I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review
of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.
The majority of the Commission concludes that the evidence presented by employer is more credible, believable, and trustworthy than the evidence presented by employee. I disagree.
There were two eyewitnesses to employee's activities at the IGA store on October 22, 1999; employee and Joe Felworth. Mr. Felworth was an owner of the IGA store. Mr. Felworth corroborated employee's testimony that employee left the IGA store to pick up parts for the IGA job and that employee planned to return to the IGA store after picking up the parts. I find it remarkable that neither the administrative law judge nor the majority of the Commission mention the testimony of Joe Felworth in their decision. Mr. Felworth was not shown to be interested in the outcome of this matter and I find his testimony credible.
Jackie Hempen, one of employer's officers, testified that employee was scheduled to work a forty-hour week, eight hours a day. She testified that if an employee began work at 7:00 a.m. and did not take a lunch break, the employee's workday would end at 3:00 p.m. Ms. Hempen testified that picking up parts needed for jobs was one of employee's job duties and that he was "on the clock" when he was performing such duties.
Employer's evidence does not contradict the testimony of employee and Mr. Felworth that employee was traveling to Mechanical Supply to pick up thermostats. Ms. Hempen testified that employee's regular workday is eight hours but employer paid employee for seven hours of work on October 22. That is consistent with employee's testimony that employee began work between 7 a.m. and 7:15 a.m. and was still working when he was involved in a motor vehicle accident around 2:15 p.m.
Employer asserts that employer's payment for only seven hours of work on October 22 compels a finding that employee had finished working before the time of the accident. It does not. It merely shows that employee did not claim wages for services performed after the accident happened. Of course, this is consistent with the behavior of an honest employee who only reports time for services actually performed.
Ms. Hempen testified that she called employee on Sunday, October 24, and told employee he could use a company truck on Monday, October 25. Her testimony that employer was offering employee a company truck to use is consistent with employee's testimony that he had a job to perform for employer on October 25.
On the other hand, the truck offer is inconsistent with Ms. Hempen's testimony that employer had no job for employee on October 25. I do not believe employer would allow employee to use employer's truck unless 1) employee's truck was damaged in an accident arising out of his employment, 2) employee would be performing services for employer, or 3) employee's truck damage was work-related and employee would be performing services for employer.
I find employee's version of events to be the most credible. I find employee was on his way to buy thermostats at the time of the motor vehicle accident. I find the accident occurred seven hours into employee's eight-hour shift. I conclude employee sustained an accident arising out of and in the course of employment on October 22, 1999.
I would reverse the award of the administrative law judge denying compensation. I would award compensation including past medical expenses, future medical care, and permanent total disability benefits. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.
John J. Hickey, Member