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
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
In upholding the compensability of the claim, the board reasoned that the "going and coming" rule did not preclude compensability, because claimant was in the course of his employment at the time of his injury. The board explained:
"[T]his case involves a claimant who was injured during a regular period of employment, at a place where he reasonably would be expected to be at that time, and doing something reasonably incidental to the fulfillment of his duties. Such circumstances establish that claimant was 'on duty' and 'subject to the employer's direction and control,' and his employment was not 'suspended,' when he was injured."
One board member dissented, agreeing with SAIF that claimant's injury did not occur in the course of employment. Although claimant's shift had begun, the dissenting board member reasoned, the going and coming rule applied, because claimant had not worked before leaving the house and, therefore, there was no "time, place, and circumstances" connection between the employment and the injury.
On judicial review, SAIF disputes the board's conclusion that claimant was in the course of his employment while travelling to the hospital. As asserted by the board member, SAIF contends that, because claimant had not performed any work in his home office in the morning before he left for work and had not been paged, he was not travelling between work sites when he was injured, but was simply going to work. Because claimant was simply going to work, SAIF asserts, the "going and coming" rule precludes compensability.
Injuries suffered when a worker is traveling to or from work generally are excluded from the course of employment because, during that time, the worker is not rendering a service to the employer. Krushwitz ,
"The going and coming rule provides generally that injuries sustained while an employee is travelling to or from work do not occur in the course of employment. Krushwitz [, [ 323 Or. at 526-27] ]; see also Philpott [v. State Ind. Acc. Com. , 919 P.2d 465 , 40-41, 234 Or. 37 (1963) ] (stating principle). The reasoning behind the going and coming rule is 'that the relationship of employer and employee is ordinarily suspended from the time the employee leaves his work to go home until he resumes his work, since the employee, during the time that he is going to or coming from work, is rendering no service for the employer.' 379 P.2d 1010 Id. at 40-41 [] (internal quotation marks omitted). The going and coming rule applies to injuries occurring both before and after the workday, in addition to injuries occurring while the employee is going to or coming from a break. [ Enterprise Rent-A-Car Co. of Oregon v. Frazer , 379 P.2d 1010 , 730-31, 252 Or. App. 726 (2012), rev. den. , 289 P.3d 277 , 353 Or. 428 (2013) ]. 299 P.3d 889
"But the going and coming rule is not implicated at all-that is, the rule is never triggered-when a worker has not left work. Thus, the going and coming rule generally does not apply when the worker, although not engaging in his or her appointed work activity at a specific moment in time, still remains in the course of employmentand, therefore, has not left work. Sometimes that occurs because the worker is 'still "on duty" and otherwise subject to the employer's direction or control. ' Frazer, [ 252 Or. App. at 731]." 289 P.3d 277
(Emphasis added.) Here, the board found that, at the time of his injury, claimant was in a regular period of employment and was subject to employer's direction and control. We have reviewed the record and conclude that the board's findings are supported by substantial evidence. Claimant testified that, at the time of the injury, he was on duty and that, while on duty, he has an obligation to be available to hospital staff within 10 to 15 minutes of being paged.
The board concluded based on those findings that the going and coming rule did not preclude compensability, and we agree. A worker who is not engaged in any work activity at the time of the injury, but who is nonetheless subject to the employer's direction and control, is considered to be in the course of employment. See Robinson ,
Affirmed.
Notes
In finding that, at the time of his injury, claimant was at a place where he might reasonably be expected to be and doing something that was reasonably incidental to his employment, the board implicitly found that travelling between home and the hospital was a part of claimant's employment. In light of our conclusion that the injury was compensable because claimant was on the job and within employer's direction and control at the time of the injury, we do not address that aspect of the board's rationale.