Veronica L. Drewes, Claimant, v. Trans World Airlines, Inc., Employer

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Veronica L. Drewes, Claimant, v. Trans World Airlines, Inc., Employer Case Number: 73016 Handdown Date: 05/19/1998 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Loretta A. Simon Counsel for Respondent: Thomas J. Gregory Opinion Summary: Trans World Airlines, Inc. (employer) appealed the award of workers' compensation to Veronica Drewes (employee), claiming she did not show that her injury arose "out of" and "in the course of" employment because she twisted her ankle in an area not leased or controlled by employer. AFFIRMED. Division One holds: Employee's injury: (1) arose out of employment because the injury was caused by a condition of the workplace; and (2) was in the course of employment because the employee invoked the personal comfort doctrine while on employer's extended premises. Citation: Opinion Author: James A. Pudlowski, Judge Opinion Vote: AFFIRMED. Grimm, P.J. and Gaertner, J., concur Opinion: Opinion modified by Court's own motion on May 26, 1998. This substitution does not constitute a new opinion. Trans World Airlines, Inc. (TWA) appeals the award of the Labor and Industrial Relations Commission

(Commission) granting workers' compensation to Veronica L. Drewes after she fell and twisted her ankle while on her lunch break. We affirm. At the time of her accident, Drewes worked for TWA as a reservation agent. Her job duties include answering the telephone and taking reservations from TWA customers. Drewes is entitled to two paid fifteen-minute breaks and one thirty-minute unpaid lunch break. On the day she was injured, she bought her lunch from vending machines for her thirty- minute lunch break. She discovered that there was a line to use the microwaves in the TWA break room so she decided to go downstairs to use a different break room. This would allow her to eat her lunch, smoke a cigarette and return to work on time. The downstairs break room is not in an area of the office building leased by TWA. Unlike the upstairs TWA break room, which is for the exclusive use of TWA employees, the downstairs break room is for the use of all the tenants of the building. Drewes testified that, during workers' orientation to the new building, TWA staff indicated the first-floor break room was available to them in addition to the second-floor break room. As she was walking from the break room to an eating area, Drewes twisted her ankle on the carpet and fell to the floor. Drewes suffered a severe strain/sprain of the left ankle with a partial tear of the anterior talofibular ligament. An administrative law judge (ALJ) found that she suffered a fifteen percent partially permanent disability as a result of the fall, and the Commission affirmed the award. TWA's appeal claims that Drewes did not show that her injury arose out of, or in the course of, her employment with TWA. Section 287.495.1 RSMo (1994) proscribes the standard of review for a worker's compensation claim. This Court may only review 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. Abel v. Mike Russell's Standard Service, 924 S.W.2d 502, 503 (Mo. banc 1996). We are obliged to view all evidence and inferences in a light most favorable to the award, and can set aside an award only where the Commission's findings are clearly contrary to the overwhelming weight of the evidence. Clover v. Quality Plastics Co., 898 S.W.2d 609, 611 (Mo. App. E.D. 1995). The Commission alone must judge witnesses' credibility and the weight and value of the evidence. Id. This Court may not substitute its judgment for that of the Commission on such matters. Id. Keeping the above standard of review in mind, we turn to the statutory framework governing the award of workers'

