EWY v. SOUTHWEST CUPID

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EWY v. SOUTHWEST CUPID

2015 OK CIV APP 37

348 P.3d 716

Case Number: 112999

Decided: 03/20/2015

Mandate Issued: 04/15/2015

DIVISION IV

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

Cite as: 2015 OK CIV APP 37 , 348 P.3d 716

MARY EWY, Petitioner,

v.

SOUTHWEST CUPID, GUARANTEE

INSURANCE CO., and THE WORKERS' COMPENSATION COURT, Respondents.

PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF

THE

WORKERS' COMPENSATION COURT OF EXISTING CLAIMS

HONORABLE MICHAEL W. MCGIVERN, TRIAL JUDGE

VACATED AND REMANDED FOR FURTHER

PROCEEDINGS

Stacey Lobaugh, Ponca City, Oklahoma, for Petitioner

Patrick S. Parr,

MCANANY, VAN CLEAVE & PHILLIPS, P.A., Tulsa, Oklahoma, for

Respondents

DEBORAH B. BARNES, JUDGE:

¶1 Petitioner Mary Ewy (Claimant) seeks review of an Order of a three-judge

panel of the Workers' Compensation Court of Existing Claims affirming the order

of the trial court. The trial court denied Claimant's compensation claim under

the second exclusion found in 85

O.S. 2011 § 312(6); that is, the trial court denied coverage on the basis

that Claimant's injury occurred in an area where essential job functions are not

performed. The three-judge panel, with one judge dissenting, affirmed. Based on

our review, we vacate the Order and remand for further proceedings.

BACKGROUND

¶2 In Claimant's Form 3, she alleged that in January, 2013, while employed as

a "floater" for Respondent Southwest Cupid (Employer), she sustained a

single-event injury to her left hand when she fell on her way back to work.

Trial was held in January, 2014. At trial, Employer admitted Claimant was its

employee and "covered under the Act." However, Employer denied Claimant

sustained a compensable injury "based on [ Leandro v. American Staffcorp,

Inc. , 2013 OK CIV APP 68 , _

P.3d _]," an opinion affirming a denial of compensability for an injury that

occurred in an area controlled by the employer, but where essential job

functions were not performed.

¶3 Claimant testified at trial that her job as a floater for Employer

consisted of the following: "Whenever other employees holler that they need

something [I] go and get it for them . . . and I lift boxes up on to the

shipping line." Claimant testified that the accident occurred as "I was

returning from lunch and I parked my car in the parking lot and I was walking to

the building and I tripped on a piece of cement in the sidewalk. It came out of

the sidewalk and I fell." She stated that her shift had already begun earlier

that day, and the accident occurred as she was returning to work after her lunch

break. She stated that, at the end of her 45-minute lunch break, she drove back

to work and parked her car in the parking lot beside Employer's building. She

then "had to walk around the side of the building and down the sidewalk and then

around to the front door." She stated that she was walking back to work on the

only sidewalk that leads to the front door when she fell. She stated that the

front door is the only door through which she can access Employer's

building.

¶4 On cross-examination, Claimant responded in the affirmative when

questioned whether Employer "provide[s] a break or lunchroom area or kitchen?"

Claimant also responded in the affirmative when questioned whether she "had the

ability to have lunch at the office or at the building[?]" Despite this ability,

Claimant testified that she went home for lunch, and she agreed that this was

her own choice.

¶5 Also on cross-examination, Claimant testified that the parking lot where

she parked her car is Employer's parking lot. She testified that the sidewalk

where she fell is used only by Employer and Employer's employees.

¶6 Claimant testified that she does not have a workstation at work because

she has what is "called a floating job. You go from different areas to different

areas for what you're needed to do." However, she stated that Employer's

building is one large warehouse, and she responded in the negative when

questioned whether "any part of your job take[s] place outside of the

warehouse?" She also responded in the negative when questioned whether "any part

of your job[] [is] done around the area where you fell?"

¶7 In its order filed in February, 2014, the trial court denied

compensability, finding that Claimant's

injury returning to work after a lunch break while on employer controlled

property is not compensable under Title 85, O.S. § 312(6) as it is not an

area under which essential job functions were performed. . . . All parties

agreed [C]laimant had no job duties in the area [where] she fell. She

furthermore was coming off a personal errand as she had chosen to go home

for lunch and was returning to the job site. She could have chosen to eat at

Employer's place of business. She chose not to. . .

