Workers' Compensation Judge William R. Foster Jr. ruled in July 2011 that Rivera “was not injured in the course and scope of her employment.”
The judge pointed to a 1986 Oklahoma Supreme Court opinion denying benefits to a car salesman who was injured from a fall on snow while walking to a truck to get a pack of cigarettes.
Next to look at Rivera's case was a panel of three workers' compensation judges.
In a unanimous order, the panel ruled in October 2011 that she did suffer a knee injury arising out of and in the course of her employment.
The panel ordered the company to provide her medical treatment to correct her condition.
The latest to look at the case was a panel of three judges on the Oklahoma Court of Civil Appeals. In a unanimous opinion Dec. 7, 2012, those three judges ruled Rivera was not entitled to workers' compensation benefits.
“We acknowledge that some activities such as eating and/or drinking may be considered a necessary incident of employment, as they are necessarily contemplated and inevitable,” wrote Oklahoma Court of Civil Appeals Judge Bay Mitchell.
“However, the fact that Claimant desired to consume a beverage simultaneously with her cigarette does not transform the purpose for her travel from personal to work-related. She could have easily consumed a beverage inside the work premises and then smoked her cigarette in the designated smoking area,” the judge wrote.
“Claimant made a choice — purely beneficial to herself personally — to enjoy a drink and a smoke simultaneously in her own vehicle.
“Further, we find Claimant's assertion that Employer permitted this activity lacks evidentiary support.”
Rivera's attorneys declined to comment until after the Oklahoma Supreme Court makes a ruling.
Rivera, who had an address in Dewey in 2011, could not be reached for comment. She also did not respond to messages left at a phone number for her.