MICHAEL J. BURLINGAME, Employee/Appellant, v. BECKER BROS., INC., and BUILDERS & CONTRACTORS SIG FUND/MIG and MEADOWBROOK INS. GROUP - BCWCF, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 2, 2011
ARISING OUT OF & IN THE COURSE OF - GOING TO AND FROM WORK. Where the employer provided the employee with a company van expressly to haul materials, supplies, and equipment to job sites, the injuries the employee sustained in an accident occurring on his way home from a job site arose out of and in the course of his employment.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Arbitrator: John G. Brian III
Attorneys: James E. Lindell, Lindell & LaVoie, Minneapolis, MN, for the Appellant. Craig B. Nichols and Nicholas J. Micheletti, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the arbitrator’s conclusion that the employee’s injuries did not arise out of and in the course of his employment. We reverse.
The employee is a journeyman carpet installer, or floor coverer, who has worked for Becker Brothers, Inc. [the employer], since 1986. After several years of employment there, the employee became a lead man or foreman, running flooring projects for the employer in various locations, primarily in the Twin Cities metropolitan area. The employer’s carpet installers, including the employee, are union, and many of the terms and conditions of their employment are governed by a collective bargaining agreement.
The employee generally worked at fifteen to twenty-five jobs sites a month. The employer provided the employee with a company-owned vehicle, a full-sized cargo van, which he drove to and from work. Nearly every day, the employee drove to the employer’s shop to pick up necessary supplies, materials, and equipment, either in the early morning before work or on the night before a job. The employee also hauled waste material from the job site back to the employer’s shop for disposal, and he at times drove other workers from the shop or a park and ride lot to the job site. The employer paid for fuel, but the employee and other foreman with company vans paid the employer $25.00 a week as partial reimbursement for travel costs. The company vans were not as a rule to be used for personal errands. In addition to company equipment, supplies, and materials, the employee carried his own hand tools in the van, which was kept parked at his home overnight.
The employee was not paid for travel time between his home and the job site or the employer’s shop, and he was not paid for his time while loading supplies, equipment, and materials into the van at the employer’s shop. Rather, he was generally paid only for his time at the job site. Under an exception to this policy, he was compensated for travel time between job sites if his work required him to visit more than one site in a given day.
On the evening of October 14, 2009, the employee drove the company van to the employer’s shop to pick up the materials he would need for a project at a school in Princeton, Minnesota, the following day. On October 15, 2009, after working at the Princeton site for about six hours, the employee loaded up his tools and began his trip home. On that trip home, the employee was involved in a motor vehicle accident. Due to his resulting injuries, he has not worked for the employer since that date.
The matter came on for hearing before an arbitrator on May 13, 2010. The primary issue was whether the employee’s injuries from the October 15, 2009, accident arose out of and in the course of his employment. Witnesses included the employee; Raymond Gracie, another foreman working for the employer; Charles Becker, the company president; and Jeffrey Moga, the employer’s warehouse manager and the employee’s supervisor. Documentary evidence included the accident report, the applicable collective bargaining agreement and addendum, and a list of tools lost by the employee in the accident.
In a decision issued on July 1, 2010, the arbitrator concluded that the employee’s travel between the Princeton job site and his home on October 15, 2009, was governed by the “coming and going” rule and that, as such, the employee’s injuries did not arise out of and in the course of his employment. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the 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 (2008). Substantial evidence supports the findings if, in the context of the entire record, “they 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, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of 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 Minnesota, injuries suffered by an employee while commuting to or from work are generally not compensable. See Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989); Kahn v. State, 289 N.W.2d 737, 32 W.C.D. 351 (Minn. 1980). There are, however, a number of exceptions to this general rule. The arbitrator in the present matter considered but ultimately rejected the employee’s arguments as to the applicability of some of these exceptions and concluded that the injuries the employee sustained while travelling home after work on October 15, 2009, did not arise out of and in the course of his employment.
On appeal, the employee argues in part that the arbitrator erred in concluding that the employee was not a “traveling employee,” under case law, so as to afford the employee workers’ compensation protection during his trips between job sites and his home. See, e.g., Voight v. Rettinger Transp., 306 N.W.2d 133, 33 W.C.D. 625 (Minn. 1981); O’Connor v. Biagini Bros., Inc., 28 W.C.D. 69 (W.C.C.A. 1975). The employee also argues, in the alternative, that the arbitrator erred by failing to find the employee’s injuries compensable under the Minnesota Supreme Court’s holding in Gilbert v. Star Tribune/Cowles Media, 480 N.W.2d 114, 46 W.C.D. 188 (Minn. 1992). We agree that the principles discussed in Gilbert and related cases are applicable here.
The employee in Gilbert was a newspaper carrier who was expected to assemble the employer’s newspapers at a paper depot and then deliver the papers along a designated route. He worked early mornings and was required to furnish a reliable motor vehicle to accomplish his job. Carriers were not paid for travel from home to the paper depot or from the last delivery site back home again. The employee was injured in a motor vehicle accident while on his way from home to the paper depot, prior to beginning his route.
