December 21 2007
DA 06-0826
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 357
MARIL BeVAN,
Petitioner and Appellee,
v.
LIBERTY NORTHWEST INSURANCE CORPORATION,
Respondent/Insurer and Appellant.
APPEAL FROM: The Workers’ Compensation Court,
Cause No. WCC 2006-1665,
Honorable James Jeremiah Shea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Larry W. Jones, Law Offices of Larry W. Jones, Missoula, Montana
For Appellee:
Leslae J. E. Dalpiaz, Leslae J. E. Dalpiaz, P.C., Missoula, Montana
Submitted on Briefs: October 3, 2007
Decided: December 21, 2007
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Liberty Northwest Insurance Corporation (Liberty) appeals from the judgment of
the Workers’ Compensation Court (WCC). We affirm.
¶2 We restate the issue as follows:
¶3 Did the WCC err when it concluded that BeVan’s injury occurred during the
course and scope of her employment?
BACKGROUND
¶4 On May 19, 2005, Maril BeVan (BeVan) was employed as a Blackfoot Telephone
Communications (Blackfoot) customer sales and service representative in Missoula,
Montana. BeVan had worked approximately five-and-a-half years for Blackfoot.
Blackfoot employees received a paid fifteen-minute break in the morning, a paid fifteen-
minute break in the afternoon, and an unpaid lunch break. Blackfoot employees were not
required to take breaks on Blackfoot’s premises and often went elsewhere during their
breaks. To insure sufficient representatives were present to meet its customers’ needs,
Blackfoot maintained a timesheet that employees were supposed to log out on when they
took a break. BeVan customarily took a one-hour lunch break from 1:00 p.m. to 2:00
p.m., a mid-morning break at approximately 11:15 a.m., and a mid-afternoon break
between 3:15 p.m. and 3:45 p.m.
¶5 On May 19, 2005, BeVan was unable to take her mid-morning break at the usual
time because she was busy assisting Blackfoot’s customers. BeVan also knew that she
was going to miss her usual lunch break because, on that day, Blackfoot required her to
attend a meeting during her lunch break. BeVan took her mid-morning break at
approximately 11:45 a.m. and drove from Blackfoot to her house to care for her dog.
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BeVan planned on returning to Blackfoot within the fifteen-minute break period, but she
was injured in a car accident on her return trip.
¶6 BeVan filed a workers’ compensation claim for her injury. Liberty, Blackfoot’s
insurance provider, maintained that BeVan’s injury did not occur within the course and
scope of her employment, and it denied her claim for compensation. BeVan then filed a
claim with the WCC seeking compensation for her injuries.
¶7 After considering BeVan’s trial testimony, BeVan’s deposition, and the deposition
of Drew Arnot, BeVan’s supervisor, the WCC determined that BeVan was injured during
a paid fifteen-minute break. Because the court determined BeVan was injured during her
break, the court applied the four factors set forth in Carrillo v. Liberty Northwest
Insurance and ultimately concluded that her injury was compensable. 278 Mont. 1, 922
P.2d 1189 (1996). Liberty appeals.
STANDARD OF REVIEW
¶8 We review the WCC’s findings of fact to determine whether they are supported by
substantial credible evidence, and we review the WCC’s conclusions of law to determine
whether they are correct. Simms v. State Compen. Ins. Fund, 2005 MT 175, ¶ 11, 327
Mont. 511, ¶ 11, 116 P.3d 773, ¶ 11. We apply the Workers’ Compensation Act (the
Act) effective at the time an employee suffers an injury. Wilson v. Liberty Mut. Fire Ins.,
273 Mont. 313, 316, 903 P.2d 785, 787 (1995). The 2003 version of the Act governed
when BeVan was injured on May 19, 2005.
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DISCUSSION
¶9 I Did the WCC err when it concluded that BeVan’s injury occurred
during the course and scope of her employment?
¶10 Employees who receive an injury “arising out of and in the course of
employment” are entitled to compensation. Section 39-71-407, MCA (2003). Liberty
asserts that BeVan’s injuries did not occur during the course and scope of her
employment because BeVan had abandoned her employment and suffered her injuries
while performing a personal errand, rather than during an authorized break. Liberty
reasons that BeVan’s failure to sign the log-out sheet when she left Blackfoot rendered
her break unauthorized. Thus, Liberty contends that the WCC should have applied § 39-
71-407(3), MCA (2003), which limits an insurer’s liability for traveling employees,
rather than the Carrillo factors. We review the WCC’s factual findings and legal
conclusions separately because the WCC’s factual finding that BeVan was injured while
on break determined which legal analysis it applied.
