No. 88-388
TM THE SUPREME COIJRT OF THE STATE OF MONTANA
--
LTEANNIE BUHL ,
Claimant and Appellant,
-vs-
WARM SPRINGS STATE HOSPIT'AL,
Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Greg J. Skakl-es; Johnson, Skakles & Rehe, Anaconda,
Monta~a
For Respondent:
Chris D. Tweeten, Agency 1,eqal Services Bureau, Helena,
ZMontana
' J lL1
- ..-
h*
Submitted on Briefs: Feh. 3, 1989
Decided: March 7, 1989
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a=
Filed: E
-
"Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.
Claimant Jean Ann Buhl was injured while en route to her
employment at Warm Springs State Hospital and filed a workers1
compensation claim for temporary disability pay for the several
months of work she missed due to the injuries from the accident.
Benefits were denied. The case was submitted to the Workers1
Compensation Court on an agreed set of facts. The parties agreed
that the only issue to be determined was whether the claimant
suffered injury in the course and scope of her employment. The
Workers1 Compensation Court ruled that she did not. Claimant
appeals.
We affirm.
The only issue on appeal is whether the Workerst Compensation
Court erred as a matter of law when it concluded that claimant's
conduct at the time of her injury was not within the course and
scope of her employment and that it did not come under any
exception to the "going and cominggt rule.
On August 10, 1985, claimant was riding to work as a passenger
in a car driven by co-employee Sue Graves down Highway 48 in
Montana from their residence in Anaconda to their employment site
at Warm Springs. They were scheduled to go on duty at 3:00 p.m.
that afternoon. En route to Warm Springs, they saw a fellow
employee, Gene Evans, with his car parked alongside the highway
with the hood up. Claimant and the driver mutually agreed to stop
their car to see if they could render assistance to their stranded
co-worker. Claimant was sitting inside Graves's parked car when
the car was struck by another car. Claimant was injured in that
collision.
Claimant argues first that it was the employment relationship
that motivated them to stop Graves's car, and that secondly, by so
aiding a fellow employee get to work on time, she was conferring
a benefit upon the employer. Both of these bring this conduct
under an exception to the "going and coming'l rule, according to
claimant. We disagree.
To be compensable an injury generally must occur within the
course and scope of employment, section 39-71-407, MCA (1985), and
travel to work and coming home from work ("going and comingl1) is
not within the course and scope of employment, Griffin v.
Industrial Accident Board (1940), 111 Mont. 110, 106 P.2d 346.
Exceptions may apply when additional factors are present, such as
when the employer pays for or provides the employee's transporta-
tion. Correa v. Rexroat Tile (Mont. 1985), 703 P.2d 160, 42
St.Rep. 1075; Gordon v. H. C. Smith Construction Co. (1980), 188
Mont. 166, 612 P.2d 668. In the instant case, claimant was not
compensated by the employer for time spent in transit. The
accident occurred while she was off duty and off of the employer's
premises.
On facts very similar to these, this Court denied compensation
to the claimant based on the "going and coming1'rule. Hagerman v.
Galen State Hospital (1977), 174 Mont. 249, 570 P.2d 893. In that
case, the claimant was an employee at Galen State Hospital who
commuted twelve miles to work every day from her residence in
Anaconda. She was not personally compensated by the employer for
her commuting expenses. She was injured in an auto accident en
route to work one day and filed a claim with her employer for
compensation. We affirmed the denial of benefits stating:
Throughout the years this State has had work-
ers' compensation, this Court has considered
a number of cases where injuries were sus-
tained going to or coming from work and has
found no recovery unless employee travel pay
was covered under the employment contract or
that travel allowance was for travel for the
special benefit of the employer. [Citations
omitted. ]
Unless transportation is made a part of the
employment contract or travel to and from work
is recognized by legislative enactment or
contract, any injuries suffered in such travel
are outside the course and scope of the em-
ployment.
Haqerman, 174 Mont. at 251, 570 P.2d at 894. The Workers' Compen-
sation Court specifically noted that this case was within the
Haqerman rule when it denied benefits to claimant.
Claimant argues that her case fits the Ifspecial benefit1'
exception articulated in Haqerman because she conferred a reasonab-
ly immediate service to her employer. She argues that she was
injured while attempting to help a fellow employee get to work on
time, completing the work force for the benefit of the employer.
The Workers' Compensation Court rejected that argument
stating: "If merely securing the employee's presence at work is in
every case a 'special benefit,' the exception swallows up the
rule." Because of this, the court found that no exception to the
general rule applied based on claimant's conduct at the time of her
injury. We agree.
As we stated in Ogren v. Bitterroot Motors, Inc. (Mont. 1986),
723 P.2d 944, 947, 43 St.Rep. 1467, 1471: "It is hard to imagine
how traveling to one's regular work place on a regular workday can
be for the special benefit of an employer." Thus, claimant's
conduct in this case is dispositive. No exception to the general
rule would apply under these facts for conduct securing her or
Evans' presence at work at their regularly scheduled time. The
Workers' compensation Court is affirmed on that ruling.
Here, it should be noted that this case was submitted on an
agreed set of facts which do not support claimant's primary theory:
that the purpose of the stop was to aid Evans in getting to work
on time, although that might be inferred as one reason for stopping
from the context of all the facts taken together. The facts
generally indicate that stopping was a voluntary choice by Graves,
for humanitarian purposes, because a motorist was stranded. They
do not indicate that claimant was concerned with Evans1 timely
arrival at work, nor do they indicate that Graves would have passed
him by had he not been scheduled to work at 3:00 p.m.
However, the facts point out that the employer did not
request, require, or know of claimant's conduct, and that there is
a total lack of employer participation in the activity causing
injury .
Claimant next argues that her injury is compensable because
her conduct was of "mutual benefit" to the employer and herself and
is thus another possible exception to the going and coming rule.
We disagree.
The "mutual benefit" exception was recently discussed in
Lassabe v. Simmons Drilling, Inc. (Mont. 1987), 743 P.2d 568, 570-
571, 44 St.Rep. 1369, 1372, where we stated:
. . . because when some advantage to the
employer results from the employee's conduct,
his act cannot be regarded as purely personal
and wholly unrelated to the employment.
Citing, Guarascio v. Industrial Accident Board (1962), 140 Mont.
497, 501, 374 P.2d 84, 86.
However, this rule is inapplicable for the reasons addressed
above. Simply securing the employee's presence at work cannot be
a I1specialbenefit" or an I1advantage"to the employer. Under these
facts, the work area is not a danger zone, such as a construction
site; nor is it an entirely remote area, such as a drilling site.
The employer in this case is wholly removed from transportation
responsibilities and can reasonably expect that employees secure
their own transportation to and from work. Such transportation is
not within the course and scope of the employment. Absent any
additional factors, injuries occurring during transit are not
compensable.
Because this case turns on claimant's Iftravel statust1 the
at
time of injury, and because we have already affirmed that no
exceptions can apply to her conduct, we decline discussion on
claimant's four remaining proposed exceptions.
Claimant's conduct is too far removed from any benefit or
logical nexus to the employer to bring this case within an excep-
tion to the ''going and corning1'rule. Her injury is not compensable
under our scheme of workers' compensation. Benefits were properly
denied.
Judgment affirmed.
Chief Justice
We concur:
Justices
B