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July 25, 1983


From the Circuit Court of Greene County; Civil Appeal; Judge James H. Keet, Jr.

Motion for Rehearing Overruled, Transfer Denied August 15, 1983. Application Denied September 20, 1983.

Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.

The opinion of the court was delivered by: Flanigan

The widow and the ten-year-old child of Robert Earl Blatter filed a claim, under "The Workers' Compensation Law" for death benefits and burial expenses arising out of his death. Blatter was fatally injured at 9:24 p.m. on October 4, 1979, when he was hit by a vehicle as he was walking across Glenstone Avenue in Springfield. He died at the scene.

Blatter's self-insured employer was the Missouri Department of Social Services, Division of Aging. The claim was tried before James H. Wesley, Chief Administrative Law Judge of the Division of Workers' Compensation, who found in favor of claimants and awarded the maximum statutory benefits. The employer filed an application for review to the Labor and Industrial Relations Commission, which affirmed the award. The employer appealed to the Circuit Court of Greene County, § 287.490, *fn1 where the commission's award was affirmed. The employer appeals.

The employer contends that there was not "sufficient competent evidence in the record," § 287.490, to warrant the making of the award and to support the finding of the commission that the fatal accident "arose out of and in the course of" Blatter's employment.

On this appeal this court must determine if the award of the commission is supported by competent and substantial evidence on the whole record. All of the evidence and legitimate inferences therefrom must be viewed in the light most favorable to the award. This court may not substitute its judgment for that of the commission. The award may be set aside only if there is no substantial and competent evidence to support it or if the findings of the commission are clearly contrary to the overwhelming weight of the evidence. Conflicts in the evidence are for resolution by the commission. Blair v. Associated Wholesale Grocers Co., 593 S.W.2d 650, 652 (Mo. App. 1980).

Blatter had been an employee of the Missouri Division of Family Services for about nine years prior to his death. In 1979 the Division of Aging, an agency of the Department of Social Services, was created. Valdon Vire, one of the principal witnesses for the claimants, was the regional administrator for the Division of Aging and was in charge of the south half of Missouri, which included Waynesville where Blatter worked. Vire's deputy in that area was Alvin Hays. Blatter, whose immediate supervisor was Joyce Massey, was a case worker for the Division.

Vire arranged for a two-day training session to be held in Springfield beginning Thursday, October 4, at 10 a.m. and ending at 4:30 p.m. the next day. Thirty-four employees of the Division, including Blatter and his superiors Massey, Hays, and Vire, attended the session which was held at the Drury Inn motel on Glenstone Avenue. Attendance at the session was mandatory.

Those employees who resided more than 50 miles from Springfield were provided with lodging at the Drury Inn at state expense. Blatter was one of the 22 employees so provided. The state also paid the cost of travel and meals for the persons attending the conference.

Prior to the two-day session the Division mailed an inter-office communication to the supervisors of the employees who would attend. The memorandum contained an agenda, which did not mention an evening session on Thursday.

During the day session on Thursday, Valdon Vire announced to the group that "Mr. Hays and I and any other participants at the meeting who would like to join us for a social activity for cocktails and drinks that afternoon were to meet at approximately 7 p.m. in the lobby of the Drury Inn and anyone was welcome to do so." Vire also announced that "the plan was to go across the street to an establishment known as Wild Bill's for cocktails and drinks and Discussions and activities and socialization." A similar announcement was made by Hays.

According to Vire, attendance at the session at Wild Bill's was not "mandatory." Hays testified that the "region-wide training sessions" were held about every three or four months and that he, as a supervisor, "felt kind of a social obligation to go" to the informal evening session. Massey testified that "at 99 percent of the training sessions they have an informal session in the evening."

The day session on Thursday ended about 4:30 p.m. About 15 or 20 of the group went to Ebenezer's Restaurant in Springfield for their evening meal. Blatter was not in that group and the record does not ...

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