In the Matter of Edwin H. BARKER, Deceased.
Katie L. BARKER, Claimant-Appellant,
v.
FISCHBACH & MOORE, INC., Employer, and the Travelers, Surety, Defendants-Respondents.
Supreme Court of Idaho.
William R. Hollifield of Decker & Hollifield, Twin Falls, for claimant-appellant.
John W. Barrett of Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-respondents.
PER CURIAM:
Edwin H. Barker was an electrician employed by Fischbach & Moore, Inc. Pursuant to a contract executed between the employer and Barker's union, Barker received $90 per week as a travel allowance for travel between his home in Twin Falls and the work site, which was located 26 miles east of Arco.
At approximately 12:00 noon on April 25, 1980, Barker left the work site to travel to a dentist appointment in Twin Falls. En route to the dentist's office, Barker was involved in a single car accident that resulted in his death.
Barker's wife then filed a claim for workmen's compensation death benefits, alleging that Barker's death had arisen out of or *1132 during the course of his employment.[1] The Industrial Commission denied benefits after concluding that Barker had left the work site and was not engaged in his employment at the time of the accident.
On appeal, this Court reversed. Barker v. Fischbach & Moore, Inc.,
On remand, no additional evidence was submitted to the Industrial Commission by the parties. The commission re-examined the record and the written arguments submitted by the parties and issued a decision in which it again denied benefits. The commission concluded that it could "find no evidence, other than the actual payment itself, to indicate that the employer intended to compensate the employee for travel time or travel expense. The commission therefore concludes that its original decision dismissing the claimant's claim and denying benefits was correct and hereby affirm said decision."
Idaho Constitution, art. 5, § 9, limits this Court's review of Industrial Commission decisions to a review of questions of law. We are required to uphold all factual findings made by the Industrial Commission if those findings are supported by substantial, competent evidence. In re Chavez,
Furthermore, our review of the record indicates that the Industrial Commission correctly applied the law as stated in Barker I in reaching its decision.
"The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal ..." Suitts v. First Security Bank of Idaho,110 Idaho 15 ,713 P.2d 1374 (1985) (quoting from Carlson v. Northern Pacific Rail Co.,86 Mont. 78 ,281 P. 913 , 914 (Mont.1929).
As we noted in Suitts, the doctrine of law of the case has long been the rule in this jurisdiction. See Palmer v. Dermitt,
The Industrial Commission correctly applied the law announced by this Court in Barker I to the facts of this case. Accordingly, the order of the Industrial Commission is affirmed; costs to respondent.
BISTLINE, Justice, concurring in part and dissenting.
I.
Having sometime ago authored a proposed majority opinion (appendicized) which is much like today's opinion for the Court, I am able to concur with the majority view that the Commission in its second review of this case committed no error and did correctly apply Spanbauer v. Peter Kiewit Sons' Co.,
I concede that the doctrine of law of the case has been recognized in Idaho as in other jurisdictions.[2] In Neilsen and Co. v. Cassia and Twin Falls County Joint Class A School District,
However stringently the law of the case doctrine may bind inferior courts, it is a different matter where the question comes up in the same appellate court. That doctrine, however, is not binding on appellate courts which on a second appeal perceive that their prior appellate decision was in error. The Arizona Supreme Court, after recognizing that the doctrine was well-established in that state, went on to say:
*1134 While some courts insist that the doctrine should be applied at all times, 3 Am.Jur. 547, others create an exception where it appears the former decision was palpably erroneous. An abundance of authority from many jurisdictions sustains this latter principle. For example the Supreme Court of California sixteen years ago rejected the doctrine that the law of the case absolutely precluded reexamination of a manifestly unjust decision.
"* * * The doctrine of the law of the case is recognized as a harsh one (2 Cal.Jur. 947) and the modern view is that it should not be adhered to when the application of it results in a manifestly unjust decision. United Dredging Co. v. Industrial Acc. Comm.,208 Cal. 705 ,284 P. 922 . However, it is generally followed in this state. But a court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal. Procedure and not jurisdiction is involved. Where there are exceptional circumstances, a court which is looking to a just determination of the rights of the parties to the litigation and not merely to rules of practice, may and should decide the case without regard to what has gone before. Messinger v. Anderson,225 U.S. 436 ,32 S.Ct. 739 ,56 L.Ed. 1152 ; Seagraves v. Wallace, 5 Cir.,69 F.2d 163 ; McGovern v. Eckhart,200 Wis. 64 ,227 N.W. 300 ,67 A.L.R. 1381 ." England v. Hospital of Good Samaritan,14 Cal.2d 791 ,97 P.2d 813 , 814.
