In the Matter of the Compensation of Diane Pohrman, Claimant. U.S. BANK, Petitioner,
Diane POHRMAN, Respondent
Argued and Submitted March 14, 2014
Resubmitted En Banc May 6, 2015
1101308. Workers' Compensation Board.
Reversed and remanded.
Jerald P. Keene argued the cause and filed the briefs for petitioner.
Julene M. Quinn argued the cause for respondent. With her on the brief was Kryger Alexander Carlson PC.
Before Haselton, Chief Judge, and Armstrong, Ortega, Sercombe, Duncan, Nakamoto, Hadlock, Egan, DeVore, Lagesen, Tookey, Garrett, and Flynn, Judges.
[272 Or.App. 32] En Banc
Employer, U.S. Bank, denied claimant's workers' compensation claim. The administrative law judge (ALJ) upheld that denial. The Workers' Compensation Board (the board) reversed, determining that claimant's activity was " a regular incident of her employment, and was not the type of 'social' activity that the legislature intended to exclude from a compensable injury," and further concluding that the injury arose out of and in the course and scope of employment. In its petition for judicial review of the board's order, employer contends that the board erred in concluding that claimant's injuries satisfied the elements of compensability under ORS 656.005(7)(a) and (7)(b)(B). We agree with the board that claimant was not engaged in a recreational or social activity. However, as we explain below, we reverse and remand to the board for a determination of the applicability of the personal comfort doctrine and the going and coming rule under a proper understanding of those doctrines.
We review the board's findings of fact relating to whether claimant engaged in recreational or social activity primarily for the worker's personal pleasure for substantial evidence; that is, we determine whether the record, viewed as a whole, would permit a reasonable person to make the factual findings that the board made. ORS 656.298(7); ORS 183.482(7); ORS 183.482(8)(c). If the board's findings are supported by substantial evidence, we do not substitute our judgment for that of the board as to any issue of fact. ORS 183.482(7).
With those standards in mind, we take the facts from the board majority's findings, which the parties do not challenge. Claimant worked as a customer service assistant in employer's wealth-management department, assisting " banking officers" with their clients' business. Claimant was paid hourly and, as part of her regular work day, she took two mandatory, paid 15-minute breaks, and a one-hour lunch break. Employer encouraged and often reminded claimant to take her breaks. She would coordinate her break times with two other assistants so that one of them was always present in the office.
[272 Or.App. 33] Claimant worked on the sixth floor of the Tower building. The Tower building shares a lobby with the Plaza building. Employer has a nonexclusive right to use the lobby. Employer's rental payment includes a pro rata share of operating costs, which are expenses paid by the landlord for maintaining, operating, and repairing the building (including the cost of supplies and janitorial and cleaning services). The lease also provides employer with a " self-help" provision, giving it the right to set off portions of its rental payment should the landlord fail to perform its maintenance obligations, and contains a waiver by employer to all claims against the landlord for any personal injuries caused by negligent or willful acts by employer or any employee, in or near the Tower or Plaza buildings.
Employer placed no restrictions on where claimant could go or what she could do during her breaks. Employer provided a break room down the hall from claimant's desk, with coffee, tea, creamer, and hot water available for use. Employer knew that claimant and other employees regularly went downstairs to the lobby for their breaks.
Two or three times per week, claimant went to a coffee shop in the lobby during her break. Claimant estimated that she and the other assistants in her department took their breaks at the coffee shop at about the same frequency. Approximately once a week, claimant would have coffee in the lobby with a friend, who also worked for employer. There was no work connection between claimant and her friend, nor were their meetings work related. Both the friend and claimant described their coffee meetings as " social in nature," stating that they met primarily for their own personal pleasure.
On the day that claimant was injured, she took her morning break at 10:00 a.m., as instructed by her supervisor. Before leaving her desk, she sent her friend an interoffice instant message to coordinate the coffee meeting. As claimant was walking out of the office, one of the banking officers, who was
returning from a break, gave her a free coffee voucher that she had gotten from the coffee shop. Claimant accepted the card with the intention of using it that day. She then took the elevator to the lobby to meet her friend. As she [272 Or.App. 34] crossed the lobby, talking with her friend, claimant slipped on water and fell, injuring herself. She subsequently filed a workers' compensation claim.
Employer denied claimant's claim on the ground that the injury did not occur in the course and scope of her employment. Claimant requested a hearing. The ALJ upheld employer's denial, determining that claimant's injury was not compensable because it occurred while she was engaged in a social activity performed primarily for her personal pleasure, ORS 656.005(7)(b)(B), or, alternatively, that it did not arise out of and in the course and scope of her employment.
The board determined that claimant was not engaged in the type of " social activity" contemplated by ORS 656.005(7)(b)(B) when injured. Specifically, the board concluded that--although claimant and her friend had testified that their meeting was " social in nature" and for " personal pleasure" --because the activity occurred during a paid, mandatory break, claimant's meeting with her friend was a " regular incident of employment and was not the type of 'social' activity that the legislature intended to exclude from a compensable injury." The board further noted that, even if claimant's activity was " social" in nature, it was not persuaded that claimant's activity was performed " primarily" for personal pleasure, because the activity itself was " incidental to the primarily work-related nature of the activity," namely the paid, mandatory break. Finally, the board concluded that claimant's injury " arose out of" and occurred " in the course of" that employment.
On review, employer asserts that the injury is per se noncompensable under ORS 656.005(7)(b)(B), because claimant was injured while engaging in a social activity primarily for her own pleasure. We first examine that contention, reviewing the board's legal conclusion for legal error. ORS 656.298(7); ORS 183.482(8)(a).
To provide context, we begin with the basic principles involved in determining compensability. ORS ...