RODDY G. SWEEP, Employee/Appellant, v. KRAUS ANDERSON CONSTR., and ST. PAUL FIRE AND MARINE, Employer-Insurer, and CARPENTERS & JOINERS H&W FUND, AMERICAN FAMILY INS. GROUP, and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 25, 2003
HEADNOTES
ARISING OUT OF AND IN THE COURSE OF - GOING TO AND FROM WORK. Where, at the time of injury, the employee was commuting in his personal vehicle to the employer=s job site where he would perform his services for the employer, the employee=s injuries did not arise out of and in the course of employment. Transporting his personal tools for use on the job as a convenience did not transform his personal commute into a business use of his vehicle.
Affirmed.
Determined by Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Peggy A. Brenden
OPINION
The employee appeals from the compensation judge=s determination that his injuries did not arise out of and in the course of employment. We affirm.
BACKGROUND
On February 4, 2000, Roddy Sweep, the employee, was injured in a motor vehicle accident. At the time of the accident, the employee was driving his pickup from his home to a job site of his employer Kraus Anderson. The employee had worked as a carpenter for Kraus Anderson since May 1999.
The employee claimed that his personal injury arose out of and in the course and scope of his employment because at the time of the accident he was transporting personal tools which were required for performing his job. The employer denied the claim and the employee filed a claim petition which was heard before Compensation Judge Peggy Brenden on June 18, 2002. The parties stipulated that as a result of the motor vehicle accident, the employee was temporarily totally disabled from February 4, 2000 through November 30, 2001, had reached maximum medical improvement on August 21, 2001, had a 23 percent permanent partial disability of the body as a whole and had incurred various medical expenses, some of which were paid by intervenors, which were reasonable and necessary for the treatment of his injuries.
At the hearing, the employee testified that he had worked as a carpenter since 1979. After starting at Kraus Anderson in 1999, he had worked at 11 different construction projects in the metro area. The employee performed a number of different carpenter duties at these various job sites. He started his work day at 7 a.m. and usually finished at about 3:30 p.m.. The employee performed all his work duties at the employer=s job sites. On rare occasions he would be asked to go to a different job site during the day but most often he would be told at the end of the work day that he would be going to a different job site the next day or he would be told to call a supervisor who would give him a work assignment. The employee testified that when he received these assignments he was not told exactly what carpenter duties he was expected to perform. The employee was not compensated for his commuting time from his home to the job site and he was not reimbursed for any mileage.
Kraus Anderson provided power tools and larger items of equipment needed at a job site but carpenters were expected to provide their own hand tools. It was the employee=s testimony that because he was never sure on a day to day basis exactly what duties would be expected of him, he was never sure what tools would be necessary for the day=s work. The employee introduced a tool list as an exhibit at the hearing. (Pet. Exhibit B). The list identified at least 60 tools, some of which were needed every day and some which were needed less often depending on the exact duties of the employee. Because of the uncertainty of his duties, the employee brought all of these tools to work everyday. The tools were kept in three tool boxes, together weighing more than 100 pounds. The employee testified that he needed to drive his pickup to work every day because he needed his pickup to transport his tools.
The employee also presented at hearing the deposition testimony of James Brown, the business representative for the employee=s union. Based upon the information presented to him, Mr. Brown identified the employee as a utility carpenter for the employer and provided his opinion that the tools on the employee=s tool list were necessary to perform that job.
Richard Lund, a general superintendent for Kraus Anderson, was called as a witness for the employer at the hearing. Mr. Lund indicated that he had been employed in the construction industry for 21 years, that he had been a journeyman carpenter for 12 years, and that he had worked for Kraus Anderson for 12 years. Mr. Lund disputed the employee=s contention as to the number of tools a journeyman carpenter needed at a job site. In his testimony, Mr. Lund went through the duties the employee performed at the various job sites he had been at for Kraus Anderson and Mr. Lund indicated the tools necessary for those duties. The number of tools identified by Mr. Lund was substantially less than the number of tools on the employee=s list. Mr. Lund indicated that the extra tools identified by the employee would be convenient for a carpenter but would not be necessary.
In support of his testimony, Mr. Lund provided a list of tools which the union gave to apprentice carpenters as being necessary for a construction job. Mr. Lund stated that the tools he felt necessary for the job or the tools on the union list were easily transportable in a single tool box. A pickup would not be necessary to transport this tool box and Mr. Lund indicated that not all carpenters drove their own vehicles to job sites. Some participated in car pools and he referred to one carpenter who regularly went to work on the bus.