Among the more recent cases of like import see Rutledge v. Rutledge,134 Cal.App.2d 689 ,286 P.2d 429 ; Beverly Beach Properties v. Nelson, Fla.,68 So.2d 604 ,41 A.L.R.2d 1071 ; Coleman v. Ziegler, Mo.,248 S.W.2d 610 ; Burke v. Pittsburg Limestone Corp.,375 Pa. 390 ,100 A.2d 595 .
We are of the opinion that a ruling on one appeal if manifestly or palpably erroneous is not to be treated as conclusive on subsequent appeal of the same case. We are of this view because courts exist but for the ultimate purpose of establishing justice. If we adhere rigidly to an arbitrary principle of convenience and declare as our decision that which is clearly wrong and which we know to be wrong, then we are defeating the purpose for which courts exist. Moreover, we are in effect saying that it is of no consequence to us that justice had not in the end prevailed. Sibley v. Jeffreys,81 Ariz. 272 ,305 P.2d 427 , 429-30 (1956).
As summarized in 5 Am.Jur.2d Appeal and Error, § 750:
Since the very purpose of the doctrine of the law of the case is to settle the issues and obviate the necessity of re-examining them on a later appeal, many courts have taken the view that it should be applied regardless of whether it is made to appear that the issues were mistakenly or erroneously decided on the original appeal, and, indeed, that it is only where the first decision was erroneous that there is any necessity for the doctrine to operate.
However, since the doctrine of the law of the case is merely one of practice or court policy, and not of inflexible law, so that appellate courts are not absolutely bound thereby, but may exercise a certain degree of discretion in applying it, there are many holdings in which the courts have retreated from any inflexible rule requiring the doctrine to be applied regardless of error in the former decision, and it has been said that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust. (Footnotes omitted) (emphasis added).
The Montana Supreme Court has put it thusly: "[T]he evils of adherence to the rule are sometimes greater than those of a departure from it." State v. Hale,
II.
The appeal of claimant, Mrs. Barker, depends upon the validity of Spanbauer, supra. If Spanbauer is not good law, then Mrs. Barker ought to prevail. At least this Court should measure up to its potential, and explain to the Commissionwhich it overruledand to the trial bar, just why it goes to such extremes to let Spanbauer stand as an unlawful stumbling block to worker's compensation claimants.
In Spanbauer, the claimant was injured in an automobile accident on his way to work. The only issue in the case was whether the claimant's injury arose out of and was in the course of his employment.
The Industrial Commission held that the claimant's injuries were compensable. The Commission reasoned that a collective bargaining agreement covering the claimant and his employer became part of the claimant's employment compensation, thereby making his travel to and from work within the scope of his employment. The agreement provided that all employees driving each day over 100 miles round trip to a job site would receive $4 per day travel allowance.
This Court disagreed with the Commission's conclusion, stating:
While proof of compensation for travel expenses or for travel time may be some evidence that appellant [employer] regarded respondent's [employee's] travel as part of his job, such evidence alone cannot support a conclusion that the accident in this case was in the course of respondent's employment. The mere fact that there was such a travel allowance is not conclusive as a matter of law that the accident occurred in the course of a claimant's employment. Spanbauer, supra,93 Idaho at 510 ,465 P.2d at 634 (footnotes omitted).
The Court in so stating relied on this statement of law as being appropriate to such off-premises injury:
When an employee is injured while driving to work in a private automobile, there is a presumption that his injury did not arise out of and was not in the course of his employment. Id.,93 Idaho at 510 ,465 P.2d at 634 (emphasis added).
The Court's citation for that statement is footnote 3, p. 511,
What did the Court say in South? The same statement, except, and worse, wrote it as being a direct quote from Croxen:
When an employee is injured while driving to work in his own automobile, "there is a general presumption that his injury did not arise out of and in the course of [his] employment" within the meaning of I.C. § 72-201. In Re Croxen,69 Idaho 391 ,207 P.2d 537 (1949); see 1 Larson, Workmen's Compensation § 15.11 (1966); 8 Schneider, Workmen's Compensation Text § 1710 (3d or perm. ed. 1951); cf. In Re Malmquist,78 Idaho 117 ,300 P.2d 820 (1956); Eriksen v. Nez Perce County,72 Idaho 1 ,235 P.2d 736 (1951); Walker v. Hyde,43 Idaho 625 ,253 P. 1104 (1927); cf., Foust v. Birds Eye Div. of Gen. Foods Corp.,91 Idaho 418 ,422 P.2d 616 (1967); .... South, supra,91 Idaho at 786 ,430 P.2d at 680 .
