Drake v. Industrial Commission of Utah

This opinion is subject to revision before final publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH

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Barbara Drake,

Respondent,

v.

Industrial Commission of Utah,

FHP of Utah, and Transamerica

Insurance Company,

Petitioners.

No. 950475

F I L E D

May 13, 1997

Original Proceeding in the Court of Appeals

Attorneys: James R. Hasenyager, Ogden, for Drake

Alan Hennebold, Salt Lake City, for Industrial

Commission

Theodore E. Kanell, Todd N. Hallock, Salt Lake

City, for Transamerica Insurance and FHP

On Certiorari to the Utah Court of Appeals

DURHAM, Justice:

We granted certiorari in this case to review the Utah Court of Appeals' decision in Drake v.

Industrial Commission, 904 P.2d 203 (Ct. App. 1995), cert. granted, 913 P.2d 749 (Utah 1996),

reversing the Industrial Commission and granting workers' compensation benefits to Barbara

Drake for injuries she sustained in an automobile accident. Petitioners Industrial Commission of

Utah, FHP of Utah, and Transamerica Insurance Company (collectively referred to as FHP)

contend that the court of appeals applied the wrong standard when it reviewed the Commission's

decision and erred in awarding benefits. We agree and reverse.

The facts in this case are undisputed. At the time of her accident, Drake was employed by FHP

as a referral coordinator⁽¹⁾ in its Salt Lake City office. At some point during her employment, but

several months before Drake's accident, FHP began to experience delays with its normal courier

in the delivery of referrals to Salt Lake from various offices around the state. Because Drake

lived in Ogden, Drake's supervisor asked her to pick up the referrals from the Ogden office two

or three days a week on her way home. At the same time, she was also directed to deliver any

completed referrals going to Ogden. On the days she made deliveries, Drake took a five- to six-mile detour from her normal route home. Drake was never compensated for her mileage in

making these deliveries, nor was she given any extra compensation when the deliveries required

her to work more than her eight-hour work day.⁽²⁾

On August 14, 1991, shortly after Drake had dropped off the referrals at the Ogden office, as she

was on her way to pick up her children at their child-care center, Drake was involved in an

automobile accident, causing her substantial injuries. Upon denial of coverage by her automobile

insurance carrier, Drake applied to the Industrial Commission for workers' compensation

benefits under Utah Code Ann. 35-1-45.⁽³⁾

After a hearing, the administrative law judge (ALJ) for the Industrial Commission found that

Drake's injuries arose out of and in the course of her employment. The ALJ found that although

workers' compensation benefits are generally denied for injuries sustained on the way to or from

work, Drake was on a "special errand" and had deviated from her normal route home for the

benefit of her employer; therefore, she was still within the course of her employment at the time

of her accident. Accordingly, the ALJ granted Drake's claim for benefits.

Upon motion for review, the Industrial Commission reversed the decision of the ALJ. Although

the Commission adopted the ALJ's findings of fact, it determined that Drake was not on a special

errand when she delivered the referrals. It concluded that the deliveries were part of Drake's

regular duties because they were "according to routine." It thus denied benefits pursuant to the

recognized "going and coming rule," finding that once Drake left the Ogden office, her activities

no longer took place in the course of her employment.⁽⁴⁾

On petition for review, the court of appeals reversed. The court began its analysis by stating,

"Whether petitioner was injured in the scope and course of her employment presents a question

of law which, absent a grant of discretion, this court reviews for correctness." Drake, 904 P.2d at

205 (citing Morton Int'l, Inc. v. State Tax Comm'n, 814 P.2d 581, 588 (Utah 1991)). The court

then relied specifically upon Stokes v. Industrial Commission, 832 P.2d 56, 58 (Utah Ct. App.

