APPLICATION OF McGAHA ( 1987 )

No. 86-344
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF THE APPLICATION OF
LARRY McGAHA, Workers' Compensation Claimant,
for a Declaratory Ruling on the Applicability
of 539-71-402 (I), MCA (1983), to his Workers'
Compensation Claim.
LARRY McGAHA,
Claimant and Respondent,
-vs-
GREYHOUND LINES, INC.,
Defendant and Appellant.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Keefer, Roybal, Hanson, Stacey & Jarussi; Neil S.
Keefer argued, Billings, Montana
For Respondent :
Datsopoulos, MacDonald & Lind; Dennis E. Lind argued,
Missoula, Montana
Submitted: March 20, 1987
Decided: April 9 , 1987
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The Workers' Compensation Court made a declaratory
ruling that Mr. McGaha is eligible for Montana workers'
compensation benefits for an injury suffered in Twin Falls,
Idaho. Greyhound Lines, Inc., the self-insured employer,
appeals. We affirm.
The issue is whether the Workers' Compensation Court
correctly ruled that Mr. McGaha is eligible for Montana
workers' compensation benefits under § 39-71-402 (11, MCA, as
an employee temporarily working out of state.
The facts are not contested. Mr. McGaha had been em-
ployed as a driver for Greyhound Lines, Inc. (Greyhound)
since 1974. He moved to Montana in 1978 and now resides in
Clinton, Montana. Beginning in 1978 and up until just before
his injury, Mr. McGaha was an wextra-board" bus driver out of
Missoula, Montana. He regularly drove from Missoula to Butte
and back.
Greyhound bus drivers are subject to a negotiated labor
agreement which ranks all drivers within regional districts
according to seniority. Mr. McGaha's district included
Montana, Utah, Idaho, Oregon and part of Washington. The
drivers within the region with the most seniority have the
opportunity of selecting the best paying bus runs, while
those drivers with the least seniority must drive the lesser
preferred routes.
This seniority system comes into play when Greyhound
chooses to reduce scheduled service. During slow periods,
Greyhound reduces the number of active positions in its
force. This reduction creates a domino effect whereby senior
drivers within a district "bump" junior drivers out of their
regular positions. In February 1983, a senior driver bumped
Mr. McGaha from his position operating out of Missoula.
According to the labor agreement, Mr. McGaha then had 24
hours to bump another driver in the district. If he did not
act within 24 hours, he would lose his guaranteed base wage.
He bumped a junior driver from a regular bus route running
between Salt Lake City, Utah, and Twin Falls, Idaho. On his
first trip, Mr. McGaha injured his back while loading luggage
in Twin Falls.
Greyhound initiated payment of workers' compensation and
medical benefits under Utah's workers' compensation laws.
Utah was selected pursuant to Greyhound's policy of consider-
ing the point of origin of the bus run as the place of em-
ployment. Mr. McGaha has received temporary total disability
benefits under the laws of Utah for over three years. He has
been unable to return to work as a bus driver and recently
underwent surgery for a spinal fusion. He now wishes to be
allowed to recover benefits under the Montana extraterritori-
al workers' compensation statute, instead of under Utah law.
Mr. McGaha accordingly argued to the Montana Workers' Compen-
sation Court that he was employed in Montana, his absence
from the state was temporary, and this temporary absence was
incidental to his Montana employment. Greyhound argued that
the labor agreement in effect at the time of Mr. McGaha's
accident precluded extraterritorial application in this case.
It characterized the labor agreement as a multi-state employ-
ment contract and argued that Mr. McGaha was a regional
employee rather than a Montana employee.
The Workers' Compensation Court entered a declaratory
judgment that Mr. McGaha was entitled to Montana benefits.
Greyhound appeals from that judgment.
Did the Workers' Compensation Court correctly rule that
Mr. McGaha is eligible for Montana workers' compensation
benefits under 5 39-71-402(l), MCA, as an employee
temporarily working out of state?
Section 39-71-402(1), MCA, states:
If a worker employed in this state who is subject
to the provisions of this chapter temporarily
leaves the state incidental to that employment and
receives an injury arising out of and in the course
of such employment, the provisions of this chapter
shall apply to such worker as though he were in-
jured within this state.
The findings of the Workers ' Compensation court which relate
to this issue are:
8. As a result of a cutback in the Greyhound
driver work force in February of 1983, claimant was
displaced or bumped from his extra board position
in Missoula, Montana, by a senior driver from
Spokane, Washington.
9. Greyhound provides a guaranteed minimum salary
to its drivers.
10. Pursuant to the labor agreement, a displaced
driver has 24 hours to find a position within the
district in order to avoid losing the guaranteed
salary. If a displaced driver takes longer than 24
hours, the driver has up to five days to displace
another driver within the district in order to
receive a proportionate share of his guaranteed
salary.
11. In order for a driver to continue his salaried
employment with Greyhound he is required to use his
seniority and displace another driver within the
district.
12. In the event that a senior driver does not
exercise his seniority privilege in displacing
another driver within the district, Greyhound may
and has terminated a driver's employment.
13. Claimant chose to displace a driver in Salt
Lake City, Utah because it paid better and was the
closest available location to his family and resi-
dence in Clinton, Montana.
14. Claimant was in the State of Utah less than 24
hours prior to his injury on February 13, 1983, in
Twin Falls, Idaho on his first trip originating out
of Utah.
15. Claimant stayed with friends overnight in Salt
Lake City and .did not establish or intend to estab-
lish any permanent address or domicile.
18. Claimant has no interest in Utah other than the
trip which resulted in his injury.
19. Claimant intended to return to his home in
Montana after his work in Utah.
We are bound to uphold the facts found by the Workers' Com-
pensation Court where there is substantial credible evidence
in the record to support those findings of fact. McGee v.
Bechtel Corp. (1979), 182 Mont. 149, 154, 595 P.2d 1156,
1158-59. The transcript and the deposition of Mr. McGaha
support the findings of fact of the lower court. We must
therefore uphold them, despite Greyhound's argument that Mr.
McGaha's employment on the Salt Lake City - Twin Falls route
was neither guaranteed to be temporary nor a position as-
signed to him by Greyhound, but was totally dependent on the
exercise of seniority rights by Mr. McGaha and the other
drivers.
The Workers' Compensation Court concluded that Montana
had a sufficient interest in Mr. McGaha's case to justify
application of the extraterritorial statute. The record
supports this conclusion. Mr. McGaha had been employed in
Montana for four years immediately prior to the date of his
injury, and had established his residence in this state. He
testified that he had once before had a similar absence from
Montana, when he was "bumped" from his position in Missoula,
and that his absence from the state at that time was of a
short and temporary duration. In this instance, he was
injured within his first 24 hours of working outside of
Montana. He testified that he had intended to return to
Montana as soon as possible, and that he did in fact regain
his Missoula position, but was unable to work it due to his
injuries. We must also consider the requirement of
§ 39-71-104, MCA, that the workers' compensation statutes be
liberally construed in favor of the claimant.
We hold that the Workers' Compensation Court correctly
concluded that § 39-71-402(1), MCA, applies under the specif-
ic facts of this case. We affirm the decision of the lower
court. In doing so, we emphasize the nature of this action
as a declaratory judgment only. It does not otherwise affect
Mr. McGaha's entitlement to benefits or the calculation of
these benefits.
We Concur: /
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Dist ict Jud- Robe J. Boyd