Gwin v. Liberty Northwest Ins. Corp. , 105 Or. App. 171 ( 1991 )

BUTTLER, J.

Claimant seeks review of an order of the Workers’ Compensation Board affirming the referee’s decision that an injury that he suffered while travelling to his home from employer’s work site is not compensable. We affirm.

We take the facts from the referee’s findings that were adopted by the Board and are not challenged by claimant. Claimant, a driller, was on a six-month assignment at Bonneville Dam for his Eugene-based employer. On that assignment, as on others, he was dispatched from his home in Redmond and he travelled from his home directly to the job site. Generally, he worked a 40-hour week, four 10-hour days, and was not on call after the completion of his scheduled work. He was paid union scale; his hourly pay was determined on the basis of the distance of the job site from the nearest union hall, not, as claimant suggests, on the distance of the job site from his home. He was free to stay where he wished. Because of the distance from his home to the job site, claimant lived in his own trailer in a campground near the job site during the week and commuted home on weekends. Some workers commuted to and from their homes on a daily basis and were paid on the same basis as was claimant.

Because claimant was a senior driller, employer provided him with a company pickup truck for company business. The truck carried fuel to run equipment on the job, company-owned welding and safety equipment, large company-owned tools and parts and claimant’s hand tools. Claimant was permitted to drive the truck to and from the job site, but could not use it at his home, except for company business. Employer paid for all insurance, gas, oil and maintenance. It did not pay claimant for his travel time. On a job such as this one, lasting six months, it would have been practical for claimant to bring his own car to the job site for personal use after work and to return home on weekends. Claimant, by his own choice, was driving employer’s pickup toward his home for the weekend at the time of the injury in question.

Generally, under the “going and coming” rule, injuries sustained while travelling to and from work are not compensable. See SAIF v. Reel, 303 Or 210, 216, 735 P2d 364 (1987); Nelson v. Douglas Fir Plywood Co., 260 Or 53, 488 P2d 795 (1971). There are some exceptions. For example, an injury may become compensable if the claimant was a “travelling employee” exposed to additional hazards as a result of the travel that was required as a part of his employment. SAIF v. Reel, supra, 303 Or at 216. As the Supreme Court suggested in Reel, however, whether or not a case falls within the “travel-ling employee” rule, the underlying question to be answered is whether the injury arose out of and in the course of employment. The court stated:

“The risk inherent in travel may arise out of the employment where such travel is a necessary incident of the employment. That is, when the travel is essentially part of the employment, the risk remains an incident to the employment even though the employe may not actually be working at the time of the injury.” SAIF v. Reel, supra, 303 Or at 216.

Claimant would have us hold that, when a worker is required by the job to travel to a remote location, all travel necessitated by that location is a part of the risk of the employment. He asks us to adopt an exception to the “going and coming” rule for employees who live “unusual” distances from their jobs.

There is no doubt that employer derived some benefit from permitting claimant to drive the company pickup truck. For example, it was necessary that someone drive the truck with employer’s equipment in it to the job site. If claimant had been injured while doing that, the injury would be compensable. The narrow issue here, however, is whether claimant’s travel home on weekends was part of his employment. The referee and the Board found that, because the job was a 6-month assignment, it would have been practical for claimant to bring his own car to the job site for personal use and commuting. He does not dispute that. It was by his own choice that he was driving employer’s pickup home when he was injured. Employer derived no benefit from permitting claimant to commute home on weekends in the company truck. The fact that claimant was provided with a truck for which employer paid expenses is not determinative. The question is whether the travel itself was a substantial part of the service performed. See SAIF v. Reel, supra, 303 Or at 216; 1 Larson, Workers’ Compensation Law § 16.32 (1990). Although the initial travel to the job site with the company truck was part of the service performed, weekend travel home was not for the benefit of employer.

There were other senior employees on the job who lived only a short distance from the job site and who commuted daily to and from work in a company truck. Claimant conceded at oral argument that, if one of those employees were injured while going to and from work, the injury would not be compensable. Apart from the distance, there is nothing to distinguish claimant’s weekend commuting from that of any other driller.

The Board’s conclusion that claimant’s trip home was personal is supported by its findings, and it did not err in concluding that the injury is not compensable.

Affirmed.