BRADLEY J. KATZENBERGER, Employee/Appellant, v. KELLY RAPH d/b/a RAPH CONSTR. and ACUITY MUT. INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 14, 2011
ARISING OUT OF & IN THE COURSE OF - GOING TO AND FROM WORK. Where neither party testified definitively as to any mutual understanding regarding the purpose behind the car pooling, where the employee, who had no driver’s license, apparently rode to and from work with the employer only to and from the last of several job sites and only over the course of the three-week period preceding his injury, and where there was no testimony suggesting that the car pooling was for the convenience or economic benefit of the employer, the compensation judge’s conclusion that the employee failed to establish that transportation to and from work was regularly furnished to him as a condition of his employment was not clearly erroneous and unsupported by substantial evidence.
ARISING OUT OF & IN THE COURSE OF - SPECIAL ERRAND. Where the employee contended that he was acting in good faith to further the employer’s interests when he was injured while surveying an alternative job site on his way home from work with the employer, and where the judge opted to credit instead the employer’s position that he did not ask or expect the employee to do anything on the alternative site, the compensation judge’s conclusion that there was no business value to the employer in the employee’s activity at the time of the employee’s injury was not clearly erroneous and unsupported by substantial evidence.
Pederson, J., Johnson, J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: Jake R. Jagdfeld, Goldenberg & Johnson, Minneapolis, MN, for the Appellant. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s determination that his personal injury did not arise out of and in the course of his employment. We affirm.
The employer in this case, Raph Construction, is a homebuilding and remodeling company owned and operated by Kelly Raph. Mr. Raph conducts the business from his home in Emily, Minnesota, located about forty miles north of Brainerd. In addition to working as a laborer himself, Mr. Raph typically employs a crew of two to three employees. In 2007, Raph hired Bradley Katzenberger [the employee], a longtime friend, as a member of his crew. The employee’s employment history included work in the construction trade, including commercial roofing and ten years of curb and gutter concrete work. When hired by Mr. Raph, the employee had not had a driver’s license for many years. The employee testified, however, that he was able to arrange the necessary transportation to and from work.
On April 23, 2009, while still working for Raph, the employee sustained an injury to his left heel. Medical treatment for that injury included an open reduction and internal fixation of a left calcaneal fracture. He was off work for a year and returned to work for Raph around the end of April 2010.
Upon his return to work, the employee worked at a jobsite near Backus, Minnesota. At that time, the employee was also living in Backus. The project involved building a new house on an existing foundation, including a deck in both the front and the back of the house. Raph did not handle the plumbing, heating, or electrical work, and, because this job also called for the application of seamless aluminum siding, he did not handle the siding portion of the job either. By the Fourth of July holiday, Raph Construction had completed most of the outside work on the house, including “framing up” the decks. The decking itself could not be installed until the siding contractor had completed installing the siding and soffits.
Following the holiday, Mr. Raph shifted his crew to a worksite on Big Sand Lake, near Nevis, Minnesota. This site is about an hour’s drive from Backus, and, because of the distance from both Emily and Backus, Raph offered his crew rides to and from this jobsite. The employees were not required to use the offered transportation and on occasion drove separately. Raph testified that the commute to Nevis took him right by the employee’s house, so he picked the employee up each morning and dropped him off at the end of the day. The transportation offered by Mr. Raph was just for the Nevis worksite. Employees were not paid during the travel time, and they did not pay Raph for any fuel expenses.
On July 29, 2010, after completing the work shift in Nevis, Mr. Raph decided to stop at the Backus site on the commute home. He wanted to check on the status of the electrical work so that his crew could begin insulating the interior walls and ceilings. While Raph was speaking with the electrician, the employee and his two co-workers also stepped out of the truck. The employee proceeded to walk through the house and out onto the back deck, which had been framed up and covered temporarily with sheets of plywood. While on the deck, the employee stepped onto a loosely attached board that gave way, causing him to fall about seven feet onto a concrete patio. As a result of the fall, the employee fractured his right calcaneous and has not returned to work since that time. On the date of his injury, the employee was fifty-three years old and was earning an hourly wage of $15.00.
