In the course of employment (i.e., time, place and circumstances); and
Arising out of employment (Causal link between the injury and the employment)
“Going and Coming” rule specifically precludes compensability of injuries sustained while the employee is traveling to or from work. Krushwitz v. McDonald’s Restaurants, 323 Or 520, S26 (1996)
HOWEVER! There are a number of exceptions to the “going and coming” rule, one of which is the “traveling employee”
Traveling Employees
When an employee’s work entails travel away from an employer’s premises, the employee becomes a traveling employee, even if the travel is local and of limited duration. Savin Corp v. McBride, 134 Or App 321 (1995) (traveling employee’s work entailed driving to customers’ premises and returning home each evening; injury sustained while running a banking errand on the way home was compensable); PP & L v. Jacobson, 121 Or App 260, rev den, 317 Or 583 (1993) (traveling employee rule is not limited to employees who travel overnight).
A traveling employee is considered to be continuously acting in the course of employment unless the employee has engaged in a distinct departure on a personal errand. SAIF v. Scardz‘, 218 Or App 403, 408 (2008); Sosnoski v. SAIF, 184 Or App 88, 93, rev den, 335 Or 114 (2002); Slaughter v. SAIF, 60 Or App 610 (1982)
When an employee’s work entails travel away from an employer’s premises, the employee becomes a traveling employee, even if the travel is local and of limited duration. See Vanetta Abdellatzjf; 66 Van Natta 1201 (2014) (Parking payment case, still compensable -— traveling employee); Savin Corp v. McBride, 134 Or App 321 (1995) (Traveling employee’s work entailed driving to customers’ premises and returning home each evening; injury sustained while running a banking errand on the way home was compensable)
Not limited to only employees who travel overnight
When travel is part of employment, the risk of injury during activities necessitated by travel remains incidental to the employment even though the employee may not actually be working at the time of the injury. PP & L v. Jacobson, 121 Or App 260, rev den, 317 Or 583 (1993).
Defenses to the Traveling Employee doctrine
What is a distinct departure?
Something that takes a claimant out of traveling employee protection. A traveling employee is considered to be continuously acting in the course of employment unless the employee has engaged in a distinct departure on a personal errand. SAIF v. Scardi, 218 Or App 403, 408 (2008); Sosnoski v. SAIF, 184 Or App 88, 93, rev den, 335 Or 114 (2002).
Sosnoski analysis discussing distinct departure:
When travel is part of the employment, the risk of injury during activities necessitated by travel remains an incident to the employment even though the employee may not actually be working at the time of the injury.
A traveling employee is continuously within the course and scope of employment while traveling, except when the person has “engaged in a distinct departure on a personal errand.”
In determining whether a “distinct departure” occurred, the court considers whether the activity that resulted in the injury was “reasonably related” to the employee’s travel status.
However, under ORS 656.005(7)(b)(B), a “[c]ompensable injury” does not include an “[i]njury incurred while engaging in or performing, or as a result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure[.]” ORS 656.005(7)(b)(B).
Good Cases to review:
Summer Cook, 69 Van Natta 1227 (2017) Recreational activity for claimant’s personal pleasure -— going to the gym == non-compensable
Bruce Hohensee, 56 Van Natta 1847 (2004) traveling employee driving home after leaving a meeting for work = compensable
Beaudry v. SAIF, 288 Or App 139 (2017) claimant drove a co-worker to buy some Christmas gifts approximately 40 miles from where he was staying as a traveling employee, deemed a distinct departure == non-compensable
Justen A. Swager, 67 Van Natta 1259 (2015) = performing a personal favor for a friend, without permission from the employer, deemed a distinct departure = non-compensable
The issue is whether travel is purely a personal choice or preference and is, therefore, a self-created risk, or is an activity that accommodates or benefits the employer’s business. Proctor v. SAIF, 123 Or App 326, 330 (1993).
Good Example: Jackson Hicks, 66 Van Natta 2024 (2014)