Oregon Employee’s Slip and Fall Claim in “Annex Parking Area” Not Barred by Going and Coming Rule
Construing the “parking lot” exception to the standard going and coming rule, an Oregon appellate court affirmed an award of benefits to a dental hygienist who sustained injuries when she slipped and fell on ice in an “annex parking area” that had been secured by her employer’s landlord after the employer determined that the existing parking lot at its premises was insufficient [In re Comp. of Lynn, 2021 Ore. App. LEXIS 1645 (Nov. 24, 2021)]. The appellate court held substantial evidence supported the decision by the state’s Workers’ Compensation Board which had determined, inter alia, that the employer had strongly encouraged its employees to park in the annex in order to allow space for the employer’s patients.
Background
Claimant, a dental hygienist for a dental clinic, sustained injuries on her way to work when she slipped and fell on ice in a parking lot next door to the office space leased by her employer’s clinic. At the time the employer leased its office space, it was allotted 16 parking spaces in the office parking lot. Not long thereafter, the employer realized that it needed additional parking. The landlord thus leased additional parking spaces for $1,000 a month at a neighboring bank building for the employer’s use. The lease was not modified to include the additional space, but the landlord told employer that additional spaces were available for its use. The employer was the only tenant who used the annex parking area and the only tenant that did not have enough parking in the office parking lot.
Evidence suggested that the employer strongly encouraged its employees to park in the annex parking area so that its patients could park in the office parking lot. Several employees regularly parked in employer’s annex parking area, including claimant and claimant’s employers. In December 2017, claimant slipped on ice in the annex parking area, fell, and injured her lower back. SAIF, the insurer, denied the claim, contending that it occurred while claimant was going to work and, therefore, was not within the course of the employment.
Workers’ Compensation Board Decision
The Board disagreed, finding the employer had some control over the annex parking area. The board found that, although claimant’s injuries were not connected with her duties as a dental hygienist, her injury was compensable because it resulted from a risk to which she was exposed via her work environment. The board further found that claimant parked in the annex parking because of the employer's strong encouragement. One board member dissented, agreeing with SAIF that claimant’s injury did not occur in the course of employment.
The dissenting board member reasoned that the parking lot exception to the going and coming rule did not apply, because the employer did not own or lease the bank parking lot. The dissent also pointed out that bank employees and customers alike used the annex parking lot and reasoned, therefore, that employer did not have sufficient control such that the parking lot exception applied to the injury.
Appellate Court’s Decision
At the heart of the case was the board’s finding that the employer exercised “some control” over the annex parking area. Specifically, it found that the annex parking area was exclusive to the employer, that the landlord acquired the annex parking area for $1,000 a month because the employer did not have enough parking in the office parking lot, that only the employer parked in that area pursuant to an oral agreement with the landlord to use it, and the employer strongly encouraged its employees to use the annex parking area so its customers could use the office parking lot. The board also found significant the employer’s representative’s testimony that she would have informed the landlord if she had known about snow or ice in the annex parking area, a practice that was consistent with the employer’s prior practice regarding parking complaints or requests. The appellate court concluded, therefore, that the Board’s determination that the employer had “some control” over the annex parking area was supported by substantial evidence.
The appellate court said that it also agreed with the board that the injury arose out of claimant’s employment. Claimant was encouraged to park in the annex parking area for the convenience of employer’s patients, thereby serving employer’s interests. That evidence supported the board’s conclusion that claimant’s injury arose out of a risk to which her work exposed her. Accordingly, the appellate court affirmed the board’s order determining that the claim was compensable.