1992), which found that the Commission did not have any discretion to interpret or apply the

Workers' Compensation Act.⁽⁵⁾ The court then concluded from the facts of the case that Drake's

accident did occur while she was still on a special errand. The court relied upon the following

facts: (1) Drake "undertook the delivery of referrals between Ogden and Salt Lake City at the

request of FHP solely to remedy a problem with FHP's shuttle system"; (2) these deliveries often

required Drake to work beyond her regularly scheduled hours; (3) the deliveries required Drake

to "make a five- to six-mile detour from her normal route home"; and (4) "FHP . . . benefitted by

having a referral system that operated in a timely manner." Drake, 904 P.2d at 206-07. The

court found insubstantial the fact that Drake had been delivering these referrals regularly two or

three times a week for several months before her accident. Id. at 207. It specifically stated that

whether the deliveries were part of Drake's regular job duties was "a conclusion of law" and

found that the special errand exception "does not require [one-time occurrences] in order for the

injured employee to recover." Id.

On certiorari, FHP does not argue that the court of appeals failed to apply the correct legal

principles, but contends that it applied the wrong standard of review when it reviewed the

Commission's determination that Drake's delivery was not special but was part of her normal job

duties. The Commission argues that this determination is a finding of fact and thus the court of

appeals erred in applying a "correction of error" standard applicable to questions of law rather

than "the absence of substantial evidence" standard employed for the review of questions of fact.

Moreover, because Drake did not challenge any of the Commission's findings of fact, FHP

argues that the court of appeals was required to accept the Commission's finding that the

deliveries were part of Drake's normal job duties as conclusive and erred when it reviewed it de

novo.

Essential to any determination of the appropriate standard of review for an issue on appeal is the

characterization of that issue as either a question of fact, a question of law, or a mixed question

requiring application of the law to the facts. Where the issue is purely factual, appellate review is

highly deferential, requiring reversal only if a finding is clearly erroneous. See State v. Thurman,

911 P.2d 371, 372 (Utah 1996). When reviewing the factual findings made by an administrative

agency, an appellate court will generally reverse only if the findings are not supported by

substantial evidence. See Olsen v. Industrial Comm'n, 797 P.2d 1098, 1099 (Utah 1990); Helf v.

Industrial Comm'n, 901 P.2d 1024, 1026 (Utah Ct. App. 1995); see also Utah Code Ann. 63-46b-16(4)(g). We give deference to the initial decision maker on questions of fact because it

stands in a superior position from which to evaluate and weigh the evidence and assess the

credibility and accuracy of witnesses' recollections. See State v. Pena, 869 P.2d 932, 936 (Utah

1994). Where the issue is a question of law, however, appellate review gives no deference to the

trial judge's or agency's determination, because the appellate court has "the power and duty to

say what the law is and to ensure that it is uniform throughout the jurisdiction." Id. (citation

omitted). The reviewing court therefore applies a "correctness" standard, deciding the matter for

itself. Id. However, not all issues fall clearly at one end of the spectrum or the other. Some

issues involve mixed questions of "whether a given set of facts comes within the reach of a given

rule of law." Id. Although we review the underlying empirical facts under a deferential clear

error standard, we have recently stated that the legal effect of those facts "is the province of the

appellate courts, and no deference need be given a trial court's resolution of such questions of

law." State v. Vincent, 883 P.2d 278, 281 (Utah 1994). Nevertheless, in view of our analysis in

Pena, policy considerations and other factors may "lead this court to define a legal standard so

that it actually grants some operational discretion to the trial courts applying it." Id. at 282

(citing Pena, 869 P.2d at 935-36). As a result, a trial court's or agency's application of the law to

the facts may, depending on the issue, be reviewed by an appellate court "with varying degrees of

strictness, falling anywhere between a review for 'correctness' and a broad 'abuse of discretion'

standard." Langeland v. Monarch Motors, Inc., 307 Utah Adv. Rep. 3, 4 (Utah Dec. 31, 1996)

(citing Pena, 869 P.2d at 936-39).⁽⁶⁾

In applying these principles to the instant case, although the empirical facts of Drake's case are

reviewable for clear error, the conclusion as to whether those facts qualify Drake for workers'

compensation benefits under the special errand rule is reviewable for correctness. Because the

underlying and historical facts of this case were undisputed,⁽⁷⁾ our inquiry focuses on the degree

of discretion that the legal standard for the special errand rule bestows upon the Commission. In

other words, how closely should this court review the Commission's conclusion that a given set

of facts does or does not constitute a "special errand"? Given the nature of the legal issue, we

conclude that the legal standard is one that "conveys a measure of discretion to [the Commission]

when applying that standard to a given set of facts." Pena, 869 P.2d at 939.

