Marcia Kasl, Respondent, v. Bristol Care, Inc., and Travelers Property Casualty Company, Appellants, and State Treasurer, Defendant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Marcia Kasl, Respondent, v. Bristol Care, Inc., and Travelers Property Casualty Company, Appellants, and State Treasurer, Defendant. Case Number: 54543 Handdown Date: 05/26/1998 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Mary Thompson Counsel for Respondent: Theodore Kardis and James Worthington Opinion Summary: Employer and its insurer appeal the Labor and Industrial Relations Commission's award of temporary workers' compensation to an employee who suffered a broken ankle when rising from a chair. REVERSED. Division Two holds:Workers compensation award is not appropriate for injury caused by risk a worker would have been equally exposed to "in normal nonemployment life." Award is available only where a condition which is unique to the workplace or exacerbated by work conditions contributes to cause injury. Citation: Opinion Author: Paul M. Spinden, Judge Opinion Vote: REVERSED. Breckenridge, P.J., and Lowenstein, J., concur. Opinion: Bristol Care, Inc., and its insurer, Travelers Property Casualty Company, appeal the Labor and Industrial Relations Commission's award of temporary compensation to Marcia Kasl.(FN1) Kasl was a resident manager of a residential care facility in 1995 in Lincoln when she fell and broke her ankle. We reverse the commission's award.

Kasl was on duty when she fell while getting up from a chair. She and her family lived at the facility in private quarters provided by Bristol Care. They were always on call for patient needs. The employer's premises served not only as Kasl's place of employment, but also as her abode. On November 15, 1995, at approximately 9:30 p.m., Kasl got up from a reclining chair to dispense medicine to a patient. Because her lower leg and foot had "fallen asleep," Kasl fell to one knee. Her left ankle turned, and she heard a loud pop and felt pain "shoot" through her ankle. The fall fractured a bone in her ankle. On February 5, 1996, Kasl filed a workers' compensation claim. The Division of Workers' Compensation convened a hearing on December 20, 1996, to determine whether or not she "sustained an accident arising out of and in the course of her employment . . . and whether [or not] such accident was the medical and legal cause of the injuries and conditions alleged by [her]." On January 21, 1997, Robert J. Dierkes, the division's administrative law judge, determined that Kasl's fracture arose out of, and in the course of, her employment. He ordered Bristol Care and Travelers Property Casualty to provide medical care for Kasl's injury. On May 22, 1997, the commission affirmed and adopted Dierkes' award. Bristol Care and Travelers Property Casualty appeal. In their only point on appeal, Bristol Care and Travelers Property Casualty contend that Kasl's evidence did not establish that the conditions of Kasl's workplace or her work duties were a substantial factor in causing her injury or satisfy the statutory definition of "accident" set out in section 287.020.2, RSMo 1994. We agree. Before we consider this point, we note, sua sponte, that section 286.090, RSMo Supp. 1996, requires the commission to make findings of fact and conclusions of law, or to adopt the "decision" of its administrative law judge. The commission did not adopt its ALJ's decision; it adopted only the ALJ's "award." An award is not the same as a decision. Loepke v. Opies Transport, Inc., 945 S.W.2d 655, 661 n.1 (Mo. App. 1997). Because the parties did not raise this issue and because the commission entered its decision before our opinion in Loepke, we deem the commission's adoption of the ALJ's "award" as satisfying the requirements of section 286.090. Metcalf v. Castle Studios, 946 S.W.2d 282, 284-85 (Mo. App. 1997). We admonish the commission once again, however, that the statute obligates it to adopt more than the ALJ's award; to comply with section 286.090, it must adopt the ALJ's decision. Id. at 285. Section 287.120.1, RSMo 1994, says that, for an employee to be eligible for compensation, his or her injury must have been caused by an accident which arose out of, and in the course of, his or her employment. "Arising out of" and "in the course of" are distinct tests. In defining the tests, the Supreme Court said: An accident arises out of the employment relationship "when there is a [causal] connection between the conditions under which the work is required to be performed and the resulting injury." Kloppenburg v. Queen Size Shoes, Inc., 704 S.W.2d 234, 236 (Mo. banc 1986), quoting Dehoney v. B-W Brake Co., 271 S.W.2d 565, 566 (Mo. 1954). An injury occurs "in the course of" employment "if the injury occurs within

