Truck Driver Was Entitled To Benefits For Injuries Sustained After His Truck Was Struck By A Train, Even Though Gates Were Either Coming Down Or Were Already Down When He Proceeded Across Tracks

The Commission awarded benefits to claimant-truck driver for injuries sustained when

his truck was struck by a train, finding claimant’s poor judgment in crossing the tracks did not rise to the level of willful or wanton conduct so as to remove him from the scope of his employment.Claimant, a self-employed truck driver, sustained injuries after his truck was struck by a train. Evidence indicated claimant approached the crossing gates, the gates were either coming down or were down, he either hesitated slightly or accelerated

and then he proceeded across the tracks.  Claimant did not make it completely across as the rear of his truck was struck by the train. The arbitrator denied benefits.The Commission reversed, noting although it did not condone claimant’s behavior and believed that at the very least he used poor judgment, his behavior did not rise to the level of willful or wanton conduct so as to remove him from the scope of his employment.  Citing Stembridge Builders Inc., v Industrial Commission, the Commission explained the modern rule is that violation of a statute is not willful misconduct per se. There must be an intentional act of a quasi-criminal nature either with knowledge that it is likely to result in serious injury or with a wanton disregard of probable consequences.  In the instant case there was no evidence claimants actions were knowingly or intentionally going to result in serious injury.

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Donald Fohrman
Donald W. Fohrman & Associates, Ltd.