He Saved the Chocolates But Lost His Workers’ Compensation Insurance

An employee who was injured when rescuing chocolate candies from the heat in his employer-owned delivery truck is not due workers’ compensation benefits.

The Virginia Workers’ Compensation Commission (WCC) upheld a deputy commissioner’s denial of benefits, agreeing that Ronald Mark was not in the course of his employment as required by the law when he injured his knee while bringing chocolates into his home refrigerator from the truck parked in his driveway to keep them from melting over the hot weekend.

While he regularly kept the truck at his home filled with coffee and snacks to be delivered the next day, his employer never asked and did not know about his sometimes bringing products from the truck into his home for safe keeping.

On Friday, September 15, 2023, after he made his last delivery for that day, Mark drove to the warehouse of his employer, Compass Group, and loaded goods for delivery on the following Monday. When he got home, he parked in his driveway. He admitted to having a couple of beers before the accident but denied being intoxicated. Since the temperature was predicted to be warm that weekend, he decided to remove the chocolate candy from the work truck and put it in the refrigerator in his house for the weekend, something he had done in the past. Mark acknowledged he never discussed taking food into his residence to keep it refrigerated or frozen with his employer. He maintained that the action was “common sense, actually,” and added that his employer had never forbidden it and the truck’s own freezer did not work.

He testified that he went to the back of the truck about 7:15 p.m. and reached to grab the tote with the candy with his left hand. When he did, his left foot slipped and his left knee struck the ledge on the back of the truck. He fell to the concrete and landed on his back. He sought medical treatment for a knee injury.

In an email to his boss, he wrote, “I attempted to enter the back of my work truck to straighten it as I occasionally do, and to retrieve some chocolate candies to bring inside out of concern that they might melt in Saturday’s warm temps.”

The deputy commissioner and a majority of the WCC found that Mark failed to prove, by a preponderance of evidence, that the accident occurred in the course of his employment. They noted that the incident occurred nearly five hours after he got home and the course of his employment ended and that he had neither been told to remove food from his truck nor ever discussed doing so with his employer. Additionally, commissioners were skeptical as to the ostensible reason for entering the truck and concerned that he had had a number of beers right before the accident.

“All these factors simply do not sufficiently illustrate that the claimant’s activity in the truck, five hours after parking the vehicle, and after consuming alcohol, kept him in the realm of the course of his employment,” the WCC concluded.

The commission reiterated that a compensable injury is one that occurs at a place where the employee may be reasonably expected to be, and while he is fulfilling the duties of his employment. The WCC said that Mark’s evidence showed he was not performing a duty of his employment but instead showed he was outside the course and scope of his employment.

One of the three WCC commissioners dissented, noting that the employer could reasonably expect Mark might return to the truck at some point between parking the truck outside his home and beginning the next workday. In support of Mark’s claim of benefits, the dissent quoted the Virginia Supreme Court: “If the voluntary act of an employee which causes an injury is sufficiently related to what the employee is required to do in fulfilling his contract of service, or is one in which someone in a like capacity may or must do in the interest of his employer’s business, the fact that the employee was not actually required to perform the act will not impair his right to recover compensation.”

Thus, although Mark had completed his deliveries and merchandise pick-up for the day, he was in the course of his employment when he returned to the truck to retrieve goods to store them in his home and when the accident occurred, according to the dissent.

Mark is entitled to appeal the denial of benefits to the state Court of Appeals.