MATTER OF COMPTON, 55 Van Natta 1078 (Or. Work. Comp. 3/25/2003)

• Decision Date: 25 March 2003
• Docket Number: WCB Case No. 01-07847.
• Parties: In the Matter of the Compensation of WYLIE J. COMPTON, DEC`D Claimant.
• Court: Oregon Workers' Compensation Division

Page 1078

55 Van Natta 1078

In the Matter of the Compensation of WYLIE J. COMPTON, DEC`D Claimant.

WCB Case No. 01-07847.

Oregon Workers' Compensation Division.

March 25, 2003.

Lavis & Dibartolomeo, Claimant Attorneys.

Julie Masters, SAIF Legal, Defense Attorneys.

Reviewing Panel: Members Langer and Biehl.

ORDER ON REVIEW

Claimant¹ requests review of Administrative Law Judge (ALJ) Davis' order that upheld the SAIF Corporation's denial of his right knee injury claim. On review, the issue is whether claimant's injury arose out of and in the course and scope of his employment. We affirm.

FINDINGS OF FACT

We adopt the ALJ's "Findings of Fact," except for the last paragraph and the "Findings of Ultimate Facts."

CONCLUSIONS OF LAW AND OPINION

Claimant injured his right knee when he tripped and fell on a "hazard free"² public sidewalk on his way to his bartending job on July 16, 2001.

The ALJ upheld SAIF's denial of claimant's injury claim on "course and scope" grounds. We affirm, based on the following reasoning.

For an injury to be compensable under the workers' compensation law, it must "arise out of" and occur "in the course of employment[.]" ORS 656.005(7)(a). The "arise out of" prong of the compensability test requires a causal link between the worker's injury and the employment. Fred Meyer, Inc. v. Hayes, 325 Or 592, 596 (1997). The requirement that the injury occur "in the course of" the employment concerns the time, place, and circumstances of the injury. Id. Both prongs of the work-connection test must be satisfied to some degree; neither is dispositive. Id.

Ordinarily, an injury sustained while a worker is going to or coming from work is not considered to have occurred "in the course of" employment and is not compensable. Krushwitz v. McDonald's Restaurants, 323 Or 520, 526 (1996). The reason for the "going and coming" rule is that the relationship between the employer and worker is usually suspended from the time the worker leaves work to go home until he or she resumes work because, while going to or coming from work, the worker is rendering no service for the employer. Id. at 526-27.

One exception to the "going and coming" rule is the "parking lot" exception. Hayes, 325 Or at 597. Under this exception, injuries sustained on the employer's premises while the worker is going to or coming from work have a sufficient work-connection to be considered to have occurred "in the course of" employment. Id. at 597-98. The "parking lot" exception recognizes that a location over which an employer exercises control is a part of the worker's employment environment. Id. at 598 n.10.

In McTaggart v. Time Warner Cable, 170 Or App 491, 496 (2000), rev den 331 Or 633 (2001), the court applied the analysis from Phil A. Livesley Co. v. Russ, 296 Or 25, 30 (1983)³ to an injury that occurred in an area off the employer's premises over which the employer exercised almost exclusive control. The McTaggart court concluded that the claimant's fall on her way to work occurred within the scope of her employment. The court specifically relied on the fact that the employer "had essentially exclusive control" over the area where the claimant fell. 170 Or App at 496. There was also evidence that the employer in McTaggart exercised control over the area, by filling potholes, trimming bushes, and preventing "nonemployer" vehicles from parking on the slope. See e.g., Cope v. West American Ins. Co., 309 Or 232, 239 (1990) ("[W]hen an employee travelling 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.").⁴

Here, unlike in McTaggart, there is no evidence that the employer ever maintained the public sidewalk where claimant fell, it excluded no one from the sidewalk, and it exercised no control whatsoever over the area. Thus, although a municipal ordinance assigned some responsibility for maintaining the injury sites in both cases, we conclude that there is no evidence of "employer control" over the injury site here and McTaggart is distinguishable on its material facts. Under these circumstances, we conclude that the "going and coming" rule applies (without exception) and claimant's injury on the way to work did not occur in the course of his employment. See e.g., Roberta M. Mowdy, 54 Van Natta 1357, 1359-60 (2002) ("parking lot" exception to the "going and coming" rule did not apply to injury in public crosswalk over which employer had no ownership, maintenance, or traffic control responsibilities).

Finally, because there is no evidence that claimant's work activities or work environment exposed him to the risk of falling on an ordinary (hazard free) public sidewalk, his injury did not "arise out of" his employment and the claim is not compensable. See Shedd RFPD v. Leopold, 180 Or App 332, 339-340 (2002) (to satisfy the arises-out-of employment prong of the work connected inquiry, 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 claimant[]") (quoting Redman Industries v. Lang, 326 Or 32, 36 (1997)). Accordingly, because the injury did not occur in the course of claimant's employment and it did not arise out of a risk of the employment, the injury is not compensable. See Adamson v. Dalles Cherry Growers, Inc., 54 Or App 58-59 (1981), rev den...