Appeal of Amguard Insurance Group et al.

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of Amgard Insurance and the employer of Rudy and Greenwood. Is it, uh, well, first thing here is the claimant was on a purely personal errand on November 10th, when he was 2020 when he was involved in a motor vehicle accident. Uh, the claimant asked to leave work. The employer did not instruct the claimant to go and retrieve his motorcycle and put it in storage. Uh, the claimant did not receive a call to conduct any type of business activity while he was on his sojo of getting his motorcycle in, bringing it back to storage. Uh, he wasn't on any special errand or special duty, and the claimant's job confined him to a two building area, 9 77 Elm Street in 10 15 Elm Street. He was the maintenance person for 10 17 or 10 15. I keep getting those numbers mixed up. 10 15 Elm Street, which contained Beru and Greenwoods, the owner, apartment complexes, laundry room, and everything in that three or four story building. And Mr. Messina was responsible for cleaning that, and he was also responsible for cleaning the Zoo Gym 250 feet down the road. He walked between 10 15 and 9 77. So at the time of injury, and that's where we need to look, we need, we need to have this analysis of what was going on at the time of the injury. And that's cited in, uh, Whitmore, uh, versus Sullivan County. So you don't Dispute that he was told to hurry back that he still had to clean the gym? Yes. That is disputed because the board, what did the board say about credibility and, uh, that little issue here? I think they said the claimant was more credible than your clients or your witnesses. I believe the, the board said that, uh, maybe in the rehearing it was, he was more credible, but that doesn't adjust the facts. Okay. What the board said was, although both were credible, so I don't know if we're going down the road of determining degrees of credibility between the employer and the, and the employee, the employee and the employer. On on page four of the order, it says, overall the claimant is found to be more credible. Isn't that what it says? Yeah. A a and it also says it appears that both enhance their positions by shades of emphasis and deemphasis the credibility. Where now what part, Well, hurry back, for example, you say it wasn't said right. And, and he testified that it was said He, he explained that, he explained what that meant. Uh, Mr. Messina did, he says, I think that's just a phrase. Somebody would say, okay, hurry back or go back. I mean, it wasn't like Michael Ghost speed as fast as you can and get back here and get this done. This is in the appendix page 1 61. So it wasn't, it in the claimant's mind, it wasn't, uh, a directive. It was like something somebody says. And even the, the board in its original decision states, the board credited Mr. Baruch's testimony, the employer's testimony, when he agreed to allow Mr. Messina to get his bike, he assumed that he was done for today. Look at the day prior, the day prior, he left work the same way. He didn't come back, But, but there's a finding here. The board says that, uh, he had never left work. So isn't that a factual finding that we have to defer to? He never left work. And I, I think I, I brought that out in my motion for reconsideration here. He did leave work, he left work to go on a personal errand. And that's essentially where he was, he was out 10, 15 miles from where he was supposed to be at work at the time of injury. If He was, was he on the clock then? Was he on the clock? Yes. I don't know. Didn't Well, he was paid for that time in that day. Wasn't he Being paid? He, his time cards were not filled out contemporaneously, his time card was filled out. Who knows when the board even said, nobody knows how his time card was filled out. So we don't know what the employer or what he would've done. Nobody knows who filled it out, but certainly that time card stated he worked from nine to five or something like that. There's Also evidence in the record that, uh, he was always on call and that the employer didn't dispute that. No, that's fine. He's on call. But did he receive any instruction while he was on call to go perform an employer, an employee related task? No. So it depends. I think we need to distinguish this from the El ha case, the appeal of Elba Haas and what did Al BAHAs hold established That it is from the employer's perspective or the employer's request of the employee to do something work related as to what constitutes a special errand under the coming and going exceptions. So getting to the point where it's okay for a worker to say to his employee, I mean, the employee say to the employer, I'm going to take my mother to the airport and leave work and get into an accident. That employee is covered. Now, I don't think that's what the workers' compensation statute envisioned here. Okay. There's, there needs to be a bright line delineation between who's responsible for the employee while they're on a personal errand, and it's the employee who is responsible for his, for himself. That's a personal risk. Going out and traveling while going to pick up your motorcycle is purely a personal errand and a personal risk. Is It, is it in any way a material to our analysis as to where he was heading after