This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1992). On May 15, 1992, (hearing officer) conducted a contested case hearing in (city), Texas, but allowed for submission of information as to a parking lot boundary and average weekly wage until June 1, 1992. She ruled that claimant’s (respondent herein) injury was compensable. Appellant states that the access doctrine, as an exception to the rule against compensability for injuries while going to and from work, should be limited to what is reasonable, to a route that is the only way to work, and to a route not available to the general public. It questions whether respondent’s departing the premises for a personal lunch furthered the employer’s business, says the personal comfort doctrine should not apply, and asserts as error findings made relative to the decision.
DECISION
Finding that the decision is not against the great weight and preponderance of the evidence, we affirm.
The facts of this case as to the injury were not in dispute; some conclusions from those facts and the application of the law thereto provide the dispute. The only issue was whether respondent was injured in the course and scope of employment when she slipped and fell on some steps at the edge of a parking lot designated for employees as she went to lunch.
Respondent was employed by (employer), which had office space leased on the eighth through 11th floors of an office building. The lease referred to these floors as the “premises” of the lessee. The employer as a lessee had “rights to use in common,” lobbies, elevators, toilets, “walkways and driveways necessary for access to the building,” and “the common parking areas serving the building,” with other tenants. Respondent was told that she was to park in this parking lot. Respondent was not allowed to eat at her desk and a cold sandwich area was provided on another floor. She was told to take a lunch break, but not told to stay on or leave the premises.
On (date of injury), respondent and another employee walked to get lunch at a restaurant that was located just beyond the parking lot. They walked across the parking lot which extended from the building in which she worked approximately 100 yards or more to its outer edge. They began to descend about 10 steps to the level of the restaurant when respondent slipped as she stepped down to the first step below the level of the parking lot. She is scheduled for back surgery. There is no issue that any incident other than this one caused the injury for which surgery is planned.
At hearing appellant sought to show that the landing at the top of the stairs was beyond where any car was parked in the belief that the stairs were beyond the boundary of the parking lot provided for tenants. Within the time provided by the hearing officer for submission of certain information after the hearing, appellant learned that the steps are on the premises of the lessor. As stated, appellant nevertheless argues that the steps are not the only access and that the respondent was not going across the parking lot to go to her car.
Appellant cites several cases including TEIA v. Clauder, 431 S.W.2d 579 (Tex. Civ. App.-Tyler 1968, writ ref’d n.r.e.) in asserting that the access involved should be the only access. Clauder involved travel, after departing the premises, on a road that was on private property, but was maintained by the county and used by the general public. Appellant says the steps were available for other tenants and the general public. While the lease shows that other tenants could use the parking lot and the steps that were part of lessor’s premises and, inferentially would support a conclusion that tenant’s customers could use the area, there was no evidence introduced that people not doing business with tenants would use either.
While not cited by either appellant or respondent, Standard Fire Ins. Co. v. Rodriguez, 645 S.W.2d 534 (Tex. App.-San Antonio 1982, writ ref’d n.r.e.) has many similarities. It noted that questions of course and scope of employment are for the trier of fact to determine and found sufficient evidence to sustain a finding of injury in course and scope. In that case the employer had leased the third floor of a building on a major thoroughfare of the city. The court referred to no lease data indicating that employer had use of common areas with the other tenant. (Ms. R) and a friend departed the building at the end of the day via a loading dock which the opinion said both tenants could use. She slipped on the steps of the dock. The court said:
We hold that appellee although not on the employer’s premises, was at or near the place of work and on a means of ingress and egress impliedly permitted and recognized by the employer as being a means of access to the work. Although (employer) did not lease the premises where the injury occurred, it had rights in and to the loading docks and the docks were used to further the company’s business.
The (city) court said the loading dock was not a public “thoroughfare” and that no one other than employees of the tenants and people doing business with them had reason to use it. It also said:
But it is not an absolute requirement that the injury occur upon the only access to the place of employment, particularly where several are available, none have been prohibited, or none expressly designated as the only authorized approach.
Appellant also cites Turner v. TEIA, 715 S.W.2d 52 (Tex. App.-Dallas 1986, writ ref’d n.r.e.), in stating that access should be applied only as far as reasonable. That court said it was not reasonable to apply the access doctrine to an employee who worked for employer at one location, when she was injured driving through a parking lot owned by her employer at another location while avoiding construction on her way to work. This case cited Rodriguez both for the rule on access and for its general statement that the question is ordinarily one for the trier of fact to determine.
