Watt v. SAIF

105

Argued and submitted October 8, 2020, affirmed January 20, 2022

In the Matter of the Compensation of

Lori C. Watt, Claimant.

Lori C. WATT,

Petitioner,

v.

SAIF CORPORATION

and DHS CAF Field Services,

Respondents.

Workers’ Compensation Board

1603651; A168345

505 P3d 1021

Claimant seeks judicial review of an order of the Workers’ Compensation

Board (board) upholding SAIF’s denial of her claim for a hand injury, which

occurred during an off-premises walk during a paid break, when claimant fell

after tripping over a sidewalk crack. The board determined that claimant’s

injury occurred during a personal comfort activity that was within the course of

her employment but that it did not arise out of the employment. Claimant assigns

error to that determination, contending that, because the board found that

claimant’s injury occurred during a personal comfort activity, the board erred

in separately analyzing the “arising out of” prong of the unitary work-connection

test. SAIF cross-assigns error to the board’s determination that claimant’s hand

injury occurred during the course of her employment. Held: The Court of Appeals

concluded that the personal comfort doctrine relates to the “in the course of”

prong of the unitary work-connection test; thus, the board did not err in sep-

arately addressing the “arising out of” prong. The court held that the board’s

finding that there was nothing about claimant’s employment that exposed her to

the risk of being injured by a cracked sidewalk during an off-premises walk was

supported by substantial evidence, and that that finding supported the board’s

conclusion that claimant’s injury did not arise out of her employment. In view of

that conclusion, the court did not address SAIF’s cross-assignment of error.

Affirmed.

Julene M. Quinn argued the cause and filed the briefs for

petitioner.

Beth Cupani argued the cause and filed the briefs for

respondents.

Before DeHoog, Presiding Judge, and Mooney, Judge, and

DeVore, Senior Judge.

106 Watt v. SAIF

DeHOOG, P. J.

Affirmed.

Cite as 317 Or App 105 (2022) 107

DeHOOG, P. J.

Claimant seeks judicial review of an order of the

Workers’ Compensation Board (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 employ-

ment. 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), (c). We conclude that the board did not err and

therefore affirm.

Claimant works at a desk job for employer and par-

ticipates 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 side-

walk 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 compo-

nents 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 com-

pensable.” Krushwitz v. McDonald’s Restaurants, 323 Or 520,

525-26, 919 P2d 465 (1996) (describing unitary approach).

The “in the course of” prong refers to the time, place, and

108 Watt v. SAIF

circumstances of the injury. Fred Meyer, Inc. v. Hayes, 325

Or 592, 598, 943 P2d 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 ful-

filling 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.

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 P3d 669, rev den, 337 Or 669

(2004).

This case involves an application of the “personal-

comfort doctrine,” under which a claimant may be compen-

sated for injuries that occur during activities that are inci-

dental 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 P2d 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 deter-

mined by a test which asks: Was the conduct expressly or

impliedly allowed by the employer?” Id. at 267.

The personal-comfort doctrine has been extended

to off-premises activities. In Jordan v. Western Electric,

1 Or App 441, 463 P2d 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

Cite as 317 Or App 105 (2022) 109

on the employment connection,1 and the reasoning of courts

of other jurisdictions, we concluded that the claim was com-

pensable. We were persuaded by the rationale 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 cer-

tain 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 (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 P2d 619 (1967) (inju-

ries 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 P2d

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

1

The seven Jordan factors are:

“(a) Whether the activity was for the benefit of the employer * * *;

“(b) Whether the activity was contemplated by the employer and

employee either at the time of hiring or later * * *;

“(c) Whether the activity was an ordinary risk of, and incidental to, the

employment * * *;

“(d) Whether the employee was paid for the activity * * *;

“(e) Whether the activity was on the employer’s premises * * *;

“(f) Whether the activity was directed by or acquiesced in by the employer

* * *;

“(g) Whether the employee was on a personal mission of his own[.]”

Jordan, 1 Or App at 443-44 (internal citations omitted).

110 Watt v. SAIF

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. 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 activ-

ities 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.

Although our case law has not always been pre-

cise 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 v. Chavez-

Cordova, 314 Or App 5, 496 P3d 39 (2021) (stating that the

claimant’s injury occurred during personal-comfort activ-

ities and therefore satisfied “in the course of” prong); see

also Mandes v. Liberty Mutual Holdings, 289 Or App 268,

408 P3d 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 P3d 722, rev den, 358 Or 70 (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 acquies-

cence 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.

Cite as 317 Or App 105 (2022) 111

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 hav-

ing resulted from a “neutral risk,” and therefore not com-

pensable 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 (when risk is neu-

tral, “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 P2d 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 par-

ticular route on her walk. Thus, the board concluded that

claimant’s injury did not arise out of the employment.