he picked up his motorcycle at the time of the accident? He hadn't gotten back to work. So, and if you look at the record, you'll see his statements. He doesn't get paid until he signs in when he gets to work at 10 15 El Street. And So it doesn't matter where he was headed. To answer justice past's question, in your view, it doesn't matter if he was heading back to work or heading home when the accident Occurred? No, no, no, because he hadn't gotten back to work yet. Once he gets back to work, he's back on the clock. I I, I don't think that we can go down this road of okay, just because somebody is paid and on a personal errand, it falls into a work related activity. How is that a work related activity when, when there's, uh, nothing worked related upon his, his leading work and coming back? So in, in your view, it's the same situation as would be presented as if I needed to go to CVS to pick up a prescription this afternoon after arguments. So I go up there and get the prescription and on the way back I get in a bad accident. You'd say legally that's the same thing and it's not, uh, not work related. Correct. Is that right? Yes. Yes. That's what I would say. Because this type of rationale that just 'cause he was paid, it's, it provides work comp coverage for employees who are injured while attending to a personal errand because they received paid time off benefits or a salaried employee. Now, if I leave here and go back to the office and get into an accident, yes, I should be covered because I'm up here on a special errand or a special duty. Okay. And I think that's what the appeal of Al BAHAs was trying to do, trying to distinguish that this type of travel, uh, between And what does, what does Haws say? It specifically confirmed that if an employee is not responding to a call to his on-call status, the employee's injury did not fall within special errand exception to the going and coming rule. That's what we have here. I don't think we can say, okay, uh, you started your personal errand and just because you're coming back to work, you're going to be covered under workers' comp policy. I don't think that's the way that this should be working here. So The, the CAB pointed out that, um, I think they wrote it down, he, they found it material that he could be called on his phone on his way back to Manchester In, in your view, could be that's a, that's immaterial. That's, That's immaterial. He could be, well, he could be doing anything. He could have went to McDonald's before he got into that accident or shortly thereafter, you know, on his way back to work. He, he could have went to McDonald's or what have you to pick something else up. There's nothing in the record to say that. And we've gotta remember here that this is the claimant's burden to prove not carrier's burden to disprove this argument here. So clearly he was on a personal errand, and that's the the hurry back comment. He did not recall the employer's testimony was he didn't recall saying, hurry back, nor would he have since he thought he was leaving for the day. So are we just supposed to discount the employer's thoughts of what's going on with the employee? Are we just to allow the, well Not supposed to accept everything he says is gospel either, but, uh, how would you respond to the argument or the idea that this travel midday to pick up a motorcycle during the workday was in fact occasioned by the appointment by the employment? It was occasioned by the employment otherwise, for example, he might have done it, uh, after work ended or on a Saturday or a Sunday, whether he was on call or not. So the motorcycle had no work related connection. Who here, what I'm talking about, the journey that he was on. Okay. And If you're saying that if I go across the street to the bank and then I come back here, I'm not covered. That's not part of my, uh, work employ my employment. But what if the fact was that the only time my work allowed me, uh, to get, uh, to the bank before it closes is if I take a little bit of time during the workday, why is that occasion to buy my employment? You could go to the bank on a Saturday. That's the only reason. Well, there's, there's no work connected activity there. I'm coming right back. I don't think that matters. You are on your own personal errand at that time. It doesn't matter if the, so Even if I'm thinking about work, excuse Me, even if, if Even if I'm thinking about work, Well, aren't we all thinking about work or something else to do? We don't have that in the testimony here that he was thinking about work, he was bringing back his motorcycle because he needed to put it into storage. And that's the thing. He had not completed his personal errands. And that's what we're trying to get across here. And what is, What about the part of the statute, statute, excuse me case, the Anheuser-Busch case, which may include a personal activity if reasonably expected, not forbidden, Right. Come Into play here. No, I don't believe it does, because if you look at the progeny of that reasonably expected activity, it's the mahu case in which an employee was using the employer's, uh, ban arney cutoff his fingers, and those type of reasonable activities expected not forbidden, are on the employer's premises using the employer's instruments. Yeah. Instrumentalities.

