CAROL ANN CARRILLO

Petitioner

vs.

BLUE CROSS BLUE SHIELD

Respondent/Insurer for

LIBERTY NORTHWEST INSURANCE

Employer.

Summary: Systems testing analyst for health insurer was struck by a car while walking to gift shop during coffee break to buy mug for co-worker who was leaving employment. Claimant was not required or asked by superiors to purchase the mug. Breaks were not mandatory, but employees often walked to nearby locations to take breaks. Insurer denied liability on ground accident did not occur in course and scope of employment.

Held: WCC held accident did not occur in course and scope of employment. (Note: this determination was reversed by the Montana Supreme Court in Carrillo v. Liberty Northwest Insurance, 178 Mont. 1, 922 P.2d 1189 (1996) (No. 95-396.)

The trial in this matter was held on March 23, 1995, in Helena, Montana. Petitioner, Carol Ann Carrillo (claimant), was present and represented by Mr. James G. Hunt. Respondent, Liberty Northwest Insurance (Liberty), was represented by Mr. Larry W. Jones. Exhibit 1 was admitted by stipulation of the parties. Claimant testified on her own behalf. The depositions of claimant, Beth Lamping, Linda Ganno, Candy Osborne and Kelly Munson were submitted for the Court's consideration.

Issue presented: The sole issue before this Court is whether claimant's injury occurred within the course and scope of her employment.

Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witness, the depositions and exhibit, the Court makes the following:

1. At all times pertinent to this case, claimant was an employee of Blue Cross Blue Shield of Montana (BCBS).

2. At the time of the accident on March 2, 1993, claimant worked as a systems testing specialist. Her normal work week was 40 hours but she often worked overtime. She was sometimes on call.

3. Claimant worked at BCBS offices located in the Donovan building. The Donovan building is on the west side of Last Chance Gulch south of its intersection with Lawrence Street in Helena, Montana. BCBS also has a second building in Helena which is commonly referred to as the Fuller building. That building is located on the northwest corner of Fuller and Lawrence streets, approximately a block away from the Last Chance Gulch location.

4. BCBS provided its employees with a 15 minute break in the morning and another 15 minute break in the afternoon. Breaks were not mandatory; employees were free to take them or not.

5. Fifty to seventy-five people worked in the Donovan building. There was a break room located in the basement of the building which is small. Employees at the Donovan building often walked to the Fuller building or other nearby locations (Coney Island, the Gold Bar) to take their breaks. BCBS also has a room in the Downtown Athletic Club (DAC) for use as a break room.

6. A substantial number of employees walk during their breaks. BCBS encouraged its employees to engage in a healthy lifestyle but did not require them to walk during breaks.

7. BCBS supervisors permit its employees to give going away parties for employees leaving BCBS or transferring to other departments. The parties were at times held during breaks, but sometimes on company time. Planning could be done during company time. On their breaks, employees would sometimes buy going away gifts from nearby merchants.

8. At the time of the accident, claimant's direct supervisor was Beth Lamping, who was leaving claimant's unit and transferring to another job at BCBS.

9. Claimant and her co-employees planned a going away party for Lamping and decided to buy her a replacement coffee mug for one she had broken.

10. At approximately 2:15 p.m. on March 2, 1993, claimant left the Donovan building to go to the Holter Museum gift shop, which is approximately a block and a half away from the Donovan building, to buy Lamping a replacement mug. She intended to return to the Donovan building to pick up a co-worker, then proceed to the Fuller building for a break. While on her way to the Holter Museum she was struck by a car while crossing Lawrence Street.

12. The party for Lamping was ultimately held during work hours.

13. At the time of claimant's injury, BCBS was insured by Liberty Northwest Insurance.

14. Claimant submitted a claim for compensation to Liberty. The claim was denied on the ground that claimant was not acting within the course and scope of her employment at the time of the accident.

1. The law in effect at the time of the injury governs the claimant's entitlement to benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986). Claimant's accident occurred in March of 1993, consequently the 1991 version of the Workers' Compensation Act applies.