The employer and insurer denied liability for the employee’s injury, and on September 2, 2010, the employee filed a claim petition seeking payment of temporary total disability benefits continuing from July 30, 2010, as well as payment of medical and rehabilitation benefits.
The employee’s claims came on for a hearing before a compensation judge on January 11, 2011. The primary issue for the judge’s determination was whether the employee’s injury arose out of and in the course of his employment. In an opening statement of the issues on behalf of the employee, counsel for the employee stated in part that it was the employee’s position that he was injured while being transported home from work by the employer and therefore remained in the course and scope of his employment. He contended also that the employee was acting in furtherance of the employer’s interest at the time of his injury.
Evidence introduced at hearing included the employee’s medical records and testimony from the employee and Kelly Raph. The employee testified that, before working in Nevis in July 2010, it was not common for him to receive transportation to and from work from his employer. He testified also that it was his understanding that one of the reasons for their stopping at the Backus site was to check to see if the decking had been delivered to complete the deck work. It was while looking for the decking material in the rear of the house, the employee testified, that he sustained his injury. Raph testified that the only reason for stopping at the Backus jobsite was to talk with the electrician. He testified that he did not instruct the employee, or anyone else, either to look for decking material or to perform any work at that time. With respect to the commute to Nevis, Raph testified that the decision to “carpool” was a matter of convenience and a way to save on gasoline.
In a Findings and Order issued March 10, 2011, the compensation judge found that the employer was not regularly furnishing transportation to the employee at the time of the employee’s injury and that the injury here did not arise out of and in the course of the employee’s 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 (2010). 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).
“Every employer . . . is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment.” Minn. Stat. § 176.021, subd. 1. A “personal injury” is an injury sustained while 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 injury and during the hours of that service.” Minn. Stat. § 176.011, subd. 16. The phrase “arising out of” requires evidence of a causal connection between the injury and the employment, while the phrase “in the course of employment” requires that the injury occur within the time and space boundaries of employment. Foley v. Honeywell, Inc., 488 N.W.2d 268, 271-72 (Minn. 1992) (citing Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). Whether an injury arose out of and in the course of employment is generally a question of fact for the compensation judge, Franze v. National Delivery Serv., 49 W.C.D. 148, 155 (W.C.C.A. 1993), and the burden of proof is on the employee, Minn. Stat. § 176.021, subd. 1.
The issue here on appeal is whether the compensation judge’s determination that the employee’s injury did not arise out of and in the course of his employment is clearly erroneous and unsupported by substantial evidence. Normally an injury sustained during an employee’s commute to or from work is not compensable under the Workers’ Compensation Act. See, e.g., Goff v. Farmers Union Accounting Serv., 308 Minn. 440, 241 N.W.2d 315, 28 W.C.D. 372 (1976); Lehn v. Kladt, 312 Minn. 557, 250 N.W.2d 846, 29 W.C.D. 347 (1977). Here, the employee argues that he was in the course of his employment at the time of his injury under an exception to that general rule.
Minnesota Statutes section 176.011 provides, in part “Where the employer regularly furnishe[s] transportation to employees to and from the place of employment, those employees are subject to this chapter while being so transported.” Minn. Stat. § 176.011, subd. 16. This provision has been interpreted to require that the employer-furnished transportation be regularly furnished to the employer’s employees as passengers in vehicles driven under the direction and control of the employer, “pursuant to an understanding or agreement, expressed or implied, that ‘being so transported’ was a condition of the employment relationship.” McConville v. City of St. Paul, 528 N.W.2d 230, 232, 52 W.C.D. 258, 260 (Minn. 1995), quoting Bonfig v. Megarry Bros., Inc., 294 Minn. 180, 182, 199 N.W.2d 796, 798, 26 W.C.D. 321, 324 (1972). The employee argues that the compensation judge erred in finding that transportation was not regularly furnished as a condition of employment, contending that transportation was regularly furnished to all employees to and from the Nevis worksite every day during a multi-week project. We are not persuaded.
