Compensation of Hayes, Matter of

• Jurisdiction: Oregon
• Parties: In the Matter of the Compensation of Jody N. Hayes, Claimant. FRED MEYER, INC., Petitioner on Review, v. Jody N. HAYES, Respondent on Review. WCB 94-07627; CA A89536; SC S43425.
• Citation: 943 P.2d 197,325 Or. 592
• Court: Oregon Supreme Court
• Decision Date: 07 August 1997

Page 197

943 P.2d 197

325 Or. 592

In the Matter of the Compensation of Jody N. Hayes, Claimant FRED MEYER, INC., Petitioner on Review, v. Jody N. HAYES, Respondent on Review.

WCB 94-07627; CA A89536; SC S43425.

Supreme Court of Oregon In Banc.

Aug. 7, 1997.

O.R. Skopil, III, of Moscato, Skopil & Hallock, Portland, argued the cause and filed the petition for petitioner on review.

Robert E. Nelson, Gresham, argued the cause and filed the response for respondent on review.

Michael 0. Whitty, Salem, filed a brief on behalf of amici curiae SAIF Corporation and Coos County School District # 13.

VAN HOOMISSEN, Justice.

The issue in this workers' compensation case is whether claimant's injury, which occurred when she was attacked in her employer's parking lot, arose "out of and in the course of [her] employment." ¹ The Workers' Compensation Board (Board) held that it did and, therefore, that claimant's injury was compensable. The Court of Appeals affirmed without opinion. Fred Meyer, Inc. v. Hayes, 141 Or.App. 439, 917 P.2d 1077 (1996). We review pursuant to ORS 656.298(6) and 183.482(8)(a) and (c). ² For the reasons that follow, we also affirm.

On review, the facts are not contested. Claimant is a retail department manager for Fred Meyer, Inc. (employer). At 8 p.m. on March 20, 1994, she completed her shift. For the next 15 to 20 minutes, claimant shopped in employer's grocery department and purchased items for her personal use. ³ After completing her shopping, she left the store through the grocery exit and walked directly toward her car, pushing a cart containing groceries. When claimant left the store, the parking lot was about half full of cars. Claimant's car was parked about 72 yards from the grocery exit in an area on the perimeter of employer's parking lot where employer had directed its employees park. That area of the parking lot was not well lit. As claimant approached her car, she was attacked by a man with a knife. The assailant stabbed her in the neck and right thumb. Claimant escaped and ran back into the store. Claimant's injuries required medical treatment and resulted in disability. Claimant did not know her assailant, and he was a stranger to her and to her employer. ⁴

Employer denied claimant's workers' compensation claim, and an administrative law judge upheld that denial. On review, the Board reversed. Applying the "parking lot" exception to the "going and coming" rule, the Board concluded that claimant's injury was sufficiently work-related to be "in the course of" her employment and that her injury "arose out of" her employment, because a causal link existed between claimant's injury and a risk associated with her employment. ⁵ As noted, the Court of Appeals affirmed without opinion. We allowed employer's petition for review.

Employer contends that the Court of Appeals erred in affirming the Board's order on judicial review. Employer first argues that, because claimant did not go to her car immediately after work, as a matter of law she was not injured while "in the course of" her employment. Employer maintains that any hesitation in leaving an employer's premises or any deviation from proceeding immediately to one's car in an employer's parking lot removes a worker from the "in the course of" employment. Employer next argues that, because there is no evidence that the place where claimant's car was parked caused her to be exposed to risks or hazards greater than those to which employer's customers were exposed, there is no substantial evidence in the record to support a finding that claimant's injury "arose out of" her employment.

In interpreting a statute, this court's task is to discern the intent of the legislature. ORS 174.020; see PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (explaining method of statutory analysis). In attempting to discern the intent of the legislature, the first level of analysis is to examine the text and context of the statute. Text and context includes prior case law from this court interpreting the same statute. See State v. King, 316 Or. 437, 445-46, 852 P.2d 190 (1993) (when this court interprets a statute, that interpretation becomes part of the statute as if written into it at the time of its enactment). If the legislature's intent is clear from those inquiries, further inquiry is unnecessary. PGE, 317 Or. at 611, 859 P.2d 1143.

For an injury to be compensable under the workers' compensation law, it must "aris[e] out of" and occur "in the course of employment." ORS 656.005(7)(a). The "arise out of" prong of the compensability test requires that a causal link exist between the worker's injury and his or her employment. Krushwitz v. McDonald's Restaurants, 323 Or. 520, 525-26, 919 P.2d 465 (1996); ⁶ Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 366, 867 P.2d 1373 (1994). ⁷ The requirement that the injury occur "in the course of" the employment concerns the time, place, and circumstances of the injury. Krushwitz, 323 Or. at 526, 919 P.2d 465; Norpac, 318 Or. at 366, 867 P.2d 1373.

