Davis v. SAIF

301

Argued and submitted April 19, reversed and remanded December 15, 2021

In the Matter of the Compensation of

Charles E. Davis, Claimant.

Charles E. DAVIS,

Petitioner,

v.

SAIF CORPORATION

and James L. Lebold - The Cueball,

Respondents.

Workers’ Compensation Board

1802374; A173131

503 P3d 485

Claimant, who was off duty as the manager of a pool hall, seeks review of an

order of the Workers’ Compensation Board concluding that injuries he sustained

in removing a troublesome person from the pool hall, after being asked to do so by

the manager then on duty, did not occur in the course of claimant’s employment.

Held: The activity of removing troublesome people from the pool hall was a reg-

ular part of claimant’s job, and he had been asked by the manager then on duty

to carry out that task for employer’s benefit. The activity therefore came within

the course of claimant’s employment, even though he was not then on the job. The

board therefore erred in rejecting the claim.

Reversed and remanded.

Jodie Anne Phillips Polich argued the cause for peti-

tioner. Also on the briefs was Law Offices of Jodie Anne

Phillips Polich, P.C.

Beth Cupani argued the cause and filed the brief for

responudents.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

ARMSTRONG, P. J.

Reversed and remanded.

302 Davis v. SAIF

ARMSTRONG, P. J.

Claimant, a manager at a pool hall, was off duty

and came to the pool hall to shoot some pool. The manager

on duty asked claimant to eject a troublesome person who

was bothering customers, and claimant did so by “verbally”

pushing the person out the door. On the sidewalk in front of

the pool hall, claimant flicked a cigarette out of the person’s

hand and pushed him, and the person punched claimant

in the face, causing injury. Claimant sought compensation

for his injuries, and SAIF denied the claim. Claimant seeks

judicial review of an order of the Workers’ Compensation

Board upholding SAIF’s denial after concluding that claim-

ant’s injury did not occur in the course of his employment.

The relevant facts are undisputed; thus, we review the

board’s determination for errors of law. ORS 656.298(7);

ORS 183.482(8); American Medical Response v. Gaylick, 189

Or App 294, 298-99, 76 P3d 117 (2003), rev den, 336 Or 376,

(2004). We conclude that, on the facts found by the board,

the board’s conclusion that claimant’s injuries did not occur

in the course of his employment is incorrect as a matter of

law. Accordingly, we reverse the board’s order and remand.

To determine whether an injury occurs “in the

course of” employment, the court determines if the time,

place, and circumstances of the injury justify connecting the

injury to the employment. Robinson v. Nabisco, Inc., 331 Or

178, 186, 11 P3d 1286 (2000). An injury takes place in the

course of employment if it occurs “while the worker reason-

ably is fulfilling the duties of the employment or is doing

something reasonably incidental to it.” Fred Meyer, Inc. v.

Hayes, 325 Or 592, 598, 943 P2d 197 (1997).

Claimant testified that, as a manager, removing

people who are disturbing other customers was a part of his

job, and that he regularly removed people from the premises

and from the sidewalk in front of the premises and the park-

ing lot. Employer’s owner testified that claimant’s duties as

a manager included making troublesome people leave, but

that he had never asked claimant to use force. The board

acknowledged that removing the troublesome person who

injured claimant was reasonably within the range of claim-

ant’s regular work duties, and that claimant “arguably” was

Cite as 316 Or App 301 (2021) 303

performing a work-related task in ejecting the troublesome

person. But the board held that claimant’s injury did not

occur in the course of his employment because claimant was

not on duty or being paid, the injury occurred off of employ-

er’s premises, and claimant “exceeded the bounds” of his

employment by using force.1

On judicial review, claimant contends that, because

the activity of removing troublesome people from the pool

hall was a regular part of his job, and he had been asked by

the manager to carry out that task, the activity came within

the course of his employment even though he was not then

on the job. He contends, additionally, that the facts that the

activity took him outside of the pool hall premises and that

he may have violated employer’s policy by using force did not

remove the activity from the course of his employment.

We agree with claimant. As we held in SAIF v.

Scardi, 218 Or App 403, 411, 180 P3d 56, rev den, 345 Or 175

(2008), an activity need not be directed by an employer for

it to be work related. Nor is it required that the employee be

compensated for engaging in the activity. See, e.g., Iliaifar v.

SAIF, 160 Or App 116, 981 P2d 353 (1999) (injury occurred

in the course of employment even though claimant was off

work and unpaid at the time of the injury).

The evidence was undisputed that the task of remov-

ing troublesome people was part of claimant’s job as a man-

ager and that claimant had been asked by the manager on

duty to remove the troublesome person. Claimant engaged

in that task for employer’s benefit. Those facts brought the

task within the course and scope of claimant’s employment

even though claimant was not on the job at the time. See

SAIF v. Sumner, 313 Or App 434, 495 P3d 205 (2021) (task

requested by coworker of delivering petty cash to supervi-

sor while claimant was off work but on call was within the

course of claimant’s employment). Claimant’s chosen method

of carrying out that task, by pursuing the person outside

1

The board found that evidence that claimant’s injury arose out of his

employment was “weak at best,” because, although the act of ejecting the per-

son was within the range of claimant’s work activities, claimant’s duties did not

extend to the sidewalk, and claimant’s conduct in flicking the person’s cigarette

and pushing the person did not serve employer’s interests.

304 Davis v. SAIF

and using physical force, did not deprive the task of a work

connection or remove the activity from the course of claim-

ant’s employment. See Iliaifar, 160 Or App at 122 (injuries

can be work related even if they occur in the performance of

duties that are off the employer’s premises and not within

the claimant’s typical job duties); Andrews v. Tektronix, Inc.,

323 Or 154, 162-63, 915 P2d 972 (1996) (in light of no-fault

nature of workers’ compensation law, misconduct on the job

relating to the method of accomplishing the work task does

not take task beyond the course of employment).

We conclude, further, that in light of our conclusion

that claimant was in the course of his employment in remov-

ing the person, the risk of claimant being injured while

removing a person was a risk of claimant’s employment. See

Fred Meyer, 325 Or at 601 (“[A] worker’s injury is deemed

to ‘arise out of’ employment if the risk of the injury results

from the nature of his or her work or when it originates

from some risk to which the work environment exposes the

worker.”).

The board found that claimant’s injury occurred as

a result of his having provoked an altercation. But because

the board concluded that claimant’s injury did not occur in

the course of his employment and was not compensable for

that reason, the board did not address SAIF’s contention

that the claim was barred by ORS 656.005(7)(b)(A), which

excludes from the definition of “compensable injury” injuries

sustained by an active participant in an assault or combat

that is not connected to a job assignment. On remand, the

board will have an opportunity to address that issue.

Reversed and remanded.