No. 95-396
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
CAROL ANN CARRILLO,
Petitioner and Appellant,
v.
LIBERTY NORTHWEST INSURANCE,
Respondent and Insurer for
BLUE CROSS BLUE SHIELD,
Respondent and Employer.
APPEAL FROM: Workers' Compensation Court of the State of Montana
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James G. Hunt, Dix and Hunt,
Helena, Montana
For Respondent:
Larry Jones, Senior Attorney, Liberty
Northwest Insurance, Missoula, Montana
Submitted on Briefs: April 18, 1996
Decided: September 3, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The petitioner, Carol Ann Carrillo, filed a petition in the
Workers' Compensation Court of the State of Montana in which she
sought benefits for an injury which she alleged occurred in the
course and scope of her employment with Blue Cross Blue Shield in
1993. After a trial, the Workers' Compensation Court entered an
order and judgment in which it concluded that Carrillo's injury did
not occur during the course and scope of her employment and denied
her claim. Carrillo appeals the order and judgment. We reverse
the judgment of the Workers' Compensation Court.
The issue on appeal is whether the Workers' Compensation Court
erred when it concluded that Carrillo's injury did not arise out of
and in the course and scope of employment.
FACTUAL BACKGROUND
Carol Ann Carrillo suffered an injury on the afternoon of
March 2, 1993, when she was struck by an automobile while crossing
an intersection in Helena. At the time of her injury, Carrillo had
left the building where she worked and was walking toward the
Halter Museum, which is one and one-half blocks from her place of
employment. She had planned to purchase a gift for a co-worker who
was leaving and for whom Carrillo and other co-workers were
planning a party. Carrillo worked for Blue Cross Blue Shield
(BCBS) of Montana which was insured against workers' compensation
claims by Liberty Northwest Insurance (Liberty). After her injury,
Carrillo filed a timely claim for workers' compensation which
2
Liberty denied on the basis that her accident did not arise out of
and in the course of her employment.
After Liberty denied her claim, Carrillo filed a claim with
the Workers' Compensation Court in which she alleged that she was
injured when hit by a car during her fifteen-minute break from
work. Liberty responded and contended that she had abandoned her
employment and was not on break. The Workers' Compensation Court
held a trial on March 23, 1995, to determine whether Carrillo's
injury occurred within the course and scope of her employment.
Testimony from the trial and from depositions reveals that at
the time of the accident, Carrillo worked at BCBS offices located
in the Donovan building which is on the west side of Last Chance
Gulch south of its intersection with Lawrence Street in Helena.
BCBS provided its employees with a fifteen-minute break in the
morning and another fifteen-minute break in the afternoon.
Employees customarily took the afternoon break sometime between
2:00 and 3:30 p.m. A substantial number of BCBS employees walk
during their breaks and Carrillo testified that she walked during
ninety percent of her breaks. While BCBS encouraged its employees
to engage in a healthy lifestyle, it did not require them to walk
during breaks or even to take breaks; employees were free to take
them or leave them.
A small break room was located in the basement of the Donovan
building where Carrillo worked. Approximately fifty to seventy-
five employees worked in the Donovan building and employees at the
3
Donovan building often walked to the Fuller building for breaks.
The Fuller building is a second BCBS office which is located on the
northwest corner of Fuller and Lawrence streets, approximately one
block away from the Donovan building. Employees also walked to
other nearby businesses to take their breaks and BCBS also had a
room in the Downtown Athletic Club for use as a break room.
Testimony also revealed that BCBS permits its employees to
give going-away parties for employees leaving BCBS or transferring
to other departments. The parties were, at times, held during
breaks and planning could be done anytime during the day. On their
breaks, employees would sometimes buy going-away gifts from nearby
merchants.
At the time of the accident, Carrillo's direct supervisor,
Beth Lamping, was leaving Carrillo's unit and transferring to
another job at BCBS. Therefore, Carrillo and her co-employees
planned a going-away party for Lamping and decided to buy her a
coffee mug to replace the one she had broken.
At approximately 2:15 p.m. on March 2, 1993, Carrillo left the
Donovan building to go to the Holter Museum gift shop, which is
approximately one and one-half blocks away from the Donovan
building, to buy Lamping a replacement mug. Carrillo was not
required by BCBS or her supervisor to purchase a mug for Lamping.
She intended to return to the Donovan building to pick up a
co-worker, then proceed to the Fuller building during her break.
However, while on her way to the Holter Museum, a car struck her
4
while she was crossing Lawrence Street and she sustained the
injuries for which she now seeks compensation.