In concluding that the employee did not receive regularly furnished transportation, the judge found at Finding 10 as follows:
Kelly Raph offered transportation to his employees while working at the Nevis, Minnesota, worksite. Kelly Raph drove his truck and offered his employees a ride to work because the Nevis, Minnesota, worksite was an hour’s drive from Backus, Minnesota. The employees did not have to use the offered transportation, and some employees did not take the offered transportation on occasion. Employees were not paid for travel time. Employees did not pay Kelly Raph for any fuel used in travel to and from the Nevis, Minnesota, worksite. The transportation offered by Kelly Raph was just for the Nevis, Minnesota, worksite. Using the employer offered transportation was not a condition of employment. The offered transportation was for the benefits of the employees. The employer offered transportation was not an incident of employment.
The burden of establishing that transportation was regularly furnished as an incident or condition of employment is upon the employee. Hardware Mut. Cas. Co. v. Ozmun, 217 Minn. 280, 14 N.W.2d 351, 13 W.C.D. 164 (1944). Although no formal contract is required for Minn. Stat. § 176.011, subd, 16, to apply, both the employer and the employee must contemplate and understand that the employer will transport the employee to and from the workplace. Gehrke v. Weiss, 204 Minn. 445, 448-49, 284 N.W. 434, 436, 10 W.C.D. 424, 427 (1939). While the record is not explicit on this point, neither the employee nor the employer testified to any mutual contemplation or understanding about transportation to and from the workplace. The only evidence adduced by the employee was that during the approximately three weeks that he worked at the Nevis job he received a ride to and from work from the employer. There was no testimony offered that the furnishing of transportation to the employee was either at the direction of the employer or for the employer’s convenience and economic benefit. On the contrary, the credited testimony in this case sustains the finding that transportation solely to the Nevis site was provided by the employer as an accommodation to, and for the economic benefit of, the employees.
Admittedly, “there is an obvious legislative purpose in treating an employer-operated vehicle as an extension of the workplace.” McConville v. City of St. Paul, 528 N.W.2d at 232, 52 W.C.D. at 261. The reason for this, as explained by Professor Larson, is that, when transporting the employee, the employer is the one who is most in control of the risks during the employee’s commute. See 1 A. Larson and Lex K. Larson, Larson’s Workers’ Compensation Law, § 175.01,  and  (2006). The fact remains, however, that the legislature did not intend to cover an employee’s commute to work in every circumstance where an employer provides a ride. On the record presented here, where the employer neither directed that the employee use the transportation nor benefitted by its provision, and where the transportation was provided for only one jobsite over a several-year employment relationship, the judge’s finding that the employee failed to establish that transportation was regularly furnished as a condition of his employment is supported by substantial evidence. Therefore the judge’s decision on this issue is affirmed. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
The employee argues also that, when he was injured at the Backus site, he was acting in good faith to further the employer’s interests. As a result, he contends, the judge erred on this basis as well when he found that the employee was not in the course and scope of his employment when injured. Again we are not persuaded.
The compensation judge found that Mr. Raph did not instruct the employee to check on the status of the decking materials and that the employee was not assigned any work at the Backus worksite on July 29, 2010. He found also that the employee was curious about the siding work being performed by another company and decided on his own to walk around the worksite. The judge found that there was no business value to the employer in this activity by the employee and that the activity was not incidental to the employment relationship. In arriving at these conclusions, the judge found Mr. Raph’s testimony more convincing than the employee’s. Assessment of the credibility of a witness is the unique function of the trier of fact. Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988). Nor is it the role of this court to make an evaluation of the probative value of a witness’s testimony. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. See Hengemuhle, 358 N.W.2d at 60, 31 W.C.D. at 240.
