Drewes v. Trans World Airlines, Inc.

984 S.W.2d 512, 1999 Mo. LEXIS 7, 1999 WL 62770

• Court: Supreme Court of Missouri
• Decided: February 9, 1999
• Docket: 80989
• Status: Published

Opinions

BENTON, Chief Justice.

The Labor and Industrial Relations Commission affirmed an award of workers’ compensation benefits to Veronica L. Drewes. The employer Trans World Airlines appeals, arguing that claimant’s injury was not from an accident “arising out of and in the course of’ employment. This Court granted transfer. Mo. Const. art. V, sec. 10. Affirmed.

Drewes worked as a TWA reservation agent. Her workday included a regularly scheduled 30-minute unpaid lunch break. The Commission determined that this was not enough time to leave the building for lunch because no food was available nearby, and moreover, the surrounding area was unsafe at the time of her lunch break (7:45 p.m.).

During that break on the day of the accident, Drewes purchased food from vending machines in the TWA-leased break room on the second floor. This break room is for the exclusive use of TWA employees. Due to a line at the microwaves there, Drewes went downstairs to use a break room on the first floor, intending to eat in the adjacent cafeteria, smoke a cigarette, and return to work on time. While she carried her lunch in the first-floor break room toward the cafeteria door, she fell and injured her ankle.

TWA leased space on the first and second floors of the building but did not lease the first-floor break room, which was open to all tenants of the building. TWA management permits employees to use the common first-floor break room, and TWA staff told Drewes that employees were free to use both break rooms, as they regularly did.

Workers’ compensation covers injuries from accidents “arising out of and in the course of’ employment. See. 287.120.1 RSMo 1994.¹

I.

To arise out of the employment, “the injury must be incidental to and not independent of the relation of employer and employee.” Sec. 287.020.3(1) codifying 1993 Mo. Laws 766 (emphasis added). Attending to one’s personal comfort is “incidental to employment”:

The inevitable facts of human beings in ministering to their personal comfort while at work, such as seeking warmth and shelter, heeding a call of nature, satisfying thirst and hunger, washing, resting or sleeping, and preparing to begin or quit work, are held to be incidental to the employment under the personal comfort doctrine.

Bell v. Arthur’s Fashions, Inc., 858 S.W.2d 760, 763-64 (Mo.App.1993); Cox v. Tyson Foods, Inc., 920 S.W.2d 534, 537 (Mo. banc 1996).

Here, Drewes was tending to her personal comfort by carrying her lunch, when she fell. Her activity, eating lunch, was incidental to her employment.

The 1993 amendment also requires that Drewes’ lunch activity (an incident of her work) be a “substantial” factor in causing the resulting medical condition or disability; and that Drewes’ injury “not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.” See Kasl v. Bristol Care, Inc., 984 S.W.2d 852, 855 (Mo. banc 1999) discussing secs. 287.020.3(2)(a) and (d).

First, Drewes’ act of carrying her lunch to the table to eat her meal was a “substantial factor” in causing her injury. Second, the Commission found no evidence of an idiopathic condition “innate or peculiar” to Drewes. Nor was there any evidence that the injury came from a hazard or risk that was “unrelated to” Drewes eating lunch. Necessarily, Drewes was not “equally exposed” outside of her employment to the risk of falling during her lunch break.²

Therefore, Drewes’ accident arose out of her employment.

II.

Her accident must also have occurred “in the course of’ her employment. Workers are not “in the course of’ their employment “except while engaged in or about the premises where their duties are being performed, or where their services require their presence as a part of such service.” Sec. 287.020.5. The 1993 amendment reenacted this requirement, which has been unchanged since the original workers’ compensation law. Compare sec. 287.020.5 codifying 1993 Mo. Laws 766, with sec. 3305(c) RSMo 1929 codifying 1927 Mo. Laws 496.

Injuries to a fixed-hour, fixed-place employee on an unpaid lunch break away from the premises are not compensable. Daniels v. Krey Packing Company, 346 S.W.2d 78, 83[7] (Mo.1961); Lunn v. Columbian Steel Tank Company, 364 Mo. 1241, 276 S.W.2d 298, 303[8] (Mo.1955); Bell, 858 S.W.2d at 763; Moore v. St. Joe Lead Company, 817 S.W.2d 642, 543[1] (Mo.App.1991); Davison v. Florsheim Shoe Co., 750 S.W.2d 481, 484 (Mo.App.1988); McClain v. Welsh Company, 748 S.W.2d 720, 728-29 (Mo.App.1988); Jones v. Bendix Corp., 407 S.W.2d 650, 652 (Mo.App.1966); Thompson v. Otis Elevator Company, 324 S.W.2d 755, 757-58 (Mo.App.1959); Heaton v. Ferrell, 325 S.W.2d 800, 805[7] (Mo.App.1959). See also Arthur Larson, Larson’s Workers’ Compensation Law, sec. 15.51 (1998); B. Michael Korte, 29 Missouri Practice, Workers’ Compensation Law and Practice, sec. 2.12 at 95 (1999).

The “premises” is property “owned or controlled” by the employer. Cox, 920 S.W.2d at 535 (quoting Kunce v. Junge Baking Co., 432 S.W.2d 602, 607 (Mo.App.1968)); see also Hafner v. A.G. Edwards & Sons, 903 S.W.2d 197, 200 (Mo.App.1995); Davis v. McDonnell Douglas, 868 S.W.2d 170, 172[5] (Mo.App. 1994); Yaffe v. St. Louis Children’s Hospital, 648 S.W.2d 549, 551-52 (Mo.App.1982).

The statute covers accidents both “in” the premises and “about” the premises. Sec. 287.020.5. Accidents in or about the premises, during a scheduled unpaid lunch break, occur in the “course of employment.” Daniels, 346 S.W.2d 78, 83 (Mo.1961); Toole v. Bechtel Corp., 291 S.W.2d 874, 879 (Mo.1956).

III.

Here, Drewes, a fixed-hour, fixed-place worker, was injured on an unpaid lunch break in a room that was not owned, rented or controlled by TWA. However, the first-floor break room 1) was common and open to all tenants of the building, and 2) adjoined TWA’s premises on the first floor. The common break room was thus “in or about” TWA’s premises. Sec. 287.020.5. Therefore, Drewes’ accident occurred “in the course of’ her employment.

The decision of the Labor and Industrial Relations Commission is affirmed.

PRICE, WHITE, HOLSTEIN and WOLFF, JJ., and SHRUM, Special Judge, concur. COVINGTON, J., dissents in separate opinion filed. LIMBAUGH, J., not participating.

1 . All statutory citations are to RSMo 1994 unless otherwise indicated.

2 . The dissent claims that this result is contrary to Abel v. Mike Russell's Standard Service, 924 S.W.2d 502 (Mo. banc 1996). In fact, the Abel opinion did not analyze or apply the 1993 amendment, because the accident there occurred in 1991. Moreover, section 287.020, as amended in 1993, uses the term "work" eight times, while never using the term "workplace." To the extent that the Abel opinion limits the term "work” to the concept "workplace,” it should not be followed for claims governed by the 1993 amendment.