Tuesday, February 22, 2011

Personal Comfort doctrine survives "reform"

The Commission recently reversed a denial of benefits, and found a billing clerk who twisted her ankle while making coffee at work can recover compensation benefits under the personal comfort doctrine. The case is Sandy Johme v St. John's Mercy Medical Center, decided on 2-22-11. The Commission found making coffee was an activity incidental to her employment. She twisted her ankle, fell off her shoe, fell backwards, and broke her pelvis.

The Commission in a 2-1 decision found no clear statutory intent in 2005 reform to abrogate the personal comfort doctrine, which has been around for 80 years, despite the clear intent to narrow the definition of accident and abrogate controversial decisions based on positional risk. The Commission applied a three prong balancing test when an incidental activity may be compensable: if the departure was not great, if the method was not unusual or unreasonable, and if there was some benefit to the employer. In this case, the commission identified no hazard causing the accident, but identified that coffee made other employees have more energy and focus. Claimant testified that her employer provided coffee supplies, employees made coffee all the time, and she lost her balance when throwing away coffee grounds.

The case opens the door to more litigation involving incidental activity claims and shifts the new battle whether an accident flows from work activities to whether a departure from work activities is reasonable.

Applying Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010) the Commission found that the hazard of making coffee was deemed related to employment. The Commission did not apply the second prong of Pile, whether claimant had equal exposure to non-employment life. Claimant offered testimony that she had no hazard to "making coffee" on the weekends, because she did not drink coffee away from the job. The parties litigated the case on the legal issue only, and stipulated to medical expenses, TTD, and PPD of 30%. Johme v St. Johns Mercy Medical Center, DOLIR 2-22-01.