Having concluded that the employee did not remain in the course of his employment by being regularly furnished transportation to and from the place of employment, and finding reasonable the judge’s conclusion that the employee was not performing any service for the employer at the time of his injury, we affirm in its entirety the judge’s determination that the employee’s injury did not arise out of and in the course of his employment.
DAVID A. STOFFERAHN, Judge
I dissent. Based on the uncontroverted evidence, it seems clear that the employee was in the course of his employment when he was injured and I would reverse the compensation judge.
Minn. Stat. § 176.011, subd. 16, provides, “where the employer regularly furnished transportation to employees to and from the place of employment, those employees are subject to this chapter while being so transported.” The question here is whether the evidence establishes that Kelly Raph regularly furnished transportation to and from the job site at Big Sandy Lake.
This case is directly controlled by McConville v. City of St. Paul, 528 N.W.2d 230, 232, 52 W.C.D. 258, 260 (Minn. 1995). The employee in that case was injured while being transported back to work by the employer from a voluntary health program which was sponsored by the employer. The compensation judge found the employee’s injuries to be covered under Minn. Stat. § 176.011, subd. 16, but this court reversed, citing to the wellness provisions of Minn. Stat. § 176.021, subd. 9, and also stating that there must “be some nexus between the transportation and some service to the employer.” McConville v. City of St. Paul, 52 W.C.D. 253, 256 (W.C.C.A. 1994).
The supreme court reversed that decision and reinstated the compensation judge’s determination that the employee was covered by Minn. Stat. § 176.011, subd. 16, at the time of her injury. The court referred to dicta in two earlier decisions which seemed to require that the transportation be an “incident” of employment but there was no evidence in McConville that the transportation to the health program was a condition of employment or was for the benefit of the employer. The court stated, “the employee who rides in a vehicle at the employer’s direction is in the employer’s service even if the employer regards the transportation as a courtesy for the employee, and the employee is entitled to the protection of the Workers’ Compensation Act.”
In the present case, both Mr. Raph and Mr. Katzenberger testified that Mr. Raph regularly transported the employee and coworkers back and forth to the job site at Big Sandy Lake. There is no evidence that in the four week period between the beginning of that job and the date of the employee’s injury that the employee traveled back and forth to work in any other way. The method that Mr. Katzenberger may have used to commute to and from other job sites is irrelevant. The question is whether at the time of his injury the employee was regularly furnished transportation by his employer. The motivation for Mr. Raph and whether this was primarily done for the convenience of the employee is irrelevant. Mr. Katzenberger was an employee who was regularly furnished transportation back and forth to work and, as such, was covered during that transportation by Minn. Stat. § 176.011, subd. 16.
Given its decision, the majority does not address the question of whether the employee was injured while being so transported. Again, the evidence on this question is uncontroverted.
Mr. Raph, with his employees and his vehicle, stopped at a second project on the way home after a day at the Big Sandy Lake job site. The employee got out of the vehicle to look at the progress of this job and to see if material he would need to do his work at this site had been delivered. When the employee went to the back of the house, he fell on the unfinished deck and fractured his right heel. While the employer had not told the employee to check on whether the material had been delivered, there was no personal purpose in Mr. Katzenberger’s actions and no personal deviation from the employer furnished transportation.
“The transportation of this claimant to his house was not completed until he had reached a point which exempted him the risks incident to that particular journey.” Markoff v. Emeralite Surfacing Prods. Co., 190 Minn. 555, 560, 252 N.W. 439, 441, 8 W.C.D. 90, 94 (1934), quoting Scott v. Willis, 142 S.E.400, 401 (Va. 1928).
Given the undisputed evidence and the case law, I conclude Mr. Katzenberger was in the course of his employment when he was injured on July 29, 2010, and is entitled to workers’ compensation benefits for the effects of that injury.
 The employee also worked off and on for Mr. Raph during the 1990’s.
 Because we have affirmed the judge’s finding that transportation was not “regularly furnished,” we need not address the issue of whether the employee was injured “while being transported.”