Enterprise Rent-A-Car Co. v. Frazer

WOLLHEIM, J.,

dissenting.

The majority reverses the Workers’ Compensation Board’s order that held that claimant suffered a compensable injury when she slipped and fell on her knee during her morning break. The majority agrees with her employer, Enterprise Rent-A-Car, that the board erred in not considering the “going and coming” rule when the board held that claimant’s injury was “in the course of” claimant’s employment. For the reasons that follow, I respectfully dissent.

In order to give context to my dissent, it is necessary to dive into the murky sea of workers’ compensation jargon. This jargon has developed over the last almost 100 years.1 The Workers’ Compensation Law began as a simple trade-off between employers and their employees. Employers would receive limited exposure to damages, and employees would receive limited benefits regardless of fault. The statutory requirement that the injury arise out of and be in the course of employment, ORS 656.005(7)(a), has mutated by means of judicial gloss into judicially created rules and judicially created exceptions to those rules — all of which were originally created to be helpful, but which now obscure the legislative purpose in enacting the Workers’ Compensation Law and the legislative intent as expressed by the words the legislature used. Perhaps I am more critical than necessary, because I recognize that these rules developed to address changes in the workplace that were not imagined when the Workers’ Compensation Law was adopted. Nonetheless, these rules now are a byzantine labyrinth that the parties must navigate. I will now attempt to navigate that murky sea.

One of the early doctrines was the “personal comfort” doctrine. Under the “personal comfort” doctrine, injuries sustained while engaged in activities for the personal comfort *738ofthe employee are compensable if the conduct was “expressly or impliedly allowed by the employer.” Clark v. U.S. Plywood, 288 Or 255, 266, 605 P2d 265 (1980). The basis of the doctrine is that “certain activities by employees are expected and necessary and the conduct of those activities is not a departure from the employment relationship.” Halfman v. SAIF, 49 Or App 23, 29, 618 P2d 1294 (1980). While the worker was going to, using, or returning from the bathroom, or eating lunch, the worker was not working; there was no causal link between the injury and any benefit to the employer. Yet, such an injury was determined to be compensable.

Another rule that generated many exceptions is the “traveling employee” rule, which provides that any injury while traveling for work is compensable. SAIF v. Reel, 303 Or 210, 216, 735 P2d 364 (1987). Then there is the “bunkhouse” rule, which covers injuries when the worker was required to live on the employer’s premises (hence the name of the rule). Leo Polehn Orchards v. Hernandez, 122 Or App 241, 246, 857 P2d 213, rev den, 318 Or 97 (1993). At times, the euphemism “personal mission” rule was used to cover various nonproductive work activities. Mellis v. McEwen, Hanna, Grisvold, 74 Or App 571, 574-75, 703 P2d 255, rev den, 300 Or 249 (1985); Jordan v. Western Electric, 1 Or App 441, 444, 463 P2d 598 (1970). There are multiple additional judicially adopted rules all designed to help determine whether an injury is compensable. But I digress, because the rules the majority believes are at issue in this claim are the “going and coming” rule and the “parking lot” exception to that rule.

The Workers’ Compensation Law covers some, but not all, injuries occurring during work. When an employee is travelling to work or returning home after work, the employee is providing no service for the employer. Thus, absent other circumstances, an injury while going to work or coming from work is not compensable.2 Philpott v. State Ind. *739Acc. Com., 234 Or 37, 40-41, 379 P2d 1010 (1963). One such circumstance is addressed by the “parking lot” exception, which provides that an employee’s injury in a parking lot that is either owned by the employer or maintained by the employer is compensable, subject to multiple exceptions. Legacy Health Systems v. Noble, 232 Or App 93, 99, 221 P3d 180 (2009) (Noble I). The theory behind the “parking lot” exception appears to be that the employer’s control over the premises keeps the employee in the course of employment. Id. Let me turn to the undisputed facts in this case.

ENTERPRISE’S WORK ENVIRONMENT

Claimant worked at employer’s call center, which appears to be located in a “strip” in Lane County. Enterprise leases office space and two rows of parking spaces in the front of the building. Over the front entrance of the building is a sign bearing Enterprise’s name and logo. Other tenants lease space in the building. Other than the parking spaces that employer leases, the remaining parking spaces are available for public use.

