Davis v. SAIF , 316 Or. App. 301 ( 2021 )

301
Argued and submitted April 19, reversed and remanded December 15, 2021
In the Matter of the Compensation of
Charles E. Davis, Claimant.
Charles E. DAVIS,
Petitioner,
v.
SAIF CORPORATION
and James L. Lebold - The Cueball,
Respondents.
Workers’ Compensation Board
1802374; A173131
503 P3d 485
Claimant, who was off duty as the manager of a pool hall, seeks review of an
order of the Workers’ Compensation Board concluding that injuries he sustained
in removing a troublesome person from the pool hall, after being asked to do so by
the manager then on duty, did not occur in the course of claimant’s employment.
Held: The activity of removing troublesome people from the pool hall was a reg-
ular part of claimant’s job, and he had been asked by the manager then on duty
to carry out that task for employer’s benefit. The activity therefore came within
the course of claimant’s employment, even though he was not then on the job. The
board therefore erred in rejecting the claim.
Reversed and remanded.
Jodie Anne Phillips Polich argued the cause for peti-
tioner. Also on the briefs was Law Offices of Jodie Anne
Phillips Polich, P.C.
Beth Cupani argued the cause and filed the brief for
responudents.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
ARMSTRONG, P. J.
Reversed and remanded.
302 Davis v. SAIF
ARMSTRONG, P. J.
Claimant, a manager at a pool hall, was off duty
and came to the pool hall to shoot some pool. The manager
on duty asked claimant to eject a troublesome person who
was bothering customers, and claimant did so by “verbally”
pushing the person out the door. On the sidewalk in front of
the pool hall, claimant flicked a cigarette out of the person’s
hand and pushed him, and the person punched claimant
in the face, causing injury. Claimant sought compensation
for his injuries, and SAIF denied the claim. Claimant seeks
judicial review of an order of the Workers’ Compensation
Board upholding SAIF’s denial after concluding that claim-
ant’s injury did not occur in the course of his employment.
The relevant facts are undisputed; thus, we review the
board’s determination for errors of law. ORS 656.298(7);
ORS 183.482(8); American Medical Response v. Gaylick, 189
Or App 294, 298-99, 76 P3d 117 (2003), rev den, 336 Or 376,
(2004). We conclude that, on the facts found by the board,
the board’s conclusion that claimant’s injuries did not occur
in the course of his employment is incorrect as a matter of
law. Accordingly, we reverse the board’s order and remand.
To determine whether an injury occurs “in the
course of” employment, the court determines if the time,
place, and circumstances of the injury justify connecting the
injury to the employment. Robinson v. Nabisco, Inc., 331 Or
178, 186, 11 P3d 1286 (2000). An injury takes place in the
course of employment if it occurs “while the worker reason-
ably is fulfilling the duties of the employment or is doing
something reasonably incidental to it.” Fred Meyer, Inc. v.
Hayes, 325 Or 592, 598, 943 P2d 197 (1997).
Claimant testified that, as a manager, removing
people who are disturbing other customers was a part of his
job, and that he regularly removed people from the premises
and from the sidewalk in front of the premises and the park-
ing lot. Employer’s owner testified that claimant’s duties as
a manager included making troublesome people leave, but
that he had never asked claimant to use force. The board
acknowledged that removing the troublesome person who
injured claimant was reasonably within the range of claim-
ant’s regular work duties, and that claimant “arguably” was
Cite as 316 Or App 301 (2021) 303
performing a work-related task in ejecting the troublesome
person. But the board held that claimant’s injury did not
occur in the course of his employment because claimant was
not on duty or being paid, the injury occurred off of employ-
er’s premises, and claimant “exceeded the bounds” of his
employment by using force.1
On judicial review, claimant contends that, because
the activity of removing troublesome people from the pool
hall was a regular part of his job, and he had been asked by
the manager to carry out that task, the activity came within
the course of his employment even though he was not then
on the job. He contends, additionally, that the facts that the
activity took him outside of the pool hall premises and that
he may have violated employer’s policy by using force did not
remove the activity from the course of his employment.
We agree with claimant. As we held in SAIF v.
Scardi, 218 Or App 403, 411, 180 P3d 56, rev den, 345 Or 175(2008), an activity need not be directed by an employer for
it to be work related. Nor is it required that the employee be
compensated for engaging in the activity. See, e.g., Iliaifar v.
SAIF, 160 Or App 116, 981 P2d 353 (1999) (injury occurred
in the course of employment even though claimant was off
work and unpaid at the time of the injury).
The evidence was undisputed that the task of remov-
ing troublesome people was part of claimant’s job as a man-
ager and that claimant had been asked by the manager on
duty to remove the troublesome person. Claimant engaged
in that task for employer’s benefit. Those facts brought the
task within the course and scope of claimant’s employment
even though claimant was not on the job at the time. See
SAIF v. Sumner, 313 Or App 434, 495 P3d 205 (2021) (task
requested by coworker of delivering petty cash to supervi-
sor while claimant was off work but on call was within the
course of claimant’s employment). Claimant’s chosen method
of carrying out that task, by pursuing the person outside
1
The board found that evidence that claimant’s injury arose out of his
employment was “weak at best,” because, although the act of ejecting the per-
son was within the range of claimant’s work activities, claimant’s duties did not
extend to the sidewalk, and claimant’s conduct in flicking the person’s cigarette
and pushing the person did not serve employer’s interests.
304 Davis v. SAIF
and using physical force, did not deprive the task of a work
connection or remove the activity from the course of claim-
ant’s employment. See Iliaifar, 160 Or App at 122 (injuries
can be work related even if they occur in the performance of
duties that are off the employer’s premises and not within
the claimant’s typical job duties); Andrews v. Tektronix, Inc.,
323 Or 154, 162-63, 915 P2d 972 (1996) (in light of no-fault
nature of workers’ compensation law, misconduct on the job
relating to the method of accomplishing the work task does
not take task beyond the course of employment).
We conclude, further, that in light of our conclusion
that claimant was in the course of his employment in remov-
ing the person, the risk of claimant being injured while
removing a person was a risk of claimant’s employment. See
Fred Meyer, 325 Or at 601 (“[A] worker’s injury is deemed
to ‘arise out of’ employment if the risk of the injury results
from the nature of his or her work or when it originates
from some risk to which the work environment exposes the
worker.”).
The board found that claimant’s injury occurred as
a result of his having provoked an altercation. But because
the board concluded that claimant’s injury did not occur in
the course of his employment and was not compensable for
that reason, the board did not address SAIF’s contention
that the claim was barred by ORS 656.005(7)(b)(A), which
excludes from the definition of “compensable injury” injuries
sustained by an active participant in an assault or combat
that is not connected to a job assignment. On remand, the
board will have an opportunity to address that issue.
Reversed and remanded.