Robison Med. Res. Grp. v. True

• Decision Date: 04 November 2015
• Docket Number: No. 113,528.,113,528.
• Citation: 362 P.3d 1155
• Parties: ROBISON MEDICAL RESOURCE GROUP and Castlepoint National Insurance Company, Petitioners, v. Tommy Ray TRUE and The Workers' Compensation Commission, Respondents.
• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

362 P.3d 1155

ROBISON MEDICAL RESOURCE GROUP and Castlepoint National Insurance Company, Petitioners,

v.Tommy Ray TRUE and The Workers' Compensation Commission, Respondents.

No. 113,528.

Court of Civil Appeals of Oklahoma, Division No. 4.

Nov. 4, 2015.

Robert P. Powell, Katie Sommer, Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Petitioners.

John L. Harlan, John L. Harlan & Associates, P.C., Sapulpa, Oklahoma, for Respondent.

DEBORAH B. BARNES, Judge.

¶ 1Petitioners Robison Medical Resource Group (Employer) and CastlePoint National Insurance Company(collectively, Petitioners) seek review of an order of the Workers' Compensation Commission en banc affirming an order of an Administrative Law Judge (ALJ).The ALJ found the injuries sustained by RespondentTommy Ray True (Claimant), resulting from an automobile accident, arose out of the "course and scope" of his employment and were compensable.The Commission affirmed the ALJ's order.Based on our review, we sustain.

BACKGROUND

¶ 2 Employer is a staffing company that staffs and contracts with hospitals to supply nursing and nursing support staff.Claimant, a registered nurse, began working for Employer in May 2013 as a "per diem nurse," meaning he would work for an agreed number of hours, and at a specified hourly rate, at various hospitals throughout Northeastern Oklahoma for which Employer supplied nursing staff.For example, Claimant testified that, before working at a certain hospital, he would "talk to a staffing person" for Employer, and "[t]hey tell you, you know, if you want to go to Claremore, this is the rate that we are paying at Claremore right now."He stated: "You deal with the staffing person.If they call you right then, they have the ability to offer you a rate...."

¶ 3Claimant stated that most of his work was performed at hospitals in Claremore, Pryor, and in Mayes County, but that he sometimes also worked at a more distant hospital located in Grove, Oklahoma, because Employer "[is] the primary supplier for that hospital[.]"He stated that he was compensated for his mileage when he worked at the Grove hospital because it was a considerably longer drive compared to his drive to the other hospitals.He testified: "The only place I've ever been paid mileage is going to Grove."Claimant also testified that "Grove is farther away, so it's much easier to get somebody to replace like my shift that was at Claremore than it would be to get somebody to go all the way to Grove."

¶ 4March 8, 2014, was one of the days that Claimant agreed to work at the Grove hospital.Claimant testified he was asked that morning "if I'd be willing to go to Grove."Claimant testified there was wintry weather that morning, including sleet, and therefore "people were calling in no-show" at the Grove hospital.Claimant agreed to work at Grove that day because, among other things, the agreed-upon rate, with mileage included, totaled $40 per hour, and the staffing person for Employer agreed that Claimant could leave at 3:00 that afternoon, instead of at 7:00 that evening, after the staffing person "okayed it" with Grove hospital.

¶ 5 After clocking out of the Grove hospital at 3:15 that afternoon, Claimant went to his car and began his drive back home.He testified he"went up the turnpike,""went through Jay,""cut across the top part of Lake Hudson," and was driving "on the far side of Pryor" when the accident occurred as he was crossing a bridge and his car hydroplaned.¹Claimant testified he directed his car slightly toward the middle of the road to avoid a deer standing "kind of" in his lane—he testified he wanted to give the deer "some wide berth"—and that as he did so, he hit his breaks and his car hydroplaned.He testified he"was straight off into the ditch and I tried to avoid [it], but I clipped an oak tree."He testified the weather conditions played a role in the accident.

¶ 6Claimant testified that during this drive, and therefore at the time of the accident, "I'm what I consider to be on the clock from being paid time and travel."In this regard, Claimant testified that his hourly rate on the day of the accident was $40, but that this included a $2.50 per hour increase over a $37.50 per hour rate to cover his mileage to Grove.He explained on direct examination that for past trips to Grove, his pay check had provided a separate entry, or he had received a separate check, for "gas mileage money per diem, this was for me going to Grove."However, he stated that there was a "constant problem" with his pay check and that "every time you got paid, you had to really watch your check because there would be errors."He stated that "what you talked about between staffing people sometimes didn't get transferred into the computer for the people that paid your check, so you always have to look."He testified that although he had previously been paid "[$]134.20 for the mileage up there," that he"had a conversation with Whitney Robison[i.e., Claimant's supervisor] about this" and how it was just going to be another issue that would ... be messed up....So at that time she had agreed just to change my pay for up there to be a solid [$]40 [per hour] to include my mileage back and forth, and she said that she would put it in the computer that way.

