In the Matter of the Compensation of Adam J. Greenblatt, Claimant. Adam J. GREENBLATT, Petitioner,
SYMANTEC CORPORATION, Respondent.
and submitted January 12, 2016
Compensation Board 1305365;
Christopher D. Moore argued the cause and fled the reply
brief for petitioner. With him on the opening brief was Moore
P. Keene argued the cause for respondent. With him on the
brief was Oregon Workers' Compensation Institute, LLC.
DeVore, Presiding Judge, and Tookey, Judge, and Ja mes,
Or.App. 507] Case Summary: Claimant seeks review of an order
of the Workers' Compensation Board upholding
employer's denial of his claim for a right knee injury
that occurred as he jumped up to slap the backboard of a
basketball hoop in employer's courtyard. Claimant
contends that the board erred in determining that the injury
was not compensable because it occurred during a recreational
activity primarily for claimant's personal pleasure. ORS
656.005(7)(b)(B). Held: Reviewing the board's
order pursuant to ORS 183.482(8)(a) and (c) for substantial
evidence, substantial reason, and errors of law, the Court of
Appeals concluded that the board did not err. The court
concluded that claimant did not preserve an objection to the
board's fnding that the basketball activity itself was
recreational. The court further concluded that it would not
review claimant's contention that the injury occurred
during a recreational activity, claimant having failed to
challenge the board's rationale that the injury was
the result of engaging in the recreational activity.
Finally, the court concluded that substantial evidence
supported the board's fnding that claimant engaged in the
recreational activity primarily for his personal pleasure.
Or.App. 508] TOOKEY, J.
seeks review of an order of the Workers' Compensation
Board that upholds employer's denial of his claim for a
right knee injury that occurred as he jumped up to slap the
backboard of a basketball hoop in employer's courtyard.
The board concluded that the injury was not compensable,
because it occurred during a recreational activity primarily
for claimant's personal pleasure. ORS 656.OO5(7)(b)(B).
We review the board's order pursuant to ORS 183.482(8)(a)
and (c) for substantial evidence, substantial reason, and
errors of law, conclude that the board did not err, and
656.OO5(7)(a) provides that a compensable injury is one that
arises out of and in the course of employment. But ORS
656.OO5(7)(b)(B) excludes from the definition of
"compensable injury" an injury "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 issue in this
case is whether claimant's injury is excluded from the
definition of "compensable injury" because the
injury occurred during a recreational activity that claimant
engaged in primarily for his personal pleasure.
our summary of the facts from the findings of the
administrative law judge (ALJ), which, except as noted, the
board adopted. Claimant works for employer as a technical
support engineer. His job requires him to sit at a desk and
communicate with customers by telephone and through email.
Claimant is a salaried employee and is allowed, and
encouraged, to take paid breaks.
Or.App. 509] Employer owns and maintains a fenced courtyard
adjacent to its building for employees to use during their
breaks. The courtyard includes a basketball court and several
tables with chairs. On the day of his injury, claimant and a
coworker played basketball during a break. Claimant testified
that he and his coworker concluded their play and that, as he
was leaving the court to return to work, he leapt to try to
slap the backboard of the basketball hoop. Claimant testified
that he did so out of happiness, in part for his "own
good, " and in part because he was pleased with his good
day at work. Claimant injured his right knee either as he was
jumping or when he landed on his feet.
diagnosed a right knee patellar tendon rupture. Employer
denied a claim for the injury, asserting that it had occurred
during a recreational activity primarily for claimant's
personal pleasure and was therefore excluded from coverage
under ORS 656.OO5(7)(b)(B). Claimant requested a hearing.
Employer presented evidence that claimant had reported to his
physician that the injury had occurred while he was playing
basketball. Claimant disputed that characterization, and
offered his testimony that the injury had occurred when
claimant jumped as he was returning to work. The ALJ found
claimant credible and accepted claimant's version of the
facts. In overturning employer's denial of the claim, the
ALJ concluded that the recreational-activity exclusion did
not apply, finding that when claimant was injured, the
recreational activity had ended, claimant was returning to
work, and claimant had a work-related purpose in jumping to
express his happiness and excitement about his work. The ALJ
therefore concluded that the recreational activity exclusion
did not apply. The ALJ further concluded that the injury
arose out of and in the course and scope of claimant's
employment under ORS 656.OO5(7)(a).
Or.App. 510] The board adopted the ALJ's findings, with
the exception of the finding that claimant's injury had
not occurred during a recreational activity. The board stated
that "there is no dispute that the basketball activity
was a recreational activity and that claimant engaged in that
activity primarily for his personal pleasure." The board
explained that it did not need to resolve the factual dispute
about whether claimant's injury occurred while he was
playing basketball or as he was leaving the basketball court,
finding that, in either case, the activity was recreational:
"Specifically, claimant was still on the employer's
basketball court where he had engaged in a recreational game
of basketball primarily for his personal pleasure.
Furthermore, he was injured while leaping to touch the
backboard. *** [W]e are persuaded that this activity was part
and parcel of his recreational activity of playing
basketball. Moreover, even if the basketball game had ended
just seconds before claimant's leap, he was still within
the boundaries of the court and his injury was ultimately the
result of engaging in the recreational activity of