§ 8.3 Exceptions to Compensability

• Library: Workers' Compensation (OSBar) (2023 Ed.)

§ 8.3 EXCEPTIONS TO COMPENSABILITY

§ 8.3-1 Statutory Exceptions to Compensability

§ 8.3-1(a) Exclusions from the Definition of Compensable Injury

ORS 656.005(7)(b) provides that the term compensable injury does not include the following:

(A) Injury to any active participant in assaults or combats that are not connected to the job assignment and that amount to a deviation from customary duties;

(B) Injury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker's personal pleasure; or

(C) Injury the major contributing cause of which is demonstrated to be by a preponderance of the evidence the injured worker's consumption of alcoholic beverages or cannabis or the unlawful consumption of any controlled substance, unless the employer permitted, encouraged or had actual knowledge of such consumption.

Before proceeding to an analysis of the two-part unitary work-connection test (see § 8.2-1), the court first determines whether one of the statutory exceptions to compensability applies. If an exception applies, the analysis stops, and the claim is not compensable. Roberts v. SAIF Corp., 196 Or App 414, 417, 102 P3d 752 (2004), aff'd, 341 Or 48, 136 P3d 1105 (2006).

These exclusions are discussed in § 8.3-1(a)(1) to § 8.3-1(a)(3).

§ 8.3-1(a)(1) Participant in Assault or Combat

The term compensable injury does not include injury to "any active participant in assaults or combats that are not connected to the job assignment and that amount to a deviation from customary duties." ORS 656.005(7)(b)(A).

"When the motivation for an assault by a co-employee is an event or circumstance pertaining to the assailant and the claimant that originated entirely separate from the workplace, and the only contribution made by the workplace is to provide a venue for the assault," the assault does not "arise out of" employment. Redman Industries, Inc. v. Lang, 326 Or 32, 40, 943 P2d 208 (1997). ORS 656.005(7)(b)(A) "excludes from compensability injuries from assaults (1) to an active participant in the assault and (2) when the assault is not connected to the job assignment and amounts to a deviation from customary duties. Unless both of those elements are met, the exclusion does not apply." Redman Industries, Inc., 326 Or at 38 (emphasis in original) (finding an injury compensable when the claimant was assaulted by a coworker after exchanging racially derogatory remarks, noting that the normal work environment exposes employees to each other, based solely on their employment status).

If a claimant shows that the claimant's "assault-related injuries arose out of and in the course of his employment, the burden shifts to the employer to prove that the exception [in ORS 656.005(7)(b)(A)] applies." Donald Converse, 50 Van Natta 1830, 1832-33 (1998), aff'd without opinion, 160 Or App 700, 981 P2d 402, rev den, 329 Or 318 (1999) ("to the extent an assault or combat arises out of a quarrel whose subject matter is connected or related to the claimant's job assignment, a claimant's assault-related injuries would fall outside the statutory exclusion" (footnote omitted)). The dissent would have applied the exclusion, noting that

the intent of the legislature when it enacted the language found in the statute was to exclude from compensability injuries to active participants in workplace assaults or combats unless the injured worker's job assignment entailed assaultive or combative conduct and, under the facts of any given case, the assault or combat was not a deviation from customary duties.

Donald Converse, 50 Van Natta at 1836 (Moller dissenting). The dissent believed that the majority's construction conflicted with the only direct precedent on the issue, Kessen v. Boise Cascade Corp., 71 Or App 545, 693 P2d 52 (1984).

In Daniel G. Sepulveda, 57 Van Natta 1087, 1091 (2005), aff'd, 209 Or App 227, 147 P3d 369 (2006), the claimant was injured when he put his foot underneath his supervisor's truck to stop the supervisor from driving away so they could continue a work-related argument. The board concluded that "even assuming that the non-physical verbal confrontation between claimant and his supervisor amounted to an assault or combat, the subject matter involved was the employer's discipline of claimant for tardiness"; accordingly, the incident was "directly work-related." Daniel G. Sepulveda, 57 Van Natta at 1091; see Vladimir D. Lazarenko, 50 Van Natta 2117 (1998) (the claimant was injured when his supervisor punched him after a heated argument regarding the claimant's quitting time).

