No. 86-459 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

HAROLD J. LASSABE, 

Claimant and Appellant, 

-vsSIMMONS DRILLING, INC., 

Employer, 

and 

ARGONAUT INSURANCE COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cotter & Cotter; Michael W. Cotter argued, Great Falls, 

Montana 

For Respondent: 

Garlington, Lohn & Robinson; Robert E. Sheridan argued, 

Missoula, Montana 

Submitted: June 2, 1987 

Decided: August 17, 1987 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Claimant appeals the order of the Workers1 Compensation 

Court denying him Workers1 Compensation benefits for injuries 

he received in an automobile accident. We reverse the order 

of the Workers1 Compensation Court and remand the case for 

further proceedings. 

Claimant Harold J. Lassabe filed a petition with the 

Workers1 Compensation Court after Argonaut Insurance Company, 

the insurer for Simmons Drilling, Inc., denied liability for 

Lassabels injuries and refused to pay benefits to him. Prior 

to trial, the parties stipulated that the issue of liability 

on the part of Simmons Drilling would be litigated separately 

from the questions of disability benefits, costs and attorney 

fees. The sole issues submitted to the Workers1 Compensation 

Court at the hearing were: 

1. Whether Lassabe was an employee of Simmons Drilling 

at the time of the automobile accident? 

2. Whether Lassabe was within the course and scope of 

his employment for Simmons Drilling at the time of his 

accident? 

Since the Workers1 Compensation Court found it could 

decide the case by a preponderance of probative credible 

evidence on the second issue, the court held that Lassabe was 

not in the course and scope of his employment when he was 

injured and did not reach the first issue. Lassabe has 

appealed the court's judgment on the above two issues. 

Simmons Drilling is a corporation involved in oil 

exploration and drilling operations. In January, 1982, 

Simmons Drilling had a drilling rig operating approximately 

40 miles southwest of Newcastle, Wyoming. Drilling crews 
working on the rig had temporary living quarters at a motel 

in Newcastle. The crews worked a twenty-one day on, seven 

day off schedule. During their seven days off, the crews 

were free to come and go as they pleased. 

Alvin Robinson was a driller for Simmons Drilling. In 

mid-January, 1982, he returned to his home in Kevin, Montana, 

during his seven days off. While he was there, he hired a 

crew to work for him on the Newcastle rig. Among those whom 

he contacted to work was Harold Lassabe. Robinson arranged 

for Lassabe and two other men to drive Robinson's car from 

Kevin to Newcastle so the crew could begin work on the 

midnight tower January 24. On the morning of January 23, 

Robinson and his wife left for Newcastle, followed by the 

drilling crew in Robinson's car. North of Vaughn, Montana, 

the car carrying the drilling crew was involved in an 

accident. Lassabe, who was in the front passenger seat, hit 

his head on the windshield and injured his neck, lower back 

and left side. Lassabe was taken to a hospital in Great 

Falls, and the remainder of the crew and the driller Robinson 

continued on to Newcastle. Robinson reported the accident to 

the rig manager when he arrived in Newcastle. 

Montana law provides that an employee who receives an 

injury arising out of and in the course of his employment is 

entitled to disability benefits. Section 39-71-407, MCA. 

Before considering whether Lassabe was acting within the 

course and scope of employment, the basic premise of 

employment must be established. Guarascio v. Industrial 

Accident Bd. (1962), 140 Mont. 497, 499, 374 P.2d 84, 85. 

Whether or not Lassabe was an employee of Simmons Drilling at 

the time of the accident depends on whether or not there was 

an employment contract between the two parties. - Id. at 

499-500, 374 P.2d at 85. An employment contract may be 
expressed or implied, oral or written. Section 

39-71-118 (1) (a), MCA. 

The Workers' Compensation Court found that Robinson was 

the driller employed by Simmons Drilling on the Newcastle 

project to supervise one of the crews. Robinson, as the 

driller, had the responsibility of rounding up his own crews. 

The court found that the "ultimate responsibility or 

authority to accept [a crew member] for employment" was with 

the rig manager or "tool pusher," that position being filled, 

at the time of the accident, by a man named John Chamber. 

However, Chamber himself testified that in actual practice he 

never refused employment to any person Robinson brought out 

to the rig. Chamber further testified that in his 

twenty-five years of experience in the oilfield as a hand, 

driller, and tool pusher, the customary practice was for the 

tool pusher to hire the driller, and for the driller to hire 

his own crew. The driller was the direct supervisor of his 

crew, and arranged for all the transportation of the crew to 

the drilling locations. 

Thus in the practice of oilfield hiring, when Robinson 

contacted Lassabe and the other crew members to come to work 

for him, and when he thereafter arranged for them to drive in 

his car and arrive in Newcastle the following day, such 

conduct by the driller would reasonably lead Lassabe to 

conclude he was employed. The three crew members had with 

them in the car at the time of the accident all of their 

workclothes, hardhats, boots and other equipment for working 

on the rig. Lassabe and another crew member testified it was 

their understanding they were to begin their shift upon 

arrival in Newcastle, after checking into the motel where the 

crew was housed. We hold that the above facts are sufficient 

to lead a reasonable person to believe he was employed. Such 

a reasonable belief as to employment is all that is needed to 
find a person is an employee. Guarascio, 140 Mont. at 500, 

347 P.2d at 85. 

We next turn to the issue of whether Lassabe was within 

the course and scope of his employment. The general rule is 

that injuries sustained by an employee while going to or from 

work are not compensable. Christian v. Nicor Drilling Co. 

