Oregon Court of Appeals determines injury during paid break is not compensable
Are we seeing a shift in the Court of Appeals in relation to injuries during paid breaks? Recently, in Watt v. SAIF, the Court of Appeals determined an injury that arose while a worker was engaged in an employer sponsored wellness program was not compensable.
In Mandes v. Liberty Mutual, 318 Or App 207 (2022), the Court of Appeals addressed the question again. Claimant was a nurse case manager for Liberty Mutual. Claimant tripped and fell on an uneven sidewalk adjacent to her employer’s parking lot while on a walk with a coworker during a 15 minute paid break. The employer acknowledged it encouraged its employees to partake in physical activity and had provided employees pedometers and engaged in education regarding the benefits of exercise and walking.
Initially, the Workers’ Compensation Board determined that the going and coming rule applied because claimant had left employment at the time of the accident since she was not on employer premises at the time of the injury. That decision was appealed to the Court of Appeals. The Court of Appeals determined an off-premises activities such as the injury here, can be compensable under the personal comfort doctrine. Personal comfort activities, if allowed or acquiesced in by the employer, are deemed to have a sufficient connection to employment because they are helpful to the employer in that they aid in efficient performance by the employee. The Court of Appeals remanded the case back to the Workers’ Compensation Board to determine if the personal comfort doctrine applied in this matter.
On remand, the Workers’ Compensation Board determined the injury still did not arise out of and in the course of employment because the risk of falling was not created by claimant’s employment nor did her work environment expose her to the risk. The case then went back to the Court of Appeals for a second time to answer the question of whether the personal comfort doctrine applied and therefore, this was a compensable injury.
The Court of Appeals applied the Watt v. SAIF case and determined the claim was not compensable under the personal comfort doctrine. The Court noted that although the employer encouraged activity and exercise, the employer did not mandate where the employees walked nor did it create circumstances that required the claimant leave the premises for the personal comfort of walking. As in Watts, the court noted that the choice to walk off premises was a personal choice and not an employment duty or incidental to an employment duty.
Historically, it has appeared that injuries that occur during paid breaks are compensable. The analysis has always been very fact based. However, the recent rulings in Mandes and Watt, indicates that there may be a shift in the Courts regarding whether an injury arose out of and in the course and scope of employment if it occurred during a paid break. If you have any questions regarding whether an off-premises injury or an injury during a break is compensable, please do not hesitate to contact me at 503-595-6107 or .
Posted by Megan Vaniman.
