Michael Drey v. Kurzweil Livestock Company

of the main sow barn. Then he intended to go home and shower and go to the football game in time for the half-time show.

On the way back to the farm, Mr. Drey was rounding the first curve of an s-turn when he saw two large dogs in the road. Mr. Drey swerved onto a gravel road to avoid the dogs. Mr. Drey's motorcycle went approximately 200 -yards before he crashed. He laid on the gravel road unconscious for approximately an hour before a passerby discovered him.

The construction of the phrase "arising out of and in the course of employment" historically has been broken in half, resulting in a two-prong test, with the "arising out of" portion construed to refer to causal origin, and the "course of employment" portion to the time, place and circumstances of the accident in relation to the employment. The substantive provisions of $\S 287.120 .1$ were not changed or amended by the 2005 enactment of the General Assembly.

Pursuant to this statute, proof of a compensable injury requires not only establishing that it occurred at a particular place, and at a particular time (the "in the course of" component) the injury must also be causally connected to some risk or hazard of the job (the "arising out of employment" component).

The first prong, "arising out of", is primarily concerned with causal connection. Historically, at a minimum, our courts have required a showing that the employee's injury was caused or due to a risk of employment. Missouri cases have uniformly held that an accident and resultant injury "arise out of" the employment when there is a causal connection between the conditions under which the work was required to be performed and the resulting injury. The injury "arises out of" the employment so long as the injury was a rational consequence of a hazard connected with the employment.

Employee's injury occurred when he was returning to the Kurzweil farm after administering medications to the new sows at the Quick farm. Employee performed this task three to four times each week. Employee had to provide his own transportation when traveling between the farms. Thus, it is clear that employee's injury arose out of his employment.

The second prong of the above mentioned two-prong test is whether the injury arose "in the course of" employment. Employee's injury occurred within the period of employment at a place where the employee could reasonably be expected and while engaged in the furtherance of the employer's business.

Therefore, the Commission finds and concludes that employee's injury arose out of and in the course of his employment.

In conclusion, employee has sustained his burden of proof to show that his injury was due to an accident arising out of and in the course of his employment. Accordingly, the award and decision of Administrative Law Judge Carl Mueller, issued December 27, 2007, awarding employee benefits is affirmed. The administrative law judge's award is attached hereto, but his reasoning regarding the application of the mutual benefit doctrine is not adopted by the Commission.

Given at Jefferson City, State of Missouri, this 11th day of July 2008.

John J. Hickey, Member

Attest:

Employee: Michael Drey

Injury No: 05-097036

Dependents: N/A

Employer: Kurzweil Livestock Company

Additional Party: N/A

Insurer: Commerce Industry \& Insurance Company

Hearing Date: December 3, 2007

Briefs Filed: December 18, 2007

Checked by: RCM/rm

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 16, 2005
5. State location where accident occurred or occupational disease was contracted: Hwy 2, Cass County Missouri
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? Yes
9. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was riding his motorcycle from the isolation barn back to the main farm when he had a motorcycle accident.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Body as a whole
5. Nature and extent of any permanent disability: Fifteen percent ( 15 % ) - body as a whole
6. Compensation paid to-date for temporary disability: None
7. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
8. Value necessary medical aid not furnished by employer/insurer? $\ 29,284.00
9. Employee's average weekly wages: $\ 923.08
10. Weekly compensation rate: $\ 365.08
11. Method wages computation: By Stipulation.
12. Amount of compensation payable:

Medical Expenses

Medical Already Incurred $\ 29,284.00

Less credit for expenses already paid $\ 0.00)

Total Medical Owing $\ 29,284.00

Temporary Disability

None

Permanent Partial Disability

15 % whole body disability ( .15 x 400 weeks) x $\$ 365.08 / week \ 21,904.80

Total Award: $\ 51,188.80

1. Second Injury Fund liability: Not addressed at this hearing. The Claimant and the Fund attorney agreed to "bifurcate" the Fund claim and address it separately at a later date.
2. Future requirements awarded: None

Said payments to begin as of date of this award 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 twenty-five percent (24\%) lien totaling $\ 12,285.31 in favor of Keith V. Yarwood and Edelman \& Thompson, Attorney, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

On December 3, 2007, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Michael Drey, appeared in person and with counsel, Keith Yarwood. The employer appeared through Christopher McCurdy. The Second Injury Fund was not a party to the case. The primary issue the parties requested the Division to determine was whether or not Mr. Drey was in the course and scope of his employment when he was injured on September 16, 2005. For reasons noted below, I find that Mr. Drey was in the course and scope of his employment when he was injured on September 16, 2005.

STIPULATIONS

The parties stipulated that:

- On or about September 16, 2005, Kurzweil Livestock was an employer operating subject to Missouri’s Workers’ Compensation law with its liability fully insured by AIG Insurance Company;

- Mr. Drey was its employee working subject to the law in Cass County, Missouri;

- Mr. Drey notified Kurzweil Livestock of his alleged injury and filed his claim within the time allowed by law; and

- Kurzweil did not provide any medical care.

ISSUES

The parties requested the Division to determine:

- Whether Mr. Drey sustained an accident arising out of and in the course of employment?

Whether Kurzweil Livestock Company must reimburse the employee for medical expenses totaling $\ 29,284.00 ?

- Whether Kurzweil Livestock Company must reimburse to Mr. Drey the cost of this proceeding for defending the claim without reasonable ground pursuant to $\S 287.560$ ?

Mr. Drey testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

A - Map

B - Letter dated June 26, 2006 from Yarwood to Kurzweil

C - Rating report and Medical Records

D - Deposition, Tom Kurzweil, August 18, 2006

E - Deposition, Dennis Kurzweil, August 18, 2006

Employers Thomas Kurzweil and Dennis Kurzweil testified on behalf of Kurzweil Livestock and presented the following exhibits, all of which were admitted into evidence without objection:

1 - Medical Chart Note, KC Bone \& Joint, October 17, 2005

2 - Medical Report, Terrence Pratt, MD, May 31, 2007

3 - Speech-Language/Cognition Evaluation, August 31, 2007

4 - Medical Report Addendum, Terrence Pratt, MD, October 15, 2007

Based on the above exhibits and the testimony of Mr. Drey and Thomas and Dennis Kurzweil, I make the following findings: Mr. Drey is a single, 54-year old male, who lives in Gardner, Kansas. He is a high school graduate with extensive specialized training in animal husbandry including basic veterinary medicine and hog psychology.

Mr. Drey was reared on a farm in Iowa and worked on corporate farms most of his adult life, including working for such large corporate farm companies such as Seaboard and PIC. As part of his profession as a corporate farm manager, he undertook continuing education to learn how to increase the number of successful births on the farms where he worked. He learned how temperature variances could cause stress and miscarriages in sows. He also learned basic veterinary medicine, how to limit the introduction of disease into healthy herds, the importance of regulating temperatures in sow barns to relieve stress and even