Articles & Updates

Missouri Workers’ Compensation – Safety Violation Verses Non-Compensability 

In Boothe v. Dish Network, Inc. (SD36408, 12/29/2020) the Missouri Court of Appeals, Southern District, was faced with an issue over the compensability of an injury resulting from a van accident caused by the employee blacking out when he choked on a breakfast sandwich.

Facts: Boothe was a service representative for Dish Network, handling a territory in the Potosi - St. Clair, MO area adjacent to I-44. When not traveling on 44, he traveled on state highways and country roads, worked alone and was on a tight schedule. One morning while preparing to make his first call, he stopped at a convenience store and bought several items including a breakfast sandwich. Dish had a safety rule which forbade drinking and eating while driving, a rule well known to Boothe. While driving to his first service call, he choked while eating the sandwich, blacked out, and struck a concreate pillar, causing neck and back injuries. Dish denied liability.

Administrative Law Judge’s Decision: The ALJ awarded compensations since the van accident was the prevailing factor in causing Boothe’s injuries and the risk source was his having to drive a Dish van on rural highways while subject to a strict timeline. Thus, the ALJ concluded that the injuries arose out of Boothe’s employment. However, the ALJ reduced the benefits by 30%, applying Sec. 287.120.5 due to Boothe’s violation of Dish’s no-eating-while-driving safety rule. 

Labor and Industrial Relations Commission’s Decision: On appeal by Dish, in a 2:1 decision, the Commission reversed the award entered by the ALJ, ruling that the “risk source” leading to the accident and injuries was Boothe’s decision to eat breakfast while driving, a risk unrelated to his employment, as confirmed by Dish’s safety rule. An appeal by Boothe then followed.

Court of Appeals’ Decision: In a 2:1 decision, the Court reinstated the award in Boothe’s favor. The Court agreed that the risk source, the activity leading to the injuries, was Boothe’s driving and crashing the van, not the choking on the sandwich. The Court cited Taylor v. Contract Freighters, a case in which the claimant was injured when he had a coughing fit while driving his 18-wheeler. Where the Court disagreed with the Commission’s ruling involved the Court’s finding that Boothe’s job required him to drive extensively which then exposed him to driving risks to which he was not equally exposed in his non-employment life.

The Court also had to respond to Dish’s argument that the violation of their safety rule prohibiting eating while driving took Boothe out of the course of his employment. The Court rejected the argument, which was based on the holding in Fowler v. Baalmann, since in Fowler the pilot of an airplane crashed after taking off in violation of his employer’s direct order not to fly due to bad weather, an act which the Court concluded severed the employer-employee relationship. Here, that relationship continued. The Court also observed that the 25% - 50% safety violation benefits reduction permitted by Sec. 287.120.5 would not need to exist if such a violation took the employee completely out of the course of their employment.

The dissenting member of the Court's three judge panel concluded that the risk source was not Boothe’s driving risks but was the risk of his blacking out due to choking caused by his decision to eat while driving which then led to the van striking a concrete pillar adjacent to the highway. Thus, the dissenting judge would have affirmed the denial entered by the Commission.

A Motion for Rehearing and an Application for Transfer to the Supreme Court may be filed. The chances of one or the other being granted are slightly increased where the decision was not unanimous. Otherwise the case will be remanded to the Commission.

Take Away: First, we must make sure to distinguish this case, and like cases, from those where the injury was caused by a truly idiopathic condition such as a seizure or stroke. These remain non-compensable under Sec. 287.020.3(3). However, choking or coughing are not considered idiopathic events since such are common bodily reactions or events. Next, the litigation history of Boothe, which includes an award of benefits by the ALJ, followed by a denial by the Commission, and then a reversal by the Court of Appeals, but with a dissent, well illustrates how fact specific and unpredictable are these types of cases. Therefore, each requires careful analysis and a cautious assessment of compensability. 

Questions or Comments? Contact Jim Kennedy | 314-552-4020 | jkennedy@evans-dixon.com
 

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