71 Van Natta 1118 (2019)
In the Matter of the Compensation of JUSTIN WALKER, Claimant
WCB No. 17-05754
Oregon Worker Compensation
October 3, 2019
Glen J
Lasken, Claimant Attorneys
Reinisch Wilson Weier, Defense Attorneys
Reviewing Panel: Members Lanning, Curey, and Wold.
ORDER ON REVIEW
The
self-insured employer requests review of Administrative Law
Judge (ALJ) Martha Brown’s order that set aside its
denial of claimant’s injury claim for a right ankle
condition. On review, the issue is course and scope of
employment.
We
adopt and affirm the ALJ’s order with the following
supplementation.
Claimant
worked as a courtesy clerk for the employer, a grocery store.
(Tr. 6). His job duties included retrieving shopping carts
from the parking lot, taking out garbage, sweeping the store,
and cleaning the store bathrooms. (Id.) He had one
paid ten-minute break per shift. (Tr. 7).
The
employer leased space in the strip mall where the store was
located, but did not own or control the parking lot. (Ex. 1).
The employer did not allow store employees to smoke inside
the store or at the entrance of the store, where they would
be visible to customers. (Tr. 16, 17, 18). Instead, employees
had to smoke in the designated area or elsewhere out of the
view of customers. (Id.)
On
October 29, 2017, claimant left the store during his paid,
ten-minute break. (Tr. 8). He jogged through the parking lot
in front of the store to his friend’s car.
(Id.) However, before reaching the car, he tripped
on a pinecone, injuring his right ankle. (Id.)
Concluding
that the “personal comfort doctrine” applied to
claimant’s break activity, the ALJ concluded that
claimant’s injury “arose out of the course and
scope” of his employment.
We
agree with the ALJ’s determination that
claimant’s injury occurred “in the course of
employment under the “personal comfort” doctrine.
See Mandes v. Liberty Mut. Holdings-Liberty Mut.
Ins., 289 Or.App. 268 (2017); see also U.S. Bank v.
Pohrman, 272 Or.App. 31, rev den, 358 Or. 70
(2015); Katherine Mandes, [71 Van Natta 1119] 71 Van
Natta 240 (2019); Donna L. Combs, 71 Van Natta 169
(2019). We supplement the ALJ’s order to address the
employer’s argument that claimant’s injury did
not “arise out of his employment.
A
worker’s injury is deemed to “arise out of
employment “if the risk of injury results from the
nature of his or her work or when it originates from some
risk to which the work environment exposes the worker.”
Fred Meyer, Inc. v. Hayes, 325 Or. 592, 601 (1997).
In this context, risks are generally categorized as
employment-related risks, which are compensable, personal
risks, which are noncompensable, or neutral risks, which may
or may not be compensable, depending on the situation.
Phil A. Livesley Co. v. Russ, 246 Or. 25, 29-30
(1983). Neutral risks, which have no particular employment or
personal character, are compensable only if employment
conditions put the worker in a position to be injured by the
neutral risk. Id. at 30. Thus, the “arising
out of prong of the unitary “work-connection”
test is not satisfied unless the cause of claimant’s
injury was either “a risk connected with the nature of
the work” (i.e., an employment-related risk)
or “a risk to which the work environment exposed
claimant” (i.e., a neutral risk). See
Legacy Health Sys. v. Noble, 250 Or.App. 596, 603
(2012); see also Hayes, 325 Or. at 601.
Here,
we find that the risk of tripping in the store’s
parking lot while on a break was a neutral risk. Therefore,
the injury is compensable only if it resulted...