Scope-of-employment issues are in general highly fact-dependent. Indeed, our prior case law

recognizes that "whether or not the injury arises out of or within the scope of employment

depends upon the particular facts of each case." State Tax Comm'n, 685 P.2d at 1053. Whether

an employee was injured while on a special errand is also highly fact-sensitive. As a result, we

are less inclined to formulate and impose a fact-specific rule of law because of the likelihood that

no rule can be formulated that will adequately address all potential facts in these cases. See

Pena, 869 P.2d at 939. Thus, this is a question that "we cannot profitably review de novo in

every case because we cannot hope to work out a coherent statement of the law through a course

of such decisions." Id. at 938 (describing why deference needs to be given to trial court when

applying highly fact-dependent doctrine of waiver to set of facts); see also Trolley Square

Assocs. v. Nielson, 886 P.2d 61, 65 (Utah Ct. App. 1994) (holding that broadened grant of

discretion should be given to trial court on application of equitable estoppel doctrine to varying

facts).

In addition, this court has had few occasions to address particular fact situations to which the

special errand rule arguably applies. It is therefore even more unlikely that we could "spell out in

detail a legal rule that will adequately anticipate the facts that should be outcome determinative if

the policy of the legal rule is to be served." Vincent, 883 P.2d at 282 (citing Pena, 869 P.2d at

939). This consideration should not, however, preclude an appellate court from narrowing the

deference given to the Commission once a serviceable standard has emerged.

While we are therefore disposed to give heightened deference to the Commission, policy

considerations compel us to exercise some scrutiny. The Workers' Compensation Act was

enacted to provide economic protection for employees who sustain injuries arising out of their

employment, therefore "alleviat[ing] hardship upon workers and their families." Baker v.

Industrial Comm'n, 405 P.2d 613, 614 (1965). We have held that "[t]o give effect to that

purpose, the Act should be liberally construed and applied to provide coverage" and that "[a]ny

doubt respecting the right of compensation will be resolved in favor of the injured employee."

State Tax Comm'n v. Industrial Comm'n, 685 P.2d 1051, 1053 (Utah 1984).

With this standard in mind, we now turn to the instant case and determine whether the court of

appeals, despite enunciating the wrong standard of review, nevertheless arrived at the correct

result.

As noted previously, this court has had few occasions to review the special errand exception;

only one decision offers any lengthy discussion. That case, State Tax Commission v. Industrial

Commission, 685 P.2d 1051 (Utah 1984), concerned an employee who was injured on her way to

a two-month training seminar. The issue was whether her travel was excepted from the general

rule that injuries suffered while going to or from work are not within the course of employment

and thus not compensable under workers' compensation laws. See Higgins v. Industrial

Comm'n, 700 P.2d 704, 707 (Utah 1985). This general "coming and going" rule arose because,

"in most instances, such an injury is suffered as a consequence of risks and hazards to which all

members of the traveling public are subject rather than risks and hazards having to do with and

originating in the work or business of the employer." 82 Am. Jur. 2d Workers' Compensation

296 (1992).⁽⁸⁾ We noted in State Tax Commission, however, that the emergent trend in cases

dealing with injuries that occur during an employee's travel to employment-related educational

seminars or training programs is to find an employment connection if the travel can be deemed

an "act outside an employee's regular duties which is undertaken in good faith to advance the

employer's interests, whether or not the employee's own assigned work is thereby furthered."

685 P.2d at 1054 (citing 1A Arthur Larson, Larson's Workmen's Compensation Law 27.00

(1982)). We also cited to the rule set forth in Dimmig v. Workmen's Compensation Appeals

Board, 495 P.2d 433, 439 (Cal. 1972), which dealt with a similar situation:

The rule which emerges . . . is that when the employee engages in a special activity which is

within the course of his employment, and which is reasonably undertaken at the request or

invitation of the employer, any injury suffered while traveling to and from the place of such

activity is also within the course of employment and is compensable.

