Another apparent trend concerns exercise programs initiated by the employer that include walking or other forms of exercise oil“ the employer’s premises. In Laura Brown, 68 Van Natta 774 (2016), the Workers’ Compensation Board held that a worker injured while participating in an employer-initiated walking program was within the course and scope of the worker’s employment.
The employer did not require, but strongly encouraged participation in its walking program, and organized teams and awarded prizes for individuals and teams based on their levels of participation. Punch cards for these purposes could be earned by walking routes designated by the employer. One of the routes was indoors and within the employer’s leased premises, while the other was outdoors and just off the employer’s premises.
At the time of her injury, the worker was on an unpaid lunch period and was walking on the off-premises route when she stepped in a low spot in the pavement and twisted her knee. The worker indicated that she liked walking and had often walked on breaks at work on her own before the employer’s walking program began. However, she also indicated that she did not like using the routes designated by the employer due to congestion, shoppers, carts, and vehicles, but used them anyway for purposes of the program.
In concluding that the worker’s injury was compensable, the board first addressed whether the worker’s injury was excluded under ORS 656.005(7)(b)(B), the social and recreational activities exclusion (addressed further under a later heading). The board concluded that the injury was not excluded based on a finding that the employer so encouraged and directed the walking activity and the route on which the worker was injured that the worker’s personal reasons for engaging in the activity were secondary to the employer’s reasons for encouraging and directing it. Hence, the board concluded that the worker’s walking activity at the time of the injury was not “primarily for the worker’s personal pleasure.” 68 Van Natta at 777-78.
The board then engaged in the general “arising out of and in the course of” analysis, and found a sufficient work connection under both prongs of that analysis to establish that the walking activity was “incidental” to the worker’s work activity and thus part of her employment. On that basis, the board held that the worker was still at work during her walking activity off the employer’s premises and thus was not subject to the “going and coming” rule. The board also cited the “personal comfort” doctrine, but, in discussing that doctrine, focused more on the employer’s encouragement and direction of the activity than on any refreshment aspect of the walking activity. Id. at 781—82. Accordingly, the board’s invocation of the “personal comfort” doctrine may have been legally unnecessary to its conclusion.
The lesson for employers in this scenario is that the more strongly the employer encourages and organizes an employee exercise program, the more likely its workers are to be covered while engaging in that program, even off premises.