Buma v. Providence Corp. Dev.

453 P.3d 904

Kaycean BUMA, as the Surviving Spouse, and Delaney Buma, as the Surviving Child of Jason Buma (Deceased), Appellants,

v.PROVIDENCE CORP. DEVELOPMENT, d/b/a Miller Heiman, Inc.; and Gallagher Bassett Services, Inc., Respondents.

No. 73632

Supreme Court of Nevada.

FILED DECEMBER 12, 2019

Diaz & Galt, LLC, and Charles C. Diaz, Reno, for Appellants.

Lewis Brisbois Bisgaard & Smith LLP and John P. Lavery and Lee E. Davis, Las Vegas, for Respondents.

BEFORE THE COURT EN BANC.

OPINION

By the Court, PICKERING, J.:

To receive workers’ compensation under the Nevada Industrial Insurance Act (NIIA), an employee must show that an "injury arose out of and in the course of his or her employment." NRS 616C.150(1). This rule generally requires that the injury happened at work and was due to the work itself or a condition of the workplace. This court has not addressed how these basic requirements apply to "traveling" employees—those whose employment entails travel away from the workplace.

Under the NIIA, "Travel for which an employee receives wages shall, for the purposes of [the act], be deemed in the course of employment." NRS 616B.612(3). Consistent with this statute is the majority rule that traveling employees are in the course of employment continuously during their business trips, except during distinct departures on personal errands. Such an employee’s injuries arising out of travel- or work-related risks—including those associated with meeting basic personal needs (like sleeping in hotels or eating in restaurants) and navigating hazards necessarily incidental to the travel or work—are usually compensable unless an exception applies. NRS 616B.612(3) codifies this majority rule.

This case concerns a traveling employee, Jason Buma. He died in an all-terrain-vehicle (ATV) accident while on a required business trip for his employer, respondent Miller Heiman. Appellants Kaycean and Delaney Buma, Jason’s wife and daughter, were denied workers’ compensation death benefits, and the district court denied their petition for judicial review. We vacate and remand. We vacate the district court’s order because the appeals officer failed to apply NRS 616B .612(3), and we remand for the appeals officer to reevaluate the matter under the correct standards.

I.

Respondent Miller Heiman employed Jason Buma full-time as a vice president of sales. In that capacity, Jason split his time working from home in Reno, Nevada, and traveling out-of-state on business. He had no local clients or contacts, and he did not work out of Miller Heiman’s Reno office. Jason enjoyed considerable discretion in carrying out his duties. He worked irregular hours, starting his day as early as 6 a.m. and sometimes working as late as 10 p.m. He was constantly on call, taking business calls at any hour on weekends, on vacations, and even "while hiking." He made his own travel arrangements.

Miller Heiman required Jason to travel on business, including annual trips to Houston, Texas, to attend an oil and gas conference. On these trips to Houston, Jason stayed with a local friend and independent affiliate of Miller Heiman, Michael O’Callaghan, who owned a ranch about a two-hour drive from Houston. Each year Jason and Michael attended the conference, Jason would stay at Michael’s ranch, where he and Michael would prepare their joint presentations on Miller Heiman’s behalf for the conference. The two would travel to and from Houston to attend the conference, meet with clients, and give presentations on Miller Heiman’s services.

On his most recent trip, Jason flew from Reno to Houston on a Sunday and drove from the airport to Michael’s ranch in the late afternoon. He and Michael had several joint presentations at the oil and gas conference to prepare for, with the first presentation scheduled for Monday morning at 8:30 a.m. Sometime after 5 p.m. on Sunday, Jason and Michael went on an ATV ride around the property, as they had on Jason’s prior trips. While riding towards the end of a trail that led off the property, Jason rolled his ATV. He died at the scene.

Kaycean and Delaney Buma filed a workers’ compensation claim for death benefits. Respondent Gallagher Bassett Services, Inc., the third-party administrator of Miller Heiman’s workers’ compensation plan, investigated the incident and denied the claim. The Bumas appealed the decision administratively. The hearing officer affirmed Gallagher Bassett’s determination that Jason’s death occurred during an activity that was not part of his work duties. The Bumas again appealed the decision, arguing that Jason traveled to the Houston area solely for the purpose of work. The appeals officer affirmed the denial. The Bumas then petitioned for, and the district court denied, judicial review. They now appeal from that order.

II.

