DOUGLAS KURTZ, deceased Employee, by DAWN GILLMAN, Petitioner, v. LAKES MEDI VAN, INC., and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, and AMERICAN FAMILY MUT. INS. GROUP, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 25, 2006
ARISING OUT OF & IN THE COURSE OF - DUAL PURPOSE TRIP. Where the employer had agreed with the employee=s request to drive home from Brainerd to Little Falls on Friday evening in a company van that the employee would need early Monday morning for a client pick-up in Little Falls, and where the employee was fatally injured Friday night on his drive home in the van, the compensation judge=s conclusion that the business purpose of the trip was at least a concurrent reason for the employee=s activities at the time of his injury and that the employee=s dependent was therefore entitled to benefits was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J, Wilson, J., and Stofferahn, J.
Compensation Judge: Gary M. Hall
Attorneys: Daniel B. Honsey, Kraft, Walser, Hettig, Honsey & Kleiman, Hutchinson, MN, for the Respondent. Andrew W. Lynn, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Appellants. Matthew H. Jones, Brown & Carlson, Minneapolis, MN, for the Intervenor.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee=s fatal accident while commuting home from work was covered under the dual purpose doctrine and therefore arose out of and in the course of his employment. We affirm.
The essential facts in this case are undisputed. Douglas Kurtz [the employee] worked for Lakes Medi Van, Inc. [the employer], as a driver representative. The employer provides non-emergency medical transportation in outstate Minnesota and has about 133 employees. Among its employees are driver representatives, classified as either Aarea drivers@ or Adrivers.@ Area drivers work out of their homes and generally take the company medi-van home with them every night. Drivers, on the other hand, work out of one of the employer=s garage facilities located in Detroit Lakes, Bemidji, Brainerd, Wadena, and Worthington. The drivers usually commute to one of the garages, pick up their medi-van, perform their driving duties, and return to the garage to drop off the van before commuting home. The employee worked out of the Brainerd garage and did not normally take the company van home at night or on weekends. He normally commuted in his own vehicle from his residence in Little Falls to the Brainerd garage at the beginning of each work day and then from Brainerd back to Little Falls at the end of each work day.
On Friday, November 7, 2003, at the end of his shift, the employee telephoned his dispatcher, Lori Ann Nustad, and requested permission to take his company van home for the weekend. The employee explained that his personal vehicle was being repaired and that his first pick-up on the following Monday was before 7:00 a.m. in Little Falls. The employer=s policy is that company vehicles are not for personal use unless approved by the office. Approval is given on a case-by-case basis. On occasion, drivers may be instructed by the company to take the van home if there is an early morning pick-up close to the driver=s home. On those occasions, the driver is paid for his commute home. When the employee has not been instructed to take the van home but permission is otherwise granted, the employee is not paid for his commuting time or time spent using the van on personal business. Ms. Nustad approved of the employee=s use of the company van for the reasons given and the employee left the Brainerd facility between 5:00 p.m. and 5:30 p.m en route to his home in Little Falls. While driving south on Highway 371 from Brainerd, the employee struck a deer with the company van. He pulled to the side of the road and was killed when he was struck by another vehicle.
On May 21, 2004, a claim for dependency benefits was filed on behalf of the employee=s one minor dependent child. The employer and insurer denied liability, and the matter came on for hearing before a compensation judge on May 19, 2005. The record remained open for post-trial depositions, and the judge issued a Findings and Order on October 17, 2005. He determined that the employee=s use of the company van at the time of his death was for both business and personal reasons and that, because of the scheduled client pick-up in Little Falls on Monday morning, the employee=s drive to Little Falls on Friday afternoon was a necessary business trip. Finding that the employee=s commute home was a Adual purpose activity,@ the judge concluded that the employee=s death arose out of and in the course of his employment. The employer and insurer appeal.
