Henderson v. S.D. Deacon Corp.

• Decision Date: 20 April 1994
• Citation: 127 Or.App. 333,874 P.2d 76
• Parties: In the Matter of the Compensation of Lisa D. Henderson, Claimant. Lisa D. HENDERSON, Petitioner, v. S.D. DEACON CORPORATION and SAIF Corporation, Respondents. 92-03276; CA A79202.
• Court: Oregon Court of Appeals

Page 76

874 P.2d 76

127 Or.App. 333

In the Matter of the Compensation of Lisa D. Henderson, Claimant Lisa D. HENDERSON, Petitioner, v. S.D. DEACON CORPORATION and SAIF Corporation, Respondents.

92-03276; CA A79202.

Court of Appeals of Oregon.

Argued and Submitted Oct. 20, 1993.

Decided April 20, 1994.

John Mayfield, Beaverton, argued the cause and filed the brief, for petitioner.

Michael O. Whitty, Sp. Asst. Atty. Gen., argued the cause, for respondents. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

[127 Or.App. 334-A] Before DEITS, P.J., and RIGGS and HASELTON, ^* JJ.

DEITS, Presiding Judge.

Claimant seeks review of a Workers' Compensation Board order holding that her injury was not compensable. The issue is whether the relationship between claimant's injury and her employment is sufficient to conclude that the injury was work-connected and, therefore, compensable. We reverse.

The facts are not disputed. Claimant worked on the fourth floor of an office building that is leased by employer. There are no lunch facilities on the fourth floor. Employer required claimant to take a one hour unpaid lunch break, and her supervisor encouraged her to leave the building during that time. When her lunch hour arrived, claimant rode the elevator to the first floor. She was injured when she attempted to step out of the elevator, because the elevator had stopped above the level of the first floor.

Claimant argues that the Board erred in concluding that her injury was not sufficiently related to her work to be compensable. An injury is compensable if it "aris[es] out of and in the course of employment." ORS 656.005(7)(a). " '[A]rising out of' and 'in the course of' are two elements of a single inquiry, that is, whether the relationship between the injury and the employment is sufficient that the injury should be compensable." Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 867 P.2d 1373 (1994). Each of these elements tests the work connection of an injury in a different way. Both factors must be evaluated in determining work connection; neither is dispositive. As the Supreme Court explained in Phil A. Livesley Co. v. Russ, 296 Or. 25, 672 P.2d 337 (1983), there is not an absolute minimum that must be met for each element of the work-connection test. Deficiencies in the strength of one factor may be made up by the strength of the other. In Livesley, the court quoted Professor Larson:

"One is almost tempted to formulate a sort of quantum theory of work-connection that a certain minimum quantum of work-connection must be shown, and if the 'course' quantity is very small, but the 'arising' quantity is large, the quantum will add up to the necessary minimum, as it will also when the 'arising' quantity is very small but the 'course' quantity is relatively large.

"But if both the 'course' and 'arising' quantities are small, the minimum quantum will not be met." 1A Larson, Workmen's Compensation Law 5-476, § 29.10 (1993). (Footnote omitted.)

The requirement that the injury occur "in the course of employment" concerns the time, place and circumstances of the injury. Norpac Foods, Inc. v. Gilmore, supra, 318 Or. at 366, 867 P.2d 1373. As discussed above, claimant's injuries occurred just as she was leaving her work place for lunch. The Oregon courts follow the "going and coming rule," which provides that injuries sustained while going to or coming from the workplace are not compensable. Cope v. West American Ins. Co., 309 Or. 232, 237, 785 P.2d 1050 (1990).

There are, however, exceptions to the going and coming rule. One exception is referred to as the "parking lot rule." Under that exception, when an employee traveling to or from work sustains an injury "on or near" the employer's premises, the "in the course of" portion of the work-connection test may be satisfied if "the employer exercises some 'control' over the place where the injury is sustained." Cope v. West American Ins. Co., supra, 309 Or. at 239, 785 P.2d 1050. As the Supreme Court explained:

"[W]hen an employee traveling to or from work sustains an injury on or near the employer's premises, there is a 'sufficient work relationship' between the injury and the employment only if the employer exercises some 'control' over the place where the injury is sustained. Whether the requisite control is evinced by increased, employer-created risks, or by the employer's property rights to the area where the injury is sustained, is immaterial. Some form of employer control of the area demonstrates the work-connection necessary to make the injury compensable." (Citations omitted.)

The Board concluded that claimant did not satisfy the control element of the "in the course of" part of the work-connection-test:

"Thus, the employer did not own the building, was not responsible for maintaining the elevator, and could not require the landlord to repair the elevator. Actual control by the employer of the area of injury is necessary to establish control. Cope [v. West American Ins. Co.], supra. Janet V. Dollens, supra. Accordingly, under the 'going and coming' rule, we find that claimant was not within the course and scope of her employment when her injury occurred."

We do not agree with the Board's conclusion that employer did not have sufficient control of the elevator to satisfy the "in the course of" element of the work-connection test. Ownership, or even a leasehold interest in the place where the injury occurred, is not always required. Montgomery Ward v. Malinen, 71 Or.App. 457, 692 P.2d 694 (1984); Montgomery Ward v. Cutter, 64 Or.App. 759, 669 P.2d 1181 (1983). As explained by Larson:

"When the place of employment is a building, it is not necessary that the employer own or lease the place where the injury occurred. It is sufficient if he has some kind of right of passage, as in the case of common stairs, elevators * * * or passage ways through which the employer has something equivalent to an easement." 1 Larson, Workmen's Compensation Law 4-132, § 15.43 (1990). (Footnotes omitted.)

See Philpott v. State Ind. Acc. Com., 234 Or. 37, 41, 379 P.2d 1010 (1963).

Claimant contends that the Board's finding that the employer could not require the landlord of the building to maintain and repair the elevator is not supported by substantial evidence. We agree. Employer's lease gave it a nonexclusive right to use the elevator, and provided that the landlord "shall have no obligation to make repairs * * * until a reasonable time after receipt of written notice from [employer] of the...