NO. 94-534

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

JANET STRICKLAND,

Petitioner and Appellant,

Employer

APPEAL FROM: The Workers' Compensation Court,

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Roger M. Sullivan and Allan M. McGarvey,

McGarvey, Heberling, Sullivan & McGarvey,

Kalispell, Montana

For Respondent:

Charles G. Adams, Legal Counsel, State

Compensation Insurance Fund, Helena, Montana

Filed:

Submitted on Briefs: July 6, 1995

Decided: September 14, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

The appellant, Janet Strickland, filed a petition in the

Workers' Compensation Court for the State of Montana, in which she

sought'compensation from the State Compensation Mutual Insurance

Fund for injuries she sustained in a two-car accident. The court

denied Strickland's claim on the basis that, at the time of the

accident, she was not acting in the course and scope of her

employment. Strickland appeals from the judgment which denied her

petition. We affirm the Workers' Compensation Court.

Strickland raises the following issues:

1 . Was there substantial evidence to support the Workers'

Compensation Court's finding that Strickland was on a personal

errand at the time of her car accident?

2 . Assuming she was on a personal errand at the time of her

accident, did the Workers' Compensation Court correctly conclude

that Strickland was not acting in the course and scope of her

employment?

FACTUAL BACKGROUND

On August 21, 1992, Janet Strickland was employed by Joe and

Sherry Tackett at the Tacketts' restaurant, Steaks n' Stuff, west

of Columbia Falls in Flathead County. She arrived at work between

3:00 and 4:00 p.m. At approximately 4:00, Strickland left the

restaurant to run an errand.

Sometime after Strickland left Steaks n' Stuff, apparently on

her return from the nearest convenience store, a car, which was

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traveling south on Highway 40 at a high rate of speed, struck her

vehicle.

Strickland suffered serious head injuries as a result of the

collision and was comatose for approximately six weeks. At the

time of trial, Strickland still experienced significant adverse

effects due to the accident, including difficulty remembering

events during the period just prior to the accident until

approximately eight weeks after the accident, or two weeks after

Strickland awoke from the coma.

O n August 24, 1992, three days after the accident,

Strickland's husband, Wayne, filed a workers' compensation claim

for her. In the claim, Wayne stated that Janet had gone on a

shopping errand for Steaks n' Stuff and that the accident occurred

during her return to work.

The issues raised by Strickland's petition and the State

Fund's answer were tried before the Workers' Compensation Court on

March 2, 1994. Marla Handford was called as a witness by the State

Fund. She identified herself as Steaks n' Stuff's head cook and

Strickland's supervisor on the afternoon of her accident. Handford

testified that during the time prior to Strickland's departure from

work, she had complained of cramps and at least inferred a desire

to locate and take an analgesic, such as Midol, that was stronger

than aspirin. Additionally, Handford testified that Strickland

wanted to purchase a newspaper in order to search for new office

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space for her husband's business. Testimony from Tackett and an

additional witness corroborated Handford's version of events.

Strickland testified that Handford directed her to go to the

Trumble Creek Hub in order to purchase a National Inquirer and a

National Examiner. In support of Strickland's version of events,

an investigator, Bob Evans, testified that 10 or 11 days after the

accident, he examined Strickland's car and found within it a

National Inquirer and a National Examiner. Furthermore, Wayne

Strickland testified that on the day of the accident, while at the

hospital, he spoke with Joe Tackett, who stated that Handford told

him that she felt the accident was her fault because she had sent

Strickland to the store.

Handford unequivocally denied sending Strickland anywhere.

She also testified that after Strickland had decided to go to the

store for personal reasons, she might have asked her to bring back

something for her (Handford) to read. She gave the following

testimony:

Q: [RESPONDENT'S ATTORNEY] Do you remember whether or

not you sent her out?

A. No, I didn't send her anywhere.

Q . You're certain of that?

A. I'm certain of that.

. . .

Q . You don't recall saying, Would you get me something

to read?

A. No.
. .

A. . You know, we were friends and we were talking

and giggling and laughing. I don't remember if I--I

said, Well, if you're going to get something to read,

I'll have something too, you know, pick me up something

too.

The Workers' Compensation Court found Handford's version of

the events more credible that Strickland's, in part because of the

length of Strickland's coma and the fragmentary nature of her

memory concerning the day of the accident. It also found that

Wayne's testimony was not credible. The court found that

Strickland was on a personal errand at the time of the accident.

Accordingly, the court concluded that Strickland was not acting

within the course and scope of her employment at the time of the

accident, and therefore, denied Strickland's petition for workers'

compensation benefits.

ISSUE 1

Was there substantial evidence to support the Workers'

Compensation Court's finding that Strickland was on a personal

errand at the time of her car accident?

We will review the Workers' Compensation Court's findings of

fact to determine whether substantial evidence supports the

findings. Wunderlich V. Lumbermens Mutual Casualty Co. (Mont. 1995) , 52 St.

Rep. 251, 253 (citing Smith v. UnitedParcelService (1992) , 254 Mont. 71,

75, 835 P.2d 717, 720). We stress this standard of review in light

of Strickland's assertion that we have "vacillated" between the

"substantial evidence" and "clearly erroneous" standards in

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relation to the Workers' Compensation Court's findings of fact.

Assuming arguendo that we have vacillated in this respect, Buckentinv.

State Compensation Mutual Insurance Fund ( 19 9 4 ) , 2 65 Mont. 518, 878 P .2d 2 62,

makes clear that our employment of the clearly erroneous standard

in Boglev. OwnerrentRenttoOwn (1994), 264 Mont. 515, 872 P.2d 800, was

incorrect. Buckentin , 878 P.2d at 263.

Strickland contends that substantial evidence did not support

the Workers' Compensation Court's finding that she was engaged in

a personal errand at the time of her accident. In support of this

contention, she cites physical evidence which is inconsistent with

Handford's version of events and suggests that Handford's testimony

was too equivocal to directly contradict her own evidence.

The State Fund responds that Handford's testimony provided

substantial evidence in support of the court's critical finding and

that because Handford's and Strickland's testimony were

contradictory regarding the nature of Strickland's errand, this

Court must defer to the Workers' Compensation Court's resolution of

that factual issue. The State Fund notes, and we agree, that this

Court is not in a position to independently assess either witness

credibility or the weight to be given to a witness's testimony.

In support of its argument, the State Fund cites Wunderlich, in

which we held that substantial evidence consists of more than a

mere scintilla of evidence, but may be somewhat less than a

preponderance of the evidence. Wunderlich , 52 St. Rep at 253. By

that standard, the State Fund contends that Handford's testimony

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satisfied the requirement of substantial evidence. We agree, and

further note that ' [tlhe direct evidence of one witness who is

entitled to full credit is sufficient for proof of any fact

. 1, Section 26-l-301, MCA.

For these reasons, and based on the testimony of Marla

Handford and our review of the entire record, we conclude there was

substantial evidence to support the Workers' Compensation Court's

finding that Strickland was engaged in a personal errand at the

time of her motor vehicle accident.

ISSUE 2

Assuming she was on a personal errand at the time of her

accident, did the Workers' Compensation Court correctly conclude

that Strickland was not acting in the course and scope of her

employment?

We review the Workers' Compensation Court's conclusions of law

to determine whether they are correct. Glade v. State Camp. Ins. Fund

(Mont. 1995), 894 P.2d 940, 941, 52 St. Rep. 367 (citing Stordalenv.

Ricci’sFoodFarm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394).

Strickland asserts that even if she was on a personal errand

at the time of the accident, she was, nonetheless, acting within

the course and scope of her employment. She bases this contention

on the "personal comfort" and "rest break" doctrines described at

Larson's Workers' Compensation Law, Vol. 1A § 21.00, at 5-5, and

Vol. 1 § 15.54, at 4-116.38, 4-116.40, respectively, and our prior

decision in Steffesv. 93LeasingCo. (1978), 177 Mont. 83, 580 P.2d 450.

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However, whether injuries sustained while traveling to and from

work are compensable is governed by statute in Montana; see

5 39-71-407, MCA (1987), and StateFundv.James (19931, 257 Mont. 348,

849 P.2d 187, and Steffes was decided before the effective date of

that statute

Section 39-71-407(3), MCA, provides the only circumstances

under which an employee's travel-related injuries are compensable.

That section provides, in relevant part:

An employee who suffers an injury . . . while traveling

is not covered by this chapter unless:

(a) (i) the employer furnishesthetransportationor

the employee receives reimbursement from the employer for

costs of travel, gas, oil, or lodging as a part of the

employee's benefits or employment agreement; and

(ii) the travel is necessitated by and on behalf of

the employer as an integral part or condition of the

employment; or

(b) the travel is required by the employer as part

of the employee's job duties.

Strickland used her own vehicle,to run the errand. Nothing in

the record establishes that Tackett reimbursed Strickland for the

costs of running the errand and, as previously discussed, the

Workers' Compensation Court specifically found that Strickland's

employer did not require that she make the trip she was on at the

time of her injuries. Since we have previously held that that

finding was supported by substantial evidence, we conclude that

Strickland was not acting within the course and scope of her

employment at the time she was injured, and that the Workers'

Compensation Court, therefore, correctly concluded that her claim

is not compensable.

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For these reasons, we affirm the judgment of the Workers'

Compensation Court.

We concur:

n

Justices

9
Justice W. William Leaphart, dissenting.

I dissent from the Court's conclusion that there was

substantial evidence to support the Workers' Compensation Court's

finding that: "claimant left work on a personal errand to purchase

a newspaper and possibly an analgesic [Midol] .I' Despite Marla

Handford's testimony as to the newspaper and Midol, the record

shows no physical evidence to support the position that Janet

Strickland was on a personal errand. Neither Midol nor a u

InterLake newspaper was found in Strickland's car. If, as Handford

claimed, Strickland were returning from a personal trip to the

store to purchase these items, where were they? Additional

evidence refutes the assertion that Strickland was on a personal

trip. Strickland had no need for Midol, she did not have her

period, she was not premenstrual, and she testified that she does

not suffer from menstrual cramps and has never used Midol. Since

Strickland subscribed to the Dailv InterLake, there was no reason

for her to purchase the paper. Although this Court defers to the

Workers' Compensation Court on questions of witness credibility,

the complete lack of physical evidence to support the State Fund's

position that Strickland was on a personal errand overrides the

credibility assigned to Handford by the Workers' Compensation

Court. I find that substantial evidence does not support the

Workers' Compensation Court's finding that Strickland was engaged

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in a personal errand at the time of her accident.

Justice William E. Hunt, Sr., joins in the foregoing dissent

of Justice W. William Leaphart.

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September 14, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Roger M. Sullivan, Allan M. McGarvey

McCarvey, Heberling, Sullivan & McGarvey

745 South Main

Kalispell MT 59901

Charles G. Adams, Legal Counsel

State Compensation Insurance Fund

Box 4159

Helena MT 59604-4759

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY:&-

Deputy u