Beine v. Cnty. of St. Charles

• Decision Date: 06 December 2011
• Docket Number: No. ED 96581.,ED 96581.
• Citation: 353 S.W.3d 704
• Parties: Scott J. BEINE, Appellant, v. COUNTY OF ST. CHARLES and Treasurer of Missouri as Custodian of Second Injury Fund, Respondents.
• Court: Missouri Court of Appeals

353 S.W.3d 704

Scott J. BEINE, Appellant,

v.COUNTY OF ST. CHARLES and Treasurer of Missouri as Custodian of Second Injury Fund, Respondents.

No. ED 96581.

Missouri Court of Appeals, Eastern District, Division Four.

Dec. 6, 2011.

D. Andrew Weigley, Clayton, MO, for appellant.

Beverly E. Temple (County of St. Charles), St. Charles, MO, Barbara Toepke, Asst. Atty. General, St. Louis, MO, for respondents.

PATRICIA L. COHEN, Presiding Judge.

Introduction

Scott Beine (Claimant) appeals the judgment of the Labor and Industrial Relations Commission (Commission) denying his claim for workers' compensation benefits for injuries he sustained while participating in a charity golf tournament. Claimant asserts the Commission erred in finding that: (1) Claimant's injuries did not arise out of or in the course of employment; (2) Claimant's participation in a “recreational activity” was the prevailing cause of his injuries; and (3) Claimant's participation in the golf tournament provided no benefit to his employer. We affirm.

Factual and Procedural Background

Claimant worked for the St. Charles County Sheriff's Department (Employer) as a deputy sheriff from 1997 until July 7, 2008. At the time of his injury, Claimant was assigned to the position of school resource officer.

During his employment, Claimant was an active member of the St. Charles County Deputy Sheriff's Association (Association), a voluntary, non-profit association of sheriff's deputies whose primary purpose was to raise money for charity and help those in need. Since 2002, the Association's major annual event was called Shop–With–A–Deputy.¹ To fund this event, the Association sponsored a charity golf tournament at the Whitmoor Country Club. The Association used most, but not all, of the proceeds from the golf tournament to support the annual shopping event. Employer did not participate in either planning or promoting the golf tournament. Participation in the golf tournament was voluntary, and Employer required its employees to use compensatory or vacation time to attend the tournament. Employer did not permit employees to wear their uniforms or use Employer's vehicles for transportation to the event, at which alcohol was served.

On July 7, 2008, Claimant helped set up and then golfed in the Association's charity golf tournament. While he was playing, a nearby golfer hit a ball, striking Claimant in the forehead. An ambulance transported Claimant to the hospital, where a doctor treated him for a forehead laceration and subcutaneous contusion.

After the injury, Claimant sought treatment from numerous medical professionals for his continuing symptoms, which included: tinnitus, poor balance, memory loss, severe and frequent headaches, insomnia, mood swings, and depression. Claimant was unable to resume work, and Employer terminated Claimant's employment on January 7, 2009.

Claimant filed a claim for workers' compensation on November 11, 2008, and an Administrative Law Judge (ALJ) at the Division of Workers' Compensation held a hearing on January 20, 2010. Claimant testified at the hearing and presented as witnesses his wife and Michele Straub, a deputy who witnessed the injury. In addition, Claimant presented his medical records and the deposition testimony of: Dr. Thomas Musich, a physician who examined Claimant and reviewed his medical records; James Israel, a vocational rehabilitation counselor; and Professor Kenneth Novak, an associate professor in the Department of Criminal Justice and Criminology at University of Missouri, Kansas City. Employer presented, among other witnesses, the St. Charles County Sheriff, Thomas Neer.

The ALJ denied Claimant benefits on the grounds that Claimant's injury did not arise out of and in the course of his employment. The ALJ reasoned that Claimant's injury “did not result from any increased risk connected to” his employment as a deputy for Employer. The ALJ also found that the charity golf tournament was a voluntary “recreational activity” under Section 287.120.7 and was, therefore, not compensable under workers' compensation law. Finally, the ALJ considered Claimant's argument that the mutual benefit doctrine should apply to his case and entitle him to workers' compensation benefits. The ALJ found that Employer and the Association were not “interconnected organizations” and that Prof. Novak's testimony that the golf tournament benefited Employer was “not probative and reliable.”

Claimant appealed the denial of benefits to the Commission. On March 17, 2011, the Commission, with one member dissenting, issued a final award denying compensation. In affirming the ALJ's denial of compensation, the Commission attached and incorporated the ALJ's findings of facts and rulings of law to its decision. Claimant appeals.

Standard of Review

On appeal from a decision in a workers' compensation proceeding, this court may modify, reverse, remand for rehearing, or set aside the award upon finding that: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Mo.Rev.Stat. § 287.495.1. ²

We must consider the whole record to determine whether it contains sufficient, competent, and substantial evidence to support the award, and we will set aside the Commission's award only if it is contrary to the overwhelming weight of the evidence. Miller v. Mo. Highway & Transp. Comm'n, 287 S.W.3d 671, 672 (Mo. banc 2009). While we defer to the Commission on issues of fact, credibility of witnesses, and weight to be given to conflicting evidence, we review the Commission's interpretations or applications of law without deference to the Commission's judgment. Hager v. Syberg's Westport, 304 S.W.3d 771, 773 (Mo.App. E.D.2010).

Discussion

In his first point on appeal, Claimant asserts that the Commission erred when it ruled that Claimant's injuries were not compensable because they did not “arise out of and in the course of employment.” Specifically, Claimant contends that his injury arose out of and in the course of employment because his participation in the charity golf tournament benefited Employer. When the relevant facts are not in dispute, the issue of whether an accident arose out of and in the course of employment is a question of law requiring de novo review. Miller, 287 S.W.3d at 672.

An employer is “liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury ... of the employee by accident arising out of and in the course of the employee's employment....” Mo.Rev.Stat. § 287.120.1. In 2005, the Legislature amended Section 287.020.3(2) to narrow the scope of injuries that arise out of and in the course of employment. Mo.Rev.Stat. § 287.020.3(2); Miller, 287 S.W.3d at 673. Under this statute, 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.

Mo.Rev.Stat. § 287.020.3(2).

The uncontested facts show that: golfing was not one of Claimant's assigned duties; Employer required Claimant to use vacation days to participate in the golf tournament; Employer did not plan or promote the golf tournament; Employer did not receive or control the proceeds of the golf tournament; Employer had no right to control or direct Claimant's actions at the golf tournament; and Employer and the Association were entirely separate and independent entities. Based on our review, we conclude that there was sufficient competent evidence in the record to support the finding that Claimant's injury resulted from “a hazard or risk unrelated to” Claimant's employment to which he would have been equally exposed on any golf course in his “normal nonemployment life.” ³ Point denied.

In his second point on appeal, Claimant argues that the Commission erred when it ruled that the charity golf tournament was a recreational activity under Section 287.120.7. More specifically, Claimant maintains that the golf tournament was “not purely recreational” because it “provided a substantial, tangible benefit” to Employer.

Section 287.120.7 provides that when an employee's participation in a recreational activity or program is the prevailing cause of his or her injury, “benefits or compensation otherwise payable under this chapter ... 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.” Mo.Rev.Stat. § 287.120.7.⁴ Claimant argues that Section 287.120.7 does not apply in this case...