HEIRS OF HANI MORSI v. JB HUNT CORPORATION (2025)

¶1. Hani Morsi was an over-the-road truck driver employed by JB Hunt Corporation. JB Hunt sent Morsi to recover an abandoned truck in Meridian, Mississippi, on December 16, 2019. On December 26, 2019, Morsi was found dead of a suspected heart attack in the cab of that truck. Earlier in the week, Morsi notified a JB Hunt fleet manager that he was ill and that he had gone to the emergency room. He was instructed to vacate the truck, and his fleet manager offered him several options that the company could provide to assist him in getting home or where he wanted to go. Morsi, however, refused to leave the truck.

¶2. Following Morsi's death, Morsi's widow, Vivien, filed a claim for workers’ compensation dependent benefits for herself and the couple's three minor children. The Mississippi Workers’ Compensation Commission denied Vivien's claim, finding that Morsi was not acting in the course and scope of his employment at the time of his death, and therefore the “found dead” presumption did not apply. See Miss. Code Ann. § 71-3-3(b) (Rev. 2021) (providing that when an employee is “found dead in the course of employment,” the event causing his death is presumed to have “aris[en] out of and in the course of [his] employment”).

¶3. Vivien appeals, asserting that the Commission's order should be reversed because the “found dead” presumption applies in this case and JB Hunt failed to rebut that presumption. We disagree. We find that the Commission's order was supported by substantial credible evidence and was neither arbitrary nor capricious. Accordingly, we affirm.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

I. Procedural History

¶4. Vivien filed a petition to controvert and several amendments seeking workers’ compensation benefits for her and the couple's three minor children, alleging that “on or about December 24 or ․ 25, 2019,” Morsi “died in the cab of his truck.” JB Hunt and its workers’ compensation insurance carrier (collectively, JB Hunt) answered the petition to controvert and its amendments, denying, among other allegations, that Morsi's death occurred while “performing service growing out of and in the course of [his] employment.” The parties conducted discovery, and the case was heard by an administrative judge (AJ) on January 15, 2021.

¶5. At the January 2021 hearing, the parties stipulated that “Morsi was discovered dead in the cab of a JB Hunt truck at the Pilot Truck Stop in Meridian, Mississippi, on or about December 25, 2019.” On stipulation of the parties, eleven exhibits were entered into evidence, including an employee timeline prepared on February 24, 2020, by Tim Gibbons, the JB Hunt fleet manager during the relevant time period; medical records dated December 22, 2019, from Morsi's visit to the emergency department of Rush Foundation Hospital; a printout of the truck's onboard computer (OBC) messages during the relevant time period;¹ and Gibbons's November 20, 2020 deposition. Vivien testified in person at the hearing. To avoid repetition, we will address specific testimony and the evidence entered into the record below.

¶6. Following the January 15, 2021 hearing, the AJ issued an order on March 12, 2021, dismissing Vivien's claim. The AJ concluded that the “found dead” presumption did not apply and that Vivien failed to establish that Morsi suffered an injury in the course and scope of his employment at the time of his death.

¶7. Vivien petitioned the Commission for review. On December 1, 2021, the Commission issued an order remanding the matter to the AJ, instructing him to determine whether Morsi was a “traveling employee”² at the time of his death.

¶8. On remand, the AJ reopened the record, and two additional exhibits were added, namely the March 8, 2022 Rule 30(b)(6)³ deposition of David Weaver, the JB Hunt operations manager,⁴ and JB Hunt's Driver Manual. After considering the evidence and testimony before him, the AJ issued an order on August 30, 2023, again dismissing Vivien's claim, finding that Morsi was not a traveling employee at the time of his death.

¶9. For a second time, Vivien petitioned the Commission for review. The Commission reviewed the record in its entirety. We address those facts and the Commission's final order below.

II. Statement of Facts

¶10. Vivien testified that she and the couple's three sons live in Brookhaven, Mississippi. She and Morsi filed a joint complaint for divorce, but it was never finalized. They were not living together at the time of his death. According to Vivien, Morsi had an apartment in Brookhaven.

¶11. Gibbons testified via deposition. He explained that as the fleet manager, he ensured the on-time pickup and delivery of loads in transit and ensured the drivers were following the Department of Transportation's and JB Hunt's rules and regulations, including the safety compliance rules. He also answered the drivers’ questions and addressed their concerns about their responsibilities. Gibbons testified that Morsi's usual schedule was that he would work for five days and then take a thirty-four-hour “reset,” or break, which is personal or “off time.”

¶12. On December 16, 2019, JB Hunt dispatched Morsi to retrieve a truck that had been abandoned by another driver at a gas station in Meridian, Mississippi. As the Commission observed in its final order, “[i]t is not clear how Morsi got from his home in Brookhaven to Meridian or even if his journey started in Brookhaven.” Vivien saw Morsi in Brookhaven before December 16 (because he had visited with their sons), but she did not know how he got to Meridian. She assumed that JB Hunt provided transportation for Morsi to get there. According to Weaver, however, JB Hunt has no record of paying for Morsi's transportation from Brookhaven (or anywhere else) to Meridian.

¶13. Vivien testified that when Morsi left Brookhaven to go to Meridian, that was the last time she saw him. Both Gibbons and Weaver testified that the truck in Meridian never moved from that location where the previous driver had abandoned it.

¶14. Gibbons testified about the forms of communication used by the company. He said that written communications between JB Hunt and the drivers were sent via OBC. Fleet managers, like Gibbons, would also call drivers or text them on a JB Hunt device. Gibbons said he would call or text a driver if there was an urgent matter or if he needed “an update on something and [the driver was] not responding to the OBC or [if he wanted] to check on [the driver].”

