Claros v. Highland Employment Agency

• Decision Date: 16 June 1994
• Docket Number: No. 93-341-M,93-341-M
• Parties: Francisca CLAROS v. HIGHLAND EMPLOYMENT AGENCY. P.
• Court: Rhode Island Supreme Court

Page 212

643 A.2d 212

Francisca CLAROS v. HIGHLAND EMPLOYMENT AGENCY.

No. 93-341-M.P.

Supreme Court of Rhode Island.

June 16, 1994.

Leonard M. Cordeiro, Roberto Gonzalez, Rappoport, Audette, Bazar & Farley, East Providence, for plaintiff.

Kevin B. Reall, Earl E. Metcalf, Gallagher & Gallagher, Providence, for defendant.

OPINION

SHEA, Judge.

This matter came before the Supreme Court on a petition for a writ of certiorari filed by Francisca Claros. The petitioner seeks review of a decision by the Appellate Division of the Workers' Compensation Court, which held that the petitioner is not entitled to workers' compensation benefits pursuant to G.L.1956 (1986 Reenactment) § 28-29-2(4)(B), as amended by P.L.1991, ch. 206, § 1. We deny the petition and affirm the decision of the Appellate Division of the Workers' Compensation Court.

The following facts are undisputed. The petitioner was employed by respondent, Highland Employment Agency (Highland). Highland provided the services of its employees in various capacities to area businesses. Highland offered its employees daily transportation to and from job sites in vans it owned, operated, and maintained, at a cost to each employee.

On May 2, 1992, petitioner was working as a machine operator at the facility of Greene Plastics in Westerly, Rhode Island. During the return trip from the Greene Plastics factory, the Highland van was involved in a collision. The petitioner, a passenger in the van, sustained injuries to her head, neck, throat, arms, shoulders, back, and left leg. She was disabled as a result of the injuries.

The petitioner filed an Employee's Original Petition with the Workers' Compensation Court on May 27, 1992. The matter was heard in a pretrial conference and an order issued on June 19, 1992, granting her petition for workers' compensation benefits. Highland filed a timely claim for trial, and the matter was heard de novo before a trial judge on September 17, 1992.

At trial petitioner testified that on the day of the accident she drove to Highland's office, from which location she and other employees were transported by a company van to the job site. At the end of the shift the van picked the workers up for transportation back to Highland's office. The accident occurred during this return trip. The petitioner admitted that she punched in and out on a timeclock at the Greene Plastics factory and was not paid for the time she spent commuting to and from the job site. She further testified that she believed that participation in the vanpool was mandatory and at no time was petitioner informed that alternative transportation to the Greene Plastics factory could be obtained.

Cindy Flores (Flores), a recruiter and interpreter employed by Highland, testified that she had informed petitioner about the voluntary vanpool, explaining that there were no available parking spaces at Greene Plastics. Flores claimed that she told petitioner that if petitioner was unable to find a ride, the vanpool was available for a small fee. She also testified that approximately 10 percent of Highland employees do not utilize the van service. Flores stated that employees are not required to check in at Highland's office prior to boarding the van but simply use that site as a convenient meeting place. She further testified that on some occasions the employees working the night shift are picked up in the parking lot of a local market, rather than at Highland's office, because the area is well lighted.

The trial judge found that petitioner failed to prove by a fair preponderance of the evidence that her injuries arose out of and in the course of her employment with Highland and that petitioner's participation in the vanpool program was voluntary. Based upon these findings of fact, the trial judge denied and dismissed the petition.

The petitioner filed a claim of appeal with the Appellate Division of the Workers' Compensation Court. The Appellate Division properly conducted a de novo review and found that "there [was] an abundance of evidence to support the findings of the trial judge" and that she was not clearly wrong in her decision. Therefore, the Appellate Division denied and dismissed petitioner's appeal. The petitioner filed a timely petition for writ of certiorari with this court, which was granted on September 29, 1993.

The petitioner argues that the trial judge erred as a matter of law by applying § 28-29-2(4)(B) and in concluding that her participation in the vanpool was voluntary. At issue is the interpretation and application of the statute, which provides:

"An injury to an employee while voluntarily participating in a private, group or employer sponsored carpool, vanpool, commuter bus service or other rideshare program, having as its sole purpose the mass transportation of employees to and from work shall not be deemed to have arisen out of and in the course of employment. Nothing in the foregoing shall be held to deny benefits under chapters 29--38, inclusive, and chapter 47 of this title, to employees such as drivers, mechanics and others who receive remuneration for their participation in the rideshare program. Provided, however, that the foregoing shall not bar the right of an employee to recover against an employer and/or driver for tortious misconduct." Section 28-29-2(4)(B).

The petitioner first argues that because Highland provided her services to Greene Plastics, the transportation to the factory from the Highland office arose out of her employment. Therefore, § 28-29-2(4)(B) is inapplicable.

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