No. 95-396

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

CAROL ANN CARRILLO,

Petitioner and Appellant,

v.

LIBERTY NORTHWEST INSURANCE,

Respondent and Insurer for

BLUE CROSS BLUE SHIELD,

Respondent and Employer.

APPEAL FROM: Workers' Compensation Court of the State of Montana

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James G. Hunt, Dix and Hunt,

Helena, Montana

For Respondent:

Larry Jones, Senior Attorney, Liberty

Northwest Insurance, Missoula, Montana

Filed:

Submitted on Briefs: April 18, 1996

Decided: September 3, 1996
Justice Terry N. Trieweiler delivered the opinion of the Court.

The petitioner, Carol Ann Carrillo, filed a petition in the

Workers' Compensation Court of the State of Montana in which she

sought benefits for an injury which she alleged occurred in the

course and scope of her employment with Blue Cross Blue Shield in

1993. After a trial, the Workers' Compensation Court entered an

order and judgment in which it concluded that Carrillo's injury did

not occur during the course and scope of her employment and denied

her claim. Carrillo appeals the order and judgment. We reverse

the judgment of the Workers' Compensation Court.

The issue on appeal is whether the Workers' Compensation Court

erred when it concluded that Carrillo's injury did not arise out of

and in the course and scope of employment.

FACTUAL BACKGROUND

Carol Ann Carrillo suffered an injury on the afternoon of

March 2, 1993, when she was struck by an automobile while crossing

an intersection in Helena. At the time of her injury, Carrillo had

left the building where she worked and was walking toward the

Halter Museum, which is one and one-half blocks from her place of

employment. She had planned to purchase a gift for a co-worker who

was leaving and for whom Carrillo and other co-workers were

planning a party. Carrillo worked for Blue Cross Blue Shield

(BCBS) of Montana which was insured against workers' compensation

claims by Liberty Northwest Insurance (Liberty). After her injury,

Carrillo filed a timely claim for workers' compensation which

2
Liberty denied on the basis that her accident did not arise out of

and in the course of her employment.

After Liberty denied her claim, Carrillo filed a claim with

the Workers' Compensation Court in which she alleged that she was

injured when hit by a car during her fifteen-minute break from

work. Liberty responded and contended that she had abandoned her

employment and was not on break. The Workers' Compensation Court

held a trial on March 23, 1995, to determine whether Carrillo's

injury occurred within the course and scope of her employment.

Testimony from the trial and from depositions reveals that at

the time of the accident, Carrillo worked at BCBS offices located

in the Donovan building which is on the west side of Last Chance

Gulch south of its intersection with Lawrence Street in Helena.

BCBS provided its employees with a fifteen-minute break in the

morning and another fifteen-minute break in the afternoon.

Employees customarily took the afternoon break sometime between

2:00 and 3:30 p.m. A substantial number of BCBS employees walk

during their breaks and Carrillo testified that she walked during

ninety percent of her breaks. While BCBS encouraged its employees

to engage in a healthy lifestyle, it did not require them to walk

during breaks or even to take breaks; employees were free to take

them or leave them.

A small break room was located in the basement of the Donovan

building where Carrillo worked. Approximately fifty to seventyfive employees worked in the Donovan building and employees at the

3
Donovan building often walked to the Fuller building for breaks.

The Fuller building is a second BCBS office which is located on the

northwest corner of Fuller and Lawrence streets, approximately one

block away from the Donovan building. Employees also walked to

other nearby businesses to take their breaks and BCBS also had a

room in the Downtown Athletic Club for use as a break room.

Testimony also revealed that BCBS permits its employees to

give going-away parties for employees leaving BCBS or transferring

to other departments. The parties were, at times, held during

breaks and planning could be done anytime during the day. On their

breaks, employees would sometimes buy going-away gifts from nearby

merchants.

At the time of the accident, Carrillo's direct supervisor,

Beth Lamping, was leaving Carrillo's unit and transferring to

another job at BCBS. Therefore, Carrillo and her co-employees

planned a going-away party for Lamping and decided to buy her a

coffee mug to replace the one she had broken.

