'NO. 84-186
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
BYRON J. COURSER,
Claimant and Respondent,
-vs-
DARBY SCHOOL DISTRICT #1,
Employer,
and
INTERMOUNTAIN INSURANCE COMPANY,
Defendant and Appellant.
APPEAL FROM: Workers' Compensation Court, The Honorable ~ i m o t h y
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Garlington, Lohn & Robinson; Larry Riley argued,
Missoula, Montana
For Respondent :
Robinson, Doyle & Bell; George H. Corn argued,
Hamilton, Montana
Submitted: ?Joverr,ter 14, 1984
Decided: December 7, 1984
Qpx; .
., fci;!,$j
. ~/
Filed:
Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the opinion the
Court.
Claimant, Byron J. Courser, filed a petition to recover
compensation benefits for a severe head injury. 5170rkers1
Compensation Court ruled the injuries were compensable.
Defendant appeals.
Byron Courser, Claimant, has been an elementary school
teacher in the Darby School District No. 9 since 1970. His
responsibilities included teaching, coaching, art instruc-
tion, and administrative duties.
During the spring of 1981, Claimant entered an individu-
al employment contract with the District that provided for an
"annual salary" to be paid in ten or twelve monthly install-
ments according to the employee's preference. By its terms,
this contract was subject to a master contract negotiated
between the Claimant's union and the School District. The
salary schedule encouraged teachers to pursue graduate de-
grees since promotion was based on advanced education as well
as tenure. Prior approval by the school administration of
all proposed graduate programs was required.
Speculating early retirement of the principal, School
District officials urged Courser to complete a master's
degree to become eligible for that administrative opening.
In the summer of 1980 claimant entered a master's program at
Western Montana College based upon encouragement from the
District's superintendent and the principal of the elementary
school. Pursuant to the appro~ral requirement of the master
contract, the District superintendent reviewed and approved
claimant's degree program and selected courses. Concurrent-
ly, the superintendent granted a salary increase to become
effective upon completion of the 1981 summer courses, even
though the master's program remained incomplete.
Claimant's wife testified that he had worked for the
Forest Service for the past fourteen summers and would have
returned to this summertime work if his School District
superiors had not strongly recommended that he complete his
master's degree.
Claimant started the academic summer session in June
1981. He lived in the dorms on the Western Montana College
campus in Dillon, Montana, and commuted home to his wife and
two children every weekend. On Sunday evening, June 26,
1981, returning to Dillon on his motorcycle, Claimant sus-
tained a severe closed head injury in a single vehicle acci-
dent. The left temporal lobe of his brain was severely
damaged resulting in no short-term memory greater than thirty
seconds. Claimant's injury resulted in his permanent place-
ment in Warm Springs State Hospital. Defendant agreed at the
pretrial that claimant's injuries rendered him permanently
and totally disabled but denied the injury was work-related
and denied coverage.
Claimant filed a petition in the Workers' Compensation
Court. By agreement of the parties the case was submitted
upon briefs, depositions and exhibits.
On March 26, 1984, Judge Reardon entered his Findings of
Facts and Conclusions of Law and Judgment ruling that claim-
ant's injury was work-related and compensable. Claimant was
awarded attorney's fees and costs, but denied an increased
award due to defendant's wrongful denial.
The single issue presented on appeal is whether claim-
ant's motorcycle accident in which the head injury occurred
was sustained while he was in the scope and course of his
employment for Darby School District No. 9.
Determination of compensability of Courser's injuries
focuses on a single dispositive question: whether or not
Courser's summer school graduate program at Montana Western
College in Dillon is a work-related activity. It is undis-
puted that Courser was injured while driving to his master's
degree courses in Dillon. If this Court decides that there
is substantial evidence for the graduate program to be relat-
ed to Courser's teaching and administrative responsibilities
in the Darby school, his resultant injuries are compensable.
This Court adheres to the "going and coming" rule as a
well-established principle in Workers' Compensation law which
denies compensation benefits for injuries sustained by an
employee traveling to or from the regular work place.
