Hilton v. Pizza Hut, WD

• Decision Date: 15 November 1994
• Docket Number: No. WD,WD
• Parties: Michelle HILTON, Appellant, v. PIZZA HUT, Respondent. 49415.
• Court: Missouri Court of Appeals

Page 625

892 S.W.2d 625

Michelle HILTON, Appellant, v. PIZZA HUT, Respondent.

No. WD 49415.

Missouri Court of Appeals Western District.

Nov. 15, 1994.

Randall William Cain, Lee's Summit, for appellant.

Roland P. Walker, Columbia, for respondent.

Before FENNER, C.J., P.J., and HANNA and LAURA DENVIR STITH, JJ.

FENNER, Chief Judge.

Appellant, Michelle Hilton, appeals the final award of the Labor and Industrial Relations Commission (the Commission) denying compensation for injuries she sustained in an automobile accident. The Commission found that the decision of the administrative law judge (ALJ) awarding no compensation was supported by competent and substantial evidence and was in accordance with the Missouri Workers' Compensation Act. The decisive issue in this appeal is whether Michelle's injuries arose out of and in the course of her employment with respondent, Pizza Hut.

The record reflects that Michelle, who testified at trial on April 21, 1993, graduated from high school in 1989 and moved to Columbia, Missouri in May of 1990 to be with her boyfriend, Craig McCracken. Michelle took a job at Dairy Queen in Columbia and started working there on May 14, 1990. Craig was working at Pizza Hut at that time which was across the street from the Dairy Queen where Michelle worked.

On the afternoon of May 14, 1990, after Michelle got off work at Dairy Queen, she went across the street to Pizza Hut to meet Craig. Craig told Michelle that Nicole Sanders, store manager at Pizza Hut, wanted to talk to her about a waitressing job at Pizza Hut. After a short interview, Michelle was hired to work nights at Pizza Hut. Michelle filled out an employment application that day.

Michelle also filled out an Employment Eligibility Verification (Form I-9) that was dated May 18, 1990. On this form, Ms. Sanders checked two boxes indicating that Michelle had produced a driver's license and an original Social Security card, establishing employment eligibility. However, Michelle testified that she had not shown Ms. Sanders her Social Security card on May 18th because she did not have it with her. She could not find it at the time. Michelle was only able to produce a driver's license.

Michelle started working at Pizza Hut on the evening of May 14, 1990. According to Michelle's testimony, twice during the week of May 28th, Ms. Sanders told Michelle that she needed to produce a Social Security card and a birth certificate. No deadline was given, however. Michelle indicated that she would look for them. She also called her mother in Trenton, Missouri to ask her to look for the documents at home.

On the morning of June 4, 1990, Michelle had a telephone conversation with her mother and her mother said that she could not find the Social Security card. Michelle testified, "But I found out she couldn't find [the documents], so my only option was that I would have to find them." Michelle had asked both Pizza Hut and Dairy Queen for June 12th off so that she could go back to Trenton where she had to make a court appearance. Michelle apparently intended to look for the documents on that day as well.

Michelle worked at Pizza Hut on the evening of June 4th. At that time, according to Michelle, Ms. Sanders apparently confronted her about the documents that she had requested. Michelle testified that Ms. Sanders said that she needed the documents by Friday, June 8th, or Michelle would be terminated. Michelle testified further that because she was working at both Pizza Hut and Dairy Queen for that week, without the same days off at either one, it was difficult for her to go to Trenton by June 8th unless she went in the middle of the night between jobs.

Michelle discussed the situation with her boyfriend, Craig, and they decided that they should go to Trenton after work on June 4th. Ms. Sanders was at Pizza Hut until the afternoon on June 4th and then left, but came back between 9:00 and 11:00 p.m. and left again "shortly after eleven." Michelle testified that before Ms. Sanders left, Michelle told her that she and Craig were going to go to Trenton that evening after work. However, Michelle did not recall whether or not Ms. Sanders told her not to go on the trip.

