Norpac Foods, Inc. v. Gilmore

• Decision Date: 25 February 1994
• Citation: 318 Or. 363,867 P.2d 1373
• Parties: In the Matter of the Compensation of William F. Gilmore, Claimant. NORPAC FOODS, INC., Petitioner on Review, v. William F. GILMORE, Respondent on Review. WCB 91-04989, 91-04663; CA A78880; SC S40614.
• Court: Oregon Supreme Court

Page 1373

867 P.2d 1373

318 Or. 363

In the Matter of the Compensation of William F. Gilmore, Claimant NORPAC FOODS, INC., Petitioner on Review, v. William F. GILMORE, Respondent on Review.

WCB 91-04989, 91-04663; CA A78880; SC S40614.

Supreme Court of Oregon.

Argued and Submitted Jan. 6, 1994.

Decided Feb. 25, 1994.

Chess Trethewy, of Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C., Salem, argued the cause and filed the petition for petitioner on review.

David W. Hittle, of Burt, Swanson, Lathen, Alexander & McCann, Salem, argued the cause for respondent on review.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.

UNIS, Justice.

The issue in this workers' compensation case is whether claimant's injury is compensable solely because it occurred in a parking lot owned and maintained by employer.

On March 4, 1991, claimant worked a full shift as a quality control grader at employer's place of business. At the end of his shift, claimant left the plant and walked to his car, which was parked in a lot owned and maintained by employer. When claimant got to his car, he opened the door and began to enter the vehicle. As claimant was sliding into the driver's seat of his car, he felt his right knee "grab/lock up," which produced excruciating pain. He backed out of the car and kicked his right leg out straight, which produced a popping sound, along with swelling and extreme pain in his right knee. Claimant drove home. At the time claimant was injured, he had completed all work duties, and he was not compensated by employer for the time between completion of his duties and his arrival home.

The next day, claimant went to the emergency room of a local hospital for the pain in his right knee. The attending physician took claimant off work and advised claimant to visit an orthopedic surgeon. Claimant subsequently received treatment, including arthroscopy, from an orthopedic surgeon for the damage to his right knee. The treatment was successful, and claimant returned to work in April 1991.

On April 17, 1991, claimant filed a workers' compensation claim, contending that he had injured his knee as a result of his work on March 4, 1991. Employer denied that claim on April 22, 1991. A hearing was held before a Workers' Compensation Board (Board) hearings referee. The referee affirmed employer's denial of the claim because claimant did not establish a causal link between a condition associated with employer's parking lot and claimant's injury. On review, the Board reversed the referee's decision, relying on Boyd v. SAIF, 115 Or.App. 241, 244, 837 P.2d 556 (1992), in which the Court of Appeals held that "[t]he fact that an injury occurs on employer-controlled premises while the employee is travelling to and from work makes the incident sufficiently work connected" to make the injury compensable.

Employer petitioned for judicial review of the Board's order, and the Court of Appeals affirmed without opinion. Norpac Foods, Inc. v. Gilmore, 123 Or.App. 122, 858 P.2d 183 (1993). This court allowed employer's petition for review to consider the compensability of injuries sustained in an employer-controlled parking lot. For the reasons that follow, we reverse the decision of the Court of Appeals and the order of the Board. We remand this case to the Board for further proceedings.

For an injury to be compensable under workers' compensation law, it must "aris[e] out of and in the course of employment." ORS 656.005(7)(a). Some courts have interpreted that phrase as creating two distinct tests, each of which must be satisfied for an injury to be compensable. This court has adopted a unitary approach, in which "arising 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. Rogers v. SAIF, 289 Or. 633, 616 P.2d 485 (1980). Each element of the inquiry tests the work-connection of the injury in a different manner. The requirement that the injury occur "in the course of employment" concerns the time, place, and circumstances of the injury. Clark v. U.S. Plywood, 288 Or. 255, 260, 605 P.2d 265 (1980). The requirement that the injury "arise out of" the employment tests the causal connection between the injury and the employment. Id. In assessing the compensability of an injury, we must evaluate the work-connection of both elements; neither is dispositive.

We first examine whether claimant's injury arose "in the course of" employment. This court follows the well-established "going and coming" rule, under which injuries sustained while an employee is going to and coming from the employee's regular place of employment generally are not considered to have occurred in the course of employment. Philpott v. State Ind.Acc.Com., 234 Or. 37, 40, 379 P.2d 1010 (1963). The "going and coming" rule is not, however, an absolute bar to compensability. See id. at 41, 379 P.2d 1010 (listing generally recognized exceptions).

One exception to the "going and coming" rule is the so-called "parking lot rule." Under the "parking lot rule," injuries sustained on the employer's premises while the employee is proceeding to or from work have a sufficient work-connection to be considered to have occurred "in the course of employment." Cope v. West American Ins. Co., 309 Or. 232, 785 P.2d 1050 (1990); Kowcun v. Bybee, 182 Or. 271, 186 P.2d 790 (1947).

In this case, the Board and the Court of Appeals have taken the approach that if an injury occurs in an employer-controlled parking lot, it is per se compensable. In reaching that conclusion, the Board and the Court of Appeals have relied on this court's decision in Cope v. West American Ins. Co., supra. Both the Board and the Court of Appeals have misread the decision in Cope.

In Cope v. West American Ins. Co., supra, the plaintiff was injured while walking to work when she was struck by a vehicle driven by a co-worker. The injury occurred near the edge of an employer-controlled parking lot, in which the plaintiff had parked her car. The plaintiff's insurance company denied her underinsured motorist claim. ¹ The plaintiff filed an action seeking a declaratory judgment that she was entitled to coverage. The defendants sought summary judgment, arguing that the plaintiff's exclusive remedy was through the workers' compensation system because the injury "arose out of and in the course of employment." The trial court granted summary judgment for defendants. This court reversed, holding that summary judgment was inappropriate because a genuine issue of material fact existed as to whether the injury occurred in the employer's parking lot or on a public sidewalk. In the process, this court discussed the "parking lot rule":

"[W]hen...