January 2007 SBH Quarterly Newsletter
PDF FormatOregon Court of Appeals WC Case Law Update
For seasonal workers, average weekly wage is determined by the wages
worker earned during the particular weeks actually worked for the employer.
Seasonal employment was recently addressed by the Oregon Supreme Court in
Tye v. McFetridge, Or (December 14, 2006). The worker worked for the
employer off and on over several years. There was no contractual
arrangement, oral or written, that entitled the worker to return to work at
the end of the seasonal layoff or required the employer to offer work. The
court held OAR 436-060-0025(5)(a)(A) applied to seasonal workers when
calculating their average weekly wage.
Personal activity on the worksite but off hours found not compensable.
The Court of Appeals recently addressed an AOE/COE issue. Claimant was
injured when a personal knife he was grinding shattered and a piece flew
into his eye. The employer had permitted claimant to use its grinding
equipment to practice sword and knife making, but only on his own time. The
injury occurred on claimant's day off. The employer was at the shop that
day, however, and had asked claimant to unload an anticipated shipment of
metal, if it arrived while claimant was there. The shipment arrived after
claimant's injury. Although the court held the "arising out of" prong of ORS
656.005(7)(a) was satisfied because the employer had authorized the use of
its equipment, the court found claimant failed to satisfy the "in the course
of" prong based on the facts the injury occurred on claimant's day off, he
was not paid for his time that day, and he was engaged in a personal
activity. Moreover, the court held claimant was not required to remain on
employer’s premises to receive the anticipated shipment of metal. Griffin v. SAIF Corp., Or App (January 24, 2007).
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