stating that the claimant’s injury occurred during personal-comfort activ- ities and therefore satisfied “in the course of” prong
How later courts described this case
- stating that the claimant’s injury occurred during personal-comfort activ- ities and therefore satisfied “in the course of” prong
- addressing “aris- ing out of” prong where it had been determined that claim- ant’s injury occurred during personal-comfort activities and therefore satisfied “in the course of” prong
- a requirement that claimant stay on the work site during breaks and an absence of water created need for claimant to bring his own beverage
Written by the judges who cited it.
The opinion
5
Argued and submitted January 19, affirmed August 18, 2021
In the Matter of the Compensation of
John Chavez-Cordova, Claimant.
SAIF CORPORATION
and Shelter Management, Inc.,
Petitioners,
v.
John CHAVEZ-CORDOVA,
Respondent.
Workers’ Compensation Board
1801525; A173321
496 P3d 39
Claimant’s eye was injured when, as he was opening an energy drink bottle,
its contents exploded and the cap shot into his eye. Employer seeks judicial review
of an order of the Workers’ Compensation Board, contending that the board erred
in determining that claimant’s eye injury arose out of his employment because
it was caused by a neutral risk to which claimant’s work conditions had exposed
him. Held: Because the risk of injury from the bottle cap was neither employment-
related nor personal, the Workers’ Compensation Board correctly concluded that
the risk of injury was a neutral one. And because employer required claimant to
take his paid breaks at the job site and did not provide drinks, bringing his own
beverage was a feature of claimant’s employment. The board found that employer
acquiesced in and contemplated claimant’s consumption of beverages while on
his paid break, and that finding is supported by substantial evidence. The board
therefore did not err in determining that claimant’s employment placed him in a
position to be injured and that the injury therefore arose out of the employment.
Affirmed.
Beth Cupani argued the cause and filed the briefs for
petitioners.
Aaron Clingerman argued the cause and filed the brief
for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
ARMSTRONG, P. J.
Affirmed.
6 SAIF v. Chavez-Cordova
ARMSTRONG, P. J.
Employer seeks judicial review of an order of the
Workers’ Compensation Board, contending that the board
erred in determining that claimant’s eye injury arose out of
his employment. We conclude that the board did not err and
affirm.
Claimant worked for employer as a painter of new
construction. Claimant was required to stay on the work
site during mandatory paid work breaks. In the absence of
a place to sit during his break, claimant sat in the cab of
employer’s truck. Claimant’s eye was injured when, as he
was opening an energy drink bottle, its contents exploded
and the cap shot into his eye.
An injury is compensable if it arises out of and in
the course of employment. ORS 656.005(7)(a). It is undis-
puted that claimant’s injury occurred during the course of
his employment. See Halfman v. SAIF, 49 Or App 23, 29-30,
618 P2d 1294 (1980) (typical “personal comfort” activities
include restroom breaks, getting something to drink, and
other typical kind of break activities contemplated by the
employer and therefore do not remove the employee from
the employment situation under the personal comfort doc-
trine). The only dispute concerns whether the injury arose
out of claimant’s employment. An injury “arises out of” the
employment if it arises from the nature of the claimant’s
work or from a risk to which the work environment exposes
the worker. Fred Meyer, Inc. v. Hayes, 325 Or 592, 598, 943
P2d 197 (1997).
Risks are generally categorized as employment-
related risks, personal risks, or neutral risks. Phil A.
Livesley Co. v. Russ, 296 Or 25, 29-30, 672 P2d 337 (1983).
Employment-related risks are those that are inherent to
the job. SAIF Corp. v. Marin, 139 Or App 518, 524, 913 P2d
336, rev den, 323 Or 535 (1996) (citing Larson, 1 Workmen’s
Compensation Law, § 7.20, 3-13 (1995)). Personal risks are
risks that have no employment connection and that arise
from conditions or circumstances that are personal to the
worker. Sheldon v. U. S. Bank, 364 Or 831, 834, 441 P3d
210 (2019) (“Personal risks include a claimant’s personal
medical conditions, such as conditions that can lead to an
Cite as 314 Or App 5 (2021) 7
idiopathic fall.”); Marin, 139 Or App at 523-24. Neutral risks
have no particular employment or personal character and
are compensable if work conditions caused the claimant to
be in a position to be injured. Id. at 523; see also Sheldon,
364 Or at 834 (adhering to analysis).
It is undisputed that the cause of claimant’s injury
was not an employment-related risk. The board also rejected
employer’s contention that claimant was injured due to a per-
sonal risk, finding, “Claimant was not injured by an allergic
reaction or anything distinctly personal to him (i.e., he did
not prepare the drink or cause it to explode).” The board rea-
soned that the risk of the bottle cap hitting claimant in the
eye was a “neutral risk” that was neither connected to the
employment nor personal to claimant.