To receive workers’ compensation under the NIIA, an injured employee (or his dependents) must show two things: "that the employee’s injury arose out of and in the course of his or her employment." NRS 616C.150(1) (emphases added); see MGM Mirage v. Cotton , 121 Nev. 396, 400, 116 P.3d 56, 58 (2005) ("emphasiz[ing] that the inquiry is two-fold"). If "the injury occurs at work, during working hours, and while the employee is reasonably performing his or her duties," then the injury arises "in the course of employment" under NRS 616C. 150(1). Baiguen v. Harrah’s Las Vegas , LLC , 134 Nev. 597, 599, 426 P.3d 586, 590 (2018) (quoting Wood v. Safeway , Inc ., 121 Nev. 724, 733, 121 P.3d 1026, 1032 (2005) ). "An injury arises out of the employment ‘when there is a causal connection between the employee’s injury and the nature of the work or workplace.’ " Id. at 600, 426 P.3d at 590 (quoting Wood , 121 Nev. at 733, 121 P.3d at 1032 ).

The appeals officer concluded that Jason’s injury did not arise out of or in the course of his employment. Because judicial review is limited to the appeals officer’s final written decision, NRS 616C.370(2), "this court’s role is identical to that of the district court." Bob Allyn Masonry v. Murphy, 124 Nev. 279, 282, 183 P.3d 126, 128 (2008) (internal quotation marks omitted). The reviewing court must affirm if the appeals officer applied the law correctly and the facts reasonably support the decision. See NRS 233B.135 ; Bob Allyn , 124 Nev. at 282, 183 P.3d at 128. We review the appeals officer’s view of the facts deferentially, NRS 233B.135(3), but decide questions of law independently. Star Ins. Co. v. Neighbors, 122 Nev. 773, 776, 138 P.3d 507, 510 (2006). Questions of law include questions of statutory interpretation. Id.

In analyzing whether Jason’s death occurred in the course of employment, the appeals officer applied the "going and coming" rule, which " ‘preclud[es] compensation for most employee injuries that occur’ " away from the workplace (for instance, when the employee is commuting to or from work). See Bob Allyn, 124 Nev. at 287, 183 P.3d at 131 (alteration in original) (quoting Cotton, 121 Nev. at 399, 116 P.3d at 58 ). "This rule frees employers from liability for the dangers employees encounter in daily life" when they are beyond the reach of their employers’ control. Cotton, 121 Nev. at 399-400, 116 P.3d at 58. This general rule, however, does not apply to "traveling" employees—those "whose work entails travel away from the" workplace by definition. 2 Arthur Larson, Lex K. Larson & Thomas A. Robinson, Larson’s Workers’ Compensation Law § 25.01, at 25-2 (2019) (emphasis added). Rather, "in the majority of jurisdictions," and under Larson’s rule, traveling employees are "within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown." Id.

This court has not addressed the traveling employee rule. The Bumas posit that the NIIA statutorily adopts the traveling employee rule, citing NRS 616B.612(3) : "Travel for which an employee receives wages shall, for the purposes of [the NIIA], be deemed in the course of employment." See Jourdan v. State Indus. Ins. Sys., 109 Nev. 497, 501, 853 P.2d 99, 102 (1993) (recognizing that NRS 616B.612(3), formerly numbered NRS 616.270(2), does not apply in the context of a non-traveling employee who receives a stipend to cover the cost of his daily commute). They argue that Jason’s death was in the course of employment under this statute because he received a salary to travel to solicit business on Miller Heiman’s behalf.¹ They argue that the appeals officer erred by failing to apply this statute to their claim. They also argue that, to the extent there are any exceptions implicit in the rule under NRS 616B.612(3), none of those exceptions applies here. In the Bumas’ view, Jason’s short ATV ride with his associate, with whom he was staying to prepare for their joint presentations early the next morning, was not an unreasonable departure from the course of his employment, but was instead akin to a walk around hotel grounds while traveling on business. Miller Heiman argues that, even if Jason was in the course of employment as a traveling employee, his injury did not arise out the employment.

A.

The Bumas are correct that NRS 616B.612(3) creates a traveling employee rule. Commonly understood, "travel" naturally encompasses a range of activities incidental to the physical act of moving from, one place to another. This understanding underpins "[t]he rationale for ... extended coverage" for traveling employees under workers’ compensation law: "that when travel is an essential part of employment, the risks associated with the necessity of eating, sleeping, and ministering to personal needs away from home are an incident of the employment even though the employee is not actually working at the time of injury." Ball-Foster Glass Container Co. v. Giovanelli , 163 Wash.2d 133, 177 P.3d 692, 696 (Wash. 2008).

A "[traveling] employee may indeed have a choice" of where to stay, but "that is not the point." 2 Larson’s, supra, § 25.02, at 25-2. "The point is that there is no choice...