Risky Business: Breakfast Sandwiches, Course of Employment, and Revisiting Missouri Workers' Compensation Law.

• Author: Hamoud, Trent H.

Boothe v. DISH Network, Inc., No. SD 36408, 2020 WL 7706398 (Mo. Ct. App. Dec. 29, 2020), rev'd en banc, 637 S.W.3d 45 (Mo. 2021).

1. INTRODUCTION

   Since its inception, the Missouri Workers' Compensation scheme has presented interesting and complex problems regarding workplace risk allocation. To avoid workplace injuries, employees and employers engage in significant preventative behaviors. One such action by employers is employee monitoring. Clearly, however, constant workplace monitoring is not feasible. This inherent limitation leads to this Note's initial inquiry: at what point do the actions of employees taken out of sight of their employers create compensable claims under the existing Missouri Workers' Compensation system, and what inefficiencies may result from requiring that employers provide compensation for the injuries that arise from such actions? Boothe v. DISH Network, Inc. provided a new perspective on this question while evaluating an employee's claim deriving from a vehicular accident.

   Part II of this Note summarizes the facts and procedural background of Boothe's employment dispute in Boothe v. DISH Network, Inc. Part III outlines the legal background relevant to the ruling of the Missouri Court of Appeals, providing a brief primer on pertinent workers' compensation, scope of employment, and economic principles. Part IV details the Boothe court's divided ruling, which ultimately held that the "risk source directly leading to [Boothe's] injuries [was] the inherent road and driving conditions of his employment[.]" (1) Part V evaluates relevant takeaways, discusses various business and societal impacts, and opines on future consequences of the decision on Missouri employment law.

2. FACTS AND HOLDING

   Plaintiff Gary Boothe served as an installer/service technician for Defendant DISH Network, Inc. ("DISH") since 2006. (2) To make service calls, Boothe drove a van issued by DISH. (3) Boothe drove the van during work hours, and after work, he drove it back to his home near Licking, Missouri. (4) Four towns--St. Clair, Potosi, Iberia, and Richland--bordered Boothe's service territory. (5) Thus, Boothe often traveled on Interstate 44, two-lane state highways, and country roads to reach customers' homes. (6) Boothe was the only DISH employee assigned to this service territory. (7)

   During Boothe's four-day workweek, DISH required him to first check in between 7:10 and 7:15 a.m. to obtain his daily route and required list of equipment. (8) With only fifteen minutes to load his van, Boothe was expected to leave his home by 7:35 a.m. so he could arrive to his first customer appointment at approximately 8:00 a.m. (9)

   The morning of Sunday, July 23, 2017, began much like any other routine work morning for Boothe. (10) After checking his work schedule at 7:15 a.m. and discovering that his first appointment was in Plato, Missouri, a thirty to forty-five minute drive, Boothe departed his home at 7:26 a.m. (11) Boothe purchased two packs of cigarettes, a soda, and a breakfast sandwich at a convenience store approximately six miles from his home and twenty-four miles from Plato. (12) Boothe left the convenience store at about 7:41 a.m. (13) Six minutes later, at 7:47 a.m. and less than a mile away from the convenience store, Boothe choked on his breakfast sandwich while driving. (14) Upon blacking out, Boothe crashed into a short pillar near the side of Highway 32. (15) Boothe's body hit a pole in the middle of the van, resulting in injuries to his back and neck. (16)

   Notably, DISH had a safety rule prohibiting employees from eating or drinking while driving, a rule that Booth was aware of. (17) The record further reflects that DISH issued Boothe a distracted driving warning in 2014, in part for eating and drinking. (18)

   DISH denied Boothe compensation for his injuries, arguing that he did not make the requisite showing that his injuries arose "out of and in the course of his employment" as required under Missouri Revised Statutes ("RSMo") [section] 287.020.3(2). (19) Boothe's workers' compensation claim for past and future medical treatment and disability was granted by an Administrative Law Judge ("ALJ"), subject to a thirty percent penalty, due to Boothe's violation of DISH's safety rule. (20) The Labor and Industrial Relations Commission, in a 2-1 split decision, reversed the ALJ's ruling, determining that the "risk source" was Boothe's decision to eat breakfast while driving. (21) The Missouri Court of Appeals for the Southern District again reversed, finding DISH was liable and remanding to the Labor and Industrial Relations Commission. (22) The appellate court held that the "risk source directly leading to [Boothe's] injuries [was] the inherent road and driving conditions of his employment[.]" (23)

3. LEGAL BACKGROUND

   This Part begins by introducing workers' compensation law generally and in Missouri. Next, it examines basic scope-of-employment principles. Finally, it concludes by providing a brief overview of agency costs and relevant economic principles.

