Roberts v. SAIF Corp.

KISTLER, J.

A coworker backed a company pickup into claimant while claimant was riding a motorcycle at work. Claimant filed a workers’ compensation claim. Employer resisted the claim on the ground that a statutory exclusion for injuries incurred “while engaging in or performing *** any recreational or social activity] primarily for the worker’s personal pleasure” applied. See ORS 656.005(7)(b)(B) (stating exclusion).¹ The Workers’ Compensation Board held that the exclusion applied, and the Court of Appeals affirmed. Roberts v. SAIF, 196 Or App 414, 102 P3d 752 (2004). We allowed claimant’s petition for review and now affirm the Court of Appeals decision.

Claimant worked as a salesperson for an automobile dealership. One day, a coworker brought his motorcycle to work. The general manager took a ride on the motorcycle before work. Later that day, another employee rode the motorcycle. During the day, while the salespeople were waiting for customers, claimant rode the motorcycle on the sales lot. As claimant was bringing the motorcycle back to park it in one of the service bays, another employee backed a company pickup into claimant, severely injuring him.

Claimant filed a workers’ compensation claim, which his employer denied. Claimant asked for a hearing. Before the hearing, the parties stipulated that riding motorcycles was not a function of claimant’s job. They also stipulated that riding the motorcycle “served no business purpose, and the employer gained no benefit from [claimant’s] riding of the motorcycle.”

After considering the evidence, the administrative law judge (ALJ) ruled that claimant’s injury arose out of and in the course of his work. See ORS 656.005(7)(a) (stating requirement for injury to be compensable). The ALJ reasoned that the injury “arose out of’ the work because the risk of being hit by a moving vehicle was inherent in claimant’s job. He also concluded that the injury occurred “in the coruse of’ claimant’s work because employer required its sales people to remain on the premises even when customers were not present.

The ALJ determined that ORS 656.005(7)(b)(B), which sets out an exclusion relating to certain recreational and social activities, did not preclude claimant’s injury from being compensable. The ALJ reasoned that ORS 656.005(7)(b)(B) applies only when a worker’s injury results from a recreational or social activity. The ALJ found that claimant’s injury had not resulted from riding the motorcycle; rather, it had resulted from his coworker’s failure to watch where he was going while driving the company pickup. Because ORS 656.005(7)(b)(B) did not render the injury non-compensable, the ALJ directed employer to accept claimant’s workers’ compensation claim.

The board reversed, relying on ORS 656.005(7)(b)(B). The board reasoned that, under the plain wording of that statute, the exclusion is not limited to injuries that occur “as the result of’ engaging in recreational and social activities; it also applies to injuries that an employee incurs “while engaging in or performing” recreational or social activities. The board found that, in this case, claimant had been injured while he was engaged in a recreational activity — riding the motorcycle.

The board then turned to the question whether claimant had engaged in that activity “primarily for [his] personal pleasure.” On that point, the board noted that claimant had “testified * * * that he enjoyed riding motorcycles and that there was no work-related reason for him to be riding the motorcycle at the time of the accident.” The board found that, based on that evidence, claimant had been riding the motorcycle primarily for his own personal pleasure rather than for work-related reasons. The Court of Appeals affirmed the board’s order for essentially the same reasons. See Roberts, 196 Or App at 417-19 (following board’s reasoning).

On review, claimant argues that his “primary job (when not actively engaged in selling to a customer) was to be on the premises, available for customers.” He notes that, even though he rode the motorcycle for his own pleasure, “doing so did not take [him] away from his primary work function of being available for a customer [coming onto the lot].” (Emphasis omitted.) Claimant contends that both the board and the Court of Appeals failed to consider the nature of his work in deciding whether riding the motorcycle was only an incidental departure from his primary work activity.

ORS 656.005(7)(a) provides, as a general rule, that an injury will be compensable only if it “aris[es] out of and in the course of employment.” ORS 656.005(7)(b)(B) states an additional limitation on compensable injuries. See Andrews v. Tektronix, Inc., 323 Or 154, 161 n 1, 915 P2d 972 (1996) (explaining relationship between ORS 656.005(7)(a) and ORS 656.005(7)(b)(B)). It provides that a “ ‘[c]ompensable injury' does not include * * * [an] [i]njury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure.” ORS 656.005(7)(b)(B).

