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Kuhrt v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 30, 1997

REGINA KUHRT Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for FIRST FEDERAL SAVINGS AND LOAN Employer.

          Submitted: November 10, 1997

          DECISION AND ORDER

          MIKE MCCARTER, JUDGE

         Summary: Savings and Loan teller parked on public street next to place of employment and fell when getting out of her pick-up. Parties disputed whether her accident occurred in the course and scope of employment and stipulated to the following: claimant received no travel pay to commute to work; parking was not available to claimant in any lot maintained by the employer; the employer "suggested" she park on the street.

         Held: Consistent with Heath v. Montana Mun. Ins. Auth., WCC No. 9702-7700, the accident was not in the course and scope of employment. Claimant was still traveling to work when she was injured. Under section 39-71-407, MCA (1995), for the travel to be compensable, either the employer must reimburse for travel costs or the travel must be required as part of the job duties. It is well settled in Montana that going to and from work, absent compensation for the travel, is not a part of the employee's job duties.

         Topics:

Constitutions, Statutes, Regulation and Rules: Montana Code Annotated: section 39-71-407, MCA (1995). Slip and fall of savings and loan teller when getting out of her pick-up on a public street, before starting work, was not in the course and scope of employment. Parties stipulated that claimant received no travel pay to commute to work, that parking was not available to claimant in any lot maintained by the employer, and that employer "suggested" she park on the street. Claimant was still traveling to work when she was injured. Under section 39-71-407, MCA (1995), for the travel to be compensable, either the employer must reimburse for travel costs or the travel must be required as part of the job duties. It is well settled in Montana that going to and from work, absent compensation for the travel, is not a part of the employee's job duties.
Employment: Course and Scope: Coming and Going. Slip and fall of savings and loan teller when getting out of her pick-up on a public street, before starting work, was not in the course and scope of employment. Parties stipulated that claimant received no travel pay to commute to work, that parking was not available to claimant in any lot maintained by the employer, and that employer "suggested" she park on the street. Claimant was still traveling to work when she was injured. Under section 39-71-407, MCA (1995), for the travel to be compensable, either the employer must reimburse for travel costs or the travel must be required as part of the job duties. It is well settled in Montana that going to and from work, absent compensation for the travel, is not a part of the employee's job duties.

         This is a course and scope case involving a slip and fall as the claimant was exiting her vehicle on a public street next to her place of employment. The dispute is submitted to the Court on a Statement of Stipulated Facts and the briefs of the parties. With the filing of Petitioner's Reply Brief on November 10, 1997, the Court deemed the matter submitted and ready for decision.

         Issue presented: The sole issue presented to the Court is whether the petitioner's slip and fall injury arose out of and in the course and scope of her employment.

         Stipulated Facts

         1.On January 9, 1997, Regina Kuhrt was employed as a teller with First Federal Savings and Loan in Hamilton, Montana.

         2.Ms. Kuhrt worked a 40 hour week with various daily start and end times. 3.Ms. Kuhrt receives no travel pay to commute to or from her place of employment.

         4.On the morning of January 9, 1997, Ms. Kuhrt traveled to work arriving shortly before 8:00 a.m. Snow had accumulated overnight on Baker Street, a public street next to First Federal Savings and Loan.

         5.She parked her four-wheel drive pick up [sic] on Baker [S]treet, and proceeded to exit the pick up [sic] truck. Upon opening the door of the truck and placing her feet on the snow/ice covered roadway, Ms. Kuhrt slipped and injured her back.

         6.Parking for employees of First Federal Savings and Loan is available as follows:

a. There is a parking lot owned by the employer with limited parking spaces. These parking spaces are allocated to employees on the basis of seniority and given Ms. Kuhrt's short tenure with the employer she was not allocated a spot in this parking lot.
b. Another parking lot is located near the savings and loan building that is leased to another business. As part of the lease, there is limited access in this parking lot for employees of First Federal Savings and Loan. The spaces however, are not allocated to any specific employee and are available on a "first come" basis.
c. There is a customer parking lot immediately in front of the savings and loan and all employees are prohibited from parking in that lot.
d. When an employee first starts working with First Federal Savings and Loan the President advises them not to park in the customer parking lot or the parking lot reserved for senior employees. The President instead suggests they park on the public streets or in the leased parking lot that has limited spaces available. Ms. Kuhrt, however, was unaware of the suggestion that employees could park in the leased parking lot.