At approximately 2:15 p.m. on March 2, 1993, Carrillo left the

Donovan building to go to the Holter Museum gift shop, which is

approximately one and one-half blocks away from the Donovan

building, to buy Lamping a replacement mug. Carrillo was not

required by BCBS or her supervisor to purchase a mug for Lamping.

She intended to return to the Donovan building to pick up a

co-worker, then proceed to the Fuller building during her break.

However, while on her way to the Holter Museum, a car struck her

4
while she was crossing Lawrence Street and she sustained the

injuries for which she now seeks compensation.

Ultimately, the BCBS employees held the party for Lamping

during work hours and Carrillo's co-workers drove to Carrillo's

house to take her to the party.

After a trial, the Workers' Compensation Court concluded that

Carrillo was not entitled to workers' compensation benefits because

she did not suffer an injury arising out of and in the course of

her employment.

DISCUSSION

Did the Workers' Compensation Court err when it concluded that

Carrillo's injury did not arise out of and in the scope of her

employment?

We review the Workers' Compensation Court's conclusions of law

to determine whether they are correct. CNA Ins. Cos. v. Dunn (1995) , 273

Mont. 295, 298, 902 P.2d 1014, 1016; Stordolenv. Ricci’sFoodFarm (1993),

261 Mont. 256, 258, 862 P.2d 393, 394. We review the Workers'

Compensation Court's findings of fact to determine whether

substantial evidence supports the findings. Wunderlich v. Lumbermens Mut.

Casual&Co. (1995), 270 Mont. 404, 408, 892 P.2d 563, 566 (citing Smith

v. UnitedParcelServ. (1992), 254 Mont. 71, 75, 835 P.2d 717, 720).

Section 39-71-407(l), MCA, provides in part that ' [elach

insurer is liable for the payment of compensation . . to an

employee of an employer that it insures who receives an injury

5
arising out of and in the course of emulovment." (Emphasis added.)

We have stated that:

N o exact formula can be laid down which will

automatically solve every case involving the question of

whether an accident arises out of and in the course of

employment, but each case must depend upon its particular

facts and circumstances.

Parfollv.AnacondaCopperMiningCo. (1949), 122 Mont. 305, 310-11, 203 P.2d

974, 977.

In this case, the Workers' Compensation Court relied on

§ 39-71-407 (3), MCA, to reach its conclusion that Carrillo did not

sustain her injury during the course and scope of employment.

Section 39-71-407(3), MCA, pertains to traveling employees and

provides that "[aIn employee who suffers an injury . . . while

traveling is not covered by this chapter unless" certain conditions

are met. Subsections (a) and (b) of 39-71-407(3), MCA, delineate

when such injuries would be compensable and provide:

(a)(i) the employer furnishes the transportation or

the employee receives reimbursement . . . 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 Court first concluded that Carrillo was traveling when

injured 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 emulover's premises."

1A Larson Workmen's Compensation Sec. 25.00 at 5-275

6
(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, 5 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 Halter 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 Halter 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

7
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:OO 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

at the Fuller Building, and another two to three minutes to get

back." Therefore, she testified that her planned activities would

have taken between twelve and eighteen minutes to complete. And,

had Carrillo not been injured, she would have completed her

activities within the time allocated for BCBS employee breaks--

fifteen to twenty minutes.

Therefore, based on the undisputed evidence and the Workers'

Compensation Court's finding that this was a typical way in which

BCBS employees spent their break time, we conclude that Carrillo

was on break when she was walking to the Holter museum and was hit

by a car and injured.

Having concluded that Carrillo was on break when injured, we

must determine if and when an employee injured during an authorized

break is within the course and scope of employment. We have not

previously decided this issue. In fact, only two Montana cases

involve somewhat similar circumstances- -Shicklandv.StateCompensationMutual

Ins. Fund (19951, 273 Mont. 254, 901 P.2d 1391, and Gearyv.AnacondaCopper

Co. (1947), 120 Mont. 485, 188 P.2d 185.

