## Facts

- Elmer O. Dulen worked for Darco Transportation as an over-the-road truck driver, hauling goods cross-country with a co-driver, Polly Freeman.
- On September 7, 1993, Dulen was driving his assigned route and stopped behind another Darco truck at a railroad crossing when signal arms lowered.
- The signal arms malfunctioned by rising before the train reached the intersection; the first truck crossed safely.
- Dulen proceeded, and a train struck his tractor-trailer; the protective arms did not relower until his vehicle was on the tracks.
- Freeman died in the collision; Dulen suffered serious injuries.
- Observations at the scene included Freeman wearing only a T-shirt and Dulen’s pants unbuttoned and unzipped; investigators disputed whether these facts showed sexual activity at the time of impact.
- A police investigator reported Dulen admitted to sexual activity immediately before the collision; Dulen later denied making that statement, and there was evidence suggesting insufficient space for such conduct in the cab.
- Darco asserted Dulen had abandoned his employment through horseplay/sexual activity and that the injuries therefore did not arise out of employment.

## Issues

1. Whether Dulen abandoned his employment at the time of the injury, taking him outside the course of employment.
2. Whether the risk of being struck by a train at a railroad crossing during an assigned haul is a purely personal risk or one that arises out of employment.

## Decision

- The Oklahoma Supreme Court granted certiorari, vacated the Court of Appeals’ opinion, and sustained the Workers’ Compensation Court three-judge panel’s order.
- The court held Dulen had not abandoned his employment.
- The court held the injury arose out of and in the course of employment because the collision occurred while Dulen was performing his driving duties on an assigned route and resulted from a crossing hazard, including malfunctioning signal arms.
- The temporary total disability award to Dulen remained in effect.

## Legal Principles

- In workers’ compensation, alleged personal deviation or horseplay bars recovery only if it amounts to abandonment of employment sufficient to remove the worker from the course of employment.
- Whether abandonment occurred is a fact-driven determination committed primarily to the Workers’ Compensation Court; appellate review defers to supported factual findings.
- Travel hazards encountered while performing assigned driving duties, including railroad crossing risks, generally have the required causal connection to employment and are not treated as purely personal risks.
- Where competent evidence supports findings that the claimant remained on duty and the injury resulted from a work-related travel hazard, compensability is sustained.

## Conclusion

The court upheld workers’ compensation benefits for a long-haul driver injured in a train collision at a malfunctioning railroad crossing, concluding that the claimant remained within the course of employment and that the travel-related risk causally arose out of the job despite disputed evidence of possible personal conduct.


Darco Transportation & State Insurance Fund v. Dulen, 922 P.2d 591 (Okla. 1996)