McTaggart v. Time Warner Cable

• Decision Date: 18 October 2000
• Citation: 16 P.3d 1154,170 Or. App. 491
• Parties: In the Matter of the Compensation of Becky J. McTaggart, Claimant. Becky J. McTAGGART, Petitioner, v. TIME WARNER CABLE and Travelers Insurance, Respondents.
• Court: Oregon Court of Appeals

16 P.3d 1154

170 Or. App. 491

In the Matter of the Compensation of Becky J. McTaggart, Claimant.

Becky J. McTAGGART, Petitioner, v. TIME WARNER CABLE and Travelers Insurance, Respondents.

(98-01802; CA A104295)

Court of Appeals of Oregon.

Argued and Submitted October 6, 1999.

Decided October 18, 2000.

Holly J. Somers argued the cause and filed the brief, Lake Oswego, for petitioner.

Jerald P. Keene argued the cause and filed the brief for respondents.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

ARMSTRONG, J.

Claimant seeks review of a decision of the Workers' Compensation Board that upheld employer's¹ denial of her claim for injuries that she suffered when she fell on the way from her car to her work. We reverse and remand for reconsideration.

Claimant works for employer in Portland as a customer service representative.² At the time of her injury, she worked four days a week, from 9 a.m. to 8 p.m. When she arrived for work shortly before 9 a.m. on January 9, 1998, she parked on Northeast Sullivan Street, which is a public right of way that runs between the Banfield Freeway and several businesses. Neither the city nor any other entity actually owns the street, but a city ordinance requires adjacent property owners to provide some degree of maintenance. Employer provides parking for its employees, but it has insufficient spaces for all of them. It is aware that some employees park on Sullivan Street when space is available. After claimant parked there on January 9, she began walking eastward toward employer's building, where she intended to enter a door on the lower level to reach her work station.

Before it reaches employer's property, Sullivan Street begins to slope downward, with the slope ending on employer's property; the precise location of the property line is not entirely clear. The surface of the slope is asphalt. The slope leads to a parking area for employer's vehicles and to the delivery area for employer's warehouse. Employer is the primary if not sole vehicular user of the slope. Employer prevents other vehicles from parking on any part of the slope, including the portions that it does not own, in order keep it clear for its purposes. It has filled potholes on the street above the slope and has trimmed bushes on the side of the slope. Claimant fell and suffered the injuries at issue while she was walking down the slope. She does not know the reason for her fall.³

Based on those findings, the Board concluded that claimant's injuries occurred in the course of her employment but that they did not arise from it. It therefore found that the claim is not compensable. The Supreme Court has explained in a number of cases that, in order for an injury to be compensable, it must both occur in the course of the claimant's covered employment and arise out of that employment. The requirement that the injury occur in the course of employment concerns the time, place and circumstances of the injury; the requirement that it arise out of employment requires a causal link between the injury and the employment. Although they are stated separately, those requirements are two prongs of what is in fact a single work-connection inquiry. There must be some support for each prong, but neither is dispositive. Strong support for one prong and minimal support for the other may be sufficient to satisfy the test. The basic question is whether the causal connection between the injury and the employment is sufficient to warrant compensation. ORS 656.005(7)(a); Fred Meyer, Inc. v. Hayes, 325 Or. 592, 596-97, 943 P.2d 197 (1997); Phil A. Livesley Co. v. Russ, 296 Or. 25, 28, 672 P.2d 337 (1983).

We begin with the "in the course of employment" prong. Employer cross-assigns error to the Board's conclusion that claimant satisfied that prong. See ORAP 5.57.⁴ If employer were correct, we would affirm the Board without considering the "arising out of employment" prong. In its order, the Board recognized that, under the "going and coming" rule, an employee's injury that is sustained before arriving at work or after leaving it is generally not compensable. However, it analogized claimant's situation to the parking lot exception to the going and coming rule, under which an injury may be compensable if it occurs in a parking lot or other off-premises area over which the employer has some control. See Fred Meyer, Inc.,325 Or. at 597-98,943 P.2d 197. As the Board explained:

