Legacy Health Sys. v. Noble (In re Comp. of Noble)

• Decision Date: 27 June 2012
• Docket Number: 0702423,A145784.
• Citation: 283 P.3d 924,250 Or.App. 596
• Parties: In the Matter of the Compensation of Theresa A. Noble, Claimant. LEGACY HEALTH SYSTEMS, Petitioner, v. Theresa A. NOBLE, Respondent.
• Court: Oregon Court of Appeals

250 Or.App. 596

283 P.3d 924

In the Matter of the Compensation of Theresa A. Noble, Claimant.

LEGACY HEALTH SYSTEMS, Petitioner,

v.Theresa A. NOBLE, Respondent.

0702423; A145784.

Court of Appeals of Oregon.

Argued and Submitted May 18, 2011.

Decided June 27, 2012.

Jerald P. Keene, Portland, argued the cause and filed the briefs for petitioner.

James O. Marsh argued the cause for respondent. With him on the brief was Carney, Buckley, Hays & Marsh.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

HASELTON, C.J.

Employer seeks review of a Workers' Compensation Board (board) order awarding compensation for an injury that claimant suffered when, during a paid break, she slipped and fell in an employer-owned parking lot while walking from her workplace to a credit union to deposit a personal check. This case is before us for the second time. In Legacy Health Systems v. Noble, 232 Or.App. 93, 100, 221 P.3d 180 (2009)( Noble I ), we held that the injury occurred “in the course of” claimant's employment; however, we reversed and remanded for the board to determine whether the injury “arose out of” claimant's employment. ORS 656.005(7)(a).¹ On remand, the board concluded that claimant's injury did arise out of her employment and, thus, that claimant's injury was compensable. We conclude, on review, that claimant's injury did not arise out of her employment because neither claimant's work nor her work environment exposed her to the risk of the injury that she suffered.² Accordingly, we reverse.

The material facts are undisputed. Claimant was a patient-care coordinator, who “managed the desk and the day-to-day operations in the short-stay unit” at employer's Legacy Good Samaritan Medical Center in northwest Portland. On the morning of February 21, 2007, claimant decided to walk from the hospital to her nearby credit union to deposit a personal check during a paid 15–minute break. Claimant's purpose was purely personal—she was not going to the credit union for any work-related purpose.

To that end, claimant, while on her paid break from work, left her desk and walked out the front door of the hospital on NW 22nd Avenue near NW Marshall Street. She then crossed NW 22nd Avenue and continued past the intersection with NW Northrup Street and then, as the most direct route to the credit union (which was located on NW Overton Street), started to cut across a parking lot. That parking lot was owned and controlled by employer and associated with employer's Green Gable House, a facility, separate from the hospital, that serves families of cancer clinic patients. Claimant did not work in the Green Gable House; nor did she park her car in that parking lot. As claimant crossed the parking lot, she slipped on a slick surface, fell, and fractured her ankle.

The board, in its original order, which was the object of review in Noble I, determined that claimant's injuries were compensable. In doing so, the board applied the “parking lot” rule and determined, inter alia, that “there is sufficient evidence that claimant was injured on the employer's premises.” Noble I, 232 Or.App. at 96, 221 P.3d 180 (internal quotation marks omitted). On judicial review in Noble I, we sustained the board's determination that, because claimant had been injured in a parking lot over which employer had control, the circumstances fell within the “parking lot” exception to the general principle that injuries sustained while going to or coming from the place of employment are not compensable—and that, in turn, established that claimant's injuries had occurred “in the course of employment.” Id. at 100, 221 P.3d 180. However, that alone was legally insufficient to establish compensability under the unitary work-connection test, which (as amplified below) requires a claimant to prove not only that the injury occurred in the course of employment, but also that the injury arose out of the claimant's employment. Id. Because we agreed with the employer that the board (and the administrative law judge) had failed to address the conjunctive “arising out of” inquiry, we reversed and remanded for it to do so. Id.

On remand, the board reiterated its determination of compensability, determining that claimant's injury had arisen out of her work. The gravamen of the board's reasoning in that regard was (1) claimant's “fall was caused by a hazard” (slippery conditions) “associated with the employer's premises” (the parking lot); (2) because claimant's “route” to the credit union “began at her desk” and she took “the most direct route from her workplace to the credit union,” her fall “occurred during normal egress from work”; and (3) employer “had acquiesced” in claimant's activity during her personal break.

