54 Van Natta 93 (2002). MITCHELL D. CLEM, Claimant.

• Case Date: January 31, 2002
• Court: Oregon

Oregon Worker Compensation 2002. 54 Van Natta 93 (2002). MITCHELL D. CLEM, Claimant 93In the Matter of the Compensation of MITCHELL D. CLEM, ClaimantWCB Case No. 00-09274ORDER ON REVIEWWelch Bruun and Green, Claimant AttorneysCavanagh and Zipse, Defense AttorneysReviewing Panel: Members Haynes, Bock, and Biehl. Member Biehl dissents. The insurer requests review of Administrative Law Judge (ALJ) Hoguet's order that set aside the insurer's denial of claimant's injury claim for a low back condition. On review, the issue is whether claimant's injury arose out of and in the course and scope of his employment. We reverse. FINDINGS OF FACT In February 2000, claimant began working for the employer as a painter. (Tr. 69). Claimant's job duties later included occasional supervision of one to two employees. On July 13, 2000, claimant left home for work and was involved in a motor vehicle accident (MVA) at about 7:05 am. (Tr. 11-12). He sought treatment later that day for a low back injury. (Ex. 2, 3). In October 2000, claimant filed a low back injury claim related to the July 13, 2000 MVA. (Ex. 20). The insurer denied the claim on the ground that claimant's condition was not the result of a work-related injury or disease and did not arise out of and in the course and scope of his employment. (Ex. 28). CONCLUSIONS OF LAW AND OPINION The ALJ noted that the parties had raised a significant credibility issue, which was relevant primarily to the "special errand" exception to the going and coming rule. Nevertheless, the ALJ found it was not necessary to address the special errand exception and therefore did not resolve the credibility dispute. On the merits, the ALJ found that claimant was required by the employer to use his personal vehicle for transportation and to have a valid license and insurance. Relying on Over v. Liberty Northwest Ins. Corp., 107 Or App 30 (1991), the ALJ 54 Van Natta 93 (2002)94concluded that claimant's July 13, 2000 MVA was in the course and scope of his work duties for the employer. On review, the insurer argues that the Over case is distinguishable and claimant was not required to have a car at work. The insurer contends that claimant's testimony was not reliable and his injury did not occur within the course and scope of his employment. Although the ALJ did not resolve the credibility dispute, we find it necessary to address that issue first in order to decide whether claimant's MVA arose out of and in the course of his employment. When the issue of credibility concerns the substance of a witness' testimony, the Board is equally qualified to make its own determination of credibility. Coastal Farm Supply v. Hultberg, 84 Or App 282 (1987). On de novo review, we find that claimant is, at best, an unreliable historian. Claimant testified that, on July 13, 2000, the employer had two jobs in progress: the "C" job in Wilsonville and the "M" job in Portland.1 (Tr. 9). Claimant said that morning he left home and went to the employer's shop to pick up some lacquer thinner because there was paint on one of the window frames that needed to be removed. (Tr. 10). He testified that he arrived at the shop about 6:30 a.m., obtained a gallon of lacquer thinner and started driving to the "C" job site in Wilsonville. (Tr. 10-11, 30, 31). Claimant was involved in an MVA at about 7:05 a.m. (Tr. 11-12). He testified that his car was damaged and he was hit in the back by a four-gallon paint box that was in the car for the "M" job. (Tr. 13, 15, 27). Claimant said he was not scheduled for the "M" job, but might have to go there if it rained. (Tr. 27-28). He testified that he was at the "M" job before and after July 13, 2000. (Tr. 34, 36-37). After the accident, claimant said he drove to his parents' house to obtain another car, arriving about 7:30 am. (Tr. 14, 15). Claimant transferred equipment and supplies to another car and said he proceeded to the "C" job site in Wilsonville. (Tr. 15-17). He testified that he gave coworker Ivan the lacquer thinner and told him what needed to be done that day. (Tr. 17-18). Claimant also said he told Ivan about the back injury. (Tr. 26-27). Claimant then drove to a hospital for treatment of his low back injury. (Tr. 18). 1 For privacy reasons, we refer to the employer's painting jobs by the client's initials. 54 Van Natta 93 (2002)95On July 15, 2000, claimant filled out an...