U.S. Bank v. Pohrman (In re Comp. of Pohrman)

• Citation: 354 P.3d 722,272 Or.App. 31
• Decision Date: 24 June 2015
• Docket Number: 1101308,A151443.
• Parties: In the Matter of the Compensation of Diane Pohrman, Claimant. U.S. BANK, Petitioner, v. Diane POHRMAN, Respondent.
• Court: Court of Appeals of Oregon

272 Or.App. 31

354 P.3d 722

In the Matter of the Compensation of Diane Pohrman, Claimant.

U.S. BANK, Petitioner

v.Diane POHRMAN, Respondent.

1101308

A151443.

Court of Appeals of Oregon, In Banc.

Argued and Submitted March 14, 2014.

Resubmitted en banc May 6, 2015.

Decided June 24, 2015.

Jerald P. Keene, Portland, argued the cause and filed the briefs for petitioner.

Julene M. Quinn, Albany, argued the cause for respondent. With her on the brief was Kryger Alexander Carlson PC.

Before HASELTON, Chief Judge, and ARMSTRONG, ORTEGA, SERCOMBE, DUNCAN, NAKAMOTO, HADLOCK, EGAN, DeVORE, LAGESEN, TOOKEY, GARRETT, and FLYNN, Judges.

Opinion

EGAN, J.

Employer, U.S. Bank, denied claimant's workers' compensation claim. The administrative law judge (ALJ) upheld that denial. The Workers' Compensation Board (the board) reversed, determining that claimant's activity was “a regular incident of her employment, and was not the type of ‘social’ activity that the legislature intended to exclude from a compensable injury,” and further concluding that the injury arose out of and in the course and scope of employment. In its petition for judicial review of the board's order, employer contends that the board erred in concluding that claimant's injuries satisfied the elements of compensability under ORS 656.005(7)(a) and (7)(b)(B).¹ We agree with the board that claimant was not engaged in a recreational or social activity. However, as we explain below, we reverse and remand to the board for a determination of the applicability of the personal comfort doctrine and the going and coming rule under a proper understanding of those doctrines.

We review the board's findings of fact relating to whether claimant engaged in recreational or social activity primarily for the worker's personal pleasure for substantial evidence; that is, we determine whether the record, viewed as a whole, would permit a reasonable person to make the factual findings that the board made. ORS 656.298(7) ; ORS 183.482(7) ; ORS 183.482(8)(c). If the board's findings are supported by substantial evidence, we do not substitute our judgment for that of the board as to any issue of fact. ORS 183.482(7).

With those standards in mind, we take the facts from the board majority's findings, which the parties do not challenge. Claimant worked as a customer service assistant in employer's wealth-management department, assisting “banking officers” with their clients' business. Claimant was paid hourly and, as part of her regular work day, she took two mandatory, paid 15–minute breaks, and a one-hour lunch break. Employer encouraged and often reminded claimant to take her breaks. She would coordinate her break times with two other assistants so that one of them was always present in the office.

Claimant worked on the sixth floor of the Tower building. The Tower building shares a lobby with the Plaza building. Employer has a nonexclusive right to use the lobby. Employer's rental payment includes a pro rata share of operating costs, which are expenses paid by the landlord for maintaining, operating, and repairing the building (including the cost of supplies and janitorial and cleaning services). The lease also provides employer with a “self-help” provision, giving it the right to set off portions of its rental payment should the landlord fail to perform its maintenance obligations, and contains a waiver by employer to all claims against the landlord for any personal injuries caused by negligent or willful acts by employer or any employee, in or near the Tower or Plaza buildings.

Employer placed no restrictions on where claimant could go or what she could do during her breaks. Employer provided a break room down the hall from claimant's desk, with coffee, tea, creamer, and hot water available for use. Employer knew that claimant and other employees regularly went downstairs to the lobby for their breaks.

Two or three times per week, claimant went to a coffee shop in the lobby during her break. Claimant estimated that she and the other assistants in her department took their breaks at the coffee shop at about the same frequency. Approximately once a week, claimant would have coffee in the lobby with a friend, who also worked for employer. There was no work connection between claimant and her friend, nor were their meetings work related. Both the friend and claimant described their coffee meetings as “social in nature,” stating that they met primarily for their own personal pleasure.

