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 employee. Graham v. La-Z-Boy Chair Co., 117 S.W.3d 182 (Mo.App.2003). The benefit received by an employer need not be tangible or great to evoke the mutual benefit doctrine, but the benefit cannot be so remote as to deprive the mutual benefit doctrine of meaning. The benefit must be of some substantive benefit to the employer. Blades v. Commercial Transport, Inc., 30 S.W.3d 827 (Mo. banc 2000); see also Bybee v. Ozark Airlines, 706 S.W.2d 570 (Mo.App.1986). In 1990 the legislature added paragraph 7 to $\S 287.120$ RSMo., and Missouri Courts have agreed the amendments were enacted to limit an employer's liability for recreational injuries. Wilson v. Monsanto Co., 926 S.W 2d 48 (Mo.App.1996).

In this case, two managers, Tonia Obermire and Wendy Keith, provided testimony. Both managers repeatedly testified the Lake Trip was optional, had no agenda, no meetings, no presentations, and the managers were free to do what they wanted to do. Tonia Obermire specifically testified she went to the Lake Trip to do "nothing", and if she didn't want to interact with the other managers she didn't have to, although one of her purposes for attending was to meet managers she didn't know (Exhibit O, pgs. 27, 38). Wendy Keith elected not to attend the 2004 Lake Trip for "no real reason", but was not ordered to go by management, and suffered no repercussions by not going on the trip.

Employer's senior management echoed the managers' testimony, and although the senior managers brought a laptop and cell phones with them, the purpose was to provide communication for the salons that had managers in attendance at the Lake Trip. Claimant's post-trial brief alleges as an example of tangible evidence of a business related benefit for Employer, the testimony of Ms. Puder in which she testified that conversation during Lake Trips at times turned to things that happened at work. However, the testimony of not only Ms. Puder, but all the witnesses, must be read completely and in context, and Ms. Puder explained:

I mean, I think when you get people together that they have something in common like their job, they talk about it. I don't know any specific incidents or something.

(Exhibit N, pg.28)

Likewise, although all managers in attendance at the Lake Trip were eligible to give a presentation, only Mr. Belkouch believes a presentation was to occur. There is no evidence that a presentation was contemplated or ever given at the Lake Trip.

Mr. Van Luven acknowledged the cost of the Lake Trip was listed under the Training \& Development category by his bookkeeper, but he testified at trial the category was a bookkeeping "catch-all" category, and in his deposition testimony that the category was a "broad miscellaneous account" (Exhibit Q, pg.22). Mr. Van Luven also acknowledged the cost of the Lake Trip was claimed as a business expense on the corporate taxes at the advice of his tax accountant. I do not find either acknowledgement to be dispositive of demonstrating a mutual benefit.

A review of the post 1990 reportable case law applying the mutual benefit doctrine in the context of a recreational activity fails to demonstrate a case on point. The established cases are all capable of being distinguished. For example the

frequently cited Graham case involved an employee who was injured playing in a client's golf tournament. The Southern District Court of Appeals found the employee entered into a voluntary activity, but the activity itself was not solely recreational. The employee's benefit was to play free golf and receive free meals, and the employer's benefit was the employee's ability to meet with, and establish a better working relationship with one of employer's clients. Id. (emphasis supplied). In the case at bar, Claimant's benefit was to receive free lodging and most (if not all) meals for free during a period of time she might otherwise be working. At most, it can be said Employer's benefit was a boast of its managers' morale. As stated in Wilson, "a healthier, happier employee is a benefit to the employer, but it is not the type of benefit that invokes the mutual benefit doctrine." Id. I find Claimant voluntarily attended the Lake Trip, but I do not find Employer received a mutual benefit from Claimant's attendance at the Lake Trip.

Although the mutual benefit doctrine does not apply, the inquiry does not end due to the three exceptions carved out by the legislature under $\S 287.120 .7$ RSMo. Exception (a) does not apply as I find Employer did not directly order Claimant to attend the Lake Trip. Exception (c) does not apply, as the Lake Trip did not occur on Employer's premises.

Invoking exception (b) is a closer call. Exception (b) provides an exception if an employee was paid wages or travel expenses while participating in a recreational activity. The testimony of all the witnesses is in harmony on this point, managers were salaried employees, and they received their salary while on the Lake Trip. Research has failed to uncover any reportable case on point. However, once again, the Wilson case provides guidance. In Wilson the employee was injured while riding his bicycle while on a paid break. The Court in Wilson found no cases prior to the 1990 legislative change that provided compensation to an employee solely because he/she was on paid time when an off-premises recreational injury occurred. The Court reasoned that because the legislative intent in the 1990 statutory changes was to further limit an employer's liability for injuries suffered by employees engaged in voluntary recreational activity, equating a paid break to payment of wages would expand employer liability versus restrict it, and the Court declined to so hold. Id.

Claimant was a salaried employee; she did not receive an hourly wage. If Claimant had been involved in her fatal accident while traveling to her jobsite, rather than going to the Lake Trip, her claim would not have been compensable even though she would technically have been receiving wages. To now hold her status as a salaried employee to be the equivalent of the "paid wages" contemplated by the legislature, would once again attempt to expand an employer's liability for injuries suffered by employees engaged in voluntary recreational activity. Despite Mr. Belkouch's contention that his wife worked "24/7", Employer's salons were not open 24 hours per day, and there was no evidence to support a finding of Claimant being on call at all times. There is also no evidence showing Claimant was paid mileage while attending the Lake Trip. Accordingly, I find none of the three exceptions to $\S 287.120 .7$ RSMo., apply. I further find Claimant was voluntarily participating in Employer's recreational activity, and her participation was the proximate case in her fatal injury. Claimant has forfeited her right to benefits under the Missouri Workers' Compensation Law.

In summary, Claimant has not met her burden to demonstrate her fatal accident arose out of and in the course of her employment with Employer. Employer is not liable for any benefits. All remaining issues are moot.

Date: $\qquad

Made by: \qquad$

LINDA J. WENMAN

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

[1] In addition to routine burial expenses, Claimant sought reimbursement of headstone as a burial expense.

[2] As of July 19, 2004, Employer owned eleven salons.