Table of Contents
To be compensable, an injury must both occur (1) in the course of and (2) arise out of the worker's employment; these are distinct elements and are not synonymous. American Management Systems v. Burns, 1995 OK 58, 903 P.2d 288. The latter phrase comtemplates the causal connection between the injury and the risks incident to employment, whereas the former phrase relates to the time, place and circumstances under which the injury is sustained. Thomas v. Keith Hensel Optical Labs, 1982 OK 120, 653 P.2d 201.
Whether an employee's injury "arises out of" or "occurs in the course of" employment presents a non-jurisdictional issue of fact which is to be determined by the trial judge and must be affirmed by the reviewing court if supported by any competent evidence. Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, 958 P.2d 795.
To establish that an injury occurring on the job arose out of employment, a claimant must show 1) the nature of the work performed at the time of the injury, which may be established by lay testimony, and 2) a nexus between the work activity and the harm for which compensation is sought. The latter must be established by expert medical opinion.
Pauls Valley Travel Center v. Boucher, 2005 OK 30, 112 P.3d 1175
1. Arising Out of Employment
All risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and 'neutral, risks—i.e., risks having no particular employment or personal character. Harms from the first are universally compensable. Those from the second are universally noncompensable. It is within the third category that most controversy in modern compensation law occurs. The view that the injury should be deemed to arise out of employment if the conditions of employment put claimant in a position to be injured by the neutral risk is gaining increased acceptance. When employment and personal risks concur to produce injury, the injury arises out of the employment, since the employment need not be the primary cause, but need only contribute to the injury."
Larson, Workers' Compensation, Chapter 7.0.
Oklahoma is with the majority of courts interpreting "arises out of employment" (in off-premises injury cases) to require proof that the injury was caused by an increased risk to the injured worker greater than that to which the general public is exposed. This rule is tempered by the provision that an injury is compensable if the risk was an actual risk of employment even if it is common to the public. This modification accounts for the street risk and the acts of God and nature cases that have been found compensable.
Categories of Risk
Business - injuries from risks that are solely connected with job performance are employment-related and always covered.
Neutral - injuries from such risks are compensable if they occur on the business premises, and they are compensable if they occur outside the business premises if the risk is greater than that experienced by the general public; otherwise they are not covered.
Personal - injuries are generally not compensable subject to a number of exceptions. Personal risk includes injuries from personal bodily functions such as ingestion and elimination of food and water. It also includes the results of idiopathic conditions subject to the exception set out in Flanner v. Tulsa Public Schools which is discussed later in this section.
Mixed - if the risk is a mix of business and personal, the injury is covered if the business element contributed to the injury.
1.1. Acts of God and Exposure
These are considered to be neutral risks, and the injured worker must prove an increased risk greater than that experienced by the general public. If the injury occurs on business premises, there is no need to prove increased risk. However, this standard is tempered by the common sense analysis used by Justice Reif in the Hollman case.
Risks associated with weather conditions were addressed in the pre-Burns case of Consolidated Pipe Line Co. v. Mahon, 152 Okla. 72, 3 P.2d 844 (1931). The third syllabus of Mahon states: "Although the risk may be common to all who are exposed to the elements during a sudden and unexpected violent thunderstorm accompanied by lightning and rain, the question is whether the employment exposes the employee to the risk." In its fourth syllabus, Mahon recognizes coverage where the employment exposes the employee to a weather risk "more than others in the same locality are so exposed."
Requiring employees to work in inclement weather involves "more exposure" to the risks of such weather than the general public who have the choice not to undertake activity or even go out in adverse weather. Perhaps the best illustration of this point is found in American Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1085-86 (Texas Civ. App. 1938), where the court observed:
In the case before us the very work which the deceased was doing for his employer exposed him to greater hazard from heatstroke than the general public was exposed to for the simple reason that the general public were not pushing wheelbarrow loads of sand in the hot sun on that day.
1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 8.42 (1998), considers this statement to be "[t]he proper application of the increased-risk test." In the instant case, members of the general public were not required to go out in the rain to attend to clients of Employer for the benefit of Employer as Claimant was required to do.
Risk analysis must be applied consistent with the time honored test for "arising out of employment" set forth in the first syllabus of Mahon: "[An injury] 'arises out of the employment' when there is apparent to the rational mind upon consideration of all the circumstances a causal relation between the conditions under which the work is required to be performed and the resulting injury." 152 Okla. 72, 3 P.2d 844 (emphasis added). In other words, the connection between working requirements and the risk of injury, including neutral risks, is more a matter of common sense than a mechanical, legalistic test.
Hollman v. Home Health Care Services, 1999 OK CIV APP 65, 985 P.2d 778. (Opinion by Justice John Reif while he was on the COCA).
1.1.2. Heat and Cold
Exposure to heat and cold would include sunstroke, heat exhaustion, frostbite, pneumonia, and other effects of weather.
If the place of employee's work, by reason of its location, nature and climatic conditions, would likely subject him to the danger of heat prostration (heat exhaustion, overheating or heat exertion), or if the hazard of such thermic injury is naturally connected with and reasonably incidental to his employment as distinguished from ordinary risk to which the general public is exposed merely from climatic factors, the disability produced by a thermic injury is compensable. Virgil Graham Construction Company v. Nelson, Okl., 322 P.2d 651; Garfield County v. Best, Okl., 289 P.2d 677; L.C. Kimsey Heating & Plumbing Co. v. House, 152 Okl. 200, 4 P.2d 59; Sheenan Pipe Line Co. v. Cruncleton, 163 Okl. 205, 22 P.2d 112; Smith v. Zweifel, 176 Okl. 113, 54 P.2d 649; E.G. Nicholas Const. Co. v. State Industrial Commission, Okl., 262 P.2d 893.
In Smith v. Zweifel, 176 Okl. 113, 54 P.2d 649, we stated:
"Injury by sunstroke is considered as arising out of the employment, within the meaning of the Workmen's Compensation Act, where it is sustained by reason of the employee's being placed, by the nature of his work, in a position or under circumstances subjecting him to a greater risk of such injury than other people in the same vicinity who are not engaged in such work." [Emphasis added].
Happel v. Bell, 1960 OK 119, 352 P.2d 400.
1.1.3. Insect Bites
Did bite occur on the business premises? If not, what was the increased risk?
Exterminators, farm hands, stable hands, nursery workers and gardeners should be covered because the risk is characteristic of the business.
Copeland v. The Lodge Enterprises, Inc., 2000 OK 36, 4 P.3d 695, is a district court case which began as a workers' compensation claim for injury from a spider bite. Joyce Copeland was a pharmaceutical sales representative who was bitten while spending the night at a motel. The claim was denied, Copeland v. Boots Pharmaceuticals, 1996 OK CIV APP 8, 916 P.2d 277, and the district court action was instituted against the motel owner. Denial of the claim is in accord with the holding in American Management Systems v. Burns, 1995 OK 58, 903 P.2d 288. The bite risk is not directly related to her business activities, and it is not greater than that to which the general public is exposed.
1.1.4. Contagious Disease
Dormant injuries such as hepatitis C and histoplasmosis are discussed under Accidental Personal Injury.
1.1.5. Professor Larson's Approach
What does the average person, free of the obligations of any particular employment, do when it is twenty below, or a hundred in the shade, or raining, sleeting, or snowing violently? There may be various answers as to what the worker does, but there is one clear answer as to what the worker [average person] does not do. He or she does not stay outdoors all day. Yet a surprising number of cases narrow the class of the general public to people who do just that. In fact, in the case which carried this process to its ultimate reductio ad absurdum, the comparison was made with employees working side by side with the claimant in identical employment under identical conditions.