STANDARD OF REVIEW
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 (2004). 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, 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
As a general rule, an employee is not covered while traveling to and from work. Swanson v. Fairway Foods, Inc., 439 N.W.2d 722, 724, 41 W.C.D. 1010, 1013 (Minn. 1989) (citations omitted). There are, however, exceptions to this rule, one being in situations where the employee is, at the time of his injury, engaged in a "dual purpose" activity that serves both his own and the employer=s interests. See, e.g., Rau v. Crest Fiberglass Industries, 275 Minn. 483, 148 N.W.2d 149, 24 W.C.D. 103 (1967). Here, the compensation judge found that the employee=s commute home was a Adual purpose@ activity requiring a finding that the employee=s accident arose out of and in the course of his employment. The employer and insurer contend that the employee=s trip home was overwhelmingly if not exclusively personal in purpose and therefore not a Adual-purpose@ activity at all. Any business benefit, they argue, was absolutely incidental, and any connection to work scheduled two days subsequent to the employee=s death is too remote to bring it within the scope of compensability. While evidence certainly exists to support the employer and insurer=s position, the issue is not so one-sided as to compel reasonable minds to that conclusion. Moreover, the issue under this court=s standard of review is not whether the facts will support findings different from those made by the compensation judge, but, rather, whether substantial evidence supports the findings of the judge. Land v. Washington County Sheriff=s Dep=t, slip op. (W.C.C.A. Dec. 23, 2003) (citations omitted). In this case, it was not unreasonable for the judge to conclude that the employee=s commute home on November 7, 2003, was a Adual-purpose@ activity and that the business purpose was not purely incidental.
Under the dual-purpose test adopted by the supreme court in Rau v. Crest Fiberglass Industries,
[A] trip which includes both personal and business errands remains a business trip for compensation purposes if the evidence supports a permissible inference that the work of the employee created the necessity for the trip which would have been made even though the private errand had been dropped. Conversely, if the work of the employee had no part in creating the necessity for the trip and it would have been made if the business errand was dropped, and the trip would have been canceled only upon failure of the private purpose, the trip and the risks are personal.
Rau, 275 Minn. at 486, 148 N.W.2d at 151, 24 W.C.D. at 106. In this case, the judge found that, while use of the company van was an obvious benefit to the employee, Athe drive to Little Falls was, at that time, [also] believed to be a necessary business trip which would have had to be performed with the company van, regardless of whether it was performed concurrently with the employee=s commute home or separately on Monday morning.@ Lori Nustad testified that she approved the employee=s request for the van because his vehicle was being repaired and because he had a client pick-up in Little Falls before 7:00 a.m. on Monday. The judge found that the location and timing of the employee=s Monday morning pick-up was virtually identical to the example provided by Ms. Nustad of a situation where a driver might be actually instructed to take the van home. Under these facts, the judge could reasonably conclude that, even if the employee=s private errand had been dropped, there remained a necessity for the business trip.
With regard to the employer=s argument that the personal interest of the trip here was the very dominant one, we would note the supreme court=s comment in Rau:
In short, it is sufficient to place the risk of injury on the employer if it is established that the business mission was a concurrent cause of the trip even though the personal motives for making the trip when weighed against the business motives appear Adominant@ in the sense of returning greater benefits to the employee. 1 Larson, Workmen=s Compensation Law, ' 18.13.
Rau, 274 Minn. at 486, 148 N.W.2d at 151-52, 24 W.C.D. at 106 (emphasis added). See also Waalk v. Tonkawood Const. Co., Inc., 305 Minn. 44, 232 N.W.2d 19 (1975); Titus v. Fox Chemical Co., Inc., 254 N.W.2d 74, 29 W.C.D. 518 (1977). As to the requirement that the business mission be a Aconcurrent cause@ of the trip, Professor Larson explains that
[I]t is not necessary, under this formula, that, on failure of the personal motive, the business trip would have been taken by this particular employee at this particular time. It is enough that someone sometime would have had to take the trip to carry out the business mission. Perhaps another employee would have done it; perhaps another time would have been chosen; but if a special trip would have had to be made for this purpose, and if the employer got this necessary item of travel accomplished by combining it with this employee=s personal trip, it is accurate to say that it was a concurrent cause of the trip, rather than an incidental appendage or afterthought.
1 Arthur Larson & Lex Larson, Larson=s Workers= Compensation Law § 16.03 (2005) (italics in original; footnotes omitted).
While this is perhaps a close case, we think that the evidence here is sufficient to support a finding that the work of the employee created the necessity for the trip, which would have to have been made even if it had not coincided with the employee=s commute home. The business purpose of the trip, although not the sole reason, was reasonably at least a concurrent reason for and not a mere incident to the employee=s personal activities on the night on which he was fatally injured. Therefore we affirm. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 Ms. Nustad is also part owner and vice president of Medi Van, Inc.