LYNNE DORR, Employee/Appellant, v. NATIONAL MARROW DONOR PROGRAM and CNA INS. CO., Employer-Insurer, and HENNEPIN FACULTY ASSOCS., HENNEPIN COUNTY. MED. CTR., HEALTHPARTNERS, COURAGE CTR., ALLINA MED. CLINICS, ABBOTT NORTHWESTERN HOSP., PROGRESSIVE PREFERRED INS. CO., and LINCOLN NAT’L LIFE INS. CO., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 7, 2010
ARISING OUT OF & IN THE COURSE OF - SPECIAL ERRAND. Where the employee was injured while traveling from her home to give a presentation for her employer outside her normal work days and work hours to a location other than the employer’s premises, her personal injury arose in the course of her employment.
Determined by: Stofferahn, J., Johnson, J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Appellant. Mark A. Kleinschmidt, Cousineau McGuire, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, 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 on November 8, 2008. We reverse.
Lynne Dorr was employed by National Marrow Donor Program [NMDP] on November 8, 2008. NMDP coordinates stem cell and bone marrow transplant programs with a network of donor organizations, collection centers, and treatment facilities. Ms. Dorr was a senior search strategy specialist for NMDP, working in that position since March 2006. She began working for NMDP in November of 2003.
Successful transplants require that donors and recipients have a close match in a blood component known as Human Leucocyte Antigents [HLA]. Ms. Dorr’s duties were to provide HLA expertise to network members in transplant cases and to develop procedures for network members in HLA identification. As part of her job, she also conducted education and training in this subject for NMDP staff and network members. Almost all of her work, including education and training activity, was done on her computer, using the internet.
Ms. Dorr worked at NMDP’s offices in northeast Minneapolis. As a salaried, exempt employee, she did not punch a time clock, but she was expected to keep what her supervisor referred to as “core hours,” working Monday through Friday from 9:00 a.m. to 5:00 p.m. From time to time, because of childcare issues, she was allowed by her supervisor to modify her work time by an hour or so. With two exceptions, Ms. Dorr performed all her duties at the NMDP offices and worked only during her core hours. Ms. Dorr lived in Ham Lake and commuted to NMDP in her personal vehicle.
The two exceptions in her work schedule and work location were due to conferences sponsored by NMDP in the spring and fall of every year that Ms. Dorr was employed there. The conferences, referred to as councils by NMDP, were aimed at NMDP’s network members and consisted primarily of educational seminars with some incidental social activities. Many of the seminars were conducted by NMDP employees. The spring council was typically held in a location away from Minnesota; the 2008 spring council had taken place in Charlotte, North Carolina. The fall council was always in Minneapolis; the 2008 council took place at the Hilton Hotel in downtown Minneapolis. The 2008 fall council started on Friday, November 7, and was scheduled to go through Sunday, November 9, 2008. Over 1,000 people were registered for the 2008 fall council.
Attendance at the councils was not mandatory for NMDP employees. Ms. Dorr had attended some but not all of the councils since her employment began at NMDP and she was a presenter at some but not all of the councils she had attended. For the fall 2008 council, she and a co-worker were scheduled to present a seminar on HLA.
NMDP covered its employees’ expenses in attending a council. Airfare, lodging, and related expenses were paid for the spring conference. Meals and parking for the fall council were provided and if employees chose to stay at the hotel for the conference, that cost would be paid as well. The employer did not pay any mileage to employees for travel to the hotel. Because much of the fall council took place outside of usual working hours, employees were entitled to 7.5 hours of comp time if they attended the Saturday session and 3.5 hours for the Sunday session.
Ms. Dorr’s presentation was scheduled for 8:00 a.m. on Saturday, November 8, 2008. She left her home shortly before 7:00 a.m. in her car, intending to meet her co-presenter at the Hilton at about 7:30 for last minute preparation. Ms. Dorr brought along her notes, the flash drive needed for the Powerpoint presentation, and a printed copy of her material. Because she had the material she needed for the presentation, she was not going to go to the NMDP offices, but was going to travel directly to the Hilton.
Shortly after leaving her home, while she was traveling on Radisson Road in Ham Lake, a deer ran into the road and crashed into Ms. Dorr’s car. In the collision, Ms. Dorr received severe injuries which have left her quadriplegic. The parties have stipulated that Ms. Dorr meets the statutory definition of permanent total disability.
Ms. Dorr filed a claim petition seeking workers’ compensation benefits arising out of her November 8, 2008, personal injury. NMDP and its insurer, CNA Insurance Company, denied primary liability, alleging that Ms. Dorr was not in the course of her employment when she was injured. The claim petition was heard by Compensation Judge Cheryl LeClair-Sommer on September 8, 2009. In her findings and order of January 4, 2010, the compensation judge concluded the employee’s injury was not related to her employment and denied the employee’s claim. The employee appeals.
