Wiley v. SAIF

No. 928            December 26, 2024                 63

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

           In the Matter of the Compensation of
                 Shawn Wiley, Claimant.
                     Shawn WILEY,
                        Petitioner,
                             v.
                  SAIF CORPORATION
               and Pro Truck Dispatch, LLC,
                       Respondents.
              Workers’ Compensation Board
                        2201038;
                        A182612

  Argued and submitted November 8, 2024.
   Jodie Anne Phillips Polich argued the cause for petitioner. Also on the briefs was Law Offices of Jodie Anne
Phillips Polich, P.C.
   Beth Cupani argued the cause and filed the brief for
respondents.
  Before Tookey, Presiding Judge, Lagesen, Chief Judge,
and Kamins, Judge.
  KAMINS, J.
  Reversed and remanded for reconsideration.
64                                              Wiley v. SAIF

        KAMINS, J.
         In this petition for judicial review of an order of the
Workers’ Compensation Board, claimant contends that the
board erred in upholding SAIF’s and employer Pro Truck
Dispatch LLC’s denial of his multiple injuries, suffered when
he was struck by a car as he jaywalked from a parking space
to work across a busy public road. We review the board’s
order for substantial evidence, substantial reason, and legal
error, ORS 183.482(8)(a), (c), and reverse and remand.
         The board determined that claimant’s injuries were
excluded from coverage under the “going and coming” rule,
under which a worker is generally not considered to be in the
course and scope of employment while travelling to or from
work. See Krushwitz v. McDonald’s Restaurants, 

, 

 (1996) (“The relationship of employer and
employee is ordinarily suspended from the time the employee
leaves his work to go home until he resumes his work, since
the employee during the time that he is going to or coming from work, is rendering no service for the employer.”).
Claimant argued to the board that the circumstances of his
injuries fell within two potential exceptions to the going and
coming rule—the “parking lot” rule, and the “greater hazard” rule.
        The board rejected both of those contentions. The
board concluded that the “parking lot” exception was not
applicable, because employer did not have any control over
the parking lot where claimant parked or the road in which
claimant was struck. See Norpac Foods, Inc. v. Gilmore,

, 

 (1994) (“When an employee
traveling to or from work sustains an injury ‘on or near’ the
employer’s premises, the ‘in the course of’ portion of the workconnection test may be satisfied if the employer exercises
some ‘control’ over the place where the injury is sustained.”).
The board concluded that the “greater hazard” exception
was not applicable, because claimant had not been required
to park across the road and, further, that crossing the road
did not constitute a greater hazard then that to which the
general public is exposed. See Krushwitz, 

 (The
“greater hazard” exception is limited to situations in which
the worker “is injured while traveling upon the only means
Cite as 

 (2024)                              65

of ingress to or egress from the employer’s premises and
some ‘greater hazard’ existed upon that route.”).
         On judicial review, in a single assignment of error,
claimant challenges both determinations. SAIF responds
that the board correctly analyzed and resolved the legal
questions raised by claimant and that the board’s findings
are supported by substantial evidence. We have reviewed
the record and agree that the board’s determination on the
parking lot exception is supported by substantial evidence
and is legally correct.
        However, the board’s order does not resolve two
factual issues that we conclude are necessary to resolve
the issue of the greater hazard exception. Specifically, the
board’s order does not address two questions that we conclude are presented by the circumstances of claimant’s
injury: Was claimant required to park across the busy four-lane road, and was he directed to jaywalk rather than walk
a mile to the nearest crosswalk, such that he was exposed
to a risk greater than the general public would be? The
board found that employer’s “acquiescence constitute[d] his
endorsement” of the parking arrangement and that claimant “volunteered” to park across the road on the day he was
injured rather than in employer’s parking lot next to the
building. But it is undisputed that claimant “volunteered” to
park across the road on the day he was injured because there
were not enough spaces in employer’s lot for all employees
and employer’s customers, and employer had directed that
someone must park across the road. Claimant took on that
responsibility for employer’s benefit, and the board did not
address that circumstance in its findings. The board should
consider on remand whether employer’s endorsement of the
parking arrangement, with which claimant complied, was
the equivalent of requiring claimant to park across the road
on the day of the accident.
         Additionally, the record includes evidence that
employer indicated, by example, that claimant could jaywalk
across the busy four-lane road from the parking space; the
board’s findings do not show that it considered whether that
circumstance constituted direction to claimant to jaywalk, a
question that bears on whether employer exposed claimant
66                                          Wiley v. SAIF

to a greater hazard. The board should address on remand
whether employer’s example of jaywalking from the parking
space exposed claimant to a greater hazard. Accordingly, we
remand the board’s order for it to address those questions.
        Reversed and remanded for reconsideration.