Ultimately, the BCBS employees held the party for Lamping
during work hours and Carrillo's co-workers drove to Carrillo's
house to take her to the party.
After a trial, the Workers' Compensation Court concluded that
Carrillo was not entitled to workers' compensation benefits because
she did not suffer an injury arising out of and in the course of
her employment.
DISCUSSION
Did the Workers' Compensation Court err when it concluded that
Carrillo's injury did not arise out of and in the scope of her
employment?
We review the Workers' Compensation Court's conclusions of law
to determine whether they are correct. CNA Ins. Cos. v. Dunn (1995) , 273
Mont. 295, 298, 902 P.2d 1014, 1016; Stordolenv. Ricci’sFoodFarm (1993),
261 Mont. 256, 258, 862 P.2d 393, 394. We review the Workers'
Compensation Court's findings of fact to determine whether
substantial evidence supports the findings. Wunderlich v. Lumbermens Mut.
Casual&Co. (1995), 270 Mont. 404, 408, 892 P.2d 563, 566 (citing Smith
v. UnitedParcelServ. (1992), 254 Mont. 71, 75, 835 P.2d 717, 720).
Section 39-71-407(l), MCA, provides in part that ' [elach
insurer is liable for the payment of compensation . . to an
employee of an employer that it insures who receives an injury
5
arising out of and in the course of emulovment." (Emphasis added.)
We have stated that:
N o exact formula can be laid down which will
automatically solve every case involving the question of
whether an accident arises out of and in the course of
employment, but each case must depend upon its particular
facts and circumstances.
(1949),
Parfollv.AnacondaCopperMiningCo. 122 Mont. 305, 310-11, 203 P.2d
974, 977.
In this case, the Workers' Compensation Court relied on
§ 39-71-407 (3), MCA, to reach its conclusion that Carrillo did not
sustain her injury during the course and scope of employment.
Section 39-71-407(3), MCA, pertains to traveling employees and
provides that "[aIn employee who suffers an injury . . . while
traveling is not covered by this chapter unless" certain conditions
are met. Subsections (a) and (b) of 39-71-407(3), MCA, delineate
when such injuries would be compensable and provide:
(a)(i) the employer furnishes the transportation or
the employee receives reimbursement . . . and
(ii) the travel is necessitated by and on behalf of
the employer as an integral part or condition of the
employment; or
(b) the travel is required by the employer as part
of the employee's job duties.
The Court first concluded that Carrillo was traveling when
injured by stating:
The word "traveling" is not specifically defined in
the Workers' Compensation Act but in its ordinary and
usual sense it means going from one place to another.
Larson's treatise on workers' compensation similarly
refers to "traveling employees" as "employees whose work
entails travel away from the emulover's premises."
1A Larson Workmen's Compensation Sec. 25.00 at 5-275
6
(underlining added). Claimant was going from her place
of employment to a different place.
The Court then analyzed § 39-71-407(3), MCA, and relevant cases to
conclude that the injuries Carrillo suffered while traveling were
not compensable.
Carrillo contends that the court incorrectly concluded that
the traveling statute, 5 39-71-407(3), MCA, controlled the case.
Instead, she contends that she was not traveling, but was on a
"break" when injured and therefore that she was within the course
and scope of her employment. In support of her contention that she
was on break, she refers to her uncontroverted testimony at trial.
Her attorney asked: "If you were to say, 'yes, I was on break,' or
'No, I was not on break,' when you left the Donovan Building to go
to the Halter Museum, would you say yes or no?" and she replied,
"Yes . "
The Workers' Compensation Court made no specific finding that
Carrillo was or was not on break at the time of her injury. The
only finding that refers to her afternoon break was Finding No. 10
in which the court stated that Carrillo
left the Donovan building to go to the Halter Museum gift
shop, which is approximately a block and a half away from
the Donovan building, to buy Lamping a replacement mug.
She intended to return to the Donovan building to pick up
a co-worker, then proceed to the Fuller building for a
break.
Liberty contends that when the court found that Carrillo was
going on break after getting the gift, the court in fact found that
she was not on break while getting the gift and that substantial
7
evidence supports that finding. However, there is nothing
inconsistent with her being on break at the time of her injury and
her intention to continue her break at another location later on.
In fact, the uncontroverted evidence and the Workers' Compensation
Court's findings compel just that conclusion.
In her testimony, Carrillo described the break policy as
follows:
The breaks were normally--sometimes you didn't take a
break, sometimes you took a 15- or a 20-minute break,
sometimes you just needed to get away and some people
would be gone longer than that. It was kind of an
unwritten code.
