Roberts v. SAIF Corp.

102 P.3d 752, 196 Or. App. 414, 2004 Ore. App. LEXIS 1566
Court of Appeals of Oregon·Decided December 8, 2004·No. 02-07221; A122465·Published·Cited by 6 cases

Opinion

BREWER, C. J.

Claimant seeks review of an order of the Workers’ Compensation Board, contending that the board erred in holding that his injury is not compensable because it occurred during a recreational activity excluded from coverage under ORS 656.005(7)(b)(B). We affirm.

The parties stipulated to the facts, the administrative law judge (ALJ) made findings in accordance with the stipulation, and the board adopted the ALJ’s findings. Claimant, a car salesperson, took a brief spin around employer’s car lot on a coworker’s motorcycle, during work hours but during a “down time,” when no customers were present. Two other employees took a ride on the bike that same day. Claimant was injured when he pulled the motorcycle back into a parking space, and the bike was struck by one of employer’s vehicles being driven by a coworker. Employer considers salespeople to be working when they are on the premises. Claimant had no regularly scheduled breaks and could leave the premises only with employer’s permission. Although salespeople are encouraged to stay busy at their desks when no customers are present, claimant was not specifically prohibited by his supervisor from riding the motorcycle. Claimant testified that there was no work purpose in riding the motorcycle and that the ride was purely for pleasure. The board held that claimant’s injury occurred during a “recreational activity^’ and is excluded from coverage under ORS 656.005(7)(b)(B). Claimant seeks judicial review of that decision. The only question on review is whether the statute applies to the undisputed facts.

The question of the compensability of an injury sustained during a recreational or social activity has typically arisen in the context of cases involving off-the-job group recreational or social activities such as picnics, office parties, or organized or spontaneous sports or games. See, e.g., Colvin v. Industrial Indemnity, 83 Or App 73, 730 P2d 585 (1986) (law firm picnic); Rose v. Argonaut Ins. Co., 77 Or App 167, 711 P2d 218 (1985) (softball game); Richmond v. SAIF, 58 Or App 354, 648 P2d 370, rev den, 293 Or 634 (1982) (benefit basketball game). Before 1987, we analyzed those cases under the two-pronged “arising out of and in the course of employment” [417] test for compensability set forth in Rogers v. SAIF, 289 Or 633, 616 P2d 485 (1980). In making our evaluation, we consulted Professor Larson’s treatise on workers’ compensation law, considering such factors as the location of the recreational activity, whether on or off the employer’s premises; the time of the activity, during, before, or after work hours; the employer’s initiative in organizing the activity; the employer’s contribution to the activity; and the quality and type of benefit derived by the employer. See Richmond, 58 Or App at 357.

In 1987, the legislature enacted the provision, now codified at ORS 656.005(7)(b)(B), which excludes from the definition of compensable injury an “injury incurred while engaging in or performing, or as a result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure.” (Emphasis added.) We address whether an injury is excluded from coverage under ORS 656.005(7)(b)(B) before considering whether the injury arises out of or in the course of the employment. Liberty Northwest Ins. Corp. v. Nichols, 186 Or App 664, 667, 64 P3d 1152 (2003), citing Andrews v. Tekronix, Inc., 323 Or 154, 160-61 n 1, 915 P2d 972 (1996). If the injury occurred during a social or recreational activity primarily for the worker’s personal pleasure, it is per se noncompensable. If it did not occur during such an activity, it must still pass the “arising out of and in the course of employment” test. Thus, only after we have concluded that an injury was not suffered while engaging in a recreational or social activity primarily for the worker’s personal pleasure do we consider whether the injury arose out of and in the course of the employment. Nichols, 186 Or App at 667.

Here, it is undisputed that claimant rode the coworker’s motorcycle primarily for personal pleasure. There is no contention that claimant’s activity of riding the motorcycle was “social.” The only question is whether, as a matter of law, claimant was injured while engaging in a “recreational activity’ excluded from coverage under ORS 656.005(7)(b)(B).

The phrase “recreational activity” is not defined in the statutes; accordingly, we seek to determine its plain, natural, and ordinary meaning. The word “recreational” means [418] “of or relating to recreation.” Webster’s Third New Int’l Dictionary 1899 (unabridged ed 1993). “Recreation” means “the act of recreating or state of being recreated: refreshment of the strength and spirits after toil : DIVERSION, PLAY * * * a means of getting diversion or entertainment * * *[.]” Id. The word “activity” means “an occupation, pursuit, or recreation in which a person is active — often used in pi. business activities> <social activities> * * *[.]” Id. at 22. Based on the common meaning of the phrase “recreational activities,” we conclude that riding the motorcycle was a recreational activity. The remaining question is whether claimant’s injury was incurred while engaging in or performing, or as a result of engaging in or performing, any recreational activity.

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Roberts v. SAIF Corp., 102 P.3d 752, 196 Or. App. 414, 2004 Ore. App. LEXIS 1566 (Or. Ct. App. 2004).

102 P.3d 752 (Roberts v. SAIF Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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