Miles v. Bi-Mart Corp.

481

Argued and submitted January 25, reversed and remanded December 22, 2021,

petition for review denied May 5, 2022 (369 Or 705)

In the Matter of the Compensation of

Sherrie A. Miles, Claimant.

Sherrie A. MILES,

Petitioner,

v.

BI-MART CORPORATION,

Respondent.

Workers’ Compensation Board

1702687; A170057

504 P3d 64

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

Board upholding employer’s denial of compensability of her claim. Before begin-

ning her shift at work, claimant parked her vehicle in the portion of the parking

lot designated by employer for employee parking. As she walked across the park-

ing lot to the entrance of employer’s retail store, claimant tripped on a portion

of cracked and broken pavement and fell, injuring herself. The board concluded

that employer’s “periodic removal of trash and other hazards” from the parking

lot was insufficient to establish employer “control” over the parking lot, and thus

that the “parking lot” exception to the “going and coming” rule did not apply. On

judicial review, claimant challenges the board’s determinations that her injury

did not arise out of and occur in the course of her employment. Held: The Workers’

Compensation Board erred by failing to address several facts when it determined

that the “parking lot” exception to the “going and coming” rule did not apply.

Therefore, the board’s decision was not supported by substantial reason.

Reversed and remanded.

Dale C. Johnson argued the cause and filed the briefs for

petitioner.

Vera Langer argued the cause for respondent. Also on the

brief was Lyons Lederer, LLP.

Before DeHoog, Presiding Judge, and Egan, Chief Judge,

and Mooney, Judge.*

EGAN, C. J.

Reversed and remanded.

______________

* Egan, C. J., vice DeVore, P. J.

482 Miles v. Bi-Mart Corp.

EGAN, C. J.

Claimant worked as a pharmacy technician for

employer, a retailer. Before beginning her shift at work,

claimant parked her vehicle in the portion of the parking lot

designated by employer for employee parking. As she was

walking across the parking lot to the entrance of employ-

er’s retail store, claimant tripped on a portion of cracked

and broken pavement and fell. Claimant was injured by that

fall and required medical treatment. Claimant seeks judi-

cial review of an order of the Workers’ Compensation Board

(the board) upholding employer’s denial of compensability

of her claim. We first address whether employer had “some

control” over the area where the injury occurred such that

the “parking lot” exception to the “coming and going rule”

applies. Second, we address whether the injury “arose out

of” claimant’s employment as a neutral risk. Ultimately, we

conclude that the injury arose out of and in the course of

claimant’s employment, and that the injury is compensable.

Accordingly, we reverse and remand the board’s order.

We review the board’s order denying compensa-

tion of claimant’s injury for substantial evidence and errors

of law under ORS 656.298(7); ORS 183.482. Under ORS

183.482(8)(c), substantial evidence “exists to support a find-

ing of fact when the record, viewed as a whole, would permit

a reasonable person to make that finding.” Additionally, the

board’s reasoning must provide a rational explanation of the

factual findings that 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

our analysis with the legal context governing this dispute.

When a person is injured at work, that injury is

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

ment.” ORS 656.005(7)(a). Oregon has adopted a unitary

work-connection test that requires the worker to prove both

the “arising out of” and “in the course of” prongs as a sin-

gle inquiry to establish “whether the relationship 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). The “arising out of” prong

examines the “causal connection between the injury and the

Cite as 316 Or App 481 (2021) 483

employment,” and the “in the course of” prong assesses “the

time, place, and circumstances of the injury.” Id. Although

an injury must meet both prongs of the unitary work-

connection test, the test “may be satisfied if the factors sup-

porting 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).

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 P2d 76 (1994). That rule is known as the

“going and coming rule.” Id. One exception to the going and

coming rule is the “parking lot exception,” which applies

“when an employee traveling to or from work sustains an

injury ‘on or near’ the employer’s premises.” Id. In determin-

ing whether the parking lot exception applies, we look to

whether “the employer exercises some control over the place

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

omitted; emphasis added).

With that legal context in mind, we turn to the

facts. We take those facts from the board’s order, which

adopted the findings of the administrative law judge with

supplementation. Employer leases retail space that includes

a right to park vehicles in the adjoining parking lot. The

lease provides that maintenance of the parking area is to be

provided by the lessor. Employer uses portions of the park-

ing lot for permanent shopping cart racks and for moveable

shelving displays of items for sale. Employer periodically

removes hazards, garbage, and lost items from the park-

ing lot when needed. Employer acts to “proscribe certain

behavior such as loitering, skateboarding[,] and parking in

designated areas.” For instance, employer placed “no loiter-

ing” signage, warning that improperly parked cars would be

towed, and fenced off areas to “keep out skateboarders and

loiterers who were banned from the property.”

