Kahn v. State

OTIS, Justice

(dissenting).

Because in my opinion respondent has failed, as a matter of law, to sustain her burden of proving that her injury arose out of and in the course of her employment, and because the University did not receive adequate notice of her claim, I respectfully dissent.

1. The majority concedes it is the settled law of this state, subject only to certain limited exceptions, that personal injuries suffered by an employee while traveling between work premises and home do not fall within the scope of workers’ compensation coverage. Minn.Stat. § 176.011, subd. 16 (1978); Lundgaard v. Department of Pub. Safety, 306 Minn. 421, 237 N.W.2d 617 (1975). Respondent here attempts to fit within an exception which grants compensation benefits to an employee who is injured while traveling between two areas of work premises, and argues that her home had become one of them. 1 Larson, The Law of Workmen’s Compensation §§ 15.14, 18.30-.34 (1978) (hereinafter Larson ). See, e. g., Waalk v. Tonkawood Constr. Co., 305 Minn. 44, 232 N.W.2d 19 (1975). An examination of the record leaves little doubt that respondent does not qualify for such an exception.

The work required of respondent consisted primarily of studying the available literature on the subject of home care for terminally ill children, reviewing the medical and financial charts of children who had been hospitalized for cancer and had died at the University Hospital, and writing a grant proposal by following a sample that had been furnished by Dr. Martinson.

Respondent began her work in early May by reading background material given her by Dr. Martinson at home. She then spent time researching at the University, examining medical and financial charts and reviewing the latest literature on the subject of home care. In the evenings, at home, she correlated and organized the data she had obtained during her research each day. The last week in May she drafted the proposal at her home.

On June 6, 1973, respondent met with Dr. Martinson and others, and they agreed that they were ready to go forward with the presentation to Blue Cross on June 14. It was understood that respondent would assist Dr. Martinson, since her research formed the basis of the presentation, although the exact extent of her planned participation is not clear from the record.

After the June 6 meeting respondent updated the proposal at home by clarifying the chart, adding a bibliography, and condensing certain figures. She also spent time working on the proposal in the evenings with her husband, whose combined experience in medicine and business enabled him to assist her in rewriting a portion of the summary.

On Friday, June 8, 1973, after running various errands and attending a voice lesson, respondent drove to the University to look for certain financial charts to add to the final draft of her proposal. Although her search for additional data was unsuccessful, respondent then brought the final draft of the proposal to one of the secretaries at the School of Nursing for typing. She left the University to drive home at about 1:30 or 2:30 p. m.

Respondent testified that she was quite disappointed by her inability to find additional financial charts, and that she was so preoccupied with that and with her plans for the presentation to be held the following Thursday that she missed her usual exit from Highway Twelve. Then, while stopped at a semaphore on an alternate route home, her automobile was struck from behind.

Respondent testified that she planned to work on the presentation upon returning home on June 8, although she admitted that she would also be preparing supper that evening, and therefore did not know precisely when she would begin her work. She said she intended to review her research *747notes, all of which were already at her home, to reacquaint herself with the material to be used in the presentation, some of which had not been included in the written proposal. Respondent testified that she wanted to tie up loose ends before the weekend, because her weekend time was usually spent with her husband.

Before workers’ compensation coverage can be extended to cover personal injuries sustained while traveling between home and another work situs, it must be shown that “the work duties associated with the employee’s home are such that it can genuinely and not fictitiously be said that the home has become part of the employment premises.” 1 Larson, supra, § 18.31 at 4-264. Otherwise the general rule of noncov-erage would -be subject to erosion by the claims of all those professionals and semiprofessionals who intend to do some work at home, while leaving uncovered those laborers who are unable to profess such an intent. 1 Larson, supra, § 18.32 at 4-270 to 4-272.

There are two categories of cases in which injuries suffered during travel between ■ the employee’s home and another portion of the employment premises are covered by workers’ compensation.

In some cases, the establishment of the home as a business situs can best be undertaken by demonstrating a clear business use of the home at the end of the specific journey during which the accident occurred. In others, there may be no evidence that on that particular night the claimant was going to perform some particular work; in these cases the evidence must take the form of proof that the regularity of work at home and other factors endow the home with the continuing status of a work place, so that any going and coming journey is covered.

1 Larson, supra, § 18.31 at 4 — 265.

In the matter now before us; the evidence is entirely too speculative to support a conclusion that respondent was going to begin to work upon returning home on Friday, June 8. There is no evidence to support respondent’s claim other than her own statement of intent. She was carrying no materials with her at the time of the accident. Furthermore, she had already turned in the final draft of her proposal for typing, and some five or six days remained in which she could have reviewed her research to prepare for the Blue Cross presentation.