What did the Court actually say in Croxen? Nothing whatever about a presumption. Instead:
It may be stated as a general rule that an accident does not arise out of and in the course of the employment within the Workmen's Compensation Law when it occurs when the employee is on his way to work and before he has reached the premises of the employer, or when he is on his way home and has left the employer's premises. Croxen, supra,69 Idaho at 395 ,207 P.2d at 541 (emphasis added).
The only authority cited for this statement of "the general rule" in Croxen is Reed v. *1136 Bliss & Van Auken Lumber Co.,
What did the Court actually say in Eriksen? A later case than Croxen, it cites Croxen for this:
As a general rule an accident does not arise out of and in the course of employment within the meaning of the Workmen's Compensation Law when it occurs when the employee is on his way to work and before he reaches the premises of the employer, or when he is on his way home and has left the employer's premises. Eriksen, supra,72 Idaho at 4 ,235 P.2d at 739 .
Again, as in Croxen, no mention of any presumption.
What was said in Walker? Nothing whatever about any presumption; nothing whatever about the general rule as set forth in Croxen and Eriksen. What was said, though?
Each case must be determined largely upon its particular facts and the law as applied thereto; no hard-and-fast rule can be laid down as controlling. The authorities are irreconcilable, and many of them may be said to be in direct conflict. The modern [1927] tendency of the decisions, however, to the spirit of the law, is to award compensation in all cases where a liberal construction of the statute would justify it. Walker, supra,43 Idaho at 632 ,253 P. at 1111 .
On what basis was Croxen decided? Solely on State ex rel. Gallet v. Clearwater Timber Co.,
This brings us to a discussion of whether or not the case at bar comes within any of the exceptions to the rule stated in the Clearwater Timber Company case, supra ....
A review of the cases on the subject has been so well covered in the case of *1137 Clearwater Timber Company, supra, that a further discussion of such cases would serve no useful purpose.
The case falls within the rule above announced, that the death of deceased did not arise out of and in the course of his employment. The decision of the Industrial Accident Board is affirmed. Croxen, supra,69 Idaho at 396-97 ,207 P.2d at 542-43 .
The rule of Clearwater Timber was applied and the claimant was denied compensation.
When the Court, in the year 1970, denied compensation to the claimant in Spanbauer, and did so in reliance upon the invented presumption said to be attributable to Croxen, what, if any validity did Croxen have?
Absolutely none. Croxen, a 1949 case, was wholly dependent upon the 1929 Clearwater Timber case. Meanwhile, between Croxen in 1949 and Spanbauer in 1970, the Court in Jaynes v. Potlatch Forests, Inc.,
What does all of this add up to? Clearwater Timber was announced in 1929. Croxen was announced in 1949it simply applied Clearwater Timber. Jaynes overruled Clearwater Timber six years after Croxen; Jaynes necessarily also overruled Croxen and any other cases which had applied the rule of Clearwater Timber.
Notwithstanding, sixteen years after Jaynes, the Idaho Supreme Court in Spanbauer applied Croxen (and South) as authority for the proposition that an employee is saddled with a presumption that "his injury did not arise out of and was not in the course of his employment." The Spanbauer Court, after inventing the presumption, then placed upon a claimant the obligation of overcoming that presumption. This was not only wrong, but even more wrong was that the Court then and there in the business of manufacturing that presumption out of whole cloth, at the same time ascribed it to prior opinions which said no such thing.
Obviously the creation of the presumption was an inadvertence which most likely occurred when a law clerk, either over-zealous or careless, thought that general rules and presumptions were synonymous. The Court membership then, which included two justices presently on the Court, was certainly entitled to believe that the draft opinion submitted for their consideration was not premised upon a misstatement of law supposedly, but not uttered by an earlier Court.
Exactly how such took place is a question that cannot be answered. But that it did happen is too well documented to be ignored. The $64,000 question, however, is: What will be the Court's reaction, and what will be done? This is a very serious concern; the very integrity of the Court is at stake. It must be realized that in Spanbauer the Industrial Commission's decision was reversed and supplanted, and in the ensuing fifteen years the Commission has been required to apply itnotwithstanding its own views to the contrary. And it must be realized also that when this Court not only declared there was such a presumption, but that it had been pronounced by the Court as long ago as Croxen, there were not on the Commission any members who were there at the time of Croxen and accordingly knew that Croxen had not created that presumption. In those fifteen years since Spanbauer doubtlessly there have been many Commission decisions which applied it to the prejudice of deserving claimants. That harm cannot be undone. But the future is in the hands of this Court. And the time is now.