Larson, Workers' Compensation, 5.04.
1.2. Street Risk
Jeff Mooney, laboratory supervisor at Stroud Municipal Hospital, was at home on his lunch break when he was called back to the hospital to assist with an emergency. He was injured in a motor vehicle accident on the way back. Employer denied that the injury arose from his employment because he did not face a risk (driving on a public street) that was greater than the risk faced by the general public. The Supreme Court held that he was on a special mission and "once it is determined that the employee is doing the employer's work, e.g., is on a special mission, it does not avail the employer to say the risks of injury to the employee are no greater than the risks to the general public." Stroud Municipal Hospital v. Mooney, 1996 OK 127, 933 P.2d 872.
The Oklahoma Supreme Court has also addressed the issue of street risk in the case of Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309 when Justice Hodges stated in a 7-2 opinion:
The Court of Civil Appeals read two post-Burns cases as controlling this controversy, Darco Transportation v. Dulen, 922 P.2d at 591 and Stroud Municipal Hospital v. Mooney, 933 P.2d 872 (Okla. 1996). It noted that in each case compensation was allowed for traffic collision injuries even though the employee was exposed to the same street risk faced by the general motoring public. That is true, but for reasons that are not present in the instant claim.
In Darco, a cross-country truck driver was injured when the tractor-trailer rig he was driving was struck by a train at a crossing where the warning equipment had malfunctioned. The test this Court applied was the same increased risk test that had been applied in Burns. However, the accident risk the truck driver encounter in Darco arose out of his employment "[b]ecause the perils of this servant's travel for his master [were] co-extensive with the risks of employment" Darco, 922 P.2d at 596. Thus, for that truck driver the risk of traffic accident arose from the very nature of his employment.
Odyssey/Americare, at 312.
1.3. Positional or Neutral Risks
"Under the positional risk doctrine, an injury may be said to arise out of employment if the injury would not have occurred but for the fact that the conditions or obligations of the employment placed claimant in the position where he was injured by a neutral force, meaning by "neutral" neither personal to the claimant nor distinctly associated with the employment." A. LARSON, The Positional-Risk Doctrine in Workmen's Compensation, 1973 DUKE L.J. 761. [Emphasis added.]
American Management Systems v. Burns, 1995 OK 58, 903 P.2d 28, fn 13.
Prior to the 1986 amendments to the Act, Oklahoma cases generally relied on the increased risk doctrine to determine whether a risk arose out of a worker's employment. However, the positional risk test had also been applied. In the food choking episode of Fox v. National Carrier, 1985 OK 91, 709 P.2d 1050, 1053, the Supreme Court held that but for claimant's employment as a truck driver he would not have been exposed to risk of choking on food at the restaurant. In other words, his risk of choking while engaged in the purely personal task of eating breakfast occurred because of the position he occupied while he was on duty and in the course of his employment.
In 1986, the Oklahoma Legislature amended the Act to require that "only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of employment." This language acted as a legislative repeal of the Fox ruling.
American Management Systems v. Burns, 1995 OK 58, ¶7, 903 P.2d 28, held “The 1986 amendment of 85 O.S. 1981 §3(7), which requires the source of a compensable injury to be employment-related - i.e., one that does not stem from a purely personal risk - plainly contravenes this court's pronouncement in Fox v. National Carrier. No longer may an injury be viewed as compensable solely because the worker, while in the course of employment, was exposed to the risk of harm. The law demands that the risk responsible for injury be causally connected to employment and exceed the ordinary hazards to which the general public is exposed.” See also, Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309.
In the 2005 reforms, and the legislature struck the “purely personal risk” language. Under the rules of statutory construction, "legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed." Lekan v. P & L Fire Protection Co., 1980 OK 56, 609 P.2d 1289; Fenwick v. Oklahoma State Penitentiary, 1990 OK 47, ¶15, 792 P.2d 60.
Considering the clear pronouncement of Burns that the phrase “purely personal risk” effectively overruled Fox v. National Carrier, and the 2005 deletion of that term, did the legislature reinstate the Fox positional risk holding? If so, food ingestion accidents, spider bites in motels, good samaritan injuries and other off-premises claims of traveling employees may now be compensable.
Bayless v Sparkman Livestock Sales, 1959 OK 36, 350 P.2d 233
1.3.1. Stray Bullets
1.3.2. Terrorist Acts
Superior Stucco v. Daniels, 1995 OK 127, 912 P.2d 317
Central Plains Construction v. Hickson, 1998 OK CIV APP 83, 959 P.2d 998
Gratzer v. Happy Foods, 2001 OK CIV APP 44, 24 P.3d 373
Mullins v. Tanksleary, 1962 OK 239, 376 P.2d 590
1.5. Personal to the Employee
1.5.1 Idiopathic Injuries
An idiopathic fall is one "induced by a spontaneous internal condition." Boardman Company v. Eddy, 1961 OK 181, 363 P.2d 821. An idiopathic fall is one "resulting from causes arising out of the mental or physical condition of the employee and not connected with the employment." Moten v. Chandler Well Service, 1961 OK 125, 363 P.2d 153.
Flanner v. Tulsa Public Schools, 2002 OK 8, 41 P.3d 972 involved an award to Inetta Flanner for injuries sustained from a fall into a coffee pot when she had an epileptic seizure while performing her assigned work tasks. The trial court denied compensation, but the Supreme Court reversed. Injuries flowing from an idiopathic condition are compensable if they are contributed to by the presence of a factor peculiar to the employment, in this case a hot coffee pot.
Other factors include falls from heights (due to illness with pneumonia), Moten v. Chandler Well Service, 1961 OK 125, 363 P.2d 153; ascending or descending stairways (sudden pain from pre-existing degenerative arthritis), Halliburton Services v. Alexander, 1976 OK 958, 547 P.2d 958; face striking an auto lift (alcohol withdrawal seizure), Pemberton Chevrolet, Inc. v. Harger, 2005 OK CIV APP 70, 120 P.3d 892; fall into machinery (heatstroke), Mc Keever Drilling Co. v. Egbert, 1934 OK 763, 40 P.2d 32; burns from fall into fire (epileptic seizure), Marion Machinery Foundry & Supply Co. Redd, 1925 OK 912, 241 P. 175.
Pauls Valley Travel Center v. Boucher, 2005 OK 30, 112 P.3d 1175, discusses the difference between proneness to injury (a term that appears to be broader and simpler than "aggravation of a pre-existing condition") and idiopathic injury:
From early tort teachings the compensation law has borrowed the notion that an employer takes a worker as it finds him, including all of his bodily flaws. Yet a distinction is to be made between one's proneness toward a particular injury and one's injury solely from an idiopathic episode. Compensation law treats the two situations differently - the former is deemed compensable but not the latter. Proneness is not synonymous with idiopathy. An idiopathic condition is internal. It spontaneously precipitates a worker's injury. Proneness, on the other hand, means that one is predisposed toward a particular occurrence. To produce harm, proneness requires that external forces be at work in conjunction with its presence. An examination of an injury's genesis helps keep the distinction clear. Where an untoward movement (or some other "normal" external force) co-operates in producing the injury, the resulting harm cannot be said to be idiopathic in origin. Here, claimant's knee did not give way spontaneously; rather, an untoward step precipitated the harm that ensued. Even if employer did establish Boucher's proneness to injure herself because of a pre-existing defect, it does not follow, as a matter of law, that her on-the-job injury stems solely from idiopathic harm that is not compensable.
