J a K Pizza, Inc.-Domino's v. Gibson

• Decision Date: 28 February 2007
• Docket Number: A128930.,0405660.
• Citation: 211 Or. App. 203,154 P.3d 159
• Parties: In the Matter of the Compensation of Ryan K. Gibson, Claimant. J A K PIZZA, INC.-DOMINO'S, Petitioner, v. Ryan K. GIBSON, Respondent.
• Court: Oregon Court of Appeals

154 P.3d 159

211 Or. App. 203

In the Matter of the Compensation of Ryan K. Gibson, Claimant J A K PIZZA, INC.-DOMINO'S, Petitioner, v. Ryan K. GIBSON, Respondent.

0405660.

A128930.

Court of Appeals of Oregon.

Argued and Submitted October 26, 2006.

Decided February 28, 2007.

Jerald P. Keene argued the cause and filed the briefs for petitioner.

James Moller argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

SCHUMAN, J.

Employer seeks judicial review of an order of the Workers' Compensation Board (board) concluding that claimant's injuries, incurred while crossing a street on the way back to the workplace from a personal errand during a break, arose out of and in the course of his employment and were therefore compensable. We review the board's legal conclusions for errors of law and its findings of fact for substantial evidence, ORS 183.482(7), (8). Because we need the board to clarify one of its findings, we remand.

The following facts were found or adopted by the board and are supported by substantial evidence. Claimant, a 17-year-old, worked in one of employer's restaurants as a pizza maker. On the day of the accident giving rise to this case, his shift began at 4:00 p.m. At approximately 9:30 p.m., he had his "lunch" break. As instructed by Newby, the supervisor and manager of the restaurant, he clocked out. However, when he told Newby that he planned to drive to a nearby grocery store to buy a bottle of water—employer sold some drinks, but claimant preferred others— Newby told him, as the administrative law judge (ALJ) found and the board accepted, "that he did not have enough time and that Mr. Newby needed claimant at the employer's premises. Newby then directed claimant to go to the store across the street and get back to the employer's premises." Specifically, Newby testified, "I'm like, Dude, just run across the street." Claimant then took off his apron, walked across the street, and bought a drink. Returning, he attempted to cross the street midblock and was struck by an automobile.

Based on those facts, the board concluded that claimant's injuries arose out of and in the course of employment and were therefore compensable. ORS 656.005(7)(a). To determine whether an injury meets the statutory criteria, the Supreme Court has articulated a two-part, but ultimately unitary, "work-connection" test, asking whether the relationship between the injury and the employment is sufficient to merit compensation. Fred Meyer, Inc. v. Hayes, 325 Or. 592, 596, 943 P.2d 197 (1997). The "arising out of" part requires some causal link between claimant's employment and the injury. Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 366, 867 P.2d 1373 (1994). To satisfy the "in the course of employment" part, a claimant must show that the time, place, and circumstances of the injury are connected to the claimant's employment. Robinson v. Nabisco, Inc., 331 Or. 178, 186, 11 P.3d 1286 (2000). Each part must be supported by some evidence, but satisfaction of one part may be minimal if the other has strong support. Krushwitz v. McDonald's Restaurants, 323 Or. 520, 531, 919 P.2d 465 (1996).

Generally, injuries sustained by an employee while traveling to or from work are not considered to be in the course of employment and are therefore not compensable. Cope v. West American Ins. Co., 309 Or. 232, 237, 785 P.2d 1050 (1990); Heide/Parker v. T.C.I. Incorporated, 264 Or. 535, 539, 506 P.2d 486 (1973). The purpose of this "going and coming" rule is that "the relationship of employer and employee is ordinarily suspended from the time the employee leaves his work to go home until he resumes his work, since the employee, during the time that he is going to or coming from work, is rendering no service for the employer." Krushwitz, 323 Or. at 526-27, 919 P.2d 465.

Further, an unpaid break during which an employee leaves the employer's premises is generally noncompensable under the going and coming rule. White v. S.I.A.C., 236 Or. 444, 447, 389 P.2d 310 (1964); Barker v. Wagner Mining Equip., 6 Or.App. 275, 278, 487 P.2d 1162 (1971). However, 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, 323 Or. at 528, 919 P.2d 465 (emphasis in original).

The parties appear to agree on those legal principles. The disagreement arises with respect to the board's application of them. The board explicitly concluded that "employer did not have the right to control claimant during his unpaid lunch break." That conclusion is supported by substantial evidence and claimant does not dispute it. In upholding the compensability of the claim, the board therefore must have concluded that claimant's errand to the convenience store across the street was "in furtherance of the employer's business." Krushwitz, 323 Or. at 528, 919 P.2d 465. The board explained:

"Newby expressly directed claimant to perform a certain act during his lunch break; i.e., going across the street to buy a beverage, because Newby was concerned that claimant may not be back by the end of his break. Although he disagreed, claimant complied with Newby's directive. Claimant attempted to return to the work site as quickly as possible with the specific intention of being available to work as needed."

According to employer, that paragraph and the facts underlying it do not amount to substantial evidence that claimant's errand was in furtherance of the employer's business. Employer points out that, although Newby "directed" claimant to buy his drink at the store across the street instead of at a more distant grocery store, the choice to leave the workplace in the first place was claimant's. Newby, according to employer, did not direct claimant to go across the street; claimant had the option of going across the street or not buying water, and he freely chose to go across the street.

To the extent that claimant chose the route that he did in order to avoid overextending his lunch break, he cannot claim to have done so for employer's benefit under the "special errand" rule; such a conclusion would render the "going...