Eric Betzold v. The Renaissance Guild, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-020192

Employee: Eric Betzold

Employer: The Renaissance Guild, LLC

Insurer: Uninsured

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund (Open)

Date of Accident: February 14, 2006

Place and County of Accident: St. Louis, Missouri

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 September 22, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzetto Carlisle, issued September 22, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 25th day of July 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSERVING OPINION FILED

John J. Halsey, Member

Ablest

Secretary

DISSERVING OPINION

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The parties stipulated that several issues needed to be decided by the administrative law judge including accident, arising out of: medical causation, past medical, future medical, and temporary bad disability. The administrative law judge found employee sustained an injury by accident but their spent most of her award discussing whether employee's injuries arose out of and in the course of

his employment. In reaching her conclusion that employee's injuries did not arise out of and in the course of employment, the administrative law judge relied upon definitions and constructions of the phrases "arising out of" and "in the course of employment" as decided by Missouri courts before. August 28, 2005. The administrative law judge's reliance is contrary to law.

2005: Amendments to the Workers' Compensation Act

Section 287.000.1 RSMo (2005) provides that "[i]ntrenstrature law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly." Strict construction mandates that a court give a statutory provision no broader application than is

warranted by its plan and ordinary meaning. State en rel: Drasper Industries, Inc. v. Ruddy, 592 S.W.2d 785, 794 (Mo. 1985).

Section 287.032.10 RSMo (2005) provides that "[i]n applying the provisions of this chapter, it is the intent of the legislature to reject and alongside earlier case law interpretations on the meaning of or definition of 'accident', 'occupational disease', 'arising out of', and 'in the course of the employment' to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation,

80 S.W.2d 524 (Mo App. W.D. 2002); Azar v. Broad Care, Inc., 884 S.W.2d 852 (Mo. banc 1999); and Drewes v. 7344, 964 S.W.2d 512 (Mo. banc 1999) and all cases citing, interpreting, applying, or following those cases."

"The language in section 287.020.10... serves as clarification of the fact that any construction of the previous definitions by the courts was rejected by the amended definitions contained in section 287.020...[3] appears from the plain language of the statute, the legislature ... intended to clarify its intent to amend the definitions and apply those definitions prospectively." Lawson v. Ford Motor Co.,

217 S.W.3d 345, 349 (Mo App. 2007). The administrative law judge erred by relying on abrogated interpretations of the phrase "arising out of" and "in the course of employment."

Blank: Slade

As to the phrases appearing in § 287.020.10, the legislature created a blank slate effective August 28, 2005.

The primary role of courts in continuing statutes is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent. In determining legislative intent, statutory words and phrases are taken in their ordinary and usual sense. § 1.990. That meaning is generally derived from the dictionary. There is no room for construction where

words are plain and admit to but one meaning. Where no ambiguity exists, there is no need to resort to rules of construction.

Abrams v. Ohio Pacific Express, 819 S.W.2d 338 (Mo. banc 1991) (citations omitted).

In light of the directives of § 287.800 and the Missouri Supreme Court, our primary role is to strictly construe the Workers' Compensation Act giving the words and phrases of

§ 287.020 their ordinary and usual meaning.

Credibility

At the outset, I must address credibility issues. This is not a case where witness testimony reveals subtle differences of perspective or recollection regarding salient events. The primary players in this case—employee, Joe Kriegsemann, and Renee Martin—testified very differently about significant events. The stark differences in their descriptions of the events suggest that one or more

whisques are not accurately recounting the events. Under these circumstances, the Commission is charged with the task of assessing the credibility of the witnesses to determine who is believable.

The record reveals few reasons to believe Mr. Kriegsemann and many reasons to question his versatility. Mr. Kriegsemann has several convictions for passing bad checks. Mr. Kriegsemann is romantically involved with employee's sole owner. Bad acts in a witness' past or a witness' romantic entanglement with a stakeholder do not conclusively preclude a finding that the witness' testimony is

credible, but Mr. Kriegsemann's testimonial performance did not bolster my belief in his versatility.

