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Robinson v. Nabisco9/28/2000
aid employer in monitoring its continuing exposure to liability for a work-related injury. The examination was not an activity in which claimant chose to participate to serve her personal interests unconnected to her work.
The characteristics of a CME, summarized above, show how the risk of an injury during a CME is one that is distinctly associated with employment. Phil A. Livesley Co. v. Russ, 296 Or 25, 29-30, 672 P2d 337 (1983). Indeed, the fact of employment and the occurrence of a workplace injury are the minimum circumstances that give rise to the use of a CME.
This court has stated that "' njuries sustained by a worker in doing the appointed task are normally compensable, absent self-inflicted injury .'" Wilson v. State Farm Ins., 326 Or 413, 418, 952 P2d 528 (1998), (quoting Clark v. U.S. Plywood, 288 Or 255, 261, 605 P2d 265 (1980)). ORS 656.325(1) obligated claimant, by reason of her status as an employee with a compensable injury, to carry out the "appointed task" that employer requested, i.e., submission to a CME administered by Watson. Claimant's fulfillment of that statutory obligation exposed her to the risk that produced her injury. We are satisfied that a sufficient causal link exists between claimant's injury and a risk connected with employment to justify the conclusion that claimant's injury arose out of employment under ORS 656.005(7)(a).
We now turn to the "in the course of" factor of the work-connection test. As explained above, that factor "'point to the time, place and circumstance under which the accident takes place.'" Rogers, 289 Or at 639 (quoting Larson v. State Ind. Acc. Com., 135 Or 137, 139-40, 295 P 195 (1931). In Fred Meyer, this court stated:
"An injury occurs 'in the course of' employment if it takes place within the period of employment, at a place where a worker reasonably may be expected to be, and while the worker reasonably is fulfilling the duties of the employment or is doing something reasonably incidental to it." 325 Or at 598.
Here, the fact that employer exercised control over claimant at the time of her injury indicates that that injury occurred in the course of employment. As already discussed, employer chose the time, place, and circumstances of claimant's medical evaluation. Employer directed claimant to attend and controlled the circumstances of the CME that lead to claimant's injury. Claimant did not volunteer to participate. But for employer's directive, claimant would not have attended the examination. Claimant's entitlement to compensation for her costs in attending the CME also suggests that the CME injury occurred in the course of employment. See Adams v. Compensation Department, 249 Or 530, 532-33, 439 P2d 628 (1968) (fact that deceased worker was compensated for work that occurred during accident supported finding that accident arose in course and scope of employment).
Claimant participated in the CME for employer's benefit. Claimant acknowledges, as she must, that her attendance at the CME was motivated in part by a desire to avoid the suspension of her worker's compensation benefits, as described in ORS 656.325(1)(a). But her desire to avoid that penalty is comparable to the desire of all employees to avoid discipline or discharge by complying with their employer's lawful directives. The proper focus is whether the activity promotes some interest of the employer. As stated above, the CME in this case served the interest of employer by providing employer with pertinent information about claimant's compensable injury .
Applying the criteria identified in Fred Meyer, 325 Or at 598-99, we conclude that claimant's CME injury occurred in the course of employment. Because
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