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Ann E. Malone v. Lake and Peninsula Borough School District and Alaska National Insurance Company (6/4/99), 977 P 2d 733


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA

ANN E. MALONE, Widow and      )
Guardian of Dependent         )    Supreme Court No. S-7999
Children, CAMERON ELIAS and   )
MATTHEW MALONE, and ESTATE OF )    Superior Court No.
JEFFREY MALONE,               )    3AN-96-53 CI
                              )
               Appellants,    )
                              )
          v.                  )    
                              )
LAKE AND PENINSULA BOROUGH    )    O P I N I O N
SCHOOL DISTRICT, Employer,    )
and ALASKA NATIONAL INSURANCE )    [No. 5131 - June 4, 1999]
COMPANY, Its Workers'         )
Compensation Insurance        )
Carrier,                      )
                              )
               Appellees.     )
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Donald D. Hopwood, Judge.


          Appearances: Christine Schleuss, Suddock &
Schleuss, Anchorage, for Appellants.  Theresa Hennemann, Holmes
Weddle & Barcott, Anchorage, for Appellees.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.


          BRYNER, Justice.


I.   INTRODUCTION
          Ann Malone was injured and Jeffrey Malone was killed
while flying from Anchorage to visit a remote Alaska village and
school where they expected to begin teaching two weeks later.  The
Workers' Compensation Board denied Jeffrey's estate, his
dependents, and Ann benefits, concluding that the accident did not
arise in the course of their employment.  Because the record shows
that Ann and Jeffrey's employer did not control their activities
and did not require or supply their travel, and because their
travel falls outside the "special hazard exception"to the usual
rule that a worker's travel to and from work is not compensable, we
must affirm the Board's decision.
II.  FACTS AND PROCEEDINGS
          Ann and Jeffrey Malone, both experienced teachers, moved
with their two sons from Kansas to Alaska in June 1994 to seek
teaching positions in the bush.  They stayed for the summer with
Jeffrey's sister, Michelle Coburn, and her husband, Bret.
          In early August 1994 Ann and Jeffrey attended a job fair
sponsored by the Alaska Teacher Placement Agency in Fairbanks.  At
the fair, they interviewed with Ron Jones, Assistant Superintendent
for the Lake and Peninsula School District (LPSD).  Jones was
looking for a married couple to fill teaching positions at a school
in the village of Kokhanok.  Satisfied with the Malones'
qualifications, Jones told them that they were LPSD's first choice
for teaching positions at the school and that he would recommend
them to the LPSD school board for hiring.  Jones informed them that
only the school board had authority to hire them, but that the
board had always adopted his hiring recommendations.  He also
showed the Malones the pay schedule for LPSD's teachers and told
them about their posts.  The Malones excitedly "accepted"Jones's
"offer"of employment and called the Coburns to share their good
news, telling the Coburns that Jones had hired them. 
          After returning to Anchorage, the Malones met Kokhanok
school principal Sara Hornberger, who happened to be passing
through town; they asked her about bush life and their new jobs. 
The Malones also spoke with Jones by telephone.  In addition, they
received written materials from LPSD directing them to attend in-
service training in King Salmon beginning August 23 and to be
prepared to move directly from King Salmon to Kokhanok.  LPSD
instructed the Malones to arrange commercial travel to King Salmon,
which it would reimburse; LPSD was to arrange commercial travel
from King Salmon to Kokhanok.
          Based on LPSD's directions and on advice they received
from Jones and Hornberger, the Malones purchased four one-way
tickets to King Salmon and mailed food and medical supplies to
Kokhanok in sufficient quantities to last through December.
Although the Malones had not yet signed formal contracts, they
expected to receive them during in-service training in King Salmon;
the school board was scheduled to meet there and approve new
contracts on August 26.
          While preparing for their year in Kokhanok, the Malones
decided that they wanted to visit the village and school before
their in-service training began.  Their minister, Stephen Anderson,
apparently a veteran bush pilot, agreed to fly them.  Hornberger
discouraged this trip, telling the Malones that the school would be
locked up and inaccessible to them and that many village residents
would be away fishing.  The Malones nevertheless contacted Jones
and told him that they wanted to visit Kokhanok.  Jones advised
them that flying to Kokhanok could be risky because of bad weather
and warned them against flying with inexperienced pilots.  He
ultimately agreed that if the Malones decided to come, he would try
to meet them at the village airstrip. 
          The Malones arranged for Anderson to fly them to Kokhanok
on August 16.  Before departing that morning, they left a telephone
