Darco Transportation v. Dulen

1996 OK 50, 922 P.2d 591, 1996 Okla. LEXIS 54, 1996 WL 146692

• Court: Supreme Court of Oklahoma
• Decided: April 2, 1996
• Docket: 84374
• Status: Published

Opinions

OP ALA, Justice.

The answers to two questions are disposi-tive of whether Dulen’s [employee or claimant] injuries are compensable under Oklahoma’s workers’ compensation regime. The pertinent queries are: (1) Had the claimant abandoned his employment when he was injured? and (2) Is the risk of being struck by a train at a railroad crossing purely personal or does it have a causal connection with, so as to arise out of, Dulen’s employment with Darco Transportation [Dareo or employer]? We answer the first question in the negative and the latter in the affirmative.

T

THE ANATOMY OF LITIGATION

Dulen was injured when a tractor-trailer rig, which he was driving, entered a railroad crossing and was struck by an oncoming train. Dulen and Polly Freeman [Freeman], his co-driver, were hired by Darco to transport goods cross-country. On the night of September 7, 1993 Dulen stopped his rig behind another truck (also a Darco rig) when the signal arms at a railroad crossing lowered. The arms malfunctioned and came up before the train had reached the intersection. The first Darco truck proceeded across the tracks and Dulen followed. While the first truck avoided being hit, the claimant’s rig was rammed by the train. The record discloses that the protective arms did not relower until Dulen’s semi was on the tracks.

Freeman died as a result of the accident and Dulen was severely hurt. At the scene of the collision a female traffic investigator (with the local police department) noticed that Freeman, who was clad only in a T-shirt, sustained physical injuries primarily to the right side of her body. She observed that Dulen’s pants were unbuttoned, unzipped and resting mid-hip when he was readied for transportation to the hospital. Her report also reflects that the passenger door on Du-len’s rig was intact but the driver-side windshield and door were knocked out.

Apart from the investigating officer’s report and testimony, there was other evidence about Dulen and Freeman’s attire on the night of the accident. It shows that on occasion male truck drivers, when on long hauls, do unbutton their pants for comfort’s sake.¹ There was also testimony that the claimant’s rig was equipped with a sleeping facility and that Freeman, when travelling, slept only in a T-shirt.²

After Dulen was admitted to the hospital, the investigator approached him there for information to complete a supplemental accident report. The officer questioned the claimant — then in apparent shock and suffering from lacerations and fractures of the face, jaw and body — about how the accident had happened. She noted in her report that Dulen said, “I was fucking her and now, oh, my God, I have killed her.”³ According to the officer, Dulen told her that, when the accident occurred, Freeman was sitting in his lap facing him.

In later testimony Dulen explained that— by his earlier statement at the hospital — he meant that he had been living in an intimate relationship with Freeman for five months before the accident and felt responsible for her death because she was driving with him.⁴ He denied telling the officer that Freeman, when killed, was sitting in his lap and that they were having sex. Other evidence before the trial tribunal reveals that there was not enough room between the steering wheel and the seat for two people (of Dulen and Freeman’s size) physically to fill that space together.

The trial judge found the claimant’s injuries (1) occurred in the course of and arose out of his employment and (2) resulted directly from the railroad-crossing arms’ malfunction.⁵ Dulen appealed to secure temporary total disability. After reviewing the record, a three-judge panel modified the trial tribunal’s order by awarding temporary total disability and setting a counsel fee. The employer appealed; the Court of Appeals sustained the three-judge panel’s order. Employer’s certiorari quest followed.

II

THE STANDARD OF REVIEW

When examining the compensation tribunal’s factual resolutions, this court applies the any-competent-evidence standard.⁶ Whenever conflicting or inconsistent inferences may be drawn from undisputed facts, the issue is not one of law but rather of fact.7 The trial judge’s non-jurisdictional findings may not be disturbed on review if supported by competent proof.⁸ Any evidence in the record, on the basis of which the trier could have reached a contrary conclusion, is of no legal effect in the process of reviewing a workers’ compensation court’s findings.⁹ It is only in the absence of competent evidence¹⁰ that a trial tribunal’s decision may be viewed as erroneous as a matter of law and hence subject to appellate vacation.¹¹

Ill

BECAUSE THERE IS COMPETENT EVIDENCE TO SUPPORT THE FINDING THAT THE CLAIMANT’S INJURY (A) OCCURRED IN THE COURSE OF AND (B) AROSE OUT OF HIS EMPLOYMENT, IT IS COM-PENSABLE UNDER THE LAW

