Lantie Wilson v. Buchanan County

but of and in the course of his employment. We affirm the award of the administrative law judge, as supplemented herein.

Employer's chief contention in this matter is that employee's injury did not arise out of and in the course of employment. Section 287.120.1 RSMo, provides that "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." 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 cause or origin, and the "course of employment" portion to the time, place, and circumstances of the accident in relation to the employment. See Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. App. 2009). Employer raises several arguments intended to show that the time, place, and circumstances of employee's accident bar employee's claim; we address them individually below.

First, employer contends that employee's injury did not arise out of and in the course of his employment because he fell before 3:00 p.m., the start of his scheduled shift. This argument fails. As we have previously held, and as indicated in Henry v. Precision Apparatus, Inc., 309 S.W.3d 341, 342 (Mo. App. 2010), an employee does not necessarily have to be "clocked in" to sustain an injury arising out of and in the course of employment. Employer also argues the same facts prevent employee proving an "accident" for purposes of $\S 287.020 .2$ RSMo, citing that section's language defining an accident as an event "during a single work shift." But the term "single work shift" is not defined and we decline to read it as imposing a requirement that an employee be clocked in-or that this employee must have been injured after 3:00 p.m.-to be eligible for workers' compensation benefits. We agree with the administrative law judge and credit employee's testimony and find that employee was on duty when he entered the parking lot owned by employer.

Second, employer argues that because employee's injuries resulted from his falling in an icy parking lot, we must deny employee's claim under Hager v. Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010). We agree with the administrative law judge that Hager is not applicable to these facts. The employee in Hager had finished his work duties, clocked out, left employer's premises, and was traversing a parking lot not owned or controlled by his employer on his way to his personal vehicle to go about his own affairs for the evening, when he fell on ice. Id. at 772. Here, employee was on duty by virtue of his arrival at employer's premises, was traversing an icy parking lot controlled by employer, and was engaged in an activity related to his work (as will be further explained below) when he fell. We also note that employer's argument fails to properly take into account the more recent decision in Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463 (Mo. App. 2010), which made clear there is no need to engage in the "equal exposure" analysis under § 287.020.3(2) (b) where the risk or hazard is not "unrelated to the employment" for purposes of that section. See Pile, 321 S.W.3d at

1. Here, the risk that resulted in employee's injuries was that of walking through a parking lot covered with ice-or, in other words, the act of navigating a specific physical condition of employer's premises. Employee had to face this risk by virtue of his reporting to work his shift for employer on December 12, 2008. We conclude, therefore, that this risk was related to employee's work.

Third, employer argues that employee was injured while performing a task for his own benefit, and thus the mutual benefit doctrine does not apply here. As a preliminary matter, we note that the mutual benefit doctrine (an exception to the "going and coming" rule, see Rogers v. Pacesetter Corp., 972 S.W.2d 540, 543 (Mo. App. 1998)) is not implicated on these facts. Employee was injured on employer's premises while he was on duty, so there is no reason to consult the mutual benefit doctrine, special hazard rule, extension of premises doctrine, or any other exception to the going and coming rule. (Nor, for that matter, is there any need to discuss the viability of these doctrines after the 2005 amendments). Thus, while employee's intent and the nature of his activities at the time he fell are certainly relevant factors, we need not view them through the lens of the mutual benefit doctrine.

It appears what employer is really arguing is that employee deviated from the course of his employment for employer when, instead of heading straight into his Sergeant's office (as was his usual routine), he went around the back of his car to check for damage to a coworker's vehicle parked nearby. Employer points to employee's testimony that he was going to look at the detective's vehicle "for [his] own benefit." The full exchange is set forth below:

Q. Okay. And I didn't-I'm going to go back because forgot to ask this. What was the main reason that you were going to go look at this detective's vehicle. Why were you doing that?

A. To see if I could tell if it had been scraped or not and what color, maybe, it was.

Q. And why were you the one that was doing that?

A. For my own benefit in case the sheriff or the undersheriff wanted to ask me about it because a county car had been damaged.

Transcript, page 16.

Employer characterizes employee's behavior as an "attempt to clear his name in a possible hit and run on the premises by looking at the vehicle hit before his work shift started." Employer's Brief, page 17. But we do not read the foregoing testimony as proof that employee deviated from his work in favor of a purely personal mission to "clear his name." Rather, it's clear to us from employee's testimony-and we so findthat his purpose in seeking information about possible damage to the coworker's car was to be better able to answer his supervisors' questions if he was approached about the incident, or, in other words, to gather information in anticipation of an issue arising at his work. Employee had a good reason to believe such an issue might arise, as he'd

Overheard his license plate being run in connection with his vehicle having been near the damaged car. So, after arriving at work on December 12, 2008, employee started walking over to take a look at his coworker's car in order to gather information that he had a good reason to believe would have important implications as to his work—specifically, his working relationships with the coworker and his supervisors. This activity is not like volunteering one's assistance to a coworker engaged in performing a personal vehicle repair, as in *Henry*, 309 S.W.3d at 342, nor is it like walking through a parking lot after the work day is over en route to pursue one's personal nightly activities as in *Hager*, 304 S.W.3d at 772. The employees in *Henry* and *Hager* were engaged in activities that were purely personal, with no relation to the work those employees were hired to perform for their employers. Here, on the other hand, we are convinced that employee did not deviate from his work, nor was he on a "frolic" of his own when he went around the back of his car rather than walk straight to his work site.

In sum, we are convinced that the hazard or risk of traversing an icy parking lot was related to employee's employment, and that employee was engaged in a work-related task when he sustained the injuries that came directly from that risk. Accordingly, we affirm the administrative law judge's conclusion that employee suffered an injury arising out of and in the course of his employment.

We supplement the award of the administrative law judge with the foregoing findings and comments. In all other respects, we affirm the award.

The award and decision of Chief Administrative Law Judge Nelson G. Allen, issued November 22, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 14th day of October 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

VACANT Member

Attest:

Secretary

Employee: Lantie Wilson

Injury No.

08-113449

Employer: Buchanan County

Insurer: Missouri Association of Counties

Hearing Date: Se