JAIMETTE BELLMORE, Employee/Appellant, v. MORGAN BUS. TRUST d/b/a EXTENDED FAMILY HOME CARE and AMERICAN HOME ASSURANCE CO./AIG CLAIM SERVS., INC., Employer-Insurer, and PROGRESSIVE DIRECT INS. CO., ST. MARY’S DULUTH CLINIC HEALTH SYS., and MINNESOTA DEP’T OF HUMAN SERVS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 15, 2008
ARISING OUT OF & IN THE COURSE OF - GOING TO AND FROM WORK. Where the compensation judge, in unappealed findings, concluded that while no PCA was expressly required to transport or run errands for clients, the employer did authorize use of the employee’s personal vehicle during the working day for the employer’s purposes, and the employee did, in fact, use her personal vehicle to perform tasks that were part of her job as a PCA, the compensation judge’s determination that the employee’s injuries in a car accident did not arise out of and in the course of her employment is contrary to Gilbert v. Star Tribune/Cowles Media, 480 N.W.2d 114, 114, 46 W.C.D. 188 (Minn. 1992) and is reversed.
Reversed and remanded.
Determined by: Johnson, C.J., Rykken, J., and Pederson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Russell J. LaCourse, LaCourse Law Office, Duluth, MN, for the Appellant. Brian P. Thompson, Johnson & Condon, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that her injuries in a car accident on October 20, 2006, did not arise out of and in of the course of her employment. We reverse and remand for further proceedings.
Jaimette Bellmore, the employee, began working as a personal care assistant (PCA) for Morgan Business Trust d/b/a Extended Family Home Care, the employer, on July 7, 2005. A PCA “performs personal care services to clients unable to live independently in the community without assistance. . . . The PCA works within the guidelines of a plan of care established by the client, physician, and the supervising RN.” (Pet. Ex. C.)
The employer provided a PCA charting/time sheet for each client with a list of duties in a broad range of categories, including bath/ADLSs, bladder/bowel care, ambulation, skin care, meals, activities, and household services. Included under household services was the task of grocery shopping. The PCA was to check each duty after completing the task for the client, sign the form and provide the form to a supervisor for approval.
A PCA with the employer was given the option of transporting clients to medical and other appointments and social activities and running errands for clients, such as picking up medications and grocery shopping. If a client requested a PCA to transport the client or run errands, the PCA could refuse. The employer required its clients to have a back-up person or contingency plan to provide services or run errands in the event a PCA was unavailable. If the PCA did not want to transport a client or run errands for the clients, the PCA was instructed to contact the person named on the client’s contingency plan.
PCAs were paid from the time they entered the client’s home until they left and were paid for the time they spent traveling while transporting clients or running errands for clients. The PCAs were not, however, paid mileage. Jill Knutson-Kaske, the administrator for the employer, testified that all PCAs were expected to have their own vehicle, with insurance and a valid driver’s license. The reason for the requirement, Ms. Knutson-Kaske stated, was to insure the PCA would arrive on time at the client’s home. Ms. Knutson Kaske testified the employer allowed PCAs to run errands for clients because the employer wanted to provide its clients the best service possible. Because other companies did not allow its PCAs to run errands for clients, Ms. Knutson-Kaske stated it was a benefit to the client and the employer to provide this additional service.
Prior to being hired, the employee signed a “Waiver and Assumption of Risk for Client Transportation.” (Pet. Ex. D.) The employer required all PCAs to sign this waiver in order to provide transportation to clients of the employer. In signing Exhibit D, the employee waived and released the employer from any liability for damage or injury connected with the PCA’s transportation of clients. The employee could have refused to sign the waiver, but then could not have used her personal vehicle to transport clients.
Prior to her injury, the employee had been providing care for D.B., a quadriplegic, at her home in Hinckley, Minnesota. The chart notes for D.B. from September 17 through October 20, 2006, reflect several entries for grocery shopping. The employee testified that on several occasions she drove to Sandstone, Minnesota, to go grocery shopping and to a pharmacy to pick up D.B.’s medications. On one occasion, the employee testified, she drove D.B. to a location in Hinckley to cash a check. The employee testified she felt it was part of her job to run errands and transport clients if they asked.
On October 20, 2006, the employee was scheduled to work for D.B. While on route to D.B.’s home, the employee lost control of her vehicle and it rolled over several times. The employee suffered injuries necessitating medical treatment and causing disability. The employee filed a claim petition seeking workers’ compensation benefits. Following a hearing, the compensation judge found the employee failed to prove she sustained a personal injury arising out of and in the course of her employment. Accordingly, the compensation judge denied the employee’s claims for benefits. The employee appeals.
The employee contends it is undisputed that she regularly used her vehicle at work to transport clients, pick up groceries and prescriptions, and generally run errands for clients. The employee asserts the use of her personal vehicle during the working day for the employer’s purposes and benefit creates an exception to the general rule that injuries sustained by an employee traveling to and from work are not compensable. Accordingly, the employee requests that this court reverse the compensation judge’s decision and remand the case to the compensation judge to decide her claim for benefits.
A personal injury is an injury “arising out of and in the course of employment . . . ; but does not cover an employee except while engaged 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. “In the course of employment” generally refers to the question of whether the injury occurs “within the time and space boundaries of employment.” Foley v. Honeywell, Inc., 488 N.W.2d 268, 272 (Minn. 1992).
The general rule in Minnesota is that injuries sustained while traveling to and from work are not compensable under the Workers’ Compensation Act. Swanson by Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989). There are, however, exceptions to the general rule. “The rule excluding off-premises injuries occurring during the trip to and from work does not apply, however, to those situations in which the employee, as a part of the job, is required to bring his or her own vehicle for use during the working day. That fact alone will bring the trip to and from work within the course of employment.” Gilbert v. Star Tribune/Cowles Media, 480 N.W.2d 114, 115, 46 W.C.D. 188, 190 (Minn. 1992). See also Borak v. H. E. Westerman Lumber Co., 239 Minn. 327, 58 N.W.2d 567, 17 W.C.D. 321 (1953). The theory behind the exception is that “the obligations of the job reach out beyond the premises, make the vehicle a mandatory part of the employment environment, and compel the employee to submit to the hazards associated with private motor travel, which otherwise he or she would have the option of avoiding. But, in addition, there is at work the factor of making the journey part of the job, since it is a service to the employer to convey to the premises a major piece of equipment devoted to the employer’s purposes.” 1 A. Larson & L.K. Larson, Workers’ Compensation Law § 15.05 (2007).
In his memorandum, the compensation judge concluded the employee’s “incidental use” of her personal vehicle in carrying out employment duties was not sufficient to qualify for the exception to the general rule under the Gilbert decision. The judge further stated that while “the employee did use her vehicle to run several errands while working for employer’s clients as a personal care assistant, such errands are not sufficient to invoke the exception crafted in the Gilbert case.” (Mem. at 4.) We cannot agree with this rationale for the judge’s decision. Under Gilbert and Borak, the question is whether the employee, as a part of the job, is required or expected to use the employee’s car in connection with the employment. We find no language in Gilbert or Borak either defining or distinguishing between principal employment duties and incidental employment duties. Further, we cannot conclude the task of grocery shopping or picking up prescriptions was any more or less incidental than any of the other duties on the chart sheet. Rather, it would seem the provision of food and medication may be more important and immediate than many of the other itemized duties on the chart notes.
The employee acknowledges the employer did not require her to transport clients or run errands for clients. There is, however, no dispute that the employee and other PCAs did run errands for and transport clients of the employer. When doing so, the PCAs were paid by the employer. Ms. Kaske-Knutson testified the ability and willingness of a PCA to run errands for clients was a service that was of benefit to the employer because it was able to offer such services while other home health care agencies did not. Although not specifically required, the employee asserts the evidence shows the employer clearly anticipated and expected that PCAs would use their private vehicles to run errands for clients. The employee contends the compensation judge focused solely on the question of whether the employer required the employee to use her vehicle to perform her job duties and ignored evidence that the employer expected the employee to have her personal vehicle available to run errands for clients.
In the Borak case, the employee was the manager of a lumberyard whose duties, among others, included making small deliveries of materials. The court noted it was not necessary for Mr. Borak to have a car as a condition precedent to his job as a manager. He did, however, take his car to work almost every day and if it was necessary for him to leave the lumberyard for some duty, he was expected to use his own car if a company car was not available. Mr. Borak was paid mileage when he used his car for business purposes. One morning on his way to work, Mr. Borak died in his garage when attempting to start his car at his home. In awarding compensation, the court stated “as a matter of law decedent used or was expected to use his car almost daily in connection with his employment, we must conclude under the facts and circumstances here that as a practical matter part of his services in connection with his employment was to take his car with him to the lumberyard in order to have it ready when needed. . . . It is our opinion also that such service required his presence in his garage to start his car at the time of the injury and that his accidental death arose out of and in the course of his employment.” Borak at 572, 17 W.C.D. at 329.
In Lieske by Lieske v. Sheriff’s Youth Programs of Minn., slip op (W.C.C.A. Apr. 25, 1995), Mr. Lieske’s duties included the supervision of staff workers and required frequent travel away from the Isanti, Minnesota, facility where he primarily worked. One morning, while on his way from his home to work in Isanti, Minnesota, the employee was killed in a head-on collision. The compensation judge awarded benefits. On appeal the appellants argued the claim was not compensable because Mr. Lieske was not required by the employer to have his own personal vehicle at work as a condition of his employment. This court rejected that argument stating “[n]either Borak nor any other case we have read holds [the Gilbert] exception applies only in situations where an employee is expressly required to use his own vehicle in performance of his work duties.”
There is apparently no dispute that no PCA working for the employer was expressly required to transport or run errands for clients. Clearly, however, the employer authorized its PCAs to do so and such services benefitted the employer. The compensation judge found “it was considered by the company as a service provided to their clients. The employee was expected to keep the employer’s clients happy and to respond to the client’s requests when possible and within the employee’s non-prohibited activities.” (Finding 7, unappealed.) The employer required the employee and all its PCAs as a condition of their employment to have reliable transportation and, anticipating its PCAs would transport clients in a personal vehicle, it required a release of liability before allowing PCAs to do so. (Finding 3, unappealed). Private PCA vehicles were used for client grocery shopping, obtaining prescription medications, and taking clients to social activities, and the employee did use her personal vehicle to perform such services. (Findings 5, 6 unappealed.) The employee testified that it was part of her job and her responsibility to transport clients in her vehicle and run errands when requested to do so by the client.
Three conclusions flow from the compensation judge’s unappealed findings and his memorandum: the employer anticipated and expected the employee to use her personal vehicle to transport or run errands for clients; the employer authorized use of the employee’s personal vehicle during the working day for the employer’s purposes and to the employer’s benefit; the employee did use her private vehicle to perform tasks that were part of her job as a PCA. Since the employee was expected to and did use her personal vehicle in connection with her employment, we conclude the Gilbert exception is applicable here. We, accordingly, reverse finding 9, and remand the case for findings on entitlement to the benefits claimed.
 Compare Wenda v. Olsten Healthcare, slip op. (W.C.C.A. Jan. 14, 1997) where “the only purpose for the employee to use his personal motor vehicle was to travel to the premises where he was to perform his registered nursing services. The employee was not required to use his vehicle in the actual performance of his nursing duties.”