Yesterday while writing about barefoot driving I described a ticket somebody got for doing so, and then how the judge allowed the policeman half an hour to find the actual statute before finally dismissing the ticket (because no such statute existed).
But what about when driving a commercial vehicle, like a semi?
For that, let’s take a look at the case of Irvin Harlow, a tractor trailer driver. On a long haul from Virginia to Texas his small right toe suddenly started hurting him. He spent some time driving barefoot, but then an inspection station was coming up, so he attempted to use a pocket knife to cut off that portion of his tennis shoe where his toe was so that the sore toe could stick out. (I’m assuming that he had stopped the truck while he did this.)
In the process, his knife slipped and he somehow managed to injure his right eye.
This case is over whether his trucking company was required to pay workman’s compensation for the injury.
The company didn’t want to pay the compensation (basically medical bills and the cost of recovery). What they said was that since Harlow was violating company policy by carrying a “weapon”, they didn’t have to pay.
We get a better picture from the ruling produced by the Virginia Worker’s Compensation Commission, affirming a decision by the Deputy Commissioner:
Upon this evidence, the Deputy Commissioner ruled from the bench and held that Harlow sustained a compensable injury by accident arising out of and in the course of his employment. The Deputy Commissioner also dismissed the employer’s defense of a safety rule violation. We affirm.
Harlow’s injury arose out of and in the course of his employment because he was attempting to alter his shoe for comfort. DOT regulations require that drivers wear shoes while operating a commercial vehicle on a public highway, and therefore the shoe could not be removed.
We also agree with the Deputy Commissioner’s conclusion that the employer’s defense of willful misconduct cannot prevail. The record established that Harlow used the knife to try to open his shoe. Harlow knew that according to DOT regulations, he must wear shoes. Harlow knew he was approaching an inspection station. Harlow needed to do something to make his hurting foot more comfortable. We are of the opinion that Harlow’s act of cutting a hole in his tennis shoe was reasonable under the circumstances. The employer’s rule refers to a weapon, but offers no evidence that the claimant’s knife is a “weapon” as contemplated by the rule. We do not consider Harlow’s 2 3/4 inch to 3 inch pocket knife a weapon in this context.
The company’s denial seems pretty specious to me, too. A pocket knife is not a weapon, any more than a hammer is a weapon. In a normal context, such things are merely tools. They can be easily converted to a weapon on a moment’s notice, but that doesn’t make them a weapon. If Harlow had needed to do something with a hammer that he had with him and injured himself, I really doubt the company would have tried to deny compensation based on carrying a weapon.
But the company really, really didn’t want to pay, so they appealed yet again, this time to the Virginia Court of Appeals.
The Court of Appeals upheld the earlier decisions: the pocket knife was not a weapon and Harlow was entitled to Worker’s Compensation.
Here’s what the Court of Appeals said:
Harlow began to experience pain in the small toe of his right foot while driving his employer’s tractor trailer from Richmond, Virginia to Texas. Because of the pain Harlow could not wear boots and wore tennis shoes. When the shoe began to irritate his toe, Harlow removed it. While driving without a shoe, Harlow learned that he might be required to stop at a weigh station where shoes are required. He then attempted to cut a hole in his tennis shoe so that his sore toe could protrude from the shoe and feel more comfortable. However, the knife slipped out of his hand and injured his right eye. Harlow sought immediate medical treatment.
I’m sure that, at this point, my readers are suspicious of one particular “fact”. Do Department of Transportation regulations really require that long-haul truck drivers wear shoes?
No, they do not. Such regulations would be in the Code of Federal Regulations, and there is no such regulation (and there also wasn’t back in 1995).
Yet nobody involved in this even asked if there was such a regulation. They all just assumed it existed.
Another way you can suspect that the rule doesn’t exist is that none of the rulings actually cited the rule. This applies to statutes or rules equally: if they do exist, then the person claiming they exist ought to be able to give a citation for the statute or rule so that anybody could look it up.
The fact that neither of these rulings did so is suspicious right off the bat.
I do wonder if the outcome of the cases would be different if anybody actually knew there was no rule. Would they have said that Harlow was injured doing something that really didn’t matter?
Or, if Harlow knew there was no rule, would he have been cited at the inspection station for driving barefoot, because the folks there probably didn’t know the law either? Then we would have been seeing a case for unjust termination instead!