SAIF v. Sumner

434

Argued and submitted November 18, 2020, affirmed July 21, 2021

In the Matter of the Compensation of

Cassandra Sumner, Claimant.

SAIF CORPORATION

and Cooper Hollow Residential Services,

Petitioners,

v.

Cassandra SUMNER,

Respondent.

Workers’ Compensation Board

1800863; A171463

495 P3d 205

SAIF Corporation and employer, Cooper Hollow Residential Services, seek

review of an order of the Workers’ Compensation Board, contending that the

board erred in determining that claimant’s injury arose out of and occurred

during the course and scope of her employment. Held: Claimant, who works for

employer as a project manager for a residence for disabled adults and is regu-

larly on call, was injured in a car accident while driving to meet her supervisor

with cash so that he could buy pizzas for employer’s holiday party. Although, at

the time of the accident, claimant had taken the day off and was on her way to

do some holiday shopping, substantial evidence supports the board’s determina-

tion that the intended employment detour to drop off cash with her supervisor

brought claimant within the course and scope of her employment. Substantial

evidence also supports the board’s finding that, at the time of the injury, claimant

was on an errand that was “within the reasonable bounds of her employment as

a project manager,” and, therefore, the board’s conclusion that the risk of injury

during that task was a risk of her employment.

Affirmed.

Beth Cupani argued the cause and filed the briefs for

petitioners.

R. Adian Martin argued the cause and filed the brief for

respondent.

Before Armstrong, Presiding Judge, and Aoyagi, Judge,

and Sercombe, Senior Judge.

ARMSTRONG, P. J.

Affirmed.

Cite as 313 Or App 434 (2021) 435

ARMSTRONG, P. J.

SAIF Corporation and employer Cooper Hollow

Residential Services seek review of an order of the Workers’

Compensation Board, contending that the board erred in

determining that claimant’s injury arose out of and occurred

during course and scope of her employment. We conclude

that the board did not err and therefore affirm.

Employer manages homes for disabled adults. Claim-

ant works as a program manager for employer, managing

two homes in Monmouth, Oregon. Her duties include sched-

uling and coordinating staffing, training staff, budget-

ing, and ensuring compliance with state and federal law.

Claimant’s two homes in Monmouth are located about a

mile apart, and claimant drives between them. Claimant’s

normal work hours are from 8:00 a.m. to 4:00 p.m., Monday

through Friday, but she is on call for emergencies or licensing

visits or inspections, leading to overtime hours. Claimant is

allowed to “flex” her hours, meaning that she can take time

off with permission if she has previously worked overtime.

On the day of her injury, claimant had permission

to use flex time to have the day off for some holiday shop-

ping. But that morning, claimant received a text from her

supervisor asking her to come to employer’s main office

in Dallas to help wrap gifts for employer’s holiday party.

Claimant agreed and spent about an hour at the Dallas

office wrapping gifts. Claimant’s supervisor also came to the

office while claimant was there, then drove to McMinnville

to check on a residence. He intended to then drive to West

Salem to buy some pizzas for the holiday party.

After wrapping gifts, claimant left the office to

resume her errands. While en route to Salem, claimant

received a cellphone call from a coworker asking if she could

meet the supervisor in Rickreall on her way to Salem and

give him petty cash for the pizzas. Claimant agreed, but,

because she had already left Dallas, she decided not to

return to the office for petty cash and planned instead to

give the supervisor her own cash for the pizzas and then

seek reimbursement. The board found that the practice of

using one’s own cash to purchase work necessities was not

encouraged by employer but also was not forbidden, and

436 SAIF v. Sumner

claimant often spent personal funds on residents’ needs and

then requested reimbursement.

The accident occurred when claimant was driving

east of Dallas on Ellendale Road toward Rickreall and

Salem. Before the exit to Rickreall, a utility vehicle merged

onto Ellendale Road from Fir Villa Road and struck claim-

ant’s car on the passenger side, pushing it into a third vehi-

cle. Claimant suffered a low back injury as a result of the

accident and filed a claim, which SAIF denied on the ground

that the injury did not arise out of and in the course of claim-

ant’s employment. Claimant requested a hearing.

An injury is compensable if it “arise[s] out of” and

occurs “in the course of employment.” ORS 656.005(7)(a).

The “arising out of” prong requires a causal link between

the worker’s injury and his or her employment. Krushwitz

v. McDonald’s Restaurants, 323 Or 520, 525-26, 919 P2d 465

(1996); Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867

P2d 1373 (1994). The “in the course of” prong concerns the

time, place, and circumstances of the injury. Krushwitz, 323

Or at 526; Norpac, 318 Or at 366. The two prongs are parts

of a single “work-connection” inquiry, that is, whether the

relationship between the injury and the employment is suffi-

cient that the injury should be compensable. Krushwitz, 323

Or at 526; Norpac, 318 Or at 366. Both prongs must be sat-

isfied to some degree, and 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 support-

ing the other prong are substantial. Krushwitz, 323 Or at

531 (citing Phil A. Livesley Co. v. Russ, 296 Or 25, 28, 672

P2d 337 (1983)). Together, the “arising out of” and “in the

course of” prongs provide an analytical tool for determining

whether the causal connection between the injury and the

employment is sufficient to warrant compensation. Andrews

v. Tektronix, Inc., 323 Or 154, 161-62, 915 P2d 972 (1996).

