Mandes v. Liberty Mutual Holdings

207

Argued and submitted December 2, 2020, affirmed March 9, petition for review

denied July 28, 2022 (370 Or 197)

In the Matter of the Compensation of

Katherine Mandes, Claimant.

Katherine MANDES,

Petitioner,

v.

LIBERTY MUTUAL HOLDINGS -

LIBERTY MUTUAL INSURANCE,

Respondent.

Workers’ Compensation Board

1304012; A170557

507 P3d 747

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

petitioner.

Brad G. Garber argued the cause for respondent. On the

brief were Steven T. Maher, Joslyn Keating, and Tolleson

Conratt Nielsen Maher & Replogle LLP.

Before James, Presiding Judge, and Lagesen, Chief Judge,

and Kamins, Judge.

PER CURIAM

Affirmed.

208 Mandes v. Liberty Mutual Holdings

PER CURIAM

Claimant seeks judicial review of an order on

remand of the Workers’ Compensation Board (the board)

holding that injuries she sustained during a paid break are

not compensable. The board determined that claimant was

engaged in a personal comfort activity at the time of her

injury and was not on a personal mission of her own; how-

ever, the injury did not arise out of employment. We review

the board’s order for substantial evidence and errors of law.

ORS 183.482(8)(a), (c).

On review, the relevant facts are largely uncon-

tested. Claimant works for employer Liberty Mutual as a

nurse case manager. Claimant sustained multiple injuries

when she tripped and fell on an uneven sidewalk adjacent

to employer’s parking lot while on a walk with her coworkers

during a paid 15-minute break. Claimant’s supervisor

acknowledged that employer encouraged physical activity

to promote a healthy workplace. Additionally, employer had

given employees pedometers and shown employees a video

about the benefits of exercise and walking. Further, claim-

ant’s supervisor was aware that employees walked during

lunch breaks but was not aware that employees walked

during the shorter breaks.

Employer denied claimant’s claim for workers’ com-

pensation benefits on the ground that the injury did not

occur in the course and scope of her employment, and the

board upheld the denial. The board reasoned that the “going

and coming” rule applied. The “going and coming” rule holds

that a worker is not in the scope of employment when the

worker leaves employment until the worker returns except

while still in a place under the employer’s control. Because

claimant was returning to work at the time of her injury

and was not on employer’s premises or on premises that are

within the employer’s control, the board found that claim-

ant’s injury is not compensable because the injury did not

occur in the scope of her employment.

On appeal, this court remanded the order to the

board so that it could address whether claimant was engaged

in a personal comfort activity of a type that means that she

still was acting in the course and scope of her employment

Cite as 318 Or App 207 (2022) 209

when she was injured. Mandes v. Liberty Mutual Holdings,

289 Or App 268, 408 P3d 260 (2017) (Mandes I). On remand,

the board found that the “personal comfort” doctrine was

applicable, and the “going and coming” rule inapplicable.

Accordingly, the board found claimant’s activity at the time

of injury had a sufficient connection to her employment that

she was considered still in the course of her employment.

However, the board found that the risk of falling was not

created by claimant’s employment, nor did the work envi-

ronment expose claimant to the risk; therefore, the board

concluded that claimant’s injury did not arise out of her

employment and was not compensable. Claimant has

requested judicial review. We examine for legal error the

board’s finding that, even though the injury occurred while

claimant was engaged in a personal comfort activity, claim-

ant’s injury is not compensable because the injury did not

arise out of her employment.

We recently considered this same issue, arising

under almost identical circumstances, in Watt v. SAIF, 317

Or App 105, 114, 505 P3d 1021 (2022). There we reasoned:

“Whether a claimant’s employment exposed her to a risk of

injury will depend on the circumstances of the injury and

its causal connection 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 partic-

ular route when approaching building). Although employer

encouraged activity during work breaks, employer did not

create circumstances that necessitated that claimant leave

the premises for her personal comfort. Cf. [SAIF Corp. v.]

Chavez-Cordova, 314 Or App [5, 9, 496 P3d 39 (2021)] (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 [v. SAIF], 49 Or App

[23, 29, 618 P2d 1294 (1980)] (lack of restroom on the prem-

ises made it necessary for the worker to leave the prem-

ises 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 of Oregon v. Clark, 133 Or App

712, 894 P2d 499, rev den, 321 Or 429 (1995) (claimant’s

210 Mandes v. Liberty Mutual Holdings

off-premises activity was of indirect benefit to employer’s

business). The walk had no connection to the employment

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.”

Watt, 317 Or App at 114. Our analysis in Watt compels the

same result here.

Affirmed.