The supreme court began its analysis by noting the general rule that injuries sustained by workers while regularly commuting to and from work are not compensable. However, the court nevertheless concluded that the employee was entitled to benefits, explaining as follows:
The rule excluding off-premise injuries occurring during the trip to and from work does not apply, however, to those situations in which the employee, as 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. Borak v. H.E. Westerman Lumber Co., 239 Minn. 327, 58 N.W.2d 567 (1953), cited in 1 Larson, The Law of Workman’s Compensation, § 75.50 n. 40, 41 (1991); Ricke v. Park Const. Co., 40 Minn. Workers’ Comp. Dec. 749 aff’d without opinion, 419 N.W.2d 75 (Minn. 1988).
According to Professor Larson, the theory behind this rule is related in part to the concept 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 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 Larson, supra, at 4-249.
In the matter currently before us, where the employee was required to bring his own vehicle to work for use in the performance of his job duties, his accident arose out of and in the course of employment.
Gilbert, 480 N.W.2d at 115, 46 W.C.D. at 190 (emphasis added).
The arbitrator considered Gilbert and related cases, finding “the important factor [in these cases to be] the need for the employee to have a vehicle on the job to perform aspects of his or her duties such as delivering newspapers in Gilbert.” The arbitrator then discussed the case of Vu v. Waconia Ford Mercury, 62 W.C.D. 6 (W.C.C.A. 2001). While not expressly saying so, the arbitrator apparently found Vu instructive for purposes of evaluating the employee’s claim. We conclude, however, that Vu is distinguishable.
The employee in Vu was a service manager of an automobile dealership, who was expected to have his employer-provided vehicle at work each day. He had apparently elected to have the use of the vehicle in lieu of other, additional compensation. His injuries occurred when his car slid off the road while he was travelling home after the conclusion of his work day. In finding Gilbert inapplicable, this court observed that the employee “did not perform the principle tasks of his job in his vehicle.” 62 W.C.D. at 12. Noting also that the employee’s use of the vehicle was not required by the employer, and that the vehicle itself was not an element essential to the performance of the employee’s job, we found the connection between the employee’s use of the vehicle and the employee’s work too remote to support a finding of compensability. Id. at 12-13.
We acknowledge that Vu and the present matter are similar in some respects. That is, use of a company vehicle was permissive as opposed to mandatory, and use of the vehicle was a convenience to the employees. However, there is a crucial difference between the two cases, in that the employee in the present matter was provided with the cargo van expressly to transport necessary tools, materials, and employer-provided equipment to job sites around the Twin Cities. In other words, transporting these materials and tools was an integral part of the employee’s job as a foreman. That being the case, the employee’s travel to a job site constituted a “business service of sufficient dimensions” to bring injuries occurring during the trip into the course and scope of the employee’s employment. See 1 Arthur Larson & Lex Larson, Larson’s Workers’ Compensation Law § 16.09[b] (2010). The fact that the employer did not compensate the employee for his travel time is not determinative. Cf., Sandmeyer v. City of Bemidji, 281 Minn. 217, 161 N.W.2d 318, 24 W.C.D. 622 (1968) (the fact that the employee was not on duty or being paid when injured was not dispositive of the question of compensability). The employee was not compensated for time spent loading and unloading the van at the employer’s shop, either, but few would argue that an injury sustained during such activity would fall outside of the course and scope of the employee’s employment.
In Hoffman v. Hamernick Painting Co., slip op. (W.C.C.A. Aug. 10, 1993), this court concluded that, pursuant to Gilbert, the injuries that the employee sustained during a trip from home to a job site were compensable where he was “required to have his own truck in order to transport the employer’s equipment and supplies.” Id. at 5. While the employee in the present matter was driving a company van, rather than his own vehicle, the rationale of Hoffman is nevertheless applicable. Because the employee was conveying essential equipment and supplies for the employer, his travel was part of his service, and his injuries, occurring during that travel, are compensable. We therefore reverse the arbitrator’s decision on this issue.
 The dispute in this matter was heard by an arbitrator pursuant to Minn. Stat. § 176.1812. Such decisions are reviewable by this court “in the same manner as an award or order of a compensation judge.” Id. at subd. 1(a).
 The employee testified that he needed the car to run parts and transport customers, if necessary. Conflicting testimony was offered as to the employee’s use of the car in this manner, but it was undisputed that he was required to have the car at work in order that it be available for sale.
 Mr. Moga, the employer’s warehouse supervisor, testified as follows on this issue:
We provided vans to several installers to haul materials to job sites. We have many carpet installers and some of the jobs are smaller than the larger projects, so it’s easier to put the materials in a van. And it’s a convenience for us and them to haul the material in the van.
 The employee testified that, prior to obtaining use of the company van, he had used his own truck for the same purposes.