Rex Wilkerson v. CMMG, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-104108

**Employee:** Rex Wilkerson

**Employer:** CMMG, Inc.

**Insurer:** National Union Fire Insurance Company of Pittsburgh

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 8, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued February 8, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **22nd** day of August 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

**CONCURRING OPINION FILED**

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Impry No.: 13-104108

Employee: Rex Wilkerson

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 affirmed.

However, the statutory language referring to a forfeiture of benefits is troublesome to the extent it may be interpreted to mean that the workers' compensation law is the exclusive remedy for these types of injuries and that there is no remedy, even when the voluntary recreational activity is encouraged by employer and is on employer premises. Such a result would appear to be unconstitutional. I agree with the decision on the presumption that § 287.120.7 RSMo merely holds this class of injuries to be not covered by the Missouri Workers' Compensation Law and that a common law cause of action may be available.

Missouri's constitution requires, "[t]hat the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay." Mo. Const. art I, § 14. Therefore, there must be a remedy for this class of injuries.

The Missouri Supreme Court clarified that when a cause of action does not fall under the workers' compensation laws, there are still other available remedies under the common law. See *Mo. Alliance for Retired Ams. v. DOL & Indus. ReIs., Div. of Worker's Comp.*, 277 S.W.3d 670 (Mo. banc 2009). In that decision, the court analyzed the exclusivity provisions of § 287.120.1 and .2, RSMo, and determined that such do not bar common law remedies for matters that are not narrowly defined within the workers' compensation statutes.

[T]his means that if an "injury" comes within the definition of the term "accident" as defined in section 287.020.2, then it is included within the exclusivity provisions of the act, and recovery can be had, if at all, only under the terms set out in the act. If the "injury" is one that is not included within the term "accident" as defined in the act, however, then under section 287.120.1 an employer shall not be liable to the employee under the act and the injury, therefore, is not subject to the exclusivity provisions of the act, as section 287.120.2 makes quite clear in stating "the rights and remedies herein granted to an employee shall exclude all other rights and remedies" only "on account of such accidental injury or death," and that it does not apply to "rights and remedies as are not provided for by this chapter."

*Id.*, at 679. The court continued to hold that "[w]orkers excluded from the act by the narrower definition of 'accidental injury' have a right to bring suit under the common law, just as they could and did prior to the initial adoption of the act." *Id.*, at 680.

Injury No.: 13-104108

Employee: Rex Wilkerson

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Taking this analysis to the case at hand, the exclusivity provisions of § 287.120.7 RSMo, proscribe a narrow set of circumstances for which an employer is liable for injuries "[w]here an employee's participation in a recreational activity or program is the prevailing cause of the injury ..." For any instance regarding a recreational activity injury that falls outside of the narrowly defined terms of the statute, all other rights and remedies pursuant to common law still exist for the injured employee, just as they did prior to the adoption of § 287.120.7, RSMo. With that understanding, the decision of the administrative law judge should be affirmed.

I affirm as supplemented herein the administrative law judge's award denying benefits.

Curtis E. Chick, Jr., Member

Employee: Rex Wilkerson

Employer: CMMG, Inc.

Insurer: National Union Fire Insurance Company of Pittsburgh

Hearing Date: December 5, 2017

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/cs

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: Alleged as May 23, 2013.
5. State location where accident occurred or occupational disease was contracted: Alleged as Howard County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? No.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee injured the fingers on his right hand playing volleyball during an unpaid lunch period. This is not a compensable accident per Section 287.120.7, RSMo.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Alleged to be right upper extremity.
14. Nature and extent of any permanent disability: Not applicable.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: $\ 410.00.
2. Weekly compensation rate: $\ 273.33.
3. Method wages computation: Stipulation.

Per the mandate of Section 287.120.7, RSMo, benefits and compensation are forfeited. No compensation is payable. The claim is denied in full.

Hearing Date: December 5, 2017

The evidentiary hearing in this case was held on December 5, 2017, in Columbia. Rex Wilkerson ("Claimant") appeared personally and by counsel, Rick Montgomery. CMMG, Inc. ("Employer") appeared by counsel, Taylor Leonard. National Union Fire Insurance Company of Pittsburgh ("Insurer") appeared by counsel, Taylor Leonard. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on January 12, 2018.

The hearing was held to determine the following issues:

1. Whether Claimant sustained an accident arising out of and in the course of his employment with the CMMG, Inc. on May 23, 2013;
2. Whether the notice requirement of Section 287.420 serves as a bar to the claim for compensation;
3. If found to have been sustained, whether the work accident of May 23, 2013, was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
4. The liability, if any, of Employer-Insurer for permanent partial disability benefits;
5. The liability, if any, of Employer-Insurer for reimbursing Claimant for past medical expenses; and
6. The liability, if any, of Employer-Insurer for future medical benefits.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this claim;
2. That venue for the evidentiary hearing is proper in Howard County and adjoining counties, including Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;

**Employee:** Rex Wilkerson

**Injury No. 13-104108**

1. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;

1. That Claimant's average weekly wage is 410.00 with compensation rates of 273.33 for temporary total disability benefits and permanent total disability benefits, and $273.33 for permanent partial disability benefits;

1. That Employer-Insurer paid no medical benefits;

1. That Employer-Insurer paid no temporary disability benefits;

1. That National Union Fire Insurance Company of Pittsburgh fully insured CMMG, Inc. for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of Claimant, Rex Wilkerson, as well as the deposition testimony of Rex Wilkerson; the narrative report and deposition testimony of Dr. Raymond Cohen; the testimony of Tyson Bradshaw, Employer's operations manager; the testimony of Kathryn D. Bartelt, Employer's human resources manager; medical records; and medical bills.