When asked if she was free to take a break when she wanted during
the break period, which she said occurred between "2:OO to 3:30 or
something," Carrillo replied yes and also testified that she was
free to leave the building and to go anywhere she wanted.
Here, Carrillo left the Donovan building at approximately 2:15
p.m. which is within the period of time that afternoon breaks are
normally taken by BCBS employees. She planned to walk to a gift
shop one and one-half blocks away and testified that she knew
exactly what she needed to find. While true that Carrillo
testified, as the Workers' Compensation Court found, that she was
going to return to the Donovan building to pick up a co-worker,
then proceed to the Fuller building "on break," she also testified
that it would take her, "two to three minutes to get to the Holter
Museum; two to three minutes to look for the mug; two to three
minutes to get back to the Donovan Building, and another two to
three minutes to pick up Sandy and get over to the Fuller Building;
two to three minutes to pick up whatever we were going to buy there
at the Fuller Building, and another two to three minutes to get
back." Therefore, she testified that her planned activities would
have taken between twelve and eighteen minutes to complete. And,
had Carrillo not been injured, she would have completed her
activities within the time allocated for BCBS employee breaks--
fifteen to twenty minutes.
Therefore, based on the undisputed evidence and the Workers'
Compensation Court's finding that this was a typical way in which
BCBS employees spent their break time, we conclude that Carrillo
was on break when she was walking to the Holter museum and was hit
by a car and injured.
Having concluded that Carrillo was on break when injured, we
must determine if and when an employee injured during an authorized
break is within the course and scope of employment. We have not
previously decided this issue. In fact, only two Montana cases
involve somewhat similar circumstances- -Shicklandv.StateCompensationMutual
Ins. Fund (19951, 273 Mont. 254, 901 P.2d 1391, and Gearyv.AnacondaCopper
Co. (1947), 120 Mont. 485, 188 P.2d 185.
In Geary, the worker suffered an eye injury during a lunch hour
game of handball on the employer's premises. The employer required
the employees to remain on the premises in an "on call" status
during the lunch period. Some of the employees had been playing
handball during the lunch hour for approximately three months prior
9
to the accident. On some occasions, the claimant's foreman had
participated in the game and in fact was present on the day of the
accident. Geary , 120 Mont. at 486, 188 P.2d at 483. In that case,
we looked at case law from other jurisdictions, indicated the
importance of the employer's knowledge of the activity and the
employer's requirement that the employees remain on call, noted
that the Workers' Compensation Act was to be construed liberally,
and found the injuries compensable. Geary , 120 Mont. at 490, 188
P.2d at 187.
While we awarded compensation in Geary, it differs from this
case in several respects. When we decided Geary, a different
version of the Act applied and we were required to liberally
construe the Act. Most importantly however, according to Larson's
Workmen's Compensation Law, Geary differs because the injury
occurred during a lunch break rather than during a "coffee break."
In his treatise, Larson differentiates between injuries which
occur during unpaid lunch breaks and those which occur during
shorter, paid coffee breaks. See1 Larson's Workmen's Comoensation
Law
-I § 15.51 at 4-157, and 5 15.54 (1996). Specifically, unpaid
lunch breaks are treated like trips at the beginning or end of a
workday and involve the "going to and from" rule with its
exceptions, whereas shorter paid breaks do not involve the "going
to and from” rule with its exceptions. See generally 1 Larson,
§ 15.51; § 15.54.
10
The Montana Department of Labor and Industry also recognizes
the distinction between coffee breaks and longer meal periods:
Bona fide meal periods. Bona fide meal periods are
not work time. Bona fide meals do not include coffee
breaks or time for snacks. These are rest periods. The
employee must be completely relieved from duty for the
purposes of eating regular meals. Ordinarily 30 minutes
or more is long enough for a bona fide meal period. A
shorter period may be long enough under special
circumstances. The employee is not relieved if he is
required to perform any duties, whether active or
inactive while eating. For example, an office employee
who is required to be at his machine is working while
eating.
Rule 24.16.1006(Z) (a), ARM.
Larson concludes that this difference between coffee breaks
and lunch breaks is justified "because normally the duration of the
lunch period, when lunch is taken off the premises, is so
substantial and the employee's freedom of movement so complete that
the obligations and controls of employment can justifiably be said
to be in suspension during this interval." 1 Larson, § 15.54 at
4-183.
We have previously determined that § 39-71-407(3), MCA, the
statute relied on by the Workers' Compensation Court to decide this
case, codified Montana's going to and from rule:
In 1987, the legislature amended 5 39-71-407, MCA, to
codify exceptions to the general workers' compensation
rule that actions occurring when employees are going to
or coming from work are not within the course and scope
of their employment.
