Fred Meyer, Inc. v. Hayes

943 P.2d 197, 325 Or. 592, 1997 Ore. LEXIS 76

• Court: Oregon Supreme Court
• Decided: August 7, 1997
• Docket: WCB 94-07627; CA A89536; SC S43425
• Status: Published

Opinions

VAN HOOMISSEN, J.

The issue in this workers’ compensation case is whether claimant’s injury, which occurred when she was attacked in her employer’s parking lot, arose “out of and in the course of [her] employment.”¹ The Workers’ Compensation Board (Board) held that it did and, therefore, that claimant’s injury was compensable. The Court of Appeals affirmed without opinion. Fred Meyer, Inc. v. Hayes, 141 Or App 439, 917 P2d 1077 (1996). We review pursuant to ORS 656.298(6) and 183.482(8)(a) and (c).² For the reasons that follow, we also affirm.

On review, the facts are not contested. Claimant is a retail department manager for Fred Meyer, Inc. (employer). At 8 p.m. on March 20,1994, she completed her shift. For the next 15 to 20 minutes, claimant shopped in employer’s grocery department and purchased items for her personal use.³ After completing her shopping, she left the store through the grocery exit and walked directly toward her car, pushing a cart containing groceries. When claimant left the store, the parking lot was about half full of cars. Claimant’s car was parked about 72 yards from the grocery exit in an area on the perimeter of employer’s parking lot where employer had directed its employees to park. That area of the parking lot was not well lit. As claimant approached her car, she was attacked by a man with a knife. The assailant stabbed her in the neck and right thumb. Claimant escaped and ran back into the store. Claimant’s injuries required medical treatment and resulted in disability. Claimant did not know her assailant, and he was a stranger to her and to her employer.⁴

Employer denied claimant’s workers’ compensation claim, and an administrative law judge upheld that denial. On review, the Board reversed. Applying the “parking lot” exception to the “going and coming” rule, the Board concluded that claimant’s injury was sufficiently work-related to be “in the course of’ her employment and that her injury “arose out of’ her employment, because a causal link existed between claimant’s injury and a risk associated with her employment.⁵ As noted, the Court of Appeals affirmed without opinion. We allowed employer’s petition for review.

Employer contends that the Court of Appeals erred in affirming the Board’s order on judicial review. Employer first argues that, because claimant did not go to her car immediately after work, as a matter of law she was not injured while “in the course of’ her employment. Employer maintains that any hesitation in leaving an employer’s premises or any deviation from proceeding immediately to one’s car in an employer’s parking lot removes a worker from the “in the course of’ employment. Employer next argues that, because there is no evidence that the place where claimant’s car was parked caused her to be exposed to risks or hazards greater than those to which employer’s customers were exposed, there is no substantial evidence in the record to support a finding that claimant’s injury “arose out of’ her employment.

In interpreting a statute, this court’s task is to discern the intent of the legislature. ORS 174.020; see PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) (explaining method of statutory analysis). In attempting to discern the intent of the legislature, the first level of analysis is to examine the text and context of the statute. Text and context includes prior case law from this court interpreting the same statute. See State v. King, 316 Or 437, 445-46, 852 P2d 190 (1993) (when this court interprets a statute, that interpretation becomes part of the statute as if written into it at the time of its enactment). If the legislature’s intent is clear from those inquiries, further inquiry is unnecessary. PGE, 317 Or at 611.

For an injury to be compensable under the workers’ compensation law, it must “aris[e] out of’ and occur “in the course of employment.” ORS 656.005(7)(a). The “arise out of’ prong of the compensability test requires that a causal link exist between the worker’s injury and his or her employment. Krushwitz v. McDonald’s Restaurants, 323 Or 520, 525-26, 919 P2d 465 (1996);⁶ Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994).⁷ The requirement that the injury occur “in the course of’ the employment concerns the time, place, and circumstances of the injury. Krushwitz, 323 Or at 526; Norpac, 318 Or at 366.

