City of Eugene v. McDermed (In re Comp. of McDermed)

• Decision Date: 27 June 2012
• Docket Number: A144661.,0803945
• Citation: 282 P.3d 947,250 Or.App. 572
• Parties: In the Matter of the Compensation of Carolyn G. McDermed, Claimant. CITY OF EUGENE, Petitioner, v. Carolyn G. McDERMED, Respondent.
• Court: Oregon Court of Appeals

250 Or.App. 572

282 P.3d 947

In the Matter of the Compensation of Carolyn G. McDermed, Claimant.

CITY OF EUGENE, Petitioner,

v.Carolyn G. McDERMED, Respondent.

0803945; A144661.

Court of Appeals of Oregon.

Argued and Submitted June 16, 2011.

Decided June 27, 2012.

Daniel J. Sato argued the cause for petitioner. With him on the opening brief was VavRosky MacColl, P.C. With him on the reply brief was MacColl Busch Sato, P.C.

Dale C. Johnson, Springfield, argued the cause for respondent. On the brief was Michael N. Warshafsky.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

HASELTON, C.J.

Employer seeks review of a Workers' Compensation Board (board) order awarding claimant police lieutenant compensation for injuries that she suffered when a motorist struck her as she walked across the street from her office to get a cup of coffee. Employer asserts that the board erred in determining that claimant's injuries occurred “in the course of” and “arose out of” her employment. ORS 656.005(7)(a).¹ We affirm for reasons amplified below.

We state the relevant facts consistently with the board's findings. Claimant was a police lieutenant for the City of Eugene, who at the time of the injury, was assigned to the Office of Professional Standards (which included “internal affairs”). Prior to that time, and for the majority of her 17–year career with the city, claimant had worked as a community police officer, which involved responding to calls for assistance, interacting with people while on the streets of Eugene, and engaging with public citizens about community crime prevention strategies. The board summarized the scope of claimant's work-related responsibilities as of the date of injury as follows:

“Although her duties primarily involved office work, her responsibilities included all police lieutenant and officer duties. Claimant's assignments included planning, organizing, and supervising police work, responding to major crime and accident scenes, overseeing or supervising investigations, conducting and overseeing internal affairs investigations, and performing the duties of a sworn police officer. The latter duties included responding to calls, detecting and deterring crime, directing traffic at incident scenes, and dealing with distraught victims.

“Moreover, claimant was required to implement the employer's ‘neighborhood-based community policing’ philosophy, and had been involved with community policing for the majority of her 17 years of work for the employer. Community policing entailed ‘engaging the community in problem solving strategies to not only react to crime,’ but to prevent it.* * * Successful community policing, therefore, required ‘meeting a lot of people and being exposed to these people as a police officer and working with them.’ In other words, claimant was expected to interact with people on the streets to forge relationships that would enhance both public safety and neighborhood quality of life.”

Claimant generally worked Monday through Friday from 8:00 a.m. to 5:00 p.m., and she managed her own time. Claimant did not have scheduled break periods, but she would, if possible, routinely leave the office to “grab a cup of coffee” at a coffee shop that was located a block away from her office on the opposite side of the street. Claimant's practice was to purchase her coffee and immediately return to drink it at her desk. During the time that claimant was away from the office she was—as the board found—“still on duty and expected to carry a cell phone,² respond to calls, and return to the office if needed. She was also required to * * * perform police duties during the one-block walk to the coffee shop.”

Although claimant had shifted positions within the police department, in addition to her internal investigation tasks, she also (as noted) acted as a community police officer when she was on duty—including when she left the office to get coffee.³ For example, during her shift, claimant once witnessed a traffic accident on the street between her office and the coffee shop, and she responded by administering first aid and calling for emergency assistance. On another occasion, she escorted a woman to the woman's office near the coffee shop because the woman was fearful of her domestic partner, who had been stalking her. When claimant another time encountered a parked vehicle on fire near her office, she applied a fire extinguisher and exercised crowd control. Claimant also frequently engaged with citizens about community law enforcement concerns during her trips to the coffee shop.

On the day of the injury, intending to purchase a cup of coffee and return to work, claimant left her desk and walked out of the office building. She took her cell phone with her. As claimant started to cross the street to the coffee shop, she was struck by a car and sustained multiple injuries.