D&v. TradeStreet,Inc. (1993), 258 Mont. 349, 352, 854 P.2d 828, 829.
Therefore, according to Larson's analysis of the difference between
lunch breaks and coffee breaks, while § 39-71-407(3), MCA--the
11
codification of Montana's going to and from rule--applies to
injuries sustained during lunch hours, it does not concern injuries
which a worker suffers while on coffee break. Because we have
previously determined that Carrillo was on break when injured, the
Workers' Compensation Court erred when it decided this case based
solely on Carrillo's failure to meet the requirements of
§ 39-71-407(3), MCA. Reliance on this statute was also erroneous
because it first required the Workers' Compensation Court to
conclude that Carrillo was "traveling" at the time of her injury.
In order to arrive at that conclusion, the court relied on its
common understanding of the term and a misapplication of Larson's
reference to "traveling employees" at 1A Larson's Workmen's
Compensation Law, 5 25.00 at 5-275. However, according to Black's
Law Dictionarv 1500 (6th ed. 1990), to travel is "[tlo go from one
place to another at a distance; to journey." It does not seem to
include trips of one and one-half blocks.
Recently, in Strickland, we considered whether a person injured
after having left work during her work shift was injured during the
course and scope of her employment. Sirickland, 273 Mont. at 257-59,
901 P.2d at 1393-94. We held that a person injured while on a
personal errand was not acting within the course and scope of her
employment when injured. S@ickland, 273 Mont. at 259, 901 P.2d at
1394. In that case, we agreed with both the Workers' Compensation
Court's finding that claimant left work on a personal errand and
12
with its conclusion that claimant was outside the course and scope
of her employment
In Strickland we used § 39-71-407(3), MCA, as did the Workers'
Compensation Court, to conclude that claimant's injuries were
outside the scope of employment; however, in Shckland, we did not
determine whether an injury suffered while on a break was
compensable. Strickland neither contested the applicability of
5 39-71-407(3), MCA, nor did she contend that she was injured while
on break. Instead, Strickland asked us to conclude that she was
within the course and scope of her employment despite the
determination that she was on a personal errand. Strickland, 273
Mont. at 258, 901 P.2d at 1393.
Because neither Strickland nor Geary apply, we have not
specifically dealt with the question presented here. However, case
law from other jurisdictions and Larson's discuss the issue. Larson
states:
[Nlowthat the coffee break or rest break has become
a fixture of many kinds of employment, close questions
continue to arise on the compensability of injuries
occurring off the premises during rest periods or coffee
breaks of various durations and subject to various
conditions. It is clear that one cannot announce an
all-purpose "coffee break rule," since there are too many
variables that could affect the result . . . [such as1
the duration . . whether the interval is a risht fixed
by the emolovment contract, whether it is a paid
interval, whether there are restrictions on where the
emplovee can qo during the break, and whether the
emplovee's activitv durinq this period constituted a
substantial personal deviation.
The operative principle which should be used to draw
the line here is this: If the employer, in all the
13
circumstances, including duration, shortness of the
off-premises distance, and limitations on off-premises
activity during the interval can be deemed to have
retained authority over the employee, the off-premises
injury may be found to be within the course and scope of
employment.
1 Larson, § 15.54, at 4-183 through -85 (footnotes omitted)
(emphasis added).
Consistent with Larson, several states allow compensation for
injuries sustained during coffee breaks. For example, in Jordanv.
Western Electric Co. (Or. App. 1969), 463 P.2d 598, 599, claimant
suffered an injury off the premises while returning from a coffee
break. While break facilities were available on the premises,
employees customarily went to the nearest restaurant, approximately
two and one-half blocks away. Jordan, 463 P.2d at 599. An award of
compensation was affirmed because the coffee break was for the
employer's benefit as well as the employee's, it was contemplated
under the contract of employment, it was acquiesced in by the
employer, there was an element of control because the supervisor
accompanied the employees, and the claimant was paid for the coffee
break. Jordan, 463 P.2d at 601-02.
In Mellisv. McEwen (Or. 1985), 703 P.2d 255, an employee suffered
an injury in a public cafeteria during a fifteen-minute break. The
Oregon court applied the Jordan factors, found claimant's injury was
within the course and scope of employment, and stated: "[Wle find
that a 15 minute break is a 'typical kind of coffee break activity
that is contemplated by an employer' and that claimant's activity
14
was not a departure from the employment relationship." Mellis , 703
P.2d at 257.
