DOUGLAS R. BENSON, Deceased Employee, by PAMELA BENSON, Petitioner, v. INDEPENDENT SCH. DIST. #51 FOLEY, SELF-INSURED/BERKLEY RISK ADM=RS, Employer, and STATE FUND MUT. AUTO INS. CO., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 20, 2003
ARISING OUT OF & IN THE COURSE OF - SPECIAL ERRAND RULE. Under the particular facts of this case, where it was not unreasonable for the judge to conclude that long-scheduled evening parent-teacher conferences were a regular and recurring task of the employee=s normal employment routine, the compensation judge=s refusal to apply the special errand criteria in Youngberg v. The Donlin Co., 264 Minn. 421, 119 N.W.2d 746, 22 W.C.D. 378 (1963), to compensate the petitioner for the employee=s death in a motor vehicle accident on his way home from the conferences was not clearly erroneous and unsupported by substantial evidence.
ARISING OUT OF & IN THE COURSE OF - SPECIAL ERRAND RULE. Under the particular facts of this case, where the court had affirmed the compensation judge=s finding that the evening hours worked by the employee at parent-teacher conferences were included in his regular hours of employment, the supreme court=s decisions in Hed v. Brockway Glass Co., 309 Minn. 73, 244 N.W.2d 28, 28 W.C.D. 448 (1976), and Swanson v. Fairway Foods, 439 N.W.2d 722, 724, 41 W.C.D. 1010, 1013 (Minn. 1989), were not applicable to provide compensation under the special errand rule for the employee=s death on his way home from parent-teacher conferences.
Determined by Pederson, J., Rykken, J., and Wilson, J.
Compensation Judge: Gary P. Mesna
WILLIAM R. PEDERSON, Judge
The petitioner appeals from the compensation judge=s determination that the employee=s death in an automobile accident on his way home from work did not occur while he was engaged in a special errand on behalf of his employer and thus did not arise out of and in the course of his employment. We affirm.
In 1988, Douglas Benson was hired as a sixth grade teacher by Independent School District #51 [the employer] in Foley, Minnesota. In the performance of his duties, Mr. Benson [the employee] generally worked from 7:30 a.m. to 3:30 p.m. According to the employee=s spouse, Pamela Benson-Moberg [the petitioner], the employee always left work at 3:30 p.m. to be home by 4:00 p.m., to be with his young children. If he had additional work to do, he would go in to work early so that he could still return home by 4:00 p.m. Exceptions to this schedule occurred during the fall and spring, when the employee would coach junior high girls= and boys= tennis, and also on two evenings during the fall and spring, when he was required to attend parent-teacher conferences from 4:00 p.m. to 8:00 p.m. On March 18, 1998, the employee participated in parent-teacher conferences scheduled for that evening. Shortly after leaving school at about 8:00 p.m., and while driving home via his customary route, the employee was killed in a head-on collision with a pickup truck driven by a drunk driver. The employee was thirty-four years old at the time and is survived by the petitioner and two children.
On March 30, 2001, the petitioner filed a claim petition for dependency benefits, alleging that the employee=s death arose out of and in the course of his employment with the employer. The employer, self-insured, denied liability, and the matter was heard by a compensation judge at the Office of Administrative Hearings on November 6, 2002.
The central issue presented to the compensation judge was whether the facts of this case justified application of the Aspecial errand@ exception to the general rule that injuries suffered by an employee while commuting to and from work are not compensable. Evidence introduced at hearing included varying evidence that the employee=s journey home on March 18, 1998, was or was not more hazardous than his usual trip home, due to factors such as decreased daylight, deteriorating winter weather, and increased presence of drunk drivers on the roads.
In a Findings and Order issued January 28, 2003, the compensation judge determined in part that (1) the employee=s regular hours of employment included the A[sem]iannual hours from 4:00 p.m. to 8:00 p.m.@ required to conduct parent-teacher conferences, (2) A[t]he task of meeting with parents is a regular and recurring obligation of K-12 teachers during the normal hours of employment,@ and (3) A[t]he trip home on the evening of March 18, 1998 was not an integral part of the services performed for the employer that evening.@ Based upon these findings, the judge found that the employee was not engaged in a special errand at the time of the motor vehicle accident on March 18, 1998, and that his death did not arise out of and in the course of his employment. The petitioner appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id., at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
AEvery employer . . . is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment.@ Minn. Stat. ' 176.021, subd. 1. The phrase Aarising out of@ requires evidence of a causal connection between the injury and the employment, while the phrase Ain the course of employment@ requires that the injury occur within the time and space boundaries of employment. Foley v. Honeywell, Inc., 488 N.W.2d 268, 271-72 (Minn. 1992) (citing Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988)). Whether an injury arose out of and in the course of employment is generally a fact question for the compensation judge, Franze v. National Delivery Serv., 49 W.C.D. 148, 155 (W.C.C.A. 1993), summarily aff=d, 505 N.W.2d 620 (Minn. 1993), and the burden of proof is on the employee/claimant. Minn. Stat. ' 176.021, subd. 1. As a general rule, injuries sustained while commuting to and from work are not compensable under the workers= compensation act. See, e.g., Swanson v. Fairway Foods, 439 N.W.2d 722, 724, 41 W.C.D. 1010, 1013 (Minn. 1989); Kahn v. State, 289 N.W.2d 737, 742, 32 W.C.D. 351, 359 (Minn. 1980). The general rule, however, is not without exception. The exception argued by the petitioner in this case is the Aspecial errand@ exception.
