Employment: Course and Scope: Travel

MONTANA SUPREME COURT CASES
Van Vleet v. Montana Association of Counties Workers' Compensation Trust, 2004 MT 367 (No. 04-206) Where deputy sheriff’s employer knew drinking alcohol in hospitality suite was part of employment-related conference, the employee did not deviate from the course and scope of his employment by continuing consumption of alcohol and wandering hotel after closure of hospitality suite. His death from injuries sustained after falling from fourth or fifth floor balcony was within the course and scope of employment.
Carrillo v. Liberty Northwest Insurance, 278 Mont. 1, 922 P.2d 1189 (1996). Claimant was within course and scope of employment during her coffee break when she was struck by an automobile while crossing a street en route to a gift shop to purchase a mug for a co-worker leaving employment. Rather than apply section 39-71-407(3), MCA (1991), relating to travel, the Supreme Court looked to factors enunciated by other courts, and as set forth in Larson’s Treatise, for determining whether employees on break are covered. Those factors include (1) whether the employee was paid during the break; (2) whether right to break is fixed in the employment contract pursuant to policy or regulation; (3) whether there are restrictions on where the employee may go during break; (4) whether the employee’s activity during the break constituted a substantial personal deviation.
 
MONTANA WORKERS' COMPENSATION COURT CASES

Holtz v. Indemnity Ins. Co. of North America [04/06/16] 2016 MTWCC 4 Where Petitioner, a flight attendant, suffered an injury while riding a motorcycle during a layover, this Court rejected her argument that she was performing an important task for her employer merely by staying on the layover and being available for rerouting if necessary.  A traveling employee is not within the course of her employment merely by staying in a city away from home.

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 Where the parties stipulated that the nature of the claimant’s work necessitated his travel from his home in Bozeman to his employer’s jobsite in Ekalaka, and where the employer did not require its new hires to permanently relocate to the various locations it maintained jobsites, the Court concluded that the claimant’s travel was necessitated by his employment within the meaning of § 39-71-407(3)(a)(ii), MCA.

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 Where the employer who maintained various jobsites in Montana, Wyoming, and North Dakota, paid its employees $60 per day as reasonably related to the employees’ travel expenses in addition to their wages and withheld $100 per week out of the claimant’s per diem payments as a share of the rent of a trailer the employer rented at a remote jobsite, the Court concluded that the claimant received reimbursement for travel within the meaning of § 39-71-407(3)(a)(i), 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 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.

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.
Charlson v. Montana State Fund [02/25/11] 2011 MTWCC 7 Where Petitioner was injured while traveling to work – not while traveling between job sites during his work shift – his injury is not compensable under the “going and coming” rule.
Popenoe v. Liberty Northwest [12/01/06] 2006 MTWCC 37 Where 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, the fact that Respondent had no control over how Petitioner traveled to and from work is irrelevant as he had arrived on his employer's premises.
Flikkema v. Mont. Contractor Comp. Fund [3/2/04] 2004 MTWCC 20 Where the claimant was on her lunch hour, made arrangements to meet and in fact met her daughters for lunch at a restaurant several miles away from her employer's office, she was not in the course and scope of employment even though she offered to and did pick up lunch for two co-employees, at least where her doing so was part of an informal arrangement among co-employees under which they picked up lunch for others if going out to eat, and they were not directed or pressured to do so by the employer, and where the employer received no additional benefit from an employee bringing back lunch for co-employees than it received when they brought their lunches.
Bergum v. State Fund [1/14/04] 2004 MTWCC 3 An injury suffered during travel which is not authorized by the employer is not compensable. § 39-71-407(3)(a), MCA (2003).
Bergum v. State Fund [1/14/04] 2004 MTWCC 3 A round-trip of three miles on a motorcycle is not covered under the Workers' Compensation Act where the transportation was not furnished by the employer, the employee was not compensated for the travel, and the travel was not authorized by the employer. § 39-71-407(3)(a), MCA (2003).
Bergum v. State Fund [1/14/04] 2004 MTWCC 3 A round-trip of three miles on a motorcycle constitutes travel within the meaning of section 39-71-407(3), MCA (2003). Carrillo v. Liberty Northwest Ins., 278 Mont. 1, 922 P.2d, 1189 (1996) distinguished.
Hampson v. Liberty N.W. [11/18/02] 2002 MTWCC 57 The rule providing that a claimant injured while traveling between two premises of the employer, one being a home office where the employee regularly works and which is approved by the employer, Bentz v. Liberty Northwest, 2002 MT 221, does not apply to a claimant who stores a few supplies and on occasion consults his textbooks at home. His home is not a "home office" under those circumstances.
Bustell v. Ins. Co. Of PA [5/15/02] 2002 MTWCC 26 Where claimant, a truck driver, is employed by a trucking firm which contracts to haul loads for North American Van Lines (NAVL), that firm turns over a truck to her, and claimant drives the truck a few miles between NAVL's truck center and a medical laboratory in order to take a drug screening test required by NAVL, the claimant was in the course and scope of her employment during that travel. §§ 39-71-407(1) and (3), MCA (1999).
Borglum v. Hartford [3/12/02] 2002 MTWCC 16 Under legislation adopted in 1987, § 39-71-407(3)(a), MCA, travel to and from work is deemed in the course and scope of employment where the travel is required by the employer and the employer reimburses claimant for costs of travel. Since the section does not contain any requirement for a minimum amount of reimbursement or any requirement that the reimbursement be substantial or adequate, the section is satisfied by any reimbursement for the travel.
Bentz v. Liberty Northwest [11/19/01] 2001 MTWCC 59 A stop at a mailbox while commuting between a home office and the employer's main office is a deviation where claimant does not regularly receive mail required for him to work at home. However, where the mailbox is on the direct route home and the stop is brief, the deviation is a minor one and is insufficient to deny workers' compensation coverage for an injury occurring while picking up the mail. (Affirmed in Bentz v. Liberty Northwest, 2002 MT 221.)
Bentz v. Liberty Northwest [11/19/01] 2001 MTWCC 59 Where employer and employee agree that the claimant can perform his work at home but the employer requires the claimant to periodically come into its main place of business, the commute between home office and the employer's office is "required" by the employer within the meaning of section 39-71-407(3)(b), MCA (1999), and is therefore part of claimant's employment and covered by the Workers' Compen-sation Act. (Bentz v. Liberty Northwest, 2002 MT 221 affirming.)
Bentz v. Liberty Northwest [11/19/01] 2001 MTWCC 59 A three mile trip between an office maintained at home and the employer's regular place of business constitutes travel and is subject to the travel provisions of section 39-71-407(3), MCA (1999). Carrillo v. Liberty Northwest Ins., 278 Mont. 1, 8, 922 P.2d 1189, 1194 (1996) distinguished. (Bentz v. Liberty Northwest, 2002 MT 221affirming.)
Kelly v. Hartford Accident & Indemnity Co. [8/22/00] 2000 MTWCC 50 Under section 39-71-407(3), MCA (1999), which governs compensability of injuries occurring "while traveling," summer employee of lodge in Glacier Park was injured within course and scope of employment where she was riding in car taking her roommate, a co-employee leaving employment, to the Kalispell airport. Injury covered under both subsections of 407(3): (a) is met where the lodge furnished the transportation and could require employees to drive other employees to departing transport; (b) is met where petitioner, though initially asked by her roommate to drive, was required to complete the task in accordance with employer's policies and procedures. Petition seeking declaration of non-coverage denied where insurer properly accepted claim filed by employer on petitioner's behalf.
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.
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.