In Geary, the worker suffered an eye injury during a lunch hour

game of handball on the employer's premises. The employer required

the employees to remain on the premises in an "on call" status

during the lunch period. Some of the employees had been playing

handball during the lunch hour for approximately three months prior

9
to the accident. On some occasions, the claimant's foreman had

participated in the game and in fact was present on the day of the

accident. Geary , 120 Mont. at 486, 188 P.2d at 483. In that case,

we looked at case law from other jurisdictions, indicated the

importance of the employer's knowledge of the activity and the

employer's requirement that the employees remain on call, noted

that the Workers' Compensation Act was to be construed liberally,

and found the injuries compensable. Geary , 120 Mont. at 490, 188

P.2d at 187.

While we awarded compensation in Geary, it differs from this

case in several respects. When we decided Geary, a different

version of the Act applied and we were required to liberally

construe the Act. Most importantly however, according to Larson's

Workmen's Compensation Law, Geary differs because the injury

occurred during a lunch break rather than during a "coffee break."

In his treatise, Larson differentiates between injuries which

occur during unpaid lunch breaks and those which occur during

shorter, paid coffee breaks. See1 Larson's Workmen's Comoensation

-ILaw § 15.51 at 4-157, and 5 15.54 (1996). Specifically, unpaid

lunch breaks are treated like trips at the beginning or end of a

workday and involve the "going to and from" rule with its

exceptions, whereas shorter paid breaks do not involve the "going

to and from” rule with its exceptions. See generally 1 Larson,

§ 15.51; § 15.54.

10
The Montana Department of Labor and Industry also recognizes

the distinction between coffee breaks and longer meal periods:

Bona fide meal periods. Bona fide meal periods are

not work time. Bona fide meals do not include coffee

breaks or time for snacks. These are rest periods. The

employee must be completely relieved from duty for the

purposes of eating regular meals. Ordinarily 30 minutes

or more is long enough for a bona fide meal period. A

shorter period may be long enough under special

circumstances. The employee is not relieved if he is

required to perform any duties, whether active or

inactive while eating. For example, an office employee

who is required to be at his machine is working while

eating.

Rule 24.16.1006(Z) (a), ARM.

Larson concludes that this difference between coffee breaks

and lunch breaks is justified "because normally the duration of the

lunch period, when lunch is taken off the premises, is so

substantial and the employee's freedom of movement so complete that

the obligations and controls of employment can justifiably be said

to be in suspension during this interval." 1 Larson, § 15.54 a t

4-183.

We have previously determined that § 39-71-407(3), MCA, the

statute relied on by the Workers' Compensation Court to decide this

case, codified Montana's going to and from rule:

In 1987, the legislature amended 5 39-71-407, MCA, to

codify exceptions to the general workers' compensation

rule that actions occurring when employees are going to

or coming from work are not within the course and scope

of their employment.

D&v. TradeStreet,Inc. (1993), 258 Mont. 349, 352, 854 P.2d 828, 829.

Therefore, according to Larson's analysis of the difference between

lunch breaks and coffee breaks, while § 39-71-407(3), MCA--the

11
codification of Montana's going to and from rule--applies to

injuries sustained during lunch hours, it does not concern injuries

which a worker suffers while on coffee break. Because we have

previously determined that Carrillo was on break when injured, the

Workers' Compensation Court erred when it decided this case based

solely on Carrillo's failure to meet the requirements of

§ 39-71-407(3), MCA. Reliance on this statute was also erroneous

because it first required the Workers' Compensation Court to

conclude that Carrillo was "traveling" at the time of her injury.

In order to arrive at that conclusion, the court relied on its

common understanding of the term and a misapplication of Larson's

reference to "traveling employees" at 1A Larson's Workmen's

Compensation Law, 5 25.00 at 5-275. However, according to Black's

Law Dictionarv 1500 (6th ed. 1990), to travel is "[tlo go from one

place to another at a distance; to journey." It does not seem to

include trips of one and one-half blocks.

