WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for February 25, 2019

Dr. Garber’s

by Brad G. Garber
Wallace, Klor, Mann, Capener & Bishop

February 25, 2019

Sherrie A. Miles, 70 Van Natta 40 (2019)
(ALJ McWilliams)

The self-insured employer requested review of an Opinion & Order that set aside its denial of claimant’s injury claim.  The issue was course and scope of employment.

Claimant’s employer leases retail space that includes a right to access and park vehicles in an enjoining parking lot.  The lease provides that maintenance of the parking area is to be provided by the property owner.  Claimant’s employer uses portions of the parking area for permanent shopping cart racks, and for moveable shelving displays of items for sale.  The employer periodically removes hazards, garbage and lost items from the parking lot, as needed.

On May 26, 2017, before beginning her work shift, claimant parked her car in the parking lot and started walking to the entrance of the workplace.  She tripped on a portion of cracked and broken parking lot pavement and fell.  As a result of the fall, claimant needed medical attention.

In setting aside employer’s compensability denial, the ALJ reasoned that the employer’s designation of distant spots for employee (as opposed to customer) parking, exposed claimant to a risk of injury as she walked toward the employer’s premises before beginning her shift.  The ALJ found that the employer exercised “some” control over the parking lot.

On review, the employer contended that it did not have sufficient “control” over the parking lot, sufficient to establish the “parking lot exception” to the “going and coming rule.”  In addition, the employer asserts that claimant’s injury did not “arise out of” her employment.  The Board agreed with both contentions.

The relevant boilerplate litany is as follows:

“Injuries sustained while the employee is going to, or coming from, the place of employment generally do not occur “in the course of” employment. [citation omitted]. This is generally referred to as the ‘going and coming’ rule.  The ‘parking lot’ exception to the ‘going and coming’ rule applies when an employee traveling to or from work sustains an injury ‘on or near’ the employer’s premises, and the employer exercises some ‘control’ over the place where the injury is sustained. [citations omitted].”

“Control” may arise from an employer’s obligation to maintain the area where the injury occurred.  See Montgomery Ward v. Malinen, 71 Or App 457 (1984)

(injury occurred in the course of employment where, although the employer did not own the ice-covered sidewalk where the claimant fell, it had a legal duty to maintain the sidewalk).

Where an employer does not have the right or obligation to require maintenance, the “parking lot” exception has not been applied.  See Ashley Bruntz-Ferguson, 69 Van Natta 1531 (2017) (injury did not occur in the course of employment where the claimant was injured in an area where the employer did not own, control, or have the right or obligation to control under its lease); Maria L. Duran-Angel, 63 Van Natta 2580 (2011)(injury did not occur in the course of employment where the claimant fell in parking lot on her way to work and the employer did not own, control or have the right or obligation to control the parking lot).  The list of examples goes on…. 

In this case, the employer’s lease allowed for its nonexclusive use of the parking area where claimant was injured.  The lease provided that “[r]epairs, maintenance, replacement of light fixtures, and cleaning shall be performed by the lessor.”  Based on the lease, the Board found that claimant’s employer had no right to maintain or operate the parking lot.  “Therefore, because claimant had not arrived on the employer’s premises at the time of the injury, she was not within the course of her employment.”  Reversed 

Eric P. Svela, 71 Van Natta 91 (2019)
(ALJ Somers) 

Claimant requested review of an Opinion & Order that affirmed an Order on Reconsideration that awarded him 17% whole person impairment for a low back condition.

The employer initially denied the compensability of claimant’s low back condition, but subsequently accepted an L3-4 disc herniation.  The claim was closed by Notice of Closure dated August 29, 2017 with a whole person impairment award of 9%.  Claimant requested reconsideration.

The employer requested a 3-member medical arbiter panel and claimant was examined by December 15, 2017.  The panel apportioned reduced range of motion findings as follows: 50% of flexion due to the accepted condition: 0% of extension due: 50% of right lateral bending due: and 50% of left lateral bending due.  The apportionment was due to “preexisting degenerative changes at multiple lumbar levels.”

A January 11, 2018 Order on Reconsideration increased claimant’s PPD award to 17%, applying the apportionment.  Claimant requested a hearing to dispute the apportionment.  ALJ affirmed the apportionment in her Opinion & Order. Claimant requested review, asserting that apportionment was inappropriate.

The Board recorded the following:

“To qualify as a legally cognizable ‘preexisting condition’ for injury claims, a condition must contribute to disability or a need for treatment and, unless the condition is arthritis or an arthritic condition, the worker must have been diagnosed with, or obtained medical services for, the condition before the initial injury.  See ORS 656.005(24)(a); Schleiss v. SAIF, 354 Or 637 (2013); Juan H. Zapata, 69 Van Natta 638, 645 (2017).  To establish the existence of preexisting arthritis, a carrier must adduce expert testimony that the claimant suffers from ‘inflammation of whatever joint or joints it contends are affected by the arthritic condition.’ [citations omitted]. A condition is not found to be ‘arthritis’ or an ‘arthritic condition’ absent evidence of joint inflammation. [citations omitted].”