And that's what we do not have here. Okay. Thank you attorney. Hard reserve. Two minutes. Attorney Wiseman. Hi. Good afternoon. Mark Wiseman here. I represent Michael Messina in this case. Um, actually this is a case where there's very little in dispute factually, um, Mr. Messina was seriously injured while he was operating his motorcycle driving, um, to the zoo location, the gym in Manchester. He was not commuting at that time. It wasn't as if he was going to a regular workplace. And then coming back home off the clock, he had started his day working at the bar Rudy in Greenwood office building, doing work there. And then the dispute is whether or not he got permission to get his motorcycle and travel from there to the zoo location down the street. Now, Mr. Messina had very unusual job responsibilities. Was he, just to clarify, was he going, is it in the wreck that he was going back to the zoo location as opposed to to the storage facility? Yes. Do we know Yes, he was going back. Uh, he had already picked up his motorcycle at home, um, was driving down Route three in Hookset, right near the Riley's, uh, gun store where that used to be. Uh, when somebody cut him off, made a left hand turn right in front of his motorcycle. He was heading at that moment in time back to, or not back to, but to the separate zoo location. And Where was the storage location? Um, that's not in the record, your Honor. Okay. Um, as far as the, the work responsibilities for Mr. Messina, um, I talked about, I just mentioned one zoo location. There were actually three other zoo locations where he would do, uh, different activities. He was of course hired, uh, for Bru and Greenwood to be a handyman maintenance guy for that particular accounting business. But he got almost all of his assignments from Mr. Bari directly. He was in the nature of his right hand man. As, as the, uh, employment relationship involved, he would go to four different zoo locations to do painting, to do cleaning, to do setup. He would go to Mr. Bar's personal home every Friday to, um, to pick up the garbage and take it to another location. He would do other work at Mr. Bar's home. He would do power washing, But I don't think there's any dispute that, uh, or there's no issue here about if he were going directly between these locations that he would be covered or it would present a different issue. But here he went home, it's like me going home 'cause I forgot something when I came in in the morning going home at lunch to get that and having an accident on the way back. Why is it any different that he went to get his motorcycle and then he was coming back in the middle or, or the end of the workday? It's important, your honor, because, um, what, what these facts demonstrate is that he was a traveling employee. He would be called upon to go to different locations. It's not as if he just went from home to one location and then back to work. He could, he had his phone with him. He could be called to go anywhere. If, if, uh, your Honor, if you left here, if this were your primary and only place of work and you left, um, to go across town to do something, and then you were heading right back here and you didn't have your cell phone on you and you didn't have a Mr. Beru ready to tell you to go help his mom register her car, then I would argue that if you were hurt, I would've a much more difficult case. But that's not the situation here, your Honor, because there were many several different work activities that he did go to that he would go to on a regular basis. It made him a traveling employee. And when you're a traveling employee going to here, there, and everywhere, the coming and going rule does not apply. The coming and going rule that says that you don't do not get comped if you're injured while you're driving to work or home from work at the end of the day. So, so that's why I'm going through these various activities to sort of establish the nature of Mr. Messina's employment relationship vis-a-vis Rudy in Greenwood. And it involved a variety of tasks at different locations. Farmer's markets for Mr. Brody's Hott sauce business. Um, he'd go to vendors to pick up supplies. As I said, he'd go to his mom's home. He'd go to the home on at least one occasion, Mr. Bar, Rudy's receptionist to clean the home. He was, he had a job that required him to be on the road all the time. So your analysis, he'd be covered perpetually every day of every week. So it sounds, It depends on what he was doing at the moment. He got hurt, your Honor. And at the moment that Mr. Messina got hurt, he was going to work. That was the primary nature of what he was doing at that time, at that moment. He had, as I said, he had already gone, he had already picked up his motorcycle. He was heading to the workplace to get the work done at the zoo location. Does it matter that the employer gave him permission to get his motorcycle? Um, well, I mean, it, it would matter if he had, you know, for example, had had just left without consent or permission. But he, he did get permission. He, he got permission. Um, And so he used his own vehicle, assuming he came to work that day in his car and then went home and swapped it out for the motorcycle. Exactly. 'cause he wanted to drop that elsewhere after work. After Work. Exactly. Unlike the previous day where he had gotten permission from his boss to go on a motorcycle ride. The, the day was gonna end at about two or two 30, I don't recall which, it's in the record, but he was gonna go then, um, on a motorcycle ride on this occasion. It was just, look, I gotta run, I gotta run home, um, get my motorcycle, Basically swap my vehicle. 'cause this one Exactly Is out of gas or has a flat tire or something. And now he's using a different vehicle to conduct his workday. E exactly right. And I believe it's important to, to recognize that he was on the clock at that time. He was paid for this. He didn't, he didn't punch out so that he could leave and go do that, Which is in contrast to the day before. Exactly, exactly honor. But, uh, do you agree that the two locations that he was working supposed to be working that day were, uh, 250 feet apart? Is that right? I don't know the exact distance on very, but they're both on the street very close. Yeah. They're, they're reasonably close Where you could easily, where you would walk from one location to the other. He certainly could have done that had he stayed there. Uh, but of course if he had been doing that and Mr. Brody had say, had said, say, I need you to go over to my mom's house. I need you to go to my house. I need you to go pick up my kids. Well, he would be doing that at the direction of his employer. There'd be no issue Exactly on this, on this occasion though, the direction of the employer was to get to the zoo location, whether, and he got permission to just make this quick run. So, but he, so he is like 15 miles away from the two places that are 250 feet away when this happens. That is, that is correct, your honor. It, it's true. Um, but he, he could have walked there. He could have taken his car there, he could have done any number of things. And um, And if he'd slipped on the sidewalk between those two buildings walking, He probably would've Called me. I don't there'd be any, we wouldn't have a case here. That's Right. He probably would've called me. Um, that, that that's right, your Honor. Exactly. Um, one thing I mentioned is that these, these facts about what, well, Why would that be if he has to walk between the two locations? Isn't he on the job? He would be on the job. He would, he would call me to bring a job claim, presumably, because it would be carrier not put up the battle that they've put on in this case. And in fact, uh, we've, we've had litigation in this case twice already. Um, the carrier disputed this claim. Um, I requested a hearing at the first level. We prevailed Mr. Messina received indemnity benefits, which he continues to receive to this day because he has not recovered for the, from these injuries.