Claimant regularly worked an eight-hour shift with paid morning, afternoon, and lunch breaks. Employer required employees to leave their work area during all break periods. Employer provided two on-site break rooms. Employees were not permitted to smoke in the office building or within 10 feet of the front door. However, there was a smoking hut in the parking lot, and employer acquiesced in employees using the smoking hut, which was about 100 feet from the front door. The smoking hut was not in the area of employer’s leased parking spots. A photograph of the area was admitted as an exhibit and is attached as an appendix.

In March 2009, claimant took her morning break, along with some coworkers, in the smoking hut. Claimant was returning to her workplace when she fell and injured her knee.

THE UNITARY TEST AND THE TWO PRONGS

In Rogers v. SAIF, 289 Or 633, 643, 616 P2d 485 (1980), the Supreme Court adopted a “unitary work-connection approach,” under which the court asks the question, “is the relationship between the injury and the employment *740sufficient that the injury should be compensable?”Id. at 642. The “should” reflects the trade-offs inherent in the Workers’ Compensation Law. The court stated that it was not its intent to substantially change the fundamental Workers’ Compensation Law because, if the injury has sufficient work relationship, then the injury satisfies both the “arising out of” and the “in the course of” employment prongs. Id. at 643. Easily stated and hard to apply.

Both prongs are part of the definition of a compensable injury. ORS 656.005(7)(a). To be compensable, an injury must arise out of and be in the course of employment. Both prongs must be satisfied to some degree, and the facts of one prong can be multiple while the facts of the other prong minimal. Redman Industries, Inc. v. Lang, 326 Or 32, 35, 943 P2d 208 (1997). One difficulty in the application of the two prongs is that the prongs can overlap.3 As we explained in Legacy Health Systems v. Noble, 250 Or App 596, 599, 283 P3d 924 (2012) (Noble II), the application of the unitary work-connection test “cannot, and must not, be divorced from its overarching purpose — and, indeed, the overarching purpose of the workers’ compensation statutes.” That purpose is to protect workers from financial hardships due to injuries incurred in production, regardless of fault. SAIF v. Fortson, 155 Or App 586, 591, 964 P2d 293 (1998); see also Robinson v. Nabisco, Inc., 331 Or 178, 185, 11 P3d 1286 (2000); Rogers, 289 Or at 643. Thus, “the ultimate determination is functional, predicated on practical reference to the purpose of the workers’ compensation statutes,” and each case must be decided on its own particular facts. Noble II, 250 Or App at 601.

THE ARISING OUT OF EMPLOYMENT PRONG

The “arising out of” employment prong refers to a causal connection between the nature of the work or the work environment and the injury. Redman Industries, 326 *741Or at 36. The “arising out of prong” requires more than a showing that the injury occurred at work and during work hours. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 368, 867 P2d 1373 (1994). For example, in Panpat v. Owens-Brockway Glass Container, 334 Or 342, 49 P3d 773 (2002), a worker’s death did not arise out of employment where an on-leave coworker (an upset former lover) returned to work and shot and killed the worker. The court concluded that, for the worker’s death to arise out of employment, her risk of being shot must be causally linked to the work environment or a risk to which the work environment exposed the worker. Id. at 349. The court concluded that the risk in Panpat was a personal risk and, for that reason, did not arise out of employment. Id. at 351-52.

Redman is at the other end of the “arising out of” spectrum. An employee, who had been subject to racially derogatory name-calling by the claimant, hit the claimant, because the employee believed that he was about to be fired anyway. 326 Or at 34. The court held that the injury to the claimant satisfied the “arising out of” prong because work was the sole place where the two were exposed to each other.4 Id. at 41.

Somewhere in the middle (and somewhat dated) is Mellis. The claimant was a salaried legal assistant who took a break in the cafeteria of the office building where she worked. Mellis, 74 Or App at 573. As she was returning to work, she became entangled in the leg of the cafeteria’s chair, tripped, and fractured a bone in her right leg. The law firm had a break area but acquiesced in employees taking breaks in the cafeteria. Id. The court concluded that this was a typical coffee break that was contemplated by an employer and was not a departure from the employment relationship. The fact that the injury was off-premises was only one of several factors to be considered and was not decisive. Id. at 575. Although Mellis is an older case, its analysis is helpful.5

*742Enterprise does not challenge the board’s conclusion that claimant’s injury arose out of her employment, i.e., that there is a causal link between claimant’s work or work environment and her injury.