the period of employment at a place where the employee reasonably may be fulfilling the duties of employment." Shinn v. General Binding Corp., 789 S.W.2d 230, 232 (Mo. App. 1990). Abel v. Mike Russell's Standard Service, 924 S.W.2d 502, 503 (Mo. banc 1996). The Supreme Court further refined the requirements of the "arising out of" test: "The condition of the workplace bears a causal connection to the injury only when the condition is unique to the workplace or is a common condition that is exacerbated by the requirements of employment." Id. at 504. At issue in Abel was a commission decision to deny compensation to a worker who fainted for an idiopathic(Fn2) reason at work and struck his head on a concrete gas station island. The Supreme Court noted that the worker was on paved, level ground when he fell and said: Although his injuries occurred in the course of his employment, nothing about this condition of his workplace enhanced the effects of gravity or made the conditions of his workplace any different from or any more dangerous than those a member of the general public could expect to confront in a non-work setting. Id. The ALJ's conclusions, adopted by the commission, relied heavily on Kloppenburg v. Queen Size Shoes, Inc., 704 S.W.2d 234 (Mo. banc 1986), which had facts similar to those in Kasl's case. In Kloppenburg, a store sales clerk fell while getting up from a chair because her leg had "gone to sleep." Id. at 236. The Supreme Court affirmed the commission's award of compensation to her. The court held that substantial and competent evidence supported the commission's finding a causal connection between the conditions under which the clerk worked and her injury. The factors noted by the court were her instructions to sit at the store's front to wait for customers and to be ready to answer the telephone quickly. The court reasoned that her crossing her legs was a normal incident of sitting and having a leg fall asleep was a normal risk of crossed legs, and rising quickly to answer the telephone contributed to her injury. Id. The court, however, did not address the issue of "idiopathic" causes. In Kasl's case, the ALJ reasoned: [Bristol Care] and [Travelers Property Casualty] argue that the Supreme Court's decision in Abel v. Mike Russell's Standard Service, 924 S.W.2d 502 (Mo. banc 1996) effectively overrules Kloppenburg and requires a finding that [Kasl's] injury did not arise "out of" her employment. I do not find this argument to be persuasive. Abel attempted to clarify the law regarding idiopathic falls. Mrs. Kasl did not suffer an idiopathic fall. Apparently what the ALJ and the commission missed in their considerations was a significant change in section 287.020.2 redefining "accident." This redefinition occurred between the Supreme Court's issuing Kloppenburg and Abel. When the Supreme Court decided Kloppenburg, section 287.020.2 defined "accident" as "an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective

symptoms of an injury." During 1993, the General Assembly redefined "accident" by adding: "An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor." According to section 287.020.3(2)(d), as amended in 1993, an injury arises out of, and in the course of, employment only if the injury "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[.]" This change limited what is eligible as a compensable injury by excluding injuries which are suffered while on the job but are not related to work duties. In considering this change, the Supreme Court instructed in Abel, "It is not enough to show that the employee suffered an injury while working. Instead, recovery under section 287.120.1 follows only where a condition unique to or exacerbated by the workplace exists and contributes to cause the injury." 924 S.W.2d at 504. Kasl did not establish that anything about her duties or the workplace caused her injury. She did not establish that the chair or the floor around it was at fault. Kasl merely suffered a hazard or risk unrelated to the employment to which anyone would have been equally exposed to in normal nonemployment lifeCher leg "fell asleep" while she was sitting on it. Her injury was, therefore, not compensable. We, therefore, reverse the commission's temporary award. Footnotes: FN1.Although the award was denominated "temporary," we have jurisdiction to review the award because Bristol Care and Travelers Property Casualty challenge liability. Stufflebean v. Crete Carrier Corp., 895 S.W.2d 115, 116 (Mo. App. 1995). FN2.The Supreme Court defined "idiopathic" in Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 n.3 (Mo. banc 1993) (quoting Webster's Third New International Dictionary 1123 (1986)), as "peculiar to the individual: innate." This court has defined an "idiopathic fall" as an "injury arising out of a risk or condition personal to the [employee,] [which] might have happened anywhere under any circumstances and would not have been work related." Haynes v. R.B. Rice, Div. of Sara Lee, 783 S.W.2d 403, 405 (Mo. App. 1989) (quoting A. Larson, Larson's Workmen's Compensation Law, sections 12.00-12.11 (1985)). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.