CORREA v REXROAT TILE

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No. 84-518 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 MAXIM0 CORREA, Claimant and Appellant, -vsREXROAT TILE, Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent. Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. APPEAL FROM: COUNSEL OF RECORD: For Appellant: Utick, Grosfield Montana & Uda; Norman H. Grosfield, Helena, For Respondent: .. , . Luxan & Murfitt; Michael McCarter, Helena, Montana Submitted on Briefs: Decided: i Filed: " ; iqgs Clerk April 18, 1985 July 2 3 , 1985 M r . J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court. is This an appeal from judgment a of C o m p e n s a t i o n C o u r t o f t h e S t a t e o f Montana. Correa 13, the Workers1 A p p e l l a n t Maximo ("appellant") sought b e n e f i t s a s a r e s u l t of a January 1983 a c c i d e n t i n G a l l a t i n County. Benefits w e r e denied and t h i s a p p e a l f o l l o w e d . Appellant began work as a R e x r o a t T i l e i n November o f 1982. tile s e t t ~ r ' sh e l p e r for I n J a n u a r y o f 1983 Rexroat b e g a n a p r o j e c t a t t h e U n i v e r s i t y S t u d e n t Union i n Bozeman. A p p e l l a n t , who r e s i d e s i n H e l e n a , l i v e d i n a m o t e l i n Bozeman during the week and to returned Helena on the weekends. R e x r o a t r e i m b u r s e d a p p e l l a n t for t h e m o t e l a s w e l l a s for g a s f o r t h e t r i p s t o Helena. d u r i n g t h e work w e e k , A p p e l l a n t was t o r e m a i n i n Bozeman a midweek t r i p t o H e l e n a was 12, unless appellant r e q u i r e d t o p i c k up m a t e r i a l s . On brother Wednesday, January 1983, and his (who was a l s o employed o n t h e p r o j e c t ) worked u n t i l e a r l y evening. A f t e r a s t o p a t t h e motel t h e y s e t t l e d i n a b a r u n t i l n e a r l y m i d n i g h t a t which p o i n t a p p e l l a n t t o l d h i s b r o t h e r t h a t h e was g o i n g t o d r i v e t o H e l e n a t o see h i s w i f e . Appellant's next recollection was waking c a r e u n i t o f Bozeman D e a c o n e s s H o s p i t a l . DUI. in the intensive H e was c h a r g e d w i t h A p p e l l a n t was e x p e c t e d a t work a t e i g h t o ' c l o c k on t h e morning f o l l o w i n g t h e a c c i d e n t . On September 21, 1983, Compensation claim i n which January 1983, in Rexroat 13, Tile. ("respondent") 24, 1984, The denied before the appellant filed h e c o n t e n d s h e was connection State with his Compensation a Workers' injured on employment with Insurance Fund l i a b i l i t y a n d a t r i a l was h e l d o n Nay Workers' Compensation Court. In a ruling dated October 25, benefits medical costs, and 1984, the the appellant was court holding denied that the January 13, 1983, accident was not within the scope of his employment. The following issues are raised for review: (1) Whether, because appellant was receiving a travel and subsistence allowance, his injury arose out of and in the course of his employment, and was thus compensahle under the Workers1 Compensation Act? (2) Whether appellant was in a "travel status" at the time of his injury, making such injury compensable under the Workers1 Compensation Act? (3) Whether appellant suffered a type of idiopathic fall which arose out of and in the course of his employment, and is thus compensable under the Workers' Compensation Act? P.ppellantls arguments can be easily disposed of. Section 39-71-407, MCA, provides: "Every insurer is liable for the payment of compensation, in the manner and to the extent- hereinafter provided, to an employee of an employer it insures who receives an injury arising - of and in out of his the course - - employment or, in the case of his death from such injury, to his beneficiaries, if any. " (Emphasis added. ) It is the general rule in Montana that travel by an employee to and from work is outside the course of his employment. Gordon v. Smith Construction Co. P.2d 668. (1980), 188 Mont. 166, 612 The well-established exception to this rule is that when an employee is given a specific allowance to travel to and from the job, such travel is considered within the course and scope of employment. Circle Co. Miller & Gordon, supra; Ellingson v. (1975), 166 Mont. 431, 533 P.2d 1100; McMillen v. Co. (1975), 166 Mont. 400, 533 P.2d 1095. In McMillen and Ellingson, claimants were injured in automobile accidents while enroute to their jobs. In both cases they were receiving a travel allowance from their employers. This Court found that their injuries were incurred while in the course of employment and were compensable. In Gordon the facts a are similar. John Gordon received subsistence allowance for working at a job site more than fifty-four miles from Great Falls. Gordon's temporary residence was in Lewistown from which he commuted to the jobsite twenty-four miles northeast of Denton. work and On May 1, 1978, Gordon got off drove to the Denton Bar. He stayed there for several hours and left with friends at 10:OO that evening. Two miles west of Denton, travelling toward Stanford and away from Lewistown, Gordon was killed in an automobile accident. This Court ruled that Gordon was being compensated for travel to and from work and that his death was compensable. fact that Gordon was travelling away The from his place of temporary residence was found irrelevant because Gordon often stayed with fellow employees in Stanford rather than returning each night to Lewistown. Appellant argues that the above cases are authority for holding that his injury is compensable. He claims that since he received a travel allowance and was injured in his car he was within the course of his employment. totally unpersuasive. established is that The an rule employee this This argument is Court injury has clearly suffered while