The carrier repeals, uh, attorney Harding did a nice job on appeal, but the Compensation Appeals Board and ruled in our favor. Um, what, what we're hearing here today, um, what I read in the briefs and in the, um, the motion for reconsideration at the Department of Labor rehearing, uh, what I heard in the oral argument today is an attempt to re-litigate the one issue that was in dispute that was decided in my favor, in, in the favor of Mr. Messina at the Department of Labor, which is whether or not Mr. Messina was done for the day when he left Bar Rudy in Greenwood. Now, if he, if he was done for the day, if he had checked out, if he weren't getting paid, if he didn't have his cell phone on, if he, he, uh, didn't tell Mr. Uh Rudy that he was gonna come back and go to the others location, then I would have a much more difficult case. But that, but, and that's why they argued And only if you were representing Justice Bassett, who would leaving here, his place of work to go to the CVS and come back. I've had those cases at the Department of Labor before where somebody is doing work on one location, for example, at a, at a automobile dealership. It's a hut day. They get permission to cross the street to go get a soda, and they're hit by by a car. That's a compensable time in my experience at the Department of Labor. Because it's during the course happens, during the course of their Employment. Exactly, exactly right. Um, Which is, so Justice Bassett's run to CBS might be compensable. Well, it's certainly possible. He Might have to call you. That's right. They, they may put up a fight. I don't know, your Honor, I I can't speak to that. But this is, this Is, so the, the factual finding that you say is critical is that the CAB said your client was on the clock. Is that the, is that the critical determination from your perspective? Um, That, that he's on the clock? Yes. Um, that he was getting paid at the time for his, for his work. Um, yeah, so, and that my client was more credible than Mr. Beru when he discussed and when he testified that he had received, um, permission to get his bike and was gonna come back to work, that his workday was not over, that he was continuing his workday, the cred. Did the cab accept his testimony that he was told to hire you back? I, I believe they did. I mean, they, what they did is they, they outlined the, the statements by, by both of them, um, at the Compensation Appeals Board and set on balance. My client was more credible and then on, on reconsideration. Um, they, they made the same finding. They, they found, his testimony wasn't in their words, persuasive. That's the word that they used. Um, so, um, we're here, I find myself today re-litigating an issue that has already been decided in my client's favor on the issue of credibility, which of course is, is, is not something that can be, uh, determined, um, at, at this level. Um, it can't be re-litigating. So we have, we have the Murphy case, of course, which, um, sets forth the three standards that have to be met in order for somebody to, uh, have a work related claim when they're doing an, an ancillary activity, um, uh, peripheral type activity. And the workers' compensation statute, of course, is to be liberally construed, But that applies to like deter uh, construction of the statute, not factual findings. Right. Um, yes, but when you're construing the statute, your Honor, you, you are applying facts to that statute. That's, that's how you construe the particular statute. You're, you're determining when employment begins and when it in, when it ends. Um, and you, you can't make that determination vacuum. You're determining it based upon the facts that are presented to you as the Finder Act. And in this case, um, they made, they made those findings in favor of my client. The, the Whitmore case, for example, 29 New Hampshire, um, says that when you are looking at this particular type of case where you're looking at a case for of ancillary activities, um, it's a very fact specific inquiry, and that's why it's important that he had his cell phone. It's important that the employer was found to have known that he was going to come back to work, that he told him to hurry back, that, um, that he had gone to all of these other locations. My client, the testimony was, had his cell phone in his backpack set on buzzer so that he's driving along. If it, if it, if it went off, if it buzzed, he would've turned, pulled off the side of the road, um, would've listened to the message and would've done what Mr. Uh, bar told him to do because he loved That. But what Justice Donovan said that that argument's like too good because it means if he has a cell phone with him all the time, he's always, uh, no matter what he is doing, he's on a, uh, his activities are covered under the workers' comp