Cross v. Board of Review of Indus. Com'n of Utah
| Citation | 824 P.2d 1202 |
| Decision Date | 29 January 1992 |
| Docket Number | No. 910294-CA,910294-CA |
| Parties | Joel A. CROSS, Petitioner, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH, Workers Compensation Fund, and J.D. McNeil Construction, Respondents. |
| Court | Court of Appeals of Utah |
Debra J. Moore and Mary J. Woodhead, Salt Lake City, for petitioner.
Benjamin Sims, Salt Lake City, for Utah Indus. Com'n.
Suzan Pixton, Salt Lake City, for Workers Compensation Fund and J.D. McNeil Const.
Before BILLINGS, ORME and RUSSON, JJ.
Petitioner, Joel A. Cross, appeals from a final agency order of the Industrial Commission of Utah denying his claim for workers' compensation benefits pursuant to Utah Code Ann. § 35-1-45 (1988). We affirm.
The facts in this case were stipulated to by the parties. On June 4, 1988, at approximately 2:00 p.m., Joel Cross was driving home from work in his 1973 Ford Econoline van on I-80 near the Salt Lake/Tooele County border when the van exploded into flames. As a result of the fire, Cross sustained severe burns over a considerable portion of his body and consequently incurred substantial medical expenses. Cross claimed that he was in the course of his employment at the time of the incident and filed a claim for workers' compensation benefits. The Industrial Commission denied Cross's claim.
At the time of the incident, and since February 1988, J.D. McNeil Construction (McNeil) employed Cross as a laborer. Approximately one month prior to the incident, McNeil assigned Cross to a job site in Coalville, Summit County, Utah. On the day of the fire, Cross drove from his home in Tooele to his foreman's home in Salt Lake City. He left his van there and traveled to the Coalville work site in another vehicle. Later that day, when work had ceased, Cross returned to Salt Lake City, where he picked up his van and proceeded toward his home in Tooele. The fire occurred en route from Salt Lake City to Tooele.
Prior to Cross's transfer to the Coalville site, Cross had been assigned to a job in Delle, Tooele County, Utah. Because the Delle site was illuminated at night, Cross had been requested on certain occasions to check the lights at the site and replace the batteries as required. To this end, Cross had carried batteries for the lights in his vehicle. Cross was never called to check the lights after he was transferred to the Coalville project; in fact, Cross's supervisor recalls directing Cross that he would be relieved of that duty because a new foreman was assuming responsibility for the Delle project. Cross did not return the batteries prior to the incident and continued to transport them in his van. However, the batteries were not the cause of the fire.
Seeking compensation for his sustained injuries, Cross filed an application for a hearing with the Industrial Commission of Utah on June 2, 1989. The claim was heard by an administrative law judge and denied. Cross thereafter filed a request for review by the Industrial Commission, which request was also denied.
The sole issue presented for review is whether the Industrial Commission properly denied Cross workers' compensation benefits pursuant to Utah Code Ann. § 35-1-45 (1988).
Utah Code Ann. § 63-46b-16(4) (1988) of the Utah Administrative Procedures Act (UAPA) provides:
The appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by any of the following:
. . . . .
(d) the agency has erroneously interpreted or applied the law.
With the adoption of UAPA, deference to an agency's statutory construction should be given only "when there is a grant of discretion to the agency concerning the language in question, either expressly made in the statute or implied from the statutory language." Morton Int'l v. Auditing Div. of the Utah State Tax Comm'n, 814 P.2d 581, 589 (Utah 1991). Where there exists a grant of discretion, "we will not disturb the Board's application of its factual findings to the law unless its determination exceeds the bounds of reasonableness and rationality." Pro-Benefit Staffing v. Board of Review, 775 P.2d 439, 442 (Utah App.1989). "[A]bsent a grant of discretion, a correction-of-error standard is used in reviewing an agency's interpretation or application of a statutory term." Morton, 814 P.2d at 588; see also Mor-Flo Indus. v. Board of Review, 817 P.2d 328, 330 (Utah App.1991).
The relevant portion of the statute at issue here, Utah Code Ann. § 35-1-45 (1988), reads:
Each employee ... who is injured ... by accident arising out of and in the course of his employment, wherever such injury occurred, ... shall be paid compensation for loss sustained on account of the injury ... and such amount for medical, nurse, and hospital services and medicines....
Since § 35-1-45 does not expressly or impliedly grant discretion to the Industrial Commission in construing the specific language of the statute, we review the commission's interpretation of § 35-1-45 for correctness.
Cross argues that the injuries he sustained while traveling home from the Coalville project site arose out of and in the course of his employment for McNeil, and are therefore compensable under § 35-1-45. We disagree.
The well established rule is that "an employee is not deemed to be within the course of his employment for [workers'] compensation purposes when he furnishes his own transportation and is injured while going to or coming from his place of employment." Higgins v. Industrial Comm'n, 700 P.2d 704, 707 (Utah 1985); see also Cherne Constr. v. Posso, 735 P.2d 384, 385 (Utah 1987); State Tax Comm'n v. Industrial Comm'n, 685 P.2d 1051, 1053 (Utah 1984); Barney v. Industrial Comm'n, 29 Utah 2d 179, 506 P.2d 1271, 1272 (1973); and Bailey v. Utah State Indus. Comm'n, 16 Utah 2d 208, 398 P.2d 545, 546 (1965). In support of the "going and coming" rule, the Utah Supreme Court has reasoned that:
The major premise of the "going and coming" rule is that it is unfair to impose unlimited liability on an employer for conduct of its employees over which it has no control and from which it derives no benefit. Therefore, the major focus in determining whether or not the general rule should apply in a given case is on the benefit the employer receives and his control over the conduct.
Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934, 937 (Utah 1989).
Cross argues that he is excepted from the "going and coming" rule because he conferred a substantial benefit on his employer by traveling long distances to and from temporary construction sites. According to Cross, McNeil received a benefit because it was relieved of the necessity of hiring local crews for each new construction job.
In support of the proposition that considerable travel to temporary work sites is relevant in determining whether an accident arises out of and in the course of one's employment, Cross cites a line of "oil drilling" cases, namely, Loffland Bros. v. Baca, 651 P.2d 431 (Colo.App.1982); Messenger v. Sage Drilling Co., 9 Kan.App.2d 435, 680 P.2d 556 (1984); Lassabe v. Simmons Drilling, Inc., 228 Mont. 94, 743 P.2d 568 (1987); Christian v. Nicor Drilling Co., 653 P.2d 185 (Okla.1982); and Austin Drilling Co. v. Rice, 616 P.2d 446 (Okla.App.1980). These cases, however, are not dispositive of the case at bar. In each of the cases cited, the employer provided transportation to the remote job site, or alternatively paid the travel expenses to and from the work site. The courts ruled in those cases that transportation for crew members to drilling sites was an integral and necessary part of employment in the oil drilling industry and, therefore, the commute and resulting disability were within the course of the employee's employment. See Messenger, 680 P.2d at 560.
In the present case, McNeil did not undertake the responsibility of providing transportation for Cross. Nor did McNeil commit to paying Cross's transportation expenses to and from the Coalville project. The ride-sharing arrangement between Cross and his foreman was arranged out of mutual convenience, rather than at the direction of McNeil. The only understanding between Cross and McNeil was that Cross would be able to provide his own transportation to the job sites, which understanding is implied between almost any employer and employee. The nature of the construction business is not atypical and thus deserving of special treatment like the oil drilling industry. Transportation to a...
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