Spanbauer is a decision that was predicated upon a misstatement of the law. Where in civil trials the judge or jury comes to a decision upon a misstatement or misapplication of the law, this Court does not hesitate to reversewhich is as it should be. Likewise, where the Court is now made to see that the Spanbauer decision was based on the erroneous belief that *1138 Croxen set forth a presumption, one that had to be overcome, against a claimant, the Court should not be in the least hesitant to overrule that case, and all of its progeny. To let stand a presumption against the injured working person, a presumption which has no basis in case law, impugns on the administration of justice. It should not be necessary to dwell on the fact that the presumption invented in Spanbauer is the type of presumption that affects the burden of proof. The claimant starts out in a sizeable hole from which he has to extricate himself by the production of evidence which is sufficient to persuade the trier of fact that claimant was within the scope and course of his employment at the time of his injury.
Revisiting Clark v. Daniel Morine Construction,
"The Industrial Commission in this case pointedly made its findings and entered its conclusions with an inquisitive and perhaps jaundiced eye on decisions of this Court, particularly Spanbauer v. Peter Kiewit Sons' Company,
`I
`When an employee is involved in an accident while driving to work in a private vehicle, there is a presumption that his injury did not arise out of and in the course of his employment. In order to overcome this presumption, claimant must present evidence that there was a special risk or service incident to his employment involved in the travel. Spanbauer v. Peter Kiewit [Sons' Company],93 Idaho 509 [465 P.2d 633 ].
`II
`While the Supreme Court has recognized the "peculiar risk" doctrine, where there is such an obvious causal relation between the work and the hazard that the course of employment concept must be expanded to cover an employee, the Court stated that the exception was not intended to cover all possible accidents but only instances where there was a very real and special danger. Jaynes v. Potlatch Forests,75 Idaho 297 [271 P.2d 1016 ].
`III
`The commission finds and concludes that in this case, the evidence discloses no special risk or danger existing which was causally related to the employment of the deceased or resulted in his accident and death, nor was he performing any special work or service for the employer on his journey to the work site.' (My emphasis.)
In Spanbauer the Commission reached a determination in favor of the claimant in accord with the determination made by this Court just three years earlier in Diffendaffer v. Clifton,
"What I perceive to be the apparent consternation of the Commission in the case at hand seems justified. Observing that one member of the Commission did not join in the above conclusions, and entertaining my own belief that the decision in the instant case comes from the Commission only on their yielding to a duty to follow this Court's pronouncements of the law, as best those pronouncements can be understood, I submit that the time is over-ripe for this Court to observe in this field where it has been and where it is going. I feel compelled to make known the result of my own review in the hope that a reappraisal will be of benefit to the claimants, employers, sureties, and the Commission, none of whom, in my opinion, can presently say that the decisions of this Court are anything but a composite of confusion.
"Shortly after the advent of the workmen's compensation law, this Court was presented with a case involving a worker who was struck by an automobile, and fatally injured, on Grove Street, in Boise, Idaho. The employer and his surety contended that the employee's death could not be said to have arisen out of and in the course of his employment, because that risk was common to all the public. It was held by a unanimous Court, speaking through Justice Givens:
`Where the employment requires the employee to be on the street he is subjected to a different risk than the ordinary traveler, and so, if he is injured while engaged in that duty or something incidental to it, the accident arises out of the employment.' Zeier v. Boise Transfer Co.,43 Idaho 549 , 553,254 P. 209 , 209 (1927).
The Court there went on to adopt as its own language the following:
`It is essential to the right to compensation that the injury shall have been received in the course of the workmen's employment; that it shall have been received while he was doing some act reasonably incidental to his work. An accident or injury is so received while it occurs while he is doing what a man in like employment may reasonably do within the time during which he is so employed, and at a place where he may reasonably be during that time.
`"Course of employment" includes acts in which the employer has acquiesced, though they are not done in a strict performance of the employee's duties. An employee is not, like a part of a machine operated by him, fixed to precisely the mechanical movements he must perform in order to discharge his industrial function. He may do whatever a human being may reasonably do while in the performance of his duty without such acts placing him outside of the course of his employment.' Zeier v. Boise Transfer Co., supra,43 Idaho at 554-55 ,254 P. at 210 .
