Darco Transp. v. Dulen

• Court: Oklahoma Supreme Court
• Writing for the Court: OPALA; ALMA WILSON; WATT
• Citation: Darco Transp. v. Dulen, 922 P.2d 591, 1996 OK 50 (Okla. 1996)
• Decision Date: 02 April 1996
• Docket Number: No. 84374,84374
• Parties: DARCO TRANSPORTATION and State Insurance Fund, Petitioners, v. Elmer O. DULEN and The Workers' Compensation Court, Respondents.

Page 591

922 P.2d 591

1996 OK 50

DARCO TRANSPORTATION and State Insurance Fund, Petitioners, v. Elmer O. DULEN and The Workers' Compensation Court, Respondents.

No. 84374.

Supreme Court of Oklahoma.

April 2, 1996.

Rehearing Denied Sept. 13, 1996.

Kelly M. Greenough, Robert Highsaw, State Insurance Fund, Tulsa, for Petitioners.

Matthew J. Graves, John S. Oldfield, Oldfield & Coker, Oklahoma City, for Respondents.

OPALA, Justice.

The answers to two questions are dispositive 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 [Darco or employer]? We answer the first question in the negative and the latter in the affirmative.

I 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 Dulen'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 evidence ¹⁰ that a trial tribunal's decision may be viewed as erroneous as a matter of law and hence subject to appellate vacation. ¹¹

III

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 COMPENSABLE

UNDER THE LAW

Oklahoma's jurisprudence has long recognized that a compensable work-related injury must both (1) occur in the course of ¹² and (2) arise out of 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) DULEN,

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--i.e., 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 employment. ¹⁸ 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, i.e., 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 § 11 ²² 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, uncontroverted 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 abandonment ²⁷--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 DULEN'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 co-extensive with the risks of employment, Dulen's injuries undeniably arose out of his work.

IV

SUMMARY

When conflicting inferences may be drawn from undisputed facts, the controversy presents a...