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Simmons v. Mears7/12/2005
Opinion Vote: AFFIRMED.
Garrison, P.J., and Rahmeyer, J., concur.
Opinion:
This is an appeal from the Labor and Industrial Relations Commission ("Commission"). Harry Simmons ("Appellant") sought worker's compensation benefits for injuries he suffered while employed at Bob Mears Wholesale Florist ("Employer"). Employer and its insurer, Florist Mutual Insurance Company ("Insurer"), contend that Appellant's injuries did not arise from his employment. The Division of Workers' Compensation ("Division"), through an Administrative Law Judge ("ALJ"), awarded compensation to Appellant. The award was reversed by the Commission.
Appellant was employed by Employer five years prior to the accident. Appellant handled Employer's sales accounts in Arkansas and Missouri. Appellant testified that on August 20, 1993, he drove to Mountain Home, Arkansas in Employer's vehicle. After visiting customers in Mountain Home, Appellant stopped at a liquor store and picked up a half-pint of Jack Daniels whiskey before leaving at 1:30 p.m. that afternoon. Appellant testified that he drove toward Forsyth, Missouri, where he had customers. En route, Appellant stopped at a pull-off on Highway 125 to drink the whiskey. This detour lasted thirty minutes. Appellant recalls leaving the pull-off area but did not remember anything after driving back onto the highway. At 3:25 p.m., Appellant's vehicle left Highway 76, tore down seventy-five feet of fencing, struck a tree, and caught on fire. The Missouri Highway Patrol Accident Report ("Accident Report") indicated that Appellant was asleep at the time of the accident, and a physician determined that Appellant suffered from "alcohol intoxication" when he was admitted to St. John's Hospital in Springfield, Missouri for treatment of his injuries.
Appellant sustained a broken pelvis, broken fibula, burns and cuts over his legs, nerve damage to his elbow, concussion, broken nose, and injuries to his left shoulder. Appellant filed a Claim for Compensation on October 20, 1993. Employer and Insurer denied that the accident occurred within the scope of Appellant's employment, contended that Employer was not responsible for expenses and disability payments, and disputed the nature and extent of injuries. On December 8, 2003, an ALJ found Appellant was within the scope of employment at the time of the accident and that his injuries arose out of and in the course of employment. The ALJ found that "alcohol was not the proximate cause of the accident" and rated Appellant's disability at "15% permanent partial disability to the body as a whole, less the 15% penalty."
Employer and Insurer then filed an application for review with the Commission, requesting a reversal of the benefits awarded to Appellant. The Commission concluded that the accident did not arise out of the course of employment, that Appellant "was on an alcohol related frolic, in violation of [Employer] policy, . . . left the course of employment and had not returned . . . when the accident occurred." The Commission reversed the ALJ's decision on November 2, 2004. In its decision, the Commission found:
Employee would not have been on that particular highway except for the fact that he knew that there was less traffic and a recreational area where he would not get caught drinking his alcohol. He deviated from Employer's business and was serving only his own purpose at the time of the accident.
Because he was drinking alcohol and was unfamiliar with the highway, which admittedly was not a driver-friendly highway, he wrecked. Had he not deviated from his work to go hide and drink he would not have been on that particular highway and more than likely wo
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