Claimant's knee strain is ipso facto an on-the-job injury. Once a claimant, as this one did here, has established a prima facie case, the burden shifts to the employer to refute the presence of a causal nexus between the worker's injury and her employment. To effectively refute this burden, employer must prove idiopathic harm is the sole cause of employee's injury. A mere legal conclusion of idiopathy is not enough. Employer's proof does not meet the required showing… .
1.6. Consequential Injuries
Consequential injuries are compensable if a causal nexus exists between an event that occurs after a work-related injury and a resulting injury or death without breaking the chain of causation. Matter of the Death of Stroer, 1983 OK 94, 672 P.2d 1158; Matter of the Death of Gray, 2004 OK 63, 100 P.3d 691; Bostick Tank Truck Service v. Nix, 1988 OK 128, 764 P.2d 1344 (but for the prior on-the-job heart attack, claimant's death-dealing fibrillation would not have occurred).
An employer is liable for all "legitimate consequences of a compensable injury." Bostick Tank Truck Service v. Nix, id. A "legitimate consequence of a compensable injury" is an injury, disease or death proximately resulting from a subsequent deterioration or aggravation of the original injury. Ada Iron Metal Company v. Tarpley, 1966 OK 202, 420 P.2d 886; In re Greer, 1960 OK 220, 356 P.2d 356.
This rule of legitimate consequences appears to have developed from the pre-1996 definition of injury "means only accidental injuries . . . and such disease or infection as may naturally result therefrom. . ." 85 O.S. 3. See, Lamson & Sessions v. Doyle, 2002 OK 89, 61 P.3d 215. This use of "naturally result[s]" has been removed by the 2005 legislative revision. One division of the COCA has used a slightly different approach which appears to be consistent with the legitimate consequences test and may be a better fit for the new statutory definition of injury. Use of either test in most instances will yield the same results.
When an employee is injured in the course of employment and such injury is the direct and natural consequence of a prior work-related injury, then the new and distinct subsequent injury likewise arises from employment absent some intervening cause. Oldham v. OK Iron & Metal, 2000 OK CIV APP 8, 996 P.2d 464 (citing with approval the following rule from Larson's, Workers' Compensation):
Direct and Natural Consequence Rule
A distinction must be observed between causation rules affecting the primary injury—which have been the subject of the present chapter up to this point—and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment. . . . But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of “direct and natural results,” and of claimant's own conduct as an independent intervening cause.
The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.
The simplest application of this principle is the rule that all the medical consequences and sequelae that flow from the primary injury are compensable. The cases illustrating this rule fall into two groups.
Larson, Workers' Compensation, §10.01
A trial court's denial of consequential injury does not preclude a finding of consequential injury to the same body part when the injury develops after the denial order. Oklahoma Natural Gas Co. v. Messer, 2011 OK CIV APP 20, __ P.3d __ (psychological overlay).
1.6.1. Medical Treatment Injuries
An employer is liable for all legitimate consequences following an accident, including unskilfulness or error of judgment of the physician treating him. Booth & Flinn LTD. v. Cook, 1920 OK 320, 193 P. 36. When claimant fell from and examining chair while being treated for his injury, the distinct injuries were compensable. Brewer & Anderson Const. Co. v. Roberson, 1978 OK 58, 577 P.2d 1307. See also, Rogers Galvanizing v. Woody, 1993 OK CIV APP 81, 853 P.2d 790, where employee was injured in a work hardening program required by the employer before he could return to work after an injury that was not work-related.
Joe Gray needed surgery for his work-related back injury. Pre-surgery screening of his twenty-year-old heart pacemaker indicated a need to replace the pulse generator. Gray died while undergoing the procedure to replace the pulse generator. Among the exhibits offered by Gray's widow was a letter from the injured worker's doctor who did the pre-surgery screening in which he stated that the direct cause of death was an event which occurred during the pulse generator replacement. The doctor also recognized that "the only relationship that I can see is the fact that his referral risk assessment was made because of his back surgery" and that the employee may well have gone on for a period of time before any investigation was made into the functioning of the pacemaker. The trial court denial of the claim was upheld by the court en banc and the COCA, but it was reversed by the Supreme Court which held:
When an injured worker dies during an operation made necessary by a work-related injury, the operation would not be an intervening cause of death and the chain of causation would not be broken in cases where the incontrovertible evidence reflects that, but for the injury, the worker would not have had to have the operation.
The question at issue is not whether the back injury somehow caused the pacemaker to malfunction or whether the pacemaker was old and would have needed replacing anyway. Nor is our decision based on whether the weight of the evidence reflects those issues. Rather, the determinative issues here are: 1) whether the surgery for the work related injury caused the need for the pacemaker surgery which ultimately led to the employee's death; and 2) whether any competent evidence exists to support a finding that the back injury was not causally connected to the death.
Matter of the Death of Gray, supra.
Where an injured employee submits to a surgical operation tendered to him by his employer for the purpose of perfecting a cure to restore his earning capacity, such employer is liable for compensation under said Workmen's Compensation Law for the disability, if any, which may follow as result of said surgical operation regardless of any aggravation of any prior injury or the neglect or unskillfulness or error of judgment of the physician selected by the employer. Western Oil Drilling Co. v. Snow, 1939 OK 414, 94 P.2d 902; Booth & Flinn LTD. v. Cook, 1920 OK 320, 193 P. 36.
Injuries while traveling to or from a medical appointment. A series of older cases address the issue with varying results.
Farmers Gin Co. v. Cooper, 1930 OK 573, 294 P. 108 (not compensable).
Governair Corporation v. District Court, 1956 OK 50, 293 P.2d 918 (compensable).
Bankers Investment Co. v. Boyd, 1977 OK 29, 560 P.2d 958 (not compensable).
Brewer & Anderson Const. Co. v. Roberson, supra (discusses Farmers Gin, Governair, and Bankers Investment cases).
The first three cases seem to hinge on whether the worker was still an employee at the time of the second injury. If not, the claim is not compensable. This is a tenuous distinction that probably would not stand since the but for rule was articulated in Matter of the Death of Gray, supra.
A. Every employer subject to the provisions of the Workers' Compensation Act shall pay, compensation . . . . except as follows:
1. An injury occasioned by the willful intention of the injured employee to bring about injury to himself or herself, or another.
George Washington Stroer, Jr. sustained a work-injury to his right shoulder. After surgery he failed to regain use of his shoulder and continued to suffer from pain. Testimony from family, friends and his treating physician showed that he became unhappy, unstable and antisocial. His depression was caused by "his inability to continue to work, earn a living and be physically active." Employer offered the report of a physician who attributed his suicide to other deaths in his family and his daughter's death, but also testified that his depression "was partially caused by his physical condition and feeling of inadequacy because he was unable to work." The Supreme Court upheld the trial court finding of compensability. Matter of the Death of Stroer, 1983 OK 94, 672 P.2d 1158.
