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8.16.21 – EHS – By Charlie Plumb, McAfee & Taft

Over the years we’ve seen a steady stream of cases involving employees who filed workers’ compensation claims after being injured away from the employer’s premises. Sometimes it was difficult to determine whether the off-site injury was compensable. Changes to Oklahoma’s laws sought to clarify the question, and two recent cases provide more answers. 

Driving to wind farm 

Austin Brown lived in Texas but temporarily relocated to Oklahoma to work on a construction project building a large wind farm near Ponca City. In addition to an hourly wage, he received $100 per day from general contractor Infrastructure & Energy Alternatives (IEA) to pay for meals, lodging, and other incidental expenses. 

IEA didn’t provide transportation or lodging, and employees were required to report to the worksite by 7 a.m. every day. Brown and three coworkers carpooled to the job in a private vehicle each morning. During the commute, which typically took 30 to 45 minutes, it wasn’t unusual for them to discuss work for the upcoming day. 

One morning while attempting to turn off a state highway onto the worksite, the employees’ car collided with an oncoming truck. Brown sustained serious injuries and sought workers’ comp benefits from IEA. 

An Oklahoma appeals court found the accident and resulting injuries weren’t covered by workers’ comp under the current law. The court pointed out the statute specifically excluded coverage for “an employee’s transportation to and from his or her place of employment,” which is commonly known as the “commuting” exclusion. 

IEA wasn’t responsible for Brown’s housing or method of transportation. The fact it paid him a per diem amount didn’t alter the fact that the accident happened during a commuting event. Brown v. Infrastructure & Energy Alternatives, 2021 OK CIV APP 10. 

Taking smoke break 

Darlene Johnson worked for the Mid-Del School District as a cafeteria worker for more than 11 years. Because she was a smoker and was careful to avoid violating the policy prohibiting tobacco use on school premises, her cigarette breaks took some effort. 

On the day of the accident, Johnson’s supervisor authorized her to take a break while she was still clocked in. She left school property and smoked a cigarette while standing on a nearby city street. 

To return to the cafeteria building after the smoke break, Johnson reentered school property by walking through the school’s parking lot. While navigating the lot, she tripped over a piece of broken concrete and fell, striking her arm, shoulder, and head. After multiple surgeries, she sought workers’ comp benefits from the school system. 

Injuries happening in a parking lot before an employee begins work aren’t compensable unless the employer owns or maintains exclusive control over the lot. Johnson happened to be on the clock when she fell. Additionally, Oklahoma’s health legislation banning smoking at educational facilities specifically treats school parking lots as part of an educational facility’s premises. 

The fact Johnson’s injuries occurred while she was on a break doesn’t disqualify her from workers’ comp coverage. Injuries that happen during a break are compensable if: 

  • They occur in an area owned or exclusively controlled by the employer; and
  • A supervisor authorizes the break. 

Since Johnson’s supervisor had okayed the smoke break, she was entitled to workers’ comp benefits. Johnson v. Midwest City Del City Public Schools, 2021 OK 29. 

Takeaways for employers 

Two cases lead to two very different outcomes. Changes to Oklahoma law and recent cases have helped to define more clearly when an off-site injury is compensable and when it is not. As the two cases illustrate, determining whether the injuries are compensable invariably comes down to the specifics of a particular accident and the employee’s circumstances. 

Charlie Plumb is an attorney with McAfee & Taft in Tulsa, Oklahoma. You can reach him at charlie.plumb@mcafeetaft.com.