee failed to present any evidence, other than her own opinion, to substantiate her fear that by failing to drain the chickens she might be fired. Employer was not shown to have accepted the benefit of any previous violation of the specific lifting restriction before employee injured herself lifting the bucket. The district court heard all of the testimony and determined that employee, despite her complete understanding of the lifting restriction, disregarded the restriction and caused the type of injury the restriction was intended to prevent. We must accept these findings of fact by the district court; they support the conclusion that employee’s injury did not occur within the scope of her employment.

Employee’s second issue questions the test the district court used to evaluate the evidence it received at the hearing. We quote from the court’s decision letter:

In arriving at my decision I have kept in mind the rule of construction, often repeated by the Supreme Court, that the Worker’s Compensation statutes should be interpreted reasonably and liberally to protect the workers. At the same time it is necessary to keep in mind the rights of the employers who fund the system. A compelling observation was made by the Court in Bartley v. C-H Riding Stables, Inc., 206 N.W.2d 660, 662 (Minn.1973).

[T]o hold the employer liable for an injury incurred while performing a prohibited act is to force the employer to become a constant watchdog. No course would be available to the employer to prevent infractions save the firing of an employee doing a prohibited act.

Employee argues that this language shows some sort of trial court preference for employers over employees in worker’s compensation decisions. We disagree. Through this language, the district court simply recognizes both the purpose behind the worker’s compensation statutes and the practicalities faced by the district court in applying their mandate. We will not presume prejudicial error. Anderson v. Bauer, 681 P.2d 1316, 1325 (Wyo.1984). To prevail on this issue, employee must show that this language resulted in prejudice to her case or that a different outcome was possible absent the considerations set out by the trial court in this language. Id. She has failed to do so.

Employee’s third issue alleges prejudice because the district court took this case under advisement at the April 15, 1987, hearing, but did not issue a final order denying benefits until February 1, 1988. We know W.S. 27-12-604(d) (June 1983 Repl.), provides:

(d) At the conclusion of the hearing, the judge shall enter an order pursuant to the verdict of the jury. If no jury was called, the judge shall render a decision upon the facts and law of the case pursuant to the provisions of this act, and make an order -allowing or disallowing compensation as the law and evidence may warrant.

Employee argues that the spirit of the worker’s compensation statutes is violated when a district court waits over eight months to issue its order under this statute. She then claims the delay itself is grounds for reversal of the order, but cites no authority upon which such a reversal would be based; further, her argument makes no showing of resultant prejudice. Accordingly, we need not consider this issue. See Kipp v. Brown, 750 P.2d 1338, 1341 (Wyo.1988).

AFFIRMED.

URBIGKIT, J., filed a dissenting opinion.

1 . W.S. 27-12-101 through 27-12-805 (June 1983 Repl.) was repealed and recreated as W.S. 27-14-101 through 27-14-804 (June 1987 Repl.) 1986 Wyo.Sess.Laws, Sp.Sess., ch. 3, § 3.

2 . The record shows that this letter was received into evidence at appellant’s hearing as Employer’s Exhibit A, and that no objection was made by appellant to its introduction. The letter does not appear in the record transmitted to this court.