U.S. Bank v. Pohrman, 272 Or App 31 (2015), the Court of Appeals case that determined an injury suffered while an employee is on break can be compensable, lives on in recent Board cases.
In Angelina Cox, 68 Van Natta 792, the employer required all employees to take two paid 15-minute rest breaks during the work day. Employees could do what they wished during these breaks. Claimant often took walks during her break. On the day of her injury as she returned from a walk, she slipped and fell at the entrance to the building her employer rented space.
Employer argued the going and coming rule applied. Under the going and coming rule, an injury is generally not compensable if it occurs on the way to or from work off employer controlled premises. It also applies to breaks during the work day if the worker leaves work during the break. The Board noted claimant took the walks for pleasure and that the injury did not occur on employer controlled premises. Nonetheless, the Board determined she was not walking for personal purposes because the employer required paid breaks and knew she regularly walked for pleasure. This made her activity incidental to her employment. Therefore, the Board determined she had not left work when she sustained her injury and the going and coming rule did not apply.
Relying the Pohrman the Board determined her injury arose out and in the course of employment. The Board found her injury compensable because it occurred during work hours as she was entering the building when returning after a paid break. The injury arose out of a risk to which her employer exposed her to.
Given cases such as Pohrman, the Board’s decision is not a surprising one. The Board did emphasize Cox should not be interpreted as a determination that every injury occurring during a paid break is per se compensable. As in every case, compensability needs to be determined by evaluating all of the factors in particular case.
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