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Morrow v. Baby Dolls12/16/2003
Mandate Issued: 01/16/2004
__ P.3d __
Claimant, Marvin Wayne Morrow, seeks review of the workers' compensation court's June 30, 2003, order denying his claim for compensation. The trial court found Claimant was not acting as an employee of Employer, Baby Dolls, when he was injured. Based upon our review of the facts and applicable law, we sustain the order.
FACTS
At the time of the accident, Claimant was employed as a bartender and maintenance worker at Employer's nightclub. According to Claimant, on Wednesday, November 14, 2001, he had done some cleaning at the nightclub and then gone to the home of Charles Long, Employer's owner. There, while working on a light over the garage, he fell off Long's ladder. Claimant had removed the light from the nightclub the week before. After the accident, Claimant continued doing maintenance until February 2002 and continued bartending for Employer until April 2002.
Claimant filed a Form 3, asserting he had sustained an injury due to the fall. At trial, the parties disputed whether Claimant was acting as an employee for Employer at the time of the injury.
Claimant testified he was employed by Employer to work an average of four days a week as a bartender (Mondays, Tuesdays, Fridays, and Saturdays) and one or two days a week performing maintenance (Wednesdays and Thursdays). Concerning the latter, Claimant testified he might paint or clean the nightclub, mow the club's lawn, or mow Long's lawn, sometimes doing jobs on any given day at both the club and Long's residence. Claimant testified he was paid separately for the bartending and the maintenance. For the latter, he was paid in cash at a rate of $100 a day, with the money placed by Long inside the club's cash register.
Long testified by way of deposition that Claimant worked for Employer as a bartender and for him personally on odd jobs and the like, usually for $100 a day. According to Long, "Well, he [Claimant] could work any Wednesday and Thursday that he wanted to. He knew that. I told him that when he took the bartending he could work for me personally in a contract. I would just pay him so much, and he agreed with that." Long stated that on maintenance days, Claimant would mainly do jobs around his home, such as mowing the lawn and straightening the garage. He testified that at the time of the accident, Claimant had been mowing his lawn and had decided to climb up the ladder to work on the light.
The trial court entered an order denying the claim for compensation, finding that Claimant was not acting as an employee of Employer when he sustained his injury. The trial court specifically found that Long's testimony indicated that Claimant worked for Long personally by contract, performing odd jobs at Long's personal residence a few days a week.
Claimant seeks our review.
STANDARD OF REVIEW
Though the trial court also expressed its decision in terms of denying jurisdiction, it specifically held that Claimant was not acting as an employee of Employer at the time of the accident. A compensable work-related injury must both (1) occur in the course of and (2) arise out of the worker's employment. 85 O.S.2001, ยง 11; Am. Mgmt. Systems, Inc. v. Burns, 1995 OK 58, 5, 903 P.2d 288, 290-91. Whether an injury arises out of and in the course of a claimant's employment is an issue of fact to be determined by the workers' compensation court and, where there is any competent evidence to support the workers' compensation court's order, it will be affirmed. City of Edmond v. Monday, 1995 OK 132, 4, 910 P.2d 980, 982.
ANALYSIS
The evidence
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