Redman Industries, Inc. v. Lang

• Decision Date: 21 August 1997
• Citation: 326 Or. 32,943 P.2d 208
• Parties: In the Matter of the Compensation of Perry A. Lang, Claimant. REDMAN INDUSTRIES, INC., and AIG Claim Services, Respondents, v. Perry A. LANG, Petitioner. WCB 94-11757; CA A89422; SC S43586.
• Court: Oregon Supreme Court

Page 208

943 P.2d 208

326 Or. 32

In the Matter of the Compensation of Perry A. Lang, Claimant REDMAN INDUSTRIES, INC., and AIG Claim Services, Respondents, v. Perry A. LANG, Petitioner.

WCB 94-11757; CA A89422; SC S43586.

Supreme Court of Oregon.

Argued and Submitted March 5, 1997.

Decided Aug. 21, 1997.

David W. Hittle, of Burt, Swanson, Lathen, Alexander, McCann & Smith, Salem, argued the cause and filed the petition on behalf of petitioner on review.

Jerald P. Keene, of Roberts, Reinisch, Mackenzie, Healey & Wilson, P.C., Portland, argued the cause and filed a response on behalf of respondents on review.

KULONGOSKI, Justice.

The issue in this workers' compensation case is whether a claimant's injury is compensable when the injury was caused by an assault by a co-employee at the workplace. We hold that claimant's injury is compensable.

We take the following undisputed facts from the Court of Appeals' opinion. "Claimant, a Caucasian male, worked at employer's plant with [assailant], an African-American, male co-worker. Claimant installed windows on manufactured homes, and [assailant] installed doors. On August 3 or 4, 1994, claimant jokingly called [assailant] a 'watermelon,' which angered [assailant]. On August 4, referring to that or a similar remark, [assailant] told claimant 'don't be playing with me like that.' The next morning, claimant referred to [assailant] as 'watermelon' and, less than an hour later, as 'buckwheat,' 'Kentucky Fried Chicken,' and 'watermelon eatin' fool.' Although [assailant] knew claimant was trying to joke with him, [assailant] became angry and called claimant 'cracker' and another name, possibly 'honkey.'

"[Assailant] remained very upset by claimant's remarks. Within a few minutes, another worker called [assailant] a Spanish name that [assailant] believed was a racial slur. [Assailant] struck that worker. Moments later [assailant] saw claimant talking with an inspector. Assuming he would lose his job for striking the other employee, [assailant] struck claimant at least twice. [Assailant] asked claimant, 'Who's a Toby now?' " Redman Industries, Inc. v. Lang, 142 Or.App. 404, 406, 921 P.2d 992 (1996).

Claimant received medical treatment and filed a workers' compensation claim. Employer denied that claim. An Administrative Law Judge (ALJ) ruled that claimant's injury was compensable. The ALJ found that claimant's injuries arose out of and in the course of claimant's employment and that claimant was not an active participant in the assault. The Workers' Compensation Board (Board) adopted and affirmed the ALJ's order. On employer's petition for judicial review, the Court of Appeals reversed, concluding that claimant's injury did not "arise out of" his employment. Redman Industries, 142 Or.App. at 410, 921 P.2d 992. For the reasons that follow, we reverse the decision of the Court of Appeals.

For an injury to be compensable under the Oregon workers' compensation law, it must "aris[e] out of and in the course of employment." ORS 656.005(7)(a). The phrases "arise out of" and "in the course of" are two elements of a single inquiry into whether an injury is work-related. Fred Meyer, Inc. v. Hayes, 325 Or. 592, 596, 943 P.2d 197, 200 (1997). This is called the "work-connection" test. Id. at 200, 943 P.2d 197. Under that test, both elements must be satisfied to some degree. Id. at 596, 943 P.2d 197 (slip op at 6). However, the two elements need not be met to the same degree. When the factors supporting one element are many, the factors supporting the other may be minimal. Ibid. In this case, it is undisputed that claimant's injury occurred "in the course of" his employment. The question, therefore, is whether the injury "arose out of employment" and, if so, whether there is any other statutory bar to compensation.

We start with the phrase "arising out of" in ORS 656.005(7)(a). In interpreting a statute, this court's task is to discern the intent of the legislature. ORS 174.020; see PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (explaining methodology). In attempting to discern legislative intent, the first level of analysis is to examine the text and context of the statute. Ibid. Text and context include prior case law from this court interpreting the same statutory terms. See State v. King, 316 Or. 437, 446, 852 P.2d 190 (1993) (explaining proposition). Context also includes other related statutes. PGE, 317 Or. at 611, 859 P.2d 1143. If the legislature's intent is clear from text and context, further inquiry is unnecessary. Ibid.