On judicial review, claimant asserts that the board

erred in separately addressing the “arising out of” prong,

contending that the board’s determination that claimant’s

injury occurred during a personal-comfort activity satisfied

that element. Employer responds that, as explained previ-

ously, our case law has placed the personal-comfort doctrine

within the “in the course of” prong. Employer asserts fur-

ther that our cases have not eliminated the requirement for

establishing the “arising out of” prong, which tests whether

the injury arises from a risk connected with the nature of

the work or the work environment.

As claimant correctly points out, our earlier opin-

ions addressing the personal-comfort doctrine in the context

of off-premises injuries have said that injuries sustained

during personal-comfort activities are within the employ-

ment, Jordan, 1 Or App at 446 (describing personal-comfort

activities as having a sufficient connection to the employ-

ment); Halfman, 49 Or App at 29 (personal comfort activ-

ities “not a departure from the employment relationship”).

Those opinions did not separately address the “arising out

of” prong and are susceptible to the interpretation that proof

112 Watt v. SAIF

of an injury occurring during a personal-comfort activity

establishes compensability, without a separate analysis of

the “arising out of prong.” See also Mellis v. McEwen, Hanna,

Gisvold, 74 Or App 571, 574, 703 P2d 255, rev den, 300 Or

249 (1985) (holding compensable an off-premises injury

during work break under seven factors set out in Jordan).

But in Norpac Foods, Inc. v. Gilmore, 318 Or 363,

366, 867 P2d 1373 (1994), the court emphasized that the

two prongs of the unitary work-connection inquiry test the

injury’s work connection in different manners and that

each must be evaluated. We are, of course, bound by the

Supreme Court’s opinions, and our recent case law has pur-

sued analysis of the “arising out of” prong in the context

of injuries sustained during personal-comfort activities.

See Chavez-Cordova, 314 Or App at 6-8 (addressing “aris-

ing out of” prong where it had been determined that claim-

ant’s injury occurred during personal-comfort activities and

therefore satisfied “in the course of” prong). We do not inter-

pret our case law as having eliminated the requirement for

proof of the “arising out of” prong when a personal-comfort

activity has been established, and we reject claimant’s sug-

gestion that we should so hold.2 The board did not err in

2

Claimant contends that our references in Mandes and Pohrman to injuries

falling within the “course and scope of employment” necessarily encompass both

the “arising out of” and “in the course of” prongs of the unitary test. The phrase

“course and scope of employment” is currently a part of ORS 656.278, which

defines the compensability of “worsened conditions” resulting from the original

injury after the last arrangement of compensation. The “scope of employment”

standard formerly applied in the occupational disease context under a former

ORS 656.802(1)(a) (An occupational disease is “any disease or infection which

arises out of and in the scope of the employment and to which an employee is

not ordinarily subjected or exposed other than during a period of regular actual

employment therein.”). In SAIF v. Noffsinger, 80 Or App 640, 645, 723 P2d 358,

rev den, 302 Or 342 (1986), we held that the unitary work-connection analysis

from Rogers applies to the “arising out of and in the scope of employment” lan-

guage of the occupational disease statute. ORS 656.802(1)(a) now defines an occu-

pational disease as “any disease or infection arising out of and in the course of

employment.” Claimant is correct that, historically, an injury that was within the

“scope of employment” equated to an injury that was covered under the Workers’

Compensation Act. See, e.g., Slaughter v. SAIF, 60 Or App 610, 654 P2d 1123

(1982) (addressing whether traveling employee’s activities were within the scope

of employment or coverage under the Act). But parties and the appellate courts

also frequently and, perhaps, imprecisely, have used the phrase “course and

scope” of employment conjunctively, to describe the “in the course of” prong of the

unified work-connection test, as distinct from “arising out of” prong in the context

of an injury claim. See, e.g., Lamm v. Silver Falls Tbr. Co., 133 Or 468, 291 P 375

Cite as 317 Or App 105 (2022) 113

separately evaluating whether claimant’s evidence satisfied

the “arising out of” prong.

In view of our conclusion that the board did not err

in separately addressing the “arising out of” prong, claim-

ant asserts that the board erred in determining that her

injury did not arise out of her employment. 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 per-

sonal to claimant. See Phil A. Livesley Co., 296 Or at 29-30

(categorizing employment risks as employment-related, per-

sonal, or neutral). An injury resulting from a neutral risk is

compensable when “the conditions of employment put claim-

ant in a position to be injured.” Panpat v. Owens-Brockway

Glass Container, 334 Or 342, 350, 49 P3d 773 (2002).