Hagerman v. Galen State Hospital (1977), 174 Mont. 249, 251,
570 P.2d 893, 894. Under one of the recognized exceptions to
the "going and coming" rule, Workers' Compensation law recog-
nizes compensation benefits for injuries sustained during
travel necessitated by performance of a special assignment
which is incidental to the employee's regular employment.
Steffes v. 93 Leasing Co. (1-978),177 Mont. 83, 580 P.2d 450.
Here the claimant was returning to Dillon and the injuries
were incurred within the course and scope of employment if
the schooling in Dillon was job related.
The standard of review of Workers' Compensation cases is
whether substantial, credible evidence supports the Workers'
Compenstion Court decision. Green v. C.R. Anthony & Co.
(Mont. 1981), 634 P.2d 629, 630. The spirit of Workers'
Compensation legislation to compensate the injured worker,
requires that we review the facts in the light most favorable
to the claimant.
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 atten-
dance at the activity; (3) whether the employer controlled or
pa.rticipated in the a.ctivity; and (4) whether both employer
and employee mutua-lly benefited from the activity. The
presence or absence of each factor, may or may not be deter-
minative and the significance of each factor must be consid-
ered in the totality of all attendant circumstances. Shannon
v. St. Louis Board of Education (1979), 577 S.W.2d 949,
951-2.
It is clear from the record that Courser was encouraged
to pursue the master's degree program. His superintendent
and principal strongly urged him to take the graduate courses
assure his for principal position the
Darby school.
The Arizona Court of Appeals found injuries sustained
while returning home from a training seminar cornpensable,
focusing on the employer's authorization and encouragement to
attend the course and held:
"From the record it is clear that the respondents
were a t least strongly urged to attend the seminar.
.
We hold that considering the evidence in its total-
ity, there is sufficient indicia of employment-
related activity to support the finding that the
respondents sustained. their injuries while in the
course of their employment." Johnson Stewart
Mining Co. v. Industrial Co. (1982), 133 Ariz. 424,
652 P.2d 163, 167-68.
The mutual benefit element is sufficiently supported in
the record. Courser was to receive a salary increase for his
completion of the summer graduate courses. The School Dis-
trict, Courser's employer, received the benefit of maintain-
n g a highly-qualified teaching faculty and of grooming
someone for one of the District's administrative positions.
The element of control of employer over the employee's
activities is elusive and more problematic to ascertain. In
b&~&t '$;;iL~;c.t;
Bump v. N.Y.S. Schoo1~(1973),338 N.Y.Supp.2d 998, the
New York Supreme Court found the control factor was satisfied.
by the mere approval of the teacher's courses by the
supervisor:
" [l,2] Attendance at the particu1a.r place and
incidental travel do not remove an employee from
the employment even if voluntary, if such atten-
dance was incidental to the ordinary employment and
was undertaken at the employer's request (Matter of
Grieb v. Hammerle, 222 N.Y. 382, 118 N.E. 805).
Upon the testimony recited by the board in its
decision there can be no doubt that the particular
course at Briarcliff was reasonably incidental to
the particular employment of this Social Studies
teacher; that attendance at Briarcliff was advanta-
geous to the employer; - - -
and that both superiors of
the decedent - specifically approved - - s
had the d e c
dent's course a.t Briarcliff. Under such circum-
stances, the vo7untariness of attendance would not
be substantial evidence to support a conclusion
that the decedent was not in the course of his
employment while attending Briarcliff." 338
N.Y.Supp.2nd at 1000. (Emphasis added.)
In a more recent decision issued by the Missouri Court
of Appeals, the court satisfied the element of control with
even a lower standard of proof and held:
"There was an element of control in that employer's
Chairman of the Counseling Department supervised
employee's progress at Washington University."
Shannon, 577 S.W.2d a t 952.
The most convincing authority addressing the employer's
control of employee's activities a s determinative for compen-
sation was set out in an Arizona Court of Appeals decision.
