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; however, the injury did not arise out of employment. We review the boards order for substantial evidence and errors of law. ORS 183.482(8)(a), (c).
On review, the relevant facts are largely uncontested. 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 employers parking lot while on a walk with her coworkers during a paid 15-minute break. Claimants 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, claimants supervisor was aware that employees walked during lunch breaks but was not aware that employees walked during the shorter breaks.
Employer denied claimants claim for workers’ compensation 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 employers control. Because claimant was returning to work at the time of her injury and was not on employers premises or on premises that are within the employers control, the board found that claimants 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 when she was injured. Mandes v. Liberty Mutual Holdings, 289 Or. App. 268, 408 P.3d 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 claimants 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 claimants employment, nor did the work environment expose claimant to the risk; therefore, the board concluded that claimants injury did not arise out of her employment and was not compensable. Claimant has requested judicial review. We examine for legal error the boards finding that, even though the injury occurred while claimant was engaged in a personal comfort activity, claimants 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 P.3d 1021 (2022). There we reasoned:
“Whether a claimants 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 claimants personal comfort. Here, the board found that employer did not mandate claimants walk or direct her route. See Hearthstone Manor v. Stuart, 192 Or. App. 153, 84 P.3d 208 (2004) (injury arose out of employment because employer mandated that employees take a particular 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 P.3d 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 P.2d 1294 (1980)] (lack of restroom on the premises made it necessary for the worker to leave the premises to find a restroom). It was claimants 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 P.2d 499, rev. den., 321 Or. 429 [899 P.2d 1197] (1995) (claimants off-premises activity was of indirect benefit to employers business). The walk had no connection to the employment or to the employment environment. In short, the board found, notwithstanding employers encouragement of activity, there was nothing about claimants 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, 505 P.3d 1021. Our analysis in Watt compels the same result here.
Affirmed.
PER CURIAM