Court orders consideration of whether employer endorsed jaywalking

The Oregon Court of Appeals remanded a case to the Workers’ Compensation Board with instructions to consider whether an employer exposed a worker to a greater risk than that to which the public is exposed by having him park across the street and then cross illegally outside of a crosswalk.

Shawn Wiley was struck by a car as he jaywalked from a parking space to work across a busy public road.

The Workers’ Compensation Board said in Shawn Wiley v. SAIF Corp. et al., his employer, Pro Truck Dispatch LLC, was not liable because the worker’s injuries were excluded from coverage under the going-and-coming rule, which assumes a worker is not acting in the course and scope of employment while traveling to or from work.

The board rejected the worker’s contention that his injuries were compensable based on one of two exceptions to the going-and-coming rule.

The board concluded that the parking lot exemption did not apply because Pro Truck Dispatch did not control the lot where the employee parked or the road where he was hit. The board said the greater hazard exception did not apply because he was not required to park across the road and that crossing the street did not pose a greater hazard than what the public faces.

The employee appealed.

The Oregon Court of Appeals said the WCB correctly determined that the parking lot exception was not applicable.

However, the court said two unresolved factual issues preclude it from determining whether the general hazard exception should apply: whether the worker was required to park across the street and directed to jaywalk rather than walk a mile to the nearest crosswalk.

Though the board concluded that the worker volunteered to park across the street, the appeals court said he did so because the employer’s lot was full, and the employer said that someone would have to park across the road. The court said the board should consider whether the employee took on that responsibility for the employers benefit and whether the employer essentially required him to park across the street.

“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 to a greater hazard,” the court said.