Scott Beine v. County of St. Charles

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-102159

Employee: Scott J. Beine

Employer: County of St. Charles

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 29, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued April 29, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 17^{\text {th }}$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

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 (ALJ) should be reversed and employee should be awarded permanent partial disability benefits.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and I adopt the same to the extent they are not inconsistent with this dissent.

The ALJ and the majority found: 1) employee's injury did not arise out of or in the course of his employment; 2) employee is not entitled to collect benefits or compensation under § 287.120.7 RSMo, the recreational activity provision; and 3) the mutual benefit doctrine does not apply to this case because employer did not derive any benefit from employee's participation in the Sheriff's Association's charity golf tournament. I disagree with said findings.

The first issue to address is whether employee's injury arose out of and in the course of his employment.

In the earliest days of our workers' compensation law the phrase "arising out of and in the course" of was not defined. When deciding the cases under the new law, Missouri courts turned to the law of states with more mature workers' compensation laws to see how the phrase was interpreted in those states.

The consensus of authority is to the effect that an injury to an employee arises "in the course of" his employment, when it occurs within the period of his employment, at a place where he might reasonably be, and while he is reasonably fulfilling the duties of his employment, or engaged in the performance of some task incidental thereto. Necessarily, the converse of the rule must also apply, so that, where, at the time his injury is received, the employee is engaged in a voluntary act, not known to, or accepted by, his employer, and outside of the duties for which he is employed, the injury cannot be said to have been received in the course of his employment.

Likewise it is commonly held that an injury may be said to arise "out of" the employment, when it is reasonably apparent, upon a consideration of all the facts and circumstances, that a causal connection exists between the conditions under which the employee's work is required to be done, and the resulting injury. In other words, an injury arises out of the employment if it is a natural and reasonable incident thereof, even though not forseen or anticipated; but, in all events, it must be the rational consequence of some hazard connected therewith. ${ }^{1}$

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[^0]: ${ }^{1}$ Smith v. Levis-Zukoski Mercantile Co., 14 S.W.2d 470, 472 (Mo. App. 1929) (internal citations omitted).

In deciding whether an injury arose out of and in the course of employment, courts expanded the interpretation of said phrase to include injuries "suffered by an employee while performing an act for the mutual benefit of the employer and the employee." This interpretation became a rule known as the mutual benefit doctrine. Application of the mutual benefit doctrine became quite prevalent. Courts even went so far as to say that the rule "is applicable even though the advantage to the employer is slight."

In 1993, the legislature enacted a statutory fence around the meaning of "arising out of and in the course of employment." By its terms, the change did not abrogate the basic common law meaning of the phrases, but merely defined the outer limits of the meanings.

287.020.3(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;

After the 1993 amendment, courts used the common law meanings and statutory limits together to determine when an injury arose out of and in the course of employment.

In 2005, the legislature again amended the language of $\S 287.020 .3(2)$.

287.020.3(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The legislature also abrogated all cases dealing with the topic: "In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of 'accident', 'occupational disease', 'arising out of', and 'in the course of the employment' to include, but not be

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[^0]: ${ }^{2} Wamhoff v. Wagner Elec. Corp., 354 Mo. 711, 718 (Mo. banc 1945).

{ }^{3}$ Id. at 719 .

limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases." ${ }^{4} Without the underlying common law meanings, \S 287.020(2)$ has become a statutory definition.

As stated above, early in the life of our workers' compensation system, courts adopted the mutual benefit doctrine. By the facts of the instant case, we are faced with the question of whether the mutual benefit doctrine is consistent with the statutory definition of $\S 287.020 .3(2)$ RSMo. I think that it is.

The rationale of the doctrine is that there are certain activities that employees engage in that involve a benefit that inures not only to the employee, but to the employer as well. Thus, where the act that resulted in the injury is of some actual, substantive benefit to the employer and not merely some conceivable benefit, the risks arising from said act are risks related to the employment.

I find this rationale is still sound and is consistent with § 287.020.3(2).

In this case, employee was injured during a golf tournament, which serves as the sole fundraiser for the Sheriff's Association's annual year-end "Shop-With-A-Deputy" event (shopping event). In this shopping event, St. Charles County Deputy Sheriffs shop with underprivileged children to provide them with clothing and toys.

It is obvious in this instance that employee derived some benefit with respect to his participation in the charity golf tournament. He was among friends and co-workers, enjoying a round of golf. After a review of the evidence, it is also obvious that employer derived a substantive benefit from employee's participation.

Professor Kenneth J. Novak of the University of Missouri-Kansas City Department of Criminal Justice and Criminology testified that the employer benefited from the officers' participation in the shopping event in that it promotes positive police/public encounters and encourages trust between youth and the police. Professor Novak went on to state that employer benefited from a program such as this because positive interactions with police are critical to help the police with crime prevention and law enforcement.

It follows then, that the activities involved with the sole fundraiser that makes the shopping event possible are also activities that benefit employer.

In demonstrating the "nexus" between the association's golf tournament/shopping event, it is worth noting the Sheriff Department's substantial investment of resources in said events. The Sheriff's Department allows the officers participating in the shopping event to appear in uniform and use department vehicles for transportation. In the past, the department's Mobile Command Unit vehicle was used and the Canine Unit dog appeared. In addition, the Sheriff's Department presumably allows the officers to

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[^0]: ${ }^{4} \S 287.020 .10$ RSMo.

Enployee: Scott J. Beine

- 4 -

coordinate their "on duty" work schedules to allow time for the organizing members to set up and participate in both the golf tournament and the shopping event.

The Sheriff's Department would not authorize the use of said resources if it did not derive a substantive benefit from the golf tournament/shopping event.

For the foregoing reasons, I find that the mutual benefit doctrine is applicable to this case and, therefore, employee's accident and resulting injury and disability arose out of and in the course of his employment.

Golf Tournament Not a Recreational Activity

The ALJ and majority also found that employee is denied benefits under § 287.120.7 RSMo, the recreational activity provision. Section 287.120.7 RSMo provides as follows:

Where the employee's participation in a recreational activity or program is the prevailing cause of the injury, benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited regardless that the employer may have promoted, sponsored or supported the recreational activity or program, expressly or impliedly, in whole or in part. The forfeiture of benefits or compensation shall not apply when:

(1) The employee was directly ordered by the employer to participate in such recreational activity or program;

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

(3) 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.

The ALJ and majority concluded that the golf tournament was a recreational activity that did not qualify for exclusion under any of the subsections of § 287.120.7.

As employee argued in his brief, neither the Missouri Workers' Compensation Law nor the courts have clearly defined the term "recreational activity." *Graham v. La-Z-Boy Chair Co.*, 117 S.W.3d 182, 185 (Mo. App. 2003). In *Graham*, the court concluded that the activity involved is not to be deemed "recreational" for purposes of § 287