Bruntz-Ferguson v. Liberty Mut. Ins. (In re Bruntz-Ferguson)

• Citation: 310 Or.App. 618,485 P.3d 903
• Decision Date: 14 April 2021
• Docket Number: A166216
• Parties: In the MATTER OF the COMPENSATION OF Ashley BRUNTZ-FERGUSON, Claimant. Ashley Bruntz-Ferguson, Petitioner, v. Liberty Mutual Insurance and IBM Corp - International Business Machines, Respondents.
• Court: Court of Appeals of Oregon

310 Or.App. 618

485 P.3d 903

In the MATTER OF the COMPENSATION OF Ashley BRUNTZ-FERGUSON, Claimant.Ashley Bruntz-Ferguson, Petitioner,

v.Liberty Mutual Insurance and IBM Corp - International Business Machines, Respondents.

A166216

Court of Appeals of Oregon.

Argued and submitted August 1, 2019

April 14, 2021

Julene M. Quinn, Albany, argued the cause and filed the briefs for petitioner.

Laura A. Newsom argued the cause for respondents. On the brief was Camilla Thurmond.

Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.

POWERS, J.

Claimant seeks judicial review of an order of the Workers’ Compensation Board affirming an order of an administrative law judge (ALJ) upholding employer's denial of her injury claim. The threshold issue is whether employer had sufficient control over the area where the injury occurred such that the "parking lot" exception to the "coming and going rule" would apply. We conclude that employer had sufficient control over the area of injury such that claimant's injury occurred "in the course of" her employment. We also conclude that claimant's injury "arose out of" her employment. Accordingly, we reverse and remand the board's order.

We review the board's order upholding the denial of claimant's claim for errors of law and substantial evidence. ORS 656.298(7) ; ORS 183.482(7), (8). ORS 183.482(8)(c) provides that substantial evidence "exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." In reviewing for substantial evidence, we also review the board's order for substantial reason, which requires us to determine whether the board provided a rational explanation of how its factual findings lead to the legal conclusions on which the order is based. NAES Corp. v. SCI 3.2, Inc. , 303 Or. App. 684, 692, 465 P.3d 246, rev. den. , 366 Or. 826, 470 P.3d 364 (2020).

We begin with the legal context for this dispute. When a person is injured at work, that injury is compensable if it "aris[es] out of and in the course of employment." ORS 656.005(7)(a). Rather than creating two distinct tests, each of which must be satisfied, Oregon has adopted a unitary approach—known as the work-connection test—where "arising out of" and "in the course of" are two prongs of a single inquiry that must determine "whether the relationship between the injury and the employment is sufficient that the injury should be compensable." Norpac Foods, Inc. v. Gilmore , 318 Or. 363, 366, 867 P.2d 1373 (1994). Under the unitary work-connection test, an injury must—to some degree—meet both prongs and the test "may be satisfied if the factors supporting one prong are minimal while the factors supporting the other prong are many." Compton v. SAIF , 195 Or. App. 329, 332, 97 P.3d 669, rev. den. , 337 Or. 669, 104 P.3d 601 (2004) (internal quotation marks and citation omitted). Each prong of the work-connection test measures the relationship between the injury and the employment in a different manner. The "arising out of" employment prong examines the "causal connection between the injury and the employment," whereas the "in the course of" employment prong assesses "the time, place, and circumstances of the injury." Norpac Foods, Inc. , 318 Or. at 366, 867 P.2d 1373. Both elements or prongs must be evaluated, because neither one is dispositive. As the Supreme Court has explained,

"although the ‘arising out of’ and ‘in the course of’ prongs provide guidance, the unitary work-connection test does not supply a mechanical formula for determining whether an injury is compensable. We evaluate those factors in each case to determine whether the circumstances of a claimant's injuries are sufficiently connected to employment to be compensable."

Robinson v. Nabisco, Inc. , 331 Or. 178, 185, 11 P.3d 1286 (2000).

Under the "in the course of" prong, "Oregon courts follow the ‘going and coming rule,’ which provides that injuries sustained while going to or coming from the workplace are not compensable." Henderson v. S.D. Deacon Corp. , 127 Or. App. 333, 336, 874 P.2d 76 (1994). That rule applies to injuries occurring both before and after the workday, and it also applies to injuries occurring while an employee is going to or coming from a break. Enterprise Rent-A-Car Co. of Oregon v. Frazer , 252 Or. App. 726, 731, 289 P.3d 277 (2012), rev. den. , 353 Or. 428, 299 P.3d 889 (2013).