¶15. Concerning communication with Morsi specifically, Gibbons knew that he was Egyptian and did not speak English well, but Gibbons “understood how [Morsi] flowed with communication.” Gibbons said that when he had “voice-to-voice communication” with Morsi, “I ensured I used basic and simple English. I did not use complex terminologies that I understood [Morsi] wouldn't know.” Gibbons knew that Morsi did not speak English well, but Gibbons believed that his English language skills were good enough to allow him to drive. Gibbons noted that he had “pulled [other] guys off the truck” if he thought their English was inadequate.

¶16. On December 17, 2019, Morsi sent a message through the truck's OBC, as follows: “I'm very sick can't drive I'm sorry.” Seconds later, the fleet manager sent an OBC message directing Morsi to “get with safety” and “call corporate safety ASAP 800-723-9029.” The next day, Morsi's scheduled haul was canceled and assigned to another driver.

¶17. On Friday, December 20, Gibbons contacted Morsi by telephone, asking him what was going on and why the truck had not moved. He also reminded Morsi that he needed to complete safety and other training that was assigned to him. Morsi told him, “Oh, yeah, yeah. I'm about to get going. I'm good to go.” But Morsi did not move, and a second scheduled haul was assigned to another driver.

¶18. Concerning that weekend (December 21-22), Vivien testified that the last time she talked with Morsi was on a phone call on Saturday, December 21. Morsi told her that he had not been working because he had the flu but was planning to get back on the road soon. He told her he had sent some money to their sons, which she subsequently received. She testified that she did not speak with Morsi again after that Saturday before Christmas. She assumed he was working when she did not hear from him again.

¶19. On Sunday, December 22, Morsi went to the emergency department (ER) of Rush Foundation Hospital. According to the medical records from that visit, Morsi told the treating provider that he had had the flu the past week. He said he was feeling better, “but [now] was having back pain.” Morsi was prescribed methocarbamol (a type of muscle relaxant) by the attending physician and was given instructions to “[f]ollow up with [his] primary care provider in 2-3 days if not better.” Morsi's medical records indicate there was “[n]o language or communication barrier” and that he was able to provide his medical history to the intake nurse.

¶20. Gibbons did not work over the weekend. On Monday morning, December 23, Gibbons saw that Morsi's truck still had not moved. Gibbons testified that he called Morsi that afternoon and asked him, “Are you okay? What's going on?” Morsi then told Gibbons that he had been to the ER that Friday or maybe Saturday. Gibbons asked Morsi, “Why didn't you advise us ․ that you were in ER because if you were in the ER you cannot be in the truck[?] We don't know what is going on.” Gibbons testified that he asked Morsi, “How are you feeling right now?” Morsi told Gibbons, “I don't feel good,” so Gibbons said he explained to Morsi that “he has to get off the truck.” Gibbons told Morsi that if “we [JB Hunt] needed to call someone to come get him, if he needed an Uber, if he needed a hotel, if we needed to get him to a doctor,” then the company (via Gibbons) would do that, but Morsi refused to “get off” the truck.

¶21. Later in his deposition, Gibbons again explained that when Morsi told him he had been to the ER, “I told him he had to get off the truck now.” Morsi was not supposed to be in the truck “at all. He was not supposed to be in the sleeper. He was supposed to vacate the truck and advise [Gibbons] if he could not have someone pick him up how [Gibbons] could get him where he needed to go.”⁵ Morsi was never cleared to return back to driving.

¶22. On Tuesday (Christmas Eve day), Gibbons contacted Morsi around 7 or 8 a.m. that morning and learned Morsi was still in the truck. Gibbons again explained to Morsi that “[he] has to get off the truck” because he had gone to the ER, so Morsi could not return to the truck until his own doctor cleared him to drive. When Morsi told him he did not have his own doctor, Gibbons explained to Morsi that he needed to find a doctor to clear him before he could return to the truck.⁶ Gibbons said that Morsi told him that he “did not feel well enough to drive,” yet Morsi “refus[ed] to get out of the truck.” Morsi “kept saying, ‘I have to make money for my children.’ ” Gibbons testified that Morsi continued “refusing to go home” because he “[had] to make money,” so Gibbons told him, “You're not making any money ․ until you get cleared by a doctor so ․ we should try to get you home.” But Morsi “wouldn't go home.” This was the last time anyone spoke to Morsi.

¶23. The record also contains the JB Hunt Driver Manual that all the drivers receive. As addressed in further detail below, the Driver Manual essentially sets forth the instructions Gibbons gave to Morsi after Morsi told Gibbons he had gone to the ER over the weekend.

¶24. Weaver, as the Rule 30(b)(6) designee, testified on behalf of JB Hunt and explained that if a trucker is told to get off a truck and does not do it, the trucker would be in violation of company policy. Weaver confirmed that under the circumstances in this case, Morsi was not supposed to be in the cab of his truck on December 25 or 26, 2019.

¶25. When Gibbons returned to work on December 26, he and Weaver tried to call Morsi several times, but Morsi never answered. The JB Hunt safety manager sent a police officer to the truck location, and the officer discovered Morsi dead in the cab of the truck. Morsi's death certificate provides that Morsi was pronounced dead on December 26 at 11:27 a.m., and his estimated time of death was December 25, 2019, 10:00 p.m.

¶26. After Vivien last talked with her husband on Saturday, December 21, she did not try to contact him until Wednesday, December 25, when she sent him a text message. She did not get any response from Morsi, even by the next day. Vivien then started calling Morsi, but her calls would just go to his voicemail. She became worried and called JB Hunt. The person she spoke to there told her they had located his truck and would send a wellness crew to the location. Later, JB Hunt notified Vivien that Morsi had died.

