David Harris v. Westin St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-159100

Employee: David Harris

Employer: Westin St. Louis

Insurer: Zurich North American Insurance Company

Date of Accident: December 11, 2002

Place and County of Accident: St. Louis City, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (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 December 11, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Margaret Landolt, issued December 11, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\underline{11^{\text {th }}}$ day of May 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

Employee: David Harris

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Westin St. Louis

Injury No.: 02-159100

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

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: N/A
5. State location where accident occurred or occupational disease was contracted: N/A
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: N/A
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? \$214.68

Employee: David Harris Injury No.: 02-159100

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: Unknown
4. Method wages computation: N/A

1. Amount of compensation payable: None
2. Second Injury Fund liability: No

TOTAL:

-0-

1. Future requirements awarded: None

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

N/A

Injury No.: 02-159100

Before the

**Division of Workers' Compensation**

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: MDL:tr

A hearing was held on August 21, 2006, and September 15, 2006, at the Division of Workers' Compensation in the City of St. Louis. David Harris (Claimant) was represented by Mr. David Damick. Westin St. Louis (Employer) and its insurer, Zurich American Insurance Company, were represented by Mr. Steve McManus and Ms. Lisa Henderson. Claimant's attorney did not request a fee.

The parties stipulated that on or about December 11, 2002, Claimant sustained an accident; Employer has paid no temporary total disability benefits, but paid $214.68 in medical benefits. The sole issue for determination by hearing is whether the accident that occurred on December 11, 2002, arose out of and in the course and scope of Claimant's employment with Employer. In this case, Employer has accepted this as a compensable case, and Claimant is asserting that this claim did not arise out and in the course and scope of employment.

On December 11, 2002, Claimant was the passenger in a car driven by his friend who was in the process of dropping Claimant off at his job with Employer. Claimant works for Employer as a lead steward/dishwasher.

assigned to the kitchen. All of Claimant's duties occurred in the kitchen of Employer's premises. Claimant never took work supplies or property of Employer home with him.

At approximately 2:45 p.m., the car Claimant was a passenger in was involved in an accident that occurred when another employee of Employer was driving a car for purposes of valet parking, and turned into the path of the car in which Claimant was a passenger. Claimant never clocked in because the accident occurred at approximately 2:45 p.m., and he was scheduled to clock in at 3:00. The accident occurred at $7^{\text {th }}$ and Spruce Street, which is around the corner from the employee entrance, which is located at $9^{\text {th }}$ and Clark Streets. Employees are only allowed to enter the hotel at the employee entrance. The car in which Claimant was riding had not stopped to let him out, and was simply traveling down a city street that was not controlled by Employer. The accident occurred in an area of the street in front of the hotel entrance that contained ornamental "pavers" which are a special ornamental design in the street. Employer provides snow removal for that portion of the street because the city snow plows could damage the pavers. Employer has a special blade it uses to remove the snow that won't damage the pavers. In addition, Employer maintains the pavers when there is snow or ice because the pavers are part of a walkway which leads from the parking lot to the hotel entrance, however, the pavers are located on a public street.

Claimant injured his back and neck in the accident, and had surgery on January 4, 2006.

Claimant was not performing any work or any duties for Employer at the time the accident occurred.

Based upon my observation of the witnesses at hearing, a review of the evidence, and the application of Missouri law, I find:

Claimant's accident did not arise out of and in the course and scope of his employment with Employer. Claimant was in the process of going to work. Injuries sustained while coming to or going from work are not compensable under the workers' compensation law unless they fall within an exception to that rule. No such exceptions apply in this case.

Generally, accidents occurring on the trip to or from work are not deemed to arise out of and in the course of employment. Cox v. Tyson Foods, Inc., 920 S.W.2d 534 (Mo. 1996). An exception to the going to and coming from work rule allows recovery of workers' compensation benefits if the injury producing accident occurs on premises which are owned or controlled by the employer, or on premises which are not actually owned or controlled by the employer, but which have 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 practical intents and purposes, a part and parcel of the employer's premises and operation, and if that portion of such premises is part of the customary, expressly, or impliedly approved, permitted, usual, and acceptable route for means employed by workers to get to and depart from their places of labor, and is being used for such purpose at the time of injury. Id. at 535-536 (emphasis added).

At the time of the accident, Claimant was a passenger in an automobile which was traveling on a public street not controlled by Employer. Claimant was not using this portion of the street at the time of the injury to get to his building. His ultimate destination was around the corner from where the accident occurred.

I am not persuaded by Employer's argument that because the accident occurred in the area of the ornamental pavers, and in a walkway from the parking lot to the guest entrance, that Claimant was using the extended premises for the purpose of getting to work. Claimant was merely a passenger in a car that was traveling across Employer's premises, and Claimant was not, at the time of the accident, using the extended premises to get to work. Had the accident occurred at $9^{\text {th }}$ and Clark, in front of the employee entrance, Employer's argument might have some merit.

I am also not persuaded by Employer's argument that because it is willing to accept this as a compensable case under Section 287 RSMo, that jurisdiction is automatically conferred. Employer is attempting to use the Workers' Compensation Act as a shield. The Division of Workers' Compensation has exclusive jurisdiction over

work related injuries in Missouri, but this mandates that the injury must have actually arisen out of and in the course and scope of employment.

This case did not arise out of and in the course and scope of Claimant's employment, and the Missouri Workers' Compensation law is not applicable to this case.

Date: $\qquad Made by: \qquad$

Margaret D. Landolt

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

Employee: David Harris

Injury No.: 02-159100