In re Comp. of Schnell, WCB Case No. 20-02141

Decision Date24 June 2021
Docket NumberWCB Case No. 20-02141
Citation73 Van Natta 516
PartiesIn the Matter of the Compensation of BRIAN J. SCHNELL, Claimant
CourtOregon Workers' Compensation Division

ORDER ON REVIEW

Welch Bruun & Green, Claimant Attorneys

MacColl Busch Sato PC, Defense Attorneys

Reviewing Panel: Members Curey and Ousey.

The insurer requests review of Administrative Law Judge (ALJ) Jacobson's order that set aside its denial of claimant's injury claim for a left lower extremity condition. On review, the issue is course and scope of employment.

We adopt and affirm the ALJ's order with the following supplementation.

Claimant was injured following the end of his work shift when, while riding his personal bicycle, he hit pieces of loose wood debris in his work site's parking lot and fell. (Tr. 5). The insured employer leased its work site, and the parking lot was shared with multiple businesses. (Tr. 8). Under the terms of its lease, the employer was entitled to 15 unreserved parking spaces and was responsible for paying a portion of the maintenance costs for the parking lot. (Ex. 1-2, -13).

The insurer issued a denial asserting that claimant's injury did not occur within the course and scope of employment. (Ex. 7). Claimant requested a hearing.

In setting aside the insurer's denial, the ALJ concluded that the "parking lot" exception to the "going and coming" rule applied. On review, the insurer asserts that the "parking lot" exception does not apply because it had no "control" over the shared parking lot. Alternatively, it contends that claimant's injury did not "arise out of" his employment. For the following reasons, we disagree with the insurer's contentions.

Claimant must establish that his injury "arose out of" and occurred "in the course of" his employment. ORS 656.005(7)(a); ORS 656.266(1). Whether an injury "arises out of" and occurs "in the course of" employment concerns two prongs of a unitary "work-connection" inquiry that asks whether the relationship between the injury and employment is sufficient such that the injury should be compensable. Fred Meyer, Inc. v. Hayes, 325 Or 592, 596 (1997). Whether the injury "arose out of" employment depends on the causal relationship between the injury and the employment. Id.; Krushwitz v. McDonald's Rests., 323 Or 520, 531 (1996). Whether the injury occurred "in the course of" employment depends on the time, place, and circumstances under which the accident took place. Id. A sufficient work connection may exist where the factors supporting one prong are weak, if those supporting the other are strong. Redman Indus., Inc. v. Lang, 326 Or 32, 35 (1997). Nevertheless, both prongs must be satisfied to some degree; neither is dispositive. Krushwitz, 323 Or at 531.

Injuries sustained while the employee is going to, or coming from, the place of employment generally do not occur "in the course of" employment. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366 (1994). The "parking lot" rule, however, provides an exception to the "going and coming" rule: 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. Id. at 367; Beverly M. Helmken, 55 Van Natta 3174, 3175 (2003), aff'd without opinion, 196 Or App 787 (2004). Such control may arise from the employer's property rights to the area, or as a result of an employer-created hazard. Cope v. West Am. Ins. Co., 309 Or 232, 239-40 (1990) (injury did not occur in the course of employment when it occurred while the claimant was walking to work on a public sidewalk over which the employer had no control and on which there were no employer-created hazards).

In disputing that claimant's injury occurred in the course of employment, the insurer asserts that the employer exercised no "control" of the parking lot, reasoning that under its lease it was limited to requesting that the landlord perform maintenance and repairs to the building that the employer occupied, while the landlord enjoyed the exclusive right to control and operate the shared parking lot. Based on the following reasoning, we disagree.

In this case, the lease indicated that the landlord had the duty to perform maintenance for aspects of the "Building," including common areas, while the employer was generally responsible for maintenance of the "Premises." (Ex. 1-5). The employer was required to notify the landlord of needed maintenance before the landlord's obligation was triggered. (Ex. 1-5, -6).

We acknowledge that the lease did not expressly include the parking lot within its definitions of either the "Building" or "Premises." (Ex. 1-1, -17). However, the lease characterized the parking lot, along with plazas, entrances, and corridors, as "facilities of the Building." (Ex. 1-32). This language indicates that the employer could request that the landlord perform maintenance of the common parking lot area.

In Bruntz-Ferguson v. Liberty Mut. Ins. Co., 310 Or App 618, 623-24 (2021), the Court of Appeals found that an employer's right to request common area maintenance was evidence of "control" over the area. Additionally, we have found support for a degree of employer "control" where an employer is required to pay a portion of common area maintenance costs, and the employer's landlord does not have the "sole" or exclusive right to perform or require maintenance for the area. See Sally Houk, 72 Van Natta 372, 376 (2020); Catherine A. Sheldon, 72 Van Natta 580, 586-87.

Based on the terms of the lease, we conclude that the employer could request maintenance for the parking lot area as a "facilit[y] of the Building," and the lease did not specify that the landlord had the "sole" or exclusive right to perform or require maintenance for the area. (Ex. 1-5, -6, -32). Further, the employer was required to pay a portion of the maintenance costs for the area. (Ex. 1-2, -4, -13; Tr. 6, 8, 9). We find that these factors are sufficient to establish that the employer had some "control" over the parking lot area where claimant was injured. See Bruntz-Ferguson, 310 Or App at 623-24; Houk, 72 Van Natta 374-76; Sheldon, 72 Van Natta at 585-87. Accordingly, under these particular circumstances, we find that the employer had sufficient "control" of the parking lot to satisfy the "in the course of" prong.

Alternatively, the insurer contends that claimant's injury did not "arise out of" his employment because his use of a bicycle was personal and not related to his work duties for the employer. For the following reasons, we disagree.

To satisfy the "arising out of" element, the "causal connection must be linked to a risk connected with the nature of the work or a risk to which the work environment exposes [the] claimant." Lang, 326 Or at 36. Risks causing injury to a claimant may generally be categorized as follows: risks "distinctly associated with the employment" are universally compensable; risks "personal to the claimant" are universally noncompensable; and "neutral" risks are compensable if the conditions of employment put the claimant in a position to be injured. Id.; Phil A. Livesley Co. v. Russ, 296 Or 25, 29-30 (1983).

Injuries that occur during normal ingress or egress through employer-controlled common areas are generally considered "neutral" risks that are causally connected to employment. See Bruntz-Fergus...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT