May 2007 SBH Quarterly Newsletter
PDF FormatOregon WC Claims: Court
Employee struck by car while crossing the road to buy beverage at the grocery store during lunch found possibly compensable under special errand exception.
The court remanded the Board's order that found claimant's injury arose out of and in the course of employment. The claimant was struck by a car while crossing a street in front of his workplace to return to his work from a "lunch" break. The Board relied on the "special errand" exception to the "going and coming" rule under the theory claimant's supervisor had expressly directed him to buy his bottle of water at a store across the street from the employer's workplace and not at one a few blocks away so the claimant could return to the workplace as soon as possible to be available to work as needed.
Citing Cope v. West American Ins. Co., 309 Or 232, 237 (1990), the court stated that injuries sustained by an employee while traveling to or from work are generally not considered to be in the course of employment. Furthermore, relying on White v. SIAC, 236 Or 444, 447 (1964), the court observed that an unpaid break during which an employee leaves the employer's premises is generally noncompensable under the "going and coming" rule. Nonetheless, the court recognized that a "special errand" exception applies to situations in which "either the employee was acting in the furtherance of the employer's business at the time of the injury or the employer had a right to control the employee's travel in some respect." Krushwitz v. McDonald's Restaurants, 323 Or 520, 528 (1996) (emphasis in original).
Turning to the case at hand, the court determined that if claimant chose to follow his supervisor's instructions because he reasonably understood he had been directed to return to work before the end of his break to be available for a possible surge in customers, then the errand would be in furtherance of his employer's business. As such, it would be subject to the "special errand" exception. The court remanded for clarification. JAK Pizza, Inc.--Domino’s v. Gibson, 211 Or App 203 (February 28, 2007).
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