Recently, in Strickland, we considered whether a person injured

after having left work during her work shift was injured during the

course and scope of her employment. Sirickland, 273 Mont. at 257-59,

901 P.2d at 1393-94. We held that a person injured while on a

personal errand was not acting within the course and scope of her

employment when injured. S@ickland, 273 Mont. at 259, 901 P.2d at

1394. In that case, we agreed with both the Workers' Compensation

Court's finding that claimant left work on a personal errand and

12
with its conclusion that claimant was outside the course and scope

of her employment

In Strickland we used § 39-71-407(3), MCA, as did the Workers'

Compensation Court, to conclude that claimant's injuries were

outside the scope of employment; however, in Shckland, we did not

determine whether an injury suffered while on a break was

compensable. Strickland neither contested the applicability of

5 39-71-407(3), MCA, nor did she contend that she was injured while

on break. Instead, Strickland asked us to conclude that she was

within the course and scope of her employment despite the

determination that she was on a personal errand. Strickland, 2 7 3

Mont. at 258, 901 P.2d at 1393.

Because neither Strickland nor Geary apply, we have not

specifically dealt with the question presented here. However, case

law from other jurisdictions and Larson's discuss the issue. Larson

states:

[Nlowthat the coffee break or rest break has become

a fixture of many kinds of employment, close questions

continue to arise on the compensability of injuries

occurring off the premises during rest periods or coffee

breaks of various durations and subject to various

conditions. It is clear that one cannot announce an

all-purpose "coffee break rule," since there are too many

variables that could affect the result . . . [such as1

the duration . . whether the interval is a risht fixed

by the emolovment contract, whether it is a paid

interval, whether there are restrictions on where the

emplovee can qo during the break, and whether the

emplovee's activitv durinq this period constituted a

substantial personal deviation.

The operative principle which should be used to draw

the line here is this: If the employer, in all the

13
circumstances, including duration, shortness of the

off-premises distance, and limitations on off-premises

activity during the interval can be deemed to have

retained authority over the employee, the off-premises

injury may be found to be within the course and scope of

employment.

1 Larson, § 15.54, at 4-183 through -85 (footnotes omitted)

(emphasis added).

Consistent with Larson, several states allow compensation for

injuries sustained during coffee breaks. For example, in Jordanv.

Western Electric Co. (Or. App. 1969), 463 P.2d 598, 599, claimant

suffered an injury off the premises while returning from a coffee

break. While break facilities were available on the premises,

employees customarily went to the nearest restaurant, approximately

two and one-half blocks away. Jordan, 463 P.2d at 599. An award of

compensation was affirmed because the coffee break was for the

employer's benefit as well as the employee's, it was contemplated

under the contract of employment, it was acquiesced in by the

employer, there was an element of control because the supervisor

accompanied the employees, and the claimant was paid for the coffee

break. Jordan, 463 P.2d at 601-02.

In Mellisv. McEwen (Or. 1985), 703 P.2d 255, an employee suffered

an injury in a public cafeteria during a fifteen-minute break. The

Oregon court applied the Jordan factors, found claimant's injury was

within the course and scope of employment, and stated: "[Wle find

that a 15 minute break is a 'typical kind of coffee break activity

that is contemplated by an employer' and that claimant's activity

14
was not a departure from the employment relationship." Mellis , 7 0 3

P.2d at 257.

In Roache v. Industrial Commission ofthe State of Colorado (Co10 . App . 1986 ) ,

729 P.2d 991, the claimant left her work place and was injured in

an explosion in a convenience store where she had gone during a

fifteen-minute paid break. The court adopted the Larson analysis

and awarded compensation:

Determination of these issues rests upon inquiry

into such matters as: whether the break period is of a

duration so short as to support the inference that

employment activities were virtually uninterrupted;

whether it is provided for by employment contract;

whether it is a paid interval; whether the employer

permits off-premises breaks; whether the off-premises

location is in close proximity to the employment site;

and whether there are limitations on where the employee

may go during break.

. . . The break period was of short duration and it

was a paid interval. The store was located not far from

the claimant's place of employment, and the visit was for

the basic purpose of rest and confinement.

Roache , 729 P.2d at 992 (citations omitted).

In a California case, an employee suffered an injury when,

during a paid coffee break, she and several other employees went

swimming in a canal a short distance from the employer's property.

State Camp. Ins. Fund v. Workmen’s Camp. Appeals Bd. (Cal. 1967) , 434 P .2d 619,

620. The court found that the employer at least tolerated similar

acts and awarded compensation. State Camp. Ins. Fund, 434 P.2d at 621.