The instant case, however, presents a different situation than traveling to a training program or

educational seminar, which is more appropriately labeled a "special activity" or an "outside

activity at employer's request." Although an employee should still show that the activity was

incidental to the employment and that it was undertaken for the benefit and under the direction of

the employer, we think more legal guidance must be given when considering whether an actual

errand, which has been undertaken two or three times a week for several months, may still be

deemed "special."

Other jurisdictions, in determining whether an errand on the way to or from work was a "special

errand," have focused on the language in section 16.11 of Larson's treatise:

When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule,

the journey may be brought within the course of employment by the fact that the trouble and time

of making the journey, or the special inconvenience, hazard, or urgency of making it in the

particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the

service itself.

1 Arthur Larson, Larson's Law of Workmen's Compensation 16.11, at 4-204 (1996) (citations

omitted).

Larson goes on to explain several variables that the case law indicates may be useful in resolving

difficult cases. Id. 16.13, at 4-208.23 to 4-208.27. First, the court must consider the "relative

regularity or unusualness of the particular journey." Larson explains that "if [the journey] is

relatively regular, whether every day, . . . or at frequent intervals, . . . the case begins with a

strong presumption that the employee's going and coming trip is expected to be no different from

that of any other employee with reasonably regular hours and place of work." Id. at 4-208.24 to

4-208.26. Indeed, in Lundberg v. Cream O'Weber/Federated Dairy Farms, Inc., 465 P.2d 175,

176 (Utah 1970), we declined to find that an employee had engaged in a special errand where the

activity, travel to an early morning meeting, was not an "unusual occurrence."

Second, the relative burden or "onerousness" of the journey on the employee should be compared

with the extent of the task to be performed at the end of the journey. Larson, supra, 16.13, at 4-208.26. Larson provides the following example:

If a janitor walks five blocks to spend two hours working at a church in the evening, it would be

difficult to conclude that the journey is a significant part of the total service. But if a janitor

makes a longer journey merely to spend one instant turning on the lights, it is easier to say that

the essence of the service was the making of the journey.

Id. The "onerousness" of the journey takes into account not only the length of the journey, but

also any other circumstances under which it is made, e.g., conditions of travel, time of day, or

day of week.

Third, although not present in this case, the suddenness of the assignment from the employer

should also be considered. Id. For example, if an employee must suddenly drop everything to

travel at the employer's request, then that indicates that the travel itself could be part of the

service rendered. Id. Although the urgency of the travel is not decisive on its own, all these

factors are to be considered in the overall analysis of "whether the journey was itself a substantial

part of the service for which the claimant was employed and compensated." Id.

FHP contends, and the Commission agreed, that Drake's delivery of the referrals was

insufficiently "special." The Commission, without elaboration, found that the deliveries were

performed according to routine and thus had become a regular part of her work activities. Under

the standard enunciated above, we defer to the Commission's decision and accord a strong

presumption that the deliveries were not "special."

The court of appeals held, however, that the regularity of the travel was not a conclusive factor.

It relied on State Tax Commission, 685 P.2d at 1054-55, where we granted benefits to an

employee who had been traveling the same journey every day for two months. However, the

employee in State Tax Commission was traveling to a one-time training seminar. Without any

evidence that FHP planned to change its existing delivery system in the near future and thus

relieve Drake of delivery duty, we do not regard State Tax Commission as controlling on this

issue. The court of appeals also cited Avila v. Pleasuretime Soda, Inc., 568 P.2d 233 (N.M. Ct.

App. 1977), wherein the New Mexico Court of Appeals granted compensation to an employee

who was injured on her way home from making a night deposit, a task she performed every

workday, finding that it constituted a special errand. Although this case is helpful, we do not

find its rationale to be dispositive. Even though the Avila court noted that the night deposits

were an everyday occurrence, it was persuaded by other factors, mainly that the employee had to

make a deviation from her personal route home to make the deposits. In citing sections 19.36

and 19.37 of Larson's treatise, dealing with business detours from personal trips and the return

from business detours, the court found that because the employee was injured while making her

way back from the business detour to her personal route, the injuries were incurred within the

"scope and course of her employer's business." Id. at 234, 236.

