Ruth Bailey v. Phelps County Regional Medical Center

(Affirming Award and Decision of Administrative Law Judge by Separate Opinion)

Injury No.: 06-057985

Employee: Ruth Bailey

Employer: Phelps County Regional Medical Center

Insurer: Liberty Mutual Insurance Co.

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, heard oral arguments and considered the entire record. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated May 21, 2009, by issuing a separate opinion denying compensation in the above-captioned case.

I. Issue

The dispositive issue is whether or not employee sustained injury due to an accident arising out of and in the course of employment. The injury occurred January 15, 2006, consequently, the Workers' Compensation Law, as amended in 2005, governs the instant case.

The facts were accurately recounted in the award issued by the administrative law judge. Repetition of the facts in the instant award is done so for special emphasis supporting the Commission's conclusions.

The facts which are of special emphasis to the Commission are as follows: on direct examination employee testified and described her injury as occurring in the following manner:

Q. Okay. If you would, l'd like to ask you to tell the judge here today as detailed account as you can give of the lead-up to the incident and sort of what happened to you, and where you had been and where you were going, that kind of thing.

A. I was in a patient's room with one of the nurses. I'm not exactly sure what we were doing to the patient, but I had gone in there with her to assist her, or she was to assist me.

We came out of the hall and started to walk back to the nurses' station, and in the meantime as I - while I was in the patient's room I received a call to come to the nurses' station.

And so as we left the nurses' station I was walking down the hallway and my foot just stopped. I had nursing shoes on with a rubber sole. And it was like it caught on something sticky on the floor, or something

to that affect, and my foot just stopped. And I took another step and my knee just totally gave out. I was close enough to the wall to grab the guardrail or I think I would have fallen. And I was in severe pain for just a few minutes, and it gradually lessened.

Then I - just before I started on up to the nurses' station one of the other nurses came out of another room and asked me what had happened, and I said, well, my knee popped. Because you - you actually could have heard the popping sound. In fact, the other nurse that was with me heard it pop. And I said, I don't know for sure what happened. And I went on up to the nurses' station then and - to see what was going on. (Tr. 12-13)

On cross-examination employee admitted that she gave accurate histories to her treating physicians as to how her injury occurred. (Tr. 28)

On January 20, 2006, employee presented to her family physician, Dr. Sievers, and employee gave the following history to Dr. Sievers:

Ruth presents today with pain in her right knee that began down the hall the other day at work. She was just walking when all of the sudden she felt a pop in her knee, since then its been swollen. (Tr. 165)

Dr. Sievers referred employee to an orthopedist, Dr. Weissfeld. Employee's initial visit was February 16, 2006, and the following history was given:

The patient is a 56 year old female who presents for initial orthopedic consultation regarding right knee pain present since 1/14/06. She is being seen at the request of her PCP, Dr. Karlynn Sievers. Patient states that while walking down a hallway at work at the hospital the right knee "popped out of place." (Tr. 152)

The operative report of Dr. Weissfeld, dated March 8, 2006, contains the following history:

The patient is a 57 year old female with right knee pain that she says has been present only since early this year. She states that walking down a hallway while working at the hospital, her knee "popped out of place." (Tr. 100)

III. Relevant Statutes

As of the date of this accident § 287.120.1 RSMo, as amended in 2005, provided, in pertinent part, as follows:

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, ...

The definitions of both accident and injury were significantly changed in the 2005 legislation. The definitions are set forth in § 287.020.2 RSMo and § 287.020.3 RSMo, and are as follows:

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. An injury is not compensable because work was a triggering or precipitating factor.

1. (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;

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable;

(4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition;

(5) The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

In addition to these definitions the legislature also provided the following additional legislation contained in § 287.020.10 which is as follows:

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.

IV. Findings of Facts and Conclusions of Law

Due to the extensive changes made to the Workers' Compensation Law by the General Assembly in 2005, the Commission is of the opinion that it is imperative that the basic premise of the Workers' Compensation Law be first considered, prior to reaching conclusions pertinent to the instant case.

Among its many features, the Workers' Compensation Law provides: (1) benefits to employees who sustain personal injury by accident arising out of and in the course of employment; and (2) negligence and fault are largely immaterial. See § 287.120.1 RSMo.

The construction of the phrase "arising out of and in the course of employment" historically has been broken in half, resulting in a two-prong test, with the "arising out of" portion construed to refer to causal origin, and the "course of employment" portion to the time, place and circumstances of the accident in relation to the employment. The substantive provisions of $\S 287.120 .1$ were not changed or amended by the 2005 enactment of the General Assembly.

Pursuant to this statute, proof of a compensable injury requires not only establishing that it occurred at a particular place, and at a particular time (the "in the course of" component) the injury must also be causally connected to some risk or hazard of the job (the "arising out of employment" component).

The second prong of the above mentioned two-prong test, whether the injury arose "in the course of" employment, is not in dispute in the instant case. The injury occurred within the period of employment at a place where the employee could reasonably be expected and while engaged in the furtherance of the employer's business.

The first prong, "arising out of," the test primarily concerned with causal connection, is the dispositive issue in this case.

Historically, at a minimum, our courts have required a showing that the employee's injury was caused or due to a risk of employment. Missouri cases have uniformly held that an accident and resultant injury "arise out of" the employment when there is a causal connection between the conditions under which the work was required to be performed and the resulting injury. The injury "arises out of" the employment so long as the injury was a rational consequence of a hazard connected with the employment.

**Injury No.:** 06-057985

Generally speaking, all risks causing injury to an employee can be brought within three categories: risks distinctly associated with the employment; risks personal to the employee; and "neutral risks", i.e., risks having no particular employment or personal character. Harms from the first category are universally compensable; harms from the second are universally non-compensable; and harms from the third result in controversy.

Various lines of interpretation of the phrase "arising out of" have historically risen of which three are the increased risk doctrine, the actual risk doctrine and the positional risk doctrine.

The increased risk doctrine, in summary fashion, requires that the distinctiveness of the employment risk can be contributed by the increased quantity of a risk that is qualitatively not peculiar to the employment.

As to the actual risk doctrine, whether the risk was also common to the public is of no concern, if it were a risk of the employment. The employment subjected employee to the actual risk that caused the injury.

The positional risk doctrine determines that an injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed employee in the position where he was injured.

Consequently, since risks distinctly associated with the employment fall readily within the increased risk doctrine, they are considered to arise out of the employment. As to risks personal to an employee, the origins of harm are personal and cannot possibly be attributable to employment.

However, neutral risks are defined as being neither distinctly employment nor distinctly personal in character. Furthermore, the cause is unknown, unexplainable or happenstance; known, but not associated with employment or