Buczynski v. Industrial Com'n of Utah, 940544-CA

• Decision Date: 13 March 1997
• Docket Number: No. 940544-CA,940544-CA
• Parties: 312 Utah Adv. Rep. 42 Patricia BUCZYNSKI, Petitioner, v. INDUSTRIAL COMMISSION OF UTAH, Workers' Compensation Fund of Utah, and Utah State University, Respondents.
• Court: Utah Court of Appeals

Page 1169

934 P.2d 1169

312 Utah Adv. Rep. 42

Patricia BUCZYNSKI, Petitioner, v. INDUSTRIAL COMMISSION OF UTAH, Workers' Compensation Fund of Utah, and Utah State University, Respondents.

No. 940544-CA.

Court of Appeals of Utah.

March 13, 1997.

James R. Hasenyager, Marquardt, Hasenyager & Custen, L.C., Ogden, for Petitioner.

Suzan Pixton, Salt Lake City, for Respondent Workers' Compensation Fund.

Alan L. Hennebold, General Counsel, Industrial Commission of Utah, Salt Lake City, for Respondent Industrial Commission.

Before BENCH, BILLINGS and ORME, JJ.

ORME, Judge:

Petitioner Patricia Buczynski seeks review of a final order of the Industrial Commission denying her workers' compensation benefits for injuries sustained in a slip-and-fall accident while exiting a hotel hot tub, ostensibly in the course and scope of her employment. We affirm.

FACTS

At the time of her injury, petitioner was employed as an assistant professor of psychology at Utah State University in Logan, Utah. As part of her employment, petitioner was strongly encouraged, if not required, to present two scholarly papers annually, one of which was to be presented at a convention of the American Association for Counseling and Development on March 27-30, 1992, in Baltimore, Maryland. Her attendance at the convention was pre-approved by her department head, Professor Michael Bertoch, and her expenses incurred at the convention were reimbursed by her employer.

In accordance with the general plan to attend the Baltimore convention, petitioner and her companion flew on March 24, 1992, from Salt Lake City to Dulles International Airport, near Washington, D.C. Instead of driving to the Baltimore area, however, petitioner and her companion drove in the opposite direction to McGaheysville, Virginia, located some 150 miles from the convention site.

Upon arriving in McGaheysville, petitioner and her companion checked into a room at the Massanutten Hotel, which they had reserved some months earlier. One amenity offered by the hotel was a hot tub, which petitioner and her companion enjoyed on the evening of March 26. After relaxing in the hot tub, petitioner exited to change into her sweatpants. While walking in the direction of the changing room, petitioner stepped into a puddle of water, apparently caused by run-off The parties are in general agreement concerning the above facts. They agree petitioner arrived two and one-half days prior to the convention and stayed in McGaheysville during that time. It is also undisputed that petitioner did not submit for reimbursement any expenses obviously incurred while staying in McGaheysville. ¹ The parties also do not dispute the occurrence of the slip and fall. However, the parties disagree as to the extent of petitioner's employment-related activities during the two and one-half days prior to the convention and the extent to which her itinerary was a product of her employer's policy, thus raising the issue of whether petitioner's accident arose "out of and in the course of" her employment with Utah State. See Utah Code Ann. § 35-1-45 (1994).

from the adjacent swimming pool, and fell, injuring her right knee. Emergency personnel were summoned to transport petitioner to the emergency room, where she was diagnosed as having knee strain and a "possible quadriceps tear."

At the hearing before the Industrial Commission's administrative law judge, petitioner testified on direct examination that her early arrival and resulting stay in McGaheysville were for the primary purpose of providing her with extra time for some last-minute research at James Madison University, which is in Harrisonburg, Virginia, approximately fifteen miles from McGaheysville. Aside from doing extra preparatory research for her presentation in Baltimore, petitioner testified that she graded papers and submitted grades by fax, and also conducted telephone conversations with her teaching assistants to discuss materials for upcoming classes.

During cross-examination, petitioner acknowledged that she and her companion had lived together in McGaheysville for some two years prior to moving to Logan, Utah. Moreover, she acknowledged that she had worked for James Madison University as an assistant professor during that period, yet insisted that, during her two-and-one-half-day stay in McGaheysville, she did not participate in nonemployment-related activities such as sightseeing and visiting old friends, except for visiting one acquaintance.

Petitioner's companion corroborated to some degree the testimony of petitioner, but only insofar as she agreed that petitioner had performed a few job-related duties on the day of the accident, including sending faxes to Utah State and "working on grades." However, she also testified that she and petitioner had visited friends during the morning of March 26 and had visited a winery together either on March 25 or 26.