Therefore, other courts have found injuries which occurred

during coffee breaks compensable and in doing so have looked to the

1 5
considerations set forth in Larson. One of those factors is

whether the employee was paid during the break. An uncompensated

employee should be free to do whatever he or she wishes, whereas a

paid employee is not. See King Waterproofing Co. v. Slovksy (Md . 19 8 7 ) , 5 2 4

A.2d 1245, 1249 (distinguishing between short paid breaks and

longer unpaid lunch breaks). Carrillo testified that BCBS paid her

during her breaks, and therefore, Carrillo satisfies this factor.

As to Larson's criteria that the right to a break be fixed in

the employment contract, Carrillo testified that BCBS employees

were entitled to two breaks, one in the morning and one in the

afternoon. Not only did Carrillo testify to her right to breaks,

but also, the Montana Department of Labor and Industry Regulations

defines rest period as hours "worked":

Rest. Rest periods of short duration, running from

5 minutes to about 20 minutes, are common in industry.

They promote efficiency of the employee and are

customarily paid as working time. They must be counted

as hours of work. Compensable time of rest periods may

not be offset against other working time such as

compensable waiting time or on-call time.

Rule 24.16.1006(l), ARM (emphasis added). The Department of Labor

also recognizes that employers provide breaks to their employees,

that these breaks serve the employer's interests, and that they are

not a departure from work time.

A third factor is "whether there are restrictions on where the

employee can go during the break." Liberty asserts that evidence

does not show that Carrillo's employer exercised any control over

16
her activity during that break, but instead shows that it simply

set general boundaries within which the break could be taken and

set limitations on the duration of the break. However, while some

of the testimony supports Liberty's assertion, testimony also

reveals that Carrillo had in the past been asked by her supervisor

not to leave the building because she might be needed and had also

been asked to postpone her break. Furthermore, Carrillo testified

that, on occasion, someone had been dispatched to find her while on

break and to bring her back. Therefore, although BCBS only set

boundaries within which the break could be taken and set

limitations on the duration of the breaks, these limitations

amounted to the requisite "restrictions on where the employee can

go during the break" and therefore, Carrillo also satisfies this

element.

Finally, we look at whether the employee's activity during

this period constituted a substantial personal deviation. In this

case, Carrillo's injury occurred while she walked to a gift shop

one and one-half blocks away from her work place. Carrillo knew

exactly what she needed and testified that her planned activities

would have taken between twelve and eighteen minutes to complete.

Carrillo also testified that her employer not only acquiesced in

the employees' departure from the premises during break, but gave

them little choice because of the inadequate break facilities at

the Donovan building where she worked. Finally, she also testified

17
that she walked during ninety percent of her breaks and that her

director walked with her on occasion.

Carrillo also testified about the parties that employees at

BCBS held for others who were transferring or leaving. Testimony

revealed that employees expected these parties, that both the

planning and the parties occurred during work hours, and that

supervisors knew about and participated in these parties. In this

case, the employees planned a party for a supervisor who was

leaving and planned to give her a particular mug; Carrillo went to

purchase the mug at the Holter gift shop when she was injured.

Because Carrillo usually walked on breaks, because she would have

been on a break of normal duration if not injured, and because she

went to the gift shop to look for a gift for use at one of the BCBS

parties, her activity during the break period did not constitute a

substantial personal deviation.

Therefore, Carrillo meets the factors Larson sets forth for

determining whether one's injury during a coffee break is within

the course and scope of employment. Carrillo had a right to a

break for which she was paid; BCBS placed restrictions on where the

employees could go during the break; and Carrillo's activity did

not constitute a substantial personal deviation from her

employment.

For these reasons, we conclude that Carrillo was acting within

the course and scope of her employment when injured and the

Workers' Compensation Court erred when it concluded otherwise. We

18
therefore reverse the order and judgment of the Workers'

Compensation Court.

We concur:

Justices

Justice William E. Hunt, Sr., did not participate in this decision.

19
Justice Charles E. Erdmann dissenting.

I respectfully dissent from the Court's opinion.

