Legacy Health Systems v. Noble

• Decision Date: 18 November 2009
• Docket Number: 0702423.,A138671.
• Citation: 232 Or. App. 93,221 P.3d 180
• Parties: In the Matter of the Compensation of Theresa A. Noble, Claimant. LEGACY HEALTH SYSTEMS & Legacy Health System, Petitioners, v. Theresa A. NOBLE, Respondent.
• Court: Oregon Court of Appeals

221 P.3d 180

232 Or. App. 93

In the Matter of the Compensation of Theresa A. Noble, Claimant LEGACY HEALTH SYSTEMS & Legacy Health System, Petitioners, v. Theresa A. NOBLE, Respondent.

0702423.

A138671.

Court of Appeals of Oregon.

Argued and submitted on May 14, 2009.

Decided November 18, 2009.

Deborah L. Sather, Portland, argued the cause for petitioners. With her on the briefs were Rebecca A. Watkins and Sather, Byerly & Holloway.

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

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

SCHUMAN, J.

While walking to a credit union to deposit a personal check during a paid break from work, claimant slipped on ice and fractured her right ankle. The Workers' Compensation Board (the board) determined that, because claimant's errand was not a recreational or social activity performed primarily for her personal pleasure, and because claimant's employer controlled the parking lot where the fall occurred, the injury was sufficiently work-related to be compensable. Legacy Health Systems, the self-insured employer, seeks judicial review. We agree that claimant's injury did not occur during a social or recreational activity and that it occurred "in the course of" employment, but, because the board failed to determine whether the injury arose "out of" claimant's employment, we reverse and remand.

The following facts are undisputed. During a paid morning break from her work as a patient care coordinator at employer's hospital in northwest Portland, claimant decided to deposit a personal check at a credit union located at a different part of employer's campus. She left the hospital, crossed a street, and started to cut across a parking lot. While in the lot, she slipped on ice and fell, fracturing her right ankle. Another hospital employee, entering the lot to park her car, found claimant and came to her assistance. A hospital security guard arrived and filled out an incident report, and an ambulance took claimant to the emergency room.

Claimant filed a workers' compensation claim with employer, and employer denied it on the ground that the injury did not arise out of and in the course of employment. ORS 656.005(7)(a). Claimant requested a hearing. The administrative law judge (ALJ) determined that the injury was compensable and reversed the denial. The ALJ concluded, in part, as follows:

"At the outset, I do not agree with the employer's argument that claimant was engaged in a recreational activity primarily for her personal pleasure. I do not believe that visiting a credit union is a `recreational' activity primarily for her personal pleasure. I do not believe that this is the type of activity contemplated by the statute. ORS 656.005(7)(b)(B) does not apply.

"* * * * *

"I conclude that * * * the going and coming rule and the parking lot exception to that rule should be applied.

"Generally, under the `going and coming rule,' injuries sustained while going to or coming from the workplace are not compensable. However, an exception to the `going and coming' rule is 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.'

"In this case, claimant was going to the credit union on the employer's campus on her paid break and was crossing a parking lot used by the employer when she slipped on ice and fell sustaining an injury. A security guard employed by the employer responded and filled out an incident report. This fact establishes that the lot where claimant fell was controlled by the employer. Under the circumstances presented here, I conclude that claimant's injuries arose out of the course and scope of her employment. In this regard, when claimant's injuries occurred, she was in the course of her employment and was taking her paid break. She was injured by a hazard (ice) on an employer controlled area of the employer's campus. Claimant was permitted to stay on the employer's campus during her paid break and was allowed to go to the credit union at the employer's facilities. Under such circumstances, I find that claimant's injury arose out of and in the course and scope of her employment."

(Citations omitted.) The ALJ noted, "Based on her demeanor at the hearing, I had no reason to question claimant's credibility."

The board affirmed the ALJ's order with supplemental findings. In particular, the board noted that the "parking lot" rule applied and that "there is sufficient evidence that claimant was injured on the employer's premises." Employer seeks judicial review.

To be compensable, an injury must "aris[e] out of and in the course of employment," ORS 656.005(7)(a), a two-part requirement often referred to as the "unitary work-connection inquiry." An injury must satisfy both requirements, although "the work-connection test may be satisfied if the factors supporting one prong are minimal while the factors supporting the other prong are many." Krushwitz v. McDonald's Restaurants, 323 Or. 520, 531, 919 P.2d 465 (1996) (citing Phil A. Livesley Co. v. Russ, 296 Or. 25, 28, 672 P.2d 337 (1983)). To occur "in the course of" employment, "the time, place, and circumstances of the injury [must] justify connecting the injury to the employment." Robinson v. Nabisco, Inc., 331 Or. 178, 186, 11 P.3d 1286 (2000). To satisfy the "arising out of" employment prong, there must be "some causal link" between the injury and the employment. Krushwitz, 323 Or. at 525-26, 919 P.2d 465. 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).

Before determining whether an injury meets the primary requirement for compensability that is captured in the "arising out of and in the course of employment" test, however, we must address a prior question. ORS 656.005(7)(b)(B) categorically excludes from coverage any injury resulting from a social or recreational activity that a worker was engaged in primarily for the worker's personal pleasure. "[O]nly after we have concluded that an injury was not suffered while engaging in a recreational or social activity primarily for the worker's personal pleasure do we consider whether the injury arose out of and in the course of the employment." Roberts v. SAIF, 196 Or.App. 414, 417, 102 P.3d 752 (2004), aff'd, 341 Or. 48, 136 P.3d 1105 (2006) (citing Liberty Northwest Ins. Corp. v. Nichols, 186 Or.App. 664, 667, 64 P.3d 1152 (2003)).

We therefore begin with that prior inquiry. In Roberts v. SAIF, 341 Or. 48, 52, 136 P.3d 1105 (2006), the Supreme Court explained that the inquiry involves a three-step analysis:

"Textually, ORS 656.005(7)(b)(B) raises three questions. The first is whether the worker was engaged in or performing a `recreational or social activit[y].' The second is whether the worker incurred the injury `while engaging in or performing, or as the result of engaging in or performing,' that activity. The final question is whether the worker engaged in or performed the activity `primarily for the worker's personal pleasure.' If the answer to all those questions is `yes,' then the worker cannot recover."

The phrase "recreational or social activities" is not defined by statute or rule. Employer concedes that claimant was not engaged in a "social" activity, and we agree; she was walking alone, from a workstation, to her credit union. For purposes of ORS 656.005(7)(b)(B), we previously adopted the dictionary definition of "recreation": "'the act of recreating or state of being recreated: refreshment of the strength and spirits after toil: DIVERSION, PLAY * * * a means of getting diversion or entertainment * * *[.]'" Roberts, 196 Or.App. at 418, 102 P.3d 752 (quoting Webster's Third New Int'l Dictionary 1899 (unabridged ed. 1993)). Here, as noted, the board confirmed the ALJ's conclusion that walking to a credit union to deposit a check is not the type of activity contemplated by ORS 656.005(7)(b)(B). We agree. As the Supreme Court has explained, the exclusion for "recreational or social activities" was a legislative reaction to Beneficiaries of McBroom v. Chamber of Commerce, 77 Or. App. 700, 713 P.2d 1095, rev. den., 301 Or. 240, 720 P.2d 1279 (1986), a case in which this court found compensable the death of a travelling salesman who, on a business trip to Los Angeles, became extremely inebriated and drowned in his hotel's hot tub. Roberts, 341 Or. at 53, 136 P.3d 1105. Further, we have noted that the typical "recreational activity" case involves "off-the-job group recreational or social activities such as...