No. 84-518
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
MAXIM0 CORREA,
Claimant and Appellant,
-vs-
REXROAT TILE, Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Utick, Grosfield & Uda; Norman H. Grosfield, Helena,
Montana
For Respondent:
.. , .
Luxan & Murfitt; Michael McCarter, Helena, Montana
Submitted on Briefs: April 18, 1985
Decided: July 2 3 , 1985
Filed: "
i ; iqgs
Clerk
M r . J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e
Court.
This is an appeal from a judgment of the Workers1
C o m p e n s a t i o n C o u r t o f t h e S t a t e o f Montana. A p p e l l a n t Maximo
Correa ("appellant") sought b e n e f i t s a s a r e s u l t of a January
13, 1983 a c c i d e n t i n G a l l a t i n County. Benefits w e r e denied
and t h i s a p p e a l f o l l o w e d .
Appellant began work as a tile s e t t ~ r ' sh e l p e r for
R e x r o a t T i l e i n November o f 1982. I n J a n u a r y o f 1983 Rexroat
b e g a n a p r o j e c t a t t h e U n i v e r s i t y S t u d e n t Union i n Bozeman.
A p p e l l a n t , who r e s i d e s i n H e l e n a , l i v e d i n a m o t e l i n Bozeman
during the week and returned to Helena on the weekends.
R e x r o a t r e i m b u r s e d a p p e l l a n t for t h e m o t e l a s w e l l a s for g a s
f o r t h e t r i p s t o Helena. A p p e l l a n t was t o r e m a i n i n Bozeman
d u r i n g t h e work w e e k , unless a midweek t r i p t o H e l e n a was
r e q u i r e d t o p i c k up m a t e r i a l s .
On Wednesday, January 12, 1983, appellant and his
brother (who was a l s o employed o n t h e p r o j e c t ) worked u n t i l
e a r l y evening. A f t e r a s t o p a t t h e motel t h e y s e t t l e d i n a
b a r u n t i l n e a r l y m i d n i g h t a t which p o i n t a p p e l l a n t t o l d h i s
b r o t h e r t h a t h e was g o i n g t o d r i v e t o H e l e n a t o see h i s w i f e .
Appellant's next recollection was waking in the intensive
c a r e u n i t o f Bozeman D e a c o n e s s H o s p i t a l . H e was c h a r g e d w i t h
DUI. A p p e l l a n t was e x p e c t e d a t work a t e i g h t o ' c l o c k on t h e
morning f o l l o w i n g t h e a c c i d e n t .
On September 21, 1983, appellant filed a Workers'
Compensation claim i n which h e c o n t e n d s h e was injured on
January 13, 1983, in connection with his employment with
Rexroat Tile. The State Compensation Insurance Fund
("respondent") denied l i a b i l i t y a n d a t r i a l was h e l d o n Nay
24, 1984, before the Workers' Compensation Court. In a
ruling dated October 25, 1984, the appellant was denied
benefits and medical costs, the court holding that the
January 13, 1983, accident was not within the scope of his
employment.
The following issues are raised for review:
(1) Whether, because appellant was receiving a travel
and subsistence allowance, his injury arose out of and in the
course of his employment, and was thus compensahle under the
Workers1 Compensation Act?
(2) Whether appellant was in a "travel status" at the
time of his injury, making such injury compensable under the
Workers1 Compensation Act?
(3) Whether appellant suffered a type of idiopathic
fall which arose out of and in the course of his employment,
and is thus compensable under the Workers' Compensation Act?
P.ppellantls arguments can be easily disposed of.
Section 39-71-407, MCA, provides:
"Every insurer is liable for the payment
of compensation, in the manner and to the
extent- hereinafter provided, to an
employee of an employer it insures who
receives an injury arising - of and in
out
the course - - employment or, in the
of his
case of his death from such injury, to
his beneficiaries, if any. " (Emphasis
added. )
It is the general rule in Montana that travel by an employee
to and from work is outside the course of his employment.
Gordon v. Smith Construction Co. (1980), 188 Mont. 166, 612
P.2d 668. The well-established exception to this rule is
that when an employee is given a specific allowance to travel
to and from the job, such travel is considered within the
course and scope of employment. Gordon, supra; Ellingson v.
Circle Co. (1975), 166 Mont. 431, 533 P.2d 1100; McMillen v.
Miller & Co. (1975), 166 Mont. 400, 533 P.2d 1095. In
McMillen and Ellingson, claimants were injured in automobile
accidents while enroute to their jobs. In both cases they
were receiving a travel allowance from their employers. This
Court found that their injuries were incurred while in the
course of employment and were compensable. In Gordon the
facts are similar. John Gordon received a subsistence
allowance for working at a job site more than fifty-four
miles from Great Falls. Gordon's temporary residence was in
Lewistown from which he commuted to the jobsite twenty-four
miles northeast of Denton. On May 1, 1978, Gordon got off
work and drove to the Denton Bar. He stayed there for
several hours and left with friends at 10:OO that evening.
Two miles west of Denton, travelling toward Stanford and away
from Lewistown, Gordon was killed in an automobile accident.
This Court ruled that Gordon was being compensated for travel
to and from work and that his death was compensable. The
fact that Gordon was travelling away from his place of
temporary residence was found irrelevant because Gordon often
stayed with fellow employees in Stanford rather than
returning each night to Lewistown.
