Beardslee v. Diamond Wood Products

810 P.2d 1352, 107 Or. App. 224, 1991 Ore. App. LEXIS 712

• Court: Court of Appeals of Oregon
• Decided: May 15, 1991
• Docket: WCB 88-10474; CA A64794
• Status: Published

Opinions

DE MUNIZ, J.

Claimant seeks review of a decision of the Workers’ Compensation Board reversing the referee and holding that his injury, sustained in a car accident while on the way to an independent medical exam (IME), is not compensable.

Claimant had filed claims for on-the-job injuries to his back and arm. Employer deferred acceptance or denial of the claims until after an IME, which was scheduled for January 20,1988, at 3:30 p.m. Between 12:30 and 1:30 a.m., January 20, while on his way to Portland from Lebanon for the IME, claimant fell asleep at the wheel and drove his car into a ditch, sustaining the injury at issue. His mother eventually drove him to the IME in Portland. A referee later held that the claims for the back and arm were not compensable. Claimant did not appeal that determination. He contends, however, that he is entitled to benefits for the injury sustained in the car accident.

Claimant attempts to analogize this case to those in which we and the Supreme Court have held, under various circumstances, that, when the injury or need for treatment is a consequence of the compensable injury, it is compensable. In Williams v. Gates, McDonald & Co., 300 Or 278, 709 P2d 712 (1985), the Supreme Court held compensable surgery that was necessary in order to treat the claimant’s compensable condition. In Fenton v. SAIF, 87 Or App 78, 741 P2d 517, rev den 304 Or 311 (1987), we held that injuries sustained en route to a physician’s office for treatment of a compensable injury were a direct and natural consequence of the injury and were compensable. In Wood v. SAIF, 30 Or App 1103, 569 P2d 648 (1977), rev den 282 Or 189 (1978), we held compensable an injury sustained in the course of vocational training necessitated by a work injury. This case is not like those. Claimant’s injury was not a consequence of a compensable injury, but a consequence of an attempt to obtain compensation for a condition that was ultimately determined not to be compensable. The analogy does not work, and those cases do not support a determination of compensability.

Claimant contends, in any event, that the condition is compensable, because it occurred as a result of his employment:

“The trip to participate in the IME was itself in the course and scope of claimant’s employment because he was required to attend the IME as a consequence of his employment relationship. The employer, by and through its agent, the insurer, directed claimant to travel to Portland for the benefit of the employer and as a consequence of claimant’s status as an employee. * * * Even if the circumstances of injury in [the] underlying claim fell outside the employment relationship, the IME itself was part of the employment duties claimant owed to his employer.”

Contrary to claimant’s contention, a worker’s attendance at an IME is not a fulfillment of the obligations of his employment, but a condition of entitlement to workers’ compensation. A worker who refuses to attend an IME risks the loss or suspension of benefits, see ORS 656.325, but does not risk the loss of his job. The IME itself bears no relation to the employment, unless the condition for which it is sought is ultimately determined to be compensable. Here, it was not.

Affirmed.