IN THE COURSE OF EMPLOYMENT PRONG

The “in the course of” employment prong refers to the time, place, and circumstances of the injury. Krushwitz v. McDonald’s Restaurants, 323 Or 520, 526, 919 P2d 465 (1996). Hayes presents the clearest discussion of the “in the course of” employment prong:

“An injury occurs ‘in the course of’ employment if it takes place within the period of employment, at a place where a worker reasonably may be expected to be, and while the worker reasonably is fulfilling the duties of the employment or is doing something reasonably incidental to it. * * * By ‘reasonably incidental to’ employment, we include activities that are personal in nature — such as a telephone call home or a brief visit with a coworker — -as long as the conduct bears some reasonable relationship to the employment and is expressly or impliedly allowed by the employer.”

325 Or at 598-99.

In Hayes, the claimant finished her work shift in the retail department, shopped for about 20 minutes in the grocery department, left, and walked to the area of the parking lot where the employer had directed its employees to park. There, she was assaulted, and her injuries required medical treatment. 325 Or at 594-95. The difficult issue was whether the injury occurred in the course of employment, specifically because, at the time of the injury, the claimant had finished work about 20 minutes earlier.6 Id. at 598-99. The employer argued that, because the claimant had not immediately gone to her car once her shift ended, she was not in the course of employment when she was injured. Id. at 595. Further, the time that the claimant spent shopping was personal to the claimant and terminated the claimant’s *743connection with her work. Id. at 598. The court disagreed. The court accepted the board’s finding that the claimant’s brief shopping was insufficient to sever the connection with work. Id. at 599.

The injury in Hayes occurred while that claimant was “off-the-clock” and finished working for that employer. If such an injury satisfies the “in the course of” employment prong, then claimant’s injury while she was “on-the-clock” and returning to work also satisfies the “in the course of” employment prong.

THE GOING AND COMING RULE AND THE PARKING LOT RULE EXCEPTION

The “going and coming” rule is simple: an injury while traveling either to or from work is not compensable. 252 Or App at 730 (citing Krushwitz, 323 Or at 526). In insurance policy lingo, the “going and coming” rule is an exclusion from coverage. It is a rule that is simple to state but, at times, hard to apply; it is also a rule that is not expressly stated in the Workers’ Compensation Law.

An exception to the “going and coming” rule is the “parking lot” exception. Under this “exception,” an injury sustained on the employer’s premises, say the employer’s parking lot, is generally, but not always, compensable. Id. (citing Noble I, 232 Or at 99). Again returning to insurance policy lingo, the “parking lot” exception is an exception to the exclusion language and, thus, coverage is not precluded. This exception is similar to the “going and coming” rule in that it is simple to state but, at times, hard to apply. That rule is also not contained in the Workers’ Compensation Law.

All of this is context for discussing the majority’s reliance on both Noble I and Noble II to conclude that the board erred in failing to apply the “going and coming” rule and, if the rule applies, then determining if the “parking lot” exception applies. The majority opinion states:

“We perceive no material distinction between the duration of the 15-minute break in Noble I and the break in this case, which the board found was TO or 15 minutes long.’
*744“We also find no significance to the fact that claimant stayed within 100 feet of her workplace during her break.”

252 Or App at 733. In determining whether the “going and coming” rule applies, the majority focuses on whether the employee was subject to the employer’s direction and control at the time of the injury. See J A K Pizza, Inc.-Domino’s v. Gibson, 211 Or App 203, 207, 154 P3d 159 (2007) (holding that, if the claimant chose to follow the employer’s instruction on how a personal errand should be accomplished, then the errand was in furtherance of the employer’s business).