He stated that Employer "changed it to the $40 an hour to include the mileage," and "that would include my mileage plus my per diem."

¶ 7 Only one other witness testified at trial-Michelle Logan, Employer's vice president of human resources.She stated that per diem nurses, like Claimant, are "just staffed when we need them," and they are "what we call on a day-to-day basis."On cross-examination, she agreed that Claimant's supervisor had the discretion to offer Claimant mileage reimbursement in addition to his hourly rate.She also testified, however, that it is Employer's policy to pay travel expenses "separately because it's paid at IRS guidelines and it's whatever the IRS rates are" and "it's never included in an hourly rate of pay."However, she testified, "I don't do payroll...."

¶ 8 In his order filed in June 2014, the ALJ stated that the accident "occurred after [Claimant] ended his shift at the Grove Hospital and had clocked out," and that "Claimant was traveling from his place of employment" at the time of the accident.However, the ALJ found that Claimant's "testimony regarding the payment of travel expenses was credible," and therefore found that "the travel and hourly pay" were combined into the $40 per hour rate.The ALJ determined that this "travel reimbursement is the determinative factor" under 85A O.S. Supp.2014 § 2(13).The ALJ also stated that Claimant was "sent to Grove at the request of [Employer]," and that Claimant's "activities were in the furtherance of the affairs of [Employer] and were not to and from his place of employment and were in [no] way in furtherance of personal or private affairs of the employee."The ALJ found that the injuries sustained as a result of the accident arose out of and in the course of Claimant's employment, and awarded temporary total disability compensation and reasonable and necessary medical treatment.

¶ 9Petitioners sought review by a three-member panel of the Workers' Compensation Commission.Petitioners asserted, among other things, that the ALJ erred (1) in finding Claimant's testimony to be credible regarding payment of mileage for his drive to the Grove hospital; (2) in determining that travel reimbursement is a determinative factor in this case under § 2(13); and (3) in finding that Claimant's activity at the time of the accident was in furtherance of the affairs of Employer and did not constitute "transportation to and from [Claimant's] place of employment," excluded from coverage under § 2(13)(a).

¶ 10 After a hearing, the Commission, in its Order filed in December 2014, affirmed the decision of the ALJ.²From the Order, Petitioners appeal.

STANDARD OF REVIEW

¶ 11Claimant's injuries were sustained in March of 2014.Therefore, the Administrative Workers' Compensation Act, 85A O.S. Supp.2014 §§ 1 through 125(AWCA), governs this case.³As specified in the AWCA, the Commission is an executive agency of the State of Oklahoma, § 19(A), and is subject to the Oklahoma Administrative Procedures Act (OAPA), 75 O.S.2011 & Supp.2014 § 250 et seq., with regard to rulemaking.See85AO.S. Supp.2014 § 19(C).However, as to "appeals or disputes arising from actions of the Commission," the AWCA, rather than the OAPA, applies, "except as provided in [the AWCA]."§ 19(F).

¶ 12 Pertinent to this case, the AWCA provides that this Court"may modify, reverse, remand for rehearing, or set aside" a judgment, decision, or award of the Commission only if it was: "4.Affected by other error of law; [or] 5.Clearly erroneous in view of the reliable, material, probative and substantial competent evidence[.]"85A O.S. Supp.2014 § 78(C).In particular, we will review the fact finding regarding payment of Claimant's mileage to determine if it is clearly erroneous in view of the competent evidence; however, we will review de novo all legal determinations related to the proper construction of 2(13)—which defines "course and scope of employment"—without deference to the Commission's legal rulings."Statutory construction presents a question of law.Questions of law are reviewed by a de novo standard.Under this standard, we have plenary, independent and nondeferential authority to determine whether the trial court erred in its legal ruling."Fanning v. Brown,2004 OK 7, ¶ 8, 85 P.3d 841(citations omitted).

ANALYSIS

I.The finding that Claimant was compensated for his mileage is not clearly erroneous in view of the substantial competent evidence.

¶ 13 As stated above, Claimant testified he was compensated for his mileage to and from the Grove hospital.He testified he was not paid separately for this mileage; instead, he testified Employer increased his hourly rate from $37.50 to...