Osteen v. Greenville County School District

Huff, Judge

(dissenting):

I disagree with the majority that Osteen’s injury is compensable. The full commission heard the case on March 27, 1995 and found that Osteen’s injury did not arise in the course *441and scope of her employment. The commission affirmed the single commissioner’s calculation of Osteen’s average weekly wage and compensation rate. Additionally, the circuit court affirmed the decision of the commission finding there was substantial evidence to support the commission’s findings of fact and the conclusion that Osteen was not acting within the course and scope of her employment at the time of the injury.

In order to be entitled to workers’ compensation benefits, the employee must show he or she sustained an “injury by accident arising out of and in the course of the employment.” S.C. Code Ann. § 42-1-160 (1985). The term “arising out of’ in the Workers’ Compensation Act refers to the origin of the cause of the accident, while the term “in the course of’ refers to the time, place, and circumstances under which the accident occurred. Owings v. Anderson County Sheriff’s Department, 315 S.C. 297, 433 S.E. (2d) 869 (1993). “An injury arises out of employment where there is apparent to the rational mind, upon consideration of all the circumstances, a causal relationship between the conditions under which the work is to be performed and the resulting injury.” Id. If the injury can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment. Holley v. Owens Corning Fiberglass Corp., 301 S.C. 519, 392 S.E. (2d) 804 (Ct. App. 1990), aff’d, 302 S.C. 518, 397 S.E. (2d) 377 (1990). But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. Jones v. Hampton Pontiac, 304 S.C. 440, 405 S.E. (2d) 395 (1991) (quoting Eargle v. South Carolina Electric and Gas, 205 S.C. 423, 32 S.E. (2d) 240 (1994)).

Osteen relies on a spectrum of cases in which compensation was allowed for an injury occurring on the employer’s premises resulting from an activity which constituted a slight deviation from employment.

In Mack v. Branch No. 12 Post Exchange, Fort Jackson, 207 S.C. 258, 35 S.E. (2d) 838 (1945), the employee, who arrived before the start of work, was smoking a cigarette on the employer’s premises, which ignited his pants and burned his leg where he had spilled lighter fluid. The Supreme Court *442found the injury compensable. In reaching this conclusion, the Court enunciated the following rule:

Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts contribute to the furtherance of his work * * * That such acts will be done in the course of employment is necessarily contemplated, and they are inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the same time injuries occasioned by them are accidents resulting from the employment.

The Court' further stated “[sjlight deviations are no defense under most state decisions. Thus a slight deviation to get a chew of tobacco, or to ask a fellow employee the time, or to throw away a cigarette, is harmless, and awards were upheld where the injury occurred during the deviation.”

Applying the reasoning in Mack, the Supreme Court in McCoy v. Easley Cotton Mills, 218 S.C. 350, 62 S.E. (2d) 772 (1950), found an employee’s injury was compensable where he was injured by a piece of copper piping that accidentally struck him in the eye during a smoking break. The Court reasoned, “[wjhile smoking was not, or course, one of the obligatory duties of his employment, yet it was something permitted by the employer. Consequently, no break in claimant’s employment resulted from the fact that he temporarily left his job and walked outside the building to smoke.”

Mack and McCoy are distinguishable in that those cases involved smoking, which the court found as a necessary function, such as breathing or drinking, which contributed to the furtherance of the employee’s work. Here, Osteen was not performing a function that would help her perform her work. She was getting ice for a family picnic that was to occur the following day.

In this same line of cases, Osteen also relies on Portee v. South Carolina State Hospital, 234 S.C. 50, 106 S.E. (2d) 670 *443(1959). In Portee, a hospital attendant died from anaphylactic shock caused by an injection of procaine penicillin administered by a technician at the hospital at the attendant’s request to avoid infecting patients from his sore throat. The Supreme Court found the employee suffered an injury by accident which arose out of and in the course of his employment. The Court found the slight deviation of the deceased to obtain medication for his sore throat did not break the chain of employment. The Court stated it was a close question of whether the occurrence arose out of his employment. In reaching its decision, the Court relied on the fact that the injection was done not only for the purpose of relieving the deceased’s personal discomfort, but also to avoid passing the infection to the other patients.

