Gwin v. Liberty Northwest Ins. Corp.

DE MUNIZ, J.,

dissenting.

The ultimate inquiry is whether “the relationship between the injury and the employment [is] sufficient [so] that the injury should be compensablef.]” Rogers v. SAIF, 289 Or 633, 642, 616 P2d 485 (1980). In determining whether an injury is sufficiently work related, several factors are to be considered, including: (1) whether the activity was for the benefit of the employer; (2) whether the activity was contemplated by the employer and employee at the time of hiring or later; (3) whether the activity was an ordinary risk of, and incidental to, the employment; (4) whether the employee was paid for the activity; (5) whether the activity was on the employer’s premises; (6) whether the activity was directed by or acquiesced in by the employer; and (7) whether the employee was on a personal mission of his own. No single factor is dispositive. See Preston v. SAIF, 88 Or App 327, 330, 745 P2d 783 (1987); Mellis v. McEwen, Hanna, Gisvold, 74 Or App 571, 575, 703 P2d 255, rev den 300 Or 249 (1985).

Job sites in the construction industry are not permanent. Skilled workers, such as claimant, do not normally live near employer’s job sites. Claimant is dispatched by employer to jobs throughout Oregon, Washington and California. Accordingly, it is within the contemplation of employer that drillers will have to travel long distances to various jobs. Claimant’s willingness to travel extended distances to employer’s job sites is a benefit to employer.

The use of a company pickup to travel to and from the job site, although a benefit to claimant, is also a benefit to *176employer. Claimant’s use of the company pickup enables employer to make sure that he, as well as company equipment, parts and fuel for the equipment are efficiently transported to employer’s remote job sites. Use of the company pickup was, therefore, an integral part of the work that claimant performed for employer.

In I-L Logging Co. v. Mfgrs. & Whlse. Ind. Exc., 202 Or 277, 273 P2d 212, 275 P2d 226 (1954), the Supreme Court indicated that an employment relationship may exist during travel to and from work if the employer provides transportation to the job or pays the travel costs between the worker’s home and the job site:

“An employer may agree, either expressly or impliedly, that the relationship between himself and his employe shall continue during the period of ‘going to and coming from’ the actual job site, in which case it is generally held that an accidental injury sustained by the employe while ‘going or coming’ is one that ‘arises out of and in the course of the employment.’ This is particularly true where, as here, the employer furnishes transportation to and from the work as a necessary part of the contract of employment. The same situation may arise when an employer, as a part of the contract of hire, pays the workman an extra sum of money to cover the cost of transportation, or where the employer compensates the employe for the period of time required in going to or from the work. Each case is decided upon its own facts. There is no fixed rule decisive of all cases.” 202 Or at 326. (Citations omitted.)

Although claimant was not being paid a wage while travelling, employer was paying the cost of his travel to and from the job site by furnishing the pickup and paying all of the expenses associated with operation of the truck. That is no different than furnishing the cash equivalent of the value of the use of claimant’s own vehicle. Under either circumstance, the employer has interested itself in the employee’s transportation to and from work and is furnishing something of value, i.e., compensation, to the employee for undertaking the trip. See 1 Larson, Workmen’s Compensation Law 4-208.62 n 53, § 16.31 (1990). Employer’s assignment of the company pickup to claimant and payment of all expenses associated with its operation is strong evidence that employer and claimant intended the employment relationship to continue while claimant was travelling to and from a job site.

*177In SAIF v. Reel, supra, the Supreme Court said:

“The risk inherent in travel may arise out of the employment where such travel is a necessary incident of the employment. That is, when the travel is essentially part of the employment, the risk remains an incident to the employment even though the employe may not actually be working at the time of the injury.” 303 Or at 216. (Emphasis supplied.)

Considering all of the factors listed above, I would conclude that extended travel by claimant to and from employer’s job site in the company pickup was an integral part of the employment relationship and a risk that should be borne by the employer in this case. I would hold that claimant’s injury arose out of and in the course of his employment and, therefore, must respectfully dissent.

Rossman and Riggs, JJ., join in this dissent.