.

¶8 Claimant appealed the trial court's order to a three-judge panel. In its

Order filed in June, 2014, the three-judge panel, with one judge dissenting,

affirmed the trial court's order denying compensation.

¶9 From the three-judge panel's Order, Claimant appeals.

STANDARD OF REVIEW

¶10 The applicable standard of review is set forth in Graham Public

Schools v. Priddy , 2014 OK

30 , 328 P.3d 1190 , and

Carney v. DirecTV Group, Inc. , 2014 OK CIV APP 4 , 316 P.3d 234 . In Priddy , the

Oklahoma Supreme Court stated:

Where there is no conflict in the evidence and no opposite inferences to

be drawn from undisputed proof, the question of whether an injury arises out

of and in the course of employment is one of law. Questions of law are

reviewed by a de novo standard under which this Court has plenary,

non-deferential and independent authority to determine whether lower courts

have erred in their legal rulings.

Priddy , ¶ 8 (citations omitted). Similarly, in Carney , this

Court stated:

The issue of whether a claimant's injury arose out of and in the course

of employment has historically been a question of fact for the Workers'

Compensation Court. However, the material fact questions relating to

Claimant's presence in the parking lot and how her injury occurred were

undisputed. Where there is no conflict in evidence and no opposite

inferences may be drawn from undisputed proof, the question is one of law.

This court reviews conclusions of law by a de novo standard,

performing an independent, non-deferential re-examination of the trial

court's legal rulings. If the undisputed facts do not support the workers'

compensation court's order, the order will be

vacated.

Carney , ¶ 9 (citations omitted) (internal quotation marks

omitted).

ANALYSIS

¶11 The law in effect at the time of the alleged injury provides, in

pertinent part, as follows:

The following shall not constitute a compensable injury under the

Workers' Compensation Code:

. . . ;

6. An injury which occurs outside the course of employment. Employment

shall be deemed to commence when an employee arrives at the employee's place

of employment to report for work and shall terminate when the employee

leaves the employee's place of employment, excluding areas not under the

control of the employer or areas where essential job functions are not

performed ; provided, however, when the employee is instructed by the

employer to perform a work-related task away from the employee's place of

employment, the employee shall be deemed to be in the course of employment

when the employee is engaged in the performance of job duties directly

related to the task as instructed by the employer, including travel time

that is solely related and necessary to the employee's performance of the

task. Travel by a policeman, fireman, or a member of a first aid or rescue

squad, in responding to and returning from an emergency, shall be deemed to

be in the course of employment.

85 O.S. 2011 § 312 (emphasis

added). "Section 312(6) addresses only . . . the requirement that a compensable

injury occur 'in the course of' employment, and provides statutory guidance for

determining that issue. Prior to the adoption of this language, the 'in the

course of' requirement was defined by judicial decisions." Carney , ¶

11.

¶12 An earlier version of this statute was enacted in 2010. 1 As stated by the Oklahoma

Supreme Court, the 2010 version also provided, "in pertinent part, that

'Employment shall be deemed to commence when an employee arrives at the

employee's place of employment to report for work and shall terminate when the

employee leaves the employee's place of employment.'" Priddy , ¶ 4 . The

2010 version also contained the same "two exclusions: (1) injuries in areas not

under the control of the employer, and (2) injuries in areas where essential job

functions are not performed." Id. ¶ 4.

¶13 As was the case in Carney , Leandro , and Priddy , the

undisputed facts in this case render the first exclusion inapplicable. See

Carney , ¶ 27 ("It is undisputed that [the employer] controlled the parking

lot where [the claimant] fell."); Leandro , 2013 OK CIV APP 68, ¶ 8 (The

parking lot where the injury occurred was "leased by [the employer]" and the

employer, therefore, had "some limited control" of the parking lot sufficient to

render the first exclusion inapplicable.). See also Priddy , ¶ 2

(The claimant slipped on a rug placed outside the employer's door that employees

used to exit the employer's school building). Here, the parking lot where

Claimant parked her car is Employer's parking lot, and the sidewalk where the

injury occurred is located on Employer's property. Furthermore, the sidewalk

where Claimant fell is the only sidewalk leading to the front door of Employer's

warehouse, and this front door, in turn, is the only door through which Claimant

can access Employer's building. Finally, the sidewalk where Claimant fell is

used only by Employer and Employer's employees. Consequently, we conclude that

the area where Claimant fell is an area "under the control" of Employer for

purposes of § 312(6), and, accordingly, the first exclusion does not apply.