Oklahoma’s jurisprudence has long recognized that a compensable work-related injury must both (1) occur in the course of¹² and (2) arise out o/¹³ the worker’s employment.¹⁴ 85 O.S.1991 § 3(7).¹⁵ These two distinct elements are not to be understood as synonymous.¹⁶

A

EVEN THOUGH CONFLICTING INFERENCES MAY BE DRAWN FROM THE ADDUCED EVIDENCE UPON THE DEFENSE OF HORSEPLAY, THE COMPENSATION TRIBUNAL’S FACTUAL FINDINGS THAT (A) DU-LEN, WHEN INJURED, HAD NOT ABANDONED HIS MASTER’S WORK AND (B) HIS INJURY OCCURRED IN THE COURSE OF HIS EMPLOYMENT MAY NOT BE DISTURBED ON REVIEW

We must be mindful that in this case we are applying workers’ compensation law.17 The concept of a worker’s contributory fault, which the compensation statute discarded, must not — under the guise of appellate re-examination of the evidence — be resurrected obliquely as a defense against the employer’s liability.

The Workers’ Compensation Court was faced with the task of determining if Dulen, when injured, was performing work in furtherance of his master’s business — ie., whether he was then “in the course of employment.” More precisely stated, if the trial tribunal tended to believe that Dulen and Freeman were having sex at the critical time, the question to be decided was whether the claimant’s conduct is to be deemed horseplay — a complete departure from or abandonment of his employmentl¹⁸ The issue so formed, which is one of fact, concerns itself solely with the “course of employment” bounds — not with the risk incident to employment, ie., the “arising out of’ element.¹⁹

Assuming as a fact that — when the collision occurred — Dulen was having sex while also driving the rig, the trial judge could still find that this servant’s acts constituted no more than a careless, negligent or forbidden genre of performance but did not amount to pure frolic which, under the circumstances, was tantamount to total abandonment of the master’s business. On this record, such a finding would not be legally or factually incorrect. Both the terms of 85 O.S.1991 § 12 ²⁰ and Oklahoma’s jurisprudence bar contributory negligence as a defense against the claim.²¹ The text of 85 O.S.1991 § 11²² clearly provides that an injury is compensable “without regard to fault ” on the worker’s part. The record contains ample evidence reasonably supporting the notion that claimant’s injury was work-related, ²³ i.e., occurred while he was en route to his assigned destination.²⁴ Above all, uncon-troverted is the stubborn fact that Dulen, when injured, occupied his assigned work station — the driver’s seat behind the steering wheel of Darco’s truck.25 The record offers no proof that Dulen had deviated from or abandoned his master’s mission (transporting goods to San Francisco).²⁶

The law’s outer framework — unchanged since the very inception of this court’s compensation jurisprudence — strongly militates in this case against withholding compensation benefits for misconduct that plainly falls short of workstation abandonment27 — regardless of how morally reprehensible the worker’s on-the-job carelessness might have been.

B

THE RISK OF INJURY BY TRAIN WHILE MOTORING FOR THE MASTER IS CONNECTED WITH DU-LEN’S EMPLOYMENT AS A TRUCK DRIVER

An injury is compensable if it arises out of the claimant’s employment — i.e., was caused by a risk to which the employee was subjected by his work.²⁸ Any other notion would impermissibly interject into this State’s compensation regime concepts of common-law cause and foreseeability (the legal underpinnings of negligence).²⁹ The only criterion for compensability is the statute’s test of a bifurcated connection-in-fact to the employment. With the enactment of the Workers’ Compensation Act in 1915, the servant’s culpability has been eliminated as a defense against the master’s liability.³⁰

The record, which reflects several witnesses’ testimony that the railroad-crossing equipment malfunctioned, is devoid of any proof that the protective arms were in good working order. The trial tribunal found the equipment’s failure was the direct cause of the claimant’s injuries. Its finding rests on competent evidence. At the time of Dulen’s injuries, he was employed as a Darco truck driver with an assigned task — that of transporting goods to the West Coast. This required his presence on the highways. A causal connection between the act in which Dulen was engaged, when injured, and his job description is clear.³¹ Because the perils of this servant’s travel for his master are coextensive with the risks of employment, Du-len’s injuries undeniably arose out of his work.

