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Kawakami v. City and County of Honolulu12/24/2002
st provide "substantial evidence" that the injury is not work-related. Royal State, 53 Haw. at 34-35, 487 P.2d at 280; Acoustic, Insulation & Drywall, Inc. v. Labor & Industrial Relations Appeal Board, 51 Haw. 312, 316, 459 P.2d 541, 544, rehearing denied, 51 Haw. 632, 466 P.2d 439 (1970).
A. Substantial Deviation
BOWS adduced substantial evidence that Kawakami left the scope of employment to embark on a purely personal and unauthorized journey. Kawakami argues, however, that he re-entered the course of employment over seven hours later when he attempted to return the BOWS vehicle to the Beretania Street baseyard. The Board ruled that Kawakami was precluded from re-entering the course of employment because his deviation was substantial, thus severing any work connection. We agree with the Board's analysis and hold that Kawakami is precluded from compensability under the doctrine of substantial deviation.
Within the unitary test, the deviation doctrine teaches that when an employee departs from his normal job duties on a personal errand that serves no purpose of the employer, there is no longer a work connection and any injury sustained during that deviation will not be compensable. See Larson's Workers' Compensation Law § 17.03 (2002) ("When an employee deviates from the business route by taking a side-trip that is clearly identifiable as such, the employee is unquestionably beyond the course of employment while going away from the business route and toward the personal objective[.]" (Footnote omitted.)). The question whether the return trip from the personal deviation is covered, however, is unsettled. "The majority of compensation cases deny recovery in these circumstances, on the ground that a side-trip is a personal deviation until completed[.]" Larson's § 17.03 . Thus, until the employee resumes his normal work route, the personal deviation is not complete and any injury sustained during that interval is not compensable.
Many employees, however, especially those who are provided the use of a company car, may engage in substantial personal activities temporally and spatially remote from their work. These situations raise the question whether an employee can re-enter the course of employment after such a major deviation.
Some jurisdictions have held that when an employee undertakes
a major deviation, major because of its duration in time or because of its nature, or both, it can be said that as a matter of law he has abandoned his employment. Then, regardless if he returns to the route of the business trip, this does not in and of itself return him to the scope of employment and an injury occurring after this does not arise out of or in the course of his employment. Carter v. Burn Construction Company, 508 P.2d 1324, 1327 (N.M. Ct. App. 1973); see also Ogren v. Bitterroot Motors, Inc., 723 P.2d 944, 948 (Mont. 1986) (holding that if a deviation is substantial, the employment relation is completely severed, and the employee cannot re-enter the scope of employment); Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1149 (Alaska 1989) (holding that a five-day delay to visit family before returning home "represented a non-compensable deviation from an otherwise compensable trip[,]" and, thus, injury sustained on the return trip was not compensable); Hebrank v. Parsons, Brinckerhoff, Hall & MacDonald, 212 A.2d 579 (N.J. Super. 1965) (holding that an eleven-hour deviation in employer's car was a total abandonment of employment, and the fact he was returning the car did not operate to restore the coverage lost).
The foregoing view has been adopted by the leading treatise on worker's compensation, Larson's Workers' Compe
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