No. 84-518 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

MAXIM0 CORREA, 

Claimant and Appellant, 

-vsREXROAT TILE, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Utick, Grosfield & Uda; Norman H. Grosfield, Helena, 

Montana 

For Respondent: . . , . 

Luxan & Murfitt; Michael McCarter, Helena, Montana 

Submitted on Briefs: April 18, 1985 

Decided: July 23, 1985 

i ; iqgs Filed: " 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment of the Workers1 

Compensation Court of the State of Montana. Appellant Maximo 

Correa ("appellant") sought benefits as a result of a January 

13, 1983 accident in Gallatin County. Benefits were denied 

and this appeal followed. 

Appellant began work as a tile sett~r's helper for 

Rexroat Tile in November of 1982. In January of 1983 Rexroat 

began a project at the University Student Union in Bozeman. 

Appellant, who resides in Helena, lived in a motel in Bozeman 

during the week and returned to Helena on the weekends. 

Rexroat reimbursed appellant for the motel as well as for gas 

for the trips to Helena. Appellant was to remain in Bozeman 

during the work week, unless a midweek trip to Helena was 

required to pick up materials. 

On Wednesday, January 12, 1983, appellant and his 

brother (who was also employed on the project) worked until 

early evening. After a stop at the motel they settled in a 

bar until nearly midnight at which point appellant told his 

brother that he was going to drive to Helena to see his wife. 

Appellant's next recollection was waking in the intensive 

care unit of Bozeman Deaconess Hospital. He was charged with 

DUI. Appellant was expected at work at eight o'clock on the 

morning following the accident. 

On September 21, 1983, appellant filed a Workers' 

Compensation claim in which he contends he was injured on 

January 13, 1983, in connection with his employment with 

Rexroat Tile. The State Compensation Insurance Fund 

("respondent") denied liability and a trial was held on Nay 

24, 1984, before the Workers' Compensation Court. In a 
ruling dated October 25, 1984, the appellant was denied 

benefits and medical costs, the court holding that the 

January 13, 1983, accident was not within the scope of his 

employment. 

The following issues are raised for review: 

(1) Whether, because appellant was receiving a travel 

and subsistence allowance, his injury arose out of and in the 

course of his employment, and was thus compensahle under the 

Workers1 Compensation Act? 

(2) Whether appellant was in a "travel status" at the 

time of his injury, making such injury compensable under the 

Workers1 Compensation Act? 

(3) Whether appellant suffered a type of idiopathic 

fall which arose out of and in the course of his employment, 

and is thus compensable under the Workers' Compensation Act? 

P.ppellantls arguments can be easily disposed of. 

Section 39-71-407, MCA, provides: 

"Every insurer is liable for the payment 

of compensation, in the manner and to the 

extent- hereinafter provided, to an 

employee of an employer it insures who 

receives an injury arising - out of and in 

the course -- of his employment or, in the 

case of his death from such injury, to 

his beneficiaries, if any. " (Emphasis 

added. ) 

It is the general rule in Montana that travel by an employee 

to and from work is outside the course of his employment. 

Gordon v. Smith Construction Co. (1980), 188 Mont. 166, 612 

P.2d 668. The well-established exception to this rule is 

that when an employee is given a specific allowance to travel 

to and from the job, such travel is considered within the 

course and scope of employment. Gordon, supra; Ellingson v. 

Circle Co. (1975), 166 Mont. 431, 533 P.2d 1100; McMillen v. 

Miller & Co. (1975), 166 Mont. 400, 533 P.2d 1095. In 
McMillen and Ellingson, claimants were injured in automobile 

accidents while enroute to their jobs. In both cases they 

were receiving a travel allowance from their employers. This 

Court found that their injuries were incurred while in the 

course of employment and were compensable. In Gordon the 

facts are similar. John Gordon received a subsistence 

allowance for working at a job site more than fifty-four 

miles from Great Falls. Gordon's temporary residence was in 

Lewistown from which he commuted to the jobsite twenty-four 

miles northeast of Denton. On May 1, 1978, Gordon got off 

work and drove to the Denton Bar. He stayed there for 

several hours and left with friends at 10:OO that evening. 

Two miles west of Denton, travelling toward Stanford and away 

from Lewistown, Gordon was killed in an automobile accident. 

This Court ruled that Gordon was being compensated for travel 

to and from work and that his death was compensable. The 

fact that Gordon was travelling away from his place of 

temporary residence was found irrelevant because Gordon often 

stayed with fellow employees in Stanford rather than 

returning each night to Lewistown. 