The parties in this case have not referenced these sections of Larson's treatise on deviations, and

it is not clear that this issue was a central one for the Commission. In any event, we are

persuaded on balance that we should defer to the Commission's decision that the deliveries were

not "special errands" at all but were part of Drake's regular duties. As a result, she did not

"deviate" from her normal route home when she drove to the Ogden office, but rather, on two or

three days a week, her normal route home started from there. Moreover, we cannot say that the

five or six miles added to the journey were substantial enough to make the journey a significant

part of the service. As a result, the injuries that Drake suffered after she left the Ogden offices

were those to which any member of the traveling public was subject "rather than any risks or

hazards having to do with and originating in the work or business of the employer." The court of

appeals' decision is therefore reversed.

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Chief Justice Zimmerman, Justice Howe, and Justice Russon concur in Justice Durham's

opinion.

Associate Chief Justice Stewart dissents.

1. Referrals are documents that authorize clients of FHP's health care system to seek treatment

from physicians outside the FHP system.

2. The record is silent as to whether FHP anticipated that Drake would continue to make these

deliveries indefinitely or whether it would eventually correct the problem with its existing courier

and no longer need her help.

3. Section 35-1-45 of the Workers' Compensation Act provides in part:

Each employee . . . who is injured . . . by accident arising out of and in the course of his [or her]

employment, wherever such injury occurred, if the accident was not purposely self-inflicted, shall

be paid compensation for loss sustained on account of the injury, . . . and such amount for

medical, nurse, and hospital services and medicines . . . as provided in this chapter.

4. The Commission also held that even if the deliveries did constitute a "special errand," her

travel to her children's child care constituted a personal deviation from this errand and therefore

would also exempt her from benefits. On review, the court of appeals also reversed this finding.

FHP correctly contends, however, that the only issue on certiorari is whether the court of appeals

applied the correct standard of review, and we do not address any other issues.

5. The court of appeals did recognize, however, that it had recently stated in VanLeeuwen v.

Industrial Commission, 901 P.2d 281 (Ct. App.), cert. denied, 910 P.2d 426 (Utah 1995), that an

agency's application of the law to the facts should be upheld "'unless its determination exceeds

the bounds of reasonableness and rationality.'" The court, however, refused to resolve the

apparent conflict between the standards but indicated instead that the result in this case would be

the same under either standard. Drake, 904 P.2d at 205 n.2.

6. We recognize that the standard enunciated in Pena as applied to an agency's application of the

law to a particular set of facts is a departure from our prior decisions. For example, in State Tax

Commission v. Industrial Commission, 685 P.2d 1051, 1052 (Utah 1984), we stated:

In determining whether the Commission correctly applied the findings of basic facts to the legal

rules governing the case, we will uphold the Commission, so long as its decision was reasonable

in light of the language of the statute, the purpose it aims to achieve and the public policy behind

it.

However, we believe the Pena standard is a more accurate measure of the degree of deference to

be given to an agency, taking into account factors such as policy concerns and an agency's

expertise rather than using undefinable labels such as "reasonableness."

7. We are unpersuaded by FHP's arguments that whether Drake's errands were part of her

ordinary job duties is a pure question of fact. The determination in this case is not, as FHP

argues, what Drake did each day, for it is undisputed that Drake actually delivered the referrals

two to three times a week. The Commission had to decide whether these activities fall under the

legal rule termed "special errands," which requires some legal analysis.

8. We stated in Whitehead v. Variable Annuity Life Insurance Co., 801 P.2d 934, 937 (Utah

1989), that "the major focus in determining whether or not the general [coming and going] rule

should apply . . . is on the benefit the employer receives and his control over the conduct."

However, that case dealt with the liability of the employer in tort for his employee's acts.

Although the control the employer exercises and the benefit the employer receives are factors, we

do not think that either is necessarily decisive.