Freightliner Corp. v. Arnold

919 P.2d 1192, 142 Or. App. 98, 1996 Ore. App. LEXIS 830
CourtCourt of Appeals of Oregon
DecidedJuly 3, 1996
Docket93-04313; CA A86953
StatusPublished
Cited by12 cases

This text of 919 P.2d 1192 (Freightliner Corp. v. Arnold) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freightliner Corp. v. Arnold, 919 P.2d 1192, 142 Or. App. 98, 1996 Ore. App. LEXIS 830 (Or. Ct. App. 1996).

Opinion

*100 LANDAU, J.

Employer seeks review of an order of the Workers’ Compensation Board (Board) holding that claimant’s workers’ compensation claim is compensable. We affirm.

The Board found the following facts. Claimant worked for employer, a truck cab manufacturer, as a painter’s helper. His job required regular use of sprayed acid primer and other organic compounds that are capable of causing respiratory irritation. Claimant and other workers did not regularly use respiratory protective equipment while spraying primers in the open work area, which had fresh air ventilation. Claimant’s job also required him to work in close proximity to an enclosed paint booth. He had access to the interior of the booth but was neither trained nor authorized to use it, nor had he been fitted for a fresh air supply mask to be used while inside the booth.

On March 15, 1993, claimant brought a helmet to work. During his shift, he sanded the helmet and prepared it for painting. Employer had a practice of allowing employees to complete personal work during work hours if the nature of the personal work was of the type the employees typically performed on the job and a policy of requiring a work order to do this. Claimant and his supervisor, Allen, spoke briefly about the helmet while claimant was sanding it during a break. Allen told claimant to burry up and to do the work on claimant’s own time. Between that break and the lunch break that followed, claimant painted the helmet with acid primer. While doing so, claimant did not wear a respirator. In the course of spraying the primer, claimant shot a burst of primer that surrounded him with a cloud of spray exceeding by four times his normal exposure to acid spray.

Claimant then obtained permission from a coworker to use the paint booth and related equipment to finish painting the helmet. He used the coworker’s equipment, including the coworker’s respirator, which did not fit well, and he completed the painting on his next break. He returned to his regular work and completed painting one or two more truck cabs before leaving.

*101 On the way home, claimant began experiencing chills. Other symptoms developed during the night. The next day, he sought medical treatment. His physician authorized modified work without exposure to hydrocarbon fumes. Employer denied his claim for workers’ compensation benefits.

The Board set aside the denial. The Board concluded that claimant had established that his occupational disease claim arose out of and in the course of his employment and that his work-related exposures were the major contributing cause of his respiratory condition. In evaluating whether the claim arose out of and in the course of employment, the Board cited the unitary work-connection test articulated by the Supreme Court in Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994), but it also discussed the facts in the light of the seven factors we listed in Mellis v. McEwen, Hanna, Gisvold, 74 Or App 571, 574, 703 P2d 255, rev den 300 Or 249 (1985). The Board found that claimant’s activities in sanding, priming and painting his own motorcycle helmet did not benefit employer and that claimant had failed to obtain employer’s permission to work on his helmet with employer’s equipment. Nevertheless, the Board also found that employer had acquiesced in claimant’s use of employer’s equipment to sand and prime the helmet and that the use of employer’s equipment for personal projects was typically allowed with permission during regular work hours. It further found that claimant’s exposure to various irritating gases was an ordinary risk of his work with sanding and priming equipment and that some exposure to paint spray from the painting booth also was a risk associated with his work. The Board also found, however, that the same could not be said of claimant’s own use of the painting equipment, which was not an ordinary part of his job. The Board finally noted that claimant’s activities took place on employer’s premises and were paid for by employer. The Board then concluded as follows:

“Considering all the above factors, without any one factor being dispositive, we are persuaded that claimant’s activities in sanding and priming his helmet did arise out of his employment. We note in particular that although *102 claimant’s work on his helmet was a personal mission, we conclude that the employer acquiesced in its employees’ activities on personal projects, at least to the extent that those activities were part of the employee’s regular dutiesU”

As to medical causation, the Board found that the testimony of employer’s own physician, Dr. Montanaro, established that claimant’s work-related exposures were the major contributing cause of claimant’s need for medical treatment. The Board acknowledged that Montanaro used the term “material” cause in his opinion. Nevertheless, it concluded that, because Montanaro had identified no other causes of claimant’s need for treatment, it is clear that the gravamen of his testimony was that the “major” contributing cause of the need for treatment was claimant’s work-related exposure.

On review, employer first assigns error to the Board’s conclusion that claimant’s occupational disease arose out of and in the course of employment. Employer argues that the Board applied the wrong legal standard when it evaluated the facts in the light of the seven factors described in our opinion in Mellis. According to employer, the exclusive test for determining whether a claim arises out of and in the course of employment is the unitary work-connection test the Supreme Court set forth in Norpac Foods. Claimant argues that it was not reversible error to have applied the analysis described in Mellis. We agree with claimant.

For an injury or occupational disease to be compensable, it must “aris[e] out of and in the course of employment * * ORS 656.005(7)(a). In Mellis, we held that, in determining whether an injury or disease satisfies those statutory requirements, courts should consider seven factors: (1) whether the employment activity was for the benefit of the employer; (2) whether the activity was contemplated by the employer and the employee; (3) whether the activity was an ordinary risk of, and incidental to, employment; (4) whether the employer paid for the activity; (5) whether the activity occurred on the employer’s premises; (6) whether the activity was directed by or acquiesced in by the employer; and (7) whether the employee was on a personal mission. Mellis, 74 Or App at 574.

*103 In Norpac Foods, the Supreme Court explained that ORS 656.005(7)(a) creates a “unitary approach,” in which the “arising out of’ and “in the course of’ references are but two components of a single inquiry:

“Each element of the inquiry tests the work-connection of the injury in a different manner.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

DeBoard v. Meyer
397 P.3d 37 (Court of Appeals of Oregon, 2017)
SAIF Corp. v. Durant
350 P.3d 489 (Court of Appeals of Oregon, 2015)
SAIF Corp. v. DeMarco
349 P.3d 660 (Court of Appeals of Oregon, 2015)
Armenta v. PCC Structural, Inc.
292 P.3d 573 (Court of Appeals of Oregon, 2012)
Enterprise Rent-A-Car Co. v. Frazer
289 P.3d 277 (Court of Appeals of Oregon, 2012)
Griffin v. SAIF Corp.
151 P.3d 165 (Court of Appeals of Oregon, 2007)
Wise v. Brooks Construction Services
2006 SD 80 (South Dakota Supreme Court, 2006)
Columbia Forest Products v. Woolner
34 P.3d 1203 (Court of Appeals of Oregon, 2001)
Clark v. Grinnell Fire Protection
23 P.3d 435 (Court of Appeals of Oregon, 2001)
SAIf Corp. v. Alton
16 P.3d 525 (Court of Appeals of Oregon, 2000)
SAIF Corp. v. Strubel
984 P.2d 903 (Court of Appeals of Oregon, 1999)
Worldmark the Club v. Travis
984 P.2d 898 (Court of Appeals of Oregon, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
919 P.2d 1192, 142 Or. App. 98, 1996 Ore. App. LEXIS 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freightliner-corp-v-arnold-orctapp-1996.