Mandes v. Liberty Mutual Holdings , 318 Or. App. 207 ( 2022 )

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.