Joyce Bivins v. St. John's Regional Health Center

indicates that she 'tripped.' Employer's Exhibit 2 (Patient Medical Record dated 8/27/06) states that Claimant 'slipped.' It, too, does not indicate that Claimant's foot stuck to the floor.

Claimant's friend, Howard Brown, said Claimant told him that her right foot stuck to the floor. He testified he also heard Claimant tell emergency room personnel that she fell because her right foot stuck to the floor. He further testified that, when he was in Claimant's hospital room, he witnessed Claimant tell both her supervisor, Kevin Bradley, and a Risk Management employee that her foot had stuck to the floor. Mr. Brown admitted, however, that he has a hearing problem and wears a hearing aid. Mr. Brown's hearing deficit was apparent during his testimony; and for this reason his testimony is found unreliable.

Officer Dean Fritz testified that, when he responded to the incident involving claimant, he asked if she had tripped, and Claimant responded that she 'just fell.' Claimant did not advise Officer Fritz that she had fallen because her right foot stuck to the floor. I find Dean Fritz's testimony credible.

On cross-examination, Officer Fritz agreed with Claimant's counsel that the floor could have been buffed differently in places. But, the photographs taken by Officer Fritz do not reveal an uneven surface or anything unusual about the floor. Moreover, Claimant identified nothing that would have caused her foot to stick.

Nurse Kevin Bradley, Claimant's supervisor, said he discussed Claimant's general condition with her. But, he denied that Claimant told him she had had fallen because her foot stuck to the floor. I find Kevin Bradley's testimony credible.

Sandy Moore, Employer's Workers' Compensation and Employee Health Manager, learned of Claimant's fall the following day on August 28, 2006. Ms. Moore visited Claimant in the hospital to discuss her condition, what caused her fall, and what benefits were available to Claimant. Ms. Moore said Claimant told her that she 'just fell.' I find Ms. Moore's testimony credible that Claimant did not advise her that claimant's foot had stuck to the floor.

I find claimant's recollection as to whom she told about her foot sticking to the floor is inaccurate. The testimonies of Nurse Bradley, Ms. Moore, and Officer Fritz all indicate that Claimant did not explain this detail of the fall to them. Moreover, the written documentation does not substantiate Claimant's contention that she advised hospital personnel that her foot stuck to the floor.

As of the date of this accident § 286.120.1 RSMo, as amended in 2005, provided, in pertinent part, as follows:

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, . . . .

The definitions of both accident and injury were significantly changed in the 2005 legislation. The definitions are set forth in § 287.020.2 RSMo and § 287.020.3 RSMo, and are as follows:

1. 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.
2. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An 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.

(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;

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable;

(4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition;

(5) The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

In addition to these definitions the legislature also provided the following additional legislation contained in § 287.020 .10 which is as follows:

In 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.

Due to the extensive changes made to the Workers' Compensation Act by the General Assembly in 2005, the Commission is of the opinion that it is imperative that the basic premise of the Workers' Compensation Law be first considered, prior to reaching conclusions pertinent to the instant case.

Among its many features, the Workers' Compensation Act provides: (1) benefits to employees who sustain personal injury by accident arising out of and in the course of employment; and (2) negligence and fault are largely immaterial. Section 287.120.1 RSMo.

The construction of the phrase "arising out of and in the course of employment" historically has been broken in half, resulting in a two-prong test, with the "arising out of" portion construed to refer to causal origin, and the "course of employment" portion to the time, place and circumstances of the accident in relation to the employment. The substantive provisions of section 287.120 .1 were not changed or amended by the 2005 enactment of the General Assembly.

Pursuant to this statute, proof of a compensable injury requires not only establishing that it occurred at a particular place, and at a particular time (the "in the course of" component) the injury must also be causally connected to some risk or hazard of the job (the "arising out of employment" component).

The second prong of the above mentioned two-prong test, whether the injury arose "in the course of" employment, is not in dispute in the instant case. The injury occurred within the period of employment at a place where the employee could reasonably be expected and while engaged in the furtherance of the employer's business.

The first prong, "arising out of", the test primarily concerned with causal connection, is the dispositive issue in this case.

Historically, at a minimum, our courts have required a showing that the employee's injury was caused or due to a

risk of employment. Missouri cases have uniformly held that an accident and resultant injury "arise out of" the employment when there is a causal connection between the conditions under which the work was required to be performed and the resulting injury. The injury "arises out of" the employment so long as the injury was a rational consequence of a hazard connected with the employment.

Generally speaking, all risks causing injury to an employee can be brought within three categories: risks distinctly associated with the employment; risks personal to the employee; and "neutral risks", i.e., risks having no particular employment or personal character. Harms from the first category are universally compensable; harms from the second are u