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Robinson v. Nabisco9/28/2000
6. The "in the course of" employment prong requires that the time, place, and circumstances of the injury justify connecting the injury to the employment. Id. at 526.
We begin our analysis of the work-connection test by applying the "arising out of" prong to claimant's CME injury . Claimant's injury arises out of employment if employment exposes her to some risk from which the injury originates. Fred Meyer, Inc. v. Hayes, 325 Or 596, 601, 943 P2d 197 (1997).
ORS 656.325(1) entitles only three persons or entities to request a CME: the Director of the Department of Consumer and Business Services, an insurer, and a self-insured employer. Only one person is subject to the duty to submit to a CME: a worker entitled to receive compensation. The predicate for any CME is a work-related injury or disease that entitles the worker to receive compensation. Thus, it is a condition of the employment relationship -- specifically, an injury or disease that occurs on the job -- that gives rise to the respective rights and duties of the parties described in ORS 656.325(1).
The injured worker must comply with a request for a CME or face suspension of the right to compensation. In no sense is the worker's participation in a CME a voluntary act carried out for personal reasons.
ORS 656.325(1) does not state explicitly the purpose of a CME but, in context, the purpose is clear. A CME is designed to provide the director, the self-insured employer, or the employer's insurer with information about claimant's condition from a doctor who has no fiduciary relationship with claimant, such as that of an attending physician. See ORS 656.005(12)(b) (defining "attending physician," in part, as "a doctor or physician who is primarily responsible for the treatment of a worker's compensable injury * * *"). An employer or insurer that requests a CME, as in this case, might use the examining doctor's information to protect the employer's legal position on the claim vis-a-vis the claimant, for example, by challenging the continuing compensability of the injury or disease, the extent of any resulting disability, or the nature of medical or psychological treatment that the claimant may require.
ORS 656.325(1)(b) obligates the employer's insurer or a self-insured employer to pay the costs of a CME. The costs include the claimant's net lost wages, unless he or she already receives temporary disability benefits under ORS 656.210(4), as well as expenses connected with the examination, including child care, travel, meals, and lodging.
The statute gives claimants no role in selecting the person who performs the CME but, by implication, leaves that matter to the person or entity that requests the examination. In the present case, claimant's employer requested the CME, and the employer's chosen medical examiner, Watson, controlled completely the examination procedures and the conditions that lead to claimant's injury .
The foregoing discussion of the characteristics of a CME, as described in ORS 656.325(1), demonstrates that some causal link does exist between claimant's injury during the CME and a risk connected to a condition of employment. Claimant's workplace injury was the event that exposed her to the possibility that employer might request a CME. In requesting a CME, employer was exercising a statutory right granted to it because of its status as an employer of a worker with a compensable injury. Claimant faced a loss of her compensation if she failed to submit to the examination. Employer bore the responsibility of paying claimant's costs connected to the examination, including, as appropriate, net lost wage reimbursement. Finally, the purpose of the examination was to
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