Roberts v. Saif Corp.

• Decision Date: 15 June 2006
• Docket Number: (Agency No. 02-07221; CA A122465; SC S52078).
• Citation: 136 P.3d 1105,341 Or. 48
• Parties: In the Matter of the Compensation of Clifton R. Roberts, Claimant. Clifton R. ROBERTS, Petitioner on Review, v. SAIF CORPORATION and Butler Ford, Inc., Respondents on Review.
• Court: Oregon Supreme Court

Page 1105

136 P.3d 1105

341 Or. 48

In the Matter of the Compensation of Clifton R. Roberts, Claimant.

Clifton R. ROBERTS, Petitioner on Review, v. SAIF CORPORATION and Butler Ford, Inc., Respondents on Review.

(Agency No. 02-07221; CA A122465; SC S52078).

Supreme Court of Oregon.

Argued and Submitted June 22, 2005.

Decided June 15, 2006.

On review from the Court of Appeals.^*

Robert F. Webber, of Black, Chapman, Webber, Stevens & Peterson, Medford, argued the cause and filed the petition for petitioner on review.

David L. Runner, Appellate Counsel, SAIF Corporation, Salem, argued the cause and filed the brief for respondents on review.

Before CARSON, Chief Justice,^** and GILLETTE, DURHAM, RIGGS, DE MUNIZ,^*** BALMER, and KISTLER, Justices.

KISTLER, J.

A coworker backed a company pickup into claimant while claimant was riding a motorcycle at work. Claimant filed a workers' compensation claim. Employer resisted the claim on the ground that a statutory exclusion for injuries incurred "while engaging in or performing * * * any recreational or social activit[y] primarily for the worker's personal pleasure" applied. See ORS 656.005(7)(b)(B) (stating exclusion).¹ The Workers' Compensation Board held that the exclusion applied, and the Court of Appeals affirmed. Roberts v. SAIF, 196 Or.App. 414, 102 P.3d 752 (2004). We allowed claimant's petition for review and now affirm the Court of Appeals decision.

Claimant worked as a sales person for an automobile dealership. One day, a coworker brought his motorcycle to work. The general manager took a ride on the motorcycle before work. Later that day, another employee rode the motorcycle. During the day, while the sales people were waiting for customers, claimant rode the motorcycle on the sales lot. As claimant was bringing the motorcycle back to park it in one of the service bays, another employee backed a company pickup into claimant, severely injuring him.

Claimant filed a workers' compensation claim, which his employer denied. Claimant asked for a hearing. Before the hearing, the parties stipulated that riding motorcycles was not a function of claimant's job. They also stipulated that riding the motorcycle "served no business purpose, and the employer gained no benefit from [claimant's] riding of the motorcycle."

After considering the evidence, the administrative law judge (ALJ) ruled that claimant's injury arose out of and in the course of his work. See ORS 656.005(7)(a) (stating requirement for injury to be compensable). The ALJ reasoned that the injury "arose out of" the work because the risk of being hit by a moving vehicle was inherent in claimant's job. He also concluded that the injury occurred "in the course of" claimant's work because employer required its sales people to remain on the premises even when customers were not present.

The ALJ determined that ORS 656.005(7)(b)(B), which sets out an exclusion relating to certain recreational and social activities, did not preclude claimant's injury from being compensable. The ALJ reasoned that ORS 656.005(7)(b)(B) applies only when a worker's injury results from a recreational or social activity. The ALJ found that claimant's injury had not resulted from riding the motorcycle; rather, it had resulted from his coworker's failure to watch where he was going while driving the company pickup. Because ORS 656.005(7)(b)(B) did not render the injury noncompensable, the ALJ directed employer to accept claimant's workers' compensation claim.

The board reversed, relying on ORS 656.005(7)(b)(B). The board reasoned that, under the plain wording of that statute, the exclusion is not limited to injuries that occur "as the result of" engaging in recreational and social activities; it also applies to injuries that an employee incurs "while engaging in or performing" recreational or social activities. The board found that, in this case, claimant had been injured while he was engaged in a recreational activity—riding the motorcycle.

The board then turned to the question whether claimant had engaged in that activity "primarily for [his] personal pleasure." On that point, the board noted that claimant had "testified * * * that he enjoyed riding motorcycles and that there was no work-related reason for him to be riding the motorcycle at the time of the accident." The board found that, based on that evidence, claimant had been riding the motorcycle primarily for his own personal pleasure rather than for work-related reasons. The Court of Appeals affirmed the board's order for essentially the same reasons. See Roberts, 196 Or.App. at 417-19, 102 P.3d 752. (following board's reasoning).

