No. 96-448
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
COLLEEN CONNERY,
WINTER SPORTS, INC.,
Employer.
APPEAL FROM: The WorkersT Compensation Court,
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry W. Jones, Senior Attorney; Liberty
Northwest Insurance Corp.; Missoula, Mont ana
For Respondent:
David W. Lauridsen and Laurie Wallace;
Bothe & Lauridsen, Columbia Falls, Montana
Submitted on Briefs: November 14, 1996
~ ~ ~ i d ~ d : 10, 1996
December
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The respondent, Colleen Connery, petitioned the Workers'
Compensation Court for the State of Montana to find that she was
injured during the course of her employment with Winter Sports,
Inc. After a trial, the Workers' Compensation Court entered
judgment for Connery and against the appellant, Liberty Northwest
Insurance Corp., which insured her employer. Liberty appeals the
Workers' Compensation Court's decision. We affirm the judgment of
the Workers' Compensation Court.
The issues on appeal are:
1. Did the Workers' Compensation Court err when it
interpreted 5 39-71-118(2)(a), MCA?
2. Was there substantial evidence to support the Workers'
Compensation Court's finding that Connery was an employee injured
in the course and scope of her employment?
FACTUAL BACKGROUND
Connery was employed as a certified ski instructor by Winter
Sports, Inc., at Big Mountain ski area near Whitefish.
On December 10, 1995, Connery signed in at work at 8:45 a.m.,
and attended a ski instructor lineup at 9:15 a.m. At approximately
9:45 a.m., she was assigned to a private lesson scheduled to
corrmence at 11:OO a.m. She was told that the lesson would take
place on a hill which is served by the Platter Lift.
Shortly thereafter, Connery and Mark Roy, another ski
instructor, took the main lift to the top of Big Mountain. They
skied down the backside, and took another lift back to the top.
They then skied down the front of the mountain.
When Connery was approximately 200 yards above the base of the
Platter Lift, she stopped to wait for Roy. As Roy approached, he
was unable to stop and collided with Connery. As a result of the
collision, she suffered a severe fracture of her left leg. The
collision occurred at approximately10:35 a.m.--twenty-fiveminutes
before the private lesson was scheduled to commence.
Connery filed a workers' compensation claim in which she
sought lost wages and medical benefits. Liberty acknowledged the
claim, but denied it based on § 39-71-118,MCA, which provides, in
relevant part:
(1) The term "employee" or "worker" means:
. . . .
(2) The terms defined in subsection (1) do not
include a person who is:
(a) participating in recreational activity and who
at the time is relieved of and is not performing
prescribed duties, regardless of whether the person is
using, by discount or otherwise, a pass, ticket, permit,
device, or other emolument of employment . . . .
Connery subsequently filed a petition for hearing in the
Workers' Compensation Court. A trial was held in Kalispell on
June 5, 1996.
At the trial, Liberty contended that when the accident
occurred Connery was engaged in a recreational activity, and that
she was relieved of and not performing prescribed duties related to
her employment. On that basis, it asserted that the recreational
activity exclusion in § 39-71-118(2)(a), MCA, is applicable, and
that, pursuant to the statutory exclusion, Connery's claim should
be denied.
Connery, however, claimed that on the morning of December 10,
1995, she was engaged in a "warm-up run." A "warm-up runu allows
ski instructors to become familiar with the weather and ski
conditions, and to condition and physically prepare themselves
before they give ski lessons. It is undisputed that Winter Sports,
Inc., encourages its ski instructors to take "warm-up runs" before
they give ski lessons.
Connery claimed that her "warm-up run" was, in fact, a
prescribed duty of her employment. On that basis, she contended
that the exclusion in § ,
39-71-118(2)(a) MCA, is not applicable,
and that her injury is work-related and compensable.
At the conclusion of the trial, the Workers' Compensation
Court determined that: (1) at the time Connery was injured, she was
engaged in a "warm-up run"; (2) the recreational activity exclusion
in § 39-71-118(2)(a), MCA, is not applicable to the facts of
Connery's claim; (3) Connery suffered a compensable industrial
accident during the course and scope of her employment; and
therefore (4) she is entitled to wage loss and medical benefits
pursuant to the Workers' Compensation Act. Accordingly, the court
entered judgment in favor of Connery.
