Ogg v. Bill White Chevrolet Co.

Ogg v. Bill White Chevrolet Co.
1986 OK 26
720 P.2d 324
57 OBJ 1330
Case Number: 63753
Decided: 06/03/1986
Supreme Court of Oklahoma

Roger Dale OGG, Petitioner,
v.
BILL WHITE CHEVROLET COMPANY Hartford Insurance Company, and the Workers' Compensation Court, Respondents.

Certiorari to the Court of Appeals, Division # 4.

¶0 Appeal from the Workers' Compensation Court, Victor R. Seagle, Judge, affirmed by an appellate panel, the Court of Appeals reversed the trial court's order, hereby sustaining petitioner's compensation claim for back injuries occurring on an employer-provided parking lot while claimant was enroute to retrieve a pack of cigarettes from a demonstrator vehicle.

Frazier & Frazier by Wilson N. Jones, Tulsa, for petitioner.

McGivern, Scott, Gilliard & McGivern by Michael W. McGivern, Tulsa, for respondents.

DOOLIN, Vice Chief Judge,

¶1 Petitioner, Roger Dale Ogg, hereinafter called claimant, was employed by [720 P.2d 325] respondent, Bill White Chevrolet Company, (employer), as an assistant sales manager. On the morning of January 16, 1984, claimant left his office to retrieve a pack of cigarettes from a truck provided by employer and parked on the work premises. While en route claimant slipped and fell upon packed snow sustaining injury to his back. He later underwent surgery.

¶2 Claimant then sought disability benefits from his employer and its insurance carrier, Hartford Insurance Company. Respondents (1) denied the injury arose out of and in the course of claimant's employement; (2) submitted testimony that the claimant had previously injured himself at home; and (3) offered this Court's opinion in Thomas v. Keith Hensel Optical Labs,

¶3 The Court of Appeals reversed the order, holding that (1) the trial court erred as a matter of law because no competent evidence supported the trial court's denial of coverage, and (2) "an injury received on the work premises by an employee while obtaining tobacco, which his employer allows him to use, arises in the course of employment and is not a personal deviation preventing coverage of the act." We disagree and, therefore, vacate the opinion of the Court of Appeals.

¶4 We hold that under our law, an injured employee is entitled to compensation only when his injury arises out of and in the course of his employment. Thus, all personal injuries that occur on the workplace premises are not covered under the Act.

¶5 In a workers' compensation case, the terms "arising out of" and "in the course of" are not synonymous, but are conjunctive terms.

¶6 However, the Court of Appeals used disjunctive language in addressing the issue presented before the appellate court:

"Where usage of tobacco is not prohibited by the the employer, does an injury received by an employee while obtaining tobacco upon an employer's premises arise out of or (sic) in the course of employment. . . . ?

Although this Court has not previously addressed the use of tobacco and its relationship to employee accidents, we find the Court of Appeals reliance on out-of-state authorities not persuasive and irreconcilable with our law. It is irrelevant whether or not employer permitted the use of tobacco on the work premises. The use of tobacco is not necessarily incidental to the [720 P.2d 326] requirements of the claimant's employment. Moreover, whether an injury does arise out of and in the course of claimant's employment is an issue of fact; and on nonjurisdictional issues we must accept as binding the trial court's findings of fact which are supported by competent evidence.

¶7 The facts are uncontroverted. Claimant has previously injured himself while moving a travel trailer, and this injury necessitated the use of a cane about a week before the date of the accident herein. We find here competent evidence from which the trial court could infer that the claimant was injured elsewhere, and that his on-the-premises errand was in furtherance of some personal purpose and, therefore, not within the purview of the Act.

¶8 Opinion of the Court of Appeals VACATED and the order of the trial court REINSTATED.

¶9 LAVENDER, HARGRAVE, OPALA, WILSON and KAUGER, JJ., concur.

¶10 SIMMS, C.J., concurs in result.

¶11 HODGES and SUMMERS, JJ., dissent.

Footnotes:

1 653 P.2d 201 (Okl. 1982) Where the claimant's on the premises errand was in furtherance of some personal purpose, it does not arise out of his employment.

2 The terms of 85 O.S. 1981 § 11 provides:

"Every employer subject to the provisions of the Workers' Compensation Act shall pay, or provide as required by the Workers' Compensation Act, compensation according to the schedules of the Workers' Compensation Act for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment. . . ." [emphasis added].

3 Oklahoma Gas & Electric Co. v. Stout, 179 Okl. 312, 65 P.2d 477 (1937); Grandclair v. Rogers Bread Co., 193 Okl. 489, 145 P.2d 758 (;944); Belscot Family Center v. Sapcut, 509 P.2d 905 (Okl. 1973).

4 R.L. Allison, Inc. v. Bolling, 192 Okl. 213, 134 P.2d 980 (1943); Thomas v. Keith Hensel Optical Labs, supra note 1.

5 Id.

6 Thomas v. Keith Hensel Optical Labs, supra note 1, 653 P.2d at 203.