Shelest v. State Ex Rel. Wyoming Workers' Safety & Compensation Division

BURKE, Justice.

[T1] Richard J. Shelest was injured in a motorcycle accident. At the time, he was an employee of the Wyoming Department of Transportation, and he filed a claim for worker's compensation benefits. The claim was denied by the Wyoming Workers' Safety and Compensation Division on the basis that ~ Mr. Shelest was not acting within the scope of his employment when he was injured. Mr. Shelest objected, and the matter was referred to the Office of Administrative Hearings, which upheld the Division's determination. Mr. Shelest appealed to the district court, which affirmed the decision. Mr. Shelest now brings his appeal before this Court. We affirm.

ISSUES

[T2] Mr. Shelest states his two issues this way:

1. Whether the Office of Administrative Hearing's decision denying benefits was supported by substantial evidence.

2. Whether the Office of Administrative Hearing's decision denying benefits was arbitrary and capricious or otherwise not in accordance with law.

FACTS

[13] Mr. Shelest was employed by the Department of Transportation in Evanston, Wyoming. On June 20, 2006, his employer required him to attend a training program in Rock Springs. He went with his supervisor and a co-worker, and because it was a nice day, all three decided to ride their motorey-cles. They left Evanston at about 7:00 a.m., Mr. Shelest's normal starting time, and the three travelled to Rock Springs on Interstate Highway 80, a distance of approximately 100 miles.

[14] The training finished around noon. Over lunch, the three discussed taking an alternate route home, one they thought would be more scenic and pleasant. The alternate route they discussed followed Interstate Highway 80 from Rock Springs to Green River, then took Wyoming State Highway 530 to the south and southwest, crossed into Utah on Utah State Highway 48, turned back to the west and northwest into Wyoming on Wyoming State Highway 414, and rejoined Interstate Highway 80 near Mountain View, Wyoming. The alternate route was approximately 150 miles, and took about an hour longer than the direct route. Although the three talked about the alternate route, they did not reach any decision about which route to take.

[15] The three left for Evanston and approached Green River on Interstate Highway 80. The supervisor was in the lead, the coworker second, and Mr. Shelest in the rear. The supervisor took the exit for the alternate route, and the co-worker and Mr. Shelest followed. While in Utah, Mr. Shelest lost control of his motorcycle and wrecked. He suffered broken bones and other injuries.

[16] Mr. Shelest applied for worker's compensation benefits for his injuries. The Division denied the claim on the basis that Mr. Shelest's injuries did not occur while he was acting within the course of his employment. More specifically, it determined that when Mr. Shelest "chose to travel an alternate route into the state of Utah rather than travel directly back to Evanston, [hel stepped out of the course of [his] employment." Mr. Shelest's objection to this determination was the subject of a contested case hearing before the Office of Administrative Hearings. The hearing examiner upheld the Division's determination that Mr. Shelest was not entitled to worker's compensation benefits because he was acting outside the scope of his employment when the accident occurred. Mr. Shelest appealed that decision, first to the district court, and now to this Court.

STANDARD OF REVIEW

[T7] "When we consider an appeal from a district court's review of an administrative agency's decision, we give no special deference to the district court's decision." Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo.2008). We review the case as though it had come directly from the administrative agency. Id. We review an administrative agency's decision pursuant to the Wyoming Administrative Procedure Act, which provides in pertinent part that the reviewing court shall:

(i) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-3-114(c)(ii) (LexisNex-is 2009). We affirm an agency's findings of fact if they are supported by substantial evidence. Dale ¶ 22, 188 P.3d at 561. "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions." Id., ¶ 11, 188 P.3d at 558, quoting Newman v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2002 WY 91, ¶ 12, 49 P.3d 163, 168 (Wyo.2002), quoting State ex rel. Wyo. Workers' Safety and Comp. Div. v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, 1136 (Wyo.2001). We review an agency's conclusions of law de novo. Dale, 126, 188 P.3d at 561. We employ the arbitrary and capricious standard as a "safety net" against ageney action that is contrary to law but not readily correctible under the other applicable standards of review. See id., % 28-24, 188 P.8d at 561.

