Bruntz-Ferguson v. Liberty Mutual Ins.

618

Argued and submitted August 1, 2019, reversed and remanded April 14, 2021

In the Matter of the Compensation of

Ashley Bruntz-Ferguson, Claimant.

Ashley BRUNTZ-FERGUSON,

Petitioner,

v.

LIBERTY MUTUAL INSURANCE

and IBM Corp - International Business Machines,

Respondents.

Workers’ Compensation Board

1700449; A166216

485 P3d 903

Claimant seeks judicial review of an order of the Workers’ Compensation

Board (the board) affirming an order of an administrative law judge upholding

employer’s denial of her injury claim. Claimant was injured after slipping and

falling on snow and ice while walking to work on an area leased to employer. The

parties agree that claimant’s injury would be compensable if it “arose out of and

in the course of” her employment. The threshold issue is whether employer had

sufficient control over the area where the injury occurred such that the “park-

ing lot” exception to the “coming and going rule” would apply. Held: The board’s

order upholding the denial of compensability was without substantial reason.

Regarding the “in the course of” prong, employer had sufficient control over

the area of injury such that the “parking lot” exception applied, and, therefore,

claimant’s injury occurred “in the course of” her employment. Further, claim-

ant’s injury “arose out of” her employment because claimant’s work environment

included the area where she was injured and there were no conditions that would

break the causal connection between a condition of claimant’s employment and

her injury.

Reversed and remanded.

Julene M. Quinn argued the cause and filed the briefs for

petitioner.

Laura A. Newsom argued the cause for respondents. On

the brief was Camilla Thurmond.

Before Lagesen, Presiding Judge, and DeVore, Judge, and

Powers, Judge.

POWERS, J.

Reversed and remanded.

Cite as 310 Or App 618 (2021) 619

POWERS, J.

Claimant seeks judicial review of an order of the

Workers’ Compensation Board (the board) affirming an

order of an administrative law judge (ALJ) upholding

employer’s denial of her injury claim. The threshold issue

is whether employer had sufficient control over the area

where the injury occurred such that the “parking lot” excep-

tion to the “coming and going rule” would apply. We con-

clude that employer had sufficient control over the area of

injury such that claimant’s injury occurred “in the course

of” her employment. We also conclude that claimant’s injury

“arose out of” her employment. Accordingly, we reverse and

remand the board’s order.

We review the board’s order upholding the denial of

claimant’s claim for errors of law and substantial evidence.

ORS 656.298(7); ORS 183.482(7), (8). ORS 183.482(8)(c) pro-

vides that 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.” In reviewing for

substantial evidence, we also review the board’s order for

substantial reason, which requires us to determine whether

the board provided a rational explanation of how its factual

findings lead to the legal conclusions on which the order is

based. NAES Corp. v. SCI 3.2, Inc., 303 Or App 684, 692,

465 P3d 246, rev den, 366 Or 826 (2020).

We begin with the legal context for this dispute.

When a person is injured at work, that injury is compen-

sable if it “aris[es] out of and in the course of employment.”

ORS 656.005(7)(a). Rather than creating two distinct tests,

each of which must be satisfied, Oregon has adopted a uni-

tary approach—known as the work-connection test—where

“arising out of” and “in the course of” are two prongs of a

single inquiry that must determine “whether the relation-

ship between the injury and the employment is sufficient

that the injury should be compensable.” Norpac Foods, Inc.

v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994). Under

the unitary work-connection test, an injury must—to some

degree—meet both prongs and the test “may be satisfied

620 Bruntz-Ferguson v. Liberty Mutual Ins.

if the factors supporting one prong are minimal while the

factors supporting the other prong are many.” Compton v.

SAIF, 195 Or App 329, 332, 97 P3d 669, rev den, 337 Or 669

(2004) (internal quotation marks and citation omitted). Each

prong of the work-connection test measures the relationship

between the injury and the employment in a different man-

ner. The “arising out of” employment prong examines the

“causal connection between the injury and the employment,”

whereas the “in the course of” employment prong assesses

“the time, place, and circumstances of the injury.” Norpac

Foods, Inc., 318 Or at 366. Both elements or prongs must

be evaluated, because neither one is dispositive. As the

Supreme Court has explained,

“although the ‘arising out of’ and ‘in the course of’ prongs

provide guidance, the unitary work-connection test does

not supply a mechanical formula for determining whether

an injury is compensable. We evaluate those factors in each

case to determine whether the circumstances of a claim-

ant’s injuries are sufficiently connected to employment to

be compensable.”

