Rebirth of Positional Risk? You Make the Call.

While making a run a truck driver violently gags on a piece of breakfast sausage and ruptures a cervical disc. Compensable? Arising out of employment? Yes for injuries occurring prior to 1986; no for injuries occurring from 1986 to July 1, 2005; for later injuries, what do you think?

Prior to the 1986 amendments to the Act, Oklahoma cases generally relied on the increased risk doctrine to determine whether a risk arose out of a worker's employment. However, the positional risk test had also been applied. In the food choking episode of Fox v. National Carrier, 1985 OK 91, 709 P.2d 1050, 1053, the Supreme Court held that but for claimant's employment as a truck driver he would not have been exposed to risk of choking on food at the restaurant. In other words, his risk of choking while engaged in the purely personal task of eating breakfast occurred because of the position he occupied while he was on duty and in the course of his employment.

In 1986, the Oklahoma Legislature amended the Act to require that "only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of employment." This language acted as a legislative repeal of the Fox ruling.

American Management Systems v. Burns, 1995 OK 58, ¶7, 903 P.2d 28, held “The 1986 amendment of 85 O.S. 1981 §3(7), which requires the source of a compensable injury to be employment-related - i.e., one that does not stem from a purely personal risk - plainly contravenes this court's pronouncement in Fox v. National Carrier. No longer may an injury be viewed as compensable solely because the worker, while in the course of employment, was exposed to the risk of harm. The law demands that the risk responsible for injury be causally connected to employment and exceed the ordinary hazards to which the general public is exposed.” See also, Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309.

Then along comes the 2005 reforms, and the legislature struck the “purely personal risk” language. Under the rules of statutory construction, "legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed." Lekan v. P & L Fire Protection Co., 1980 OK 56, 609 P.2d 1289; Fenwick v. Oklahoma State Penitentiary, 1990 OK 47, ¶15, 792 P.2d 60.

Considering the clear pronouncement of Burns that the phrase “purely personal risk” effectively overruled Fox v. National Carriers, and the 2005 deletion of that term, did the legislature reinstate the Fox positional risk holding? If so, food ingestion accidents, spider bites in motels, good samaritan injuries and other off-premises claims of traveling employees may now be compensable.

You make the call.