travelling to and from work is compensable under Montana law if the employee is receiving a specific allowance for such travel. In this case the appellant was working under an agreement whereby he would be compensated for weekend trips from Bozeman to his home in Helena. He was expected to stay in Bozeman during the week. At midnight on a Wednesday appellant set off in an extremely intoxicated condition to drive From Bozeman to Helena. Rozeman at 8:00 o'clock He was expected at work in Thursday morninq. The injury suffered by appellant was not, in any manner contemplated by this Court or by common sense, travelling to and from work. suffered while he was Even if by some heavy exercise of the imagination we could interpret appellant's travels as being to and from work, he did not allowance for such mid-week travel. State Hospital (1977), 174 Mont. receive a specific In Hagerman v. Galen 249, 570 P.2d 893, an employee of Galen State Hospital was injured while travelling to work. The only provision in the employee's contract for travel pay was for emergency call outs. No such emergency was involved and this Court held the injury not compensable. Clearly, if the employee had been travelling on an emergency call out her injury would have been compensable. Similarly, in our case, if appellant had been injured on a weekend trip to or from compensable. his home in Helena, such injury would be But these are not our facts. Appellant also argues that " [a]n additional and distinct exception to the 'going to and from work' rule under workers' compensation law involves employees who are in a ' travel status. ' " Appellant is correct that there is a "travel status" exception to the genera1 rule that denies compensation for injuries sustained while going to and from work. This exception applies where an employee is required to travel away from home on his employer's business. The exception is given most succinct expression in Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450 wherein it is stated that employee injuries are compensable when they a r e sustained while t r a v e l l i n g f o r t h e s p e c i a l b e n e f i t of t h e employer. "The underlying principle of this exception is t h a t i n c a s e s where some r e a s o n a b l y immediate s e r v i c e t o t h e employer can be discerned, the i s no reasonably should b e denied." Steffes, where 453. there claim should be sustained; immediate service, 177 Mont. a t 87, the claim 580 P . 2 d at I n t h e p r e s e n t c a s e w e do n o t s e e any s p e c i a l b e n e f i t o r r e a s o n a b l y immediate s e r v i c e t o R e x r o a t T i l e w h a t s o e v e r i n a p p e l l a n t ' s midnight t r a v e l s . A p p e l l a n t makes t h e a r g u m e n t , with c i t a t i o n s t o other jurisdictions, t h a t employees w o r k i n g away from home s h o u l d b e c o n s i d e r e d i n a " t r a v e l s t a t u s " on a 24-hour, around t h e clock b a s i s , r e g a r d l e s s o f t h e n a t u r e o f their activity. If s u c h i s t h e law e l s e w h e r e w e r e f u s e t o a d o p t it h e r e . Finally, a p p e l l a n t would have t h i s C o u r t c o n s i d e r h i s accident a "type of workers' compensation idiopathic law. fall, note We " compensable first of all under that an employee i n j u r y , w h e t h e r a r i s i n g o u t o f a c o n d i t i o n p e r s o n a l t o t h e c l a i m a n t ( i d i o p a t h i c ) o r n o t , must o c c u r i n t h e c o u r s e of employment cornpensable. or in "travel a S i n c e we hold that status" in appellant order was to not in be a " t r a v e l s t a t u s " and was n o t i n t h e c o u r s e o f employment, h i s i n j u r y , i d i o p a t h i c o r o t h e r w i s e , i s n o t compensable. Second, appel l a n t I s imprecise, w e might u s e o f l a n g u a g e d e s e r v e s comment. in any type accident. of Both a fall--he cases was cited by say Orwellian A p p e l l a n t was n o t i n j u r e d iniured in an appellant, automobile F r a n q u ~ t v. I m p e r i a l Management Corp. (Kd. 1 9 7 5 ) , 341 A.2d 8 8 1 and I n d i a n L e a s i n g Co. (Ky. v. Turbyfill 1 9 7 8 ) , 577 S.W.2d i n j u r i e s r e c e i v e d from f a l l s on t h e j o b . 24, involve Further i n Franquet t h e Maryland c o u r t c i t e s t o no less t h a n a dozen c a s e s , a l l o f w h i c h i n v o l v e i n j u r i e s s u s t a i n e d by workmen f a l l i n g w h i l e I f t h e r e i s c a s e l a w i n t h i s c o u n t r y w h i c h makes on t h e j o b . an a n a l o g y b e t w e e n t h e k i n d o f i n j u r y i n c u r r e d b y a p p e l l a n t a n d an i d i o p a t h i c f a l l t h e a p p e l l a n t h a s f a i l e d t o p o i n t it out. Appellant w r i t e s : " I f t h e C l a i m a n t had b e e n o n t h e j o b a t t h e s t u d e n t u n i o n p r o j e c t a t Bozeman a n d had s u f f e r e d a blackout as a result of alcohol consumption, resulting in i n j u r i e s , h e would h a v e c e r t a i n l y b e e n e n t i t l e d t o w o r k e r s ' compensation Whether or benefits not such under an idiopathic the injury would c l e a r l y would b e t h e r e s u l t o f a f a l l . be fall rule." compensable, it But once a g a i n , t h e s e are not our facts. The judgment of the Workers ' affirmed. W e concur: Justices U Compensation Court is Mr. Justice Frank R . Morrison, Jr. concurs as follows: I concur in the result although not in the tenor of the opinion which frivilous. In seems to treat appellant's position as light of our holding in Gordon v. Smith Construction Co. (1980), 188 Mont. 166, 612 P.2d 668 this is a close case. Gordon can be distinguished because of evidence of Gordon's "temporary home" in Stanford to which he was traveling at the time of his accident. I agree to affirm.

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