message at LPSD's King Salmon office telling Jones that they were
on their way to the village.  Jones, who evidently had been
required to travel elsewhere that day, did not receive the Malones'
message until later.  The Malones failed to reach Kokhanok.  Bad
weather evidently forced them to turn back; Anderson's plane
crashed near Big Lake, killing Anderson and Jeffrey, and severely
injuring Ann.  Jones did not hear of the accident until the
following day.  
          Through counsel, Ann Malone filed workers' compensation
claims on her own behalf and on behalf of Jeffrey's estate,
alleging that the trip to Kokhanok was work related.  LPSD
controverted the claims, asserting that the Malones were not
employees when the accident occurred and that, in any event, their
injuries did not arise in the course of their employment.
          At a hearing before the Workers' Compensation Board, Ann
presented evidence that she and Jeffrey had attempted to visit
Kokhanok primarily to tour the school and assess the available
teaching supplies and materials, so that they could supplement any
deficiencies with materials purchased or borrowed in Anchorage. 
Because Jeffrey had not survived the accident and Ann's injuries
had impaired her memory and ability to testify, their case
consisted largely of testimony from friends and relatives who had
spoken to the Malones before they flew to Kokhanok. 
          In opposition, LPSD presented evidence indicating that
the primary, perhaps sole, purpose of the Malones' visit was
personal -- to see the village and possibly investigate housing.  
          The Board concluded that an express employment contract
existed between the Malones and LPSD.  Nevertheless, the Board
denied the claims, ruling that Ann's injuries and Jeffrey's death
did not arise in the course and scope of their employment.
          In reaching this decision, the Board rejected, as
uncorroborated hearsay, most of the evidence offered concerning the
Malones' purpose in visiting Kokhanok.  Considering the evidence it
deemed admissible, the Board ruled that Ann had failed make a
preliminary showing that the accident was work related.  The Board
further ruled that, even if Ann had made the requisite preliminary
showing, LPSD's evidence had established that the purpose of the
Malones' visit was to investigate housing and living conditions. 
Because the Board deemed this to be a personal activity, and
because the accident occurred away from their employer's facility,
the Board concluded that their injuries did not arise in the course
and scope of employment.
          Ann appealed to the superior court, challenging the
Board's conclusion that the accident did not occur in the course
and scope of the Malones' employment.  LPSD cross-appealed,
challenging the Board's ruling that an employment contract already
existed when the accident occurred.  The superior court ruled
against Ann on both points, reversing the Board's finding of an
employment contract and affirming its decision as to course and
scope of employment.
          Ann appeals both rulings.
III. DISCUSSION
          Two basic requirements of workers' compensation are an
employment contract [Fn. 1] and an injury arising in the course of
employment. [Fn. 2]  Ann argues that we should affirm the Board's
ruling on the first requirement -- its determination that an
employment contract existed between the Malones and LPSD -- but
that we should reverse its ruling on the second requirement -- its
conclusion that the accident did not occur in the course of the
Malones' employment as LPSD teachers.
          In challenging the Board's conclusion that the accident
occurred outside the course of employment, Anne specifically argues
that the Board erred in excluding, as hearsay, crucial evidence
that she contends was admissible under the state-of-mind exception
to the hearsay rule. [Fn. 3]  She insists that this error, in turn,
infected the Board's conclusions that she had failed to trigger the
presumption of compensability and that LPSD had proved that the
accident was not work related. [Fn. 4]
          For purposes of this decision, we will assume that the
Malones had a contract of employment with LPSD, that Ann's excluded
evidence should have been admitted and fully credited, and that
this evidence triggered the presumption of compensability.  The
question remaining is whether the record as a whole could support
the conclusion that the Malones were injured in the course of their
employment. [Fn. 5]  We are constrained to find that it could not.
          Alaska's Workers' Compensation Act [Fn. 6] defines an
"injury"to include an "accidental injury or death arising out of
and in the course of employment."[Fn. 7]  "Arising out of and in
the course of employment"is defined to include
          employer-required or supplied travel to and
from a remote job site; activities performed at the direction or
under the control of the employer; and employer-sanctioned
activities at employer-provided facilities; but excludes . . .
activities of a personal nature away from employer-provided
facilities[.][ [Fn. 8]]

