Clark v. U.S. Plywood

• Decision Date: 02 January 1980
• Docket Number: No. 76-6736,76-6736
• Citation: 288 Or. 255,605 P.2d 265
• Parties: In the Matter of the Compensation of the Beneficiaries of George CLARK, Deceased, Petitioner, v. U. S. PLYWOOD, Respondent. ; CA 10832; SC 26109.
• Court: Oregon Supreme Court

Page 265

605 P.2d 265

288 Or. 255

In the Matter of the Compensation of the Beneficiaries of

George CLARK, Deceased, Petitioner, v. U. S. PLYWOOD, Respondent.

No. 76-6736; CA 10832; SC 26109.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 1, 1979.

Decided Jan. 2, 1980.

[288 Or. 256-A] Benton Flaxel, North Bend, argued the cause for petitioner. With him on the brief was Flaxel, Todd & Nylander, North Bend.

Keith D. Skelton, Portland, argued the cause and filed a brief for respondent.

PETERSON, Justice.

This case involves a widow's claim for Workers' Compensation benefits. Her husband, George Clark, was killed while retrieving his lunch, which he had left to be warmed atop a hot glue press. The referee denied compensation. The Workers' Compensation Board reversed and ordered acceptance of the claim. The Court of Appeals reversed and denied recovery, ¹ and we granted review to consider the extent to which personal comfort activities of a worker will be deemed to arise out of and within the course of employment. ORS 656.005(8)(a).

THE FACTS

Clark was employed at a Gold Beach plywood manufacturing plant. He worked a shift which began at 11 p. m. and ended at 7 a. m. During this shift Clark was paid for two 10-minute breaks and a 20-minute lunch period. The lunchrooms provided by the employer contained a table and vending machines, but no facilities for heating food brought by the employees.

On the night of Clark's death, he had brought a lunch which needed to be warmed. About two hours before his lunch break, he approached the assistant operator of a hot glue press and asked him to place Clark's food container on the top of the press to be warmed. The assistant press operator had done this before for Clark, and testified that two or three times a week he placed food on the press for other employees. The hot glue press was about 100 feet from Clark's work station. Judge Joseph described the hot glue press in the Court of Appeals opinion. ²

"The machine consists of two large units, the press and the carriage, each about 20 feet high and 15 feet square. When the units are separated, there is a gap approximately three feet wide between them. Chains on each end of the gap prevent one from entering the gap while the machine is in operation. The chains are connected to a fail-safe device; when either of the chains is unhooked, the machine is inoperable. The press is capable of bonding about 25 sheets of plywood at a time, the sheets lying parallel to the floor. The carriage is mounted on tracks which connect it to the press. The major component of the carriage is the charger. It mechanically feeds the press with the wood to be bonded into sheets and is loaded by the operator and his assistant. It is activated by a switch on the operator's control panel. When activated, the carriage moves along the tracks to the press, closing the gap. The charger nests with the shelves of the press. The wood is pushed from the charger into the press by a device which sweeps from the back of the charger to the end nested with the press. Part of that feeding device is a beam which sweeps across the top of the charger. It was that beam which crushed the worker."

Normally the press operator would himself remove a safety chain blocking the three-foot alley between the press and charger, climb the face of the charger, and place the food on a hot ledge on the top of the press. The chain was connected to an electrical switch, and its removal prevented the charger from moving toward the hot press. A sign stating "DANGER, KEEP AWAY" hung from the chain. On this occasion, however, the assistant press operator was eating, and suggested that Clark could climb up the charger as easily as he could. The operator testified that he told Clark to drop the chain and the charger would not move. Clark did so, climbed the face of the charger, and placed his food on the ledge.

When Clark returned to retrieve his lunch, the charger had just been loaded and the press operator and his assistant were getting ready to move the load into the press. The assistant press operator noticed that Clark was standing at the foot of a ladder which led to the top of the charger and heard him mention something about retrieving his lunch. The assistant press operator testified that he "didn't pay that much attention" to Clark because he had to go around to the back of the press to straighten panels. Nor could the press operator see Clark, because his control panel was on the opposite side of the charger. Clark possibly climbed the ladder, intending to ride the carriage over to the hot press whereupon he would reach over and retrieve his lunch. The press operator activated the charger and Clark was killed when the charger moved across the top of the carriage, crushing Clark between the charger and a stationary cross beam on the front of the carriage.