ISSUE 1
Did the Workers' Compensation Court err when it interpreted
§ 39-71-118(2)(a), MCA?
When we review the Workers' Compensation Court's conclusions
of law, the standard of review is whether those conclusions are
correct. Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont . 404, 410,
The relevant portion of § 39-71-118, MCA, provides:
(1) The term "employee" or "worker" means:
. . . .
(2) The terms defined in subsection (1) do not
include a person who is:
(a) participating in recreational activity and who
at the time is relieved of and is not performing
prescribed duties, regardless of whether the person is
using, by discount or otherwise, a pass, ticket, permit,
device, or other emolument of employment . . . .
When it interpreted the statute, the Workers' Compensation
Court made the following conclusion:
,
Section 39-71-118(2)(a) MCA, plainly requires a two-part
analysis, first focusing on whether activity leading to
the accident was a recreational one. If it was, then a
second criteria must be met, that being to wit: at the
time of the activity the injured individual must have
been relieved of and not performing duties of [her]
employment.
The court held that the first prong of § 39-71-118(2)(a), MCA,
was satisfied, because Connery conceded that she was involved in a
recreational activity at the time of her accident.
When it analyzed the second prong, the court applied a
traditional course and scope of employment analysis to determine
"whether a worker involved in a recreational activity was
nonetheless performing prescribed duties of employment at the time
of an accident." Ultimately, the court determined that the second
prong was not satisfied. Therefore, it held that the statutory
exclusion is not applicable to the facts of Connery's claim.
On appeal, Liberty contends that the Workers' Compensation
Court erred when it interpreted § 39-71-118(2)(a), MCA, and applied
a traditional course and scope of employment analysis.
In support of its claim, Liberty asserts the following
argument: (1) the plain and unambiguous meaning of 5 39-71-
118(2) (a),MCA, is that a person engaged in recreational activity,
and not performing what she has been hired and paid to do (her
"prescribed duties") is excluded from the statutory definition of
an "employee"; (2) because the statute is plain and unambiguous on
its face, it must be directly applied as written, and no further
analysis is required or permitted; and therefore (3) the Workers'
compensation Court erred when it failed to apply the plain meaning
of the statute and, instead, applied a traditional course and scope
of employment analysis.
Liberty correctly recognizes that when a statute is plain and
unambiguous on its face, it must be applied as written, and "the
courts may not go further and apply any other means of
interpretation." Muver v. State Fund (l994), 267 Mont. 516, 520, 885
P.2d 428, 430.
Liberty then, however: (1) asserts its own interpretation of
the statute; (2) claims that its interpretation constitutes the
plain and unambiguous meaning of the statute; and (3) maintains
that, pursuant to well-established principles of statutory
construction, the court is obligated to apply that (alleged) plain
and unambiguous meaning.
We reject Liberty's interpretation of the statute. Instead,
we hold that the "prescribed duties" prong of 5 39-71-118(2)(a),
MCA, can only be reasonably applied based on a traditional course
and scope of employment analysis.
The purpose of 5 39-71-118( 2 ) (a), MCA, as revealed by its
legislative history, is clear. Many employers, such as Winter
Sports, Inc., offer seasonal passes to their employees as a form of
compensation. Those seasonal passes are used by the employees for
work-related and personal recreational activities. Section
,
39-71-118(2)(a) MCA, shields employers from workers' compensation
liability when an employee is injured while he or she is off-duty
and engaged in purely personal recreational activity.
Despite the statute's clear purpose, the term "prescribed
duties" is, itself, not defined, and cannot be arbitrarily limited
by a definition such as the one Liberty proposes. Any attempt at
a uniform definition of an employee's "prescribed duties" will,
inevitably, fail to account for all of the potential fact patterns
that could arise. The definition of an employee ' s "prescribed
duties" is fact-intensive, and will vary considerably from case to
case. Therefore, the application of a traditional course and scope
of employment analysis is, and will be, necessary to determine
exactly what an employee's "prescribed duties" are in a particular
case.
Accordingly, we hold that the Workers1 Compensation Court's
conclusions of law are correct, and that it did not err when it
held that § 39-71-118(2)(a),MCA, requires a traditional course and
scope of employment analysis.
ISSUE 2
Was there substantial evidence to support the Workers'
Compensation Court's finding that Connery was an employee injured
in the course and scope of her employment?
