Gary Ahern v. P & H, LLC

Compensation Law, I believe the decision of the administrative law judge should be reversed.

This case is submitted on agreed facts. The parties stipulated that the main issue to be decided is whether or not employee's "fall arose out of the [employee]'s employment due to the idiopathic fall provision of Section 287.020 of the Missouri Workers' Compensation Act." The administrative law judge concluded employee's seizure was an "idiopathic cause." The administrative law judge denied compensation on the ground that § 287.020.3(3) RSMo (2005) ${ }^{[1]}$ precludes compensation for injuries resulting directly or indirectly from idiopathic causes.

As will be seen, I believe the parties have mischaracterized the real issue in this case. I believe the stipulated facts establish that employee's accident arose out of and in the course of employment as defined by § 287.020.3(2). The real question to be decided is whether the idiopathic cause exclusion of $\S 287.020 .3(3)$ applies to render non-compensable these injuries which so clearly arose out of and in the course of employment.

Section 287.800.1 RSMo provides that,"[a]dministrative 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 plain and ordinary meaning." State ex rel. Dresser Industries, Inc. v. Ruddy, 592 S.W.2d 789, 794 (Mo. 1980).

Section 287.020.10 RSMo provides that, "[i]n applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate 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.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 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...[I]t 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).

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 construing 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. § 1.090. 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 $\S 287.800$ and the Missouri Supreme Court, our primary role is to strictly construe the Workers' Compensation Act giving the words and phrases of $\S 287.020$ their ordinary and usual meaning.

Section 287.120.1 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.

Employer is liable to employee for workers' compensation benefits if employee sustained personal injury by

accident arising out of and in the course of his employment. Further, 287.020.3 provides that, "[a]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."

Finally, § 287.020.3(3) provides that, "[a]n injury resulting directly or indirectly from idiopathic causes is not compensable."

Section 287.020.3(5) defines "personal injury" as "violence to the physical structure of the body." The parties stipulated that employee suffered "shoulder and other traumatic injuries."

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 parties stipulated that "[o]n February 14, 2006, at approximately 10:30AM, Gary Ahern fell from a roof as he was working for P \& H, LLC at an approximate height of 30 feet." There can be no doubt that the fall described fits squarely in the statutory definition of accident.

The next 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. Section 287.020.3 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.

The parties stipulated that "the condition of [employee]'s workplace contributed to make the [employee]'s injuries more significant than they would have otherwise been. Specifically, the fall from the roof caused the shoulder and other traumatic injuries and the resulting medical expenses as set forth in paragraph 5."

Applying dictionary definitions to the above stipulation, it is clear the accident is the most important influence in causing the physical violence to employee's body. ${ }^{[2]}$ 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. One of the hazards posed by employee's job is working high above the ground. The violence to the physical structure of employee's body clearly did not come from a hazard or risk unrelated to employee's employment as a carpenter to which workers are equally exposed in their normal nonemployment life. The hazards of performing carpenter work at great heights are not normally encountered by workers in nonemployment life.

The employee's accident arose out of and in the course of employment as defined by § 287.020.3(2). So, absent statutory provisions to the contrary, the employer is liable to "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." See § 287.120.1.

Idiopathic Cause Exclusion

§ 287.020.3(3) provides that, "[a]n injury resulting directly or indirectly from idiopathic causes is not compensable." Thus, the next question we must answer is, notwithstanding that employee's accident arose out of and in the course of employment, did employee's injuries result directly or indirectly from idiopathic causes such that they are not encompassed with the purview of the Missouri Workers' Compensation Act?

"Idiopathic," means alternately: "1: peculiar to the individual: INNATE. 2: arising spontaneously or from an obscure or unknown cause: PRIMARY < epilepsy>." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1123 (3d ed. 1971). In Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525 (Mo. banc 1993), the Missouri Supreme Court adopted the first definition of idiopathic. Because the Alexander court reached this conclusion in order to interpret the phrase "arising out of," the legislature has expressly abrogated the holding in Alexander. Because the second definition is specifically exemplified with a medical reference (coincidentally, to a seizure disorder), I believe the second definition is the most appropriate definition to be applied for purposes of $\S 287.020 .3(3)$.

"Cause," means, "something that produces an effect or result <the cause of the accident>." BLACK'S LAW DICTIONARY 234 (8 ${ }^{\text {th }}$ ed. 2004).

The parties stipulated that employee suffered his seizure as a result of head trauma he sustained in a motorcycle accident in 2004. Employee's seizure did not arise spontaneously or from an obscure or unknown cause. Employee's seizure was not an "idiopathic cause" as that term is defined for medical purposes. The exclusion of $\S 287.020 .3(3)$ does not apply in this case.

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; that the injury was not caused directly or indirectly by idiopathic cases. Pursuant to $\S 287.120 .1, employee is entitled to compensation from employer. I would award to employee \ 37,384.78 in past medical expenses and $\ 2,027.97 in permanent partial disability ( 21 / 2 % of the shoulder at the 232 week level).

John J. Hickey, Member

Employee: Gary Ahern

Injury No. 06-010408

Dependents: N/A

Additional Party: Second Injury Fund

Insurer: American Family Mutual I