The primary issue in dispute is whether or not employee was authorized to be working at the Watson Road site at the time of his injury on February 14, 2006. Mr. Kriegsemann testified that he pulled the crew off the Watson Road job on February 3 and had not authorized it to return as of the morning of February 14. Employee denies that Mr. Kriegsemann ever told him the job was

stopped. Ms. Martin was unaware of any work stoppage at Watson Road. Mr. Kriegsemann's February 6 letter to Mr. Campiere does not allude to any work stoppage in progress. Only the testimony of Bradley Pinkerton supports Mr. Kriegsemann's testimony that he told the crew to pass up on February 3 because it might not be coming back. It was Mr. Pinkerton's first day and he was only at

the Watson Road site in the morning. I am not convinced Mr. Pinkerton was familiar enough with employer's operations to provide persuasive evidence on this issue. I find incredible Mr. Kriegsemann's testimony that Mr. Kriegsemann directed employee to work elsewhere on February 14, 2006. I also find incredible his testimony that employee was not authorized to work at the Watson Road

site on February 14, 2006.

Mr. Kriegsemann and employee agree that work was not performed at the Watson Road site the week of February 6 through February 10 due to inclement weather. Mr. Kriegsemann contends he left phone messages offering employee work at other job sites each day that week, yet Mr. Kriegsemann could not identify the calls on the phone records offered by employer. Employee

testified he spoke with Mr. Kriegsemann only one time and that was on February 6.

By Mr. Kriegsemann's account, employee was not the only person Mr. Kriegsemann had trouble contacting by phone. Mr. Kriegsemann testified that on the morning of February 14 he tried unsuccessfully if or it times to reach Mr. Campiere by phone. Again, no such calls are reflected on the phone records offered into evidence by employer. Ms. Martin testified that Mr. Campiere came to see

her at her real estate job because Mr. Campiere could not reach Mr. Kriegsemann that same morning. Mr. Campiere's act of visiting Ms. Martin tends authenticity to the suggestion that it was Mr. Kriegsemann who was out of touch that morning, not Mr. Campiere.

There are other inconsistencies and curiosities in the record involving Mr. Kriegsemann. He testified for met employee at the Watson Road site after the injury; employee testified Mr. Kriegsemann met employee at the medical clinic. Mr. Kriegsemann testified he assumed employee quit when employee did not call back to accept work on February 14. I wonder why Mr. Kriegsemann did not

assume employee quit when employee allegedly did not call back to accept work on February 6? On February 7? February 8? On February 10?

Ms. Martin's testimony reveals curiosities, as well. By her account, Ms. Martin believed Mr. Kriegsemann was having no luck getting return calls from employee. Ms. Martin testified Mr. Kriegsemann failed again the morning of February 14. Yet, it is Ms. Martin's testimony that when Mr. Campiere came to see her on February 14 because he could not reach Mr. Kriegsemann, Ms. Martin told Mr.

Campiere she had talked to Mr. Kriegsemann just 10 minutes earlier and Mr. Kriegsemann said he had been trying to reach Mr. Campiere all morning. Ms. Martin told Mr. Campiere, "If you want to go ahead and try and get hold of Eric, go ahead. Tell him to call Jim."

Summarizing Ms. Martin's testimony regarding the state of affairs as of the morning of February 14: Ms. Martin is employer's sole owner; Mr. Kriegsemann is her boyfriend and manages all of employer's jobs and crews; Mr. Campiere is employer's customer, and, employee has largely ignored employer over the past 11 days. Essentially, employer is asking me to believe that when employee's

customer came to speak with the owner because he could not get in touch with employer's foremen, the owner told the customer to call the allegedly irresponsible employee to get in touch with the foreman, even though she had just spoken with the foreman 10 minutes prior. This makes no sense. A responsible business owner heads with this situation would pick up the phone and contact the

foreman for the customer. A responsible business owner would not refer the customer to seek help from a worker the owner thinks is irresponsible. If Ms. Martin told Mr. Campiere to call employee, it was because she was authorizing Mr. Campiere to speak directly to employee to tell him to resume work at the Watson Road site. And I think that is what happened.

According to Ms. Martin's testimony, on February 24, 2006, she departed from her usual payroll procedure and purchased a money order to pay employee his final pay. She marked the receipt that the pay was for the week ending February 9, 2006. The reason Ms. Martin gives for not going through employee's regular payroll service to generate employee's payroll was because she "had not

heard from [employers] in some time." I am not persuaded by Ms. Martin's explanation for paying employee with a money order for several reasons:

- The regular date to submit payroll for February 9 was February 16. As of February 16, Ms. Martin was aware that employee was injured on February 14. Her suggestion that she had not heard from employee in a while makes no sense unless "some time" meant February 15.

- Ms. Martin testified that Mr. Kriegsemann was the one who dealt with the crews, as why would she have been expecting to hear from employee?

- Employer's payroll service would have processed the payroll submitted by Ms. Martin whether Ms. Martin had spoken with employee or not.

