Iliaifar v. SAIF Corp.

• Decision Date: 28 April 1999
• Citation: 160 Or.App. 116,981 P.2d 353
• Court: Oregon Court of Appeals
• Parties: In the Matter of the Compensation of Mir Iliaifar, Claimant. Mir ILIAIFAR, Petitioner, v. SAIF CORPORATION and Don Rasmussen Co., Respondents. (WCB 96-05052; CA A98271)

Page 353

981 P.2d 353

160 Or.App. 116

In the Matter of the Compensation of Mir Iliaifar, Claimant Mir ILIAIFAR, Petitioner, v. SAIF CORPORATION and Don Rasmussen Co., Respondents.

(WCB 96-05052; CA A98271)

Court of Appeals of Oregon.

Argued and Submitted

Oct. 27, 1998.

Decided April 28, 1999.

Rex Q. Smith, Portland, argued the cause and filed the briefs for petitioner.

Steven R. Cotton, Salem, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and ARMSTRONG, Judge.

EDMONDS,P.J.

Claimant seeks review of a Workers' Compensation Board (Board) order upholding insurer's denial of his claim. We review for errors of law, ORS 656.298(7) and 183.482(8), and remand.

Claimant sold used cars for employer. He injured his back at the car lot and was released from work by his physician. After several days and two telephone conversations with his supervisor, claimant complied with the supervisor's request to deliver his physician's authorization to be off work to employer. Claimant left his Beaverton residence in a car provided to him by his employer and headed to downtown Portland to the car lot where he worked. On his way, claimant stopped at his credit union, and, shortly after leaving its parking lot, he was injured in a car accident. It is the injury resulting from the car accident that is the basis of his claim.

Employer's insurer denied the claim, contending that claimant was not injured in the course and scope of employment. Claimant requested a hearing before the hearings division, and the administrative law judge ruled in favor of claimant. On appeal, the Board ruled that claimant's injury did not occur within the course and scope of his employment and made the following findings:

"Claimant, age 35 at the time of hearing, works as a car salesman for the employer. In connection with his employment, the employer furnished claimant with a 'demonstrator' vehicle, which he was to use primarily for transport to and from work.

"Claimant compensably injured his back at work on December 12, 1995. On Friday, December 22, 1995, claimant's treating doctor released him from work for the following week. The next day, claimant telephoned his supervisor and reported that he was released from work. The supervisor requested a copy of the off-work authorization, which claimant understood he was to personally deliver to the employer. Claimant advised his supervisor that he would deliver the off-work slip as soon as he could.

"On December 28, 1995, claimant again spoke with his supervisor by telephone. The supervisor again requested the off-work slip and claimant advised he would deliver it the next day. On the afternoon of December 29, 1995, claimant left his home in Beaverton in his demonstrator car to deliver the off-work slip to his place of employment on Martin Luther King, Jr. Blvd. in Portland. On his way to the employer's premises, claimant stopped to do some banking at a downtown bank. After leaving the bank and while on his way to the employer's premises, claimant's vehicle was rear-ended. The rear-end collision resulted in claimant's herniated disc at L4-5."

The Board's findings are supported by substantial evidence in the record. ¹ We take those findings and determine whether the Board drew the correct legal conclusions from them.

The Board determined that claimant's injury did not occur "in the course of employment." It explained:

"Here, we find it significant that claimant was not actually traveling to perform any 'work' on the day of his injury. Although he was going to the employer's premises at the time of his injury, he had been released from work because of his prior back injury. Therefore, neither the 'going and coming' rule nor the 'special errand' exception are directly applicable."

As to the "special errand" exception to the "going and coming" rule, it reasoned:

"Although the employer directed claimant to drop off a copy of his off-work slip, claimant's actions were not in furtherance of the employer's business (the sale of automobiles), nor was claimant acting on the employer's behalf at the time of his injury. Claimant made the trip primarily for his own benefit, to secure his entitlement to continued temporary disability benefits in connection with his prior injury claim. In addition, although claimant used his demonstrator vehicle to make the delivery, the employer did not have any right to control the time, manner of travel, or route to be taken on claimant's trip. Indeed, the record establishes that, regardless of whether or not claimant was actually required to personally deliver the off-work slip, he made the delivery when it was convenient for him to do so. * * * Finally we find nothing about claimant's mid-afternoon trip to the employer's premises on December 29, 1995 which resulted in a substantially increased risk over his usual trips to and from work. Under these circumstances, we conclude the 'special errand' exception does not apply, even by analogy." (Footnotes omitted.)

