Liberty Northwest Ins. Corp. v. Nichols

• Decision Date: 06 March 2003
• Citation: 186 Or. App. 664,64 P.3d 1152
• Court: Oregon Court of Appeals
• Parties: In the Matter of the Compensation of Dwight D. Nichols, Claimant. LIBERTY NORTHWEST INSURANCE CORPORATION and Rhythm & Blooms, Petitioners, v. Dwight D. NICHOLS, Respondent.

64 P.3d 1152

186 Or. App. 664

In the Matter of the Compensation of Dwight D. Nichols, Claimant.

LIBERTY NORTHWEST INSURANCE CORPORATION and Rhythm & Blooms, Petitioners, v. Dwight D. NICHOLS, Respondent.

00-06244; A115872

Court of Appeals of Oregon.

Argued and Submitted October 11, 2002.

Decided March 6, 2003.

David O. Wilson argued the cause and filed the briefs for petitioners.

Mustafa T. Kasubhai argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and KISTLER and SCHUMAN, Judges.

SCHUMAN, J.

While at work, claimant broke his tooth on an employer-supplied snack. He filed a claim for workers' compensation benefits. Employer's insurer denied the claim on the ground that claimant's injury was not sufficiently work related. An administrative law judge (ALJ) disapproved the denial and ordered insurer to accept the claim and provide benefits. The Workers' Compensation Board (board) affirmed. Insurer seeks judicial review, arguing (as it did below) that the injury was not compensable because it resulted from a recreational or social activity. Because the facts are undisputed, we review only for errors of law. ORS 183.482(8). We affirm.

Claimant was a delivery driver for employer, a florist whose central office and warehouse are just north of Eugene. Claimant's job duties included setting up and making deliveries from the warehouse to employer's retail outlets, as well as procuring and delivering supplies. Occasionally, employer would tell claimant to drive to a nearby store, purchase snacks, and bring them back for everyone to eat while working. At other times, an employee at one of employer's retail outlets would provide snacks.

On the day of the injury, claimant was working with other employees in the warehouse setting up the next day's deliveries. At employer's request, and while "on the clock," claimant went to an adjacent house owned by employer, picked up some snacks owned by employer, and divided them among the other workers. Claimant continued to work while eating his snack, a piece of chewy cinnamon candy called a "Hot Tamale." As he was chewing, the candy pulled out a filling, and he cracked his tooth. Claimant immediately received dental care. He later applied for workers' compensation benefits but insurer denied them because the injury "did not arise out of and in the course and scope of [his] employment." Claimant requested a hearing. The ALJ concluded that the injury did occur within the course and scope of the employment.¹ He ordered insurer to accept the claim and pay appropriate benefits. Insurer appealed to the board, which adopted and affirmed the ALJ's order as written.²

The compensability of claimant's injury depends on the outcome of a two-step analysis under ORS 656.005(7)(a) and (b). In part, those subsections provide:

"(7)(a) A `compensable injury' is an accidental injury * * * arising out of and in the course of employment * * *[.]

"(b) `Compensable injury' does not include:

"* * * * *

"(B) Injury incurred while engaging in or performing * * * any recreational or social activities primarily for the worker's personal pleasure[.]"

Subsection (b) "states grounds for exclusion that are additional to those that are inherent in the primary definition found in paragraph (7)(a)." Andrews v. Tektronix, Inc., 323 Or. 154, 160-61 n. 1, 915 P.2d 972 (1996) (emphasis in original). Thus, if the injury was incurred during a social or recreational activity, it is per se noncompensable; if it was not incurred during a social or recreational activity, it must still pass the "arise out of and in the course of employment" test. Id. Before the ALJ, the board, and this court, insurer makes only one argument: Claimant's injury was not compensable because it was "incurred while engaging in or performing * * * [a] recreational or social activit[y] primarily for the worker's personal pleasure." As insurer concisely insists, "Claimant's tooth was fractured * * * by a social Hot Tamale." The board found that claimant's injury did not occur during a social or recreational activity and then proceeded to the second inquiry, concluding that the injury arose out of and in the course of employment.³ We agree. In concluding that claimant did not incur his injury in a recreational or social activity, the board reasoned:

"Cases in which the specific question has been considered have included injuries occurring during recreation times, office parties, basketball games during a scheduled break or lunch hour, and even `horseplay.' The cases all seem to clearly focus upon some intentional recreational or social pursuit. In the instant case, the activity of eating candy was never touted as being recreational, nor as specifically social, either. I view the activity as being more an ordinary part of an average working day such as taking a drink of water or sitting quietly at one's desk for a moment of rest at some time other than a regularly-scheduled break."

Insurer, relying on Webster's Third New Int'l Dictionary (unabridged ed 1993), insists that the board misinterpreted the terms "recreational" and "social." "Recreational," it argues, means "of or relating to recreation," and "recreation" is "refreshment of the strength and spirits after toil." Id. at 1899. "Social" means "marked by or passed in pleasant companionship with one's friends or associates. * * * [T]aken, enjoyed, or engaged in with friends or for the sake of companionship." Id. at 2161.

On the facts of this case, we fail to see how the dictionary definitions help insurer. Claimant's injury did not occur "after toil," and nothing in the record indicates that it was "marked by pleasant companionship" or "for the sake of companionship." Rather, the injury occurred as a result of an activity claimant engaged in while working. He was not traveling to or from work, on a break, or at lunch.

That fact points to a more fundamental flaw in insurer's argument. In determining whether claimant was engaged in a recreational or social activity when he was injured, insurer presumes that the "activity" is eating. That presumption is not correct. The relevant activity is eating while working. Our only case interpreting the current version of ORS 656.005(7)(b)(B) illustrates that point. In Kaiel v. NCE Cultural Homestay Institute, 129 Or.App. 471, 879 P.2d 1319, rev. den., 320 Or. 453, 887 P.2d 792 (1994), the claimant was a teacher's assistant hired to supervise a group of summer-school students from Japan and teach them English. The itinerary for the students included a number of specific activities, including English instruction, cultural exchanges, and outings. On one outing, the students had free time at an amusement park for optional activities at their own expense. They decided to ride bumper cars. The claimant was required to stay with the students at all times. Instead of watching them from outside the ride, she rode the bumper cars herself and, during the ride, fractured a finger. Id. at 473-74, 879 P.2d 1319.

The board, emphasizing that riding bumper cars was an optional activity, concluded that the injury was not compensable because the claimant was "injured while engaged in a recreational activity primarily for her personal pleasure * * *." 129 Or.App. at 477, 879 P.2d 1319. We reversed, stating, "[The] claimant's continuing role as a supervisor was not optional." Id. The claimant, in other words, was still on the job; she had not stopped working and then started a separate and discrete recreational or social activity. We noted that the claimant continued to perform the duties she was hired to perform (supervising students) as she participated in the "optional" activities. Id. at 478, 879 P.2d 1319. The fact that the claimant chose to engage in recreation while contemporaneously supervising students did not transform supervising students into a recreational activity "primarily for the worker's personal pleasure." ORS 656.005(7)(b)(B). The question that this court addressed was not whether the claimant had been injured by a recreational bumper car; it was whether, at the time of the injury, she was engaged in a recreational activity primarily for her personal pleasure. The...