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

- 2 -

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

- 3 -

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

- 4 -

[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

-5 -

Furthermore, by eating breakfast while driving, employee violated employer's policy. There was no benefit to employer in this matter. Employee's decision to eat breakfast while driving was outside of reasonable limits of time and place. Therefore, the personal comfort doctrine does not apply to show any causal connection with work and employee's decision to eat breakfast while driving.

We conclude that employee's injury did not arise out of and in the course of employment. Because employee did not establish that his injury arose out of and in the course of his employment, we must deny the claim. All other issues are moot.

We reverse the award of the administrative law judge.

Employee's injury did not arise out of and in the course of his employment.

The award and decision of Administrative Law Judge Victorine R. Mahon is attached solely for reference.

Given at Jefferson City, State of Missouri, this 17th day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:


Injury No.: 17-053996

Employee: Gary Boothe

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 as supplemented herein.

The risk or hazard in this matter was related to work. Specifically, the risk or hazard was having to travel on a rural highway in a strict timeline in a DISH van. Under the analysis of *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504 (Mo. 2012), the risk or hazard of traveling on a rural highway in a strict timeline in a DISH van was related to work. This risk was something to which employee was not equally exposed in his non-employment life.

I find this case similar to *Gleason v. Treasurer of the State*, 455 S.W.3d 494 (Mo. App. 2015). In *Gleason*, the claimant was injured after he fell from approximately 20-25 feet above the ground after walking on a railcar. "Gleason fell 20 to 25 feet to the ground because of his required work activity. It was thus not necessary for Gleason to establish why he fell because he had already established that he 'was exposed to an unusual risk of injury that was not shared by the general public.'" *Gleason*, 455 S.W.3d at 502 (emphasis in original).

Here, employee was injured after he blacked out while traveling on a rural highway in a strict timeline in a DISH van. It is not necessary for employee to establish why he blacked out because he had already established that he was exposed to an unusual risk of injury that was not shared by the general public.

I acknowledge that uncertainty may exist following the Missouri Supreme Court's decision in *Johme*, as to the applicability of the personal comfort doctrine. However, I find that the holding of *Wright v. Treasurer of Mo.*, 484 S.W.3d 56, 62 (Mo. App. 2015) controls and applies in this matter. I agree with the analysis of the administrative law judge regarding this doctrine.

Furthermore, employee's decision to eat a breakfast sandwich in his DISH van, contrary to employer's rules, does not alter employer's liability "to furnish compensation under the provisions" of worker's compensation laws. § 287.120.1, RSMo. Employer's liability exists "irrespective of negligence" by employee. *Id.*

For the reasons above, I would affirm the administrative law judge's award allowing benefits. Because the Commission majority has decided otherwise, I respectfully dissent.

*Curtis E. Chick, Jr.*, member

**Employee:** Gary Boothe, Jr.

**Dependents:** Not applicable

**Employer:** DISH Network, Inc.

**Additional Party:** Not applicable

**Indemnity Insurance Co. of North America**

**Hearing Date:** October 3 and October 25, 2018

**Injury No.:** 17-053996

**Before the**

**DIVISION OF WORKERS' COMPENSATION**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Medical Fee Dispute:** No. 17-00778

**Lester E. Cox Health Systems (dismissed)**

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

**Hearing Date:** October 3 and October 25, 2018

**Checked by:** VRM/va

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the law? Yes.

1. Date of accident or onset of occupational disease. July 23, 2017.

1. State location where accident occurred or occupational disease was contracted. Missouri State Highway 32, immediately west of Licking, Missouri.

1. Was above employee in the employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of employment? Yes.

1. Was Claim for Compensation filed within time required by law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work being performed and how accident occurred or occupational disease contracted. Employee was driving to his first customer destination when he choked on a breakfast sandwich, passed out, and struck a small, decorative pillar located next to the highway.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Back, neck, body as a whole.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

1. Nature and extent of any permanent disability. Deferred.

1. Compensation paid to-date for temporary disability. None.

1. Value necessary medical aid paid to-date by employer/insurer? None.

1. Value necessary medical aid not furnished by employer/insurer? 32,567.80.

1. Employee's average weekly wages: 1,378.97.

1. Weekly compensation rate: $919.36 for temporary total disability.

1. Method wages computation: Stipulation.

**COMPENSATION PAYABLE**

1. Compensation payable:

For past temporary total disability:

62 3/7 weeks (437 days) - 13 days of modified duty = 60 4/7 weeks (424 days)

60 4/7 weeks x $919.36 = 55,686.95

55,686.95 minus 30% safety penalty reduction = 38,980.87

For past medical benefits:

32,567.80 minus 30% safety penalty reduction = 22,797.46

For unpaid mileage:

707.00 minus 30% safety penalty reduction = $494.90

**TOTAL:** $62,273.23

1. Second Injury Fund Liability: N/A

1. Future requirements awarded:

Pursuant to § 287.140 RSMo 2016, Employer/Insurer shall provide medical treatment to cure or relieve the effects of the work injury consistent with the recommendation of Dr. Ted Lennard and shall provide ongoing temporary total disability until Claimant is capable of working in the open labor market or reaches maximum medical improvement.

This Award is temporary or partial, it is subject to further order, and these proceedings are continued and shall remain open until a Final Award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent of all payments awarded herein in favor of the following attorney for necessary legal services rendered to the claimant: Patrick J. Platter and the law firm of Neale & Newman, LLP.

WC-32-R1 (6-81)

Page 2

The undersigned administrative law judge conducted a temporary hearing on October 3, 2018. Upon request, the record originally was to remain open until October 19, 2018; however, on October 25, 2018, the parties made additional stipulations. These included the admission of certain exhibits. The record then was closed for purposes of this Temporary Award. Present at the hearing were Gary Boothe (Claimant) with his attorney, Patrick Platter. Regional Operations Manager Joshua Tipton appeared as the corporate representative for DISH Network, Inc. (Employer). Attorneys Daniel Allmayer and Lloyd Raber represented Employer and its insurer - Indemnity Insurance Co. of North America. Attorney Jason Shaffer appeared for Lester E. Cox Health Systems, which had filed an Application for Direct Payment of outstanding medical bills. It dismissed its Application and was excused from further proceedings. The parties stipulated to the following facts and agreed to narrow the issues, as follows:

(1) DISH Network, Inc., is a Missouri employer fully insured by Insurance Indemnity Company of North America at all times relevant to this claim. (2) Claimant, Gary Boothe, Jr., was an employee of DISH Network, Inc. Claimant and Employer were subject to and protected by the Missouri Workers' Compensation Law at all times relevant to this claim. (3) Claimant Boothe suffered an accident on July 23, 2017. (4) Venue by agreement and jurisdiction are appropriate in Greene County, Missouri. (5) Claimant provided notice of his injuries to Employer, consistent with § 287.380 RSMo. (6) Claimant filed a timely Claim for Compensation. (7) Claimant's average weekly wage was $\ 1,378.97, yielding a compensation rate of $\ 919.36 for temporary total disability. (8) No benefits have been paid.

(9) No claim has been filed against the Second Injury Fund.

(10) On October 25, 2018, the parties further stipulated:

a) DISH paid 13 days of wage under modified duty which should be credited toward any past temporary total disability benefits owed;

b) $\ 343.88 should be deducted from the amount originally claim for medical expenses, reducing the claimed amount to $\ 32,567.80.

(1) Did Claimant suffer injuries arising out of and in the course of his employment?

(2) Are Claimant's alleged injuries medically and causally related to the work accident?

(3) What, if any, is Employer/Insurer's liability for past temporary disability?

(4) What, if any, is Employer/Insurer's liability for past medical expenses?

(5) Does Employer/Insurer have liability for future medical treatment?

(6) Should a penalty be applied for a safety violation?

(7) Is Employer/Insurer liable for future and ongoing temporary disability benefits?

(8) Is Claimant entitled to mileage reimbursement?

(9) Claimant's counsel, Patrick Platter, seeks a lien of 25 percent under $\S 287.260$ for past medical expenses, past temporary total disability, and future temporary disability.

The following exhibits were admitted into evidence on behalf of the Employee Gary Boothe:

1 - City of Licking Police Department Accident Report;

2 - Complete Medical Report of Dr. Ted Lennard;

3 - Medical Records of Phelps County Regional Medical Center;

4 - Records of Texas County Memorial Hospital-Licking Clinic;

5 - Records Texas County Memorial Hospital;

6 - Records of the Ferrell-Duncan Clinic;

7 - Records of Advanced Care Physical Therapy;

8 - Records of Dr. David Myers;

9 - Medical Expenses;

10 - Deposition of Matt Murdock;

11 - Notice of Murdock Deposition and Subpoena Duces Tecum;

12 - Notice of Termination;

13 - Employee Consultation and Driver Observation Reports;

14 - Attendance List for Training;

15 - Various Instruction Materials;

16 - Recorded Statement;

17 - Photos;

[^0]

[^0]: ${ }^{1}$ The exhibits appear as they were received. The Administrative Law Judge did not mark or highlight any portion of any exhibit. Objections contained in the depositions were preserved. Any objection not specifically addressed at the time of hearing or in this Award now is overruled.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

18 - Incident Report;

19 - Personnel File;

20 - Treatment Provider Panel;

21 - Service Territory Map;

22 - 8/16/2010 Memo;

23 - 9/26/10 Memo;

24 - 7/17/08 Letter from DISH concerning alternative positions;

25 - 8/24/18 Letter from DISH regarding COBRA rights;

26 (a-n) Photos taken of DISH van driven by Holtz;

27 (a-i) Photos taken of DISH Van 16;

28 (a-f) Photos taken of DISH Van 15;

29 (a-g) Photos taken of DISH Van 7;

30 (a-p) Photos taken of DISH Van 7;

31 - Timeline of Events;

35 - Itemized Bill;

36 (a-h) - Surveillance Photos taken of investigators; and

37 (a-b) - Text messages.

The following exhibits were admitted into evidence on behalf of the Employer DISH:

A - Report of Dr. Peter Mirkin;

B - Deposition of Jimmy Robbins;

C - Records of Texas County Memorial Hospital;

D - Additional records of Texas County Memorial Hospital;

E - Weight Restriction Letter of Dr. David Myers 6/29/18;

F - Police Report;

G - DISH HR Letter dated 7/17/18;

H - Pay period summaries of 5/5/18 to 6/15/18 and 6/30/18 to 7/13/18;

I - Record of Texas County Memorial Hospital 9/5/17;

K - Flash drive depicting DISH training video;

L - Deposition of Boothe 10/30/17;

M - Driving distraction information 1/25/10;

N - Driving distraction information 6/14/10;

O - Safety Blast Training pamphlet;

P - Safety Blast Training pamphlet;

Q - Employee Consultation Memo;

R - Driver Safety Training Packet;

S - HIPAA Medical Release Authorization;

T - Pay Period Summary;

U, V, W - not submitted;

X - Medical records and pharmacy records

Live Testimony

Claimant

Christina Boothe (Claimant's Spouse)

Joshua Tipton (Corporate Representative and Regional Operations Manager)

Matthew Murdock (DISH Field Service Manager - Rolla Depot)

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

This claim concerns a one-vehicle accident on July 23, 2017, in which Gary W. Boothe (Claimant)² was operating a DISH van that morning. He started his route determined by DISH from his residence, proceeded to a convenience store, purchased a breakfast sandwich, and then drove the van west on Missouri State Highway 32 toward his first customer destination in Plato, Missouri. While driving, Boothe choked on his sandwich, blacked out, and sustained a one-vehicle accident, with his van striking a small, decorative concrete pillar near the highway.

Boothe is a native of Licking, Missouri. He and his wife of 28 years, Christina, live about 5 miles northeast of Licking. They have adult children. Boothe had been an employee of DISH since 2006. He worked out of the Rolla office. Boothe's wife, Christina, works for the Licking School District as a cook. She normally leaves their residence between 5:30 a.m. and 6:00 a.m. on workdays. This typically means that Boothe handles breakfast for himself. His regular work schedule is Sunday through Wednesday. He works as long as necessary those days in order to complete jobs. Thursdays are typically a potential overtime day if work schedules demand. Boothe has a 10th grade education. He does not hold a high school diploma or any type of vocational certificate. His hobby is restoring old cars. His primary work history involves manual labor.

Boothe had been a Field Service Specialist for several years, rising through the seniority system in classifications ranging from I through IV. His service territory ranged from Iberia to Richland to St. Clair to Potosi. U.S. Interstate 44 is the only four-lane highway located in his service territory. The majority of the service area involves rural areas and towns with limited availability for food and beverages.

Remote specialists like Boothe are subject to counseling or discipline if they were not prompt in the morning. Remote specialists are required to check their work itinerary between 7:10 a.m. to 7:15 a.m. each workday. They have 15 minutes to load their service van and leave their residences between 7:30 a.m. to 7:35 a.m., arriving at the first location by 8:00 a.m. In past years, specialists were required to be at a residence at 7:52 a.m. A computer algorithm (Oracle Field Service Cloud) established the schedules for service specialists. Boothe received two counseling sessions in 2010.

The physical requirements for Field Service Specialists include: lifting 70 pounds; carrying, pushing and pulling items of medium to heavy weight; standing for a considerable portion of a workday; crawling; kneeling; working alone; and mixing concrete bags which weigh approximately 50 pounds. Boothe's tools include three different ladders, including a 28-foot extension ladder, a 16-foot extension ladder, and a "little giant" ladder. He also uses cable and digging materials to set posts in concrete and to dig cable line running as far as 150 feet. Usually, there is no modified duty for Field Service Specialists working out of the Rolla depot. The closest location for modified duty was the St. Louis office.

Boothe reported at or near 7:15 a.m. on July 23, 2017. He checked his work schedule. His first customer stop was in Plato, Missouri, a 30 to 45 minute drive west of Licking on Missouri State Highway 32. He checked in on the company cell phone at about 7:30 a.m. and drove in a southwesterly direction to Licking. He stopped at a

² In part, this Award refers to the employee or claimant as "Boothe," and the employer or the employer and its insurer as "DISH." This is for the sake of brevity and clarity. No disrespect is intended.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

convenience store, purchased a breakfast sandwich and cigarettes, and then started driving on Highway 32. Shortly outside of town, he choked, lost consciousness for a few moments, and ran the company van off the road and into a small, decorative concrete pillar near the highway.

After the accident, Boothe sought treatment at the Phelps County Regional Medical Center in Rolla. He complained of chest and back pain and lumps on his forehead. A physical exam indicated a 3-cm contusion over the right frontal area. His chest was non tender with no respiratory distress. He did not have swelling, ecchymosis, or erythema of the chest. He exhibited a 7-cm abrasion over the lower part of his right flank, which could have been due to a seatbelt. There was tenderness upon percussion over the right flank and over the lateral aspect of the right mid forearm. The physician diagnosed a closed head injury, chest contusion, and right flank contusion. Boothe underwent an x-ray of the chest and a CT scan of the abdomen and pelvis with contrast. Boothe returned to the emergency room a week later on July 30, 2017, reporting that his chest and back pain had worsened. He underwent a CT scan of the chest with contrast. There was pleural thickening, which could have been the result of an infection, but could not be excluded for a pulmonary contusion.

In August 2017, Boothe had multiple appointments at the Texas County Memorial Hospital Family Clinic (TCMH) in Licking. He underwent an MRI scan on September 5, 2017, which revealed mild facet degenerative changes at L4-5 and L5-S1, listhesis, and facet degenerative changes. There was no central effacement, though there was moderate encroachment upon L5 nerves within the neural foreman bilaterally. On September 9, 2017, Whitney Hall, PA, at TCMH advised Boothe that there were degenerative changes on the MRI, "but nothing from the accident." (Ex. A).

In October 2017, Boothe started seeing Dr. Cary Marquis and his nurse practitioner. Dr. Marquis referred Boothe to Advanced Care Physical Therapy in Houston for four weeks of physical therapy. Boothe attended six sessions; however, he reported on November 10, 2017, that he had not seen much change since starting his therapy program. Dr. Marquis did not renew his therapy program when he saw Boothe on November 16th. A subsequent MRI of the thoracic spine areas was performed on December 1, 2017. The findings were essentially normal (Ex. A). The same date, Boothe had a cervical spine MRI without contrast. The results were as follows:

**FINDINGS:**

- Motion artifact mildly limits assessment of all imaging sequences.

- Normal cervical vertebral body heights. No anterolisthesis or retrolisthesis is identified. Mild degenerative marrow edema adjacent to the endplates at C5-C6.

- Multilevel spondylitic changes are present, as follows:

- At C2-C3, there is no substantial spinal canal or neural foraminal narrowing.

- At C3-C4, disc bulge minimally effaces the ventral thecal sac.

- At C4-C5, mild bilateral uncovertebral joint spurring is present without substantial spinal canal or neural foraminal narrowing.

- At C5-C6, mild disc bulge and degenerative endplate spurring, with bilateral uncovertebral joint spurring, are present with mild effacement of the ventral thecal sac and mile bilateral neural foraminal narrowing.

- At C6-C7, mild disc bulge and minimal degenerative endplate spurring are present with minimal effacement of the ventral thecal sac.

- At C7-T1, there is no substantial spinal canal or neural foraminal narrowing.

- No spinal cord signal abnormality.

- Prevertebral soft tissues appear normal.

**Powerscribe Read**

Flow voids are grossly present in the cervical segments of the vertebral arteries, internal carotid arteries, and common carotid arteries.

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

IMPRESSION:

Cervical spondylitic changes, described above by level, with mild spinal canal and bilateral neural foraminal

narrowing at C5-C6

(Ex. A).

Boothe thereafter underwent two epidural steroid injections by Dr. Wallender of Ferrell-Duncan Clinic on

February 12, 2018, and February 26, 2018. Boothe subsequently saw Dr. David Myers of Rolla, Missouri, who

was listed on the panel of medical providers through DISH for work-related injuries. Dr. Myers saw Boothe on

November 20, December 19, February 8, April 3 and 24, June 8, and July 10. Treatment consisted of office visits

and opioid medication.

Medical Expenses and Medical Mileage

Boothe claims the following outstanding medical expenses:

Texas County Memorial Hospital - Licking - 357.15;

Texas County Memorial Hospital - 2,578.50;

Dr. David Myers - 391.84;

Phelps County Regional Medical Center - 19,642.93;

USA Radiology - 255.89;

Ferrell-Duncan Clinic - 1,540.16;

Mercy Pharmacy at Licking - 138.48;

Advanced Care Physical Therapy - 1,253.00;

PST Services - 295.68;

Cox Regional Medical Center - 6,458.00.

TOTAL: 32,911.53

As noted previously, the parties agreed that an inhaler totaling 343.88 should be deducted from the amount

claimed, leaving a new balance of $32,567.80.³ DISH does not claim that it has paid any amount on medical

expenses under the Missouri Workers' Compensation Law.

Boothe has traveled seven times from Licking to Springfield to see Dr. Marquis, obtain epidural steroid injections,

and undergo diagnostic MRIs. Roundtrip between Licking and Springfield is 200 miles and the mileage rate in

effect on the date of Boothe's accident was .50 ½ per mile.

Expert Opinions

*Dr. Ted Lennard* – is a board-certified specialist in physical medicine and rehabilitation. He is affiliated with Cox

Medical Center-Springfield and has practiced medicine in Springfield for approximately 25 years. He examined

Boothe at the referral of Boothe's counsel on May 23, 2018. His complete medical report is admitted as Exhibit

1. Dr. Lennard concluded that Boothe's work accident on July 23, 2017, was the prevailing factor in the onset of

the cervical-thoracic injury, lumbar strain, concussion, right flank and chest contusions. He opined that the

medical treatment provided for Boothe's work-related injuries have been reasonable and necessary to cure and

relieve the effects of his accident. His L5-S1 spondylolisthesis is likely pre-existing and can be apportioned in

any future disability rating. He found that Boothe was not yet at maximum medical improvement.

Dr. Lennard opined that Claimant was in need of additional treatment, including a thoracic epidural steroid

³ Exhibit 9 indicates an insurance payment of 518.40 and patient payments of 527.00.

WC-J2-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

injection, followed by physical therapy. If Claimant did not improve, Dr. Lennard recommended thoracic facet joint injections. He also recommended changes in Claimant's medication. Dr. Lennard issued a number of restrictions. I find Dr. Lennard's opinions credible.

Dr. R. Peter Mirkin - is a board-certified orthopedic surgeon from St. Louis who examined Boothe at the referral of DISH on April 30, 2018. Dr. Mirkin opined:

It is my impression that this is a patient who was involved in an accident and had a contusion to his chest and perhaps his lumbar spine. There is no indication he had any injury to his cervical spine. He really has no complaints in the cervical spine. His pathological condition is of mild spondylosis in the cervical and thoracic spine. He has a pre-existing spondylolisthesis in his lumbar spine. He is in no danger of being paralyzed. The appropriate treatment would have been a short course of physical therapy. There is absolutely no reason he needed to be off work for this period of time. There is no indication he needs to be on narcotics, and I find that to be entirely irresponsible treatment. I think he is at MMI. I think he can return to work without restrictions, and, in fact, he very likely needed only more than a few days off work.

In response to your questions, the injuries he had from the 7/23/17 accident where a contusion to his chest and lumbar spine. He has reached MMI. He can work without restrictions. He does have a pre-existing spondylolisthesis which a significant portion of the population has and in most people it is not a disabling condition. There is no indication for further care or treatment and there is certainly no indication for him to be on narcotics at this point in time.

(Ex. A).

Modified Duty

Dr. Mirkin's opinion that Claimant could return to work without any restrictions stands in stark contrast to nearly all of the other medical professionals in this case. When Claimant first visited the ER at the Phelps County Regional Medical Center, he received an off-duty directive. The Texas County Memorial Hospital at Licking extended the off-work slip on August 16 and August 25. On October 30, in FMLA paperwork, the Licking facility indicated that Claimant should be off work from the accident date until he completed physical therapy.

Dr. Wm. David Myers issued a physical medical source statement on April 3, 2018, restricting Boothe from lifting or carrying in excess of 10 pounds occasionally, 10 pounds rarely, and never more than 20 or 50 pounds. Dr. Myers further restricted Claimant from twisting, stooping, balancing, crouching, crawling, climbing, or sitting more than 15 minutes or standing more than 10 minutes without alternating positions. Dr. Myers stated that the Percocet and Requip he prescribed could cause drowsiness. Dr. Myers suggested that there were days when Boothe would need to leave work early and would be absent about four days per month. He noted that Boothe could have difficulty with attention and concentration and was "mildly limited" in understanding, memory, sustained concentration, persistence, and adaption skills. On April 24, 2018, Dr. Myers said Boothe was "indefinitely totally disabled." Dr. Meyers retreated somewhat from this position on June 29, 2018, when he issued Boothe a 40-pound weight limit "as a permanent plan." (Ex. E).

Dr. Lennard opined with respect to Boothe's ability to work:

Mr. Boothe should avoid lifting, pushing, pulling > 10 lbs., prolonged bending, and all forms of twisting. He should avoid overhead activities and prolonged forward reaching. These limitations would be in effect from the date of injury (7/23/17) until the present time. As his treatment progressed and his condition changes these limitations could be slowly altered.

DISH attempted to place Boothe on modified duty in mid-May 2018, which continued through the remainder of

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

the month. It paid Boothe 13 days of wages, during which time Boothe merely rode in a van operated by a new DISH Service Technician. Boothe performed no physical activity during these work days. DISH discharged Boothe from employment twice since the accident, first on May 15, 2018 (Ex. 12), and later on August 24, 2018 (Ex. 25). Both notices indicate he could not fulfill the physical requirements of his duties.

Safety Rule

DISH had a policy prohibiting eating or drinking while driving DISH vans. If hydration were necessary while working on a route, drivers were instructed to pull over, refresh themselves, and then resume driving. DISH incorporated this instruction into safety presentations. This instruction was prominent either as a presentation, test taking, videos, and "safety blasts." In addition to training provided by DISH on the company-owned phone that was assigned to Boothe, he also received safety training in Rolla, Missouri, as documented by his signature on the attendee sheets (Ex. L, M., N, O, and P).

From March 2014 through September 2016, Jimmy Robbins was the Field Service Manager in Rolla, Missouri, and a one-time direct supervisor of Boothe. Robbins was responsible for giving driver safety training to Boothe. Robbins testified by deposition that he trained new hires on distracted driving, which explicitly included a prohibition against eating and drinking while operating the van. He provided printouts of a "safety blast" to each employee and directed employees to review videos regarding the rule which prohibited eating while driving.

Appended to Robbins' deposition is a counseling report completed on November 24, 2014, after Boothe was reported by a caller to having been driving in and out of his lane and crossing the center line. Joshua Tipton, Corporate Representative and Regional Operations Manager, had counseled Boothe about keeping his DISH van in a single lane even when the day was windy. The written counseling memo, which Boothe signed, included a directive that Boothe "avoid distractions, such as adjusting the radio or other controls, eating or drinking, and talking on the phone." (Depo. Ex. A; Ex. Q). Boothe also had acknowledged online that he had reviewed training videos on distracted driving. Boothe admitted that he could have hit "accept" online without ever having watched the video.

Boothe also contends it was routine for technicians to eat and drink beverages while driving their routes due to their tight schedules. To substantiate this contention, Boothe and his wife took photographs of different vans on different days (Ex. 26 through 30), each displaying fast-food debris about the passenger area of the service vans. None of the photographs actually involved a worker eating or drinking while operating the van. Boothe admitted that employees could drive through a fast-food restaurant and eat in a parked van.

RULINGS OF LAW

The Missouri Workers' Compensation Law should be strictly construed. § 287.800.1 RSMo. Employee has the burden in a workers' compensation proceeding to prove all elements of his claim to a reasonable probability. Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo. App. E.D. 2008);

Claimant contended at the hearing that the information regarding distractions was added after he signed the action plan. Because of where the language is placed on the exhibit, which is at the beginning of a large paragraph, I simply do not find Boothe's contention in this regard to be credible.

Although the administrative law judge finds Claimant's testimony trustworthy in most regards, his admission that he might have acknowledged having viewed a safety video when he actually did not do so certainly does nothing to enhance his overall credibility. The administrative law judge finds that Claimant knew Employer's policies on distracted driving, including the prohibition on eating and drinking while driving and deliberately chose to violate such policy.

Unless otherwise noted, the statutes cited are to the provisions in effect on the date of the work accident.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

§ 287.808 RSMo. Administrative law judges shall weigh the evidence "without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." § 287.800.2 RSMo.

Arising out of and the Course Scope of Employment

The test for determining whether injuries arise out of and in the course of employment is as follows:

An injury shall be deemed to arise out of and in the course of 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.

(c) An injury resulting directly or indirectly from idiopathic causes is not compensable.

Section 287.020.3 (2) RSMo.

Boothe was eating a sausage biscuit while operating a DISH van, which clearly was in violation of company policy and could subject him to the imposition of a safety penalty under Missouri Workers' Compensation Law. It does not, however, take him out of the course and scope of employment at the time of the accident. Employers can impose any number of safety directives, such as wearing a seat belt, but that does not mean the employee was not within the time frame of his usual work and was providing services for his employer at the time of the accident. The risk source in this case is not eating a sausage biscuit. Rather, it was having to travel on a rural highway on a strict timeline in a DISH van. This is something to which the worker was not equally exposed outside of his nonemployment life.

Missouri recognizes that injuries suffered by employees who must travel for their work are protected by the personal comfort:

The 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. S.D. 1968). Courts have affirmed the award of benefits when the activity of the employee meets the doctrine. DeVille v. Hiland Dairy Co., 157 S.W.3d 284, 287 (Mo. App. S.D. 2005); Moore v. St. Joe Lead Company, 817 S.W.2d 542 (Mo. App. E.D. 1991); Davison v. Florsheim Co., 715 S.W.2d 481 (Mo. App. W.D. 1988); Ford v. Bi-State Development Agency, 677 S.W.2d 899 (Mo. App. E.D. 1984). Benefits could be awarded whether or not the employee was injured while actually working or off the time clock. Compare DeVille with Yaffe v. St. Louis Children's Hospital, 648 S.W.2d 549 (Mo. App. E.D. 1982); Jones v. Bendix Corp., 407 S.W.2d 650 (Mo. App. W.D. 1966).

Although the legislature narrowed the range of compensable injuries in 2005, the Missouri Court of Appeals, Eastern District, rejected an argument by the Second Injury Fund that the 2005 amendments to §§ 287.020.3 and 287.020.10 RSMo, abrogated the personal comfort doctrine. The Court stated:

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

In this light, had the legislature wanted to similarly abrogate the personal comfort doctrine and restrict coverage to those injuries occurring only while an employee is performing specific work duties and not while performing incidental duties such as attending to his or her personal comfort at work, it could have done so explicitly. Under the plain language here, the legislature simply intended to restrict the premises upon which an employee could recover from injuries sustained while engaging in activities that could have been found to arise out of or in the course of employment.

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

Additionally, an employee whose work involves travel away from Employer's primary place of business has the protection of the *Reneau Doctrine*, which states that a worker remains in the course of employment during the trip unless he is on a distinct personal errand. *Campbell v. Trees Unlimited, Inc.*, 505 S.W.3d 805, 816 (Mo. App. S.D. 2016). Boothe was not on a personal errand, nor was he deviating from his work at the time of the accident. After purchasing his breakfast, Boothe began driving to Plato for his first scheduled customer stop. Boothe was not merely commuting from his residence to DISH's principal place of business. If that were the situation, then § 287.020.5 RSMo, would exclude the compensability of the injuries. But because the statute must be strictly construed, so must the exclusion. Boothe's injuries sustained while driving the DISH van to his first appointment of the day arose out of and in the course of his employment.

An injury by accident is compensable if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. § 287.020.3 (1) RSMo.

There is quite a divergence of expert opinions in this case. Dr. Mirkin found no causal connection between the accident and Boothe's current condition. He would have released Boothe from treatment a few days after the accident and Dr. Myers vacillated in his opinions.

By contrast, Dr. Lennard, whom I have found credible, approaches Boothe's condition, as follows: Boothe suffered symptomatic injuries from the accident, such as strains and tissue damage; these injuries were different from the degenerative, yet asymptomatic conditions identified on diagnostic testing; he needs injections and therapy to resolve the symptomatic damage; his work and activity restrictions can be liberalized as treatment continues; and he should be weaned away from narcotic medication. Dr. Lennard believes the work-related accident was the prevailing factor in Boothe's current condition. Given a review of the entire record, this is the most rational assessment of Boothe's condition and medical needs. Dr. Lennard has distinguished between pre-existing and asymptomatic degenerative disc disease from the strains and tissue damage he found to have resulted from the accident. This distinction is much like the results in *Whitely v. City of Poplar Bluff*, 350 S.W.3d 70 (Mo. App. S.D. 2013).

In *Whitely*, a police officer sought benefits in connection with a thoracic strain which was a distinctly different medical condition from pre-existing and asymptomatic degenerative spinal disease. The Labor Commission distinguished between what physicians had identified as acute injuries from degenerative conditions, and the appellate courts affirmed the award of benefits. Likewise, in the instant case, it is the work accident of July 23, 2017, which is the prevailing factor in Claimant's current condition requiring medical treatment and causing disability.

WV-32-R1 (6-81)

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

Section 287.140 RSMo requires Employer/Insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003).

Boothe is entitled to reimbursement for past medical expenses totaling $32,567.80. Claimant's exhibits and testimony, together with Dr. Lennard's report, satisfies the elements required under *Farmer-Cummings v. Personnel Pool of Platte County*, 110 S.W.3d 818 (Mo. banc 2003). DISH has not identified any amounts which should be deducted from the recovery, such as additional insurance write-offs. *Ellis v. Missouri State Treasurer*, 302 S.W.3d 217, 215-226 (Mo. App. S.D. 2010).

Additionally, Boothe is entitled for future medical treatment as which flows from the work accident and not from asymptomatic, degenerative spinal conditions. *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511, 518-524 (Mo. App. W.D. 2011); *Hornbeck v. Spectra Painting, Inc.*, 370 S.W.3d 624, 633-636 (Mo. banc 2012); *Morris v. Captain D's*, 537 S.W.3d 420, 424-425 (Mo. App. S.D. 2018). The medical treatment recommended by Dr. Lennard meets that criteria.

Boothe's work requirements included lifting up to 70 pounds, mixing concrete bags which weigh about 50 pounds, climbing ladders, and digging lines for cable. DISH fired Boothe twice because he was not able to perform the essential functions of his job. After the first termination, DISH retracted the dismissal and placed Boothe on modified duty and then fired him again. In effect, DISH has ratified Boothe is unable to perform physical labor given Employer's discharges and the aborted modified duty. See e.g., *Herring v. Yellow Freight System, Inc.*, 914 S.W.2d 816 (Mo. App. W.D. 2003); *Cunningham v. Leggett & Platt*, 929 S.W.2d 953 (Mo. App. S.D. 1996); *Cooper v. Medical Center of Independence*, 955 S.W.2d 570 (Mo. App. W.D. 1997). DISH does not normally provide modified duty to remote service technicians such as Boothe. Moreover, Dr. Lennard has placed Boothe on restricted activity of approximately 10 pounds.

Contrary to Employer/Insurer's position, I have found that Claimant is not yet at maximum medical improvement and needs further treatment. Given Dr. Lennard's restrictions, Claimant cannot perform his usual work. There is no evidence that light duty or sedentary work is available within a reasonable driving distance from his rural home near Licking, Missouri. Even if Claimant could perform some household chores and occasionally work on a hobby car, there is no evidence that he could perform these duties on a sustained basis in an employment setting. Claimant is not well educated and has no vocational certificates to aid him. Given these factors, Employer/Insurer shall pay the past temporary total disability benefits, minus the 13 days of light duty that Employer provided Claimant.

DISH is ordered to pay temporary disability in the future to Boothe as medical treatment progresses. It is anticipated that restrictions will change as treatment progresses.

Boothe traveled seven times from Licking to Springfield for treatment with Dr. Marquis, epidural steroid injections, and MRI scans. Travel roundtrip is 200 miles. At 50 1/2 cents for the fiscal year in which Boothe was

WV-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

injured, Boothe is entitled to $707 in mileage (1,400 miles multiplied by 50 1/2 cents = $707.00).

Violation of Safety Rule

1. Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefits provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a reasonable effort to cause his or her employees to use the safety device or devices and to obey and follow the rule so adopted for the safety of the employees.

Section 287.120.5 RSMo.

Employer/Insurer provided overwhelming evidence that Claimant 1) was injured because he was eating while driving, 2) in violation of Employer's reasonable rule adopted for the safety of its employees, 3) that Employer made reasonable efforts prior to July 2017 to have its employee obey and follow the rule, and 4) that Boothe had actual knowledge of the rule. See *Carver v. Delta Innovative Services*, 379 S.W.3d 865, 869 [5] (Mo. App. W.D. 2012) (setting forth the four elements for this statutory defense). Boothe challenges the sufficiency of the evidence with respect to elements two and three.

Boothe first argues that the rule was not "reasonable" given the scheduling of the remote service technicians who must travel long distances in rural areas, keeping a schedule according to a computerized algorithm that does not assign their locations upon their level of skill. In this case, however, it was NOT a tight schedule that caused Boothe to eat while driving. This was not lunch. It was breakfast, which Boothe could have eaten at home prior to leaving on his assigned duties. Moreover, employees were given time to obtain nourishment during their work shift. The rule prohibiting distracted driving, including the prohibition of eating while driving, was most reasonable.

Boothe further contends that Employer made no effort to enforce the rule, referencing his photographs of DISH vans with fast-food debris in the vehicles. Boothe's evidence shows only that employees ate in their vehicles, which is not prohibited. It does not demonstrate that other employees ate while driving. Moreover, Employer/Insurer introduced substantial evidence of videos, "blasts," and a corrective action report that specifically delineated its rule against distracted driving. This included a prohibition against eating and drinking while operating the vehicle (See e.g., Ex. K).

The essence of Boothe's argument is that DISH could have done more to enforce its rule. An employer, however, is required under § 287.120.5 RSMo, to make a "reasonable effort to cause his or her employees to obey or follow the rule." Employers are not required to make extraordinary or every effort. See e.g., *Thompson v. ICI Am Holding*, 347 S.W.3d 624 (Mo. App. W.D. 2011) (affirming a reduction due to a safety violation even though there was no evidence the employer had not imposed past discipline). As in *Thompson*, DISH made a comprehensive effort to educate its employees and to enforce its rule.

Employer/Insurer seek to impose a 50 percent, or the most extreme statutory penalty, against Boothe for violation of Employer's safety rule. This appears unduly harsh, particularly given the desire to impose the penalty on all benefits, including medical benefits. Concomitantly, Boothe's actions in disregarding the safety rule, even after prior counseling regarding distracted driving, warrants more than the minimal penalty. I impose a 30 percent penalty against all benefits awarded herein.

WV-32-R1 (6-81)

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary W. Boothe

Injury No.: 17-053996

SUMMARY

Employer/Insurer shall provide the following benefits to Claimant Boothe:

1) For past temporary total disability:

62 3/7 weeks (437 days) minus 13 days of modified duty = 60 4/7 weeks (424 days)

60 4/7 weeks x $919.36 = 55,686.95

55,686.95 minus 30% safety penalty reduction =

38,980.87

2) For past medical benefits:

32,567.80 minus 30% safety penalty reduction =

22,797.46

3) For unpaid mileage:

707.00 minus 30% safety penalty reduction =

494.90

TOTAL:

62,273.23

4) Future medical treatment to cure and relieve the effects of the work injury consistent with the recommendations

of Dr. Ted Lennard.

5) Ongoing Temporary Total Disability beginning October 4, 2018, until such time as Claimant reaches maximum

medical improvement or is capable of obtaining employment on the open labor market.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED

IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY

AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments

hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Patrick J.

Platter and the law firm of Neale & Newman, LLP.

I certify that on 1-22-19

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.

Made by:

Victorine R. Mahon

Chief Administrative Law Judge

Division of Workers' Compensation

By

nyo

WIC-22-R1 (6-01)

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