The Aspecial errand@ exception to the commuting-to-and-from-work rule was originally recognized in Nehring v. Minn. Mining & Mfg. Co., 193 Minn. 169, 258 N.W. 307, 8 W.C.D. 321 (1935). In Nehring, the employee received a specific request by the employer to come in to work on a weekend on an emergency basis for the purpose of replacing a fuse. While the employee was on his way home from work, he was involved in a fatal accident. In granting benefits, the supreme court stated as follows:
In his ordinary work, the employee knows that he has to be at the proper place at a specified time to begin his services and continue them until a set time. Prior to the time set for beginning the service and after the services are ended for the day, the employee=s time is his own, and he may dispose of it as he pleases. But if, while so off duty from his regular employment, he is called to do an errand or sent on a mission by the employer, the courts which have spoken on the subject hold it a special service begun the moment the employee leaves his home, or the place where the call comes to him, and ended only with his return. Such special employment, so begun and ended, may be implied from surrounding circumstances.
Id. at 171, 258 N.W. at 308, 8 W.C.D. at 323.
The special errand rule was again discussed in Bengston v. Greening, 230 Minn. 139, 41 N.W.2d 185, 16 W.C.D. 137 (1950). In Bengston, a bookkeeper who normally worked five days a week was asked to come to the employer=s office on a Saturday for a short time to go over some records with an accountant who was preparing an income tax report. The employee=s husband drove her to the office, waited for her, and drove her home. After she left the car, she crossed the public sidewalk, and about halfway between the sidewalk and the house, on her own premises, she slipped and fell. In affirming an award of benefits to the employee, the supreme court noted that the special errand rule pertains to determining when the employment commences and ceases. Concluding that the errand for the employer was the occasion of the employee=s leaving her home and returning to it, and that the employee was still on her special mission when she walked from the car to the house, the court affirmed the finding that the employee=s injury arose out of and in the course of employment.
In 1963, the special errand rule was defined still further in Youngberg v. The Donlin Co., 264 Minn. 421, 119 N.W.2d 746, 22 W.C.D. 378 (1963). In that case, after a review of authorities that discuss the special errand rule, the court noted that the rule had been applied (1) where Athere is an express or implied request that the service be performed after working hours by an employee who has fixed hours of employment,@ (2) where Athe trip involved on the errand [is] an integral part of the service performed,@ and (3) where Athe work performed, although related to the employment, [is] special in the sense that the task requested was not one which was regular and recurring during the normal hours of employment.@ Id. at 425, 119 N.W.2d at 749, 22 W.C.D. at 383.
About two years later, the court again considered the special errand rule in Jonas v. Lillyblad, 272 Minn. 299, 137 N.W.2d 370, 23 W.C.D. 659 (1965). In that case, the employee was responsible for the maintenance of the furnace boiler at the employer=s hotel. His normal work hours were from 7:00 a.m. to 6:00 p.m., but on the night of his injury he returned briefly to the hotel at about 8:30 p.m. to turn on the furnace. Later, at about midnight, he returned again to the hotel, this time to turn off the furnace, wanting not to leave it unattended all night. As he was walking home from the hotel, he was struck by an automobile and sustained injuries. While acknowledging the factors outlined in Youngberg, the court stated, AWe are not cognizant of any clearly defined guidelines to follow when it comes to determining whether a particular factual situation falls within a special mission or errand doctrine.@ Id. at 305, 137 N.W.2d at 374, 23 W.C.D. at 666-67. Concluding, however, that the dominant consideration in such cases is whether the service being performed is after working hours and is one that is neither regular nor recurring during normal hours of employment, the court affirmed the commission=s finding that the employee was not engaged in daily, regular, recurring trips to the hotel after normal hours and so was engaged in a special errand at the time of his injury.