¶14 We now turn to the second exclusion, which directs that injuries that

occur in "areas where essential job functions are not performed" are not

compensable because outside the course of employment. The term "essential job

functions" has been construed in a manner consistent with case law pre-dating

the enactment of the statutory language at issue, and a narrow interpretation of

this term has been rejected. In Carney , this Court indicated that a

narrow construction of this term would result in the denial of compensation for

injuries that occur in areas controlled by the employer, but allow compensation

for other injuries that occur in areas controlled by the employer, in a manner

that is inconsistent and irrational. For example, we stated in Carney

that such a narrow construction would

deny coverage to a worker employed as a truck driver injured while

walking from the worker's personal vehicle to the employer's office, but

cover an injury if it occurred while the worker, after "clocking in," was

walking across the same parking lot to the employer's vehicle to begin work.

The multiplicity of inconsistent results from this interpretation is not

permissible. Statutory construction that would lead to an absurdity must be

avoided and a rational construction should be given to a statute if the

language fairly permits.

Carney , ¶ 23 (citation omitted) (internal quotation marks

omitted).

¶15 Although an overly narrow interpretation of the term "essential job

functions" has been rejected, the second exclusion "adopted by the Legislature

would be superfluous if any injury on premises controlled by an employer

was automatically deemed to be in the course of employment." Leandro , 2013 OK CIV APP 68, ¶ 11 . Moreover,

"it has long been recognized that mere presence on an employer's premises is not

determinative of compensability. Not all injuries on an employer's premises are

compensable." Id.

¶16 Rather than deeming any injury on premises controlled by an

employer to have automatically occurred during the course of employment, this

Court, in Carney , and the Oklahoma Supreme Court, in Priddy , have

concluded that when an injury occurs in an area under the control of the

employer, the longstanding case law addressing "a going or coming injury" is to

be applied. See Priddy , 2014

OK 30, ¶ 5 .

¶17 In Carney , the claimant was injured in a parking lot controlled by

the employer while returning to work from her lunch break. "As [the claimant]

entered [the employer's] parking lot, she tripped over a parking-lot curb, hit

her right shoulder on the bumper of a car parked on the lot and fell to the

pavement." Carney , ¶ 2. In Carney , as in the present case, the

trial court denied compensability based on the second exclusion: i.e., in

Carney , the trial court found that "the location of the incident is not

an area where essential job functions are performed and therefore the injuries

occurred outside the course of her employment . . . ." Id. ¶ 7.

¶18 As stated, the Carney Court construed the second statutory

exclusion in a manner consistent with "going to or coming from work" case

precedent predating the 2010 statutory change. The Carney Court found

that the claimant's injury - an injury that occurred while the claimant was

walking back to work from her lunch break and in an employer-controlled area -

was not excluded under the second exception. The Carney Court concluded

that "the trial court's determination that the [c]laimant's injury was not

compensable because it did not occur in a place where 'essential job functions

are performed' is . . . contrary to long-established Oklahoma law." Id. ¶

25.

¶19 In Leandro , the claimant was also injured as a result of a fall in

a parking lot. The claimant in Leandro went to her car during a scheduled

15-minute break to retrieve a water bottle because she was thirsty. "As she

approached her car, [c]laimant caught her foot in a crack in the parking lot and

she fell onto her hands." Leandro , ¶ 4 . However, evidence was presented

that the claimant went to her car for water despite the fact that

a water fountain was available immediately inside [c]laimant's work area

and there were pop machines and water machines in a break room, as well as

refrigerators for the employees to use. Ten feet away from the water

fountain and around a corner, there was a sink in a hallway outside the

break room. [A witness] testified the sink was used for hand washing, food

preparation, and to fill cups of water. Styrofoam cups were available five

feet away on shelves in the break room.

