DARCO TRANSPORTATION and State Insurance Fund, Petitioners,
v.
Elmer O. DULEN and The Workers' Compensation Court, Respondents.

[922 P.2d 592]
On Certiorari to the Court of Appeals, Division No. 4.

¶0 Dulen [employee or claimant] sought compensation for injuries sustained in an on-the-job accident. Maintaining Dulen, when hurt, had abandoned his employment and was engaged in horseplay, the employer attempted to defeat the claim. The trial judge found that Dulen's injuries were compensable because they occurred in the course of and arose out of his employment. A three-judge panel upheld the trial judge's order and awarded compensation. The Court of Appeals sustained the panel's decision. On certiorari previously granted,

THE OPINION OF THE COURT OF APPEALS IS VACATED AND THE ORDER OF THE THREE-JUDGE PANEL SUSTAINED.

Kelly M. Greenough, Robert Highsaw, State Insurance Fund, Tulsa, for Petitioners. Matthew J. Graves, John S. Oldfield, Oldfield & Coker, Oklahoma City, for Respondents.

OPALA, Justice.

¶1 The answers to two questions are dispositive of whether Dulen's [employee or claimant] injuries are compensable under Oklahoma's workers' compensation regime. The pertinent queries are: (1) Had the claimant abandoned his employment when he was injured? and (2) Is the risk of being struck by a train at a railroad crossing purely personal or does it have a causal connection with, so as to arise out of, Dulen's employment with Darco Transportation [Darco or employer]? [922 P.2d 593]  We answer the first question in the negative and the latter in the affirmative.

I
THE ANATOMY OF LITIGATION

¶2 Dulen was injured when a tractor-trailer rig, which he was driving, entered a railroad crossing and was struck by an oncoming train. Dulen and Polly Freeman [Freeman], his co-driver, were hired by Darco to transport goods cross-country. On the night of September 7, 1993 Dulen stopped his rig behind another truck (also a Darco rig) when the signal arms at a railroad crossing lowered. The arms malfunctioned and came up before the train had reached the intersection. The first Darco truck proceeded across the tracks and Dulen followed. While the first truck avoided being hit, the claimant's rig was rammed by the train. The record discloses that the protective arms did not relower until Dulen's semi was on the tracks.

¶3 Freeman died as a result of the accident and Dulen was severely hurt. At the scene of the collision a female traffic investigator (with the local police department) noticed that Freeman, who was clad only in a T-shirt, sustained physical injuries primarily to the right side of her body. She observed that Dulen's pants were unbuttoned, unzipped and resting mid-hip when he was readied for transportation to the hospital. Her report also reflects that the passenger door on Dulen's rig was intact but the driver-side windshield and door were knocked out.

¶4 Apart from the investigating officer's report and testimony, there was other evidence about Dulen and Freeman's attire on the night of the accident. It shows that on occasion male truck drivers, when on long hauls, do unbutton their pants for comfort's sake.1 There was also testimony that the claimant's rig was equipped with a sleeping facility and that Freeman, when travelling, slept only in a T-shirt.2

¶5 After Dulen was admitted to the hospital, the investigator approached him there for information to complete a supplemental accident report. The officer questioned the claimant - then in apparent shock and suffering from lacerations and fractures of the face, jaw and body - about how the accident had happened. She noted in her report that Dulen said, "I was fucking her and now, oh, my God, I have killed her."3 According to the officer, Dulen told her that, when the accident occurred, Freeman was sitting in his lap facing him.

¶6 In later testimony Dulen explained that - by his earlier statement at the hospital - he meant that he had been living in an intimate relationship with Freeman for five months before the accident and felt responsible for her death because she was driving with him.4 He denied telling the officer that Freeman, when killed, was sitting in his lap and that they were having sex. Other evidence before the trial tribunal reveals that there was not enough room between the steering wheel and the seat for two people (of Dulen and Freeman's size) physically to fill that space together.

¶7 The trial judge found the claimant's injuries (1) occurred in the course of and arose out of his employment and (2) resulted directly from the railroad-crossing arms' malfunction.5 Dulen appealed to secure temporary total disability. After reviewing the record, a three-judge panel modified the trial tribunal's order by awarding temporary total disability and setting a counsel fee. The employer appealed; the Court of Appeals [922 P.2d 594] sustained the three-judge panel's order. Employer's certiorari quest followed.

Quoted:
....do in Washington, DC metro area.

- A car ran out in front of me and then stopped in the road, on a two-lane road.  

Quoted:


You hit one of my pet peaves.  I just really hate the guys who will risk your life and theirs just so they can get 20' further down the road.

Had a guy once in TX pass me almost running me in the ditch with a congested intersection right ahead.  When I pulled up behind him I couldn't help but laugh for he had made all of one car length more than if he had driven sensealbe.

He jumps out with road rage wanting to kick my butt.  This guys got his wife and kid in the car, talk about stupid.  I just look at him, smile, and say calmly "Do you really want me to shoot you over this?  Now think of your wife and family and get back in your car."  The guy turned white when he realized how stupid he was behaving. It was hilarious for you could see the light bulb go off. "Damn, what am I doing." The landscapers on the side of the road literaly fell down in the grass laughing.

20' is not worth your life!

Quoted:
When I was in my 20's and was temporarily laid off from work I went to the mountains with a friend to his families vacation house.

We were on the PA Turnpike going about 70mph. He was driving, eating a corned beef special (sandwich) and rolling a joint all at the same time.

Quoted:
When I was in my 20's and was temporarily laid off from work I went to the mountains with a friend to his families vacation house.

We were on the PA Turnpike going about 70mph. He was driving, eating a corned beef special (sandwich) and rolling a joint all at the same time.

Quoted:
Saw a woman playing a clarinet. No shit.