It makes more sense that employer purchased a money order to avoid identifying the pay period for which payment was being made, e.g., the date of injury. Employee testified the pay was for his work on February 14, 2006. According to Ms. Martin's description of the usual pay schedule, a worker's pay for February 14 would be delivered on February 24. I think it is no coincidence that the

money order was purchased on the usual payday for February 14. The memo written in Ms. Martin's hand identifying that the money order was payment for the week ending February 9 is simply not persuasive. I think the money order payment represented employee's pay for February 14.

Employer offered no evidence that employee had something to gain from reporting to and working at the Watson Road site if he thought the work was not authorized. This employer—which failed to secure workers' compensation coverage as required by law and as required by its contract with Mr. Campiere—very likely has something to gain if it can persuade us that employee's injury is not

compensable.

In light of the above discussion, I find employee to be more credible than employer's witnesses. I believe the events unfolded up follows. Inclement weather prevented work at the Watson Road site the week of February 6 through February 10, 2006. Mr. Campiere lived employer on February 11. Mr. Kriegsemann and Mr. Campiere came to a verbal agreement to resolve all differences

on February 13. On the morning of February 14, Mr. Campiere was anxious for work to resume but he could not reach Mr. Kriegsemann. Mr. Campiere visited Ms. Martin, who was working at a different job as a real estate agent. Ms. Martin told Mr. Campiere to contact employee. Mr. Campiere contacted employee to return to work with authority from Ms. Martin. Employee acted

responsibly and with employer's authority when he reported to work at the Watson Road site on February 14, 2006. Employer paid employee for his work on February 14 by money order dated February 24.

Compensability

Section 287.120.1 RSMs provides:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.

Employee is liable to employee for workers' compensation benefits if:

1. Employee sustained personal injury (D by accident);
2. Wearing out of and in the course of his employment. Further, 287.020.3 provides that, "[e]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. The prevailing factor is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

Section 287.020.3(3) defines "personal injury" as "violence to the physical structure of the body." Employee testified that the two parts of his leg moved in different directions resulting in intense pain. The notes of Dr. Narra reflect that Dr. Narra found left knee swelling, decreased flexion, tenderness, and a dislocated knee. The report of Dr. Krustila reflects that physical examination revealed a lateral collateral ligament injury and an ACL injury. Employee suffered violence to the physical structure of his body.

Section 287.020.2 defines "accident."

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

The administrative law judge found that, employee "began working at 9:30 a.m. on February 14, on Watson Road. Carrying a board on his shoulder [employee] climbed the pitch of the roof and kneeled. When he stood up, his thigh moved to the left and his lower leg went right, causing him to fall."

- "Unexpected traumatic event" — Based upon the finding of the administrative law judge, there can be little doubt that the event during which the two parts of employee's leg shifted in opposite lateral directions was both unexpected and traumatic.

- "Identifiable by time and place of occurrence" — February 14, 2006, at 9:30 a.m. on Watson Road.

- "Caused by a specific event" — As he rose from a breeding position, employee's thigh moved to the left and his lower leg went right, causing employee to fall.

- "During a single work shift" — Employee worked almost exclusively at the Watson Road location. The contract in evidence reveals that work was to begin each morning at approximately 7 a.m. The testimony of employee and owner Renee Martin reveals that at no time did employer shut down the Watson Road job site, as contended by Joe Kriegsemann. Employee's accident occurred at one moment while he was performing services for employer as supervisor and carpenter on an ongoing project of employer. Employee's accident was caused by a specific event during a single work shift.

- "Producing at the time objective symptoms of an injury" — When his knee dislocated, employee experienced immediate sharp, severe, and sudden pain. Employee fell forward. Employee needed assistance sliding down the pitch of the roof. Employee had to ride a hydraulic lift to the ground.

Employee has established each element of "accident" as defined by 287.020.2.

The final question is whether the personal injury arose out of and in the course of employee's employment. The legislature enacted a two-part test for determining if an injury arises out of and in the course of employment. 287.020.3 RSMs (2005) provides that:

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

- (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

- (b) It 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.

Injury is defined variously in 287.0(2). As it appears in the arising out of and in the course of employment test, it carries the same meaning as "personal injury," that is, "violence to the physical structure of the body." § 287.020.3(5). Substituting this definition into the arising out of and in the course of employment test, the test becomes:

- (a) "Violence to the physical structure of employee's body" shall be deemed to arise out of and in the course of employment only if:

- It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the [violence to the physical structure of employee's body].

- [The violence to the physical structure of employee's body] 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.