2. Claimant's injuries are compensable only if they occurred in the course and scope of her employment. Section 39-71-407(1), MCA, provides:

(1) Every insurer is liable for the payment of compensation, in the manner and to the extent hereinafter provided, to an employee of an employer it insures who receives an injury arising out of and in the course of his employment or, in the case of his death from such injury, to his beneficiaries, if any.

The general scope and course requirement is modified by subsection (3) of 39-71-407. That subsection specifically pertains to the compensability of injuries suffered by traveling employees providing:

. . . .

(3) An employee who suffers an injury or dies while traveling is not covered by this chapter unless:

(a) (i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee's benefits or employment agreement; and

(ii) the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or

(b) the travel is required by the employer as part of the employee's job duties.The travel criteria in subsection (3) were adopted by the 1987 legislature. 1987 Montana Laws, ch. 464, Sec. 11. Pre-1987 precedents that conflict with the new law are inapplicable.

The word "traveling" is not specifically defined in the Workers' Compensation Act but in its ordinary and usual sense it means going from one place to another. Larson's treatise on workers' compensation similarly refers to "traveling employees" as "employees whose work entails travel away from the employer's premises." 1A Larson Workmen's Compensation Sec. 25.00 at 5-275 (italics added). Claimant was going from her place of employment to a different place. Claimant's "campus" argument is unpersuasive since her intended destination was the Holter Museum rather than the Fuller building.

No mechanical transportation was utilized by claimant and the block and a half walk she contemplated did not involve an overnight stay. Thus, there was no reimbursement by the employer and the reimbursement criteria of subsection (3)(a) cannot be satisfied. State Fund v. James, 257 Mont. 348, 352, 849 P.2d 187 (1992). Therefore, the travel must be analyzed under subsection (3)(b). Id.

Under subsection (3)(b), claimant must show that her errand was required by BCBS as part of her job duties. The Supreme Court has construed "as part of" in section 39-71-407(3)(b), MCA, as equivalent to the phrase "in [the] course and scope of" employment from the previous common law. James, 257 Mont. at 348. There must be some causal connection between the injury and employment, Parker v. Glacier Park, Inc., 249 Mont. 225, 228, 815 P.2d 583 (1991), and evidence that claimant "was attending to employment-related matters." Dale v. Trade Street, Inc., 258 Mont. 349, 355, 854 P.2d 828 (1993).

In determining whether travel is part of the employee's job duties, the four-part test adopted in Courser v. Darby School Dist. #1, 214 Mont. 13, 16-17, 692 P.2d 417 (1984), applies. Dale, 258 Mont. at 355. That test is:

(1) whether the activity was undertaken at the employer's request, (2) whether the employer directly or indirectly compelled the employee's attendance at the activity, (3) whether the employer controlled or participated in the activity, and (4) whether both employer and employee mutually benefitted from the employee's attendance at the activity.

Id. Ultimately, "there must be some identifiable benefit to the employer." Id.

The facts of the present case do not satisfy the Courser elements. The quest for the coffee mug was not undertaken at the request of claimant's supervisors and her supervisors did not directly or indirectly compel the errand. Claimant's supervisors did not control or participate in the quest. Finally, although the gift and party may have boosted employee morale, that type of benefit is insufficient to meet the fourth prong. A general boost in employee morale is not by itself a sufficient benefit to the employer to render a social activity a part of the conditions of employment. Larson's Workmen's Compensation Law (1995), §§ 22.25 at 5-61, 22.30 at 5-69.

I therefore conclude that claimant's injuries are not compensable.

JUDGMENT

1. Claimant did not suffer an injury arising out of and in the course of her employment and is not entitled to compensation and medical benefits.

2. Claimant is not entitled to costs.

3. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.

4. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.

Dated in Helena, Montana, this 14th day of August, 1995.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. James G. Hunt
Mr. Larry W. Jones