Saif Corp. v. Lynn (In re Comp. of Lynn)

• Decision Date: 24 November 2021
• Docket Number: A174007
• Citation: 315 Or.App. 720,502 P.3d 1172
• Parties: In the MATTER OF the COMPENSATION OF Lahna K. LYNN, Claimant. SAIF Corporation and Criscione Family Dental PC, Petitioners, v. Lahna K. Lynn, Respondent.
• Court: Oregon Court of Appeals

315 Or.App. 720

502 P.3d 1172

In the MATTER OF the COMPENSATION OF Lahna K. LYNN, Claimant.SAIF Corporation and Criscione Family Dental PC, Petitioners,

v.Lahna K. Lynn, Respondent.

A174007

Court of Appeals of Oregon.

Argued and submitted August 24, 2021.

November 24, 2021

Beth Cupani, Portland, argued the cause and filed the briefs for petitioners.

Jodie Anne Phillips Polich, Milwaukie, argued the cause for respondent. Also on the brief was Law Offices of Jodie Anne Phillips Polich, P.C.

Before Powers, Presiding Judge, and Egan, Chief Judge, and Landau, Senior Judge.

EGAN, C. J.

Claimant worked as a dental hygienist for employer, a dental clinic. Claimant works at the site of the clinic in Lake Oswego. She was injured on her way to work when she slipped and fell on ice in employer's annex parking area, next door to its building, in the parking lot of Bank of the West. Employer and SAIF seek judicial review of an order of the Workers’ Compensation Board, which concluded that claimant's injury was compensable. We review the board's order for substantial evidence and errors of law under ORS 656.298(7) and in accordance with ORS 183.482. We conclude that the board did not err and affirm.

We begin with a brief overview of the relevant legal framework. If 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). The "arising out of" prong looks to the "causal connection between the injury and the employment," and the "in the course of" prong examines "the time, place, and circumstances of the injury." Norpac Foods, Inc. v. Gilmore , 318 Or. 363, 366, 867 P.2d 1373 (1994). 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 that rule is the "parking lot rule," which applies "when an employee traveling to or from work sustains an injury ‘on or near’ the employer's premises." Id. (quoting Cope v. West American Ins. Co. , 309 Or. 232, 239, 785 P.2d 1050 (1990) ).

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." Henderson , 127 Or. App. at 336, 874 P.2d 76 (quotation marks omitted).

With that legal context, we turn to the facts, which we take from the board's order. Employer leases its office space. Employer's landlord allotted 16 parking spaces in the office parking lot to employer. Not long after employer began leasing the space, employer realized that it needed additional parking. The landlord thus leased additional parking spaces for $1,000 a month at the neighboring bank building for employer's use. Employer's lease was not modified to include the additional space, but the landlord told employer that additional spaces were available for its use. Employer was the only tenant who used the annex parking area and the only tenant that did not have enough parking in the office parking lot.

Employer strongly encouraged its employees to park in the annex parking area so that its patients could park in the office parking lot. Several employees regularly parked in employer's annex parking area, including claimant and claimant's employers. Claimant began parking in the annex parking area because of employer's strong encouragement to do so. One of the employers testified that if she had known about snow or ice in the annex parking area, she would have informed the landlord.

In December 2017, claimant arrived at work shortly before her shift and parked her car in the annex parking area. Two steps from her car, she slipped on ice, fell, and injured her lower back. The parking area was icy because the bank's sprinkler system had overflowed and had frozen over. SAIF denied claimant's injury claim, asserting that it did not arise out of or occur in the course of her employment.

Claimant requested a hearing. An administrative law judge (ALJ) upheld SAIF's denial, and the board subsequently reversed the ALJ's order. Before the board, SAIF contended that compensability was precluded by the "going and coming" rule, because, at the time of her injury, claimant was going to work and therefore was not in the course of her employment.

The board concluded that the claim was compensable. Regarding the "in the course of prong," the board reasoned that the "going and coming" rule did not preclude compensability, because employer had "some control" over the annex parking area. The board found that

"The annex parking area was exclusive to the employer. The landlord acquired the annex parking area (nine parking spots in a specific area closest to the employer's office) for $1000 a month, specifically because the employer did not have enough parking in the office parking lot. Only the employer parked in that area, and it had an oral agreement with the landlord to use it. The employer strongly encouraged its employees to use the annex parking area so its customers could use the office parking lot. Several employees regularly parked there, including claimant, as well as * * * the owners of the dental clinic.

"Further, [the employer] testified that she would have informed the landlord if there had been snow or ice in the annex parking area. [Employer's] testimony was consistent with the employer's prior practice regarding parking complaints/requests. That is, the employer asked the landlord for additional parking (not according to a provision in the lease, but by notifying the landlord of its parking problem), the landlord was responsive and acquired the annex parking area by oral agreement, and the landlord and the employer orally agreed that the employer could use the annex parking area. Such prior practice and responsiveness, along with the aforementioned factors (regarding exclusivity) and the employer's testimony, combine to support the conclusion that the employer had a right to require/obtain maintenance for its annex parking area. SeeJohn R. Benson , 50 Van Natta 273, 274 -75 (1998) (the ‘parking lot’ exception applied where the sublease was silent on who was responsible for maintenance of the common area where the claimant was injured, but the employer testified that, if it has a complaint, its normal procedure was to contact the sublessor)."

(Footnotes and citations omitted.)

Regarding the "arising out of" prong, the board found that, although claimant's injuries were not connected with her duties as a dental hygienist, her injury was compensable because it resulted from a risk that her work environment exposed her to. And, further, the board found that claimant parked in the annex parking because of "the employer's strong encouragement" that claimant do so "in furtherance of the employer's goal to maintain a good relationship with its customers." One board member dissented, agreeing with SAIF that claimant's injury did not occur in the course of employment.

The dissenting board member reasoned that the "parking lot exception" to the going and coming rule did not apply, because "the employer did not own or lease the bank parking lot" rather the "landlord acquired additional parking for all his tenants" and "the...