Joseph Leal v. City Wide Transportation, Inc.

and his left kneecap landed on the stair of the motor coach. Employee immediately felt severe pain. I will refer to this slip and strike incident as simply a fall.

Employee had the meniscus removed from his left knee in the early 1970s. Employee sustained a twisting incident of his knee in 2002. The medical experts agree that employee had preexisting bone on bone degenerative joint disease of his left knee. The medical experts agree that employee's fall of February 1, 2006, elevated employee's knee pain to the point that a total knee replacement is indicated.

The issues to be decided in this case are whether employee sustained an injury by accident and, if so, whether the injury arises out of and in the course of his employment. The administrative law judge's recitation of the arising out of issue highlights his erroneous reading of the 2005 Amendments to the Workers' Compensation Act. I re-print his statement of the issue here for context.

1. Whether Employee's work-related slip and fall on February 1, 2006, was the "prevailing factor" causing the resulting left knee medical condition and disability - that is, was it the [sic] "the primary factor" in relation to the other factors including the longstanding and preexisting arthritic condition of the left knee?

Before discussing the administrative law judge's erroneous reading of the amendments, a general discussion is in order.

Section 287.800.1 RSMo (2005) ${ }^{[1]}$ 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."

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 $\S 287.020 .10$, 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 their ordinary and usual meaning. The administrative law judge and majority have failed to do so.

Section 287.120.1 RSMo 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 1) employee sustained personal injury 2) by accident 3) arising out of and in the course of his 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 RSMo.

Before we can analyze §287.020.3(2), we must know the definitions of "injury" and "accident." Both "injury" and "accident" are defined in $\S 287.020$. The definition of each was modified by the 2005 changes to the Workers' Compensation Act. ${ }^{[2]}$

Section 287.020.2 RSMo 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.

"unexpected traumatic event" There can be little doubt that the event during which the employee fell and struck his knee was both unexpected and traumatic.

"identifiable by time and place of occurrence" and "caused by a specific event during a single work shift" The traumatic event occurred February 1, 2006, at approximately 5:30 a.m., in employer's motor coach in front of employee's house in Kansas City, Missouri.

"producing at the time objective symptoms of an injury" Employee felt immediate pain so severe that he nearly passed out.

Employee has established each element of "accident" as defined by $\S 287.020 .2$.

Section 287.020.3 RSMo defines "injury" and sets forth a two-part test for determining when an injury arises out of and in the course of employment.

(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.

Arising Out of and in the Course of Employment -- §287.020.3(2)

Section 287.020.3(2) (a) -- Prevailing Factor Test

The legislature defined the prevailing factor for us. "The prevailing factor" means, "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." §287.020.3(1) RSMo.

"Primary" means, "first in rank or importance." "Factor" means, "something (as an element, circumstance, or

influence) that contributes to the production of a result." Substituting the above dictionary definitions into the statutory definition, the prevailing factor is the most important influence, in relation to any other influence, in causing both the resulting medical condition and disability.

The definition clearly requires a comparison of the strength of causative influences giving rise to employee's injury. Before embarking on such a comparison, I must first determine if employee's fall contributed to causing employee's resulting medical condition and disability. If it did not, there is no need to proceed.

Returning to the dictionary we find: "Cause," the verb, means, "to serve as cause or occasion of: bring into existence." [5] "Cause," the noun means, "a person, thing, fact, or condition that brings about an effect or that produces or calls forth a resultant action or state." [6] "Result" means, "to proceed, spring or rise as a consequence, effect or conclusion: come out or have an issue: TERMINATE, END - used with from or in <an injury ing from a fall>" [7] "Condition" means, "the physical status of the body as a whole <good $\sim>< poor \sim>$ or of one of its parts usu. Used to indicate abnormality <a serious $\sim>< disturbed mental \sim>$." [8]

The administrative law judge's conclusion that the resulting medical condition is the underlying bone on bone disease is erroneous. It is clear from the testimony of the medical experts that the bone on bone disease already existed as of the date of the accident. The experts variously described the physical status of employee's knee before the injury as having a "bone on bone disease process," "advanced degenerative arthritis," or "degenerative changes." The experts agree that this condition pre-existed the work accident and that the degenerative condition was not changed by the blunt trauma of the fall. That is, employee had bone on bone arthritis before the accident and employee had that same bone on bone arthritis after the accident. The degenerative joint disease is not the "resulting medical condition." [9]

So, what physical status arose as a consequence of the fall? Employee's knee progressed from manageably painful to extremely painful as a consequence of striking his knee on February 1, 2006. Employee's body progressed from not needing a total knee replacement to needing a total knee replacement as a consequence of the increase in pain resultant from the impact of the fall. The medical experts agree that the fall contributed to bringing into existence employee's resulting condition of needing a knee replacement. Dr. Stuckmeyer said, "[t]he indication fo