Jex v. Labor Comm'n

• Decision Date: 05 April 2012
• Docket Number: No. 20100674–CA.,20100674–CA.
• Parties: Layne JEX, Petitioner, v. LABOR COMMISSION, Precision Excavating, and Owners Insurance Co., Respondents.
• Court: Utah Court of Appeals

2012 UT App 98

275 P.3d 1078

705 Utah Adv. Rep. 45

Layne JEX, Petitioner,

v.LABOR COMMISSION, Precision Excavating, and Owners Insurance Co., Respondents.

No. 20100674–CA.

Court of Appeals of Utah.

April 5, 2012.

Aaron J. Prisbrey, St. George, for Petitioner.

Bret A. Gardner and Kristy L. Bertelsen, Salt Lake City, for Respondents Precision Excavating and Owners Insurance Co.

Before Judges ORME, ROTH, and CHRISTIANSEN.

OPINION

ROTH, Judge:

¶ 1 Layne Jex seeks judicial review of the Labor Commission's (the Commission) denial of workers' compensation benefits to him after he was injured while driving his personal vehicle from his workplace. Jex asserts that the denial was based on an erroneous determination that his vehicle was not an instrumentality of his employer's business. We decline to disturb the Commission's ruling.

BACKGROUND

¶ 2 The facts of this case are essentially undisputed.¹ On June 2, 2008, Jex was hired by Precision Excavating (Precision) in St. George, Utah, as a heavy equipment operator. Jex worked for several weeks on job sites in Washington, Utah, and Hurricane, Utah. At the time of the July 22, 2008 accident, Jex had been working on a job in Cedar City, Utah, approximately sixty miles north of St. George. Although Precision provided limited shuttle transportation to Cedar City in the supervisor's truck on a first-come, first-served basis, employees were otherwise responsible for their own transportation to and from the job site. Precision did not compensate them for their travel time or gasoline expenses. Jex sometimes rode in the company shuttle, but he preferred driving his own truck. On occasion, Jex's supervisor, Trent Holden, asked Jex to wait for a chronically-late employee named Nick to give him a ride to the job site.

¶ 3 In addition to driving himself to work, Jex carried his personal tools in his vehicle for use on the job. Although Holden was aware that Jex used his own tools, Holden testified that Precision provided all of the tools and equipment necessary for completing the work on the work site and that Jex was not required to bring any of his own tools to work. Jex acknowledged that “it was a convenience to have the tools so that he did not have to walk back and forth to the company truck which could be parked away from his work assignment.”

¶ 4 Twice during the three to four weeks Jex was working at the Cedar City location,² Precision asked him to leave the work site, pick up a tool or part, and bring the item back to the work site. Jex used his own vehicle to complete those errands. Holden indicated that a company truck had been available on both occasions but acknowledged that he was aware that Jex had used his personal vehicle and testified that they did not discuss which vehicle Jex should take. Jex was compensated for running these errands because they occurred during his shift, but he was not reimbursed for the use of his vehicle. As a result of the second errand, which required Jex to travel to Wheeler Machinery to pick up a hose he needed to operate a track hoe, Jex obtained two gallons of hydraulic fluid. Wheeler Machinery provided the hydraulic fluid at no cost to Precision because Precision rented the track hoe from Wheeler and the fluid in the track hoe might need replenishment after Jex replaced the hose. Jex testified that he kept the hydraulic fluid on the track hoe during the work day and stored it in his truck overnight so that he would have ready access to it if he needed it. He did not dispute Holden's testimony that he should have stored the fluid in one of the onsite company vehicles.

¶ 5 On July 22, 2008, Jex drove to the work site in his own vehicle. As he was leaving for the day, Jex noticed that another employee, James, who had ridden to work in Holden's truck, was still on site. Because Holden was working late, Jex inquired of him whether he should give James a ride home. Holden said, “ ‘Yeah go ask [him] if he wants to go now, and give him a ride.’ ” Holden testified that he also informed Jex that James either could go with Jex if he was ready or he could stay, work overtime, and ride back to St. George with Holden later. Jex did not tell James that he could stay and work, however, and James accepted the ride with Jex. While traveling south on I–15 from Cedar City to St. George, “Jex had a tire failure,” resulting in “a one car rollover vehicle accident.” Jex “injured his low back with fractures at the L1 and L2 level.”

