GESINA R. BEUKES, Employee/Appellant, v. DIVINE HEALTHCARE and WESTERN NAT’L INS. GROUP, Employer-Insurer, and SUMMIT ORTHOPEDICS, BLUE CROSS BLUE SHIELD OF MINN., LANDMARK SURGERY CTR., ASSOCIATED ANESTHESIOLOGISTS, ST. PAUL/MIDWEST RADIOLOGY, and FAMILY HEALTH SERVS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 5, 2010
ARISING OUT OF & IN THE COURSE OF - TRAVELING EMPLOYEE. Where the employee, a visiting nurse, stopped at a service station to use the restroom while traveling between patient appointments, walking across the gas station to access the ATM was not an activity that took her out of the course of her employment.
Determined by: Stofferahn, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Danny P. Kelly
Attorneys: Gesina Buekes, pro se Employee; Michael D. Miller and Jeffrey R. Homuth, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents.
DAVID A. STOFERAHN, Judge
The employee appeals from the compensation judge’s determination that she was not in the course of her employment at the time of her personal injury. We reverse.
Gesina Beukes, the employee, sustained a personal injury involving both knees on February 19, 2008. The single issue at the hearing was whether Ms. Beukes was in the course of her employment with Divine Healthcare when she was injured.
In February 2008, Ms. Beukes worked as a visiting nurse for Divine Healthcare. Her duties included providing medication and wound care for patients as well as supervising the work of home health aides or personal care attendants. The services were provided at patients’ homes. Ms. Beukes generally saw between three and five patients each day. She was a salaried employee and used her personal vehicle for making calls. She was reimbursed for the use of her vehicle.
Ms. Beukes testified that she typically would not use the patients’ bathrooms when she was out making calls but would use a restroom at a gas station when necessary. She described her practice as being meant to avoid cost and inconvenience for her patients.
On February 19, 2008, Ms. Beukes had two patients to visit. Her first stop was at a home on Thomas Avenue in St. Paul. After completing that visit, before proceeding to the next appointment, she drove to a SuperAmerica gas station to use the restroom. Her second scheduled patient visit was at a location on Lafayette Avenue in St. Paul. The gas station was on Payne Avenue and was not on the direct route between the two patients’ homes. Ms. Beukes testified she drove to this particular gas station because she had been there before and the restroom was clean.
When Ms. Beukes arrived at the station, she found the restroom was in use. As she was waiting, she noticed an ATM on the other side of the room. Ms. Beukes testified that she was using a rental car that day because her car was in the garage for repairs. She thought she would probably need cash at the end of the day to put gas in the rental car before she turned it in. As she walked over to the ATM, she tripped over some cases of soda pop and fell, landing on her knees. Ultimately, Ms. Beukes required two surgeries for her knee injury and she was still treating for her condition as of the time of the hearing.
Ms. Beukes filed a claim for workers’ compensation benefits arising out of her personal injury. Divine Healthcare and its insurer, Western National Insurance Group, denied liability for the claim. They alleged that Ms. Beukes’s departure from the direct route between the patient visits constituted a personal deviation that took her out of the course of employment.
The employee’s claim was heard by Compensation Judge Danny P. Kelly on October 7, 2009. In his findings and order, the compensation judge denied the employee’s claim. He concluded that her trip to the gas station to use a restroom was not a deviation from employment but that her “personal errand” to use the ATM took her out of the course of employment. The employee appeals.
An employee’s personal injury is not covered by workers’ compensation unless the employee is “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. For most employees, the premises where their services are required are the employer’s premises. When a substantial part of the employee’s services is away from the employer’s premises, the employee is characterized as a traveling employee and is considered to carry the employer’s premises along with him or her while engaged in the employer’s business. Cavilla v. Northern States Power Co., 213 Minn. 331, 6 N.W.2d 812, 12 W.C.D. 429 (1942). As a result, the general rule is that a traveling employee is under continuous workers’ compensation coverage from the time the employee leaves home until the time the employee returns. Voight v. Rettinger Transp. Inc., 306 N.W.2d 339, 33 W.C.D. 625 (Minn. 1981).
The employer and insurer do not dispute that Ms. Beukes was a traveling employee or that, as a result, she was in the course of her employment during her visits to patients’ homes. At the hearing, the employer and insurer claimed that the employee’s trip to use the restroom at the SuperAmerica station was a detour from the most direct route between the homes of the two patients Ms. Beukes was visiting that day. It was argued that the three mile trip using the direct route became a 5.1 mile trip because of the detour. The employer and insurer contended that this was a substantial detour which took Ms. Beukes out of the course of her employment.
The compensation judge did not accept the position of the employer and insurer and decided that the employee’s trip to the gas station to use the restroom for personal comfort was reasonable and that the employee was in the course of her employment when she did so. However, the compensation judge concluded that the employee departed from her employment. We conclude the compensation judge erred in this conclusion.
First, this conclusion does not take into account the coverage afforded for a traveling employee. The compensation judge stated that the walk across the station was a personal errand but reasonable personal activity by a traveling employee remains within the scope of workers’ compensation. Citing to Epp v. Midwestern Mach., 296 Minn. 231, 108 N.W.2d 87, 26 W.C.D. 703 (1973), this court stated “so long as a worker is engaged in reasonable activity for his personal enjoyment or recreation when he is not otherwise engaged in his regular employment activities, he is protected if he is considered to be a ‘traveling employee.’” Doyle v. Kraft Foods, Inc., slip op. (W.C.C.A. Feb. 19, 1998). In Voight, the court contrasted reasonable activity with “those which are clearly unanticipated, unforeseeable, and extraordinary.” 306 N.W.2d at 138, 33 W.C.D. at 633. We conclude that walking across a room to use an ATM in a gas station while waiting to use a restroom in the gas station cannot be characterized as anything other than reasonable activity.
Second, the employee testified that she was getting cash from the ATM so that she could put gas in the rental car before she returned it at the end of the day. When an employee, as part of her job, is required to bring her own vehicle for use during the working day, an injury which occurs during the use of that vehicle is compensable. Gilbert v. Star Tribune, 480 N.W.2d 114, 46 W.C.D. 188 (Minn. 1992). This court has applied what has become known as the Gilbert doctrine to the maintenance of the personal vehicle in a situation in which an employee was injured while trying to start a stalled vehicle. Hoffman v. Hammernick Painting Co., slip op. (W.C.C.A. Aug. 10, 1993).
On appeal, the employer and insurer have challenged the employee’s stated reasons for using the ATM but there is no evidence to contradict her testimony. Here, where the employee was getting cash to buy gas for the vehicle she needed to use for work, the employee’s injury is compensable under Gilbert.
In arguing that the employee’s injury occurred during a personal deviation from employment, the employer and insurer cite to this court’s decision in Butler v. Hennepin Co. Home School, slip op. (W.C.C.A. Feb. 6, 1995). In Butler, the employee, who was employed as an account clerk, was required to go to a bank to make deposits and withdrawals. She was injured while in the parking lot of a restaurant not in the direct route to the bank. This court upheld a determination that the employee was not in the course of her employment when injured. We note, however, that Butler was not a traveling employee but was instead on a special errand and as such the coverage may not extend to a personal detour. See, for example, Markovich v. Dahl Contractors, Inc., slip op. (W.C.C.A. June 14, 1990).
The decision of the compensation judge is reversed.