Hollman v. Comfort Care, Inc. , 70 O.B.A.J. 2033 ( 1999 )

REIF, J.

¶ 1 This case concerns an injury that Claimant Glennita Hollman admittedly sustained when she slipped on wet grass at the residential facility where she had been sent by Employer to care for a client. At the time of her fall, Claimant had completed her care of the client and was returning to her car to proceed to the next scheduled client. The workers’ compensation trial judge concluded that the ease of Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309, precluded Claimant’s recovery for an injury caused by the neutral risk of wetness due to rain. This conclusion was affirmed by a three-judge panel. On review, we reverse. We hold that Claimant Hollman was exposed to the risk of weather wetness by the employment requirements and travel directions of Employer in the same substantial way that the claimant in Stroud Municipal Hospital v. Mooney, 1996 OK 127, 933 P.2d 872, was exposed to the otherwise neutral risk of traffic.

¶2 In construing Mooney, the Worden opinion stressed that the “special mission” direction of the employer for the employee to return to work ivas the basis whereby “the traffic became a risk of his employment.” Worden, 1997 OK 136, ¶ 17, 948 P.2d at 313. In other words, the employer sent the employee into the otherwise neutral risk of traffic by its travel requirement and direction. In the instant case, Employer sent Claimant out in rainy weather to attend a client and similarly exposed her to the otherwise neutral risk of weather wetness.

¶ 3 The court in Mooney said it well when it observed “once it is determined that the employee is doing the employer’s work, e.g. is on a special mission, it does not avail the employer to say the risks of injury to the employee are no greater than the risks to the general public.” Mooney, 1996 OK 127, ¶ 11, 933 P.2d at 875. That is, when the employer requires the employee to do things that directly expose the employee to a general danger of injury, the risk of injury from such dangers is as much a risk that arises out of employment as the specific danger of working around machinery on an employer’s premises.

¶4 We note that the Worden case construes Mooney as not abrogating the risk analysis test for determining whether neutral risks are employment related. However, risk analysis is not a new test. Risk analysis is simply a refinement of the “increased risk” test. In American Management Sys., Inc. v. Burns, 1995 OK 58 n. 17, 903 P.2d 288, 292 n. 17, the court cited approvingly prior case law concerning enhanced on-the-job exposure from natural hazards.

¶ 5 Risks associated with weather conditions were addressed in the pre-Burns case of Consolidated Pipe Line Co. v. Mahon, 152 Okla. 72, 3 P.2d 844 (1931). The third syllabus of Mahon states: “Although the risk may be common to all who are exposed to the elements during a sudden and unexpected violent thunderstorm accompanied by lightning and rain, the question is whether the employment exposes the employee to the risk.” In its fourth syllabus, Mahon recognizes coverage where the employment exposes the employee to a weather risk “more than others in the same locality are so exposed.”

¶ 6 Requiring employees to work in inclement weather involves “more exposure” to the risks of such weather than the general public who have the choice not to undertake activity or even go out in adverse weather. Perhaps the best illustration of this point is found in American Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1085-86 (Texas Civ.App.1938), where the court observed:

In the case before us the very work which the deceased was doing for his employer exposed him to greater hazard from heatstroke than the general public was exposed to for the simple reason that the general public were not pushing wheelbarrow loads of sand in the hot sun on that day.

1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 8.42 (1998), considers this statement to be “[t]he proper application of the increased-risk test.” In the instant case, members of the general public were not required to go out in the rain to attend to clients of Employer for the benefit of Employer as Claimant was required to do.

¶ 7 Risk analysis must be applied consistent with the time honored test for “arising out of employment” set forth in the first syllabus of Mahon: “[An injury] ‘arises out of the employment’ when there is apparent to the rational mind upon consideration of all the circumstances a causal relation between the conditions under which the work is required to be performed and the resulting-injury.” 152 Okla. 72, 3 P.2d 844 (emphasis added). In other words, the connection between working requirements and the risk of injury, including neutral risks, is more a matter of common sense than a mechanical, legalistic test.

¶ 8 The court in Worden reached the correct common sense result under the facts of that case. The claimant in Worden did not have “more exposure” or “increased risk” from the wetness due to rain on her own lawn as she walked to her car to begin employment travel. That situation, even if it is assumed to be in the course of employment,¹ places the employee at no greater risk than anyone else who would leave their house for the first time after a rain shower and venture onto their own lawn to retrieve a newspaper. In contrast, employees who have actually entered upon employment travel in rainy weather are exposed to increased danger from wet, slick streets and other surfaces that they must traverse to carry out their employer’s business. Additionally, employees who are required to travel to different locations on their employer’s business encounter varying and often unfamiliar conditions produced by wetness due to rain. If Claimant Hollman had been involved in a traffic accident as a consequence of driving on wet, slick streets on Employer’s business, there is no question that she would be covered under Mooney. If walking across a wet surface is a necessary part of employment travel to deliver goods or services to a client for an employer, common sense dictates that a pedestrian accident from slipping on the wet, slick surface should likewise be covered.

¶ 9 There was no controversy concerning the facts and circumstances surrounding Claimant’s fall and injury while working for Employer. Where the facts are not in dispute, the question of whether a claimant’s injury arises out of employment is one of law. Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, 958 P.2d 795.

¶ 10 Based on the foregoing, we hold that the trial court and three-judge panel erred as a matter of law in applying the Worden case to deny the claim in the instant case. There is only superficial similarity between Worden and the instant case. Claimant Hollman sustained an accidental injury from a risk that did arise out of her employment requirements to travel in inclement weather conditions. Accordingly, we vacate the denial of her claim and remand with directions to adjudicate her entitlement to benefits.

¶ 11 VACATED AND REMANDED WITH DIRECTIONS.

STUBBLEFIELD, P.J., concurs, and BOUDREAU, V.C.J., dissents.

1 . Worden, 1997 OK 136 n. 1, 948 P.2d at 313 n. 1.