¶ 6 Precision, through its insurance carrier, Owners' Insurance Company, denied workers' compensation benefits on the basis of the going and coming rule. The going and coming rule addresses when a person “acquires and abandons [his or] her status as an employee at the beginning and end of the workday” and provides that there is no “legal consequence to the employer” when “an untoward event ... befalls an employee who is ‘just’ coming or going from the workplace.” Salt Lake City Corp. v. Labor Comm'n, 2007 UT 4, ¶ 1, 153 P.3d 179. Jex then filed an application for hearing by an administrative law judge (ALJ) in the Labor Commission's Division of Adjudication. See generally Utah Code Ann. § 34A–2–801(1)(a) (2011) (“To contest an action of the employee's employer or its insurance carrier concerning a compensable industrial accident ... alleged by the employee ... [, the employee] shall file an application for hearing with the Division of Adjudication.”).³ At that hearing, Jex acknowledged the going and coming rule but argued that the instrumentality of business exception applied in this case and that benefits should not have been denied. The instrumentality of business exception exempts an employee from the going and coming rule “where the employer requires the employee to use a vehicle as an instrumentality of the business.” VanLeeuwen v. Industrial Comm'n, 901 P.2d 281, 284 (Utah Ct.App.1995) (internal quotation marks omitted). The ALJ issued a decision titled Findings of Fact, Conclusions of Law, and Order upholding the denial of workers' compensation benefits on the basis of the going and coming rule. Jex then filed a motion for review by the Commission, asserting that the ALJ failed to consider the use of his vehicle as an instrumentality of the business. See generally Utah Code Ann. § 34A–2–801(3)(a)–(b) (permitting a party to appeal the decision of the ALJ by filing a petition for review with the Division of Adjudication, which will then, absent certain circumstances not applicable here, assign the case to the commissioner for review). The Commission rejected Jex's claim that his vehicle was an instrumentality of the business and affirmed the ALJ on the basis of the going and coming rule. Jex now seeks review of the Commission's decision by this court. See generally id. § 34A–2–801(7) (indicating that the Commission's decision may be judicially reviewed in accordance with title 63G, chapter 4 of the Utah Code); Utah Code Ann. § 63G–4–403(1)– (2)(a) (2011) (allowing judicial review of a formal agency decision by the appellate courts).

ISSUE AND STANDARD OF REVIEW

¶ 7 Jex challenges the denial of workers' compensation benefits, asserting that his injury “arose out of and in the course of his employment” with Precision. In particular, he claims that the Commission improperly determined that his personal vehicle was not an instrumentality of Precision's business and therefore erroneously concluded that his accident was not exempt from the going and coming rule, which governs most employees traveling to or from work. “The issue before us is a mixed question of law and fact, one that calls upon us to review the application of law to fact.” Salt Lake City Corp., 2007 UT 4, ¶ 13, 153 P.3d 179. Because the facts are undisputed, our focus is on “the interplay between these facts and the eligibility requirements for workers' compensation benefits.” See id. The Utah Supreme Court has previously determined that we review such questions under a “conditionally deferential standard of review,” see id. ¶ 15, which grants “a measure of discretion to [the Commission],” tempered by the Workers' Compensation Act's policy of “alleviat[ing] hardship upon workers and their families” by “liberally constru[ing the act] ... to provide coverage” whenever there is “[a]ny doubt respecting the right of compensation.” ⁴ Drake v. Industrial Comm'n, 939 P.2d 177, 182 (Utah 1997) (first, second, and fourth alterations in original) (internal quotation marks omitted). ⁵

ANALYSIS

¶ 8 The Workers' Compensation Act compensates employees for injuries sustained in the course of employment. See Utah Code Ann. § 34A–2–401 (2011). However, “[a]s a general rule, injuries sustained by an employee while traveling to and from the place of employment do not arise out of and in the course of employment and are, therefore, not covered by workers' compensation.” VanLeeuwen, 901 P.2d at 284. This is because “in most instances, such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer.” Drake, 939 P.2d at 182 (internal quotation marks omitted); see also Barney v. Industrial Comm'n, 29 Utah 2d 179, 506 P.2d 1271, 1272 (1973) (“Ordinarily an employee is deemed not to be within the course of his employment if he furnishes his own transportation and is injured while going to or from the premises where he is employed.”).

¶ 9 There are certain exceptions to the going and coming rule, however, such as “where transportation was furnished by the employer to the benefit of the employer; where the employer requires the employee to use a vehicle as an instrumentality of the business; where the employee is injured while upon a ‘special errand’ or ‘special mission’ for the employer; where ingress and egress at the place of employment are inherently dangerous; and where the employee combined pleasure and business...