Employer seeks review of an order of the Workers’ Compensation Board in which the board determined that claimant had suffered an injury that arose out of and in the course of her employment and that the injury was, therefore, compensable. Employer challenges only the board’s determination that the injury occurred “in the course of” claimant’s employment. We agree with employer that the board erred in not applying the “going and coming” rule, under which “[injuries sustained while an employee is going to or coming from the place of employment generally do not occur within the course of employment” except in certain limited circumstances. Legacy Health Systems v. Noble, 232 Or App 93, 99, 221 P3d 180 (2009) (Noble I). Because the board did not apply the “going and coming” rule, it also did not determine whether any exceptions to that rule applied in a way that would result in claimant’s injury being compensable despite the fact that it occurred while she was returning to her place of employment from a break. Accordingly, we reverse and remand so the board may consider that question.
Both parties accept the board’s findings, which may be summarized as follows. Claimant was employed at employer’s call center and regularly worked an eight-hour shift with paid morning and afternoon breaks, as well as a lunch break. Claimant, like other employees, was “not allowed to stay in the work area while on break.” Instead, employees were free to leave the call center to get coffee or to run other errands nearby. Employer also provided two on-site break rooms with beverages and vending machines.
Employer’s call center is located in a “strip” with multiple other businesses. Employer does not own or manage the parking lot associated with the “strip,” but some spaces in the lot are designated for use by employer’s customers and employees. A covered “smoking hut” is located in the parking lot, approximately 100 feet from employer’s front door. Employer does not own the structure, which is open to the public. Employer’s employees could utilize that structure while on their breaks.
In March 2009, claimant visited with coworkers at the smoking hut while she was on a 10- or 15-minute break.
Employer’s claims representative denied claimant’s worker’s compensation claim for a right-knee injury. An administrative law judge (ALJ) set aside that denial based on his determination that claimant’s injury was compensable. Employer sought review before the board, which ruled — as pertinent here — that claimant’s injury arose “in the course of employment”:
“[W]e find that claimant’s injury occurred within the period of employment (a paid break, during regular work hours), at a place where she reasonably was expected to be (returning from the break shelter, the use of which the employer had acquiesced to, via the normal route), and while she was doing something reasonably incidental to employment (on a paid break and checking the clock to make sure she was on time).”
The board also determined that the other requirements for compensability were met and, accordingly, affirmed the ALJ’s order. Employer petitioned for review to this court.
Although employer challenges only a single aspect of the board’s compensability determination — its ruling that claimant’s injury arose in the course of employment— we quote a recent summary of the major requirements of a “compensability” determination to provide context for our discussion.
“A claimant bears the burden of establishing the compensability of his or her injury — and, specifically, the requisite connection between the injury and his or her employment. ‘A compensable injury is an accidental injury * * * arising out of and in the course of employment.’ ORS 656.005(7)(a) (emphasis added). That is, both conjunctive statutory elements must be met. In determining whether an injury occurs ‘in the course of’ employment, we look at the time, place, and circumstances of the injury. The ‘arising out of’ prong refers to the causal link — thePage 730causal nexus — between the injury and the employment. ‘[A] worker’s injury is deemed to arise out of employment if the risk of the injury results from the nature of his or her work or when it originates from some risk to which the work environment exposes the worker.’ As noted, both prongs of the ‘unitary work-connection test’ must be met to some degree. Nevertheless, the test may be satisfied, even if the factors supporting one prong are weak, if those supporting the other are strong.”
Legacy Health Systems v. Noble, 250 Or App 596, 600-01, 283 P3d 924 (2012) (Noble II) (ellipsis and brackets in original; some citations and internal quotation marks omitted).
Only the first prong of the unitary work-connection test is at issue in this appeal: the requirement that the claimant’s injury have occurred “in the course of employment.” ORS 656.005(7)(a). As the Supreme Court has explained, the “going and coming” rule provides guidance on that point:
“The general rule in Oregon — the ‘going and coming’ rule-— is that injuries sustained while an employee is traveling to or from work do not occur in the course of employment and, consequently, are not compensable.”
