In re Comp. of Houk, WCB Case No. 18-04112
| Decision Date | 30 April 2020 |
| Docket Number | WCB Case No. 18-04112 |
| Citation | 72 Van Natta 372 |
| Parties | In the Matter of the Compensation of SALLY HOUK, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
Alvey Law Group, Claimant Attorneys
Reviewing Panel: Members Lanning, Curey, and Wold. Member Curey dissents.
Claimant requests review of Administrative Law Judge (ALJ) Otto's order that upheld the SAIF Corporation's denial of her injury claim. On review, the issue is course and scope of employment. We reverse.
We adopt the ALJ's "Findings of Fact" with the following summary and supplementation.
Claimant worked as a paralegal in a high-rise building, which had 30 floors, three parking levels, an upper lobby, and a lower lobby. (Tr. 6, 15). The employer leased four floors (floors 16 through 19) in the building. (Tr. 15). The employer was entitled to unreserved parking in the underground parking garage, where claimant and other employees parked. (Ex. 5-23; Tr. 7).
Under the terms of the lease, the employer's premises included "the right to the use, in common with others, of lobbies, entrances, stairs, elevators, and other public portions of the [b]uilding * * *." (Ex. 5-3). The lease required the landlord to maintain those public and common areas, including the lobbies and elevators. (Ex. 5-8). The employer was required to pay a portion of the landlord's operating expenses for, among other things, maintenance of the common area and repairs, replacements, additions, or improvements made by the landlord to the building. (Ex. 5-4). If the employer had a problem with the common areas or maintenance, repairs, improvements, etc., to those areas being conducted by the landlord (or its contractors), it could complain to the landlord, but it did not independently direct/control the maintenance, repairs, improvements, etc. (Tr. 16). The employer agreed to waive all claims against the landlord and indemnify the landlord for injuries occurring in the building, except those caused by the negligence of the landlord or its contractors. (Ex. 5-11).
In May 2018, the landlord was remodeling the upper lobby of the building. (Tr. 17-18). The marble floor of the lobby had been removed and the landlord's construction contractor had built a plywood ramp at the threshold of the elevator door. (Tr. 7). The employer had received complaints from its employees about the noise and dust resulting from the project and had reported such complaints to the landlord. (Tr. 18).
On May 11, 2018, claimant parked in the parking garage and took the elevator to the upper lobby. (Tr. 6). As she exited the elevator and stepped onto the plywood ramp, the plywood "flexed" and she rolled her left ankle, causing her to fall onto the concrete floor just beyond the ramp. (Tr. 7). She suffered a left foot fracture and right elbow dislocation, for which she filed a claim. (Ex. 1).
SAIF denied claimant's injury claim on the basis that it did not "arise out of" and "in the course of" her employment. (Ex. 4-1). She requested a hearing.
In upholding SAIF's denial, the ALJ concluded that the "parking lot" exception to the "going and coming" rule did not apply because the employer did not exercise sufficient control of the common area where claimant fell. The ALJ also concluded that the injury did not "arise out of" claimant's employment.
On review, claimant does not dispute that the "going and coming" rule applies. However, she contends that the "parking lot" exception to the rule applies because the employer had some control over the common area where she fell. Additionally, she asserts that the injury "arose out of" her employment. Based on the following reasoning, we agree with claimant's contentions.
Claimant must establish that her injury "arose out of" and occurred "in the course of" her 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 the employment has a sufficient nexus such that the injury should be compensable. Fred Meyer, Inc. v. Hayes, 325 Or 592, 596 (1997). The requirement that an injury occur "in the course of" employment concerns the time, place, and circumstances of the injury. The requirement that the injury "arise out of" employment depends on the causal link between the injury and the employment. Id.; Krushwitz v. McDonald's Rests., 323 Or 520, 525-26 (1996). 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 requirements must be satisfied to some degree; neither is dispositive. Krushwitz, 323 Or at 531.
We begin with the "in the course of" prong. Injuries sustained while an 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: when an employee traveling to or from work sustains an injury "on or near" the employer's premises, the "in the course of" prong of the work connection test is 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) (). "Control" may also arise from the employer's obligation or right to maintain the area where the injury occurred. See Montgomery Ward v. Malinen, 71 Or App 457, 460 (1984) (). Thus, while ownership or a leasehold interest is not required to establish control, the employer must, at a minimum, have some right to require maintenance of the grounds where the injury occurred. Helmken, 55 Van Natta at 3176.
Based on the following reasoning, we conclude that the employer had "control" over the upper lobby area where claimant was injured based on its "property interest" in that area. In Henderson v. S.D. Deacon Corp., 127 Or App 333, 337 (1994), the court concluded that an employer had such "control" over the common area of a building where the claimant was injured. In doing so, the court stated:
Id. (quoting 1 Larson, Workmen's Compensation Law 4-132, § 15.43 (1990)).
Further, the court in Rohrs v. SAIF, 27 Or App 505, 509 (1976), quoted the same Larson's passage in describing an exception to "the going and coming rule," which applies when a claimant's injury occurs in the common area of a building in which the employer is a tenant. Id. (quoting 1 Larson, Workmen's Compensation Law 4-38, § 15.41 (1972)).
Here, claimant's injury occurred in a common lobby area of the building in which her employer was a tenant. The lease expressly gave the employer a nonexclusive "right to the use * * * of lobbies, entrances, stairs, elevators, and other public portions of the [b]uilding * * *." Thus, under the terms of lease, the employer had a right of passage, equivalent to an easement, through the common areas of the building in which it leased space, including the upper lobby area where claimant was injured. Under such circumstances, consistent with the Henderson and Rohrs rationale, the employer held a property interest in the upper lobby, which although not required, is sufficient to establish the employer's "control" over that area.
Additionally, we conclude that the employer had sufficient "control" over the upper lobby area, based on a right to require/obtain maintenance of that area. In doing so, we find John R. Benson, 50 Van Natta 273 (1998), to be instructive.
In Benson, we determined that the employer had sufficient control over the lobby area (where the clamant was injured after slipping in water on the floor) of the building in which it leased space, such that the "parking lot" exception to the "going and coming" rule applied. 50 Van Natta at 274. There, the employer had a non-exclusive right to use the lobby, elevator, and stairs for ingress/egress to its premises. Id. It paid a portion of the building's "operating expenses," and could complain about/request maintenance of the common areas through the landlord. Id. The indemnification provision in the lease provided that the employer would indemnify and hold the landlord harmless for injuries occurring on the premises, except those caused by the landlord's negligence. Id. Although the lease was silent concerning who was responsible for maintenance of the common areas, the record contained some evidence that a building management company had been hired to perform that service. Id. Under such circumstances, we found that, although the employer did not have direct control over the lobby, the record established that it had the right (and responsibility) to obtain maintenance of the lobby. Id.
Similarly, here, the lease provided that the employer's "premises" included the right to...
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