Appellant argues that the above cases are authority for
holding that his injury is compensable. He claims that since
he received a travel allowance and was injured in his car he
was within the course of his employment. This argument is
totally unpersuasive. The rule this Court has clearly
established is that an employee injury suffered while
travelling to and from work is compensable under Montana law
if the employee is receiving a specific allowance for such
travel. In this case the appellant was working under an
agreement whereby he would be compensated for weekend trips
from Bozeman to his home in Helena. He was expected to stay
in Bozeman during the week. At midnight on a Wednesday
appellant set off in an extremely intoxicated condition to
drive From Bozeman to Helena. He was expected at work in
Rozeman at 8:00 o'clock Thursday morninq. The injury
suffered by appellant was not, in any manner contemplated by
this Court or by common sense, suffered while he was
travelling to and from work. Even if by some heavy exercise
of the imagination we could interpret appellant's travels as
being to and from work, he did not receive a specific
allowance for such mid-week travel. In Hagerman v. Galen
State Hospital (1977), 174 Mont. 249, 570 P.2d 893, an
employee of Galen State Hospital was injured while travelling
to work. The only provision in the employee's contract for
travel pay was for emergency call outs. No such emergency
was involved and this Court held the injury not compensable.
Clearly, if the employee had been travelling on an emergency
call out her injury would have been compensable. Similarly,
in our case, if appellant had been injured on a weekend trip
to or from his home in Helena, such injury would be
compensable. But these are not our facts.
Appellant also argues that " [a]n additional and
distinct exception to the 'going to and from work' rule under
workers' compensation law involves employees who are in a
' travel status. ' " Appellant is correct that there is a
"travel status" exception to the genera1 rule that denies
compensation for injuries sustained while going to and from
work. This exception applies where an employee is required
to travel away from home on his employer's business. The
exception is given most succinct expression in Steffes v. 93
Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450 wherein
it is stated that employee injuries are compensable when they
a r e sustained while t r a v e l l i n g f o r t h e s p e c i a l b e n e f i t of t h e
employer. "The underlying principle of this exception is
t h a t i n c a s e s where some r e a s o n a b l y immediate s e r v i c e t o t h e
employer can be discerned, the claim should be sustained;
where there i s no reasonably immediate service, the claim
should b e denied." Steffes, 177 Mont. a t 87, 580 P . 2 d at
453. I n t h e p r e s e n t c a s e w e do n o t s e e any s p e c i a l b e n e f i t
o r r e a s o n a b l y immediate s e r v i c e t o R e x r o a t T i l e w h a t s o e v e r i n
a p p e l l a n t ' s midnight t r a v e l s . A p p e l l a n t makes t h e a r g u m e n t ,
with c i t a t i o n s t o other jurisdictions, t h a t employees w o r k i n g
away from home s h o u l d b e c o n s i d e r e d i n a " t r a v e l s t a t u s " on a
24-hour, around t h e clock b a s i s , r e g a r d l e s s o f t h e n a t u r e o f
their activity. If s u c h i s t h e law e l s e w h e r e w e r e f u s e t o
a d o p t it h e r e .
Finally, a p p e l l a n t would have t h i s C o u r t c o n s i d e r h i s
accident a "type of idiopathic fall, " compensable under
workers' compensation law. We note first of all that an
employee i n j u r y , w h e t h e r a r i s i n g o u t o f a c o n d i t i o n p e r s o n a l
t o t h e c l a i m a n t ( i d i o p a t h i c ) o r n o t , must o c c u r i n t h e c o u r s e
of employment or in a "travel status" in order to be
cornpensable. S i n c e we hold that appellant was not in a
" t r a v e l s t a t u s " and was n o t i n t h e c o u r s e o f employment, h i s
i n j u r y , i d i o p a t h i c o r o t h e r w i s e , i s n o t compensable.
Second, appel l a n t I s imprecise, w e might say Orwellian
u s e o f l a n g u a g e d e s e r v e s comment. A p p e l l a n t was n o t i n j u r e d
in any type of a fall--he was iniured in an automobile
accident. Both cases cited by appellant, F r a n q u ~ t v.
I m p e r i a l Management Corp. (Kd. 1 9 7 5 ) , 341 A.2d 8 8 1 and I n d i a n
L e a s i n g Co. v. Turbyfill (Ky. 1 9 7 8 ) , 577 S.W.2d 24, involve
i n j u r i e s r e c e i v e d from f a l l s on t h e j o b . Further i n Franquet
t h e Maryland c o u r t c i t e s t o no less t h a n a dozen c a s e s , a l l
o f w h i c h i n v o l v e i n j u r i e s s u s t a i n e d by workmen f a l l i n g w h i l e
on t h e j o b . I f t h e r e i s c a s e l a w i n t h i s c o u n t r y w h i c h makes
an a n a l o g y b e t w e e n t h e k i n d o f i n j u r y i n c u r r e d b y a p p e l l a n t
a n d an i d i o p a t h i c f a l l t h e a p p e l l a n t h a s f a i l e d t o p o i n t it
out. Appellant w r i t e s : " I f t h e C l a i m a n t had b e e n o n t h e j o b
a t t h e s t u d e n t u n i o n p r o j e c t a t Bozeman a n d had s u f f e r e d a
blackout as a result of alcohol consumption, resulting in
i n j u r i e s , h e would h a v e c e r t a i n l y b e e n e n t i t l e d t o w o r k e r s '
compensation benefits under the idiopathic fall rule."
Whether or not such an injury would be compensable, it
c l e a r l y would b e t h e r e s u l t o f a f a l l . But once a g a i n , t h e s e
are not our facts.
The judgment of the Workers ' Compensation Court is
affirmed.
W e concur: U
Justices
Mr. Justice Frank R . Morrison, Jr. concurs as follows:
I concur in the result although not in the tenor of
the opinion which seems to treat appellant's position as
frivilous. In light of our holding in Gordon v. Smith
Construction Co. (1980), 188 Mont. 166, 612 P.2d 668 this is
a close case. Gordon can be distinguished because of
evidence of Gordon's "temporary home" in Stanford to which
he was traveling at the time of his accident.
I agree to affirm.