MARY ANN MILLER, Employee/Appellant, v. ST. MARY’S REG’L HEALTH CTR n/k/a ST. MARY’S INNOVIS HEALTH, SELF-INSURED/BERKLEY RISK ADM’RS CO., Employer, and MERITCARE HEALTH SYS., BLUE CROSS BLUE SHIELD OF MINN., PROGRESSIVE PREFERRED, and MADISON NAT’L LIFE INS. CO., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 14, 2011
ARISING OUT OF & IN THE COURSE OF - GOING TO AND FROM WORK. The employee, a home health care aide, was compensated by the employer for her travel time and mileage, including travel to the home of the first client at the beginning of the day from either the employee’s home or the employer’s office, and travel from the home of the last client to either her home or the office. Although, generally, injuries sustained while traveling to and from work are not compensable under the Workers’ Compensation Act, when the employer compensates the employee for time spent in traveling to and from work, the trip is within the course of employment and is compensable as the travel is part of the service for which the employee is paid.
ARISING OUT OF & IN THE COURSE OF - DEVIATION FROM EMPLOYMENT. Where the employee’s brief personal deviation was completed at time of the accident and the employee had returned to the route which would have taken her either to the office or her home, the compensation judge erred in concluding the employee’s accident did not arise out of and in the course of her employment.
Reversed and remanded.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Kathleen Behounek
Attorneys: Jeffrey R. Hannig, Hannig & Assocs., Fargo, ND, for the Appellant. Edward Q. Cassidy and Lori-Ann C. Jones, Fredrikson & Byron, Minneapolis, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s conclusion that her automobile accident on May 8, 2007, did not arise out of her employment with St. Mary’s Regional Health Center. We reverse.
Mary Ann Miller, the employee, was employed by St. Mary’s Regional Health Center, the employer. On May 8, 2007, the employee was involved in a motor vehicle accident. On that date, the employer was self-insured with claims administered by Berkley Risk Administrators Company.
The employee worked for the employer as a home health care aide and provided in-home personal and health care to clients with medical problems or those recovering from surgery. The employer required the employee to have a car to travel to the homes of clients and required the employee to provide proof of insurance to the employer.
The employer maintained an office in Detroit Lakes, Minnesota. Although the majority of the employee’s work for the employer was performed outside the office, the employee did have some job duties which she performed at the office. These duties included filing papers, making copies, preparing folders, and attending educational presentations.
The employee was paid on an hourly basis for the services she provided to each client. In addition, the employee was paid for her time driving to and from clients’ homes and was paid mileage for her travel. Linda Hespe, the home health manager for the employer and the employee’s direct supervisor, testified that the payment for travel time was based upon the number of miles driven. At the beginning of the day, the employee was paid for her time to travel to the home of her first client based upon the mileage to the client’s home from either the employee’s home or the employer’s office, whichever distance was less. The employee was paid for her travel time from the home of the first client to the home of the next and each successive client. At the end of the day, the employee received travel pay from the home of the last client to either the employee’s home or the employer’s office, whichever mileage was less. Travel pay was calculated as 10 minutes of pay for 10 miles traveled and 15 minutes of pay for 10 to 20 miles traveled. In cases of inclement weather or road delays, Ms. Hespe testified the travel pay might be increased based upon the actual time it took to travel rather than the mileage. In addition to travel time, the employee was paid mileage for her travel.
The employee self-reported her work activities to the employer. The employer provided to the employee a time/attendance form which the employee completed on a daily basis and provided to the employer. This form was the basis for payment to the employee. The form required the employee to list the name of the patient, the time of arrival and departure, the number of miles driven and the drive time. The employee prepared a time/attendance form for May 8, 2007. (See Pet. Ex. H.)
On May 8, 2007, the employee left her home in rural Frazee, Minnesota, at 7:45 a.m. and arrived at the home of J.P. at 8:00 a.m. The time/attendance form reflects the employee drove 9 miles to J.P.’s home, worked for 3 hours and recorded .25 hours of drive time. For her work for J.P., the employee charged the employer for 3.25 hours of time. The employee left J.P.’s home and drove to the home of M.K. She arrived at 11:15 a.m. and worked until 12:30 p.m. for which she recorded 1.25 hours of care time and .25 hours of drive time. Next, the employee drove to the home of V.S., arriving at 1:15 and leaving at 4:15 p.m. The time/attendance form reflects the employee worked for three hours and recorded .75 hours of drive time for a total charge of 3.75 hours. The .75 hours of drive time, apparently, reflects the time driving from the home of M.K. to the home of V.S. and the time to drive from the home of V.S. back to the employer’s office.
After finishing her duties at the home of V.S., the employee drove to her mother’s house for coffee and to help her mother pay bills. The employee spent approximately 15 minutes with her mother and then left. There is conflicting testimony regarding whether the employee was going home or was returning to the employer’s office after leaving her mother’s home. While en route, the employee was in her automobile when she was struck from the rear. At that time, the employee was approximately two blocks from the employer’s office.
The employee’s claim for workers’ compensation benefits was heard by a compensation judge in Moorhead, Minnesota. In a Findings and Order served and filed June 15, 2010, the compensation judge found the employer paid the employee for travel time at the start of the day to the first client’s home and for travel time at the end of the day from the last client’s home. The amount of time the employee was paid was based on the number of miles between the client’s home and the employer’s office or the employee’s home, whichever was less. However, the compensation judge found the employee’s car accident on May 8, 2007, occurred subsequent to the completion of her work duties and payable travel time for that day of work. Accordingly, the compensation judge found the employee’s injury did not arise out of or in the course and scope of her employment with the employer. The employee appeals.
