dissenting.
I respectfully dissent because the majority opinion conflicts with the most recent controlling decision of the Missouri Supreme Court.
In Cox v. Tyson Foods, Inc., 920 S.W.2d 534 (Mo. banc 1996), “Delbert Cox slipped on ice and injured his back while returning to work from a trip to a convenience store during his paid break.” Id. at 535. Tyson permitted workers to leave the premises during their breaks, and Mr. Cox had done so to purchase a breakfast biscuit. Id. He was walking along the usual and customary route from the parking lot to the plant when he fell. Id.
Mr. Cox filed a claim for workers’ compensation benefits and was awarded compensation by the Administrative Law Judge after a hearing. Id. Tyson appealed to the Labor and Industrial Relations Commission, which reversed the award. Id. Mr. Cox appealed, and our Supreme Court held that the Commission had misapplied the law and that Mr. Cox was entitled to benefits. Id. at 537. In doing so, the Court noted that “[ijnjuries incurred on employer’s premises along the accepted route to or from work arise out of and in the course of employment just a much as do injuries occurring during the performance of work.”1 Id. at 536. The Court also rejected Tyson’s argument that the personal nature of the trip to the convenience store precluded compensation. Id. at 537. It pointed out that Missouri courts have held injuries that occurred during break time compensable, notwithstanding they involved such varied activities as feeding a parking meter and inflating a tire on the employee’s personal car. Id. The Court went on to state that “ ‘activities for the comfort or convenience of the employee are considered incidental to employment when they occur within reasonable limits of time and place because they benefit the employee and thereby indirectly benefit the employer.’ ” Id. (quoting Davison v. Florsheim Shoe Co., 750 S.W.2d 481, 484 (Mo.App. W.D.1988)). Accordingly, the Court held that the fact that Mr. Cox was returning from his authorized break did not make his injury less incidental to his employment than if he fell on the way to work at the start of his shift. Id.
In Wells v. Broun, 33 S.W.3d 190 (Mo. banc 2000), our Supreme Court affirmed the continued vitality of Cox, rejecting an argument that it was superceded by amendments to the Workers’ Compensation Law in 1993.2 Id. at 193. The Wells Court stated that injuries going to or from one’s work place are compensable if the injury producing accident occurs on premises which are owned or controlled by the employer. Id. at 192. In Wells, the employee slipped and fell on the ice-covered parking lot of the building where she worked, and the Supreme Court affirmed an award of compensation in favor of the employee. Id. at 191-193.
In the case sub judice, Mr. Jones decided to get some exercise during his lunch *474break by going to the walking path provided by his employer and taking a walk. There are two usual and customary routes to the walking path. The first runs along the side of the building and then crosses a private road to the path. The second traverses two sides of the parking lot and then crosses the private road to the path. Mr. Jones took the second route. As he started to cross the private road, before he reached the path, he tripped on an area where the parking lot, private drive, grass and dirt met. He fell face down and suffered serious injuries.
The majority holds that because Mr. Jones subjectively viewed his trip to the walking path as part of the exercise walk he intended to take, he was injured in the course of a recreational activity and is precluded from receiving workers’ compensation benefits by virtue of § 287.120.7. The Commission, on the other hand, found that his subjective contemplation of the trip to the walking path was not disposi-tive, but rather the objective fact that he was injured prior to entering the perimeter or boundaries of the walking path where TWA contemplated its employees would engage in recreational walks was determinative.
I agree with the Commission. Section 287.120.7 has no application to this case. While TWA provided a recreational area, the walking path, the injury did not occur on the employer provided recreational facility. Rather, it happened on Mr. Jones’ trip to the recreational facility and is, therefore, no less compensable than if Mr. Jones had fallen while walking to or from his work place at the beginning or end of his shift, or when going to or returning from a trip to a convenience store during his lunch break.
The facts in this case are essentially indistinguishable from those in Cox.3 Mr. Cox was walking along the usual and customary route to and from the parking lot after a trip to a convenience store on his morning break. Cox, 920 S.W.2d at 535. Mr. Jones was walking along one of the two usual and customary routes to the company’s recreational path during his lunch break. Mr. Cox’s employer, Tyson, permitted employees to go to the convenience store during their breaks. Id. Mr. Jones’ employer, TWA, permitted its employees to go to and use the walking path during their lunch or break periods. Mr. Cox was returning from his trip to the convenience store when he was injured. Id. Mr. Jones was on his way to the walking path when he was injured.
The fact that Mr. Jones may have subjectively believed that his exercise walk included the trip to and from the path, not just the walking he would do on the path, makes no difference. Otherwise, an employee who routinely uses the stairs instead of the elevator because it is good exercise, and is injured while doing so, would be precluded from receiving compensation benefits because he subjectively believed he was engaged in a recreational activity. This would be preposterous and neither contemplated nor intended by § 287.120.7. The majority’s reliance on Mr. Jones’ subjective belief in this ease is no less preposterous.
For the foregoing reasons, I would affirm the Commission’s award of benefits to Mr. Jones.
. Indeed, in Cox, the injury occurred on premises not owned or leased by Tyson, but which was regularly used by Tyson's employees, with the permission and encouragement of Tyson.
. The Missouri Supreme Court granted transfer after opinion by this court. See Wells v. Brown, 2000 WL 29417 (Mo.App. W.D. Jan. 18, 2000). In this court’s opinion, there was an assumption that the injury in the Cox case occurred prior to the effective date of the 1993 amendments to the Workers’ Compensation Law, although there was nothing in the Cox opinion to support that assumption. Wells, 2000 WL 29417, Id. at ⅜7. In any event, as noted in the main text, the Supreme Court rejected the contention that Cox was super-ceded by the 1993 amendments. Wells, 33 S.W.3d at 193.
. The facts here are also essentially indistinguishable from those in Wells, where the employee was walking from the parking lot to the building to begin her work day when she slipped and fell. Wells, 33 S.W.3d at 191.