Clarence Carter v. Terminix

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, heard oral argument, read the briefs, 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, 2007, as supplemented herein.

The issues stipulated at trial were whether employee was injured while traveling in a company owned or subsidized automobile from his home to employer's principal place of business; and whether the injury arose out of and in the course of employment.

The administrative law judge concluded that employee failed to meet his burden of proof that his injuries arose out of and in the course of employment, and as a result, denied his claim for workers' compensation benefits. Employee, through his attorney, filed a timely Application for Review with the Commission alleging that the administrative law judge erred in finding that employee was driving an "automobile" to work as defined in §287.020.5 RSMo; and that employee should be awarded medical, lost time, and permanent partial disability as a result of the accident on October 26, 2005. We disagree and affirm the award of the administrative law judge.

The findings of fact were accurately recounted in the award of the administrative law judge; therefore, the pertinent facts will merely be summarized below.

Employee worked for employer as a pest control and termite technician. Employee drove a company owned vehicle, Ford 350 pick-up truck, equipped with a 250 gallon pest control tank on the back. Employee

normally drove the company vehicle from home to work in Fenton, Missouri and from the Fenton office back home. Employee's daily routine included traveling from his home to the Fenton office where he would clock in and pick up his job assignment for the day. Employee would complete his assignments and typically return to the Fenton office, clock out and go home. Employee was not paid for mileage to and from his place of residence and the Fenton office.

On October 26, 2005, employee was driving his company vehicle from his home to the Fenton office on I270 when he encountered a stalled vehicle in his lane. Employee braked and swerved to avoid the stopped vehicle, but was unable to do so, hitting the back of the vehicle causing his vehicle to become airborne and roll over. Employee was taken to the hospital where he received medical treatment for injuries to his head and neck. Employee was discharged from his doctor's care on November 22, 2005 and was released to return to work on November 28, 2005.

As of the date of this accident $\S 287.120 .1$ RSMo, as amended in 2005, provided, in pertinent part, as follows:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.

Pursuant to $\S 287.120 .1$ RSMo, to be compensable under workers' compensation law, an employee's injury must arise out of and in the course of his employment. The construction of the phrase "arising out of and in the course of employment" historically has been evaluated in two parts, addressing the terms "arising out of" and the "in the course of" separately. The term "arising out of" has been construed to refer to causal origin, and the term "in course of employment," 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.

The legislature in 2005 amended the law in $\S 287.020 .5$ RSMo, to provide:

Injuries sustained in company-owned or subsidized automobiles in accidents that occur while traveling from the employee's home to the employer's principal place of business or from the employer's principal place of business to the employee's home are not compensable. The extension of premises doctrine is abrogated to the extent it extends liability for accidents that occur on property not owned or controlled by the employer even if the accident occurs on customary, approved, permitted, usual or accepted routes used by the employee to get to and from their place of employment.

The legislature provided the following additional legislation contained in $\S 287.800 .1$ RSMo, which provides:

Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.

Construing these statutory sections, in order for an employee to prove a compensable case, the employee must prove he or she sustained an injury due to an accident arising out of and in the course of employment. The statutory changes speak specifically to employees traveling in company owned or subsidized automobiles. Injuries sustained in accidents that occur while traveling in company automobiles between an employee's home and an employer's principal place of business are specifically excluded from coverage under $\S 287.020 .5$. The statutory language is exact in its exclusion of such accidents from coverage.

Furthermore, the provision is subject to strict construction under $\S 287.800 .1$.

In this instance, employee was injured while he was traveling in a company owned automobile from his home to employer's principal place of business. There is no dispute that at the time of his accident employee was traveling in a company owned vehicle from his home in North St. Louis County to work at the Fenton office. Employee claims that the company-owned vehicle, Ford 350 truck, he was driving at the time of his collision does not fall within the definition of an automobile. We are not persuaded by this argument. We agree with the administrative law judge that the company owned vehicle, Ford 350 truck, is an automobile for purposes of applying $\S 287.020 .5$.

In addition, the evidence supports that employer's office in Fenton, Missouri was employer's principal place of business. Employee testified that his daily work routine involved driving the company vehicle to work at the Fenton office in order to clock in and receive his daily work assignment. After completing his assignments employee would return to the Fenton office to clock out and drive home in the company vehicle. Employer's business was clearly conducted by or through its office in Fenton, Missouri.

Employee was en route from his home to the Fenton location in a company automobile when he sustained his injury by accident. As such, employee has not established that his accident arose out of and in the course of his employment.

Although we agree with the conclusion of the administrative law judge that employee's injury by accident did not arise out of and in the course of his employment, we specifically want to address administrative law judge's comments with regard to the intent of the legislature in making the 2005 amendments to the Workers' Compensation Law. The administrative law judge provided his opinion as to the intent or purpose of the legislature in enacting changes to the Workers' Compensation Act. The administrative law judge stated:

The legislature has commanded that the law be strictly interpreted so as to exclude as many persons as possible from coverage by strict interpretation of terms so as to effectuate the legislature's desire to restrict the scope of the Act and narrow the class of persons entitled to compensation. (Emphasis added).

We agree that the law is to be strictly construed, but disagree that the purpose is to exclude as many persons as possible from coverage. The administrative law judge's opinion in that regard is not maintained by this Commission.

We are bound by strict interpretation of Chapter 287. Applying the plain meaning of the relevant statutory language to the facts in the instant case, employee is excluded from coverage under the law and is not entitled to compensation.

The Commission agrees with the ultimate conclusion reached by the administrative law judge that employee failed to meet his burden of proof that he sustained an injury that arose out of and in the course of employment. Employee's injuries are not compensable as they were sustained in an accident that occurred while traveling in a company owned automobile from employee's home to the employer's principal place of business. Therefore, employee's claim for benefits is denied.

The award and decision of Administrative Law Judge Mathew D. Vacca, issued November 30, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 26th day of September 2008.

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

Employer owned a Ford F-350 pickup truck, fitted with a 250 gallon tank in the bed. The purpose of the tank was to transport water and pest control chemicals to job sites in furtherance of employer's business of pest control. Employer required employee to drive the truck to and from work. On most mornings, employee drove the truck to employer's Fenton location to clock in and get his work assignment for the day. Sometimes, employee got his work assignment a day early. On those occasions, employee would drive directly from his home to the job site the following morning.

On the morning of October 26, 2005, employee was driving employer's pickup truck on a route from his home to employer's office in Fenton to clock in and get his work assignment for the day. The tank carried an unknown quantity of liquid. While driving on the highway, employee came upon a stalled vehicle in his lane. Employee maneuvered the truck in an effort to avoid the stalled car. The liquid in the tank sloshed making the truck difficult to control. The truck hit the stalled car and rolled over. Employee suffered injuries including a closed head injury.

Employee missed work from October 26, 2005, through November 27, 2005, due to his injuries. Employee incurred medical bills in the amount of $\ 8,286.11 for the treatment of his injuries. Dr. Margolis opined that employee sustained a permanent partial disability of 15 % due to his post-concussive headaches.

- Was employee injured while traveling between his home and his employer's principal place of business in an employer-owned or employer-subsidized automobile?

- Did the injury arise out of and in the course of employee's employment?

- Was the accident the prevailing factor in causing the injury?