III. The Commission's March 18, 2024 Order

¶27. Upon review of the parties’ briefs and the entire record, the Commission issued an order on March 18, 2024, affirming the AJ's August 30, 2023 order dismissing Vivien's claim, but on different grounds. The Commission found that “it is clear that Morsi was a traveling employee” but that Morsi “substantially deviated from his employment with [JB] Hunt and therefore was not in the course of his employment at the time of his death.” And “[b]ecause [the Commission] found Morsi had substantially deviated from, and was not engaged in, [JB] Hunt's business prior to his death,” the Commission found that the “found dead” presumption did not apply in this case. Commissioner Harkins dissented, finding that the evidence was not sufficient to sever the employer-employee relationship between Morsi and JB Hunt, the “found dead” presumption therefore applies, and JB Hunt failed to rebut it. Commissioner Harkins stated that she would find the claim compensable.

¶28. Vivien appealed from the Commission's order.

STANDARD OF REVIEW

¶29. “[T]he Commission is the ultimate finder of fact in workers’ compensation cases, and where substantial credible evidence supports the Commission's decision, then, absent an error of law, the decision must stand without judicial interference.” Jones v. Miss. Baptist Health Sys. Inc., 294 So. 3d 76, 80 (¶21) (Miss. 2020). As such, this Court must review the facts before it “not with an eye toward determining how [we] would resolve the factual issues were [we] the trier of the fact; rather, [our] function is to determine whether there is substantial credible evidence which would support the factual determination made by the Commission.” Sims, 308 So. 3d at 863 (¶15). “Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion,” id., and we must give “substantial deference” to the Commission's factual findings. Id. at 867 (¶28). “[W]e review matters of law before the Commission de novo, while according the interpretation of the Commission great weight and deference.” Jones v. Univ. of Miss. Med. Ctr., 309 So. 3d 1135, 1143 (¶33) (Miss. Ct. App. 2021).

DISCUSSION

I. Abandonment and Substantial Deviation from Employment

¶30. This Court has recognized that “[a]n injury is only compensable under the Act if it occurs in the course and scope of employment.” Rambo v. Kelly Nat. Gas Pipelines LLC, 394 So. 3d 932, 941 (¶26) (Miss. Ct. App. 2024) (citing Miss. Code Ann. § 71-3-3(b) (Rev. 2011)), cert. denied, 394 So. 3d 924 (Miss. 2024). In this case, the Commission found that Morsi was a “traveling employee,” i.e., “an employee whose work takes him away from the employer's premises.” Sims, 308 So. 3d at 864 (¶18).

¶31. Although, generally speaking, a traveling employee is “within the course of [his] employment continuously during the trip,” Smith & Johnson Inc. v. Eubanks, 374 So. 2d 235, 237 (Miss. 1979), there is an important “deviation” or “abandonment” exception to this rule that the Commission found applicable here. We agree with the Commission and find that substantial credible evidence supports its finding on this point.

¶32. Pursuant to the abandonment/deviation exception, “[i]f a worker turns completely aside from his or her employer's business to engage in personal activities, he or she has deviated from the course of the employment, unless the deviation is so slight as to be considered insubstantial.” John R. Bradley & Linda A Thompson, Mississippi Workers’ Compensation § 4:28 (2024-2025 ed.). We recently recognized this principle in Rambo, as follows:

An injury that occurs during a period of distinct abandonment of the employer's business is not compensable, and this is true for the traveling employee as well as the worker in a fixed place of employment. If a worker turns completely aside from his or her employer's business to engage in personal activities, he or she has deviated from the course of the employment.

Rambo, 394 So. 3d at 941 (¶26) (quoting Bradley & Thompson, supra, § 4:28 (2020 ed.)). JB Hunt, as the employer, bore the burden of “prov[ing] that the employee ․ abandoned his duties of employment.” Id. We find that substantial credible evidence supports the Commission's determination that Morsi substantially deviated from and abandoned JB Hunt's business and “therefore was not in the course of his employment at the time of his death.”

¶33. First, the Commission recognized that “[JB] Hunt is a trucking company whose business is to haul loads between various locations.” With respect to this point, the Commission found that “[it] is indisputable that for six days immediately prior to his death, Morsi did not advance his employer's interests by driving the truck.” In particular, based upon the record before it, the Commission found that even though Morsi “was known to be in the truck and alive for six days (December 19 to December 24) before his death, ․ he never hauled a load. In fact, at least two loads assigned to him were cancelled, and according to GPS tracking, his truck never moved.”

¶34. Second, the Commission recognized that as part of JB Hunt's business, a truck driver has ancillary duties, but the record contains no evidence that any such other duties were undertaken by Morsi during the six days before he died. For example, Morsi was required “to complete anti-harassment and safety training which could be done in his truck cab, but he [did not] do so,” despite repeated reminders from the fleet manager that the training had to be completed before year's end. Further, even though “[Morsi] was on the truck and alive for at least six days, he earned no mileage or layover pay.” As the Commission found, “[d]espite the fact there was frequent communication between Morsi and [JB] Hunt over the six day period, there is no evidence he participated in training, maintenance, log keeping, or any other duty during that time.”

¶35. Third, the Commission found that “Morsi was not about [sic] his employer's business [because] ․ he was told to vacate the truck on December 23 and December 24, 2019[,] ․ [but] chose not to follow [JB] Hunt's instructions.” Morsi asserts on appeal that by staying on the truck, he was fulfilling his duty to remain responsible for the truck. We are unpersuaded by this assertion because Morsi wholly ignores the actual circumstances that transpired after Gibbons, Morsi's fleet manager, learned that Morsi had been to the ER. At that point, Gibbons ordered Morsi to “get off the truck”; explained to Morsi that he could not return to the truck until his doctor cleared him to drive; and specifically explained to Morsi that JB Hunt “would call someone to come get him,” arrange for an Uber to pick him up, get him a hotel room, or get him to a doctor. Yet Morsi refused to get off the truck, disregarding Gibbons's explicit instructions that he needed to do so until he was cleared by a physician and ignoring the options Gibbons offered him to assist him in going home or where he wanted to go.

