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Carrillo v. Blue Cross Blue Shield

Court of Workers Compensation of Montana

August 14, 1995

CAROL ANN CARRILLO Petitioner
v.
BLUE CROSS BLUE SHIELD Respondent/Insurer for LIBERTY NORTHWEST INSURANCE Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         Summary: Systems testing analyst for health insurer was struck by a car while walking to gift shop during coffee break to buy mug for co-worker who was leaving employment. Claimant was not required or asked by superiors to purchase the mug. Breaks were not mandatory, but employees often walked to nearby locations to take breaks. Insurer denied liability on ground accident did not occur in course and scope of employment.

         Held: WCC held accident did not occur in course and scope of employment. (Note: this determination was reversed by the Montana Supreme Court in Carrillo v. Liberty Northwest Insurance, 178 Mont. 1, 922 P.2d 1189 (1996) (No. 95-396.)

         The trial in this matter was held on March 23, 1995, in Helena, Montana. Petitioner, Carol Ann Carrillo (claimant), was present and represented by Mr. James G. Hunt. Respondent, Liberty Northwest Insurance (Liberty), was represented by Mr. Larry W. Jones. Exhibit 1 was admitted by stipulation of the parties. Claimant testified on her own behalf. The depositions of claimant, Beth Lamping, Linda Ganno, Candy Osborne and Kelly Munson were submitted for the Court's consideration.

         Issue presented: The sole issue before this Court is whether claimant's injury occurred within the course and scope of her employment.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witness, the depositions and exhibit, the Court makes the following:

         FINDINGS OF FACT

         1. At all times pertinent to this case, claimant was an employee of Blue Cross Blue Shield of Montana (BCBS).

         2. At the time of the accident on March 2, 1993, claimant worked as a systems testing specialist. Her normal work week was 40 hours but she often worked overtime. She was sometimes on call.

         3. Claimant worked at BCBS offices located in the Donovan building. The Donovan building is on the west side of Last Chance Gulch south of its intersection with Lawrence Street in Helena, Montana. BCBS also has a second building in Helena which is commonly referred to as the Fuller building. That building is located on the northwest corner of Fuller and Lawrence streets, approximately a block away from the Last Chance Gulch location.

         4. BCBS provided its employees with a 15 minute break in the morning and another 15 minute break in the afternoon. Breaks were not mandatory; employees were free to take them or not.

         5. Fifty to seventy-five people worked in the Donovan building. There was a break room located in the basement of the building which is small. Employees at the Donovan building often walked to the Fuller building or other nearby locations (Coney Island, the Gold Bar) to take their breaks. BCBS also has a room in the Downtown Athletic Club (DAC) for use as a break room.

         6. A substantial number of employees walk during their breaks. BCBS encouraged its employees to engage in a healthy lifestyle but did not require them to walk during breaks.

         7. BCBS supervisors permit its employees to give going away parties for employees leaving BCBS or transferring to other departments. The parties were at times held during breaks, but sometimes on company time. Planning could be done during company time. On their ...


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