SAIF Corp. v. Blankenship (In re Blankenship)

• Decision Date: 18 August 2021
• Docket Number: A172525
• Citation: 496 P.3d 692,314 Or.App. 34
• Parties: In the MATTER OF the COMPENSATION OF Timothy W. BLANKENSHIP, Claimant. SAIF Corporation and Lane Transit District, Petitioners, v. Timothy W. Blankenship, Respondent.
• Court: Oregon Court of Appeals

314 Or.App. 34

496 P.3d 692

In the MATTER OF the COMPENSATION OF Timothy W. BLANKENSHIP, Claimant.SAIF Corporation and Lane Transit District, Petitioners,

v.Timothy W. Blankenship, Respondent.

A172525

Court of Appeals of Oregon.

Argued and submitted on February 8, 2021.

August 18, 2021

Beth Cupani, Portland, argued the cause and filed the briefs for petitioners.

Dale C. Johnson, Springfield, argued the cause and filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

SAIF Corporation and employer Lane Transit District seek judicial review of an order of the Workers’ Compensation Board holding that claimant suffered a compensable work injury, contending that the injury did not "arise out of" claimant's employment, because the risk of injury was personal to claimant and unrelated to his employment. We review the board's order pursuant to ORS 656.298(7) and ORS 183.482(8)(a) and (c) for errors of law and substantial evidence, conclude that the board did not err, and affirm.

Under circumstances not related to his employment, claimant, who works for employer as a public transportation mechanic, had a left-hip replacement and received a left hip prosthesis

in 2010, with a surgical repair in 2012. In January 2018, claimant was standing in line at work to use a computer to "log out" for a scheduled work break, as required by employer. While standing in line, claimant moved his left foot behind him and rested the tip of his boot on the floor, "to relax it." Claimant immediately felt a click, pop, and rumbling in his left hip, followed by numbness in his leg and significant and persistent pain. Claimant thought that something was wrong and that he was going to pass out.

Claimant went to the hospital by ambulance, where claimant's treating orthopedic surgeon diagnosed a "fractured left total hip arthroplasty

with displacement of the femoral shaft." Claimant underwent surgery for repair of the prosthesis. Claimant's doctor explained that claimant's prosthesis had failed as a result of claimant's leg movement combined with the preexisting degraded condition of the prosthesis (trunnionosis). The doctor expressed the opinion that claimant's leg movement was at least a material contributing cause of the failure of the prosthesis, and that the preexisting trunnionosis was also a contributing factor, because it caused a loosening of the connection between the ball and the stem/trunnion of the prosthesis.

SAIF denied claimant's claim for compensation, asserting that the injury did not arise out of the employment.¹ An administrative law judge (ALJ) overturned the denial, and the board affirmed the ALJ's order. SAIF and employer seek judicial review.

An injury is compensable if it arises out and in the course of the employment. ORS 656.005(7)(a). It is undisputed that claimant's injury occurred during the course of his employment. The only dispute is whether claimant's injury arose out of his employment. An injury "arises out of" the employment if it arises from the nature of the claimant's work or from a risk to which the work environment exposes the worker. Fred Meyer, Inc., v. Hayes , 325 Or. 592, 598, 943 P.2d 197 (1997).

Risks are generally categorized as employment-related risks, personal risks, or neutral risks. Phil A. Livesley Co. v. Russ , 296 Or. 25, 29-30, 672 P.2d 337 (1983). Employment-related risks are those that are inherent in the job. SAIF Corp. v. Marin , 139 Or. App. 518, 524, 913 P.2d 336 (1996). Personal risks are risks that have no employment connection and that arise from conditions or circumstances that are personal to the worker. Sheldon v. U. S. Bank , 364 Or. 831, 834, 441 P.3d 210 (2019) ("Personal risks include a claimant's personal medical conditions, such as conditions that can lead to an idiopathic fall."); Marin , 139 Or. App. at 523-24, 913 P.2d 336. Neutral risks have no particular employment or personal character and are compensable if work conditions caused the claimant to be in a position to be injured. Id. ; see also Sheldon , 364 Or. at 834, 441 P.3d 210 (adhering to analysis).

Here, the board found that claimant's injury was caused by a "mixed risk," in which a personal risk (claimant's preexisting trunnionosis) and an employment risk (moving about the workplace) together produced the harm. See Hamilton v. SAIF , 256 Or. App. 256, 260, 302 P.3d 1184, rev . den . , 354 Or. 148, 311 P.3d 525 (2013) (describing mixed-risk doctrine); Arthur Larson and Lex K. Larson, 1 Larson's Workers’ Compensation Law , § 4.04, 4-3 (2017) (same). In such mixed-risk contexts, the board has held, an injury is considered to be caused by an employment risk if a risk of the employment contributed to its cause. See, e.g ., Janet G. Cavalliere , 66 Van Natta 228, 234 (2014) (recognizing the compensability of mixed-risk injuries). Under the mixed-risk doctrine,

"the law does not weigh the relative importance of the two causes, nor does it look for primary and secondary causes; it merely inquires whether the employment was a contributing factor. If it was, the concurrence of the personal cause will not defeat compensability."

Larson, 1 Larson's Workers’...