Employer again seeks judicial review, challenging the board's “arising out of” determination as being erroneous as a matter of law. While deconstructing and disputing the correctness of specific aspects of the board's analysis— e.g., “normal egress” and “acquiescence”—the overarching theme of employer's challenge is as follows:

“Not every risk encountered while in the course of employment is an ‘employment risk.’ Under the specific circumstances of this case, claimant's injury resulted from a risk originated by her pursuit of a personal errand while in the course of her employment. The fact that it occurred on a parking lot controlled by the employer in connection with a different workplace was merely coincidental. Because it resulted from a ‘personal risk’ (or at most a ‘neutral risk’) to which her employment did not expose her, claimant's injury did not ‘arise out of employment’ as required to qualify for worker's compensation benefits.”

(Citations omitted; emphasis added.)

Claimant remonstrates that consideration of the personal, nonwork-related nature of her errand is subsumed within the “in the course of” inquiry and has been concluded by the board's original determination in that regard and by that aspect of Noble I that sustained that determination. Beyond that—and beyond reiterating facets of the board's reasoning—claimant emphasizes that compensability can be based on only a slight showing as to “arising out of” if (as claimant urges is true here) the “in the course of” component is very strong.

We agree with employer that the uncontroverted circumstances of claimant's injury are legally insufficient to support a determination of compensability under the unitary work-connection test. We so conclude because, as we will try to explain, the application of that test, in its sometimes arcane particulars, cannot, and must not, be divorced from its overarching purpose—and, indeed, the overarching purpose of the workers' compensation statutes. By way of foreshadowing our essential reasoning, to which we will return, we posit the following hypothetical, a variant of which we posed during the oral argument in this case:

“A,” an employee of a business owned by an employer in one part of a city, has a one-hour lunch break, during which A is not subject to employer's direction and control, and is free to do anything she chooses. One day, A decides to deliver her rent check, during her lunch break, to her property manager who, coincidentally, works at another of the employer's establishments on the other side of the city. A (who, of course, intends to return to work after her break) drives across the city, on public streets, and parks in the parking lot of the employer's establishment where the property manager works. As A walks from her car to the front door, she slips on ice and is injured.

Is A's injury compensable in workers' compensation as connected to her work? What meaningful purpose, relating to the fundamental purposes of the workers' compensation statutes, would be served by such a result—as opposed to consigning/permitting A to pursue an action and remedy in tort? Our hypothetical is, ultimately, materially indistinguishable from this case.

We turn to the applicable legal principles. A claimant bears the burden of establishing the compensability of his or her injury—and, specifically, the requisite connection between the injury and his or her employment. Phil A. Livesley Co. v. Russ, 296 Or. 25, 29, 672 P.2d 337 (1983). “A ‘compensable injury’ is an accidental injury * * * arising out of and in the course of employment.” ORS 656.005(7)(a) (emphasis added). That is, both conjunctive statutory elements must be met. In determining whether an injury occurs “in the course of” employment, we look at the time, place, and circumstances of the injury. Robinson v. Nabisco, Inc., 331 Or. 178, 186, 11 P.3d 1286 (2000). The “arising out of” prong refers to the causal link—the causal nexus—between the injury and the employment. Krushwitz v. McDonald's Restaurants, 323 Or. 520, 525–26, 919 P.2d 465 (1996). “[A] worker's injury is deemed to ‘arise out of’ employment if the risk of the injury results from the nature of his or her work or when it originates from some risk to which the work environment exposes the worker.” Fred Meyer, Inc. v. Hayes, 325 Or. 592, 601, 943 P.2d 197 (1997). As noted, both prongs of the “unitary work-connection test” must be met to some degree. Krushwitz, 323 Or. at 531, 919 P.2d 465. Nevertheless, the test may be satisfied, even if the factors supporting one prong are weak, if those supporting the other are strong. Redman Industries, Inc. v. Lang, 326 Or. 32, 35, 943 P.2d 208 (1997).

The Supreme Court has “repeatedly cautioned that the reading of other decisions is normally of little assistance when this issue is presented and that each case must be decided on its own particular facts.” Wallace v. Green Thumb, Inc., 296 Or. 79, 81, 672 P.2d 344 (1983) (internal quotation marks omitted). That is so because, as a practical matter, some overlap between the facts and circumstances pertaining to the two prongs may be unavoidable and because the ultimate determination is functional, predicated on practical...