STANDARD OF REVIEW
When a compensation judge’s findings of fact are reviewed by this court, those findings are to be affirmed unless they are unsupported by substantial evidence in view of the entire record. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). In the present case, however, there was no dispute between the parties as to the facts in this case; the dispute was over the legal conclusion to be drawn from the facts. The role of the compensation judge in this case was to apply the statute to these undisputed facts to arrive at a legal conclusion on the issue of whether the employee was in the course of employment when she was injured. Accordingly, this court does not defer to the compensation judge’s legal conclusions and we consider the question of law de novo. Varda v. Northwest Airlines Corp., 692 N.W.2d 440, 65 W.C.D. 92 (Minn. 2005).
The employer argues that deference should be given to the “inferences” drawn by the compensation judge from the evidence and cites to Gibberd v. Control Data Corp., 424 N.W.2d 776, 40 W.C.D. 1040 (Minn. 1988). This is a misreading of Gibberd. The compensation judge in Gibberd had made findings as to whether or not the employee’s employment had exposed him to a greater hazard of assault than if he had been pursuing ordinary personal affairs. The Gibberd court found the Workers’ Compensation Court of Appeals had improperly disregarded the compensation judge’s factual findings on that question. Again, in the case before us, the issue is how, on the basis of the uncontroverted facts, the statute should be applied.
An employee’s personal injury is within the scope of the Workers’ Compensation Act if it arises out of and in the course of employment. Minn. Stat. § 176.021, subd. 1. Further, the statute does not provide coverage for 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. Generally, an employee is not in the course of employment during the commute from home to the employer’s premises and a personal injury which occurs during the commute is not compensable. Kahn v. State, Univ. of Minn., 289 N.W.2d 737, 32 W.C.D. 351 (Minn. 1980); Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989). There are a number of exceptions to this general rule and we conclude the “special errand” exception applies in this matter. Ms. Dorr was in the course of her employment with NMDP when she was injured on November 8, 2008, in that she was on a special errand on behalf of her employer. Her injury is covered by workers’ compensation.
The Minnesota Supreme Court has considered the special errand exception in a number of decisions over the past several decades. One of the first decisions to consider this question is Reese v. National Surety Co. of N.Y., 162 Minn. 493, 203 N.W. 442, 3 W.C.D. 66 (1925). In Reese, the employee worked at an office in downtown Minneapolis and lived in St. Paul. He was asked by his supervisor to take a statement from a person in north Minneapolis after normal working hours. After returning from doing so, he was injured when struck by a car in downtown Minneapolis while in the process of catching a streetcar to go home. The court, considering a statute which was essentially the same as Minn. Stat. § 176.011, subd. 16, found the employee’s injury to be compensable, stating the “claimant was, at the time of his injury, where his duties called him.” 203 N.W. at 433.
The special errand exception was set out specifically in Nehring v. Minnesota Mining & Mfg. Co., 193 Minn. 169, 258 N.W. 307, 8 W.C.D. 321 (1935). The employee in that case, an electrician who normally worked at the employer’s factory, was killed in a motor vehicle accident when he was returning home after having been called in on a Sunday to replace a fuse. The court noted that “generally, an employee’s commute is not in the course of employment. But if, while so off duty from his regular employment, he is called to do an errand or sent out on a mission by the employer, the courts which have spoken on the subject hold it a special service begun when the employee leaves his home, or the place where the call comes to him, and ended only with his return.” 258 N.W. at 308. The employee’s death was held to have occurred while he was in the course of employment.
In accord is Bengson v. Greening, 230 Minn. 139, 41 N.W.2d 185, 16 W.C.D. 137 (1950) in which the employee, a bookkeeper who usually worked Monday through Friday, was asked by her employer to go in to the office on Saturday. She was injured when she fell on her property before she actually entered her house. The court found coverage, holding that the special errand trip was not over until the employee was in her home where the trip had started.
No specific request by the employer was made to the employee in Jonas v. Lillyblad, 272 Minn. 299, 137 N.W.2d 370, 23 W.C.D. 659 (1965). The employee was a maintenance man who was generally responsible for the boiler in a hotel owned by his employer. The employee went from his home to the hotel after his usual working hours to run the boiler because he believed it necessary given the weather conditions. He was injured on his way back home. Coverage was found by the court.
