Watt v. SAIF Corp. (In re Watt)

• Decision Date: 20 January 2022
• Docket Number: A168345
• Parties: In the MATTER OF the COMPENSATION OF Lori C. WATT, Claimant. Lori C. Watt, Petitioner, v. SAIF Corporation and DHS CAF Field Services, Respondents.
• Court: Oregon Court of Appeals

317 Or.App. 105

505 P.3d 1021

In the MATTER OF the COMPENSATION OF Lori C. WATT, Claimant.Lori C. Watt, Petitioner,

v.SAIF Corporation and DHS CAF Field Services, Respondents.

A168345

Court of Appeals of Oregon.

Argued and submitted October 8, 2020.

January 20, 2022

Julene M. Quinn, Albany, argued the cause and filed the briefs for petitioner.

Beth Cupani, Portland, argued the cause and filed the briefs for respondents.

Before DeHoog, Presiding Judge, and Mooney, Judge, and DeVore, Senior Judge.

DeHOOG, P. J.

Claimant seeks judicial review of an order of the Workers’ Compensation Board affirming an order of an administrative law judge and upholding SAIF's denial of her hand injury claim. She assigns error to the board's determination that her injury did not arise out of the employment. SAIF, the workers’ compensation insurance carrier for employer DHS CAF Field Services, cross-assigns error to the board's determination that claimant's hand injury occurred during the course of her employment. The facts are undisputed, and we review the board's order for errors of law, substantial evidence, and substantial reason. ORS 183.482(8)(a) and (c). We conclude that the board did not err and therefore affirm.

Claimant works at a desk job for employer and participates in an employer-sponsored wellness program that encourages employees to move during the day and to take walks on their breaks. Employer's building has a workout room in the basement where employees can exercise during their breaks. Claimant wears a "Fitbit" bracelet linked to employer's wellness program that keeps track of her "steps." Employer pays employees an incentive of $17.50 per month to participate in the wellness program.

During a paid break, claimant took a walk through a residential neighborhood, on a route that she and coworkers regularly use. 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 employer denied. The board upheld that denial.

Before describing the board's analysis, we provide some legal context. A person's injury is compensable if it "aris[es] out of and in the course of employment." ORS 656.005(7)(a). The Supreme Court has held that the "arising out of" and "in the course of" "prongs" are distinct components of a "unitary work-connection approach," under which the court asks whether "the relationship between the injury and the employment is sufficient for the injury to be compensable." Krushwitz v. McDonald's Restaurants, Inc. , 323 Or. 520, 525-26, 919 P.2d 465 (1996) (describing unitary approach). The "in the course of" prong refers to the time, place, and circumstances of the injury. Fred Meyer, Inc. v. Hayes , 325 Or. 592, 598, 943 P.2d 197 (1997). An injury occurs "in the course of" employment if it takes place within the period of employment, at a place where a worker reasonably may be expected to be, and while the worker reasonably is fulfilling the duties of the employment or is doing something reasonably incidental to it. The "arising out of" prong tests the causal connection between the injury and the nature of the work or the work environment. The injury's cause must be linked to a risk connected with the nature of the work or a risk to which the work environment exposes the claimant. Hayes , 325 Or. at 601, 943 P.2d 197.

Although the facts of the two prongs of the unitary work connection test might be present in different degrees, both prongs must be satisfied to some degree. Compton v. SAIF , 195 Or. App. 329, 332, 97 P.3d 669, rev. den. , 337 Or. 669, 104 P.3d 601 (2004).

This case involves an application of the "personal-comfort doctrine," under which a claimant may be compensated for injuries that occur during activities that are incidental to but not directly involved in the performance of the appointed task and that are permitted or acquiesced in by the employer. In Clark v. U.S. Plywood , 288 Or. 255, 266, 605 P.2d 265 (1980), the worker was killed while retrieving his lunch, which he had left to warm atop a hot glue press. In discussing the personal-comfort doctrine in the context of on-premises injuries, the Supreme Court explained that "on-premises injuries sustained while engaged in activities for the personal comfort of the employee can best be determined by a test which asks: Was the conduct expressly or impliedly allowed by the employer?" Id. at 267, 605 P.2d 265.