In prior cases interpreting ORS 656.005(7)(a), this court has held that the inquiry into whether an injury "arises out of employment" tests the causal connection between the injury and the employment. Fred Meyer, 325 Or. at 596, 943 P.2d at 200; Norpac Foods v. Gilmore, 318 Or. 363, 366, 867 P.2d 1373 (1994); Clark v. U.S. Plywood, 288 Or. 255, 260, 605 P.2d 265 (1980). A causal connection requires more than a mere showing that the injury occurred at the workplace and during working hours. Norpac Foods, 318 Or. at 368, 867 P.2d 1373; Phil A. Livesley Co. v. Russ, 296 Or. 25, 29, 672 P.2d 337 (1983). A causal connection must be linked to a risk connected with the nature of the work or a risk to which the work environment exposed claimant. Fred Meyer, 325 Or. at 598, 943 P.2d at 201.

In some jurisdictions, courts have required not only that an injury be linked to a risk connected with employment, but also that the risk be "peculiar to the employment" or that the employment "increase[ ] the risk of injury." See, e.g., Sacks v. Industrial Commission, 13 Ariz.App. 83, 474 P.2d 442 (1970). However, this court has "rejected 'the largely obsolete "peculiar-risk" and "increased-risk" considerations' in assessing whether a worker's injury was linked to a risk connected with employment." Fred Meyer, 325 Or. at 601, 943 P.2d at 203 (quoting Livesley, 296 Or. at 31, 672 P.2d 337).

In this case, the Court of Appeals formulated the test as being whether claimant's specific employment tasks " 'created or enhanced' the risk of assault by a coworker." Redman, 142 Or.App. at 408, 921 P.2d 992. In our view, that test, at least in part, simply reformulates the "peculiar-risk"/"increased-risk" inquiry rejected by this court in Livesley and Fred Meyer, and we reject it for that reason. Therefore, we are left to apply the proper test to the circumstances of this case: namely, whether the risk of claimant's injury either resulted from the nature of his work or whether the work environment exposed him to the risk of his injury.

In discussing "risks," this court in Livesley quoted with approval the following from 1 Larson's Workers' Compensation Law § 7.00 at 3-14 (rebound ed. 1997):

"All risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and 'neutral' risks--i.e., risks having no particular employment or personal character. Harms from the first are universally compensable. Those from the second are universally noncompensable. It is within the third category that most controversy in modern compensation law occurs. The view that the injury should be deemed to arise out of employment if the conditions of employment put claimant in a position to be injured by the neutral risk is gaining increased acceptance." Livesley, 296 Or. at 29-30, 672 P.2d 337.

In Livesley, this court then determined that unexplained injuries are a classic example of neutral risks. The court listed, as an example of such a neutral risk, an assault against an employee on the job by an unknown person, when the motive for the assault is unknown but may have been either personal or employment-related. ¹ 296 Or. at 30 n. 6, 672 P.2d 337.

In this case, however, both the identity of the assailant and the motive for the assault are known. The assailant was a co-employee. The motive for the assault was the assailant's anger over being called racially derogatory names, combined with the assailant's belief that he would be fired for having assaulted another co-employee moments earlier and, therefore, that he had nothing to lose by assaulting complainant. Because both the identity and the motive are known, the assault does not fall into the category of neutral risks. Instead, the question is whether an assault under the above-mentioned circumstances constitutes either a risk "associated with the employment," ² which would be compensable, or a risk "personal to the claimant," which would not be compensable.

That specific question still is one of legislative intent. This court has not considered whether the legislature intended to treat an assault by a co-employee on a claimant/employee as one associated with employment or one personal to the claimant. The text of ORS 656.005(7)(a) does not provide an answer. However, ORS 656.005(7)(b)(A) provides context for the inquiry. That statute is an express statutory exclusion to what is compensable under ORS 656.005(7)(a). ORS 656.005(7)(b)(A) provides:

" 'Compensable injury' does not include * * * [i]njury to any active participant in assaults or combats which are not connected to the job assignment and which amount to a deviation from customary duties[.]"

By its terms, that statute excludes from compensability injuries from assaults (1) to an active participant in the assault and (2) when the assault is not connected to the job assignment and amounts to a deviation from customary duties. Unless both of those elements are met, the exclusion does not apply. Because the statute excludes only a subset of the types of injuries from assault that will not be deemed compensable, a logical inference is that the legislature intended other types of injuries from assault to be deemed compensable, so long as they arose out of and in the course of employment.

The parties agree that an injury caused by an assault in the workplace by a...