Further, Mr. Lund denied that the employee was a utility carpenter for the employer. AUtility carpenter@ is a specific job description at Kraus Anderson and refers to a carpenter who was sent from job site to job site throughout the day, essentially as a trouble shooter. Mr. Lund also pointed out that the contract between the employee=s union and the employer specifically provided that a carpenter was not required to have a vehicle.
In her Findings and Order, served and filed July 17, 2002, the compensation judge determined that the employee=s injury did not arise out of or in the course of employment and denied his claim. The compensation judge found that, while being able to have access to all the tools on the list might be more convenient for the employee, providing all of the identified tools was not a requirement of his employment. Accordingly, the compensation judge found that the employee=s injuries occurred as a result of commuting and were not compensable. The employee appeals.
DECISION
For a personal injury to be compensable, the injury must Aarise out of and in the course of employment.@ Minn. Stat. ' 176.011, subd. 16. As a general rule, injuries which happen while commuting back and forth to work do not arise out of or in the course of employment. Swanson v. Fairway Foods, 439 N.W.2d 722, 724, 41 W.C.D. 1010, 1013 (Minn. 1989). When Mr. Sweep sustained his personal injuries, he was commuting to work in his personal vehicle. The employee received no compensation for the time spent commuting and was not reimbursed for mileage. The employee argues, however, that the number of tools required for his job was such that he needed his pickup to transport the tools to the job site and that this job requirement made his personal injuries compensable.
An exception to the general commuting rule was set forth in Gilbert v. Star Tribune, 480 N.W.2d 114, 115, 46 W.C.D. 188, 190, (Minn. 1992) in which the court stated Athe rule excluding off premises 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.@ The Gilbert exception was held by this court not to apply in Wenda v. Olsten Healthcare, slip op. (W.C.C.A. January 14, 1997). The employee was a registered nurse who provided temporary services such as drug screening. He was injured while driving to the premises where he would perform his services. The employee argued that because of the lack of public transportation to some of the work sites and because of the short notice he received before beginning an assignment, he was required by his job description to provide a reliable means of transportation and the use of his vehicle was thus within the Gilbert exception. This court disagreed and reversed the award to the employee, noting that the sole use of the vehicle was to transport the employee to work and that the vehicle was not used during the working day.
The Gilbert exception was also held not to apply in Vu v. Waconia Ford Mercury, 62 W.C.D. 6 (W.C.C.A. 2001). The employee was provided a vehicle by the employer as part of his compensation package. The vehicle was required to be at the employer=s premises each day and the employee drove it back and forth to work. This court held that the employee did not perform the principal tasks of his job in his vehicle and the connection between the obligation to have the vehicle at the dealer=s premises and the employee=s job was too remote to find the injury sustained by the employee on his drive home from work compensable.
In its response to the employee=s appeal, the employer contends that the employee is seeking a Adramatic and unprecedented expansion@ of workers= compensation liability, citing Schaber v. Northwest Airlines, slip op. (W.C.C.A. June 13, 1994), for the proposition that merely transporting some of the Aparaphernalia of employment@ does not convert a commuting trip into a part of the employment. As a general rule, Gilbert, Wenda, and Vu all require the use of the vehicle during the work day, a situation which does not exist here. However, we do not decide this matter on the basis of these legal issues since the compensation judge found that the employee had not met his burden of proof under the theory he had argued.
The employee admits that, in order for his argument to prevail, it must be found that the tools he identified were necessary to do his job and that his use of his pickup was required to transport the tools. In her findings, the compensation judge determined that, while using his own tools was undoubtably more convenient for the employee, he was not required to provide all the tools he transported in his pickup.
The employee attacks this determination, arguing the weight of the evidence supports his position, citing his testimony and that of the union business representative James Brown. Mr. Brown, however, identified the employee as a utility carpenter, a different position than that which the employee held at Kraus Anderson. While the employee testified that all of the tools identified on the tool list exhibit were required for his job, his testimony was directly contradicted by Richard Lund who also had carpenter experience and who stated at hearing that the necessary tools for a journeyman carpenter would fit in a single tool box. Contrary to the employee=s assertions, we do not find that Mr. Lund disqualified himself from testifying on this issue simply by referencing a list of tools given by the carpenters union to apprentices.
It is the role of the compensation judge at hearing to weigh conflicting evidence and to make factual determinations. If substantial evidence supports the determination of the compensation judge, the determination is to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). The point is not whether this court might have viewed the evidence differently but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate. Redgate v. Sroga=s Standard Serv. and New Hope Foods, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). We find substantial evidence to support the compensation judge here. Based upon her conclusion that the employee=s use of his personal vehicle to transport his personal tools was for his convenience and not a requirement of his employment, we affirm the compensation judge=s denial of the employee=s claim.