HOWARD P. WILLIAMS, Employee/Appellant, v. GRAND RAPIDS BAPTIST CHURCH, UNINSURED, Employer, and CALVARY BAPTIST CHURCH, UNINSURED, Employer, and SMDC HEALTH SYS., MN DEP=T OF LABOR & INDUS/VRU, and ARROWHEAD CONSULTATION SERVS., Intervenors, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 12, 2006

 

File No. WC06-140

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF - GOING TO AND FROM WORK.  Where the employee, a pastor jointly employed by two small churches, was injured in an automobile accident going home from an evening service at one of the churches, and where the employee=s vehicle, although needed to get to and from work sites was not an integral part of the performance of his pastoral duties, the exception to the coming and going rule in Gilbert v. Gilbert v. Star Tribune/Cowles Media, 148 N.W.2d 114, 46 W.C.D. 188 (Minn. 1992), does not apply and the compensation judge properly held the accident did not arise out of and in the course of employment.

 

Affirmed.

 

Determined by Johnson, C.J., Rykken, J. and Pederson, J.

Compensation Judge: Gregory A. Bonovetz

 

Attorneys: James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant.  James A. Wade, Johnson, Killen & Seiler, Duluth, MN, for Respondent Grand Rapids Baptist.  Michael I. Cohen, Orman, Nord, Spott & Hurd, Duluth, MN., for Respondent Calvary Pines Baptist.  John R. Baumgarth, Duluth, MN, for the Special Compensation Fund.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that his automobile accident did not arise out of and was not within the scope of his employment.  We affirm.

 

BACKGROUND

 

The Grand Rapids Baptist Church, located in Grand Rapids, Minnesota, and the Calvary Pines Baptist Church, located in Cohasset, Minnesota, jointly employed a minister under the terms of a written agreement.[1]  In the summer of 2003, that minister resigned his position with both churches.  On September 14, 2003, Howard P. Williams, the employee, met with representatives of both churches and each church agreed to hire the employee as its pastor.  Although the formal details of the employment were not then established, the parties understood the employee was hired effective September 14, 2003.

 

Grand Rapids and Calvary Pines are separate churches with separate facilities located approximately 12 miles apart.  Grand Rapids conducts one Sunday morning service which ends at noon and the pastor then has no official duties until the next Wednesday evening service.  Calvary Pines conducts a Sunday service at 9:30 a.m. and a Sunday evening bible study.  It was understood  the employee would conduct the worship services at each of the churches.  In addition, the employee would Aperform those generally accepted activities of a pastor, including calling on members and prospects regularly and, in general, tending to the spiritual needs of the members of each church.@  (Finding 5.)

 

The employee and his wife resided in Iowa when the employee was hired.  The employee moved a trailer home to Grand Rapids for his residence until he and his wife could sell their home in Iowa and locate and purchase a residence in Grand Rapids.  The Grand Rapids Church allowed the employee to park his trailer in its parking lot because there were facilities for water and electricity available.  Neither church required the employee to live on the churches= premises.

 

The employee=s first day of work was Sunday, October 26, 2003.  That morning, the employee officiated at a service at each church.  Calvary Pines also held a service on the evening of October 26, 2003.  Although the employee=s job with Calvary Pines included conducting this service, the employee was not scheduled or asked to do so.  Rather, the service was to be led by a member of the congregation and the employee was advised it was unnecessary for him to be present.  Although the employee was not required or asked to attend the service, the employee chose to attend the service that evening at Calvary Pines.  The service ended at 7:30 p.m. and the employee left the church at approximately 8:00 p.m. to return to his trailer in Grand Rapids.  While driving from Cohasset to Grand Rapids the employee was involved in a motor vehicle accident and sustained internal injuries, facial fractures and some loss of vision.

 

The employee filed a claim petition seeking benefits from Grand Rapids Baptist Church and Calvary Pines Baptist Church, both of which were uninsured for workers= compensation liability.  Following a hearing, a compensation judge found the employee did not sustain a personal injury which arose out of and in the course and scope of his employment with either of the churches and denied the employee=s claim for benefits.  The employee appeals.

 

DECISION

 

The appellant/employee contends he was required to have a motor vehicle to discharge his duties as pastor to the Grand Rapids and Calvary Pines Baptist churches.  The appellant asserts he was to receive a travel allowance to reimburse him for the travel necessitated by the use of his personal motor vehicle, and argues the obligations of the job required him to drive making his vehicle a mandatory part of his employment.  This mandatory travel, the appellant asserts, exposed him to the hazards on the highway and made travel a part of his job duties.  Citing Gilbert v. Star Tribune/Cowles Media, 148 N.W.2d 114, 46 W.C.D. 188 (Minn. 1992), the appellant contends the compensation judge erred in denying his claim.  We disagree.

