Bialecke v. Chattanooga Publishing Company, No. E2005-2560-WC-R3-CV (Tenn. 8/18/2006)
| Decision Date | 18 August 2006 |
| Docket Number | No. E2005-2560-WC-R3-CV.,E2005-2560-WC-R3-CV. |
| Parties | SHERILYN A. BIALECKE, et al. v. CHATTANOOGA PUBLISHING COMPANY, et al. |
| Court | Tennessee Supreme Court |
George E. Koontz and Robert Jeffrey Wolford, Chattanooga, Tennessee, for Appellants, Sherilyn A. Bialecke, Lindsey E. Bialecke, Keagan A. Bialecke, and Aubrey McKenna Bialecke.
J. Bartlett Quinn and Charles D. Lawson, Chattanooga, Tennessee, for Appellees, Chattanooga Publishing Company and American Zurich Insurance Company.
Sharon G. Lee, J., delivered the opinion of the court, in which E. Riley Anderson, J., and Roger E. Thayer, Sp.J., joined.
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. Kenneth Bialecke was killed in a car wreck while going to work early one morning. His widow and minor children sued his employer and its insurance carrier seeking workers' compensation death benefits. After hearing the proof presented at trial, the Chancellor dismissed the cause of action, finding that Mr. Bialecke's death did not arise out of and did not occur in the course of his employment, because the fatal accident occurred as the employee was on his way to his place of employment and, therefore, he had not yet begun his work day. After carefully reviewing the record and applicable authorities, we conclude that the Chancellor's judgment should be affirmed.
At the time of his death, Kenneth Bialecke worked as the single copy sales manager for Chattanooga Publishing Company ("employer") in Chattanooga, Tennessee. A salaried employee, he supervised the selling of newspapers to stores and in newspaper racks. Because he was required to use his personal vehicle for business purposes from time to time, Mr. Bialecke received an automobile allowance, but he was not compensated for his travel to and from work.
In order to facilitate the sale of single copies, the employer utilized approximately 35 independent contractors to distribute newspapers to outlets located along certain routes. If an independent contractor assigned to a particular route quit, the route became known as an "open route." When Mr. Bialecke was unable to find someone to cover an "open route," it was his responsibility as manager to do it himself. In such instances, Mr. Bialecke reported to the employer's office by 4 a.m. to pick up the required number of newspapers for delivery. While working the route, he removed the money and old papers from the racks and, subsequently, returned the coins to the employer's office to be counted and credited against the employer's bill for the week.
For approximately ten days prior to the date of the accident, Mr. Bialecke personally covered a reorganized route in the Lookout Valley area and Marion County. While this route did not contain many stops, it was long. During this period, Mr. Bialecke worked at least 14 hours per day, with no days off. He also completed work at home and received many work-related calls at night that interrupted his sleep.
On the morning of June 18, 2004, at approximately 3:30 a.m., Mr. Bialecke, in his personal vehicle, left his residence in order to pick up the newspapers for the route at the employer's loading dock. He traveled one of the three routes he could take from his home to the employer's business location. Tragically, approximately five to ten minutes after he left home, Mr. Bialecke was involved in a fatal one-car motor vehicle accident. The investigating police officer testified the physical facts at the scene of the accident indicated to him that Mr. Bialecke had fallen asleep at the wheel.
Mr. Bialecke's widow and minor children filed this action against the employer and its insurance carrier, American Zurich Insurance Company, seeking workers' compensation benefits. After a bench trial, the trial court dismissed the cause, concluding that Mr. Bialecke's death occurred while he was traveling to work and, under controlling Tennessee law, his death was not compensable. Mr. Bialecke's family then filed this appeal. The issue before us is whether Mr. Bialecke's death, which occurred while he was on his way to work, is compensable under the Tennessee Workers' Compensation Act.
In a workers' compensation action, it must be established by a preponderance of the evidence that the injury is an "injury by accident arising out of and in the course of employment which causes either disablement or death." Tenn. Code Ann. § 50-6-102 (12). This issue is a factual determination rather than a legal one. McCammon v. Neubert, 651 S.W.2d 702, 704 (Tenn. 1983). Our standard of review of factual issues in a workers' compensation case is de novo upon the record, accompanied by a presumption of correctness of the trial court's factual findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2); see also Rhodes v. Capital City Ins. Co., 154 S.W.3d 43, 46 (Tenn. 2004); Perrin v. Gaylord Entm't Co., 120 S.W.3d 823, 825-26 (Tenn. 2003). Our standard of review of questions of law is de novo without a presumption of correctness. Id.
