Getz v. Wonder Bur
Getz v. Wonder Bur
Opinion of the Court
If a worker sustains a compensable injury and subsequently, as part of the claim closure and evaluation process, his physician orders an examination to determine the worker’s residual capacity, and, during that exam, the worker sustains a second injury, is the second injury itself compensable? In this case, the Workers’ Compensation Board (board) held that it was not, and claimant seeks judicial review. Because the material facts are not in dispute, we review only for errors of law. ORS 656.298(7); ORS 183.482(8). We reverse.
Claimant worked for employer as a bartender. In 1993, he compensably injured his shoulder while attempting to eject a customer. Alter several surgeries, the last in December 1995, his treating physician, Dr. Chamberlain, released him to modified work. In March 1996, Chamberlain found claimant to be medically stationary and released him to regular work. Before claim closure, Chamberlain requested that claimant undergo a “physical capacity evaluation” (PCE) to determine the degree, if any, of his disability. At that evaluation, while performing one of the diagnostic tasks (a “lunge movement”), claimant injured his left hip. Chamberlain took x-rays, diagnosed left hip tendinitis, and released claimant to regular work. Claimant sought compensation for the hip injury, and employer’s insurer denied the claim. An administrative law judge and the board upheld the denial. This petition for judicial review followed.
To decide this case we must apply ORS 656.005(7)(a), the definition of “compensable injury,” which provides, in part:
“A ‘compensable injury’ is an accidental injury * * * arising out of and in the course of employment * * * subject to the following limitations:
“(A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.”
Compensability under Robinson depends on a “unitary ‘work-connection’ inquiry that asks whether the relationship between the injury and the employment is sufficiently close that the injury should be compensable.” Id. at 185. That inquiry, in turn, consists of two “prongs”: The injury must “arise out of’ the employment, which requires “some causal link,” id. at 186, and it must occur “in the course” of the employment, which “ ‘point [s] to the time, place and circumstance under which the accident takes place,’ ” id. at 188 (quoting Larsen v. State Ind. Acc. Com., 135 Or 137, 139-40, 295 P 195 (1931)). To qualify as compensable, the injury must meet both “prongs,” but “if many facts support one element * * *, fewer facts may support the other.” Id. at 186.
Robinson not only establishes the analytical framework for deciding compensability, it also provides a useful touchstone for applying that analysis here; Robinson evaluates the work connection of a CME, which, like a PCE, is a part of the claims process involving a medical evaluation, off
The Supreme Court describes the CME as follows:
“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. * * * 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-á-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(l)(b) obligates the employer’s insurer or a self-insured employer to pay the costs of a CME. * * *
“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.”
Robinson, 331 Or at 186-87.
This comparative overview of the CME and the PCE demonstrates that the procedures are similar, compelling the conclusion that, because an injury sustained during and caused by the former is compensable, so too is an injury sustained during and caused by the latter.
As discussed above, an injury is compensable if it arises out of and in the course of employment. In Robinson, the Supreme Court summarized those characteristics of a CME, which establish a causal link between an injury occurring there and a risk connected to a condition of employment, thereby meeting the “arising out of’ prong of the work-connection test:
*500 “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 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.”
331 Or at 188. Claimant’s PCE shares most of those characteristics; to the extent there are differences, they are of degree and not of kind. The original 1993 compensable workplace injury exposed him to the possibility that he would be subjected to a PCE. The PCE occurred only because claimant was a worker with a compensable injury. Had claimant refused to participate, his employer could have sought a reduction in benefits. ORS 656.325(4). Employer paid for the examination. If the examination required more than four hours away from work, claimant received compensatory wages. ORS 656.210(4). Its purpose was to aid the employer in determining accurately the extent of its exposure, if any, for claimant’s 1993 compensable injury. In sum, like the CME in Robinson, the PCE “was not an activity in which claimant chose to participate to serve [his] personal interests unconnected to [his] work.” 331 Or at 188. We conclude that, like the CME in Robinson, a PCE such as the one in this case arises out of employment. It not only has “some causal link” to employment, Krushwitz v. McDonald’s Restaurants, 323 Or 520, 525-26, 919 P2d 465 (1996), it has a sufficient causal link.
The “course of employment” aspect of the work-connection test “requires that the time, place, and circumstances of the employee’s injury justify connecting that injury to the employment.” Id. at 526. In Robinson, the Supreme Court identified several key characteristics of a CME that led to the conclusion that an injury sustained there is an injury
As with the “arises out of’ prong, the similarities between the CME and claimant’s PCE with respect to the “in the course of’ prong are more significant and pervasive than the differences. It is true that employer did not directly choose the time, place, and circumstances of the PCE. Neither, however, did claimant. The choice was made by his attending physician in pursuit of an objective that served to furnish employer with a detailed and accurate closing report that contained a specific statement of “the worker’s residual functional capacity’ as required by OAR 436-010-0280(8). In that sense, the physician ordered the PCE and chose the physical therapist who administered it more or less as an agent of employer. Claimant neither paid for the PCE nor attended it for his own purposes. The PCE, like a CME, was an integral part of the claim verification process. It occurred “within the period of employment [that is, at a time when claimant was on employer’s payroll], at a place where a worker reasonably may be expected to be [that is, at a medical facility where he had been directed to go by his physician, as part of the claim evaluation process], while * * * reasonably * * * fulfilling the duties of the employment or * * * doing something reasonably incidental to it.” Fred Meyer, Inc. v. Hayes, 325 Or 592, 598, 943 P2d 197 (1997) (emphasis added). The time, place, and circumstances of the PCE were therefore connected, albeit indirectly, to employer.
“Considering all the pertinent circumstances, are the temporal, spatial, circumstantial, and causal connections between the claimant’s injury and employment sufficient to justify compensation, when sufficiency is evaluated in the light of the Act’s policy of providing financial protection to workers who are injured in the course of employment, regardless of fault?”
In this case, the answer to that inquiry is affirmative. Because the injury arose out of and in the course of employment, it is compensable, and the board erred in concluding otherwise.
Reversed.
Generally, claimants’ attorneys refer to a “compelled medical examination,” or CME, while insurers’ and employers’ attorneys refer to an “independent medical examination,” or IME. The title of ORS 656.325 uses the term “required medical examination,” and in OAR 436-010-0265 the acronym IME stands for “insurer medical examination.” Our usage has not been consistent. Compare Wantousski v. Crown Cork & Seal, 175 Or App 609, 612, 29 P3d 1165 (2001) (CME), with Seeley v. Sisters of Providence, 179 Or App 723, 725, 41 P3d 1093 (2002) (IME, standing for “independent medical examination”). In this case, we use CME because that is what the Supreme Court used in Robinson.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.