Employment: Course and Scope: Coming and Going

MONTANA SUPREME COURT DECISIONS
Heath v. Montana Municipal Insurance Authority, 1998 MT 111 Supreme Court affirmed WCC conclusion that police dispatcher was not in the course and scope of employment where she slipped and fell on public sidewalk on her way to work. The general rule in Montana has long been that employees are not covered while going to and from work. Where it was undisputed that the employer did not furnish claimant transportation, nor reimburse her for costs of travel, nor require any specifics of her travel, and she was simply on her way to work, the claim was not compensable under section 39-71-407, MCA (1995), which the Supreme Court has previously held to encompass the historical "going and coming" rule as well as exceptions to the rule. The claim does not become compensable because claimant's employer, the City of Lewistown, maintained the sidewalk where the sidewalk was a public sidewalk and not used in connection with the actual place of work.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 The Court held that the legislative history did not support the insurer’s argument that the Legislature intended to abolish the travel allowance exception to the going and coming rule for remote jobsites.  Rather, the statutory amendments provided a mechanism by which employers could exclude employees from the course and scope of employment while traveling so long as the employer pays the travel allowance pursuant to a written document which designates the payment as an incentive to work at a particular jobsite.

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 Where the employer did not designate its per diem payment as an incentive nor identify a particular jobsite in any written document, the Court held that the claimant’s motor vehicle accident, which occurred while he was traveling to the jobsite prior to the start of the workweek, was not excluded from coverage under the plain language of § 39-71-407(3)(b), MCA.

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 A worker who received a per diem payment for each full day worked but was not paid a wage for travel time, and whose employer hired workers from throughout Montana for employment on jobsites in various locations in three states, was within the course and scope of his employment when he suffered a fatal motor vehicle accident while traveling from his home in Bozeman to a jobsite in Ekalaka at the beginning of his workweek.

Olson v. Montana State Fund [02/03/15] 2015 MTWCC 2 Under the plain language of § 39-71-407(4)(b), MCA (2011), a payment for travel falls under the travel reimbursement exception to the going and coming rule unless the written document designates the payment as an “incentive” and sets forth the particular jobsite.  In this case, the contract did not meet those requirements.  Therefore, the worker was in the course and scope of his employment when he was in an automobile accident on the way to work prior to the start of his shift.

Olson v. Montana State Fund [02/03/15] 2015 MTWCC 2 A worker who received a payment of $61.50 per day subsistence “in lieu of any travel allowance” pursuant to the terms of a collective bargaining agreement received reimbursement for travel expenses within the meaning of § 39-71-407(4)(a), MCA (2011), and was therefore within the course and scope of employment when he was in an automobile accident on the way to work prior to the start of his shift.

