James Parrot v. City of Perry

because no testimony was provided regarding whether employee had any intention of responding to the emergency call. Additionally, employee was not obligated to respond to the call, but had the discretion to decide whether or not he was going to respond. We agree that there is no evidence in the record to show whether employee intended to respond to the call and that there is no way of knowing whether he would have responded to the call if he was not injured. However, we believe the key factor is not whether he intended to respond, but whether he actually did respond. Therefore, we are persuaded by employee's actions rather than his intentions. Employee's injury occurred when he went to answer the emergency call which prevented him from making any attempt to respond to the call; thus, he never began fulfilling the duties of his employment.

If employee had been en route to the emergency at the time of the accident, there would be no dispute that the injury would be compensable under the "special errand" rule, an exception to the standard "going and coming" rule.

In general, an employee does not suffer injury arising out of and in the course of employment if the employee is injured while going or journeying to or returning from the place of employment. This is true because in most circumstances, a trip to or from one's place of work is merely an inevitable circumstance with which every employee is confronted and which ordinarily bears no immediate relation to the actual services to be performed. . . . While this is the general rule, the principle may be modified by the particular facts, circumstances and situations resulting in various and varied exceptions in order to accommodate both the employer and the employee. Certain exceptions to the general rule have been clearly delineated by the courts which permit a worker to be entitled to compensation.

Custer, 174 S.W.3d at 610. One well established exception provides compensation to an employee who is performing a "special errand" for his employer. The special errand rule provides that:

when an employee, having identifiable time and space limits on his employment, makes an offpremises 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. . . .Thus, while the general rule is that accidents incurred while an employee is going to or coming from work are not compensable because they do not arise out of and in the course of employment, that rule is not applicable where the employee during that period performs a special task, service or errand in connection with [his or] her employment. Such circumstance might be better characterized as causing a trip made in performing such a special task to be a part of the employment.

Id at 614 .

In Hilton, the court found that in order for the special errand rule to apply the employer must direct the employee to do a specific task at a particular time and the accident or injury must occur while the employee is on that "special errand" for the employer. The voluntary nature of employee's job would preclude such direction; however, the question remains whether employee was on a special errand for his employer. We believe he was not. Turning to Larson's, the circumstance that the employee is "subject to call" should not be given any independent importance in the narrow field of going to and from work; the important questions are whether the employee was in fact on an errand pursuant to call, and what kind of an errand it was. 1. A. Larson, Workers' Compensation Law, § 14.05 (6)(2004). As a volunteer firefighter, employee was on-call at all times; however he was only on duty when he was on an errand pursuant to call, i.e., en route to the emergency. Employee may or may not have been about to engage in an errand pursuant to the call, but incurred injury preventing the start of any such errand. Employee's injury prevented any response to the emergency call; thus, employee never began an errand pursuant to the call.

Furthermore, in special errand cases, compensation is limited to "portal-to-portal" coverage; relying on Larson's, which states:

[T]he effect of the special errand rule is to confer "portal-to-portal" coverage on the employee, [so] the question may arise, as in the case of outside workers enjoying similar coverage of their travels:

where precisely is the portal? One of the rare opinions addressing itself to this question is that in Charak v. Leddy, 261 N.Y.S.2d 486 (N.Y. 1965). The claimant, an attorney, fell and was injured on steps leading from the inner lobby to the outer lobby of her apartment. She was leaving on a special errand for her employer. The court held that she had not left her home and commenced her employment. Compensation was denied. The court pinpoints the in between nature of the claimant's situation by saying:

A fall in her apartment would not have given rise to any claim. If, however, in the performance of a special errand, she had fallen in the street, barely beyond the outer door of the building, the accident would have been compensable . . .

1. A. Larson, Workers' Compensation Law, § 14.05 (2). Therefore, portal to portal coverage generally covers an employee from the time he leaves home until the time he returns. In this case, employee was inside the confines of his home at the time of injury, barring coverage. Thus, employee's injury is not compensable under the special errand exception given that his injury occurred inside his home and he failed to commence performance of a special errand prior to his injury.

The Commission affirms the award of the administrative law judge as we agree with the ultimate conclusion reached by the administrative law judge that employee failed to meet his burden of proof that he was in the course of employment at the time of the accident.

The award and decision of Administrative Law Judge Ronald F. Harris, issued July 13, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\underline{28^{\text {th }}}$ day of February 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

After a review of the entire record as a whole, and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee failed to meet the burden of proof that he was in the course of employment at the time of the accident.

The purpose of the Missouri Workers' Compensation Law is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment and,

consequently, the law should be liberally construed so as to effectuate its purpose and humane design. The law must be broadly and liberally interpreted and is intended to extend its benefits to the largest possible class. Therefore, any question as to the right of an employee to compensation must be resolved in favor of the injured employee.

Custer v. Hartford Ins. Co., 174 S.W.3d 602, 610 (Mo.App. W.D. 2005).

I believe employee is entitled to compensation as he has shown that he was in the course of employment at the time of his accident. The test for the term "in the course of employment" was met as employee's injury occurred within a period of employment at a place where employee may reasonably have been, while reasonably fulfilling the duties of his employment.

As a volunteer firefighter, employee was on-call twenty-four hours a day. Employee's volunteer status also gave him the discretion to either respond or decline to respond to an emergency. In this case, I believe the evidence shows that employee began to respond to the emergency. It is clear that employee was en route to answer the emergency call when he was injured. The question is whether responding to an emergency call is encompassed in employee's duties as a firefighter. I strongly believe that it is. The moment employee decided to respond to the emergency call; he began performing the duties of his employment.

Employee knew that th