For the plaintiffs to prevail, the death of Mr. Bialecke must have arisen out of and have been in the course of his employment. Tenn. Code Ann. § 50-6-102(12); Cunningham v. Shelton Sec. Serv., Inc., 46 S.W.3d 131, 135 (Tenn. 2001). The phrases "arising out of" and "in the course of" are not synonymous; rather, they embody distinct concepts which are primarily basic to liability under the Tennessee Workers' Compensation Act ("Act"), Tenn. Code Ann. § 50-6-103; Blankenship v. American Ordnance Systems, LLS, 164 S.W.3d 350, 354 (Tenn. 2005). The "arising out of" employment refers to the cause or origin of the injury, while "in the course of" employment refers to the time, place and circumstances. McCurry v. Container Corp. of America, 982 S.W.2d 841, 843 (Tenn. 1998); Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn. 1997); McAdams v. Canale, 200 Tenn. 655, 661, 294 S.W.2d 696, 699 (1956).
An accident occurs in the course of employment if "it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaging in doing something incidental thereto." Blankenship, 164 S.W.3d at 354 (citation omitted). The employee must be performing a duty he was employed to do. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers' Comp. Panel 1993). The mere presence of the employee at the place of injury because of employment will not alone result in the injury being considered as arising out of the employment. Scott v. Shinn, 171 Tenn. 478, 483, 105 S.W.2d 103 (Tenn. 1937). To be compensable, the injury or death of an employee must arise out of a risk peculiar to the employment, or from some particular danger to which the work exposed him. Blankenship, 164 S.W.3d at 354. Injury or death of an employee from an exposure which is no more or different than that of any other member of the public similarly situated in place and time is not compensable. See Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954 (1949). "[A]n injury purely coincidental, or contemporaneous, or collateral, with the employment ... will not cause the injury ... to be considered as arising out of the employment." Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 390 (1954). The term "employment" is construed liberally and "extends to all activities that the employment expressly or impliedly entitles the worker to do." Tallent v. M.C. Lyle & Son, 216 S.W.2d 7, 9 (Tenn. 1948). Any reasonable doubt as to whether or not an injury arose out of employment is to be resolved in favor of the employee. White v. Werthan Indus., 824 S.W.2d 158, 159 (Tenn. 1992); Hall v. Auburntown Indus., Inc., 684 S.W.2d 614, 617 (Tenn. 1985).
The general rule in Tennessee is that an injury sustained by an employee driving to or from work is not compensable under the state's workers' compensation laws ("going and coming rule"). Phillips v. A & H Const. Co., Inc., 134 S.W.3d 145 (Tenn. 2004); Howard v. Cornerstone Med. Assoc., P.C., 54 S.W.3d 238, 240 (Tenn. 2001); Webster v. Teledyne Lewisburg & Argonaut Ins. Co., 674 S.W.2d 725, 728 (Tenn. 1984); Sharp v. Northwestern Nat'l Ins. Co., 654 S.W.2d 391, 392 (Tenn. 1983); Smith v. Royal Globe Ins. Co., Inc., 551 S.W.2d 679, 681 (Tenn. 1977); Douglas v. Lewis Bros. Bakeries, 477 S.W.2d 202, 203 (Tenn. 1972). Injuries incurred while commuting are simply not deemed to have occurred within the course of employment, id., an explicit requirement for compensability under Tennessee's Act. See Tenn. Code Ann. § 50-6-102(13); Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771 (1951); LARSON, Workers' Compensation Law § 15.11. As noted in Sharp, 654 S.W.2d at 392, driving to work is one of the things "a worker must do in preparation for the work day, such as dressing; ... While this travel is some modicum of benefit to the employer, travel to and from work is primarily for the benefit of the employee: if he doesn't present himself at the work place, he is not compensated for his labors."
Tennessee has recognized certain exceptions to the "going and coming" rule. These exceptions include the following: (1) the "special errand rule," where the employee is directed to perform some task, special act, or mission off the business premises at the direction of the employer; (2) the "company vehicle rule," where the company provides the...
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