Feiereisen v. Newpage Corp.

2010 ME 98, 5 A.3d 669, 2010 Me. LEXIS 104, 2010 WL 4053844

• Court: Supreme Judicial Court of Maine
• Decided: October 14, 2010
• Docket: Docket: WCB-09-603
• Status: Published

Opinions

GORMAN, J.

[¶ 1] Kurt M. Feiereisen appeals from a decision of the Workers’ Compensation Board (Goodnough, HO) denying his petition for award of benefits for an injury suffered while traveling to a workers’ compensation mediation for a previous injury. We conclude that the injury did not arise out of and in the course of employment, and affirm the hearing officer’s decision.

I. FACTUAL BACKGROUND

[¶ 2] Feiereisen began working at Newpage Corp. (f/k/a the Rumford Paper Mill) in 1986 as a belt driver in the shipping department. He injured his neck, mid-back and left arm at work in 1987, and again in 1997. Thereafter, Newpage transferred Feiereisen to a light-duty job in the guardhouse at the Farrington Mountain Landfill. He sustained a gradual injury to his back in 2007 as a result of poor ergonomic conditions in the guardhouse.

[¶ 8] On January 2, 2008, while traveling to the Lewiston Regional Office of the Workers’ Compensation Board for a mediation session in connection with all of these work injuries, Feiereisen was involved in a car accident, causing an injury to his right shoulder that rendered him unable to work until August 17, 2008. Feiereisen then resumed work in a light duty position, but has been laid off periodically since that time.

[¶ 4] On June 12, 2008, Feiereisen filed petitions for award for four dates of injury, including the 2008 car accident. The hearing officer granted the petitions related to the 1987, 1997, and 2007 dates of injury, after finding Feiereisen to be fifty percent incapacitated as a result of those injuries. The hearing officer denied the petition for award for the 2008 ear accident injury, however, because he found that the 2008 injury did not arise out of and in the course of employment.

[¶ 5] Both parties moved for additional findings of fact and conclusions of law. The hearing officer issued additional findings unrelated to the 2008 car accident injury that did not alter the original decision. We granted the employee’s subsequent petition for appellate review pursuant to 39-A M.R.S. § 322(3) (2009) and M.RApp. P. 23(c), limiting our review to a single question: whether the injury resulting from a car accident that occurred en route to a workers’ compensation mediation arose out of and in the course of employment.

II. DISCUSSION

[¶ 6] In the context of workers’ compensation, we have long distinguished injuries that “can properly be said to be a consequence of industrial activity” from those that “are a consequence of life in general.” Comeau v. Me. Coastal Servs., 449 A.2d 362, 366 (Me.1982). Only the former are compensated; the Workers’ Compensation Act mandates that injuries are compensable only when they “arise out of and in the course of employment.” 39-A M.R.S. §§ 201(1), 206 (2009). Determining whether an injury arises out of and occurs in the course of employment involves multiple limiting considerations:

“[I]n the course of’ employment relates to the time, place, and circumstances under which an injury occurs, the place where the employee reasonably may be in performance of the employee’s duties, and whether it occurred while fulfilling those duties or engaged in something incidental to those duties.... [T]he term “arising out of’ employment means that there must be some causal connection between the conditions under which the employee worked and the injury, or that the injury, in some proximate way, had its origin, its source, or its cause in the employment.

Standring v. Town of Skowhegan, 2005 ME 51, ¶ 10, 870 A.2d 128, 130 (citations omitted); see also Comeau, 449 A.2d at 365-67.

