Blatter v. Missouri Dept. of Social Services Div. of Aging, 12961

Decision Date25 July 1983
Docket NumberNo. 12961,12961
PartiesBarbara BLATTER, et al., Plaintiffs-Respondents, v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, DIVISION OF AGING, Defendant-Appellant.
CourtMissouri Court of Appeals

John Achcroft, Atty. Gen., Louren R. Wood, Asst. Atty. Gen., Jefferson City, Donald R. Duncan, Asst. Atty. Gen., Turner, Reid, Duncan & Loomer, Springfield, for defendant-appellant.

David Gregory Warren, Paul D. Rittershouse, Daniel, Clampett, Rittershouse, Powell & Cunningham, Springfield, for plaintiffs-respondents.

FLANIGAN, Presiding Judge.

The widow and the ten-year-old child of Robert Earl Blatter filed a claim, under "The Workers' Compensation Law" for death benefits and burial expenses arising out of his death. Blatter was fatally injured at 9:24 p.m. on October 4, 1979, when he was hit by a vehicle as he was walking across Glenstone Avenue in Springfield. He died at the scene.

Blatter's self-insured employer was the Missouri Department of Social Services, Division of Aging. The claim was tried before James H. Wesley, Chief Administrative Law Judge of the Division of Workers' Compensation, who found in favor of claimants and awarded the maximum statutory benefits. The employer filed an application for review to the Labor and Industrial Relations Commission, which affirmed the award. The employer appealed to the Circuit Court of Greene County, § 287.490, 1 where the commission's award was affirmed. The employer appeals.

The employer contends that there was not "sufficient competent evidence in the record," § 287.490, to warrant the making of the award and to support the finding of the commission that the fatal accident "arose out of and in the course of" Blatter's employment.

On this appeal this court must determine if the award of the commission is supported by competent and substantial evidence on the whole record. All of the evidence and legitimate inferences therefrom must be viewed in the light most favorable to the award. This court may not substitute its judgment for that of the commission. The award may be set aside only if there is no substantial and competent evidence to support it or if the findings of the commission are clearly contrary to the overwhelming weight of the evidence. Conflicts in the evidence are for resolution by the commission. Blair v. Associated Wholesale Grocers Co., 593 S.W.2d 650, 652 (Mo.App.1980).

Blatter had been an employee of the Missouri Division of Family Services for about nine years prior to his death. In 1979 the Division of Aging, an agency of the Department of Social Services, was created. Valdon Vire, one of the principal witnesses for the claimants, was the regional administrator for the Division of Aging and was in charge of the south half of Missouri, which included Waynesville where Blatter worked. Vire's deputy in that area was Alvin Hays. Blatter, whose immediate supervisor was Joyce Massey, was a case worker for the Division.

Vire arranged for a two-day training session to be held in Springfield beginning Thursday, October 4, at 10 a.m. and ending at 4:30 p.m. the next day. Thirty-four employees of the Division, including Blatter and his superiors Massey, Hays, and Vire, attended the session which was held at the Drury Inn motel on Glenstone Avenue. Attendance at the session was mandatory.

Those employees who resided more than 50 miles from Springfield were provided with lodging at the Drury Inn at state expense. Blatter was one of the 22 employees so provided. The state also paid the cost of travel and meals for the persons attending the conference.

Prior to the two-day session the Division mailed an interoffice communication to the supervisors of the employees who would attend. The memorandum contained an agenda, which did not mention an evening session on Thursday.

During the day session on Thursday, Valdon Vire announced to the group that "Mr. Hays and I and any other participants at the meeting who would like to join us for a social activity for cocktails and drinks that afternoon were to meet at approximately 7 p.m. in the lobby of the Drury Inn and anyone was welcome to do so." Vire also announced that "the plan was to go across the street to an establishment known as Wild Bill's for cocktails and drinks and discussions and activities and socialization." A similar announcement was made by Hays.

According to Vire, attendance at the session at Wild Bill's was not "mandatory." Hays testified that the "region-wide training sessions" were held about every three or four months and that he, as a supervisor, "felt kind of a social obligation to go" to the informal evening session. Massey testified that "at 99 percent of the training sessions they have an informal session in the evening."