   1. Workers' Compensation

      Missouri Workers' Compensation law traces its roots to 1925 with the passage of the Workmen's Compensation Act ("the Act"). (24) Before this point, employees could seek to recover from their employers for workplace injuries under the common law theory of negligence, but defenses such as the fellow-servant rule, assumption of risk, and contributory negligence often barred recovery. (25) Under this strict regime, the employee had to show "the accident resulted solely from the employer's negligence," leading to paltry recovery rates by employees. (26)

      While the overarching purpose of the Workmen's Compensation Act was to "place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment," the Act signifies a compromise between employers and employees, much like insurance. (27) Indeed, in exchange for the removal of the threat of suit and potentially more costly damages, employers promise to compensate employees for their workplace injuries, capped at a fixed amount and only in a well-defined set of circumstances, under a theory of strict liability. (28) Under this scheme, employers may have to pay out claims more frequently, but face reduced risk exposure. (29) Conversely, employees trade maximum collection potential for a higher probability of recovery. (30) Both parties benefit from more efficient resolution of workplace disputes. (31)

      For a Missouri worker to succeed on a workers' compensation claim, she must show that the injury "has arisen out of and in the course of employment." (32) The Missouri Legislature provides that an injury arises 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. (33)

      For decades, a series of common law doctrines, such as the personal comfort doctrine, were invoked to interpret the "arising out of and in the course of employment" element. (34) Under the personal comfort doctrine, "certain unavoidable acts that minister to [a worker's] personal comfort are considered 'incidental' to his or her employment when committed at work." (35) The advent of the new workers' compensation system, however, substantially eroded such an expansive interpretation of the personal comfort doctrine. (36)

      In 2005, Missouri made significant legislative amendments to its workers' compensation law. (37) Specifically, the legislature modified the relevant standard of review and included a further instruction regarding the "arising out of and in the course of employment" element. (38) Strict, rather than liberal construction under the prior statute, is now required. (39) Judges and commissioners are also now instructed to "weigh the evidence impartially without giving a benefit to either party." (40) Thus, under the 2005 amendments, employees must carry a heavier burden. (41) Finally, the amendments also narrowed the scope of the "arising out of and in the course of employment" requirement by further refining the types of acts that did or did not fall within this requirement. (42)

      The Missouri Court of Appeals for the Southern District developed a two-part, causal-connection test. (43) First, a worker must correctly identify the risk source or injury-causing activity. (44) If a worker succeeds in that identification, the court then compares that risk source or activity to nonemployment life. (45) In other words, the central inquiry becomes whether or not the employee would have been equally exposed to a particular risk outside of the workplace. (46)

      In Miller v. Missouri Highway & Transportation Commission, a road repair crew member felt his knee pop while walking briskly toward a truck to retrieve repair materials--his knee later required surgery. (47) The Supreme Court of Missouri denied the crew member's workers' compensation claim on the theory that "his work did not require him to walk in an unusually brisk way" and the risk involved--walking--was "one to which the worker would have been exposed equally in normal non-employment life." (48)

      In Pile v. Lake Regional Health Systems, a registered nurse underwent surgery on her foot after she stumbled on a carpet and turned her ankle and foot while moving quickly out of a patient's room. (49) She was later diagnosed with chronic tendonitis in her foot, which the court found to be consistent with prolonged walking as required by her job. (50) The Missouri Court of Appeals for the Southern District reversed the Labor and Industrial Relations Commission's denial of workers' compensation benefits, finding that the risk to the nurse was not walking, but rather "the risk of tendonitis...