Lead Opinion
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.”
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.
Emplоyer 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.
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 cаr 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,
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,
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,-
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,
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
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,
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
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.
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.
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.
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,
Employer’s premise, that claimant’s injury did not arise “out of’ her work, becausе 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,
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
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.
Notes
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!.]”
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.,
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 аrgue that claimant violated any work rule by shopping before leaving employer’s premises.
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.
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.
In Krushwitz,
In Norpac,
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 compеnsation 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).
In Rogers v. SAIF,
“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 consumеr. 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.)
The “parking lot” exception is a recognition that the parking lot over which an employer exercises control is a рart of the worker’s employment environment. See Cope v. West American Ins. Co.,
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,
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.”
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[.]”
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,
Concurrence Opinion
concurring.
I agree with the majority that there was a sufficient connection between claimant’s work and the circumstances of her injury to require an award of workers’ compensation benefits. I agree with the dissent that this is a very close case. I write this brief separate opinion to speak only to a concern that arises out of this court’s involvement in cases like the present one.
Regrettably, it turns out that this case was not review-worthy. As we finally decide it by a divided court, we turn out to be disagreeing only over the sufficiency of the agreed facts to meet a legal test which is not new and on
This case was affirmed without opinion by a panel of the Court of Appeals. Fred Meyer, Inc. v. Hayes,
The foregoing error would be of no moment, were it not for the collateral consequences that seem to flow from decisions like the one that we announce today: A number of parties, disappointed with the outcome of their intensely fact-bound disputes in the Court of Appeals, will feel that it is worthwhile to take a flyer on petitioning for review to this court. “After all,” they fairly may say, “the court took review in the Hayes case.”
I wish we hadn’t.
Dissenting Opinion
dissenting.
I respectfully dissent. Although this is a close case, in my view claimant did not establish that her injury was compеnsable.
“The burden of proving that an injury * * * is compensable * * * is upon the worker. The worker cannot carry the burden of proving that an injury * * * is compensable merely by disproving other possible explanations of how the injury * * * occurred.” ORS 656.266.
On review, the facts are not contested. The Board accepted the parties’ stipulated facts, adopted the “notice [d] facts” found by the administrative law judge, and made its own findings.
The parties stipulated to these facts:
“[C]laimant was assaulted within a half hour of finishing her work shift on a parking lot owned and controlled by the*604 employer. The assault caused injuries which required medical treatment and resulted in disability. At the time she was assaulted, claimant’s vehicle was parked in an area of the lot where the employer had specified that еmployees could park.”
Among the “notice [d] facts” that the Board adopted were that:
• the distance from the south side of the employer’s building to the sidewalk is about 225 feet;
• light was provided to the parking lot by a publicly owned light at an intersection adjacent to the employer’s premises, by five light fixtures in the parking lot, and by three larger light fixtures at a parking lot across the street from the area where claimant’s car was parked;
• employer’s light fixtures are located about 80 feet south of employer’s building, in between parking spaces; and
• the nearest vehicular entrances and exits are about 160 feet to the west and 200 feet to the north of where claimant’s car was parked at the time of the assault.
The Board made these additional findings, among others:
“On March 20, 1994, claimant finished her shift working in the employer’s apparel department at 8:00 PM. She did some personal grocery shopping in the employer’s grocery department which took about 15 to 20 minutes. After completing her shopping, claimant left the store through the grocery exit and walked toward her car pushing a cart containing groceries. The parking lot was approximately half full of cars when claimant left the store. Claimant’s car was parked approximately 72 yards from the grocery exit.
“On the night of her injury, the upper parking lot was full and claimant parked in an area around the perimeter of the main lot in a space which the employer had designated for employees to park. The area where claimant parked on March 20,1994 was not well lit. The closest lights were half way across the parking lot.
“As claimant approached her car, she was attacked by a man with a knife who apparently attempted to force her into his vehicle. The man had apparently driven his vehicle*605 onto the employer’s lot. * * * Claimant did not know her attacker and the attacker was not known to have any connection with the employer or with claimant.
«H* Hí * ‡ *
“The employer required employees to park on the upper parking lot of the store where claimant worked, or if that lot was full, in areas specified by the employer around the perimeter of the main parking lot. Employees could be disciplined if thеy parked in areas other than those specified by the employer. On the night claimant was assaulted, there was no security guard in the parking lot. Transients occasionally came onto the employer’s premises including the parking lot area. If transients or other individuals bothered employees or customers, the employer took steps to ask them to leave or called the police. The employer has a policy to escort employees who wished such an escort out to their cars.”
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). To determine compensability, the court assesses the sufficiency оf the relationship between the injury and the employment.