¶36. In addition to Gibbons's testimony about his explicit instructions to Morsi, the JB Hunt Driver Manual similarly details the steps an employee must undertake if he “become[s] ill ․ to a degree that [he is] unable to safely perform [his] job, or ․ [is] prescribed a new medication from a doctor.” These steps include notifying the employee's supervisor, or, if after hours, contacting “Safety Claims (800-723-9029).”⁷ The Driver Manual further provides that if an employee's “ability to perform [his] normal duties has been impaired, [he] need[s] to be medically examined before [he] can return to work ․ and [the employee] must obtain a release from [his] treating doctor that states that [he has] been released for work.” (Emphasis added). All drivers receive the JB Hunt Driver Manual. In short, the Driver Manual clearly corroborates Gibbons's testimony about his instructions to Morsi to vacate the truck after Morsi told him he had been to the ER and what Morsi needed to do to obtain clearance to return to work.

¶37. We also note that although Morsi did not tell Gibbons that he had been prescribed a muscle relaxant at his December 22 ER visit, Morsi's medical records show that he had been. Pursuant to the policy set forth in the Driver Manual, this is an additional reason why Morsi could not return to duty until he was cleared by a physician.

¶38. As the Commission found, by refusing to follow JB Hunt's instructions to vacate his truck, “[Morsi] deviated from advancing [JB Hunt's] interests, so [Morsi] could participate in the personal activity of healing or recovering from the flu and low back pain, so he could return to work and make money for his family.” We agree, and we find that substantial credible evidence supports this finding.

¶39. Our analysis in Rambo supports our conclusion. Rambo, 394 So. 3d at 945 (¶34). There, we affirmed the Commission's denial of benefits to a traveling employee-claimant (Rambo) who was injured in a motor vehicle accident while returning to work from “an unauthorized mid-week trip home.” Id.

¶40. Rambo was a natural-gas pipeline installer for Kelly Natural Gas Pipelines (Kelly). Id. at 935 (¶2). He lived in Bay Springs, Mississippi, but was working on a project in Greenwood, Mississippi, and stayed near the worksite during the week in a motel room paid for by Kelly. Id. at 935-36 (¶¶2-3). It was Kelly's policy that its employees must stay in the company's motel rooms “even if there [was] an anticipated rain-out, [because] often the company would re-direct employees to other work.” Id. at 937 (¶6). Nevertheless, on a “rain-out” day, Rambo and others left the Greenwood worksite to go home. Id. at (¶7). Returning to the worksite the next day, Rambo was injured in a vehicle accident. Id. at (¶8). Under these circumstances, the AJ found, and the Commission agreed, that although Rambo was a traveling employee, he did not have permission to make the mid-week trip home. Id. at 938-39 (¶¶15-17). By making his mid-week trip, Rambo had deviated from his course of employment for “a purely personal reason” and therefore his injuries were not compensable. Id.

¶41. This Court affirmed, observing that Rambo knew his employer “prohibited employees from leaving the motels without permission” but left on “an unauthorized, purely personal mission” against these instructions, and Kelly “derived no benefit from having its employee[ ] leave the worksite mid-week.” Id. at 942 (¶28).

¶42. We find that the evidence supporting the Commission's finding of abandonment or substantial deviation from employment is even stronger in this case than in Rambo. Gibbons instructed Morsi several times that he must vacate the truck after having visited the ER and could not return until he was cleared by his physician. Gibbons ensured Morsi understood, using plain and simple terms. And these same instructions were set forth in the JB Hunt Driver Manual. Also, as noted above, the Driver Manual informed drivers they also could not return to work until cleared by a physician if they had been prescribed a new medication—like Morsi, who had been prescribed a muscle relaxant during his ER visit. Additionally, JB Hunt offered Morsi at least three options to assist him in vacating the truck until he could obtain clearance. Nevertheless, Morsi wholly disregarded his employer's direct instructions and offers to assist him in vacating the truck so he could comply with company policy and safety rules.⁸

¶43. Substantial credible evidence also shows that JB Hunt “derived no benefit from having [Morsi]” remain in the truck against direct orders to vacate it. As the Commission found, the truck did not move, Morsi hauled no loads, and he performed no ancillary duties “for six days immediately prior to his death.”

¶44. Upon review of this record, the Commission found that Morsi “substantially deviated from his employment with [JB] Hunt sometime between December 19, when he arrived at his truck, and December 24, when he was last ordered to vacate the truck[,] ․ and there is no evidence he ever returned to the course of his employment.” Accordingly, the Commission found that “[b]ased on the above[-]described facts, we find Morsi substantially deviated from his employment with [JB] Hunt and therefore was not in the course of his employment at the time of his death.” For all the reasons detailed above, we find that substantial credible evidence supports these findings.

II. “Found Dead” Presumption

¶45. Section 71-3-3(b) of the Workers’ Compensation Law generally defines “[i]njury” as “accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an untoward event or events[.]” Ordinarily, “[a]n untoward event or events shall not be presumed to have arisen out of and in the course of employment, except in the case of an employee found dead in the course of employment.” Miss. Code Ann. § 71-3-3(b) (emphasis added). Morsi asserts that the Commission erred in finding that this exception does not apply here. We disagree.

¶46. The “found dead” presumption does not apply if an employee is found deceased where there is “evidence that [the employee] was not engaged in [his] employer's business.” Baptist Mem'l Hosp.–N. Miss. v. Dependents of Slate, 282 So. 3d 1211, 1215 (¶10) (Miss. Ct. App. 2019) (quoting Washington v. Greenville Mfg. & Mach. Works, 223 So. 2d 642 (Miss. 1969)); Miss. Code Ann. § 71-3-3(b). As discussed above, we find that substantial credible evidence supports the Commission's finding that “Morsi was not engaged in [JB] Hunt's business” at the time of his death. We therefore find no error in the Commission's finding that the “found dead” presumption does not apply in this case.

