One strike, and you’re out. The two-prongs of the “work-connection” test in Oregon.
There is a fine line employers must consider regarding injuries sustained by employees who are not on property or areas under the employer’s control, and it can be difficult to determine the moment an employer is responsible for processing such injuries. Employers who provide clients with in-home care, undertaken by an employee, find the water muddied further. This article will examine application of the “work-connection test” to determine whether an injury is compensable. If your business provides employees to perform services on the private grounds of your clients, read on.
To find an injury compensable, a claimant must establish that the injury “arose out of” and occurred “in the course of” employment. Whether the injury “arose out of” employment depends on the causal relationship between the injury and employment. Whether the injury occurred “in the course of” employment depends on the time, place, and circumstances under which the accident took place. The inquiry, otherwise known as the “work-connection” test, requires that both prongs be met to some degree, and neither is dispositive.
In Jayne Rienks, 74 Van Natta 541 (2022), the Workers’ Compensation Board considered compensability for injuries sustained by workers who travel from home to private locations to perform work onsite. In this case, claimant was a home care worker. She slipped and fell on snow and ice outside the private residence of her patient who had engaged the services of her employer. The Board noted several pertinent facts. Claimant drove her personal vehicle and she was not paid for travel time or reimbursed for mileage. She clocked in and out using a phone app when she entered and exited the private home of the client. The employer had no ability to control the private property of their client.
On review of the “course of employment” prong, the Board first considered the “going and coming” rule and an exception to that rule called the “parking lot exception.” When a claimant is injured off the clock or not otherwise subject to the employer’s control or direction and is going to or coming from a work site not owned or controlled by their employer, the “going and coming” rule applies to find the injury did not occur “in the course of” employment. But, if a worker is performing activities reasonably incidental to their employment duties for a reasonable period of time after work and is on grounds controlled by the employer (like an employer’s parking lot), the “going and coming” rule does not apply due to the “parking lot exception.”
Here, claimant had clocked-out at the moment she exited the client’s home and went to her vehicle on the client’s private property. The Board determined that a distinguishing factor was that because the private residence of the client was not owned or controlled by the employer, the “parking lot exception” did not apply. Instead, the Board determined claimant’s injury did not occur “in the course and scope” of her employment since she was off-duty and not on company-controlled property. Strike one. Since both prongs of the “work-connection test” must be met to some degree, the injury was not compensable, but the Board analyzed both prongs, to be sure.
Next, the Board considered the existence of a causal link between a risk connected with the nature of the work or a risk to which the work environment exposed claimant. There are three types of risk: employment risks, personal risks, and neutral risks. Employment risks are those risks that are distinctly associated with the employment. Personal risks are risks personal to the claimant. Neutral risks are risks that are neither employment risks nor personal risks. An injury arises out of employment if either: (1) the injury results from an employment risk; or (2) the injury results from a neutral risk where the conditions of employment put a claimant in a position to be injured. An injury that results solely from a personal risk, however, does not arise out of employment and is, therefore, not compensable.
Here, the risk of a slip and fall injury on grounds not controlled by the employer is a neutral risk, at best. So, to be compensable the conditions of employment must have put claimant in a position to be injured. By exerting control over a place, an employer has an affirmative duty to keep that place free of controllable hazards. Weather is certainly out of anyone’s control, but clearing grounds from the aftermath of inclement weather, certainly is. Because the injury occurred on the private property of a client, the employer had no way to clear the area of the hazards which caused the injury. Thus, the Board found that the record did not establish claimant’s injury “arose out of” employment. Strike two.
Under these facts, claimant’s injury failed both prongs of the work-connection test, and was therefore, not compensable. If your business regularly provides workers to perform services at private residences, giving special attention to risk factors inherent to working environments outside of your control is particularly important. Setting expectations, guidelines, and processes to create an environment that mitigates risk effectively will help avoid claims outside the responsibility of your business. If you would like to discuss a particular claim or need assistance in ironing out your company’s best practices for services performed on private property, you can contact me at or 971-867-2723.
Posted by: Erling Hanna.
