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In re Compensation of Mendoza

Court of Appeals of Oregon

June 12, 2013

In the Matter of the Compensation of Elena Mendoza, Claimant.
v.
LIBERTY NORTHWEST INSURANCE CORPORATION and DAMERON PROPERTY MANAGEMENT, Respondents. ELENA MENDOZA, Petitioner,

Argued and submitted on June 26, 2012.

Workers' Compensation Board 1003257

Julene M. Quinn argued the cause for petitioner. With her on the briefs was Kryger Alexander Carlson PC.

David O. Wilson argued the cause and filed the brief for respondents.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

SERCOMBE, J.

Claimant seeks judicial review of an order of the Workers' Compensation Board (the board) concluding that her injuries, which occurred while she was driving to employer's office to pick up paychecks to distribute to fellow employees, did not occur in the course of her employment and were therefore not compensable. On review for errors of law, ORS 183.482(8)(a), we conclude that, under the facts established by the board, claimant's injuries occurred in the course of her employment. Accordingly, we reverse and remand.

Neither party challenges the board's factual findings, which we summarize as follows. Employer provides cleaning services for department stores in seven states. At the time of her injuries, claimant worked for employer as a "team leader" and, in that capacity, led a three-person crew assigned to clean a particular store near Portland. Claimant's crew was one of several in the Portland area; each was led by a team leader.

Team leaders, including claimant, were responsible for receiving paychecks from employer and distributing the paychecks to the members of their crews. The paychecks were delivered by an outside provider to employer's Tacoma, Washington, office on the third and twenty-third day of each month. Employer allowed local team leaders, including those from Portland, to travel to the Tacoma office, pick up paychecks for multiple crews, and then distribute them at prearranged sites; employer did not knowingly pay team leaders for any time that they spent doing so. Team leaders who wanted to pick up paychecks were required to call or arrive at the Tacoma office by 3:00 p.m. Otherwise, employer's office manager would mail the paychecks to the team leaders for distribution to their crew members. Six or seven of the Portland crews routinely sent one or more team leaders to the Tacoma office to pick up paychecks. Alternatively, a district manager sometimes drove the paychecks from the Tacoma office to the Portland area for distribution.

On December 3, 2008, claimant received a call at home from another team leader who explained that he could no longer drive to Tacoma that day to pick up the paychecks as planned and asked if claimant could do so instead. Claimant agreed and arranged to drive to Tacoma with another employee in that employee's vehicle. While traveling to Tacoma, they were involved in a car accident, and claimant was injured.

Employer denied claimant's workers' compensation claim on the ground that her injuries did not arise out of or in the course of her employment. An administrative law judge upheld that denial, as did the board, which concluded that claimant's injuries did not occur in the course of her employment. The board did not consider whether claimant's injuries arose out of her employment. See ORS 656.005(7)(a) ("A 'compensable injury' is an accidental injury * * * arising out of and in the course of employment[.]"). The board reasoned that claimant was "off work, not being paid, and was free to use her time as she wished" when the accident occurred. Although the board noted that "employer permitted team leaders to pick up the paychecks in person, " it found that "claimant was neither required nor expected to pick up paychecks as a team leader" but that she did so "because she needed the money right away, " and concluded that "claimant's activity provided no benefit to her employer."

On judicial review, claimant challenges the board's conclusion that her injuries did not occur in the course of her employment. Whether an injury occurs in the course of employment forms one prong of the two-pronged "unitary work-connection test, " which we have summarized as follows:

"A claimant bears the burden of establishing the compensability of his or her injury--and, specifically, the requisite connection between the injury and his or her employment. 'A compensable injury is an accidental injury * * * arising out of and in the course of employment.' ORS 656.005(7)(a) (emphasis added). That is, both conjunctive statutory elements must be met. In determining whether an injury occurs 'in the course of' employment, we look at the time, place, and circumstances of the injury. The 'arising out of' prong refers to the causal link--the causal nexus--between the injury and the employment. '[A] worker's injury is deemed to arise out of employment if the risk of the injury results from the nature of his or her work or when it originates from some risk to which the work environment exposes the worker.' As noted, both prongs of the 'unitary work-connection test' must be met to some degree. Nevertheless, the test may be satisfied, even if the factors supporting one prong are weak, if those supporting the other are strong."

Legacy Health Systems v. Noble, 250 Or.App. 596, 600-01, 283 P.3d 924, rev den, 353 Or 127 (2012) (ellipses and brackets in Noble; some citations and internal quotation marks omitted). Here, as noted, the board did not reach the "arising out of" prong. However, employer concedes that, under the facts of this case, if claimant's injuries occurred in the course of her employment, they also arose out of her employment. ...


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