SAIF v. Lynn

720

Argued and submitted August 24, affirmed November 24, 2021, petition for

review denied March 24, 2022 (369 Or 504)

In the Matter of the Compensation of

Lahna K. Lynn, Claimant.

SAIF CORPORATION

and Criscione Family Dental PC,

Petitioners,

v.

Lahna K. LYNN,

Respondent.

Workers’ Compensation Board

1801185; A174007

502 P3d 1172

Employer and SAIF seek judicial review of an order of the Workers’

Compensation Board concluding that claimant’s injury was compensable.

Claimant was injured on her way to work when she slipped and fell on ice in

employer’s annex parking area, next door to employer’s building. SAIF denied

claimant’s request for worker’s compensation because claimant’s injury

did not “aris[e] out of and in the course of employment” as required by ORS

656.005(7)(a). The board, however, determined that claimant’s injury was com-

pensable. In doing so, the board concluded that the injury arose “in the course of”

her employment, by way of the “parking lot” exception, which requires that an

employer had “some control” over the annex parking. On judicial review, SAIF

challenges the board’s determinations that claimant’s injury arose out of and in

the course of her employment. Held: The Workers’ Compensation Board did not

err in determining that claimant’s injury was compensable. Although injuries

sustained while going to or coming from the workplace are not compensable, the

board’s conclusion that the employer had “some control” over the area where the

injury occurred, so that the “parking lot” exception applied, was supported by

substantial evidence.

Affirmed.

Beth Cupani argued the cause and filed the briefs for

petitioners.

Jodie Anne Phillips Polich argued the cause for respon-

dent. 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.

Cite as 315 Or App 720 (2021) 721

EGAN, C. J.

Affirmed.

722 SAIF v. Lynn

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 con-

clude 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 com-

pensable if it “aris[es] out of and in the course of employ-

ment.” ORS 656.005(7)(a). The “arising out of” prong looks to

the “causal connection between the injury and the employ-

ment,” 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 P2d 1373 (1994). In analyz-

ing 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

P2d 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 P2d 1050 (1990)).

In determining whether the parking lot excep-

tion applies, we look to whether “the employer exercises

some control over the place where the injury is sustained.”

Henderson, 127 Or App at 336 (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 addi-

tional parking. The landlord thus leased additional parking

Cite as 315 Or App 720 (2021) 723

spaces for $1,000 a month at the neighboring bank build-

ing 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 sub-

sequently 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, claim-

ant was going to work and therefore was not in the course of

her employment.

The board concluded that the claim was compen-

sable. 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

“[t]he annex parking area was exclusive to the employer.

The landlord acquired the annex parking area (nine park-

ing spots in a specific area closest to the employer’s office)

for $1000 a month, specifically because the employer did

724 SAIF v. Lynn

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 encour-

aged its employees to use the annex parking area so its cus-

tomers 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 consis-

tent with the employer’s prior practice regarding parking

complaints/requests. That is, the employer asked the land-

lord 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 respon-

siveness, along with the aforementioned factors (regarding

exclusivity) and the employer’s testimony, combine to sup-

port the conclusion that the employer had a right to require/

obtain maintenance for its annex parking area. See John

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 com-

pensable 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 rela-

tionship 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

Cite as 315 Or App 720 (2021) 725

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 additional parking

area was not designated” for employer’s employees. The dis-

sent also pointed out that bank employees and customers

alike used the annex parking lot and reasoned, therefore,

that employer “did not have sufficient ‘control’ such that the

‘parking lot’ exception applies” to the injury.

On judicial review, SAIF challenges the board’s

determinations that claimant’s injury arose out of her employ-

ment and that it occurred in the course of her employment.

Regarding the “in the course of” finding, SAIF disputes the

board’s conclusion that claimant was in the course of her

employment while walking from the annex parking lot to

employer’s dental clinic. SAIF takes up many of the points

made by the dissenting board member, urging the conclu-

sion that the injury was within the going and coming rule

because claimant was simply going to work. SAIF also notes

that the board’s order is in stark contrast with its order in

Ashley Bruntz-Ferguson, 69 Van Natta 1531 (2017), in which

the board held that a worker’s injury when she slipped on

ice while walking into the employer’s leased office space

was not compensable under the going and coming rule. But

we reversed the board’s order in Bruntz-Ferguson v. Liberty

Mutual Ins., 310 Or App 618, 623-24, 485 P3d 903 (2021),

holding that injuries that occur in a parking lot or walkway

over which the employer exercises “some control” arise out of

and in the course of employment and are compensable.