Portee is also distinguishable from the instant case. In Portee, the employee was not only seeking to relieve personal discomfort, but also to avoid infecting other patients in furtherance of his work. In this ease, Osteen’s activity was solely for her personal benefit and did not in any way benefit her employer.

Osteen cites Cauley v. Ross Builders Supplies, Inc., 238 S.C. 38, 118 S.E. (2d) 879 (1961), for the proposition that insubstantial deviations form employment which result in injury are compensable accidents even though the accident involved personal activities. In Cauley, the Supreme Court upheld an award of compensation for an injury sustained by a carpenter which occurred during a five-minute deviation from his work. While cutting the wood for a display counter, Cauley used part of the wood to make a wedge for a co-employee to be used to level a mantel clock in his home. Cauley was injured while pushing the board through the joiner. The Court reasoned that, although the activity was entirely personal to Cauley’s co-employee, it was compensable because the deviation was insubstantial. See also Jordan v. Dixie Chevrolet, Inc., 218 S.C. 73, 61 S.E. (2d) 654 (1950) (injury arose out of and in the course and scope of employment where garage employee was injured during idle time when he removed a tear gas bomb from a customer’s vehicle; an injury may be regarded as arising out of the employment if it resulted from a risk or danger to which the workman was exposed by reason of being engaged in the performance of his duties although *444such risk or danger was not inherent in and not necessarily essential to the activities of the employment).

Cauley and Jordan are also distinguishable in that the injury occurred during an activity which was incidental to the employee’s normal employment. Although Osteen’s activity involved only a ten-minute deviation from her normal duties, it cannot be characterized as insubstantial. The act of getting ice and lifting the ice cooler was not in any way related to her normal secretarial/clerical duties.

I also find support for my conclusion in Douglas v. Spartan Mills, 245 S.C. 265, 140 S.E. (2d) 173 (1965), wherein our Supreme Court held an injury caused by an automobile accident which occurred while claimant was traveling to a workers’ compensation hearing did not arise out of and in the course of his employment. The Court reasoned at the time of the accident the claimant was not fulfilling his duties as a doffer, and was not performing anything incidental to his normal duties. Specifically, the court stated:

The causative danger here was the defective steering apparatus on the claimant’s automobile, which we think was clearly independent of the relation of master and servant and not incidental to the character of the business or the employment. We cannot see where the danger here had its origin in any risk connected with the employment or flowed from that source as a rational consequence.

Osteen also relies on Camp v. Spartan Mills, 302 S.C. 348, 396 S.E. (2d) 121 (Ct. App. 1990), for the general rule that an employee’s activities at work on the employer’s premises may be compensable even though the employee is not engaged in any particular work activity or job-related task. See also Williams v. South Carolina State Hospital, 245 S.C. 377, 140 S.E. (2d) 601 (1965). However, an accidental injury is not rendered compensable by the mere fact that it occurred on the employer’s premises; the claimant must show also that the accident was connected with or incident to the performance of the duties of his employment. Evans v. Jones-Wilson, Inc., 235 S.C. 219, 110 S.E. (2d) 851 (1959).

It is undisputed that Osteen’s injury occurred while at work, on the employer’s premises. However, there is no causal relationship between Osteen’s job as an attendance clerk and *445the injury. At the time she was injured, Osteen was not performing any duties in relation to her employment or incidental to her employment. Obtaining ice for a family picnic the following day was not “necessary to the life, comfort, and convenience” of Osteen while she was at work. Further, Osteen’s secretarial/elerical duties did to expose her to the risk of this type of injury. Although Osteen’s deviation from her work was only for ten minutes, it cannot be said that it was an insubstantial deviation. Osteen’s deviation was for a personal errand not in any way related to or incidental to her employment. Moreover, I do not find dispositive the fact that the principal did not prohibit employees from getting ice from the cafeteria. Even though the practice was not prohibited, it was not encouraged in that it was neither advertised nor announced. See Beam v. State Workmen’s Compensation Fund, 261 S.C. 327, 200 S.E. (2d) 83 (1973) (“Employment connection may be supplied by varying degrees of employer encouragement or direction. The clearest case of coverage is that of a teacher who is directed to attend a teacher’s institute. It is also sufficient if attendance, although not compulsory, is definitely urged or expected but not if it is merely encouraged”). Based on my review of the record, I find Osteen’s injury did not arise out of and in the course of her employment. Accordingly, I would affirm the order of the circuit court.