On the day that claimant was injured, she took her morning break at 10:00 a.m., as instructed by her supervisor. Before leaving her desk, she sent her friend an interoffice instant message to coordinate the coffee meeting. As claimant was walking out of the office, one of the banking officers, who was returning from a break, gave her a free coffee voucher that she had gotten from the coffee shop. Claimant accepted the card with the intention of using it that day. She then took the elevator to the lobby to meet her friend. As she crossed the lobby, talking with her friend, claimant slipped on water and fell, injuring herself. She subsequently filed a workers' compensation claim.

Employer denied claimant's claim on the ground that the injury did not occur in the course and scope of her employment. Claimant requested a hearing. The ALJ upheld employer's denial, determining that claimant's injury was not compensable because it occurred while she was engaged in a social activity performed primarily for her personal pleasure, ORS 656.005(7)(b)(B), or, alternatively, that it did not arise out of and in the course and scope of her employment.

The board determined that claimant was not engaged in the type of “social activity” contemplated by ORS 656.005(7)(b)(B) when injured. Specifically, the board concluded that—although claimant and her friend had testified that their meeting was “social in nature” and for “personal pleasure”—because the activity occurred during a paid, mandatory break, claimant's meeting with her friend was a “regular incident of employment and was not the type of ‘social’ activity that the legislature intended to exclude from a compensable injury.” The board further noted that, even if claimant's activity was “social” in nature, it was not persuaded that claimant's activity was performed “primarily” for personal pleasure, because the activity itself was “incidental to the primarily work-related nature of the activity,” namely the paid, mandatory break. Finally, the board concluded that claimant's injury “arose out of” and occurred “in the course of” that employment.²

On review, employer asserts that the injury is per se noncompensable under ORS 656.005(7)(b)(B), because claimant was injured while engaging in a social activity primarily for her own pleasure. We first examine that contention, reviewing the board's legal conclusion for legal error. ORS 656.298(7) ; ORS 183.482(8)(a).

To provide context, we begin with the basic principles involved in determining compensability. ORS 656.005 provides, in relevant part:

“(7)(a) A ‘compensable injury’ is an accidental injury * * * arising out of and in the course of employment * * *[.]

“(b) ‘Compensable injury’ does not include:

“ * * * * *

“(B) Injury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker's personal pleasured [.]”

(Emphasis added.) Thus, to determine whether claimant's injury is compensable, we must first answer three questions: (1) Was claimant engaged in or performing a recreational or social activity? (2) Was claimant injured while engaging in or performing, or as the result of engaging in or performing, that recreational or social activity? (3) Was claimant engaged in or performing the activity primarily for claimant's personal pleasure? Roberts v. SAIF, 341 Or. 48, 52, 136 P.3d 1105 (2006).³

The parties' dispute focuses primarily on the first and third questions. We begin by examining whether the board erred in finding that claimant was not engaged in or performing a recreational or social activity primarily for the worker's personal pleasure.⁴

The parties do not dispute that claimant was not engaged in a recreational activity;⁵ instead, they focus on the social aspect of claimant's activity. Under our precedent, “social activity” means an occupation or pursuit that is “marked by or passed in pleasant companionship with one's friends or associates * * * taken, enjoyed, or engaged in with friends or for the sake of companionship.” Washington Group International v. Barela, 218 Or.App. 541, 546–47, 180 P.3d 107 (2008) (internal quotation marks omitted); Roberts v. SAIF, 196 Or.App. 414, 417–18, 102 P.3d 752 (2004), aff'd, 341 Or. 48, 136 P.3d 1105 (2006).

To determine whether a claimant was engaged in a social activity, we have looked at whether the claimant had a work-related reason for engaging in the activity and whether the activity was “marked by * * * pleasant companionship.” Barela, 218 Or.App. at 546–47, 180 P.3d 107 ; Legacy Health Systems v. Noble, 232 Or.App. 93, 98, 221 P.3d 180 (2009) (Noble I ) (noting that claimant was not engaged in a “social” activity when she was walking alone through a parking lot on a paid break).

With regard to the “type” of activity that the legislature intended to exclude from compensability, we have continued to adhere to the understanding that

“the exclusion for ‘recreational or social activities' [in ORS 656.005(7)(b)(B) ] was a legislative reaction to Beneficiaries of McBroom v. Chamber of Commerce, 77 Or.App. 700, 713 P.2d 1095, rev. den., 301 Or. 240, 720 P.2d 1279 (1986), a case in which this court found compensable the death of a travelling salesman who, on a business trip to Los Angeles, became extremely inebriated and drowned in his hotel's hot tub. Further, we have noted that the typical recreational activity case involves off-the-job group recreational or social activities such as picnics, office parties, or

...