Short distance for smoke break doesn't make injury compensable

In Oregon, the fact that an employer has control over the location where an employee is injured is not enough to establish compensability of the injury.

Case name: Frazer v. Enterprise Rent-A-Car Co. of Oregon, No. A146596 (Or. Ct. App. 10/17/12).

Ruling: The Oregon Court of Appeals reversed the Workers' Compensation Board's determination that an employee's fall was compensable and remanded the case to apply the going and coming rule.

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What it means: In Oregon, the fact that an employer has control over the location where an employee is injured is not enough to establish compensability of the injury.

Summary: An employee of a car rental company worked in a call center and had paid breaks. The employee went to a smoking hut located in the parking lot 100 feet from the company's front door. The company did not own or manage the parking lot, but some of the parking spaces were designated for its customers and employees. As the employee headed back to work, her shoe caught in a break in the pavement, and she fell, twisting her knee and ankle. An MRI revealed a tear of the lateral meniscus, and she was referred for surgery. The employer's workers' compensation claims representative denied her claim. The Workers' Compensation Board did not consider the going and coming rule and found the claim was compensable. The Oregon Court of Appeals reversed the board's decision and remanded the case for the board to apply the going and coming rule.

The evidence indicated that employees were not allowed to stay in the work area while on a break. Employees were free to leave to run errands, and the company provided two break rooms.

The court explained that the going and coming rule could still apply even though the employee was only on a brief break when she was injured. The court also found no significance to the fact that she stayed within 100 feet of her workplace during her break.

The board said that it did not address the employer's arguments that it did not exercise control over the area where the injury occurred under the parking lot exception to the going and coming rule. The court said that the employer's control over the location, standing alone, was not sufficient to establish compensability.

A dissenting judge opined that the employee's injury was compensable under the personal comfort doctrine.

Read more at the WorkersComp Forum homepage.

January 18, 2013

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