Robinson v. Nabisco, Inc., 331 Or 178, 185, 11 P3d 1286 (2000).

Under the “in the course of” prong, “Oregon courts

follow the ‘going and coming rule,’ which provides that inju-

ries sustained while going to or coming from the workplace

are not compensable.” Henderson v. S.D. Deacon Corp., 127

Or App 333, 336, 874 P2d 76 (1994). That rule applies to

injuries occurring both before and after the workday, and

it also applies to injuries occurring while an employee is

going to or coming from a break. Enterprise Rent-A-Car Co.

of Oregon v. Frazer, 252 Or App 726, 731, 289 P3d 277 (2012),

rev den, 353 Or 428 (2013).

One exception to the “going and coming rule” is the

“parking lot” exception. That exception applies “when an

employee traveling to or from work sustains an injury ‘on

or near’ the employer’s premises.” Henderson, 127 Or App at

336. That is, the “in the course of” prong may be satisfied if

“the employer exercises some control over the place where

the injury is sustained.” Id. (internal quotation marks and

citation omitted). As the Supreme Court explained:

Cite as 310 Or App 618 (2021) 621

“Whether the requisite control is evinced by increased,

employer-created hazards, or by the employer’s property

rights to the area where the injury is sustained, is imma-

terial. Some form of employer control of the area demon-

strates the work-connection necessary to make the injury

compensable.”

Cope v. West American Ins. Co., 309 Or 232, 239, 785 P2d

1050 (1990) (citations omitted).

With that context in mind, we set out the undis-

puted facts. Claimant worked at a call center in Salem. As

claimant approached the office building for her shift begin-

ning at 5:00 a.m., she stepped onto the curb leading to a

gravel path, slipped, and fell backwards off the curb. The

ground was snowy and icy on that mid-December morning.

Claimant was injured from the fall.

Employer leases its office space, along with access

to a “common area,” and parking spaces. Under the terms

of the lease, employer pays additional rent for its share of

the maintenance of the common area, and employer “and

its employees * * * shall have the non-exclusive right and

license to use the Common Area.” The lease designated both

the curb where claimant was injured and the gravel path

as a “Common Area.” Employer’s facility manager testified

that employer may request repairs and maintenance of the

common area. The lease also provides that employer may

pay additional rent for maintenance of curbs and pedestrian

pathways and that that maintenance “shall be subject to

[the] Landlord’s sole management and control.” However,

under the lease, if the tenant requests maintenance and

the landlord fails to timely make the necessary repairs,

the tenant would be entitled to a pro-rata abatement of

rent.

After claimant was injured, she filed a claim.

Employer denied the claim, relying on the “going and com-

ing” rule. Claimant requested a hearing and argued that

her injury was compensable under the “parking lot” excep-

tion to the “going and coming” rule. The ALJ upheld the

denial, concluding that the parking lot exception did not

apply because the injury did not occur in an area controlled

by employer. Therefore, the ALJ determined that claimant’s

622 Bruntz-Ferguson v. Liberty Mutual Ins.

injury was not sufficiently connected to her work to make

her injury compensable.

The board affirmed the ALJ’s order. The board rea-

soned that, although

“the employer paid for a portion of maintenance of the

common areas, the landlord had ‘sole discretion’ regarding

maintenance of the common area. Therefore, because the

employer did not have a right to require maintenance, or

an obligation to provide maintenance, it did not have suffi-

cient control over the common area to create an exception

to the ‘going and coming’ rule.

“* * * * *

“Accordingly, because claimant’s injury occurred while

she was going to her employment, and the ‘parking lot’

exception to the ‘going and coming’ rule does not apply, the

injury did not occur within the course of her employment.”

The board further concluded that claimant’s injury

did not arise out of her employment:

“Here, the record does not establish that claimant’s

injury was the product of a risk connected with the nature

of her work as a call center associate. She was injured before

she entered the employer’s premises and before starting

her work shift. Moreover, there is no indication that her

injury resulted from a risk to which she was exposed by her

work environment.”

On judicial review, claimant argues that, with

respect to the “in the course of” prong, the board applied

the “parking lot” exception too narrowly, and further argues

that the exception includes “ingress and egress and common

areas leased by the employer.” Claimant asserts that the

board erred in concluding that employer did not have “some

control” over the area where claimant’s injury occurred.

Addressing the “arising out of” prong, claimant argues that

the board’s interpretation of the risk to which a claimant is

exposed is so narrow that it would swallow the “parking lot”

exception. That is, “[u]nless one’s job is specifically walking

to the employer’s entrance, then it would never be associ-

ated with the particular job function for which the worker is

hired.”