Nicole Sanders testified that employees at Pizza Hut are not allowed to take personal trips while they are on the time clock. If an employee takes a break during a shift, she needs to be off the clock. Ms. Sanders testified that she did not tell Michelle to go to Trenton after work on June 4th to get the documents. Rather, she stated that she told Michelle and Craig not to go anyplace that evening of June 4th. Ms. Sanders testified that Michelle and Craig told her they were going to Trenton that night "to show Missy's mom the new car they had just bought." Ms. Sanders stated that she did not specifically remember interviewing Michelle and she did not specifically recall seeing Michelle's Social Security card or driver's license. Further, she stated that she did not remember discussing the Social Security card and/or birth certificate with Michelle and she did not remember giving Michelle a deadline of June 8th to produce the documents. Nonetheless, by adopting the findings of the ALJ, the Commission accepted the June 8th deadline.

Greg Barnette, an assistant manager at Pizza Hut, was working on the evening of June 4th and recalled that he "did mention that [Craig and Michelle] probably shouldn't be driving that distance, you know, that late at night." Mr. Barnette, however, did not remember if he said that to Craig or Michelle directly. He just remembers saying it.

Michelle and Craig left Pizza Hut at approximately twelve-thirty in the morning on June 5th and went to their apartment in Columbia to change clothes. After stopping to get gas, they proceeded to drive to Michelle's mother's home in Trenton. Craig drove and Michelle was in the passenger's seat. In Jacksonville, Missouri, about halfway between Columbia and Trenton, Craig fell asleep at the wheel and the car crashed and burned. As a result of that accident, Michelle suffered serious injuries.

Michelle timely filed a claim for compensation with the Division of Workers' Compensation on April 29, 1991.

A trial took place on April 21, 1993 before the Division of Workers' Compensation. In its findings of fact and rulings of law, dated August 20, 1993, the ALJ stated, in part, as follows:

In this case the Claimant had numerous options for compliance with the federal law and employer's requirements; unfortunately, the one claimant chose was extremely detrimental to claimant. This fact is relevant in showing the degree of control and "requirement" of the trip by the employer. In this case the employer did not require the trip or dictate the means of compliance with its requirement, and it is believed the assistant manager discouraged the trip. It is also believed that the employer would have, at the time the trip occurred, not authorized or required such trip if the Employer would have believed it was responsible for Claimant's compliance with the verification mandate.... The decision to go to Trenton on the morning of the 5th was decided by Claimant and Mr. McCracken, not the employer.

In this case the Employer did not exercise any control or supervision and did not mandate the travel; Claimant did not choose to call her mother and request that she look more diligently before the June 8th deadline. She did not contact the Social Security office for an alternative Social Security card nor did she follow the advice of her "friends" to wait until Mr. McCracken had more rest.

* * * * * *

Being an essential condition of employment in and of itself does not meet the arising out of and in the course of employment and additional nexus to the Claimant's actual services to be performed is required for an activity to be incidental to employmen[t]. This case is absent any act by the Employer or any relationship to the Employee's duties which satisfies that additional requirement or provided a "special nexus". All compensation is denied Claimant.

On September 7, 1993, Michelle filed an application for review of the ALJ's determination. The Commission entered a final award denying compensation on April 8, 1994, affirming and incorporating the ALJ's award of August 20, 1993. This appeal followed.

In her sole point on appeal, Michelle argues that the Commission erred in denying her compensation in that the facts as found by the Commission showed that her injury arose out of and was within the scope and course of her employment.

The standard of review is set forth in section 287.495.1, RSMo 1986, which provides, in pertinent part, as follows:

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.

The function of this court in reviewing the Commission's decision is to determine whether the Commission's findings are supported by competent and substantial evidence. Gudde v. Heiman Grain, Inc., 830 S.W.2d 574, 576 (Mo.App.1992). We may set aside the Commission's decision only if the findings of the Commission are clearly contrary to the overwhelming weight of the evidence or no competent and substantial evidence supports it. Id.

All of the evidence and legitimate inferences therefrom must be viewed in the light most favorable to the award. Phillips v. Ozark Bank, 803 S.W.2d 662, 663 (Mo.App.1991). We may not substitute our judgment for that of the Commission. Id....