DAROL D. SPENCER, Deceased Employee, by CAROL SPENCER, Petitioner/Appellant, v. JEDLICKI TRUCKING, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 31, 2007
EMPLOYMENT RELATIONSHIP - SUBSTANTIAL EVIDENCE; DEPENDENCY BENEFITS - SUBSTANTIAL EVIDENCE. Where only the petitioner and not her deceased husband had been expressly hired by the alleged employer to haul freight on the date at issue, where the parties stipulated that the deceased was given permission to ride along with his wife but was expressly told that he must not drive, where the alleged employer was aware of the deceased=s serious health issues, and where there was no evidence that the deceased was being paid as a Aride-along helper@ to the petitioner, the deceased=s previous employment by the alleged employer was irrelevant, and the compensation judge=s conclusion that the deceased was not an employee at the time of his fatal accident while driving as his wife slept in the truck in the course of their delivery trip was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Appellant. Joan G. Hallock, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The petitioner appeals from the compensation judge=s finding that she failed to prove by a preponderance of the evidence that her deceased spouse, Darol D. Spencer, was an employee of Jedlicki Trucking, Inc., at the time of his July 29, 2005, motor vehicle accident. We affirm.
Carol Spencer [the petitioner] and her spouse, Darol Spencer [Mr. Spencer], began working as over-the-road truck drivers for Jedlicki Trucking, Inc. [Jedlicki], in 1996. Both were employed on a part-time and intermittent basis primarily during the summer months. They often drove as a team. On occasion, the petitioner drove alone, but she did not like to take long trips by herself. Their last driving trip as a team was in April 2005.
On June 21, 2005, Mr. Spencer, who was seventy-four years old at the time, was seen in an emergency room complaining of a fever and shortness of breath. The examining physician noted that Mr. Spencer had advanced chronic obstructive pulmonary disease [COPD] as well as other medical problems. Mr. Spencer=s past medical history included atrial fibrillation, possible congestive heart failure, COPD requiring continuous oxygen, status post aortic valve replacement, status post bilateral shoulder replacement, and a diagnosis of lung cancer in July 2004. Mr. Spencer was admitted to the hospital with pneumonia, complicated by his COPD and lung cancer. His pulmonary status had stabilized by June 24th, but because he was still too weak to go home he was discharged to a nursing home where he remained for a week.
Mr. Spencer was seen in follow-up by his family physician, Dr. Gregory McNamara, on July 1, 2005. Dr. McNamara noted that Mr. Spencer=s cough and fatigue had improved but that he remained on continuous oxygen. Mr. Spencer stated that he wanted to go home and to return immediately to his usual activity level, including driving a car, but Dr. McNamara told him that he did not want him to drive for at least a month. He recommended also that Mr. Spencer consider a hospice program.
Later that month, Jedlicki offered the petitioner the opportunity to transport a load to Milwaukee, Wisconsin. The petitioner asked Ken Jedlicki [Mr. Jedlicki], the owner of Jedlicki, whether Mr. Spencer could ride along on the trip, and, understanding that the petitioner did not like to travel alone and sometimes needed help with directions, he granted the permission. It was clearly understood by the petitioner, Mr. Spencer, and Mr. Jedlicki, however, that Mr. Spencer was authorized only to ride along and was not to drive the truck. Mr. Jedlicki was aware of Mr. Spencer=s lung cancer, of his oxygen dependency, of his recent hospitalization and convalescence at the nursing home, and that he had been instructed not to drive by his family doctor.
After making her delivery in Milwaukee, the petitioner agreed to transport a second load to Kansas and then to pick up a third load to be delivered to Minnesota. At some point during the third leg of the trip, the petitioner and Mr. Spencer stopped for food in Nebraska. The petitioner testified that after dinner she told Mr. Spencer that she was tired and retired to the sleeper portion of the cab. Mr. Spencer then drove the truck from the Nebraska meal stop to Sioux Falls, South Dakota. While exiting the interstate near Sioux Falls, in the early morning hours of July 29, 2005, Mr. Spencer lost control of the truck and it rolled. The truck overturned onto the driver=s side, and Mr. Spencer, having sustained lacerations in the wreck, was pinned in the cab of the truck for about an hour. During extrication from the truck by emergency personnel, Mr. Spencer suffered cardiac arrest, and he died en route to the hospital.
On June 21, 2006, the petitioner filed a claim petition for dependency benefits, alleging that Mr. Spencer was employed by Jedlicki on July 29, 2005, and that his death arose out of and in the course of his employment. Jedlicki and its insurer denied that Mr. Spencer was an employee of Jedlicki at the time of the accident and that his death was caused by the accident.
The matter was heard by a compensation judge on January 9, 2007. At hearing, the parties stipulated that Mr. Spencer had permission from Jedlicki to ride along on the trip but was expressly told that he did not have permission to drive. Evidence presented at hearing included Mr. Spencer=s medical records and the deposition testimonies of Jedlicki office manager Clara York and owner Ken Jedlicki. In a findings and order issued January 31, 2007, the judge found that Mr. Spencer was not an employee of Jedlicki at the time of the accident, and he therefore denied the petitioner=s claim for dependency benefits. The petitioner appeals.
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 (2006). 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).