¶11 A. Does substantial credible evidence support the WCC’s finding that BeVan
was injured while on an authorized break?
¶12 The factors set forth in Carrillo apply to injuries occurring during authorized
breaks. Carrillo, 278 Mont. at 7, 922 P.2d at 1193. The WCC applied the Carrillo
factors after concluding that BeVan was injured during her mid-morning break. The
WCC’s determination that BeVan’s break was authorized is implicit in its application of
Carrillo. We review this finding to determine if it is supported by substantial credible
evidence. Simms, ¶ 11. Substantial credible evidence to support a finding of fact may be
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less than a preponderance of evidence but must be more than a mere scintilla. Simms,
¶ 11.
¶13 Drew Arnot, BeVan’s supervisor, testified that Blackfoot encouraged its
employees to take breaks, even if the employees took breaks at times other than
scheduled. Arnot testified that employees were not required to obtain supervisory
approval before taking a break, but that the employees were responsible for ensuring that
Blackfoot was adequately staffed. Arnot testified that employees were required to sign
out on the timesheet when they took their break. Arnot described BeVan as “fairly
consistent” about logging out and stated that he had no reason to reprimand her for
neglecting to sign out. Arnot also testified that he was unaware of any Blackfoot policy
governing whether employees could leave the premises while on break.
¶14 BeVan testified that she generally left Blackfoot’s premises on her breaks and that,
though Blackfoot had a break-area, a majority of the employees regularly left the
premises to run errands, get food and coffee, or take walks in the neighboring area.
BeVan testified that she was paid for these breaks. BeVan testified that on May 19,
2005, she postponed her mid-morning break because she was busy assisting customers
and because Blackfoot had scheduled a meeting during her normal lunch break. She
stated, that “to do [her] work duties, [her] schedule was juggled around to help the
company.” BeVan testified that she received Arnot’s approval before leaving because
she went on break later than usual. BeVan further testified that the log-out timesheet’s
purpose was administrative: representatives logged out to ensure appropriate floor-
coverage to assist Blackfoot’s customers. BeVan testified that she regularly logged out
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and that she was unaware of an employee ever receiving a reprimand for failing to log
out.
¶15 Liberty presented no evidence that filling out the log-out timesheet was a
prerequisite to an authorized break or that the timesheet served any purpose other than
administrative. Liberty presented no evidence that Blackfoot employees who failed to
log out were not compensated for their breaks. Nor did Liberty present any evidence that
employees who failed to log out received reprimands of any sort. We conclude that
substantial credible evidence exists to support the WCC’s finding that BeVan was injured
while on an authorized paid fifteen-minute break.
¶16 B. Did the WCC correctly conclude that BeVan’s injury was compensable?
¶17 Our conclusion that BeVan’s injury occurred during an authorized break does not
compel the conclusion that she suffered a compensable injury. We evaluate four factors
to determine whether an employee’s injury while on break is compensable: (1) whether
the employee was paid during the break, (2) whether the employment contract entitled the
employee to the break, (3) whether restrictions limited where the employee could go
during the break, and (4) whether the employee’s activity constituted a substantial
personal deviation. Carrillo, 278 Mont. at 11-12, 922 P.2d at 1195-96. The WCC
analyzed these factors and concluded that BeVan’s injury arose during the course and
scope of her employment and thus was compensable. We review the WCC’s conclusions
of law for correctness. Simms, ¶ 11.
¶18 Regarding the first and second Carrillo factors, the WCC heard testimony that
clearly established that BeVan’s injury occurred while on a paid break furnished by
Blackfoot. Arnot testified that Blackfoot paid its employees for the morning and
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afternoon breaks. He further testified that the paid breaks were an employee benefit and
that Blackfoot encouraged its employees to take breaks. BeVan also testified that she
was authorized to take breaks and that Blackfoot paid her for her morning and afternoon
breaks. The WCC found that Blackfoot paid its employees during the allowed fifteen-
minute breaks, and it found credible BeVan’s testimony that her injury occurred during
her paid fifteen-minute break; these findings weigh in favor of allowing compensation for
an injury occurring during an authorized break.
