Timothy Miles v. Lear Corporation

activity or program;

(b) The employee was paid wages or travel expenses while participating in such recreational activity or program; or

(c) The injury from such recreational activity or program occurs on the employer's premises due to an unsafe condition and the employer had actual knowledge of the employee's participation in the recreational activity or program and of the unsafe condition of the premises and failed to either curtail the recreational activity or program or cure the unsafe condition.

Section 287.120.1 RSMo, in general, requires an employer to furnish an employee compensation for injury due to an accident arising out of and in the course of the employee's employment. However, § 287.120.7 RSMo, states that benefits or compensation otherwise payable (emphasis added) shall be forfeited where the employee's participation in a recreational activity is the proximate cause of the injury. But, the forfeiture of benefits or compensation shall not apply when: (a) the employee was directly ordered by the employer to participate in such recreational activities; (b) the employee was paid wages or travel expenses while participating in such recreational activities; or (c) the injury from such recreational activity occurs on the employer's premises due to an unsafe condition and the employer had actual knowledge of the employee's participation in the recreational activity and of the unsafe condition of the premises and failed to either curtail the recreational activity or cure the unsafe condition.

Construing these two statutory sections together, and emphasizing the language contained in § 287.120.7 RSMo, of "otherwise payable", the Commission is of the opinion that these type cases require a two step approach: (1) prior to applying the forfeiture provision of $\S 287.120 .7$ RSMo, the Commission must initially determine there was an injury due to an accident arising out of and in the course of employment, i.e., "benefits or compensation otherwise payable under this chapter . . ."; and (2) subsequent to a determination that the employee sustained an injury due to an accident arising out of and in the course of his employment, the Commission reviews the forfeiture provisions contained in § 287.120.7 RSMo, as well as the statutory exceptions contained in the same provision.

A summary of the pertinent facts are as follows: as of the date of the accident, February 19, 2004, employee was a member of UAW Local 282, and a collective bargaining agreement was in effect between employer and UAW Local 282; the collective bargaining agreement provided that all employees were to receive two fifteen minute breaks each work shift, which are paid breaks; employer provided a break area outside the production facility and employees were free to use it; in this break area was located a basketball goal which employees were free to use; employees frequently played basketball on this court during paid breaks; supervisors would also participate in the basketball games; employees were prohibited from leaving the plant during the 15 minute paid breaks; employees were required to remain on the premises during the paid 15 minute breaks in order to get the production line restarted in a timely manner; employer did not direct employees on their individual breaks; employees were free to use their time as they so desired; employee was injured while playing basketball during his first 15 minute paid break on February 19, 2004.

Based on the facts presented, and relying on the case of Seiber v. Moog Automotive, Inc., 773 S.W.2d 161 (Mo. App. 1989), the Commission finds the employee sustained an injury due to an accident arising out of and in the course of his employment. The injury occurred on the employer's premises; the injury occurred during a compensated 15 minute break pursuant to a collective bargaining agreement; employee was required to remain on the premises during the 15 minute compensated break; the playing of basketball during the 15 minute compensated breaks occurred regularly with the knowledge and approval of the employer; and due to the employer's acquiescence, the playing of basketball had become a regular incident to the employee's employment. As stated by the appellate court in Seiber, supra,:

an injury sustained by an employee during a lunch hour recreational activity on the employer's premises is compensable where the employer has acquiesced to the activity to the extent that the activity has become a regular incident of employment. . . . Although the activity was unsupervised, it occurred regularly with the knowledge and approval of employer. The employer acquiesced, therefore playing basketball became a regular incident to employee's employment.

Accordingly, finding that the injury was due to an accident arising out of and in the course of employment, i.e., benefits or compensation are otherwise payable under this chapter, the Commission now must determine whether

or not § 287.120.7 RSMo, necessitates a forfeiture of benefits or compensation.

The Commission finds the proximate cause of the injury was due to employee's participation in a voluntary recreational activity. There is no evidence contra to this finding nor does employer make any such assertion.

Section 287.120.7 RSMo, requires benefits or compensation to be forfeited where the employee's participation in a voluntary recreational activity is the proximate cause of the injury, unless one of three exceptions exists: (a) the employee was directly ordered by the employer to participate in such recreational activity or program; (b) the employee was paid wages or travel expenses while participating in such recreational activity or program; or (c) the injury from such recreational activity or program occurs on the employer's premises due to an unsafe condition and the employer had actual knowledge of the employee's participation in the recreational activity and of the unsafe condition of the premises and failed to either curtail the recreational activity or cure the unsafe condition.

There was no evidence to support a conclusion that the exceptions provided in § 287.120.7(a) RSMo or § 287.120.7(c) RSMo were proven.

Section 287.120.7(b) RSMo, provides: "the forfeiture of benefits or compensation shall not apply when: (b) the employee was paid wages or travel expenses while participating in such recreational activity or program;"

In the instant case, the employee was paid wages while participating in the recreational activity at the time he was injured. There is no evidence contra.

Applying the plain meaning to this statutory language, the Commission must conclude that the forfeiture of benefits shall not apply.

Employer contends that the case of Wilson v. Monsanto Co., 926 S.W.2d 48 (Mo. App. E.D. 1996) is dispositive and requires the Commission to reverse the award of the administrative law judge contending Wilson, supra, rejects the notion that an injury occurring during recreational activity is compensable simply because an employee was on a paid break while participating in a recreational activity.

However, the Commission is cognizant of the Wilson case, but does not agree with the interpretation contended by the employer.

The appellate court in the Wilson case, supra, stated as follows:

examining the pre-1990 case law, we find no case where an employee was compensated for an offpremises recreational injury simply because he was being paid when it occurred. Despite this, employee maintains employer is liable under § 287.120.7(b) because he was paid wages while engaging in a voluntary recreational activity.

The Commission does not interpret the holding in the Wilson case, supra, as contended by employer. The Commission is of the opinion that the appellate court simply found in the two-step analysis, that step one was not determined favorably for the injured employee. The appellate court found that the employee injured in the Wilson case, supra, did not sustain an injury due to an accident arising out of and in the course of his employment.

The appellate court found that the injuries sustained by the employee in the Wilson case, supra, did not arise out of and in the course of employment, since work did not create necessity of travel, employer neither required nor requested such activity, and employee was not on an errand for employer or serving any other purpose for employer when the injury occurred. Since the first step was decided unfavorably for the employee, the appellate court did not address the forfeiture provision of $\S 287.120 .7$ RSMo.

In summary, the Commission finds that the employee sustained an injury due to an accident arising out of and in the course of his employment; the employee's participation in a voluntary recreational