No. 86-344

IN THE SUPREME COURT OF THE STATEOF MONTANA

IN THEMATTER OF THEAPPLICATION OF LARRY McGAHA,Workers' Compensation Claimant, for a DeclaratoryRuling on the Applicability of 539-71-402(I),MCA (1983),to his Workers' CompensationClaim. LARRY McGAHA, Claimant and Respondent,-vsGREYHOUND LINES, INC., Defendant andAppellant.

APPEAL FROM: TheWorkers' Compensation Court, The Honorable Timothy Reardon,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Keefer, Roybal, Hanson, Stacey & Jarussi; Neil S. Keefer argued, Billings,Montana
For Respondent: Datsopoulos,MacDonald & Lind; Dennis E. Lind argued, Missoula, Montana

Submitted: 

### March 20, 1987 Decided: 

### April 9,

### 1987

ClerkMr. Justice Fred 

### J. Weber delivered the Opinion of the Court.

The Workers' Compensation Court made a declaratory ruling that Mr. McGaha is eligible for Montana workers' compensation benefits for an injury suffered in Twin Falls, Idaho. Greyhound Lines, Inc., the self-insured employer, appeals. We affirm. The issue is whether the Workers' Compensation Court correctly ruled that Mr. McGaha is eligible for Montana workers' compensation benefits under § 39-71-402(11,MCA, as an employee temporarily working out of state. The facts are not contested. Mr. McGaha had been employed as a driver for Greyhound Lines, Inc. (Greyhound) since 1974. He moved to Montana in 1978 and now resides in Clinton,Montana. Beginning in 1978 and up until justbefore his injury,Mr. McGaha was an wextra-board"bus driver out of Missoula,Montana. He regularlydrove fromMissoula to Butte and back. Greyhound bus drivers are subject to a negotiated labor agreement which ranks all drivers within regional districts according to seniority. Mr. McGaha's district included Montana, Utah, Idaho, Oregon and part of Washington. The drivers within the region with the most seniority have the opportunity of selecting the best paying bus runs, while those driverswith the least seniority must drive the lesser preferred routes. This seniority system comes into play when Greyhound chooses to reduce scheduled service. During slow periods, Greyhound reduces the number of active positions in its force. This reduction createsa domino effect whereby senior drivers within a district "bump" junior drivers out of their regular positions. In February 1983, a senior driver bumped Mr. McGaha from his position operating out of Missoula.

### According to the labor agreement, Mr. McGaha then had 24 hours to bump another driver in the district. Ifhe did not act within 24hours,he would lose his guaranteed base wage. He bumped a junior driver from a regular bus route running between Salt Lake City, Utah,and Twin Falls, Idaho. On his first trip,Mr. McGaha injuredhisback while loading luggage inTwin Falls. Greyhound initiatedpayment ofworkers' compensationand medical benefits under Utah's workers' compensation laws. Utahwas selected pursuant toGreyhound's policy of considering the point of origin of the bus run as the place of employment. Mr. McGaha has received temporary total disability benefits under the laws ofUtah for over threeyears. He has been unable to return to work as a bus driver and recently underwent surgery for a spinal fusion. He now wishes to be allowed to recover benefits under theMontana extraterritorial workers' compensation statute, instead of under Utah law. Mr. McGaha accordinglyargued to theMontana Workers' Compensation Court that he was employed in Montana, his absence from the statewas temporary,and this temporary absencewas incidental to his Montana employment. Greyhound argued that the labor agreement in effect at the time of Mr. McGaha's accidentprecluded extraterritorial application in this case. It characterized the labor agreementas amulti-state employment contract and argued that Mr. McGaha was a regional employee rather than aMontana employee. The Workers' Compensation Court entered a declaratory judgment that Mr. McGaha was entitled to Montana benefits. Greyhound appeals from that judgment.

Did the Workers' Compensation Court correctly rule that Mr. McGaha is eligible for Montana workers' compensation

### benefits under 5 

### 39-71-402(l), MCA, as an employee temporarily working outof state? Section 39-71-402(1),MCA, states:

If a worker employed in this statewho is subject to the provisions of this chapter temporarily leaves the state incidental to that employment and receivesan injury arising out of and in the course of such employment, the provisions of this chapter shall apply to such worker as though he were injuredwithin this state. The findings of the Workers

### ' Compensationcourtwhich relate to this issueare:

8. 

### As a result of a cutback in the Greyhound driverwork force in Februaryof 1983,claimantwas displaced or bumped from his extra board position in Missoula, Montana, by a senior driver from Spokane,Washington. 9. Greyhound provides 

### a guaranteed minimum salary to itsdrivers. 10. Pursuant to the labor agreement, a displaced driver has 24 hours to find a position within the district in order to avoid losing the guaranteed salary. If a displaced driver takes longer than 24 hours, the driver has up to five days to displace another driver within the district in order to receive a proportionate share of his guaranteed salary. 11. In order for a driver to continuehis salaried employment with Greyhoundhe is required to use his seniority and displace another driver within the district. 12. In the event that a senior driver does not exercise his seniority privilege in displacing another driver within the district, Greyhound may and has terminated a driver's employment. 13. Claimant chose to displace a driver in Salt Lake City, Utah because it paid better and was the closest available location to his family and residence inClinton,Montana. 14. Claimant was in the State of Utah less than 24 hours prior to his injury on February 13, 1983, in Twin Falls, Idaho onhis first trip originating out ofUtah.15. Claimant stayed with friends overnight in Salt Lake City and .didnot establish or intend to establish anypermanent address or domicile.

18. Claimant has no interest in Utah other than the tripwhich resulted in his injury. 19. Claimant intended to return to his home in Montana after hiswork inUtah.
We are bound to uphold the facts found by the Workers' Compensation Court where there is substantial credible evidence in the record to support those findings of fact. McGee 

### v. Bechtel Corp. (1979), 182 Mont. 149, 154, 595 P.2d 1156, 1158-59. The transcript and the deposition of Mr. McGaha support the findings of fact of the lower court. We must therefore uphold them, despite Greyhound's argument that Mr. McGaha's employment on the Salt Lake City

## - Twin Falls route
was neither guaranteed to be temporary nor a position assigned to him by Greyhound,but was totally dependent on the exercise of seniority rights by Mr. McGaha and the other drivers. The Workers' Compensation Court concluded that Montana had a sufficient interest in Mr. McGaha's case to justify application of the extraterritorial statute. The record supports this conclusion. Mr. McGaha had been employed in Montana for four years immediately prior to the date of his injury, and had established his residence in this state. He testified that he had once before had a similar absence from Montana, when he was "bumped" fromhis position inMissoula, and that his absence from the state at that time was of a short and temporary duration. In this instance, he was injured within his first 24 hours of working outside of Montana. He testified that he had intended to return to Montana as soon as possible, and that he did in fact regainhis Missoula position, but was unable to work it due to his injuries. We must also consider the requirement of § 39-71-104,MCA, that the workers' compensation statutesbe liberallyconstrued in favor of the claimant. We hold that the Workers' Compensation Court correctly concluded that § 39-71-402(1),MCA, appliesunder the specific facts of this case. We affirm the decision of the lower court. In doing so, we emphasize the nature of this action

as a declaratory judgmentonly. It does not otherwise affect Mr. McGaha's entitlement to benefits or the calculation of thesebenefits.

We Concur: /



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Dist ict Jud- Robe J. Boyd