APPLICABLE WORKERS' COMPENSATION STATUTES

A "compensable injury," under ORS 656.005(8)(a), is "an accidental injury * * * arising out of and in the course of employment * * * resulting in disability or death * * * whether or not due to accidental means." Contributory fault or contributory negligence is no defense to a claim for compensation benefits, unless due to "the deliberate intention of the worker." ORS 656.156(1). All that a claimant must prove is that the injury arose "out of and in the course of employment." The worker has the burden of proving that the injury arose out of and in the course of employment. Ballou v. Industrial Accident Com., 214 Or. 123, 328 P.2d 137 (1958); Butts v. State Ind. Acc. Comm., 193 Or. 417, 239 P.2d 238 (1951). ³

The compensation act provides broad coverage, the boundaries of which are determined by the meaning of "arising out of and in the course of employment." As with most difficult questions, the delineation of the limits of the coverage is anything but knife-edge clear. But as in all difficult cases (this being one such case) the delineation must be made.

The Court of Appeals correctly characterized the issue as being " * * * whether the employee's death arose out of and in the course of his employment, as required by ORS 656.005(8)(a)." ⁴

MEANING OF "ARISING OUT OF AND WITHIN THE COURSE OF EMPLOYMENT"

The words "in the course of employment" have been repeatedly defined as relating "to the time, place, and circumstances under which the accident takes place." ⁵ The words "arising out of" normally refer to the requirement of a "causal connection between the employment and the accident." ⁶

The following example will illustrate the difference: A machinist working at a lathe has an attack of appendicitis. The attack occurred in the course of his employment since it occurred while he was on the job performing his normal activities. On the other hand, it did not arise out of his employment. There was no causal connection between the work and the attack. ⁷

COMPENSABILITY OF ON-PREMISES INJURY CLAIMS

Most claims for on-premises injuries ⁸ fall within one of two general categories:

Category 1. Injuries sustained while performing one's appointed task;

Category 2. Injuries sustained while engaged in other incidental activities not directly involved with the performance of the appointed task, such as preparing for work, going to or from the area of work, eating, rest periods, going to the bathroom, or getting fresh air or a drink of water.

Injuries sustained by a worker in doing the appointed task are normally compensable, absent self-inflicted injury. Contributory fault of the employee is no defense. Even when a worker is performing an appointed task in a prohibited manner, injuries are normally compensable. If a worker operates a machine with the guard removed, or fails to stop a machine before reaching into it, or oils machinery while it is running, injuries so sustained are normally compensable even though the specific act causing the injury was prohibited. 1A A. Larson, The Law of Workmen's Compensation § 31.21 (1979).

Many premises-related injuries are also normally compensable even though the worker is not engaged in the appointed task. A worker who trips over a step while walking to the bathroom on the employer's premises, or who falls on the way to the company locker room to change clothes, or who trips while going to get a breath of fresh air to escape the heat of working quarters all normally are entitled to compensation. See 1A A. Larson, Supra, §§ 21.10 to 21.84.

Most courts allow recovery for injuries sustained while engaged in recreational activities during lunch hours or rest periods, if the activity is a normal or accepted one. As to such claims, Professor Larson states:

" * * * When seeking for a link by which to connect an activity with the employment, one has gone a long way as soon as one has placed the activity physically in contact with the employment environment, and even further when one has associated the time of the activity somehow with the employment. This done, the exact nature and purpose of the activity itself does not have to bear the whole load of establishing work connection, and consequently the employment-connection of that nature and purpose does not have to be as conspicuous as it otherwise might. * * *.

" * * * It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment * * *."

Lunchtime injuries are normally compensable, if they occur on the premises and arise from premises hazards such as building collapse, tripping on a hole in the floor, or falling on slippery steps. 1A A. Larson, Supra, § 21.20.

In Lamm v. Silver Falls Tbr. Co., 133 Or. 468, 277 P. 91, 286 P. 527, 291 P. 375 (1930), we held that a lumber camp worker returning from a holiday in Silverton was covered by the Workmen's Compensation law when he sustained injury while riding on the company-owned train back to the logging camp. We quoted from Cudahy Co. v....