[¶ 7] In evaluating whether injuries that occur during travel arise out of and in the course of employment, we must first consider the “going and coming rule,” or the “public streets rule.” This principle provides “that an accident occurring off the employer’s premises while an employee is merely on his way to or from his place of business is not, without more, compensable.” Waycott v. Beneficial Corp., 400 A.2d 892, 894 (Me.1979). On the theory that all travelers are in similar “peril” while driving, and the risks faced on the street are not in any way enhanced or changed by one’s employment, such injuries are generally not considered to arise out of and in the course of employment. Id. We have explained the rationale for the rule as follows:

[I]t has at various times been stated that such an injury does not “arise out of’ the employment, or that it does not occur “in the course of’ the employment, or both. Whether stated that in going and coming to work an employee is “exposed to the same hazards, and no more, as other members of the traveling public,” or that while outside the business premises and not engaged in any work-related activity an employee is not within the spatiotemporal boundaries of employment, the rule is ultimately grounded in the notion that there is an insufficient connection with the employment context to warrant compensation for an injury occurring in such circumstances.

Id. at 394 (citations omitted).

[¶8] When a sufficient connection exists between the employee’s presence on the highway and her employment, however, we have recognized exceptions to the going and coming rule. See, e.g., Cox v. Coastal Prods. Co., 2001 ME 100, ¶ 10, 774 A.2d 347, 349-50(holding that the “dual purpose” exception allows compensation when a trip serves both business and private purposes); Abshire v. City of Rockland, 388 A.2d 512, 514-15 (Me.1978) (concluding that the “special errand” applies to travel undertaken at the request of the employer); Oliver v. Wyandotte Indus. Corp., 308 A.2d 860, 863 (Me.1973) (determining that a “special hazard” exception applies when the risks of employment carry over after the employee has entered the public way); Brown v. Palmer Constr. Co., 295 A.2d 263, 267 (Me.1972) (concluding that the “traveling employee” exception applies “when the injury has its origin in a risk created by the necessity of sleeping and eating away from home”).

[¶ 9] Feiereisen relies on the exception we announced in Moreau v. Zayre Corp., 408 A.2d 1289 (Me.1979). There we vacated a decision denying benefits to an employee who sustained neck and back injuries while driving home after receiving medical treatment for a hand injury she claimed had occurred at work. Id. at 1291, 1295. The workers’ compensation commissioner denied the employee’s petition because the underlying hand injury had never been determined to be work-related and, in fact, the employee had never filed a petition concerning the hand injury. Id. at 1291. We held that, notwithstanding the employee’s failure to file a petition concerning the hand injury, the focus was on determining whether the hand injury would have been compensable if the employee had already sought compensation for it. Id. at 1294. Reasoning that the employer’s obligation pursuant to the Workers’ Compensation Act to provide medical services, and the employee’s reciprocal obligation to accept those services, had become part of the employment contract, we concluded if the original injury for which she was receiving treatment were compensable, the injury that occurred while traveling from the medical appointment would also be compensable.¹ Id.

[¶ 10] Newpage argues, and the hearing officer concluded, that this case should instead be governed by Dorey v. Forster Manufacturing Co., 591 A.2d 240 (Me. 1991). In Dorey, a commissioner held that an injury sustained by an employee while retrieving records to pursue her workers’ compensation claim did not arise out of and in the course of employment. 591 A.2d at 241. Given the undisputed facts surrounding the injury in Dorey, we reasoned:

In conducting such inquiries, it is not always possible to draw clear lines delineating what constitutes “in the course of’ or “arising out of’ employment. The analysis proceeds on a case-by-case basis, weighing each fact situation to decide whether the totality of circumstance make the activity employment-related. These cases fall on a continuum ranging from cases involving injuries that are clearly work-connected to cases involving injuries clearly falling outside the employment relationship....

One critical factor in determining whether the injury occurred “in the course of employment” is whether the activity was “implied into the contract of employment.”

