Andrews v. Tektronix, Inc.

• Decision Date: 09 May 1996
• Citation: 915 P.2d 972,323 Or. 154
• Court: Oregon Supreme Court
• Parties: In the Matter of the Compensation of Brian W. Andrews, Claimant, Brian W. ANDREWS, Petitioner on Review, v. TEKTRONIX, INC., Sedgwick James & Co., Associated Plumbing & Saif Corporation, Respondents on Review. WCB 93-08329, 93-05174; CA A85441; SC S42504.

Page 972

915 P.2d 972

323 Or. 154

In the Matter of the Compensation of Brian W. Andrews, Claimant,

Brian W. ANDREWS, Petitioner on Review, v. TEKTRONIX, INC., Sedgwick James & Co., Associated Plumbing &

Saif Corporation, Respondents on Review.

WCB 93-08329, 93-05174; CA A85441; SC S42504.

Supreme Court of Oregon.

Argued and Submitted Jan. 3, 1996.

Decided May 9, 1996.

On review from the Court of Appeals. ^*

James L. Edmunson, Eugene, argued the cause for petitioner on review. With him on the brief was James Francesconi, Portland.

Michael O. Whitty, Special Assistant Attorney General, Salem, argued the cause for respondent on review SAIF Corporation as insurer of Associated Plumbing. James W. Moller, Special Assistant Attorney General, Salem, filed the brief. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Deborah Sather, Portland, waived oral argument for respondents on review Tektronix, Inc., and Sedgwick James & Co.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and DURHAM, JJ. ^**

GILLETTE, Justice.

In this workers' compensation case, employer instructed claimant to avoid heavy lifting on the job. Claimant was injured when he fell (or slipped) while carrying a heavy piece of equipment at a job site. The Workers' Compensation Board denied compensability, concluding that claimant's violation of his employer's instructions placed his injury outside the course and scope of claimant's employment. The Court of Appeals affirmed that decision, and claimant petitioned for review by this court. We allowed the petition to decide whether and when an employee's failure to follow an employer's instructions may bar compensation of an ensuing injury. We hold that such instructions did not create a per se bar to recovery here.

Claimant had a history of employment-related back injuries. He first injured his back in 1983, while employed by Tektronix, Inc. He received workers' compensation benefits for that injury. That claim was closed in 1986. Claimant reopened the claim on two separate occasions, claiming aggravation of the original injury.

In May 1992, claimant's present employer, Associated Plumbing, hired him to purchase and pick up equipment and other supplies, deliver parts to job sites, and to act as a plumber's assistant. In October 1992, he told his supervisor about his prior back injuries and his concerns that his back problems ultimately might pose a threat to his job. His supervisor told him at that time that lifting was not an essential part of his job and that he should not engage in heavy lifting in the future. The supervisor also instructed Associated Plumbing's main supplier that, when claimant came to pick up supplies, the supplier, rather than claimant, should load them onto Associated Plumbing's truck.

In March 1993, claimant was dispatched to a newly constructed restaurant to deliver some parts to a coworker who was installing plumbing there. When claimant arrived, his coworker was away at lunch. While claimant awaited his coworker's return, an employee of a coffee company approached him and asked if he would assist in carrying a 200-pound espresso machine into the restaurant. Claimant agreed and, as indicated, suffered an injury to his back while engaged in that task.

SAIF, Associated Plumbing's insurer, denied responsibility for, and the compensability of, the injury. Shortly thereafter, Tektronix, apparently responding to the possibility that the injury might be deemed another aggravation of claimant's 1983 injury at Tektronix, also issued a denial.

Claimant sought a hearing before a workers' compensation referee. After hearing the evidence, the referee concluded that, under the totality of the circumstances, claimant's back injury arose out of and in the course of his employment with Associated Plumbing and was, therefore, compensable. The referee stated in part:

"While the claimant's employer in this case would not have condoned the specific activity claimant was engaged in on the day of injury, it is clear from the testimony of claimant, Mr. Scovil and claimant's employer that it is a practice and custom among the trades to voluntarily assist each other when loading and unloading. Claimant was expected to receive help when he delivered heavy hot water heaters to the job sites and Mr. Scovil testified that he expected others to help him when he was delivering heavy equipment.

" * * * * *

"Given the testimony at hearing regarding the custom and practice of assisting noncoworkers, I conclude that the activity was an ordinary risk of claimant's employment[.]"