The Workers' Compensation Court's findings of fact will be
upheld if they are supported by substantial credible evidence.
Wunderlich, 270 Mont. at 408, 892 P.2d at 566.
The Workers' Compensation Court found that, at the time of the
accident, Connery was engaged in a "warm-up run." Although she
was, indisputably, involved in a recreational activity, the court
also found that her "warm-up run" was a prescribed duty of her
employment. On that basis, the court determined that the exclusion
in § 39-71-118(2)(a), MCA, is not applicable, that the injury
occurred during the course and scope of her employment, and that,
therefore, the injury is a compensable industrial accident.
On appeal, Liberty contends that the Workers' Compensation
Court's findings are not supported by substantial credible
evidence. Specifically, it asserts that the court erred when it
found that Connery's "warm-up run" was a prescribed duty of her
employment; rather, it maintains that she was recreationally skiing
on her own free time and not performing a prescribed duty of
employment. Therefore, it claims that the exclusion in
5 39-71-118(2)(a), MCA, applies, and that her claim must be denied.
At the outset, we recognize that giving ski lessons was not
Connery's only employment duty. Both she and Mark Roy testified
that she was also expected or required to provide noon hour child
care; report to work between 8:00 and 9:00 a.m.; sign up for work
upon arrival, and sign-out upon departure; attend an employee
lineup at 9:15 a.m.; attend ski clinics each month; arrive at the
lesson site fifteen minutes early; and frequently check the office
and message boards to determine if any "walk-in" lessons had been
scheduled. Additionally, her employee manual recommended that all
ski instructors take "warm-up runs" before they give a lesson.
Most significant, however, is the application of the facts of
Connery's claim to the legal principles of a traditional course and
scope of employment analysis. In Montana, the test to determine
whether an employee was injured in the course and scope of her
employment is as follows:
Controlling factors repeatedly relied upon to determine
a work-related injury include: (1) whether the activity
was undertaken at the employer's request; (2) whether
employer, either directly or indirectly, compelled
employee's attendance at the activity; (3) whether the
employer controlled or participated in the activity; and
(4) whether both employer and employee mutually
benefitted from the activity. The presence or absence of
each factor, may or may not be determinative and the
significance of each factor must be considered in the
totality of all attendant circumstances.
Courserv. DarbySchoolDist.No. 1 (1984), 214 Mont. 13, 16-17, 692 P.2d 417,
The Workers' Compensation Court concluded that, pursuant to
the facts of this case and the application of those facts to the
four-factor test in Courser, Connery's "warm-up runu was within the
course and scope of her employment, and that, therefore, it was a
prescribed duty of her employment. In support of this conclusion,
the court stated:
A warm-up run was recommended by her employer, thus the
first C u s r factor is met.
ore It is also reasonable to
assume that both the employer and [Connery] benefitted
from a warm-up run in that [Conneryl unlimbered her
muscles and joints and generally familiarized herself
with snow conditions. The fact that the employer
recommended a warm-up run indicated its belief that such
runs directly or indirectly contributed to ski lessons.
Thus, the fourth C u s r factor is met.
ore By requiring
instructors to sign-in and attend lineup, and assigning
lessons at odd times, such as occurred in this case, the
employer also indirectly contributed to claimant's
warm-up run on December 10. There was insufficient time
for her to leave the ski area or engage in other
substantial activities, whereas she was dressed and ready
for skiing and had sufficient time to make a warm-up run.
Thus, the second [Courser] factor appears to be met,
although weakly. The third [Courser] factor . . . is not
met. Nonetheless, on balance [Connery'sl warm-up run was
within the course and scope of [Connery's]employment and
part of her duties.
Additionally, the court found that Connery ' s "warm-up run"
"terminated in the immediate vicinity of her lesson and terminated
shortly before the lesson was to begin."
Based on our review of the record, we conclude that the
Workers' Compensation Court's findings of fact are supported by
substantial credible evidence. Those findings are consistent with
the testimony of both Connery and her co-worker, Mark Roy.
Accordingly, we hold that the Workers' Compensation Court did not
err when it determined that, based on the facts in this case,
Connery was injured in the course and scope of her employment.
The judgment of the Workers' Compensation Court is affirmed.
We concur: