Gary Boothe v. DISH Network, Inc.

**Injury No.:** 17-053996

**Employee:** Gary Boothe

**Employer:** DISH Network, Inc.

**Insurer:** Indemnity Insurance Co. of North America

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090, RSMo, the Commission reverses the award and decision of the administrative law judge.

Employee worked as an installer for a telecommunications employer. He drove a company van, which he took to his home every night near Licking, Missouri. Employee worked Sundays through Wednesdays. On those days, employee had to check in between 7:10 and 7:15 a.m. in order to obtain his route for the day, including a list of equipment required for the different jobs of the day. Employee then had fifteen minutes to load the company van with the required equipment. Employer expected employee to leave his home by 7:35 a.m. so that he could arrive at his first assignment near 8:00 a.m.

On the morning of Sunday, July 23, 2017, employee checked his work schedule at 7:15 a.m., as normal, and learned that his first appointment was in Plato, Missouri, approximately 30-45 minutes away on Highway 32. Employee started the company van at 7:19 a.m. and started driving around 7:26 a.m. We find that employee was not in a hurry to his first appointment of the week as of the time he left his home. By 7:31 a.m., employee had stopped just down the road from his home for a couple of minutes before continuing.

Prior to leaving Licking, Missouri, employee decided to stop at a convenience store around six miles from his home in order to purchase two packs of cigarettes, a soda, and a breakfast sandwich. Employee left the convenience store around 7:41 a.m. At 7:47 a.m., within a mile after continuing his trip towards Plato, Missouri, employee choked on his breakfast sandwich, blacked out, and crashed into a short pillar that lined a residential driveway near the side of Highway 32. Employee sustained injuries to his back and neck. Employee was still 23-24 miles away from his first appointment.

Employee could have eaten breakfast prior to leaving his home, even prior to checking his schedule at 7:15 a.m., but chose not to. Employee explained in his testimony that he did not eat breakfast prior to leaving for his first weekly assignment because he was not a morning person. Employee's breakfast was often in the form of toaster pastries. When employee's wife did not need to go to her own job as a cook for a school district, employee's wife often helped employee with breakfast. Because it was Sunday, employee's wife was home on July 23, 2017.

Injury No.: 17-053996

Employee: Gary Boothe

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Employer had a policy prohibiting employee from eating or drinking while driving. Employee knew about this policy. Employer had given employee a warning on November 24, 2014 against distracted driving, including eating while driving.

**Conclusions of Law**

**Employee's Injury did not Arise out of Employment**

Section 287.020.3(2), RSMo, provides: "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.

In determining the risk source in this matter, we turn for guidance from the Missouri Supreme Court by comparing this matter to the Court's decision in *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504 (Mo. 2012). In *Johme*, the employee suffered an injury when she turned and twisted her ankle after she made a pot of coffee. The Court stated:

> In *Johme's* case, the Commission erred in focusing its assessment on whether Johme's activity of making coffee was incidental to her employment. The evidence did not link her act of making coffee as the cause of her injury and fall. Instead, the issue in *Johme's* case was whether the cause of her injury—turning and twisting her ankle and falling off her shoe—had a causal connection to her work activity other than the fact that it occurred in her office's kitchen while she was making coffee. The assessment of *Johme's* case necessitated consideration of whether her risk of injury from turning, twisting her ankle, and falling off her shoe was a risk to which she would have been equally exposed in her "normal nonemployment life." In her case, no evidence showed that she was not equally exposed to the cause of her injury—turning, twisting her ankle, or falling off her shoe—while in her workplace making coffee than she would have been when she was outside of her workplace in her "normal nonemployment life."

*Johme*, 366 S.W.3d at 511. In clarifying the relevant hazard or risk, we cannot disregard the particular circumstances of the case. *Young v. Boone Elec. Coop.*, 462 S.W.3d 783, 790 (Mo. App. 2015).

Injury No.: 17-053996

Employee: Gary Boothe

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In short, the source of the risk in *Johme* was the employee's decision to twist while turning that resulted in her injury; even if that employee was able to perform the same action in prior occasions without injury is irrelevant because there was always the inherent risk of injury from twisting while turning. In applying the *Johme* analysis to this matter, we find that the risk source, or the action that posed this inherent risk of injury in this matter was employee's decision to eat breakfast while driving. By eating breakfast while driving, employee risked choking on his food, which resulted in him blacking out and crashing. Whether employee, or anyone else for that matter, was able to eat breakfast while driving without injury in the past is irrelevant.

> "The equal exposure consideration should center on whether the employee was injured because he or she was at work, rather than simply while he or she was at work." *Mo. Dep't of Soc. Servs. v. Beem*, 478 S.W.3d 461, 467 (Mo. App. 2015) (emphasis in original) (citing *Scholastic, Inc. v. Viley*, 452 S.W.3d 680, 686 (Mo. App. 2014)).

