Boothe v. DISH Network, Inc.

• Decision Date: 21 December 2021
• Docket Number: No. SC 98948,SC 98948
• Citation: 637 S.W.3d 45
• Parties: Gary BOOTHE, Jr., Appellant, v. DISH NETWORK, INC., Respondent.
• Court: Missouri Supreme Court

637 S.W.3d 45

Gary BOOTHE, Jr., Appellant,

v.DISH NETWORK, INC., Respondent.

No. SC 98948

Supreme Court of Missouri, en banc.

Opinion issued December 21, 2021

Rehearing Denied February 8, 2022

Boothe was represented by Patrick J. Platter and Britton D. Jobe of Neale & Newman LLP in Springfield, (417) 882-9090.

DISH Network was represented by Daniel N. Allmayer and Lloyd W. Raber of Swanson Bernard LLC in Kansas City, (816) 410-4600.

Mary R. Russell, Judge

Gary Boothe, Jr., appeals the denial of workers’ compensation benefits. The Labor and Industrial Relations Commission found Boothe was not entitled to an award because his injury did not arise out of and in the course of his employment. Because Boothe, pursuant to section 287.020.3(2)(b),¹ failed to establish that his injury's risk source was related to his employment and that he was not equally exposed to that risk in nonemployment life, the Commission's decision is affirmed.

Background

Boothe was a Field Service Specialist Level 4 for DISH Network, Inc. In this position, he drove a company vehicle to provide services to customers in a large territory. On a typical day, Boothe received an itinerary around 7:15 a.m. and had 15 minutes to load his work vehicle. Boothe was expected to begin driving by 7:30 a.m. to arrive at his first appointment on time, as late arrivals could result in consequences. Although company policy prohibited eating while driving to ensure safety,² he occasionally picked up breakfast when traveling. Boothe admitted he could eat breakfast at home before work but suggested he preferred to eat later while driving because, on some days, his schedule and a lack of restaurants in his territory made eating lunch difficult. Yet Boothe also testified he did not eat before work because he was not a morning person. On days off, when Boothe was not bound by a time schedule, he ate meals at home.

One morning in July 2017, Boothe's first appointment was about a 30- to 45-minute drive from his home. After loading his van and starting to travel, he stopped at a convenience store and bought, among other things, a breakfast sandwich. Boothe, running slightly behind, continued on his route. Within a mile, he choked on the sandwich, attempted to slow down, and blacked out. Subsequently, his vehicle collided with a pillar on the side of the road. Boothe's body struck a pole located in the center of his van, and he suffered contusions to his chest

and right flank. He also had back pain. A police report indicated road and weather conditions were unproblematic and found physical impairment and distractions were contributing factors to the accident.

Boothe filed a workers’ compensation claim. After a hearing, an administrative law judge (the "ALJ") determined the injury's risk source was traveling on a rural highway on a strict timeline, which did not occur in nonemployment life. The ALJ, however, also acknowledged the tight schedule did not cause Boothe to eat while driving, as he could have had breakfast prior to starting work, and he could have eaten during breaks provided throughout the day. Ultimately, Boothe was awarded benefits, but the amount was reduced due to a violation of the company policy prohibiting eating while driving.

DISH sought review from the Commission, which denied compensation because Boothe failed to prove his injury arose out of his employment. The Commission found Boothe did not satisfy section 287.020.3(2)(b) and determined the injury's risk source was eating breakfast while driving, which created the risk of choking that led to the accident. It further held that, in these particular circumstances, Boothe failed to establish a causal connection between his injury and his work. The Commission found nothing about Boothe's employment required him to eat breakfast while driving, noting DISH policy prohibited such conduct. It explained that, while aspects of the job might limit his ability to take a lunch break, Boothe was eating breakfast. The Commission determined there was no evidence Boothe was rushed to reach his first appointment and, if he was rushed, he caused the issue. It held Boothe could have eaten breakfast prior to his shift or clocked into work and left his home earlier. The Commission further stated Boothe chose to stop at the convenience store of his own volition and found his employment did not require such an action. Based on these findings, the Commission denied compensation. Boothe appeals.³

Standard of Review

The Commission's decision must be "supported by competent and substantial evidence upon the whole record." Mo. Const. art. V, sec. 18.

Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495. If relevant facts are undisputed, the question of whether an accident arose out of and in the course of employment is one of law subject to de novo review. Miller v. Mo. Highway & Transp. Comm'n , 287 S.W.3d 671, 672 (Mo. banc 2009).

Analysis

Boothe contends the Commission erroneously determined he failed to establish his injury arose out of and in the course of his employment. To support his argument, he relies on various common law doctrines while alleging applicable statutes do not prevent recovery.

To be eligible for workers’ compensation benefits, an injury must arise out of and in the course of employment. See section 287.020.3; section 287.120.1.

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.

Section 287.020.3(2). "An injury will not be deemed to arise out of employment if it merely happened to occur while working but work was not a prevailing factor and the risk involved ... is one to which the worker would have been exposed equally in normal non-employment life." Miller , 287 S.W.3d at 674. More generally, a causal connection between an injury and a work activity other than mere occurrence at work must be shown. See id. Employees bear the burden of proof for these issues. Johme v. St. John's Mercy Healthcare , 366 S.W.3d 504, 510 (Mo. banc 2012). Further, failure to meet these standards is fatal to a workers’ compensation claim. Annayeva v. SAB of TSD of City of St. Louis , 597 S.W.3d 196, 199 (Mo. banc 2020).

Boothe posits the Commission misapplied section 287.020.3(2)(b). When deciding if a claim is compensable, section 287.020.3(2)(b) requires: 1) the hazard or risk to be related to employment and 2) the worker to not be equally exposed to the hazard or risk in nonemployment life. In conducting the applicable analysis, the injury's risk source is key. See Johme , 366 S.W.3d at 511. The Commission did not use the precise language from section 287.020.3(2)(b) to describe the risk source as one to which Boothe "would have been equally exposed outside of and unrelated to the employment in normal nonemployment life." Nonetheless, it determined Boothe failed to show his injury arose out of and in the course of employment, as required by section 287.020.3(2), because his injury resulted from a risk that was not caused by his employment. That finding is a correct application of the law and is supported by competent as well as substantial evidence...