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.

Regarding those issues, there is little dispute that, in the context of this case, riding the motorcycle was a “recreational activity.”² Similarly, even though claimant’s injury did not occur “as the result of’ engaging in a recreational activity, it did occur, as the board found, “while engaging in * * * [that] recreational activity.” The latter statutory phrase requires a temporal rather than a causal connection — a conclusion that follows both from the plain text of that phrase and from our obligation to give, if possible, each part of the statute meaning. See Vsetecka v. Safeway Stores, Inc., 337 Or 502, 510, 98 P3d 1116 (2004) (stating interpretative principle). The remaining question is whether claimant was engaged in that activity “primarily for [his] personal pleasure.”

In analyzing that question, we begin with the text of that phrase and its context. As used in this context, the word “primarily” means “first of all: fundamentally, principally * * Webster’s Third New Int’l Dictionary 1800 (unabridged ed 2002). As the legislature’s use of the word “primarily’ implies, a worker may engage in a recreational or social activity for reasons other than personal pleasure, and the board’s task is to determine whether the worker’s personal pleasure was the principal or fundamental reason for engaging in the activity. As the text also implies, in carrying out that task, the board should consider whether the worker was engaged in the activity primarily for the worker’s personal pleasure or for work-related reasons.

A review of the legislative history confirms that that was the legislature’s intent. In 1986, an interim House Task Force proposed, among other changes to the workers’ compensation law, a provision that would reverse a Court of Appeals decision, Beneficiaries of McBroom v. Chamber of Commerce, 77 Or App 700, 713 P2d 1095, rev den, 301 Or 240 (1986). See, e.g., Testimony, House Task Force on Occupational Disease, Oct 8, 1986, Ex G (statement of Ken Johnson) (stating that reason for provision). In McBroom, a salesperson attending a work-related conference in Los Angeles died, while intoxicated, in a hot tub. 77 Or App at 702. In deciding whether his widow had a compensable workers’ compensation claim, the Court of Appeals began from the proposition that “traveling employees are considered to be within the scope of employment while away from home” and that injuries suffered during the course of those travels ordinarily will be compensable. Id. at 703 (internal quotation marks and citations omitted). The court recognized, however, that the injury would not be compensable if the worker injured himself while engaged in “a distinct departure on a personal errand.” Id. (internal quotation marks and citation omitted). Because the Court of Appeals concluded that that exception did not apply, it held that the death was compen-sable. Id. at 704.

In seeking to reverse that ruling, the task force drafted a bill that would have added the following provision to the workers’ compensation statutes: An injury will not be compensable if the worker “incurred [it] while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities for the worker’s personal pleasure.” House Task Force on Occupational Disease, Oct 8,1986, Ex A (Sept 9,1986 draft bill).

Some members of the task force expressed concern over the breadth of the proposed exclusion. Representative Hooley observed that the exclusion could mean that “taking a recreational walk would disqualify certain work related claims automatically.” Minutes, House Task Force on Occupational Disease, Oct 8, 1986, 30. Representative Kotulski stated that he shared Representative Hooley’s concern and suggested adding the phrase “and not in any way connected with employment activities” after the word “pleasure.” Id. Alternatively, Representative Kotulski suggested limiting the scope of the exclusion to recreational or social activities that the employer had not encouraged, while another representative proposed limiting the exclusion to recreational or social activities that lacked a “demonstrable relationship” with the employer’s interests. Id.

Ultimately, the task force could not agree on a solution to the problem and submitted, during the next legislative session, a draft bill that contained the same wording that had caused its members concerns. Id.; see House Committee on Labor, HB 2271, Bill File (Nov 11, 1986 draft bill) (retaining same wording). At a hearing on that bill, a staff person for the House Labor Committee noted the task force’s concern over the breadth of the proposed wording. Minutes, House Committee on Labor, HB 2271, Mar 25, 1987, 4. One committee member explained that the committee was not trying to prevent injuries from being compensable if the employer had benefitted from the recreational or social activity. Tape Recording, House Committee on Labor, HB 2271, Mar 25, 1987, Tape 69, Side B. A witness suggested adding the phrase “and of no benefit to the employer” after the word “pleasure” to make that intent clear. Id. (statement of Jim Edmunson). However, Representative Kotulski objected that, “[i]f we added that, I think that we’d be opening up the whole hot tub case again.” Id. After discussing the question, the committee decided not to amend that section of the bill, but the chair explained that the committee intended that the exclusion would apply to only those recreational and social activities “that clearly do not benefit the employer.” Id. (statement of Representative Shiprack) (emphasis added).

