BRENT HOLCOMB and WADE HOLCOMB, Employees, v. KELLER FENCE CO. and CNA COMMERCIAL INS., Employer-Insurer/Appellants, and ILLINOIS FARMERS INS. CO., MN DEP=T OF ECONOMIC SEC., ITASCA MEDICAL CTR., and BLUE CROSS/BLUE SHIELD OF MINN. and BLUE PLUS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 3, 2003
ARISING OUT OF & IN THE COURSE OF. Where two employees were injured while traveling from a job site to the employer=s shop, substantial evidence supports the compensation judge=s finding that the injuries sustained arose out of and in the course of employment.
Determined by Rykken, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Donald C. Erickson
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge=s finding that the injuries sustained by the employees in a motor vehicle accident arose out of and in the course of their employment. We affirm.
On August 12, 1999, Wade Holcomb and Brent Holcomb, employees of Keller Fence Company, the employer, were injured in a motor vehicle accident after leaving a work site. On that date, the employer was insured for workers= compensation liability by CNA Commercial Insurance, the insurer. The employees, who are brothers, installed fences for the employer. At the time of the injury, Brent Holcomb was 23 years old and had worked for the employer for approximately six years. Wade Holcomb, age 25 at the time of the injury, had worked for the employer for two seasons.
The employees= job duties are comprised of four categories, shop or yard work, travel time, field work, and office time. The employees were generally supervised by Steve Hoopman, a one-third owner of the employer. The shop or yard work was performed at the employer=s shop in Cohasset, Minnesota, approximately 3 miles from Grand Rapids, Minnesota, and included loading and unloading of trucks, putting away equipment, cleaning, weaving extra fence onto rolls, and organizing parts. Yard work would be performed before and after a job. Wade Holcomb testified that there was a list posted at the shop with jobs available for the employees to do in the yard. He also testified that if the employees were rained out, they could go back to the shop to perform yard work, and that Steve Hoopman had told them that Athere is always something to do@ at the shop.
Most of the employees= duties involved field work at job sites. The employees were paid hourly for travel time to and from the shop to the work sites. If they were required to stay out of town, they were paid a $25 per diem. Most of the time employees drove company vehicles while traveling to the work site and would be reimbursed for any fuel purchases. Occasionally employees would drive personal vehicles and be reimbursed for mileage.
On August 10, 1999, the employees reported to the employer=s shop and loaded a company vehicle, a boom truck, in preparation for an out-of town project in Isle, Minnesota. Wade Holcomb testified that the boom trucks were left at the job site until the job was completed because of their size and higher fuel cost. They drove to the work site that day. The project, installation of backstops for a softball field, was estimated to take a week or more. The employees were working with Kent Lowe, a subcontractor for the employer. The employees worked the rest of that day, and stayed overnight at Mr. Lowe=s house. The employees worked the next day, then received a ride from Mr. Lowe=s son to Aitkin, where they met a friend of the employees, Sydney Sharbonda. The employees and Ms. Sharbonda drove to Grand Rapids where the employees played in a men=s league softball game, then stayed at their parents= home in Grand Rapids. Wade Holcomb testified that because it was raining, he called Mr. Hoopman the next morning, August 12, 1999, to ask if they should report to work, and that he was told to report to the job site. The employees returned to the Isle work site, driving Ms. Sharbonda=s car. They worked several hours that morning, then stopped at about 11:00 a.m. due to heavy rain.
Wade Holcomb testified that Mr. Lowe gave them the choice of either staying at his home or returning to the shop after they stopped working. Mr. Lowe did not recall this conversation, and thought that the employees were planning to return home. The employees took their tools with them, and departed in Ms. Sharbonda=s car. On their return trip, at approximately 11:50 a.m., while driving in the direction of Cohasset and Grand Rapids, Minnesota, the employees were involved in a serious motor vehicle accident. Brian Holcomb sustained injuries to his brain, internal organs, pelvis, and hip and also a left shoulder clot, left leg clot, and a ruptured spleen. He also has significant memory loss, and cannot remember anything for a period of approximately a year, encompassing the summer of 1999 and the accident. Wade Holcomb injured his chest and fractured his right clavicle, right arm, and a rib.
On October 9, 2000, the employees filed separate claim petitions for the injuries sustained in the August 12, 1999, motor vehicle accident. The employer and insurer denied that the injuries arose out of and in the course of their employment. The claim petitions were consolidated for hearing, which was held on February 27, 2002. The sole issue addressed at the hearing was whether the employees= injuries arose out of and occurred in the course and scope of their employment with the employer. The parties stipulated that minimum payments would be made if primary liability was established. The parties also reserved the issues of weekly wage and determination of maximum medical improvement for future litigation.
In his findings and order served and filed July 17, 2002, the compensation judge found that the employees= injuries arose out of and in the course of their employment. The employer and insurer appeal.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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. Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
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. A Apersonal injury@ is an injury sustained while the employee is Aengaged in, on, or about the premises where the employee=s services require the employee=s presence as a part of that service at the time of the injury and during the hours of that service.@ Minn. Stat. ' 176.011, subd. 16. Thus, 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 question of fact for the compensation judge. Rondeau v. Metropolitan Council, 58 W.C.D. 338, 342 (W.C.C.A. 1998) (citing Franze v. National Delivery Serv., 49 W.C.D. 148 (W.C.C.A. 1993), summarily aff=d (Minn. Aug. 25, 1993)). The burden of proof is on the employee. 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, 41 W.C.D. 1010 (Minn. 1989); Lehn v. Kladt, 312 Minn. 557, 250 N.W.2d 846, 29 W.C.D. 347 (1977). An exception to this rule is made for an employee who is traveling between two portions of the employer=s work premises. See 1 A. Larson, Workers= Compensation Law' 13.01(4)(a); Kahn v. State of Minn., 289 N.W.2d 737, 742, 32 W.C.D. 351, 360 (Minn. 1980).
At the time of their accident on August 12, 1999, the employees were returning to Grand Rapids, in the direction of the shop and their home. The employer and insurer argue that the employees= injuries did not arise out of and in the course of their employment because they were engaged in a personal enterprise at the time of their motor vehicle accidentBtraveling from the Isle, Minnesota, construction site to their home in Grand Rapids, Minnesota. In support of that contention, the employer and insurer argue that Mr. Hoopman=s testimony about the employees= travel plans offers a plausible and reasonable explanation of the events of August 12, 1999. The parties agree that Mr. Hoopman was not contacted before the employees left the work site in Isle, Minnesota. Mr. Hoopman testified that if the employees had contacted him before returning from the Isle, Minnesota, work site, he would not have directed them to return to the shop, since shop work was generally done at the end of a job for out-of-town work.
The compensation judge, however, found that Mr. Hoopman was not credible, specifically noting that his demeanor as a witness detracted severely from his credibility. "Assessment of witness credibility is the unique function of the factfinder." Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988). Further, whether or not the employer would have approved of the employees= return to the shop, if Mr. Hoopman had been contacted, is not determinative. According to Wade Holcomb, the employees intended to report to the shop to do yard work as posted on the task list at the shop, not to go directly home. Given the circumstances, this was a reasonable decision. AAn injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.@ Rondeau, 58 W.C.D. at 344 (quoting Larson, supra, ' 14.00 (renumbered in ch. 12)). An employee is in the course of employment when the employee Adoes those reasonable things which his contact with his employment expressly or impliedly permits him to do.@ Id. (citing Fjeld v. Marshall County Co-op. Oil Ass=n, 227 Minn. 274, 278, 35 N.W.2d 448, 451 (1948)).
The employer and insurer argue that Wade Holcomb=s testimony is not credible because he testified in a deposition that he had memory loss from before the accident until days after the accident. While the employee indicated that he was in and out of consciousness after the accident, there is no indication in the medical records that Wade sustained any head injury in the accident. In his deposition, Wade was asked if the days before the accident and the morning of the accident were within his recollection. He answered that he knew where he was and what he was doing, and that his memory loss begins about the time he and Brent were driving back to Grand Rapids. He specifically testified that they were going back to the shop to see if there was work because they were rained out at the Isle job site. The compensation judge could reasonably rely upon Wade Holcomb=s testimony about his and Brent Holcomb=s intent to return to work in the shop.
While there was conflicting evidence regarding the employees= destination after leaving the Isle, Minnesota, job site, there was sufficient evidence to support the compensation judge=s finding that the employees were returning to the employer=s shop for yard work, not going directly to their home. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). The compensation judge could reasonably conclude that the employees were traveling from the job site to the employer=s shop, and therefore were traveling between two work sites, not commuting to their home. See Ptacek v. Valley Contracting, Inc., slip op. (W.C.C.A. Jan. 11, 1995) (where employee was injured in motor vehicle accident while traveling from a job site to employer=s premises to unload materials, the compensation judge did not err in finding that the injuries sustained in that accident arose out of and in the course of employment). Accordingly, we affirm.