Compensation of Halfman v. State Accident Insurance Fund

618 P.2d 1294, 49 Or. App. 23, 1980 Ore. App. LEXIS 3670
CourtCourt of Appeals of Oregon
DecidedNovember 3, 1980
DocketNo. 79-3956, CA 17674
StatusPublished
Cited by11 cases

This text of 618 P.2d 1294 (Compensation of Halfman v. State Accident Insurance Fund) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Compensation of Halfman v. State Accident Insurance Fund, 618 P.2d 1294, 49 Or. App. 23, 1980 Ore. App. LEXIS 3670 (Or. Ct. App. 1980).

Opinion

GILLETTE, P. J.

The referee in this Workers’ Compensation case determined that claimant’s injuries, which he suffered when he was hit by an automobile, were not compensable because they did not arise out of and in the course of his employment. The Workers’ Compensation Board (Board) affirmed, adopting the referee’s opinion and order, and claimant appeals. We reverse.

In order to consider the merits of this case, we must discuss the claimant’s situation in some detail:

Claimant was employed at the time of the accident by Goodwill Industries as an attendant at one of Goodwill's collection centers, a truck trailer located in a parking lot, at 105th and Washington Streets in Portland. Claimant’s shift was 8:30 a.m. to 5 p.m., with an unpaid lunch period from 12:30 p.m. to 1 p.m.

Attendants are allowed two 15 minute paid coffee breaks per day, one in the morning and one in the afternoon. The scheduled break times are 10:30 a.m. and 3 p.m., but attendants are allowed to take their breaks at other times if they call in to report their absence from the trailer. There are, however, no telephones in the trailers, nor are there water or toilet facilities in them. Claimant’s supervisor testified that the normal coffee break is 10 minutes, but that the trailer attendants are allowed an extra 5 minutes per break because they have no facilities in the trailers and have to use neighborhood refreshment and restroom facilities.

Claimant testified that he often did not take his coffee breaks because the procedure of closing up the trailer and reopening it did not leave time enough to travel to a restaurant, have something to drink and return. On the day of his injury, claimant did not take his break at 10:30 a.m., but took it right before his scheduled lunch period. He testified that he closed up the trailer at about 12:20 p.m. and left to find a restroom. The nearest gas station was closed and he proceeded to another station about a block further away.

After using the restroom, claimant planned to go to a convenience store at 102nd and Burnside to buy [26]*26something to drink with his lunch, which he had left in the trailer and which he intended to eat there. He also intended at that time to buy something to drink later, on his afternoon break. He started for the convenience store, but then decided it would be quicker to stop at a market on the other side of 102nd Street. He started across the busy street, and was nearly across when he was struck by a car and injured. The evidence indicates that the accident occurred at about 12:35 p.m.

Claimant contends that his injury arose out of and in the course of his employment under the so-called "personal comfort doctrine,” because the employer provided no facilities for its employes and expected them to use the facilities in the neighborhood as necessary. The employer, on the other hand, argues that claimant was on an unpaid lunch period and on a personal mission of his own when the injury occurred. It argues that, under the "coming and going rule,” the injury is not compensable.

ORS 656.005(8)(a) defines a "compensable injury” as "an accidential injury * * * arising out of and in the course of employment * * *.” The Supreme Court recently examined the question of compensability in Rogers v. SAIF, 289 Or 633, 616 P2d 485 (1980), in which it noted that the two elements, "arising out of” and "in the course of,” have been treated as separate tests, both of which must be met for an injury to be compensable. However, in Rogers the court adopted a "unitary 'work-connection’ approach in place of the customary mechanistic two-stage method of analysis * * 289 Or at 643. The court defined the ultimate inquiry as: "[I]s the relationship between the injury and the employment sufficient that the injury should be compensable?” Id., at 642. It held that,

"If the injury has sufficient work relationship, then it arises out of and in the course of employment and the statute is satisfied. Existing law regarding proximity, causation, risk, economic benefit, and all other concepts which are useful in determining work relationship remain applicable. Employment of a unitary test, more closely aligned with the purpose of the Act, will facilitate a simpler, cleaner, more direct inquiry into compensability.” Id., at 643-644.

The court also directed that

[27]*27" 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 Worker’s (sic) 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.
" '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.’ ” Id., at 642-643, quoting Allen v. SAIF, 29 Or App 631, 633-634, 564 P2d 1086, rev den (1977).

Injuries incurred in certain "personal comfort” activities incidental to employment ,have been held to be compensable. See Clark v. U.S. Plywood, 288 Or 255, 605 P2d 265, (1980); Benafel v. SAIF, 33 Or App 597, 577 P2d 99 (1978); Olsen v. SAIF, 29 Or App 235, 562 P2d 1234, 30 Or App 109, 566 P2d 1202, rev den (1977); Casper v. SAIF, 13 Or App 464, 511 P2d 451 (1973); Jordan v. Western Electric, 1 Or App 441, 463 P2d 598 (1970).

Of the cases we have found, or which have been cited to us by the parties, the case with the most closely analogous facts to the present case is Jordan v. Western Electric, supra. In that case, an employe injured while returning from an off-premises coffee break was awarded compensation. The employe was working on the night shift, during which the company-operated restaurant was closed. It was the custom of night shift employes to take their coffee break off premises, although vending machines were available on the premises. On the night of the injury, the employe accompanied other night employes, including his supervisor, to a restaurant about two and a half blocks away for a paid coffee break, slipped on a curb while returning and was injured. The injury was held to be compensable in an opinion that balanced various factors which had previously been relied upon in determing whether the activity from which injury resulted was one arising out of and in the course of employment.

In determining whether the activities in which the claimant in the instant case was involved are sufficiently [28]*28work-related to be compensable, we find the factors identified in Jordan v. Western Electric, supra, still to be helpful. Those factors are:

" 'a) Whether the activity was for the benefit of the employer, * * *;
" 'b) Whether the activity was contemplated by the employer and employee either at the time of hiring or later, * * *;
" 'c) Whether the activity was an ordinary risk of, and incidental to, the employment, * * *;
"'d) Whether the employee was paid for the activity, * * *.
" 'e) Whether the activity was on the employer’s premises, * * *;

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Halfman v. STATE ACC. INS. FUND
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Bluebook (online)
618 P.2d 1294, 49 Or. App. 23, 1980 Ore. App. LEXIS 3670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/compensation-of-halfman-v-state-accident-insurance-fund-orctapp-1980.