Andre Hammonds v. Columbia Mall Car Wash

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-002720

Employee: Andre Hammonds

Employer: Columbia Mall Car Wash

Insurer: General Casualty Company of Illinois

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 13, 2009, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued March 13, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I must affirm the denial of compensation by the administrative law judge but for a much simpler reason.

In short, this case is not compensable under the Missouri Workers' Compensation Law (Law) because, although employee slipped on ice and snapped his right ankle, employee did not sustain an "accident" as that term is defined in the Law. Under the Law as it existed before August 28, 2005, "accident" meant roughly the same thing in workers' compensation as it did in laymen's terms: "An unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury." Remarkably, under the strange language that is the Workers' Compensation Law as amended in 2005, employee's slip and fall does not meet the definition of "accident."

In the 2005 amendments, the legislature narrowed the class of incidents that qualify as an "accident" for workers' compensation purposes by limiting the class to incidents that occur during a single work shift. ${ }^{1}$ The legislature also abrogated all cases interpreting the meaning of accident. Section 287.020 provides, in relevant part:

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...
2. 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.

Section 287.800 requires that we strictly construe the Law.

"[A] strict construction of a statute presumes nothing that is not expressed." 3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6th ed. 2008). The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly

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[^0]: ${ }^{1}$ It is unclear why the legislature chose to upset the traditional concept of "accident" by adding the single work shift limitation to the definition of accident rather than making it an element of "in the course of employment." Since the inception of the Missouri Workers' Compensation Law, the timing of an injury has been relevant to the issue of whether the injury arose in the course of employment.

come within the scope of the language used. 82 C.J.S. Statutes § 376 (1999). Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. 3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6th ed. 2008). The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions. 3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6th ed. 2008).

Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009).

Employee's slip on the ice was clearly a specific, unexpected, traumatic event identifiable by time and place of occurrence. The resulting fall and impact immediately produced objective symptoms of an injury. But did the fall occur during "a single work shift?" "Work shift" is not defined in the Law. I look to the dictionary for a definition.

The phrase "work shift" does not appear in my Webster's Dictionary. ${ }^{2}$ The word "shift" appears. "Shift" means, "a group of people who work or occupy themselves in turn with other groups: a change of one group of people (as workers or students) for another in regular alternation: a scheduled period of work or duty in a department working on shifts." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2095 (2002).

Using this definition, a work shift is "a scheduled period of work or duty." It is clear employee's slip on the ice occurred before his scheduled period of work. Naturally, then, the accident did not occur during employee's scheduled period of work. Employee has failed to prove he sustained an "accident" as that term is defined in the Workers' Compensation Law. We must deny compensation because the Law only provides compensation for injuries by accident. § 287.120.1 RSMo.

Employee is not without a remedy. Because employee did not sustain an injury by accident as that term is defined by the Law, employer is not protected by the exclusive remedy of workers' compensation. It seems claimant is free to seek redress for his personal injuries through the courts. See Mo. Alliance for Retired Ams. v. DOL \& Indus. Rels., Div. of Worker's Comp., 277 S.W.3d 670 (Mo. 2009). It is for the courts to decide if employer was negligent when employer allowed ice to form on its property resulting in injury to employee or if employer is otherwise legally liable to employee for his injuries.

For the above reasons, I join in the decision of the majority to deny compensation in this matter.

John J. Hickey, Member

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[^0]: ${ }^{2}$ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002).

Employee: Andre Hammonds

Injury No. 06-002720

Dependents:

Before the

Employer: Columbia Mall Car Wash

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: MO Dept. of Social Services

Insurer: General Casualty Company of Illinois

Hearing Date: February 9, 2009

Checked by: RJD/cs

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: Alleged to be January 14, 2006.
5. State location where accident occurred or occupational disease was contracted: Alleged to be Columbia, Boone 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? No.
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 was not working when alleged accident occurred.

1. Did accident or occupational disease cause death? N/A Date of death? N/A.
2. Part(s) of body injured by accident or occupational disease: N/A.
3. Nature and extent of any permanent disability: N/A.
4. Compensation paid to-date for temporary disability: N/A.
5. Value necessary medical aid paid to date by employer/insurer? None.

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: Not determined.
3. Weekly compensation rate: Not determined.
4. Method wages computation: Not computed.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: None.
3. Future requirements awarded: None.

Employee: Andre Hammonds No. 06-002720

Employee: Andre Hammonds

Dependents:

Employer: Columbia Mall Car Wash

Additional Party: Second Injury Fund

Additional Party: MO Dept. of Social Services

Insurer: General Casualty Company of Illinois

06-002720

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/cs

The evidentiary hearing in this case was held on February 9, 2009 in Columbia. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on March 2, 2009. .The hearing was held to determine the following issues:

1. Whether Claimant sustained an accident arising out of and in the course of his employment with the Columbia Mall Carwash on or about January 14, 2006;
2. Claimant's average weekly wage and compensation rates;
3. Whether Employer and Insurer shall be ordered to pay temporary total disability ("TTD") benefits, and, if so, for what period(s) of time;
4. Whether Employer and Insurer shall be ordered to pay medical bills heretofore incurred by Claimant;
5. The nature and extent of Claimant's permanent partial disability, if any;
6. Whether Employer and Insurer shall be ordered to provide Claimant with future medical benefits pursuant to Section 287.140, RSMo; and
7. A determination of the rights, if any, of the Department of Social Services pursuant to Section 287.266, RSMo.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue is proper in Boone County;
3. That the Claim for Compensation was filed within the time allowed by the applicable statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;
5. That Employer-Insurer paid no benefits under the Missouri Workers' Compensation Law;
6. That the notice requirement of Section 287.420 is not a bar to Claimant's claim; and
7. That General Casualty Company of Illinois fully insured Columbia Mall Carwash for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of Claimant, Andre Hammonds, as well as the deposition testimony of Andre Hammonds; the testimony of Robert "Rob" Hamilton, Employer's general manager; a written statement of Rob Hamilton; employee scheduling information; time records for Claimant; wage information for Claimant; photographs; curriculum vitae and narrative report of Dr. Garth Russell; medical records and medical bills.

The facts of this case are fairly simple. Claimant worked at Columbia Mall Carwash as a detailer. Claimant began working for Employer on Thursday, November 3, 2005. Starting the week of November 7, 2005, Claimant was put on a weekly schedule with all the other emp