CONCLUSION

¶47. For the above-stated reasons, we find that substantial credible evidence supports the Commission's finding that Morsi was not in the “course of employment” at the time of his death, and therefore we find that the Commission correctly determined the “found dead” presumption does not apply. Accordingly, we affirm the Commission's March 18, 2024 order.

¶48. AFFIRMED.

¶49. The majority holds that there was substantial credible evidence for the Commission to find that Morsi was not in the “course of his employment” at the time of his death, precluding the application of the “found dead” presumption. However, it is my opinion that there is no evidence presented showing that Morsi was not in the course of his employment. I would also find that the “found dead” presumption applies and that J.B. Hunt cannot overcome the presumption. Therefore, I dissent.

¶50. Hansi Morsi was employed at JB Hunt Corporation as a truck driver. On December 16, 2019, JB Hunt assigned Morsi to travel to Meridian from Brookhaven to pick up an abandoned truck. On December 26, 2019, JB Hunt officials found Morsi dead in the cab of a JB Hunt truck at the Pilot Truck Stop in Meridian. The coroner's report estimated Morsi died on or around December 25, 2019.

¶51. Following Morsi's death, his widow, Vivien Morsi, filed a claim under the Mississippi Workers’ Compensation Law to receive death benefits for herself and their three minor children. The Mississippi Workers’ Compensation Commission denied Vivien's claim, finding that (1) Morsi did not meet the qualifications under Mississippi Code Annotated section 71-3-3(b) (Rev. 2021) because although he was a traveling employee, he was not in the course and scope of his employment at the time of his death and that (2) the “found dead” presumption does not apply.

Factual and Procedural History

¶52. Hansi Morsi lived in Brookhaven, Mississippi, with his wife, Vivien, and their three young children, all under the age of 10. One of their sons was diagnosed with autism spectrum disorder and required constant care. Morsi and Vivien married in Egypt in 2013, and Vivien moved there to be with him. The couple later moved to the United States after Morsi received his citizenship in 2016. Arabic was Morsi's first language, and after relocating to the United States, he struggled to become fluent in English, which made him reliant on Vivien for communication.

¶53. Morsi had a very difficult time finding employment when he first moved to the United States due to his English proficiency. Eventually, he found a job as a truck driver for JB Hunt Incorporation, making around $1,000 a week. As a truck driver, Morsi was not required to communicate with many people. He worked five days and would return home for 34 hours to rest or take personal time.

¶54. Vivien testified that it was not uncommon for Morsi to nod his head when he did not understand what someone was saying in English, or to respond with phrases like “yeah, yeah, yeah, okay, okay” to avoid being judged for his lack of understanding. She explained that Morsi's English vocabulary was quite limited, and she frequently translated for him, which included helping him with his emails and other correspondence. Vivien noted that Morsi's text messages in English were often difficult to comprehend because they contained numerous grammatical errors and misspellings. While Morsi was working at JB Hunt, he often called or texted Vivien to translate work-related messages he received.

¶55. David Weaver, JB Hunt's operations manager and Rule 30(b)(6) representative, testified that a driver's duties involve more than just driving. Drivers were responsible for fueling the truck, filling out paperwork, sending messages on the Onboard Computer (OBC), stopping the truck when legally required, and spending the night in the truck. Full-time drivers were responsible for their trucks and expected to take the truck with them on their 34-hour rest period. Most drivers took the rest at home, parking their trucks in a safe location near their homes while off duty. However, it was not uncommon for drivers to not go home during their rest period. JB Hunt did not record drivers’ whereabouts during their 34-hour rest.

¶56. All drivers received a policy manual that explained the company's policies if they became sick. According to the policies, JB Hunt would provide drivers transportation to go home, or they could choose to take their own transportation. If a driver was sick, the corporation ensured that the truck and the driver were in a safe location. If the driver could not get to a doctor or emergency room, the driver was allowed to stay in the truck's sleeper but not allowed to drive it until cleared by the Safety and Risk Management Team. Clearance required a doctor's note and authorization from a safety manager confirming that the driver was fit to drive. Weaver testified that employees who violated the policy faced discipline, including termination, if they drove the truck despite being prohibited due to medical reasons or inadequate training.

¶57. According to Tim Gibbons, Morsi's manager, every driver received driving instructions via the OBC. The OBC was a system used for GPS messaging and receiving dispatches. Most communication between drivers and JB Hunt happened through the OBC. Due to Morsi's limited proficiency in English, Gibbons used the OBC as the primary means of communication between them, only calling if there was an urgent matter. At the time, the OBC was their best form of communication for drivers.

¶58. The OBC recorded all messages sent between managers and drivers; however, it did not log phone calls. As a result, phone calls were not recorded on the OBC or in the GPS data. Although the OBC could track the truck's location, it did not have the capacity to turn off a truck remotely. Accordingly, if a driver violated company policies or refused to leave the truck, it would be necessary to call the police to intervene.

¶59. Sometime before December 16, 2019, Morsi was assigned to travel to Meridian, 144 miles from his home in Brookhaven, to pick up an abandoned truck. His usual truck had been out of service due to an accident, and JB Hunt arranged for him to use the abandoned one in Meridian. Generally, JB Hunt would provide drivers with transportation by rental car, bus, or Uber, among others, for these types of assignments; however, there is no evidence that JB Hunt provided Morsi transportation to Meridian. As a matter of fact, there is no record for how Morsi got to Meridian. Before leaving for Meridian, Vivien testified that Morsi had spent the day with his children and promised he would try his best to be home by Christmas. The day after Morsi left, one of his children was diagnosed with the flu.

¶60. On or before December 17, 2019, Morsi sent a message through the OBC stating, “I'm very sick can't drive I'm sorry.” Someone from JB Hunt replied, “Get with safety call corporate safety ASAP 800-723-9029.” These are the only recorded messages from the OBC between JB Hunt and Morsi leading up to his death.