In Roache v. Industrial Commission ofthe State of Colorado (Co10 . App . 1986 ) ,
729 P.2d 991, the claimant left her work place and was injured in
an explosion in a convenience store where she had gone during a
fifteen-minute paid break. The court adopted the Larson analysis
and awarded compensation:
Determination of these issues rests upon inquiry
into such matters as: whether the break period is of a
duration so short as to support the inference that
employment activities were virtually uninterrupted;
whether it is provided for by employment contract;
whether it is a paid interval; whether the employer
permits off-premises breaks; whether the off-premises
location is in close proximity to the employment site;
and whether there are limitations on where the employee
may go during break.
. . . The break period was of short duration and it
was a paid interval. The store was located not far from
the claimant's place of employment, and the visit was for
the basic purpose of rest and confinement.
Roache , 729 P.2d at 992 (citations omitted).
In a California case, an employee suffered an injury when,
during a paid coffee break, she and several other employees went
swimming in a canal a short distance from the employer's property.
State Camp. Ins. Fund v. Workmen’s Camp. Appeals Bd. (Cal. 1967) , 434 P .2d 619,
620. The court found that the employer at least tolerated similar
acts and awarded compensation. State Camp. Ins. Fund, 434 P.2d at 621.
Therefore, other courts have found injuries which occurred
during coffee breaks compensable and in doing so have looked to the
15
considerations set forth in Larson. One of those factors is
whether the employee was paid during the break. An uncompensated
employee should be free to do whatever he or she wishes, whereas a
paid employee is not. See King Waterproofing Co. v. Slovksy (Md . 19 8 7 ) , 524
A.2d 1245, 1249 (distinguishing between short paid breaks and
longer unpaid lunch breaks). Carrillo testified that BCBS paid her
during her breaks, and therefore, Carrillo satisfies this factor.
As to Larson's criteria that the right to a break be fixed in
the employment contract, Carrillo testified that BCBS employees
were entitled to two breaks, one in the morning and one in the
afternoon. Not only did Carrillo testify to her right to breaks,
but also, the Montana Department of Labor and Industry Regulations
defines rest period as hours "worked":
Rest. Rest periods of short duration, running from
5 minutes to about 20 minutes, are common in industry.
They promote efficiency of the employee and are
customarily paid as working time. They must be counted
as hours of work. Compensable time of rest periods may
not be offset against other working time such as
compensable waiting time or on-call time.
Rule 24.16.1006(l), ARM (emphasis added). The Department of Labor
also recognizes that employers provide breaks to their employees,
that these breaks serve the employer's interests, and that they are
not a departure from work time.
A third factor is "whether there are restrictions on where the
employee can go during the break." Liberty asserts that evidence
does not show that Carrillo's employer exercised any control over
16
her activity during that break, but instead shows that it simply
set general boundaries within which the break could be taken and
set limitations on the duration of the break. However, while some
of the testimony supports Liberty's assertion, testimony also
reveals that Carrillo had in the past been asked by her supervisor
not to leave the building because she might be needed and had also
been asked to postpone her break. Furthermore, Carrillo testified
that, on occasion, someone had been dispatched to find her while on
break and to bring her back. Therefore, although BCBS only set
boundaries within which the break could be taken and set
limitations on the duration of the breaks, these limitations
amounted to the requisite "restrictions on where the employee can
go during the break" and therefore, Carrillo also satisfies this
element.
Finally, we look at whether the employee's activity during
this period constituted a substantial personal deviation. In this
case, Carrillo's injury occurred while she walked to a gift shop
one and one-half blocks away from her work place. Carrillo knew
exactly what she needed and testified that her planned activities
would have taken between twelve and eighteen minutes to complete.
Carrillo also testified that her employer not only acquiesced in
the employees' departure from the premises during break, but gave
them little choice because of the inadequate break facilities at
the Donovan building where she worked. Finally, she also testified
17
that she walked during ninety percent of her breaks and that her
director walked with her on occasion.
Carrillo also testified about the parties that employees at
BCBS held for others who were transferring or leaving. Testimony
revealed that employees expected these parties, that both the
planning and the parties occurred during work hours, and that
supervisors knew about and participated in these parties. In this
case, the employees planned a party for a supervisor who was
leaving and planned to give her a particular mug; Carrillo went to
purchase the mug at the Holter gift shop when she was injured.
Because Carrillo usually walked on breaks, because she would have
been on a break of normal duration if not injured, and because she
went to the gift shop to look for a gift for use at one of the BCBS
parties, her activity during the break period did not constitute a
substantial personal deviation.