(1930) (equating “course” and “scope” of employment); Clark, 288 Or at 265 (“If an

act is within the course and scope of employment, and arises therefrom, reason-

ableness of the employee conduct is irrelevant.”); Bowers v. Mathis, 280 Or 367,

370, 571 P2d 489 (1977) (when the “plaintiff was within the course and scope of

his employment, he sustained injuries which arose therefrom”); SAIF v. Sumner,

313 Or App 434, 495 P3d 205 (2021) (rejecting employer’s contention that “board

erred in determining that claimant’s injury arose out of and occurred during

course and scope” of employment); Greenblatt v. Symantec Corp., 287 Or App

506, 514, 403 P3d 439 (2017) (recreational activity that otherwise might “arise

out of and in the course and scope of the employment” under ORS 656.005(7)(a)

is not compensable if it is subject to exclusion under ORS 656.005(7)(b)(B)); Mills

v. The Boeing Co., 212 Or App 678, 680, 159 P3d 375 (2007) (employer’s letter

denied that claimant had “sustained a compensable injury or occupational dis-

ease arising out of and in the course and scope of your employment”); Cervantes

v. Liberty Northwest Ins. Corp., 205 Or App 316, 318, 134 P3d 1033 (2006) (in

rejecting claim insurer wrote that injury “did not arise out of and in the course

and scope of your employment”); Liberty Northwest Ins. Corp. v. Nichols, 186 Or

App 664, 64 P3d 1152 (2003) (affirming board’s order holding that the activity of

eating the candy while working was “within the course and scope” of claimant’s

employment); McTaggart v. Time Warner Cable, 170 Or App 491, 504, 16 P3d 1154

(2000), rev den, 331 Or 633 (2021) (equating “scope” of employment with “course”

of employment); Proctor v. SAIF, 123 Or App 326, 330, 860 P2d 828 (1993) (a

person who has the status of a traveling employee “is continuously within the

course and scope of employment while traveling,” except when it is shown that

the person has “engaged in a distinct departure on a personal errand”). We reject

claimant’s suggestion that our references in Mandes and Pohrman to the “course

and scope” of employment implicitly encompassed both the “in the course of” and

“arising out of” prongs and obviated the need to address the “arising out of” prong

in the context of a claim involving the personal-comfort doctrine. The Supreme

Court’s case law requiring separate analysis of the “in the course of” and “arising

out of” prongs is controlling and, to the extent that Mandes and Pohrman might

be understood to obviate the need to address the “arising out of” prong when it

is determined that a claimant was engaged in a personal comfort activity, we

disavow that interpretation.

114 Watt v. SAIF

Claimant asserts that, in view of the board’s conclusion that

her personal-comfort activity brought her within the course

of her employment, the activity must be viewed as a work-

related condition to which claimant’s employment exposed

her.

Claimant’s proposed analysis would render the

analysis of the “arising out of” prong superfluous. Whether

a claimant’s employment exposed her to a risk of injury will

depend on the circumstances of the injury and its causal con-

nection to the employment, whether or not the activity was

for the claimant’s personal comfort. Here, the board found

that employer did not mandate claimant’s walk or direct

her route. See Hearthstone Manor v. Stuart, 192 Or App 153,

84 P3d 208 (2004) (injury arose out of employment because

employer mandated that employees take a particular route

when approaching building). Although employer encouraged

activity during work breaks, employer did not create circum-

stances that necessitated that claimant leave the premises

for her personal comfort. Cf. Chavez-Cordova, 314 Or App at 9

(a requirement that claimant stay on the work site during

breaks and an absence of water created need for claimant to

bring his own beverage); Halfman, 49 Or App at 29 (lack of

restroom on the premises made it necessary for the worker

to leave the premises to find a restroom). 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. See First Interstate Bank v. Clark, 133 Or

App 712, 894 P2d 499, rev den, 321 Or 429 (1995) (claim-

ant’s off-premises activity was of indirect benefit to employ-

er’s business). The walk had no connection to the employ-

ment or to the employment environment. In short, the board

found, notwithstanding employer’s encouragement of activ-

ity, 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.

The board’s findings are supported by substantial

evidence, and the board’s conclusion from those findings that

the conditions of claimant’s employment did not put claim-

ant in a position to be injured during an off-premises walk

is supported by substantial reason. We therefore affirm the

board’s determination that claimant’s injury did not arise

Cite as 317 Or App 105 (2022) 115

out of her employment and its order upholding SAIF’s denial

of the claim.3

Affirmed.

3

In view of our disposition, we do not address SAIF’s contention on cross-

assignment that the board erred in determining that claimant’s injury occurred

during a personal comfort activity.