In the course of employment (tie, time, place and circumstances); and
Arising out of employment (Causal link between the injury and the employment)
“Going and Coming” rule specifically precludes compensability of injuries sustained while the employee is traveling to or from work. Krushwitz v. McDonald ’.5′ Restaurants, 323 Or 520, 526 (1996)
HOWEVER! There are a number of exceptions to the “going and coming” rule, one of which is the “personal comfort doctrine
Personal comfort doctrine is applied when certain activities by employees are
Expected and necessary (sanctioned by employer), and
Can be on premises or off the premises of the employer; and
The conduct of those activities would not be a departure from the employment relationship. Halfinan v. SAIF, 49 Or App 23, 29 (1980).
Essentially, look to see if there is a “sufficient connection” to the employment because the actions are “helpful to the employer in that they aid in efficient performance by the employment” Jordan v. Western Electric, 1 Or App 441 , 446—47
Has the employer agreed to or acquiesced to the activities that lead to the injury. Mandes. V. Liberty Mutual, 2890r App 268 (2017).
Examples both Claimant Friendly/Employer Friendly:
Coffee; Jordan v. Western Electric, 1 Or App 441, 446—47 (Slipping on a curb while returning from a lS-minute coffee break)
Lunch; Mellis v. McEwen, Hanna, Griswold, 74 Or App 571 rev den, 300 Or 249 (1985) (Tripping on a leg of a chair while on a break to buy a beverage)
Restroom breaks; Clark v. US. Plywood, 288 OR 255, 260-61 (1980) (“personal comfort” doctrine applies in situations in which the claimant sustains injuries while engaged “in other incidental activities not directly involved with the performance of the appointed task, such as preparing for work, going to or from the area of work, eating, rest period, going to the bathroom, or getting fresh air or a drink of water”).
Fifteen-minute break (paid) and going on a walk; Angelica Cox, 68 Van Natta 792 (2016).
Where the employer does not exercise control about where the claimant goes for a break, and the break is outside the normal ingress/egress to the building, and the employer does not exercise control over the area where claimant falls, it is no longer a personal comfort claim/special errand claim and, therefore, not compensable. Patty Perkins, 56 Van Natta 2173 (2004).
The Pohrman standard, applied in the Mandes decision (2017).
First inquire into the nature of claimant’s activity when she was injured to determine whether it bears a sufficient connection to the employment so that she cannot be considered to have left the course of employment, making the “personal comfort” doctrine applicable and the going and coming rule inapplicable
After making that inquiry, if we determine that claimant has not engaged in a personal comfort activity, but rather was injured while on a personal mission, or if we determine that the personal comfort activity did not bear a sufiicient connection to the employment, then we may consider whether the going and coming rule, or any of the exceptions to that rule, would properly apply.
Seven Jordan/Mellis factors:
Whether the activity was for the benefit of the employer;
Whether the activity was contemplated by the employer and employee either at the time of hiring or later;
Whether the activity was an ordinary risk of, and incidental to, the employment;
Whether the employee was paid for the activity;
Whether the activity was on the employer’s premises;
Whether the activity was directed by or acquiesced in by the employer; and
Whether the employee was on a personal mission of his own.
Examples:
Brooke A. Woodard, 69 Van Natta 266 (2017): The activity of smoking marijuana falls under the personal comfort doctrine. The claimant was on the employer’s premises, the activity was contemplated and acquiesced in by the employer, and claimant was not on a personal mission. Woodard, 69 Van Natta at 270