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PESP/TSI Staffing v. Weese11/15/2002
ing, Claimant placed an opened 50 pound box of welding rods into Moore's car so he "would have something to work with and they wouldn't get ruined" by the weather. They drove back on the turnpike until they "ran out of money for the tollbooths to make it all the way to Oklahoma City." Claimant was asleep at the time of the accident, which occurred when Moore fell asleep at the wheel.
After the hearing, the trial judge found, in pertinent part, that "on APRIL 26, 2000, . . . claimant sustained accidental personal injury to the MULTIPLE BODY PARTS, including but not necessarily limited to, HEAD, PELVIS, FEMUR, RIBS and SPLEEN, arising out of and in the course of claimant's employment," but reserved issues regarding temporary total disability and permanent disability. A three-judge panel affirmed that ruling, but Employer's first review proceeding was dismissed by the Oklahoma Supreme Court because without an award or denial of benefits there was no reviewable order. After remand, the trial judge filed an order repeating its earlier finding and also finding Claimant temporarily totally disabled and awarding Claimant a lump sum for those benefits.
Employer then filed this review proceeding, alleging "there was no causal relationship between the act engaged in at the time the injury occurred and the requirements of the claimant's employment." Under a single proposition of error, Employer argues there is no competent evidence that Claimant's injuries occurred "in the course of his employment" because: (1) he had completed his job and was on a personal mission to drive back to the office to pick up his per diem check, (2) it was his sole decision to drive back and forth to the job site and he was not exposed to any greater risk on that day than any other day he had driven back and forth, and (3) he was not performing a duty pursuant to his job by transporting the welding rods.
Whether an employee's injury "arises out of" or "occurs in the course of" employment presents a non-jurisdictional issue of fact which is to be determined by the trial judge and must be affirmed by the reviewing court if supported by competent evidence. Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, 958 P.2d 795. The burden of proof is on the claimant to show the disability for which compensation is sought was caused by an accident arising out of and in the course of employment. Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527.
To be compensable, an injury must both occur (1) in the course of and (2) arise out of the worker 's employment; these are distinct elements and are not to be understood as synonymous. American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288. The latter phrase contemplates the causal connection between the injury and the risks incident to employment, whereas the former phrase relates to the time, place or circumstances under which the injury is sustained. Thomas v. Keith Hensel Optical Labs, 1982 OK 120, 653 P.2d 201.
As a general rule, injuries sustained by a worker while going to and coming from the workplace do not arise out of and in the course of employment within the meaning of the Workers' Compensation Act. Stroud Municipal Hospital v. Mooney, 1996 OK 127, 933 P.2d 872. This rule primarily results from the fact that going to and coming from work is the product of the employee's own decision of where he desires to live, a matter ordinarily of no interest to the employer, and that ordinarily a person's employment does not begin until he or she reaches the place of employment. Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527.
Oklahoma Courts have recognized several exceptions to the going and c
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