"We do not think compensability may rest solely
upon the fact that an employer, who does not spon-
sor, approve or urge employee participation in an
activity, merely receives some benefit from the
activity. As stated in Tally v. J.J. Newberry
Company, 30 A.D.2d 898, 899, 291 N.Y.S.2d 950, 952
(1968):
"'There must be at least some action on the part of
the employer to connect the trip to employment,
some sponsorship, some approval, some employer
action must be present. "' Johnson Stewart Mining
Co., 652 P.2d at 167.
Pursuant to a provision in his master employment con-
tract, mandating prior approval of graduate degree programs
by the School Dj-strict, Courser's proposed master's degree
curriculum was reviewed and approved by his superintendent.
Absent this employer's authorization, Courser's summer school
would not have qualified him as an eligible candidate for
promotion.
The trial court did not specifically address the issue
of control. However, in this case there is sufficient evi-
dence on control to lend support to a finding that the Dillon
school activity was related to the claimant's employment.
Actual control is not necessary for compensability. The
right to control is sufficient. Barbree v. Shelby Mutual
Ins. Co. (1962), 105 Ga.App. 186, 123 S.E.2d 905. That right
may exist if the employee is acting for the benefit of the
employer. Here we have an employer who in fact controlled
curriculum choice. Additionally, employer could be deter-
mined to have the right of control growing out of performance
of activity by claimant designed to benefit employer. Spe-
cific contractually granted control is not indispensable
where the right to control can be inferred from other facts.
There is substantial, credible evidence to support the
Workers' Compensation Court. We therefore affirm.
We concur:
Chief Justice " \
Justices
Justice Daniel J. Shea specially concurring:
I agree with the majority opinion but simply emphasize
that in the circumstances of this case, the control issue is
not that important. I am not sure, as the majority opinion
states, that there existed an actual right to control on the
part of the Darby School District. However, I do not believe
that in cases of this nature, the control or right to control
"P
is that important. Here the overriding issue is the direct
benefit to the school district, the encouragement by the
school district that Courser get his advanced degree, and
the fact that in going to summer school Courser gave up his
regular summer employment with the Forest Service, certainly
a great sacrifice to himself and his family.
Mr. Justice L. C. Gulbrandson, dissenting.
I respectfully dissent.
The claimant resided in the City of Hamilton, Montana,
and, during the period of his employment contract, taught
fourth grade at Darby, approximately fourteen miles south of
Hamilton. It is certain that if the claimant's injury had
occurred while traveling from his residence to the Darhy
school, he would not be eligible for workers' compensation
benefits. On the date of his injury, the claimant had left
his home at Hamilton at approximately 6 : 0 0 p.m. and proceeded
by highway south through Darby and towards Western Montana
College at Dillon, approximately 163 miles from Hamilton.
The record is clear the contract school year had ended,
and that the claimant had no further obligations to the
school district, except to report for teaching duties the
following September. The claimant, during previous summer
sessions, had completed sufficient credits to assure his
accreditation for the coming years. The record further
discloses that he was an excellent teacher, related well with
his students, and was respected by parents of students,
fellow teachers, and school administrators. Both the
principal and Superintendent testified that they encouraged
the claimant to proceed with his Masters of Arts program as
they both felt that he would be an excellent candidate for
the position of principal, if that position were to be open
and if he had completed his Master's program. The workers '
compensation judge found that claimant was not guaranteed the
position if it were available, and the testimony was that the
position was not open two years after the accident, and that
the last time a principal's position had been open, mare than
forty applications were received.
The master contract provided that any teacher could
move one space across the salary schedule by completing
fifteen credits prior to the start of the next contract year
and the Superintendent testified that the claimant would have
had a salary increase had he completed fifteen credits during
the summer of 1981. I believe the majority to be in error
when they state the Superintendent granted a salary increase
concurrently with the approval of the claimant ' s degree
program. Plaintiff's deposition Exhibit No. 3 lists the
fifth year program of courses developed by Western Montana
College and the claimant, and was signed by the
Superintendent as follows:
Program for M.A.
