MATTER OF HELMKEN, 55 Van Natta 3174 (Or. Work. Comp. 9/24/2003)
| Decision Date | 24 September 2003 |
| Docket Number | WCB Case No. 02-08808. |
| Parties | In the Matter of the Compensation of BEVERLY M. HELMKEN, Claimant. |
| Court | Oregon Workers' Compensation Division |
Claimant requests review of those portions of Administrative Law Judge (ALJ) Riechers' order that: (1) upheld the SAIF Corporation's denial of her rib and chest injury claim; and (2) declined to direct SAIF to pay interim medical benefits under ORS 656.247(4)(b). On review, the issues are course and scope of employment, interim medical benefits and jurisdiction. We affirm in part and vacate in part.
We adopt the ALJ's "Findings of Facts."
CONCLUSIONS OF LAW AND OPINION
Claimant was injured on a public sidewalk as she was arriving at work. She tripped on a raised lip of the sidewalk that had been lifted by a tree root.
In upholding SAIF's denial, the ALJ found that the employer did not have "control" over the public sidewalk where claimant was injured. Thus, the ALJ held that the "in the course of" element of the unitary work connection test had not been met.
On review, claimant renews her argument that her injury occurred in the course of her employment because provisions in a lease agreement and the employer's request to have the sidewalk repaired establish employer control over the accident site. For the following reasons, we do not find claimant's arguments persuasive.
An injury is compensable if it "aris[es] out of and in the course of employment." ORS 656.005(7)(a). "'[A]rising out of' and `in the course of' are two elements of a single inquiry, that is, whether the relationship between the injury and the employment is sufficient that the injury should be compensable." Fred Meyer, Inc. v. Hayes, 325 Or 592, 596 (1997); see also Wylie J. Compton, 55 Van Natta 1078 (2003). Both factors must be evaluated in determining work connection; neither is dispositive. Deficiencies in the strength of one factor may be made up by the strength of the other.
The requirement that the injury occur "in the course of employment" concerns the time, place and circumstances of the injury. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366 (1994). Claimant's injuries occurred as she was arriving at her work place prior to starting her shift. (Tr. 9, 10). Generally, under the "going and coming rule," injuries sustained while going to or coming from the workplace are not compensable. Cope v. West American Ins. Co., 309 Or 232, 237 (1990). 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." Id. at 239.
In arguing that the employer had the requisite control, claimant points to two provisions in the lease agreement: first, the agreement provided that the landlord "shall have no obligation for the repair and maintenance of the Premises or for expenses relating to the Premises" and, second, the agreement required the employer to "keep the Premises and the entire store front clean, neat and in good order and repair." According to claimant, these provisions establish that the employer had control over the "accident site." (See Ex. A-5, -12).
In support of this argument, claimant relies on Margaret A. Kohl, 48 Van Natta 2492 (1996). However, we find Kohl distinguishable. In Kohl, the claimant was injured in a parking lot leased by the employer. The lease agreement provided that the employer/lessee had an exclusive right to park in the parking lot. Additionally, the "Maintenance and Repair of Premises" section of that lease described the parking lot as an area located on the "premises." The lease further indicated that the employer was to contact the lessor if any repair work needed to be done. If the lessor failed to act, the lessee had the right to contract for any necessary labor, equipment and material to bring the "premises" within the requirements of the lease. We held that pursuant to the terms of the lease, the employer/lessee could take independent action to correct a hazardous condition. In that circumstance, we concluded that the employer/lessee had "control" over the premises. Margaret A. Kohl, 48 Van Natta at 2493.
In the instant case, claimant was injured on a public sidewalk. There is no indication in the lease agreement, however, that the "premises" the employer was to maintain included the public sidewalk. Therefore, the provisions of the lease referred to by claimant do not establish employer "control" over the public sidewalk.
Claimant also cites the lease's indemnity provision to establish employer control over the public sidewalk. That provision states that the "Landlord shall not be liable for injury to Tenant's business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of the Tenant, tenant's employees, invitees, customers or any other person in or about the Premises." (Ex. A-8).
Claimant likens the provision to that in John R. Benson, 50 Van Natta 273 (1998). In Benson, the indemnification provision in that lease agreement was written to state that the employer would waive all claims against the sublessor for injuries "in, upon or about the premises and/or building." The claimant in Benson slipped and fell in the lobby of the building in which the employer was located. Therefore, the indemnification provision expressly included the lobby area where the claimant fell. In the instant case, the terms of the lease give no indication that the "premises" included the public sidewalk area. (See Ex. A-1, -5, -7, -14). Therefore, we agree with the ALJ that the terms of the lease do not indicate that the employer had control over or maintained the sidewalk where claimant fell.
Ownership or a leasehold interest is not required to establish control. However, the employer must, at a minimum, have some right to require maintenance of the grounds where the injury occurred. Henderson v. S. D. Deacon Corp., 127 Or App 333, 337 (1994); Garnette D. Cone, 51 Van Natta 848, 849 (1999). Claimant notes that the employer requested that the city repair the sidewalk, and that the city did so. Claimant argues that this action "in and of itself" establishes the requisite control, such that the injury occurred in the course of claimant's employment.
However, requesting the city to repair a sidewalk does not indicate that the employer assumed responsibility over the sidewalk's upkeep. See Adamson v. The Dalles Cherry Growers, 54 Or App 52 (1981) (); Cf. McTaggart v. Time Warner Cable, 170 Or App 491 (2000), rev den 331 Or 633 (2001) (). Absent a finding that the employer exercised some control over the public sidewalk, or a finding of an employer created hazard, the connection between the claimant's fall and the employment is insufficient to establish compensability. See Cope v. West American Insurance Co., 309 Or at 240; Wylie J. Compton, 55 Van Natta at 1080.
SAIF refused to pay for medical treatment claimant received prior to its November 15, 2002 denial. Claimant argues that, if the denial is upheld, she is entitled to "interim" medical benefits pursuant to ORS 656.247(4)(b).1 The ALJ concluded that, in light of the parties' stipulation that claimant did not have health insurance at the time of the work incident, she was not entitled to interim medical benefits pursuant to ORS 656.247(4)(b). Claimant contends that the statute does not require that a health benefit plan be in place before interim medical benefits are paid. Because claimant seeks payment of medical bills that SAIF has declined to pay, the issue on review is the non-payment of medical bills.
Before analyzing claimant's argument regarding ORS 656.247, we must determine whether the Board and the Hearings Division have jurisdiction over this issue. Jurisdiction is a threshold issue which must be considered, even if it is not raised by the parties. See Southwest Forest Industries v. Anders, 299 Or 205 (1985) (); Julie L. Johnson, 55 Van Natta 1266, 1267 (2003).
Subsection (4)(b) of ORS 656.247 reads:
Subsection (3)(b) of that statute addresses the procedure by which conflicts regarding non-payment of medical bills should be resolved. It provides:
"Disputes about the amount of the fee or nonpayment of bills for medical treatment and services pursuant to this section shall be resolved pursuant to ORS 656.248."
Under ORS 656.248(12), disputes regarding non-payment of medical bills for compensable medical services, "notwithstanding any other provision of this chapter," are reviewed by...
To continue reading
Request your trial