I do not agree with the majority that the Workers'

Compensation Court made no finding that Carrillo was or was not on

her break at the time of her injury. In Finding of Fact No. 10,

the Workers' Compensation Court found that Carrillo left the

Donovan building to go to the Halter Museum gift shop, after which

she intended to return to the Donovan building to pick up a

co-worker and then go on break. This finding accurately reflects

Carrillo's testimony that after she purchased the mug she planned

to return to the Donovan building to go on break with her

co-worker.

Carrillo's deposition states as follows:

Q. Why don't you tell me just in your own words, take as

long or short as you like, what happened on March 2nd,

1993 when you got hurt. Why don't you start with what

you were doing just before you went on break.

A. Well, we had just finished or we had started to

discuss and were contemplating what we were going to do

for Beth, my supervisor, for her party and we were trying

to decide who we were going to have come, what we were

going to have, what kind of present, if we were still

going to continue, to look for the present that I hadn't

been able to find. I had spoken with - I don't remember

if it was Kelly or somebody there - they all knew that I

had anticipated going up to the Halter Museum to look for

the present for Beth. I had talked to Sandy before I

left the building and asked her if she wanted to come

along and she said "No."

Q. Excuse me, Sandy Warren?

A. Yes. And she said, "No." She says, "When you get

through with the Halter Museum, why don't you come back,

pick me up, and we'll go over to the Fuller Building on

break," and I said "Okay," and I left the building.
Q. You left the building and started to cross the

intersection and you were hit by a vehicle?

A. Right.

Carrillo testified to the same effect at trial:

Q. This morning you testified about Sandy Warren calling

and asking you to go on break, and I believe you told her

that you wanted to go to the Holter Museum first; is that

right?

A. Yes.

Q. You agree, don't you, that it was your intent after

you went to the Halter Museum that you were going to go

back and get Sandy and then you were going to go on break

on the day you were hit by that vehicle?

A. Would you rephrase that, please?

Q. Yes.

[Court reporter read back the previous question]

A. Yes.

Later in her testimony, Carrillo's attorney attempted to

rehabilitate her deposition and her earlier testimony with the

following question and answer:

Q. Because it's critical to this situation, 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?

A. Yes.

The majority refers to this latter question and answer as

Carrillo's "uncontroverted testimony at trial" and relies on it

exclusively. The record is clear, however, that Carrillo herself

controverted that testimony.

This Court's function on review is confined to determining

whether there is substantial evidence to support the findings and

21
not to determine whether there is sufficient evidence to support

contrary findings. Davis v. Jones (1985), 216 Mont. 300, 303, 701

P.2d 351, 353. Here, the Workers' Compensation Court observed

Carrillo's demeanor, assessed her conflicting testimony and made a

finding accepting that portion of her testimony that she intended

to go on break after shopping. There is substantial evidence in

the record--through Carrillo's own testimony--that she was on a

personal errand when she was injured and that she intended to start

her break when she returned to the Donovan building. The majority

ignores Carrillo's testimony and the standard this Court must apply

when conflicting evidence exists. Where there is conflicting

evidence, it is the Workers' Compensation Court's duty, and not

this Court's, to resolve such conflicts. Olson v. Westfork

Properties, Inc. (19761, 171 Mont. 154, 157, 557 P.2d 821, 823.

This Court reviews the Workers' Compensation court ' s

conclusions of law to determine whether they are correct. CNA Ins.

Co. v. Dunn (1995), 273 Mont. 295, 298, 902 P.2d 1014, 1016. In

the present case, I would hold that the Workers' Compensation Court

reached the correct result, although it improperly relied on § 39-

71-407(3), MCA, in doing so. The Workers' Compensation Court

analyzed Carrillo as a "traveling employee" under 5 39-71-407(3),

MCA, and concluded that her injury did not arise out of and in the

course of employment. A "traveling employee" is defined as an

employee "whose work entails travel away from the employer's

premises." See Larson's Workmen's Comuensation Law, vol. lA,

5 25.00 at 5-275 (1996). As Carrillo was not required to travel

22
from the Donovan building, I agree with the majority that 5 39-71-

407(3), MCA, is not applicable to this case.

Section 39-71-407(l), MCA (1991), states in part that "[e]very

insurer is liable for the payment of compensation . . . to an

employee . . who receives an injury arising out of and in the

course of his emplovment." (Emphasis added.) The injuries must

have arisen out of and in the course of her employment in order to

impose liability on the insurer.

