K-MART CORPORATION v. HERRING

K-MART CORPORATION v. HERRING
2008 OK 75
188 P.3d 140
Case Number: 105120
Decided: 07/01/2008

THE SUPREME COURT OF THE STATE OF OKLAHOMA

K-Mart Corporation and American Home Assurance, Petitioners,
v.
Mark Herring and The Workers' Compensation Court, Respondents.

ON WRIT OF CERTIORARI TO COURT OF CIVIL APPEALS, DIVISION I

¶0 During a continuous seven-hour shift as night watchman and with no scheduled breaks, the claimant left the premises to use the restroom, decided to go to a fast food establishment, and was injured by a gun shot while in the drive-through lane. On remand from and at the direction of a three-judge panel of the Workers' Compensation Court, the trial judge entered an order awarding the claimant compensation benefits upon a finding that the claimant was on a special mission and was on a personal comfort mission and that the injury occurred in the course of and arose out of his employment. The Court of Civil Appeals vacated the award. This Court previously granted certiorari.

OPINION OF THE COURT OF CIVIL APPEALS VACATED;
ORDER OF THE WORKERS' COMPENSATION COURT SUSTAINED.

Donald A. Bullard, Bullard & Associates, Oklahoma City, Oklahoma, for petitioners.
Phillip C. Hawkins, Hawkins Law Firm, Tulsa, Oklahoma, for respondents.

Taylor, J.

¶1 The question before this Court is whether the Workers' Compensation Court's finding that claimant's injuries occurred in the course of and arose out of his employment is supported by any competent evidence. We answer that there is competent evidence in the record to support this finding.

I. STANDARD OF REVIEW

¶2 We review the Worker's Compensation Court's resolutions of questions of fact under the standard of any competent evidence. Barnhill v. Smithway Motor Express,

II. FACTS

¶3 The claimant, Mark Herring, was the only witness who testified at the hearing. Herring worked as a stocker during the daytime hours for his employer, K-Mart Corporation. When he arrived at work on May 12, 2006, he noticed a request for someone to work from 11:00 p.m. that night until 6:00 a.m. the next morning. The work involved watching merchandise that K-Mart was going to leave outside for a sale. K-Mart and Herring agreed that Herring would watch the merchandise, and he arrived at the store about 10:45 p.m. to begin work. Herring testified that when he arrived, the night manager instructed him to go to the nearest convenience store if he "had any issues with anything, or needed anything."

¶4 Herring clocked in at 11:00 p.m. and walked out of the store with the other employees. Herring sat in his vehicle in K-Mart's parking lot near the door. The store was then locked, and it is undisputed that Herring had no way to enter the store after 11:00 p.m.

¶5 About 3:15 a.m., Herring decided to go to the restroom. He went to the Fiesta Mart which was about a half of a block from the K-Mart store. When he arrived at the Fiesta Mart, he noticed that the lights on the gas pumps were off. Because he had a friend that worked at the Fiesta Mart, Herring believed that it would be closed for a short period of time while the clerk was on a restroom break or was restocking the cooler. Upon realizing that the Fiesta Mart was closed, Herring decided to get a burger. Herring drove to McDonald's about three blocks away.

¶6 When Herring pulled into McDonald's driveway, he noticed a man trying to open McDonald's door, but it was closed. Herring testified that he had planned to use the restroom and get food at McDonald's but because it was closed, he just went through the drive-through. When Herring got to the menu board, he turned and saw a man by his car. The man demanded Herring's car. When Herring put the car into first gear, the man shot Herring. The bullet entered Herring's left upper jaw, went through his tongue, and exited his lower jaw. Herring drove to another convenience store for help.

III. PROCEDURAL HISTORY

¶7 On April 27, 2007, the trial judge entered an order denying compensation, finding Herring was on a special task and deviated from the task due to a personal mission. Herring sought review from a three-judge panel of the Workers' Compensation Court. By an order filed on July 24, 2007, the three-judge panel vacated the trial court's April 27th order and remanded "for a finding of a special task and a personal comfort mission thus a compensable injury occurring on May 13, 2006." On remand, the trial judge entered an order finding that Herring had suffered an accidental injury on May 13, 2006, arising out of and in the course of his employment. K-Mart and its insurer, American Home Assurance, filed a petition for review with this Court.

¶8 Vacating the Workers's Compensation Court's order, the Court of Civil Appeals found: (1) the "special task" exception to the going and coming rule did not apply to the facts here because "Claimant was not injured while 'going to perform' or while 'leaving after performing' the special task," (2) the personal comfort mission rule did not apply because Herring was not on the employer's premises when the injury occurred, (3) Herring did not assert any valid exception to the going and coming rule, and (4) there was no competent evidence to support the trial court's finding that the injury occurred in the course of employment. Herring filed a petition for writ of certiorari which we granted.

IV. GOVERNING LAW

¶9 A claimant seeking compensation has the burden of showing that the injuries for which benefits are sought both occurred "in the course" and "arose out of" the employment. Corbett v. Express Pers.,

¶10 In Burns, this Court addressed a 1986 amendment to section 3(7) of the Oklahoma Workers' Compensation Act (the Act), 85 O.S.Supp.1986, and the repeal of section 27 of the Act. Before the 1986 amendment, section 27 had provided in part: "In any proceeding for the enforcement of a claim for compensation under the Workers' Compensation Act, it shall be presumed in the absence of substantial evidence to the contrary: (1) That the claim comes within the provisions of the Workers' Compensation Act . . . ." The 1986 amendment to section 3(7), codified in 2001 at section 3(12)(a) of title 85, added language making compensable "only accidental injuries arising out of and in the course of employment. . . . Provided, 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 the employment."

