Charity Stricker v. Children's Mercy Hospital

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-104405

Employee: Charity Stricker

Employer: Children's Mercy Hospital

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund (Open)

Date of Accident: September 23, 2006

Place and County of Accident: Kansas City, Jackson County, 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 July 3, 2008. The award and decision of Administrative Law Judge Carl Mueller, issued July 3, 2008, 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 23rd day of January 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED

Alice A. Bartlett, Member

John J. Hickey, Member

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.

Section 287.020.3(2) sets forth a two-part test for determining when an injury arises out of and in the course of employment.

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.

Employee's injury does not satisfy the second prong of the arising out of and in the course of test. Employee testified unequivocally that the clogs she was wearing caused her to turn her ankle. Employer did not require employee to wear the clogs. Employee alone made the choice to wear the clogs. Employee's injury comes from a hazard unrelated to employment (employee's personal choice to wear clogs). It makes no matter that the clog manufacturer marketed the clogs to nurses with a sales pitch declaring that the clogs are safe for nursing work. Employer has no control over the clog manufacturer's sales pitches and is not bound by the promises therein. Workers who choose to wear clogs in the normal nonemployment life are equally exposed to the risk of turning an ankle on even pavement as the employee in this case.

I reject any suggestion that the employee's choice of the clogs mutually benefited employer. Employee has not shown that flat nurse shoes would have provided the same level of professionalism, comfort, and ease of maintenance as the clogs. Flat nurse shoes would likely have provided greater safety than the clogs as evidenced by employee's testimony that the clogs caused her to turn her ankle. I find no benefit to employer from employee's choice of the clog. Instead, employee's choice of the clogs was a detriment.

I conclude that employee's injury did not arise out of and in the course of her employment. I would deny compensation. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Alice A. Bartlett, Member

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 23, 2006
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee tripped and fell in parking garage owned and/or controlled by employer while reporting for work.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left ankle at the 155 week level
14. Nature and extent of any permanent disability: Twenty-five percent (25%) - left ankle at the 155 week level
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None
17. Value necessary medical aid not furnished by employer/insurer? $\ 7,279.00
18. Employee's average weekly wages: $\ 877.68
19. Weekly compensation rate: $\ 585.06
20. Method wages computation: Mo. Rev. Stat. §287.250.1(4) \& (7) and Mo. Rev. Stat. §287.250.4.
21. Amount of compensation payable:

Medical Expenses

Employee: Charity Stricker Injury No: 06-104405 Dependents: N/A Employer: Children’s Mercy Hospital Additional Party: N/A Insurer: Self-Insured Hearing Date: May 12, 2008 Briefs Filed: May 27, 2008 Checked by: RCM/rm

On May 12, 2008 the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Mrs. Charity Stricker, Claimant, appeared in person and with counsel, Ross Myers. The employer appeared through counsel, Peter Chung. The Second Injury Fund did not attend. The issues the parties requested the Division to determine were whether or not Mrs. Stricker suffered an accident arising out of and in the course of her employment, what degree of disability she sustained, her average weekly wage, the time she lost from work due to the accident, whether her past and future medical expenses should be paid by the employer and whether the employer should pay the costs of this proceeding in accordance with MO.REV.STAT. §287.560. For the reasons noted below, I find that Mrs. Stricker sustained a compensable accident on September 23, 2006, and that her disability is twenty-five (25%) of her left lower extremity at the one hundred fifty-five (155) week level.

The parties stipulated that:

- On or about September 23, 2006 Children's Mercy Hospital was an employer operating subject to the Missouri's Workers' Compensation Law and its liability was fully self-insured;

- Charity Stricker was its employee working subject to the law in Kansas City, Jackson County, Missouri;

- Charity Stricker notified Children's Mercy Hospital of her alleged injury and filed her claim within the time allowed by law;

- Children's Mercy Hospital has not provided Charity Stricker with TTD or medical care; and,

- Charity Stricker injured her left ankle in an employee parking garage owned and/or controlled by the employer immediately before her shift started.

The parties requested the Division to determine:

- Whether Ms. Stricker sustained an accident arising out of and in the course of employment?

- Determining Ms. Stricker's average weekly wage and compensation rates?

- Whether Ms. Stricker is entitled to temporary total disability benefits from September 23, 2006 through November 10, 2006 representing six and six-seventh's (6 6/7) weeks?

- Whether Children's Mercy Hospital must reimburse the employee for medical expenses totaling \$7,279.00?

- Whether Children's Mercy Hospital must provide the employee with additional medical care?

- Whether Ms. Stricker suffered any disability and, if so, the nature and extent of the Employee's disability?

- Whether Children's Mercy Hospital must reimburse to Ms. Stricker the cost of this proceeding for defending the claim without reasonable ground pursuant to $\S 287.560$ ?

Mrs. Stricker testified on her own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

A - Children's Mercy Hospital Injury Form, Sept. 30, 2006

B - Employee Paycheck Stub, November 30, 2006

C - Dansko Clog Photos and Nursing Uniform

D - Medical Records

E - Medical Bills

F - Summary of Out of Pocket Payments by Employee

G - Narrative Report, James A. Stuckmeyer, MD, Aug. 31, 2007

H - Letter dated April 3, 2007 from Myers to Peter Chung

I - Expert Witness Fee Statement as per $\S 287.560

J - Attorney's Fee Statement as per \S 287.560$

The employer called Janet Klein as a witness and presented the following exhibits, all of which were admitted into evidence without objection:

1 - Narrative Report, David J. Clymer, MD, April 20, 2008

2 - Children's Mercy Hospital Injury Form, Sept. 30, 2006

3 - Form 1 Report of Injury, November 28, 2006

4 - Employee Earnings History

Based on the above exhibits and the testimony of the witnesses, I make the following findings. Charity Stricker is a married 38-year old female, who lived in Pleasant Hill, Missouri at the time of the accident. She has a four year college degree and is a registered nurse. Mrs. Stricker started work for Children's Mercy Hospital on August 19, 2006. Prior to working for Children's Mercy Hospital, she worked at other hospitals.

On September 23, 2006, Mrs. Stricker drove into the covered, attached employee parking lot for Children's Mercy Hospital to park her car and start her work on the evening shift, which started at 7:00 p.m. At 6:55 p.m. Exhibit 3 documents -- and she testified -- that after parking the car she exited the same on the driver's side and walked around to the passenger side to open the passenger door. As she walked around the car, she testified that she tripped and fell. She felt immediate pain in her left ankle. Employee's Exhibit A, which also was entered into evidence by the Employer as Exhibit 2, documents that when asked "[h]ow could this have been prevented?" she replied "never wearing Dansko clogs."

Mrs. Stricker testified that she was unable to get up because of the pain and severity of the break. She used her cell phone to call the hospital security personnel who assisted her