Holding: death by suicide is compensable if there is an unbroken chain of causation between the original injury and death proven by evidence reflecting that, but for the injury, there would have been no suicide. The Court stated the following:
Under this rule, an employee's death by suicide is compensable if the original work-related injuries result in the employee's becoming dominated by a disturbance of mind directly caused by his/her injury and its consequences, such as extreme pain and despair, of such severity to override normal or rational judgment. The act of suicide is not an intervening cause of death and the chain of causation is not broken in cases where the incontrovertible evidence reflects that, but for the injury, there would have been no suicide. A suicide committed under these circumstances cannot be held to be intentional even though the act itself may be volitional. The chain of causation rule places the burden on the claimant to prove by a preponderance of the evidence that there was an unbroken chain of causation between the compensable injury, the disturbance of mind, and the ultimate suicide. The direct causal connection between the work-related injury and the suicide must not be overpowered and nullified by influences originating solely outside the employment.
Although compensation will be denied if the suicide was caused primarily by non-work connected problems, the work-connected injury does not have to be the sole cause of the suicide. Expert testimony is not absolutely indispensable. If the facts and circumstances are sufficiently persuasive, they may carry the burden of establishing the requisite causal nexus. The employer can attack the causal chain with any competent evidence that the employee suffered no disturbance of mind, or that there were far stronger non-employment influences which accounted for the suicide. A successful rebuttal reveals a break in the chain of causation, and results in a complete defense under the statutory preclusion of death benefits for intentional self-inflicted injuries or death.
Stroer, at 1158
1.6.3. Psychological Overlay
"Injury" or "personal injury" shall not include mental injury that is unaccompanied by physical injury, except in the case of rape which arises out of and in the course of employment.
85 O.S. §3(13)(c).
This definition first appeared in the 1992 legislative revisions of the Act and overturned the portion of the holding of Teel v. Tulsa Municipal Employees that "the psychological injury must result from or arise out the physical employment-related injury in order to be compensable[.]" Wal-Mart Stores, Inc. v. Reinholtz, 1998 OK 11, 955 P.2d 223.
Psychological or mental injury standing alone is not compensable. Fenwick v. Oklahoma State Penitentiary, 1990 OK 47, 792 P.2d 60 (prison worker held hostage for four hours and released without any evidence of physical harm); Osborne v. City of Oklahoma City Police Dept., 1994 OK 105, 882 P.2d 75 (police officer suffers from panic disorder caused by work-related stress and fatigue).
Disability from a psychiatric condition produced by an accidental injury is compensable in the same manner as any other impairment of the body. Wade Lahar Construction Company v. Howell, 1962 OK 237, 376 P.2d 221.
Claimant for workers' compensation was entitled to award for partial permanent depressive neurosis where disorder was posttraumatic neurosis resulting from reaction to work-related injury and not from incidental cause such as unemployment worries. Montgomery Ward and Co., Inc. v. Johnson, 1982 OK CIV APP 15, 645 P.2d 1051.
Worrying over one's inability to work and earn wages because of being temporarily disabled as a result of an on-the-job injury is not a risk "reasonably incident" to the employment. In re Loague, 1969 OK 24, 450 P.2d 492.
If work-related mental or psycholgical stress causes or aggravates a physical condition, the mental injury is compensable. City of Norman v. Garza, 2003 OK 111, 83 P.3d 851 (stress induced stomach ulcer coupled with PTSD and depression); Stiles v. Oklahoma Tax Commission, 1987 OK 85, 752 P.2d 800 (stress and tension induced aggravation of rheumatiod arthritis).
After an order denying psychological overlay, the trial court may award a worker benefits for consequential psychological overlay if he proves that the disorder has occurred or worsened since the denial order. Adair Public Schools v. Haley, 2005 OK CIV APP 83, 122 P.3d 490.
2. In the Course of Employment
An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.
Larson, Workers' Compensation, Chapter 12.
Lanman v. Oklahoma Court Sheriff's Office, 1998 OK 37, 958 P.2d 795 (general discussion of time, place and circumstances or activity).
2.1. Business Premises
¶16 Since 1944, this Court has consistently recognized that when an injury occurs on premises owned or controlled by the employer while going to and coming from work, it is deemed to have arisen out of and in the course of employment. Likewise, we have consistently limited the application of this rule by requiring a causal connection between the injury and employment or that the precipitating risk of harm was created or maintained by the employer.
¶26 Today, we affirm the teaching of Worden that injury causing risks encountered while in the course of employment are compensable. In so doing, we hold as a matter of law that purely employment-related risks encountered while in the scope of employment and arising from on[-]premises accidents - even those which under other facts might present a "neutral" risk, i.e. weather conditions - are compensable. Such causes are distinguishable from Worden and Burns in which the employees were required to show an increased risk in off-premises injuries where issues of employment-related injuries were present. The finding of the Workers' Compensation Court that the claimant's injury did not arise out of and in the course of her employment is erroneous as a matter of law.
Turner v. B Sew Inn, 2000 OK 97, 18 P.3d 1070.
Stephany Boucher worked as a cashier. She was walking toward the cash register to serve customers when her right knee "gave way." She testified she was walking a straight path, not carrying anything, and encountered no obstacles. She did not slip or exert any undue physical effort. Although Boucher did not fall, because of severe pain in her right knee she secured emergency medical care. The COCA reversed the trial court's finding of compensability holding that her knee injury was the result of an idiopathic condition. In Boucher v. Pauls Valley Travel Center, 2005 OK 30, 112 P.3d 1175, the Supreme Court reversed and reinstated the trial court order holding:
Claimant's knee strain is ipso facto an on-the-job injury. Once a claimant, as this one did here, has established a prima facie case, the burden shifts to the employer to refute the presence of a causal nexus between the worker's injury and her employment. To effectively refute this burden, employer must prove idiopathic harm is the sole cause of employee's injury. A mere legal conclusion of idiopathy is not enough. Employer's proof does not meet the required showing.
2.2. Going and Coming
. . . a compromise on the subject of going to and from work has been arrived at, largely by case law, with a surprising degree of unanimity: for an employee having fixed hours and place of work, going to and from work is covered only on the employer's premises. Larson, Workers' Compensation, §13.01
Ordinarily, injuries incurred while going to or from Employer's premises do not arise out of and in the course of employment. Stroud Municipal Hospital v. Mooney, 1996 OK 127, 933 P.2d 872, 874; Harris v. LaQuinta, 1997 OK 50, 937 P.2d 89, 90; Fluor Engineers & Contractors, Inc. v. Kessler, 1977 OK 37, 561 P.2d 72, 74. There are exceptions to this rule, however. Exceptions include: where the employee on his way to or from work is charged with a work-related special duty or task; where the employee was engaged in a dual purpose trip; where the employer furnishes transportation or expenses; where the injury occurs on premises owned or controlled by employer; where the employee is transporting supplies owned by the employer and needed for the job; and, where the employment requires the employee to be traveling on the highways in the performance of his work. Stroud Municipal Hospital v. Mooney, supra; City of Edmond v. Monday, 1995 OK 132, 910 P.2d 980; Harris v. LaQuinta, supra; Fluor Engineers & Contractors, Inc. v. Kessler, supra; Max E. Landry, Inc. v. Treadway, 1966 OK 259, 421 P.2d 829.
