Amanda Belkouch v. Missouri Clippers, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-090720

Employee: Amanda Belkouch, deceased

Dependent: Larbi Belkouch, widower

Employer: Missouri Clippers, Inc.

Insurer: State Farm Fire \& Casualty Company

Date of Accident: Alleged July 19, 2004

Place and County of Accident: Alleged Brumley, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 30, 2005, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Linda J. Wenman, issued November 30, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $19^{\text {th }}$ day of June 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: July 19, 2004
5. State location where accident occurred or occupational disease was contracted: Brumley, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was traveling to a voluntary recreational activity planned by Employer, when she was involved in a fatal motor vehicle accident.
12. Did accident or occupational disease cause death? Yes Date of death? July 19, 2004
13. Part(s) of body injured by accident or occupational disease: Blunt trauma to head, chest, and extremities.
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Amanda Belkouch (deceased) Injury No.: 04-090720

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee’s average weekly wages: 534.85
3. Weekly compensation rate: 356.57 for death benefits
4. Method wages computation: Stipulated

1. Amount of compensation payable: None

The above referenced Workers’ Compensation claim was heard by the undersigned Administrative Law Judge on September 1, 2005, and reconvened on September 2, 2005. Briefs were received and the case was formally submitted on October 21, 2005. Attorney Donald D. Heck represented Larbi Belkouch, the husband of decedent Amanda Belkouch (Claimant). Missouri Clippers, Inc., (dba Great Clips) (Employer) was insured by State Farm Fire \& Casualty Company, and represented by Michael C. Margherio. The Second Injury Fund was not a party to the proceedings.

Prior to the start of the hearing the parties identified the following issues for disposition in this case: arising out of and in the course of employment; liability for burial expenses ${ }^{[1]}; determination of death benefits owed under \S 287.240$ RSMo.; and cost of attorney fees and expenses. The stipulated average weekly rate was $\ 534.85, producing a weekly compensation rate of $\ 356.57. The parties also stipulated to the following dependent of Claimant: widower Larbi Belkouch.

Claimant offered Exhibits A-R. Employer objected to Exhibits H, J, and O. The parties were asked to address the objections in their post-hearing briefs, and the briefs have been reviewed. The objection to Exhibit H is sustained, the objection to Exhibit O is overruled, and the objection to Exhibit J is moot due to the outcome of the case. Any objections not expressly ruled on in this award are overruled.

All admissible evidence has been reviewed. Only evidence necessary to support this award will be summarized. Undisputed facts

Employer owns and operates twelve hair salons in the St. Louis, Missouri, and in the southern Illinois area. During April 2004, Employer invited its eleven store managers to attend a trip to a resort at the Lake of the Ozarks (Lake Trip) to be held on July 19-22, 2004. 12] Employer was to pay for each manager's lodging, and some of their meals. Claimant was the store manager of Employer's Hill Town Village salon, and notified Employer she would attend the Lake Trip. On July 19, 2004, while Claimant was traveling to the lodging, she was involved in a fatal one-car accident.

Numerous witnesses and depositions provided testimony and are summarized as follows:

William Van Luven: Mr. Van Luven is a co-owner of the salons. Mr. Van Luven testified the Lake Trip was a purely recreational event offered to managers only, and no business activity was planned for the event. Attendance was voluntary, and Mr. Van Luven didn't care if a manager did, or did not, attend the event. Mr. Van Luven confirmed his managers are salaried employees. He also confirmed the expenses associated with the Lake Trip were expensed by his bookkeeper under a Training and Development classification which he considered as a miscellaneous or catchall bookkeeping category. Mr. Van Luven also confirmed his tax advisor claimed the cost of the Lake Trip as a business deduction for I.R.S. purposes.

Laura Belmore: Ms. Belmore is Employer's vice-president. Ms. Belmore testified that the Lake Trip was a purely recreational event offered to managers only, and no business activity was planned or occurred at the event. The managers were free to use their time during the event as they pleased, and some managers went to the pool, lake, shopping, or a movie. Attendance was voluntary, and several managers choose not to attend. If a manager didn't attend, they would suffer no repercussions.