"The importance of this case can not be overemphasized; it was handed down on February 14, 1927. The Court had under consideration at the same time, Walker v. Hyde,
"Two years after Zeier and Walker, this Court met head-on with a commuter case, the death of a worker all of whose services were done within the confines of the institution, with the worker meeting his accidental death after leaving the employer's premises. The claimants there placed great reliance on Utah cases, which had been affirmed by the United States Supreme Court. The Supreme Court of Utah, in a track-crossing case, had held that the employee by virtue of his employment was required to cross the track regularly and continuously, thus being peculiarly and abnormally exposed to a common peril, and held that `It is the greater degree of exposure to the peril which arises as an incident to the employment which sustains the causal relation between the employment and the accident.' Bountiful Brick Co. v. Industrial Commission,
"In State v. Clearwater Timber Co., over a vigorous dissent by Justice Givens, a more far-sighted jurist than his colleagues, compensation was denied to the victim of a railroad crossing accident because,
`... such incidental danger is common to the public, and the fact that the employee has to pass that way more frequently is not sufficient to characterize such dangers as peculiarly "abnormal" ....'47 Idaho at 305 ,274 P. at 805 .
This harsh rule was said to be derived from `the rule of the English cases' which, in the absence of other case law interpreting workmen's compensation statutes, were said to be `entitled to great weight.'
"This rule, which sounds very much like the one utilized in today's majority opinion remained the law of Idaho for but the short span of twenty-five years. The Clearwater case and its progeny were expressly overruled in Jaynes v. Potlatch Forests, supra. A case arising out of an accident at the same crossing, the Court in Jaynes granted compensation because of
`... a recognition of the causal connection between the conditions under which an employee must approach and leave the premises of the employer and the occurrence of the injury; ...' (Emphasis added.)75 Idaho at 302 ,271 P.2d at 1018 .
No requirement was laid down that the travel entail an extremely hazardous risk, or that it be one that was not shared by other members of the public. The sole requirement was said to be
`... that the employment involves peculiar and abnormal exposure to a common peril which annexes itself as a risk incident to and inseparable from the employment; it is not necessarily based upon nearness to the plant nor upon reasonable distance there from or even identifying the surrounding areas as an integral part of the premises for all practical purposes but upon a causal relationship between the work and the hazard.' (Emphasis added.)75 Idaho at 302 ,271 P.2d at 1018 .
It is thus seen that the passage of twenty-five years, and a change in Court membership brought a holding in this Court which it would have reached in 1927 had it been then persuaded by the language of the Utah court and Justice Givens of this Court.
"Meanwhile, in those cases where travel on a public street or highway was in, or incidental to, the employment relationship, this Court continued to follow the Zeier holding. Gertrude Coleman lost her husband when his vehicle, too, went off the highway and into the Clearwater River. His travel was incidental to services he performed for his employer, entirely in his own way, for the employer's benefit. This Court took note of the Clearwater case, but applied Zeier, saying `that where one's employment requires him to be upon the *1141 public highways, and he travels there, it is part of his employment, and an injury received at such place and under such circumstances is compensable.' In re Coleman,
"In that same year this Court, citing Zeier for the proposition that, `where employment requires employee to be on street, he is subjected to different risk than ordinary traveler,' went on to say this: `in other words, it is held that such an employee is subject, not only to different, but also to greater risks than an ordinary traveler.' Roe v. Boise Grocery Co.,
"There seems to have been no problem with either of those two lines of cases, Zeier, on the one hand, and Jaynes, on the other, until 1967.
"The first time the Court was faced with the argument that the `peculiar risk' doctrine of the Jaynes case was `intended to cover only instances where there is very real and special danger,' the Court emphatically rejected so narrow an interpretation, quoting at length from Jaynes that its doctrine is:
`a recognition of the causal connection between the conditions under which an employee must approach and leave the premises of the employer and the occurence of the injury; it recognizes that the employment involves peculiar and abnormal exposure to a common peril which annexes itself as a risk incident to and inseparable from the employment; it is not necessarily based upon nearness to the plant nor upon reasonable distance therefrom or even identifying the surrounding area as an integral part of the premises for all practical purposes but upon a causal relationship between the work and the hazard.' Diffendaffer v. Clifton,91 Idaho 751 , 757,430 P.2d 497 , 503 (1967).
And see, cases and treatises cited therein.
"It is important to note in Diffendaffer the Commission concluded that the risk or hazard of travel in that case was an exposure occasioned by the employment, and the Commission, as well as this Court, is then seen as being properly aware that the inquiry was not for the existence of peculiarly dangerous highway conditions. In Diffendaffer observe this further ultimate finding:
`The evidence establishes that the Claimant's accident arose out of and was a necessary risk associated with his employment and the conditions, obligations and incidents of that employment. The Board finds and rules that the accident and resulting injury arose out of and in the course of his employment.' Diffendaffer v. Clifton, supra,91 Idaho at 756 ,430 P.2d at 502 .