Neale v. G&H Decoy, 1998 OK CIV APP 172, 972 P.2d 881
2.2.1. Off Premises
2.2.2. Parking Lots
Thomas v. Keith Hensel Optical Labs, 1982 OK 120, 653 P.2d 201
Fudge v. University of Oklahoma, 1983 OK 67, 673 P.2d 149
Veith v. Ogburn, 2006 OK CIV APP 75, 136 P.3d 1080
Barre v. TCIM Services, Inc., 1998 OK CIV APP 179, 971 P.2d 874
Corbett v. Express Personnel, 1997 OK 40, 936 P.2d 932
The material facts surrounding Claimant's injury in Employer's parking lot are undisputed and, therefore, it is a question of law whether Claimant's injury arose out of and in the course of employment. Brazeal v. CITGO Petroleum Corp., 1997 OK CIV APP 61, 946 P.2d 680, 681. The most recent case to consider whether an injury sustained in an employer's parking lot as the employee is leaving work is Corbett v. Express Personnel, 1997 OK 40, 936 P.2d 932. In Corbett, the supreme court upheld the determination of the workers' compensation court that the injury therein did not arise out of and in the course of employment because: "Corbett left the workplace shortly before his lunch break began in order to conduct personal business [and his] exit from the premises was not within his employer's established break time … nor was his departure on assignment for company business." Id. at ¶9, 936 P.2d at 934. Unlike Mr. Corbett, the Claimant herein was leaving work at the end of his regular work time. [Emphasis added.]
The Corbett court cited E.I. DuPont De Nemours & Co. v. Redding, 194 Okla. 52, 147 P.2d 166 (Okla. 1944), in evaluating "whether claimant's presence [in the parking lot provided by employer] satisfies the necessary components of an employment-related purpose." Corbett, at ¶8, 936 P.2d at 934. The syllabus in Redding states, in pertinent part:
[W]here an employee, immediately after having completed his day's work for employer, goes upon a parking lot adjacent to place of employment, controlled and operated by the employer for the mutual benefit of employer and employee, and while proceeding to automobile parked thereon to go home, fell and sustained injury, such accident occurring to the employee arose out of and in the course of employment and falls within the purview of the Workmen's Compensation Act.
Redding cites approvingly a rule by the United States Supreme Court that: "The employment contemplated [the employee's] entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose." Redding, 147 P.2d at 168 (citation omitted).
Jackson v. Farley Foods, 1998 OK CIV APP 190, 969 P.2d 1003
2.2.3. Lunch and Rest Breaks
It is axiomatic that compensable injury must arise within time and space limitations of employment, and also within the course of activity related to employment. An employee's activity is work related if the employer's purposes are being carried out, or the employer's interests are being directly or indirectly advanced. This principle is the foundation for the doctrine that work-connected activity reaches beyond the direct services performed and includes ministrations to the personal comfort and needs of employees. For example, with respect to the status of an employee while he is eating his lunch on the employer's premises, some courts have reasoned that food is essential to continued labor, and that an employee, in refreshing himself by eating during the lunch hour, is doing that which is a necessary incident of his employment. 53 Am.Jur.2d, Master and Servant, §185.
This theory has provided basis for concluding that injury occurring during course of an unpaid lunch period on the employer's premises comes within course of the employment. 76 A.L.R.2d, Anno.: Servant - Injury Outside Working Hours, § 8[a], p. 1239. Similarly, it has been reasoned that if an injury which occurs while going to and from work on the premises is conpensable, then an injury going to and from lunch on the premises is covered. Thus, if going to and from lunch on the premises is within course of employment, then remaining on the premises and eating lunch must be within the employment. 1 Larson, Workmen's Compensation Law, §§ 15.50 & 20.21, and cases cited.
The principle is not new. An early English case, Blovelt v. Sawyer, 1 K.B. (1904) 271 announced the principle. A workman paid by the hour, but not including meal time, could take his meal on the premises, or go elsewhere as he chose. The workman sat down to eat his meal on the premises and was injured by a falling wall. The court held the eating period did not break the employment, since the mere fact the employee was not paid for the time, and while eating was not engaged in main purpose of the work, did not create a cessation of the employment, since it was to the employer's advantage that employees have the opportunity to eat and thereby perform their work all the better.
Archibald v. Ott, 77 W. Va. 448, 87 S.E. 791, L.R.A. 1916D, 1013, states the reason for the rule:
"* * * Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts contribute to the furtherance of the work.
"* * * That such acts will be done in the course of employment is necessarily contemplated, and they are inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the same time injuries occasioned by them are accidents resulting from the employment."
This court early recognized the principle that an injury which occurred during nonwork activity permitted for comfort and convenience of employees, could arise out of and in course of employment. Willis v. State Industrial Court (1920), 78 Okl. 216, 190 P. 92.
Richey v. Commander Mills, Inc., 1974 OK 47, 521 P.2d 805
Hamilton v. Dub Richardson Ford, 1998 OK CIV APP 180, 970 P.2d 1196
Pawnee Mun. Hosp. v. Cunningham, 1999 OK CIV APP 60, 985 P.2d 189
Richbourg v. Advantage Personnel Service, 1999 OK CIV APP 73, 986 P.2d 532 (smoke break)
Triplett v. Mystaf Medical, 2010 OK CIV APP 46, 232 P.3d 925 (smoke break).
2.3. Journey Itself
The rule excluding off-premises injuries during the journey to and from work does not apply if the making of that journey, or the special degree of inconvenience or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed. Larson, Workers' Compensation, Chapter 14.
"The normal rule as to truck drivers (i.e. a traveling employee) is that, when in travel status, he/she is considered in the course of employment from the moment a work-related journey begins until its very end - even during meals, rest periods and sleep, unless the journey is interrupted by a purely personal errand." Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527
2.3.1. Special Mission, Errand or Task
When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
Larson, Workers' Compensation 14.05.
Stroud Municipal Hospital v. Mooney, 1996 OK 127, 933 P.2d 872 (citing Larson).
In considering the special task exception, the Supreme Court in Barnhill v. Smithway Motor Express, 1999 OK 82, 19, 991 P.2d 527, held "[I]n our view, appropriate factors to consider are: when did the accident occur in relation to claimant's work-schedule and was the claimant doing something at the time of the accident at the direction of the employer or in furtherance of employer's business."
Osborne v. Tucker Nursing Home, 1982 OK CIV APP 42, 657 P.2d 666 (getting lunch for co-workers, employer's benefit).
Cudd Pressure Control v. McLemore, 1996 OK CIV APP 9, 916 P.2d 850 (prior to leaving for a job site decedent was killed driving home to pack specialized work clothes for the job, e.g., steel-toed boots, hard hat, extra overalls, slicker suit)
Numerous examples are cited in the case of Lucas v. Triad Drilling Company, 1998 OK 98, 969 P.2d 363 (oil rig floorhand is called back to rig to work overtime, catches ride home with off-duty crew and is involved in MVA):
We have applied the special task exception on several other occasions: Oklahoma Natural Gas Company v. Williams, 1981 OK 147, 639 P.2d 1222 (employee injured on the way to pick up a baby sitter so that he and his wife could attend his employer's "command performance" Christmas party); Dawson v. Oklahoma City Casket Company, 1958 OK 29, 322 P.2d 642 (employee who had worked late unloading coal for his employer was injured when struck by a car after riding home with his foreman); City of Edmond v. Monday, 1995 OK 132, 910 P.2d 980 (employee who was on her break and routinely picked up mail then was injured when struck by a car); Thurston Chemical Company v. Casteel, 1955 OK 104, 285 P.2d 403 (Employee who had been told to come to work at 4:00 a.m. to clean up a storage area killed in a traffic accident on the way to work); R.J. Allison, Inc. v. Boling, 1943 OK 43, 134 P.2d 980 (employee mechanic, whom employer had picked up and taken to work at 8:00 p.m. to work on a truck, was injured when struck by car while walking home because his employer did not come back to pick him up); Impson v. Dillard's Brown-Dunkin Co., 1971 OK 93, 489 P.2d 483 (employee sales lady injured when involved in an automobile accident while driving to store to take inventory on a Sunday); Christian v. Nicor Drilling Co., 1982 OK 76, 653 P.2d 185 (employee oil workers, two brothers — one killed one injured, while driving their own car when they were late for their ride with their driller-supervisor, who usually provided transportation and left instructions for them to drive their own car to the site).