Therefore, Carrillo meets the factors Larson sets forth for
determining whether one's injury during a coffee break is within
the course and scope of employment. Carrillo had a right to a
break for which she was paid; BCBS placed restrictions on where the
employees could go during the break; and Carrillo's activity did
not constitute a substantial personal deviation from her
employment.
For these reasons, we conclude that Carrillo was acting within
the course and scope of her employment when injured and the
Workers' Compensation Court erred when it concluded otherwise. We
18
therefore reverse the order and judgment of the Workers'
Compensation Court.
We concur:
Justices
Justice William E. Hunt, Sr., did not participate in this decision.
19
Justice Charles E. Erdmann dissenting.
I respectfully dissent from the Court's opinion.
I do not agree with the majority that the Workers'
Compensation Court made no finding that Carrillo was or was not on
her break at the time of her injury. In Finding of Fact No. 10,
the Workers' Compensation Court found that Carrillo left the
Donovan building to go to the Halter Museum gift shop, after which
she intended to return to the Donovan building to pick up a
co-worker and then go on break. This finding accurately reflects
Carrillo's testimony that after she purchased the mug she planned
to return to the Donovan building to go on break with her
co-worker.
Carrillo's deposition states as follows:
Q. Why don't you tell me just in your own words, take as
long or short as you like, what happened on March 2nd,
1993 when you got hurt. Why don't you start with what
you were doing just before you went on break.
A. Well, we had just finished or we had started to
discuss and were contemplating what we were going to do
for Beth, my supervisor, for her party and we were trying
to decide who we were going to have come, what we were
going to have, what kind of present, if we were still
going to continue, to look for the present that I hadn't
been able to find. I had spoken with - I don't remember
if it was Kelly or somebody there - they all knew that I
had anticipated going up to the Halter Museum to look for
the present for Beth. I had talked to Sandy before I
left the building and asked her if she wanted to come
along and she said "No."
Q. Excuse me, Sandy Warren?
A. Yes. And she said, "No." She says, "When you get
through with the Halter Museum, why don't you come back,
pick me up, and we'll go over to the Fuller Building on
break," and I said "Okay," and I left the building.
Q. You left the building and started to cross the
intersection and you were hit by a vehicle?
A. Right.
Carrillo testified to the same effect at trial:
Q. This morning you testified about Sandy Warren calling
and asking you to go on break, and I believe you told her
that you wanted to go to the Holter Museum first; is that
right?
A. Yes.
Q. You agree, don't you, that it was your intent after
you went to the Halter Museum that you were going to go
back and get Sandy and then you were going to go on break
on the day you were hit by that vehicle?
A. Would you rephrase that, please?
Q. Yes.
[Court reporter read back the previous question]
A. Yes.
Later in her testimony, Carrillo's attorney attempted to
rehabilitate her deposition and her earlier testimony with the
following question and answer:
Q. Because it's critical to this situation, if you were
to say, "Yes, I was on break," or "No, I was not on
break," when you left the Donovan Building to go to the
Holter Museum, would you say yes or no?
A. Yes.
The majority refers to this latter question and answer as
Carrillo's "uncontroverted testimony at trial" and relies on it
exclusively. The record is clear, however, that Carrillo herself
controverted that testimony.
This Court's function on review is confined to determining
whether there is substantial evidence to support the findings and
21
not to determine whether there is sufficient evidence to support
contrary findings. Davis v. Jones (1985), 216 Mont. 300, 303, 701
P.2d 351, 353. Here, the Workers' Compensation Court observed
Carrillo's demeanor, assessed her conflicting testimony and made a
finding accepting that portion of her testimony that she intended
to go on break after shopping. There is substantial evidence in
the record--through Carrillo's own testimony--that she was on a
personal errand when she was injured and that she intended to start
her break when she returned to the Donovan building. The majority
ignores Carrillo's testimony and the standard this Court must apply
when conflicting evidence exists. Where there is conflicting
evidence, it is the Workers' Compensation Court's duty, and not
this Court's, to resolve such conflicts. Olson v. Westfork
Properties, Inc. (19761, 171 Mont. 154, 157, 557 P.2d 821, 823.
This Court reviews the Workers' Compensation court ' s
conclusions of law to determine whether they are correct. CNA Ins.
