Enter. Rent-A-Car Co. of Or. v. Frazer (In re Comp. of Frazer)

• Jurisdiction: Oregon
• Parties: In the Matter of the Compensation of Kevinia L. Frazer, Claimant. ENTERPRISE RENT–A–CAR CO. OF OREGON, Petitioner, v. Kevinia L. FRAZER, Respondent.
• Citation: 289 P.3d 277,252 Or.App. 726
• Docket Number: 0902947; A146596.
• Court: Oregon Court of Appeals
• Decision Date: 17 October 2012

252 Or.App. 726

289 P.3d 277

In the Matter of the Compensation of Kevinia L. Frazer, Claimant.ENTERPRISE RENT–A–CAR CO. OF OREGON, Petitioner,

v.Kevinia L. FRAZER, Respondent.

0902947; A146596.

Court of Appeals of Oregon, In Banc.

Argued and Submitted May 8, 2012.

Resubmitted En Banc Aug. 8, 2012.

Decided Oct. 17, 2012.

Travis L. Terrall, Portland, argued the cause and filed the briefs for petitioner.

Christine Jensen, Eugene, argued the cause and filed the brief for respondent.

HADLOCK, J.

Employer seeks review of an order of the Workers' Compensation Board in which the board determined that claimant had suffered an injury that arose out of and in the course of her employment and that the injury was, therefore, compensable. Employer challenges only the board's determination that the injury occurred “in the course of” claimant's employment. We agree with employer that the board erred in not applying the “going and coming” rule, under which “[i]njuries sustained while an employee is going to or coming from the place of employment generally do not occur within the course of employment” except in certain limited circumstances. Legacy Health Systems v. Noble, 232 Or.App. 93, 99, 221 P.3d 180 (2009) ( Noble I ). Because the board did not apply the “going and coming” rule, it also did not determine whether any exceptions to that rule applied in a way that would result in claimant's injury being compensable despite the fact that it occurred while she was returning to her place of employment from a break. Accordingly, we reverse and remand so the board may consider that question.

Both parties accept the board's findings, which may be summarized as follows. Claimant was employed at employer's call center and regularly worked an eight-hour shift with paid morning and afternoon breaks, as well as a lunch break. Claimant, like other employees, was “not allowed to stay in the work area while on break.” Instead, employees were free to leave the call center to get coffee or to run other errands nearby. Employer also provided two on-site break rooms with beverages and vending machines.

Employer's call center is located in a “strip” with multiple other businesses. Employer does not own or manage the parking lot associated with the “strip,” but some spaces in the lot are designated for use by employer's customers and employees. A covered “smoking hut” is located in the parking lot, approximately 100 feet from employer's front door. Employer does not own the structure, which is open to the public. Employer's employees could utilize that structure while on their breaks.

In March 2009, claimant visited with coworkers at the smoking hut while she was on a 10– or 15–minute break.

As claimant headed back to work through the parking lot, her shoe caught in a break in the pavement where a post had been removed and she fell, twisting her knee and ankle. An MRI revealed “a complex tear of the lateral meniscus.” That injury did not respond to conservative treatment, and claimant eventually was referred for surgery.

Employer's claims representative denied claimant's worker's compensation claim for a right-knee injury. An administrative law judge (ALJ) set aside that denial based on his determination that claimant's injury was compensable. Employer sought review before the board, which ruled—as pertinent here—that claimant's injury arose “in the course of employment”:

“[W]e find that claimant's injury occurred within the period of employment (a paid break, during regular work hours), at a place where she reasonably was expected to be (returning from the break shelter, the use of which the employer had acquiesced to, via the normal route), and while she was doing something reasonably incidental to employment (on a paid break and checking the clock to make sure she was on time).”

The board also determined that the other requirements for compensability were met and, accordingly, affirmed the ALJ's order. Employer petitioned for review to this court.

[1] [2] [3] Although employer challenges only a single aspect of the board's compensability determination—its ruling that claimant's injury arose in the course of employment—we quote a recent summary of the major requirements of a “compensability” determination to provide context for our discussion.

“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. ‘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. The ‘arising out of’ prong refers to the causal link—the causal nexus—between the injury and the employment. ‘[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.’ As noted, both prongs of the ‘unitary work-connection test’ must be met to some degree. Nevertheless, the test may be satisfied, even if the factors supporting one prong are weak, if those supporting the other are strong.”