¶61. On December 18, 2019, Gibbons sent a notification to the OBC to take Morsi off the assignment and hire someone else to pick up the truck in Meridian because Morsi was late. Morsi was expected to pick the truck up on December 16, 2019, and it should have only taken half of the day to get to Meridian from Brookhaven. On December 19, 2019, Morsi arrived in Meridian and was given driving instructions. However, from that moment until his death, the truck never moved.

¶62. Sometime between December 19, 2019, and December 22, 2021, Morsi told Vivien that he was too sick to leave the truck but had bought some over-the-counter medicine and was feeling better. When she told him to come home, he told her he had to stay with the truck.

¶63. On December 20, 2019, Gibbons testified that he called and sent Morsi messages on the OBC to check in on him and inquire why the truck had not moved. He also reminded Morsi to complete the anti-harassment training because it was required before he could drive the truck. JB Hunt required all employees to complete this training by the end of the year; otherwise, the employee would be terminated. Morsi responded that he would complete it. Again, though, there is no record of any messages sent to Morsi from Gibbons on the OBC.

¶64. On December 21, 2019, Morsi sent some money to Vivien for their children. Vivien testified that Morsi told her he would not be home in time for Christmas because he had to make up the time he had not driven when he was sick.

¶65. On December 22, 2019, at 7:51 a.m., Morsi went to the Emergency Department at Rush Foundation Hospital due to muscle spasms and back pain from no acute injury, which began that morning. He told the doctors that he took some Tylenol, but it did not relieve the pain. He also shared that he was recovering from the flu and had stayed in bed most of the weekend. He was prescribed Methocarbamol—a muscle relaxer—and advised to drink fluids. He was discharged the same day.

¶66. On December 23, 2019, Gibbons noticed the truck had not moved over the weekend. He testified that he contacted Morsi that afternoon to inquire why the truck had not moved and why he still had not completed the anti-harassment training. According to Gibbons, Morsi informed him that he had been in the Emergency Department at Rush Hospital. Gibbons testified that he told Morsi he should not be in the truck if he had been in the emergency room. Morsi expressed that he was not feeling well, and Gibbons told him to “get off” the truck. There is no recording of this communication on the OBC.

¶67. On December 24, 2019, at around 7:30 a.m., Gibbons contacted Morsi to check on how he was feeling. He found Morsi still in his truck, and during their conversation, Morsi expressed that he did not feel well enough to drive and mentioned that he had been in the emergency room a few days prior. Gibbons asked Morsi if he needed assistance, such as getting an Uber, a hotel, or a doctor's visit. Morsi repeatedly stated that he was not feeling well enough to drive. Gibbons informed him that he needed documentation confirming that he had left the emergency department and told him Morsi could not remain in the truck. Gibbons noted that Morsi refused to leave the truck or to have his primary doctor sign off on his ability to drive.

¶68. During the conversation, Gibbons noticed that Morsi struggled to understand what was being discussed. Gibbons had to explain the term “primary physician,” because Morsi was unfamiliar with the term. Additionally, Morsi did not understand that he needed to see a primary physician in order to obtain clearance to drive. Morsi initially insisted he understood but later claimed he was only 15 miles away from home. Gibbons later found out that Morsi was actually 140 miles from home. In his deposition, Gibbons testified that he believed Morsi did not return home during his reset period. Instead, he understood Morsi lived on the truck because he would shut it down in different areas and even informed Gibbons that he was taking his rest period on the road. Gibbons urged Morsi to go home for Christmas, emphasizing that he would not be able to drive until he completed his training and provided a doctor's note. However, Morsi responded by stating numerous times that he could not go home because he needed to earn money for his children.

¶69. On December 25, 2019, Vivien sent Morsi a picture of their kids opening their Christmas presents via text message. He never replied. Vivien testified that it was not unusual for her not to hear from Morsi while he was driving, but she found it odd that he did not reply. During their last conversation, Morsi said he was in the truck and could not leave but would be on the road soon. Vivien was unaware that Morsi had been to Rush Hospital for back pain. She assumed Morsi had been driving since the last time they spoke.

¶70. On December 26, 2019, Vivien called Morsi numerous times, but all the calls went to voicemail. She became concerned and contacted someone at JB Hunt, who told her the company would send a wellness crew to the location. A few hours later, she was informed that Morsi had been found dead in the cab of the truck.

¶71. Morsi's death certificate recorded that he died on or around December 25, 2019. The only cause of death noted was “suspected acute myocardial infraction.” Hence, the cause of death was not definitive, and neither were the day and time Morsi died. The record shows Morsi had been healthy and had no other known health conditions before he died.

Discussion

A. Course of Employment

¶72. I agree that Morsi was a traveling employee but disagree that he substantially deviated from his employment with JB Hunt. The Commission determined that Morsi had substantially deviated from his course of employment at the time of his death. As a result the Commission concluded that the “found dead” presumption did not apply. Vivien argues that JB Hunt failed to provide evidence indicating that Morsi significantly deviated from his job responsibilities at the time of his death. She maintains that he was within the course and scope of his employment.

¶73. An injury is only compensable for workers’ compensation if it occurs in the course and scope of employment. Miss. Code Ann. § 71-3-3(b). As a result, an employee must show that the injury resulted during the course of an activity that “carries out the employer's purposes or advances his interests directly or indirectly.” Rambo v. Kelly Nat. Gas Pipeline, LLC, 394 So. 3d 932 (Miss. Ct. App.), cert. denied, 394 So. 3d 924 (Miss. 2024).

An injury that occurs during a period of distinct abandonment of the employer's business is not compensable, and this is true for the traveling employee as well as the worker in a fixed place of employment. If a worker turns completely aside from his or her employer's business to engage in personal activities, he or she has deviated from the course of the employment.

