ANALYSIS OF DECEMBER 28, 2010 CAV OPINIONS[Posted December 28, 2010] In case you thought your year’s supply of caselaw was complete, the Court of Appeals gives us two published opinions to top off the old year. In addition, the court enters an order on rehearing remanding Farmer v. Commonwealth in the wake of the Supreme Court’s ruling in Cypress v. Commonwealth.
Lysable Transport v. Patton is important for two holdings that will be of keen interest to Workers’ Comp practitioners. The employee sustained injuries when he ran a company truck off a road n 2007. The company began paying him temporary total benefits immediately, without a formal claim or an award. The employee eventually did file that claim with the Commission just before the two-year deadline, but in response, the employer had an unpleasant surprise for him: It denied that the injury was compensable.
The employee predictably read this and blinked in incomprehension. If it isn’t compensable, why have you been paying me all these benefits for two years? A deputy commissioner ruled in favor of the employer, but on appeal, a majority of the full commission reversed and entered an award in favor of the employee. The award was primarily based on the de facto award doctrine – the commission treated the employer’s continued stream of payments as an admission that the award was compensable. In what barely rises above dicta, the majority also finds that the evidence proves that the injury arose from either one of two compensable causes (either the employee fell asleep at the wheel or he was distracted and ran off the road), so the employee was entitled to benefits.
One commissioner dissented, maintaining that the de facto award doctrine doesn’t apply unless the employer concedes compensability, and that didn’t happen here. He also challenged the sort-of finding on the merits, since the employee (who bears the burden to show how the injury happened) didn’t prove which of the compensable causes was the right one.
Today, a unanimous panel of the Court of Appeals first takes up the de facto award doctrine, and rules that it indeed does not apply where compensability is in dispute. All of the cases in which the common-law doctrine has been applied have involved concessions by the employer as to compensability, and the court today rules specifically that it won’t help an employee whose employer denies that the injury is compensable.
As if that weren’t reason enough for Comp lawyers to study this opinion, the court takes up the second, merits-based ground for the award, and issues a thoroughly newsworthy ruling (at least in the Comp field). It rules that merely showing that the cause of an injury was one of two possible causes, either of which would be compensable, isn’t enough, given the employee’s burden of proof. This one is destined to send claimants’ lawyers howling in protest, since it allows certain employers to escape liability by virtue of injured employees’ inability to recall exactly what happened, even though all signs eventually point to compensability. The panel is sensitive to this concern, but it shrugs the problem across Ninth Street, holding that it’s up to the legislature to fix the problem caused by the burden of proof.
The court also decides today the heartbreaking criminal case of Whitfield v. Commonwealth, involving the death of a 13-month-old child due to the inattention of a transport driver for a day-care center. The driver dropped off a number of children at the center, but inexplicably left one child strapped into a car seat immediately behind the driver’s seat. He then went home and straight to bed, where he slept all day with his cell phone turned off.
The van he had driven was parked outside on a July day with the windows rolled up. The child died of heat exposure after being exposed for hours to interior temperatures that may have reached close to 125 degrees Fahrenheit, according to the medical examiner. The trial court convicted the driver of involuntary manslaughter and felony child neglect.
The primary issue in this appeal is whether the prosecution established beyond a reasonable doubt the element of criminal negligence. The driver contended that the evidence showed only a “single act of simple negligence.” The CAV panel disagrees today, reciting each negligent step in the chain that led to the tragic death. The driver ignored a protocol of log-in systems that were designed to ensure that all children were fully accounted for at all times. He then failed to check the interior of the van when he got home and rendered himself beyond reach for a period of several hours.
The panel has no trouble in affirming the trial court’s conclusion that this conduct amounted to much more than a single negligent act, and that the outcome was foreseeable. Criminal-law practitioners will note the court’s holding that a higher standard applies when dealing with children than with adults in situations like this.