Washington Group International v. Barela

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Landau
• Citation: Washington Group International v. Barela, 180 P.3d 107, 218 Or. App. 541 (Or. App. 2008)
• Decision Date: 19 March 2008
• Docket Number: 0502983.,A133870.
• Parties: In the Matter of the Compensation of Kaleiokalani Barela, Claimant. WASHINGTON GROUP INTERNATIONAL, Petitioner, v. Kaleiokalani BARELA, Respondent.

180 P.3d 107

218 Or. App. 541

In the Matter of the Compensation of Kaleiokalani Barela, Claimant WASHINGTON GROUP INTERNATIONAL, Petitioner, v. Kaleiokalani BARELA, Respondent.

0502983.

A133870.

Court of Appeals of Oregon.

Argued and Submitted August 22, 2007.

Decided March 19, 2008.

Norman Cole, Portland, argued the cause for petitioner. With him on the briefs were Deborah L. Sather and Sather, Byerly & Holloway.

R. Adian Martin argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

LANDAU, P.J.

Claimant injured his foot when, during an unpaid lunch break, he assisted a coworker in jostling a vending machine to dislodge a candy bar that had been purchased by another person. Employer denied claimant's workers' compensation claim for the foot injury on the ground that the injury arose from a noncompensable social activity and, in any event, did not arise out of or in the scope of employment. The Workers' Compensation Board (board) set aside the denial and ordered employer's workers' compensation coverage provider, Washington Group International (WGI), to provide coverage for the injury. WGI seeks review of the board's order. We agree with WGI that the board erred in its analysis of whether the injury arose from a noncompensable social activity, and therefore reverse and remand for reconsideration.

The relevant facts are undisputed. Claimant worked in a high security area of the Umatilla Army Depot as a senior maintenance mechanic. Although claimant is not required by employer to stay on the work site during his breaks, because of the distance from the work site to outside eating choices, claimant and his coworkers generally took their lunch breaks as a group in one of the lunch rooms. The lunch rooms contained vending machines that provided candy and soda. The machines were serviced by their vendors, not employer. Claimant had no responsibility to repair them.

Claimant had just completed a 30-minute unpaid lunch break in one of employer's lunch rooms when a coworker, Nick, asked claimant if he could help dislodge a candy bar from one of the vending machines. Nick had been attempting to help another person— who may or may not have been an employee—dislodge the candy bar, but to no avail. Claimant attempted to help by pushing and pulling the machine. When that did not work, claimant attempted to rock the machine back and forth on its legs. When he did that, he heard a sound come from his foot; he thought he had broken a shoelace. His foot, however, "didn't work properly." He went to a hospital, where he was diagnosed as having ruptured an Achilles tendon.

Claimant sought workers' compensation benefits for the injury, but WGI denied the claim, contending that, because the injury occurred during a social activity, it was excluded from coverage under ORS 656.005(7)(b)(B), which excludes from coverage any "injury incurred while engaging in * * * any recreational or social activities primarily for the worker's personal pleasure."

Claimant requested a hearing. The administrative law judge (ALJ) determined that the injury was compensable and overturned the denial. The ALJ rejected WGI's contention that claimant was injured as a result of a recreational or social activity. His analysis, in full, was as follows:

"I find that claimant's activity of shaking the vending machine to assist his coworkers was not a `recreational or social activity primarily for [claimant's] personal pleasure.' ORS 656.005(7)(a)(B). At the time of injury, claimant was not engaging in a recreational or social activity of some sort—he was not even attempting to procure the candy out of the machine for himself, but rather, helping a coworker who was in turn helping another worker. He was not, for example, sharpening his own personal knives at work like the claimant in Ken Griffin, 57 Van Natta 1365 (2005), or arm wrestling another coworker to prepare for arm wrestling competitions as in Geoff Saunders, 57 Van Natta 796 (2005). He was not looking to gain personally from his actions; e.g., by obtaining a set of sharpened knives, or sharpening his arm wrestling skills. In other words, there was no personal, recreational or social value to claimant in helping the other workers.

"Such an activity (shaking the vending machine) simply does not fit within the plain meaning of `recreational or social activity.' ORS 656.005(7)(b)(B). Therefore, I find that the employer's affirmative defense under that statute does not apply."

The ALJ went on to conclude that claimant's injury arose out of and in the course of his employment. The board adopted the ALJ's opinion and order, and affirmed.

On review of the board's order, WGI argues that the board erred both in rejecting its affirmative defense that claimant was injured while engaging in a recreational or social activity and in concluding that claimant's injury arose out of and in the course of employment. Because we conclude that WGI is correct as to its first contention, we need not address its second.

ORS 656.005(7)(a) provides that a "compensable injury" is one "arising out of and in the course of employment." The statute then provides an exception to that definition: "`Compensable injury' does not include * * * [i]njury incurred while engaging in or performing * * * any recreational or social activities primarily for the worker's personal pleasure." ORS 656.005(7)(b)(B).

In Roberts v. SAIF, 341 Or. 48, 52, 136 P.3d 1105 (2006), the Supreme Court explained that the exception for injuries incurred while engaging in or performing any "recreational or social activities primarily for the worker's personal pleasure" requires a three-step analysis:

"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."

In that case, the claimant, a car salesman, sustained an injury when he rode a coworker's motorcycle in the employer's lot while waiting for customers. The board had concluded that the claimant had been injured while engaging in a recreational activity. Affirming the board's order, the court explained that, although the claimant was on the job at the time of the injury, the "activity" in which the claimant was engaged was riding a motorcycle, and that activity was recreational. 341 Or. at 52, 136 P.3d 1105. The court further reasoned that, in determining whether the claimant was engaged in that activity "primarily for the worker's personal pleasure," the question was whether the worker was "engaged in the activity primarily for the worker's personal pleasure or for work-related reasons." Id. The court turned to the legislative history of ORS 656.005(7)(b)(B) for confirmation of that...