Id. ¶ 5. The Leandro Court sustained the denial of compensation

because the claimant's "job was to assemble parts," and "[h]er decision to go to

her car rather than to use employer-provided resources was in furtherance of an

on-the-premises personal purpose or mission, not in furtherance of an essential

job function." Id. ¶ 12.

¶20 Although the Carney Court "agree[d] with the Leandro

Court's interpretation of section 312(6)," it concluded that "the facts in that

case are distinguishable." Carney , ¶ 26. In particular, the Carney

Court concluded that "the personal mission exception to the parking lot rule"

applied in Leandro was inapplicable to the circumstances presented in

Carney . Id. The facts presented in Carney were deemed to be

distinguishable because the claimant in Carney "testified that because

[the employer's] cafeteria was closed during her night shift it was

necessary for her to leave the premises in order to eat lunch." Id. ¶

27 (emphasis added).

¶21 Here, Claimant's services as a "floater" were required throughout

Employer's warehouse, but Claimant testified that her job did not "take[] place"

outside Employer's warehouse, such as "around the area" where she fell on the

sidewalk. In addition, Claimant testified Employer provided a lunchroom, that

she had the ability to eat lunch in Employer's building, and that, nevertheless,

she chose to leave the premises for lunch.

¶22 Unlike in Carney , where the cafeteria was closed and, in order to

eat lunch, "it was necessary for [the claimant] to leave the premises," here,

Claimant admits that a lunchroom was available, that she had the ability to eat

lunch in Employer's building, and that she simply chose, instead, to leave the

premises for lunch. As in Leandro , where the claimant made a "decision to

go to her car rather than to use employer-provided resources," Claimant made a

decision to leave work and go home for lunch rather than use employer-provided

resources.

¶23 However, at least as it pertains to the circumstances of the present

case, we disagree with the importance of the distinction, drawn in

Carney , between the availability and nonavailability of employer-provided

resources. Further, we conclude that the Leandro Court ultimately relied

upon an overly narrow interpretation of the term "essential job functions."

¶24 "[I]njuries sustained while going to and coming from work, when occurring

on employer's premises, are normally deemed to have arisen out of and in the

course of employment." Barnhill v. Smithway Motor Express , 1999 OK 82, ¶ 15 , 991 P.2d 527 (citation omitted)

(emphasis omitted). "[P]ersonal comfort missions (e.g. using restroom

facilities), during working hours on employer's premises, are generally

considered in the course of employment . . . ." Id. ¶ 16 (emphasis

omitted).

It is axiomatic that compensable injury must arise within time and space

limitations of employment, and also within the course of activity related to

employment. An employee's activity is work related if the employer's

purposes are being carried out, or the employer's interests are being

directly or indirectly advanced. This principle is the foundation for the

doctrine that work-connected activity reaches beyond the direct services

performed and includes ministrations to the personal comfort and needs of

employees . For example, with respect to the status of an employee while

he is eating his lunch on the employer's premises, some courts have reasoned

that food is essential to continued labor, and that an employee, in

refreshing himself by eating during the lunch hour, is doing that which is a

necessary incident of his employment.

This theory has provided basis for concluding that injury occurring

during course of an unpaid lunch period on the employer's premises comes

within course of the employment. Similarly, it has been reasoned that if

an injury which occurs while going to and from work on the premises is

compensable, then an injury going to and from lunch on the premises is

covered . Thus, if going to and from lunch on the premises is within

course of employment, then remaining on the premises and eating lunch must

be within the employment.

The principle is not new. An early English case . . . announced the

principle. A workman paid by the hour, but not including meal time, could

take his meal on the premises, or go elsewhere as he chose . The workman

sat down to eat his meal on the premises and was injured by a falling wall.

The court held the eating period did not break the employment, since the

mere fact the employee was not paid for the time, and while eating was not

engaged in main purpose of the work, did not create a cessation of the

employment, since it was to the employer's advantage that employees have the

opportunity to eat and thereby perform their work all the

better.