Krushwitz v. McDonald’s Restaurants, 323 Or 520, 526, 919 P2d 465 (1996). The rule reflects the general purpose of the Workers’ Compensation Law, which is to protect workers and their families “from poverty due to injury incurred in production, regardless of fault, as an inherent cost of the product to the consumer.” Allen v. SAIF, 29 Or App 631, 633, 564 P2d 1086, rev den, 280 Or 1 (1977). Injuries suffered when a worker is traveling to or from work generally are noncompensable because, during that time, the employee “‘is rendering no service for the employer.’” Krushwitz, 323 Or at 527 (quoting Heide/Parker v. T.C.I. Incorporated, 264 Or 535, 540, 506 P2d 486 (1973)).
In addition to adopting the “going and coming” rule, Oregon courts also have developed exceptions to that general noncompensability principle. The “parking lot” exception, for example, provides that an “injury sustained on premises controlled by the employer while an employee is coming to or going from work occurs within the ‘course of employment.’” Noble I,
We have applied the “going and coming” rule broadly, applying it — at least implicitly — not only to injuries that occur before the workday begins and after it ends, but also when a claimant is injured while leaving the workplace for lunch or returning from a lunch break. See, e.g., J A K Pizza, Inc.-Domino’s v. Gibson, 211 Or App 203, 207, 154 P3d 159 (2007) (“going and coming” rule might preclude compensability if the claimant had hurried back to his place of employment “to avoid overextending” an unpaid lunch break, but not if the employer had directed him to return to work before the end of his lunch break, because then the claimant would have been on a “special errand”); Hearthstone Manor v. Stuart, 192 Or App 153, 157-58, 84 P3d 208 (2004) (an injury that the claimant incurred while returning to work from her lunch break arose in the course of her employment because the “parking lot” exception to the “going and coming” rule applied). The rule also applies when a claimant is injured while on a shorter break — even a paid break — away from work. See Noble I, 232 Or App at 95-96 (an injury that the claimant suffered while away from her workplace on a morning break arose in the course of her employment because the “parking lot” exception to the “going and coming” rule applied).
Conversely, we have held that the “going and coming” rule does not apply when, although the employee was injured while traveling to or from the workplace, the employee still was “on duty” or otherwise subject to the employer’s direction and control. See, e.g., City of Eugene v. McDermed, 250 Or App 572, 582, 282 P3d 947 (2012) (because a police officer who left the office to get a cup of coffee “was still on duty and was obligated to perform” police functions while she was on the street, the “going and coming” rule was “simply inapposite”); Iliaifar v. SAIF, 160 Or App 116, 122, 981 P2d 353 (1999) (“the ‘going and coming’ exception to work connectedness [was] inapplicable” because the
In this case, the board appropriately started its analysis of the “‘in the course of’ prong of the ‘work connection’ test” by considering whether the “going and coming” rule applied. The board acknowledged that, for those purposes, the law does “not distinguish an employee going to or coming from work at the beginning or end of the workday from an employee going to or coming from work at the beginning or end of a break, whether paid or unpaid.” Nonetheless, the board concluded, the “going and coming” rule did not apply here for two reasons: first, because claimant was taking only “a brief” break during regular work hours; second, because claimant had traveled only about 100 feet from her workplace during that break.
Instead of applying the “going and coming” rule, the board considered, in a more global sense, “whether claimant [had] satisfied the ‘in the course of’ prong to some degree.” Based on evidence that employer required employees to leave their work stations during breaks, allowed (but did not require) employees to leave the building during breaks, and acquiesced in employees’ use of the “smoking hut,” as well as evidence that claimant had discussed work-related matters with her colleagues while on break and “was returning to work via the normal path” when she fell, the board concluded that claimant’s injury occurred “in the course of” her employment:
“Based on this evidence, we find that claimant’s injury occurred within the period of employment (a paid break, during regular work hours), at a place where she reasonably was expected to be (returning from the break shelter, the use of which the employer had acquiesced to, via the normal route), and while she was doing something reasonably incidental to employment (on a paid break and checking the clock to make sure she was on time). Under these circumstances, we find that the ‘in the course of’ prong of the unitary work connection test is satisfied.”