One exception to the "going and coming rule" is the "parking lot" exception.

That exception applies "when an employee traveling to or from work sustains an injury ‘on or near’ the employer's premises." Henderson , 127 Or. App. at 336, 874 P.2d 76. That is, the "in the course of" prong may be satisfied if "the employer exercises some control over the place where the injury is sustained." Id. (internal quotation marks and citation omitted). As the Supreme Court explained:

"Whether the requisite control is evinced by increased, employer-created hazards, or by the employer's property rights to the area where the injury is sustained, is immaterial. Some form of employer control of the area demonstrates the work-connection necessary to make the injury compensable."

Cope v. West American Ins. Co. , 309 Or. 232, 239, 785 P.2d 1050 (1990) (citations omitted).

With that context in mind, we set out the undisputed facts. Claimant worked at a call center in Salem. As claimant approached the office building for her shift beginning at 5:00 a.m., she stepped onto the curb leading to a gravel path, slipped, and fell backwards off the curb. The ground was snowy and icy on that mid-December morning. Claimant was injured from the fall.

Employer leases its office space, along with access to a "common area," and parking spaces. Under the terms of the lease, employer pays additional rent for its share of the maintenance of the common area, and employer "and its employees *** shall have the non-exclusive right and license to use the Common Area." The lease designated both the curb where claimant was injured and the gravel path as a "Common Area." Employer's facility manager testified that employer may request repairs and maintenance of the common area. The lease also provides that employer may pay additional rent for maintenance of curbs and pedestrian pathways and that that maintenance "shall be subject to [the] Landlord's sole management and control." However, under the lease, if the tenant requests maintenance and the landlord fails to timely make the necessary repairs, the tenant would be entitled to a pro-rata abatement of rent.

After claimant was injured, she filed a claim. Employer denied the claim, relying on the "going and coming" rule. Claimant requested a hearing and argued that her injury was compensable under the "parking lot" exception to the "going and coming" rule. The ALJ upheld the denial, concluding that the parking lot exception did not apply because the injury did not occur in an area controlled by employer. Therefore, the ALJ determined that claimant's injury was not sufficiently connected to her work to make her injury compensable.

The board affirmed the ALJ's order. The board reasoned that, although

"the employer paid for a portion of maintenance of the common areas, the landlord had ‘sole discretion’ regarding maintenance of the common area. Therefore, because the employer did not have a right to require maintenance, or an obligation to provide maintenance, it did not have sufficient control over the common area to create an exception to the ‘going and coming’ rule.

"* * * * *

"Accordingly, because claimant's injury occurred while she was going to her employment, and the ‘parking lot’ exception to the ‘going and coming’ rule does not apply, the injury did not occur within the course of her employment."

The board further concluded that claimant's injury did not arise out of her employment:

"Here, the record does not establish that claimant's injury was the product of a risk connected with the nature of her work as a call center associate. She was injured before she entered the employer's premises and before starting her work shift. Moreover, there is no indication that her injury resulted from a risk to which she was exposed by her work environment."

On judicial review, claimant argues that, with respect to the "in the course of" prong, the board applied the "parking lot" exception too narrowly, and further argues that the exception includes "ingress and egress and common areas leased by the employer." Claimant asserts that the board erred in concluding that employer did not have "some control" over the area where claimant's injury occurred. Addressing the "arising out of" prong, claimant argues that the board's interpretation of the risk to which a claimant is exposed is so narrow that it would swallow the "parking lot" exception. That is, "[u]nless one's job is specifically walking to the employer's entrance, then it would never be associated with the particular job function for which the worker is hired."

Employer responds that, because the landlord had sole discretion over the maintenance of the common area, it did not have sufficient control over the common area such that claimant's injury is compensable. It further argues that "having to walk over snow and ice is not an employment risk but rather, a neutral risk," and that the weather was "an outside force unrelated to claimant's employment that put the snow and ice on the ground [that] claimant walked over to get to work."

We first address the "in the course of" prong of the unitary work-connection test. As explained below, the board's conclusion that employer did not have "some control" over the common area is without substantial reason. On this point, we find Henderson instructive. In that case, the "[c]laimant worked on the fourth floor of an office building that [was] leased by [her] employer." 127 Or. App. at 335, 874 P.2d 76. The claimant was required to take a one-hour unpaid lunch break and was encouraged by her employer to...