Lucas v. Triad Drilling Company, 1998 OK 98, 969 P.2d 363, fn2.
Deise v. Mastercuts/Regis Corp., 2007 OK CIV APP 96, 169 P.3d 724.
2.3.2. Payment for Travel
Charles H. Stanford, Inc. v. Gregory, 1956 OK 293, 303 P.2d 1112 (payment of wages during travel time to remote job site)
Austin Drilling Co. v. Rice, 1980 OK CIV APP 28, 616 P.2d 446 (payment of per diem travel pay)
Jack Coates Field Service Company v. Dutton, 1966 OK 13, 415 P.2d 924 (allowance for car maintenance and issuance of credit cards for gas and oil)
Harris v. La Quinta Lumberman's Mutual Insurance, 1997 OK 50, 937 P.2d 89 (fn 2) (compensability denied when worker was killed traveling home after working overtime following the end of his normal shift).
Fortna v. U.S. Express, Inc., 2000 OK CIV APP 77, 9 P.3d 98. Claimant was paid $100 per day for making courier pickups. By agreement the pay commenced from the time he arrived at his first pickup. He was injured in a motor vehicle accident on his way to the first stop. COCA held that worker was on the job and that this was not a going and coming case. A similar case from Pennsylvania is reported by Judge Robert Vonada on his blog site. A home healthcare worker received mileage reimbursement when she left one patient's home to travel to another. She was injured in an MVA on her way to her first patient. On appeal the claim was found compensable. The Commonwealth Court found her travel was necessary to provide in-home care. She did not have to report to the Employer's main office before or after the visit, and the Claimant had no fixed place of employment. Accordingly, she was in traveling employee status with Gallagher when she was injured while driving from her home to the patient's home.
2.4. Employer's Conveyance
If the employer has agreed, as an incident to the employment, to transport the employee to and from the place of work, a claim for injuries sustained during the travel is compensable. R. J. Allison, Inc. v. Boling, 1943 OK 43, 134 P.2d 980.
Where the employer furnishes transportation without an agreement but as a courtesy or accommodation to the worker, the injury claim is not compensable. The transportation must be an actual incident of the employment. Nineteenth Seed Company v. Townsend, 1964 OK 183, 394 P.2d 531.
2.5. Personal Mission
Personal missions are not compensable because they constitute a deviation from the business purpose of the employer. They do not arise "in the course of" employment; and they are to be distinguished from special missions which, if proven, are compensable.
Examples of personal missions include:
Floyd v. Taco Mayo, 2002 OK 58, 58 P.3d 197 (employee who was injured when she remained on the premises to eat free meal after clocking out was on a personal mission, and injury did not arise out of her employment);
Ogg v. Bill White Chevrolet Co., 1986 OK 26, 720 P.2d 324 (employee who was injured while going to his truck on employer's premises to get cigarettes was on a personal mission and injury did not arise out of his employment);
Thomas v. Keith Hensel Optical Labs, 1982 OK 120, ¶2, 653 P.2d 201, 202 (claimant injured when he left early for lunch to remove the ice from his car was on a purely personal mission and his injury did not arise out of his employment);
White v. Milk Producers, Inc., 1972 OK 48, 496 P.2d 1172 (employee who fell on ice in employer's parking lot when she left work to help a car accident victim was on a personal mission, and her injury did not arise out of her employment);
Hedgwood v. Pittman, 1970 OK 91, 471 P.2d 888 (employee who left work to turn off her headlights was on a purely personal mission and her injury did not arise out of her employment);
Austin v. AT&T Wireless Services, Inc., 2006 OK CIV APP 96, 144 P.3d 193.
2.6. Dual Purpose Doctrine
This doctrine is sometimes referred to as the "mutual benefit" rule.
"Awards have . . . been sustained where the employee, on his way to or from work, . . . is engaged in a dual purpose trip." Stroud Municipal Hospital v. Mooney, 1996 OK 127, 933 P.2d 872; Weatherbee Electric Company v. Duke, 1955 OK 322, 294 P.2d 298 (transporting various tools and materials and supplies owned by employer); Helmerich and Payne v. Gabbard, 1958 OK 204, 333 P.2d 964 (passenger was killed on the way to drilling site in vehicle hauling a can filled with the crew's drinking water); Ince v. Chester Westfall Drilling Co., 1959 OK 158, 346 P.2d 346 (transporting empty water can coming from drilling site); Grossnicklaus v. Big X, 1960 OK 200, 355 P.2d 871 (claim denied when worker is injured on his way to pickup crew but has not yet begun to transport water or water can).
Typist needed to get a dictionary out of her car because someone had borrowed the one furnished by her employer. While retrieving the dictionary she started her car so it would be warm when she left for lunch. Her injuries resulting from a fall on a ramp leading into the building were compensable. Morris v. City of Oklahoma City, 1979 OK 174, 606 P.2d 1129.
2.7. Deviations from Route
A substantial deviation from a business trip for purely personal purpose takes an otherwise compensable accident out of the scope of employment. Anderson v. Allis-Chalmers Mfg. Co., 1963 OK 222, 387 P.2d 479; Qualls Transfer v. Cummings, 1973 OK 159, 505 P.2d 183; Breckenridge v. Bray Lines, 1989 OK 120, 782 P.2d 909.
2.8. Personal Comfort Mission
An employee is in the course of employment if carrying out the employer's purposes or advancing, either directly or indirectly, the employer's interest. An employee's ministration to personal comfort and needs is an incident to the employment because it provides an indirect benefit to the employer. This rationale is the basis of the personal comfort mission rule, which allows recovery for injuries incurred while an employee is ministering to his personal needs during the hours of employment.
K-Mart Corporation v. Herring, 2008 OK 75, 188 P.3d 140.
Richey v. Commander Mills, Inc., 1974 OK 47, 521 P.2d 805 (whether injury occurs on or off an employer's premises is not a controlling factor even though it is a consideration in whether the claimant was in the course of employment at the time of the injury).
City Bus Co. v. Lockhart, 1951 OK 86, 229 P.2d 586 (bus driver who was on a shift of seven and one-half hours without a scheduled break or lunch period, parked the bus and crossed the street to get something to drink and fell while returning to the bus).
Furr v. Wal-Mart, 1998 OK CIV APP 147, 966 P.2d 1193 (worker broke her right hand when she hit it against a toilet tissue dispenser during restroom break).
Dickerson v. Oklahoma Secretary of State, 2002 OK CIV APP 102, 57 P.3d 115 (slip and fall on way to Capitol snack bar ten minutes before start of workday).
Injuries occurring on lunch and rest breaks are closely related to personal comfort missions, and the reported cases are listed elsewhere on this website.
2.9. Recreational and Social Activities
"Compensable injury" shall not include . . . injury incurred while engaging in, performing or as the result of engaging in or performing any recreational or social activities. 85 O.S. §308(10)(c) formerly 85 O.S. §3(13)(d), effective August 26, 2011.
