The Supreme Court of South Carolina held that a worker's injuries occurred within the course and scope of his employment where the migrant worker sustained a right ankle fracture when he fell on a wet sidewalk outside housing provided by his employer at a remote tomato farm. The housing was supplied to the worker at no charge, in part, because of the remote location of the work site. Frantz Pierre v. Seaside Farms, Inc., 689 SE 2d 615, 386 SC 534, 2010
According to the Supreme Court, whether a worker was contractually required to live on the employers premises was not necessarily as important as whether the practical circumstances required that he or she live there. It determined that the worker in the instant case was essentially required to live on the employers premises by the nature of his employment and was making a reasonable use of the employer-provided premises at the time of his accident. The court also indicated that the workers injury was causally related to his employment in that it was due to the conditions under which he lived, i.e., a wet sidewalk outside his building.
The SC Supreme Court cites the rule in Larson "When an employee is required to live on the premises, either by his contract of employment or by the nature of his employment, and is continuously on call (whether or not actually on duty), the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment. However, if the employee has fixed hours outside of which he is not on call, compensation is awarded usually only if the course of the injury was a risk associated with the conditions under which claimant lived because of the requirement of remaining on the premises." 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, §24.01 (2009).
Reference: Oklahoma Workers' Compensation Law, Resident Employees.
Showing posts with label compensability. Show all posts
Showing posts with label compensability. Show all posts
Monday, December 6, 2010
Monday, November 1, 2010
Rebirth of Positional Risk? You Make the Call.
While making a run a truck driver violently gags on a piece of breakfast sausage and ruptures a cervical disc. Compensable? Arising out of employment? Yes for injuries occurring prior to 1986; no for injuries occurring from 1986 to July 1, 2005; for later injuries, what do you think?
Prior to the 1986 amendments to the Act, Oklahoma cases generally relied on the increased risk doctrine to determine whether a risk arose out of a worker's employment. However, the positional risk test had also been applied. In the food choking episode of Fox v. National Carrier, 1985 OK 91, 709 P.2d 1050, 1053, the Supreme Court held that but for claimant's employment as a truck driver he would not have been exposed to risk of choking on food at the restaurant. In other words, his risk of choking while engaged in the purely personal task of eating breakfast occurred because of the position he occupied while he was on duty and in the course of his employment.
In 1986, the Oklahoma Legislature amended the Act to require that "only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of employment." This language acted as a legislative repeal of the Fox ruling.
American Management Systems v. Burns, 1995 OK 58, ¶7, 903 P.2d 28, held “The 1986 amendment of 85 O.S. 1981 §3(7), which requires the source of a compensable injury to be employment-related - i.e., one that does not stem from a purely personal risk - plainly contravenes this court's pronouncement in Fox v. National Carrier. No longer may an injury be viewed as compensable solely because the worker, while in the course of employment, was exposed to the risk of harm. The law demands that the risk responsible for injury be causally connected to employment and exceed the ordinary hazards to which the general public is exposed.” See also, Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309.
Then along comes the 2005 reforms, and the legislature struck the “purely personal risk” language. Under the rules of statutory construction, "legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed." Lekan v. P & L Fire Protection Co., 1980 OK 56, 609 P.2d 1289; Fenwick v. Oklahoma State Penitentiary, 1990 OK 47, ¶15, 792 P.2d 60.
Considering the clear pronouncement of Burns that the phrase “purely personal risk” effectively overruled Fox v. National Carriers, and the 2005 deletion of that term, did the legislature reinstate the Fox positional risk holding? If so, food ingestion accidents, spider bites in motels, good samaritan injuries and other off-premises claims of traveling employees may now be compensable.
You make the call.
Prior to the 1986 amendments to the Act, Oklahoma cases generally relied on the increased risk doctrine to determine whether a risk arose out of a worker's employment. However, the positional risk test had also been applied. In the food choking episode of Fox v. National Carrier, 1985 OK 91, 709 P.2d 1050, 1053, the Supreme Court held that but for claimant's employment as a truck driver he would not have been exposed to risk of choking on food at the restaurant. In other words, his risk of choking while engaged in the purely personal task of eating breakfast occurred because of the position he occupied while he was on duty and in the course of his employment.
In 1986, the Oklahoma Legislature amended the Act to require that "only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of employment." This language acted as a legislative repeal of the Fox ruling.