In the present case, the compensation judge found that, at the time of the accident, no employee-employer relationship existed between Mr. Spencer and Jedlicki. The petitioner contends that the judge=s finding is clearly erroneous, that Mr. Spencer was working under an implied employment contract on the date of the accident. She contends that Mr. Spencer had worked for Jedlicki on many occasions prior to the accident and that, although Mr. Spencer was instructed not to drive on the July 2005 trip, any driving prohibition did not nullify this employment relationship. She asserts that Mr. Spencer=s role on the trip exceeded that of a mere passive rider, that he actively assisted her by helping to locate fuel stops and customer pick-up and drop-off sites and by calling Jedlicki to provide updates on their progress on the road. Whether Mr. Spencer was working as a driver or as a Aride-along helper,@ she argues, his Awork activities@ benefitted Jedlicki and therefore the judge erred in failing to find that he was working under an implied employment contract for hire on the date of the accident. We are not persuaded.
AA claim for compensation under the Work[ers=] Compensation Act may be sustained only where an injury arises out of services performed pursuant to a contract for hire, express or implied, and not as a volunteer worker.@ Holm v. H & S Asphalt Co., 283 Minn. 330, 331, 167 N.W.2d 743, 744 (1969); see also Preese v. Boy Scouts of America, 283 Minn. 284, 167 N.W.2d 737 (1969). Minnesota Statutes section 176.011 defines an Aemployee@ as Aany person who performs services for another for hire.@ Minn. Stat. § 176.011, subd. 9. Subdivision 10 of that same section defines Aemployer@ as Aany person who employs another to perform a service for hire.@ Id., at subd. 10. Services offered as a volunteer, without expectation of payment, do not fall within the scope of the workers= compensation act. Id. In Erickson v. Goodmanson Constr. Co., this court stated:
In determining whether an employer-employee relationship exists, the courts have considered whether there was a contract for hire, express or implied; whether the parties contemplated the payment of wages or other remuneration in compensation for the services rendered; and whether the services were performed at the specific direction or request of the employer or an agent of the employer.
Erickson v. Goodmanson Constr. Co., 60 W.C.D. 357, 361 (W.C.C.A. 2000) (footnote and citations omitted). Whether Mr. Spencer was performing a service for hire or, as the compensation judge found, as a volunteer, is a question of fact for the compensation judge. As such, our function on review is solely to determine whether the compensation judge=s finding is supported by substantial evidence.
It is undisputed that only the petitioner was expressly hired by Jedlicki to haul the freight to Wisconsin and then to Kansas and Minnesota. The parties stipulated that Mr. Spencer was given permission to ride along on the trip but was explicitly told that he did not have permission to drive. As the judge pointed out in his memorandum, both Mr. Jedlicki and office manager Clara York were aware of Mr. Spencer=s serious health issues, and the judge reasonably concluded that A[i]t appeared from their deposition testimony that this was considered a serious safety issue.@ Nor does the record support the petitioner=s attempt to award Mr. Spencer the title of Aride-along helper.@ Although there was apparently some evidence that Mr. Jedlicki was aware that the petitioner did not like to travel alone and sometimes needed help with directions, there is no evidence in the record to support the idea that such a position existed or was contemplated by Jedlicki. Moreover, notwithstanding the petitioner=s argument to the contrary, there is no evidence that Mr. Spencer was being paid for the trip. While Mr. Spencer may have assisted the petitioner in locating fuel stops and pick-up and drop-off sites, it was not unreasonable for the judge to conclude that such activities did not create an employment relationship with Jedlicki, that when driving the truck from Nebraska to South Dakota on July 29, 2005, Mr. Spencer was acting unilaterally as a volunteer and not an employee.
The petitioner argues also that this court=s decision in Werneke v. Lakeside Lawn and Landscape, Inc., 65 W.C.D. 615 (W.C.C.A. 2005), is analogous to this case. In Werneke, this court affirmed a factual finding of the compensation judge that the claimant was an implied employee of the employer. We find the instant case to be clearly distinguishable from Werneke. Unlike Mr. Spencer in the present case, Werneke was expressly called and invited to work, was directed to report at the employer=s usual start time on the date of injury, was provided a time sheet by the employer, was clearly needed to fill out the crew because the crew was short, performed the same tasks that other members of the crew performed, and benefitted the employer in performing these tasks. Here, Mr. Spencer was merely a passenger in the truck. His level of involvement amounted to little more than keeping the petitioner company on the trip. He was not requested by the employer to perform any services, and permission to accompany the petitioner on the trip was given as an accommodation to the petitioner, not as part of any employment relationship. The fact that Mr. Spencer had a previous employment relationship with Jedlicki is not relevant here. There is no evidence that the position of Aride-along helper,@ as characterized by the petitioner, even existed. Jedlicki hired only the petitioner to transport freight to Wisconsin, Kansas, and back to Minnesota in late July 2005; it did not hire both Spencers. The judge=s finding that Mr. Jedlicki and Ms. York simply permitted Mr. Spencer to go along for the ride is amply supported by the evidence of record and the stipulations of the parties. Mr. Spencer was too ill to drive and had been instructed by his doctor to refrain from driving even his car. Jedlicki did not hire Mr. Spencer to locate fuel stops or to perform any other activity. Whatever services that may have been performed by Mr. Spencer were not performed at the direction or request of the employer.
Because it was not unreasonable, we affirm the decision of the compensation judge that Mr. Spencer was not an employee at the time of his accident.
 See Findings and Order, Memorandum, p. 4.