The parties thus agree that the question to be

answered here is whether the control exercised over the

parking lot by employer was sufficient, as a matter of law, to

meet the “in the course of” employment requirement of ORS

656.005(7)(a). SAIF contends the issue of control turns on

employer’s legal control of the premises such as through its

lease, its payment of rent, or a right or obligation to main-

tain or repair the premises. While those are certainly evi-

dentiary indicators of control, they are not the only evidence

sufficient to establish the “in the course of” component, as

conceived in the case law. See Henderson, 127 Or App at 337

(“Ownership, or even a leasehold interest in the place where

the injury occurred, is not always required” to establish

726 SAIF v. Lynn

the requisite level of control for purposes of the parking lot

exception).

For purposes of establishing whether an employer

had “some control,” the Supreme Court has explained that,

“when an employee traveling to or from work sustains an

injury on or near the employer’s premises, there is a ‘suffi-

cient work relationship’ between the injury and the employ-

ment only if the employer exercises some ‘control’ over the

place where the injury is sustained. 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 immaterial. Some form of employer

control of the area demonstrates the work-connection nec-

essary to make the injury compensable.”

Cope, 309 Or at 239 (citations omitted). In Montgomery v.

State Ind. Acc. Com., 224 Or 380, 388, 356 P2d 524 (1960),

the Supreme Court allowed an exception to the going and

coming rule where the employee parked on a busy public

street but the court determined that the employer exercised

“some control” over the street because its gate guard acti-

vated the traffic signal that allowed employees to cross the

street.

In Krushwitz v. McDonald’s Restaurants, 323 Or

520, 530, 919 P2d 465 (1996), quoting from Rogers v. SAIF,

289 Or 633, 642, 616 P2d 485 (1980), the Supreme Court

explained the linchpin of all exceptions to the going and

coming rule:

“The statutory phrase ‘arising out of and in the course

of employment’ must be applied in each case so as to best

effectuate the socio-economic purpose of the Worker’s

Compensation Act: the financial protection of the worker

and his/her family from poverty due to injury incurred in

production, regardless of fault, as an inherent cost of the

product to the consumer * * *. [T]here is no formula for deci-

sion. Rather, in each case, every pertinent factor must be

considered as a part of the whole. It is the basic purpose of

the Act which gives weight to particular facts and direction

to the analysis of whether an injury arises out of and in the

course of employment.”

Here, the board found that employer exercised

“some control” based on a number of reasons. Specifically,

Cite as 315 Or App 720 (2021) 727

the board found that the annex parking area was exclusive

to the employer, that the landlord acquired the annex park-

ing area for $1,000 a month because the employer did not

have enough parking in the office parking lot, that only the

employer parked in that area pursuant to an oral agree-

ment with the landlord to use it, and the employer strongly

encouraged its employees to use the annex parking area so

its customers could use the office parking lot. The board also

found significant the employer’s testimony that she would

have informed the landlord if there had been snow or ice

in the annex parking area, which was consistent with the

employer’s prior practice regarding parking complaints or

requests. In coming to its decision, the board considered

“every pertinent factor” and gave “weight to particular facts

and direction to the analysis of whether an injury [arose]

out of and in the course of employment.” See Krushwitz, 323

Or at 530. The conclusion that employer had “some control”

over the annex parking area is supported by substantial evi-

dence and, therefore, we conclude that the board correctly

held that the “in the course of” prong of the unitary work-

connection test is satisfied.

We also agree with the board that the injury arose

out of claimant’s employment. Claimant was encouraged

to park in the annex parking area for the convenience of

employer’s patients, thereby serving employer’s interests.

That evidence supports the board’s conclusion that claim-

ant’s injury arose out of a risk to which her work exposed

her. We therefore affirm the board’s order determining that

the claim is compensable.

Affirmed.