The outcome in this case took my by surprise. Let’s see what you think.
An armed ADT guard was responding to a burglary signal and was driving to the site. He got into a vehicular accident and was seriously injured. Sounds fairly straightforward and seems like he would be entitled to workers’ comp, which covers employee injury when they are injured on the job performing their job duties.
The workers’ comp hearing officer found that the cause of the accident was that the employee fell asleep at the wheel. The governing law is Nevada Industrial Insurance Act (NIIA) and the specific law is “the street-risk rule,” which provides that an injury is compensable so long as the employee’s duties require a presence upon public streets and the “injury arose from an actual risk of presence upon the streets.”
The hearing officer acknowledged, and the parties do not dispute, that employee was in the course and scope of his employment at the time of the accident and that he sustained injuries. The hearing officer found that the employee to demonstrate that the act of falling asleep was related to a risk of being present on the streets.
Though recognizing that the injury occured during the course of employment it did not arise because of the injury was not caused by an inherent risk of traveling on the street, but by the employee falling asleep. There is causal relationship between the injury and the inherent risk.
The Nevada court ruling relied on a Virginia case where the court also found that falling asleep while driving was a personal condition, analogous with a medical condition, that the injury not attributable to any action taken by the employer.
The employee argued that ADT policies was to blame, specifically, that an employment risk existed because ADT either lacked adequate policies, procedures or training or failed to follow the same as demonstrated by the fact that ADT knew he had a propensity for falling asleep on the job yet it permitted him to drive in connection with his employment.
The argument was rejected, as follows:
“In concluding that Bright was not entitled to workers’ compensation under a mixed-risk analysis, the appeals officer found that ‘the employer did not have any inadequate policies, procedures or training that [led] to the motor vehicle accident’ and that ‘the employer did not fail to do anything that could have prevented or decreased [Bright]’s injury.’
“Relevant to these findings, during the administrative proceedings, Bright failed to present any evidence indicating what the standard practice in the industry is for circumstances similar to those presented here or whether ADT had, and followed, appropriate policies, procedures, and training to address this situation.
“Absent such evidence, ADT’s knowledge that Bright had previously fallen asleep on the job is insufficient to demonstrate that ADT failed to take any action that could have prevented or decreased his injury.”
Full details of the case are here.
“Legal Briefing” columnist Ken Kirschenbaum has been a recognized counsel to the alarm industry for 35 years and is principal of Kirschenbaum & Kirschenbaum, P.C. His team of attorneys, which includes daughter Jennifer, specialize in transactional, defense litigation, regulatory compliance and collection matters.
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