Co. v. Dunn (1995), 273 Mont. 295, 298, 902 P.2d 1014, 1016. In
the present case, I would hold that the Workers' Compensation Court
reached the correct result, although it improperly relied on § 39-
71-407(3), MCA, in doing so. The Workers' Compensation Court
analyzed Carrillo as a "traveling employee" under 5 39-71-407(3),
MCA, and concluded that her injury did not arise out of and in the
course of employment. A "traveling employee" is defined as an
employee "whose work entails travel away from the employer's
premises." See Larson's Workmen's Comuensation Law, vol. lA,
5 25.00 at 5-275 (1996). As Carrillo was not required to travel
22
from the Donovan building, I agree with the majority that 5 39-71-
407(3), MCA, is not applicable to this case.
Section 39-71-407(l), MCA (1991), states in part that "[e]very
insurer is liable for the payment of compensation . . . to an
employee . . who receives an injury arising out of and in the
course of his emplovment." (Emphasis added.) The injuries must
have arisen out of and in the course of her employment in order to
impose liability on the insurer.
In Courser v. Darby School District No. 1 (19841, 214 Mont.
13, 692 P.2d 417, we identified four controlling factors to
determine whether an injury is work-related: (1) whether the
activity was undertaken at the employer's request; (2) whether the
employer, either directly or indirectly, compelled the employee's
attendance at the activity; (3) whether the employer controlled or
participated in the activity; and (4) whether both employer and
employee mutually benefited from the activity. Courser, 692 P.2d
at 419. Applying the facts of the present case to the above
factors leads to the clear conclusion that Carrillo's injuries were
not work-related.
Blue Cross Blue Shield (BCBS) did not request that Carrillo
make the trip to the Halter Museum to purchase the coffee mug nor
did it directly or indirectly compel the errand. Carrillo's
supervisors did not control or participate in the quest for the mug
and even though the gift and employee party may have boosted
employee morale, such a general benefit to the employer is not
enough by itself to bring such recreational activity within the
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course of employment boundaries. See Larson's Workmen's
Comoensation Law, vol. lA, 5 22.33 at 5-170 and -171 (1996). This
Court has previously held that a person injured while on a personal
errand is not acting within the course and scope of her employment
when injured. Stricklandv. State Comp. Mut. Ins. Fund (1995), 273
Mont. 254, 259, 901 P.2d 1391, 1394.
In the present case, the majority errs by making a finding of
fact that Carrillo was on her break instead of reviewing whether
substantial evidence supports the Workers' Compensation Court's
finding that she intended to go on break after returning from the
Holter Museum gift shop. Not surprisingly, the majority then
places much reliance on Professor Larson's discussion of whether
injuries which occur off the employer's premises during rest
periods or coffee breaks are compensable. The majority's entire
discussion of the Larson criteria is premised on its own finding
that Carrillo was on her break when the injury occurred. On the
contrary, I submit that substantial evidence supports the Workers'
Compensation Court's finding that she intended to go on break after
returning from the museum gift shop, and therefore, the Larson
criteria do not apply. Nevertheless, even assuming arguendo that
the majority is correct and Carrillo was on her break, her injuries
are not compensable even under the Larson criteria.
Larson sets forth the following factors: (1) the duration of
the break and whether the interval is a right fixed by the
employment contract; (2) whether it is a paid interval; (3) whether
there are restrictions on where the employee can go during the
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break; and (4) whether the employee's activity during the break
period constitutes a substantial personal deviation. Larson,
vol. 1, § 15.54, at 4-184 and -185. Larson states that:
If the employer, in all the circumstances, including
duration, shortness of the off-premises distance, and
limitations on off-premises activity during the interval
can be deemed to have retained authority over the
employee, the off-premises injury may be found to be
within the course of employment.
Larson, vol. 1, 5 15.54, at 4-185.
In the present case, I agree that as a BCBS employee Carrillo
was entitled to a break and was paid for the time. However, I do
not agree with the majority that BCBS restricted Carrillo on where
she could go during the break. The majority opinion correctly
notes that Carrillo testified that the breaks were not required and
that she was free to leave the building during her break and to go
anywhere she wanted. If she chose to undertake a personal errand
during her break and was injured, she was outside the scope of her
employment. Moreover, I do not agree with the majority's
conclusion that her activity during the break did not constitute a
substantial personal deviation. On the contrary, Carrillo decided
to run a personal errand beyond any authority retained by BCBS.
Carrillo was not required by BCBS or her supervisor to purchase the
mug and, even though the journey was only one and one-half blocks
away from the work place, the purpose was a personal one. The trip
to obtain the mug therefore constituted a substantial personal
deviation from her employment.
The Workers' Compensation Court made a finding that Carrillo
was not on her break when the injury occurred and that finding is
supported by substantial evidence, including Carrillo's own
testimony. Under the traditional Courser criteria and based on our
previous holding in Strickland, I would hold that Carrillo was
injured when she was on a personal errand outside the scope of her
employment with BCBS. Her injuries did not arise out of the course
of her employment and therefore are not compensable.
