Peggy Humphreys v. Fort Zumwalt R-II School District

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, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge as corrected July 29, 2008.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Chief Administrative Law Judge Leslie E. H. Brown, as corrected July 29, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 4th day of March 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

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.

It is undisputed that employee sustained an ankle sprain when her ankle rolled as she descended a step while she was working. At the time of the accident, employee had her hands full with work materials she had to bring to her session. Employee did not slip, trip, or fall. There was nothing on the step that contributed to employee's fall and employee does not allege a defect in the step. In employee's words, "I misstepped and my ankle rolled." Employee admitted the materials she was carrying did not cause the misstep. In her nonemployment life, employee descended stairs, including stairs in her own home leading to her garage and to her basement.

The Commission majority concludes that employee's ankle injury arose out of her employment. I disagree. The Missouri Workers' Compensation Law puts the burden on employee to show that there is a rational connection between the accident, the injury, and the employment. A statutory test for the connection is set forth in §287.020.2.3(2) RSMo:

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 has shown that the accident was the prevailing factor in causing her ankle injury so the first prong of the test is satisfied. Employee failed to prove the second prong of the test. Employee failed to show that her ankle injury did not come from a hazard unrelated to her employment. Stated conversely, employee failed to show that her ankle injury came from a hazard related to her employment. The record reveals that employee is exposed to the risks inherent in descending stairs in both her employment and her nonemployment life.

The administrative law judge found employee was exposed to a unique employment risk because employee had her hands full with work materials she was required to bring to her session. Perhaps there are risks associated with walking down stairs with hands full, but those risks are not relevant to this case because employee testified that the carrying of the materials did not cause this misstep. Since the materials did not cause the misstep, employee's injury did not come from a hazard or risk related to the carrying of materials. I conclude employee's injury did not arise out of her employment.

I would reverse the award of the administrative law judge. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Employee: Peggy Humphreys

Injury No. 06-014905

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: Fort Zumwalt R-II School District

Additional Party: State Treasurer, as Custodian of

Second Injury Fund

Insurer: Self-Insured by Missouri United School

Insurance

Hearing Date: $\quad 02 / 21 / 08$

Checked by: LEHB/cmh

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: March 1, 2006
5. State location where accident occurred or occupational disease contracted: St. Charles County, MO
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 happened or occupational disease contracted: Working as a parent educator at home visit and slipped/misstepped
12. Did accident or occupational disease cause death? No Date of death? ---

1. Parts of body injured by accident or occupational disease: Right and left ankle/foot
2. Compensation paid to-date for temporary disability: $\ 0.00
3. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
4. Value necessary medical aid not furnished by employer/insurer? $\ 7957.80 (See Award)
5. Employee's average weekly wages: $\ 566.15
6. Weekly compensation rate: $\$ 377.43 / \ 365.08
7. Method wages computation: By Award

1. Amount of compensation payable:

Unpaid medical expenses $\ 7957.80 (See Award)

12 days of temporary total disability (or temporary partial disability)...... $\ 647.04

Future Medical Care Future Medical Care (See Award)

Total $\ 8604.84 (See Award)

Each of said payments to begin as of date of this Temporary Award and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Colleen J. Vetter, Attorney for Claimant

Employee: Peggy Humphreys

Injury No: 06-014905

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

This is a hardship hearing in Injury Number 06-014905. The Claimant is seeking a Temporary or Partial Award, but if the evidence warrants that there be a finding of no compensability or a finding of the Claimant being at maximum medical improvement a Final Award could be issued in either one of those cases. The claimant, Peggy Humphreys, appeared in person and by counsel, by Attorney Colleen J. Vetter. The Employer/Insurer, Fort Zumwalt R-II School District/self-insured by Missouri United School Insurance, administered by Gallagher Bassett Services, appeared by and through counsel, Attorney Elizabeth S. Shocklee. The claim against the Second Injury Fund is to remain open, and the Second Injury Fund was not present at this hearing.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be present in this hearing.

On or about March 1, 2006: a. the Claimant was in the employment of Fort Zumwalt R-II School District in St. Charles County, Missouri; b. the Employer and Employee were operating under and subject to the provisions of the Missouri Workers' Compensation law; c. the Employer's liability was self-insured by Missouri United School Insurance and administered by Gallagher Bassett Services. d. The Employer had notice of the injury. e. A claim for compensation was filed within the time prescribed by law. f. No temporary total disability benefits have been paid. g. No medical aid has been provided.

This is a hardship hearing in Injury Number 06-014905. The Claimant is seeking a Temporary or Partial

1. Whether or not the Claimant suffered an accident arising out of and in the course of her employment
2. Medical causation
3. Liability of past medical expenses
4. Future medical care
5. Rate
6. Nature and extent of the temporary total disability for a period of 12 days
7. Nature and extent of permanent partial disability

The following exhibits were admitted into evidence:

No. A: Deposition transcript of Dr. David Volarich, D.O. taken on behalf of the claimant on February 11, 2008 and attached exhibits No. B: Medical records from Unity Corporate Health (NOTE: On the front of this certification it says St. John's Urgent

Care Center, but when you turn the page it's a Unity Corporate Health record.)

No. C: Medical records and medical bills from Dr. Emil DiFilippo, M.D.

No. D: Records from Frontier Integrated Health Center, Inc.

No. E: Two-page exhibit showing billing for MRIs, one dated 4-19-06 and the next dated 5-4-06

Employer/Insurer's Exhibits:

No. 1: Original claim for compensation filed with the Division of Workers' Compensation

No. 2: Answer to the original Claim for Compensation filed with the Division of Workers' Compensation

No. 3: Report of Injury filed in this regard and filed with the Division of Workers' Compensation as well

No. 4: Answer filed to the oral Amended Claim for Compensation (Oral amendment to Claim For Compensation Claimant's Attorney Vetter placed on record at the beginning of the hearing)

No. 5: Copy of a wage statement of Ms. Humphreys spanning from 9/15/05 to 9/1/06

No. 6: Deposition transcript Dr. John Krause, M.D. taken on behalf of the employer/insurer on February 20, 2008, with attachments 1 and 2

No. 7: Letter from ACS Recovery Services indicating benefits that have been paid by Group Health Plan

Peggy Ann Humphreys, the claimant, testified that she lives in St. Peters, Missouri. My date of birth is 2-191958, Humphreys stated, and I am 50 years old. I am about 5-foot-3 inches tall, and I weigh about 180 pounds, the claimant said. Humphreys stated that on the date of injury, March 1, 2006, she weighed about 220 pounds. She agreed that her weight has gone up as well as gone down since the date of the injury.

The claimant testified about the type of work she was doing in regards to her claim for workers' compensation benefits related to the accident she had on March 1, 2006. On that date the type of work I was doing, I was a parent educator for Fort Zumwalt School District and I was doing a private home visit, Humph