Asleep at the Wheel: When Does Exhaustion While Driving Arise Out of the Employment?

Written by Joe Smith, Esq.

Edited by Rachel Riordan, Esq.

It is common for claimants to request workers’ compensation benefits after being involved in motor vehicle accidents. As in all claims, the motor vehicle accident must “arise out of” the employment to be found compensable. Motor vehicle accidents that happen on public roadways may be found to arise out of the employment subject to the “actual risk test.” Mktg. Profiles, Inc. v. Hill, 17 Va. App. 431, 434-35, 437 S.E.2d 727, 729-730 (1993). Under the actual risk test, it is the claimant’s burden to prove that the accident arose from an actual risk caused by his presence on the street. Hill v. S. Tank Transp., Inc., 44 Va. App. 725, 730, 607 S.E.2d 730, 732 (2005) (citation omitted). So what happens if a claimant is injured in a motor vehicle accident after falling asleep at the wheel? This question was recently considered by the Full Commission in Norris v. ETEC Mechanical Corporation, JCN: VA00001317384 (June 25, 2018).

In Norris, the claimant was involved in a motor vehicle accident while driving home in a company vehicle at the end of the day. He was 200 yards from his home when he ran off the road and struck a tree. He suffered severe injuries to multiple body parts as a result of the accident. It was undisputed that the claimant ran off the road because he fell asleep at the wheel. It was also undisputed that he was in the course of his employment because the employer provided the means of transportation to and from his home. The claimant testified that he “dozed off” before the accident occurred and that he “got tired in the evenings, and sometimes more so than others.” He agreed that it had been a normal work week and he could not provide a reason as to why he fell asleep. He was doing physical work that day, but he did not describe his tasks as more strenuous than usual.

The Deputy Commissioner denied the claim, finding that the accident did not arise out of the employment because the evidence did not establish that there was anything unusual about the work that day that caused him to fall asleep at the wheel. The Full Commission affirmed the Deputy Commissioner in a 2-1 decision, finding that the Claimant did not prove a causal connection between his work conditions and falling asleep on the drive home. The majority relied upon the fact that the claimant did not offer any testimony or documentary evidence to support why he feel asleep in concluding the accident did not arise out of the employment.

Interestingly, the majority also considered whether the “actual street-risk rule” supported a finding of compensability even though the claimant did not raise that argument. The actual-street risk rule provides that “if the employment occasions the employee’s use of the street, the risks of the street are the risks of the employment.” Mktg. Profiles, Inc., 17 Va. App. at 435, 437 S.E.2d at 730 (quoting 1 Arthur Larson, Workers’ Compensation Law § 9.40 (1993)). In this matter, the majority declined to interpret the rule so broadly that it would include an unexplained vehicular accident that occurred for an unknown reason. The claimant in this matter failed to prove how the hazards of the street caused his injuries, only that he was injured while on the street.

The dissenting Commissioner disagreed with the majority and opined that falling asleep at the wheel was a risk of the employment based upon the actual street-risk rule. He reasoned that because the claimant was driving a company vehicle when he fell asleep and hit a tree, the employment placed him in a position to be involved in a motor vehicle accident. He also considered a workers’ compensation case raising a similar issue from the New Hampshire Supreme Court which found that as a matter of law, a claimant’s employment was a substantial factor in falling asleep at the wheel. Appeal of Kelly, 167 N.H. 489, 114 A.3d 316 (2015). The Commissioner adopted the Kelly reasoning to find that when a claimant’s work places him in a position of operating a vehicle, failing to prove the cause of falling asleep should not determine whether the accident arose from the employment. He noted that in Virginia, the key focus is the relationship between the injury and the employment, not the injury and its cause. Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 560, 721 S.E.2d 32, 40 (2012). He also cited to a number of cases where injured passengers were not required to prove the cause of the motor vehicle accident in Virginia, and thus argued that the majority opinion would create inconsistent opinions. Finally, he noted that an employee with an idiopathic condition that causes a motor vehicle accident during work related travel is entitled to compensation, even though it is unrelated to the work. Campbell v. Sentara Rehabilitation, Inc., VWC File No. 220-55-28 (Oct. 13, 2005). The Commissioner found that in total, the majority’s opinion will lead to inconsistent results and therefore the claimant’s accident should have been found compensable.

Overall, this opinion provides a useful outline in determining when falling asleep at the wheel should be denied as not arising out of the employment. The majority’s opinion confirms that the claimant must establish some aspect of the employment caused him to fall asleep. The dissenting Commissioner raises some interesting questions regarding the inconsistencies in applying the “arising out of” analysis in motor vehicle accident claims. As it stands, the Commission does not apply the actual street-risk rule so broadly that simply falling asleep at the wheel (without proving a work-related reason for falling asleep) is compensable.

If you need any assistance in evaluating the compensability of a motor vehicle accident, our workers’ compensation team is always ready to help.

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