Whether an injury or occupational disease is covered by the workers’ compensation law turns on the deceptively simple words “arising out of and in the course of employment,” which appear both in the definition of “compensable injury” in ORS 656.005(7)(a) and the definition of “occupational disease” in ORS 656.802(1)(a).
Through numerous appellate court decisions over the years, certain general principles have emerged that provide guidance for evaluating the never-ending stream of new scenarios that come along. These principles include:
- The statutory phrases “arising out of” and “in the course of” employment represent different elements of a larger ‘Work-connectedness” inquiry. Rogers v. SAIF, 289 Or 633, 642-43 (1980); Sisco v. Quicker Recovery, 218 Or App 376, 383 (2008).
- “In the course of” concerns the “time, place, and circumstances” of the allegedly injurious work event or exposure. Robinson v. Nabisco, Inc, 331 Or 178, 186 (2000); Legacy Health Systems v. Noble, 250 Or App 596, 600, rev den, 353 Or 127 (2012) An injury occurs “in the course of employment” if it takes place within the period of employment, at a place where the worker reasonably may be expected to be, and While the worker reasonably is fulfilling the duties of the employment or is doing something reasonably incidental thereto. Mendoza v. Liberty Northwest Ins. Corp, 257 Or App 74, 77 (2013).
- “Arising out of” concerns the causal relationship or “nexus” between the allegedly injurious work event or exposure and the worker’s employment. Krushwitz v. McDonald ”s Restaurants, 323 Or 520, 525—26 (1996); Legacy Health Systems, 250 Or at 600. A worker’s injury is deemed to “arise out of” employment if the risk of the injury results from the nature of the work or from some kind of risk to which the work environment exposes the worker. Id.
- Both of these elements must be satisfied to some degree, but a weak showing on one may be made up for by a strong showing on the other. Mendoza, 257 Or App at 77; Legacy Health Systems, 250 Or at 600-01.
- The worker has the burden of proving that a work injury or disease is sufficiently work-connected to be compensable. Phil A. Livesley Co. v. Russ, 296 Or 25, 29 (1983); Legacy Health Systems, 250 Or App at 600.
Under these general principles, various court-made “rules” or “doctrines” have developed around some classic scenarios. These include the “going and coming rule” and its many “exceptions,” the “personal comfort doctrine,” the “traveling employee rule,” and the “unexplained fall rule,” to name a few. See Legacy Health Systems, 250 Or App at 601 (referencing some of the court-made rules). These will be discussed in more detail below.
The courts have emphasized that these “rules” or “doctrines” do not provide any precise “formula” for decision, and thus that each case must be evaluated on its own unique facts. Robinson, 331 Or at 185; Legacy Health Systems, 250 Or App at 601.
On the other hand, the courts also have emphasized that their decisions do embody certain limitations that cannot be exceeded, unless and until the courts overrule them. See Enterprise Rent-A-Car Co. of Oregon v. Frazer, 252 Or App 726, 733, 736 (2012) (rejecting the worker’s argument that the board could choose not to apply the “going and coming rule,” and stating that “our opinions and those of the Supreme Court do embrace general principles that the board is bound to follow”), rev den, 353 Or 428 (2013).
In addition to the above rules or doctrines, the legislature has adopted certain statutory exclusions from the definition of “compensable injury” under ORS 656.005(7)(b) for scenarios involving “assaults or combats,” “recreational or social activities,” and the consumption of alcohol or drugs. The same exclusions apply to occupational disease claims under ORS 656.802(2)(c). In the specific scenarios described in the statute, the exclusions control over any court-made rules or doctrines developed under a general “arising out of and in the course of” analysis. See Roberts v. SAIF, 341 Or 48, 52 (2006) (so holding); Summer Cook, 69 Van Natta 1227, 1228 (2017) (holding that the “recreational or social activities” exclusion in ORS 656.005(7)(b)(B) applied irrespective of whether the worker was a “traveling employee”).