### No. 84-518 

### INTHE SUPREME COURT OF THE STATEOF MONTANA 1985

MAXIM0 CORREA, Claimantand Appellant,
-vsREXROAT TILE, Employer, and STATE COMPENSATION INSURANCEFUND, Defendantand Respondent.

APPEAL FROM: Workers' Compensation Court,

### The Honorable Timothy Reardon, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: 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: "



### ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court.
This is an appeal from a judgment of the Workers1 Compensation Court of the Stateof Montana. Appellant Maximo Correa ("appellant") soughtbenefits asa resultof a January 13, 1983 accident in Gallatin County. Benefits were denied and thisappeal followed. Appellant began work as a tile sett~r's helper for Rexroat TileinNovember of 1982. InJanuary of 1983Rexroat began a project atthe University Student Union in Bozeman. Appellant, who resides inHelena, lived ina motel inBozeman during the week and returned to Helena on the weekends. Rexroat reimbursed appellant for themotel aswell asfor gas for the tripstoHelena. Appellant was toremain inBozeman during the work week, unless a midweek trip to Helena was required topick upmaterials. On Wednesday, January 12, 1983, appellant and his brother (who was also employed on the project) worked until earlyevening. After a stop atthemotel they settled in a bar until nearly midnight atwhich point appellant told his brotherthathewas going todrivetoHelena tosee hiswife. Appellant's next recollection was waking in the intensive
careunitof Bozeman Deaconess Hospital. Hewas charged with DUI. Appellant was expected atwork ateight 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 aruling 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 compensahleunder the Workers1Compensation Act? 

### (2)Whether appellant was in a "travel status" at the time of his injury,making such injury compensable under the Workers1CompensationAct? (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' CompensationAct? P.ppellantls arguments can be easily disposed of. Section 39-71-407,MCA, provides: "Every insurer is liable for the payment of compensation, in themanner 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. InMcMillen 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 residencewas 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. Twomiles west of Denton, travelling toward Stanford and away from Lewistown, Gordon was killed in an automobile accident. This Court ruled that Gordonwas 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 residencewas found irrelevantbecause 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 stayin 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 appellantwas not, in any manner contemplated by this Court or by common sense, suffered while he was travelling to and fromwork. 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 StateHospitalwas 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 appellanthad 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 fromwork' 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 Steffesv. 93 Leasing Co., Inc. (1978), 177Mont. 83, 580 P.2d 

### 450 wherein it is stated that employee injuries are compensable when theyare sustained while travelling forthe special benefit of the employer. "The underlying principle of this exception is that in cases where some reasonably immediate service tothe 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
orreasonably immediate servicetoRexroat Tilewhatsoever in appellant's midnight travels. Appellant makes the argument, with citationstootherjurisdictions, thatemployees working away from home shouldbe considered ina "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 totheclaimant (idiopathic) ornot, must occur inthecourse 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 inthe course of employment, his injury, idiopathicorotherwise, isnot compensable. Second, appellantIsimprecise, 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~tv. ImperialManagement Corp. (Kd. 1975), 341A.2d 881and Indian Leasing Co. v. Turbyfill (Ky. 1978), 577 S.W.2d 24, involve injuriesreceived from fallson thejob. Further inFranquet the Maryland court cites tono less than a dozen cases, allof which involve injuries sustained by workmen fallingwhile
on thejob. If there iscase law inthiscountrywhich makes
an analogy between the kind of injury incurred by appellant and an idiopathic fall the appellant has failed topoint it out. Appellant writes: "If the Claimant had been on thejob atthe 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 toworkers' compensation benefits under the idiopathic fall rule." Whether or not such an injury would be compensable, it clearlywould be theresultof a fall. But once again, these
arenot our facts. The judgment of the Workers

### ' Compensation Court is affirmed.

We concur: 

# U

JusticesMr. 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), 188Mont. 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. Iagree to affirm.