The day session on Thursday ended about 4:30 p.m. About 15 or 20 of the group went to Ebenezer's Restaurant in Springfield for their evening meal. Blatter was not in that group and the record does not disclose where or whether Blatter had his evening meal.

Blatter, Vire, Hays and 10 or 12 other of the state employees met in the Drury Inn lobby at about 7 p.m. Vire described Wild Bill's as "a large roomy barnlike structure with tables and booths, a country music band and dance floor, and bar." The Drury Inn is on the east side of Glenstone. Wild Bill's is on the west side of Glenstone, across from Drury Inn. According to Vire, "We occupied one or more tables as a group at Wild Bill's. We were sitting 10 to 12 feet from the band which had four or five members and a female singer." Vire was sitting across the table from Blatter. Although "it was loud to a degree," it was possible to converse while the band was playing. Approximately 100 people were in Wild Bill's.

Asked whether he considered the "informal evening get-together to be beneficial both to the employees of the Division as well as to the Division," Vire replied, "I personally in these type of meetings and others found that discussions informally about activities, whether they be specifically work-related all the time or not, were beneficial to myself as a supervisor and also to employees who perhaps did not get opportunities to ask questions or make comments, so in that sense I found they were helpful, yes." Asked if he recalled "any of the discussions concerning the sessions he had with any of the people who were there at the informal meeting at Wild Bill's," Vire responded, "There were some discussions I believe that Mr. Blatter had with me about his work load and this sort of thing which was an issue we discussed, and also ... my response to that I think was to commend him, you know, he was doing a good job and that type of thing. I don't know any specific problems that he raised other than that type of discussion."

Vire said that "the discussions that [he] had with the employees who were present there at Wild Bill's ... were ... the ordinary type of discussions that you would expect employees of the Division to engage in at an informal get-together ... work load, work problems ... as well as other topics."

Vire testified that the Division of Aging "was sort of an infant at that time," that it officially came into existence October 1, and this was "the first training session that it actually had" and that "any information [which] could be picked up would of course be beneficial to the employees at that time." Vire also said, "I personally have found that there is indirect benefit from such [informal sessions] because with the wide separation geographically of myself or the supervisory staff not having immediate daily contact with the employees that this was opportunity for them to voice concerns or to, you know, get feedback on how they were functioning and so should they wish to do this I certainly would not discourage such input."

Although Blatter drank some beer at Wild Bill's, the record supports a reasonable inference, favorable to the award, that he was not intoxicated. At the time of the tragedy Blatter was walking from Wild Bill's across Glenstone, a major thoroughfare, and was returning to Drury Inn.

The commission, in its final award, adopted the findings of Judge Wesley. One such finding reads: "In considering the fact that informal meetings are normally held after scheduled meetings and that it provides an open forum for the employees to discuss any problems, it is my opinion that the informal meeting has by custom and/or practice become an incident of employment and therefore any injuries sustained as a result of the informal meeting would arise out of and in the course of the employment. Perhaps Mrs. Massey's testimony (Social Services Supervisor I, Missouri Division of Aging) went to the crux of the matter when she testified that the informal meetings were beneficial and that she could learn a lot and 'could ask a question and get an answer.' "

The burden of proof was on the claimants, Garrett v. Industrial Commission, 600 S.W.2d 516, 518 (Mo.App.1980), to show that Blatter's death resulted from an accident "arising out of and in the course of his employment." § 287.120, par. 1. An injury arises "out of" the employment if it is a natural and reasonable incident thereof and is the rational consequence of some hazard connected with the employment. An injury arises "in the course of" the employment when it occurs within the period of employment, at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment. Kansas City, Missouri Police Dept. v. Bradshaw, 606 S.W.2d 227, 230 (Mo.App.1980).

The terms "out of" and "in the course of" the employment are not synonymous but are separate tests for compensability, and both must be satisfied before the claimants here may prevail. Fingers v. Mount Tabor United Church of Christ, 439 S.W.2d 241, 243 (Mo.App.1969). There is no "all...

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