Gary Boothe Jr. v Dish Network
Release Date: Dec. 29, 2020 (Accident July 23, 2017)
Venue: Southern District
Plot Summary: A driver in a company truck loses control of his truck after he chokes on a breakfast sandwich in violation of a company rule not to eat while driving. The Court reverses a denial of benefits on a failure of proof that the accident arose out of and in the course of employment and finds the driving to be an identifiable job related risk for someone employed to make service calls and risk of accidents on the road to be the hazard which caused the injuries and not the hazard of choking on food.
Claimant had left en route from his home to a job and stopped 6 miles from his home to pick up a sandwich and some smokes, blacked out, crashed, and hurt his neck and back. The employer had a rule to avoid eating while driving to reduce the risk of distraction.
The ALJ (Mahon) awarded benefits subject to a 30% safety penalty deduction. The Commission, in a 2-1 decision, reversed, and found claimant failed to identify a risk source to explain his cervical-thoracic, injury, lumbar strain, concussion, right flank and chest contusions. The Court found no penalty and found the event to be compensable.
The issue on appeal is confined to the application of subsection b of 287.020.3(2) and found the "real" risk was the road conditions and not claimant eating. The activity that caused the injury was driving and crashing the van and while choking caused the accident the van accident caused the injuries. The coughing did not cause the injury -- the physical violence to the body structure. Coughing was not an unexpected traumatic event. There was no evidence that claimant when he was not working maintained the same type of travel "schedule."
The court also makes the factual finding that claimant was on a "strict" timeline. It is not clear how this represents any occupational risk when claimant was on the "first" call of the day. There were no facts that claimant was compelled to eat while driving for personal comfort to meet a work-related schedule.
The court further found a basis for a safety penalty applies only if the accident was caused by the failure to follow the rules. In this instance, the violation of the rule not to eat in the car was not the cause of the accident because the cause of the accident was not choking but crashing into a pillar, according to the majority. It is difficult to distinguish the argument as anything other than positional risk when there was no evidence about increased risks of the vehicle, or conditions of the road, which caused the accident, but for the fact at that location claimant passed out by doing something he was told not to do.
A concurring opinion stated it would reach a different conclusion if claimant chocked to death or had injuries from the choking itself.
A dissent found a failure of proof of a work-related hazard.
The Commission reports the amount in dispute was about $89,000 in benefits, including more than a year of claimed temporary disability benefits. BootheGary17-05399610-17-19.pdf (mo.gov)
Cast:
Mahon, ALJ
Platter, atty
Allmayer, atty