Richey v. Commander Mills, Inc. , 1974 OK 47, ¶¶ 6-8 , 521 P.2d 805 (citations omitted)

(emphasis added). "[W]ork-connected activity reaches beyond direct services

performed and includes ministrations to the personal comfort and needs of

employees, while at work, and . . . such activities are necessary incidents of

the employment." Barnhill , ¶ 16 (citing Richey ).

¶25 In the present case, Claimant left Employer's premises during her

allotted lunch break to eat lunch. She was not required to stay on premises for

lunch, and could eat lunch on premises, or leave Employer's premises to eat

lunch, as she chose. Although compensation was denied in Corbett v. Express

Personnel , 1997 OK 40 , 936 P.2d 932 , where the claimant was

injured in the employer's parking lot while leaving work before his allotted

break period and to do personal business at his bank, the facts presented in

Corbett are plainly distinguishable from those presented in the present

case. Here, Claimant sustained an injury, on Employer's premises, while

returning from her lunch break. Claimant's activities were related to her needs

to eat and drink - needs sufficiently related, even if indirectly, to her

employment - and her ministration to these needs occurred during the time

allotted by Employer, and her injury occurred while rightfully on the sole

sidewalk to the front door of Employer's building. The time, place and

circumstances of the accidental injury reveal that it occurred in the course of

Claimant's employment. In this regard, see also Fudge v. University of

Oklahoma , 1983 OK 67, ¶ 7 , 673 P.2d 149 (Denial of compensation

vacated by Supreme Court because claimant sustained her injury while walking to

her car while "taking a regular lunch break," and "[a]bsent unusual

circumstances . . . a worker is not deemed to be without the scope of his

employment while he is proceeding, during a regular lunch break, to his car that

is parked in the employer-provided parking lot.") (footnote omitted).

¶26 Consequently, Claimant's injury must be deemed to have occurred in an

area where essential job functions are performed, and to have occurred in the

course of her employment. Therefore, we vacate the Order of the three-judge

panel, and we remand for further proceedings.

CONCLUSION

¶27 Based on our review, we conclude Claimant's on-premises injury that

occurred while returning from her lunch break is not excluded as an

injury occurring outside the course of her employment in an "area[] where

essential job functions are not performed" under 85 O.S. 2011 § 312(6). Therefore,

we vacate the Order of the three-judge panel, and remand for further proceedings

consistent with this Opinion.

¶28 VACATED AND REMANDED FOR FURTHER PROCEEDINGS .

RAPP, P.J., and THORNBRUGH, J., concur.

FOOTNOTES

1 Title

85 O.S. Supp. 2010 § 11(A)(5).

See also Hogg v. Okla. Cnty. Juvenile Bureau , 2012 OK 107, ¶ 4 , 292 P.3d 29 (demonstrating that the

pertinent statutory language is the same in both versions); Carney , ¶ 10

("The language in [§ 312(6)] was first adopted in 2010, see 85 O.S. Supp. 2010 § 11(A)(5), and

reenacted the following year."). We note that this language was repealed by Laws

2013, SB 1062, ch. 208, § 171, eff. February 1, 2014.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

2013 OK CIV APP 68 , LEANDRO v. AMERICAN STAFFCORP, INC. Discussed at Length

2014 OK CIV APP 4 , 316 P.3d 234 , CARNEY v. DIRECTV GROUP, INC. Discussed

Oklahoma Supreme Court Cases

Cite Name Level

1997 OK 40 , 936 P.2d 932 , 68 OBJ 1282, Corbett v. Express Personnel Discussed

1974 OK 47 , 521 P.2d 805 , RICHEY v. COMMANDER MILLS, INC. Discussed

2012 OK 107 , 292 P.3d 29 , HOGG v. OKLAHOMA COUNTY JUVENILE BUREAU Discussed

2014 OK 30 , 328 P.3d 1190 , GRAHAM PUBLIC SCHOOLS v. PRIDDY Discussed at Length

1999 OK 82 , 991 P.2d 527 , 70 OBJ 2946, Barnhill v. Smithway Motor Express Discussed

1983 OK 67 , 673 P.2d 149 , Fudge v. University of Oklahoma Discussed

Title 85. Workers' Compensation

Cite Name Level

85 O.S. 312 , Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014 Discussed at Length

85 O.S. 11 , Repealed by Laws 2011, SB 878, c. 318, § 87 Discussed