Okayed for salary schedule advancement
(to be completed SS/82)
LWB 9/18/80
The Superintendent's testimony regarding that approva.1,
when questioned by appellant's counsel, was as follows:
"Q Now, is the course of study that he
was going to pursue, is there any
requirement that the School Board or
trustees approve his course of study?
"A No.
"Q Just you?
"A In the case of a Master's program,
even I have very little say over it
because the college sets that out."
Upon re-direct questioning by respondent's counsel, the
Superintendent continued as follows:
"Q Now, Mr. Riley discussed with you on
Claimant's Exhibit No. 3 this 'Program
for M.A. okayed for salary schedule
advancement.' Those are your words that
I am reading, and those are your initials
under that. Can you hypothesize that you
had a conversation with Mr. Courser in
the fall of '80? This was signed by you
on 9-18-80 concerning the M.A.?
"A Yes.
"Q Do you suspect that you discussed the
program with him at that time?
"A Yes.
"Q Would this, in essence, be your
approval of that program?
"A I would say it's an approval of a
Master's program, and the courses listed
up there are not necessarily part of that
program.
"Q Would you look at the courses under
the ones that are part of the -- Done by
the printer that start at the top 'E.D. '
to '525' down there, Philosophy of
Education, School Guidance and Advanced
Educational Psychology. Do you know why
those courses are printed the way they
are?
"A Those are part of a Master's program
in education.
"Q When you say 'part', what do you mean
by that?
"A Well, they are -- I assume that
Western Montana College, if you are
getting a Master's program in education
or Master's degree, those would be some
courses you would be required to take of
that program.
"Q I am going to refer you now back to
the Master Contract. In your opinion,
under the terms of this contract, do you
have to approve of a Master's program?
"A Approve of the program, no. Be
notified that you are going on the
program, yes, or notify the school
district that you are going on.
"Q But you don' t have to a.pprove the
program --
"A No.
"Q -- in other words, do you?
"A No, the colleges have a program in
the different Master's degree areas. In
other words, it would do me no good to
write a program. The college may not
accept it. They write the program, and--
"Q I guess my question is: If somebody
was going to take a program that you
didn't feel you needed at the school,
would you give them a salary advancement
for something like that?
"A I would say that if it was something
way out, that I could object to a salary
advancement, yes. And I don't know if --
I can think of an example. If someone
was taking a Master's program in geology
and they were an art teacher, I might
question that."
In explaining his conclusions of law, the workers court
judge stated:
"In nearly every case discovered the
following criteria were considered.
"1. Was there a benefit to be gained by
the employer?
"2. Did the employer pay any of the
expenses associated with the activity?
"3. Did the employer require the training
and/or prescribe the method of training
as a condition of employment?
"4. Did the employer encourage, offer,
sponsor or acquiesce, or expect the
employee's participation in the training?
"5. Was the training activity taking
place on property under the control of
the employer.
"In the instant case the following
factors appear;
"1. The employer stood to benefit by
having a more highly trained teacher and
a prospective candidate for a
principalship. To be sure the claimant
stood to gain by improving his academic
record thereby increasing his salary by
the terms of the contract and presumably
being better qualified to seek other
positions, either locally or elsewhere.
"2. The employer did not pay any of the
costs associated with the training
program. (Citations omitted.)
"3. The employer did not prescribe the
educational program but in the testimony
of the superintendent, - employer -
the did
approve - training thereby indicating
the
to the claimant that the program was
acceptable and upon completion would
warrant a salary increase per the
contract. This stood to benefit the
employer by allowing - employer to, at
the
least indirectly, secify - course of
the
study by limiting a teacher's capacity to
be eligible for the salary increase
contained in the contract only if the
prospective course of study would benefit
the school.