This court views the two prongs as two parts of a single “work-connection” inquiry, that is, whether the relationship between the injury and the employment is sufficient that the injury should be compensable. Krushwitz,-323 Or at 526; Norpac, 318 Or at 366. See ORS 656.012(l)(c) (Legislative Assembly finds that “those injuries that bear a sufficient relationship to employment * * * merit incorporation of their costs into the stream of commerce.”). Both prongs of the work-connection test must be satisfied to some degree; neither is dispositive. Krushwitz, 323 Or at 531; Norpac, 318 Or at 366. The work-connection test may be satisfied if the factors supporting one prong of the statutory test are minimal while the factors supporting the other prong are many. Krushwitz, 323 Or at 531 (citing Phil A. Livesley Co. v. Russ, 296 Or 25, 28, 672 P2d 337 (1983)).⁸ Both prongs serve as analytical tools for determining whether, in the light of the policy for which that determination is to be made, the causal connection between the injury and the employment is sufficient to warrant compensation. Andrews v. Tektronix, Inc., 323 Or 154, 161-62, 915 P2d 972 (1996).⁹

Ordinarily, an injury sustained while a worker is going to or coming from work is not considered to have occurred “in the course of’ employment and, therefore, is not compensable. Krushwitz, 323 Or at 526 (citing Cope v. West American Ins. Co., 309 Or 232, 237, 785 P2d 1050 (1990)); Norpac, 318 Or at 366. That general rule is called the “going and coming” rule. The reason for the “going and coming” rule is that the relationship of employer and worker ordinarily is suspended from the time the worker leaves work to go home until he or she resumes work because, while going to or coming from work, the worker is rendering no service for the employer. Krushwitz, 323 Or at 526-27 (citing Heide/Parker v. T.C.I. Incorporated, 264 Or 535, 540, 506 P2d 486 (1973)).

However, there are some exceptions to the “going and coming” rule. One is the “parking lot” exception. Under that exception, injuries sustained on the employer’s premises while the worker is going to or coming from work have a sufficient work-connection to be considered to have occurred “in the course of’ employment. Norpac, 318 Or at 366-67 (citing Cope, 309 Or at 238).¹⁰

The mere fact that a worker is injured in the employer’s parking lot does not, in and of itself, establish a compensable injury. Norpac, 318 Or at 367-69 (rejecting view that injury in employer’s parking lot is per se compensable). In addition to establishing that an injury occurred in the course of employment, a claimant also must establish a causal connection between the injury and the employment — that is, that the injury arose “out of’ the claimant’s employment. Krushwitz, 323 Or at 531; Norpac, 318 Or at 368-69.

We first address the issue whether claimant’s injury occurred “in the course of’ her employment. That inquiry tests the time, place, and circumstance of the injury. During oral argument in this court, employer’s counsel conceded that, if claimant had gone to her car immediately after work, she would have been “in the course of’ her employment at the time that she was injured. Employer argues, however, that claimant was not coming from work at the time she was injured; rather, employer asserts, she was coming from a personal shopping errand and, thus, her work-connection had been terminated.

An injury occurs “in the course of’ employment if it takes place within the period of employment, at a place where a worker reasonably may be expected to be, and while the worker reasonably is fulfilling the duties of the employment or is doing something reasonably incidental to it. “In the course of’ employment also includes a reasonable period of time after work for the worker to leave the employer’s premises, including the employer’s parking lot. By “reasonably incidental to” employment, we include activities that are personal in nature — such as a telephone call home or a brief visit with a coworker — as long as the conduct bears some reasonable relationship to the employment and is expressly or impliedly allowed by the employer. See generally 2 Larson’s Workers’ Compensation Law §§ 21.60 to 21.64 (rebound ed 1997) (discussing cases involving preparatory or incidental acts before and after work). Cf. Clark v. U.S. Plywood, 288 Or 255, 266, 605 P2d 265 (1980) (compensability of on-premises injuries sustained while engaged in activities for the personal comfort of the employee can best be determined by a test that asks: Was the conduct expressly or impliedly allowed by the employer?).

Professor Larson summarizes the foregoing principle as follows:

“The course of employment, for employees having a fixed time and place of work, embraces a reasonable interval before and after official working hours while the employee is on the premises engaged in preparatory or incidental acts. The rule is not confined to activities that are necessary; it is sufficient if they can be said to be reasonably incidental to the work. What constitutes a reasonable interval depends not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee’s activity.” 2 Larson’s Workers’ Compensation Law § 21.60(a) at 5-45 to 5-46 (footnotes omitted).

In this case, the Board found that claimant’s “brief grocery shopping after work” was insufficient to sever the connection with her employment. The Board concluded that claimant was in the “course of her employment” when she was injured on the parking lot.¹¹ We agree.