Appellant ascribes to the access doctrine the requirement that the respondent must show that injury resulted from a hazard of the employment and was received while in the furtherance of the employment, citing Thompson v. Employers Lloyds, 292 S.W.2d 643 (Tex. Civ. App.-Dallas 1956, writ ref’d n.r.e.). That case involved injury as an employee entered an intersection in his car when leaving the plant and was hit by another car that ran a red light. That court in discussing “the rule . . . on a highway” said the employee had to be performing some duty, or the accident had to be caused by a hazard of employment, “or is ruled by the ingress and egress cases” to be compensable (emphasis added).
Both appellant and respondent cited generally as to access, Bordwine v. Texas Employers’ Ins. Assoc., 761 S.W.2d 117 (Tex. App.-Houston [14th Dist] 1988, writ denied). That case found that a nurse was injured in the course and scope of employment when she stepped out of her car onto the temporary parking lot provided by the employing hospital and turned her ankle.
Respondent primarily relied upon Kelty v. Travelers Ins. Co., 391 S.W.2d 558 (Tex. Civ. App.-Dallas 1965, writ ref’d n.r.e.) and Weaver v. Standard Fire Ins. Co., 567 S.W.2d 34 (Tex. Civ. App.-Houston [14th Dist] 1978, writ ref’d n.r.e.). Kelty said that it was a question of fact whether an injury that occurred on the sidewalk at the entrance to the business as Kelty returned from lunch was compensable when the employer exercised control over that area. It stated that employment was not limited to just doing the work but also extended to a reasonable margin of time and space necessary in passing to and from the work area. It also talked of “proximity,” not just the land on which the employer did business. Weaver was decided on the basis of the personal comfort doctrine, although the court, in dicta, indicated that an access issue would have been as, or more, applicable. Weaver slipped in a parking lot on her way to her car after work. The lot was adjacent to the building in which she worked as a Continental Airlines employee, and the court said that the employer’s lease “provided for these spaces” in talking of parking for Continental employees even though the carrier argued that the parking lot was not leased to the employer. Weaver said that parking spaces were part of the “premises.”
The access doctrine as reported in Bordwine, Turner, Rodriguez, Kelty, and TEIA v. Boecker, 53 S.W.2d 327 (Tex. Civ. App.-Dallas 1932, writ refused), which quoted the United States Supreme Court in Bountiful Brick Co. et al v. Giles, does not require that a showing of furtherance of the employer’s business be made. The Rodriguez case, unlike the cases involving road injury, Clauder and Thompson, stressed that a limited group of people would use the access as opposed to looking to whether the general public used it. Kelty acknowledged that the general public used the area where Kelty fell but did not allow that to determine the outcome.
The circumstances of this case raised a question of fact whether respondent was injured in the course and scope of employment. The Appeals Panel considered an injury at lunch to be a question of fact in Texas Workers’ Compensation Commission Appeal No. 92009 (Docket No. redacted) decided February 21, 1992. The hearing officer is the sole judge of the weight and credibility of the evidence. Article 8308-6.34(e) of the 1989 Act. With both the appellant and respondent having argued most of the cases cited herein to her, she correctly decided that the injury was compensable. The evidence sufficiently supports her findings that the injury occurred on the employer’s premises while leaving to go to lunch. Having reached this decision through application of the access doctrine, there is no need to apply the personal comfort doctrine to this set of circumstances.
Finally, appellant says that the hearing officer did not enter an award as to an amount of benefits. Article 8308-6.34(g) of the 1989 Act does require the hearing officer to award benefits. It does not say that the amount must be specified. The hearing officer in her Order awarded medical benefits and income benefits as they become due to respondent and ordered appellant to pay them. Article 8308-4.21 of the 1989 Act provides that income benefits be paid when there is a compensable injury without order from the commission. Testimony of appellant was sufficient to indicate that some period of disability, although not an issue, will accrue relative to the surgery. The parties should now be able to determine the length of that period and apply an average weekly wage based on the wage statement provided at the end of this hearing. If a dispute as to the length of disability or as to average weekly wage develops and a disability determination officer is unable to satisfy both parties as to the amount to be paid, another benefit review conference may be requested as to those issues.
The evidence and the applicable law sufficiently support the findings of fact and the findings of fact support the conclusions of law. The decision is based on sufficient evidence of record and is affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge