THOMAS O. ZABACK, Employee/Cross-Appellant, v. COWBOY CONCRETE, LLC, and AUTO-OWNERS INS. GROUP, Employer-Insurer/Appellants, and PROGRESSIVE NORTHWESTERN INS. CO., Intervenor/Cross Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 15, 2007
ARISING OUT OF & IN THE COURSE OF - SPECIAL ERRAND. Substantial evidence supports the compensation judge=s determination that the employee was injured while on a special errand for the employer and that, as a result, his injuries were covered under the Workers= Compensation Act.
Determined by: Stofferahn, J., Johnson C.J., and Rykken, J.
Compensation Judge: Jennifer Patterson
Attorneys: Shawn M. Perry, Perry, Perry & Perry, Minneapolis, MN, for the Employee/Cross-Appellant. Joan G. Hallock, Hansen, Dordell, Bradt, Odlaug, & Bradt, St. Paul, MN, for the Employer-Insurer/Appellants. Hilary B. Ziemer, Corrine L. Evenson & Assocs., St. Paul, MN, for the Intervenor/Cross-Appellant.
DAVID A. STOFFERAHN, Judge
The compensation judge determined that the employee was in the course and scope of his employment when he was injured on November 25, 2005, and awarded workers= compensation benefits to the employee. The employer and insurer appeal. The employee and intervenor cross-appeal from the compensation judge=s rejection of alternate theories of liability. We affirm.
Thomas Zaback received serious personal injuries in a motor vehicle accident on November 25, 2005. There was no significant dispute between the parties as to the facts in this matter, and the sole issue for determination at the hearing was whether the employee was in the course of his employment at the time of his injury.
At the time of his injury, Mr. Zaback had worked for Cowboy Concrete, a company owned by Dan Heiland, for about three years. Before that, he had worked in another company owned by Mr. Heiland for another seven years. Mr. Zaback described himself as a skilled mason in concrete work. Cowboy Concrete did a lot of house additions, and Mr. Zaback would set footings, lay concrete block, and pour concrete floors. He would also build the forms needed for the concrete floor.
The employee lived in St. Bonifacius, Minnesota. The shop of Cowboy Concrete was located in Corcoran, Minnesota. Typically, the employee would drive his personal vehicle from his house to the current work site and did not drive to the company shop. He would bring along his personal tools that he needed for the day. From time to time, Mr. Zaback would use his vehicle to haul or pick up items for the employer. He was paid by the hour for his mason work and was paid extra if he had to do extra work to haul something for the employer.
In the week of November 21, 2005, Mr. Zaback and his coworkers set up the forms for a garage floor in Mendota Heights on Monday and poured the concrete floor for the garage on Tuesday. On Wednesday, the crew set up plywood forms for a project in Victoria, Minnesota. Thursday was Thanksgiving and Cowboy Concrete employees had both Thursday and Friday off. At the end of the day on Wednesday, Mr. Zaback was asked by the foreman, Guy Katopodis, if he could work on Friday. The concrete poured in Mendota Heights needed to be kept warm to cure properly and was kept warm by a heater powered by a portable propane tank. Mr. Zaback was asked to change tanks on Friday so there would be a full one that would keep the heater going. In addition, there was concern that the plywood used on the project in Victoria was not thick enough for the size of the pour and the pour was scheduled for Monday. Mr. Katopodis was going to speak to another employee about getting heavier plywood and delivering it to Victoria. Mr. Zaback would call Mr. Katopodis after he had gone to Mendota Heights to see if the plywood would be in Victoria so he could redo the forms. At first, Mr. Zaback was not sure of working on Friday, but he called Mr. Katopodis on Thursday evening to say he would work.
On Friday morning, Mr. Zaback drove to the shop in Corcoran to pick up the propane tank. The plan had been for him to use a company truck to transport the tank but Mr. Zaback found that truck to be loaded with sand and rather than take the time to unload the company truck, Mr. Zaback placed the tank in his own vehicle. After he did so, he drove to the project in Mendota Heights. Mr. Zaback changed the tanks and leveled out some of the blanketing that was used to keep the concrete warm. He placed the empty tank in his vehicle so that it wouldn=t be stolen and so that it could be taken at some point back to Corcoran.