compensation. Section 287.120.1 RSMo (1994) provides workers' compensation if an injury was caused by an accident "arising out of and in the course of his employment." Abel, 924 S.W.2d at 503. To determine whether the accident arose out of and in the course of employment, one must consider "the entire sequence of events that takes place, . . . the injures suffered, and . . . whatever cause or causes give rise to those events and injuries." Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 528 (Mo. banc 1993). TWA challenges the award because it claims the injury neither arose out of nor was in the course of employment. An injury is "in the course of" employment only when it occurs at a place where the employee could be seen as reasonably completing her job duties. Shinn v. General Binding Corp., 789 S.W.2d 230, 232 (Mo. App. E.D. 1990). Two different doctrines add further definition to what activities fall "in the course of" employment. Under the personal comfort doctrine, activities such as using the restroom, satisfying thirst and hunger, washing, resting, and preparing to begin or quit work are incidental to employment, and thus in the course of employment. Bell v. Arthur's Fashions, Inc., 858 S.W.2d 760, 763 (Mo. App. E.D. 1993). To fall under the personal comfort doctrine, the employee must generally be on the employer's premises. Id. Drewes was not in an area leased by TWA when she twisted her ankle, so we must determine whether there was sufficient evidence to support the personal comfort doctrine In Cox v. Tyson Foods, Inc., 920 S.W.2d 534, 535 (Mo. banc 1996), the Missouri Supreme Court extended the definition of premises. In that case, an employee fell when en route from a parking lot that was not owned by the employer. Nevertheless, the employee's injury was compensible. The Cox court allowed a worker to be compensated when injured on third-party premises when, (1) the premises had been "so appropriated by the employer or so situate, designed and used by the employer and his employees incidental to their work as to make them, for all practicable intents and purposes, a part and parcel of the employer's premises and operation;" and (2) the third-party premises is "part of the customary, expressly or impliedly approved, permitted, usual and acceptable" way for employees to travel to and from work. Cox, 920 S.W.2d at 535-36. Under the unique facts and circumstances of this case, the Commission could believe Drewes's injury occurred in the course of her employment with TWA. By traveling to the first-floor break room to take care of personal needs, Drewes invoked the personal comfort doctrine. She traveled to the first floor for the mutual benefit of her employer because she wanted to fit her break into the thirty-minute break she was allocated. She decided to go to the first floor only after finding a line of TWA personnel waiting to use the microwaves. She reasonably felt that she would not have time to take care of her personal comfort and wait for the microwave owned by TWA. While she could in theory leave the building during her break, because of the short time she was allocated for breaks, the lack of any nearby restaurants, and the lack of safety in

the area surrounding the office building, Drewes opted not to leave the building during her break time. The first-floor break room is very close to the second-floor TWA office. In addition, her testimony was that her TWA employers had introduced the first-floor break room as an area that was for TWA employee use. She used the downstairs break room about fifty percent of the time. Since usage of the first floor break room was conducted by Drewes and other employees for the mutual benefit of TWA with its knowledge and consent and for the personal comfort of its employees, we hold that the Commission had before it sufficient facts to find that Drewes's injury occurred in the course of her employment with TWA. Having determined that Drewes's accident occurred in the course of employment, we must address whether the accident arose "out of employment." An accident arises "out of" the employment relationship when there is a causal connection between the work conditions and the resulting injury. Kloppenburg v. Queen Size Shoes, Inc., 704 S.W.2d 234, 236 (Mo. banc 1986). "Recovery under section 287.120.1 follows only where a condition unique to or exacerbated by the workplace exists and contributes to cause the injury." Abel, 924 S.W.2d at 504. Idiopathic injuries, or those injuries caused by some inherent quality of the employee such as fainting spells, are often not compensible because they are not unique or exacerbated by the workplace. Id. Since there is no all-embracing definition of the phrase "out of," each case must be decided upon its own specific facts and circumstances rather than by reference to a formula. Kloppenburg, 704 S.W.2d at 236. Even though she could offer no explanation of what caused her fall, both the ALJ and the Commission found that Drewes's injury was not idiopathic. There is no evidence to suggest Drewes suffered from some internal condition that caused her fall. The Commission concluded that the fall was caused by the work environment, and was therefore compensible. See Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 784-85 (Mo. banc 1993). The Commission observed that the "precipitating cause of the injury was in direct relationship" to Drewes's attempt to attend to her personal needs because her fall was caused by an accident related to her walking in the eating area. We are bound by the Commission's finding that Drewes's fall was caused by her work environment. We have reviewed the transcript and legal file and find no error. Judgment affirmed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.