On review, claimant argues: (1) that his actions on the day of his injury were in furtherance of employer's business; (2) that the personal delivery of the "off-work" authorization was an act in the course of his employment; (3) that employer had the right to control the time, manner of travel or route of claimant's trip; and (4) that the "special errand" exception to the "coming and going" rule applies.

In Fred Meyer, Inc. v. Hayes, 325 Or. 592, 596-97, 943 P.2d 197 (1997), the Supreme Court summarized:

"For an injury to be compensable under the workers' compensation law, it must 'aris[e] out of' and occur 'in the course of employment.' ORS 656.005(7)(a). The 'arise out of' prong of the compensability test requires that a causal link exist between the worker's injury and his or her employment. Krushwitz v. McDonald's Restaurants, 323 Or. 520, 525-26, 919 P.2d 465 (1996); Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 366, 867 P.2d 1373 (1994). The requirement that the injury occur 'in the course of' the employment concerns the time, place, and circumstances of the injury. Krushwitz, 323 Or. at 526 ; Norpac, 318 Or. at 366 .

"This court views the two prongs as two parts of a single 'work-connection' inquiry, that is, whether the relationship between the injury and the employment is sufficient that the injury should be compensable. Krushwitz, 323 Or. at 526 ; Norpac, 318 Or. at 366 . See ORS 656.012(1)(c) (Legislative Assembly finds that 'those injuries that bear a sufficient relationship to employment * * * merit incorporation of their costs into the stream of commerce'). Both prongs of the work-connection test must be satisfied to some degree; neither is dispositive. Krushwitz, 323 Or. at 531 ; Norpac, 318 Or. at 366 . The work-connection test may be satisfied if the factors supporting one prong of the statutory test are minimal while the factors supporting the other prong are many. Krushwitz, 323 Or. at 531 , (citing Phil A. Livesley Co. v. Russ, 296 Or. 25, 28, 672 P.2d 337 (1983)). Both prongs serve as analytical tools for determining whether, in the light of the policy for which that determination is to be made, the causal connection between the injury and the employment is sufficient to warrant compensation. Andrews v. Tektronix, Inc., 323 Or. 154, 161-62, 915 P.2d 972 (1996).

"Ordinarily, an injury sustained while a worker is going to or coming from work is not considered to have occurred 'in the course of' employment and, therefore, is not compensable. Krushwitz, 323 Or. at 526 (citing Cope v. West American Ins. Co., 309 Or. 232, 237, 785 P.2d 1050 (1990)); Norpac, 318 Or. at 366 . That general rule is called the 'going and coming' rule. The reason for the 'going and coming' rule is that the relationship of employer and worker ordinarily is suspended from the time the worker leaves work to go home until he or she resumes work because, while going to or coming from work, the worker is rendering no service for the employer. Krushwitz, 323 Or. at 526-27 (citing Heide/Parker v. T.C.I. Incorporated, 264 Or. 535, 540, 506 P.2d 486 (1973))." (Footnotes omitted.)

In addition, the Hayes court quoted favorably from our statement in Allen v. SAIF, 29 Or.App. 631, 633-34, 564 P.2d 1086, rev. den. 280 Or. 1 (1977):

"The statutory phrase 'arising out of and in the course of employment' must be applied in each case so as to best effectuate the socio-economic purpose of the Workers' Compensation Act: the financial protection of the worker and his/her family from poverty due to injury incurred in production, regardless of fault, as an inherent cost of the product to the consumer. Various concepts have arisen from attempts to rationalize that purpose, e.g., the going and coming rule, special errands,[ ²] lunch hour cases, dual purpose trips, impedimenta of employment, horseplay, etc. Each is helpful for conceptualization and indexing, but there is no formula for decision. Rather, in each case, every pertinent factor must be considered as a part of the whole. It is the basic purpose of the Act which gives weight to particular facts and direction to the analysis of whether an injury arises out of and in the course of employment." (Citations omitted.)

We disagree with the Board that claimant's actions did not occur in the course of claimant's employment. For many years, Oregon has recognized that injuries are work related that occur in the performance of duties even though the claimant is off the employer's premises and performing duties that are not directly connected with the profit-making function of the employer's business or that are not considered within the claimant's typical job duties. See, e.g., King v. Ind. Acc. Com., 211 Or. 40, 309 P.2d 159, 315 P.2d 148, 318 P.2d 272 (1957); Reynolds v. State Ind. Acc. Com., 141 Or. 197, 16 P.2d 1105 (1932). In this case, claimant's uncontradicted testimony is that employer required the "off-work"...