DISCUSSION

[T8] The Wyoming Workers Compensation Act provides compensation and benefits for work-related injuries, as defined in Wyo. Stat. Ann. §

"Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business.

(Emphasis added.) Interpreting this statute, particularly the emphasized language, we have explained that there must be "a causal nexus between the injury and some condition, activity, environment or requirement of the employment." Quinn v. Securitas Sec. Servs., 2007 WY 91, ¶ 11, 158 P.3d 711, 714 (Wyo.2007); In re Willey, 571 P.2d 248, 250 (Wyo.1977).

[§¥9] Consistent with the requirement that the injury must arise out of and in the course of employment, the statutes further provide that the term "injury" does not include "[aluy injury sustained during travel to or from employment unless the employee is reimbursed for travel expenses or is transported by a vehicle of the employer." Wyo. Stat. Ann. § 27-14-102(a)(xi)(D). Under this statutory provision, an injury sustained by an employee while commuting to or from work is generally not compensable. Willey, 571 P.2d at 250. An injury sustained by an employee during a trip taken as part of his work, and for which he is reimbursed or eligible for reimbursement, is generally com-pensable. See Lloyd v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2004 WY 85, ¶¶ 18 22, 98 P.3d 1001, 1005-06 (Wyo. 2004).

[T10] When an employee is on a work-related trip for which he is reimbursed, but takes a side trip for personal reasons, he is no longer acting within the seope of his employment. See Boode v. Allied Mutual Ins. Co., 458 P.2d 653, 657 (Wyo.1969). Accordingly, when an employee is on a business trip, but sustains an injury during a personal side trip or deviation, he is not entitled to worker's compensation benefits. See Wyoming State Treasurer ex rel. Workmen's Comp. Dep't v. Boston, 445 P.2d 548, 549-50 (Wyo.1968). As explained by an often-quoted authority on worker's compensation, "An identifiable deviation from a business trip for personal reasons takes the employee out of the course of employment until the employee returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial." 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 17, at 17-1 (2009).

[¥11] In the case before us now, the Office of Administrative Hearings found that Mr. Shelest's injuries were not compensable because they occurred while he was on "a side trip that was an abandonment of the employer's business and a substantial deviation from the work." "Whether an employee's injury occurred in the course of her employment is a question of fact." Goddard v. Colonel Bozeman's Restaurant, 914 P.2d 1233, 1236 (Wyo.1996), Hepp v. State ex rel. Wyoming Workers' Compensation Div., 881 P.2d 1076, 1077 (Wyo.1994). Applying the pertinent standard of review, we will uphold the hearing examiner's findings of fact if the record contains substantial evidence to support the findings.

[112] The record in Mr. Shelest's case contains substantial evidence to support the hearing examiner's findings. The alternate route was approximately fifty miles longer than the direct route, and took about an hour longer to travel. Mr. Shelest, his supervisor, and his co-worker agreed that there was no business purpose for taking the alternate route. Taking the alternate route rather than the direct route provided no benefit to Mr. Shelest's employer, and to the contrary, kept Mr. Shelest and the others from returning to work for an extra hour. The only reason Mr. Shelest gave for taking the alternate route was the personal one of enjoying the scenery and the pleasant weather. Together, this evidence is sufficient for a reasonable mind to accept as supporting the hearing examiner's decision.

[1183] Mr. Shelest asserts that the trip did have a business purpose because he was returning to his regular workplace after attending a required training session. In further support of this assertion, he points out that he was paid his normal wage for the day he attended the training, including the time spent travelling to and from the session. He also notes that he was expected to return to work after the training, and that he could have submitted a request for reimbursement of travel expenses. He concedes that his reimbursement would have been limited to the mileage for the most direct route, not the additional mileage of the alternate route.