The testimony of employee, the medical records, and the report of Dr. Krustila reveal that the employee's February 14, 2006, 9:30 a.m., Watson Road event, wherein the upper and lower parts of his leg moved in opposite directions (accident) was the only factor causing the violence to the physical structure of employee's body (the damage to the menisci and ligaments in employee's knee). Employee presented no evidence to the contrary. On this evidence, is the accident the prevailing factor in causing the injury? An analysis of the phrase "prevailing factor" is in order.

The phrase "prevailing factor" appears in two different subsections of 287.0(2). The content of the subsections reveals that the phrase is used in two different ways:

- 287.020.3(1) provides that, "[e]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. The prevailing factor is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

- 287.020.2(2) provides that, "[e]n injury shall be deemed to arise out of and in the course of the employment only if:

- (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

- (b) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury."

Substituting the definition of "prevailing factor" for each occurrence of the phrase "prevailing factor" does not cut an easy path to a compensability determination. Substituting the definition in 287.020.3(1) produces the following redundant requirement:

An injury by accident is compensable only if the accident was the primary factor, in relation to any other factor, causing both the resulting medical condition and disability in causing both the resulting medical condition and disability.

Substituting the definition in 287.020.3(2) produces the following somewhat unintelligible requirement:

An injury shall be deemed to arise out of and in the course of the employment only if:

- (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the primary factor, in relation to any other factor, causing both the resulting medical condition and disability in causing the injury; and

- (b) How do I proceed to determine whether the accident was the prevailing factor in causing the injury where, as here, I have strictly construed the statutory provision with the statutory definition, but the strict construction results in doublespeak? If I were to shorten the statutory definition of "prevailing factor" to "the primary factor, in relation to any other factor," I could give logical meaning to both subsections cited above. Is it permissible under the strict construction directive for me to use only a portion of the statutory definition of "prevailing factor?" Am I permitted to assume the legislature erred in drafting the definition? I need not know the answer to these questions in this case.

As the only factor, the accident is necessarily the primary factor, in relation to any other factor, in causing the physical violence to employee's body, i.e., the injury. Applying dictionary definitions, the accident is the most important influence in causing the physical violence to employee's body. Employee has established the first prong of the arising out of and in the course of employment test.

I now consider the second prong of the test. The hazards posed by employee's job and job duties as a roster include: working on an uneven surface (plotted roof), working on toe boards, and alternating between standing and kneeling on such surfaces. The violence to the physical structure of employee's body clearly does not come from a hazard or risk unrelated to employee's employment as a roster to which workers are equally exposed in their normal nonemployment life. The hazards of roofing are not normally encountered by workers in nonemployment life.

The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence. *Ford v. Ill-State Dev. Agency*, 677 S.W.2d 899, 904 (Mo. Ct. App. 1984). Employee testified he had no problems with his knee before the February 14, 2006, accident. Employee testified as to the mechanism of his injury and the immediate onset of pain. Employee offered the medical records of Dr. Anthony's and the report of Dr. Krustila to support his position that the February 14, 2006, accident caused the resulting medical condition and disability of his knee, whatever they may be. We do not yet know what the condition or disability is because employees have not received the necessary diagnostic testing and treatment for his knee injury.

The administrative law judge included a discussion of the mutual benefit doctrine and the dual purpose doctrine. As those common law doctrines are interpretations of the arising out of and in the course of employment requirements as they existed before August 28, 2005, the cases establishing the doctrines have been abrogated by § 287.020.15. The administrative law judge erred in relying upon these doctrines.

The compensability of this case is clear. Employee was performing work on behalf of his employer at a site where he regularly worked. Employee was performing work on behalf of his employer at a time when he regularly worked. Employee was actually performing his work duties, i.e., roofing, at the time he suffered an accident. The accident gave rise to the injury for which employee seeks compensation.

Based upon the foregoing, I conclude that employee has established that he suffered a personal injury by accident arising out of and in the course of employment and is entitled to workers' compensation benefits as provided by law, including treatment of his knee injuries. I would issue a temporary award of same.

John J. Hickey, Member

1. See any benefits included herein? No
2. Was the injury so occupational disease compensable under Chapter 10?? No
3. Was there an accident or accident of occupational disease under the Law? No
4. Does the accident or event of occupational disease, February 14, 2006
5. State location where accident occurred or occupational disease contracted: Dr. Loezo, Missouri
6. Was above employee an employ of above employee a time of alleged accident or occupational disease? Yes
7. And employer occurs proper and/or? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above income? No

1. Describe work employee was doing and how accident happened at occupational disease contracted. Claimant covered the left time while working in a crafting.

