NO. 94-534
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
JANET STRICKLAND,
Petitioner and Appellant,
Employer
APPEAL FROM: The Workers' Compensation Court,
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roger M. Sullivan and Allan M. McGarvey,
McGarvey, Heberling, Sullivan & McGarvey,
Kalispell, Montana
For Respondent:
Charles G. Adams, Legal Counsel, State
Compensation Insurance Fund, Helena, Montana
Submitted on Briefs: July 6, 1995
Decided: September 14, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The appellant, Janet Strickland, filed a petition in the
Workers' Compensation Court for the State of Montana, in which she
sought'compensation from the State Compensation Mutual Insurance
Fund for injuries she sustained in a two-car accident. The court
denied Strickland's claim on the basis that, at the time of the
accident, she was not acting in the course and scope of her
employment. Strickland appeals from the judgment which denied her
petition. We affirm the Workers' Compensation Court.
Strickland raises the following issues:
1. Was there substantial evidence to support the Workers'
Compensation Court's finding that Strickland was on a personal
errand at the time of her car accident?
2. Assuming she was on a personal errand at the time of her
accident, did the Workers' Compensation Court correctly conclude
that Strickland was not acting in the course and scope of her
employment?
FACTUAL BACKGROUND
On August 21, 1992, Janet Strickland was employed by Joe and
Sherry Tackett at the Tacketts' restaurant, Steaks n' Stuff, west
of Columbia Falls in Flathead County. She arrived at work between
3:00 and 4:00 p.m. At approximately 4:00, Strickland left the
restaurant to run an errand.
Sometime after Strickland left Steaks n' Stuff, apparently on
her return from the nearest convenience store, a car, which was
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traveling south on Highway 40 at a high rate of speed, struck her
vehicle.
Strickland suffered serious head injuries as a result of the
collision and was comatose for approximately six weeks. At the
time of trial, Strickland still experienced significant adverse
effects due to the accident, including difficulty remembering
events during the period just prior to the accident until
approximately eight weeks after the accident, or two weeks after
Strickland awoke from the coma.
On August 24, 1992, three days after the accident,
Strickland's husband, Wayne, filed a workers' compensation claim
for her. In the claim, Wayne stated that Janet had gone on a
shopping errand for Steaks n' Stuff and that the accident occurred
during her return to work.
The issues raised by Strickland's petition and the State
Fund's answer were tried before the Workers' Compensation Court on
March 2, 1994. Marla Handford was called as a witness by the State
Fund. She identified herself as Steaks n' Stuff's head cook and
Strickland's supervisor on the afternoon of her accident. Handford
testified that during the time prior to Strickland's departure from
work, she had complained of cramps and at least inferred a desire
to locate and take an analgesic, such as Midol, that was stronger
than aspirin. Additionally, Handford testified that Strickland
wanted to purchase a newspaper in order to search for new office
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space for her husband's business. Testimony from Tackett and an
additional witness corroborated Handford's version of events.
Strickland testified that Handford directed her to go to the
Trumble Creek Hub in order to purchase a National Inquirer and a
National Examiner. In support of Strickland's version of events,
an investigator, Bob Evans, testified that 10 or 11 days after the
accident, he examined Strickland's car and found within it a
National Inquirer and a National Examiner. Furthermore, Wayne
Strickland testified that on the day of the accident, while at the
hospital, he spoke with Joe Tackett, who stated that Handford told
him that she felt the accident was her fault because she had sent
Strickland to the store.
Handford unequivocally denied sending Strickland anywhere.
She also testified that after Strickland had decided to go to the
store for personal reasons, she might have asked her to bring back
something for her (Handford) to read. She gave the following
testimony:
Q: [RESPONDENT'S ATTORNEY] Do you remember whether or
not you sent her out?
A. No, I didn't send her anywhere.
Q. You're certain of that?
A. I'm certain of that.
. . .
Q. You don't recall saying, Would you get me something
to read?
A. No.
. .
A. . You know, we were friends and we were talking
and giggling and laughing. I don't remember if I--I
said, Well, if you're going to get something to read,
I'll have something too, you know, pick me up something
too.
The Workers' Compensation Court found Handford's version of
the events more credible that Strickland's, in part because of the
length of Strickland's coma and the fragmentary nature of her
memory concerning the day of the accident. It also found that
Wayne's testimony was not credible. The court found that
Strickland was on a personal errand at the time of the accident.
Accordingly, the court concluded that Strickland was not acting
within the course and scope of her employment at the time of the
accident, and therefore, denied Strickland's petition for workers'
compensation benefits.
ISSUE 1
Was there substantial evidence to support the Workers'
Compensation Court's finding that Strickland was on a personal
errand at the time of her car accident?
We will review the Workers' Compensation Court's findings of
fact to determine whether substantial evidence supports the
findings. Wunderlich V. Lumbermens Mutual Casualty Co. (Mont. 1995) , 52 St.
Rep. 251, 253 (citing Smith v. UnitedParcelService (1992) , 254 Mont. 71,
75, 835 P.2d 717, 720). We stress this standard of review in light
of Strickland's assertion that we have "vacillated" between the
"substantial evidence" and "clearly erroneous" standards in
5
relation to the Workers' Compensation Court's findings of fact.
Assuming arguendo that we have vacillated in this respect, Buckentinv.
State Compensation Mutual Insurance Fund ( 19 9 4 ) , 2 65 Mont. 518, 878 P .2d 2 62,
makes clear that our employment of the clearly erroneous standard
in Boglev. OwnerrentRenttoOwn (1994), 264 Mont. 515, 872 P.2d 800, was
incorrect. Buckentin , 878 P.2d at 263.
