Ford v. Bi-State Development Agency

• Decision Date: 08 August 1984
• Docket Number: No. 47830,BI-STATE,47830
• Citation: 677 S.W.2d 899
• Parties: John FORD, Respondent, v.DEVELOPMENT AGENCY, Appellant.
• Court: Missouri Court of Appeals

Page 899

677 S.W.2d 899

John FORD, Respondent, v. BI-STATE DEVELOPMENT AGENCY, Appellant.

No. 47830.

Missouri Court of Appeals,

Eastern District,

Division Four.

August 8, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 28, 1984.

Frank J. Lahey, Jr., St. Louis, for appellant.

Herbert D. Schaeffer, Thomas Taylor, Clayton, for respondent.

GAERTNER, Presiding Judge.

John Ford, the claimant in this Worker's Compensation case, was employed by Bi-State Development Agency (employer) as a bus driver. Claimant was injured on February 12, 1982, when, after discharging his last passenger during his bus run, he stopped to use the restroom and obtain a cup of coffee at a nearby MacDonald's Restaurant where he slipped upon entering. The Labor and Industrial Relations Commission affirmed the award of compensation made by the administrative law judge. Bi-State has perfected its appeal directly to this court. § 287.495, RSMo 1980. We affirm.

"We begin our analysis with an acknowledgement of our standard of review of a workers' compensation claim: It is a review of 'the whole record in the light most favorable to the decision, deferring to the Industrial Commission when it resolves issues concerning the credibility and weight to be given to conflicting evidence and to affirm when the decision is supported by competent and substantial evidence.' " Hagan v. Paris & Osbourne Chevrolet, 667 S.W.2d 1, 2 (Mo.App.1984), quoting Gold v. Sharp, Kidde, Webb, 564 S.W.2d 612, 614-15 (Mo.App.1978). "Appellate review of a decision of the Commission is limited to a determination of whether the award is supported by competent and substantial evidence on the record as a whole." Sample v. Monsanto Chemical Co., 664 S.W.2d 625, 626 (Mo.App.1984).

The first issue on appeal is whether claimant's accident arose out of and in the course and scope of his employment. This is a question of law. Automobile Club Inter-Insurance Exchange v. Bevel, 663 S.W.2d 242, 245 (Mo.Banc 1984). "The general rule is that an injury is one that 'arises out of' the employment if it is a natural and reasonable incident thereof and it is 'in the course of employment' if the accident occurs within a period of employment at a place where the employee may reasonably be fulfilling the duties of employment." Id. (emphasis added). "The terms 'arising out of' and 'in the course of' employment are two separate tests, and both must be met before one is entitled to compensation." Id.

In the first of this two-part test, an injury arises "out of" the employment when there is a causal connection between the nature of the employee's duties or conditions under which he is required to perform them and the resulting injury. Id. No challenge to claimant's recovery under the first part of this test is made. Claimant's injuries "arose out of" his employment with Bi-State because there was a causal connection between his duties and his injuries. It was during his employment on his daily morning run that his injury occurred.

Bi-State attacks the propriety of the Commission's award to claimant based on claimant's failure to satisfy the second prong of the test by proving the accident occurred while he was "in the course of employment." Under the second part of the two-part test, "in the course of employment" refers to the time, place, and circumstances under which the injuries are received. Id. See also 1 A. Larson, Workmen's Compensation Law, § 14.00 (1982). "An injury to an employee arises 'in the course of' his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto." Goetz v J.D. Carson Co., 357 Mo. 125, 206 S.W.2d 530, 534 (1947). See Yaffe v. St. Louis Children's Hospital, 648 S.W.2d 549, 551 (Mo.App.1982). Employees who, within the time and space limits of their employment engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment. 1A Larson, supra, § 21.00, p. 5-4. "Accidents occurring while an employee is on his way to or from toilet facilities, or while he is engaged in relieving himself, arise within the course of employment, subject only to the possible question of reasonableness of the means or place chosen." Id. at § 21.53, p. 5-34. A pause by an employee within the reasonable limits of time and place to satisfy the needs of the body for food or drink, or even for refreshment, may well be considered as reasonably incidental to his work. Goetz, 206 S.W.2d at 534.

The method utilized and the facility selected by claimant were not unreasonable or so removed from approved practice as to be either a substantial deviation or an extraordinary action precluding his recovery. Although employer had provided facilities about two blocks from where claimant stopped, no unreasonableness appears in claimant's selection of improvised facilities. He did not deviate from his usual bus line route to effect his goal. Claimant's bus had no passengers on it when he stopped. The commission adopted administrative law judge's decision in toto, including his finding that claimant "chose the ideal time to answer a call of nature and obtain refreshments for his up and coming break." Had claimant used the facilities employer says he should have, claimant "would have had to leave his bus unattended for a greater length of time and be totally out of sight of the bus for a greater length of time."

While the use of a prohibited method of seeking personal comforts may be fatal in some instances, see 1A A. Larson, supra, § 21.82, p. 5-60 to 5-63, no evidence exists that employer strictly prohibited the employees from the use of any other accommodations. To the contrary, the employees apparently were permitted to use unspecified facilities in emergencies. We conclude that claimant's excursus to MacDonald's was reasonably incidental to his work and we uphold the Commission's finding that the accident with its consequent injuries arose out of and in the course of employment.

Employer's second point asserts claimant failed to give notice of injury to his employer as provided by § 287.420, RSMo 1978. Although § 287.420 requires that the employer receive written notice of an injury, the section excuses that requirement when the employer was not prejudiced by the failure to receive the notice. DeRousse v. PPG Industries, Inc., 598 S.W.2d 106, 112 n. 7 (Mo. banc 1980). After the accident on February 12, 1982, claimant finished his route and returned to the garage where he informed his union representative that he had fallen and was going to the hospital. The union representative in turn relayed the information to the only company person there, either the superintendent or the dispatcher. A fellow employee of claimant's also informed the Bi-State division superintendent that claimant had fallen at MacDonald's during the morning of claimant's bus run, that claimant had been injured and that claimant would not be in for his afternoon run. Several weeks after the accident, claimant told his supervisor that he had slipped and fallen at MacDonald's when he had stopped to use the restroom and get coffee. Claimant did not submit a written report of injury to his employer until June 2, 1982.

Notice of a potentially compensable injury acquired by a supervisory employee is imputed to the employer. Knowledge of a potentially compensable injury makes a prima facie showing that the employer was not prejudiced by the failure to receive timely written notice and shifts to the employer the burden of proving the contrary. Malcom v. LA-Z-Boy Midwest Chair Co., 618 S.W.2d 725, 727-28 (Mo.App.1981). Employer presented no evidence of prejudice from claimant's delay to give timely written notice. The finding of the Commission here that claimant gave actual notice to the employer within 30 days of the injury, although no written report was submitted until June 2, 1982, is proper.

Employer's final point attacks the admission into evidence over its objection of the deposition of one of the claimant's physicians on two grounds: 1) the medical report of the physician was not furnished to the employer within the time required by § 287.210.3 RSMo Supp.1982; and 2) no showing was made that the doctor was unavailable to personally appear and testify. Employer states that without the evidence of doctor's deposition, claimant fails to establish causation to support the award of compensation benefits. Section...