¶19 We held in Carrillo that the third factor—restrictions limiting where the employee
could go during the break—supported allowing compensation when an employer set
“boundaries within which the break could be taken and set limitations on the duration of
the breaks[.]” Carrillo, 278 Mont. at 11, 922 P.2d at 1196. We found significant in
Carrillo that the employee previously had been asked to postpone her breaks, to take her
breaks on the premises, and to return early from her breaks. We concluded that these
boundaries and limitations favored allowing compensation because they amounted to
restrictions limiting where employees could go during their breaks.
¶20 In this case, the WCC noted in its conclusions of law that both BeVan and Arnot
testified regarding Blackfoot’s set parameters for the allowed breaks, such as limiting the
break’s duration to fifteen minutes and requiring employees to ensure there was sufficient
in-store coverage before going on break. Additionally, BeVan testified that customer
service representatives would have to postpone breaks and occasionally received no
breaks because “the customer always comes first.” BeVan also testified that she had to
make up the time if she returned more than a few minutes late from her break. Though
Blackfoot did not require its employees to remain on the premises and apparently even
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acquiesced in its employees leaving the premises, our inquiry of Carrillo’s third factor
supports allowing compensation because Blackfoot set “boundaries within which the
break could be taken and set limitations on the duration of the breaks” when it limited the
duration of breaks to fifteen minutes and conditioned the availability of breaks on
adequate coverage, occasionally resulting in postponement or loss of the break. Carrillo,
278 Mont. at 11, 922 P.2d at 1196.
¶21 The final factor concerns whether the employee’s activity constituted a substantial
personal deviation. Carrillo, 278 Mont. at 12, 922 P.2d at 1196. In Carrillo, an
employee was injured while walking to a gift shop during her break. We noted that the
employee knew what she needed and that her planned activities would be accomplished
within her allotted break time. The employee also testified that her employer allowed
employees to leave the premises and maintained inadequate break facilities. She further
testified that she went on walks during 90 percent of her breaks. We held that the
employee’s activity was not a substantial personal deviation because she regularly
walked on her breaks, she would have returned from break within the normal duration
had she not suffered an injury, and because she went to the gift shop to purchase a gift for
a work party. Carrillo, 278 Mont. at 12, 922 P.2d at 1196.
¶22 In this case, the WCC heard testimony from BeVan that she regularly left
Blackfoot and went home on her breaks. The WCC heard testimony that Blackfoot had
no policy restricting its employees from leaving the premises during breaks and that,
though Blackfoot had a break-area, the majority of its employees actually left Blackfoot’s
premises during their breaks to run errands or walk in the neighboring areas. The WCC
found that BeVan was unable to take her break at the usual time on May 19, 2005,
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because she was assisting Blackfoot’s customers. The WCC further found that BeVan
was required to attend a work-related meeting during her normal lunch hour. BeVan
testified that because of the meeting she was unable to take her normal lunch break, and
thus, she used her mid-morning break to go home and care for her dog. BeVan testified
that her work schedule was rearranged to help Blackfoot. Finally, BeVan testified that
she was able to go home, care for her dog, and return to work within the allotted fifteen-
minute break period.
¶23 We conclude that BeVan’s activity was not a substantial personal deviation
because she regularly left work on her breaks; she would have returned from break within
the allotted fifteen minutes had she not been in a car accident; Blackfoot clearly
acquiesced to its employees leaving the premises during break, regardless of the
employees’ activities; and because Blackfoot’s convenience was the reason for BeVan’s
late break—she could not take her normal break because she was helping Blackfoot’s
customers, nor could she go home on her usual lunch break because Blackfoot required
her to attend a meeting during that period. Our analysis of Carrillo’s fourth factor
supports the District Court’s conclusion that BeVan was injured during the course and
scope of her employment.
¶24 On appeal, Liberty does not challenge the WCC’s conclusions of law as to the
Carrillo factors, but argues instead that we should employ alternate rules to decide this
case. Specifically, Liberty contends that we should overrule Carrillo and, in its place,
apply the “going and coming” rule, codified at § 39-71-407(3), MCA (2003), and our
precedent from Strickland v. State Compen. Mut. Ins. Fund, 273 Mont. 254, 901 P.2d
1391 (1995). Section 39-71-407(3), MCA (2003), limits an insurer’s liability for
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employees injured while traveling. Liberty asserts that the Carrillo and Strickland
holdings are inconsistent and disparages this Court for “rid[ing] out in two directions at
the same time on the same issue – an injury while traveling.”