Strickland contends that substantial evidence did not support
the Workers' Compensation Court's finding that she was engaged in
a personal errand at the time of her accident. In support of this
contention, she cites physical evidence which is inconsistent with
Handford's version of events and suggests that Handford's testimony
was too equivocal to directly contradict her own evidence.
The State Fund responds that Handford's testimony provided
substantial evidence in support of the court's critical finding and
that because Handford's and Strickland's testimony were
contradictory regarding the nature of Strickland's errand, this
Court must defer to the Workers' Compensation Court's resolution of
that factual issue. The State Fund notes, and we agree, that this
Court is not in a position to independently assess either witness
credibility or the weight to be given to a witness's testimony.
In support of its argument, the State Fund cites Wunderlich, in
which we held that substantial evidence consists of more than a
mere scintilla of evidence, but may be somewhat less than a
preponderance of the evidence. Wunderlich , 52 St. Rep at 253. By
that standard, the State Fund contends that Handford's testimony
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satisfied the requirement of substantial evidence. We agree, and
further note that ' [tlhe direct evidence of one witness who is
entitled to full credit is sufficient for proof of any fact
. 1, Section 26-l-301, MCA.
For these reasons, and based on the testimony of Marla
Handford and our review of the entire record, we conclude there was
substantial evidence to support the Workers' Compensation Court's
finding that Strickland was engaged in a personal errand at the
time of her motor vehicle accident.
ISSUE 2
Assuming she was on a personal errand at the time of her
accident, did the Workers' Compensation Court correctly conclude
that Strickland was not acting in the course and scope of her
employment?
We review the Workers' Compensation Court's conclusions of law
to determine whether they are correct. Glade v. State Camp. Ins. Fund
(Mont. 1995), 894 P.2d 940, 941, 52 St. Rep. 367 (citing Stordalenv.
Ricci’sFoodFarm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394).
Strickland asserts that even if she was on a personal errand
at the time of the accident, she was, nonetheless, acting within
the course and scope of her employment. She bases this contention
on the "personal comfort" and "rest break" doctrines described at
Larson's Workers' Compensation Law, Vol. 1A § 21.00, at 5-5, and
Vol. 1 § 15.54, at 4-116.38, 4-116.40, respectively, and our prior
decision in Steffesv. 93LeasingCo. (1978), 177 Mont. 83, 580 P.2d 450.
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However, whether injuries sustained while traveling to and from
work are compensable is governed by statute in Montana; see
5 39-71-407, MCA (1987), and StateFundv.James (19931, 257 Mont. 348,
849 P.2d 187, and Steffes was decided before the effective date of
that statute
Section 39-71-407(3), MCA, provides the only circumstances
under which an employee's travel-related injuries are compensable.
That section provides, in relevant part:
An employee who suffers an injury . . . while traveling
is not covered by this chapter unless:
(a) (i) the employer furnishesthetransportationor
the employee receives reimbursement from the employer for
costs of travel, gas, oil, or lodging as a part of the
employee's benefits or employment agreement; and
(ii) the travel is necessitated by and on behalf of
the employer as an integral part or condition of the
employment; or
(b) the travel is required by the employer as part
of the employee's job duties.
Strickland used her own vehicle,to run the errand. Nothing in
the record establishes that Tackett reimbursed Strickland for the
costs of running the errand and, as previously discussed, the
Workers' Compensation Court specifically found that Strickland's
employer did not require that she make the trip she was on at the
time of her injuries. Since we have previously held that that
finding was supported by substantial evidence, we conclude that
Strickland was not acting within the course and scope of her
employment at the time she was injured, and that the Workers'
Compensation Court, therefore, correctly concluded that her claim
is not compensable.
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For these reasons, we affirm the judgment of the Workers'
Compensation Court.
We concur:
n
Justices
9
Justice W. William Leaphart, dissenting.
I dissent from the Court's conclusion that there was
substantial evidence to support the Workers' Compensation Court's
finding that: "claimant left work on a personal errand to purchase
a newspaper and possibly an analgesic [Midol] .I' Despite Marla
Handford's testimony as to the newspaper and Midol, the record
shows no physical evidence to support the position that Janet
Strickland was on a personal errand. Neither Midol nor a u
InterLake newspaper was found in Strickland's car. If, as Handford
claimed, Strickland were returning from a personal trip to the
store to purchase these items, where were they? Additional
evidence refutes the assertion that Strickland was on a personal
trip. Strickland had no need for Midol, she did not have her
period, she was not premenstrual, and she testified that she does
not suffer from menstrual cramps and has never used Midol. Since
Strickland subscribed to the Dailv InterLake, there was no reason
for her to purchase the paper. Although this Court defers to the
Workers' Compensation Court on questions of witness credibility,
the complete lack of physical evidence to support the State Fund's
position that Strickland was on a personal errand overrides the
credibility assigned to Handford by the Workers' Compensation
Court. I find that substantial evidence does not support the
Workers' Compensation Court's finding that Strickland was engaged
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in a personal errand at the time of her accident.
Justice William E. Hunt, Sr., joins in the foregoing dissent
of Justice W. William Leaphart.
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September 14, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Roger M. Sullivan, Allan M. McGarvey
McCarvey, Heberling, Sullivan & McGarvey
745 South Main
Kalispell MT 59901
Charles G. Adams, Legal Counsel
State Compensation Insurance Fund
Box 4159
Helena MT 59604-4759
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:&-
Deputy u