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

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: SHORR, J.
• Citation: Frazer v. Enter. Rent-A-Car Co. of Or. (In re Frazer), 278 Or.App. 409, 374 P.3d 1003 (Or. App. 2016)
• Decision Date: 18 May 2016
• Docket Number: A156890.,0902947
• Parties: In the Matter of the Compensation of Kevinia L. Frazer, Claimant. Kevinia L. FRAZER, Petitioner, v. ENTERPRISE RENT–A–CAR CO. OF OREGON, Respondent.

278 Or.App. 409

374 P.3d 1003

In the Matter of the Compensation of Kevinia L. Frazer, Claimant.

Kevinia L. FRAZER, Petitioner

v.ENTERPRISE RENT–A–CAR CO. OF OREGON, Respondent.

0902947

A156890.

Court of Appeals of Oregon.

Argued and Submitted Jan. 19, 2016.

Decided May 18, 2016.

Christine Jensen, Eugene, argued the cause and filed the briefs for petitioner.

Travis L. Terrall, Portland, argued the cause and filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and SHORR, Judge.

SHORR, J.

This workers' compensation case is before us for a second time following our remand to the Workers' Compensation Board for further consideration in Enterprise Rent–A–Car Co. of Oregon v. Frazer, 252 Or.App. 726, 289 P.3d 277 (2012), rev. den., 353 Or. 428, 299 P.3d 889 (2013) ( Frazer I ). On remand, the board determined that, based on our opinion in Frazer I, the only issue before it was to determine if the “parking lot” exception to the “going and coming” rule applied to this case such that claimant's injury would be compensable. On that issue, the board concluded that the parking lot exception did not apply because employer did not control, or have any right to control, the area of the parking lot where claimant fell and was injured, and, thus, the board affirmed employer's denial of claimant's workers' compensation claim. On review of that decision, claimant primarily argues that the board impermissibly narrowed the scope of its decision on remand, and requests that we remand the case to the board to determine whether her claim is compensable under the personal comfort doctrine or another exception to the going and coming rule. We conclude that the board did not err. Accordingly, we affirm.

We take the facts as summarized in Frazer I, which the parties accept in this review.

“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.”

Frazer I, 252 Or.App. at 728–29, 289 P.3d 277.

To establish the compensability of her claim, claimant was required to show that her injury both arose out of and in the course of her employment. ORS 656.005(7)(a).¹ Those two prongs form the single “work-connection” test. Krushwitz v. McDonald's Restaurants, 323 Or. 520, 526, 919 P.2d 465 (1996). On review in Frazer I, employer challenged only the board's conclusion that claimant's injury occurred in the course of her employment. 252 Or.App. at 729, 289 P.3d 277.

We explained in Frazer I that the going and coming rule provides guidance when determining whether a claimant's injury occurred in the course of employment. Under that general rule, “ ‘injuries sustained while an employee is traveling to or from work do not occur in the course of employment and, consequently, are not compensable.’ ” Id. at 730, 289 P.3d 277 (quoting Krushwitz, 323 Or. at 526, 919 P.2d 465 ). We further explained that we have applied that rule broadly “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,” and “when a claimant is injured while on a shorter break—even a paid break—away from work.” Id. at 731, 289 P.3d 277. However, we have also held that the going and coming rule has no application at all when, “although the employee was injured while traveling to or from the workplace, the employee was still ‘on duty’ or otherwise subject to the employer's direction and control.” Id.

We then rejected the board's determination in this case that the going and coming rule did not apply at all, relying on Legacy Health Systems v. Noble, 232 Or.App. 93, 221 P.3d 180 (2009) (Noble I ). In Noble I, the claimant had been injured in a parking lot, over which the employer had control, while on a paid 15–minute break. Id. at 95–96, 221 P.3d 180. We concluded that the parking lot exception to the going and coming rule applied to those facts, and, thus, also implicitly concluded that the going and coming rule applied. Id. at 99–100, 221 P.3d 180 ; see also Frazer I, 252 Or.App. at 733, 289 P.3d 277 (discussing Noble I ).

Based on Noble I presenting materially indistinguishable facts, in Frazer I, we concluded that “the board's rationale for not applying the ‘going and coming’ rule does not withstand scrutiny.” 252 Or.App. at 733, 289 P.3d 277. We further explained that the facts of this case must fall within the settled principle of the going and coming rule because “[c]laimant was away from her workplace on a regular break and she was not ‘on duty’ or otherwise subject to employer's direction or control.”²

Id. at 736, 289 P.3d 277. Because the going and coming rule applied, we stated that “[i]t follows that claimant's injury did not arise in the course of her employment unless the circumstances under which she was injured fall within some exception to the rule.” Id. We then reversed the board's decision but, because the board did “not address the employer's arguments that it did not exercise ‘control’ of the area where the injury occurred under the ‘parking lot’ exception to the ‘going and coming’ rule,” we remanded “so the board can make that determination.” Id. at 736–37, 289 P.3d 277.

On remand, the board requested supplemental briefing from the parties. Claimant argued that her injury was compensable based on a variety of theories, including that the going and coming rule did not apply and that several exceptions to that rule applied, including the parking lot exception, the personal comfort doctrine, the “special errand exception,” and the “furtherance of the business of the employer exception.” Employer argued that the board's task on remand was to determine if an exception to the going and coming rule applied, that the only exception at issue under the facts of this case was the parking lot exception, and that the parking lot exception did not apply because employer did not control the area where claimant was injured.

In its order on remand, the majority of the board interpreted its task as addressing the issue of “whether claimant's injury falls within the ‘parking lot’ exception to the ‘going and coming’ rule.”³ On that issue, the board concluded that the parking lot exception had not been satisfied because it found that employer did not control, or have any right to control, the area where claimant fell and was injured. In a footnote, the board also stated that,

“[t]o the extent claimant relies on the application of other exclusions and doctrines to determine compensability, * * * such arguments were not adequately raised in the prior proceedings. Thus, even if our scope of review on remand was not limited as previously described, we would decline to address such exceptions/doctrines for the first time on remand.”

Accordingly, the board reversed the ALJ's decision and affirmed employer's denial of claimant's workers' compensation claim.

Claimant seeks review of the board's order on remand, raising two assignments of error. In the first assignment, claimant argues that the board erred in limiting its inquiry to the parking lot exception, arguing that the board had an independent responsibility to determine if any other exception or other aspect of workers' compensation law applied. In the second assignment, claimant asserts that her injury was compensable because she was following the direction of her employer to take her mandated break away from her work station, which is a related circumstance to other situations that have become exceptions to the going and coming rule.

We conclude that the board did not err in limiting its task on remand following Frazer I. In Frazer I, we held that the board had legally erred when it concluded that the going and coming rule did not apply in this case when the facts that the...