¶11 In 2005, the Legislature enacted major changes in the Act which were in effect at the time of Herring's injury. 2005 Okla. Sess. Laws ch. 1, § 9 (1st Extraordinary Sess.). In 2005, section 3, subsection 12(a) of the Act was deleted and section 3, subsection 13(a) was added. Subsection 13a provides in part:

"Compensable injury" means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. An injury, other than cumulative trauma, is compensable only if it is caused by a specific incident and is identifiable by time. . . .

"Major cause" is defined as "the predominate cause of the resulting injury or illness."

V. ARGUMENTS

¶12 K-Mart and its insurer argue on appeal that there was no casual nexus between Herring's injuries and the risks of his employment, relying on Burns,

¶13 In the brief before this Court, Herring asserts the trial court did not err in finding that his injuries were employment related and in finding that he was performing a special mission and was on a personal comfort mission at the time of his injury. Herring attempts to distinguish Burns,

VI. IN THE COURSE OF EMPLOYMENT

¶14 An injury is received in the course of employment if it occurs "within the period of employment at a place where the workman reasonably may be and while he is reasonably fulfilling a duty of his employment or engaged in doing something incidental thereto." Barnhill,

¶15 This Court applied the personal comfort rule in City Bus Co. v. Lochart,

¶16 In Richey,

¶17 K-Mart and its insurer attempt to distinguish Richey arguing Herring was not on K-Mart's premises when he was injured. Whether injury occurs on or off an employer's premises is not a controlling factor even though it is a consideration in whether the claimant was in the course of employment at the time of the injury. Id. ¶15, 521 P.2d 808. Here, the fact that Herring was not on K-Mart's premises at the time of his injury is not fatal to his claim. It is undisputed that the K-Mart store was locked, and, therefore, any restrooms or food vending machines inside would not be available to Herring. In City Bus Co., the bus driver was not on his employer's premises at the time of the injury but was in the street. Nonetheless, this Court affirmed the trial court's award of compensation.

¶18 K-Mart and its insurer also rely on Ogg v. Bill White Chevrolet Co.,

¶19 We find that the facts here are most similar to those in City Bus Co.,

¶20 K-Mart created the necessity of Herring having to leave the premises to use the restroom. It knew he would have to leave to attend his personal needs and instructed him to go the nearest convenience store if he had any issues. Since the nearest convenience store was closed, it is not unreasonable that Herring went to another location to take care of his personal comfort needs. Under the unique conditions of his employment, there is evidence in the record that Herring was in the time and space limitations of his employment and was in the course of an activity incident to his employment, see Richey,

V. ARISING OUT OF

¶21 An injury arises out of the employment when there is a causal connection between the condition under which the work is to be performed and the resulting injury. Odyssey/Americare of Okla. v. Worden,

¶22 Courts have used the positional risk test, the actual risk test, and the increased risk test to determine if a neutral risk-related injury arises out of the employment. Id.,

¶23 After the 1986 changes in the Act, the positional risk test is no longer available to a claimant, and nothing in the 2005 amendments to the Act, as discussed above, implies a legislative intent to return the positional risk test to its pre-1986 status. Currently to establish the required employment-related nexus, a claimant has the onus of presenting evidence that the risk underlying the injury was either an actual risk of the employment, Odyssey/Americare,

¶24 In Superior Stucco v. Daniels,

¶25 As in Superior Stucco, there is evidence from which the trial court could have inferred that the conditions of Herring's employment put him at a higher risk of injury than that faced by the general public. Herring was working as a night watchman. K-Mart expected Herring to be on its premises except for time and area limited excursions to address any issues he might have. The employment conditions forced Herring to go to a location such as a convenience store or fast food establishment during the night for his personal comfort needs. It would be unreasonable for an employer to expect an employee to go without food or drink and without a restroom break during a seven-hour shift. There is evidence in the record that the employment conditions exposed Herring to more risks of injury from an act of violence than that of the general public because of the time of the employment, the type of employment, and the necessity of going to either a convenience store, fast food establishment, or a similar business to attend his personal needs.

¶26 K-Mart and its insurer rely on Burns. In Burns, Burns was killed when he was shot by an unknown assailant in a hotel while on a business trip. The trial judge found that, because Burns was on a work assignment as an employee, his death from the shot arose out of his employment. This Court applied the increased risk test and vacated the trial court's award. In Burns, there was no evidence showing Burn's death "was occasioned by some employment-related risk" more than the risk of criminal activity shared generally by the traveling public. Unlike in the present case, the record in Burns turned on the lack of evidence in that the claimant failed to "show that Burn's death was causally related to the risks incident to his mission for the employer."

¶27 K-Mart and its insurer also rely on Floyd,

VI. CONCLUSION

¶28 There is competent evidence in the record to support the trial court's finding that the claimant's injuries occurred in the course of and arose out of his employment. There is nothing in the 2005 amendments which would preclude the trial court from finding that Herring's injuries were compensable. Thus the trial court's findings are conclusive and binding on this Court. Id. ¶13, 58 P.3d at 198. The Court of Civil Appeals' opinion is vacated and the Workers' Compensation Court's order is sustained.

OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE WORKERS' COMPENSATION COURT SUSTAINED.

ALL JUSTICES CONCUR.

FOOTNOTES