PIERRON, J.
Petromark Drilling, LLC and Ace Fire Underwriters Insurance Company (Petromark) appeal from the Workers Compensation Board's (Board) reversal of the administrative law judge's (ALJ) denial of David C. Williams' workers compensation claim. Petromark argues that Williams' injuries are not compensable under either K.S.A. 2010 Supp. 44-508(f)'s going-and-coming rule or K.S.A. 2010 44-501(d)(1)'s "willful failure to use a guard" rule. We agree on the issue of the going-and-coming rule and reverse the Board's finding.
At the time of his automobile accident, Williams was 23 years old. He had been working as a back-up hand for Petromark since September 28, 2010. On his first day of work he signed a form, the back of which contained the following policy: "Seat belts will be used by all employees and all occupants of vehicles driven on official business.
Williams worked from 7 a.m. to 3 p.m. on driller Kenneth Roach's crew. The crew consisted of a back-up hand, Williams, who worked under the chain man, Shane Link, who worked under the derrick man, Garrett Schneip, who worked under the supervisor, Roach. The crew travelled to remote drill sites, all within a 10-mile radius of Bazine, Kansas. It took approximately a week to drill an oil well. When the drilling was completed, the rig was disassembled, loaded onto a truck, moved to a new drill site, and reassembled. Williams testified his job required him to travel to the drill sites. Roach testified his crew members could live anywhere but had to be willing to travel to the drill sites.
Roach and Link lived in Great Bend, which was about 50 miles from the drill site; Williams lived in Pawnee Rock, which was about 60 miles from the drill site; and Schneip lived near Bazine. Roach provided his crew members optional transportation to the drill sites from Great Bend. Williams traveled from his home in Pawnee Rock to Link's home in Great Bend. Link and Williams rode in Roach's personal vehicle from Link's home to the drill site and back. Williams then traveled from Great Bend to Pawnee Rock. Schneip drove his personal vehicle to and from the drill site. Roach was paid mileage because he was transporting his crew members. Whether they rode with Roach or drove their personal vehicles, the crew members were not compensated for the trips to and from the drill site — no hourly wage, no mileage, no per diem. Williams' pay started when he arrived at the drill site and ended when he clocked out at the site.
On October 10, 2010, Williams rode with his wife to Great Bend. He then rode with Roach to the drill site. Williams got Roach's permission to ride directly back to Pawnee Rock with Christopher LaMaster, who was filling in for Link. Williams did this for his own convenience — LaMaster's route was more direct and Williams would not have to wait for transportation from Great Bend. Roach did not tell them which route to take from the drill site to Pawnee Rock.
The tires on LaMaster's personal vehicle were low so he aired them up before leaving the drill site. LaMaster drove and Williams rode in the passenger seat with his seatbelt on. LaMaster did not deviate from the route to Pawnee Rock and stopped only once to air up a back tire on his vehicle that had gotten low. Williams exited the vehicle to help LaMaster air up the tire with a cigarette lighter pump. They only aired up the tire for 10 minutes, or halfway, because LaMaster was in a hurry to get home. Williams did not fasten his seatbelt upon reentering the vehicle — he testified he did not know why he did not fasten it, LaMaster did not ask him to fasten it, and he was unaware of Petromark's seatbelt policy. Before they reached Pawnee Rock, the tire blew out and the vehicle rolled over. Williams was ejected from the vehicle and suffered injuries. He called Roach from the emergency room that evening to report the accident and his injuries.
Williams filed a workers compensation claim on January 12, 2011. On December 12, 2011, the ALJ entered a decision in favor of Petromark. The ALJ concluded that Williams' injuries were not compensable because they did not arise out of and in the course of his employment:
The ALJ also concluded that Williams' claim would not have been barred due to his failure to wear a seatbelt:
On April 26, 2012, the Board reversed the ALJ's decision and entered an award in favor of Williams. Three members of the Board concluded that Williams' injury did arise out of and in the course of his employment:
The Board also concluded that Williams' claim was not barred by his failure to wear a seatbelt:
Petromark argues that Williams' injuries were not compensable either because they did not arise out of and in the course of his employment or because they resulted from his failure to use a seatbelt. The facts regarding Williams' employment and accident appear to be undisputed.
