November 2, 2012
by Rebecca Watkins

Court Less Likely to Find Parking Lot Injuries Compensable?

rebecca watkinsIn Enterprise Rent-A-Car v Frazer, a divided Court of Appeals reversed the WCB’s finding of compensability in a parking lot injury.  The employer at issue had a storefront in a strip mall, including several parking spots its rental cars occupied.  It had two break rooms, but employees were allowed to leave the premises at breaks.  Frazier, the worker, took a paid break in a smoking hut on the strip mall property about 100 feet from her workplace; the smoking hut was not owned or controlled by the employer.  During the break, she vented with coworkers about customers and smoked a cigarette.  As she returned to her workplace, she caught her foot in a hole in the parking lot and sustained injury 

 Only whether the worker was in the course of employment was disputed.  The WCB had focused on the short duration of the break and proximity of the injury to conclude it was compensable.  The Court of Appeals reversed, holding the WCB failed to apply the “going and coming” rule.  (This rule dictates that injuries sustained while travelling to or from work, on a break or otherwise, are not in the course of employment unless some exception applies.) 

The court’s discussion seemingly signals a move away from finding parking lot injuries compensable.  The court stated: “The point is that the mere fact of ‘employer control’ over the location where a claimant is injured is not enough to establish compensability of the injury.  Depending on the particular circumstances of a case, that control may help demonstrate a sufficient temporal and spatial nexus between the injury and the employment, if the ‘going and coming’ rule otherwise would apply and if the employer’s control establishes the applicability of the parking-lot exception to that rule.”  The Court sent the case back to the WCB to apply the “going and coming” rule and determine if any exception applied.  

Three judges dissented from the majority decision, so I anticipate this decision will be appealed to the Oregon Supreme Court.  The full decision can be found at

If you have any questions about this decision, or have a course and scope issue that might be affected by this new decision, please give me a call.