Professor Bertoch, head of the Psychology Department at Utah State, testified that he had approved and signed the final version of petitioner's travel authorization form prior to her departure. He testified that the form suggested nothing out of the ordinary, because faculty members often leave early on business trips to take advantage of lower airfares or for other reasons. He testified that the department has been rather flexible in this regard, so long as extra time away does not impinge upon the faculty member's class time. He admitted that the university encourages early departure where it will save airfare.

At the close of the evidence, the ALJ found that petitioner was in the course of employment from the time she departed Logan, Utah on March 24, 1992, to the time she arrived at Dulles International Airport, since the university had specifically required her attendance at the convention. The ALJ then found that petitioner was not in the course of her employment when she and her companion proceeded towards McGaheysville. The ALJ reasoned that petitioner's stay in McGaheysville, two and one-half days prior to the convention, constituted a substantial personal diversion from a work-related trip. Thus, the ALJ concluded that petitioner was not injured on March 26, 1992, by an accident arising out of and in the course of her employment

                with Utah State. 2  The Industrial Commission subsequently affirmed the ALJ's decision denying petitioner compensation.  This petition for judicial review followed
                

ISSUES ON APPEAL

Petitioner concedes there is no legal basis for disturbing the factual determinations adopted by the Commission. Petitioner therefore raises one specific issue on appeal: Whether, even given the facts as found by the Commission, the "continuous coverage" rule mandates compensation for her slip-and-fall injury in McGaheysville, Virginia. Stated another way, we must decide whether petitioner's injury arose out of and in the course of her employment.

STANDARD OF REVIEW

We review the Commission's interpretation and application of the pivotal statutory provision, Utah Code Ann. § 35-1-45 (1994), for correctness. E.g., Walls v. Industrial Comm'n, 857 P.2d 964, 966-67 (Utah.Ct.App.1993); Cross v. Board of Review, 824 P.2d 1202, 1203-04 (Utah.Ct.App.1992).

COMPENSABILITY IN GENERAL

To qualify for workers' compensation benefits in Utah, an employee must suffer an injury caused by an accident, Allen v. Industrial Comm'n, 729 P.2d 15, 18 (Utah 1986), and, in addition, prove two essential elements under Utah Code Ann. § 35-1-45 (1994), namely, (1) that the accident occurred "in the course of" the employment and (2) that the accident "arose out of" the employment. Walls v. Industrial Comm'n, 857 P.2d 964, 967 (Utah.Ct.App.1993). Both elements must be proven by a preponderance of the evidence. See Lipman v. Industrial Comm'n, 592 P.2d 616, 618 (Utah 1979). In the instant case, it is undisputed that petitioner sustained an injury by accident. Thus, her injury is compensable if the two additional statutory elements are proven.

Under Utah law, an accident occurs "in the course of" employment when it "occurs while the employee is rendering service to his employer which he was hired to do or doing something incidental thereto, at the time when and the place where he was authorized to render such service." M & K Corp. v. Industrial Comm'n, 112 Utah 488, 493, 189 P.2d 132, 134 (1948).

An accident arises out of employment "when there is a 'causal relationship' between the injury and the employment." Commercial Carriers v. Industrial Comm'n, 888 P.2d 707, 712 (Utah.Ct.App.1994) (quoting M & K Corp., 112 Utah at 493, 189 P.2d at 134), cert. denied, 899 P.2d 1231 (Utah 1995). " 'Arising out of,' " however, does not mean that the accident must be " 'caused by' " the employment; rather, the employment " 'is thought of more as a condition out of which the event arises than as the force producing the event in affirmative fashion.' " Commercial Carriers, 888 P.2d at 712 (quoting 1 Arthur Larson, The Law of Workmen's Compensation § 6.60, at 3-9 (1994)) (emphasis in quoted treatise).

"CONTINUOUS COVERAGE" RULE

Petitioner's primary contention on appeal is that her slip-and-fall accident at the Massanutten Hotel satisfies both elements of Utah Code Ann. § 35-1-45 (1994) by virtue of the "continuous coverage" rule, also known as the "travelling employees" rule, Gray v. Eastern Airlines, Inc., 475 So.2d 1288, 1289 (Fla.Dist.Ct.App.1985), and the "commercial [e]mployees whose work entails travel away from the employer's premises are held in the majority of jurisdiction[s] to be within the course of their employment continuously during the trip, except when a distinct depart[ure] on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually compensable.

traveler" rule. IBM Corp. v. Workers' Compensation Appeals Bd., 77 Cal.App.3d 279, 142 Cal.Rptr. 543, 544 (Ct.App.1978). Under such a rule, however denominated,

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