Employer argues that this court has construed the “place” component of the “in the course of’ prong of the work-connection test strictly, citing Cope, 309 Or at 239-40 (worker who was injured on a public sidewalk over which employer has no control, and on which there were no employer-created hazards, would be denied compensation). From that premise, employer urges this court to construe the “time” and “circumstances” components of the “in the course of’ prong of the test with the same degree of strictness. Employer cites no authority for such construction of the time and circumstances components and we know of none. We reject such a rigid application as contrary to the well-reasoned principle, expressed by Professor Larson and by courts in other jurisdictions, that “in the course of’ employment includes a reasonable period of time after work to leave the employer’s premises, including the employer’s parking lot.

Employer also contends that the Board engaged in a “distinct departure” analysis in this case and, thereby, reached an erroneous conclusion regarding the “in the course of’ prong of the compensability test. Employer argues that a “distinct departure” analysis traditionally has been limited to compensability determinations in “traveling employee” cases.¹²

This court has no occasion to address whether a “distinct departure” analysis would be appropriate on these facts. Contrary to employer’s reading of the Board’s opinion, the Board does not appear to have engaged in a “distinct departure” analysis. We read the Board’s opinion to rest on its conclusion that claimant’s shopping did not take her outside the “course of’ her employment.¹³ The Board did not mention the “distinct departure” test and cited no cases applying a “distinct departure” analysis.

We conclude that the Board applied the correct principles of law when it found that claimant’s brief grocery shopping after work was insufficient to sever the connection with her employment. Moreover, we agree with the Board that claimant was “in the course of’ her employment when she was injured in employer’s parking lot.

We next address the issue whether claimant’s injury “arose out of’ her employment. That inquiry tests the causal connection between claimant’s injury and a risk connected with her employment. Krushwitz, 323 Or at 525-26; Norpac, 318 Or at 366.

Employer’s premise, that claimant’s injury did not arise “out of’ her work, because the place where her car was parked caused her to be exposed to no greater risk or hazard than those to which employer’s customers were exposed, is unwarranted and we reject it. In Livesley, 296 Or at 31, this court specifically rejected “the largely obsolete ‘peculiar-risk’ and ‘increased-risk’ considerations” in assessing whether a worker’s injury was linked to a risk connected with employment. Rather, a worker’s injury is deemed to “arise out of’ employment if the risk of the injury results fr om the nature of his or her work or when it originates from some risk to which the work environment exposes the worker.

The Board found a sufficient relationship between claimant’s injury and a risk of her employment to conclude that her injury “arose out of’ her employment:

“Claimant was required by the employer to park in an area on the perimeter of the parking lot. The closest lights were halfway between the area where claimant parked and the store. Claimant indicated that the area where her car was parked and where the attack took place was not well lit. In addition, witnesses testified that ‘transients’ were sometimes a problem on the employer’s parking lot and premises.”

The Board further found that claimant’s employment exposed her to a risk of assault, because her employer required her to park at the “fringes” of the parking lot in an area that was not well lit and that “[those] factors made claimant vulnerable to an attack” and created the risk that such an attack would occur. The Board concluded that claimant’s injury giróse out of a risk to which her employment exposed her. We agree with the Board that claimant’s injury “arose out of’ her employment.¹⁴

Both prongs of the compensability test having been established, we conclude that the relationship between claimant’s injury and her employment is sufficient and that her injury is compensable. Accordingly, we affirm the decision of the Court of Appeals and the order of the Board.

The decision of the Court of Appeals and the order of the Workers’ Compensation Board are affirmed.

1 ORS 656.005(7)(a) provides, in part:

“A ‘compensable injury’ is an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability or death!.]”

2 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). The court must evaluate evidence against the finding as well as the evidence supporting it to determine whether substantial evidence exists to support that finding. If a finding is reasonable in the light of countervailing as well as supporting evidence, the finding is supported by substantial evidence. See Garcia v. Boise Cascade Corp., 309 Or 292, 295, 787 P2d 884 (1990) (applying “substantial evidence” standard of review).

3 Claimant did not work in employer’s grocery department. The record does not indicate whether employer had any company policy regarding employees shopping in the store. Employer does not argue that claimant violated any work rule by shopping before leaving employer’s premises.

4 The issue whether claimant’s injury is compensable under the Act is a different question from the issue whether employer was negligent in failing to provide adequate security for its employees. We do not address any negligence issue in this opinion.

5 One Board member dissented, concluding that claimant’s grocery shopping errand after work amounted to a personal mission that removed her from the “course of’ her employment and that, because the assault did not arise from any risk associated with claimant’s employment, her injury did not arise “out of’ her employment.

6 In Krushwitz, 323 Or at 530, this court concluded that, although the “arising out of’ prong of the compensability test was met, the “in the course of’ prong was not. Therefore, the deceased worker did not suffer a compensable injury. ORS 656.005(7)(a).