On the facts before us, respondent did not demonstrate a business use of her home at the end of her journey on June 8. Nor is this a case in which the employee was obliged to interrupt work she had already begun at home following which it was necessary to return home again in order to complete her work. Nor does respondent qualify for workers’ compensation coverage on the basis that her home had taken on the continuing status of a work situs because her employment involved no special circumstances that made it necessary, rather than merely personally convenient, that she performed work at home. 1 Larson, supra § 18.32.

2. Minn.Stat. § 176.141 (1971) requires notice to the employer within ninety days after the occurrence of the injury in order to allow compensation. The statute provides for two forms of notice — either written notice or actual knowledge. The compensation judge denied recovery because respondent did not give notice of the claim from June 8 to September 6, 1973 — the ninety-day period after the accident. The court of appeals reversed, holding that the ninety-day reporting period required by the statute did not commence until the date the employee had the physical and mental capacity to make a claim and to give notice thereof. Without passing on the questionable validity of such a holding, the facts of this case do not, in my opinion, permit a finding that written notice was given or that the employer had actual knowledge of the claim even within the extended ninety-day period.

The court of appeals based its decision on two of its Findings of Fact. First, based on additional testimony of respondent’s husband, Dr. Kahn, the court found that on January 11, 1974, respondent was able to tell him that she was engaged in work for *748the University at the time of the accident and that she was unable to communicate this information prior to that date. Thus, the extended ninety-day period would have run until mid-April 1974. Second, based on testimony of Dr. Ida Martinson, the court found that she received notice of the worker’s compensation claim on or about January 11, 1974. The court of appeals later amended these findings on motion of respondent’s counsel because it believed there was an error in these dates. The amended findings were that both respondent’s ability to communicate and the notice of the claim occurred in January 1975. There is support in Dr. Martinson’s testimony at the deposition for changing the date of notice to January 1975. There is no support in the record, however, for changing the date of respondent’s ability to communicate. She was in fact able to and did communicate in January 1974.

The only possible basis for concluding that respondent could not communicate pri- or to January 1975 relates to respondent’s voice operation. However, twelve months prior to that date, respondent had fully informed her husband of her alleged work-related activities. Thus, I cannot find any evidentiary support for the finding that notice was given within ninety days of the time the employee was able to communicate information as to her work activities.

The court of appeals’ finding that the employer had actual knowledge of the injury on June 10, 1973, does not change this result. There is no evidence that Dr. Mar-tinson, as agent for the employer, had any knowledge that Florence Kahn had been injured in relation to her work at the University of Minnesota on the day of the accident. Professor Larson states:

The present tendency is to excuse lack of notice whenever the employer acquired actual knowledge of the accident, no matter how he acquired it. * * * It is not enough, however, that the employer, through his representatives, be aware that claimant “feels sick,” or has a headache, or fell down, * * *. There must in addition be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.

3 Larson, supra, § 78.31a at 15-31 to 15-44 (footnotes omitted). Minnesota case law is in agreement with this position. “[Mjere notice by the employee to the employer that he has sustained an injury is not sufficient. He must convey to the employer or the employer’s foreman or superintendent that the condition is causally related to his employment.” Davidson v. Bermo, Inc., 272 Minn. 97, 101, 137 N.W.2d 567, 571 (1965), quoted with approval in Kling v. St. Barnabas Hospital, 291 Minn. 257, 261, 190 N.W.2d 674, 677-78 (1971). See Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916 (1970).

In the instant matter, Dr. Martinson had actual knowledge that respondent was severely injured in an automobile accident while driving home; she also knew that respondent performed a good portion of her work on the proposal at her home. Dr. Martinson, however, had no knowledge that respondent had been working on the project at the University on the day of her accident, or that she was on her way home from the University when injured. Thus, even if Dr. Martinson is charged with knowledge that respondent was in fact an employee of the University and that employees are sometimes eligible for workers’ compensation coverage if injured while traveling between two work premises, it is difficult to find that she, or any reasonable employer, should have been put on inquiry simply by virtue of her knowledge of the automobile accident. A fortiori, neither Dean Isabel Harris nor the administrative assistants who signed respondent’s paycheck in late June 1973 can be charged with actual knowledge.

Accordingly, I would hold that Mrs. Kahn’s injury was not work-related and that in any event there was no notice to the employer within the period prescribed by statute.

*749ROGOSHESKE, Justice (dissenting).

I join in the dissent of OTIS, J.

PETERSON, Justice (dissenting).

I join in the dissent of OTIS, J.

TODD, Justice (dissenting in part).

I join in the dissent of OTIS, J., as to lack of proper statutory notice.