John R. Bradley & Linda A Thompson, Mississippi Workers’ Compensation § 4:28 (2020 ed.). If an employee's work creates the necessity for travel, he is in the course of his employment, even if he is simultaneously serving a personal purpose. E & M Motel Mgmt. Inc. v. Knight, 231 So. 2d 179, 183 (Miss. 1970) (quoting Vardaman S. Dunn, Mississippi Workmen's Compensation § 183, at 246 (2d ed. 1967)). However, a traveling employee assumes the risk if the trip is personal and if the injury would have happened regardless of the business purpose, even if the employee is considered “on the job” at the time. See Sims v. Delta Fuel, 308 So. 3d 859, 864 (¶19) (Miss. Ct. App. 2020).

¶74. Morsi accepted his assignment from JB Hunt and arrived at a truck stop in Meridian to pick up an abandoned truck. I wholeheartedly agree with Commissioner Harkins’ dissent, which states in relevant part:

It is undisputed that J.B. Hunt sent Morsi to Meridian, MS to get an abandoned truck and use it to haul a load. It is undisputed that he arrived at the truck and occupied its cab, a place he was reasonably expected to be, and it is undisputed that he was found dead in the cab – again a place where as a truck driver his duties required him to be. It therefore follows that the found dead presumption arose in this case.

I also emphasize, like Weaver and Commissioner Harkins stated, there is no recorded evidence that Gibbons instructed Morsi to leave the truck after Morsi mentioned he had gone to the emergency room. There is no evidence of these messages on the OBC. The only messages on the OBC were those made before these alleged phone calls, and Morsi was not told he had to get off the truck. When Morsi communicated that he did not feel well on the OBC, he was instructed to call the safety team. JB Hunt's policy stated that if an employee is not feeling well, he may stay in the truck. Plainly, Morsi was where he was instructed to be by his employer. There is no evidence of any other phone calls or messages that were sent to Morsi. In addition, even if he remained in the truck against Gibbons’ instructions, according to Weaver, JB Hunt would have had to remove Morsi from the truck with the aid of the police. JB Hunt declined to use the option of having police remove him from the truck. There is no substantial credible evidence that Morsi was instructed to leave the truck and violated JB Hunt's policy.

¶75. Morsi's inability to drive immediately because of his uncompleted training does not amount to his turning completely aside from JB Hunt's business to engage in personal business. He was not late in completing the training. During the course of his appeal, specifically at oral argument, it was revealed that the lack of training did not prevent Morsi from driving or being in the truck. The training was not due to be completed until the end of the month, so Morsi died before the training was even due.

¶76. The majority's often-cited case Rambo, 394 So. 3d at 937 (¶7), in which the employee took the company car without permission to make an unauthorized mid-week trip home, is unlike our case. Here there is no record on the OBC backing up Gibbons’ testimony that Morsi was told he needed to leave the truck. Even if Morsi being sick and staying in the truck are considered a deviation, it would be minor and not completely aside from the employer's business because Morsi was still in the course of his employment, and the record is devoid of any evidence suggesting otherwise. He was told to go to Meridian to pick up an abandoned truck and complete his training before he could drive. The training was not yet due. If uncompleted training was truly a problem, then it would not have made sense for JB Hunt to send Morsi to Meridian to retrieve the truck in the first place.

¶77. There is no information or evidence of what Morsi did in the truck leading up to his death, as nothing was recorded. For all we know, Morsi could have been working on the training or doing one of the many other tasks for which drivers are responsible. Unlike Rambo, JB Hunt's policy states on page five that a sick driver may not operate the truck. The policy does not state that the driver has to get off the vehicle. In contrast to Weaver's testimony, removal from the truck is not addressed in the written policy and manual. Moreover, there is no evidence that Morsi was not engaged in a task on behalf of JB Hunt leading up to his death.

B. The “Found Dead” Presumption

¶78. The Commission determined that the “found dead” presumption did not apply. I believe that JB Hunt failed to show that Morsi was not entitled to the presumption. Once again, I agree with Commissioner Harkins’ dissent, and I believe that it provides the correct legal analysis that this Court should adopt on appeal:

Even if Morsi was instructed to leave the truck, that instruction does not sever the work connection and is not so great a departure from J.B. Hunt's business to take him out of the course of his employment.

Once the presumption arose, the burden shifted to J.B. Hunt to rebut it. As mentioned above, to rebut the presumption, J.B. Hunt had to (a) fully develop Morsi's work activities during the time leading up to his death, (b) show his cause of death, and (c) prove his activities did not cause or to contribute to his death. Failure to prove any one element means the presumption has not been rebutted. In this case, J.B. Hunt failed to prove any of the three elements.

During the days before Morsi's death, there were large chunks of time during which no one had any idea what he was doing. A review of the record shows no one knows how Morsi got to Meridian, why he was three days late arriving at his truck, or where he was between December 16 and December 19. Between December 20 and December 26, Gibbons and Morsi's wife communicated with Morsi for a short period of time by telephone, text, or through the onboard computer in his truck. However, there are no witnesses, video, or evidence of any kind which detail Morsi's activities during the large chunks of time between these communications. Although these communications give a glimpse of what Morsi was doing over the days before his death, they do not fully develop his work activities during the time leading up to his death as required to rebut the found dead presumption.

The second thing J.B. Hunt must prove to rebut the found dead presumption is Morsi's cause of death. The only evidence in record I see on this issue is the death certificate which lists his cause of death as “suspect acute myocardial infarction.” Obviously the coroner was not certain about Morsi's cause of death. Further, there is nothing on the death certificate or anywhere else which shows the basis for the coroner's uncertain opinion. There is no autopsy, examination of medical records, or interview with the family about Morsi's medical condition. Also, there are no other medical expert opinions on this issue. Based on the evidence contained in the record, we have no idea what caused Morsi's death.

Finally, J.B. Hunt must prove Morsi's activities did not cause or contribute to his death. Because we have only a dim picture of Mori's activities in the days leading to his death and because we have no idea what caused his death, there is no way to prove Morsi's activities did not cause or contribute to his death. J.B. Hunt failed to prove the third element needed to rebut the presumption.