"In recent years, however, the holding of the Jaynes case has been stood on its head. The test of `peculiar and abnormal exposure to a common peril' has given way to something which looks and sounds like the same merchandise, but is not. The test now is that of exposure to peculiar, abnormal and wholly uncommon peril. See, Harris v. William J. Burns Int. Detective Agency, Inc.,
"The Commission applied Diffendaffer to claimant's case in Spanbauer v. Peter Kiewit Sons' Company, supra. This Court, in what appears to be a complete flip-flop from Diffendaffer, reversed the Commission, saying that claimant there `suffered his injuries while in an automobile accident on his way to work as might have any other person proceeding along that roadway that morning and thus the injuries respondent received were not compensable.' Spanbauer v. Peter Kiewit Sons' Company,
In Barker v. Fischbach & Moore, Inc.,
Where Spanbauer is also in error and should be overruled is in its analytical approach of imposing strict standards upon claimants by requiring them to show, in addition to their receiving travel allowances, extra evidence that their employer intended to compensate them for their travel to and from work. I especially find it hard to imagine what extra evidence would satisfy the Court in light of the facts of this case.
In Barker I, this Court cited 1 Larsen, The Law of Worker's Compensation, § 16.30 (1982), to state that there are two factors to consider when deciding if an employer intended to compensate an employee for his or her travel to and from work. These factors (in addition to evidence of the travel pay itself), are: (1) extended cross-country travel to reach the employment site; and (2) the size of the travel allowance paid. Barker I, supra,
In this case the claimant introduced evidence that a travel allowance has been paid. Therefore, to paraphrase the Spanbauer Court, we begin with the proposition that there is "some evidence that [Fischbach & Moore] regarded [decedent's] travel as part of his job...." Spanbauer, supra,
If 534 miles per week to and from work, and a travel allowance equaling 17 percent of one's wages are not sufficient as a matter of law in proving that Fischbach & Moore did indeed intend to compensate decedent for his travel, then, rarely if ever, will any claimant be able to satisfy this Court's purported exception to the going and coming rule. The Commission, of course, is bound to take its cues from the Courtwhich is the ultimate arbiter as to the state of the law in Idaho. Other than for finding its Spanbauer award of compensation reversed by the Court in an opinion which did not deign to set forth the facts found by the Commission, there is little doubt in my mind but that the Commission would have awarded compensation in Clark v. Morrine and in this case. However, its hands are tied by Spanbauer. Accordingly, it is understood why the Commission in the first instance, and now a second time, feels constrained to say that there is "no evidence other than the actual [travel] payment itself, to indicate that the employer intended to compensate the employee for travel time or travel expense," notwithstanding that one of the two Larsen factors requires an analysis of the size of the travel allowance paid.
III.
Spanbauer's analytical approach of requiring a high level of proof beyond the payment of travel expenses to enable a claimant to avoid application of the "going and coming" rule is incompatible with fundamental principles of worker's compensation law. Hattenburg v. Blanks,
What this Court ought to do is alter its analytical approach and follow the majority rule, which is that in cases "involving a deliberate and substantial payment for the expense of travel ... the journey is held to be in the course of employment." Larsen, supra, at § 16.30. Such a rule is equitable, and as I shall show, easy to apply, and much more in harmony with present-day policies surrounding the employer-employee relationship.
The thrust of those cases cited by the majority, which I shall refer to below, is that the deciding factor for whether a person's going and coming from work is covered for worker's compensation purposes, is whether the travel allowance paid is an inducement to get employees to work at the employer's job site. If it is, then such travel is held to be compensable. Larsen, supra, at § 16.32, and cases cited therein. Thus, the analysis' focus is on the purpose for the travel allowance, with the size of such allowance in relation to the actual travel expense incurred the key factorthe larger the allowance in relation to the expenses resulting from such travel, the more likely the inference that an employer is paying the allowance with the intent of inducing the employee to work at its job site.
This is the result reached in Ricciardi v. Aniero Concrete Co.,
In Ricciardi, the claimant was injured while traveling from work. His travel allowance amounted to 40 percent of his commuting expenses. The court held this to be an inadequate amount to justify inferring that such travel was part of his employment, and, accordingly, denied him benefits. Id.
Ricciardi is sound law. It requires no delving by a factfinder into the subjective minds of each party, as Spanbauer and Barker I demand, to determine whether the travel in issue is intended to be or not be within the course of employment. Rather, it requires a simple mathematical calculation, which equitably determines when an employee's travel is covered by worker's compensation.
Applying the rule in Ricciardi, the Commission's decision here should be reversed. The facts reveal that the decedent was paid $90 for traveling approximately 534 miles to and from work each week. Depending upon the traveling expenses incurred by the decedent, his travel may have been part of his employment. If decedent's expenses were 18.7 cents per mile or less, which is quite feasible, the allowance paid by Fischbach & Moore would constitute approximately 90 percent or more of the decedent's expenses. I would hold this to be substantially compensating for all of his travel expenses, thereby making his travel covered under Idaho's Worker's Compensation Act.
