354 P.3d 722
Or. Ct. App.2015Background
- Claimant worked as a customer service assistant in U.S. Bank's wealth-management department; she was paid hourly and took two mandatory, paid 15-minute breaks and a one-hour lunch break.
- During breaks, claimant could go to a lobby coffee shop on the floor with coworkers; breaks were not restricted and breaks could be coordinated with another assistant.
- Two to three times weekly claimant went to the lobby coffee shop; about once a week she had coffee in the lobby with a friend; meetings were described as social and personal in nature.
- On the day of injury, claimant took her morning break as instructed, coordinated a coffee meeting with her friend, and then walked in the lobby where she slipped on water and injured herself.
- The board held that the activity during the break was not a recreational social activity and that, even if it were, it was not primarily for personal pleasure; it further found the injury arose out of and in the course of employment.
- The court reversed in part and remanded for reconsideration of the personal comfort doctrine and going-and-coming rule under a proper understanding of those doctrines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claimant engaged in a recreational or social activity | Claimant engaged in a social activity primarily for personal pleasure. | The activity was a paid, mandatory break incidental to employment and not primarily for personal pleasure. | Claimant not engaged in a recreational activity; remand needed for personal comfort analysis |
| Whether the injury arose out of and in the course of employment | Injury occurred during a work-related break and activities connected to employment; within course and scope under unitary test. | Even if social activity is disregarded, injury may fall outside course and scope or be governed by going-and-coming rule. | Remand to determine applicability of personal comfort doctrine before concluding course-and-scope |
| Whether the going-and-coming rule applies and its exceptions | Personal comfort doctrine may apply, allowing injury to occur in course of employment despite being away during a break. | Frazer limits the going-and-coming rule; proximity/duration factors control; parking-lot exception considered. | Remand required to address proper application of going-and-coming rule and personal comfort doctrine |
| Role of the personal comfort doctrine in the course-and-scope inquiry | Personal comfort doctrine should apply here to keep claimant in the course of employment during a break. | Frazer analysis relies on going-and-coming factors; personal comfort is not a separate fallback in this case. | Court adopts need to apply personal comfort doctrine prior to going-and-coming analysis; remand |
Key Cases Cited
- Roberts v. SAIF, 341 Or 48 (Or. 2006) (defines the tripartite test and work-connection framework for compensability)
- Noble I, 232 Or App 93 (Or. App. 2009) (distinguishes social activity on paid breaks from compensable recreation)
- Frazer, 252 Or App 726 (Or. App. 2012) (reconsidered going-and-coming rule and parking-lot exception in light of proper doctrine)
- Mellis v. McEwen, Hanna, Grisvold, 74 Or App 571 (Or. App. 1985) (personal comfort doctrine applied to a break not on employer's premises)
- Hayes, 325 Or 592 (Or. 1997) (articulates in-course-of-employment standard including reasonably incidental activities)
- Jordan v. Western Electric, 1 Or App 441 (Or. App. 1970) (seven-factor test for personal comfort doctrine)
- Clark v. U.S. Plywood, 288 Or 255 (Or. 1980) (employer authorization/acquiescence affects personal comfort applicability)
- Roberts v. SAIF, 196 Or App 414 (Or. App. 2004) (legacy discussion on whether walking on paid break constitutes social activity)