November 2006 SBH Quarterly Newsletter
PDF FormatOregon WC Case Law Update
Injuries incurred while being an active participant in an assault
after termination found compensable.
It is counter-intuitive for most employers that a worker who is injured
while voluntarily engaging in an assault can have a compensable claim--much
less for a worker who has been terminated. However, the Board found
otherwise in the following case.
The worker had conflicts with coworkers, and on one occasion got into a
“scuffle” where his tooth was knocked out. He later got into an argument
with the same coworker while on a job assignment in Spokane. When he
returned to the employer’s premises, he was terminated. The employee
believed he was terminated because of the incident in Spokane, but the
employer maintained it was due to conflicts with other employees. Directly
after terminating the worker, the employer offered to buy the worker’s tools
back. The worker retrieved a heat gun from his truck and returned to the
employer’s office. A “scuffle” between the two ensued. The worker sustained
injuries and filed a workers’ compensation claim.
The claim was not excluded by ORS 656.005(7)(b)(A). Although the worker was
an active participant in the assault, the subject matter of the assault was
directly related to the employee’s work, i.e. attitude and behavior on the
job. The Board rejected the insurer’s contention that the assault arose out
of the worker’s unhappiness over his termination and was thus unconnected to
his job assignment.
Although the worker was terminated at the time of his injury, he remained
within the course of employment for a reasonable period while winding up his
affairs (retrieving the heat gun). Clyde J. Green, 58 Van Natta 1984
(2006).
Injury sustained while “surfing” a chassis line found compensable,
although conduct violated employer’s policy against horseplay.
Defending claims based on horseplay has always been difficult for employers.
A primary defense is when a worker is injured while engaged in prohibited
behavior with which the employer has not acquiesced. However, as the
following case illustrates, even when employers take all reasonable and
necessary steps to prohibit horseplay, it may not be enough to prevent a
compensable workers’ compensation claim.
The employer had a written policy against “fighting, horseplay, scuffling,
running or throwing things on company premises.” The worker’s job duties as
a production worker included standing on a chassis line that could be
moving. On the day of his injury, the worker was on the chassis line when it
lurched then began moving. He then assumed a “surfing” position, lost his
balance, and fell, injuring his knee. The worker alleged the line “lurched”
causing him to fall. Witnesses testified the line was in motion before he
fell and was “goofing around and acting like he was surfing on the chassis.”
The Board found, “despite the variation in testimony as to what caused the
worker to have his arms out in an effort to maintain his balance,” it was
consistent the worker was in a wide stance with his arms out when he fell.
The Board found this position would be the same if the rail unexpectedly
lurched forward. Therefore, the worker’s job exposed him to the risk of
losing his balance when the chassis was in motion and required him to make
efforts to steady himself by widening his stance and throwing out his arms.
The worker had not significantly departed from his work activities to sever
the relationship between his injury and work duties. Further, even if he was
“surfing” he was still fulfilling work duties, albeit in an unusual manner.
The Board acknowledged that the employer had a policy against horseplay and
did not “acquiesce” in the conduct. However, the employee was not prevented
from working on the chassis while it was moving. His “surfing” did not
constitute such a deviation from his duties because the “surfing” stance
would be similar to the stance if the line indeed had lurched. Eric V.
Orchard, 58 Van Natta 2574 (2006).
Injuries compensable when sustained while driving home after stopping at
the grocery store.
The employer provided company owned trucks deemed for private or restricted
use to some employees in its pest control company. The employer charged a
monthly fee which covered gas, insurance, etc. The worker used the driving
privilege and his use was deemed “private.”
On the day of injury, the employee completed several service calls with a
new technician he was training. He then dropped the technician off, stopped
at the grocery store within a few blocks of his normal route home and
continued to his residence. He was rear-ended while stopped and waiting to
make a turn.
The Board acknowledged that the scope of the worker’s travel duties (within
the Portland metropolitan area) did not rise to the level of those covered
by other traveling employees generally noted in case law. However, because
his work involved regular or frequent travel away from the employer’s
premises, the worker was a traveling employee. The Board also determined his
traveling employee status did not end when he was finished working for the
day.
Whether or not the worker was “on-call,” his injuries would still be
compensable because he was traveling in the employer’s vehicle for which he
was paid a monthly usage fee and provided a gas card. The vehicles were
provided to assist the workers to better perform their assigned duties. The
worker had permission to take the vehicle home and the record did not
indicate he was prohibited from stopping at the grocery store. He was still
subject to the employer’s rules while driving the car, and the vehicle
served as an advertisement for the employer and its services. John E.
Schlosser, 58 Van Natta 2275 (2006).
Temporary disability payments may be terminated seven days after mailing
of MCO letter.
Worker’s attending physician restricted her from working through August 12,
2005. On August 5, 2005, the carrier sent worker a letter advising she was
enrolled in an MCO and to select a physician from the approved MCO list. The
employer argued that the worker became subject to the MCO’s restrictions
three days after the mailing of an MCO enrollment letter pursuant to ORS
656.245(4)(a) and thus not entitled to time loss after that period. The
worker argued a carrier may only terminate temporary disability payments
seven days after mailing of the MCO letter pursuant to ORS 656.262(4)(a).
The Board reasoned that because ORS 656.245(4)(a) applies generally to
medical services and ORS 656.262(4)(i) applies specifically to payment of
temporary disability, worker’s temporary disability did not cease until
seven days after mailing of the MCO letter. Therefore, the worker was
entitled to time loss through August 12, 2005. The employer was entitled to
terminate time loss on August 13, 2005; on that date an MCO physician had
not authorized restrictions. The Board also rejected worker’s contention
that the mailing of the MCO letter by an uncertified claims examiner was
invalid. Jennifer Butters, 58 Van Natta 1952 (2006).
Beware of late processing fees.
If carriers unreasonably resist payment of compensation due, the worker’s
attorney may be entitled to a fee pursuant to ORS 656.382(1). In two recent
Board cases, the issue came up when carriers untimely accepted new or
omitted condition claims. Whether a fee was awarded was very fact specific
and illustrates the need to timely process claims:
The Board ordered an attorney fee for an untimely acceptance of an omitted
or new condition claim pursuant to ORS 656.382(1) for unreasonable
resistance to the payment of compensation. The worker was entitled to a
permanent partial disability award for surgery; thus, there was compensation
due. Darren K. Tirral, 58 Van Natta 2108 (2006).
In a similar case with a different outcome, the Board found an attorney fee
was not due pursuant to ORS 656.382(1), even though the carrier unreasonably
and untimely accepted a new or omitted condition claim. Although the worker
might have been entitled to compensation in the future through vocational
services or a permanent disability award, those entitlements were only
speculative. Daniel S. Murray, 58 Van Natta 2567 (2006).
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