ORS 656.005(7)(b)(B) defines as “not compensable” an “[i]njury incurred while engaging in or performing, or as a result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure.”
The statute was adopted in 1987, see Or Laws 1987, ch 713, § 3, in response to the infamous “hot tub case,” Beneficiaries of McBroom v. Chamber of Commerce, 77 Or App 700, rev den, 301 Or 240 (1986). See Roberts v. SAIF, 341 Or 48, 53-54 (2006) (reviewing the legislative history of the provision). In McBroom, the worker drowned after becoming inebriated and passing out in a hot tub at a hotel where he was staying while on a business trip.
The limitation in the original version of the statute applied only when the recreational or social activity was performed “solely for the worker’s personal pleasure.” The word “solely” was replaced with the word “primarily” in 1990. See Or Laws, 1990 (Special Session), ch 2, § 3.
The foundational case for interpreting and applying the statutory exclusion is the Supreme Court’s decision in Roberts v. SAIF, 341 Or 48 (2006). There, the court identified three elements, all of which must be present for the exclusion to apply:
- Whether the worker was engaged in or performing a “recreational or social activit[y].”
- Whether the worker incurred the injury “while engaging in or performing, or as a result of performing,” that activity.
- Whether the worker engaged in or performed the activity “primarily for the worker’s personal pleasure.” 341 Or at 52.
The Board has identified the exclusion as an “affirmative defense,” with the employer or insurer having the burden of proving each of the above elements. Summer Cook, 69 Van Natta 1227, 1229 (2017).
In Roberts, the worker, a car salesperson, was severely injured while riding a co-worker’s personal motorcycle on the employer’s sales lot, when another employee backed a vehicle into him. It was undisputed that the worker’s riding of the motorcycle “served no business purpose,” and that the employer “gained no benefit” from the activity. 341 Or at 50.
The court had little hesitation in classifying the worker’s activity of riding the co-worker’s motorcycle as a “recreational activity,” and it was clear that the claimed injuries occurred while engaging in that activity. Id. at 52-53. Thus, the only issue remaining for the court was whether the worker had engaged in the activity “primarily for [his] personal pleasure.”
On that issue, the court reviewed the legislative history of the exclusion and concluded that it confirmed 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” and then to assess whether “the worker’s personal pleasure was the fundamental or primary reason, in relation to the work-related reasons, for engaging in the activity.” Id. at 56. If it was, then the claimed injury is not compensable.