MO Workers Comp Update: COA reverses denial of a claim where the claimant crashed his car while eating
Missouri Workers Compensation Update
The Missouri Court of Appeals issued a decision in Gary Booth Jr. v. Dish Network on December 29, 2020 (click HERE to read the entire decision), holding that a car accident that occurred after the employee choked on his breakfast sandwich (while driving) was a compensable injury.
Claimant was eating a breakfast sandwich while driving his car for work. He then choked on the breakfast sandwich, blacked out, and crashed his car on the side of a highway. The Industrial Commission held that the claim was NOT compensable, concluding that the “risk source” of claimant’s injuries was his “decision to eat breakfast while driving” – a “risk unrelated to the employment” to which claimant “would have been equally exposed outside of and unrelated to the employment in normal nonemployment life” under §287.020.3(2)(b).
COURT OF APPEALS REVERSES AND AWARDS BENEFITS
Even though the Court of Appeals agreed that eating a breakfast sandwich was not a work-related activity, the Court of Appeals reversed the denial issued by the Industrial Commission, holding:
“With respect to the first test of identifying the risk source, we agree with (claimant) that the “activity that caused the injury” to (claimant’s) back and neck was driving and crashing the van. While choking caused the van accident, the van accident caused (claimant’s) injuries…With respect to the second test, comparing the “risk source or activity” of driving “to normal nonemployment life,” we conclude (claimant) established he was not equally exposed to driving risks in nonemployment life.”
The Court of Appeals held that the car accident, not the eating of the breakfast sandwich, is what caused the claimant’s injuries. Since he was driving for work, he was not equally exposed to having a car accident in his nonemployment life as he would not have been driving at that particular time but for his employment.
This is the type of claim that drives (pardon the pun) Employers and Insurers crazy. The evidence was irrefutable that claimant would not have crashed the car but for him choking on his breakfast sandwich. Eating a breakfast sandwich was clearly not a work-related activity, but the Court of Appeals applied mental gymnastics to find a way to award workers compensation benefits.
First, when analyzing the compensability of a new claim, ensure that you identify the specific risk source that caused the injury. Here, it was the car accident, not the choking on a breakfast sandwich, that caused the specific injury. If the employee has a greater risk of exposure at work to the specific source of the injury, the claim will be found compensable.
Secondly, this case is the Poster Child for developing a robust set of safety rules and procedures. Under §287.120.5, the Employer/Insurer can reduce the benefits paid to the claimant by up to 50% if the injury occurred as a result of the employee’s failure to follow safety rules or use safety equipment:
“§287.120.5: Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee’s failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefit provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer.” (Emphasis added)
Had the Employer in the present case had a safety rule that prohibited eating while driving for work, the value of the could have been reduced by 50% after the Court of Appeals found the claim to be compensable.
If you have any questions about this decision from the Court of Appeals or how to implement the suggested practice points, please feel free to call or email.
- Brad Young: [email protected]; (636) 532-0300