In Jonathan W. Brust, 60 Van Natta 447 (2008), the claimant tweaked his coworker's nipple to get his attention regarding a work matter, and an altercation ensued after the claimant apologized to the coworker and the coworker failed to accept the apology. A short time later, the claimant pulled a knife on the coworker, who then hit claimant with a brush handle. The board declined to apply the assault exclusion, concluding that the claimant's injury was connected to his job duties because the altercation arose out of a specific work assignment that the claimant was directed to complete. Jonathan W. Brust, 60 Van Natta at 449-50.

§ 8.3-1(a)(2) Recreational Activity Primarily for Personal Pleasure

ORS 656.005(7)(b)(B) excludes from the definition of compensable injury those injuries that are "incurred while engaging in or performing . . . any recreational or social activities primarily for the worker's personal pleasure." See Liberty Northwest Insurance Corp. v. Nichols, 186 Or App 664, 667, 64 P3d 1152 (2003) (if the injury occurs during a social or recreational activity it is per se noncompensable).

Three questions must be considered: (1) whether the worker was engaged in or performing a "recreational or social" activity; (2) whether the worker was injured "while engaging in or performing, or as a result of engaging in or performing" that activity; and (3) whether the worker engaged in or performed the activity "primarily for the worker's pleasure." Roberts v. SAIF Corp., 341 Or 48, 52, 136 P3d 1105 (2006).

In Nichols, the employer occasionally told the claimant, a delivery driver, to drive to a nearby store, purchase snacks, and bring them back for everyone to eat while working. At the employer's request, the claimant went to an adjacent house owned by the employer, picked up some snacks owned by the employer, and divided them among the other workers. While continuing to work, the claimant cracked his tooth while eating his snack, a piece of candy. Nichols, 186 Or App at 666. The court held that the exclusion did not apply, reasoning that "[p]rimarily, he was setting up a delivery for his employer. Incidentally, he was eating a piece of candy at the time." Nichols, 186 Or App at 669; accord Sedgwick Claims Management Services v. Norwood, 275 Or App 718, 722-23, 365 P3d 671 (2015) (a claimant injured during a walk to drop off her employer's mail was not engaged in the activity "primarily" for her personal pleasure, even though she enjoyed the activity of walking); Brooke A. Woodard, 69 Van Natta 266, 268-69 (2017).

In Roberts v. SAIF Corp., 196 Or App 414, 416, 102 P3d 752 (2004), aff'd, 341 Or 48, 136 P3d 1105 (2006), the claimant, a car salesperson, was injured when he was struck by one of his employer's vehicles on a car lot while riding a coworker's motorcycle. The employer considered salespeople to be working when they were on the premises, and the claimant had no regularly scheduled breaks. The board held that the claimant's injury was excluded from coverage under ORS 656.005(7)(b)(B). The court of appeals affirmed, "agree[ing] with the board's conclusion that, at the time of the injury, the activity in which claimant was engaged was recreational and primarily for his personal pleasure." Roberts, 196 Or App at 419.

In Adam J. Greenblatt, 66 Van Natta 1696 (2014), aff'd, 287 Or App 506, 403 P3d 439 (2017), the board applied the exclusion. The claimant

injured his right knee when he jumped up to touch the backboard of a basketball hoop during an afternoon break with co-workers. The basketball court was located in a courtyard adjacent to the building where claimant worked. The employer owned and maintained the courtyard, and employees, including a supervisor, played basketball in the courtyard during breaks.

Adam J. Greenblatt, 66 Van Natta at 1696. The board concluded that the claimant was still engaged in a recreational activity primarily for his personal pleasure when he was injured. The injury was part and parcel of the recreational activity of playing basketball. The board looked to the reason the claimant engaged in or undertook...