¶79. Under Mississippi law, if an employee is found dead at a location related to the person's work during work hours, it is presumed that the death occurred in the course of employment unless evidence suggests otherwise. Baptist Mem'l Hosp. N. Miss. Inc. v. Dependents of Slate, 282 So. 3d 1211, 1215 (¶11) (Miss. Ct. App. 2019); John R. Bradley & Linda A Thompson, Mississippi Workers’ Compensation § 4:28 (2020 ed.); Miss. Code Ann. § 71-3-3(b) (Rev. 2011). To rebut this presumption, an employer must (1) explain the cause of death and (2) that the employee's “work activities did not cause or contribute to her condition from which she died.” Nettles v. Gulf City Fisheries Inc., 629 So. 2d 554, 557 (Miss. 1993). Here, the cause of death cannot be proven because there was no autopsy and the death certificate is inconclusive. Further, no one can prove whether the work activities caused or contributed to Morsi's death.

¶80. We have precedent finding that the “found dead presumption” is applicable when the employer did not provide substantial evidence. In Washington v. Greenville Mfg. & Mach. Works, 223 So. 2d 642, 643-44 (Miss. 1969), a doctor concluded that the employee died from a heart attack unrelated to his work activities, based on the employee's history of hypertensive cardiovascular disease and testimony regarding his work habits. The Commission denied the decedent family death benefits. Id. at 643. However, our Supreme Court held that the employee qualified for benefits under the “found dead” presumption because the employer did not provide substantial evidence to rebut the presumption. Id. at 647. The court found that because there was no direct evidence of the employee's usual routine, the doctor's testimony was “patently conjectural” and improper because the doctor lacked basis for his finding. Id. at 644. The doctor could not substantiate that the employee's job contributed to his death, even if he had died of a heart attack. Id.

¶81. JB Hunt failed to show that Morsi's work activities did not continue or that he was instructed to leave the truck, as neither Gibbons nor anyone at JB Hunt could provide records through the OBC. Even if such a record existed, being asked to leave would not sever him from his course of employment. There are no eyewitnesses or recordings available that could provide clarity or challenge the presumption of him being found dead. As a result, similar to Washington, JB Hunt did not provide substantial credible evidence to refute the presumption.

Conclusion

¶82. I would find Morsi's family is entitled to benefits under Mississippi Code Annotated section 71-3-3(b) because even though he was a traveling employee, he was working within the course and scope of his employment at the time of his death. As a result, the “found dead” presumption applied and was not rebutted. Accordingly, I respectfully dissent.

FOOTNOTES

1.   Trial Exhibit 11, also entered into evidence, consisted of another compilation of written dispatches from the truck's OBC.

2.   A “traveling employee” is “defined under Mississippi case law as an employee whose work takes him away from the employer's premises.” Sims v. Delta Fuel, 308 So. 3d 859, 864 (¶18) (Miss. Ct. App. 2020) (internal quotation marks and brackets omitted).

3.   Mississippi Rule of Civil Procedure 30(b)(6) allows for a corporation to be deposed via “one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf[.]” M.R.C.P. 30(b)(6).

4.   Weaver was also the JB Hunt operations manager in December 2019. At the time of his deposition, Weaver had worked for JB Hunt for nearly twenty-four years.

5.   The Commission also had before it Gibbons's deposition testimony about the company's general protocol if a driver is sick and cannot drive. Gibbons said under those circumstances, “We [(the company)] ensures that [the driver is at] a local and safe location. If [the driver is] not able to get themselves to a doctor or ER, they can stay in the sleeper of the truck. But they are not allowed to drive it until cleared by safety.” (Emphasis added). In this case, however, Morsi had been to the ER. Gibbons testified about those specific circumstances, as set forth above, which required Morsi to vacate the truck and not return to duty until cleared by his physician.

6.   Weaver similarly testified that once Morsi notified JB Hunt that he had been to the emergency room, JB Hunt did not permit the driver to be in the truck “because it's a safety hazard ․ [The driver] could do a lot of damage and possibly hurt somebody, including the driver[, himself].” In order for a driver to return to the truck, he must be “cleared,” which means that his physician must complete a “return to work form.” If this is the case, Weaver said, JB Hunt would, “you know, put [the driver] in a hotel or get them to a bus and ․ try [to help] the guy get home so he can see his primary care physician to make sure he's cleared.”

7.   The December 17, 2019 OBC records show that after Morsi sent a message that he was “very ill” and could not drive, he was told to “call corporate safety ASAP 800-723-9029,” the same number in the Driver Manual.

8.   We recognize that an employee acting in a way “forbidden or prohibited by a rule, instruction, or statute will not necessarily prevent [his actions] from being considered as arising out of and in the course of the employment ․ [unless] the order [that] was disobeyed [was one that] limited the sphere of such employment,” rather than one that was “merely a direction ․ not to do things, or to do them in a certain way, within the sphere of the employment.” Kahne v. Robinson, 232 Miss. 670, 682, 100 So. 2d 132, 136 (1958) (emphasis added). As we have detailed above, we find that Gibbons's explicit instructions to Morsi and the Driver Manual's specific directives plainly “limit[ed] [Morsi's] sphere of ․ employment” in this case. Thus, Morsi's refusal to follow these instructions placed him outside his course of employment. Once JB Hunt learned Morsi had been to the ER, Morsi was repeatedly told he must vacate the truck and could not return to work until he was cleared by his physician—directives also outlined in the JB Hunt Driver Manual. Morsi was never cleared by a physician. As such, Morsi remained outside his “sphere of employment” at the time of his death.

CARLTON, P.J., FOR THE COURT:

BARNES, C.J., WILSON, P.J., EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR. McCARTY, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD AND LAWRENCE, JJ.