New workers' comp parking lot injury case from Oregon Court of Appeals

February 08, 2013 (Press-News.org) When you're injured at work, you are entitled to workers' compensation benefits, which cover the cost of your medical treatment, provide you with partial wage replacement and in some instances pay for vocational rehabilitation. Yet, your employer or your employer's workers' comp insurer may try to say money by denying or limiting your claim for benefits.

One of the most common ways an employer or insurer tries to deny benefits is by saying that the injury did not actually occur at work -- in other words, that you were injured while doing something outside the scope of your employment. A well-known legal concept called the "coming and going rule" says that commuting to and from work is not within the scope of employment. Therefore, injuries suffered while commuting are not compensable through workers' comp.

But when exactly does a departure from your place of employment fall under the coming and going rule? A new case from the Oregon Court of Appeals explores whether an employee who was injured on the way back from an outdoor smoke break can be denied workers' compensation benefits under the going and coming rule.

Was an injury suffered in a parking lot during a work break compensable?

In the case Frazer v. Enterprise Rent-A-Car of Oregon, a car rental company employee who received paid breaks went to a smoking hut in a parking lot located approximately 100 feet from the company's front door. Employees were not allowed to stay in the work area during breaks, but were free to leave to run errands. The lot was not owned or managed by the company, although some of the parking spaces were reserved for its customers and employees.

On the way back from the smoke break, the employee's shoe caught in a break in the pavement. She twisted her knee and ankle, and eventually was referred for surgery.

Initially, the company's workers' compensation claims representative denied the employee's claim -- a relatively common occurrence. She appealed to the Workers' Compensation Board, which found that her claim was compensable. That was not the end though: the case finally came before the Oregon Court of Appeals.

The Court of Appeals reviewed several aspects of the case. The fact that an employee was on a break when injury occurred does not necessarily preclude a workers' compensation claim, and there is also a parking lot exception to the coming and going rule. However, the parking lot exception generally only applies when the injury occurs on property that the employer owns and has a legal responsibility to maintain, or perhaps if the employer requires parking in a particular public lot as a condition of employment.

The Oregon Court of Appeals reversed the Workers' Compensation Board's determination that the employee's injury returning from a paid break in a designated smoking area was compensable. The Court asked the Board to explain whether the employer had some control over the area so as to apply a parking lot exception. J. Wollheim dissented (joined by JJ Armstrong and Sercome) providing a detailed review of course and scope cases.

Case enters new territory for Oregon workers' compensation law

This opinion is interesting because it indicates a possible shift in the law. For the first time, the Court explained that an employee on a paid break was not "on duty" or otherwise subject to an employer's direction or control. Usually something more substantial needs to happen to break the employment connection, such as a personal errand off site. This opinion may signal a shift in the law that is unfavorable to workers.

As the law evolves, it is all the more important to present the best arguments possible in order to get the full benefits you deserve. If you've been injured on the job, a workers' comp attorney can help you develop your case.

Article provided by Martin L. Alvey, P.C.
Visit us at www.martinalvey.com