 

The employee=s predecessor worked for the two churches under the terms of a written employment contract.  (See Pet. Ex. F.)  That contract included a travel allowance paid to the minister by each church.  The employee, however, never saw this agreement and was not governed by its terms.  Apparently, on October 26, 2003, the churches and the employee had not yet entered into an employment agreement.  Thus, there was no written agreement among the parties regarding a travel allowance.  But, in any event, we do not believe payment of a travel allowance is necessarily determinative.

 

As a general rule, injuries sustained by employees while commuting to and from work are not compensable.  Swanson by Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989).  In the Gilbert case, the supreme court crafted an exception to the general rule.  The employee in Gilbert worked for the Star Tribune as a route delivery driver delivering newspapers.  As such, the employee was required to pick up and assemble newspapers at the employer=s paper depot and then deliver the newspapers to customers.  The employee was required as a part of his job to furnish a reliable motor vehicle and he kept the newspaper delivery list, rubber binders, and plastic bags needed for protecting the newspapers in his vehicle.  Gilbert=s earnings were based on the number of papers delivered.  One morning, Gilbert was involved in a motor vehicle accident while traveling in his car from his home to the employer=s paper depot to pick up the newspapers for his assigned route.  The supreme court concluded Gilbert=s injury arose out of and in the course of his employment holding, 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 work day.  That fact alone will bring the trip to and from work within the course of employment.@  We decline to extend Gilbert to the facts of this case.

 

In Gilbert, the employee=s vehicle was an integral part of his job duties.  That is not the case here.  Rather, the reason Pastor Williams needed a vehicle was to transport himself to and from work.  The employee was not required to use his vehicle in the actual performance of his job as a pastor.  We acknowledge the employee may have been required, on occasion, to drive to visit members of the congregations in the hospitals or their homes.  That requirement does not, however, mandate a different result.

 

Rather, the analysis in Wenda v. Olsten Healthcare, slip op. (W.C.C.A. January 14, 1997) is applicable here.  In Wenda, this court held an employee=s travel to locations where he was required to perform registered nursing services did not meet the Gilbert exception to the general rule on commuting where the personal vehicle was not actually used in the performance of his nursing duties.  The court explained:

 

The employee argues that the principles in Gilbert should be expanded because the employee was required by his job description to provide a Areliable means of transportation@ which meant, as a practical matter, that he provide a vehicle in order to transport himself to the work site, which was not accessible by public transportation.  In addition, he argues that using his personal car was necessary to satisfy the employer=s reliable means of transportation requirement because the employee sometimes received very little notice before the start time of an assignment.  While we might agree that the most practical means of transportation for the employee was his personal vehicle, the employee=s arguments are not persuasive.  If all that is necessary to satisfy the Gilbert exception is that there be no public transportation to an employee=s job site or that an employee receive short notice to report to work, then all employees in those circumstances would be entitled to workers= compensation for injuries incurred during their commutes to and from work.  Such a result was clearly not intended by the Gilbert decision.

 

In order for a commute to work to be considered an exception to the general rule, the supreme court in Gilbert required that the employee=s vehicle must be necessary Afor use during the working day.@  In addition, the language cited by the court from Professor Larson required that the vehicle be conveyed Ato the premises@ to be Adevoted to the employer=s purposes.@  In this case, the employee was using his motor vehicle solely for the purpose of transporting himself to work.  It was not intended or required that he use his vehicle Aduring the working day@ or Afor the employer=s purposes.@  The fact that the job site or work location might change frequently, not be accessible by public transportation, or that the work offer be on short notice does not nullify the requirement that the employee=s car must  be brought to work so that it actually be used during the working day.  The employee=s working day did not start until he arrived at the client=s premises.  While on the premises, the employee did not use his vehicle to perform the tasks for which he was employed.  As a result, as a matter of law, the employee is not entitled to workers= compensation benefits for injuries sustained in a motor vehicle accident incurred while en route to work.

 

See also Sweep v. Kraus Anderson Constr., 63 W.C.D. 259 (W.C.C.A. 2003); Vu v. Waconia Ford Mercury, 62 W.C.D. 6 (W.C.C.A. 2001).

 

As in Wenda and Vu, the employee=s vehicle, although needed to get to and from work locations, was not integral to the performance of his principal pastoral duties. The compensation judge properly concluded the employee=s accident did not arise out of and in the scope and course of his employment, and the decision of the compensation judge is affirmed.

 

 


[1] See Pet. Ex. F.