The Board went on to find that the record did not establish that claimant was diagnosed with, or treated for, “degenerative changes” before the date of his injury.  Furthermore, the record did not establish that claimant suffered from arthritis or an arthritic condition, as defined in Schleiss.  So, apportionment was not appropriate.  Claimant’s PPD award was increased to 20%.  Modified 

Donna L. Combs, 71 Van Natta 169 (2019)
(ALJ Jacobson) 

The self-insured employer requested review of an Opinion & Order that set aside its denial of claimant’s injury claim. The issue was course and scope of employment.

Claimant worked as a patient access representative for a hospital.  She had two 15-minute breaks and one paid 30-minute break per shift.  She frequently used her 15-minute breaks to smoke.  Two of her supervisors and the department manager knew that she smoked on her breaks.  But, the employer has a strict “tobacco free” policy and smoking is prohibited on the hospital’s campus.  So, claimant had to exit the building she worked in and walk about one block to a street off-campus to smoke.

On the day of her injury she intended to walk to the smoking area, but the sidewalk was icy, so about halfway to her destination she decided to turn around and head back to work.  While walking back, she slipped on the campus sidewalk directly across the street from the building where she worked.  She fell and injured her left shoulder and hip.

The employer denied her workers’ compensation claim, asserting that her injury did not arise out of and in the course of her employment.  Claimant requested a hearing.  After hearing, the ALJ set aside the employer’s denial, concluding that that the injury occurred in the course of claimant’s employment as it occurred during a “personal comfort” activity, and that it arose out of her employment.

Under the “personal comfort” doctrine, “an employee remains in the course * * * of employment if he or she engages in an activity that is not his or appointed work task, but which is a “personal comfort” activity that bears a sufficient connection to his or her employment.”  U.S. Bank v. Pohrman, 272 Or App 31, rev den, 358 Or 70 (2015).  “Personal comfort” activities that are merely incidental to employment involve “engaging in activity with a ‘limited objective’ of achieving ‘personal comfort’ – such as restroom breaks, getting something to drink, or other ‘typical kind of coffee break activity’ which is ‘contemplated by the employer’ and, therefore, do not ‘remove[ ] [the employee] from the employment situation.’”  Pohrman at 45.

The Board, then, discussed its mandatory analysis, in light of Pohrman, as follows:

“As instructed in Pohrman, we must first inquire into the nature of claimant’s activity when she was injured to determine whether it bears a sufficient connection to the employment so that she cannot be considered to have left the course of employment, making the ‘personal comfort’ doctrine applicable and the ‘going and coming’ rule inapplicable.  After making that inquiry, if we determine that claimant has not engaged in a personal comfort activity, but rather was injured while on a personal mission, or if we determine that the personal comfort activity did not bear a sufficient connection to the employment, then we may consider whether the ‘going and coming’ rule, or any of the exceptions to that rule, would properly apply.”

In this case, because the employer knew about claimant’s smoking habit and acquiesced in her smoking activity, off campus during her breaks, the Board found that claimant was not on a “personal mission” when injured but, rather, was engaged in a “personal comfort” activity and was, therefore, injured in the course of her employment.  It went on to find that her injury arose out of her employment, also, because her “work environment” exposed her to the risk of slipping and falling on icy sidewalks, while out on a break, because she had to walk off-campus to engage in her habit.  Affirmed 

Gustav A. Schenk, 71 Van Natta 178 (2019)
(ALJ Mills)

Claimant requested review of an Opinion & Order that affirmed an Order from the Division that suspended his compensation based on a failure to cooperate in SAIF’s investigation of his injury claim and upheld SAIF’s “noncooperation” denial of the claim.

On October 13, 2017, claimant submitted an injury claim for a low back condition.  Between October 18 and October 25, the claim adjuster attempted to contact claimant by phone and by mail, but received no response.  The claim adjuster was attempting to contact claimant to schedule an interview.  But, correspondence that the adjuster sent to claimant did not notify claimant that an interview had been scheduled (without his knowledge).  Nor did it contain a date, time, or place for the interview.

After receiving no response from claimant, on November 9, 2017 asked the WCD to suspend claimant’s compensation based on his failure to “submit to and fully cooperate with an interview.”  On November 17, 2017, WCD notified claimant that his compensation could be suspended and his claim denied if he failed to contact SAIF and submit to an interview.  Claimant did not respond to that notice.

On December 18, 2017, SAIF issued a noncooperation denial.  On December 20, 2017, the WCD issued a suspension order.  Claimant requested a hearing from the denial and the order.

The ALJ found that claimant either received or failed to claim the letters sent to him by SAIF and concluded that he had not fully and completely cooperated with SAIF’s investigation, and that his failure to cooperate was not for reasons beyond his control. See ORS 656.262(15).  The ALJ also found that SAIF was not required to strictly comply with OAR 436-060-0135(2)(a), concerning the procedure allowing suspension of compensation.

On review, claimant contended that strict compliance with the rule was required.  That rule provides that a carrier may request that the Director suspend compensation for noncooperation, under the following conditions:

“(a) The insurer must notify the worker in writing that an interview or deposition has been scheduled, or of other investigation requirements:

  • The notice must be sent to the worker and copied to the worker’s attorney, if any, and must contain the following:
  • The date, time, and place of the interview * * *.”

The Board found that strict compliance was required, due to the word “must.”  Reversed 

NOTE:  In other words, don’t be nice.  Throw a dart at the calendar, pick a time and place, and include the information in a letter to the injured worker, and his or her attorney, if any.  Tell, don’t ask.