"4. The employer, through its agents - did
encouracre - claimant t r a t t e n d -
the the
program: While it may be accurate to say
that the encouragement was more in the
nature of a friend urging one to improve
his station in life, nonetheless the
superintendent told claimant that
thought he would - - good candidate
be a
- u ~ c o m i * ~ ito c - ~osition - -
the n A
.
n iml
a.
needed traininq - be - eligible.
L
even
and
Certainly there was no guarantee that
claimant would have gotten the position
because it would be open to all
-
applicants, - - nonetheless
the claimant
could reasonably have expected - -
the
superintendent - -be a supporter - -
to - of his
application based on the encouragement to
seek the advanced training.
"5. The training was in no way under the
control of the employer. It was not on
the employer's premises, and the vehicle
was not in any way related to the
employer.
"It would appear unreasonable to require
that all five conditions be met in order
to establish compensability. Each case
must rise or fall on its own set of
facts.
"In the case at bar, this Court concludes
that there is a sufficient nexus between
the claimant's graduate studies and his
employment to warrant compensation.
Simply stated the employer urged the
schooling, approved the plan, and stood
to benefit by having a more highly
trained faculty member. Had the employer
remained neutral and merely notified the
claimant that the decision to seek
further training was his alone to make
but that without such training he could
not be considered for advancement a
different result might occur. - - Here the
employer actively encouraged the graduate
trainina - a ~ ~ r o v e d courses. Under
and -the
the liberal construction mandates of
539-71-104 MCA the claimant is entitled
to benefits. (Emphasis in original. )
I disagree with the comment No. 3 set forth a-bove, and
I do so under the commonly understood rule of law that where
a case is submitted upon briefs, depositions, and exhibits
only, as in the present case, this Court is in the same
position as the trial judge in reviewing the facts. See
McCracken v. Liquor Control Board (19431, 115 Mont. 3 4 7 , 143
P.2d 891 and Morgan v. Butte Cental Mining Co. (1920), 58
Mont. 633, 194 P. 496.
Regarding comment No. 3, it is my view that said
comment does not fully respond to criteria question No. 3.
There is no comment regarding the training being a condition
of employment. The record here is clear that the claimant's
activities regarding a master's degree program were - a
not
condition of employment.
I would hold that the degree of control exhibited here
by approval of the education plan was illusory at best, and
that the benefit to the employer was indirect and could occur
only in the speculative future, and was not a part of the
contract cf employment and that, therefore, claimant's injury
was not compensable.
I do agree with the following comments by the workers'
compensation judge:
"The instant case presents a case of
first impression in Montana. In
resolving the issue this Court looks
first to the statute, to Montana case law
and finally to other jurisdictions for
guidance.
"Clearly, - potential impact - -
the of the
instant - - - - - enormous.
.
case is Many
individuals, already employed, seek
additional training in an effort to
upgrade their skills, and to improve
their employment status by becoming
better trained and thereby eligible for
higher paying positions. This may be
particularly so in the educational field.
The present case demonstrates that
teachers who are educated beyond a four
year bachelor degree are eligible for a
higher salary. Obviously it is a
personal benefit to increase one's
income. Simultaneously, it can be
inferred that a teachers personal
enhancement of skills through graduate
training will be an asset to the employer
by becoming a more knowledgeable
educator." (Emphasis added.)
The workers1 compensation judge clearly recognized the
possible impact of his decision, after affirmance by this
Court, upon every school district in Montana and upon
employers in general. He did not allude to the "special
errand" exception to the "going and coming" rule in his
findings, conclusions, or judgment, but the majority has now
expanded the exception to cover a summertime of travel
activities. The claimant's teachers at Western Montana
College would not receive compensation for injuries sustained
while traveling to the college, even though they were under a
contract of employment with the college, but the majority has
now extended compensation benefits to a student, without an
employment contract, traveling to that same college.
It is my view that each case cited by the majority and
the workers' compensation court judge as supporting
compensability is readily distinguishable from the present
case either on the basis of salary payments, direct benefits
to the employer, or compulsion to attend training programs as
a condition of employment.
I would reverse.
I join in the dissent of Mr. Justice L. C. Gulbrandson.