The claimant in Noble decided to walk to a credit union located at a different part of the employer’s campus to deposit a personal check during her paid morning break from work. 232 Or App at 95. She left her building, crossed a street, and started to cut across a parking lot when she slipped on ice and fell, fracturing her right ankle. Id.; Noble II, 250 Or App at 597-98. In Noble II, the court explained that the circumstances of the claimant’s injury were legally insufficient to support a determination of compensability under the unitary work-connection test because it would be inconsistent with the overarching purpose of the test and the workers’ compensation statutes. 250 Or App at 599. To clarify that conclusion, the court posed a hypothetical that it considered to be materially indistinguishable from the facts in Noble: An employee, “A,” uses her lunch break to drive across town to pay her rent check, parks her car in a different employer-owned parking lot, and is injured when she slips and falls. Id. at 600. The court then asked the question:

“Is A’s injury compensable in workers’ compensation as connected to her work? What meaningful purpose, relating to the fundamental purposes of the workers’ compensation statutes, would be served by such a result — as opposed to consigning/permitting A to pursue an action and remedy in tort?”

Id.

As noted, the majority concludes that this case is materially indistinguishable from Noble. In my view, the material facts in Noble are distinguishable from this case and, because this claimant never left work, I disagree with *745the majority’s conclusions. Here, as required by employer, claimant left the area where she performed her work assignment to take her mandatory and paid work break. Claimant went to the smoking hut — one of the locations where, as noted, employer acquiesced in employees taking their breaks. The smoking hut was a structure about 100 feet from the entrance-to-work door and was in the parking lot. While on break, claimant conversed with her coworkers, “venting about some of the calls,” as was their usual practice. At the end of her break, claimant walked back toward the building. She was looking through a window of the building, trying to see the clock in the building, when her shoe caught in a crack of the pavement and she fell.

As the board noted, claimant’s activity was different from that of the claimant in Noble, who was “coming from work,” and the claimant in Hearthstone Manor v. Stuart, 192 Or App 153, 155, 84 P2d 208 (2004), who was returning to work:

“ [Claimant neither planned to leave, nor left, her immediate work location, but rather remained in close proximity (i.e., approximately 100 feet) to her work area during her paid break. Therefore, even though claimant was on a break, as in Noble and [Hearthstone Manor], this case differs because claimant was not ‘going to’ or ‘coming from’ work as contemplated by those cases.”

The board concluded that the “going and coming” rule and “parking lot” exception as referenced in Noble were not applicable.

I agree with the board that the “going and coming” rule does not apply and conclude that the “personal comfort” doctrine is more helpful to evaluate whether an injury that occurs while a claimant is on a brief break, is not “off-the-clock,” and is in close proximity to her working area satisfies the “work-connection” test.7 When applying the “personal *746comfort” doctrine, we distinguish between activities by an employee that are personal in nature, such as getting coffee, and those that are personal to the employee, e.g., buying a birthday card for a grandchild. Halfman, 49 Or App at 29. Injuries that occur during an activity that is personal in nature are compensable if that activity bears some relationship to employment and is expressly or impliedly allowed by the employer. City of Eugene v. McDermed, 250 Or App 572, 282 P3d 947 (2012) (citing Hays, 325 Or at 598-99); see also Clark, 288 Or at 266. Injuries that are personal to the employee have nothing to do with employment and, accordingly, are not compensable. Halfman, 49 Or App at 29.

Here, unlike the claimant in Noble, claimant did not engage in activities that are personal to her. Like the claimants in Clark (heating lunch on hot glue press), Halfman (looking for a restroom and drink in the neighborhood), Jordan (having a coffee break at an off-premises restaurant), and McDermed (crossing the street to get coffee), claimant engaged in the typical kind of break activity that was contemplated and acquiesced to by her employer. She briefly conversed with her coworkers in the smoking hut and then returned to her work area.

Consequently, I agree with the board’s conclusion on the “in the course of” employment prong:

“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.”

The majority concludes that, based on Noble I and II, neither the brevity of claimant’s break, the fact that it was paid, nor the short distance claimant travelled from her workplace precludes application of the “going and *747coming” rule. I agree that those are not determinative factors. Another nondeterminative factor is that Enterprise did not own or control the parking lot where the smoking hut was located. Rather, the ownership and control of the smoking hut is just one of the multiple factors that must be considered in making the determination regarding the “in the course of” employment prong. As we said in Noble II, each case must be decided on its own particular facts. 250 Or App at 601.

What matters here is that employer required claimant to leave her work area on breaks. Claimant left her work area, went to a recognized break area, and was injured while walking back to her work area. I doubt that there would be any issue in this case if the fall happened while claimant was walking to or from one of the other break areas or walking to or from the bathroom.