Julie Puder: Ms. Puder is Employer's general manager. Ms. Puder echoed the testimony of Mr. Van Luven and Ms. Belmore that the Lake Trip was designed for rest and recreation, and totally voluntary. Ms. Puder confirmed the Lake Trip had no agenda or planned meetings.

Tonia Obermire: Ms. Obermire is the manager of Employer's Boone Crossing location. Ms. Obermire knew Claimant well, and had served as a co-manger with Claimant before Claimant moved to her own store. Ms. Obermire echoed the previous testimony, and indicated the only purpose of the Lake Trip was to provide a break from work for the managers. Ms. Obermire's reasons for attending involved not previously going to the Lake before, and to spend some time getting to know the other managers.

Wendy Keith: Ms. Keith is a manager for Employer, and testified she attended only one Lake Trip in 2003. Ms. Keith was one of three managers who did not attend the Lake Trip in 2004. Ms. Keith testified she had no reason for not attending the trip in 2004, and wasn't told to or pressured to attend. Ms. Keith suffered no repercussions for not attending the 2004 trip. During her 2003 Lake Trip, Ms. Keith went shopping and went to the pool, and Employer made no presentations or had the managers attend any meetings.

Larbi Belkouch: Mr. Belkouch and Claimant married on January 24, 2002. During the first year of their marriage the Belkouchs' lived in Florida, and then moved to the St. Louis area. Neither spouse had previously been married, nor has Mr. Belkouch remarried as of the hearing date. During the course of their marriage, the Belkouchs' had not yet had children. Mr. Belkouch understood his wife's responsibility as a store manager included: making sure the store opened on time; taking store deposits to the bank; finding a replacement if an employee was sick; producing the store work schedule; and being available " $24 / 7$ " by phone or computer for store needs. Mr. Belkouch testified Claimant used his laptop so frequently for store needs, that he eventually bought a second computer.

Mr. Belkouch testified his wife believed she was required to attend the Lake Trip. Mr. Belkouch was concerned about the cost of the trip, as the couple lived on a limited budget. His wife assured him Employer would pay her expenses, and she would not lose salary. As an example of why Claimant would not want to voluntarily attend the Lake Trip, Mr. Belkouch testified Claimant was not a swimmer, his birthday was on July 22, 2004, and she wouldn't be able to shop given their finances. Additionally, Mr. Belkouch testified Claimant told him a presentation was to be given at the Lake Trip, and on the night before she left, Claimant had work spread out on their kitchen table. Claimant did not explain what kind of presentation was to be given.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

Section 287.120.1 RSMo., provides an employer is liable to provide compensation for personal injury or death of an employee if the accident arises out of and in the course of employment. Section 287.020.5 RSMo., provides an employee must be engaged in or about the premises where their employment duties are to be performed, or where their services require them to be, to be considered to be in the course and scope of employment. Further, when an employee participates in a voluntary recreational event, and the event is the proximate cause of an employee's injury, benefits under the Missouri Workers' Compensation are forfeited even if the employer sponsors, promotes, or supported the event in whole or part. §287.120.7 RSMo. Three exceptions remove an employee's forfeiture if: (a) the employee was ordered by an employer to participate; (b) the employee was paid wages or travel expenses while participating; or (c) if the event was held under unsafe conditions on an employers premises, and the employer knew an employee was participating and the conditions were unsafe. Id.

Two questions must be answered to determine if Claimant was in the course and scope of her employment when her fatal injury occurred. First, did Claimant voluntarily attend, and did Employer receive a mutual benefit by Claimant's attendance at the Lake Trip; and second, does the "wages paid" exception of $\S 287.120 .7$ (b) allow Claimant to not forfeit benefits while engaging in Employer's recreational activity?

Determining what defines a "voluntary recreational activity" requires a review of the case facts when determining if the activity was purely recreational, or if it offered some benefit to the employer and the emp