Relaxed definition of 'accident' affects workers' compensation

Workers' compensation benefits are paid when employees have accidents on the job and suffer injuries as a result of those accidents. In recent years, however, the trend of our legislature and our courts has been to chip away at the re-quirement that the employee have an "accident." The court cases and laws have relaxed the definition of "accident" so that almost any occurrence on the job is an "accident," making it eligible for workers' compensation benefits.

The actual law defines an accident as: "2. The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury ..." Section 287.020.2, RSMo, 1991.

While the law makes it sound like the commonly understood meaning of "accident" is to be used in workers' compensation cases, some recent results setting out just what constitutes an "accident" might surprise employers.

For example, in the case of Drewes vs. TWA, 984 S.W.2d 512 (Mo. Banc 1999), an employee of TWA who worked in the airport terminal was taking a break. There was a line to the microwave in the employees' break room, so she went to a non-employer controlled break room. On the way, she fell and injured herself.

The Missouri Supreme Court held that Drewes' act of walking to the other break room fell under the "personal comfort doctrine" and that eating lunch is "incidental" to employment.

In other words, the employer paid.

Even more surprising is the case of Kasl vs. Bristol Care Inc., also decided by the Supreme Court of Missouri. The employee was a resident manager of a care facility. She was sitting down while waiting to dispense medication. Her leg fell asleep, and as she stood up, she fell and broke her ankle. The Supreme Court found that this was an accident, and ordered the employer and insurance company to pay the employee her medical bills, time off of work, and permanent disability. The court said that Kasl had to sit and wait to dispense medication, and so the condition that caused her leg to fall asleep was part of her job and "a substantial factor" in causing the fall and the injury. Kasl vs. Bristol Care Inc., 984 S.W. 2d 852 (Mo. Banc. 1999).

That means the employer and insurer paid.

At this point, it appears that an employee who is simply walking, sitting or standing, and who has pain in their body while on the job has had an "accident" for workers' compensation purposes.

It is difficult to imagine a case that shows this better than DeLong vs. Shop N Save. The employee was standing and discussing work with another employee. During the conversation, one of the employees lifted her right foot and turned her left knee. She felt a Charley horse in her leg, and ended up having knee surgery for a torn medial meniscus. The Court of Appeals held that this was work-related! DeLong Shop N Save, 972 S.W. 495 (M. App. E.D. 1998).

Once again, the employer paid for medical care, time off of work and permanent disability.

The law states that an accident has to arise out of the injured workers' employment. In reality, some cases show that if the employee is on the premises and on the clock, any injuries they have will be covered by workers' compensation.

A home health aide worker testified that she hurt her back while dodging a wild bird which flew down the chimney of the home of a client for whom she was caring. The courts found this was a compensable "accident." The employer and insurer were ordered to pay benefits. Cook vs. St. Mary's Hospital, 993 S.W. 2d 448, (Mo. App. W.D. 1997).

Some cases show that all common sense has not flown up the chimney, however. In Jemison vs. Superior Auto Mall, an employee took a paid lunch hour to go job hunting. On his way back from two job interviews, he was in an accident. He filed a claim against his employer, but the courts did not allow compensation, saying that his employment was "suspended" while he was job hunting. Jemison v. Superior Auto Mall, 932 S.W. 2d 431 (Mo. App. W. D. 1996).

There are also instances where the courts have applied common sense to reach a fair result for public policy reasons. An off-duty police officer was re-turning from a party outside of his employer's jurisdiction and sustained injuries while assisting motorists. The officer's injuries were covered under workers' compensation, with the court noting, "In a sense, a police officer is never off duty." Spieler v. Village of Bel-nor, 62 S.W.3d 457 (Mo. App. E.D.) 2001.

Similarly, if a trucker is injured while assisting another trucker, his injuries will most likely be covered under workers' compensation.

The expansion of workers' compensation coverage beyond what the law seemed originally designed to cover makes it difficult for employers to estimate their losses and difficult for insurers to set their reserves.

(Rebecca Tatlow is a partner with the law firm Evans & Dixon. She practices in the firm's Springfield office.)