Id. at 242 (citations omitted). In discussing whether Dorey’s activity at the time of her injury was “implied into the contract of employment,” we noted that her retrieval of documents was done not to further her medical treatment, but rather to have them available at an “informal conference” regarding another claim against her employer that the employer was “actively contesting.” Id. at 241, 242. We also noted that several other jurisdictions agreed that acts undertaken to pursue a claim against an employer neither arise out of and in the course of employment, nor promote the interests of the employer. Id. at 242 (citing Hendrickson v. George Madsen Constr. Co., 281 N.W.2d 672, 675 (Minn.1979) (determining that an employee’s death from a heart attack suffered shortly after testifying at a workers’ compensation hearing did not arise out of and in the course of employment)).²

[¶ 11] Feiereisen asserts that, although his travel was undertaken to pursue a claim against the employer, his participation was mandatory and, therefore, part of the employment contract. 39-A M.R.S. § 313 (2009). The mandate to participate does not, however, transform Feiereisen’s attendance at mediation into an obligation that is reciprocal to any employer action or obligation. Feiereisen’s travel that day served only his own purpose: to proceed with his claim for benefits by participating in the current-day equivalent of Dorey’s informal conference, i.e., a mediation session. It did not “benefit” Newpage any more than his attendance at a hearing would benefit Newpage.

[¶ 12] Feiereisen also attempts to distinguish mediation from the litigation process because mediation requires collaboration between the employer and employee, and is a process intended by the Legislature to work out agreed-upon solutions in place of litigation where possible. We recognize that, had the parties agreed to a resolution of Feiereisen’s claims at mediation, there would have been no need for further litigation, and that adding mediation to the workers’ compensation system was intended to make the system less adversarial and more flexible and realistic. Nevertheless, mediation is, like litigation, a system for resolving disputes, and injuries occurring during attendance at dispute resolution events are not compensable in a workers’ compensation scheme.

[¶ 13] Feiereisen’s activity at the time of the accident falls squarely within the public street rule, and fits none of the exceptions we have carved out of that rule. His travel to mediation was not an activity that was implied into his contract of employment and was not an action that promoted the interests of his employer. Feiereisen’s injury “did not have its origin in circumstances created by the employer for the purpose of furthering [its] interests any more than if the injury had occurred on the way to or from work.” Waycott, 400 A.2d at 395. Newpage cannot be made responsible for Feiereisen’s injuries, because it could not control or affect the risk in this car accident. At the time of the accident, Newpage did not have responsibility for Feiereisen’s automobile or for the behavior of the driving public. We therefore affirm the decision of the hearing officer.³

The entry is:

The decision of the Workers’ Compensation Board is affirmed.

1 . Most jurisdictions agree that injuries sustained when traveling to or from an appointment for medical treatment of a work-related injury are compensable. See 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law % 10.07(2009).

2 . Few courts have addressed whether injuries occurring during travel to pursue litigation of a workers' compensation claim are compen-sable. Of those that have, however, the majority hold that such injuries are not compen-sable. See Keovorabouth v. Indus. Comm’n of Ariz., 222 Ariz. 378, 214 P.3d 1019, 1023-24 (App.2009), review denied, 2010 Ariz. LEXIS 4 (Ariz. Jan. 5, 2010) (holding that an injury that occurred when traveling to a deposition in a workers’ compensation proceeding did not arise out of a1nd in the course of employment); Huffman v. Koppers Co., 94 Md.App. 180, 616 A.2d 451, 456 (1992), aff'd, 330 Md. 296, 623 A.2d 1296 (1993) (holding that a heart attack occurring after a deposition in a workers’ compensation case is not compensa-ble); Douglas v. Spartan Mills, 245 S.C. 265, 140 S.E.2d 173, 175-76 (1965) (holding that an injury sustained during travel to a workers' compensation hearing was not compensa-ble because, among other reasons, the travel was for personal benefit).

3 . Feiereisen also contends that the 2008 shoulder injury is a compensable sequela of the work injuries at issue in the mediation, asserting "but for Mr. Feiereisen's compensa-ble injuries, he would not have been en route to mediation on January 28, 2008" (citing Crocker v. Eastland Woolen Mill, Inc., 392 A.2d 32, 34 (Me.1978) (holding that the use of crutches in treatment for a work-related foot injury caused compensable aggravation of pre-existing nonwork-related back injury)). We conclude that Feiereisen's car accident injury was too attenuated from his previous work injuries to be considered a compensable sequela of those injuries.