Olson v. Montana State Fund [02/03/15] 2015 MTWCC 2 The fact that the “subsistence pay . . . in lieu of any travel allowance”  a worker received was neither based on the actual miles traveled to and from work, nor the amount the worker spent on travel expenses, is not important.  The key factor to consider is whether travel was singled out in the employment contract, and in this instance, it was.  Therefore, the worker was within the course and scope of his employment when he was in an automobile accident on the way to work prior to the start of his shift.
Charlson v. Montana State Fund [02/25/11] 2011 MTWCC 7 When work does not begin until the worker arrives at the workplace, merely traveling to that workplace does not produce a special benefit to the employer and does not constitute an exception to the “going and coming” rule.
Charlson v. Montana State Fund [02/25/11] 2011 MTWCC 7 Under the “going and coming” rule, an employee traveling to or from a regular work place is not covered by the WCA.  An exception recognizes compensation benefits for injuries sustained during travel necessitated by performance of a special assignment incidental to regular employment.  Where Petitioner was traveling to a job site to begin a regular work shift, he does not fall within this exception.
Driggers v. Liberty Northwest Ins. Co. [12/31/07] 2007 MTWCC 60 Where Petitioner was injured while driving to work in a vehicle furnished by his employer and for which the employer paid for gas, oil, maintenance, and insurance, the Court held Petitioner was injured in the course and scope of his employment based on the two-part test set forth at § 39-71-407(3)(a)(I), MCA. Petitioner satisfies the first part of the test because he was injured while driving a vehicle furnished by his employer. Petitioner satisfies that second part of the test, that the travel was necessitated by and on behalf of the employer as an integral part or condition of his employment, based upon the well-established case law in Montana regarding the exceptions of the going and coming rule.
Popenoe v. Liberty Northwest [12/01/06] 2006 MTWCC 37 Petitioner was in his employer's parking lot approximately five minutes before the start of his shift and was removing his bicycle from the back of his friend's pick-up truck when he fell. It is of no importance that his employer did not direct where and how he was to unload his bicycle; he was on the premises used in connection with his actual place of work and was well within the premises rule exception to the going and coming rule.
Popenoe v. Liberty Northwest [12/01/06] 2006 MTWCC 37 Whether a location was also open to the general public was irrelevant to the Montana Supreme Court's respective conclusions in McMillen v. Arthur G. McKee and Co., 166 Mont. 400, 533 P.2d 1095 (1975); Heath v. Montana Municipal Ins. Authority, 1998 MT 111, 288 Mont. 463, 959 P.2d 480; and Griffin v. Indus. Accident Fund, 111 Mont. 110, 106 P.2d 346 (1940), which all fell under the going and coming rule as none of the employees were on the premises used in connection with their actual place of work at the time of their injuries.
Hampson v. Liberty N.W. [11/18/02] 2002 MTWCC 57 A nurse, employed by a company providing home healthcare to clients in their homes, who is injured in a car accident while returning home after completing a work shift at a client's home is not entitled to workers' compensation benefits, at least where the nurse is not paid for the travel, is assigned one client at a time, and does not travel between clients' homes or between the employer's premises and a client's home. § 39-71-407(3), MCA (1999). Where assigned a single client, going to and coming from the client's home is not "part of the employee's job duties" and comes under the long-standing "going and coming rule."
Grywusiewicz v. State Fund [9/24/98] 1998 MTWCC 67 Car salesman who was also performing carpentry work to remodel a new building for the employer was injured while driving a vehicle from the lot. The accident occurred in the course and scope of employment, entitling claimant to benefits, where the credible evidence suggested the employer requested claimant to drive company vehicles to and from work, and paid for maintenance and repairs, in order to familiarize claimant with the vehicles and in order to detect problems with the cars being sold.
Kuhrt v. State Fund [12/30/97] 1997 MTCC 72 Slip and fall of savings and loan teller when getting out of her pick-up on a public street, before starting work, was not in the course and scope of employment. Parties stipulated that claimant received no travel pay to commute to work, that parking was not available to claimant in any lot maintained by the employer, and that employer "suggested" she park on the street. Claimant was still traveling to work when she was injured. Under section 39-71-407, MCA (1995), for the travel to be compensable, either the employer must reimburse for travel costs or the travel must be required as part of the job duties. It is well settled in Montana that going to and from work, absent compensation for the travel, is not a part of the employee's job duties.
Heath v. Montana Municipal Insurance Authority [9/25/97] 1997 MTWCC 52 Police dispatcher who fell on public sidewalk on her way to work was not within the course and scope of employment where she had not started work, was not yet being paid, and was not performing work-related duties. The fact that claimant worked for the City of Lewistown, which maintained the sidewalk, did not bring her within the course and scope of employment where she was still on a public sidewalk when she fell, not a sidewalk which was part of her specific employer's premises. (Note: affirmed in Heath v. Montana Municipal Insurance Authority, 1998 MT 111).
Gubler v. Liberty Northwest Ins. Co. [1/6/97] 1997 MTWCC 1 Craftsman injured while driving supervisor's truck to pick up supervisor for work was injured in course and scope of employment and met the requirements for compensable travel injury under section 39-71-407, MCA (1995). Given its use, the truck was in essence a company truck used in the course of business which had been furnished to claimant for use at that particular time. At the time of the accident, claimant was performing duties required of him by his supervisor.
Mutchie v. Old Republic Insurance Co. [03/08/95] 1995 MTWCC 19 A diamond driller working at a mine was in the course and scope of employment while putting on overalls in the employer’s “dry” room, which houses showers, lockers, and fans for drying clothes, prior to entering the mine portal. Although injuries suffered during travel to and from an employer’s premises are typically excluded from coverage, injuries occurring on the employer’s premises during a reasonable interval before and after working hours may be covered. See, Larson’s Workmen’s Compensation (1994) § 15.