Oregon Workers' Comp Board Decides "Traveling Employee"Issue

Joe Di Bartolomeo
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Joe Di Bartolomeo is a top rated personal injury lawyer helping Oregon and Washington families
Posted on Jan 16, 2015

To successfully apply for Oregon Workers’ Compensation benefits, an injured worker must show that the injury occurred as a result of work activity, and in the course and scope of his or her employment. There are many rules and exceptions to the rules that the courts and the Workers’ Compensation Board apply in determining whether somebody was in the course and scope of their employment when the injury occurred.

This recent case involves the “traveling employee” rule. The injured worker was struck by a car after he exited his employer’s truck so that he could cross the highway to make a purchase at a convenience store. At the time the injury occurred, the employer truck was at a gas station refueling. As result, the Board found that the injury arose out of the injured worker’s employment because he was a traveling employee, and the short trip across the road was not a “distinct departure on a personal errand.”

The Board also pointed out the fact that claimant’s job involved traveling on a daily basis, and that the truck he rode in stopped at one of two gas stations on a regular basis. One of the gas stations included a convenience store, and it was common for employees to run over to the store to buy food and cigarettes.

When looking at the facts of this case, the Board explained that a traveling employee is considered to be continuously acting in the course and scope of his employment unless there is a distinct departure on a personal errand. A distinct departure occurs when it is not related to the travel status, and it does not occur in the course and scope of employment when the activity that resulted in the injury is inconsistent with the reason for the trip, or employer directives. Looking at all the facts and circumstances, the Board found that the employer would expect its employees to take a few minutes to buy some food or other items at a convenience store in the normal course of their job as a traveling employee.

The Board also touched on another issue. It explained that although the employee may have been negligent in choosing to cross the street and the way he did, that the not defeat a claim that the injury occurred in the course and scope of employment. This is because the employer knew that its workers routinely bought food and other items at the convenience store while the truck was refueling.

Finally, the employer argued that by going to the convenience store, the employee had violated an employer policy. However, the Board rejected this argument, explaining the testimony at hearing established that the injured worker and his work mates had been permitted to purchase drinks and other items at the convenience store when the employer truck was refueling.

The Board decided several employer arguments in this case, which illustrates how factually complex hearings can be when an employer denies that its worker was in the course and scope of employment at the time of an injury. We also suspect that this worker was badly hurt.  After all he was hit by a car, and the insurance company was fighting hard to avoid responsibility for providing benefits, including significant medical expense.

If your claim was denied because an insurance company felt you are not in the course and scope of your employment, give us a call to discuss your case. We can review the facts of your case to let you know whether you can overcome the denial.