"[A]s soon as claimant started down [the] slope she, for all practical purposes, was on the employer's premises or an off-premises area over which the employer exercised almost exclusive control. The employer acquiesced in employees parking on the right of way while at work and in the employees walking down the slope to enter the employer's work place through the lower entrance doors. Although there is no evidence that this employer paved the right of way or created the speed bump/water diverter on the slope, the employer's almost exclusive control over the slope is established by the record as a whole and in particular by the following factors: the employer has limited maintenance responsibility for the slope consistent with City ordinance; the employer does not encourage public use of the slope and does not allow parking on the slope so as to maintain ingress/egress to/from the employer's parking lot and warehouse/delivery area; there is no practical reason for the public to use the slope because the slope leads to [the] parking lot and warehouse/delivery area; the slope is extensively used by the employer's vehicles and those coming to the employer's warehouse/delivery area for the employer's business purposes; the employer fixes potholes as needed at the top of the slope; the employer trims the bushes on the side of the slope on a yearly basis."

The Board therefore concluded that the "in the course of employment" prong strongly supports compensability.

Employer argues that claimant's injury occurred only close to claimant's work space, close to claimant's work time, and close to claimant's beginning her work duties, and that closeness is not sufficient to show that the injury occurred in the course of her employment.⁵ It notes that the Board stated that it was "almost" as if the fall had occurred on employer's premises or parking lot and suggests that almost is not sufficient. However, in Cope v. West American Ins. Co., 309 Or. 232, 785 P.2d 1050 (1990), the Supreme Court held that several relevant cases

"demonstrate that when an employee traveling 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."

Cope, 309 Or. at 239, 785 P.2d 1050.⁶ Thus, it is possible to satisfy the "occurring in the course of employment" prong when the employer has some control over the area where the injury is sustained, even if the area is not a parking lot. Here, employer had essentially exclusive control of the slope where claimant fell, and we therefore agree with the Board's analysis of this prong of the unitary work-connection test.

The remaining question is whether the Board correctly concluded that claimant's injury did not arise out of her employment. Claimant must provide at least some limited evidence to satisfy that prong of the unitary work-connection test in order to prove that her injury is compensable. In its opinion, the Board treated the case as one involving an unexplained fall, which it described as a fall where the claimant is unable affirmatively to show a work-related cause for the injuries. It then relied on earlier cases in which the Board had concluded, as a matter of law, that an unexplained fall does not arise out of employment. The basis for those cases was the Board's conclusion that the legislature had overruled the Supreme Court's contrary holding in Phil A. Livesley Co., in which the court held that a truly unexplained fall—one in which among other things, the claimant has eliminated all idiopathic⁷ reasons for the fall—arises out the employment. This case presents our first opportunity to consider whether the Board is correct that Phil A. Livesley Co. is no longer controlling in this respect.

In Phil A. Livesley Co., the claimant fell at work while he was walking from his work station to the time clock in order to punch out. The area where he walked was free from debris or any substance that could account for a slip or trip. The claimant testified that he did not get dizzy, experience vertigo, or lose consciousness before the fall; all that he could remember was falling. 296 Or. at 27, 672 P.2d 337. The court first noted that the injury satisfied the "in the course of employment" prong of the test. Id. at 29, 672 P.2d 337. It then turned to the "arising out of employment" prong. It began by pointing out that an employer is not liable for any and all injuries irrespective of their cause; the fact that an employee is injured on the premises during working hours does not in itself establish a compensable injury. The employee must show a causal link between the injury and a risk associated with the employment; the court gave an attack of appendicitis or a self-inflicted injury as examples of noncompensable injuries. Id.

The court then considered whether there was a sufficient causal connection between the claimant's unexplained fall and his employment. It noted that an unexplained fall arises from neutral risks of employment—those that are neither peculiar to the employment nor personal to the employee. Both the Board and this court had concluded that the claimant had persuasively eliminated all idiopathic factors of causation. In our decision, we had relied on the elimination of idiopathic factors to hold that the claim arose out of the claimant's employment as a matter of law:

"[A] sufficient work connection between the injury...