During his lunch break Andrew Orcutt injured his knee playing basketball in the company warehouse on a floor that had a goal with boundaries painted on the floor. The employer knew about, encouraged, and acquiesced in the games. Under the pre-2005 rules the claim would be clearly compensable. However, the trial court denied the claim based on the plain meaning of the new exclusionary terms. The COCA affirmed the trial court decision. Orcutt v. Lloyd Richards Personnel Service, 2010 OK CIV APP 77, __ P.3d __.
Recreational injuries occurring prior to July 1, 2005, are generally compensable when 1) they occur on the business premises and are a regular incident of the job, or 2) participation was compulsory, or 3) there was a substantial direct benefit to the employer. If any one of these criteria are met, the claim is compensable, including travel to and from an off-premises Christmas party and taking the baby sitter home. Oklahoma Natural Gas Co. v. Williams, 1981 OK 147, 639 P.2d 1222.
However, cases involving school teachers participating in extracurricular events may still be compensable because the activities are inextricably linked to their employment. Warthen v. Southeast Oklahoma State University, 1981 OK CIV APP 76, 641 P.2d 1125.
The Oklahoma Supreme Court has addressed the horseplay rule on several occasions. The general rule as developed is that, where an employee is the aggressor, or invites or willingly engages in an altercation or prankish behavior while on the job, any resulting injury will not be deemed to have occurred in the course of and arisen out of employment within the meaning of the Workers' Compensation Act. See e.g., HAC, Inc. v. Box, 2010 OK 89, 245 P.3d 609 (claimant was not an innocent victim" where undisputed facts showed he initiated and voluntarily participated in roughhousing with co-worker); Canida v. Technotherm Corp., 2000 OK 83, 16 P.3d 1127 (competent evidence supported denial of compensation for back injury suf[ered by a claimant who initiated an ongoing ritual of "shoulder bumping" with a co-worker); Horn v. Broadway Garage, 1940 OK 81, 99 P.2d 150 (competent evidence supported denial of benefits for eye injury sustained when worker jokingly tried to shoot a broken paper clip from a rubber band); Milligan v. Milo Gordon Chrysler Plymouth Isuzu, 2001 OK CIV APP 149, 39 P.3d 164 (competent evidence supported denying benefits to worker who, while riding a motorcycle at his employer's request, was intentionally "popping a wheelie" and lost control).
As indicated by these decisions, horseplay cases generally involve situations where a worker is either involved in an altercation, pulling a prank, or engaging in obvious voluntary "cut up" behavior. Consistently, a finding of horseplay has required behavior showing that a worker intentionally abandoned his work responsibilities in order to engage in the horseplay. As stated by the Court in Milligan: "The activity [in question] must be (1) independent of and (2) disconnected from the performance of any duties of the employment." Id. at ¶4, 39 P.3d at 165 (citing Horn). The rationale underlying this rule appears to be that an employee engaging in "horseplay" has essentially departed from his or her employment to the extent that the injury can no longer reasonably be considered to have occurred in the course of the employment. See Darco Transportation v. Dulen, 1996 OK 50, 922 P.2d 591.
Darco Transportation v. Dulen, id, refers to Larson's, Workers' Compensation, and its discussion of horseplay.
For an explanation of the elements of horseplay, see 1A A. Larson, THE LAW OF WORKMEN'S COMPENSATION §§ 23.30 and 23.61 (1995).
For an elucidation of what the phrase "in the course of employment" covers, see supra note 7. See also 1A A. Larson, THE LAW OF WORKMEN'S COMPENSATION §§ 23 et seq. (1995), where in discussing horseplay he observed:
"Much of the difficulty in the current controversy over horseplay cases is the result of confusing the ‘course of employment’ and ‘arising out of employment’ issues, with a general but mistaken tendency to assume the latter is the principal issue.
Whenever the basic controversy stems from the nature of a course of conduct deliberately undertaken by the claimant, there is primarily a question of course of conduct. Whenever the controversy stems from the nature of a source of injury to the claimant, there is primarily a question of 'arising out of the employment'." Id. at § 23.
Effect of Lull in Work
If the primary test in horseplay cases is deviation from the employment, the question whether the horseplay involved the dropping of active duties calling for the claimant's attention as distinguished from the mere killing of time while the claimant had nothing to do assumes considerable importance. There are two reasons for this: first, if there were no duties to be performed, there were none to be abandoned; and second, it is common knowledge, embodied in more than one old saw, that idleness breeds mischief, so that if idleness is a fixture of the employment, its handmaiden mischief is also.
Most cases now give considerable weight to this factor in dealing with participants in horseplay. Larson, Workers' Compensation, § 23.07.
William L. Milligan worked for an automobile dealer. At the request of employer, he drove a motorcycle to a another business to obtain an appraisal. While on a direct route back to employer's place of business, he lost control of the motorcycle while "popping a wheelie." The court en banc vacated the trial court's finding of compensability and the COCA sustained the en banc order denying the claim. The appellate court held: "We cannot say that as a matter of law the conduct at issue in this case could never be considered horseplay by a fact finder. The inferences could support a decision either way. The act of 'popping a wheelie' could be considered independent of and disconnected from performance of employment duties. Therefore, competent evidence supports the panel's order and we are not at liberty to overturn the three-judge panel." Milligan v. Milo Gordon Chrysler Plymouth Isuzu, 2001 OK CIV APP 149, 39 P.3d 164; see also Darco Transportation v. Dulen, 1996 OK 50, 922 P.2d 591 (when conflicting inferences can be drawn from undisputed facts, the finding will not be disturbed on appeal).
The injured employee will recover benefits if he is not an active participant or if the employer participates in, acquiesces in or encourages the frolic.
As to Employer's "aggressor" defense, Oklahoma law has consistently recognized that where an employee sustains injury while engaged in fights, horseplay or like non-employment-related activities, such injury does not arise out of the employment. See, e.g., Terry Motor Co. v. Mixon, 350 P.2d 953 (Okl. 1960); Thompson v. Midgette, 308 P.2d 645 (Okl. 1957); Terry Motor Co. v. Mixon, 336 P.2d 351 (Okl. 1959); Eagle-Picher Co. v. McGuire, 307 P.2d 145 (Okl. 1957); Swift & Co. v. Forbus, 201 Okl. 516, 207 P.2d 251 (1949); Eagle-Picher Mining and Smelting Co. v. Davison, 192 Okl. 13, 132 P.2d 937 (1942); Horn v. Broadway Garage, 186 Okl. 535, 99 P.2d 150 (1940). However, where an employee is the victim of an assault or horseplay in which the employee does not participate, and the employee is therein injured, such injury has been held to have arisen out of the employment and to be compensable. See, Terry Motor Co. v. Mixon, 361 P.2d 180 (Okl. 1961); J.C. Hamilton Co. v. Bickel, 174 Okl. 32, 49 P.2d 1065 (1935); Marland Refining Co. v. Colbaugh, 110 Okl. 238, 238 P. 831 (1925); Willis v. Industrial Commission, 78 Okl. 216, 190 P. 92 (1920). Further, where the employer acquiesces in or encourages such frolic, and the employee is thereby injured, the injury is held to have arisen out of the employment and to be compensable. Shoemake Station v. Stephens, 277 P.2d 998 (Okl. 1954); Anderson & Kerr v. State Industrial Commission, 155 Okl. 137, 7 P.2d 902 (1932). And cf., Pepco, Inc. v. Ferguson, 734 P.2d 1321 (Okl.App. 1987); Oklahoma Natural Gas Co. v. Williams, 639 P.2d 1222 (Okl. 1981); City of Oklahoma City v. Alvarado, 507 P.2d 535 (Okl. 1973). As in other cases generally, the lower courts' factual finding of injury arising out of and in the course of the employment is binding on the courts in review if such a finding is supported by any competent evidence in the record. Thomas v. Keith Hensel Optical Labs, 653 P.2d 201, 203 (Okl. 1982); Pearl v. Associated Milk Producers, Inc., 581 P.2d 894 (Okl. 1978).