I would affirm the judgment below.
c3czFxL
Justice
Justice Karla M. Gray joins in the foregoing dissenting opinion.
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Justice Terry N. Trieweiler specially concurring.
I submit the following concurring opinion in response to the
dissent.
The dissent seems to agree that Carol Carrillo's disability
benefits were denied by the Workers' Compensation Court for the
wrong leaSOIl. The dissent then goes on to argue that that
incorrect decision can be affirmed by taking a portion of her
testimony out of context and making a semantic argument that it
creates a conflict with other testimony regarding whether she was
or was not on break at the time of her injury.
However, a review of the entire record discloses that there is
only one point in the entire trial at which any witness is asked
directly whether Carol Carrillo was or was not on break at the time
she was injured. That point involved the question and answer cited
in the majority opinion and relied on for its result.
Nowhere in the entire record did anyone testify that Carol
Carrillo was not on break at the time of her injury.
On the other hand, in support of her unequivocal testimony
that she was on break, the following undisputed facts were
established by her testimony and the testimony of others:
1. Afternoon breaks were allowed during the period of time
from 1:30 to 3:00 p.m.
2. The length of time for a break was normally from fifteen
to twenty minutes.
3. During breaks employees were encouraged to leave their
work stations and even leave the building.
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4. Seventy-five to eighty percent of Blue Cross's employees
left the building during their break.
5. Carol Carrillo normally walked during her break and had
she not been on her way to the Halter Museum to pick up a mug for
her supervisor's party she would, in all likelihood, still have
been walking at the exact time and place where she was injured.
She walked ninety percent of the time during her afternoon break.
6. Carol Carrillo's accident occurred at 2:15 p.m. within
the normal parameters of her afternoon break.
7. Her break was something that was encouraged and provided
as a right of employment in the employee handbook, and during her
break she was paid.
8. Although she had to let other employees know where she
was going in case her employer needed to recall her, she was free
to go where she chose on break and it was not uncommon for
employees to go to the walking mall, the Sweetgrass Bakery,
Big Al's, the Common Market, the Federal Building, the City-County
Building, or to other local business establishments during their
break.
Some confusion has been created and it is, at best, minimal
confusion, due to the phraseology of questions or answers in which
she stated that after returning from the Museum she intended to
pick up a fellow employee and go to the Fuller Building to use
their vending machines while on break. At one place in the
transcript she states that she intended to go to the Fuller
Building while "on break." At another place she either states or
28
was told that they would go to the Fuller Building for break.
However, there is absolutely nowhere in the transcript where she or
anyone else states that she was not already on break at the time
that she was going to the Halter Museum. Furthermore, there is
nothing inconsistent with starting her break by picking up a gift
at the Holter Museum and continuing her break after picking up her
co-employee and going to the Fuller Building to pick up
refreshments. The record clearly establishes that all of these
matters could have been accomplished well within the time allowed
for afternoon breaks.
More importantly, neither is there any finding entered by the
Workers' Compensation Court to the effect that Carol was not on
break at the time of her injury. The finding made by the court and
relied on by the dissent is that after picking up her friend she
intended to go to the Fuller Building for break. However, once
again, that is not inconsistent with the fact that she was already
on break prior to picking up her friend. Had she not been on break
she could not have left the building in the first place.
Totally inconsistent with the dissent are the following
findings made by the Workers' Compensation Court:
1. Blue Cross Blue Shield provided its employees with a
fifteen minute break in the morning and another fifteen minute
break in the afternoon. (Finding No. 4)
2. Employees at the Donovan Building often walked to the
Fuller Building or other nearby locations (Coney Island, the Gold
Bar) to take their breaks. (Finding No. 5)
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3. A substantial number of employees walked during their
breaks. (Finding No. 6)
4. On their breaks, employees would sometimes buy going-away
gifts from nearby merchants. (Finding No. 7)
5. Claimant and her co-employees planned a going-away party
for claimant's supervisor and decided to buy her a replacement
coffee mug for the one she had broken. (Finding No. 9)
6. At approximately 2:15 p.m. on March 2, 1993, claimant
left the Donovan Building to go to the Halter Museum gift shop,
which is approximately a block and a half away from the Donovan
Building, to buy Lamping a replacement mug. (Finding No. 10)
I submit that there is no other conclusion that can be drawn
from these findings in combination with the undisputed testimony
other than that Carrillo was on break at the time of her injury.
us 6e
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