dissenting.
I dissent.
*219This longstanding, permanent employe worked at various locations around the state as the needs of his employer dictated. Some locations doubtless were sufficiently close to home to permit a reasonable commute. The job under consideration here was not such a job, however, and we ought to acknowledge it.
A job nearly 100 miles from home with varying and unpredictable hours is a job the employer knows to be one that will require the employe to find lodging near the job site. The fact that there is (or is not) a pay differential based on distance from a union hiring hall, that the employer pays (or does not) for certain travel but not all or that the employe received (or did not) a subsistence allowance does not settle the matter. The issue is whether the injury arose out of and in the course of his employment.
The majority does not draw a steady bead on this inquiry. It first says (303 Or at 216), “The real issue in this case is not whether this claimant was a traveling employe, but whether he was directed to live at or near the job site as an integral part of his employment.” If that is the inquiry, then the state of facts to which I’ve already referred supplies the answer: The only fair inference from the geographic and other facts is that that is precisely what the employer “directed” (required of) him.
Unfortunately, the next sentence in the majority opinion begins to undo the focus: “This is not a case where an employer sends a worker to a specific location to carry out the work of the employer.” 303 Or at 216. Again, with respect, that is not a correct summary of the facts, as the next two sentences of the majority opinion seem to recognize:
“* * * This is a difficult case because, for practical purposes, the employes who lived in remote areas of the state could not be available to carry out the employer’s work unless they lived near the job site. Thus, although not directed by the employer to live at the job site, most of the workers necessarily had to do so to fulfill their employment obligations.” 303 Or at 216 (emphasis supplied).
However massaged, these passages fail to let the majority out of its central dilemma. The majority must insist that there be a specific “direction” to the employe to reside at the job site in order to sustain its view. The majority cites no *220case law, from this state or elsewhere, which has imposed so formalistic a requirement. To do so allows the employer, by its silence, to contract out of workers’ compensation responsibility. This is not permissible in Oregon. ORS 656.018(1)(c). If an employer so arranges the circumstances of a job situation that it in fact requires a permanent employe to live at the site for the duration of the job, the employe has been “directed” — assuming that term has any significance in such an analysis — to do so.
Such case law as I have found from around the country supports this view. In Olinger Const. Co. v. Mosbey, 427 NE2d 910 (Ind App 1981), Mosbey, an employe of Olinger Construction, was assigned to work at a bridge and road construction site located 150 miles from his home. He lived in a motel while working on the project. One evening, a former employe of Olinger’s entered Mosbey’s motel room and stabbed Mosbey, who later died from the injuries. The Indiana court concluded that Mosbey’s death was compensable under the traveling employe rule. The court rejected the employer’s argument that Mosbey was not a traveling employe because his assignment was long term:
“[E]ven if Mosbey had been assigned to the site for an extended time, we see no basis for making a distinction between employees, such as salesmen and truck drivers, who travel from city to city and those, such as Mosbey, who travel to one site and remain there until their specific assignment is completed.
“The rationale behind the traveling employee rule is that an employee who is required to travel away from home is furthering the business of his employer as he eats, sleeps, and performs other acts necessary to his health and comfort during his travels. * * * This rationale applies equally to an employee who travels to a fixed location and stays there to do his job. This type of traveling employee is also away from home or headquarters because of his job, so that, in a sense, his activities, such as eating and sleeping in a distant location, are done for the benefit of the employer.” Olinger Const. Co. v. Mosbey, supra, 427 NE2d at 915 (citation omitted).
Brown v. Palmer Construction Company, Inc., 295 A2d 263 (Me 1972), involved two linemen who were assigned to work on a project in Brattleboro, Vermont. The job site was “beyond reasonable commuting distance” from the claimants’ *221homes in Maine. The employer expected the claimants to find lodgings near the Vermont job site and paid them additional compensation to cover their living expenses. The claimants worked regular hours and were not “on call” when off duty. The claimants shared an apartment with kitchen facilities and were injured when the oven of their gas stove exploded. The court concluded that the claimants’ injuries were com-pensable under the traveling employe rule:
“We think the policy of the Maine Act is to protect the employee against risks which are not purely self-created but are created by and incidental to the employment. In the instant case the necessity of lodging and meals in Brattleboro was not merely the necessity of the injured employees — it was a necessity of the employer in furtherance of the work it had contracted to perform in Vermont. These employees slept and ate where they did, not of their own choice or preference, not as a matter of personal comfort or convenience, but to accommodate the necessities of their employment. What they did was within the contemplation of the terms and conditions of that employment. The choice of an apartment with ordinary kitchen facilities, a choice the employees were free to make, did not add such unreasonable or excessive risks and perils as might cast doubt on the right to coverage. We conclude as did the Commissioner below that there is no rational difference between a traveling employee who moves from place to place and one who travels many miles to his employer’s job location and can return home only on weekends or when the work is finally completed.” Brown v. Palmer Construction Company, supra, 295 A2d at 266-67.
In Leonard v. Dennis, 465 So 2d 538 (Fla App 1985), the claimant worked as the supervisor of a construction project in Crystal River, Florida. He stayed in a Crystal River motel from Monday through Thursday and returned to his home in Tampa each weekend. The claimant was injured in an automobile accident while driving to a nearby restaurant with the project manager. The court held that, regardless of whether claimant and the project manager were going to dinner for business purposes, claimant was covered under the traveling employe doctrine.
In Wright v. Industrial Comm’n, 62 Ill 2d 65, 338 NE2d 379 (1975), Wright supervised the installation of industrial machinery in the purchasers’ factories. His job frequently involved travel to out-of-state locations for five to six months *222at a time. During a trip to Newburn, Tennessee, Wright was killed in a head-on car collision. The employer argued that “where an employee remains at a specific job location for 5 or 6 months, as in the present case, he becomes, in effect, a ‘resident’ of that location and can no longer be classified as a traveling employee.” Wright, supra, 62 Ill 2d at 69. The court found that Wright was a traveling employe, concluding that:
“We can find no rational basis to distinguish between the employee who is continuously traveling and one who travels to a distant job location only to return when the work is completed. While it is true that the latter type of employee may become more familiar with the risks inherent in his out-of-town employment because he remains in one locale, the risks are still present. It would be inconsistent to deprive an employee of benefits of workmen’s compensation simply because he must travel to a specific location for a period of time to fulfill the terms of his employment and yet grant the benefits to another employee because he continuously travels.” Id.
The unjust outcome of this case is not dictated by statute, prior case law or any identified public policy. Awarding benefits, as the referee and Workers’ Compensation Board did, is appropriate.
I respectfully dissent.
Linde, J., joins in this dissent.