No. 88-388 

TM THE SUPREME COIJRT OF THE STATE OF MONTANA 

-- 

LTEANNIE BUHL , 

Claimant and Appellant, 

-vsWARM SPRINGS STATE HOSPIT'AL, 

Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Greg J. Skakl-es; Johnson, Skakles & Rehe, Anaconda, 

Monta~a 

For Respondent: 

Chris D. Tweeten, Agency 1,eqal Services Bureau, Helena, 

ZMontana 

a= Filed: E 

'J lL1 

h* - . .- Submitted on Briefs: Feh. 3, 1989 

Decided: March 7, 1989 0 

- " Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Claimant Jean Ann Buhl was injured while en route to her 

employment at Warm Springs State Hospital and filed a workers1 

compensation claim for temporary disability pay for the several 

months of work she missed due to the injuries from the accident. 

Benefits were denied. The case was submitted to the Workers1 

Compensation Court on an agreed set of facts. The parties agreed 

that the only issue to be determined was whether the claimant 

suffered injury in the course and scope of her employment. The 

Workers1 Compensation Court ruled that she did not. Claimant 

appeals. 

We affirm. 

The only issue on appeal is whether the Workerst Compensation 

Court erred as a matter of law when it concluded that claimant's 

conduct at the time of her injury was not within the course and 

scope of her employment and that it did not come under any 

exception to the "going and cominggt rule. 

On August 10, 1985, claimant was riding to work as a passenger 

in a car driven by co-employee Sue Graves down Highway 48 in 

Montana from their residence in Anaconda to their employment site 

at Warm Springs. They were scheduled to go on duty at 3:00 p.m. 

that afternoon. En route to Warm Springs, they saw a fellow 

employee, Gene Evans, with his car parked alongside the highway 

with the hood up. Claimant and the driver mutually agreed to stop 

their car to see if they could render assistance to their stranded 

co-worker. Claimant was sitting inside Graves's parked car when 

the car was struck by another car. Claimant was injured in that 

collision. 

Claimant argues first that it was the employment relationship 

that motivated them to stop Graves's car, and that secondly, by so 

aiding a fellow employee get to work on time, she was conferring 

a benefit upon the employer. Both of these bring this conduct 
under an exception to the "going and coming'l rule, according to 

claimant. We disagree. 

To be compensable an injury generally must occur within the 

course and scope of employment, section 39-71-407, MCA (1985), and 

travel to work and coming home from work ("going and comingl1) is 

not within the course and scope of employment, Griffin v. 

Industrial Accident Board (1940), 111 Mont. 110, 106 P.2d 346. 

Exceptions may apply when additional factors are present, such as 

when the employer pays for or provides the employee's transportation. Correa v. Rexroat Tile (Mont. 1985), 703 P.2d 160, 42 

St.Rep. 1075; Gordon v. H. C. Smith Construction Co. (1980), 188 

Mont. 166, 612 P. 2d 668. In the instant case, claimant was not 

compensated by the employer for time spent in transit. The 

accident occurred while she was off duty and off of the employer's 

premises. 

On facts very similar to these, this Court denied compensation 

to the claimant based on the "going and coming1' rule. Hagerman v. 

Galen State Hospital (1977), 174 Mont. 249, 570 P.2d 893. In that 

case, the claimant was an employee at Galen State Hospital who 

commuted twelve miles to work every day from her residence in 

Anaconda. She was not personally compensated by the employer for 

her commuting expenses. She was injured in an auto accident en 

route to work one day and filed a claim with her employer for 

compensation. We affirmed the denial of benefits stating: 

Throughout the years this State has had workers' compensation, this Court has considered 

a number of cases where injuries were sustained going to or coming from work and has 

found no recovery unless employee travel pay 

was covered under the employment contract or 

that travel allowance was for travel for the 

special benefit of the employer. [Citations 

omitted. ] 

Unless transportation is made a part of the 

employment contract or travel to and from work 

is recognized by legislative enactment or 
contract, any injuries suffered in such travel 

are outside the course and scope of the employment. 

Haqerman, 174 Mont. at 251, 570 P.2d at 894. The Workers' Compensation Court specifically noted that this case was within the 

Haqerman rule when it denied benefits to claimant. 

Claimant argues that her case fits the Ifspecial benefit1' 

exception articulated in Haqerman because she conferred a reasonably immediate service to her employer. She argues that she was 

injured while attempting to help a fellow employee get to work on 

time, completing the work force for the benefit of the employer. 

The Workers' Compensation Court rejected that argument 

stating: "If merely securing the employee's presence at work is in 

every case a 'special benefit,' the exception swallows up the 

rule." Because of this, the court found that no exception to the 

general rule applied based on claimant's conduct at the time of her 

injury. We agree. 

As we stated in Ogren v. Bitterroot Motors, Inc. (Mont. 1986) , 

723 P.2d 944, 947, 43 St.Rep. 1467, 1471: "It is hard to imagine 

how traveling to one's regular work place on a regular workday can 

be for the special benefit of an employer." Thus, claimant's 

conduct in this case is dispositive. No exception to the general 

rule would apply under these facts for conduct securing her or 

Evans' presence at work at their regularly scheduled time. The 

Workers' compensation Court is affirmed on that ruling. 

Here, it should be noted that this case was submitted on an 

agreed set of facts which do not support claimant's primary theory: 

that the purpose of the stop was to aid Evans in getting to work 

on time, although that might be inferred as one reason for stopping 

from the context of all the facts taken together. The facts 

generally indicate that stopping was a voluntary choice by Graves, 

for humanitarian purposes, because a motorist was stranded. They 

do not indicate that claimant was concerned with Evans1 timely 
arrival at work, nor do they indicate that Graves would have passed 

him by had he not been scheduled to work at 3:00 p.m. 

However, the facts point out that the employer did not 

request, require, or know of claimant's conduct, and that there is 

a total lack of employer participation in the activity causing 

injury . 

Claimant next argues that her injury is compensable because 

her conduct was of "mutual benefit" to the employer and herself and 

is thus another possible exception to the going and coming rule. 

We disagree. 

The "mutual benefit" exception was recently discussed in 

Lassabe v. Simmons Drilling, Inc. (Mont. 1987), 743 P.2d 568, 570- 

571, 44 St.Rep. 1369, 1372, where we stated: 

. . . because when some advantage to the 

employer results from the employee's conduct, 

his act cannot be regarded as purely personal 

and wholly unrelated to the employment. 

Citing, Guarascio v. Industrial Accident Board (1962), 140 Mont. 

497, 501, 374 P.2d 84, 86. 

However, this rule is inapplicable for the reasons addressed 

above. Simply securing the employee's presence at work cannot be 

a I1special benefit" or an I1advantage" to the employer. Under these 

facts, the work area is not a danger zone, such as a construction 

site; nor is it an entirely remote area, such as a drilling site. 

The employer in this case is wholly removed from transportation 

responsibilities and can reasonably expect that employees secure 

their own transportation to and from work. Such transportation is 

not within the course and scope of the employment. Absent any 

additional factors, injuries occurring during transit are not 

compensable. 

Because this case turns on claimant's Iftravel statust1 at the 

time of injury, and because we have already affirmed that no 

exceptions can apply to her conduct, we decline discussion on 
claimant's four remaining proposed exceptions. 

Claimant's conduct is too far removed from any benefit or 

logical nexus to the employer to bring this case within an exception to the ''going and corning1' rule. Her injury is not compensable 

under our scheme of workers' compensation. Benefits were properly 

denied. 

Judgment affirmed. 

Chief Justice 

We concur: 

Justices B