This case involves the review of the Board's determination that the accident occurred within the course and scope of Williams' employment, as well as the Board's interpretation and application of the going-and-coming rule, as set forth in K.S.A. 2010 Supp. 44-508(f).
Generally, the issue of whether an employee's accident arose out of and in the course of employment is a question of fact. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013). But it may be determined as a matter of law if the evidence can lead to only one factual finding. See Scott v. Hughes, 294 Kan. 403, 413-16, 275 P.3d 890 (2012). We review the Board's factual findings to determine whether they are supported by substantial evidence in light of the record as a whole. K.S.A. 2010 Supp. 77-621(c)(7), (d); Quintana v. H.D. Drilling, LLC, Nos. 106,126, 106,127, 106,131, 2012 WL 1759430, at *2 (Kan. App.2012) (unpublished opinion). Whereas the issue of whether the Board erroneously interpreted or applied the law is reviewed de novo. K.S.A. 2010 Supp. 77-621(c)(4); Craig v. Val Energy, Inc., 47 Kan.App.2d 164, 166, 274 P.3d 650 (2012), rev. denied 297 Kan. ___ (May 20, 2013).
An injury is not considered to have arisen out of and in the course of employment if it occurred while the employee was "on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence." K.S.A. 2010 Supp. 44-508(f). This is referred to as the going-and-coming rule. See Hughes, 294 Kan. at 413-14, 275 P.3d 890. The rule is based upon the premise that "while on the way to or from work, the employee is subjected only to the same risks or hazards as those to which the general public is subjected." Sumner v. Meier's Ready Mix, Inc., 282 Kan. 283, 289, 144 P.3d 668 (2006). Therefore, such risks are not causally related to the employment. 282 Kan. at 289, 144 P.3d 668.
Kansas courts have long recognized an exception to the going-and-coming rule where travel is an intrinsic part of the employee's job. See Hughes, 294 Kan. at 414, 275 P.3d 890 (citing Bell v. A.D. Allison Drilling Co., 175 Kan. 441, 264 P.2d 1069 [1953]). While caselaw deems inherent travel an exception to the going-and-coming rule, "it appears the analysis is really whether travel has become a required part of the job such that the employee actually assumes the duties of employment from the moment he or she leaves the house and continues to fulfill the duties of employment until he or she arrives home at the end of the workday." Craig, 47 Kan.App.2d at 168-69, 274 P.3d 650 (rejecting argument that judicially created inherent-travel exception to K.S.A. 44-508(f) not viable after Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009), because it contradicts clear statutory language); Quintana, 2012 WL 1759430, at *6-7 (same; noting Kansas Supreme Court has not departed from any cases recognizing inherent-travel exception since Bergstrom).
In support of its application of the inherent-travel exception to the going-and-coming rule, the Board majority cited Craig, 47 Kan.App.2d 164, 274 P.3d 650, and Messenger v. Sage Drilling Co., 9 Kan.App.2d 435, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984). The dissenting Board members distinguished Craig and Messenger, found LaRue v. Sierra Petroleum Co., 183 Kan. 153, 325 P.2d 59 (1958), to be more analogous, and voted for application of the going-and-coming rule.
In Messenger, a drilling crew member died in a truck accident that occurred on his way home from a drill site. The relevant facts were: (1) The drilling company did not hire a new crew near each drilling site; (2) it was the customary practice in the oil well drilling business that crew members lived at some distance away and traveled daily to reach the job sites; (3) crew members had no permanent job site but, instead, were expected to be amenable to travel to and from drilling sites, sometimes over 200 miles away; (4) crew members were required to provide their own transportation, for which they were paid mileage at the rate of 20¢ per mile; and (5) the drilling company benefited from the industry's customary transportation arrangements and when crew members agreed to travel. The Messenger court held that the inherent-travel exception was applicable because the drilling crew's willingness to travel furthered the interests of their employer. In doing so, the court relied on Bell, 175 Kan. 441, 264 P.2d 1069 (travel inherent because employee was engaged in obligatory service of procuring drilling crew, which was beneficial to both employee and employer). Messenger, 9 Kan.App.2d at 439-40, 680 P.2d 556.
