JENNIFER WILLIAMS, Claimant,
v.
KNITTING FACTORY ENTERTAINMENT, Employer,
and
BERKSHIRE HATHAWAY HOMESTATE COMPANIES, Surety, Defendants.
No. IC 2014-008977
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
February 1, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER
R.D.
Maynard, Chairman.
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Michael E.
Powers, who conducted a hearing in Boise on May 14, 2015.
Claimant was present and represented by Kira Pfisterer and
Charles Hepworth of Boise. Emma Wilson, also of Boise,
represented Employer, Knitting Factory Entertainment
("KFE") and its Surety, Berkshire Hathaway
Homestate Companies (collectively "Defendants").
Oral and documentary evidence was presented. The record
remained open for the submission of post-hearing briefs and
this matter came under advisement on July 20, 2015.
Referee
Powers authored proposed Findings of Fact and Conclusions of
Law and submitted the same, together with the record, to the
Commission for its review and decision as anticipated by the
provisions of Idaho Code § 72-717. Pursuant to Idaho
Code § 72-506(2), the Commission is authorized, indeed,
required, to approve and confirm a proposed decision before
it can be deemed a final order, decision or award of the
Commission. The Findings of Fact and Conclusions of Law
proposed by the Referee are recommendations to the Commission
which the Commission is free to adopt, or replace with its
own findings. Lorca-Merono v. Yokes Washington Foods,
Inc., 137 Idaho 446, 50 P.3d 461 (2002). Here, the
Commission has reviewed the proposed Findings of Fact and
Conclusions of Law authored by Referee Powers, and declines
to adopt the same. The Referee concluded that Claimant's
personal cell phone use provided some benefit to Employer and
that the journey to repair the same was at least partly
related to Claimant's employment. Therefore, the Referee
concluded that the trip was a special errand undertaken to
advance Employer's interests. As explained below, we
disagree with the Referee's treatment of this issue.
Accordingly, we also find it necessary to address the two
other theories advanced by Claimant in support of a finding
that the accident is compensable.
ISSUE
The
sole issue to be decided in this bifurcated matter is whether
or not Claimant suffered an accident causing an injury
arising out of and in the course of her employment with KFE
on March 20, 2014.
CONTENTIONS
OF THE PARTIES
Claimant
was injured when she was struck by an automobile while in the
crosswalk at Myrtle and 9
th Street in Boise while
on the way to her car from KFE to have her personal cell
phone repaired. While acknowledging that she was not on
KFE's premises when her accident occurred and thus
subject to the "coming and going" rule, Claimant
argues that one or more of the various exceptions to the
coming and going rule applies to make her accident
compensable.
Defendants
counter that none of the exceptions apply and Claimant was on
a purely personal errand when her accident occurred. Thus,
she did not suffer an accident causing injury that arose out
of and in the course of her employment.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The testimony of Claimant, Boise City Police Officer Scott
McMikle, and Claimant's supervisor Mandi Zillner taken at
the May 14, 2015 hearing.
2. Claimant's Exhibits A-T admitted at the hearing.
3. Defendants' Exhibits 1-13 admitted at the hearing.
4. The pre-hearing depositions of KFE employees (all taken by
Claimant): Denon Fereday and Veronica Leis, on April 7, 2015;
Gregory Marchant and Sarah McVey on April 8, 2015; Mandi
Zillner on April 9, 2015; and Jamie Spurny on April 13, 2015.
FINDINGS
OF FACT
1.
Claimant was 43 years of age and residing in Boise at the
time of the hearing. As of the date of the subject accident,
Claimant was single, and had sole custody of her three
children.
2.
Claimant began working at KFE as a marketing director about
two years before her March 20, 2014 accident. KFE is in the
business of promoting and producing music concerts at various
venues, both within, and without the State of Idaho,
including the Idaho Botanical Garden in Boise. According to
its Chief Operating Officer Greg Marchant, KFE is a 24-hour
operation that is ". . . a family friendly company and
so we understand that sometimes family issues and personal
tasks have to happen." (Defendants' Exhibit 10.)
3. The
KFE facility is located in downtown Boise in the BoDo
District at the northeast corner of 9
th Street and
Myrtle.
1 Access to the KFE offices is
afforded by an entrance located on 9
th Street,
just steps away from the northeast corner of the intersection
of 9
th Street and Myrtle. The building can also be
accessed from the alley lying between 8
th and
9
th streets. Most employees access the building
via the 9
th Street entrance. Parking for the 10 to
11 KFE employees was a problem, and the available solutions
were not entirely satisfactory. Employer provided free
parking for employees at an unimproved parking lot (the
"dirt lot") bounded by Front on the north, Myrtle
on the south, 11
th Street on the east and
13
th Street on the west. This lot was not favored
by some KFE employees, including Claimant, because the
surface was unpaved, and difficult to negotiate in inclement
weather. Ordinarily, the most direct route from the KFE
building to the dirt lot would take an employee across
9
th Street, along the north side of Myrtle and
finally across 11
th Street. KFE employees were not
required to use the employer-provided parking at the dirt
lot. Employees were free to park wherever they desired.
Metered parking is available in the vicinity of the KFE
building. As well, employees have access to a number of
parking garages in the downtown core. Finally, a limited
amount of unmetered ("free") on-street and
off-street parking is available between Myrtle and the Boise
River, bounded roughly by 9
th and 11
th
streets. This free parking was a favored venue for a number
of KFE employees, including Claimant. The most direct access
to the free parking area from the KFE facility required
employees to cross Myrtle, then 9
th Street or
9
th Street then Myrtle, at the intersection of
9
th Street and Myrtle.
4. The
parking situation was further complicated by the construction
of the JUMP facility in the large block bounded by Front on
the north, Myrtle on the south, 11
th Street on the
west and 9
th Street on the east. During
construction, the sidewalks along the north side of Myrtle,
south side of Front, and west side of 9
th Street
were closed to pedestrian traffic. There is some difficulty
in ascertaining whether, in spite of the aforementioned
sidewalk closures, pedestrian access was nevertheless
afforded to the northwest corner of 9
th Street and
Myrtle via the crosswalk across 9
th Street, north
of Myrtle, and the crosswalk across Myrtle, west of
9
th Street. Evidence on this point is somewhat
ambiguous, although not ultimately conflicting. Part of the
difficulty lies in the fact that what was open and not open
to pedestrians in the vicinity of the JUMP construction
changed during the construction process. Claimant's
testimony suggests that to get to the free parking area she
would leave the KFE facility, cross Myrtle and then cross
9
th Street. She suggests that because of
construction cones and the lack of a sidewalk on the west
side of 9
th Street and the north side of Myrtle,
she would not access the free parking area by first crossing
9
th Street and then crossing Myrtle. (Transcript,
112/20-113/9.) However, this testimony is not sufficient to
establish that the crosswalks that would allow a pedestrian
to access the northwest corner of 9
th Street and
Myrtle were closed. Mandy Zillner also offered testimony on
this point:
(Ms. Wilson)
Q. And can you point for us at - - before you'd moved - -
before the Knitting Factory moved the parking, what was the
main point of entrance and exit to the corporate offices?
(Ms. Zillner)
A. On the corner of Myrtle and 9th, there's an
entrance. The office right there.
Q. And is that where most of the employees would come in and
out of the building on their way to and from work each day?
A. Yes.
Q. Okay. And do you know - - and I'm sorry to do this to
you - - do you know if there are any barriers or cones that
would prevent you from crossing Myrtle on the west side of
9th?
A.
...
