Deise v. Mastercuts/Regis Corp.
| Decision Date | 28 June 2007 |
| Docket Number | No. 104,306. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,104,306. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1. |
| Citation | 2007 OK CIV APP 96,169 P.3d 724 |
| Parties | Brenda Kathleen DEISE, Petitioner, v. MASTERCUTS/REGIS CORP., The Hartford Insurance Co. of the Midwest, and The Workers' Compensation Court, Respondents. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
¶ 1 Petitioner Brenda Kathleen Deise seeks review of an Order of a three-judge panel of the Workers' Compensation Court which vacated the trial court's finding that Deise's claimed injury was compensable. Deise sought compensation for injuries resulting from an automobile accident which occurred after she made a bank deposit for Respondent Mastercuts/Regis Corp. (Employer). The parties disputed whether Deise was on a special mission at the time of the injury. The panel's Order is supported by competent evidence and we sustain.
¶ 2 Deise filed her Form 3 February 17, 2006, in which she claimed a single incident accidental injury, occurring October 6, 2005, to the right leg and foot and consequential depression, arising out of and in the course of her employment. Employer filed its Form 10, May 22, 2006, in which it denied Deise's injury arose out of and in the course of employment.
¶ 3 Trial was held August 14, 2006, and the trial court issued its Order Awarding (TTD) Benefits August 16, 2006. The trial court found Deise sustained an accidental injury to the right hand, right leg, right foot (below the knee amputation) with consequential psychological overlay arising out of and in the course of employment. The trial court denied Deise's claim for a consequential injury to the back. The trial court expressly found that Deise was on a special mission for Employer at the time of the accident, and that Deise's "work activities constitute the major cause of her resulting injuries." The trial court awarded TTD, medical treatment, and prosthesis. The trial court reserved for future hearing the award of PPD and the determination of any deficiency due from Employer following settlement of Deise's third-party claim.
¶ 4 Employer appealed the trial court's Order to a three-judge panel, claiming that the finding that Deise was on a special mission was against the clear weight of the evidence and was contrary to law. Employer asserted that at the time of her injury, Deise had left her employment and was on a personal mission. The panel vacated the trial court's Order, finding that Deise was "not on a special mission, but rather was performing her regular job duties prior to her injury, ...." The panel found Deise's injury was not compensable pursuant to Harris v. LaQuinta, 1997 OK 50, 937 P.2d 89.
¶ 5 In this review proceeding, Deise claims that the facts are undisputed and that the panel erred as a matter of law in finding that she was not on either a special mission or that she was driving her car as a job requirement at the time of the injury. Deise claims that either circumstance requires a finding of compensability. Employer claims Deise's testimony was contradictory and that the panel's finding is supported by competent evidence. Employer asserts Deise's trip to the bank was a routine job assignment and that it therefore did not qualify as a special mission. Employer argues that after making the deposit, Deise's job duties had ended and she was making her way home at the time of the injury. Employer argues therefore that Deise's claim is not compensable according to the going and coming rule.
¶ 6 Deise was the only witness at trial. Deise testified that she worked for Employer as a hairdresser at Employer's Shawnee Mall location. She had been employed there just under a year at the time of the injury. Deise explained the job duty that led her to make a bank deposit before this injury:
We took turns on the schedule to come in two days a week and leave late two days a week, closing the shop.1 Two people would count the drawer and the money and make sure everything matched for the night, make the bank deposit.
And whoever did the counting of the money left the bag with the other person, and two people followed each other to the bank and made the drop.
Deise explained that she was paid for her time involved in going to the bank. She explained that on the days she made the deposit she was paid for 15 minutes beyond the time she clocked out.
¶ 7 Deise testified that Employer's door at Shawnee Mall is located a quarter-mile east of the intersection of I-40 and Harrison. Deise lives in Seminole, and she explained that her normal route home from work is to get on I-40 at Harrison, next to the mall, and go east to Highway 3 where she turns south towards Seminole. Employer directed employees making the bank deposit to go south on Harrison from the mall to the Arvest Bank without making any stops. Deise testified Employer requires two drivers to make sure the deposit is safely made. Both drivers are paid for the extra 15 minutes.
¶ 8 Deise testified that on October 6, 2005 she was scheduled to close and make the deposit. She counted the money and he co-worker carried the money to the bank. "My job was to follow her to the bank until the bank deposit was made and then go our separate ways." Deise followed her co-worker to the bank and after they dropped the deposit, Deise testified that she did not return north on Harrison to I-40. Instead, she proceeded south on Harrison with the intent to purchase gasoline and then meet Highway 3 at a point further south. After leaving the bank, Deise traveled south on Harrison for about a quarter of a mile when a pickup drove out of a sports bar parking lot and hit Deise's car head on. The accident resulted in the loss of Deise's leg; she also suffered a broken left toe, a broken right hand, and seven fractured ribs. Deise testified the prosthetic leg has caused her to walk differently, which led to back problems. Deise testified she also lost her home, car, and job.
¶ 9 Deise testified she was on Harrison at the time of the accident at Employer's direction. She asserted that if she had been allowed to stop to get gas before going to the bank, she would have purchased gas at a station next to the mall and would not have gone south on Harrison from the bank to get gas, and at the time of the accident she would have been driving on I-40 towards home. Deise testified that according to the accident report, the collision occurred at 9:23 and that she therefore was still on the clock for work.
¶ 10 On cross-examination, Deise explained that the two employees do not exit their cars at the bank. The one carrying the deposit drops the money into the night deposit box. Deise agreed that once the money is dropped at the bank, the two co-workers are free to go in any direction they want. Deise agreed that on the day of the accident, she clocked in at 1:35 p.m. and clocked out at 9:14 p.m.2 Deise agreed the bank deposit was the "last job-related duty you've go to do." Deise testified that normally if it was her day to make the deposit, she would leave the bank and go north on Harrison to get back to I-40 for her trip home. On the day of the accident, she went south on Harrison because she needed to get gas for her car. Deise also agreed there is a gas station between the bank and I-40 that is closer to the bank than the gas station she was driving to at the time of the accident.
¶ 11 We will affirm the panel's decision if it is supported by any competent evidence. Owings v. Pool Well Service, 1992 OK 159, ¶ 1, 843 P.2d 380; Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 2, 684 P.2d 548. The applicability of the special task exception is ordinarily a question of fact; however, where the facts necessary to establish the special task exception are undisputed, a question of law is presented. Lucas v. Triad Drilling Company, 1998 OK 98, 969 P.2d 363. Deise asserts the facts are undisputed and that therefore the issue is one of law-whether the undisputed facts here show a compensable injury. Employer asserts that inconsistencies in Deise's testimony show factual discrepancies so that we must review the record for competent evidence. We find different inferences may be drawn from Deise's testimony. Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527, 529-530.
¶ 12 In her appellate brief in chief, Deise argues that the undisputed evidence shows she was on a special mission. Employer counters that Deise's trip to the bank did not qualify as a special mission. In her reply brief, Deise asserts that she was driving at Employer's direction at the time she was injured and that the injury is compensable whether it's characterized as a special mission, a normal job duty, or a dual mission.
¶ 13 It is without question that typically injuries incurred while going to or coming from work are not compensable. Lucas, supra, at ¶ 11. However, that rule "does not apply where the employee sustains an accidental injury while going to or returning from his place of work to perform a special task outside of his regular hours at the request of his employer and for the employer's benefit." Id., citing Thurston Chemical Company v. Casteel, 1955 OK 104, 285 P.2d 403. Oklahoma decisions have found several exceptions to the going and coming rule: 1) where the employer...
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