The personal-comfort doctrine has been extended to off-premises activities. In Jordan v. Western Electric Co. , 1 Or. App. 441, 463 P.2d 598 (1970), the worker, a night-shift employee, was injured when returning to work from a paid coffee break at an off-premises café with another employee and his supervisor. Although there was a vending machine on the premises, the employer had acquiesced in the employees’ practice of leaving the premises for coffee. We said that the case was a close one but, considering seven factors bearing on the employment connection,¹ and the reasoning of courts of other jurisdictions, we concluded that the claim was compensable. We were persuaded by the rational of California Supreme Court Justice Burke, in an opinion affirming the California workers’ compensation board's order holding that a worker's injury while swimming in a canal during a work break was compensable. Burke said that the board's holding was:

"in accord with the ‘personal comfort’ doctrine, under which the course of employment is not considered broken by certain acts relating to the personal comfort of the employee, as such acts are helpful to the employer in that they aid in efficient performance by the employee. *** (Comment, Workmen's Compensation: The Personal Comfort Doctrine (1960)) Wis.L.Rev. 91."

1 Or. App. at 446, 463 P.2d 598 (quoting with approval from State Comp. Insurance Fund v. Workmen's Comp. App. Bd. (Cardoza) , 67 Cal 2d 925, 928, 64 Cal Rptr 323, 434 P.2d 619 (1967) (injuries sustained while swimming in a canal to cool off during a coffee break held compensable)).

In Halfman v. SAIF , 49 Or. App. 23, 29, 618 P.2d 1294 (1980), the worker was an attendant at a Goodwill Industries donation center, where no water or restroom facilities were provided. While on a paid break, the claimant left the premises to find a restroom and buy a beverage. As he crossed a street in the neighborhood, he was struck by a car. We found that the claimant's trip in the neighborhood to find a restroom was contemplated by and benefited the employer. We explained that the claimant's break was not the ordinary type of break that an employee takes on the premises:

"[A] different situation was established by the employer here when it provided no facilities for the use of its employe[e]s in its collection centers. In the situation so created, the risk of injury by automobile in a busy city street which claimant could reasonably have been expected to cross in order to find a restroom and something to drink was an ordinary risk of, and incidental to, that employment."

49 Or. App. at 29, 618 P.2d 1294. We considered the claimant's injury to fall within the personal-comfort doctrine, which we said was based on the rationale that "certain activities by employees are expected and necessary and the conduct of those activities is not a departure from the employment relationship." Id. We determined in Halfman that the injury arose out of and in the course of claimant's employment and that the claim was compensable. Id. at 30, 618 P.2d 1294.

Although our case law has not always been precise in describing where, analytically, the personal-comfort doctrine fits within the unitary-work-connection approach, our most recent opinions have placed it squarely within the context of the "in the course of" prong. See SAIF Corp. v. Chavez-Cordova , 314 Or. App. 5, 496 P.3d 39 (2021) (stating that the claimant's injury occurred during personal-comfort activities and therefore satisfied "in the course of" prong); see also Mandes v. Liberty Mut. Holdings-Liberty Mut. Ins. , 289 Or. App. 268, 408 P.3d 260 (2017) ("Off-premises activities that have been found to be within the course and scope of employment under the personal comfort doctrine have included coffee, lunch, or restroom breaks."); U. S. Bank v. Pohrman , 272 Or. App. 31, 49, 354 P.3d 722, rev. den. , 358 Or. 70, 363 P.3d 501 (2015) (stating that the personal-comfort doctrine may apply "when the worker, although not engaging in his or her appointed work activity at a specific moment in time, still remains in the course of employment and, therefore, has not left work"). In this case, in light of employer's encouragement of fitness and acquiescence in employees walking during their breaks, the board held that claimant's walk was a personal-comfort activity incidental to her employment and therefore satisfied the "in the course of" prong.

But the board then addressed whether the injury arose out of claimant's employment and concluded that it did not. The board characterized claimant's injury as having resulted from a "neutral risk," and therefore not compensable unless the injury was connected to the nature of claimant's job or to a risk to which her work environment had exposed her. See Hayes , 325 Or. at 601, 943 P.2d 197 (when risk is neutral, "arising out of" requirement is satisfied "if the risk of injury results from the nature of his or her work or when it originates from some risk to which the work environment exposes the worker"); Phil A. Livesley Co. v. Russ , 296 Or. 25, 29-30, 672 P.2d 337 (1983) (categorizing employment risks as employment-related, personal, or neutral). The board found that 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—employer had not mandated the walk or directed claimant to follow a particular route on her walk. Thus, the board concluded that claimant's injury did not arise out of the...