On the day that claimant was injured, before begin-

ning her work shift, claimant parked her vehicle in the

portion of the parking lot designated by the employer for

employee parking. At the time, a coworker was watering

plants, as a part of her work, in the area of the parking lot

484 Miles v. Bi-Mart Corp.

where the injury occurred. As claimant continued toward

the store’s entrance, she tripped on a portion of cracked and

broken parking lot pavement and fell. As a result of the fall,

claimant required medical treatment. As noted, the board

upheld employer’s denial of the claim.

In reviewing whether claimant’s injury meets the

unitary work-connection test, we begin with the “in the course

of” prong to determine whether the board’s conclusion that

employer did not have sufficient control over the parking lot

is supported by substantial evidence. “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.” ORS 183.482(8)(c); NAES Corp., 303 Or App at 692.

Substantial evidence review also includes review for sub-

stantial reason—“that is, we determine whether the board

provided a rational explanation of how its factual findings

lead to the legal conclusions on which the order is based.”

Id. at 692 (internal quotation marks omitted).

As we explain below, the board failed to address the

entirety of the record when it considered whether the injury

occurred in an area where employer had “some control.” The

board explained its reasoning as follows:

“In reaching this conclusion, we do not consider the employ-

er’s periodic removal of trash and other hazards to have con-

stituted a right to require maintenance of the parking lot

sufficient to establish employer “control” over the parking

lot. * * * Thus, the ‘parking lot’ exception to the ‘going and

coming’ rule is not applicable. [See, e.g., Bruntz-Ferguson,

69 Van Natta 1531, 1534.] Accordingly, claimant’s injury

did not occur ‘in the course of her employment.’ ”

In explaining its rationale, the board relied almost exclu-

sively on the maintenance provisions of the lease and on its

order in Bruntz-Ferguson, 69 Van Natta 1531, 1534 (2017),

which we have since reversed in Bruntz-Ferguson v. Liberty

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

In that case, we said that, rather than focusing exclusively

on the maintenance provision, “the important inquiry

when evaluating the ‘in the course of’ prong is the degree

of control.” Id. So, for example, we held in Bruntz-Ferguson,

that the employer’s “right to request a repair,” evinced

Cite as 316 Or App 481 (2021) 485

“some control.” Id. at 624. Although “there is no formula”

for determining whether a claim is compensable under the

Workers’ Compensation Act, “in each case, every pertinent

factor must be considered as a part of the whole.” Krushwitz

v. McDonald’s Restaurants, 323 Or 520, 530, 919 P2d 465

(1996). Thus, it is essential that the board “gives weight to

particular facts and direction to the analysis of whether

an injury arises out of and in the course of employment.”

Id.

Here, the board failed to address several relevant

facts that require the conclusion that employer had “some

control” over the parking lot: (1) employer used the parking

lot for shopping cart racks, shelves, and displays of items for

sale; (2) employer fenced off particular sections to dissuade

skateboarders and loiterers; and (3) at the time the injury

occurred, a coworker was engaged in a work activity—

watering plants—in the parking lot. Although the lease

provided for repairs, maintenance, and replacement of light

fixtures by the landlord, the lease also gave employer the

authority to establish rules that restricted employee park-

ing to designated areas, to request maintenance and repairs

of the parking lot, and to proscribe activities like loitering,

skateboarding, and parking in areas that the employer

prohibited. All of those factors support the conclusion that

employer had “some control” over the area where claimant’s

injury occurred. Because the board failed to consider those

factors, its conclusion to the contrary is not supported by

substantial reason.

We turn to whether claimant’s injury “arose out of”

her employment. An injury “arises out of” employment “if

the claimant’s injury is the product of either (1) a risk con-

nected 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 omit-

ted). If a worker’s injuries do not arise directly out of work

activities, the risks are generally categorized as “personal

risks,” which are not compensable, or “neutral risks” which

are not “distinctly associated” with a claimant’s employ-

ment or personal to the claimant, and which may or may

486 Miles v. Bi-Mart Corp.

not be compensable, depending on the circumstances. Phil

A. Livesley Co. v. Russ, 296 Or 25, 29-30, 672 P2d 337 (1983).

The risk posed by the broken parking lot pavement falls

within the category of a neutral risk.

Injuries resulting from a neutral risk are compen-

sable if employment conditions exposed the worker to the

risk or put the worker in a position to be injured by that

risk. Id. at 30; Noble, 250 Or App at 603. In rejecting claim-

ant’s contention that her injury was caused by a neutral risk

to which her employment exposed her, the board neglected

to take into account that claimant parked her vehicle in the

portion of the parking lot designated by the employer for

employee parking, thereby benefiting employer and expos-

ing claimant to the cracked and broken parking lot pave-

ment as she made her way into her place of employment by

her normal route of ingress to work. See Bruntz-Ferguson,

310 Or App at 628. Accordingly, the board’s conclusion that

claimant’s injury did not arise out of her employment lacks

substantial reason.

Reversed and remanded.