IV

SUMMARY

When conflicting inferences may be drawn from undisputed facts, the controversy presents a fact question. There is competent evidence to support the trial tribunal’s decision that Dulen’s injuries were caused by the railroad-crossing equipment’s malfunction. Two insuperable hurdles absolutely militate against overturning the trial tribunal’s findings and exonerating the employer as a matter of law. Assuming Dulen and Freeman, at the critical temporal point, were engaged in sexual intercourse, (1) there is undisputed proof that, when the collision occurred, Dulen remained at the steering wheel and hence cannot be deemed to have then “abandoned” his assigned work station and (2) there is competent evidence to support the trial judge’s finding which ascribes the accident’s cause, not to copulation-related inattention, but to defective railroad-crossing warning equipment. A disposition that would deny Dulen’s claim, as the dissent appears to champion, could result only from this court’s original and legally unauthorized change in the trial tribunal’s finding which would declare Dulen guilty of contributory fault' — -a defense which is explicitly withheld by the provisions of 85 O.S.1991 § 11 from the master’s arsenal of weapons.³² On certiorari previously granted,

THE OPINION OF THE COURT OF APPEALS IS VACATED AND THE ORDER OF THE THREE-JUDGE PANEL SUSTAINED.

ALMA WILSON, C.J., and LAVENDER, SIMMS and HARGRAVE, JJ., concur. KAUGER, V.C.J., and HODGES, SUMMERS and WATT, JJ., dissent.

1 . See the testimony of Chester Cooper, the employer’s operations manager. Dulen also testified that this was his habit. (Tr. at 7, 26, and 33.)

2 . The accident occurred shortly after midnight. (Tr. at 32.)

3 . Tr., Claimant's Ex. 10 at 37.

4 . Tr. at 25 and 40.

5 .By her April 5, 1994 order, the trial judge found that the “direct cause” of the claimant’s injury was a malfunction of the protective equipment at the railroad crossing, which, if in proper condition, would have stopped traffic from proceeding across the tracks when a train was approaching.

6 . 85 O.S.1991 § 26; Benning v. Pennwell Pub. Co., Okl., 885 P.2d 652, 654 (1994); Owings v. Pool Well Service, Okl., 843 P.2d 380, 382-383 (1992); Lacy v. Schlumberger Well Service, Okl., 839 P.2d 157, 160 (1992); York v. Burgess-Norton Mfg. Co., Okl., 803 P.2d 697, 699 (1990); Parks v. Norman Mun. Hosp., Okl., 684 P.2d 548, 549 (1984); Graves v. Safeway Stores, Inc., Okl., 653 P.2d 1236, 1238 (1982); Standish Pipe Line Co. v. Kirkland, 188 Okl. 248, 107 P.2d 1024, 1025 (1940); Barnes v. Indian Territory Illuminating Co., 170 Okl. 520, 41 P.2d 633, 635 (1935).

7 . Thomas v. Keith Hensel Optical Labs, Okl., 653 P.2d 201, 203 (1982); Flick v. Crouch, Okl., 434 P.2d 256, 260-61 (1967).

8 . Controlling language in 85 O.S.1991 § 26 clearly provides that “[t]he decision of the Court [Workers' Compensation Court] shall be final as to all questions of fact, and except as provided in ... [§ 3.6], as to all questions of law.” [Emphasis added.]

Benning, supra note 6 at 654-55; Parks, supra note 6 at 551-52; Carpenter v. Douglas Aircraft Company, Okl., 420 P.2d 911, 912 syl. 2 (1966); Leffler v. McPherson Brothers Transport, Okl., 396 P.2d 491, 493 (1964); Eagle-Picher Company v. McGuire, Okl., 307 P.2d 145, 148 (1957).

9 . Iwunoh v. Maremont Corp., Okl., 692 P.2d 548, 549 (1984); Matter of Death of Sade, 649 P.2d 538, 540 (1982).

10 . "Competency” refers to the legal sufficiency of the admitted evidence to support the decision. In applying the any-competent-evidence standard, it is not this court's duty to weigh the adduced evidence but simply to canvass the facts to determine if tire tribunal’s decision is supported by competent evidence. Lacy v. Schlumberger, Okl., 839 P.2d 157, 160-61 (1992). See also Parks, supra note 6 at 552.

11 . Paries, supra note 6 at 552; Chromalloy-American, Oklahoma Division v. Wright, Okl., 567 P.2d 71, 73 (1977).

12 . The term “in the course of employment” relates to the time, place or circumstances under which the injury is sustained. Hensel, supra note 7 at 202; R.J. Allison v. Boling, 192 Okl. 213, 134 P.2d 980, 982 (1943).