In Courser v. Darby School District No. 1 (19841, 214 Mont.

13, 692 P.2d 417, we identified four controlling factors to

determine whether an injury is work-related: (1) whether the

activity was undertaken at the employer's request; (2) whether the

employer, either 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 benefited from the activity. Courser, 692 P.2d

at 419. Applying the facts of the present case to the above

factors leads to the clear conclusion that Carrillo's injuries were

not work-related.

Blue Cross Blue Shield (BCBS) did not request that Carrillo

make the trip to the Halter Museum to purchase the coffee mug nor

did it directly or indirectly compel the errand. Carrillo's

supervisors did not control or participate in the quest for the mug

and even though the gift and employee party may have boosted

employee morale, such a general benefit to the employer is not

enough by itself to bring such recreational activity within the

23
course of employment boundaries. See Larson's Workmen's

Comoensation Law, vol. lA, 5 22.33 at 5-170 and -171 (1996). This

Court has previously held that a person injured while on a personal

errand is not acting within the course and scope of her employment

when injured. Stricklandv. State Comp. Mut. Ins. Fund (1995), 273

Mont. 254, 259, 901 P.2d 1391, 1394.

In the present case, the majority errs by making a finding of

fact that Carrillo was on her break instead of reviewing whether

substantial evidence supports the Workers' Compensation Court's

finding that she intended to go on break after returning from the

Holter Museum gift shop. Not surprisingly, the majority then

places much reliance on Professor Larson's discussion of whether

injuries which occur off the employer's premises during rest

periods or coffee breaks are compensable. The majority's entire

discussion of the Larson criteria is premised on its own finding

that Carrillo was on her break when the injury occurred. On the

contrary, I submit that substantial evidence supports the Workers'

Compensation Court's finding that she intended to go on break after

returning from the museum gift shop, and therefore, the Larson

criteria do not apply. Nevertheless, even assuming arguendo that

the majority is correct and Carrillo was on her break, her injuries

are not compensable even under the Larson criteria.

Larson sets forth the following factors: (1) the duration of

the break and whether the interval is a right fixed by the

employment contract; (2) whether it is a paid interval; (3) whether

there are restrictions on where the employee can go during the

2 4
break; and (4) whether the employee's activity during the break

period constitutes a substantial personal deviation. Larson,

vol. 1, § 15.54, at 4-184 and -185. Larson states that:

If the employer, in all the circumstances, including

duration, shortness of the off-premises distance, and

limitations on off-premises activity during the interval

can be deemed to have retained authority over the

employee, the off-premises injury may be found to be

within the course of employment.

Larson, vol. 1, 5 15.54, at 4-185.

In the present case, I agree that as a BCBS employee Carrillo

was entitled to a break and was paid for the time. However, I do

not agree with the majority that BCBS restricted Carrillo on where

she could go during the break. The majority opinion correctly

notes that Carrillo testified that the breaks were not required and

that she was free to leave the building during her break and to go

anywhere she wanted. If she chose to undertake a personal errand

during her break and was injured, she was outside the scope of her

employment. Moreover, I do not agree with the majority's

conclusion that her activity during the break did not constitute a

substantial personal deviation. On the contrary, Carrillo decided

to run a personal errand beyond any authority retained by BCBS.

Carrillo was not required by BCBS or her supervisor to purchase the

mug and, even though the journey was only one and one-half blocks

away from the work place, the purpose was a personal one. The trip

to obtain the mug therefore constituted a substantial personal

deviation from her employment.
The Workers' Compensation Court made a finding that Carrillo

was not on her break when the injury occurred and that finding is

supported by substantial evidence, including Carrillo's own

testimony. Under the traditional Courser criteria and based on our

previous holding in Strickland, I would hold that Carrillo was

injured when she was on a personal errand outside the scope of her

employment with BCBS. Her injuries did not arise out of the course

of her employment and therefore are not compensable.

I would affirm the judgment below.

c3czFxL

Justice

Justice Karla M. Gray joins in the foregoing dissenting opinion.

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Justice Terry N. Trieweiler specially concurring.

I submit the following concurring opinion in response to the

dissent.

