SAIF v. Houk ( 2021 )

568
Argued and submitted October 5, affirmed December 22, 2021, petition for
review denied May 5, 2022 (369 Or 705)
In the Matter of the Compensation of
Sally Houk, Claimant.
SAIF CORPORATION
and Schwabe Williamson Wyatt PC,
Petitioners,
v.
Sally HOUK,
Respondent.
Workers’ Compensation Board
1804112; A174006
503 P3d 1270
Beth Cupani argued the cause and filed the briefs for
petitioners.
Julene M. Quinn argued the cause and filed the brief for
respondent.
Before DeVore, Presiding Judge, and Egan, Chief Judge,
and DeHoog, Judge.
PER CURIAM
Affirmed.
Cite as 316 Or App 568 (2021) 569
PER CURIAM
SAIF Corporation and employer seek judicial review
of an order of the Workers’ Compensation Board concluding
that claimant’s injuries, sustained on her way to work as she
walked through a construction area adjacent to employer’s
offices, are compensable. For the reasons recently discussed
in Bruntz-Ferguson v. Liberty Mutual Ins., 310 Or App 618,
485 P3d 903 (2021), SAIF v. Lynn, 315 Or App 720, 502 P3d
1172 (2021), and Miles v. Bi-Mart Corp., 316 Or App 481,
504 P3d 64 (2021), we conclude that the board did not err in
concluding that claimant’s injuries arose out of and in the
course of her employment and therefore affirm.
We take our summary of the facts from the board’s
order. Employer leases office space in a high-rise building.
Under the terms of the lease, the landlord maintains pub-
lic and common areas, including lobbies and elevators, but
employer has the right to request maintenance and repairs,
and a portion of its lease payment compensates the landlord
for its operating expenses for maintenance of the common
area and repairs, replacements, additions, or improvements.
The landlord was remodeling the building’s upper
lobby outside of employer’s offices and replacing its floor.
When claimant came to work on the day of the injury, she
took the elevator to the upper lobby. As she stepped out of
elevator and onto a plywood ramp that had been placed
there by the construction contractor, the plywood “flexed”
and claimant’s left ankle rolled, causing her to fall onto the
concrete floor just beyond the ramp. She suffered a left foot
fracture and a right elbow dislocation, for which she filed a
claim. SAIF denied the claims, and claimant requested a
hearing.
An administrative law judge upheld SAIF’s denial,
but the board reversed, concluding that, under the “parking
lot” exception to the going and coming rule, claimant’s injury
arose in the course of her employment, because “employer
had sufficient ‘control’ over the upper lobby area, based on
a right to require/obtain maintenance of that area.” The
board concluded, further, that claimant’s injury occurred as
a result of a “neutral” risk to which her employment had
exposed her and therefore arose out of the employment.
570 SAIF v. Houk
On judicial review, SAIF challenges both determi-
nations. Since this case was argued, we have issued opin-
ions in other cases involving similar issues. For example,
in Bruntz-Ferguson, the claimant was injured on her way to
work when she slipped on an icy curb outside of the employ-
er’s entrance. As here, the employer leased its space, and the
landlord was responsible for maintaining common areas,
which included the curb, but a portion of the employer’s
lease payment was for maintenance of common areas, and
the employer had the right to request maintenance. 310 Or
App at 621. We held that the “in the course of” prong of the
unitary work connection set forth in Robinson v. Nabisco,
Inc., 331 Or 178, 185, 11 P3d 1286 (2000), had been satis-
fied, because the employer’s right to request repairs consti-
tuted “some control” of the premises, such that the injury
was subject to the parking lot exception to the going and
coming rule. Bruntz-Ferguson, 310 Or App at 623-24. We
further concluded that the “arising out of” prong of the uni-
tary work connection test was satisfied, because the risk of
injury, although “neutral,” was one to which the claimant’s
employment had exposed her, “because she could not arrive
to her workstation without first entering the building where
her office was located,” and her injury occurred in her nor-
mal ingress to work. Id. at 628.
In Lynn, the claimant was injured when she slipped
on ice in a parking lot that the employer had requested its
employees use. We held that the claimant’s injury occurred
in the course of her employment under the parking lot excep-
tion to the going and coming rule, because the employer
exercised “some control” of the parking lot by virtue of hav-
ing requested access to it from the landlord. We held, fur-
ther, that the injury arose out of a risk to which the employ-
ment had exposed the claimant, because the employer had
requested that its employees use the lot for the benefit of its
clients, which served the employer’s interests. 315 Or App
at 727; see also Miles, 316 Or App at 486 (concluding that
because the “claimant parked her vehicle in the portion of
the parking lot designated by the employer for employee
parking, thereby benefiting [the] employer” supported a con-
clusion that claimant’s injury “arose out of” a condition that
she was exposed to by her employer).
Cite as 316 Or App 568 (2021) 571
Consistent with Lynn, Bruntz-Ferguson, and Miles,
here, substantial evidence supports the board’s determina-
tion that employer exercised “some control” over the common
area of the lobby and its conclusion that claimant’s injury
occurred in the course of her employment. Additionally,
substantial evidence supports the board’s finding that, in
stepping onto the plywood ramp as she exited the elevator,
claimant passed through a common location of ingress to her
employment, thereby satisfying the “arising out of” prong of
the unitary work connection test, because the risk of injury,
although “neutral,” was one to which claimant’s employment
exposed her.
Affirmed.