Kolb v. Walmart Associates, Inc., 061516 AKWC, 16-0043

• Case Date: June 15, 2016
• Court: Alaska

PATRICIA S. KOLB, Employee, Claimant, v. WALMART ASSOCIATES, INC., Employer, and NEW HAMPSHIRE INSURANCE CO., Insurer, Defendants. AWCB Decision No. 16-0043 AWCB No. 201419711 Alaska Workers’ Compensation Board June 15, 2016           INTERLOCUTORY DECISION AND ORDER           Janel Wright, Designated Chair.          Patricia S. Kolb’s (Employee) March 20, 2015 workers’ compensation claim was heard in Anchorage, Alaska on April 27, 2016, a hearing date selected on February 25, 2016. Attorney Joseph Kalamarides appeared and represented Patricia S. Kolb, who appeared and testified. Attorney Vicki Paddock appeared and represented Walmart Associates, Inc. and New Hampshire Insurance Co. (Employer). Trudy Jordan appeared and testified on Employer’s behalf. The record remained open for Mr. Kalamarides supplemental attorney fees and costs affidavit. The record closed when the panel deliberated on May 20, 2016.          ISSUE          Employee contends her lateral tibial fracture arose out of and in the course of her employment with Employer. Employee contends her personal shopping at the end of her shift before she clocked out was a minor deviation. Employee contends her deviation was not enough to remove her injury from arising out of and in the course of her employment and Employer maintained control over her after the injury when, instead of calling 911 to transport her to an emergency room, an assistant manager transported Employee and required her to go for a drug test and to a gas station so the assistant manager could get food and gas before taking Employee to the emergency room. Employee contends because she was under Employer’s control her injury arose out of and in the course of her employment with Employer.          Employer contends Employee’s injury did not arise out of and in the course of her employment. Employer contends Employee was engaged in personal shopping when she was injured, personal shopping was not part of Employee’s job duties and Employee’s personal shopping while on the clock was expressly prohibited by Employer and not a sanctioned activity. Employer contends Employee’s deviation from employment does not fall within the personal comfort doctrine; Employee’s activity was merely a convenience to her as she was engaging in an unsanctioned activity. Employer contends a misconduct deviation need not involve a prohibition instituted to protect employees and when Employee engaged in personal shopping she was either off the clock or, in the alternative, deviating from employment due to her misconduct. Employer contends to find Employee’s injury arose out of and in the course of her employment with Employer would be a rubber stamp on time theft.          After carefully reviewing the evidence and arguments, the panel has unresolved questions not addressed by the existing evidence, as discussed below. The panel is considering ordering a second independent medical evaluation (SIME) to address gaps in the medical evidence. Therefore, on its own motion, the panel is reopening the hearing record to allow briefing and argument on the following issue:          Should the parties brief whether an SIME should be ordered to address gaps in the medical evidence?          FINDINGS OF FACT          The following facts and factual conclusions are established by a preponderance of the evidence:          1) Employer’s Associate Purchases Policy (OP-23) updated on October 1, 2009, applies to all Employer’s employees and provides:

Associates may make purchases only during meal periods, breaks, or off-duty hours. Merchandise cannot be sold to anyone unless the facility is open for business. . . . Any violation of this policy is a serious infraction. The company will investigate any deviation from this policy. If the company determines an associate has violated this policy, s/he may be subject to discipline, up to and including termination.

(Walmart’s Associate Purchase Policy (OP-23), October 1, 2009.)          2) Employee has worked for Employer since July 2013. She started as a stocker in health and beauty aids and after several months with Employer was assigned duties as a cashier in Employer’s Eagle River, Alaska store. (Deposition of Patricia Kolb, December 22, 2015.)          3) On July 26, 2013, Employee acknowledged she was oriented and aware of Employer’s Associate Purchase Policy. Employee has been aware of the policy since she was hired. In January 2014, when Employee became a cashier, the policy was presented to her again during cashier training. (NOA Participant Checklist / New Associate Safety Checklist Departmental, Patricia Kolb, July 26, 2013; “My Training Plan” Cashier, Patricia Kolb, January 13, 2014.)          4) Employee has seen supervisors and other employees shop and thinks they were on the clock. She was not aware anyone was ever disciplined for shopping while on the clock. (Kolb.)          5) When hired, Employee worked “30-something” hours per week. Since returning to work after her injury, she works “about 22, 23” hours a week. (Deposition of Patricia Kolb, December 22, 2015; Kolb.)          6) On December 4, 2014, Employee shopped during Employer’s “25% discount days,” which is a two-day period employees who worked on Thanksgiving can shop and receive a larger than normal discount. Discount shopping days last 48 hours. Employee forgot to purchase cat food and kitty litter on December 4, 2014. (Id.; Kolb; Jordan.)          7) On December 5, 2014, Employee worked an afternoon shift scheduled to end at 5:00 p.m. Her relief cashier arrived “a bit before 5:00 p.m.” and Employee closed out her register at 4:47 p.m. (Deposition of Patricia Kolb, December 22, 2015; Kolb.)          8) Employer gives employees who clock out prior to their shift’s end demerits. (Jordan.)          9) On December 5, 2014, Employee wanted to take advantage of her 25% discount shopping and, before clocking out, got a shopping cart. She planned to leave it near the restrooms close to the employee locker room and time clocks, clock out, get her belongings from her locker, and then proceed to a register to check out with her purchases. Employee went to the store’s “Pet Zone” to get cat food and kitty litter. The kitty litter was heavy and on a shelf 70 inches high. Employee had to reach up to get it. When the kitty litter fell down off the shelf, Employee tried to stop it from crashing and spilling all over the floor with her knee and leg. When the kitty litter hit Employee, it broke her leg. Employee fell, hit her head, and was unable to walk. (Deposition of Patricia Kolb, December 22, 2015; Kolb.)          10) Employer’s assistant managers Chip Dawdy and “J.J.” were notified Employee was injured. Dawdy took Employee’s and others’ statements about the incident. J.J. transported Employee to the back of the store on a cart so she could get her purse and coat. Instead of calling “911” to obtain an ambulance to transport Employee, Dawdy and J.J. decided J.J. would take Employee to an emergency room. However, before J.J. took Employee to the emergency room, J.J. took Employee to Workplace Safe for a drug test. Upon completion of the drug test, and before taking Employee to Providence Hospital Emergency Room, J.J. took Employee to Tesoro so J.J. could get gas and something to eat. (Id.)          11) After her incident with the kitty litter and injury, Employee had no control over what became of her; control belonged to Dawdy and J.J. (Jordan; Kolb; experience, judgment, observations, and inferences drawn therefrom.)          12) When J.J. took Employee for the drug test, J.J. expected Employee to walk into Workplace Safe. Employee attempted to walk, but was in severe pain and despite her attempts was unable to bear weight. A male stranger picked Employee up and carried her into Workplace Safe. (Kolb.)          13) On December 5, 2014, Employee did not clock out when she completed her work for the day. (Kolb; Jordan.)          14) Trudy Jordan is Employer’s personnel coordinator. She assists with hiring, maintaining employees’ personnel files, and “keeping personnel on track.” If employees are unexpectedly unable to clock out at their shift’s end, Jordan is responsible for contacting employees to inquire and determine their quitting time. Jordan then completes an “Hours Adjustment / Prize or Award Form.” Jordan signs the form, a salaried member of management signs the form, and the employee for whom Jordan completes the form signs it. (Jordan; Hours Adjustment / Prize or Award Form, Patricia Kolb, Signed by Trudy Jordan on December 8, 2014 and Patricia Kolb on July 10, 2015.)          15) On...