Bryan Hedrick v. Big O Tires

Injury No. 11-058168

Employee: Bryan Hedrick

dispute, see, e.g., Hutson v. Treasurer of Mo., 365 S.W.3d 269 (Mo. App. 2012), Boyer v. National Express Co., Inc., 49 S.W.3d 700 (Mo. App. 2001), and Lawson v. Emerson Electric Co., 809 S.W.2d 121 (Mo. App. 1991).

Injury arising out of and in the course of employment

Section 287.020.3(2) RSMo provides as follows:

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.

We agree with the administrative law judge's conclusion that employee's injuries did not arise out of and in the course of the employment. The mere presence of dangerous materials on the jobsite, combined with the fact that coworkers occasionally engaged in mild horseplay that did not involve those dangerous materials, is, in our view, insufficient to show that employee's injuries came from a hazard or risk related to the employment, or one to which workers were unequally exposed outside of and unrelated to the employment in normal nonemployment life.

Simply stated, the risk or hazard from which employee's injuries came was employee's own voluntary choice to engage in a spontaneous, unprecedented, and potentially deadly act when he lit a can of industrial adhesive on fire. This risk or hazard is as "unrelated" to employee's employment for employer as was the risk or hazard of the Johme employee's ankle twisting/falling off her sandal. See Johme, 366 S.W.3d at 511. That is to say: the risk bears almost no relation to the employment whatsoever. Any employee can choose to mishandle or misuse dangerous materials in such a way as to introduce new risks and hazards into the workplace; but this choice, standing alone, is insufficient to implicate workers' compensation liability for consequent injuries sustained by such an employee.

Employee asks us to accept as mere "horseplay" his action of lighting the can of adhesive on fire, but we are not persuaded. Employee's action went far beyond the rather mild practical jokes described by other witnesses, such as greasing a doorknob or blowing compressed air under a door. Indeed, employee expressly denied he had ever participated in any horseplay that he would consider to be dangerous; on the other hand, he readily admitted that lighting a can of adhesive on fire was unquestionably dangerous. Transcript, page 28.

We additionally wish to make clear that our decision herein should not be read as precluding workers' compensation liability on the part of employer for coworkers who are injured by other employees' dangerous acts. Here, the record reveals that Steve Milazzo, who was innocently performing his job duties when employee lit the can of adhesive in

Mr. Milazzo's hand on fire, suffered very severe injuries. From Mr. Milazzo's perspective, we can easily conclude that his injuries resulted from a risk or hazard that was directly related to his employment: the risk of working alongside an individual who would on July 28, 2011, choose without warning to engage in an unprovoked, unexplained, and exceedingly dangerous act. We additionally note that the language of Chapter 287 as construed by the Missouri courts has long compensated employees injured in neutral or unexplained assaults at the workplace; it would appear that Mr. Milazzo's case may fall within such parameters. See, e.g., § 287.120.1 RSMo and Flowers v. City of Campbell, 384 S.W.3d 305 (Mo. App. 2012).

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued November 20, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 22nd \qquad$ day of June 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 administrative law judge's award should be reversed.

Employee worked in employer's tire shop as a general mechanic. It is uncontested that the management at the tire shop permitted an atmosphere of continual horseplay and goofing off. For example, employees would grease doorknobs making them difficult to turn, snap grease rags at each other, and deliver startling blasts of compressed air underneath the bathroom door, among other such japes and tomfoolery. Despite the fact that employer's workplace housed many dangerous tools and materials, including a number of flammable substances and sources of open flame, employer's management permitted employees to continually horse around in potentially dangerous ways. As a result, I find that the atmosphere of horseplay became a fundamental condition of employee's work for employer.

On July 28, 2011, employee activated his personal lighter near a jar of adhesive held by a coworker, Steve Milazzo. At first this produced only mild sparks and flame, but suddenly the entire jar of adhesive exploded, causing both employee and Mr. Milazzo to suffer severe injuries. The only available evidence suggests that employee's activating his lighter near the can of adhesive was done in jest/horseplay-Mr. Milazzo testified that employee was smiling and laughing at the time. There is no evidence to suggest that employee had any evil intent; instead, it appears to me that employee was surprised when the entire jar caught fire, and that he meant merely to startle Mr. Milazzo. In other words, employee was simply participating in the atmosphere of continual horseplay that had become fundamental to employer's workplace culture.

Section 287.020.3(2) RSMo provides as follows:

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.

It goes without saying that the accident of July 28, 2011, caused employee's claimed injuries; I conclude therefore that paragraph (a) above is satisfied. Turning to paragraph (b), I must consider whether employee's injuries did 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. I am convinced that they did not, because his injuries came from a hazard or risk that was directly related to

his employment for employer: an atmosphere of continual and potentially dangerous horseplay.

In Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463 (Mo. App. 2010), the Missouri Court of Appeals, Southern District, held that:

[T]he application of [§ 287.020.3(2)(b)] involves a two-step analysis. The first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and injury is integral to the performance of a worker's job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life.

Id. at 467 .

I acknowledge that in the case of Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 510-11 (Mo. 2012), the Supreme Court of Missouri focused on the unequal exposure requirement (or second step of the test set forth above), but I do not read the Johme decision to diminish the precedential value of Pile, for several reasons. First, and most importantly, our Supreme Court could have simply overruled Pile in the Johme decision if it had wished to do so, but it did not. That our highest court declined to overrule a decision which the Missouri Court of Appeals, Eastern District, discussed in its de