13 . The term "arise out of employment” contemplates the causal connection between the injury and the risks incident to employment. American Management Systems, Inc. v. Burns, Okl., 903 P.2d 288, 291 (1995); Hensel, supra note 7 at 202; Richey v. Commander Mills, Inc., Okl., 521 P.2d 805, 808 (1974); Graham v. Graham, Okl., 390 P.2d 892, 893 (1964); Stanolind Pipe Line Co. v. Davis, 173 Okl. 190, 47 P.2d 163, 164 (1935).

14 . Hensel, supra note 7 at 202; Richey, supra 13 at 807; Hegwood v. Pittman, Okl., 471 P.2d 888, 891 (1970); Graham, supra note 13 at 893; Royster v. McCoy, Okl., 293 P.2d 587, 588 (1956).

15 . The pertinent terms of 85 O.S.1991 § 3(7) make compensable "... only accidental injuries arising out of and in the course of employment. ... Provided, 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 the employment." [Emphasis added.]

16 . Burns, supra note 13 at 291.

17 . Oklahoma first enacted workers' compensation law in 1915. 1915 Okla.Sess.Laws Ch. 246, p. 574. The act abolished the employee’s common-law negligence action against the master and its corollary defenses of contributory negligence and assumption of the risk. See Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, 940-41 (1917). Modern workers' compensation statutes remove the element of fault as a baseline requirement for ascribing liability for work-connected injuries and replace it with the concept of strict responsibility. For a discussion of strict liability's historical development, see Palmer, A General Theory of the Inner Structure of Strict Liability: Common Law, Civil Law, and Comparative Law, 62 TulX.Rev. 1303-1355 (1988).

18 . For an explanation of the elements of horseplay, see 1A A. Larson, The Law of Workmen’s Compensation, §§ 23.30 and 23.61 (1995).

19 . 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 hut 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 § 23.61.

20 . The pertinent terms of 85 O.S.1991 § 12 provide:

"... [A]n injured employee ... may maintain an action ... on account of such injury, and ... the defendant may not plead or prove as a defense ... that the injury was due to the contributory negligence of the employee....”

21 . See Fegett v. Berts Texaco Service Station, Okl., 495 P.2d 1277, 1278 (1972); Crutchfield v. Bogle, Okl., 270 P.2d 640, 642 (1954). For a discussion of fault in the workers’ compensation regime, see supra note 17.

22 . The pertinent terms of 85 O.S.1991 § 11 are:

"Every employer ... shall pay ... for the disability or death of his employee' resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury_" [Emphasis added.]

23 . An employee's activity is "work related” if the employer's purposes are being advanced, either directly or indirectly. Richey, supra note 13 at 807.

24 . Darco's operations manager (Chester Cooper) testified that, at the time of the accident, the claimant was properly en route to his assigned destination.

25 . There is not a scintilla of evidence that during the critical time in question Dulen was ever away from his assigned work station.

26 . Oklahoma's jurisprudence does not allow compensation for injuries to a servant who deviated from an assigned destination on a personal errand. See Breckenridge v. Bray Lines, Okl., 782 P.2d 909, 910 (1989); Anderson v. Allis-Chalmers Manufacturing Company, Okl., 387 P.2d 479, 482 (1963). The record offers cogent proof that the claimant's work task created the necessity for travel and that he was following an accepted path to reach his assigned destination.

27 . The record contains conflicting proof of Dulen and Freeman’s conduct. There is competent evidence to support the trial judge's finding that Dulen was injured in the course of his employment (and implicitly that he had not abandoned, at the time of the accident, his master's mission to pursue sexual intercourse).

28 . Burns, supra note 13 at 291; Hensel, supra note 7 at 202; Graham v. Graham, Okl., 390 P.2d 892, 893 (1964); Davis, supra note 13, 47 P.2d at 164. See also supra note 22 for the pertinent terms of 85 O.S.1991 § 11.

29 . For a general discussion of the relationship between the "arising out of” and proximate-cause concepts, see 1A A. Larson, The Law of Workmen’s Compensation § 6.60 (1995).

30 . For the history of Oklahoma’s workers’ compensation law, see supra note 17.

31 . See Hensel, supra note 7 at 203; Richey, supra note 13 at 807; Davis, supra note 13, 47 P.2d at 164.

32 . For the pertinent terms of 85 O.S.1991 § 11, see supra note 22.