With respect, we reject the board’s determination that the “going and coming” rule does not apply in those circumstances. The board’s reliance on claimant having
We also find no significance to the fact that claimant stayed within 100 feet of her workplace during her break. In Noble I, the claimant had not gone far during her 15-minute break, but had only left the hospital where she worked, “crossed a street, and started to cut across a parking lot” on her way to a “credit union located at a different part of employer’s campus” when she fell. 232 Or App at 95. There, too, the claimant had not strayed far from her workplace while on her paid break. Nonetheless, we decided the case on the ground that the parking-lot exception to the “going and coming” rule applied; we did not hold that the rule itself did not apply in the circumstances surrounding the claimant’s injury. In sum, the board’s rationale for not applying the “going and coming” rule does not withstand scrutiny.
In defending the board’s decision, claimant argues, essentially, that the board may choose not to apply the “going and coming” rule at all and may, instead, simply decide more generally that a claimant’s injury arose in the course of her employment because the employer had some control over the area where the injury occurred. In support of that argument, claimant relies on our decisions in which, she contends, we either held that the “going and coming” rule was inapplicable because the employer had some control over the area where the claimant was injured or simply did
To some extent, claimant’s argument also conflates the “in the course of” and “arising out of” prongs of the unitary work-connection test. As we have acknowledged, “some overlap between the facts and circumstances pertaining to the two prongs may be unavoidable[.]” Noble II, 250 Or App at 601. Nonetheless, the two parts of the work-connection test relate to different considerations and, to the extent it informs the analysis, evidence of “employer control” takes on different significance in those two contexts. Our Noble opinions emphasize that difference. Those cases related to the compensability of an injury the claimant suffered “when, during a paid break, she slipped and fell in an employer-owned parking lot while walking from her workplace to a credit union to deposit a personal check.” Id. at 597. The Workers’ Compensation Board first determined that the claimant’s injury was compensable, largely because her employer “controlled the parking lot where the fall occurred.” Noble I, 232 Or App at 95. On review, we determined that the
That determination of employer control was not, however, sufficient to resolve whether the Noble claimant’s injury “arose out of” her employment. Accordingly, we remanded the case because the board had not addressed that second prong of the work-connection test. Noble I, 232 Or App at 100. On review after that remand, we emphasized that the “arising out of” prong of the work-connection test relates to “the causal link — the causal nexus — between the injury and the employment.” Noble II, 250 Or App at 600. Thus, the “arising out of” analysis does not focus on the same temporal/spatial connection that informs the “in the course of” test. Instead, it relates to whether a claimant’s injury “is the product of either (1) 'a risk connected with the nature of the work’ or (2) ‘a risk to which the work environment exposed claimant.’” Id. at 603 (citation omitted). Evidence about the employer’s control over the location where the claimant was injured may inform that analysis, but only to the extent it establishes an “environmental” or “causal” nexus to the claimant’s work. Id. In Noble II, the employer’s control over the parking lot did not have that causal connection with the claimant’s injury (among other things, the claimant did not park her car there). Consequently, we held, the board “erred in concluding that claimant’s injury arose out of her employment.” Id. at 604.
The point is that the mere fact of “employer control” over the location where a claimant is injured is not enough
In some ways, claimant’s argument that the board could sidestep applying the “going and coming” analysis anticipated our recent statement in Noble II that appellate court decisions addressing compensability “do not impose methodological straightjackets.” 250 Or App at 601. Of course, each case must be decided on its own facts and with an eye to the purposes of the Workers’ Compensation Law. Nonetheless, our opinions and those of the Supreme Court do embrace general principles that the board is bound to follow. One of those settled principles is that “injuries sustained while an employee is traveling to or from work do not occur in the course of employment and, consequently, are not compensable” unless an exception to the “going and coming” rule applies. Krushwitz, 323 Or at 526. That principle applies here. Claimant was away from her workplace on a regular break and she was not “on duty” or otherwise subject to employer’s direction or control. Accordingly, the “going and coming” rule applies. It follows that claimant’s injury did not arise in the course of her employment unless the circumstances under which she was injured fall within some exception to the rule. The board erred when it concluded otherwise.
Because it did not apply the “going and coming” rule, the board explained, it “[did] not address the employer’s arguments that it did not exercise ‘control’ of the area where the injury occurred under the ‘parking lot’ exception to the
Reversed and remanded.