The issue arose again when the bill reached the Senate Labor Committee. Senator Hill, the chair of the committee, proposed resolving it by adding the word “solely” before the phrase “for the worker’s personal pleasure.” Senator Hill explained his reasons for proposing the amendment:

“My feeling on offering this amendment is to indicate that we’re not talking about something that the worker may be engaged in which is actually a part or within the scope of employment. For instance, a working lunch in which the worker is eating and may find pleasure in the experience of eating salmon, or something, and may choke on a salmon bone and therefore incur a compensable injury. * * * What we’re trying to get at are those recreational or social activities that are not part, that are not part of the work, that are performed solely for the worker’s personal pleasure. And that would help clarify that.”

Tape Recording, Senate Committee on Labor, HB 2271, June 8, 1987, Tape 201, Side A (statement of Senator Hill). The committee approved the amendment, and the legislature enacted the bill as amended.

In 1990, the legislature returned to the issue and substituted the word “primarily” for “solely” in ORS 656.005(7)(b)(B) (1987), amended by Or Laws 1990, ch 2, § 3. A proponent of that amendment testified that it

“basically just cleans up something in the ’87 legislature that you may recall, the hot tub case. It really just kind of cleans up the language, making that provision that was already enacted a little more meaningful.”

Tape Recording, Special Committee on Workers’ Compensation, SB 1197, May 3, 1990, Tape 7, Side B (statement of Constance Wold). Although another witness opposed the amendment, the committee adopted it without further discussion, and the legislature enacted the bill.

As the legislative history confirms, the legislature intended that the board should determine both the degree to which a recreational or social activity serves the employer’s work-related interests and the degree to which the worker engaged in the activity for the worker’s personal pleasure. Only if the worker’s personal pleasure was the fundamental or principal reason, in relation to work-related reasons, for engaging in the activity will the resulting injury be non-compensable.

With that standard in mind, we turn to the board’s resolution of this case. As noted, claimant argues that his act of riding the motorcycle advanced a work-related interest (being available on the sales lot) as well as his own personal pleasure. In his view, the board erred in two respects: First, in not recognizing that his recreational activity served a work-related purpose and, second, in not finding that the work-related purpose was primary.³

Although there is evidence from which the board could have found that claimant’s presence on the sales lot (even while riding the motorcycle) served a work-related purpose, there is also evidence from which the board could have drawn a different inference. For instance, claimant stipulated that “the riding of the motorcycle by [claimant] * * * served no business purpose, and the employer gained no benefit [from that activity].” Given that stipulation, we cannot say that substantial evidence does not support the board’s finding that “there was no work-related reason for [claimant] to be riding the motorcycle at the time of the accident.” See Garcia v. Boise Cascade Corp., 309 Or 292, 295, 787 P2d 884 (1990) (explaining substantial evidence standard). Substantial evidence also supports the board’s finding that claimant rode the motorcycle for his personal pleasure. Having made those findings, the board did not err in concluding that claimant engaged in the recreational activity primarily for his personal pleasure — that is, that the fundamental or principal reason that he rode the motorcycle was for his personal pleasure.

The decision of the Court of Appeals and the order of the Workers’ Compensation Board are affirmed.

1 ORS 656.005(7)(b)(B) provides that a “ ‘[c]ompensable injury’ does not include * * * [an] [i]njury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure.”

2 To qualify as “recreational or social activities,” an employee’s action must be “recreational” or “social” and also an “activity.” As the board found and the Court of Appeals explained, in the context of this case, riding a motorcycle was both “recreational” and an “activity.” See Roberts, 196 Or App at 417-18 (discussing that issue).

3 Claimant also argues that any injury incurred during a recreational or social activity should be compensable if the activity involved only an incidental departure from work. In his view, only if the activity was a significant departure from work should an injury be noncompensable. Claimant does not identify a textual basis in ORS 656.005(7)(b)(B) for his proposed rule, and it appears to reinstate the exception to compensability that the Court of Appeals recognized in McBroom and that the legislature sought to narrow.