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Mo. Supreme Court: Choking on breakfast sandwich not work comp compensable

By Brad Young, Harris Dowell Fisher & Young L.C.


December 22, 2021 - In February, Missouri Court of Appeals, Southern District reversed a denial by the Missouri Labor and Industrial Relations Commission, determining that an employee who choked on a breakfast sandwich, causing him to crash his vehicle, suffered a compensable workers' compensation injury.

Following this absurd decision, the employer/insurer filed for transfer to the Missouri Supreme Court. On December 21, the Missouri Supreme Court reversed the Court of Appeals and affirmed the denied of the claim by the Commission, correctly finding that the employee who crashed his vehicle while eating a breakfast sandwich did NOT suffer a compensable injury.


WHY THE COURT FOUND THIS CLAIM NON-COMPENSABLE

The MO Supreme Court found that claimant failed to establish his injuries arose out of and in the course of his employment. To be eligible for workers’ compensation benefits, a claimant must establish the risk was related to the employment and the claimant would not have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The injury’s risk source is key. Claimant’s injury’s risk source was eating while driving, which created a risk of choking and led to the accident resulting in injury. Eating while driving was not related to Boothe’s employment, as the Employer did not require him to eat breakfast during the workday and claimant could have had breakfast beforehand despite a tight schedule.

Furthermore, although claimant alleged he ate at home when not working, he otherwise failed to establish he was not equally exposed to risk of injury from eating while driving in nonemployment life. Accordingly, his injury was not compensable.

This decision further advances the “Equal Exposure” defense found in §287.020.(3)(2)(b), which states that an injury is compensable ONLY if:


“It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.”

The Missouri Supreme Court previously applied this statute, stating:

“[I]t is not enough that an employee's injury occurs while doing something related to or incidental to the employee's work; rather, the employee's injury is only compensable if it is shown to have resulted from a hazard or risk to which the employee would not be equally exposed in ‘normal nonemployment life.’ ” Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 509 (Mo. banc 2012).

PRACTICE POINTS First, when analyzing the compensability of a new claim, ensure that you identify the specific risk source that caused the injury. Here, it was the choking that occurred while the claimant was eating his breakfast sandwich that caused the car accident. If you can demonstrate that the risk source is not related to the employment, you can develop a successful defense to a claim. Secondly, this case is the poster child for developing a robust set of safety rules and procedures. Under §287.120.5, the employer/insurer can reduce the benefits paid to the claimant by up to 50% if the injury occurred as a result of the employee’s failure to follow safety rules or use safety equipment:

“§287.120.5: Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee’s failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefit provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer.” (Emphasis added) If you have any questions about this decision from the Missouri Supreme Court or how to implement the suggested practice points, please feel free to call or email Brad Young, byoung@harrisdowell.com, (636) 532-0300.


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