Case of Barker

• Decision Date: 08 July 1983
• Docket Number: No. 14273,14273
• Citation: 666 P.2d 635,105 Idaho 108
• Court: Idaho Supreme Court
• Parties: In the Case of Edwin H. BARKER (Deceased). Katie L. BARKER, Claimant-Appellant, v. FISCHBACH & MOORE, INC., employer, and The Travelers, surety, Defendants-Respondents.

Page 635

666 P.2d 635

105 Idaho 108

In the Case of Edwin H. BARKER (Deceased) Katie L. BARKER, Claimant-Appellant, v. FISCHBACH & MOORE, INC., employer, and The Travelers, surety, Defendants-Respondents.

No. 14273.

Supreme Court of Idaho.

July 8, 1983.

William R. Hollifield, of Decker and Hollifield, P.A., Twin Falls, for claimant-appellant.

John W. Barrett, of Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-respondents.

DONALDSON, Chief Justice.

The decedent, Edwin H. Barker, was an electrician employed by the respondent, Fischbach & Moore, Inc., and was paid $90 per week as a travel allowance for trips to the work site located about 137 miles from his home in Twin Falls and 26 miles east of Arco. During the week the decedent stayed in Arco and on the weekends returned to his residence in Twin Falls. The contract between the union and the employer provided that a maximum of $18 per day would be paid as reimbursement for travel.

On April 25, 1980, the decedent left the work site for a dentist appointment in Twin Falls at approximately twelve noon. While driving to Twin Falls he was involved in a one-vehicle accident that resulted in his death.

The decedent's wife filed a claim for death benefits and a hearing was held before the Industrial Commission. The Commission denied benefits after concluding that because the employee had left the work site and was traveling to Twin Falls he was not engaged in employment for the employer at the time of the accident. Thus, the only issue raised on appeal is whether there is substantial, competent evidence to support the Commission's findings or whether the Commission erred as a matter of law in finding that Barker was not acting within the course of his employment while driving from the work site located near Arco to Twin Falls. Curtis v. Shoshone County Sheriff's Office, 102 Idaho 300, 629 P.2d 696 (1981).

For workmen's compensation to be due the employee must have been within the course of employment when he was injured or killed. I.C. § 72-102(14)(a); I.C. § 72-201. Unless an exception applies, under ordinary circumstances a worker is not in the course of employment while going to and from an employer's place of business for purposes of workmen's compensation law. Clark v. Daniel Morine Construction Co., 98 Idaho 114, 559 P.2d 293 (1977); Spanbauer v. Peter Kiewit Sons' Co., 93 Idaho 509, 465 P.2d 633 (1970). The reason the employee is generally not awarded compensation for injuries that occur while traveling to and from work is that the employment relationship is considered to be suspended from the time the employee leaves his work to go home until he resumes his work the next day.

Even though the general rule is that an employee is not within the course of employment while traveling to and from work, the concept of "course of employment" is extended when there is a special risk or service incident to the employee's employment involved in his travel. Jaynes v. Potlatch Forests, 75 Idaho 297, 271 P.2d 1016; Ridgway v. Combined Insurance Companies of America, 98 Idaho 410, 565 P.2d 1367 (1977); Clark, supra; Spanbauer, supra; In re South, 91 Idaho 786, 430 P.2d 677 (1967); Diffendaffer v. Clifton, 91 Idaho 751, 430 P.2d 497 (1967). This Court has applied this exception where,

' "there is such an obvious causal relation between the work and the hazard that the course of employment concept must be expanded to cover such employees, otherwise an injustice in the denial of compensation for an injury caused by the employment would result; it is a recognition of the causal connection between the conditions under which an employee must approach and leave the premises of the employer and the occurrence of the injury; it recognizes that the employment involves peculiar and abnormal exposure to a common peril which annexes itself as a risk incident to and inseparable from the employment; it is not necessarily based upon nearness to the plant nor upon reasonable distance therefrom or even identifying the surrounding area as an integral part of the premises for all practical purposes but upon a causal relationship between the work and the hazard." ' Spanbauer, 93 Idaho at 511, 465 P.2d at 635 (quoting Jaynes, 75 Idaho at 302, 271 P.2d at 1018).

The appellant argues that the decedent's trip from the remote site to Twin Falls, a distance of approximately 137 miles, was not the normal commuter trip and was a risk reasonably related to his employment. The Industrial Commission found that "[t]he evidence does not establish that there was a special or peculiar risk in connection with the travel of the decedent to or from his home and the work site." As noted in the cases cited above, this exception does not apply when an injury is sustained as a result of a common peril, but only when a special risk is presented. Therefore, the evidence is sufficient to support the Industrial Commission's finding that there was no special risk incident to the decedent's employment involved in his travel.

The appellant also claims that another exception to the going and coming rule is applicable to this case. The appellant argues that when the employer contracts to pay for the expense of travel the journey should be held to be in the course of employment. The Industrial Commission denied the claim on this basis and relied on Spanbauer v. Peter Kiewit & Sons' Co., 93 Idaho 509, 510, 465 P.2d 633, 634 (1970), in which this Court held that, "[w]hile proof of compensation for travel expenses or for travel time may be some evidence that appellant [employer] regarded respondent's [employee's] travel as part of his job, such evidence alone cannot support a conclusion that the accident in this case was in the course of respondent's [employee's] employment."

Even though some jurisdictions have held that an employee is in the course of employment while traveling to and from work if he is paid travel expenses by the employer, Industrial Commission v. Lavach, 165 Colo. 433, 439 P.2d 359 (Colo.1968); Westinghouse Electric Corp. v. Department of Labor and Industries, 94 Wash.2d 875, 621 P.2d 147 (Wash.1980), other jurisdictions, along with Idaho, have applied the rule that the payment of travel expenses is only some evidence that the employer regarded the employee's travel as part of his job. Spanbauer, supra; Fisher Contracting Co., Company v. Industrial Commission, 27 Ariz.App. 397, 555 P.2d 366 (Ariz.App.1976); Zenith National Insurance Co. v. Workmen's Compensation Appeals Board, 66 Cal.2d 944, 59 Cal.Rptr. 622, 428 P.2d 606 (Cal.1967); Matter of Willey, 571 P.2d 248 (Wyo.1977). The author of a leading treatise suggests that other evidence indicating the employer regards the employee's travel as part of his job is extended cross-country travel to reach the employment site and size of the travel allowance paid. 1 Larsen, Workmen's Compensation Law, § 16.30 (1982).

In Spanbauer, supra, the case relied on by the Industrial Commission, the claimant was denied compensation by this Court because there was no evidence that the employee was within the course of employment at the time of the accident. The claimant in Spanbauer was employed by the appellant to work on the construction of a segment of I 80N in south-central Idaho. At the time of the accident the employee was driving on an unfinished roadway. His employer had instructed him to take a county road that ran parallel to the unfinished road because it was an established policy to exclude all traffic from the unfinished road that was not necessary to the construction project.

The one critical factor not set forth in the Court's analysis in Spanbauer was that the employee injured himself while traveling on a route prohibited by the employer. By not adequately emphasizing this determining factor, the Spanbauer decision appears to find the evidence concerning the distance traveled to and from work and the amount of travel expenses paid by the employer to be irrelevant in deciding whether or not the exception should apply. Therefore, it is now necessary for this Court to emphasize that Spanbauer is to be read that the payment of travel expenses, along with other evidence indicating the employer intended to compensate the employee for travel time, will justify expanding the course of employment to include going to and from work. See generally, 1 Larson, The Law of Workmen's Compensation § 16.30 (1982). However, an employee will not be within the course of employment when traveling...