On review, claimant argues that his "primary job (when not actively engaged in selling to a customer) was to be on the premises, available for customers." He notes that, even though he rode the motorcycle for his own pleasure, "doing so did not take [him] away from his primary work function of being available for a customer [coming onto the lot]." (Emphasis omitted.) Claimant contends that both the board and the Court of Appeals failed to consider the nature of his work in deciding whether riding the motorcycle was only an incidental departure from his primary work activity.

ORS 656.005(7)(a) provides, as a general rule, that an injury will be compensable only if it "aris[es] out of and in the course of employment." ORS 656.005(7)(b)(B) states an additional limitation on compensable injuries. See Andrews v. Tektronix, Inc., 323 Or. 154, 161 n. 1, 915 P.2d 972 (1996) (explaining relationship between ORS 656.005(7)(a) and ORS 656.005(7)(b)(B)). It provides that a "`[c]ompensable injury' does not include * * * [an][i]njury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker's personal pleasure." ORS 656.005(7)(b)(B).

Textually, ORS 656.005(7)(b)(B) raises three questions. The first is whether the worker was engaged in or performing a "recreational or social activit[y]." The second is whether the worker incurred the injury "while engaging in or performing, or as the result of engaging in or performing," that activity. The final question is whether the worker engaged in or performed the activity "primarily for the worker's personal pleasure." If the answer to all those questions is "yes," then the worker cannot recover.

Regarding those issues, there is little dispute that, in the context of this case, riding the motorcycle was a "recreational activity."² Similarly, even though claimant's injury did not occur "as the result of" engaging in a recreational activity, it did occur, as the board found, "while engaging in * * * [that] recreational activity." The latter statutory phrase requires a temporal rather than a causal connection—a conclusion that follows both from the plain text of that phrase and from our obligation to give, if possible, each part of the statute meaning. See Vsetecka v. Safeway Stores, Inc., 337 Or. 502, 510, 98 P.3d 1116 (2004) (stating interpretative principle). The remaining question is whether claimant was engaged in that activity "primarily for [his] personal pleasure."

In analyzing that question, we begin with the text of that phrase and its context. As used in this context, the word "primarily" means "first of all: fundamentally, principally * * *." Webster's Third New Int'l Dictionary 1800 (unabridged ed 2002). As the legislature's use of the word "primarily" implies, a worker may engage in a recreational or social activity for reasons other than personal pleasure, and the board's task is to determine whether the worker's personal pleasure was the principal or fundamental reason for engaging in the activity. As the text also implies, in carrying out that task, the board should consider whether the worker was engaged in the activity primarily for the worker's personal pleasure or for work-related reasons.

A review of the legislative history confirms that that was the legislature's intent. In 1986, an interim House Task Force proposed, among other changes to the workers' compensation law, a provision that would reverse a Court of Appeals decision, Beneficiaries of McBroom v. Chamber of Commerce, 77 Or. App. 700, 713 P.2d 1095, rev. den'd, 301 Or. 240, 720 P.2d 1279 (1986). See, e.g., Testimony, House Task Force on Occupational Disease, Oct. 8, 1986, Ex G (statement of Ken Johnson) (stating that reason for provision). In McBroom, a salesperson attending a work-related conference in Los Angeles died, while intoxicated, in a hot tub. 77 Or.App. at 702, 713 P.2d 1095. In deciding whether his widow had a compensable workers' compensation claim, the Court of Appeals began from the proposition that "traveling employees are considered to be within the scope of employment while away from home" and that injuries suffered during the course of those travels ordinarily will be compensable. Id. at 703, 713 P.2d 1095 (internal quotation marks and citations omitted). The court recognized, however, that the injury would not be compensable if the worker injured himself while engaged in "a distinct departure on a personal errand." Id. (internal quotation marks and citation omitted). Because the Court of Appeals concluded that that exception did not apply, it held that the death was compensable. Id. at 704, 713 P.2d 1095.

In seeking to reverse that ruling, the task force drafted a bill that would have added the following provision to the workers' compensation statutes: An injury will not be compensable if the worker "incurred [it] while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities for the worker's personal pleasure." House Task Force on Occupational Disease, Oct. 8, 1986, Ex A (Sept. 9, 1986 draft bill).

Some members of the task force expressed concern over the breadth of the proposed exclusion. Representative Hooley observed that the exclusion could mean that "taking...