January 2007 SBH Quarterly Newsletter
PDF FormatSocial Activity Defense
The Board found claimant was compensably injured during his unpaid lunch
break while helping a coworker shake a 200-pound lunchroom vending machine
to dislodge an item for another person.
The SBH appellate team is asking the Oregon Court of Appeals to reverse the
Board's decision and find such an activity social in nature and primarily
for the worker's personal pleasure. The Court of Appeals has reviewed
several cases addressing the recreational activity defense, but to date,
none concerning the social activity defense. Our brief follows the approach
utilized by the court in the recreational defense cases by examining
dictionary definitions of "social" and "pleasure." These terms have very
broad definitions which we encourage you to consider when evaluating
compensability.
"Social" encompasses several applications including:
marked by or passed in pleasant companionship with one’s friends or associates * * * taken, enjoyed, or engaged in with friends or for the sake of companionship, forming or having a tendency to form cooperative and interdependent relationships with one’s fellows * * * relating to human society * * * relating to, or concerned with the welfare of human beings as members of society. * * * Enjoyed for its own sake without ulterior motive * * *." Webster’s Third New Int’l Dictionary (unabridged ed 2002);
"Pleasure" is also a term of broad understanding, including:
"INCLINATION, WILL * * * an agreeable sensation or emotion, the excitement, relish, or happiness provided by expectation or employment of something good, delightful or satisfying * * *." Webster's Third New Int'l Dictionary (unabridged ed 2002);
From these definitions, it is clear that “social activity primarily for the
worker’s personal pleasure” includes not only formal company picnics and
parties, but also informal, spontaneous activities in small settings. For
example, in our case, the worker was shaking the vending machine to help his
coworker with a non-work-related task. Obviously, this is a “social
activity” reduced to the simplest terms; it involves a voluntary interaction
with another person, done for its own sake without ulterior motive. The
“personal pleasure” component, also reduced to its simplest terms, requires
nothing more than an act of will or inclination.
In considering this potential defense to compensability, you must examine
the worker’s activity in context of whether there is any work component;
gossiping while working is certainly both social and pleasurable, but would
not support use of the social activity defense if claimant is primarily
working at the same time. Additionally, this defense will defeat
compensability even if AOE/COE is not contested.
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