A West Virginia trucker is suing his former employer after allegedly losing a leg to frostbite as a result of sleeping in a cab with no heat. The driver’s worker’s compensation claim had been rejected, finding the driver at fault for arriving at the destination too early.
On May 22, David Lawton filed a lawsuit against St. Louis-based Hogan Transports in the Columbiana County, Ohio, court of common pleas.
The Bureau of Worker’s Compensation and a Columbiana County, Ohio, common pleas court had already decided in a separate worker’s comp case that by arriving ahead of schedule Lawton was not technically on duty when he sustained injuries that led to the amputation of his leg.
On Feb. 1, 2018, Hogan directed Lawton to deliver a load to a Dollar General store in Columbiana County. According to the lawsuit, Lawton arrived at the Dollar General, but the delivery could not be accepted due to conduction of inventory. Lawton was told by the Dollar Store manager he could sleep in his cab in the parking lot until someone arrived the next morning to unload.
During that overnight stay, Lawton’s heater in his sleeper malfunctioned, a recurring problem Lawton’s suit claims Hogan knew about. As a result of freezing temperatures, Lawton alleges he suffered frostbite on his right foot, which eventually led to the amputation of his right leg from below the knee.
According to the worker’s comp decision, Lawton was not scheduled to arrive at the Dollar General store until 10 a.m. on Feb. 3, 2018. The district hearing officer was not persuaded that Lawton was in the course and scope of his employment from the time he arrived two days early on Feb. 1 and until the time he was allowed to unload the cargo.
Court documents stated that Lawton “chose to attempt an early delivery and was not engaging in any activity for the benefit of the employer between the time of his arrival and the time he was actually able to physically deliver the product.”
Furthermore, a doctor’s report concluded that there was insufficient evidence to support the claim that Lawton’s injuries were a result to exposure of cold temperatures. The report found that Lawton had several pre-existing conditions that could result in the injuries without frostbite. Additionally, if frostbite had occurred, it would not likely have affected one isolated part of the body. Rather, multiple parts of the body would have been affected by frostbite.
The worker’s comp case also reveals that Lawton did not call Hogan Road Rescue until 6:41 a.m. on Feb. 2. During that call, Lawton said his doctor had advised him to go to the hospital. Hogan Road Rescue offered to send a trooper who would take Lawton to the hospital. Lawton declined, stating that he could still walk and wanted to deliver the load as promised.
However, according to court documents, an investigation found that Lawton did not have a doctor, let alone speak to one during the incident. An email from an employee at the Dollar General store revealed that she offered to let Lawton sit in the building to warm up on the morning of Feb. 2. After unloading, Lawton told her there was heat in the truck where he would warm up his feet, according to court documents.
Complicating things even further, it was discovered that Lawton had not reported a previous diagnosis of diabetes mellitus to his Department of Transportation physician.
Even if the injury could be proven to be a direct result of frostbite, the Bureau of Worker’s Compensation stated Lawton’s claim would still be denied.
“Here the deputy finds the claimant’s actions of arriving two days early to make a delivery and remaining parked overnight in a customer’s lot were not consistent with his contract of hire and not in furtherance of the employer’s affairs,” court documents found. “The deputy finds the claimant was not paid hourly and was off the clock at the time of the alleged injury.”
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