7 In Norpac, 318 Or at 369, this court concluded that, although the claimant’s injury in the employer’s parking lot occurred “in the course of’ his employment, the Board had failed to examine the causal connection between the claimant’s employment and his injury to determine whether he had shown a sufficient work-connection to justify compensability. The case was remanded to the Board for further consideration.

8 Professor Larson states that, generally, the observation that each test must be independently applied and met does no harm. He cautions, however, that the basic concept of compensation coverage is unitary, not dual, and is best expressed in the term “work-connection.” He warns that “an uncompromising insistence on independent application of the two portions of the test can, in certain cases, exclude clearly work-connected injuries.” 1 Larson’s Workers’ Compensation Law § 6.10 at 3-3 (rebound ed 1997).

9 In Rogers v. SAIF, 289 Or 633, 642-43, 616 P2d 485 (1980), this court concurred with the following statement found in Allen v. SAIF, 29 Or App 631, 633-34, 564 P2d 1086(1977):

“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 Workers’ 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. Various concepts have arisen from attempts to rationalize that purpose, e.g., the going and coming rule, special errands, lunch hour cases, dual purpose trips, impedimenta of employment, horseplay, etc. Each is helpful for conceptualization and indexing, but there is no formula for decision. 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.” (Citations omitted.)

10 The “parking lot” exception is a recognition that the parking lot over which an employer exercises control is a part of the worker’s employment environment. See Cope v. West American Ins. Co., 309 Or 232, 238, 785 P2d 1050 (1990) (“Employer control over the premises is the rationale supporting the parking-lot exception.”). See also Alan Stephens, Workers’ Compensation: Coverage of Injury Occurring in Parking Lot Provided by Employer, While Employee Was Going To or Coming From Work, 4 ALR5th 443 (1992 and Supp).

11 Other courts have held that an injury is compensable for workers’ compensation purposes when it occurs during a brief personal deviation in the employer’s store after work. See, e.g., Briley v. Farm Fresh, Inc., 240 Va 194, 396 SE2d 835 (1990) (workers’ compensation exclusive remedy for worker who slipped on floor while shopping 15 minutes after the end of her shift); Carter v. Lanzetta, 249 La 1098, 193 So2d 259 (1966) (workers’ compensation benefits ordered for worker who fell while leaving employer’s premises after lingering at store 20-30 minutes talking to employer); Carter v. Winn Dixie Louisiana, Inc., 517 So2d 504 (La App 1987) writ den 520 So2d 755 (1988) (workers’ compensation was exclusive remedy for worker who slipped on floor while shopping several minutes after work); but see Fowler v. Texas Employers’ Ins. Ass’n, 237 SW2d 373 (Tex Civ App 1951) (worker who remained on employer’s premises 15 to 20 minutes to shop was not entitled to workers’ compensation).

12 2 Larson’s Workers’ Compensation Law § 25.00 at 5-275, states:

“Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown.”

13 The Board’s opinion states, in part:

“In this case, instead of leaving work immediately, claimant grocery shopped briefly before leaving the employer’s store and going out to the parking lot to go home. We do not find that claimant’s brief grocery shopping after work was sufficient to sever the connection with claimant’s employment. * * * [W]e conclude that claimant was in the ‘course of her employment’ when she was injured on the parking lot[.]”

14 The dissent cites several cases in which courts have held that assaults were not sufficiently work-related, because the employer did nothing to create the risk of an assault occurring. Other courts, however, have allowed workers’ compensation benefits on similar facts. See, e.g., Roberson v. Whetsell, 21 Va App 268, 463 SE2d 681 (1995) (award upheld where, as a condition of employment, claimant was required to make regular trips through dangerous neighborhood that increased risk of exposure to criminal activity); S.E. Rykoff & Co. v. Industrial Comm’n, 172 Ariz 22, 833 P2d 39 (1992) (claimant injured attempting to stop a thief who had broken into his truck which had been parked at night in an unsafe area); Bear v. Honey well, Inc., 468 NW2d 546 (Minn 1991) (assault by unknown person was assumed to have been caused by worker’s late night presence in employer’s parking garage and, thus, was incident to her employment); Jenkins v. Wilson, 397 So 2d 773 (Fla App 1981) (claimant assaulted in parking lot while leaving work later than usual). Moreover, Professor Larson’s treatise cites several cases in which courts have allowed compensation where, arguably, the case was weak on both prongs of the compensability test. 2 Larson’s Worker’s Compensation Law § 29.10 at 5-476 et seq.