Beaver v. Mill Resort & Casino

43 P.3d 460, 180 Or. App. 324, 2002 Ore. App. LEXIS 479
CourtCourt of Appeals of Oregon
DecidedMarch 27, 2002
Docket99-01967; A110473
StatusPublished
Cited by1 cases

This text of 43 P.3d 460 (Beaver v. Mill Resort & Casino) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beaver v. Mill Resort & Casino, 43 P.3d 460, 180 Or. App. 324, 2002 Ore. App. LEXIS 479 (Or. Ct. App. 2002).

Opinion

LINDER, J.

Claimant seeks review of a Workers’ Compensation Board (board) order denying him compensation for injuries that he suffered when he was struck by a car while he was walking in a public crosswalk on his way to work. In particular, claimant challenges the board’s conclusion that he was not injured in the course of employment. We review the board’s factual findings for substantial evidence and its legal conclusions for errors of law. ORS 183.482(8). We affirm.

We draw from the facts as found by the administrative law judge (ALJ), which the board incorporated into its order and summarized. Employer owns and operates a gaming casino for the Coquille Indian Tribe. Claimant is an employee at the casino. The casino is located on the east side of Highway 101 in North Bend, Oregon. As a result of the construction of employer’s casino, traffic in the area around the casino has increased. Employer provides two parking lots for use by the casino’s guests and employees. One (the west lot) is located on the west side of Highway 101 directly across from the casino. The other lot (the north lot) is located on the same side of Highway 101 as the casino, and sits north of the casino and parallel to the highway. To reach the casino from the west lot, guests and employees must cross Highway 101 at a public crosswalk controlled and operated by the state. Employer also provides a shuttle bus service that transports employees and guests from the West lot to the casino.

Employer’s policy is to reserve the “prime parking” for its guests. To that end, employer advises its employees to park either in the west lot or at the far end of the north lot. The parking policy provides, in relevant part:

“All employees of the Mill Casino will park across the street in the parking lots available to us there or beyond the ‘Good Show’ sign in the North parking lot.”

On December 5,1998, claimant parked his car in the west lot. On his way to the casino, claimant activated the crosswalk sign and, when it indicated that he could proceed, he began to cross Highway 101. While claimant was in the crosswalk, he was hit by a car that was turning out of the casino’s driveway and onto Highway 101.

[327]*327Employer denied claimant’s claim for workers’ compensation benefits. At the hearing before the AU, employer argued that claimant’s injury fell within the “going and coming” rule and, thus, was not compensable because it was not an injury occurring in the “course of employment.” See ORS 656.005(7)(a) (defining “compensable injur/’). In response, claimant argued that the circumstances of his injury brought it within the “greater hazard exception” to the “going and coming rule” because he was exposed to a greater degree of risk than the general public when he used the crosswalk. The ALJ agreed with claimant and determined that the claim was compensable.

Employer sought review by the board, and the board reversed. Drawing on Supreme Court cases, the board concluded that the greater hazard exception applies when an employee uses an entrance to or exit from work and the employee is exposed to a hazard to a greater degree than the general public. See Nelson v. Douglas Fir Plywood Co., 260 Or 53, 57, 488 P2d 795 (1971). Applying that standard, the board concluded that the greater hazard exception did not apply because the facts of claimant’s injury did not satisfy either component of the greater hazard exception. Consequently, the board determined that the claim was not compensable. On review, the parties renew the arguments that they made to the board.

Only those injuries that “aris[e] out of’ and occur “in the course of employment” are compensable under the workers’ compensation laws. ORS 656.005(7)(a). The “arise out of’ prong requires a causal link between the worker’s injury and his or her employment. Fred Meyer, Inc. v. Hayes, 325 Or 592, 596, 943 P2d 197 (1997); Krushwitz v. McDonald’s Restaurants, 323 Or 520, 525-26, 919 P2d 465 (1996); Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994). The requirement that the injury occur “in the course of’ the employment relates to the time, place, and circumstances of the injury. Krushwitz, 323 Or at 526. Those two prongs form a single “work-connection” test of the relationship between the worker’s injury and his or her employment. Fred Meyer, Inc., 325 Or at 596; Krushwitz, 323 Or at 526. The work-connection test may be satisfied if the factors supporting one [328]*328prong of the statutory test are weak while the factors supporting the other prong are strong; both prongs, however, must be satisfied to some degree. Fred Meyer, Inc., 325 Or at 596.

Generally, injuries sustained while going to or coming from work do not satisfy the “in the course of employment” prong and are not compensable. Krushwitz, 323 Or at 526. The rationale for that “going and coming” rule is that the relationship between an employer and a worker ordinarily is suspended from the time the worker leaves work to go home until he or she returns to the workplace and resumes work. Id. While the worker’s journey to the workplace may be work connected, the employee does not render a service for the employer during the time that he or she is coming and going. See id.

The “greater hazard” exception is one of several exceptions to the general rule that an injury sustained while going to and coming from work is not compensable. Kiewit Pacific v. Ennis, 119 Or App 123, 126, 849 P2d 541 (1993). As the board correctly observed, the greater hazard exception applies “[i]f the employee’s employment requires [the employee] to use an entrance or exit to or from * * * work which exposes [the employee] to hazards in a greater degree than the common public.” Nelson, 260 Or at 57. The exception is fact dependent and applies only in limited circumstances— i.e., when “an employee is injured while traveling upon the only means of ingress to or egress from the employer’s premises and some ‘greater hazard’ exist[s] upon that route.” Krushwitz, 323 Or at 529 (emphasis in original).

Claimant first argues that the board misapplied the applicable test by requiring that claimant be injured using the “only” means of ingress or egress to the workplace. In so arguing, claimant relies on our decision in Kiewit Pacific, in which we affirmed a board order that held the claim compensable where, at the time of the injury, the claimant was turning into the employer’s parking lot using the most direct, but not the only, route into the lot. 119 Or App at 125-26. In Kiewit Pacific, the turn from the public road into the employer’s parking lot required employees to come to a near stop. The general public, on the other hand, proceeded [329]*329straight ahead and did not stop and turn at the same place. Id. at 125. Thus, only employees were required to encounter the risk of turning at that particular place. Id.

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Bluebook (online)
43 P.3d 460, 180 Or. App. 324, 2002 Ore. App. LEXIS 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beaver-v-mill-resort-casino-orctapp-2002.