Establishing “Personal Comfort” Activity Is Only Half the Battle, says OR Court
Stressing that the focus of the personal comfort doctrine was to determine if an employee’s actions occurred during the course of the employment, the Court of Appeals of Oregon held a workers’ compensation claimant nevertheless had to show that her injury arose from the employment [Watt v. SAIF Corp., 317 Or App 105, 2022 Ore. App. LEXIS 100 (Jan. 20, 2022), emphasis added]. Accordingly, where an employer maintained a wellness program for its employees, provided a workout room on the premises, and gave financial incentives for its employees to participate, an employee’s injuries sustained during a walk in the neighborhood near the employer’s premises—during a paid break—occurred in the course of the employment. The injuries did not, however, arise from the employment; the employee’s fall on a cracked sidewalk was not a risk of her employment.
Background
Claimant had a “desk job” and participated in an employer-sponsored wellness program that encouraged employees to move about during the day and to take walks on their breaks. The employer’s premises had a workout room in the basement where employees could exercise during their breaks. Claimant wore a “Fitbit” bracelet that was linked to the employer’s wellness program and received an incentive of $17.50 per month for her participation in the program.
During a paid break, Claimant took a walk through a residential neighborhood, on a route that she and coworkers regularly used. Claimant was approximately one block from work when she tripped and fell over a section of cracked sidewalk and injured her hand. Claimant filed a claim, which the employer denied. The board upheld that denial. The board found that the injuries occurred during the course of Claimant’s employment, but did not arise from the employment. It characterized her injury as having resulted from a “neutral risk.” That is to say that the board concluded the risk of injury caused by the cracked sidewalk was not employment-related and that Claimant’s work environment had not placed her in a position to be injured. Thus, the board concluded that Claimant’s injury did not arise out of the employment.
Court of Appeals – Personal Comfort Doctrine
On appeal, the Court of Appeals centered upon an interesting interplay between the “course of employment” and the “arising out of employment” tests. It observed that earlier decisions of the Court had consistently found that personal comfort activities were not a departure from the employment relationship, i.e., that personal comfort activity continued to be within the course of the employment [emphasis my own]. At the board level, however, the employer had argued that showing the activity was within the course of the employment was insufficient; the injured employee must also show that the injuries arose out of the employment.
The appellate court agreed, noting that in Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 867 P2d 1373 (1994), the Oregon Supreme Court had emphasized that while the work-connection inquiry was unitary, the test had two prongs (i.e., the AOE/COE), and that both had to be evaluated. The board had appropriately determined that it wasn’t sufficient, therefore, for Claimant to show that her activity met the personal comfort doctrine; she still had to show that her injury arose from the employment. The court added:
In analyzing the “arising out of” prong, the board correctly characterized the cause of claimant’s injury—the cracked sidewalk—as a “neutral” risk, one that was not employment-related or personal to the claimant [317 Or App at 113].
Claimant’s proposed analysis, said the court, would render the “arising out of” prong superfluous. The court stressed:
Although employer encouraged activity during work breaks, employer did not create circumstances that necessitated that claimant leave the premises for her personal comfort …. It was claimant’s personal choice to take the walk, and the off-premises walk itself was not an employment duty or incidental to an employment duty …. In short, the board found, notwithstanding employer’s encouragement of activity, there was nothing about claimant’s employment that exposed claimant to the risk of being injured by a cracked sidewalk during an off-premises walk [317 Or App at 114].
In as much as the board’s findings were supported by substantial evidence, its decision was affirmed by the Court of Appeals.