The referee also concluded that claimant's 1992 injury was distinct and separate from the 1983 Tektronix injury and, therefore, that Associated Plumbing, rather than Tektronix, was responsible.

On SAIF's request for review, the Workers' Compensation Board reversed. The Board first stated that Associated Plumbing had prohibited claimant from lifting heavy equipment and that claimant had violated that restriction by helping to carry the espresso machine. The Board then identified the following test, which is drawn from Professor Larson's treatise on workers' compensation law, as the appropriate rule for determining when an injury that results from an employee's failure to follow the employer's instructions is compensable:

"When misconduct involves a prohibited overstepping of the boundaries defining the ultimate work to be done by the claimant, the prohibited act is outside the course of employment. But when misconduct involves a violation of regulations or prohibitions relating to the method of accomplishing that ultimate work, the act remains within the course of employment."

Arthur Larson, 1A Workmen's Compensation Law § 31.00, 6-10 (1995) (emphasis in original).

Applying that rule to its finding that claimant had violated his employer's no heavy lifting instruction, the Board concluded that claimant's injury occurred outside the course and scope of his employment and was, consequently, noncompensable:

"Here, * * *, the employer's prohibition against heavy lifting actually established the boundaries of claimant's ultimate work duties. That is, it contemplated that claimant would perform his usual duties with the exception of those activities that involved heavy lifting. On this record, we conclude that claimant's violation of the employer's heavy lifting rule involved a prohibited overstepping of the boundaries defining his ultimate work. Therefore, we conclude that claimant's injuries occurred outside the course and scope of his employment."

Claimant sought judicial review of that conclusion, as well as the analysis that supported it, in the Court of Appeals. That court affirmed without opinion. Andrews v. Tektronix, 134 Or.App. 628, 894 P.2d 1268 (1995). Claimant now renews his challenges to the Board's reasoning and conclusions here.

It is unfortunate, we think, that the parties in this case, along with the Board and even the legal scholar whose summary of the law the Board relied on, have insisted on referring to the issue presented here in terms of employee "misconduct," a word that carries with it a connotation of blameworthiness or fault. Fault is an idea that has no place in our workers' compensation scheme: Indeed, if our workers' compensation laws stand for anything, it is that fault is irrelevant in determining a worker's entitlement to compensation. See, e.g., Ore-Ida Foods v. Indian Head Cattle Company, 290 Or. 909, 918, 627 P.2d 469 (1981) (under Oregon Workers' Compensation Law, employer is liable for compensation "[w]hether the cause be the fault of the employer, the fault of the worker, the fault of a third person, or the fault of no one"); McDonough v. National Hosp. Ass'n, 134 Or. 451, 460, 294 P. 351 (1930) (right to compensation "is not dependent upon any negligence or wrongful act of the employer but is based wholly upon the fact of employment").

It would be foolish, of course, to dismiss an otherwise legitimate analytical rule purely on the basis of the terminology that it employs. If, despite that terminology, the rule actually carried out the intention of the legislature with respect to entitlement to workers' compensation, we could not say that the Board was wrong in embracing it. If, on the other hand, the rule served to import into the workers' compensation scheme a concept--fault--that the legislature has rejected as irrelevant to that scheme, or was otherwise incompatible with the legislature's intent with regard to compensability, we could not allow it, or any decision that relied on it, to stand.

The essential legislative statement regarding entitlement to workers' compensation is found at ORS 656.005(7)(a). ¹ To be entitled to workers' compensation under that provision, an injured worker need only establish that his or her injury arose "out of and in the course of employment." See also Clark v. U.S. Plywood, 288 Or. 255, 259, 605 P.2d 265 (1980) ("All that a claimant must prove is that the injury arose 'out of and in the course of employment.' ").

We previously have described ORS 656.005(7)(a) as setting out "two elements of a single inquiry[.]" Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 366, 867 P.2d 1373 (1994). One element, the requirement that the injury occur "in the course of employment," concerns the time, place, and circumstances of the injury. Id. The other requirement, that the injury "arise out of" the worker's employment, examines the causal connection between the injury and the employment. Id. Although both elements must be evaluated, neither is dispositive: Ultimately, they merely serve as analytical tools for determining whether, "in light of the policy for which [that] determination is to be made[,]" the connection between the injury and the employment is sufficient to warrant compensation. Rogers v. SAIF, 289 Or. 633, 642, 616 P.2d 485 (1980). ²

In particular factual...