statute. It's Certainly one factors to consider in determining whether or not an activity is work related, whether or not a cell phone is on in this case. That's not the only fact that we have. We've got the fact that at that particular moment in time, he was engaged in the business of getting to his next job, just like the gentleman in the Heinz case we cited in our, in our brief. Would you agree, uh, that morning, uh, when he got up to go to work for the first time, if he had had this accident on the way into work, that wouldn't be compensable? I would agree that that would probably be covered by the coming and going rule. Although, although I will say that, um, the appeal of Haws case seems to indicate that the coming and going rule only applies to employees who have fixed hours and a fixed place of work. If you've got an employee who sometimes goes to Mr. Bar's house, um, to do this particular activity every Friday, and if he goes somewhere else from home, um, he's a, he's an employee who travels to different locations, and the coming and going rule according to appeal of Haws, um, wouldn't necessarily apply in that case. In that particular case, you'll recall it was a tree cutter, a groundsman. Um, it was a stormy day. The the boss said, why don't you go home early, um, and, and come back later. He's driving to his home from that particular location At the direct he out at the direction of his employer. But it punched out, your Honor, he, he wasn't on clock. Um, he wasn't getting paid for that trip. And of course, he gets into a what is deemed to be a compensable accident. Um, the Heinz case, of course, is, is particularly compelling. They're, they're the high school, um, I guess he was a physics teacher, I think if, if I'm remembering correctly, he, he didn't have to, but he agreed to chaperone a dance that night. Um, so he if school mid-afternoon and he's, he's, uh, decided on the way home to stop at, uh, at a colleague's house who was holding a party. And the, the case, uh, recites that while he is there, he drinks several glasses of beer. Um, and then he decides to drive home to pick up his wife, to change his clothes, and then make his way back to the, to chaperone the dance. Um, he unfortunately doesn't make it, his car doesn't negotiate a turn and he's fatally injured. Um, and the court found that to be compensable and found that the reason for that was because at that moment in time, he was engaged primarily in the business of getting to his next employment activity, just as Mr. Messina was engaged in that same, uh, type of activity when he left home with his motorcycle heading to the zoo location to do the bidding of Mr. Baruch. Thank you. And I see a lot of time. Thank you. Pardon? Okay, thank you. Now, this issue about the motorcycle here, uh, claimant testified that he always told his employer when he needed, when he was getting his motorcycle and whether or not he needed anything to be done. And Mr. Messina said if there was nothing I had to do, then I would bring my motorcycle. Clearly he did not have anything more to do. The motorcycle was a hindrance to, to his employment activity because he then could not be called to go pick up supplies, like five gallon bucket of paint on his motorcycle. So his motorcycle was not part of the business and it was not an integral part of the business driving the motorcycle. The, the issue on the clock, I think is red herring because like I said earlier, what happens about a salaried employee, they're always on the clock, aren't they? So, and to distinguish Whitmore and Pines, the court specifically stated that in Whitmore, she was on a special errand, special duty. And in that case, she left work to go to see a client. And in Whitmore, she was, uh, in the office a few days and then out of the office to visit clients. And when she went out of the office to visit clients, she went and saw the client first went and picked up medicine, and she fell on the driveway carrying the medicine, carrying the instrumentality of her employment. And that's why that was part of a special errand, special duty because she was heading back to the client. And with Hines, Hines was also determined to be a special errand or special duty. That's what we don't have. Here we have Mr. Messina on a purely personal errand. And this issue about, oh, he was at other zoo locations. Well, if you look at his time cards, going back a month or so, which is in the record, he was always confined to 10 15 and 9 77 Elm Street. And this business about traveling employee, if I may for one more second, does not meet the traveling employee test, which was essentially developed in Palac. And the board never reached, nor did the board find that he was a traveling employee. Thank you. Thank you, Attorney Harden. Thank you, counsel Casey. Thank you. Thank You.