Appellant argues that the above cases are authority for 

holding that his injury is compensable. He claims that since 

he received a travel allowance and was injured in his car he 

was within the course of his employment. This argument is 

totally unpersuasive. The rule this Court has clearly 

established is that an employee injury suffered while 

travelling to and from work is compensable under Montana law 

if the employee is receiving a specific allowance for such 

travel. In this case the appellant was working under an 

agreement whereby he would be compensated for weekend trips 

from Bozeman to his home in Helena. He was expected to stay 
in Bozeman during the week. At midnight on a Wednesday 

appellant set off in an extremely intoxicated condition to 

drive From Bozeman to Helena. He was expected at work in 

Rozeman at 8:00 o'clock Thursday morninq. The injury 

suffered by appellant was not, in any manner contemplated by 

this Court or by common sense, suffered while he was 

travelling to and from work. Even if by some heavy exercise 

of the imagination we could interpret appellant's travels as 

being to and from work, he did not receive a specific 

allowance for such mid-week travel. In Hagerman v. Galen 

State Hospital (1977), 174 Mont. 249, 570 P.2d 893, an 

employee of Galen State Hospital was injured while travelling 

to work. The only provision in the employee's contract for 

travel pay was for emergency call outs. No such emergency 

was involved and this Court held the injury not compensable. 

Clearly, if the employee had been travelling on an emergency 

call out her injury would have been compensable. Similarly, 

in our case, if appellant had been injured on a weekend trip 

to or from his home in Helena, such injury would be 

compensable. But these are not our facts. 

Appellant also argues that " [a] n additional and 

distinct exception to the 'going to and from work' rule under 

workers' compensation law involves employees who are in a 

' travel status. ' " Appellant is correct that there is a 

"travel status" exception to the genera1 rule that denies 

compensation for injuries sustained while going to and from 

work. This exception applies where an employee is required 

to travel away from home on his employer's business. The 

exception is given most succinct expression in Steffes v. 93 

Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450 wherein 

it is stated that employee injuries are compensable when they 
are sustained while travelling for the special benefit of the 

employer. "The underlying principle of this exception is 

that in cases where some reasonably immediate service to the 

employer can be discerned, the claim should be sustained; 

where there is no reasonably immediate service, the claim 

should be denied." Steffes, 177 Mont. at 87, 580 P.2d at 

453. In the present case we do not see any special benefit 

or reasonably immediate service to Rexroat Tile whatsoever in 

appellant's midnight travels. Appellant makes the argument, 

with citations to other jurisdictions, that employees working 

away from home should be considered in a "travel status" on a 

24-hour, around the clock basis, regardless of the nature of 

their activity. If such is the law elsewhere we refuse to 

adopt it here. 

Finally, appellant would have this Court consider his 

accident a "type of idiopathic fall, " compensable under 

workers' compensation law. We note first of all that an 

employee in jury, whether arising out of a condition personal 

to the claimant (idiopathic) or not, must occur in the course 

of employment or in a "travel status" in order to be 

cornpensable. Since we hold that appellant was not in a 

"travel status" and was not in the course of employment, his 

injury, idiopathic or otherwise, is not compensable. 

Second, appel lant Is imprecise, we might say Orwellian 

use of language deserves comment. Appellant was not injured 

in any type of a fall--he was iniured in an automobile 

accident. Both cases cited by appellant, Franqu~t v. 

Imperial Management Corp. (Kd. 1975), 341 A.2d 881 and Indian 

Leasing Co. v. Turbyfill (Ky. 1978), 577 S.W.2d 24, involve 

injuries received from falls on the job. Further in Franquet 

the Maryland court cites to no less than a dozen cases, all 
of which involve injuries sustained by workmen falling while 

on the job. If there is case law in this country which makes 

an analogy between the kind of injury incurred by appellant 

and an idiopathic fall the appellant has failed to point it 

out. Appellant writes: "If the Claimant had been on the job 

at the student union project at Bozeman and had suffered a 

blackout as a result of alcohol consumption, resulting in 

injuries, he would have certainly been entitled to workers' 

compensation benefits under the idiopathic fall rule." 

Whether or not such an injury would be compensable, it 

clearly would be the result of a fall. But once again, these 

are not our facts. 

The judgment of the Workers ' Compensation Court is 

affirmed. 

We concur: U 

Justices 
Mr. Justice Frank R. Morrison, Jr. concurs as follows: 

I concur in the result although not in the tenor of 

the opinion which seems to treat appellant's position as 

frivilous. In light of our holding in Gordon v. Smith 

Construction Co. (1980), 188 Mont. 166, 612 P.2d 668 this is 

a close case. Gordon can be distinguished because of 

evidence of Gordon's "temporary home" in Stanford to which 

he was traveling at the time of his accident. 

I agree to affirm.