Oregon: Traveling Employee’s Death While Returning From Shopping Trip Was Not Compensable

A person in the status of a traveling employee is continuously within the course and scope of the employment while traveling, except when the person is engaged in a distinct departure on a personal errand, held the Court of Appeals of Oregon. Accordingly, where a Coos Bay resident was temporarily working some distance away in Newport, and was killed in an automobile accident as he and a co-employee returned to their Newport hotel following a Christmas shopping excursion to a nearby town, the employee’s surviving spouse was not entitled to workers’ compensation death benefits [Beaudry v. SAIF Corp., 2017 Ore. App. LEXIS 1179 (Oct. 4, 2017)]. Quoting Larson’s Workers’ Compensation Law, current § 25.01, et seq., extensively, the Court stressed that here the employee’s activities were unrelated to the employee’s work-related travels.

Background

After his shift ended one November day, the decedent agreed to accompany a co-employee to Philomath, Oregon, so that the co-employee could shop for his wife. Philomath is located approximately 46 miles from Newport, where the employees were staying while performing their duties. The two employees had plans to dine together after returning from the shopping excursion. The employer not only allowed, but paid for gasoline for traveling employee’s personal trips not exceeding 100 miles.

Employer Conceded Traveling Employee Status

The employer conceded that the decedent was a traveling employee, but argued that the death occurred during a distinct departure on a personal errand that was not reasonably related to the decedent’s traveling-employee status. The board agreed and denied the surviving spouse’s death benefits claim.

Cases Cited by Surviving Spouse Were Distinguishable

The surviving spouse pointed to a number of decisions awarding compensation to traveling employees or their dependents, including Proctor v. SAIF, 123 Ore. App. 326, 860 P2d 828 (1993) (injury sustained while playing basketball on evening of a conference) and Slaughter v. SAIF, 60 Ore. App. 610, 615, 654 P2d 1123 (1982) (injuries sustained by a long-haul truck driver who was assaulted at a tavern during a forced layover).

The Larson Rule

Quoting extensively from Larson, the Court of Appeals agreed with the board, stressing that although certain activities of a personal nature are considered to be within the course of employment of a traveling employee, the activity still must bear some reasonable relationship to the worker’s traveling-employee status. Personal activities, such as sleeping and eating, arising from the necessity of travel fall within the course of employment.

The Court continued, noting there was no dispute that co-employees’ trip to Philomath was a personal errand that did not itself bear any relation to the employment. The surviving spouse’s only assertion was that the shopping trip was a leisure activity that was reasonably anticipated because employees were permitted to use company vehicles for personal errands. The Court indicated that the fact that an employer permitted an activity did not mean that it was compensably related to the employee’s traveling status.

The Court concluded that under the Larson standard and the state’s case law, to be compensable, the leisure activity must bear some relationship to the necessity of travel. Here, it did not.