State v. Spear

767 P.2d 928, 94 Or. App. 677, 1989 Ore. App. LEXIS 26
CourtCourt of Appeals of Oregon
DecidedJanuary 11, 1989
DocketWCB No. 86-02003; CA A46205
StatusPublished
Cited by1 cases

This text of 767 P.2d 928 (State v. Spear) 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
State v. Spear, 767 P.2d 928, 94 Or. App. 677, 1989 Ore. App. LEXIS 26 (Or. Ct. App. 1989).

Opinion

NEWMAN, J.

Petitioner seeks review of an order of the Workers’ Compensation Board that affirmed the referee’s order that claimant’s injury is compensable under ORS chapter 655 and ordered petitioner to pay attorney fees to claimant from the Inmate Injury Fund for services before the Board. Our review is for substantial evidence. ORS 655.525; ORS 656.298(6); ORS 183.482(7) and (8); Armstrong v. Asten-Hill Co., 90 Or App 200, 752 P2d 312 (1988). We affirm.

The referee could have found from the evidence the facts that we state and that the parties do not dispute.1 Claimant is an inmate at the Oregon State Penitentiary. He was employed during the daytime in authorized employment at the Penitentiary Farm Annex. See ORS 655.505(1). The state provided claimant with transportation to and from work. After he had finished work and while he was waiting at a warming hut on the work premises for transportation back to the penitentiary, another prisoner assaulted him. Claimant suffered injuries that required medical treatment.

Claimant filed a claim against the Inmate Injury Fund. The Department of Justice, as adjusting agent, see ORS 655.520, denied the claim on the ground that it was not “proximately caused by” or “received in the course of the authorized employment.” The referee ruled that claimant was entitled to benefits and ordered the Department of Justice to accept the claim and pay compensation. Petitioner appealed, and the Board affirmed.

Petitioner assigns as error that the Board found the claim compensable. ORS 655.510(1)(a) provides in part that an inmate shall receive benefits for injuries

“[w]here the injury is proximately caused by or received in the course of the authorized employment, with or without negligence of the inmate.”

ORS 656.005(7)(a), a part of the Workers’ Compensation Law, however, provides that a “compensable injury” is an accidental injury “arising out of and in the course of employment.” Petitioner argues that that test of compensability [680]*680applies and that claimant’s injury did not “[arise] out of and in the course of employment.” See Rogers v. SAIF, 289 Or 633, 616 P2d 485 (1980). Contrary to petitioner’s argument, nothing in ORS chapters 655 or 656 makes the test for compensability under ORS 656.005(7)(a) applicable to inmate injuries covered by ORS chapter 655.2

Petitioner argues that, in any event, claimant is not entitled to benefits, because the injury did not occur “in the course of the authorized employment.” Under ORS 655.510, however, an injury is compensable if it was “received in the course of the authorized employment” or “is proximately caused by * * * the authorized employment.” The test is disjunctive. Although the referee did not specifically find that claimant’s evidence satisfied either alternative of the test, he applied the test. Petitioner does not assign any error based on the form of the referee’s finding.

We conclude that there is substantial evidence to support a finding that claimant’s injury was “proximately caused by” the authorized employment. As an inmate, he was obliged to work at the farm annex. Because of that work, it was necessary for him to take transportation to and from the penitentiary and to wait for it at a particular place on the work premises, where he was assaulted and injured. The state provided the transportation. The person who assaulted him was another inmate who had also worked that day at the annex and was waiting for the same transportation. The Board did not err in finding that the claim is compensable and that claimant is entitled to benefits for his injury.

Petitioner also assigns as error that the Board ordered it to pay attorney fees from the Inmate Injury Fund for services before the Board. It argues there is no statutory authorization and that, without it, the Board may not award attorney fees. We hold, however, that there is statutory authorization for the fees. In Johnson v. SAIF, 267 Or 299, 516 P2d 1289 (1973), the court allowed attorney fees for services before [681]*681the Board and on review where an inmate ultimately prevailed in a claim for an injury under ORS chapter 655.3

When the court decided Johnson v. SAIF, supra, ORS 655.525 did not refer to former ORS 656.382(2),4 ORS 656.386, or ORS 656.388, which relate to attorney fees. The court stated, however:

“Looking at the statutory scheme as a whole, it seems apparent that the legislature intended to incorporate into the statutes dealing with inmates and mentally retarded minor trainees all of the procedural and remedial rights extended to injured workmen, with certain reservations necessitated by the unique position of the inmate or trainee. An inmate claimant is entitled to the same measure of benefits as an injured workman. This is provided for in ORS 655.515, which reads:
“ ‘If an inmate sustains * * * [a compensable injury ][5] * * * [682]*682benefits shall be paid in the same manner as provided for injured workmen under the workmen’s compensation laws of this state * * *.’
“Similarly, the provision of the Workmen’s Compensation Act for filing claims is made applicable to inmates by ORS 655.520(1):
“ ‘Claims for entitlement to benefits under ORS 655.505 to 655.550 [i.e. Inmate Injury Law] shall be filed by application with the State Accident Insurance Fund in the manner provided for workmen’s claims in ORS 656.001 to 656.794 [i.e.

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

Related

Dept. of Justice v. Spear
783 P.2d 998 (Oregon Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
767 P.2d 928, 94 Or. App. 677, 1989 Ore. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spear-orctapp-1989.