Johnson v. Midwest City Del City Pub. Sch.

507 P.3d 637

Darlene JOHNSON, Petitioner/Appellant

v.MIDWEST CITY DEL CITY PUBLIC SCHOOLS, Own Risk #16102, and the Workers' Compensation Commission, Respondents/Appellees.

Case No. 118,088

Supreme Court of Oklahoma.

FILED MAY 25, 2021

As Corrected: June 22, 2021

William R. Emig, PARRISH DEVAUGHN, PLLC, Oklahoma City, Oklahoma, for Petitioner

W. Jeffrey Dasovich, Oklahoma City, Oklahoma, for Respondent

Edmondson, J.

FACTUAL AND PROCEDURAL BACKGROUND

¶1 Johnson, an employee of the Midwest City Del City Public Schools, fell in the school parking lot sustaining injuries on September 15, 2017. Immediately prior to this fall, Johnson had walked off the employer's facility onto an adjacent city street to take an authorized work break to smoke a cigarette. It is undisputed that (1) no injury occurred to Johnson while she was outside of the employer's facility premises, (2) Johnson was "clocked in" when she fell in the parking lot, and (3) her supervisor authorized her work break. It is further undisputed that the location where Johnson smoked her cigarette complied with the employer/school policy with regard to tobacco products.

¶2 Midwest City Del City Public Schools have a smoke-free campus policy.² At the time of this accident, the use of tobacco products inside the school premises was prohibited. Johnson explained that because of this policy, she would leave the school property to smoke. On this day, she walked off of the school facility grounds and onto a nearby city street and smoked her cigarette. When Johnson finished smoking, she walked off of the city street, re-entered the school premises and walked through the school parking lot to return to the school building. While in the parking lot, her foot hit a piece of broken concrete causing her to stumble and she "just went on over and slammed into the building and then fell back to the ground."³ Johnson was so close to the school building that her head bounced off the outside wall, causing her to fall backwards onto the ground. In an attempt to brace her fall, she stretched her right arm out as she hit the ground, breaking her upper arm and damaging her rotator cuff. Employer described Johnson's injuries as occurring after her smoke break once she was back on school property.⁴

¶3 Johnson was transported by ambulance to a local hospital for immediate surgical repair of the broken arm. Two months later she required a second surgery to repair her rotator cuff. The doctor did not authorize Johnson to return to work until almost two years after her accident. Employer terminated Johnson's employment in September 2019. She never returned to work for the school after her injuries. At the time of this accident, Johnson was 72 years old, and she had been employed with the Midwest City Del City Public School system for more than eleven years.

¶4 Johnson filed a claim to recover damages for her injuries under the Oklahoma Administrative Workers' Compensation Act (AWCA). 85A O.S.Supp.2013, §§ 1 - 125. Employer denied Johnson's claim for benefits, asserting that she was not in the "course and scope of employment" at the time of her fall. Employer acknowledged that Johnson was injured in the school parking lot but argued to the Commission that Johnson's injuries fell outside the definition of "course and scope of employment" because 1) she was on a work break and 2) the injury occurred in the school parking lot which was not "inside the employer's facility."

¶5 This claim was tried before an Administrative Law Judge who determined that because Johnson was on an authorized work break at the time she fell "inside the employer's facility (parking lot), her injuries arose in the course and scope of her employment.⁵ The ALJ found that the injuries to her right arm and right shoulder were compensable under the AWCA.⁶ The ALJ rejected the employer's argument and found all of the requirements of Section 2(13)(d) were met and that Johnson met the definition of course and scope of employment when she was injured. The ALJ awarded benefits and directed Employer to provide reasonable and necessary medical treatment.