The employee was required to provide a vehicle to travel to clients’ homes to provide health care services. In addition to payment for the services performed, the employee was paid a prescribed amount for her travel time and mileage. The employee asserts her duties included not only the provision of home health care services but also the travel necessary to go to and from clients’ homes. Since travel was a part of the service performed and she was paid for travel, the employee contends her injury arose out of and was within the course of her employment. We agree.
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, a number of exceptions to the general rule. “When the employee is paid an identifiable amount as compensation for time spent in a going or coming trip, the trip is within the course of employment. This is a clear application of the underlying principle that a journey is compensable if the making of that journey is part of the service for which the employee is compensated.” 1A. Larson & L.K. Larson, Larson’s Workers’ Compensation Law, § 14.06 (2007). By way of example, Larson cites Voehl v. Indemnity Ins. Co., 288 U.S. 162, 53 S. Ct. 380, 77 L. Ed. 676 (1933). In that case, the employee was sent to a warehouse on Sunday to clean up some litter in preparation for business on Monday and was paid 75 cents an hour from the time he left home until he returned home, plus traveling expenses. The employee was held to be within the course of his employment during his journey.
We find no Minnesota cases directly dealing with the identifiable payment for travel time exception to the general coming and going rule. The principle, however, is well-stated in Kobe v. Industrial Accident Comm’n, 35 Cal.2d 33, 215 P.2d 736 (1950). In that case, the employer and the employees agreed the employees would work 9 hours a day and agreed each would receive an additional one hour pay to compensate them for the time spent in traveling to and from the job site. While traveling home from work, the employees were seriously injured in an automobile accident and brought a claim for workers’ compensation benefits. On appeal to the Supreme Court of California, the court noted the general rule that injuries sustained by an employee going to or returning from work are not compensable under the act. The court then went on to state:
However, the employer may agree, either expressly or impliedly, that the relationship shall continue during the period of ‘going and coming,’ in which case the employee is entitled to the protection of the Act during that period. . . . It seems equally clear that such an agreement may also be inferred from the fact that the employer compensates the employee for the time consumed in traveling to and from work.
See also Serrano v. Industrial Comm’n, 75 Ariz. 326, 256 P.2d 709 (1953); Commonwealth Edison Co. v. Industrial Comm’n, 86 Ill.2d 534, 428 N.E.2d 165 (1981).
The compensation judge concluded the facts in this case are similar to those in Wenda v. Olsten Healthcare, slip op. (W.C.C.A. Jan. 14, 1997) and determined that case was controlling. The respondent contends the compensation judge did not err in her application and analysis of the Wenda case and asserts the case supports a denial of benefits. We disagree.
In Wenda, the employee performed services as a registered nurse on a temporary basis at a number of different facilities, including working at hospitals, doing homecare nursing, and performing drug screening tests. The employee was also employed by the University of Minnesota. On the day of his injury, Mr. Wenda first performed a drug screening test for the employer at 7:00 a.m. following which he drove to his job at the University of Minnesota. That afternoon, he received a phone call from the employer asking him to perform an additional drug screening test at 8:00 p.m. En route to his 8:00 p.m. appointment from the university, the employee was injured in a motor vehicle accident. On appeal, this court concluded the facts of the case did not justify an exception to the general rule on commuting and concluded the employee was not in the course and scope of employment at the time of his motor vehicle accident. The present case contains two significant factual differences which distinguish it from Wenda. In Wenda, the employee was injured while traveling from his job at the University of Minnesota to his job for the employer. The employee in this case was traveling only in furtherance of her job for the employer. Secondly, the employee in this case was being paid for her travel time while Mr. Wenda was not. Because of these factual differences, the Wenda case is not controlling here. Rather, we conclude the fact that the employee was paid an identifiable amount as compensation for time spent traveling makes her trip home an exception to the general coming and going rule and brings her trip within the course of her employment.
The compensation judge found the employee concluded work with the last client of the day at 4:15 p.m. and was paid .75 hours of travel time to return from the last client’s home. Thus, the compensation judge determined the employee’s work day ended no later than 5:00 p.m. Since the employee’s car accident occurred after 5:00 p.m., the compensation judge concluded it did not arise out of her employment. We disagree with this analysis.
“An identifiable deviation from a business trip for personal reasons takes the employee out of the course of employment until the employee returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial.” Larson, supra, § 17.00; See Williams v. Hoyt Constr. Co., 28 W.C.D. 101, 237 N.W.2d 339 (Minn. 1975). In this case, it is undisputed that at the time of her car accident, the employee’s personal errand at her mother’s home was completed. It is further undisputed that at the time of her car accident, the employee was back on the route which would have taken her either to the employer’s office or her home. (See Pet. Ex. K.) The employee’s deviation added only several miles to the return trip and the employee’s activities during the deviation did not contribute to the accident. We can only conclude the employee’s deviation had ended because she returned to the route of her business trip.
We conclude the employee’s injuries arose out of and in the course of her employment. The case is remanded to the compensation judge to consider the employee’s claims for workers’ compensation benefits.
 See Petitioner’s Ex. P.