Missouri Court Stresses Importance of Injury “by Accident” in Recent Horseplay Case

The Missouri Court of Appeals recently affirmed a decision of that state’s Labor and Industrial Relations Commission that had denied workers’ compensation benefits to a tire shop employee who sustained severe burns when he used a lighter to ignite a can of glue held in a coworker’s hand during an apparent lull in the workday [Hedrick v. Big O Tires, 2017 Mo. App. LEXIS 660 (June 29, 2017)]. Agreeing with the Commission, that the claimant’s intentional ignition of the glue was not an accident, as that term is defined in Mo. Rev. Stat. § 287.020 (2017), the Court stressed that it is the accident, and not the injury, that is the event which is unforeseen. The Court added, “It is therefore possible that an expected traumatic event may produce unexpected injuries, but that does not change the event from a non-accident to an accident” [2017 Mo. App. LEXIS 660, emphasis by the Court].

Background

Claimant worked for the employer fixing tires, performing vehicle alignments and oil changes, and doing general mechanic work. Fixing tires sometimes required using an adhesive, and multiple techniques were used to dry the adhesive, including simply waiting or lighting it on fire to make it very sticky and tacky. Another employee testified that mechanics were not supposed to use a lighter on the tire glue, but that he had seen it done at the tire shop before the date of claimant’s injury.

Claimant testified that there was occasional joking around at the shop, although he did not consider their acts of horseplay to be dangerous or harmful. On cross-examination, he testified that he knew that lighting a can of glue on fire could be dangerous and he admitted further that there was no legitimate function to be served that would have caused him to use a lighter and ignite the can of glue that was being held by the coworker. Parenthetically, it should be noted that when claimant lit the can of glue, it startled the coworker, who dropped the can and it exploded, causing severe burns to both the coworker and claimant. Indeed, claimant suffered burns to between 40 and 49 percent of his body.

ALJ’s Decision

The ALJ denied benefits, finding that claimant failed to sustain his burden of proof that he was injured as the result of a compensable accident under Missouri’s workers’ compensation law. The ALJ also found that claimant failed to demonstrate a causal connection between the duties of his employment and his actions. The Commission affirmed.

Court of Appeals Decision

The Court said claimant had concentrated on the wrong issue. Claimant had argued that his injuries clearly arose out of and in the course of the employment. The Court said the initial question was whether, in fact, an “accident” had occured as defined in the statutes. The court continued that, for purposes of workers’ compensation, “injury” meant an injury that arose out of and in the course of employment. An injury by accident is, however, compensable only “if the accident was the prevailing factor in causing both the resulting medical condition and disability.”

Commentary: Decision Narrows Compensability of Horseplay Injuries in Missouri

When it comes to horseplay, the current tendency is to treat the issue primarily as a “course of employment” rather than an “arising-out-of-the-employment” problem [see Larson’s Workers’ Compensation Law, Ch. 23, § 23.01 et seq.] Minor acts of horseplay generally do not constitute such a departure from employnment as to deny compensability. Whether initiation of horseplay is a deviation from course of employment usually depends on:

• The extent and seriousness of the deviation;
• The completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty);
• The extent to which the practice of horseplay had become an accepted part of the employment; and
• The extent to which the nature of the employment may be expected to include some such horseplay.

The Missouri court, however, determined the case on the preliminary issue: Was the action of the horesplay participant/instigator intentional? As discussed in Larson, some jurisdictions tend to focus on the accidental nature of the “cause,” while others tend to focus on the accidental nature of the results“ [Larson, Ch. 42, § 42.01 et seq.] With this decision, Missouri appears clearly to come down on the former side. The ALJ found, and the Commission and appellate court agreed: The claimant’s action in lighting the can of glue was intentional; the resulting injury was not, therefore, an ”injury by accident.”