Finally, in Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989), the court, referencing Hed v. Brockway Glass Co., 309 Minn. 73, 244 N.W.2d 28, 28 W.C.D. 448 (1976), concluded that the special errand rule had been invoked Awhen employees with regular hours were required to work overtime under circumstances that made the travel to and from work more hazardous.@ Swanson, 439 N.W.2d at 724, 41 W.C.D. at 1014. The factual underpinnings in both Hed and Swanson were the allegations that the work activities were a substantial contributing cause of the employees= fatigue, which, in turn, substantially contributed to the injuring accidents on the employees= commutes home. Benefits were denied in Swanson, however, because the employee did not work Aregular hours,@ as required by the special errand rule.
In the present case, the petitioner argues that the compensation judge committed an error of law by finding that the employee was not engaged in a special errand when, at his employer=s requirement, he returned to work for four hours at parent-teacher conferences after his normal work hours had ended. She contends that the facts in this case satisfy the criteria set forth in both Youngberg and Swanson.
Under Youngberg, the petitioner contends first that the employee=s fixed hours of employment were contractually defined to be eight continuous hours and that the expectation that the employee participate in parent-teacher conferences was essentially a request to perform a service after normal hours. Second, the petitioner contends that, although attendance at such conferences was clearly related to the employment, the task was special, in the sense that it was not one that was regular or recurring during the normal hours of employment. In fact, she argues, the conferences had to be conducted after working hours to accommodate parents. Finally, the petitioner asserts that the very nature of the employee=s obligation to stay at work until 8:00 p.m. resulted in the employee=s having to return home under conditions extremely different from those present during his normal 3:30 p.m. commute, Awhich rendered the trip home an int[egr]al part of the >special errand= of the parent/teacher conferences.@ We are not persuaded.
The essential question for this court is whether there is a sufficient basis in the evidence and in the inferences to be drawn from that evidence to support the judge=s finding that the employee was not engaged in a Aspecial errand@ at the time of his motor vehicle accident on March 18, 1998. As the supreme court suggested in Jonas, there are no very clearly defined guidelines to follow in determining whether a particular factual situation falls within the special errand doctrine. That determination still remains, however, generally a fact question for a compensation judge. In this case, the judge apparently concluded that the parent-teacher conferences being performed by the employee on the evening of his death were a scheduled, predictable aspect of his regular employment routine and therefore were not sufficiently Aspecial@ to qualify as a special errand. At Finding 3 the judge found that the employee=s regular fixed hours of employment included the semiannual shifts from 4:00 p.m. to 8:00 p.m. during which the employee was to conduct parent-teacher conferences and that there had been no request that the employee work beyond these fixed hours. In his memorandum, the judge explained that he viewed the routine parent-teacher conferences as an essential function of teaching in K-12 schools and part of the regular and normal duties and hours for which the employee was hired. He pointed out that the conferences were planned well in advance and that there was nothing different, unusual, unexpected, or special about the conferences held on March 18, 1998, in particular. We conclude that there is ample evidence to support these factual findings of the compensation judge. Because it was not unreasonable for the judge to conclude that the routine parent-teacher conferences here at issue, planned well in advance, were a regular and recurring task of the employee=s normal employment, we affirm the judge=s refusal to apply the special errand rule under the Youngberg criteria. See Hengemuhle, 358 N.W.2d 59, 37 W.C.D. at 239.
The petitioner also contends that, under the Hed and Swanson decisions, when an employee is required to work beyond his regular hours and his trip home becomes more hazardous as a result, the trip home becomes an integral part of the employment activity and any injury occurring during that trip is compensable. However, in that we have affirmed the judge=s finding that the hours worked by the employee at parent-teacher conferences were included in his regular hours of employment, the Hed and Swanson decisions are not applicable here.
Under the particular facts of this case, the compensation judge=s denial of benefits is affirmed.
 The self-insured employer has cross-appealed from the judge=s post-hearing admission into evidence of a witness statement allegedly not timely offered. Because we have affirmed the compensation judge=s determination on the liability issue, we will not address the employer=s cross appeal.
 According to a school calendar introduced into evidence, parent-teacher conferences were scheduled for November 12 and 13, 1997, and March 18 and 19, 1998.
 In his memorandum, the judge explained that, even if the court had found that the evening parent-teacher conferences were not part of the employee=s regular hours, the judge would not have found the employee=s death compensable, in that he declined to accept the argument that the employee=s journey home on the night of his death became substantially more hazardous due to any increased hazzards related to daylight, weather, or drunk-driving risks present at the 8:00 p.m. hour.