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Moore v. PESP/TSI Group11/15/2002
Claimant Robin Moore asks us to vacate an order of a three-judge panel of the Workers' Compensation Court affirming a trial judge's denial of compensation based on a finding that Claimant's injury did not arise out of and in the course of his employment with PESP/TSI Group (Employer, collectively with its insurance carrier, Legion Insurance Co.). We conclude the order is supported by competent evidence and sustain it.
Claimant, an iron worker 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, Robert Weese, left work in Texas driving to Oklahoma City where they planned to pick up their per diem checks from Employer's office mailbox before going home. Employer filed an answer, denying Claimant's injuries "occurred in the course of and scope of his employment," and moved for a trial on that issue. At the hearing, 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."
Claimant testified that the different construction sites where he worked for Employer for the past year were all located in Oklahoma City or Oklahoma County, except for the post office in Wichita Falls, Texas (the Texas project). For the latter job only, Claimant was paid his regular hourly wage, $16.00 per hour, and an additional $4.05 per hour, which the parties variously referred to as a "per diem bonus" or "per diem check."
Although Employer introduced evidence that the "per diem" money was paid in order to allow workers to stay in the area so that they would be available to report to work, Claimant testified he and Weese decided to commute daily to the Texas project because they believed they would spend less of the "per diem" money by doing so. 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 8½ hour workday, Claimant and Weese left the Texas project around 4:30 p.m. Before leaving, Weese placed an opened 50 pound box of welding rods into Claimant's car. They drove back on the turnpike until they ran out of money for the tollbooths to make it all the way to Oklahoma City. The accident occurred on a highway near Chickasha, Oklahoma when Claimant fell asleep at the wheel, causing his car to go left of center and to collide with other cars, injuring both him and Weese.
When Claimant's questioning was completed, his counsel sought admission of his hospital records and other documents, on some of which the trial judge reserved ruling until making the final order. Employer then presented the testimony of Bob Young, one of Employer's job foremen at the Texas project, and offered into evidence additional medical reports, which were admitted over Claimant's probative value objection.
In his order, the trial judge found that Claimant did not sustain an accidental personal injury arising out of and in the course of his employment and denied his claim for compensation. In addition thereto, the trial judge specifically found that: (1) Claimant's accident "did not arise out of his employment" with Employer; (2) Claimant's transportation of equipment was without the consent of Employer, who had made other arrangements for the protection of the equipmen
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