Under these definitions, the basic test of work relatedness is
whether the "accidental death or injury is connected with any of
the incidents of one's employment, [and if so] then the injury or
death would both arise out of and be in the course of such
employment."[Fn. 9]  An activity that has both personal and
business elements is not per se noncompensable. [Fn. 10]  If the
activity is "'reasonably foreseeable and incidental' to the
employment,"it is compensable. [Fn. 11]
          The essence of Ann's claim is that the Malones' primary
purpose in visiting Kokhanok was to familiarize themselves with
their new school and to see what school materials and supplies
would be available to them, so that they could determine what
additional supplies they might need to buy or borrow in Anchorage
before school started.  She points out that they had made
arrangements to meet Assistant School Superintendent Ron Jones, who
had a master key to the school and could show them through it. 
Given these circumstances, Ann maintains that the Malones' visit to
the school was reasonably foreseeable and that its purpose was
incidental to employment.  Accordingly, she urges us to hold that
the Malones' losses arose in the course of their employment and
were therefore compensable.
          But even accepting Ann's factual assertions, the
foreseeability of their visit is not a foregone conclusion. 
Uncontradicted evidence establishes that LPSD, as a policy matter,
discouraged new teachers from visiting their prospective schools
before the beginning of the school year.  Indeed, Assistant
Superintendent Jones and Kokhanok Principal Hornberger both
testified that they tried to discourage the Malones' visit.  
          This testimony remains undisputed.  Even if we consider
the evidence that the Board disregarded as hearsay, it appears that
Jones at most agreed to show the Malones around the school if they
decided to visit, and if he could accommodate their schedule.  The
Malones chose to come against Hornberger's advice, despite this
uncertainty, and without actually giving Jones advance notice.  As
it turns out, Jones was not available for travel to Kokhanok on the
day they selected and could not have shown them the school.   
          Moreover, even accepting the proposition that the Malones
already had entered into a contract with LPSD to teach at the
Kokhanok school during the forthcoming year, it is undisputed that
the school year was not set to begin until August 23, when they
were to report for in-service training in King Salmon.  This
circumstance distinguishes the Malones' case from the cases Ann
cites to support the position that their travel was foreseeable and
work related.  The cited cases all involve workers who had already
"started"their employment and were injured during foreseeable
interruptions of their regular job duties. [Fn. 12]  
          Ann cites no cases suggesting that an unsolicited pre-
employment-term visit to a work site for a work-related reason
becomes compensable merely because it is foreseeable.  Nor are we
aware of any authority supporting so broad a rule.  In fact,
Professor Larson appears to suggest that a narrower rule should
apply in such situations; he writes that workers who have been
hired but have not yet begun their jobs normally are compensated
only if injured while actually performing a work-related task. [Fn.
13]
          The statutory definition of injuries "arising out of and
in the course of employment"supports this narrower view of
compensability and poses a further obstacle to Ann's claim.  This
definition, set out in AS 23.30.395(2), describes three categories
of cases.  But the Malones' situation fits none of these
categories.  
          The first category includes injuries occurring during
"employer-required or supplied travel to and from a remote job
site."[Fn. 14]  The Malones' injuries and death did result from an
accident occurring on the way to a visit to their future place of
employment in a remote location.  But while their purpose may have
been work related, the Malones themselves had decided to make the
visit.  Their employer had not required them to travel or supplied
the transportation. 
          The second category within the statutory definition
includes injuries suffered while engaged in "activities performed
at the direction or under the control of the employer."[Fn. 15] 
Here, it is undisputed that LPSD had not directed the Malones to
visit the school and had no control over their decision to do so. 

