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In re Compensation of Greenblatt

Court of Appeals of Oregon

August 30, 2017

In the Matter of the Compensation of Adam J. Greenblatt, Claimant. Adam J. GREENBLATT, Petitioner,
v.
SYMANTEC CORPORATION, Respondent.

          Argued and submitted January 12, 2016

         Workers' Compensation Board 1305365;

          Christopher D. Moore argued the cause and fled the reply brief for petitioner. With him on the opening brief was Moore & Jensen.

          Jerald P. Keene argued the cause for respondent. With him on the brief was Oregon Workers' Compensation Institute, LLC.

          Before DeVore, Presiding Judge, and Tookey, Judge, and Ja mes, Judge. [*]

         [287 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.

         [287 Or.App. 508] TOOKEY, J.

         Claimant 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 therefore affirm.

         ORS 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."[1] 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.

         We draw 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.

         [287 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.

         Physicians 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).[2]

         [287 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 ...

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