The Missouri supreme court recently handed down another in a series of opinions that seek to set the limits of what claims qualify for workers’ compensation. In a much-anticipated and eagerly-awaited ruling, the court reversed an appellate court’s award of work comp benefits in the case of Gary Boothe, Jr. v. Dish Network, Inc., SC98948.
In Boothe, a worker was injured when the vehicle that he was driving to his first appointment for his work day collided with a concrete pillar after he blacked out while eating a breakfast sandwich while driving the vehicle, a violation of a policy of his employer. The employer denied that it was liable for payment of any WC benefits, since the source of the risk of his injury was eating while driving, a risk to which the worker was equally exposed in his normal non-employment life.
An administrative law judge of the Missouri division of workers’ compensation nevertheless awarded MO WC benefits to the worker, finding that the injury was caused by the employer’s requirement that the worker drive to the appointment on a rural highway on a strict timeline, a hazard to which the worker was not equally exposed outside of his work. On appeal, the Missouri labor and industrial relations commission reversed the award of the ALJ, agreeing with the employer. However the Missouri court of appeals reversed the commission’s award, agreeing with the ALJ and reinstating compensation to the worker.
In a result that was widely predicted throughout Missouri’s workers’ compensation community, SCOMO once again reversed the decision of the Southern District of the court of appeals, and ultimately denied benefits to the claimant. Most observers assumed that (as also appeared to the be case in 2020, in Annayeva v. SAB of TSD of St. Louis, 597 S.W.3d 196) the supreme court did not agree with the determination of the court below, and accepted transfer of the case in order to reach a proper outcome.
Since 2005, an accident must not only be the prevailing (or primary) factor in causing an employee’s injury, but must also come from a risk or hazard to which the employee is not equally exposed outside of work in what The Missouri Workers’ Compensation Law states is the employee’s “normal nonemployment life” (a phrase that is not otherwise defined by The Law, or by subsequent case law).
In the sixteen years since the enactment of those legislative provisions, many cases have explored what that statutory language means, including some landmark rulings by the supreme court. A detailed analysis of those cases is set forth in the so-called “pocket part” accompanying my book, Missouri Practice Volume 29: Workers’ Compensation Law and Practice. Some of those cases were reviewed and analyzed by myself and Christopher T. Archer in a 2015 article for the St. Louis Bar Journal.
The previous supreme court cases are mentioned in Boothe. In Miller v. Missouri Highway & Transp. Comm’n, 287 S.W.3d 671, a highway worker who admitted to a habit and custom of walking “briskly” in his normal nonemployment life was denied benefits for a knee injury that was caused by walking briskly at work. In Johme v. St. John’s Mercy Healthcare, 366 S.W.3d 504, an office worker was denied benefits after she was unable to explain why she fell after twisting her ankle at work. In Schoen v. Mid-Missouri Mental Health Ctr., 597 S.W.3d 657, a worker who was at a company doctor’s office to be treated for an occupational disease was denied benefits for injuries that occurred when she tripped over the leash of another patient’s dog that was being chased by the doctor. Finally, in Annayeva, benefits were denied when the worker could not credibly give a reason associated with her employer’s premises for her slip and fall at work.
In discussing Boothe in the course of several lectures that I gave over the course of 2021, I (perhaps too jocularly) described the decision facing the supreme court was whether the claimant was “eating while driving or driving while eating.”
The court decided that he was “. . . eating while driving, which created a risk of choking and led to the accident resulting in injury”, an activity, it noted, that was not required by the claimant’s employer. Noting that Boothe could have conceivably eaten breakfast before driving, the court held, despite various points raised to the contrary, that no condition of his employment required him to eat while driving or significantly contributed to the accident and injury.
The court also observed that a lack of evidence that the worker ever ate while driving in his nonemployment life was not enough: it was the claimant’s burden of proof to present positive evidence in order to support his claim. As it had in the previous cases, the supreme court ultimately determined that no condition of the employee’s employment led to or worsened the accident.
While the ultimate outcome of the case came as no surprise to many stakeholders in Missouri’s workers’ compensation system, many on the side of injured workers are troubled by its implications. The strict construction of The Law imposed by the Missouri legislature in 2005 necessarily resulted in careful examination of compensability issues by Missouri courts in the ensuing years, with results that often were most likely neither expected or desired by those who drafted those statutory changes. The previous SCOMO decisions likewise (somewhat, it seems, to the Court’s consternation) left some doors open and suggested paths to compensability other than those foreseen when CCS HCS SS SCS SBs 1 & 130 was enacted in 2005.
As the number of appeals based on these issues has declined over the years, it is possible that Boothe appears to close the loop, as it were, at least for the present. As repeatedly hammered home by the court throughout all five cases, some requirement of the employer or condition of its premises must at least partially cause a workers’ injury or death in order for the injury or death to be compensable pursuant to The Law. In Miller, Johme and Annayeva the claimant was unable to identify any defect or other condition of the premises that contributed to their injuries. In Schoen and Boothe, the injuries were incidental to the employment, activities that were not directly – or directly enough – related to the employees’ work duties, or over which the employers could have exercised any control.
Thus, the courts appear to have walked right up to a line, on the other side of which is consideration of negligence issues. Although RSMo §287.120 provides that work comp benefits are to be allowed irrespective of negligence, courts seem to be looking across that proverbial line (perhaps longingly?) at absolving employers from non-negligent behavior.
If there is a silver lining for injured workers and their representatives in Boothe, it is that, as the supreme court previously established in the seminal 2009 case of MARA v. DOLIR, 277 S.W.3d 670, any claim that falls outside of Missouri’s workers’ compensation system can be pursued through its civil court system, and presented to a jury. Historically, it was dissatisfaction with the jury system that led to the adoption of the so-called “Grand Bargain” and the workers’ compensation system; perhaps it will take actions by juries in order to once again even the scales of justice.