Applying the rule in Ricciardi to the facts found in Spanbauer also reveals that the result reached in that case may have been correct. In Spanbauer, the claimant was traveling at least 500 miles a week to his job, and receiving $20 per week in travel allowances. Even assuming travel expenses of just eight cents per mile, claimant's *1144 travel allowance would only cover one-half of his travel expenses. At five cents per mile, the travel allowance would still only cover 80 percent of his expenses. In either event, the allowance paid would not substantially cover all of claimant's expenses. Accordingly, the Court, even in light of this analysis, was correct in holding that claimant's travel was not within the scope of his employment. Thus, as pointed out above, the harm done in Spanbauer, and what makes it bad law, is not necessarily the result reached, but the way the result was reached.
Many other cases arrive at the result and employ a similar analysis to that which I propose. In Westinghouse Electric Corp. v. Department of Labor,
In Degerstrom, Inc. v. Department of Labor,
The result reached in Degerstrom is particularly important, for it reveals that the proper focus in determining whether an employee's travel is within the course of employment, is whether a substantial travel allowance is paidnot whether the parties subjectively did or did not intend the travel to be within the course of the employee's work.
Both Westinghouse and Degerstrom are nearly identical factually to this case. As in the above two cases, here, too, a collective bargaining agreement required Fischbach & Moore to pay decedent a substantial amount of his travel expenses. Therefore, under the reasoning of Westinghouse and Degerstrom, this Court should hold that decedent's travel was within the course of employment.
A less than exhaustive search reveals that the following cases are also in accord with that reached by the two Washington Supreme Court decisions: Swasey's Case,
IV.
Idaho's analytical approach to "going and coming" cases places it in the definite minority. Such is acceptable only if compelling reasons exist to support such an approach. I can think of none, however, and none are to be found in either Barker I, supra, or Spanbauer, supra.
On the contrary, compelling reasons exist in today's motorized society for not continuing to use the Spanbauer approach. The "going and coming" rule ought not to be allowed to become an impenetrable wall of immunity by which employers can enjoy the benefits of inducing employee to travel to far off work sites and yet avoid responsibility for accidental injury occurring from such travel. Said the California Supreme Court 15 years ago:
There is a substantial benefit to an employer in one area to be permitted to reach out to a labor market in another area or to enlarge the available labor market by providing travel expenses and payment for travel time. It cannot be denied that the employer's reaching out to distant or larger labor markets increases the risk of injury in transportation. In other words, the employer, having found it desirable in the interests of his enterprise to pay for travel time and for travel expenses and to go beyond the normal labor market or to have located his enterprise at a place remote from the labor market, should be required to pay for the risks inherent in his decision. Hinman v. Westinghouse Electric Co.,2 Cal.3d 956 ,88 Cal.Rptr. 188 , 192,471 P.2d 988 , 992 (1970) (emphasis added).
V.
For the foregoing reasons, I am unable to join the opinion for the Court, and am left wondering what it will take to influence three members of this Court to correct the prejudicial detriment continuing to be caused claimants by the Spanbauer case. The supposed science of jurisprudence is poorly served this day.
A few years ago some member of our profession, a district judge, if my memory serves me correctly, called my attention to the Law of Inverse Irreversibility. It was suggested that that law is especially applicable where on petition for rehearing it is irrefutably shown that a court or authoring justice thereof is in error. Because that law also seems applicable under today's circumstances, it is worthy of mention. Ralph Estling, writing for the weekly "New Scientist" of London, reprinted in World Press Review, April 1983, p. 36, explained how it works:
Put in its simplest way, the principle of inverse irreversibility means that a scientistor anyone else in the business of forming some general "law" by which the universe, or a large part of it, is governedwill view his law in inverse proportion to the amount and weight of evidence against it. A little evidence against it will cause agonies of doubt; moderate amounts will cause real concern and a pursing of lips; but irrefutable proof of his law's inaccuracy and untenability will cause the scientist to cling to it with the tenacity and singlemindedness of a barnacle.
Forsooth, it would seem that that principle is clearly being applied by those who comprise today's majority and tenaciously cleave to the Spanbauer presumption in favor of the surety and against the dead working man's widow. By reason of this Court's illfounded manufacturing of that *1146 presumption, these are the known claimants who have already been penalized by it: Mrs. Spanbauer, whose award was reversed; Mrs. South, who was denied benefits by a Commission which now for fifteen years has been obliged to apply Spanbauer; and Mrs. Clark, whose claim was also denied on the basis of Spanbauer.
