CHRISTOPHER MCFARLIN, Applicant

CERTCO INC, Employer

REGENT INSURANCE, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed March 19, 2007
mcfarch . wsd : 175 : 9   ND � 3.6

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant was injured at work on September 27, 2002 while performing services growing out of and incidental to his employment, and the accident causing injury arose out of his employment. The employer contends the applicant engaged in a deviation from his employment on September 27, 2002 which removed him from the scope of his employment at the time of his injury. The employer points to inconsistencies in the applicant's testimony concerning the circumstances surrounding the traumatic injury on September 27, 2002 to undercut his credibility, and asserts that the applicant was attempting to advance his own personal interests when he attempted to do the job of a co-worker leading to his injury.

The evidence indicates the applicant was attempting to move a dock lift on September 27, 2002, and when he exited the dock lift, the machine continued to roll back pinning the applicant between the wall and the dock lift, causing a traumatic injury to his back, pelvis, bladder and urethra. The applicant testified that he was using a pallet jack to move a load for the employer to the warehouse cooler on September 27, 2002 when his route to the cooler was blocked by a co-worker with a large stack of items on his machine which was very wide and bulky. The applicant testified there was a dock loader which was in the co-worker's path and the applicant volunteered to move the dock loader to clear the path. The applicant testified that he received a little training and believed he could move the dock loader out of the way and that he had operated a machine like that in the past but not for this employer.

The applicant testified he had operated a straddle truck the evening before which was a similar machine with a similar set-up for the controls. The applicant was injured after backing up the dock loader and exiting the dock loader to the rear when the machine continued to roll pinning the applicant between the wall and the dock causing his injuries.

The administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, credited the applicant's version. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's credibility assessment. Even if the applicant did not have permission to operate the dock loader from the employer, the fact that he attempted to move the dock loader out of the way so he could proceed to move his load, does not take him out of the course of his employment. It was not established the applicant attempted to move the dock loader for any personal motive or personal gain, but rather to complete his work assignment of moving his load to the warehouse cooler. The applicant's actions were of benefit to the employer and intended to allow him to complete his work tasks.

Mr. Schumacher, who was operating the dock loader on September 27, 2002, admitted he was 100 feet away at the time of the work injury to the applicant. Mr. Schumacher testified that there was all kinds of room or plenty of room for pallet jacks to get around the dock lift that he had left parked on that date. However, Mr. Schumacher admitted that he was not in position to see the accident, and he was not aware of whether there was another pallet jack loaded ahead of the applicant. In addition, Mr. Belz, a supervisor for the employer, admitted in his testimony that the basic movements to control a straddle truck as well as a dock lift were the same, and that any difference was just a matter of degree, and all of them were controlled by a deadman pedal, which the applicant had relied upon to stop the dock lift when he exited to the rear on September 27, 2002. Based on the applicant's credible testimony of the circumstances leading to his injury on September 27, 2002, the commission finds that the applicant was performing services growing out of and incidental to his employment, and he was acting in the course of his employment at the time of the injury on September 27, 2002. Therefore the administrative law judge appropriately awarded the applicant temporary total disability benefits from July 16, 2003 to February 20, 2005, as well as 50 percent permanent partial disability to the body as a whole, as well as medical expense.

cc:
Attorney Norman C. Anderson
Attorney Ronald S. Aplin

Appealed to Circuit Court.  Affirmed November 26, 2007.  Appealed to the Court of Appeals.  Affirmed May 21, 2009.

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