Weyerhaeuser Co. v. Virgin, 1990 OK CIV APP 53, 798 P.2d 1097.
2.11. Resident Employees
Most states have adopted the "bunkhouse rule" for evaluating injuries occurring while the employee is on employer-provided living facilities. When a worker is essentially required to live on the employer's premises by the nature of his employment, and he was making a reasonable use of the employer-provided premises at the time of his accident, his injury is causally related to his employment in that it is due to the conditions under which he lived. Frantz Pierre v. Seaside Farms, Inc., 689 SE 2d 615, 386 SC 534, 2010 (migrant worker).
When an employee is required to live on the premises, either by his contract of employment or by the nature of his employment, and is continuously on call (whether or not actually on duty), the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment. However, if the employee has fixed hours outside of which he is not on call, compensation is awarded usually only if the course of the injury was a risk associated with the conditions under which claimant lived because of the requirement of remaining on the premises.
2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, §24.01 (2009).
See George L. Blum, Annotation, Injury to Employee as Arising Out Of or In the Course of Employment for Purposes of State Workers' Compensation Statute—Effect of Employer-Provided Living Quarters, Room and Board, or the Like, 42 A.L.R.6th 61, 93 (2009) ("The bunkhouse rule is considered to be an extension of the general rule that, where an employee is injured while on the employer's premises as contemplated by the employment contract or the necessity of work, the employee will be compensated. One rationale behind the bunkhouse rule is that an employee's reasonable use of the employer's premises constitutes a portion of the employee's compensation.").
In Oklahoma this rule could be applied not only to migrant and seasonal resident employees but also to oilfield drilling and servicing accidents in or around the bunkhouse.
City of Bartlesville v. Inman, 1977 OK 107, 565 P.2d 363.
2.12. Traveling Employees
"Where, as here, a claimant is away from home due to employment and stayed overnight as a result, an injury sustained while in that travel status is one "in the course of" employment." Central Plains Construction v. Hickson, 1998 OK CIV APP 83, 959 P.2d 998.
2.13. Injuries After Quitting
An injury occurring at a time when employment services were not being performed before the employee was hired or after the employment relationship was terminated. 85 O.S. §312(5).
For injuries occurring on or after 08/26/11, this new provision of the Code legislatively repeals the following cases that created a narrow exception for employee injury after quitting.
An injury occurring after termination of the employment relationship may be compensable. Oklahoma recognizes such injuries because they arise from the "employment," not from the fact that the worker is "on the clock."
Two weeks after a worker quit his job for a drilling company, he returned to the drilling site to get his final paycheck. In a scuffle started by his former co-workers, he was injured in a fall. The claim was held compensable. Cyrus v. Vierson & Cochran, Inc., 1981 OK CIV APP 40, 631 P.2d 1349; citing Solo Cup Company v. Pate, 1974 OK 131, 528 P.2d 300.
2.14. Acts Outside Regular Duties
Workers' compensation claimant's neck injury, sustained while doing electrical work at supervisor's home as directed by supervisor and for supervisor's private benefit, arose out of and in the course of his employment and was, therefore, compensable. Vandiver v. City Business Machines, 1995 OK CIV APP 121, 910 P.2d 353 (approved for publication).
"An employee does not cease to be in the course of his employment merely because he is not actually engaged in doing some specifically prescribed task if in the course of his employment he does some act which he deems necessary for the benefit or interest of his employer." Associated Employer's Reciprocal v. State Industrial Commission, 1921 OK 281, 200 P. 174; Oklahoma Railway Co. v. Cannon, 1946 OK 354, 176 P.2d 482.
2.15. Acts in Emergencies
White v. Milk Producers, Inc., 1972 OK 48, 496 P.2d 1172. The claimant was injured while assisting someone injured in an automobile accident in the parking lot of the shopping center where the claimant worked. The claimant's place of injury was in front of a store adjoining the store where she worked. The Court held that this was solely a volunteer act, having nothing to do with employment or with the furtherance of the claimant's employer's interests, and a denial of benefits was sustained. The Supreme Court praised claimant for being a good citizen, but denied the claim because she was acting as a volunteer.
This case will probably be reexamined in light of the 1985 amendments that permit claims that arise from acts that are not "purely personal." Larson, Workers' Compensation, Chapter 28 states:
Any emergency or rescue activity is within the course of employment if the employer has an interest in the rescue. Injury incurred in the rescue of a stranger is compensable if the conditions of employment place the claimant in a position which requires the employee by ordinary standards of humanity to undertake the rescue.
Associated Employer's Reciprocal v. State Industrial Commission, 1921 OK 281, 200 P. 174. Employee was working on an oil well in the course of his employment when a fire was accidentally started near the well, and he was injured while fighting the fire. An award to claimant was affirmed on the theory that claimant was doing an act which he deemed necessary for the benefit or interest of his employer.
Oklahoma Railway Co. v. Cannon, 1946 OK 354, 176 P.2d 482. Claimant who was injured while attempting to clear an area where he was told that his passengers must be unloaded. Claimant was performing an act which he deemed necessary for the benefit or interest of his employer.
Denton v. Young, 1950 OK 338, 226 P.2d 406. Claimant was injured while assisting a fellow employee (different employers but working on the same building) who was in a dangerous and perilous position a few feet from claimant. The award in favor of claimant was sustained on the theory that his act was prompted by the relationship existing between himself and a fellow workman, caused by their employment on a common undertaking.
3. Larson's Work Connection
Larson, Section 3.01
In practice, the "course of employment" and "arising out of employment" tests are not, and should not be, applied entirely independently: they are both parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by the strength in the other.
Larson, Workers' Compensation, Chapter 29.
An Oklahoma example of how this approach may be useful is the case of Moore v. City of Norman, 1999 OK 39, 983 P.2d 436. Officer Moore shot himself in the leg at home while getting into his uniform before leaving to report for duty at the Norman police station. The injury arose out of his employment according to the Oklahoma Supreme Court because a firearm is an essential tool of law enforcement, and handling a gun is incidental to the employment. Therefore the injury is an employment related risk. The Court concluded that the "accidental self-inflicted gunshot wound was reasonably connected to his employment." [Emphsis added.]
An analysis using American Management Systems, Inc. v. Burns and Thomas v. Keith Hensel Optical Labs reasoning would have been torturous, but the right result was achieved by simply acknowledging that there was an apparent work-connection between the injury-producing activity and the business of the employer.
A COCA case that uses a work connection analysis to sort through competing arguments of compensability is Oldham v. OK Iron & Metal, 2000 OK CIV APP 8, 996 P.2d 464. In a split decision Judge Rapp held:
Clearly, Claimant's case does not fit within the above enumerated categories [of risk used to determine the arising-out-of prong]. Nevertheless, to establish compensability it becomes necessary to establish a causal relationship to the employment. Therefore, the case "calls for an assessment of the interplay of risks to determine if the injury for which compensation is sought has the requisite connection to the job."
Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, 958 P.2d 795