Compensation of Adamson, Matter of, 80-1338

• Decision Date: 28 September 1981
• Docket Number: No. 80-1338,80-1338
• Citation: 633 P.2d 1316,54 Or.App. 52
• Parties: In the Matter of the COMPENSATION OF Lorraine ADAMSON, Claimant. Lorraine ADAMSON, Petitioner, v. The DALLES CHERRY GROWERS, INC., Respondent. WCB; CA A20489.
• Court: Oregon Court of Appeals

Page 1316

633 P.2d 1316

54 Or.App. 52

In the Matter of the COMPENSATION OF Lorraine ADAMSON, Claimant Lorraine ADAMSON, Petitioner, v. The DALLES CHERRY GROWERS, INC., Respondent.

WCB No. 80-1338; CA A20489.

Court of Appeals of Oregon.

Argued and Submitted Aug. 21, 1981.

Decided Sept. 28, 1981.

Michael A. Greene, Portland, argued the cause and filed the brief for petitioner.

Roger Warren, Beaverton, argued the cause for respondent. On the brief was David O. Horne, Beaverton.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

GILLETTE, Presiding Judge.

The issue in this worker's compensation case is compensability. Both the referee and the Workers' Compensation Board found claimant's injury a fall on an icy street outside her place of employment non-compensable. We affirm.

At the time of her injury, claimant had been employed as a general laborer by respondent for eight years. On the morning of January 15, 1980, she went to work as usual. There had been a severe snow storm in the area, and the streets were covered with snow and ice. Upon arriving at work she found the employe parking lot filled with snow and the place where she usually parked taken by another car, ¹ so she parked on the street parallel to the curb.

Claimant got out of her car and walked toward respondent's plant office, which was on the same side of the street. Because the sidewalk was covered with snow, she had to walk in a traffic lane of the street. After walking approximately two car lengths, she slipped on the icy surface and fell. She got up, continued on her way to the office and told the personnel manager about the fall. Someone then went out to spread salt on the surface. Claimant then reported to work in a building across the street from the office. She worked only a short time before she was forced to go home because of discomfort.

Claimant's fall took place on a public street. Respondent's plant facilities and office are located on both sides of the street, but respondent has no responsibility for its maintenance. The fall occurred in the area generally used by employes going between buildings on opposite sides of the street.

Claimant testified that she normally arrived at work early and went to the lunch area in one of the buildings to have a cigarette and socialize. She arrived later than usual that morning because of the bad weather and therefore did not have time to go to the lunch room. She was in the main office talking with the personnel manager when the bell signalling the beginning of work rang.

Claimant contends that she was on her way to the main office, not to have a smoke as usual, but to find out where she was assigned to work that day. The referee and the Board found that she was on her way to the office building to socialize. Claimant testified that during the off-season general laborers such as she are assigned to different jobs located in different buildings and must check with the supervisor to obtain particular job assignments. She testified that, after talking with the personnel manager, she reported to her foreman and proceeded to the building across the street where she was assigned to work. It is not clear where she reported to her foreman to be assigned or if she already knew she was assigned to work across the street.

Respondent's personnel manager testified that employes do not need to go to the main office when they arrive at work. They can go directly to their assigned work place. However, she also indicated that in the off-season, when an employe finishes one job, she has to find her supervisor to find out what her next assignment is. The personnel manager did not know claimant's assignment for either the day before or the day of the accident.

The Board concluded that, because the accident took place on a public street over which the employer exercised no control and because the claimant was in pursuit of personal, rather than her employer's, interests, her injury was not compensable.

A compensable injury is defined by the Workers' Compensation Act as "an accidental injury * * * arising out of and in the course of employment * * *." ORS 656.005(8)(a). In Rogers v. SAIF, 289 Or. 633, 616 P.2d 485 (1980) the Supreme Court pointed out that historically the two elements "arising out of" and "in the course of" have been treated in Oregon cases as two distinct tests, both of which must be met for an injury to be compensable. Rejecting this "mechanistic two stage method of analysis," the court adopted a "unitary work-connection approach." 289 Or. at 643, 616 P.2d 485. The court identified the pertinent inquiry to be whether the injury has a sufficient work relationship. 289 Or. 643, 616 P.2d 485. If it does, it "arises out of and in the course of employment." The court made it clear in Rogers that it was not substantially changing fundamental workers' compensation law, but simply adopting a new test or approach. Therefore, "existing law regarding proximity, causation, risk, economic benefit and all other concepts which are useful in determining work relationships remain applicable." 289 Or. at 643, 616 P.2d 485. See also, Halfman v. SAIF, 49 Or.App. 23, 26-27, 618 P.2d 1294 (1980). As permitted by Rogers, we find it helpful to examine cases similar to the one before us.

As a general rule, injuries sustained by employes going to or coming from their regular place of work are not deemed to arise out of and in the course of their employment. Nelson v. Douglas Fir Plywood Co., 260 Or. 53, 57, 488 P.2d 795 (1971); White v. S. I. A. C., 236 Or. 444, 447, 389 P.2d 310 (1964); Rohrs v. SAIF, 27 Or.App. 505, 507, 556 P.2d 714 (1976). There are, however, several exceptions to this general rule. See, generally, 1 Larson, Workmen's Compensation § 15.

In Montgomery v. State Ind. Acc. Com., 224 Or. 380, 356 P.2d 524 (1960), the court held that an employe was entitled to compensation when he was struck by a car while crossing a public street on his way from work. The court found that the busy street, which was located in front of the plant, was the only approach to and from the plant, that it was a "special risk of the claimant's employment," and that the employer, who had a key to operate the traffic light in front of the plant, exercised some control over the traffic and pedestrians using or crossing the street. The employer in Montgomery provided parking lots for its employes, making it unnecessary to cross the busy street, but these were full on the day in question and the claimant there was forced to park on a public street.

In Kowcun v. Bybee, 182 Or. 271, 186 P.2d 790 (1947), the court found an employe's injury to be compensable when she was hit by a car as she walked through the company parking lot to reach her own car after work. The court stated:

"We do not believe that the whistle which calls the men to work in the morning and later signals the end of the day's labors always determines whether or not an injury which befell a workman arose 'out of and in the course of his employment.' Likewise, we do not believe that the Workmen's Compensation Law selects the threshold of the factory as the dividing line which decides whether or not an injury happened 'out of and in the course of' an employment. In construing the phrase 'out of and in the course of his employment,' the courts consider the nature, conditions, obligations and incidents of the employment * * *. If they find a causal connection between the employment and the injury, the requirements of the phrase have been met. * * * " 182 Or. at 279, 186 P.2d 790.

Noting that the injury occurred on the employer's premises, that the employer contemplated the course of conduct pursued by the employe and that the employes who worked in the...