Hearthstone Manor v. Stuart

• Decision Date: 11 February 2004
• Citation: 84 P.3d 208,192 Or. App. 153
• Parties: In the Matter of the Compensation of Glenna M. Stuart, Claimant. HEARTHSTONE MANOR, Petitioner, v. Glenna M. STUART, Respondent.
• Court: Oregon Court of Appeals

84 P.3d 208

192 Or. App. 153

In the Matter of the Compensation of Glenna M. Stuart, Claimant.

HEARTHSTONE MANOR, Petitioner, v. Glenna M. STUART, Respondent.

01-07907; A119321.

Court of Appeals of Oregon.

Argued and Submitted August 18, 2003.

Decided February 11, 2004.

Benjamin M. Bloom, Medford, argued the cause for petitioner. With him on the briefs was Hornecker, Cowling, Hassen & Heysell, L.L.P.

Arthur W. Stevens III, Medford, argued the cause for respondent. With him on the brief was Black, Chapman, Webber, Stevens & Petersen.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and SCHUMAN, Judge.

SCHUMAN, J.

Claimant injured her knee when she walked into a concrete ash tray while returning to work from lunch. The Workers' Compensation Board (the board) concluded that the injury was compensable. Employer seeks judicial review, contending that claimant's injury was not sufficiently work related to justify the board's conclusion. We agree with the board and affirm.

Both parties accept the facts as stated by the board:

"Claimant injured her knees shortly before 11 a.m. on August 23, 2001, when she accidentally walked into a three or four foot high concrete cigarette receptacle while returning from a half-hour `lunch' break. At the time, claimant was returning with a friend from the employer's cafeteria to the building in which she worked. The injury occurred while claimant was distracted by looking at trees as she and her friend were walking on a slanted walkway on the employer's premises leading into the building in which claimant worked. The concrete ashtray was positioned about midway down the slanted sidewalk next to shrubs.

"Claimant was free to use her lunch-break time as she pleased. On days that claimant was scheduled to work all day she was not normally paid for her lunch break. On the day of injury, claimant was scheduled to work the full day but only did so until 11 a.m. because of her injury. The record indicates that claimant was paid until 11 a.m."

The parties agree on the basic legal principles that govern the outcome of this case. First, to be compensable, an injury must "arise[ ] out of and in the course of employment," ORS 656.005(7)(a), a pair of requirements often referred to as the "unitary `work-connection' inquiry." Robinson v. Nabisco, Inc., 331 Or. 178, 185, 11 P.3d 1286 (2000). Second, the injury must not result from "any recreational or social activities primarily for the worker's personal pleasure," ORS 656.005(7)(b)(B). The requirements are cumulative; failure to meet either renders the injury noncompensable. Andrews v. Tektronix, Inc., 323 Or. 154, 160 n. 1, 915 P.2d 972 (1996).

In the present case, the board concluded that claimant's injury was compensable because it met the unitary work-connection test and it did not result from a recreational or social activity. On judicial review, employer challenges both of those conclusions. We begin with the work-connection question.

The work-connection test of ORS 656.005(7)(a) contains two parts, as indicated by its text: To be compensable, the injury must occur "in the course of" employment, and it must "arise out of" employment. Each part of the test imposes a different requirement. To occur in the course of employment, "the time, place, and circumstances of the injury [must] justify connecting the injury to the employment." Robinson, 331 Or. at 186, 11 P.3d 1286. To arise out of employment, "some causal link" must exist between the injury and the employment. Krushwitz v. McDonald's Restaurants, 323 Or. 520, 525-26, 919 P.2d 465 (1996). That link exists if employment exposes the worker to some risk from which the injury originates. Fred Meyer, Inc. v. Hayes, 325 Or. 592, 601, 943 P.2d 197 (1997). To meet the unitary work-connection test, an injury must, to some degree, meet both parts, Krushwitz, 323 Or. at 531, 919 P.2d 465, but "the work-connection test may be satisfied if the factors supporting one prong are minimal while the factors supporting the other prong are many." Id. (citing Phil A. Livesley Co. v. Russ, 296 Or. 25, 28, 672 P.2d 337 (1983)). Despite this web of rules, however, the Supreme Court has cautioned:

"[A]lthough the `arising out of' and `in the course of' prongs provide guidance, the unitary work-connection test does not supply a mechanical formula for determining whether an injury is compensable. We evaluate those factors in each case to determine whether the circumstances of a claimant's injuries are sufficiently connected to employment to be compensable."

Robinson, 331 Or. at 185, 11 P.3d 1286.

Applying these legal precepts to the facts of this case, we conclude that the connection between claimant's injury and her employment is sufficient to establish compensability.

We begin with the question whether the injury occurred "in the course" of employment. The board reasoned as follows:

"[W]e observe that, while claimant was not performing any work activities when injured, she was on the employer's premises on the customary route back into the building in which she worked. Although the ALJ reasoned that the lunch period was intended to be unpaid because claimant, but for the injury, would have worked all day (and normally would not have been paid for the lunch break), the fact remains that claimant was paid during the period in which she was injured. Under such circumstances, we conclude that the `course of employment' element was satisfied to a significant degree."

Central to the board's reasoning is the conclusion that "claimant was paid during the period in which she was injured." Although that fact is true, we take a different view of its significance. We believe that the more important fact is that, at the time she was injured, claimant was on her lunch break and therefore not "on the clock." That fact, more than the fact that employer ultimately paid her for the time because she did not complete her shift, determines the relationship between the activity and claimant's duties.

Because claimant was not "on the clock" when injured, but rather was on employer's premises while returning to work from a lunch break, the course of employment inquiry falls within the so-called "parking lot" rule. Injuries sustained while an employee is going to and coming from the employee's regular place of employment are not generally considered to have occurred in the course of employment. Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 366, 867 P.2d 1373 (1994). One exception to the "going and coming" rule is the "parking lot" rule: An injury sustained on an employer's premises while an employee is proceeding to or from work is considered to have occurred " `in the course of employment.'" Id. at 367, 867 P.2d 1373. In order for the parking lot exception to apply, the employer must exercise some measure of control over the place where the injury is sustained. Cope v. West American Ins. Co., 309 Or. 232, 238-39, 785 P.2d 1050 (1990) ("Employer control over the premises is the rationale supporting the parking-lot exception."). The parking lot exception has been broadened to any area over which an employer exercises, or could exercise, control. McTaggart v. Time Warner Cable, 170 Or.App. 491, 496, 16 P.3d 1154 (2000), rev. den., 331 Or. 633, 19 P.3d 357 (2001) ("[I]t is possible to satisfy the `occurring in the course of employment' prong when the employer has some control over the area where the injury is sustained, even if the area is not a parking lot." (Emphasis in original.)). In this case, it is undisputed that the sidewalk upon which claimant was injured was located on employer's campus and was controlled by her employer. There is no reason to distinguish a sidewalk connecting two of employer's buildings from an employer-owned parking lot. Nor is there any reason to distinguish an employee arriving or departing from work at the beginning or end of the work day from an employee arriving or departing from work at the beginning or end of lunch. We therefore agree with the board's conclusion that the injury occurred in the course of employment.

As noted, an injury "arises out of" employment if a claimant can establish "some causal link" between the employment and the injury. Claimant here has done so.

The board analyzed the "arising out of" question as follows:

"It is true that claimant was not performing work while injured. Nevertheless, claimant struck a three or four-foot concrete cigarette receptacle placed on the walkway leading to the entrance of the building normally used by claimant. In light of these circumstances, we conclude that the cigarette receptacle was a hazard on the employer's premises over which it had control. Accordingly, we conclude that claimant's injury (striking

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