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Robertson v. Cardi Corp.5/31/2005
e employer was not exercising control that would satisfy the second criterion of DiLibero." (Tr. Dec. p. 7)
The employee claimed an appeal from this decision and has filed three (3) reasons of appeal in which he alleges that the trial judge's conclusion that he was not injured during the course of his employment was clearly erroneous.
The scope of appellate review of a trial judge's decision is set forth in the Workers' Compensation Act. Section 28-35-28(b) of the Rhode Island General Laws states that the findings of fact made by a trial judge are final, unless the appellate panel finds them to be clearly erroneous. The Appellate Division is barred from undertaking a de novo review of the evidence absent an initial finding that the trial judge was clearly wrong. Diocese of Providence v. Vaz, 679 A.2d 879 (R.I. 1996). Reviewing the decision of the trial judge in this matter with this standard in mind, we conclude that the trial judge's findings are not clearly erroneous.
The issue in this case is whether the particular circumstances of the employee's injury are sufficient to warrant granting an exception to the "going and coming" rule. The "going and coming" rule is a basic policy which operates to deny workers' compensation benefits to employees who are injured while traveling, on foot or in a vehicle, to and from the actual workplace. Over the years, the courts have allowed exceptions to this general rule based upon very specific fact patterns which established a sufficient nexus to the employment to render the claim compensable. In one (1) of the earlier cases allowing such an exception, the Rhode Island Supreme Court established three (3) criteria to be considered in determining whether a sufficient nexus to the employment existed:
1. Did the injury occur within the period of employment?
2. Did the injury occur at a place where the employee might reasonably have been expected to be?
3. At the time of the injury, was the employee fulfilling his job duties or performing some task incidental to those duties or to the conditions under which those duties were to be performed?
See DiLibero v. Middlesex Construction Co., 63 R.I. 509, 9 A.2d 848 (1939).
It has been well-established that the "period of employment" includes a reasonable time both before and after an employee's regular hours of work. Branco v. Leviton Mfg. Co., Inc., 518 A.2d 621 (R.I. 1986). Mr. Robertson had obviously not yet started his workday as he was still in his personal vehicle on Route 95. The employee argues that because the accident occurred within twenty (20) minutes of when his shift began, it was within a reasonable time of the start of his workday. However, the court's expansion of the "period of employment" beyond the normal work hours has generally occurred in circumstances where the employee is still on the employer's premises or in an area that the employer controls or has directed the employee to travel through. See Rico v. All Phase Electric Supply Co., 675 A.2d 406 (R.I. 1996; Branco v. Leviton Mfg. Co., Inc., 518 A.2d 621 (R.I. 1986); DiLibero v. Middlesex Construction Co., 63 R.I. 509, 9 A.2d 848 (1939).
With regard to the second prong of the DiLibero criteria, the employee argues that because the only entrance to the work site was from the northbound lane of Route 95 that he was in a place where the employer would reasonably expect him to be when the accident occurred. However, this rationale would impose liability on an employer any time an employee was in a motor vehicle accident while approaching the driveway or entrance to the employer's property. A factor to consider regarding this condition is the element of
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