Wiley v. SAIF

No. 928 December 26, 2024 63

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of the Compensation of

Shawn Wiley, Claimant.

Shawn WILEY,

Petitioner,

v.

SAIF CORPORATION

and Pro Truck Dispatch, LLC,

Respondents.

Workers’ Compensation Board

2201038;

A182612

Argued and submitted November 8, 2024.

Jodie Anne Phillips Polich argued the cause for peti-

tioner. Also on the briefs was Law Offices of Jodie Anne

Phillips Polich, P.C.

Beth Cupani argued the cause and filed the brief for

respondents.

Before Tookey, Presiding Judge, Lagesen, Chief Judge,

and Kamins, Judge.

KAMINS, J.

Reversed and remanded for reconsideration.

64 Wiley v. SAIF

KAMINS, J.

In this petition for judicial review of an order of the

Workers’ Compensation Board, claimant contends that the

board erred in upholding SAIF’s and employer Pro Truck

Dispatch LLC’s denial of his multiple injuries, suffered when

he was struck by a car as he jaywalked from a parking space

to work across a busy public road. We review the board’s

order for substantial evidence, substantial reason, and legal

error, ORS 183.482(8)(a), (c), and reverse and remand.

The board determined that claimant’s injuries were

excluded from coverage under the “going and coming” rule,

under which a worker is generally not considered to be in the

course and scope of employment while travelling to or from

work. See Krushwitz v. McDonald’s Restaurants, 323 Or 520,

529, 919 P2d 465 (1996) (“The relationship of employer and

employee is ordinarily suspended from the time the employee

leaves his work to go home until he resumes his work, since

the employee during the time that he is going to or com-

ing from work, is rendering no service for the employer.”).

Claimant argued to the board that the circumstances of his

injuries fell within two potential exceptions to the going and

coming rule—the “parking lot” rule, and the “greater haz-

ard” rule.

The board rejected both of those contentions. The

board concluded that the “parking lot” exception was not

applicable, because employer did not have any control over

the parking lot where claimant parked or the road in which

claimant was struck. See Norpac Foods, Inc. v. Gilmore,

318 Or 363, 366, 867 P2d 1373 (1994) (“When an employee

traveling to or from work sustains an injury ‘on or near’ the

employer’s premises, the ‘in the course of’ portion of the work-

connection test may be satisfied if the employer exercises

some ‘control’ over the place where the injury is sustained.”).

The board concluded that the “greater hazard” exception

was not applicable, because claimant had not been required

to park across the road and, further, that crossing the road

did not constitute a greater hazard then that to which the

general public is exposed. See Krushwitz, 323 Or at 529 (The

“greater hazard” exception is limited to situations in which

the worker “is injured while traveling upon the only means

Cite as 337 Or App 63 (2024) 65

of ingress to or egress from the employer’s premises and

some ‘greater hazard’ existed upon that route.”).

On judicial review, in a single assignment of error,

claimant challenges both determinations. SAIF responds

that the board correctly analyzed and resolved the legal

questions raised by claimant and that the board’s findings

are supported by substantial evidence. We have reviewed

the record and agree that the board’s determination on the

parking lot exception is supported by substantial evidence

and is legally correct.

However, the board’s order does not resolve two

factual issues that we conclude are necessary to resolve

the issue of the greater hazard exception. Specifically, the

board’s order does not address two questions that we con-

clude are presented by the circumstances of claimant’s

injury: Was claimant required to park across the busy four-

lane road, and was he directed to jaywalk rather than walk

a mile to the nearest crosswalk, such that he was exposed

to a risk greater than the general public would be? The

board found that employer’s “acquiescence constitute[d] his

endorsement” of the parking arrangement and that claim-

ant “volunteered” to park across the road on the day he was

injured rather than in employer’s parking lot next to the

building. But it is undisputed that claimant “volunteered” to

park across the road on the day he was injured because there

were not enough spaces in employer’s lot for all employees

and employer’s customers, and employer had directed that

someone must park across the road. Claimant took on that

responsibility for employer’s benefit, and the board did not

address that circumstance in its findings. The board should

consider on remand whether employer’s endorsement of the

parking arrangement, with which claimant complied, was

the equivalent of requiring claimant to park across the road

on the day of the accident.

Additionally, the record includes evidence that

employer indicated, by example, that claimant could jaywalk

across the busy four-lane road from the parking space; the

board’s findings do not show that it considered whether that

circumstance constituted direction to claimant to jaywalk, a

question that bears on whether employer exposed claimant

66 Wiley v. SAIF

to a greater hazard. The board should address on remand

whether employer’s example of jaywalking from the parking

space exposed claimant to a greater hazard. Accordingly, we

remand the board’s order for it to address those questions.

Reversed and remanded for reconsideration.