Miles v. Bi-Mart Corp. (In re Miles)
| Decision Date | 22 December 2021 |
| Docket Number | A170057 |
| Parties | In the MATTER OF the COMPENSATION OF Sherrie A. MILES, Claimant. Sherrie A. Miles, Petitioner, v. Bi-Mart Corporation, Respondent. |
| Court | Oregon Court of Appeals |
Dale C. Johnson, Springfield, argued the cause and filed the briefs for petitioner.
Vera Langer argued the cause for respondent. Also on the brief was Lyons Lederer, LLP.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge.*
Claimant worked as a pharmacy technician for employer, a retailer. Before beginning her shift at work, claimant parked her vehicle in the portion of the parking lot designated by employer for employee parking. As she was walking across the parking lot to the entrance of employer's retail store, claimant tripped on a portion of cracked and broken pavement and fell. Claimant was injured by that fall and required medical treatment. Claimant seeks judicial review of an order of the Workers’ Compensation Board (the board) upholding employer's denial of compensability of her claim. We first address whether employer had "some control" over the area where the injury occurred such that the "parking lot" exception to the "coming and going rule" applies. Second, we address whether the injury "arose out of" claimant's employment as a neutral risk. Ultimately, we conclude that the injury arose out of and in the course of claimant's employment, and that the injury is compensable. Accordingly, we reverse and remand the board's order.
We review the board's order denying compensation of claimant's injury for substantial evidence and errors of law under ORS 656.298(7) ; ORS 183.482. Under ORS 183.482(8)(c), substantial evidence "exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." Additionally, the board's reasoning must provide a rational explanation of the factual findings that lead to the legal conclusions on which the order is based. NAES Corp. v. SCI 3.2, Inc ., 303 Or. App. 684, 692, 465 P.3d 246, rev den , 366 Or. 826, 470 P.3d 364 (2020). We begin our analysis with the legal context governing this dispute.
When a person is injured at work, that injury is compensable if it "aris[es] out of and in the course of employment." ORS 656.005(7)(a). Oregon has adopted a unitary work-connection test that requires the worker to prove both the "arising out of" and "in the course of" prongs as a single inquiry to establish "whether the relationship between the injury and the employment is sufficient that the injury should be compensable." Norpac Foods, Inc. v. Gilmore , 318 Or. 363, 366, 867 P.2d 1373 (1994). The "arising out of" prong examines the "causal connection between the injury and the employment," and the "in the course of" prong assesses "the time, place, and circumstances of the injury." Id . Although an injury must meet both prongs of the unitary work-connection test, the test "may be satisfied if the factors supporting one prong are minimal while the factors supporting the other prong are many." Compton v. SAIF Corp. , 195 Or. App. 329, 332, 97 P.3d 669, rev den , 337 Or. 669, 104 P.3d 601 (2004).
In analyzing the "in the course of" prong, "injuries sustained while going to or coming from the workplace are not compensable." Henderson v. S. D. Deacon Corp. , 127 Or. App. 333, 336, 874 P.2d 76 (1994). That rule is known as the "going and coming rule." Id. One exception to the going and coming rule is the "parking lot exception," which applies "when an employee traveling to or from work sustains an injury ‘on or near’ the employer's premises." Id. In determining whether the parking lot exception applies, we look to whether "the employer exercises some control over the place where the injury is sustained." Id . (internal quotation marks omitted; emphasis added).
With that legal context in mind, we turn to the facts. We take those facts from the board's order, which adopted the findings of the administrative law judge with supplementation. Employer leases retail space that includes a right to park vehicles in the adjoining parking lot. The lease provides that maintenance of the parking area is to be provided by the lessor. Employer uses portions of the parking lot for permanent shopping cart racks and for moveable shelving displays of items for sale. Employer periodically removes hazards, garbage, and lost items from the parking lot when needed. Employer acts to "proscribe certain behavior such as loitering, skateboarding[,] and parking in designated areas." For instance, employer placed "no loitering" signage, warning that improperly parked cars would be towed, and fenced off areas to "keep out skateboarders and loiterers who were banned from the property."
On the day that claimant was injured, before beginning her work shift, claimant parked her vehicle in the portion of the parking lot designated by the employer for employee parking. At the time, a coworker was watering plants, as a part of her work, in the area of the parking lot where the injury occurred. As claimant continued toward the store's entrance, she tripped on a portion of cracked and broken parking lot pavement and fell. As a result of the fall, claimant required medical treatment. As noted, the board upheld employer's denial of the claim.
In reviewing whether claimant's injury meets the unitary work-connection test, we begin with the "in the course of" prong to determine whether the board's conclusion that employer did not have sufficient control over the parking lot is supported by substantial evidence. "Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c) ; NAES Corp. , 303 Or. App. at 692, 465 P.3d 246. Substantial evidence review also includes review for substantial reason—"that is, we determine whether the board provided a rational explanation of how its factual findings lead to the legal conclusions on which the order is based." Id. at 692, 465 P.3d 246 (internal quotation marks omitted).
As we explain below, the board failed to address the entirety of the record when it considered whether the injury occurred in an area where employer had "some control." The board explained its reasoning as follows:
In explaining its rationale, the board relied almost exclusively on the maintenance provisions of the lease and on its order in Bruntz-Ferguson , 69 Van Natta 1531, 1534 (2017), which we have since reversed in Bruntz-Ferguson v. Liberty Mutual Ins. , 310 Or. App. 618, 623-24, 485 P.3d 903 (2021). In that case, we said that, rather than focusing exclusively on the...
To continue reading
Request your trial
-
SAIF Corp. v. Houk (In re Houk)
...Mutual Ins. , 310 Or. App. 618, 485 P.3d 903 (2021), SAIF v. Lynn , 315 Or. App. 720, 502 P.3d 1172 (2021), and Miles v. Bi-Mart Corp. , 316 Or. App. 481, 504 P.3d 64 (2021), we conclude that the board did not err in concluding that claimant's injuries arose out of and in the course of her ......