¶25 We determined in Carrillo that, though applicable to lunch breaks, § 39-71-
407(3), MCA, did not apply to breaks of shorter duration, such as coffee breaks; instead
we adopted from Arthur Larson’s Workers’ Compensation treatise the four factors set out
above to determine whether injuries sustained during shorter breaks fall within the course
and scope of employment. Arthur Larson & Lex K. Larson, Larson’s Workers’
Compensation Law vol. 1, § 13.05[4], 13-62 (Matthew Bender 2007) [hereinafter
Larson’s]; Carrillo, 278 Mont. at 8, 12, 922 P.2d at 1194, 1196. Larson’s notes that the
“going and coming” rule properly applies to lunch breaks because the duration “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.” Larson’s at § 13.05[4], 13-61. Coffee breaks and the like, however, present a
closer question. Larson’s at § 13.05[4], 13-61. We adopted the four-factor inquiry from
Larson’s to address the close questions presented by injuries occurring during authorized
breaks. The operative principle of the four-factor inquiry focuses on whether the
employer retains authority over the employee during the shorter break periods. Larson’s
at § 13.05[4], 13-62. The holdings of Carrillo and Strickland are different because the
cases presented different factual scenarios, not because, as Liberty suggests, this Court is
developing parallel lines of authority. The WCC applied the correct law in effect at the
time of BeVan’s injury, and we decline Liberty’s plea to overrule Carrillo.
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¶26 Strickland, similarly, is inapplicable to this case because the WCC in Strickland
found as a threshold matter that the employee in that case was injured while on a personal
errand, not while on an authorized break. We concluded that substantial evidence
supported the WCC’s finding that Strickland was injured while on a personal errand, and
thus, we applied § 39-71-407(3), MCA, to determine whether her injury occurred during
the course and scope of her employment and ultimately concluded that it did not.
Strickland, 273 Mont. at 259, 901 P.2d at 1394. In this case, the WCC made a finding of
fact that BeVan was on an authorized break; thus, the Carrillo factors are triggered rather
than § 39-71-407(3), MCA (2003).
¶27 Liberty generally asserts throughout its brief that BeVan’s injury cannot be
considered to arise out of the course and scope of her employment because she left
Blackfoot to care for her dog. Liberty further directs us to Larson’s which instructs that
even injuries occurring during authorized breaks may not be compensable:
The fact that the coffee break or rest period is a paid one, or for any
other reason might be presumptively within the course of employment,
does not of course mean that anything that happens during that span of time
is compensable. If the employee uses the interval, not for its basic purpose
of rest and refreshment, but for personal errands, such as cashing a check
at a bank, or doing some shopping for Christmas, or getting a tuberculin
shot checked, the employee leaves the scope of employment if the deviation
is such as to be called substantial.
Larson’s at § 13.05[4], 13-66 (footnotes omitted) (emphasis added by Liberty). We agree
that employees who substantially deviate from their employment and suffer injuries while
on an authorized break are not entitled to compensation; the fourth Carrillo factor
addresses this concern. Further, we note that the sentence following the Larson’s quote
provided by Liberty states that a swim taken during a coffee break may be compensable,
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“in part because the refreshing effects of the swim would benefit the employer as well as
the employee by enhancing the employee’s efficiency.” Larson’s at § 13.05[4], 13-66
(footnote omitted). Thus, when considering whether an employee has substantially
deviated from the scope of employment, our focus properly encompasses both the
employee’s activity and the benefits the employer derives. Liberty’s grievance that
BeVan’s injury should not be compensable solely because she was caring for her dog
completely ignores Blackfoot’s break policies and the benefits that Blackfoot derived
from the control it exercised over its employees’ breaks. Our analysis of the Carrillo
factors leads us to conclude that Blackfoot retained authority over its employees during
the mid-morning and mid-afternoon breaks and that BeVan’s injury occurred during the
course and scope of her employment.
CONCLUSION
¶28 We conclude that substantial credible evidence exists to support the WCC’s
finding that BeVan was injured while on an authorized break. We further conclude that
the WCC correctly applied the four factors of Carrillo v. Liberty Northwest Ins., 278
Mont. 1, 922 P.2d 1189 (1996), and correctly determined that BeVan’s injury occurred
within the course and scope of her employment. Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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