Opinion
No. 105,949.
2012-03-16
Roy Dean CRAIG, Appellee, v. VAL ENERGY, INC., and Liberty Mutual Insurance Co., of America, Appellants.
Application of the going-and-coming rule to the facts of this case
Val Energy asserts that the Board was incorrect when it determined that the going-and-coming rule under K.S.A. 2010 Supp. 44–508(f) did not serve as a bar to Craig's workers compensation claim. Val Energy contends that Craig was traveling home from Val Energy's shop, a fixed location, and that Craig's trip home did not involve any special work related errand.
Val Energy attempts to show the distinguishing factors between the present case and Messenger, but it also relies heavily on Butera v. Fluor Daniel Constr. Corp., 28 Kan.App.2d 542, 18 P.3d 278, rev. denied 271 Kan. 1035 (2001), both of which analyzed the going-and-coming rule. We will examine both cases.
In Messenger, our court looked to several factors in making its decision. The first factor was whether commuting long distances was required in the job itself. Another factor was whether the employer had a permanent work location. 9 Kan.App.2d at 438–39, 680 P.2d 556. In addition, the court looked at whether the employer seeks employees who would be willing to work at “ ‘mobile sites,’ ” and whether it was customary within the company to pay the driller to drive, acquire a crew, and provide that crew with transportation. 9 Kan.App.2d at 439, 680 P.2d 556. Moreover, the court focused on whether the employer and the employee procured a mutual benefit from the transportation arrangement.
Messenger was a member of an oil rig drilling crew. He was required to provide his own transportation to and from the distant drill site and the company reimbursed him for his mileage. Messenger died in an automobile accident while on his way from the drill site. In Messenger, our court determined that there was substantial competent evidence to support the finding that travel was an inherent part of Messenger's job. 9 Kan.App.2d at 435–40, 680 P.2d 556.
In Butera, at first the claimant was traveling long distances to and from the nuclear power plant, his work site, and that travel was reimbursed by the company. However, at a later date, the claimant made accommodations to stay in a hotel close to his work site. The claimant's subsequent travel to and from the hotel and the power plant was not reimbursed by the company. In addition, after relocating to the hotel, the claimant was no longer traveling long distances. The court refused to grant compensation because the claimant, at the time of his injury, was at no greater risk than other commuters who were traveling to or from work; there was no benefit to the company once the claimant relocated to the hotel; and the claimant had no special purpose in his commute to and from the hotel. 28 Kan.App.2d at 546–49, 18 P.3d 278.
The present case is more akin to Messenger rather than Butera. Craig was a driller who was required to obtain his own crew and to make sure that all crew members made it to the drill site as required. Before his injury, Craig was required to travel with his crew from Pratt, Kansas—his residence—to just south of Medicine Lodge, Kansas, where the drill site was located. Craig was reimbursed his mileage for his travel both to and from work, including picking up and dropping off his crew; he received a per diem reimbursement for showing up; at the end of the job he received an additional $24 per day for every crew member that showed up; and he would not have been hired if he did not have the capability to drive and transport his crew. In addition, he was the only crew member to receive mileage reimbursement, and, as crew chief, his job was to make sure a crew was present to work.
On the day of Craig's injury, and the 4 days prior to his injury, Craig was assigned to work in Great Bend, Kansas, because the oil rig required for drilling at his drill site had broken down. Craig had been required by Val Energy to work from its shop in order to get the oil rig up and running again. Craig was reimbursed for his travel from Pratt to Great Bend including mileage involved in picking up his crew. On the day of his injury, Craig picked up and transported one member of his crew to and from the shop. In addition, Craig testified that his work at the shop was only temporary until the oil rig was fixed.
It appears that the only differences between the present case and Messenger is that Craig, at the time of his injury, was traveling a shorter distance than usual, and, instead of traveling to and from a drill site, he was traveling to and from Val Energy's shop. The similarities seem to outweigh the differences. The similarities include: (1) Val Energy continued to reimburse Craig for his travel despite the change in work site; (2) there was no permanent work site to which Craig was traveling because as soon as the oil rig was fixed he would have returned to the drill site; (3) Craig still continued to transport at least one member of his crew to and from the shop; and (4) despite the temporary change in location, it still appeared that Val Energy and Craig received a mutual benefit from the continued transportation arrangement.
Because the present case is factually similar to Messenger, we find it to be persuasive. The Board did not err when it determined that the going-and-coming rule did not apply to the facts of this case.
Affirmed.