          The last category defined includes injuries resulting
from "employer-sanctioned activities at employer-provided
facilities."[Fn. 16]  But the Malones were not engaging in
activities at employer-provided facilities when they were injured;
their injuries occurred before they reached Kokhanok.
          Viewing the facts most favorably to the Malones, it might
nonetheless be argued that the last statutory category should be
expanded to fit their circumstances because, while they had not yet
arrived at an employer-provided facility, they were traveling to
their employer's premises, where they intended to conduct a school
visit that Jones had sanctioned by tentatively agreeing to meet
them.  But this argument generates its own unique set of problems. 
          Alaska adheres to the "going and coming rule,"which
deems travel to and from work noncompensable:
               Under the "going and coming rule,"travel
between home and work is considered a personal activity, and
injuries occurring off the work premises during such travel are
generally not compensable under workers' compensation acts.  The
going and coming rule is well-established in Alaska[.][ [Fn. 17]] 

          Recognizing that the going and coming rule might stand in
the way of her claim, Ann argues that this case falls within the
"special-hazard exception"to the rule.  This exception applies
when the "off-premises point at which the injury occurred lies on
the only route, or at least the normal route, which employees must
traverse to reach the [workplace], and . . . therefore the special
hazards of that route become the hazards of the employment."[Fn.
18]  Under the exception, "an injury caused by a special hazard
must have occurred on the only, normal, or expected route to or
from the place of employment."[Fn. 19]  Thus, the employer must
compensate workers for injuries sustained traveling to and from
work if three conditions are met:  "First, the injury must be
causally related to the employment.  Second, the hazard which
caused the injury must be 'distinctive in nature or quantitatively
greater than risks common to the public.'  [Third,] the employee
[must] be on a usual or normal route to work[.]"[Fn. 20]
          Ann alleges that all three conditions for the special-
hazard exception are present.  First, she argues that they were
traveling to Kokhanok for work-related purposes -- to look through
the school and check out their classrooms, supplies, and equipment.
Second, she maintains that "the risks of [flying in a small
airplane] are distinct in nature."  Third, she argues that "their
flight plan showed they intended [to fly] the usual route from
Anchorage to Kokhanok." 
          Our discussion of this case assumes that Ann meets the
first element of the exception -- the requirement that the travel
be for a work-related purpose.  Her arguments nonetheless fall
short on the second and third elements.  
          To meet the second element of the special-hazard
exception, the evidence must show that flying from Anchorage to
Kokhanok somehow exposed the Malones to a "special risk causally
related to employment."[Fn. 21]  Ann argues that the risks of
flying in a small airplane are distinctive.  But this argument
misses the point of the requirement.  To be "special,"the risk
must be "distinctive in nature or quantitatively greater than risks
common to the public."[Fn. 22]  In other words, the risk itself
must relate to the Kokhanok school premises or affect its employees
in some distinctive way that does not similarly affect others.  
          Ann does not allege that the risks of flying to Kokhanok
in a small plane are unique to LPSD employees.  In fact, the
evidence is to the contrary.  Sara Hornberger, principal of
Kokhanok school, testified that the only practical way to reach
Kokhanok is by plane and that, for this reason, many of the village
residents pilot private aircraft.  Thus, although bush flying may
indeed be risky, the risk is a common one borne by most members of
the general public who travel to a village like Kokhanok; it is
more incidental to bush life than to employment with LPSD. [Fn. 23] 
We find no evidence that the hazard was "distinctive in nature." 
          The evidence similarly fails to sustain the special-
