Youngren v. Weyerhaeuser Co. , 41 Or. App. 333 ( 1979 )

GILLETTE, J.

This is a case of denial of workers’ compensation benefits. Claimant, frustrated by a disagreement with a fellow employe, struck a large metal drum several times in lieu of striking his fellow employe. In this uneven struggle, the drum won: the employe suffered a broken bone in his left hand. Both the referee and the Workers’ Compensation Board denied compensation. We reverse.

The referee found the injury to be self-inflicted, thereby disqualifying the claimant under ORS 656.156G).¹ On de novo review, however, we are satisfied that the claimant intended only to vent frustration, not injure himself, and that ORS 656.156(1) is therefore not applicable.

Our determination under ORS 656.156(1) leaves two other issues: (1) The referee found that the injury did not "arise out of and in the course of” the claimant’s employment. (2) The Board, while disagreeing with the referee and finding that the injury did "arise out of” claimant’s employment, nonetheless concluded that the injury did not occur "in the course of” such employment, and so affirmed the referee’s denial of benefits. The requirement that, to be compensable, an injury "arise out of and in the course of” employment appears in ORS 656.005(8)(a).²

With respect to whether the injury "arose out of” claimant’s employment, the evidence shows that the incident in question occurred when a fellow employe boarded up an exit from the work area, which action made claimant’s job more difficult. The fellow employe then seemed prepared to use physical violence against claimant if claimant tried to rectify the situation. We agree with the Board, which said,

"* * * the fact that claimant’s employment required him to work with this co-employee and that such employment * * * [might give] rise to circumstances * * * resulting] in a dispute between claimant and his co-employee over a work-related matter occurring on the employer’s premises would satisfy the test that the injury 'arose out of’ the claimant’s employment.”

The Board went on to hold, however, that

"* * * claimant was not engaged in any of the duties for which he was paid at the time of the injury nor was he at his regular work station[. Tjherefore, the injury did not arise 'in the course of’ claimant’s employment.”

With this later conclusion, we disagree. The record here shows that the altercation between claimant and his fellow employe occurred at a place where claimant would normally be expected to be "in the course of” his employment. His departure from that place and his almost immediate encounter with the steel drum, while not on a route designed to carry claimant directly back to his duty station, were nonetheless so closely connected in time and space with the altercation that we find them to have occurred within the scope of claimant’s employment. From the context in which it arose, we view claimant’s actions here as not being generically different from the reaction of a machinist who, discovering he had made an error in a long and complicated piece of work, might strike his own lathe in frustration and accidentally break a hand. We view this case as vastly different from our recent decisions in which employes have, after an opportunity to coolly deliberate their course of action, so far departed from reasonably expected behavior that their resulting injuries were declared noncompensable. See e.g., Sumner v. Coe, 40 Or App 815, 596 P2d 617 (1979); Lane v. Gleaves Volkswagen, 39 Or App 5, 7-8, 591 P2d 368 (1979).

Reversed and remanded.³

1 ORS 656.156(1) provides:

"(1) If injury or death results to a worker from the deliberate intention of the worker himself to produce such injury or death, neither the worker nor the widow, widower, child or dependent of the worker shall receive any payment whatsoever under ORS 656.001 to 656.794.”

2 ORS 656.005(8)(a) provides:

"A 'compensable injury’ is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means.”

3 The cross-appeal raises no additional issues.