The dissent seems to agree that Carol Carrillo's disability

benefits were denied by the Workers' Compensation Court for the

wrong leaSOIl. The dissent then goes on to argue that that

incorrect decision can be affirmed by taking a portion of her

testimony out of context and making a semantic argument that it

creates a conflict with other testimony regarding whether she was

or was not on break at the time of her injury.

However, a review of the entire record discloses that there is

only one point in the entire trial at which any witness is asked

directly whether Carol Carrillo was or was not on break at the time

she was injured. That point involved the question and answer cited

in the majority opinion and relied on for its result.

Nowhere in the entire record did anyone testify that Carol

Carrillo was not on break at the time of her injury.

On the other hand, in support of her unequivocal testimony

that she was on break, the following undisputed facts were

established by her testimony and the testimony of others:

1 . Afternoon breaks were allowed during the period of time

from 1:30 to 3:00 p.m.

2 . The length of time for a break was normally from fifteen

to twenty minutes.

3 . During breaks employees were encouraged to leave their

work stations and even leave the building.

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4 . Seventy-five to eighty percent of Blue Cross's employees

left the building during their break.

5 . Carol Carrillo normally walked during her break and had

she not been on her way to the Halter Museum to pick up a mug for

her supervisor's party she would, in all likelihood, still have

been walking at the exact time and place where she was injured.

She walked ninety percent of the time during her afternoon break.

6 . Carol Carrillo's accident occurred at 2:15 p.m. within

the normal parameters of her afternoon break.

7. Her break was something that was encouraged and provided

as a right of employment in the employee handbook, and during her

break she was paid.

8 . Although she had to let other employees know where she

was going in case her employer needed to recall her, she was free

to go where she chose on break and it was not uncommon for

employees to go to the walking mall, the Sweetgrass Bakery,

Big Al's, the Common Market, the Federal Building, the City-County

Building, or to other local business establishments during their

break.

Some confusion has been created and it is, at best, minimal

confusion, due to the phraseology of questions or answers in which

she stated that after returning from the Museum she intended to

pick up a fellow employee and go to the Fuller Building to use

their vending machines while on break. At one place in the

transcript she states that she intended to go to the Fuller

Building while "on break." At another place she either states or

28
was told that they would go to the Fuller Building for break.

However, there is absolutely nowhere in the transcript where she or

anyone else states that she was not already on break at the time

that she was going to the Halter Museum. Furthermore, there is

nothing inconsistent with starting her break by picking up a gift

at the Holter Museum and continuing her break after picking up her

co-employee and going to the Fuller Building to pick up

refreshments. The record clearly establishes that all of these

matters could have been accomplished well within the time allowed

for afternoon breaks.

More importantly, neither is there any finding entered by the

Workers' Compensation Court to the effect that Carol was not on

break at the time of her injury. The finding made by the court and

relied on by the dissent is that after picking up her friend she

intended to go to the Fuller Building for break. However, once

again, that is not inconsistent with the fact that she was already

on break prior to picking up her friend. Had she not been on break

she could not have left the building in the first place.

Totally inconsistent with the dissent are the following

findings made by the Workers' Compensation Court:

1 . Blue Cross Blue Shield provided its employees with a

fifteen minute break in the morning and another fifteen minute

break in the afternoon. (Finding No. 4)

2 . Employees at the Donovan Building often walked to the

Fuller Building or other nearby locations (Coney Island, the Gold

Bar) to take their breaks. (Finding No. 5)

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3 . A substantial number of employees walked during their

breaks. (Finding No. 6)

4 . On their breaks, employees would sometimes buy going-away

gifts from nearby merchants. (Finding No. 7)

5 . Claimant and her co-employees planned a going-away party

for claimant's supervisor and decided to buy her a replacement

coffee mug for the one she had broken. (Finding No. 9)

6 . At approximately 2:15 p.m. on March 2, 1993, claimant

left the Donovan Building to go to the Halter Museum gift shop,

which is approximately a block and a half away from the Donovan

Building, to buy Lamping a replacement mug. (Finding No. 10)

I submit that there is no other conclusion that can be drawn

from these findings in combination with the undisputed testimony

other than that Carrillo was on break at the time of her injury.

us 6e

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