Spring 2008 SBH Quarterly Newsletter
PDF FormatThe Emerging View of Injuries Arising out of and in the Course of Employment
Oregon employers have long relied on the notion that for an injury to be compensable, it must arise out of and in the course of employment. In a recent string of decisions, however, the Oregon Court of Appeals and Workers’ Compensation Board have redefined the “work-connection test” to encompass injuries occurring during activity employers might view as entirely personal.
Consider our first example: A tow truck driver employed by a towing company was called to tow a vehicle. Under the terms of a contract, he was required to arrive at the impounded vehicle's location within 30 minutes. Responding to the call, the driver exceeded the posted speed limit. A police officer turned on his patrol car’s overhead flashing lights and pursued the driver. The truck driver phoned his dispatcher, who told him to cooperate with the officer. He agreed to comply.
The driver understood his employer required him to “comply with police officers when they ask for your identification” and that he could lose his job if he did not comply. However, when the officer requested identification, the driver refused, asserting a “sovereign right” to refuse to present his driver’s license. The driver locked his door and rolled up his window. Backup officers ultimately arrived and employed a stun gun to subdue and forcibly remove the driver from the truck. During the subsequent arrest, officers put the driver to the ground and handcuffed him.
Several days after his arrest, the driver sought medical treatment for a cervical disc protrusion, which medical providers linked to the altercation with the police. The driver filed a claim for workers’ compensation benefits. Employer denied the claim, asserting the injury did not arise out of or in the course of employment.
The ALJ and the Board affirmed the employer’s denial. The Court of Appeals reversed, reasoning the driver had not taken a distinct departure from his work by failing to comply with the requests of police officers. He merely violated the manner in which his employer would have preferred him to perform his duties. The Court concluded the injury occurred in the course of employment. Further, finding the risk of proximate interaction with law enforcement officers while responding to a tow call is manifestly a risk related to the driver’s employment as a tow truck driver, the Court reasoned claimant’s injury arose out of his employment. Sisco v. Quicker Recovery, --- Or App --- (2008).
The second scenario arises from another recent Court of Appeals decision. The worker was employed as a home-care provider for an individual with a brain injury. Her job involved cleaning the client’s home, preparing meals, driving the client to appointments and attending a monthly brain trauma class with him. She worked a specific number of hours each month and was paid an hourly wage.
On the date of injury, the worker drove her client a few miles from his home to a grocery story, where she dropped him off to practice shopping independently. She proceeded to visit a relative, about a mile from the grocery story, to make arrangements for the relative to attend an upcoming brain injury class in her place. The worker visited with her relative for about 20 minutes. Thereafter, she carried her relative’s baby to the car. While walking down the front steps, the worker tripped on a tree root and fell. She fractured her right hip and was transported to a hospital via ambulance.
The worker filed a workers’ compensation claim, which the employer denied on the ground that the injury did not arise out of or within the course of her employment. At hearing, the ALJ determined the worker was on a personal errand and not acting in the course of her employment at the time of the injury. The ALJ also found the injury occurred while she was performing an activity that served no purpose for the employer and was not due to a risk related to her job duties. Therefore, the ALJ concluded that the injury did not arise out of the worker’s employment.
Upon finding the worker was a traveling employee, the Board reversed the decision. The Court of Appeals agreed she was a traveling employee and that the side trip was not a distinct departure from employment. The Court noted the trip was something the employer might reasonably contemplate and was not inconsistent with the worker’s performance of her job duties. SAIF v. Scardi, --- Or App --- (2008).
Keeping pace with the Court of Appeals, the Workers’ Compensation Board recently issued a noteworthy “AOE/COE” opinion addressing the work-connectedness of an assault brought on by an incident of pinching. On the date in question, the employer directed the worker to tell a coworker to take a car out for emissions testing. The worker approached and pinched his male coworker’s nipple to get his attention. Taking offense at the worker’s conduct, the coworker ignored the worker’s attempts to apologize. The worker got mad and some minor scuffling occurred until a third coworker intervened.
Later in the day, the worker incited a second altercation with his coworker. As the altercation escalated, the worker pulled a knife from his pocket (normally used for work-related activities) and the coworker reacted by striking the worker’s left forearm with a brush handle. Throughout the day, the worker attempted other incidents of damage to the coworker’s person or property, but was dissuaded by other workers and a supervisor. The worker then sought treatment for forearm pain and was diagnosed with a nondisplaced fracture. He filed a claim for his injury, which SAIF denied. The ALJ set aside the denial.
On appeal, the Board noted that although the worker actively participated in the assault, it was connected to a work assignment and did not amount to a deviation from his customary duties. The Board noted the worker’s offensive pinch was merely his method of communicating a job duty to a coworker. Thus, the subsequent altercation that flowed from this ill-chosen communication remained sufficiently connected to work. Jonathon Brust, 60 Van Natta 447 (2008).
These cases represent an emerging trend in the interpretation of the “work-connection test.” This trend may have significant implications for Oregon employers in future workers’ compensation cases. While these examples are largely fact specific and represent only a small slice of the AOE/COE decisions issued in the last year, it is essential to remember each of the employers in these cases felt the facts supported the denials. When faced with similarly unusual facts, consider contacting your attorney before hastily issuing a denial.
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