Quaere: Having backed away from today's opportunity to remedy the injustice created by its own error, how, then, if at all, does the Court propose to do so?
APPENDIX
The facts of this case are set forth in detail in Case of Barker v. Fischbach & Moore, Inc.,
In Barker I, we clarified the holding in Spanbauer v. Peter Kiewit Sons' Co., 93 mand, Barker v. Fischbach & Moore, Inc., "Spanbauer is to be read that the payment of travel expenses, along with other evidence indicating the employer intended to compensate the employee for travel time, will justify expanding the course of employment to include going to and from work." Barker I, supra,
The Commission concluded that there was no other evidence besides the payment of travel expenses to establish that Fischbach and Moore intended to compensate its employees for travel time.[1] The Commission held, therefore, that claimant's husband was not in the course of employment when he died, and, accordingly, claimant is not entitled to benefits. Claimant again appeals the Commission's decision.
Our review of the record indicates that the Commission has correctly applied Spanbauer in reaching its conclusion. The determination that the decedent was not within the course and scope of employment at the time of the accident is a factual finding, and accordingly is binding upon us, provided that it is supported by substantial and competent evidence. ID. CONST. art 5, § 9; In re Chavez,
Costs to respondents, no attorney's fees.
NOTES
[1] Workmen's compensation may only be collected by employees who are injured or killed within the course of employment, I.C. § 72-102(14)(a); I.C. § 72-201. The general rule is that a worker traveling to and from an employer's place of business is not within the course of employment. Clark v. Daniel Morine Constr. Co.,
[1] This concern is undoubtedly accentuated by those same three members of the Court simply choosing to ignore in Bint v. Creative Forest Products, Inc.,
Notes
[2] The Court suggests to its readers that they see the dissent in Idaho Dept. of Law Enforcement v. One 1955 Willys Jeep,
Where a question of law once determined is sought to be relitigated upon a second appeal to the same appellate court it is clearly established that the first determination is the law of the case and will not be re-examined in the absence of unusual circumstances leading to injustice or unfairness even though the issue sought to be raised involves the jurisdiction of the court on the prior appeal. (citing cases) This is so, even though it is contended that absence of jurisdiction renders the decision on the prior appeal a nullity and ineffective as a determination of any question. Id. at 157-58,
[3] The general rule as stated by the Michigan court was one borrowed from DeVoe v. New York State Rys.,
The employee is not insured generally against accident while working for the street railway corporation. At home or on the street he may meet with accident not arising out of or in the course of his employment. The act does not cover such cases. The employee gets up in the morning, dresses himself, and goes to work because of his employment, yet if he meets with an accident before coming to the employers' premises or his place of work that is not a risk of his occupation but of life generally.
The Michigan court went on to add:
In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment.
Following which the Michigan court pinned its decision largely on the factual determination made by the commission:
It is insisted by plaintiff's counsel that the case falls within the exception rather than the rule, while defendant's counsel insist that it falls within the rule. Defendant's counsel also insists that, if it is within the exception, the commission has by its findings determined the question of reasonable time, space and opportunitya question of fact in this caseadversely to plaintiff's contention, and that such finding is final under the repeated decisions of this court. I am persuaded that the case falls within the rule....
... But whether we treat the case as presenting a question of law or of fact or of both law and fact, I am persuaded that the result reached by the department of labor and industry should not be disturbed.
[4] Clearwater Timber relied upon Reed & Bliss v. Vanduken Lumber,
[5] It is interesting to speculate as to what would have been the opinion of the Court if Justice Budge had sat, and if Justice Herman Taylor had died nine days earlier than he did.
[6] In actuality Walker was not really a commuter in the sense in which that word is generally used. He was a logger; the year was 1924, and after the noon lunch period, on walking with his son back to the work site, Walker attempted to hitch a ride:
As the truck approached the Walkers, they stepped to the left of the road to allow it to pass. A team a little ahead caused the driver of the truck to slow down, and as he did so the elder Walker ran around behind the truck to the right side and attempted to board its front bunk. In his attempt to get on the truck, Walker fell, and one of the rear wheels passed over his body causing instant death. The driver of the truck did not see Walker when he attempted to ride, and did not know that he intended so doing. Walker, supra,
[7] During each work week, decedent stayed in Arco, which is approximately 26 miles one way from his work. He commuted home on weekends to Twin Falls, which is 137 miles one way from his work.
[8] Westinghouse, supra, and Degerstrom, supra, involved similar issues. Although not consolidated, they were disposed of in one opinion.
[1] The $18 per day travel allowance was paid to all employees pursuant to an applicable collective bargaining agreement regardless of how far they had to travel from home to work.