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Nelsen v. Arrow Distributing9/7/2004
ess, implied, or by custom, it is understood by the employer and employee that the employer will transport the employee to or from the workplace, and the employer does so provide transportation in a vehicle under the employer's control, an injury during that journey arises out of and in the course of employment. Id.
In both Schademann v. Casey, supra, and Butt v. City Wide Rock Exc. Co., supra, the Nebraska Supreme Court found that the employees' injuries occurred in the course and scope of employment. In both cases, the Supreme Court found that the transportation was supplied by the employer and under the employer's control. In Schademann, the evidence indicated that the injured employee was driving a company vehicle returning from a jobsite in a different city, that the employer had "instructed [the employee] to drive the [vehicle] on the return trip," and that the employee had no other means of transportation from the city of the jobsite to his hometown. 194 Neb. at 157, 231 N.W.2d at 122. In City Wide Rock Exc. Co., the evidence indicated that tools and equipment used by the employee were kept in the vehicle, permitting the employer to direct the employee to report to different locations of employment, and that the employee was operating the vehicle "in accordance with the directions of the [employer]." 204 Neb. at 128, 281 N.W.2d at 407. In both cases, the Supreme Court found that the vehicle was under the control of the employer.
In the present case, in contrast, there is no evidence to indicate that Arrow had any control over the vehicle driven by Nelsen. The vehicle was not furnished by Arrow, but, rather, was furnished by A.C. Nelsen. There was no evidence that the vehicle was provided for any work-related reason other than for Nelsen's convenience and benefit. As such, we find no error in the compensation court's failure to apply the employer-supplied transportation exception to the going to and coming from work rule in this case. This assertion of error is without merit.
V. CONCLUSION
We find no merit to Nelsen's assertions of error on appeal. Under the going to and coming from work rule, the injuries sustained by Nelsen in the accident did not arise out of and in the course of his employment, because he was coming home from work at the time of the accident. The compensation court did not err in failing to find that the accident was a result of an off-premises activity for a matter of personal convenience or in failing to find that the employer-supplied transportation exception should be applied in this case. We affirm the review panel's affirmance of the trial court's dismissal.
Affirmed.
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