Otto v. Moak Chevrolet, Inc.

ROBERTS, J.

The issue in this workers’ compensation case is the compensability of claimant’s injury. The facts, as stipulated to by the parties, are as follows:

"1. Claimant, then a 41-year-old bookkeeper, suffered an injury on her employer’s premises on June 9, 1975 during her regular working hours. The injury was to the low back and required medical care and treatment and absence from work.

"The injury occurred when claimant went to the women’s restroom on the employer’s premises, relieved herself and, while she was pulling her [underwear and slacks] back up in an ordinary manner, her back went out, i.e. she was suddenly afflicted with pain in the low back and this led to medical care, filing of the claim and denial of the claim by the employer’s insurer on August 11, 1975.

"2. Claimant did not slip or fall nor was her injury accompanied by anything to claimant’s knowledge than her action in pulling her [underwear and slacks] back up.

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Oregon Workers’ Compensation Law provides for compensation to workers who suffer "compensable injuries.” A compensable injury, as defined in ORS bSb.OOSCSXa),¹ must "arise out of and in the course of employment.” The parties agree that claimant’s injuries occurred in the course of her employment; the sole question on appeal is whether or not claimant’s injury arose out of her employment.

The Supreme Court has held that "arising out of” and "in the course of” is conjunctive and was treated as such. Therefore, both elements must coexist in order to meet the definition of compensable injury.

"* * * The words 'out of’, as used in the statute, point to the origin or cause of the accident. The words, 'in the course of point to the time, place and circumstances under which the accident takes place. The former are descriptive of the character or quality of the accident, while the latter relates to the circumstances under which an accident of that character or quality takes place: Fitzgerald v. Clark, 99 L. T. 101 (1 B. W. C. C. 197); 2 Boyd, Workmen’s Compensation, § 472; Blair v. State Ind. Acc. Com., [133 Or 450, 288 P 204 (1930)]. Before an accident can be said to arise out of the employment, the injury must be directly traceable to the nature of the work or to some risk to which the employer’s business exposes the employee. The risk must be reasonably incidental to the employment: * * *” (Emphasis supplied.) Larsen v. State Ind. Acc. Com., 135 Or 137, 139-40, 295 P 195 (1931).

To meet the requirements of Larsen, claimant relies on the factors applied by this court in Jordan v. Western Electric, 1 Or App 441, 463 P2d 598 (1970).²

Claimant’s reliance on Jordan is misplaced. The Jordan case and the principle of the personal comfort doctrine enunciated therein relate primarily to the question of whether or not the injury was in the course of employment. Also, Jordan did not analyze the separate phrases "arising out of” and "in the course of” and further it did not indicate which of the factors named apply to either or both phrases.³

No Oregon case directly on point has been cited to us and we find none. However, in an Arizona case, Sacks v. Industrial Commission, 13 Ariz App 83, 474 P2d 442 (1970), where a claimant suffered herniation of lumbar discs while getting up from a toilet on the premises of the employer, the court held the injury did not arise out of petitioner’s employment and therefore was not compensable.

The facts in Sacks are identical to the facts presented in this case. While Oregon, like Arizona, gives effect to the personal comfort doctrine, the "arising out of” language of ORS 656.005(8)(a) requires that there be a causal connection between the employment and the injury. We agree with the language in Sacks which is as applicable here as there.

"We are unable to find a causal connection between the injury and the employment in the facts here. It does not appear that the risk of [back injury] while arising from a toilet was a risk in any way peculiar to or increased by petitioner’s employment. There is no suggestion that the structure or condition of any of the surroundings contributed in any way to the unfortunate event. * * * The mere fact that the accident occurred on the premises of the employer during working hours does not make it compensable. * * *” Sacks v. Industrial Commission, supra 474 P2d at 443. [Quoted from City of Phoenix v. Industrial Commission, 104 Ariz 120, 123, 449 P2d 291 (1969)].

See also Pottinger v. Industrial Commission, 22 Ariz App 389, 527 P2d 1232 (1974); McNeel v. Industrial Commission, 17 Ariz App 185, 496 P2d 611 (1972).

As the Supreme Court stated in Blair v. State Ind. Acc. Com., 133 Or 450, 455, 288 P 204 (1930) and we quoted with approval in Robinson v. Felts, 23 Or App 126, 133, 541 P2d 506 (1975):

"* * * For a personal injury to arise out o/and in the course of the employment, there must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury. There must be a causal connection between the employment and the injury which had its origin in a risk connected with the employment, and flowed from that source as a rational and natural consequence * * * ” (Emphasis supplied.)

Claimant also relies on Olsen v. SAIF, 29 Or App 235, 562 P2d 1234, 30 Or App 109, 566 P2d 1202, rev den (1977). In Olsen, claimant was injured while riding a bicycle of a fellow employe during a lunch hour when the front wheel became lodged in a gap between the warehouse’s loading dock and a ramp leading up to it. Olsen is distinguishable from this case. In Olsen, it is not likely the injury would have occurred at any other place since the conditions contributing to the injury were unique to that time and place. In the present case, it is very likely the back condition experienced by claimant could have occurred when she pulled up her underwear after using the toilet facilities at some other place.

The mere fact that the injury occurred on her employer’s premises during working hours does not entitle claimant to benefits absent some connection between her injury and her work.

Affirmed.

1 ORS 656.005(8)(a) provides:

"(a) A 'compensable injury1 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.”

2 'a) Whether the activity was for the benefit of the employer, Ramseth v. Maycock and SIAC, 209 Or 66, 75-77, 304 P2d 415 (1956);

" 'b) Whether the activity was contemplated by the employer and employee either at the time of hiring or later, Ramseth v. Maycock and SIAC, supra;

" 'c) Whether the activity was an ordinary risk of, and incidental to, the employment, Stuhr v. SIAC, 186 Or 629, 636-637, 208 P2d 450 (1949) and Brazeale v. SIAC, 190 Or 565, 577, 227 P2d 804 (1951);

"'d) Whether the employee was paid for the activity, Adams v. SCD, [249 Or 530] 439 P2d 628 (1968);

" 'e) Whether the activity was on the employer’s premises, Adams v. SCD, supra;

" 'f) Whether the activity was directed by or acquiesced in by the employer, Munson v. SIAC, 142 Or 252, 260, 20 P2d 229 (1933); In re Jimmy E. Lynch, WCB No. 515 (1967); and Brazeale, supra;

" 'g) Whether the employee was on a personal mission of his own, Holland v. Hartwig, 145 Or 6, 24 P2d 1023 (1933).’ ” Jordan v. Western Electric, 1 Or App 441, 443-44, 463 P2d 598 (1970).

3 See Allen v. SAIF, 29 Or App 631, 635-36, 564 P2d 1086, rev den (1977), where the application of "arising out of’ and "in the course of’ are separated.