Cite as 310 Or App 618 (2021) 623

Employer responds that, because the landlord had

sole discretion over the maintenance of the common area, it

did not have sufficient control over the common area such

that claimant’s injury is compensable. It further argues that

“having to walk over snow and ice is not an employment risk

but rather, a neutral risk,” and that the weather was “an

outside force unrelated to claimant’s employment that put

the snow and ice on the ground [that] claimant walked over

to get to work.”

We first address the “in the course of” prong of

the unitary work-connection test. As explained below, the

board’s conclusion that employer did not have “some con-

trol” over the common area is without substantial reason.

On this point, we find Henderson instructive. In that case,

the “[c]laimant worked on the fourth floor of an office build-

ing that [was] leased by [her] employer.” 127 Or App at 335.

The claimant was required to take a one-hour unpaid lunch

break and was encouraged by her employer to leave the

building to do so. “She was injured when she attempted to

step out of the elevator, because the elevator had stopped

above the level of the first floor.” Id. When compensability

was denied, the claimant sought judicial review, challeng-

ing the board’s determination that the employer could not

require the landlord to maintain and repair the elevator.

Agreeing with the claimant’s argument, we explained that,

“[u]nder the terms of the lease, once the landlord had

received written notice from employer, and after a reason-

able amount of time had passed, the landlord was required

to make the requested repairs. The fact that, as a practical

matter, it might be difficult to get the landlord to repair

the elevator, did not eliminate employer’s right to require

repairs.”

Id. at 337.

We concluded that “there was a sufficient connec-

tion between the employer and the area where the injury

occurred” to satisfy the “in the course of” prong. Id.

Here, as in Henderson, the lease between employer

and the landlord permitted employer to request repairs

to maintain the common areas designated in the lease.

Although Henderson involved an elevator and this case

624 Bruntz-Ferguson v. Liberty Mutual Ins.

involves a snowy or icy curb within the common area, the

important inquiry when evaluating the “in the course of”

prong is the degree of control; it is not whether employer, in

fact, requested repairs. That is, employer in this case had

the right to request a repair of the common area, evincing a

similar degree of control as the employer in Henderson did.

Further, although maintenance of the common area is sub-

ject to the landlord’s “sole management and control,” that

fact does not change employer’s right to request repairs.

Under the terms of the lease, it is the method of mainte-

nance that is subject to the landlord’s control. It is employ-

er’s ability to request repairs that is indicative of control;

it is not required that employer control the method of how

those repairs are carried out to establish “some control” over

the common area.

Further, in this case, employer is entitled to an

abatement of rent if, after proper notice, the landlord fails

to timely maintain and repair the common areas. That

rent-abatement provision ensures that employer’s property

interest in maintaining the common area is enforced, which

illustrates a degree of employer’s control over that area.

Therefore, we conclude that those facts, taken together,

establish that employer had “some control” over the area in

the parking lot where claimant was injured. Accordingly,

because employer had some control over the area where

claimant was injured, we conclude that the “in the course

of” prong is satisfied.

We next evaluate the “arising out of” prong of the

unitary work-connection test. As noted above, this prong “is

satisfied only if the 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.” Legacy

Health System v. Noble, 250 Or App 596, 603, 283 P3d 924,

rev den, 353 Or 127 (2012) (internal quotation marks and

citation omitted). In rejecting claimant’s argument, the

board’s entire discussion provided:

“Where, as here, the risk of injury is a ‘neutral risk,’ the

injury is deemed to ‘arise out of’ employment if the risk of

injury resulted from the nature of claimant’s work or when

it originated from some risk to which the work environ-

ment exposed her.

Cite as 310 Or App 618 (2021) 625

“Here, the record does not establish that claimant’s

injury was the product of a risk connected with the nature

of her work as a call center associate. She was injured before

she entered the employer’s premises and before starting

her work shift. Moreover, there is no indication that her

injury resulted from a risk to which she was exposed by her

work environment. Under such circumstances, we find that

claimant’s injury did not arise out of her employment.”

(Citation omitted.)

Claimant argues that the board erred in concluding

that her injury was caused by a neutral risk. She argues that

her injury was an “employment related risk.” Alternatively,

claimant argues that, even if we agree with the board’s

determination that it was a neutral risk, “claimant’s work

environment exposed her to it.” Employer remonstrates that

walking over snow and ice is a neutral risk rather than an

employment-related risk. Employer further asserts that the

“employment conditions [did not] put claimant in a position

to be injured” because employer “had no control over the

snow and icy weather” and “there is no indication that the

employer required her to walk that particular route even

if it was one employees used to walk to the entrance.”1 As

explained below, we conclude that this was a neutral risk

that arose out of claimant’s employment.