Legacy Health Systems v. Noble, 250 Or.App. 596, 600–01, 283 P.3d 924 (2012) ( Noble II ) (ellipsis and brackets in original; some citations and internal quotation marks omitted).

[4] [5] [6] Only the first prong of the unitary work-connection test is at issue in this appeal: the requirement that the claimant's injury have occurred “in the course of employment.” ORS 656.005(7)(a). As the Supreme Court has explained, the “going and coming” rule provides guidance on that point:

“The general rule in Oregon—the ‘going and coming’ rule—is that injuries sustained while an employee is traveling to or from work do not occur in the course of employment and, consequently, are not compensable.”

Krushwitz v. McDonald's Restaurants, 323 Or. 520, 526, 919 P.2d 465 (1996). The rule reflects the general purpose of the Workers' Compensation Law, which is to protect workers and their families “from poverty due to injury incurred in production, regardless of fault, as an inherent cost of the product to the consumer.” Allen v. SAIF, 29 Or.App. 631, 633, 564 P.2d 1086,rev. den., 280 Or. 1 (1977). Injuries suffered when a worker is traveling to or from work generally are noncompensable because, during that time, the employee “ ‘is rendering no service for the employer.’ ” Krushwitz, 323 Or. at 527, 919 P.2d 465 (quoting Heide/Parker v. T.C.I. Incorporated, 264 Or. 535, 540, 506 P.2d 486 (1973)).

[7] In addition to adopting the “going and coming” rule, Oregon courts also have developed exceptions to that general noncompensability principle. The “parking lot” exception, for example, provides that an “injury sustained on premises controlled by the employer while an employee is coming to or going from work occurs within the ‘course of employment.’ ” Noble I, 232 Or.App. at 99, 221 P.3d 180; see also Cope v. West American Ins. Co., 309 Or. 232, 240 n. 3, 785 P.2d 1050 (1990) (“It bears emphasis that the parking lot ‘rule’ is in reality an exception to the general rule that injuries sustained while going to or coming from work are noncompensable.” (Emphasis in original.)).

[8] We have applied the “going and coming” rule broadly, applying it—at least implicitly—not only to injuries that occur before the workday begins and after it ends, but also when a claimant is injured while leaving the workplace for lunch or returning from a lunch break. See, e.g., J A K Pizza, Inc.-Domino's v. Gibson, 211 Or.App. 203, 207, 154 P.3d 159 (2007) ( “going and coming” rule might preclude compensability if the claimant had hurried back to his place of employment “to avoid overextending” an unpaid lunch break, but not if the employer had directed him to return to work before the end of his lunch break, because then the claimant would have been on a “special errand”); Hearthstone Manor v. Stuart, 192 Or.App. 153, 157–58, 84 P.3d 208 (2004) (an injury that the claimant incurred while returning to work from her lunch break arose in the course of her employment because the “parking lot” exception to the “going and coming” rule applied). The rule also applies when a claimant is injured while on a shorter break—even a paid break—away from work. See Noble I, 232 Or.App. at 95–96, 221 P.3d 180 (an injury that the claimant suffered while away from her workplace on a morning break arose in the course of her employment because the “parking lot” exception to the “going and coming” rule applied).

[9] Conversely, we have held that the “going and coming” rule does not apply when, although the employee was injured while traveling to or from the workplace, the employee still was “on duty” or otherwise subject to the employer's direction and control. See, e.g., City of Eugene v. McDermed, 250 Or.App. 572, 582, 282 P.3d 947 (2012) (because a police officer who left the office to get a cup of coffee “was still on duty and was obligated to perform” police functions while she was on the street, the “going and coming” rule was “simply inapposite”); Iliaifar v. SAIF, 160 Or.App. 116, 122, 981 P.2d 353 (1999) (“the ‘going and coming’ exception to work connectedness [was] inapplicable” because the employer had directed the claimant to undertake the travel he was engaged in when injured).

In this case, the board appropriately started its analysis of the “ ‘in the course of’ prong of the ‘work connection’ test” by considering whether the “going and coming” rule applied. The board acknowledged that, for those purposes, the law does “not distinguish an employee going to or coming from work at the beginning or end of the workday from an employee going to or coming from work at the beginning or end of a break, whether paid or unpaid.” Nonetheless, the board...