The answer to the hypothetical in Noble II, based on the facts in this case, is that the law in Oregon requires employers to grant employees work breaks and the purpose of those breaks is to allow employees a break from work— perhaps to use the bathroom, to smoke a cigarette, or to eat potato chips. In this case, Enterprise required employees to leave their work areas on breaks. Also, Enterprise knew that some employees used the smoking area and acquiesced to letting employees use the smoking area. Claimant here did not leave work on a personal task.

CONCLUSION

The legislature found that enterprises are necessary to the enrichment and economic well-being of all Oregonians, and the legislature realized that inevitably there will be injuries to the workers employed by those enterprises. ORS 656.012(1)(a). The legislature also found that the Workers’ Compensation Law was the exclusive system of providing compensation for workplace injuries that bear a sufficient relationship to employment such that employers should incorporate the costs of such injuries into the stream of commerce. ORS 656.012(1)(c). Claimant’s left-knee injury occurred while she was taking a paid mandatory work break, and claimant was in a location that Enterprise knew was a place employees went during such work breaks. There is a *748sufficient connection between employer’s work environment and claimant’s knee injury such that the injury should be compensable.

I believe the board got it right. It was not necessary to consider either the “going and coming” rule or the “parking lot exception” because claimant never left work. Therefore, the injury stayed within the time, place, and circumstances of claimant’s work, and the injury arose out of and in the course of claimant’s work activities.

For the reasons expressed above, I respectfully dissent.

Armstrong and Sercombe, JJ., join in this dissent.

The 1912 Legislative Assembly adopted the Workers’ Compensation Law. Or Laws 1913, ch 112, § 12. A November 4, 1913, referendum passed, and the Governor signed the referendum on November 17, 1913. The law was held constitutional in Evanhoff v. State Industrial Acc. Com., 78 Or 503, 154 P 106 (1915).

Likewise, an injury that occurs after the employee leaves the employer’s premises on an unpaid break is generally noncompensable under the “going and coming” rule, unless the employee was on a “special errand.” J A K Pizza, Inc.-Domino’s v. Gibson, 211 Or App 203, 206, 154 P3d 159 (2007). The “special errand” exception applies if the employee was acting in furtherance of the employer’s business at the time of the injury or the employer had a right to control the employee’s travel. Id.

As the Supreme Court noted in Fred Meyer, Inc. v. Hayes, 325 Or 592, 597 n 8, 943 P2d 197 (1997), “‘an uncompromising insistence on independent application of the two portions of the test can, in certain cases, exclude clearly work-connected injuries’” (quoting 1 Larson’s Workers’ Compensation Law § 6.10 at 3-3 (rebound ed 1997)). Rather, “[b]oth prongs serve as analytical tools for determining whether, in the light of the policy for which that determination is to be made, the causal connection between the injury and the employment is sufficient to warrant compensation.” Id. at 597.

Although Redman was decided before Panpat, the court in Redman used a hypothetical that was very similar to the facts in Panpat. Redman, 326 Or at 41. The Panpat court never discussed whether the claimant and her killer met at work and would not have had any relationship had they not worked together.

Even though we no longer rely on the factors identified in Mellis as an independent and dispositive test of work-connection, some or all of those factors remain helpful inquiries under the two-prong analysis. Freightliner Corp. v. Arnold, *742142 Or App 98, 103-04, 919 P2d 1192 (1996) (affirming the board’s conclusion that, based on the totality of circumstances, the claimant’s occupational disease arose out of and in the course of his employment).

The court’s conclusion that the claimant satisfied the “place” factor in the “in the course of” employment prong is implicit in its discussion of the “going and coming” rule and the “parking lot” exception. Hayes, 325 Or at 597-98.

As the board noted, the injury occurred during claimant’s scheduled work hours, while she was on a paid break, in a place where she reasonably was expected to be, and on her route of normal ingress to her workplace along the “employer’s path” through the parking lot. The majority cites Noble I, 232 Or App at 99, and Hearthstone Manor, 192 Or App at 158, for the conclusion that, for purposes of the “parking lot” exception, it makes no difference whether the employee was coming or going to work for a break or lunch, or whether the worker was injured during a paid or unpaid break. 252 Or App at 730-31. However, the court inNoble I *746noted that the fact that the injury occurred during a paid break made the work connection stronger than an injury during an unpaid period. 232 Or App at 99-100.