Claimant sought workers' compensation benefits for her injuries, and employer denied the claim. The administrative law judge (ALJ) determined that claimant's injuries were compensable and, upon the employer's appeal, the board affirmed.

In so holding, the board rendered a comprehensive analysis of both the “in the course of” and “arising out of” components of the “unitary work-connection” test of compensability. With respect to the “in the course of” prong, the gravamen of the board's reasoning was as follows:

“Here, claimant was injured while on duty and walking to get a cup of coffee, an activity that she routinely performed with the employer's consent. As an on-duty police officer, she was required to fulfill any and all job responsibilities while on that walk, including being a first responder to any situation. Indeed, it is undisputed that claimant had performed such vital duties in the past while on that same one-block walk to get a cup of coffee. Moreover, claimant was expected to perform, and had performed, essential community policing services as part of her regular walks to the coffee shop. As noted above, these obligations included interacting with citizens on the street during day-to-day activities to form relationships that could improve public safety. Thus, although the isolated task of getting coffee may have been ‘personal in nature,’ claimant's actions bore ‘some reasonable relationship to [her] employment and [were] expressly or impliedly allowed by the employer.’ [ Fred Meyer, Inc. v.] Hayes, 325 Or. [592,] 598–99[, 943 P.2d 197 (1997) ].”

Concomitantly, the board rejected employer's argument that the circumstances of claimant's injury implicated the “going and coming” rule, which would preclude compensability:

“Here, claimant was not injured while going to or coming from work. Rather, she was injured while on duty and still required to perform her job duties. Claimant's ‘work space’ was not limited to the office space that she occupied for the majority of her workdays, but included numerous other areas, including the location at which she was injured. Finally, given claimant's community policing responsibilities and other police officer functions, both of which she had performed on other walks to the coffee shop, we cannot conclude that claimant ‘render[ed] no service for the employer’ on these walks. See [Krushwitz v. McDonald's Restaurants, 323 Or. 520, 526, 919 P.2d 465 (1996) ].”

Finally, the board explained its determination that claimant's injuries “arose out of” her employment. Referring to law enforcement activities that claimant was expected to perform, and historically had performed, during her “walks to get coffee while on duty,” the board concluded:

“We find that claimant's risk of being struck by a motor vehicle as she was crossing an intersection while on duty as a police officer resulted from the nature of her work or originated from a risk to which her work environment exposed her. See Hayes, 325 Or. at 601 . As discussed above, claimant's job duties required that she engage in community policing, which in turn required interacting with people on the streets to discuss public safety issues. * * * Although claimant was not performing a discrete task at the moment she was injured, it does not follow that she was not working while injured, or that her work environment, which included the street and intersection where she was injured, did not expose her to the risk of being struck by a vehicle.”

Employer seeks judicial review of the board's order, disputing the board's determinations as to both the “in the course of” and “arising out of” inquiries.

We review orders of the board for errors of law and substantial evidence. ORS 656.298(7); ORS 183.482; Sandberg v. JC Penney Co. Inc., 243 Or.App. 342, 347, 260 P.3d 495 (2011). In Legacy Health Systems v. Noble, 250 Or.App. 596, ––––, 283 P.3d 924 (June 27, 2012)( Noble II ), we summarized the applicable principles:

“A claimant bears the burden of establishing the compensability of his or her injury—and, specifically, the requisite connection between the injury and his or her employment. Phil A. Livesley Co. v. Russ, 296 Or. 25, 29, 672 P.2d 337 (1983). ‘A “compensable injury” is an accidental injury* * * arising out of and in the course of employment.’ ORS 656.005(7)(a) (emphasis added). That is, both conjunctive statutory elements must be met. In determining whether an injury occurs ‘in the course of’ employment, we look at the time, place, and circumstances of the injury. Robinson v. Nabisco, Inc., 331 Or. 178, 186, 11 P.3d 1286 (2000). The ‘arising out of’ prong refers to the causal link—the causal nexus—between the injuryand the employment. Krushwitz[, 323 Or. at 525–26, 919 P.2d 465]. ‘[A] worker's injury is deemed to “arise out of” employment if the risk of the injury results from the nature of his or her work or when it originates from some risk to which the work environment exposes the worker.’ [Hayes, 325 Or. at 601, 943 P.2d 197]. As noted, both prongs of the ‘unitary work-connection test’ must be met...