There are three categories of anticipated risks of

employment: (1) those “distinctly associated” with employ-

ment; (2) those personal to the claimant; (3) and those that

are “neutral.” Phil A. Livesley Co. v. Russ, 296 Or 25, 29-30,

672 P2d 337 (1983) (citation omitted). The first is always

compensable, the second is noncompensable, and the third

may be, but is not always, compensable. Id. (citation omit-

ted). According to Professor Larson, the risks “distinctly

associated” with employment

“comprises all of the obvious kinds of injury that one thinks

of at once as industrial injury. All the things that can go

wrong around a modern factory, office, mill, mine, retail

establishment, transportation system, or construction

project—machinery breaking, objects falling, explosives

1

Employer also makes a preservation argument that we reject without

discussion.

626 Bruntz-Ferguson v. Liberty Mutual Ins.

exploding, tractors tipping, fingers getting caught in gears,

excavations caving in, and so on[.]”

Lex K. Larson, 1 Larson’s Workers’ Compensation Law § 4.01

(Matthew Bender, rev ed 2017). Larson explains that, with

respect to risks personal to the claimant, they are

“so clearly personal that, even if they take effect while the

employee is on the job, they could not possibly be attributed

to the employment. If the time has come for the employee

to die a natural death, or to expire from the effects of

some disease or internal weakness of which he or she

would as promptly have expired whether the employee had

been working or not, the fact that demise takes place in

an employment setting rather than at home does not, of

course, make the death compensable.”

Id. § 4.02.

By contrast, a neutral risk is present where the

conditions of employment put a claimant in a position to be

injured. Sheldon v. US Bank, 364 Or 831, 835, 441 P3d 210

(2019) (quotation marks and citation omitted); see also id. at

834 (“[N]eutral risks are risks that are neither employment

risks or personal risks.”). Citing Larson, the Supreme Court

has explained what may qualify as a neutral risk:

“[E]xamples of neutral risks would be an employe[e], who

while working, is hit by a stray bullet, bitten by a mad dog,

struck by lightning, or injured by debris from a distant

explosion. Another kind of neutral risk is that where the

cause itself is unknown. An employe[e] may have died on

the job from unexplained causes or been attacked on the job

by unknown persons, whose motives may have been per-

sonal or related to the employment.”

Livesley, 296 Or at 30 n 6.

Regardless of the category of risk, however, to meet

the threshold for the “arising out of” prong, there must be a

causal connection between the injury and the employment.

“A causal connection requires more than a mere showing

that the injury occurred at the workplace and during work

hours. A causal connection must be linked to a risk con-

nected with the nature of the work or a risk to which the

Cite as 310 Or App 618 (2021) 627

work environment exposed claimant.” Redman Industries,

Inc. v. Lang, 326 Or 32, 35-36, 943 P2d 208 (1997) (citations

omitted).

We disagree with claimant’s assertion that snow

and ice on employer’s property is an “employment risk,”

because those risks are not “distinctly associated” with

claimant’s employment. The snow and ice are also not risks

personal to claimant. That means, then, that in these cir-

cumstances, snow and ice are neutral risks.

We further conclude that the board’s determination

regarding claimant’s exposure to risk is without substan-

tial reason. On this point, we agree with claimant’s conten-

tion that the board interpreted this prong, in light of the

neutral risk, too narrowly. As described above, the board

concluded that claimant’s injury was not “the product of a

risk connected with the nature of her work as a call center

associate.” That analysis would have been supported by sub-

stantial reason if claimant was exposed to risks “distinctly

associated” with her employment as a call center associ-

ate. However, the board noted that claimant was exposed

to a neutral risk, which, as described above, applies where

the conditions of employment put claimant at a risk to be

injured. The board did not address the fact that it was a

condition of employment for claimant to travel to employer’s

office to perform her call center duties.

The board also noted that there was “no indica-

tion that her injury resulted from a risk to which she was

exposed by her work environment.” Claimant’s work envi-

ronment, however, includes more than just her desk at work;

rather, it includes areas like hallways or paths to her work-

station. As provided in the lease, as an employee, claimant

had full access to the common area to access her office.

Here, that common area includes the entrance that claim-

ant used, which was the entrance closest to where her office

was located. Our decision in Hearthstone Manor v. Stuart,

192 Or App 153, 160, 84 P3d 208 (2004), is instructive.

In Hearthstone Manor, the claimant injured her

knee when she walked into a four-foot high, concrete ciga-

rette receptable on employer’s premises when returning to

628 Bruntz-Ferguson v. Liberty Mutual Ins.

work from lunch. The claimant was walking with a friend as

they returned from the employer’s cafeteria and was injured

while she was looking at trees as she walked on a slanted

walkway to the building in which she worked. On judicial

review, we concluded that the claimant’s injury met the uni-

tary work-connection test because, in part, the injury was

“precipitated by walking along employer’s path on her way

back to work after lunch and that in doing so she was engag-

ing in ‘normal ingress’ to work.” Id. at 160. We further noted

that “walking between the employer-controlled cafeteria

to the workplace is an activity related to claimant’s work”

because, among other things, claimant’s “primary activ-

ity” was returning to work. Id. at 160-61. That reasoning

similarly applies to this case. Claimant was injured while

engaged in “normal ingress,” viz., walking to her workspace

over snow and ice to reach her office, which is an activity

related to her employment because her employment requires

her to work from her work station, and a risk to which her

work environment exposed her because she could not arrive

to her workstation without first entering the building where

her office was located.

Employer argues that there were “alternative

entrances that claimant could use to enter the building

where she worked.” That argument is unavailing. First, it

does not address the fact that the entrance claimant reg-

ularly used was the entrance that was closest to her office.

Second, and more fundamental to the issues presented

in this case, it is unclear how the existence of alternative

entrances would make a difference in evaluating the uni-

tary work-connection test. Employer does not suggest that

that entrance was closed due the inclement weather. Nor

does employer suggest that only the alternative entrances

were used for normal ingress and that the entrance that

claimant used was an outlier. Rather, when considering

whether claimant’s work conditions caused her to be in a

position to be injured, we conclude that she was injured while

engaged in normal ingress, which is an activity related to

her employment.

Employer also argues that “the snowy and icy

conditions caused by the weather broke the causal con-

nection between claimant’s conditions of employment and

Cite as 310 Or App 618 (2021) 629

her injury.” We disagree. Although employer cannot con-

trol the weather, it does exercise control over its response

to potentially hazardous conditions that the weather may

create around the entrances to its place of business. This is

not a situation where there was an intervening event that

broke the causal connection to the injury. We, again, turn to

Hearthstone Manor as instructive.

In Hearthstone Manor, we looked to SAIF v. Marin,

139 Or App 518, 913 P2d 336, rev den, 323 Or 535 (1996), in

addressing whether the claimant’s knee injury “arises out

of” her employment. We explained that, in Marin,

“the claimant could not start his truck after finishing his

shift. The truck was parked in an employer-furnished

lot near an employer-built flower box. At the claimant’s

request, his supervisor’s wife attempted to move the super-

visor’s truck into a position from which the two trucks

could be connected by jumper cables, but in doing so, she

ran into the flower box, tipping it onto the claimant and

inflicting an injury.”

Hearthstone Manor, 192 Or App at 158. Ultimately, we held

that the claimant’s work conditions did not place him in a

position where he could be injured by the flower box because

the claimant’s injury “was not precipitated simply by his

walking through the parking lot on the way to his car after

work. Claimant’s efforts to jump start his car and the cir-

cumstances that followed more directly caused him to be in

a position to be injured by the flower box.” Marin, 139 Or

App at 525. We concluded that “those activities were suffi-

ciently removed from his normal ingress and egress to and

from work as to break the causal connection between his

normal conditions of employment and his injury.” Id.

In this case, the weather conditions did not remove

claimant’s activities from her normal ingress to work so as

to break the causal connection between her normal condi-

tions of employment and her injury. In this case, just as in

Hearthstone Manor, the claimants were simply arriving to

work to perform their job duties, but a condition of the work

environment—an icy curb and concrete ash tray—caused

an injury. Unlike Marin, where the claimant had attempted

to leave work but could not do so because of the dead battery,

630 Bruntz-Ferguson v. Liberty Mutual Ins.

the causal connection between work and the injury was

more attenuated. That is, there was an intervening event

that led to the flower box falling and injuring the claimant.

No such intervening event is present here. In short, because

snow and ice in the common area were a risk “to which the

environment exposed claimant,” Redman Industries, 326 Or

at 36, the board’s conclusion otherwise was without substan-

tial reason.

Accordingly, because both parts of the unitary work-

connection test are satisfied, the board erred in upholding

the denial of claimant’s injury.

Reversed and remanded.