This court views the two prongs as two parts of a single "work-connection" inquiry, that is, whether the relationship between the injury and the employment is sufficient that the injury should be compensable. Krushwitz, 323 Or. at 526, 919 P.2d 465; Norpac, 318 Or. at 366, 867 P.2d 1373. See ORS 656.012(1)(c) (Legislative Assembly finds that "those injuries that bear a sufficient relationship to employment * * * merit incorporation of their costs into the stream of commerce"). Both prongs of the work-connection test must be satisfied to some degree; neither is dispositive. Krushwitz, 323 Or. at 531, 919 P.2d 465; Norpac, 318 Or. at 366, 867 P.2d 1373. The work-connection test may be satisfied if the factors supporting one prong of the statutory test are minimal while the factors supporting the other prong are many. Krushwitz, 323 Or. at 531, 919 P.2d 465 (citing Phil A. Livesley Co. v. Russ, 296 Or. 25, 28, 672 P.2d 337 (1983)). ⁸ Both prongs serve as analytical tools for determining whether, in the light of the policy for which that determination is to be made, the causal connection between the injury and the employment is sufficient to warrant compensation. Andrews v. Tektronix, Inc., 323 Or. 154, 161-62, 915 P.2d 972 (1996). ⁹

Ordinarily, an injury sustained while a worker is going to or coming from work is not considered to have occurred "in the course of" employment and, therefore, is not compensable. Krushwitz, 323 Or. at 526, 919 P.2d 465 (citing Cope v. West American Ins. Co., 309 Or. 232, 237, 785 P.2d 1050 (1990)); Norpac, 318 Or. at 366, 867 P.2d 1373. That general rule is called the "going and coming" rule. The reason for the "going and coming" rule is that the relationship of employer and worker ordinarily is suspended from the time the worker leaves work to go home until he or she resumes work because, while going to or coming from work, the worker is rendering no service for the employer. Krushwitz, 323 Or. at 526-27, 919 P.2d 465 (citing Heide v. T.C.I. Incorporated, 264 Or. 535, 540, 506 P.2d 486 (1973)).

However, there are some exceptions to the "going and coming" rule. One is the "parking lot" exception. Under that exception, injuries sustained on the employer's premises while the worker is going to or coming from work have a sufficient work-connection to be considered to have occurred "in the course of" employment. Norpac, 318 Or. at 366-67, 867 P.2d 1373 (citing Cope, 309 Or. at 238, 785 P.2d 1050). ¹⁰

The mere fact that a worker is injured in the employer's parking lot does not, in and of itself, establish a compensable injury. Norpac, 318 Or. at 367-69, 867 P.2d 1373 (rejecting view that injury in employer's parking lot is per se compensable). In addition to establishing that an injury occurred in the course of employment, a claimant also must establish a causal connection between the injury and the employment--that is, that the injury arose "out of" the claimant's employment. Krushwitz, 323 Or. at 531, 919 P.2d 465; Norpac, 318 Or. at 368-69, 867 P.2d 1373.

We first address the issue whether claimant's injury occurred "in the course of" her employment. That inquiry tests the time, place, and circumstance of the injury. During oral argument in this court, employer's counsel conceded that, if claimant had gone to her car immediately after work, she would have been "in the course of" her employment at the time that she was injured. Employer argues, however, that claimant was not coming from work at the time she was injured; rather, employer asserts, she was coming from a personal shopping errand and, thus, her work-connection had been terminated.

An injury occurs "in the course of" employment if it takes place within the period of employment, at a place where a worker reasonably may be expected to be, and while the worker reasonably is fulfilling the duties of the employment or is doing something reasonably incidental to it. "In the course of" employment also includes a reasonable period of time after work for the worker to leave the employer's premises, including the employer's parking lot. By "reasonably incidental to" employment, we include activities that are personal in nature--such as a telephone call home or a brief visit with a co-worker--as long as the conduct bears some reasonable relationship to the employment and is expressly or impliedly allowed by the employer. See generally 2 Larson's Workers' Compensation Law §§ 21.60 to 21.64 (rebound ed 1997) (discussing cases involving preparatory or incidental acts before and after work). Cf. Clark v. U.S. Plywood, 288 Or. 255, 266, 605 P.2d 265 (1980) (compensability of on-premises injuries sustained while engaged in activities for the personal comfort of the employee can best be determined by a test that asks: Was the conduct expressly or impliedly allowed by the employer?).

Professor Larson summarizes the foregoing principle as follows:

"The...