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In re Compensation of Massari

Court of Appeals of Oregon

April 18, 2018

In the Matter of the Compensation of Christopher M. Massari, Claimant.
v.
Christopher M. MASSARI, Respondent. SAIF CORPORATION; and Bend Memorial Clinic, PC, Petitioners,

          Argued and submitted April 5, 2017

          Workers' Compensation Board 1500155

          Beth Cupani argued the cause and fled the briefs for petitioners.

          Edward J. Harri argued the cause for respondent. With him on the brief was Glen J. Lasken.

          Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Linder, Senior Judge.

         Cases Summary:

         SAIF and employer seek review of an order of the Workers' Compensation Board holding that an injury claimant sustained in the parking lot of a hospital on his way to work as a hospitalist was compensable. Claimant had not yet worked but, because, at the time of the injury, claimant's shift had already begun, claimant was required to be available within 15 minutes of receiving a message on his pager. Petitioners argue that the board erred in concluding that the injury occurred in course and scope of claimant's employment. Held: The board's findings that, at the time of his injury, claimant was in a regular period of employment and was subject to employer's direction and control were supported by substantial evidence, and the board therefore did not err in determining that claimant's injury was compensable.

         Affirmed.

         [291 Or.App. 350]EGAN, C. J.

         Claimant was employed as a hospitalist physician by Bend Memorial Clinic, PC. Claimant's primary work site was St. Charles Hospital, and he was injured when he slipped and fell on ice in the hospital parking lot while on his way to work. Employer and SAIF seek judicial review of an order of the Workers' Compensation Board upholding the compensability of claimant's injury. We review the board's order for substantial evidence and errors of law, ORS 656.298(7); ORS 183.482, conclude that the board did not err, and affirm.

         We take our summary of the facts from the board's order. Employer Bend Memorial Clinic contracted to provide medical services to St. Charles Hospital, and employed claimant to work at St. Charles Hospital as a hospitalist. Claimant's job required him to make rounds at the hospital, complete charts, and, when he was not at the hospital during his shift, to be available on short notice via pager. Claimant does not have an office at the hospital or at Bend Memorial Clinic but he has an office in his home, where he works when he is not required to be at the hospital, answering calls and responding to pages from nurses regarding patient care. Employer provides claimant with a computer and access to medical records and research tools for his use in his home office.

         According to claimant's testimony, on the day of his injury, claimant's shift began at 7:00 a.m. He turned on his pager while still at home at 7:00 a.m. and left for the hospital at 7:15 a.m. He slipped on ice and fell in the hospital parking, fracturing his right leg.

         Claimant sought workers' compensation benefits, and SAIF denied the claim, asserting that the injury did not arise out of and within the course and scope of employment. See ORS 656.005(7)(a) ("A compensable injury is an accidental injury * * * arising out of and in the course of employment.").

         Claimant requested a hearing. An administrative law judge (ALJ) overturned SAIF's denial, and the board affirmed the ALJ's order. Before the board, SAIF did not [291 Or.App. 351] dispute that claimant's injury arose out of his employment, but contended that compensability was precluded by the "going and coming" rule, because, at the time of his injury, claimant was going to work and therefore was not in the course of his employment. See Krushwitz v. McDonald's Restaurants,323 Or. 520, 526, 919 P.2d 465 (1996) ("The general rule in Oregon-the 'going and coming rule'-is that injuries ...


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