[T 14] In this argument, Mr. Shelest fails to recognize that a trip can have mixed business and personal purposes, and different purposes at different stages of the journey. In Standard Oil. Co. v. Smith, 56 Wyo. 537, 546, 111 P.2d 132, 135 (1941), for example, the employee had been travelling on vacation. While returning home, he picked up supplies for his business. He suffered a fatal accident while hauling the supplies back to his business. We held that his widow was entitled to worker's compensation benefits. His trip was outside the scope of his employment during his vacation, but when he picked up the supplies for work, "he was again within the area of employment" and "acting with the intention of serving the business of the employer." Id. Mr. Shelest's situation is the converse. He was initially on a business trip, and acting within the scope of his employment. While returning home, he took an alternate route for personal reasons. Although part of the trip was undisputedly business-related, the evidence supports the hearing examiner's finding that, at the time of the accident, Mr. Shelest was no longer within the seope of his employment, and not acting to serve any business interest of his employer.

[115] Mr. Shelest insists that a journey becomes a side trip or deviation only if there is an identifiable, concrete, personal errand to be accomplished. In support of this assertion, he cites Boode, 458 P.2d at 655, in which the purpose of the side trip was to inspect and possibly purchase a horse. He also cites Boston, 445 P.2d at 549, in which the employees took a side trip to drink beer and play games, and Lloyd, ¶ 5, 93 P.3d at 1002, in which the issue was whether a trip to pick up a personal vehicle was a deviation. Based on his interpretation of these cases, Mr. Shelest asserts that the alternate route was not a deviation because he did not take it in order to accomplish any identifiable personal errand.

[116] These cases indicate that a specific personal errand makes it more apparent that a trip is a deviation. However, they do not hold that an identifiable personal errand is a requirement in determining that a trip is a deviation. As the hearing examiner found in Mr. Shelest's case, all of the witnesses "agreed that while they had no person[all errand or business to be accomplished by taking the alternate route, the sole reason for taking the scenic route was their personal pleasure and there was no benefit to the employer." Enjoying the scenery and weather may not be a specific, identifiable errand, but it is sufficiently personal in nature to support the hearing examiner's finding that Mr. Shelest was acting outside the scope of his employment while travelling the alternate route.

[T 17] -In addition, the extent of the deviation should be considered when determining if a business trip has been converted into a personal side trip. As noted earlier, Larson's treatise explains that a small deviation should be disregarded as insubstantial. There is no precise formula to apply in evaluating this factor, but the greater the difference between the alternate route and the direct route, the more likely an alternate route will be deemed a deviation. The fact finder must apply judgment in assessing the extent of deviation, making this just the sort of question in which the hearing examiner's decision is entitled to deference. The evidence here indicates, and the hearing examiner found, that the direct route from Rock Springs to Evanston was approximately 100 miles, while the alternate route was about 150 miles and took about an hour longer to travel. This evidence concerning the extent of the deviation is sufficient to support the hearing examiner's finding that the alternate route was a personal side trip or deviation.

[T18] Mr. Shelest also contends that the alternate route was not a deviation because it was authorized by his supervisor. The supervisor's decision to take the alternate route could be considered implicit approval. It is not clear, however, that the supervisor had the authority to approve the alternate route. In fact, the evidence indicates that the supervisor was reprimanded for taking the alternate route, suggesting that he did not have that authority. But we do not need to explore the details of the supervisor's actual or apparent authority, because it makes no difference whether the alternate route was authorized or not. Even if Mr. Shelest had permission to take the alternate route, the facts remain that he had purely personal reasons for taking the alternate route, that taking the alternate route rather than the direct route was of no benefit and some detriment to his employer, and that the alternate route was a substantial deviation from the direct route.

[$19] As his second issue, Mr. She-lest claims that the hearing examiner's decision is arbitrary and capricious because it is inconsistent. He points out that the hearing examiner found, on the one hand, that Mr. Shelest had taken a side trip or deviation, but on the other hand, that there was no personal errand to be accomplished by taking the alternate route. We do not agree that these are inconsistent findings because, as discussed above, it is not necessary to identify a specific personal errand as the purpose of a deviation. The purpose identified by Mr. Shelest-that of enjoying the scenery and the weather-was purely personal. As the hearing examiner found, when pursuing that personal purpose, Mr. Shelest was acting outside the seope of his employment. Because the findings are not inconsistent, the decision cannot be considered arbitrary or capricious.

[120] Affirmed.