American Management Systems v. Burns, 1995 OK 58, ¶7, 903 P.2d 28, held “The 1986 amendment of 85 O.S. 1981 §3(7), which requires the source of a compensable injury to be employment-related - i.e., one that does not stem from a purely personal risk - plainly contravenes this court's pronouncement in Fox v. National Carrier. No longer may an injury be viewed as compensable solely because the worker, while in the course of employment, was exposed to the risk of harm. The law demands that the risk responsible for injury be causally connected to employment and exceed the ordinary hazards to which the general public is exposed.” See also, Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309.
Then along comes the 2005 reforms, and the legislature struck the “purely personal risk” language. Under the rules of statutory construction, "legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed." Lekan v. P & L Fire Protection Co., 1980 OK 56, 609 P.2d 1289; Fenwick v. Oklahoma State Penitentiary, 1990 OK 47, ¶15, 792 P.2d 60.
Considering the clear pronouncement of Burns that the phrase “purely personal risk” effectively overruled Fox v. National Carriers, and the 2005 deletion of that term, did the legislature reinstate the Fox positional risk holding? If so, food ingestion accidents, spider bites in motels, good samaritan injuries and other off-premises claims of traveling employees may now be compensable.
You make the call.
Monday, October 25, 2010
Recreational Activities Are Not Compensable Under Oklahoma Law
The 2005 amendments to the Oklahoma Workers' Compensation Act excluded recreational and social activities from the definition of injury. "Compensable injury" shall not include . . . injury incurred while engaging in, performing or as the result of engaging in or performing any recreational or social activities. 85 O.S. §3(13)(d), effective July 1, 2005.
Recreational injuries occurring prior to July 1, 2005, are generally compensable when 1) they occur on the business premises and are a regular incident of the job, or 2) participation was compulsory, or 3) there was a substantial direct benefit to the employer. If any one of these criteria is met, the claim is compensable, including travel to and from an off-premises Christmas party and taking the baby sitter home. Oklahoma Natural Gas Co. v. Williams, 1981 OK 147, 639 P.2d 1222.
The language of the new exclusion was interpreted by the Court of Civil Appeals in the case of Orcutt v. Lloyd Richards Personnel Service, 2010 OK CIV APP 77, __ P.3d __.
During his lunch break Andrew Orcutt injured his knee playing basketball in the company warehouse on a floor that had a goal and painted boundaries. The employer knew about, encouraged, and acquiesced in the games. Under the pre-2005 rules the claim would be clearly compensable. However, the trial court denied the claim based on the plain meaning of the new exclusionary terms. The COCA affirmed the trial court decision.
In an interesting sidelight (called dictum in the legal world), the COCA commented on the constitutionality of the provision. Although the issue was not properly framed for their consideration, the judges found that the legislative changes did not deprive a recreationally-injured worker of any constitutional rights. The legislature has the power to exclude classes of injuries that were compensable prior to the enactment.
The larger, unanswered question is whether employers no longer have tort immunity for injuries sustained at recreational and social functions such as Christmas parties, company sponsored sports leagues, the Orcutt basketball pick-up game, attendance at charitable events to name a few.
Recreational injuries occurring prior to July 1, 2005, are generally compensable when 1) they occur on the business premises and are a regular incident of the job, or 2) participation was compulsory, or 3) there was a substantial direct benefit to the employer. If any one of these criteria is met, the claim is compensable, including travel to and from an off-premises Christmas party and taking the baby sitter home. Oklahoma Natural Gas Co. v. Williams, 1981 OK 147, 639 P.2d 1222.
The language of the new exclusion was interpreted by the Court of Civil Appeals in the case of Orcutt v. Lloyd Richards Personnel Service, 2010 OK CIV APP 77, __ P.3d __.
During his lunch break Andrew Orcutt injured his knee playing basketball in the company warehouse on a floor that had a goal and painted boundaries. The employer knew about, encouraged, and acquiesced in the games. Under the pre-2005 rules the claim would be clearly compensable. However, the trial court denied the claim based on the plain meaning of the new exclusionary terms. The COCA affirmed the trial court decision.
In an interesting sidelight (called dictum in the legal world), the COCA commented on the constitutionality of the provision. Although the issue was not properly framed for their consideration, the judges found that the legislative changes did not deprive a recreationally-injured worker of any constitutional rights. The legislature has the power to exclude classes of injuries that were compensable prior to the enactment.
The larger, unanswered question is whether employers no longer have tort immunity for injuries sustained at recreational and social functions such as Christmas parties, company sponsored sports leagues, the Orcutt basketball pick-up game, attendance at charitable events to name a few.
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