Jessica Brame v. Applebee's

Employee: Jessica Brame

Ms. Wooden initially punched employee in the face and they began fighting. The majority of the fight took place on the ground and employee testified that they fought for approximately five minutes. Employee stated that as the fight wound down she got off of Ms. Wooden and went to her car to pick up her things. At that point, Ms. Wooden got in her car and struck employee with it. Employee testified that she rolled up on the hood of Ms. Wooden's car and then Ms. Wooden hit the brakes, causing employee to be flung off the hood, into another car, and onto the ground. Ms. Wooden then drove off.

Employee and Ms. Wooden had no interaction between the time Ms. Wooden left work and the time she arrived outside of employee's home and began assaulting her.

Employee's relationship with Ms. Wooden was limited strictly to their time working together at Applebee's. They never did anything together outside of work. There was no evidence that the assault was private nor was anything said between employee and Ms. Wooden which indicated any type of unrelated problem existed between them.

If employee and Ms. Wooden had a relationship outside of work, there might be, at most, a weak argument that this assault was spawned by something unrelated to the altercation at work. However, all the testimony indicated that employee and Ms. Wooden did not associate at all outside of work. There is no evidence that this assault was the result of anything other than the altercation that occurred at work.

Employee stopped an altercation involving Ms. Wooden at work and was attacked at the first opportunity by Ms. Wooden thereafter. We find that employee's risk was directly attributable to her employment, because the only altercation that could have motivated Ms. Wooden to attack employee occurred at work when employee stopped Ms. Wooden from assaulting another co-worker. When the facts, as in this case, are not in dispute, we are permitted to make such an inference. See Adams v. Continental Life Insurance Company, 101 S.W.2d 75, 82 (Mo. 1937).

See also, Keithly v. Stone \& Webster Engineering Corp, 49 S.W.2d 296 (Mo. App. 1932). The Keithly court examined evidence similar to the evidence before us and concluded that an assault was connected with and pertained to employment where there was evidence of a disagreement about work and "[t]here [was] no evidence of any other foundation for the quarrel. Prior to the time the participants were friendly; there had been no strife or feud and no animosity arising from matters or subjects wholly independent of the work and purely personal to the individuals." Id., at 300.

Employee was knocked unconscious during the assault and was taken to Barnes Jewish Hospital. She was treated there for three fractures to her skull, three fractures to her right wrist (employee is right-handed), and a perforated right eardrum. She stayed the night at the hospital, and later returned for follow-up treatment and surgery on her wrist.

Employee testified that she has several lingering effects from her injuries. With regards to her right wrist, employee testified that she experiences pain in it when the weather changes. Employee also stated that she feels a pressure on her wrist when she lifts heavy things. Employee also stated that the injury caused her to lose full range of motion in her wrist. With regards to employee's head injuries, she testified that she has constant

Improvee: Jessica Brame

- 3 -

ringing in her ear and experiences headaches more often than she ever did before the assault.

Dr. Musich, at the request of employee's attorney, performed an independent medical evaluation on employee. Dr. Musich noted that employee complained of frequent right-sided headaches and tinnitus status post trauma. Employee complained that the tinnitus is uncontrollable and totally incapacitating. Dr. Musich noted subjective hearing loss, right greater than left. Employee related that she had never suffered from headaches, a skull fracture, tinnitus, or hearing loss prior to October of 2005.

With regards to employee's right wrist, Dr. Musich noted that employee had some diminished range of motion in her wrist. On physical examination, employee's maximum right hand grip strength was 58 lbs. with radial wrist pain. Employee's maximum left hand grip strength was 76 lbs. without pain.

Dr. Musich opined that employee is 35% permanently partially disabled of the right upper extremity rated at the wrist (61.25 weeks), and 25% permanently partially disabled of the body as a whole due to the closed head fracture, right temporal bone fracture, chronic tinnitus, hearing loss, and headaches (100 weeks).

Employer sent employee to Dr. Wayne for an independent medical evaluation. Dr. Wayne noted that employee complained of headaches, constant ringing in her right ear, and has been more irritable ever since the injury. The headaches last 1-2 hours at a time and usually resolve with taking Excedrin. On physical examination, Dr. Wayne noted some degree of diminished hearing in employee's right ear.

Dr. Wayne does not believe that employee sustained any significant ongoing sequelae or any evidence of persistent post-concussion syndrome.

Dr. Wayne noted, with regards to employee's right wrist, that the orthopedic follow-up notes indicate she has been making a good recovery. Employee has had extensive hand therapy and Dr. Wayne believes she would benefit from continued home exercises and stretches to maximize her range of motion at the wrist and to also maximize her strength.

Dr. Wayne opined that employee is 5% permanently partially disabled of the right upper extremity rated at the wrist (8.75 weeks). Dr. Wayne further opined that he would defer to the opinion of an ENT specialist with regards to any permanency regarding her tympanic membrane perforation and possible ongoing issues with her hearing. Dr. Wayne does not believe employee sustained any permanency in regards to the concussion she sustained, nor did she sustain any permanency in regards to the right temporal bone fracture.

Employer also sent employee to Dr. Mikulec for the purpose of evaluating employee's complaints of hearing loss and tinnitus. Dr. Mikulec opined that employee had 0% hearing loss in both her right and left ears. Dr. Mikulec opined that due to employee's tinnitus in her right ear employee is 0.5% permanent partially disabled of the body as a whole rated at her right ear (2 weeks).

At the outset, we point out that the administrative law judge's reliance on Thompson v. Delmar Gardens of Chesterfield, Inc., 885 S.W.2d 780 (Mo. App. 1994) as precedent for determining whether the assault arose out of and in the course of the employment is misplaced. It is unclear if the reasoning of Thompson survived the 2005 amendments to the law, one of which specifically abrogated all case law interpretations of "arising out of" and "in the course of the employment" that predated the 2005 amendments. Section 287.020.10 RSMo. But we need not decide whether the reasoning survived. This case is distinguishable from Thompson because Thompson involved a neutral assault. We have already decided that the assault in the instant case grew out of work friction.

The parties have stipulated that the assault constituted an accident. The parties do not dispute that the assault caused the injuries for which employee claims compensation. We turn to $\S 287.020 .3(2)$ to determine if the injuries arose out of and in the course of employment such that they are compensable:

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 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.

It is obvious and undisputed that the assault which took place on October 10, 2005, was the prevailing factor in causing employee's injuries, so subparagraph (a) is easily satisfied. Employee produced evidence that convinced us her injuries were the result of an assault springing from work friction. Specifically, employee's injuries arose because her co-worker acted violently in response to employee's successful efforts to prevent an assault in the workplace - efforts clearly in furtherance of employer's interest. The risk that was realized here was the possibility that the co-worker would react violently to employee's intervention. Employee's injuries did not come from a hazard or risk unrelated to employment. Subparagraph (b) is satisfied.

Employee's injuries suffered as a result of the October 10, 2005, assault arose out of and in the course of her employment.

For the foregoing reasons, we reverse the award of the administrative law judge.

Employee has established that she is entitled to compensation.

Employee was off work for twelve weeks as a result of the fracture to her right wrist and problems with her ear. Employer is liable for employee's temporary total disability benefits for twelve weeks at the rate of $\ 164.55, as stipulated by the parties, for a total of $\ 1,974.60.

Pag