The board found, further, that claimant’s injury
resulted from a risk to which the work environment had
exposed him:
“Claimant was injured while engaging in a typical break
activity (drinking a beverage) acquiesced in and contem-
plated by the employer. Specifically, the employer required
claimant to stay on the worksite during breaks, but did
not provide him anything to drink. * * * Confined to the
worksite for eight hours a day, with no designated break
room or anything to drink, it was reasonable to expect
claimant to bring a drink to work. Further, the employer
specifically allowed claimant to drink any non-alcoholic
beverage at work. * * * It follows then, that claimant was
injured during an activity impliedly authorized by the
employer, on a paid break, complying with the employer’s
requirement to stay on the worksite, in an employer-owned
truck, from a drink that he brought to work because of the
conditions of his work environment.”
The board rejected employer’s contention that the
injury did not arise out of the employment because the work
did not expose claimant to the specific risk of an exploding
energy drink. Citing Clark v. U. S. Plywood, 288 Or 255, 266,
605 P2d 265 (1980), the board reasoned that the employ-
ment connection of the cause of injury need not be strong if
the worker is within the course of employment at the time
of injury and is engaged in an activity that is normal and
accepted. The board found:
8 SAIF v. Chavez-Cordova
“Claimant was injured in a work truck, on the employer’s
worksite, while drinking a beverage (as contemplated by
and acquiesced in by the employer), during a paid break. We
consider the circumstances surrounding claimant’s injury
to be a normal, accepted activity sufficient to establish
a work connection between his injury and work environ-
ment.”
Thus, the board concluded that claimant’s injury resulted
from a risk to which the work environment had exposed him
and therefore arose out of his employment.
Employer challenges the board’s determination that
the injury arose out of claimant’s employment. Although
employer does not dispute the board’s finding that claim-
ant’s injury was not caused by a circumstance personal to
him, such as an idiopathic condition, employer asserts that
the risk of injury was still personal to claimant, because the
exploding beverage was a “personal instrumentality”—a
danger that claimant brought to the workplace. See Larson,
1 Workers’ Compensation Desk Edition § 9.03[1] (2019) (dis-
cussing cases describing risks of “imported dangers”).
Beverage bottles are ubiquitous in the workplace, and we
would be skeptical of treating them as inherently hazard-
ous objects or personal instrumentalities of risk.1 Although
the board found that the beverage bottle cap caused claim-
ant’s injury when the bottle’s contents exploded, there was
no finding as to why the contents exploded. The board found
that there was nothing that claimant did that caused the
contents of the bottle to explode or the cap to hit his eye—he
did not prepare the beverage or cause it to explode—and that
finding is supported by substantial evidence. We agree with
the board’s conclusion that the risk of the bottle’s contents
1
Larson has summarized the cases addressing the issue of imported
dangers:
“This treatment of the imported-risk doctrine, then, may be summed
up by observing that while it has been applied in a wide range of cases
including explosives, weapons, automobiles, food (at least by dictum), and
matches, there is also considerable support for the view that the doctrine
should be limited to articles that are genuinely and inherently hazardous,
and not extended to articles that are familiar adjuncts of living, such as food,
soft drinks, matches, automobiles, and clothing, merely because the article
proves to be dangerous due to a defect, or as in the Puffin case, due to a haz-
ardous quality that was evidently not apparent to the wearer.”
Larson § 9.03[5].
Cite as 314 Or App 5 (2021) 9
exploding and the cap injuring claimant’s eye was not a risk
personal to claimant.
Because the risk of injury was neither employment-
related nor personal, the risk of injury was a neutral one.
Marin, 139 Or App at 522. As the court said in Panpat v.
Owens-Brockway Glass Container, Inc., 334 Or 342, 350, 49
P3d 773 (2002), “[u]nexplained accidents are a classic exam-
ple of neutral risks.” Although the board found that the
explosion of the beverage caused the bottle cap to shoot into
claimant’s eye, the board made no finding as to the cause of
the explosion. Thus, the cause of claimant’s injury is similar
to those described in Panpat as “unexplained.” Id. (citing
Redman Industries, Inc. v. Lang, 326 Or 32, 37 n 1, 943 P2d
208 (1997)). The board correctly held that claimant’s injury
was caused by a neutral risk.
An injury resulting from a neutral risk is compen-
sable where the conditions of employment put a claimant in
a position to be injured. As Larson explains, even injuries
caused by “imported” risks can be compensable if there is
some causal nexus to the employment. Larson § 9.03[3]; see
Goodyear Aircraft Corp. v. Industrial Comm’n, 62 Ariz 398,
158 P2d 511 (1945) (where employer required the employee
to remain on the job while he consumed his lunch, eye injury
caused when soft drink bottle that claimant brought to work
exploded arose out of and in the course of employment). Even
assuming, as employer contends, that claimant’s energy
drink was an imported risk, claimant’s consumption of the
drink had an employment connection. Because employer
required claimant to take his paid breaks at the job site
and did not provide drinks, bringing his own beverage was
a feature of claimant’s employment. The board found that
employer acquiesced in and contemplated that claimant
would drink beverages while on his paid break, and that
finding is supported by substantial evidence. Claimant’s
injury occurred while he was engaged in that authorized
act. We conclude that the board did not err in determin-
ing that claimant’s employment placed him in a position
to be injured and that the injury therefore arose out of the
employment.
Affirmed.