(Statement of Stipulated Facts at 1-2.)

         Discussion

         The decision in this case is controlled by this Court's September 25, 1997 decision in Heath v. Montana Mun. Ins. Auth., WCC No. 9702-7700. In Heath I found that claimant was still traveling to work when she fell on a public sidewalk adjacent to the public street in front of her place of employment, thus she was not acting in the course and scope of her employment when injured. The factual scenario in this case is indistinguishable.

         In Heath the claimant worked for the Lewistown Police Department as a dispatcher. Her job did not require her to drive to work and she was not paid to travel to or from work. She was told she could park in any of the parking lots or on the street, except on Watson Street immediately in front of the building in which she worked. The day she was injured, Heath parked her car in a lot adjacent to the city building and then walked down the sidewalk on Watson Street. As she approached the sidewalk leading to the police department, she slipped and fell.

         In finding that Heath was not in the course and scope of her employment, I noted the long standing rule that employees are not covered under the Workers' Compensation Act while going to and from work. (Heath at 3-4.) Since the announcement of that rule, the Montana legislature has enacted statutes specifically addressing travel. The statute in effect at the time Regina Kuhrt was injured provides in relevant part:

(3) An employee who suffers an injury or dies while traveling is not covered by this chapter unless:
(a)(i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee's benefits or employment agreement; and
(ii) the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or
(b)the travel is required by the employer as part of the employee's job duties.

§ 39-71-407, MCA (1995), (italics added). The claimant was not paid for travel to and from work, hence (3)(a) does not apply. Similarly, going to and from work, absent payment for the travel, is not a part of an employee's job duties. Murray Hospital v. Angrove, 92 Mont. 101, 109, 10 P. 577 (1932); Griffin v. Industrial Accident Fund, 111 Mont 110, 115, 106 Pac. 346 (1940); Hagerman v. Galen State Hosp., 174 Mont. 249, 251, 570 P.2d 893, 894 (1977); Gordon v. Smith Construction Co., 188 Mont. 166, 170, 612 P.2d 668, 670 (1980); Courser v. Darby School Dist. No. 1, 214 Mont. 13, 16, 692 P.2d 417, 418 (1984); Correa v. Rexroat Tile, 217 Mont. 126, 128, 703 P.2d 160, 162 (1985); Ogren v. Bitterroot Motors, Inc., 222 Mont. 515, 520, 723 P.2d 944, 947 (1986); Buhl v. Warm Springs State Hosp., 236 Mont. 363, 364, 769 P.2d 1258, 1259 (1989); and Hetland v. Magnum Petroleum, 225 Mont. 389, 391, 733 P.2d 343, 345(1987).

         Claimant, however, urges that because her employer suggested that she park her car on Baker Street, her parking on that street was of "special benefit" to her employer, thereby taking her injury out of the going and coming rule. The uncontested facts prepared and submitted by the parties in this case do not support her contention. While the stipulated facts state that the bank president "suggested" that the claimant park either in the leased parking lot or on the public streets, there is no evidence that she was required to park on Baker Street. The parking lot and street were offered as suggestions as to where she could park. Nothing in the way the stipulation is phrased "suggests" that claimant was required to park on Baker Street, or anywhere else for that matter.

         In Voorhies v. Park Cafe, Inc., 175 Mont. 232, 573 P.2d 202 (1978), the Supreme Court invoked the to and from work doctrine with respect to an injury in a public alley which occurred approximately two car lengths from the back door of the cafe where claimant worked. Claimant argued that her fall should be covered because she parked her car in the alley and said it was her understanding that she was supposed to park her car "in the rear or alley behind the cafe." Id. at 233, 573 P.2d 203. The Court rejected her argument, finding that there was no evidence of "any mandatory parking arrangement of any kind."

         Id. at ...


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