hazard exception's third element, which requires the injury to
occur "on the only, normal, or expected route to or from the place
of employment."[Fn. 24]  Ann argues that they flew the usual route
from Anchorage to Kokhanok.  But this argument fails to squarely
address the requirement.  The problem is that the usual and normal
route between Anchorage and Kokhanok is not the same thing as the
usual and normal route that a typical Kokhanok school teacher would
be expected to take to and from school.
          The history and language of the special-hazard exception
suggest that it is intended to draw into the workers' compensation
system risks that are closely tied to the workplace and repeatedly
confronted.  Historically, according to Professor Larson, factories
were situated near railroads, so that the only way to get to work
was to "pick one's way through switching tracks, sidings, and even
main lines.  To deny workers' compensation to employees injured
because of the necessity of daily running such a gauntlet struck
most courts as out of tune with the broad concept of work-
connection."[Fn. 25]  Accordingly, courts developed the special-
hazard exception.    
          The Malones had not yet begun to teach in Kokhanok and
had no usual or normal route to work.  They expected to move to the
village of Kokhanok once their teaching duties began.  Obviously,
once they began their jobs, their normal route to work would not
involve flying.  The same is true of other Kokhanok teachers, who
are routinely expected to live in the village during the school
year.  Nor would newly-hired teachers -- or any other LPSD
employees, for that matter -- normally be required or expected to
fly from Anchorage to Kokhanok for a pre-school-year visit.  To the
contrary, undisputed evidence establishes that LPSD went out of its
way to discourage summer visits by new teachers; and for most
teachers arriving at the beginning of the school year, LPSD
arranged transportation to Kokhanok by commercial carrier directly
from its headquarters in King Salmon.  That LPSD may have
acquiesced in the Malones' decision to come to Kokhanok for a
school visit did not make their flight from Anchorage their "only,
normal, or expected route to [work.]"[Fn. 26]
          Accordingly, even when the totality of evidence is viewed
in the light most favorable to Ann, it could not sustain her
claims.  LPSD did not require the Malones to travel to the school
or supply their transportation; their activities were not performed
at the direction or under the control of their employer; and, while
LPSD -- through Jones -- arguably sanctioned their visit to the
school, their losses occurred while traveling to the school under
circumstances covered by the going and coming rule, rather than by
the special-hazard exception.  
          Although the Malones' eagerness to visit their new school
was certainly understandable and their purpose in deciding to make
the visit was undeniably commendable, the settled standards of the
Alaska Workers' Compensation Act do not permit the conclusion that
their losses arose "out of and in the course of employment."[Fn.
27]
IV. CONCLUSION
          For these reasons, we AFFIRM the Board's decision denying
compensation. 


                            FOOTNOTES


Footnote 1:

     See Alaska Pulp Corp. v. United Paperworkers Int'l Union, 791
P.2d 1008, 1009-10 (Alaska 1990).


Footnote 2:

     See Witmer v. Kellen, 884 P.2d 662, 664-65 (Alaska 1994).


Footnote 3:

     See Alaska Rule of Evidence 803(3).


Footnote 4:

     Under AS 23.30.120(a), a presumption of compensability applies
to workers' compensation claims.  For the presumption to attach,
the worker must establish a preliminary link between the injury
claimed and the worker's employment.  See Gillispie v. B & B
Foodland, 881 P.2d 1106, 1109 (Alaska 1994).  To overcome this
presumption, an employer must present substantial evidence that the
injury is not work related.  See id.  If the employer overcomes
this presumption, the employee has the burden of proving all of the
elements of the claim by a preponderance of the evidence.  See 
Norcon, Inc. v. Alaska Workers' Compensation Bd., 880 P.2d 1051,
1055 (Alaska 1994). 


