Thomas Barton v. W & M Properties

Employee was on the board of directors of the St. Louis Apartment Association (SLAA). On March 24, 2004, the SLAA held one of its regular meetings at the Holiday Inn Westport at the intersection of I-270 and Page Avenue in St. Louis, Missouri. During that relevant period of time, the SLAA meetings were routinely held at this location. Employer paid employee's initiation fee, dues, mileage (he had to use his own vehicle), and any expenses connected with this association and its meetings. Employer admitted that it received a benefit from his participation in these meetings. Employer left it to employee to choose his route to and from these meetings.

Employee was scheduled to be on vacation from March 18 through 26, 2004. He was in Las Vegas for some days during that period but had returned on approximately March 22 (according to his wife). On March 24, employee apparently went to work and then went to the SLAA meeting. The board meeting started at 4 p.m. and lasted until approximately 5:00 or 5:30 p.m. Employee was present during this meeting. No alcoholic drinks were permitted during this time. After the meeting, registration began for the dinner and speaker for that evening. Dinner began at approximately 6:00 p.m. The speaker talked from approximately 6:30 to 7:30 or 8:00 p.m.

Various persons testified concerning their recollections of employee's actions that evening. He was definitely present for some period following the directors' meeting. He was seen with one or two drinks that appeared to be alcoholic beverages. No one believed he was intoxicated. To the contrary, Michael Peterson recalled that sometime between 7:00 and 8:00 p.m., employee was engaged in a conversation with Peterson and Kelly Kinneman that exhibited good use of employee's mental processes. Clare Hallstead, who worked with Peterson, testified that she left the gathering at 7:00 or 7:30 p.m. and that she believed employee was already gone at that time. Peterson recalled that employee seemed tired at the directors' meeting.

Karen Shymanski testified that employee and others would sometimes hang around following the meetings at the Holiday Inn Westport and have a couple of drinks from the on-site bar: Copperfield's. She also indicated that in conversations with employee prior to March 24, 2004, he had told her that his normal route for going home after the SLAA meetings was to take I-270 north to I-70, east to I-170, and south to his residence at employer's apartment complex in Shrewsbury.

Employer's witness, Vincent Sultana, was employee's immediate supervisor. He testified that although employer had a written policy prohibiting use of alcohol during work hours, employee would not have violated that policy by drinking alcohol after the directors' meeting. In fact, Mr. Sultana had seen employee on occasion at other company functions having a couple of drinks. Neither Mr. Sultana nor any of the other witnesses had ever seen employee intoxicated at such a function or perceived that he had a problem with alcohol.

No witness saw employee leave the SLAA meeting. No witness talked to employee about where he was going after the meeting was concluded.

At approximately 8:40 p.m., employee was seen driving south on I-170 (just north of Page Avenue) at a high rate of speed. As he approached the vehicle ahead of him, employee honked and then switched lanes (to the innermost of four lanes). He lost control of the vehicle, went into the grassy median area, rolled the vehicle, and ended up in the nearest northbound lane.

The paramedic's report makes the following statement: "PT has smell of alcohol about him." The police report notes that excessive speed and improper lane changes may have contributed to the accident. The box on the report for alcohol is not checked.

Employee was taken to DePaul Medical Center. At no point from when help arrived at the scene of the

accident until he was pronounced dead at the hospital did employee have a heart beat. The first emergency room doctor's report (Dr. John Burnsed) says nothing about smelling or any other detection of alcohol. It does, though, make the following notation under the heading "Social History": "Patient drinks alcohol." There is no indication from what this information was derived. The second emergency room doctor was a witness (Dr. David Terschluse), and he testified that he did not see or smell any signs of alcohol about employee. Dr. Terschluse suggested that Dr. Burnsed's Social History comment could have come from any number of sources, including the paramedics.

Blood was drawn from employee by DePaul. Its tests showed a .02 blood alcohol content (BAC), which is below the legal limit and is consistent with a person who has had a couple of drinks. Dr. Terschluse said that it is clear from the emergency room flow chart, which contains the contemporaneous notes of nurses during the process of trying to treat employee, that the blood was drawn at 9:55 p.m., five minutes after employee was pronounced dead. Dr. Terschluse did not know any particulars about who drew the blood or from where it was drawn, but said the normal practice was to draw from the large femoral veins.

The DePaul laboratory report shows what employer says is an inconsistency in times. It says "Collected: 03/24/04 2242". Employer contends that entry means the blood was drawn at that time (10:42 p.m.), almost an hour after employee died. Its toxicologist, Dr. Christopher Long, testified that blood could not be drawn that long after employee died because the blood would be clotted and could not be removed. Dr. Long suggested that the 2242 entry shows DePaul may have used the wrong sample.

Dr. Long is a forensic toxicologist. Although he did not actually participate in the relevant examination, he was the chief toxicologist connected with the St. Louis County Medical Examiner's office. He reviewed and signed off on the ultimate report from that office. That office received employee's body the day following his death and performed alcohol tests on blood and vitreous (from the eyeball) samples from employee about 12 hours after his death. These tests revealed BAC results of .244 and .308 , respectively, from the blood and vitreous samples. Such a high level of intoxication would be consistent with an individual of employee's size who had 13 to 16 beers in his system (in addition to any alcohol his system would have already metabolized).

While Dr. Long seems to concede that internal bleeding in the abdominal area could have contaminated the blood sample, he says the vitreous sample was not subject to such contamination. He believes it was protected by the skull, even though the skull was fractured and blood was visible around the eyes, ears, and nose.

Section 287.120.6 mandates either forfeiture or a 15\% reduction in benefits if alcohol was the proximate cause or the injury was sustained in conjunction with the use of alcohol. The version of this statute that applied to employee's March 2004 accident, though, required in any event that the use of alcohol be in violation of employer's policy.

The evidence before us shows that employee did not violate any employer policy. Its policies only prohibited the use of alcohol during employer's business hours. Even its own witness admitted that employee was not in violation of its rules by having alcohol at the SLAA social gathering following the directors' meeting. Therefore, we conclude that $\S 287.120(6)$ does not apply to this case.

ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

Personal Deviation

To be compensable under worker's compensation, employee's injury must be due to an accident arising out of and in the course of employment . . . . The general rule is that an injury is one that "arises out of" the employment if it is a natural and reasonable incident thereof and it is "in the course of employment" if the action occurs within a period of employment at a place where the employee may reasonably be fulfilling the duties of employment. Generally, injuries sustained by an employee while going to or coming from work do not arise out of and in the course of employment. . . . While this is the general rule, the principle may be modified by the particular facts, circumstances and situations resulting in various and varied exceptions in order to accommodate both the employer and the employee.

An exception to this general rule involves an employee whose work entails travel away from the employer's premises. In the case of a traveling employee, the employee is considered to be in the course of his employment continuously during the trip except when a distinct departure on a personal errand is shown. When an employee abandons his employment and engages in work or pleasure purely his own, his employer is not liable for any accidental injuries sustained by the employee while so engaged because the accident does not arise out of and in the course of the employee's employment.

Doerr v. Teton Transp., Inc., 258 S.W.3d 514, 522-523 (Mo. App. S.D. 2008) (internal citations omitted).

It does not matter that employee's travel did not require an overnight stay or did not involve traveling a great distance. Custer v. Hartford Ins. Co., 174 S.W.3d 602, 611 (Mo. App. W.D. 2005).

Employer paid for employee's fees and expenses in connection with his travel to and from and attendance at the SLAA meetings and derived benefit fro