Hedrick v. Big O Tires
2017 Mo. App. LEXIS 660 (Burrell, J.)
June 29, 2017
re-issued July 18, 2017
Claimant appeals a denial of benefits for failure to prove an unexpected accident when he lit a can of glue on fire, the can exploded, and the can severely burned him and a co-worker, who originally held the can.
Claimant was unable to testify regarding the accident and stated he recalled waking up in a hospital. He sustained burns to more than 40% of his body from the accident. He expressly denied that he ever engage in dangerous horseplay. Claimant was fired as a result of the incident.
A witness testified that the employer had discouraged horseplay in the shop.
"On the day Mr. Milazzo was injured, he observed Claimant "[g]oofing around, watching videos on his cell phone." Mr. Milazzo thought it was Claimant's last day at work for Employer. Mr. Milazzo recalled that just before he was injured, he was patching a tire that had been removed from a wheel. Mr. Milazzo had not asked for help patching the tire, he did not need help patching the tire, and he could not think of any reason related to job duties that Claimant would have had "a lighter near [Mr. Milazzo's] bottle of adhesive[.]" Mr. Milazzo was letting the glue "dry by air" and he did not "use a flame of any kind to dry the glue or adhesive during the patching process[.]" He was not a smoker, and he did not use a lighter in his work at Employer's shop. Mr. Milazzo testified that "immediately before he caught on fire[,]" Claimant "came up to [him] and . .. lit the can of glue on fire that was in [Mr. Milazzo's] hand and looked at [Mr. Milazzo] and kind of smiled and then [Mr. Milazzo] immediately threw the bottle down because [he] was on fire." Mr. Milazzo said Claimant used "[a] lighter" to ignite the glue can, and Claimant was "laughing" as he lit it. The glue can fizzled and "spit" on Mr. Milazzo's arm, causing him to throw or drop it. When it landed, "[i]t exploded with a big flame." Mr. Milazzo "require[d] extensive treatment for [his] injuries" and was off work "quite a long time."
"The Commission found that even though Claimant "expressly denied" engaging in dangerous horseplay, "he readily admitted that lighting a can of adhesive on fire was unquestionably dangerous." Finding that Claimant's injuries did not arise out of and in the course of his employment, the Commission reasoned: "Simply stated, the risk or hazard from which [Claimant's] injuries came was [his] own voluntary choice to engage in a spontaneous, unprecedented, and potentially deadly act when he lit a can of industrial adhesive on fire." This appeal timely followed. See section 287.495.1."
The court noted that proof of accident required proof of an "unexpected" traumatic event. In this instance, lighting a flammable container was expected or foreseeable to produce wounds and did not meet the definition of accident. It was unnecessary to address whether the claimant fully appreciated the scope of potential injury. The court also noted claimant could not pursue a claim under a theory of assault and re-iterated Missouri's initial aggressor rule.
The commission denied on the basis of the failure to prove accident or that his accident arose out of his employment. It found his"own voluntary choice to engage in a spontaneous, unprecedented, and potentially deadly act when he lit a can of industrial adhesive on fire." The commission affirmed a denial on failure to prove accident and that the injury did not arise out of his employment. The court affirmed the denial on failure to prove accident, although it noted the original decision focused on the second issue of arising out of.
