Matter of Compensation of Condon , 52 Or. App. 1043 ( 1981 )

THORNTON, J.,

dissenting.

Contrary to the majority, I agree with the Board that claimant has not established by credible evidence that he sustained a compensable injury. Further, the record establishes that claimant’s testimony was not credible. Claimant provided inconsistent and conflicting accounts to several different individuals about how the injury allegedly occurred.

My examination of the record leads me to agree with the Board’s finding that it is:

"* * * more probable than not that claimant did not injure his right knee in any garbage can incident as we - doubt that [this] incident ever occurred.”

Next, I cannot accept the Referee’s conclusion regarding the compensability of any right knee injury claimant may have suffered while shooting baskets or playing 'one-on-one’ later in the day of July 4. Such activity was not authorized by the employer and there was no evidence that such activity by employees during working hours was tolerated by the employer.

I would adopt the following from the Board’s order on review:

* * * *

"The record establishes that on August 12,1979, while playing basketball (shooting baskets and/or playing 'one on one’), the claimant injured his right knee. This injury occurred when claimant was not working and is clearly not compensable. The evidence establishes that this August 12, 1979 incident caused disability and the need for medical treatment. This off-the-job incident clearly contributed more than slightly to the claimant’s right knee problem — to what extent beyond slight has not been established. Had the employer any responsibility for the right knee condition up to that time and we have found they did not, then the August 12, 1979 incident extinguished that responsibility.”

For the above reasons, I conclude that claimant did not meet his burden of proof. I therefore respectfully dissent.