In Norpac Foods, the court relied on Phil A. Livesley Co. v. Russ,
“ ‘One is almost temрted to formulate a sort of quantum theory of work-connection that a certain minimum quantum of work-connection must be shown, and if the “course” quantity is very small, but the “arising” quantity is large, the quantum will add up to the necessary minimum, as it will also when the “arising” quantity is very small but the “course” quantity is relatively large. But if both the “course” and “arising” quantities are small, the minimum quantum will not be met.’ 1A Larson, Workmen’s Compensation Law § 29.10 at 5-355.”296 Or at 28 (footnote omitted).
I turn first to the “course” prong of the test. In this case, claimant was injured after leaving work. Ordinarily, an employee who is going to or coming from work is not “in the course of’ employment. Norpac Foods,
The “course” quantity is made even smaller in this particular case by the fact that, after her work shift ended, claimant spent more than a quarter of an hour engaged in the personal activity of grocery shopping, before going to the parking lot. Both the length оf time and the nature of the activity are such as to be toward the outer edge of the course of employment. See 2 Larson’s Workers’ Compensation Law § 21.60 at 5-45 to 5-56 (rebound ed 1997) (collecting cases on “personal comfort doctrine”; “The course of employment, for employees having a fixed time and place of work, embraces a
However, the “arising” quantity is not weighty. The court in Livesley noted that an attack on the job by an unknown person, whose motive may have been personal or related to the employment, is a “neutral” risk rather than a risk distinctly associated with the employment.
The factors associated with claimant’s employment on which the Board relied are: claimant’s shift ended at 8:00 p.m. when it was dark outside; employer required claimant to park in an area on the perimeter of the parking lot if she drove a car to work and chose not to park on a public street; that area was not well lit, in that the closest lights were half way across the parking lot; and there had been an earlier problem with “transients” in the parking lot.
Taking the last factor first, “transients” are not criminals. There is no finding and no evidence that a “transient” (or, indeed, anyone else) ever had attacked anyone in employer’s parking lot. There is no finding and no evidence that claimant’s attacker, who arrived by car, was a “transient.” There is no finding and no evidence that the earlier presence of “transients” in the parking lot created a risk of assault. Indeed, as the Board found, “the attacker was not known to have any connection with the employer.”
That leaves time, location and lighting. The Board found that the assault occurred at about 8:30 p.m. and that it was dark outside. The Board further found that claimant’s car was parked about 216 feet (72 yards) from the building, that the lot is adjacent to a public street, that the light fixtures were located about 80 feet from the building, and that the overall width of the parking lot was 225 feet. Accordingly, the Board’s finding that the nearest light was “half way
In order for claimant’s injuries to be compensable, one must conclude that a requirement to work until 8:00 p.m. and to park near a public street at a point 216 feet from the employer’s building and 136 feet from the nearest lamppost — without more — creates a risk of assault. As noted above, there is no finding and no evidence of prior assaults at that time or in that location. There also is no finding and no evidence that thе neighboring street near which claimant parked was dangerous or that the area was deserted. In fact, although the Board did not make a finding one way or another with respect to the point, the undisputed evidence was that there were customers in the parking lot at the time of the attack. In other words, there is no evidence that the time, location and lighting (employment conditions) created a risk of assault. There is only the post hoc determination that this assault happened to occur under those conditions. Post hoc is not propter hoc, and fear is not causation.
As noted, under ORS 656.266, claimant bears the burden to prove compensability. Moreover, that statute specifies that a claimant cannot carry the burden of proving compensability “merely by disproving other possible еxplanations of how the injury * * * occurred.” In general, a claimant can carry the burden to prove that injuries sustained in an assault arise out of employment in one of three ways.
In general, an assault arises out of employment if the nature of the work or the setting of the work creates a risk of assault, or if the reason for the assault was a quarrel having its origin in the work. See 1 Larson’s § 11.00 at 3-22 (discussing concept). Here, the only possible basis, and the basis on which the majority relies, is that the time and the setting where employer required claimant to park (if she chose to drive to work and not to park on the public street) created a risk of assault. See id. at § 11.11(b) (assault may arise out of employment when employment required employee to work in or travel through a dangerous locality, or when employee is
I am aware of no decided case that authorizes workers’ compensation when the “arising” prong and the “course” prong are as tenuous as they are in this case. Even when the “course” prong is stronger than it is in this case, courts often have denied compensation to victims of unknown assailants when the “arising” prong is comparable to what exists here. For example, in Hill City Trucking, Inc. v. Christian, 238 Va 735,
Similarly, the court in Walk v. S.C. Orbach Co.,
In Gibberd by Gibberd v. Control Data Corp.,
In Williams v. Salem Yarns, 23 NC App 346,
In Foster v. Johnson,
To summarize, claimant failed to establish that her injuries are compensable, because the quantities of both the “course” and “arising” prongs of the work connection test are small. I dissent from the majority’s contrary holding.
See ORS 656.012(1) (Legislative Assembly finds that “those injuries that bear a sufficient relationship to employment * * * merit incorporation of their costs into the stream of commerce.”).
The majority appropriately does not rely on this factor.