Jeremy Cromley v. Chris Pierce

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 19, 2005. The award and decision of Administrative Law Judge Rebecca S. Magruder, issued April 19, 2005, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of January 2006. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member John J. Hickey, Member Attest:

Secretary

AWARD

1. Future requirements awarded: Medical to be left open per Award.

Said payments to begin upon receipt of Award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Richard Scaletti.

Employee: Jeremy Cromley

Injury No: 03-049525

Dependents: N/A

Employer: Chris Pierce

Insurer:Missouri Employers Mutual Insurance Company

Additional Party: Missouri State Treasurer, Custodian of the Second Injury Fund

Hearing Date: March $3^{\text {rd }} and 4^{\text {th }}, 2005$

Checked by: RSM/lh

At the hearing, the employer and employee stipulated:

1) that on or about May 27, 2003, Chris Pierce was an employer operating under the provisions of the Missouri workers' compensation law and that his liability was fully insured by Missouri Employers Mutual Insurance Company;

2) that on or about May 27, 2003, Jeremy Cromley was an employee of Chris Pierce and was working under the provisions of the Missouri workers' compensation law;

3) that the employer had notice of the injury and that a claim for compensation was filed within the time prescribed by law.

The issues to be determined in this case are as follows:

1) whether the Claimant sustained injury by accident arising out of and in the course of his employment on May 27, 2003;

2) whether any benefits awarded should be increased 15 percent due to the failure of the employer to comply with any statute in this state as provided in $\S 287.120 .4$ RSMo 2000;

3) the applicable compensation rate;

4) liability for temporary total disability benefits;

5) liability for past medical aid in the amount of $\ 118,525.78 - the parties do agree, however, that if the

accident is ultimately found to have risen out of and in the course of the Claimant's employment, then the medical treatment was necessary and the dollar amount of the bills was reasonable;

6) the nature and extent of any permanent disability resulting from the accident;

7) liability for future medical aid - the parties do agree, however, that if the accident is ultimately deemed to have risen out of and in the course of the Claimant's employment, then medical should be left open; and

8) whether fees and costs should be awarded in this case under $\S 287.560$ RSMo 2000.

Claimant's evidence consisted of his testimony, the testimony of his wife and several lay witnesses as well as the testimony of his expert. Deposition testimony was also offered into evidence as were medical records, medical bills and medical reports. Photographs of the foundation and scaffolding where the accident took place were also admitted into evidence. Employer's evidence consisted of the testimony of the employer, the deposition testimony of the claimant and the expert testimony of Dr. Faddis.

There is no dispute in this case that Claimant's accident occurred on the employer's premises and at a time when Claimant was supposed to be working. Furthermore, there is no dispute that the Claimant fell some 4 to 5 feet to the ground when a 'scaffold board' on which he was standing broke. Finally, there is no dispute that Claimant sustained severe injury to his cervical spine and right upper extremity, requiring immediate hospitalization, surgery and extensive medical care and treatment as a result of his falling to the ground when the 'scaffold board' broke. The pivotal dispute in this case involves whether or not the Claimant's injury was the result of horseplay. The employer claims that the Claimant's injury did not arise out of and in the course of his employment because the injury was the result of horseplay. Claimant denies that he was engaged in any horseplay when the accident occurred and that therefore the injury was not the result of horseplay, but arose out of and in the course of his employment.

An employee's injury must arise out of and in the course of his employment in order to be compensable, §287.120.1 RSMo 2000. For an injury to "arise out of" the employment, there must be a causal connection between the nature of duties and conditions the employee is required to perform and the resulting injury Pullum v. Hudson Foods, Inc., 871 S.W.2d 94, 97 (Mo.App. 1994). For an injury to be "in the course of" the employment, it must occur within the period of employment at a place where the employee may reasonably be, while the employee is fulfilling the duties of employment or engaged in something incidental thereto. Parrish v. Kansas City Security Serv., 682 S.W.2d 20 (Mo.App. 1984). If, however, an injury results from "horseplay" it is not compensable if the conduct constitutes a deviation from employment. Whether the conduct constitutes a deviation from employment, depends on various factors. These factors include the extent and seriousness of the deviation, the completeness of the deviation, the extent to which the practice of horseplay has become an accepted part of the employment, and the extent to which the nature the employment may be expected to include some such horseplay. See II Larson's Workers' Compensation Law, §23.01, p 23-2 (2000).

The appellate cases in Missouri dealing with horseplay often deal with the issue of whether the horseplay has become incidental to the employment due to an employer's failure to take remedial action when the employer has knowledge of continuing and regular horseplay of its employees. See Peet v. Garder Oil Company, 492 S.W.2d 103. (Mo. App. 1973), Wisely v. Sysco Food, 972 S.W.2d 315 (Mo.App. 1998), and Pullum v. Hudson Foods, Inc., 871 S.W.2d 94, (Mo.App. 1994). These cases are not particularly instructive in the case at bar due to the fact that the Claimant's employer was present at the jobsite when the accident occurred and had told the Claimant in no uncertain terms to quit the prankish behavior in which Claimant was engaged prior to the accident's occurrence. On the day of the accident, there clearly had been a deviation from employment by the Claimant which constituted horseplay. The issue in this case is whether or not the Claimant heeded the advice of his employer and stopped the horseplay prior to the accident's occurrence. In other words, this case involves primarily a factual determination as to whether or not the Claimant had intended to return, and did return to his duties after he was reprimanded by his employer to quit the horseplay.

My factual findings regarding this issue are based on the following evidence:

1) the deposition testimony of the only eye witness of the event, Claimant's co-worker, John McCarty (Exhibit D along with deposition exhibits attached,);

2) the trial and deposition testimony of Claimant's employer, Christopher Pierce, who was present at the job site when Claimant fell but did not witness the fall (Exhibit E along with exhibits attached);

3) the trial and deposition testimony of Claimant (Exhibit 1);

4) the trial testimony of the two expert witnesses in the case and relevant accompanying documents; and

5) the medicals records on the day of the accident, particularly the recorded history portions.

Having considered the testimony of each witness separately and then having considered the testimony of all of the witnesses as a whole, I make the following findings:

On Tuesday morning, May 27, 2003, Claimant, a co-worker, Mr. McCarty and the employer, Mr. Pierce, were pouring concrete in foundation walls at a residential