An administrative law judge (ALJ) upheld SAIF’s

denial of claimant’s claim, but the board reversed the

ALJ’s order. In determining that claimant’s injury arose

out of and occurred in the course of her employment, the

board cited claimant’s on-call status. The board found

Cite as 313 Or App 434 (2021) 437

that claimant’s work duties were not limited to her regu-

lar working hours and included completing special tasks or

errands for employer. The board also found that, in assist-

ing a coworker, claimant was complying with employer’s

encouragement that an employee be a “team player.” Thus,

although claimant was not scheduled to work on the date

of injury and had not been directed by employer to bring

money to her supervisor, the board concluded that claimant

was within the reasonable bounds of her employment at the

time of the injury, that claimant’s work exposed her to the

risk of being injured during an errand, and that the injury

arose out of and in the course of claimant’s employment.

SAIF and employer seek judicial review, contending

that the board erred. We review the board’s conclusion that

claimant’s injury arose out of and was within the course

and scope of her employment for legal error. ORS 183.482(8);

Compton v. SAIF Corp., 195 Or App 329, 333, 97 P3d 669,

rev den, 337 Or 669 (2004). We review the board’s find-

ings for substantial evidence and substantial reason. ORS

656.298(7); ORS 183.482(8)(c).

To determine whether an injury occurs “in the

course of” employment, the court determines if the time,

place, and circumstances of the injury justify connecting the

injury to the employment. Robinson v. Nabisco, Inc., 331 Or

178, 186, 11 P3d 1286 (2000). An injury takes place in the

course of employment if it occurs “while the worker reason-

ably is fulfilling the duties of the employment or is doing

something reasonably incidental to it.” Fred Meyer, Inc. v.

Hayes, 325 Or 592, 598, 943 P2d 197 (1997).

SAIF contends that claimant was not in the course

of her employment at the time of the accident, because she

was on a personal errand and not working or at a place

where she was expected to be at the time of the injury.

Claimant responds that, in light of her on-call

status and employer’s encouragement of teamwork, at the

moment that claimant agreed to the co-worker’s request to

deliver cash to the supervisor, she was engaged in a task

for employer that brought her within the course of her

employment.

438 SAIF v. Sumner

SAIF replies that delivering her own money to the

supervisor was not within claimant’s job, because employer

had not directed her to undertake it. Further, SAIF con-

tends that the errand was of no benefit to employer, who had

not requested money from claimant and whose policy did

not authorize employees to take direction from coworkers

or to use their own money for work-related expenses. See

SAIF v. Fortson, 155 Or App 586, 592, 964 P2d 293 (1998)

(explaining that “[w]e have in the past considered the ben-

efit to the employer of the conduct that injured the claim-

ant when evaluating whether the injury was connected with

work” but adding that that determination is not dispositive).

Indeed, employer notes, when the supervisor came to the

location of the accident, he declined to accept claimant’s

money for the pizza and instead went to the office for petty

cash.

We agree with the board’s conclusion that claimant

was in the course of her employment. Claimant’s task—

delivering cash to her supervisor—was clearly work-related.

The board found that, although employer did not favor

employees spending their own money for work, employer did

not have a rule prohibiting employees from using their own

money and was even aware that the conduct occurred occa-

sionally. That finding is supported by substantial evidence.

And, as claimant correctly notes, the fact that the task had

not been requested—or may even have been prohibited—

does not necessarily take it outside the course of employ-

ment, if it was the type of activity that can be understood

to be connected to the employment. See Andrews, 323 Or

at 165 (an employee’s violation of an employment rule does

not render the claim noncompensable). As we held in SAIF

v. Scardi, 218 Or App 403, 411, 180 P3d 56, rev den, 345 Or

175 (2008), an activity need not be directed by an employer

for it to be work related. Nor is it required that the employee

be compensated for engaging in the activity. See, e.g., Iliaifar

v. SAIF, 160 Or App 116, 122, 981 P2d 353 (1999) (injury

occurred in the course of employment even though claimant

was off work and unpaid at the time of the injury). Injuries

can be work related even if they occur in the performance of

duties that are off the employer’s premises and not within

the claimant’s typical job duties. Id.

Cite as 313 Or App 434 (2021) 439

Thus, although claimant’s supervisor had not asked

her to bring him cash—and likely would not have autho-

rized her to use her own money—at the time of the injury,

claimant was on an errand that was of a type that would

be undertaken within her job and that was work related.

Indeed, although it was to be her day off, claimant had ear-

lier responded to the supervisor’s request to come to the

office to wrap holiday gifts. And the evidence supports the

board’s finding that helping a coworker with a work-related

task was encouraged by employer. The fact that claimant

was driving on the same road as her personal trip at the

time of the accident does not detract from the work-related

nature of the errand, which brought her within the course of

her employment.

We also conclude that substantial evidence sup-

ports the board’s determination that claimant’s injury arose

out of claimant’s employment. A worker’s injury arises out

of the employment if it originates from a risk to which the

work exposes the worker. Legacy Health Systems v. Noble,

250 Or App 596, 600-01, 283 P3d 924 (2012). Employer con-

tends that, because claimant had not yet altered her route

to drive to Rickreall at the time of the accident, the injury

did not originate from a risk of her employment. However,

although claimant was on the same road at the time of

the accident, she had interrupted her personal trip for

employer’s errand. The board found that, at the time of the

injury, claimant was on an errand that was “within the rea-

sonable bounds of her employment as a project manager,”

and, thus, the risk of injury during that task was a risk of

her employment. That finding is supported by substantial

evidence and substantial reason. We therefore affirm the

board’s order that claimant’s claim is compensable.

Affirmed.