¶6 Employer filed a request for review of the decision by the ALJ, and the Workers' Compensation Commission en banc heard the matter. The Commission reversed the decision of the ALJ, concluding that Johnson was not in the course and scope of employment because she was in the parking lot at the time of injury following her authorized work break. In reaching this finding, the Commission noted that the term "facility" was not "statutorily defined."⁷ The Commission found "the term ‘facility’ refers to the place where the employee performs ‘an activity of any kind or character for which the employee was hired and that relates to and derives from the work, business, trade or profession of an employer.’ "⁸ The Commission cited no Oklahoma case law defining "facility" in support of this conclusion; rather the Commission relied on the definition of "facility" cited in two different dictionaries. The Commission also noted that "the Claimant was on the employer's premises when the injury occurred"⁹ and that she was clocked in at the time of injury.¹⁰

¶7 The Commission found that (1) Johnson performed all of her work-related duties in the cafeteria building, (2) she did not perform any work-related duties in the parking lot, (3) she was not required to leave the cafeteria or school building for work breaks, and (4) "therefore, we find that Claimant's injuries did not occur inside the employer's facility."¹¹ Based on these findings, the Commission concluded that Johnson was not "inside the facility" within the meaning of 85A O.S.Supp.2013, § 2(13)(d) and reversed the decision of the ALJ. The record contains no testimony or other evidence to support any of these findings by the Commission. The hearing transcripts reveal that Johnson was never asked where she performed all of her work duties nor whether her work duties ever entailed entering the parking lot. Although Johnson did testify that there was an employee break room inside the school building, she was never asked the question if she was "required" to leave the school building for a work break. However, it is uncontroverted that all parties agree that Johnson could not smoke her cigarette anywhere within the employer's facility. All parties agree there was no designated place where Johnson could smoke inside the school grounds.

¶8 Johnson filed a Petition for Review raising the issues of (1) whether the Commission's findings as outlined in the Order by the ALJ were against the clear weight of the evidence, contrary to Oklahoma law or not supported by testimony presented at trial; (2) whether the Commission en banc's findings were against the clear weight of the evidence, clearly erroneous in view of the evidence, arbitrary and capricious, or contrary to Oklahoma law; and (3) whether 85A O.S.Supp.2013, § (2)(13)(d), operates to bar compensation when applied to the testimony and evidence? On appeal, Johnson urged that since the date of the accident in 2017, the Oklahoma Legislature has since clarified Section 2(13)(d) as follows:

d. any injury occurring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer's facility or in an area owned by or exclusively controlled by the employer and the work break is authorized by the employer's supervisor.

85 A O.S.Supp.2019 § 2(13)(d) (emphasis added). Johnson also urged that the Cambridge dictionary cited by the Commission en banc to include a school with multiple buildings and common areas constituted the definition of "facility" and thus, even without the 2019 amendment, Johnson would be considered "inside the facility" at the time of injury.

¶9 In response to the Petition for Review, employer noted that Johnson was required to leave the school's campus to smoke and that "after the break" she returned to the school property and slipped on loose rock, fell, and bounced off the side of the school building, sustaining injuries to the right side of her body. Employer argued that if Johnson had not been a smoker, "she would not have been required to leave the premises to smoke her cigarette and she would not have been injured."¹²

¶10 The Court of Civil Appeals noted the 2019 amendment to Section 2 (13)(d) of the AWCA but concluded that the revision did not constitute a clarification of this section and did not warrant retroactive application. After an analysis of the conclusions of the Commission en banc, the Court of Civil Appeals found that the Commission's order was not affected by error of law or clearly erroneous in view of the evidence and sustained the Order Reversing the Decision of the Administrative Law Judge.

STANDARD OF REVIEW

¶11 The standard of review to be followed in appellate review by the Supreme Court of a decision or order from the Commission is specified in the AWCA. It may be modified, reversed, remanded or set aside only for limited reasons including when it is (1) in excess of the statutory authority or jurisdiction of the Commission, (2) made on unlawful procedure, (3) affected by other error of law, or (4) arbitrary or capricious. 85A O.S. 2014, § 78(c)(2)-(4),(6).

¶12 In order to determine if the Commission has acted in excess of statutory authority, we turn to the parameters given in the AWCA. The Commission may reverse or modify the decision or award of an ALJ only if it determines the decision was (1) against the clear weight of the evidence or (2) contrary to law. 85A O.S. Supp.2014, § 78(a). When applying the "clear weight of the evidence" standard, the presumption is in favor of the trial court's decision. Peoplelink, LLC v. Bear , 2014 OK 65, ¶ 6, 373 P.3d 1019, 1021 ; see also, Union Tex. Petroleum v. Corp. Comm'n. of State of Okl., 1981 OK 86, ¶ 31, 651 P.2d 652, 662, ("[U]pon review of an agency decision, we will examine the record only to determine if the evidence supportive of the order possesses...