Written by Andrew Willis, Esq.
Edited by Rachel Riordan, Esq.
Back in September, KPM’s Joe Smith updated you about the Commission’s recent decision of Norris v. ETEC Mechanical Corporation, JCN:VA00001317384 (June 25, 2018). Norris involved a claimant who sustained serious injuries in a car accident after he fell asleep at the wheel.
By Norris’s own admission, he “dozed off.” He said he’d done it before and added that “I guess this time I didn’t wake up.” The Commission denied benefits, holding that the accident did not “arise out of” his employment. Specifically, the Commission found that Norris had failed to prove a “causal connection between [his] employment and his untimely slumber…”
Since Joe’s update, the Court of Appeals reviewed the Commission’s decision in Norris. In the published decision of Norris v. ETEC Mechanical Corporation, Record No. 1054-18-2 (Dec. 28, 2018), the Court agreed with the Commission that Norris could not recover under the Workers’ Compensation Act.
The Court’s Norris opinion begins by explaining the difference between an injury occurring “in the course of” employment and “arising out of” employment. Norris, who was driving a company vehicle at the time of his crash, was clearly “in the course of” his employment. However, Norris still needed to prove a “’critical link’ or causal connection between the conditions of his work and falling asleep behind the wheel.” The Court held he failed to do this.
The reason Norris lost was because he “denied knowing what caused him to fall asleep.” Although he “testified that he dozed off because he was tired,” he “never related his drowsiness to his employment.” He also admitted that the week at work had been “normal” and “wasn’t that bad, actually.” Therefore, there was no way to conclude that anything specific about Norris’s job led to his accident.
Overall, Norris is a good result for employers. It means that even if a claimant is clearly driving for work, the claimant cannot recover benefits under the Act solely because of falling asleep at the wheel. Further, because the Court of Appeals published its decision, it is binding precedent that the Commission must follow.
However, when you are making the decision of whether to accept or deny a claim, it is also important to remember what Norris does NOT say. The Court of Appeals in Norris did NOT say that falling asleep at the wheel will ALWAYS prevent a claimant from recovering benefits under the Act. Instead, the Norris opinion strongly suggests that a claimant who can say, “I was tired because I had a tough day at work and that’s why I fell asleep at the wheel” CAN RECOVER. This is why your recorded statement will be critical.
In cases involving claimants who fell asleep at the wheel, your recorded statement will be your best opportunity to ask the claimant “why did you fall asleep?” At that point in the claim, the claimant will be focused what actually happened, not on how to give a legally savvy answer.
If the claimant says “I don’t know” or “I was just tired,” that makes it more likely you should deny the claim. However, you should also ask questions like, “has this happened before?” and “did any factors from outside of work contribute to your being tired?” If the claimant suggests that being tired had something to do with work, find out whether work actually made the claimant tired enough to fall asleep or if the claimant would have fallen asleep, anyway.
As you can see, even though Norris offers some protection against claimants who fall asleep at the wheel, there are many factors that can make your claim more complicated than the Norris case. For that reason, the attorneys at KPM are happy to answer your questions about this topic…or any others!