Since Roberts, the Court of Appeals and the Board have addressed to some degree the parameters of the statutory phrase “recreational or social activities.” The rule that comes out of those cases is that an activity is “recreational” or “social” for purposes of the exclusion only if it is reasonably distinct from work activity and also is generally recognized as having a recreational or social nature or purpose.
In Greenblatt v. Symantec Corp, 287 Or App 506 (2017), the court upheld the Board’s finding that the activity of playing basketball on a break from the worker’s regular work activities as a “technical support engineer” on a court and with equipment supplied by the employer on its premises was a “recreational activity.” The court noted that, while engaging in the activity, the worker “was not actually working. ” Id. at 513. The court distinguished previous cases in which it had held that activities such as eating candy or riding bumper cars were part of or encompassed by the worker’s work activity. See Liberty Northwest Ins. Corp. v. Nichols, 186 Or 664, 667 (2003) (defining the activity of “eating candy” while working, which had resulted in a broken tooth, as part of the worker’s work activity rather than a separable “recreational activity”); Kaiel v. Cultural Homestay Institute, 129 Or App 471, 473-74, rev den, 320 Or 543 (1994) characterizing the activity of riding bumper cars while chaperoning students at an amusement park as part of the worker’s employment).
In US. Bank v. Pohrman, 272 Or App 31, rev den, 358 Or 70 (2015), the court concluded that going on a break with a coworker was not a “recreational or social activity” within the meaning of ORS 656.005(7)(b)(B). The court noted that the break was mandatory, paid, and had a “work—related reason.” id. at 38. The court also emphasized that the activity was not “purely social (taken for the sake of companionship)” and that the social aspect of “meeting with her friend was incidental or secondary to the work-related reason for the break.” Id. Hence, the court held that the exclusion did not apply.
In Toohey v. Aviation Adventures, LLC , 269 Or App 416, rev den, 357 Or 551 (2015), a wrongful death civil action, the court affirmed the trial court’s conclusion that the action was barred by the exclusive remedy provision of the worker’s comp law. The court concluded that the decedent’s death occurred during work-related air travel and thus was within the course and scope of the decedent’s employment. The court rejected an argument that the travel was a “recreational or social activity primarily for the worker’s personal pleasure” under ORS 656.005(7)(b)(B), noting that “there was no evidence of any recreational aspect to the trip.”
In Legacy Health Systems v. Noble, 232 Or App 93 (2009), the court concluded that ORS 656.005(7)(b)(B) did not apply to injuries sustained while the worker was walking to a credit union to deposit a personal check during a paid break from work activity. The court held that the worker’s activity was not “social” in nature because she was “walking alone” for a personal purpose. Id. at 98. The court also concluded that the activity was not “recreational,” referring to dictionary definitions of that word. Those definitions included “the act of recreating or state of being recreated: refreshment of the strength and spirits after toil: DIVERSION, PLAY * * * a means of getting diversion or entertainment.” Id. Based on those definitions, the court concluded that the activity of walking to the credit union was not “recreational” in nature, and that “the typical ‘recreational activity’ case involves ‘off-the-job group recreational or social activities such as picnics, office parties, or organized or spontaneous sports or games.’” Id. (quoting its decision in the Roberts case).
In Summer Cook, 69 Van Natta 1227 (2017), the Board concluded that an exercise class attended by a flight attendant while on a 17-hour layover between flights was a “recreational activity” under ORS 656.005(7)(b)(B). Even though the worker did not consider exercise “pleasurable,” the Board noted that she did it “as a daily activity of life” in order “to refresh her strength or spirits.”
In Brooke A. Woodward, 69 Van Natta 266 (2017), the Board accepted the parties’ agreement that the activity of smoking marijuana in connection with the worker’s employment as a receptionist at a medical marijuana dispensary was a “recreational or social activity” under ORS 656.005(‘D(b)(B). However, the Board concluded that the exclusion did not apply under the “personal pleasure” element (see below).
In Rebecca L. Nehring, 66 Van Natta 734 (2014), the Board concluded that the worker, an on-site property manager for two mobile home facilities, was not engaged in a “social or recreational activity” under ORS 656.005(7)(b)(B) when she took her dog outside to “relieve itself.” The Board cited dictionary definitions applied by the courts in prior cases, and concluded that the worker’s “dog-related” activity was not for the worker’s “diversion or entertainment or undertaken to refresh her strength or spirits,” and also was not ‘“marked by’ or undertaken ‘in pleasant companionship with one’s friends or associates.’”