Jones v. Trans World Airlines, Inc.

70 S.W.3d 468, 2001 Mo. App. LEXIS 2279, 2001 WL 1643733

• Court: Missouri Court of Appeals
• Decided: December 26, 2001
• Docket: No. WD 59432
• Status: Published

Opinions

ROBERT G. ULRICH, P.J.

Trans World Airlines, Inc. (TWA) appeals the final award of the Labor and Industrial Relations Commission awarding workers’ compensation benefits to Odis Jones. TWA claims that the Commission misapplied the law in awarding benefits to Mr. Jones because the proximate cause of Mr. Jones’s injuries was his participation in a voluntary recreational activity and, therefore, workers’ compensation benefits were forfeited under section 287.120.7.¹ The final award of the Commission is reversed, and the case is remanded to the Commission with directions to enter an award consistent with this opinion.

The material facts of this case are not disputed. Odis Jones is employed by TWA as a mechanic. He works an 8-½ hour shift that includes a 30 minute unpaid lunch break. For the past eight years, Mr. Jones, who was 59 years old at the time of the accident, has walked during his lunch break for recreation and exercise. Mr. Jones has walked either in an enclosed tunnel that connects the hanger and sheet metal shop or on a paved walking path that TWA constructed on its premises several years ago for the use and enjoyment of its employees. Mr. Jones and other TWA employees have used two different routes from the building where they work to the walking path. One route is along the building and across a private road to the path. The second route, which was longer, takes employees across two sides of a parking lot and then across the private road to the path.

On July 18, 1997, the day of the accident, Mr. Jones decided to walk during his lunch break. His decision was made without encouragement or instruction from his employer. Before leaving the building, Mr. Jones changed from his work boots to tennis shoes. He then exited the building and chose the longer of the two routes through the parking lot to the walking path. As Mr. Jones started to cross the private road from the parking lot, he tripped over an area where the parking lot, road, grass, and dirt met and fell striking his face and head and injuring his neck and body. On November 17, 1997, Mr. Jones underwent neck surgery. He returned to work on March 2,1998.

Mr. Jones filed a workers’ compensation claim for his injuries on September 8, 1997. Following a hearing, the Administrative Law Judge of the Division of Workers’ Compensation (ALJ) denied Mr. Jones’s request for workers’ compensation benefits based on section 287.120.7. Specifically, the ALJ found that Mr. Jones’s injuries did not arise out of or in the course of his employment but from a slip and fall while recreationally walking during his unpaid lunch hour. Thereafter, Mr. Jones filed an application for review with the Labor and Industrial Relations Commission. The Commission reversed the decision of the ALJ finding that Mr. Jones’s injuries did arise out of or in the course of his employment. The Commission reasoned that Mr. Jones had not yet reached the recreational walking path, and, therefore, the injuries he sustained while passing over the employer’s premises to or from work with the express consent of his employer were incidental to employment and thus compensable. The Commission awarded Mr. Jones $75,288.01 in permanent partial disability, temporary total disability, and medical care. This appeal by TWA followed.

Section 287.495 provides the standard of review for an appellate court in a workers’ compensation case. It states in relevant part:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

§ 287.495.1. Review of a workers’ compensation award involves a two step process. Bloss v. Plastic Enters., 32 S.W.3d 666, 670 (Mo.App. W.D.2000). First, the reviewing court must examine the whole record in a light most favorable to the award to determine if the record contains sufficient, competent, and substantial evidence to support the award. Id. If the court finds sufficient, competent, and substantial evidence to support the award, it then must determine whether the award is against the weight of the evidence. Id.

Where the facts are not in dispute, as in this ease, the appellate court is not bound by the Commission’s conclusions of law or its application of law to the facts. Thomas v. Hollister, Inc., 17 S.W.3d 124, 126 (Mo.App. W.D.1999). In such case, the question of whether an accident arose out of and in the course of employment is a matter of law requiring de novo review. Id.

In its sole point on appeal, TWA claims that the Commission misapplied the law in awarding Mr. Jones workers’ compensation benefits for the injuries he sustained on July 18, 1997. It asserts that workers’ compensation benefits were forfeited under section 287.120.7 because the proximate cause of Mr. Jones’s injuries was his participation in a voluntary recreational activity.

Section 287.120.7 provides:

Where the employee’s participation in a voluntary recreational activity or program is the proximate cause of the injury, benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited regardless that the employer may have promoted, sponsored or supported the recreational activity or program, expressly or impliedly, in whole or in part. The forfeiture of benefits or compensation shall not apply when:

(a) The employee was directly ordered by the employer to participate in such recreational activity or program;

(b) The employee was paid wages or travel expenses while participating in such recreational activity or program; or

(c) The injury from such recreational activity or program occurs on the employer’s premises due to an unsafe condition and the employer had actual knowledge of the employee’s participation in the recreational activity or program and of the unsafe condition of the premises and failed to either curtail the recreational activity or program or cure the unsafe condition.

