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PESP/TSI Staffing v. Weese11/15/2002
PESP/TSI, Inc. and its insurance carrier, Legion Insurance Co. (collectively, Employer), seek review of a workers' compensation order which found Claimant Robert Weese had sustained an accidental personal injury arising out of and in the course of his employment and was temporarily totally disabled and entitled to workers' compensation benefits. We agree with Employer that the trial court's order is not supported by any competent evidence and vacate the order.
Claimant, an iron worker /welder for Employer, filed a Form 3 for multiple injuries he received on Thursday, April 26, 2000, in a car accident that occurred two hours after he and a co-worker left work in Texas. They were on the way to Oklahoma City where they planned to pick up their per diem checks from Employer's office mailbox and then go home. Employer filed an answer, denying Claimant's injuries "occurred in the course of and scope of his employment," and later moved for a trial on the issue of jurisdiction.
At the hearing, counsel for Claimant announced he was seeking determinations on jurisdiction and compensability "as one of the recognized exceptions to the going and coming rule." Counsel for Employer stipulated that Claimant was an employee covered by the Workers' Compensation Act and had sustained an injury on April 26, 2000, but denied that incident "arose out of and in the course and scope of his employment." In lieu of presenting the testimony of two witnesses, counsel for Claimant and Employer further stipulated to the following facts:
Claimant completed work at about 4:30 p.m. . . . e was a passenger in a personal automobile driven by Mr. Robin Moore, [a co-worker], that . . . was involved in a motor vehicle accident five miles east of Chickasha on U. S. Highway 62 at approximately 6:15 p.m. . . . Claimant's route home was on U.S. Highway 62, and . . . they made no stops before the accident. . . . Claimant had a box of company welding rods in the car to keep them from being exposed to the elements. . . . Claimant had requested [Employer] to place his per diem check in the company mailbox in Oklahoma City so he could pick it up after work. . . . [Employer] did place the per diem checks in the company mailbox as requested by Claimant instead of FedExing them to the jobsite, which was normally done. . . . Claimant was not required by [Employer] to protect any welding rods left out on the job site.
Claimant, the sole witness at the hearing, testified that he resided in Oklahoma City and that during the three years prior to his accident the different construction sites upon which he worked for Employer were all located in Oklahoma City or Oklahoma County, except for two projects, a hospital in Durant, Oklahoma, and the post office in Wichita Falls, Texas (the Texas project). Claimant testified that he did not work the entire 3 weeks in Durant, but "for the period of time" he worked there, he rode with the foreman and was paid his regular hourly wage, $17.00 per hour, and an additional $4.05 per hour, which he identified as a "subsistence per diem."
Claimant testified that he and Moore decided to commute daily to the Texas project rather than use the per diem payments to cover lodging expenses. On the day of the accident, they left Oklahoma City at 4 a.m. and drove to the Texas project via the H.E. Bailey Turnpike, their usual drive both ways. From Employer's on-site office, they called Employer's office personnel in the Oklahoma City office "ahead of time" requesting them to put their per diem checks in the company mailbox located out in front of the office. After an 8 1/2 hour workday, Claimant and Moore were "dismissed from the job site" around 4:30 p.m. Before leav
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