(Okla. 1982), 653 P.2d 185, 186; Hagerman v. Galen State 

Hospital (1977), 174 Mont. 249, 251, 570 ~.2d 893, 894. A 

number of exceptions have arisen to this general rule. Some 

exceptions are applied when the employer provides 

transportation to the job site, or pays travel expenses, or 

whenever the nature of the work itself creates a necessity 

for travel. Christian v. Nicor Drilling Co., 653 P.2d at 

186; Austin Drilling Co. v. Rice (Okla. App. 19801, 616 P.2d 

446, 450 (citing Fluor Engineers & Contractors, Inc. V. 

Kessler (Okla. 1977), 561 P.2d 72, 74). The Oklahoma Supreme 

Court has enunciated the policy behind these exceptions: 

These exceptions rest on the law's awareness that 

in certain situations both the employer and the 

employee derive mutual benefit from the inclusion 

of travel in the course of employment. This is 

particularly true of the oil industry. When 

drilling sites are at locations remote from 

population centers, transportation is commonly 

provided by the employer for the mutual benefit of 

all parties. 

Christian v. Nicor Drilling Co., 653 P.2d at 186 (footnotes 

omitted). 

In Guarascio, this Court stated, "an injury suffered by 

an employee while performing an act for the mutual benefit of 

the employer and employee is compensable, 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." Guarascio, 140 Mont. at 

501, 347 P.2d at 86. In this case, the benefit to the 
employer Simmons Drilling is to have a dependable crew ready 

so the rig can run continuously. If the driller failed to 

show up with a crew, the rig would have to shut down, or the 

previous crew would have to be kept on at overtime pay. In 

either case the company would lose money. It was Simmons 

Drilling's policy to have the driller round up his own crew 

and transport them to the rig in time for the next shift. 

Alvin Robinson was in the course of doing just that when the 

accident occurred which injured Lassabe. Moreover, the 

single purpose of Lassabe's trip was to go to the site of his 

employment in a transportation mode furnished by the driller, 

all to the benefit of the employer. 

We hold that Lassabe, as an employee of Simmons 

Drilling, was within the course and scope of his employment 

at the time of the January 23 accident. 

The judgment of the Workers' Compensation Court is 

reversed, and the case is 

We Concur: 

Chief Justice 

Justices /) 
Mr. Justice Fred J. Weber dissents as follows: 

I disagree with the majority conclusion that Mr. 

Lassabe was injured within the course and scope of his employment. The majority refers to Simmons Drilling's policy 

of having the driller round up his own crew and transport 

them to the rig in time for the next shift. It is true that 

Simmons Drilling paid the driller mileage for using his own 

car to transport the drill crew from Newcastle, Wyoming, to 

the drill site, which was classed as a remote site. We must 

distinguish that from the present trip. Here, the driller 

was returning from his seven-day sabbatical during which he 

did not work. Simmons Drilling did not pay anything to the 

driller for driving his own car from Shelby, Montana, to 

Newcastle, Wyoming, a distance of several hundred miles. 

The general rule with regard to payment of travel 

expense or furnishing of a vehicle by the employer is summarized in 1 Larson, Workmen's Compensation Law, S 16.31 at 

4-181 and 4-200 (1985): 

However, in the majority of cases involving a 

deliberate and substantial payment for the expense 

of travel, or the provision of an automobile under 

the employee's control, the journey is held to be 

in the course of employment. This result is usually correct, because when the subject of transportation is singled out for special consideration it is 

normally because the transportation involves a 

considerable distance, and therefore qualifies 

under the rule herein suggested: that employment 

should be deemed to include travel when the travel 

itself is a substantial part of the service 

performed. 

The numerous cases upon which Larson bases his conclusion 

cover situations where the employer pays a deliberate and 

substantial payment for the expense of travel or provides an 

automobile. Neither of these conditions is present here. 
The present case does not fit any of the recognized exceptions to the general rule which establishes that travel to 

and from work is not covered by workers' compensation. The 

effect of the majority opinion is to create a new exception 

which could be placed under the general heading of "general 

benefit to employer." 

As authority for its conclusion, the majority cites 

Guarascio. That case is significantly different from the 

present case because Mr. Guarascio was to receive compensation for the time spent traveling to Butte. Guarascio, 374 

P.2d at 86. There is no comparable arrangement in the 

present case. Travel or travel time which is paid for by the 

employer is distinct from ordinary travel time by any employee from his place of residence to his place of work. Because 

Mr. Lassabe was not compensated in any way for his travel 

time from Shelby, Montana, to Newcastle, Wyoming, the majority's opinion raises many new questions. 

For example, what decision should be reached if the 

driller himself had been injured in the accident? It seems 

clear to me that we could not find this was in the course of 

his employment because no payment was made by the employer to 

the driller for either travel time or travel expense. Certainly Mr. Lassabe should not have a greater right than the 

driller, an already existing employee. 

The majority points out that the single purpose of Mr. 

Lassabe's trip was to go to the site of his employment in a 

transportation mode furnished by the driller, all for the 

benefit of the employer. The mode of transportation was 

furnished by the driller; it was not furnished by the employer. Standing alone, benefit to the employer has never been a 

sufficient basis to hold that an employee was within the 

course and scope of his employment. 
I would affirm the determination that Mr. Lassabe was 

not within the course of his employment at the time of the 

accident. 

Chief Justice J. A. Turnage and Justice L. C. 

Gulbrandson concur in the foregoing dissent.