Footnote 5:

     Viewed in this manner, the appeal presents undisputed facts
and raises legal questions concerning the scope of workers'
compensation coverage that do not implicate the Board's special
expertise; in these circumstances, we apply the substitution of
judgment standard.  See Sokolowski v. Best Western Golden Lion
Hotel, 813 P.2d 286, 289 n.1 (Alaska 1991) (citing Kodiak Oilfield
Haulers v. Adams, 777 P.2d 1145, 1148 (Alaska 1989)); see also
Madison v. Alaska Dep't of Fish and Game, 696 P.2d 168, 173 (Alaska
1985).  We give no deference to the superior court's decision when
it acts as an intermediate court of appeal.  See Handley v. State,
Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).  We thus focus
our discussion on the Board's ruling.  


Footnote 6:

     AS 23.30.005-.400.


Footnote 7:

     AS 23.30.395(17).


Footnote 8:

     AS 23.30.395(2).  


Footnote 9:

     Witmer v. Kellen, 884 P.2d 662, 665 (Alaska 1994) (quoting M-K
Rivers v. Schleifman, 599 P.2d 132, 134-35 (Alaska 1979)).


Footnote 10:

     See Marsh v. Alaska Workmen's Compensation Bd., 584 P.2d 1134,
1136 (Alaska 1978).


Footnote 11:

     Id.


Footnote 12:

     See, e.g., Witmer, 884 P.2d at 662-64 (in which the court
considered whether an owner-supervisor, claiming to be on "break"
and riding along in a vehicle driven by an employee on a work-
related trip, was limited to workers' compensation remedies); M-K
Rivers, 599 P.2d at 133 (in which the court considered whether an
employee working at a remote site was covered under the "remote
site doctrine"); Anchorage Roofing Co. v. Gonzales, 507 P.2d 501,
502 (Alaska 1973) (in which the court considered whether an
employee, traveling on a work-provided plane to a job site, was
precluded from recovery because the plane had deviated from a
direct route to the site for personal reasons); see also Northern
Corp. v. Saari, 409 P.2d 845, 845-46 (Alaska 1966).


Footnote 13:

     See 2 Arthur Larson, Larson's Workers' Compensation Law sec.
26.25 (1998).


Footnote 14:

     AS 23.30.395(2).


Footnote 15:

     Id.


Footnote 16:

     Id.


Footnote 17:

     Sokolowski v. Best Western Golden Lion Hotel, 813 P.2d 286,
289 (Alaska 1991) (citation omitted). 


Footnote 18:

     See id. at 290 (quoting 1A Larson, Workmen's Compensation
sec. 15.13, at 4-22 (Desk ed. 1990)).


Footnote 19:

     See id. at 292.


Footnote 20:

     See id. at 291 (citations omitted).


Footnote 21:

     General Ins. Co. of America v. Workers' Compensation Appeals
Bd., 546 P.2d 1361, 1363 (Cal. 1976) (cited with approval by
Sokolowski, 813 P.2d at 293 n.9).


Footnote 22:

     See Sokolowski, 813 P.2d at 291 (quoting General Ins. Co., 546
P.2d at 1364).  In Sokolowski, the court explained that
"quantitatively greater"could not mean merely "increased
frequency"because such a measure would be unworkable.  Sokolowski,
813 P.2d at 293 n.9.


Footnote 23:

     See id. at 293 & n.9 (noting that exposure to dangerous
conditions common to the general public, such as icy streets, even
frequent exposure, will not support the special-hazard exception).


Footnote 24:

     See id. at 292.


Footnote 25:

     1 Arthur Larson, Larson's Workers' Compensation Law
sec. 15.13(b), at 4-38, 4-39 (1998) (emphasis added).


Footnote 26:

     See Sokolowski, 813 P.2d at 292.  


Footnote 27:

     AS 23.30.395(17).