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Carrillo v. Liberty Northwest Ins.9/3/1996
by stating:
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 (underlining added). Claimant was going from her place of employment to a different place.
The Court then analyzed § 39-71-407(3), MCA, and relevant cases to conclude that the injuries Carrillo suffered while traveling were not compensable.
Carrillo contends that the court incorrectly concluded that the traveling statute, § 39-71-407(3), MCA, controlled the case. Instead, she contends that she was not traveling, but was on a "break" when injured and therefore that she was within the course and scope of her employment. In support of her contention that she was on break, she refers to her uncontroverted testimony at trial. Her attorney asked: "If you were to say, `yes, I was on break,' or `No, I was not on break,' when you left the Donovan Building to go to the Holter Museum, would you say yes or no?" and she replied, "Yes."
The Workers' Compensation Court made no specific finding that Carrillo was or was not on break at the time of her injury. The only finding that refers to her afternoon break was Finding No. 10 in which the court stated that Carrillo
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.
Liberty contends that when the court found that Carrillo was going on break after getting the gift, the court in fact found that she was not on break while getting the gift and that substantial evidence supports that finding. However, there is nothing inconsistent with her being on break at the time of her injury and her intention to continue her break at another location later on. In fact, the uncontroverted evidence and the Workers' Compensation Court's findings compel just that conclusion.
In her testimony, Carrillo described the break policy as follows:
The breaks were normally — sometimes you didn't take a break, sometimes you took a 15- or a 20-minute break, sometimes you just needed to get away and some people would be gone longer than that. It was kind of an unwritten code.
When asked if she was free to take a break when she wanted during the break period, which she said occurred between "2:00 to 3:30 or something," Carrillo replied yes and also testified that she was free to leave the building and to go anywhere she wanted.
Here, Carrillo left the Donovan building at approximately 2:15 p.m. which is within the period of time that afternoon breaks are normally taken by BCBS employees. She planned to walk to a gift shop one and one-half blocks away and testified that she knew exactly what she needed to find. While true that Carrillo testified, as the Workers' Compensation Court found, that she was going to return to the Donovan building to pick up a co-worker, then proceed to the Fuller building "on break," she also testified that it would take her, "two to three minutes to get to the Holter Museum; two to three minutes to look for the mug; two to three minutes to get back to the Donovan Building, and another two to three minutes to pick up Sandy and get over to the Fuller Building; two to three minutes to pick up whatever we were going to buy there
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