"A worker's compensation award is permitted only if evidence shows a causal connection to employment other than the fact that the injury occurred at work." *Pope v. Gateway to the W. Harley Davidson*, 404 S.W.3d 315, 321 (Mo. App. 2012).

Here, there was no causal connection to work given the particular circumstances of this matter. There was no aspect of employee's work that required him to eat breakfast while driving. In fact, employer prohibited employee from eating and drinking while driving. Employer acknowledged in oral argument that it is possible for employees to have little time during the day to eat lunch between appointments, especially if one appointment takes longer than expected and the next appointment is a good distance away. In such cases, though against employer's policy, employees may feel pressured to eat lunch while driving to the next appointment.

However, breakfast is different, and the particular circumstances of this case show that employee had the ability to eat his breakfast prior to his first shift for the week instead of waiting until a few minutes after he clocked in and started driving. Employer had a policy against eating while driving, which would include a prohibition of eating breakfast while driving. Employee had barely started his first shift for the week. There was no evidence that employee was rushed to get to his first appointment, or if there was any rush, it was not due to the nature of employee's work. Employee chose to check his schedule at 7:15 a.m., when the window to check a schedule started at 7:10 a.m. Employee left around 7:26 a.m. to travel a 30-45 minute drive to his first appointment. Around 7:41 a.m. and around 24-25 miles from his first appointment, employee decided to make a stop for two packs of cigarettes, a soda, and a breakfast sandwich. Employer did not cause employee to stop for two packs of cigarettes, a soda, and a breakfast sandwich. It was employee's decision. Therefore, if there was any rush to get to his first appointment for the week, employee caused the problem by stopping for cigarettes, soda, and breakfast. There was no causal connection to employment other than the fact that employee had already clocked in. Therefore, employee did not satisfy the requirements of § 287.020.3(2)(b), RSMo.

Employee argues that the personal comfort doctrine establishes the causal connection with work because:

MNKOI 0000811611

Injury No.: 17-053996

Employee: Gary Boothe

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[t]he inevitable acts of human beings in ministering to their personal comfort while at work, such as seeking warmth and shelter, heeding a call of nature, satisfying thirst and hunger, washing, resting or sleeping, and preparing to begin or quit work, are held to be incidental to the employment under the personal comfort doctrine.

*Kunce v. Junge Baking Co., 432 S.W.2d 602, 609 (Mo. App. 1968)*

In fact, the personal comfort doctrine is intertwined with a long line of cases holding that "injuries occurring on the premises during a regular lunch hour arise 'in the course' of employment, even though the interval is technically outside the regular hours of employment ... if such injury is traceable to dangers inherent in the employment environment." *Daniels v. Krey Packing Co., 346 S.W.2d 78, 83 (Mo. 1961)* (citing Larson's Workmen's Compensation Law, Vol. 1, §§ 21.21(a)-(b), pp. 298-301); see also *Jones v. Bendix Corp., 407 S.W.2d 650, 652 (Mo. App. 1966)* ("arising ... in the course of his employment" requires only "that the task in which the employee was engaged, and as a result of which he was injured, was incident to the conditions of work ... of which his employer might reasonably have knowledge or reasonably anticipate"; holding personal comfort qualifies). Thus, the personal comfort doctrine is linked to those injuries occurring on the employer's premises as defined by statute. Cf. *Daniels, 346 S.W.2d at 83* (injuries sustained during trip away from employer's premises for lunch is not compensable).

*Wright v. Treasurer of Mo., 484 S.W.3d 56, 62 (Mo. App. 2015)*

However, if the personal comfort doctrine was not abrogated by the legislature in the 2005 amendments,[^1] it does not apply in this case because there was no benefit to employer for employee to stop a few minutes into his first shift of the week in order to pick up a breakfast sandwich so that he could eat breakfast while driving.

Activities for the comfort or convenience of the employee are considered incidental to employment when they occur within reasonable limits of time and place because they benefit the employee and thereby indirectly benefit the employer.

*Cox v. Tyson Foods, 920 S.W.2d 534, 537 (Mo. 1996)* (quoting *Davison v. Florsheim Shoe Co., 750 S.W.2d 481, 484 (Mo. App. 1988)*.

Employee had the ability to eat breakfast prior to starting his shift. By stopping shortly after the start of his 30-45 drive when he only had 30 minutes to get to his first appointment of the week, employee caused himself to be behind schedule.

[^1]: The *Johme* decision did not reach the personal comfort doctrine because the risk source was not related to making coffee, but turning while twisting. We do not presume that the Court's decision in *Johme* not to discuss the personal comfort doctrine means that the doctrine is alive and well. The Missouri Supreme Court's decision merely did not need to reach the personal comfort doctrine.

Employee: Gary Boothe

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Furthermore, by eating breakfast while driving, employee violated