discussing “generally inherent in every work situation”
How later courts described this case
- discussing “generally inherent in every work situation”
Written by the judges who cited it.
The opinion
DE MUNIZ, J.,
dissenting.
The majority concludes that the Board erred in its interpretation of the “condition[ ] generally inherent in every working situation” in ORS 656.802(3)(b). In so holding, the majority misconstrues the Board’s order, which states:
“[T]he assumption of a new job ordinarily will result in extra work hours gaining experience and proficiency. Under certain circumstances, the extra work preparation time may be deemed excessive and, hence, not a condition common to all employments. * * *
“Claimant’s assumption of the new teaching position brought with it the expectation that he would devote extra preparation time to gain proficiency in the teaching position. * * * Under circumstances such as these, where a worker assumes a new position in the same occupation (e.g., teaching) and has met the minimum level of proficiency required to perform the tasks of the new position, we conclude that it is a condition common to all employments for the worker to devote extra time and efforts gaining proficiency in the position.
“[W]hen properly viewed in the context of commencing a new position, an event that commonly occurs in all employments, those number of hours [spent by claimant] do not appear to be unusual.” (Emphasis added.)
*477 Based on the emphasized language, the majority concludes that the Board determined the inherent condition to be devoting extra time and effort to gain proficiency in a new position. 158 Or App at 474. However, when all of the order is considered, the common condition identified by the Board is not extra time and effort but, rather, the “learning curve” present in any new employment with the attendant expectation that a worker will do the preparation needed to perform the job.
The majority does not recognize a learning curve as a condition common to any new employment. Instead, it focuses solely on off-duty efforts needed to gain proficiency. The majority points to a laundry list of jobs found in the newspaper classifieds, which, it says, do not require off-duty efforts to become proficient and, therefore, shows that such efforts cannot be common to all employments. 1
I do not dispute that many jobs require little or no off-duty time or effort to do them competently. But the majority’s focus misses the common condition recognized by the Board. A dishwasher may not have to spend off-duty time and effort to become competent at a new dishwashing job. However, that does not mean that there is no learning curve in that new job. A learning curve exists even if it might be limited to learning the physical layout, the routine of the staff, or employer expectations for the job.
I do not conclude, as does the majority, that the Board’s order states that every new job requires off-duty time and effort. Rather, it shows the Board’s understanding that, depending on the nature of the job and the qualifications brought to it, a worker may — or may not — be required to spend off-duty time and effort to become proficient at a new job. Articulated in terms addressing claimant’s circumstances, the Board recognized that where, as here, claimant’s *478 prior teaching experience in elementary school music education gives him only “minimal proficiency” for the new position, the “learning curve” of teaching social studies at the secondary level will require off-duty time and effort in order to gain proficiency. 2
The majority recognizes that “a work-related mental disorder is not compensable if the stress-inducing condition is common to the general range of employments, even if that condition is not necessarily inherent in every job.” 158 Or App at 471. Despite that recognition, the majority’s approach demands that the condition be present in every job and focuses the dispute exactly where the legislature did not want it. Legislative history cited by the Supreme Court in Fuls v. SAIF, 321 Or 151, 160-61 , 894 P2d 1163 (1995), shows that the qualifier “generally” in ORS 656.802(3)(b) was added precisely because the legislature recognized the impossibility of demonstrating that a condition would be inherent in absolutely every working situation.
Our role on review is to decide whether the Board’s determination “appears to be within the legislative policy that inheres in the statutory term.” Fuls, 321 Or at 162 . The Board’s identification of the presence of a learning curve in new employment is a condition common to the general range of employments. The Board’s interpretation is, thus, within the legislative policy of a condition “generally inherent in every working situation,” ORS 656.802(3)(b), and the majority errs in holding otherwise.
I dissent.
Warren, Edmonds and Linder, JJ., join in this dissent.
Even assuming that the majority is correct that lifeguards, delivery drivers, painters, or shipping handlers do not spend off-duty time in job preparation, the majority does not explain why it picks those occupations as opposed to teachers, accountants, stock brokers, lawyers, computer programmers or, for that matter, judges, whose professions do demand off-duty efforts to gain proficiency.
The Board clearly understood that there are situations when the required proficiency of a new position goes beyond constituting a “learning curve” and will result in excessive preparation. In claimant’s instance, however, the Board rejected that that was the case. Claimant’s second assignment of error essentially challenges that finding, but I agree with the majority that that issue was beyond the scope of remand.