Employer and Insurer offered into evidence "Exhibit C", a narrative report of Dr. Garth Russell. Claimant objected to its admission on hearsay grounds and relevance grounds. That objection was sustained. Exhibit C was not a treatment or diagnostic record, but rather an independent medical examination report. It was not offered as a "sixty-day" report pursuant to Section 287.140.7, and no "sixty-day" letter was produced. Exhibit C is clearly hearsay and not admissible. Exhibit C was not admitted into evidence.

Employer and Insurer offered into evidence "Exhibit D", two pages of records from Advanced Radiology of Columbia. Claimant objected to its admission on hearsay grounds and relevance grounds. That objection was sustained. Exhibit D is a radiologist's report of an MRI of the lumbar spine. There is no claim in this case for injury to Claimant's lumbar spine; the claim in this case is for the right upper extremity only. Exhibit D has no relevance whatsoever to the issues in this case. Exhibit D was not admitted into evidence.

Rex Wilkerson ("Claimant") was born February 10, 1964. Claimant began working for CMMG, Inc. ("Employer") in 2010. Employer's business in located in rural Howard County, Missouri; Employer's business is the manufacture of assault rifles. Claimant left Employer's employ for a brief period of time in 2011 to work in Sedalia. Claimant returned to work for Employer later in 2011, and Claimant remained employed with Employer until his termination in September 2013. While working for Employer, Claimant was allowed a paid break in the morning and another paid break in the afternoon. He had one hour for lunch, which was unpaid. Claimant (and other employees) were allowed to leave the premises during the unpaid lunch. Claimant testified that he often spent the unpaid lunch break eating in his car in the parking lot.

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**Employee:** Rex Wilkerson

**Injury No. 13-104108**

John Overstreet and Jeff Overstreet are co-owners of CMMG, Inc. They are brothers, and employees often refer to them (jointly) as "the brothers". There is a volleyball court on Employer's premises. The brothers enjoyed playing volleyball during lunchtime and other employees were allowed (perhaps even encouraged) to play. Claimant testified that the volleyball matches could be very rough; Claimant referred to the style of play as "combat volleyball". While Claimant testified that volleyball was "something everybody did at lunch", that is clearly not the case. Some employees did not play at all, some played rarely. The brothers did not play every day, even when the weather was good.

Claimant alleges an injury to his right upper extremity as a result of playing volleyball at lunch on May 23, 2013. There were only four or five people playing volleyball at the time, according to Claimant's testimony. Claimant testified that "the brothers" were not playing volleyball at lunch on May 23, 2013. Claimant testified that someone on the other side of the net went up to slam the ball down at him and that he (Claimant) extended his arm to block the ball, injuring the fingers on his right hand. (Claimant is also alleging injury to his entire right arm, (including the shoulder.) Claimant testified that he reported the injury to "Brooks", his acting supervisor, who was also playing volleyball at the time. Employer is denying the claim in full, and no benefits have been paid.

I find that the application of Section 287.120.7 to the facts of this case warrants a forfeiture of benefits under Chapter 287, the Missouri Workers Compensation Law. That section reads 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.

Claimant's own testimony clearly shows that Claimant's participation in the lunchtime volleyball match is the sole cause of Claimant's (alleged) injury. Therefore, I find that Claimant's participation in the lunchtime volleyball match is the prevailing cause of Claimant's (alleged) injury. While the statute itself does not define "recreational activity or program", *Miles v. Lear Corporation*, 259 S.W.3d 64 (Mo. App. E.D. 2008) involved an injury sustained during a

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rex Wilkerson

Injury No. 13-104108

lunchtime basketball game; the Miles court found that Section 287.120.7 applied to such activity. I find that a lunchtime volleyball match is likewise a "recreational activity or program." Therefore, Claimant's "benefits or compensation otherwise payable under" the Missouri Workers' Compensation Law "shall be forfeited". While I have not made a determination that Claimant would otherwise be entitled to any benefits or compensation, there is no reason to make such a determination - any amount of benefits or compensation, no matter how big or small, are forfeited. The fact that Employer may have promoted or supported lunchtime volleyball matches makes no difference under the statute; the benefits are still forfeited. There are only three exceptions to this forfeiture rule, and none of them apply here. Claimant admits that he was never directly ordered by anyone to participate in volleyball activities. Claimant admits that the alleged injury occurred during a volleyball match during his unpaid lunch hour. There is absolutely no evidence that Claimant's alleged injury occurred due to an unsafe condition on Employer's premises.

Claimant's "benefits or compensation" under the Missouri Workers' Compensation Law (if any) are forfeited. Thus, no benefits can be awarded; no compensation can be awarded. All other issues are moot.

ORDER

Claimant's claim for compensation is denied in full.

I certify that on 2-8-18 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

Made by __________________________

Robert J. Dierkes

Administrative Law Judge

Division of Workers' Compensation

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