The employee was directed to attend a convention in Ward v American Legion Edward B. Cutter Post 102, Anoka, 286 81, 174 N.W.2d 325, 25 W.C.D. 91 (1970). The employee’s expenses in doing so were reimbursed but there is no indication that his mileage was to be paid. He was held to be on a special errand for the employer from the time he left home until the time he returned home and the personal injury he sustained in an automobile accident on the way home was held to be covered by workers’ compensation.
In Lundgaard v. State, Dep’t of Public Safety, 306 Minn. 421, 237 N.W.2d 617, 28 W.C.D. 237 (1975), the employee was injured on her way home after traveling out of town to deliver a lecture on behalf of her employer. The court held her injury was in the course of employment. “The evidence in this case indicates that Lundgaard’s journey was entirely an errand of the employer.” 237 N.W.2d at 619.
The special errand exception has been considered by this court as well. In Benson v. Independent Sch. Dist. #51, 63 W.C.D. 607 (W.C.C.A. 2003), the court upheld a compensation judge’s factual finding that a teacher’s attendance at parent conferences in the evenings was a regular and recurring employment task so as to make a drive to the school for the conferences a commute and not a special errand.
In Zaback v. Cowboy Concrete, 67 W.C.D. 331 (W.C.C.A. 2007), this court held that an employee was engaged in a special errand for his employer where he was performing duties outside of his normal work hours and was performing duties he ordinarily did not do.
There are limits to the special errand exception of course. The supreme court found the special errand rule did not apply to an on-call employee who had no fixed hours of employment and who was injured while traveling to the employer’s premises after having been called in to come in and go to work. Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989).
In Youngberg v. Donlin Co., 264 Minn. 421, 119 N.W.2d 746, 22 W.C.D. 378 (1963), the court rejected the argument that playing on an employer’s sponsored bowling team was a special errand for the employer. The court in Youngberg also identified a number of cases in which special errands had been found. The employer argues that Youngberg set out criteria which must be followed in all special errand cases and that the employee’s claim does not meet these criteria. We disagree. First, we do not believe that Youngberg meant to set out binding criteria since we note that subsequent considerations of the special errand exception by the court do not refer to any such criteria. Further, we find the present case to be consistent with the cases referred to in Youngberg: 1) there was an express or implied request that the service be performed after working hours by an employee who has fixed hours of employment; 2) the trip involved on the errand was an integral part of services performed; and 3) the work performed, although related to the employment, was special in the sense that the task requested was not one which was regular and recurring during the normal hours of employment.
Our conclusion is based on a number of facts here. The employee’s injury occurred outside of her normal work days and normal work hours. The employer contends that as an exempt employee, Ms. Dorr did not have fixed hours, but the evidence is that her usual work hour schedule was Monday thorough Friday from 9:00 a.m. to 5:00 p.m. Modification of that schedule required approval from her supervisor. Her trip on Saturday morning, November 8, 2008, was occasioned solely by the employment relationship. In the words of the court in Reese, the employee was where her duties called her.
Ms. Dorr always performed her services for the employer at the office in northeast Minneapolis. Her trip on November 8, 2008, was not to that location but was to a hotel in downtown Minneapolis where a conference was being held. Attendance at the councils was not mandatory and not a regular and recurring part of her job. Ms. Dorr did not attend all the councils held during her employment. While Ms. Dorr’s usual duties had an educational component, the presentation of a live educational seminar to attendees at the fall conference was not part of her usual duties.
Ms. Dorr was not to be paid mileage for her travel to the Hilton but while this factor is noted, it is not determinative. To hold otherwise would mean that the employer could avoid liability in any special errand case by simply refusing to pay mileage expenses. While the court in Lundgaard noted that the employee’s mileage was to be paid by the employer, none of the cited cases otherwise even comment on this point. Given the balance of the evidence, we decline to find there was no a special errand on the basis of mileage reimbursement alone.
Given our decision here, we will not address the employee’s argument that she was a traveling employee and thus was in the course of her employment on a portal to portal basis. See Doyle v. Kraft Foods, Inc., slip op. (W.C.C.A. Feb. 19, 1998). We will also not address the question of whether Ms. Dorr was in the course of her employment under Gilbert v. Star Tribune/Cowles Media, 480 N.W.2d 114, 46 W.C.D. 188 (Minn. 1992), where a personal injury arising out of an employee’s use of his vehicle is in the course of his employment where the use of the vehicle was required by the job duties. Cf. Sweep v Kraus Anderson Constr., 63 W.C.D. 259 (W.C.C.A. 2003), (affirming a compensation judge’s findings that it was not necessary for employee, a carpenter, to transport his personal tools to the employer’s work site).
The compensation judge’s decision that Ms. Dorr was not in the course of her employment when she was injured on November 8, 2008, is reversed.