When Mr. Zaback finished, he left the Mendota Heights site. He still did not know if the plywood had been delivered in Victoria, so he took a route that would be convenient if he went to Victoria or if he went home. Mr. Zaback crossed the Mendota bridge and took the cross-town highway west. In Minnetonka, he transferred to Highway 7 and then drove west on Highway 7. Mr. Zaback had not heard from Mr. Katopodis, so he called him at 11:41 a.m. He was told that it was not known if the other coworker had delivered the plywood to Victoria, and Mr. Zaback was told to go home and have lunch and then check again. During this telephone conversation, the motor vehicle accident occurred when an oncoming vehicle crossed the center lane and struck Mr. Zaback=s pickup. The collision was on Highway 7 just east of St. Bonifacius. It appears that adverse road conditions due to the heavy snow that day were contributing factors in the collision.
For an employee=s personal injury to be compensable, the injury must arise out of and in the course of employment. Minn. Stat. ' 176.021, subd. 1. AIn the course of employment@ generally refers to the question of whether the injury occurs Awithin the time and space boundaries of employment.@ Foley v. Honeywell, Inc., 488 N.W.2d 268, 272 (Minn. 1992). An employee engaged in a special errand for the employer is considered to be in the course of employment from the time the employee leaves home until the time the employee returns. Williams v. Hoyt Constr. Co., Inc., 306 Minn. 59, 237 N.W.2d 339, 28 W.C.D. 101 (1975). The question of whether the injury was in the course of employment is one of fact for the compensation judge. Franze v. Nat=l Delivery Servs., 49 W.C.D. 148 (W.C.C.A. 1993). The question for this court is whether substantial evidence supports the compensation judge=s finding that Mr. Zaback was engaged in a special errand for his employer at the time he was injured.
On appeal, the employer and insurer argue that Mr. Zaback=s claim does not fit within the special errand rule and should be barred as a matter of law. At the hearing and on appeal, the employer and insurer have argued that the date of injury was essentially just another work day for Mr. Zaback. The duties he performed on the date of injury were duties ordinarily done in a work day. As a result, Mr. Zaback=s injuries occurred during his commute home and were not compensable. For authority, the employer and insurer point to the decision in Youngberg v. The Donlin Co., 264 Minn. 421, 119 N.W.2d 746, 22 W.C.D. 378 (1963), in which the court identified one of the criteria for the application of the special errand rule that the task requested of the employee was not one which was regular and recurring during the normal hours of employment. The compensation judge did not accept this argument.
In her memorandum, the compensation judge noted the factors in the evidence she found to be significant:
Since everyone in the company had been given the day off on Friday after Thanksgiving, it is clear that the employee=s agreement to change the propane tank involved a service to be performed outside of regular working hours. In November 2005, the employee lived in St. Bonifacius and had to drive to Corcoran to get a full propane tank and then drive to Mendota Heights to change it before driving home, with or without working for a few hours in Victoria. The drive from St. Bonifacius to Corcoran to Mendota Heights and then back home was an integral part of the service. For the employee, a skilled mason and concrete worker, this task was special and not one he normally performed during work hours. The employer had laborers who are paid far less per hour than the employee made to transport propane tanks, hoses, stakes and other supplies from one job site to another. The testimony of Katopodis and the employee clearly supports the conclusion that the employee agreed to perform a special service on a day everyone else was able to stay home that was not one of his regular job duties.
Such evidence will support a determination that an employee was on a special errand when injured.
Jonas v. Lillyblad, 272 Minn. 299, 137 N.W.2d 370, 23 W.C.D. 659 (1965); Bengston v. Greening, 230 Minn. 139, 41 N.W.2d 185, 16 W.C.D. 137 (1950). We believe the evidence as cited by the compensation judge also satisfies the criteria set out in Youngberg.
We find substantial evidence to support the compensation judge=s conclusion that the employee=s injury occurred while he was on a special errand and was in the course of his employment. The decision of the compensation judge is affirmed.
The employee and intervenor have cross-appealed, seeking a reversal of the compensation judge=s rejection of two other theories of compensability. The employee argued at hearing that he was traveling between two job sites at the time of his injury. He also contended that his claim was governed by the rules set forth in Gilbert v. Star Tribune/Cowles Media, 480 N.W.2d 114, 46 W.C.D. 188 (Minn. 1992), where travel to and from work is covered by workers= compensation if the employee is required to bring a personal vehicle for use during the day. Given our affirmance of the compensation judge=s decision that the employee=s injury was compensable, we need not address these alternate theories.