Prior to the enactment of section 287.120.7 in 1990, no general rule existed regarding when an employee could recover workers’ compensation benefits for injuries sustained in a recreational activity. Wilson v. Monsanto Co., 926 S.W.2d 48, 50 (Mo.App. E.D.1996). Instead, the particular facts of each case were considered to determine whether the activity was sufficiently related to the employment. Id. Such was the case in the 1989 Eastern District case Seiber v. Moog Auto., Inc., 773 S.W.2d 161 (Mo.App. E.D.1989). In Seiber, an employee sustained an injury during her lunch break in an on-premises basketball game. 773 S.W.2d at 162. The Eastern District held that the injury was compen-sable because the employer acquiesced to the activity to the extent that it had become a regular incident of employment. Id. at 164. The court, however, farther explained:

We have not overlooked the effect our decision may have. Expansion of coverage, which will eventually increase the cost to the worker’s compensation system, concerns the courts. We acknowledge that employers may forbid recreational activities in the future thus having a negative impact on employee morale and physical fitness. Alternatively, the legislature could restrict coverage in this area.

Id. The General Assembly enacted section 287.120.7 one year later. This statute limits an employer’s liability for injuries sustained by an employee during a recreational activity that otherwise would have been incidental to the employment. Wilson, 926 S.W.2d at 50. Consequently, employer-sponsored recreational activities are encouraged.

In this case, Mr. Jones’s activity of walking for recreation and exercise during his unpaid lunch break was the type of activity the statute was intended to promote by limiting an employer’s liability for injuries sustained by an employee during such activity. Mr. Jones’s injuries were proximately caused by his participation in a recreational activity — walking. Mr. Jones voluntarily chose to walk for recreation and exercise during his unpaid lunch break. He was not directly ordered by his employer, TWA, to participate in the activity. Mr. Jones does not assert and the evidence does not show that his injuries from walking were due to an unsafe condition on TWA’s premises. Section 287.120.7, therefore, applied in this case.

The Commission found and the dissent agrees that Mr. Jones had not yet reached the walking path, that he was not yet participating in a recreational activity when he fell and was injured, and that, therefore, an exception to the “coming and going” rule applied. To be compensable under workers’ compensation, an employee’s injury must arise out of and in the course of his employment. § 287.120.1. Generally, injuries sustained by an employee while going to or coming from work do not arise out of and in the course of employment. Cox v. Tyson Foods, Inc., 920 S.W.2d 534, 535 (Mo. banc 1996). The dissent cites Cox and Wells v. Brown, 33 S.W.3d 190 (Mo. banc 2000), as authority for holding that Mr. Jones’s injuries are compensable under the worker’s compensation statute. In Cox, the Missouri Supreme Court held that the employee was entitled to worker’s compensation benefits where he sustained injuries as a result of a fall en route to his employer’s premises from a nearby parking lot. The Court explained that injuries incurred on an employer’s premises along the accepted route to or from work arise out of and in the course of employment just as do injuries occurring during the performance of work. Cox, 920 S.W.2d at 536. In Wells, the Missouri Supreme Court upheld an award of worker’s compensation benefits to an employee who slipped and fell on an icy parking lot of the building where she worked. The Court again explained that injuries incurred by an employee while traversing to the work place on property owned or controlled by the employer are compensable. Wells, 33 S.W.3d at 192.

The Commission determined in this case:

[CJlaimant’s injury is compensable because it occurred while claimant was on employer’s premises, but prior to stepping within the perimeter of the excluded recreational area or walking path. Until claimant actually reaches the recreational area, the act of walking on the employer’s property remains within the course and scope of employment.

This case, however, is not analogous to the Cox and Wells cases, which apply the exception to the “coming and going” rule. In neither Cox nor Wells was the employee participating in a recreational activity that was the proximate cause of the injury; therefore, in neither cause did section 287.120.7 apply. On the contrary, in this case Mr. Jones’s testimony before the ALJ and his actions on the day of the accident showed that his entire walk around the TWA premises, including his walk to and from the walking path, was intended by him to be a single recreational event. Before starting his walk, Mr. Jones changed from his work boots to tennis shoes. He then exited the building in which he worked and chose the longer of the two routes through the parking lot to the walking path. Mr. Jones testified that he took the circuitous route to the walking path because his primary goal was to exercise by walking. Under these facts, Mr. Jones’s travel to and from the walking path was indistinguishable from his use of the path itself. The Commission’s finding that Mr. Jones had not yet begun participating in a recreational activity because he had not yet reached the walking path misconstrued section 287.120.7. Section 287.120.7 provides that workers’ compensation benefits are forfeited where the employee’s participation in a voluntary recreational activity is the proximate cause of his injuries. The statute does not require that the recreational activity occur on an area specifically designated for recreation by the employer. Mr. Jones sustained his injuries while participating in a recreational activity. The injuries, therefore, were not compensable under section 287.120.7.

The Commission misapplied the law in awarding workers’ compensation benefits to Mr. Jones for injuries he sustained while voluntarily walking for exercise during his unpaid lunch break. The decision of the Commission is, therefore, reversed, and the case is remanded to the Commission with directions to enter an award denying workers’ compensation benefits.

1 . All statutory references are to RSMo 2000 unless otherwise indicated.