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident or occupational disease: Left time

1. Compensation paid to date for temporary disability: -N

1. Value necessary medical aid paid in date by employer/insurer? $356.00

1. Value necessary medical aid not furnished by employer/insurer? $190.00

Employer: Eric Betzold

Injury No. 06-5203/12

1. Value necessary medical aid not furnished by employer/insurer? 190.00

1. Employer's average weekly wage: 480.00

1. Weekly compensation rate: $320.00/$320.00

1. Method wages computation. Repetition

**COMPENSATION FUCIARIA**

1. Amount of compensation payable:

TOTAL: -N

1. Parent requirements awarded. None

Said payments to begin immediately 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 $0.6 of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

A hearing was held June 16, 2006, at the Missouri Division of Workers' Compensation in the City of St. Louis as the request of Eric Betzold (Claimant) for medical treatment under §287.450. Attorney Brian Stokes represented Claimant. Attorney Devin Sauer represented the Renaissance Guild, LLC (Employer). The Employer was unionized at the time of the injury. The Second Injury Fund is to remain open and did not participate in this proceeding. None is proper and jurisdiction properly law with the Missouri Division of Workers' Compensation.

1. The Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
2. Employer's liability was not insured.
3. Employer had notice of the injury.
4. A Claim for Compensation was filed within the time prescribed by law.
5. Claimant's average weekly wage was $480.00 based on the 30-hour rule. The rates for temporary total disability and permanent partial disability were $320.00 respectively.
6. Claimant has not been paid compensation to date for temporary total disability. Claimant has received $536.00 in medical benefits to date.

The issues to be determined are:

1. Accidents
2. Accident on of and in the course of employment
3. Work of a man/man
4. Past medical expenses in the amount of $190.00
5. Future medical cost
6. Future temporary total disability and
7. § 287.560 Costs and fees

Only evidence supporting this award will be summarized. Any objections not expressly ruled on in this award are restricted. Claimant offered Exhibits A through E, which were admitted into evidence without objection. Exhibit G was withdrawn. A ruling was reserved on Exhibits F, H and I. After a review of the evidence, Exhibits E, F, and H were admitted. Exhibit I was not admitted. Employer offered Exhibits 1 through A, which were admitted into evidence without objection.

Based upon competent and substantial evidence presented at hearing, I find the following facts:

1. **Claimant** began his career in construction, working on residential and commercial buildings through the Carpenter's Union.
2. A mutual friend referred Claimant to Mr. Kriegsemann for a construction project. In said November 2005, the Renaissance Guild LLC hired Claimant and Mr. Kriegsemann because his immediate supervisor direct contact.
3. Carlo Campieri, owner of property located on Watson Road, sought to convert the existing building into a restaurant. On December 6, 2005, Mr. Campier and Mr. Kriegsemann entered a contract for Employer to perform the work (Exhibit 1). The contract did not authorize Mr. Campieri to direct the work of Renaissance employees.
4. Claimant initially worked with Mr. Kriegsemann, George England, and Andy Frick on Watson Road. Mr. Campieri also worked on the project, provided tools, equipment, manual labor, contributed ideas, and evaluated the work. Scaffolding, a walk board, ladders, and chairs were locked and left at the work site each day.
5. Claimant straightened tissues, leveled, shorted and stabilized the roof on Watson Road. He also worked on Oakville and Munkich projects.
6. Mr. Kriegsemann was the only one who instructed Claimant where and when to work, and gave him his paycheck.

After careful consideration of the entire record, heard upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

There is no dispute Chaiman remained on injury to his left knee on February 14, 2006. The issue is whether Chaiman's injury arose out of and in the course of his employment.

- a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

- b) It 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. [207.020.512]

Specialties, Inc. 107, S.W. 1d 253 (Mo. June 2001).

I find no evidence that Employer unreasonably defended the claim. The request for costs is denied. All other issues are moot.

The Claimant did not contain an accidental injury which arose out of and in the course of his employment. (Section 207.500 costs and fees are denied.

Note: $\qquad Made by: \qquad

\qquad$ Section 207.500

Administration Rule Order

Division of Business Compensation

A true copy. Attest

$\qquad

\qquad$

Patricia "Pat" Sessio

Director

Division of Business Compensation

[^0]

[^0]: ${ }^{\text {D }}$ "Primary" means, "Not in rank or importance." WEBITDA'S THRID NEW INTERNATIONAL DICTIONARY (600 (3d ed. 1971), "Factor" means, "something (as an element, circumstance, or influence) that contributes to the production of a result." WEBITDA'S THRID NEW INTERNATIONAL DICTIONARY (413 (3d ed. 1971).