In Craig, a driller was injured in an automobile accident that occurred on his way home from the drilling company's shop. The relevant facts were: (1) Craig was driving a crew member home at the time of the accident; (2) Craig used his personal vehicle to drive his crew to the oil rig site and back; (3)
In LaRue, a drilling crew member died in a car accident that occurred on his way home from a drill site. The relevant facts were: (1) The crew was staying near the drill site; (2) the driller and LaRue decided to travel home, over 100 miles away, and meet the rest of the crew at the new drill site in the morning; (3) the driller was driving LaRue home at the time of the accident; (4) the drilling company did not provide transportation for crew members or authorize the driller to provide such transportation; (5) crew members were not paid mileage; and (6) the proximate cause of LaRue's death was not the negligence of the drilling company. The LaRue court held that because the travel was strictly personal and did not further the employer's interests, the employee's death did not arise out of and in the course of employment. See 183 Kan. at 156-58, 325 P.2d 59.
The recent Court of Appeals case of Quintana is instructive. Quintana, a drilling crew member, was injured in an automobile accident that occurred on his way home from a drill site. The relevant facts were: (1) Quintana was being driven home by his supervisor, the driller, at the time of the accident; (2) the crew member who drove the crew was paid mileage; (3) the crew members were paid a per diem of $8; and (4) the drilling company benefited from having the driller drive the crew, as was customary in the industry, because the crew would arrive on time and it would not have to hire new workers whenever the rig moved locations, which was every 15 to 20 days.
The Quintana court held that the inherent-travel exception was applicable. In doing so, the court found Messenger to be analogous:
Scott, 294 Kan. 403, 275 P.3d 890, is also helpful. Hughes, a driller, got into an automobile accident while he was driving his crew members to a drill site, killing one crew member. The relevant facts were: (1) The crew members could choose to ride with the driller or drive themselves to the drill site, which was about 90 miles away and changed every 12 to 16 days; (2) crew members customarily rode with the driller so that everyone arrived at the same time; (3) the drilling company paid mileage to one driver for the trip to the drill site and back, but not for picking up crew members who lived off the direct route; (4) crew members were paid hourly beginning upon arrival at the drill site; (5) the crew returned home after each workday because the drilling company did not provide lodging or a food stipend; and (6) crew members were paid $15 "ride time" if the drilling site was over 100 miles one way.
The Scott court held that the evidence could only support one finding — that travel was an intrinsic part of the driller's job. But in doing so, the court noted that there was evidence to support a finding that travel was not an intrinsic part of a crew member's
The facts of this case are undisputed. Petromark did not hire a new crew at every drill site. Williams, a crew member, had no permanent work site. Instead, he was required to travel to ever-changing drill sites. Roach, the driller, was paid mileage for driving his crew members to and from the drill site. Whether they drove themselves or rode with Roach, crew members like Williams and LaMaster were not paid for their travel to and from the drill site.
The key to resolution of this case is whether Williams' travel, at the time of his accidental injury, was furthering Petromark's interests. There was a mutually beneficial transportation arrangement between Williams (free ride to and from the drill site) and Petromark (did not have to pay for crew's food or lodging or find a new crew at every drill site). But Williams chose to ride from the drill site with LaMaster instead of Roach. Roach's travel was definitely inherent to his employment because it furthered Petromark's interests. The same cannot be said of Williams' travel at the time of his accidental injury. He was on a personal mission to get home sooner. The proximate cause of Williams' injury was LaMaster's rather than Petromark's negligence.
The Board misapplied the law to the facts of this case. The ALJ correctly found that Williams' claim was barred by the going-and-coming rule. The Board erred by reversing the ALJ and finding the inherent-travel exception to the going-and-coming rule was applicable.
We reverse the Board's award and affirm the judgment of the ALJ that Williams' injuries were not compensable because they did not arise out of and in the course of his employment.
Reversed.