| FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Injury No.: 06-094098 |
| Employee: | Curtis Leible |
| Employer: | TG Missouri Corporation |
| Insurer: | Tokio Marine and Nichido Fire Insurance Co. Ltd. c/o Cannon Cochran Management Services |
| The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, heard the parties, 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 26, 2009, as supplemented herein. The award and decision of Administrative Law Judge Matthew W. Murphy, issued June 26, 2009, is attached and incorporated by this reference. |
| I. Issue |
| The principal issue on appeal to the Commission is whether or not employee sustained injury due to an accident arising out of and in the course of his employment. The injury occurred October 1, 2006, consequently, the Workers’ Compensation Law, as amended in 2005, governs the instant case. |
| II. Facts |
| The facts were accurately recounted in the award issued by the administrative law judge and in practicality were not in dispute. |
| In summary fashion, employee was coming to work October 1, 2006; employee had fixed hours of work and a fixed place of work; employee was scheduled to begin his work shift at 10:00 p.m.; employee arrived shortly before his work shift began and parked in a lot owned and controlled by the employer, which was also contiguous and adjacent to employer’s building; employer provided several lots and parking spaces to its employees which were all on employer’s premises; employees were not assigned a particular parking lot or parking space; and entrance to employer’s building was dictated by the parking lot used. |
| The parking lot used by the employee on October 1, 2006, headed the employee through a security turnstile in order to gain entrance to employer’s building; the turnstile is not motorized, i.e., employee must push the turnstile in order to gain access; after unlocking the turnstile with his badge, employee proceeded through the turnstile; the bottom rung of the turnstile struck the back of employee’s right foot; this in turn caused employee to pivot on his left leg and as employee pivoted he felt a pop in his left knee followed by immediate onset of pain and he fell to the ground while exiting the turnstile. |
The above described event is the injury/accident in dispute.
III. Relevant Statutes
As of the date of this accident $\S 287.120 .1$ RSMo, as amended in 2005, provided, in pertinent part, as follows: (the Commission notes the substantive provisions of this section were not changed in 2005).
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 changed in the 2005 legislation. The definitions are set forth in $\S \S 287.020 .2$ RSMo and 287.020.3 RSMo, and in pertinent part, are as follows:
- 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 of precipitating factor.
- (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 reasonable 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;
In addition to these definitions the legislature also provided the following additional legislation contained in $\S 287.020 .10$ 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. 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo. 1999) and all cases citing, interpreting, applying, or following those cased.
IV. Findings of Fact and Rulings of Law
Employer's principal contention on appeal is that employee failed to prove that he sustained an injury due to an accident arising out of and in the course of his employment.
The Commission must consider and determine whether employee's injury occurring October 1, 2006, was due to an accident arising out of and in the course of employment pursuant to the current statutory scheme as amended in 2005. Furthermore, § 287.800 RSMo requires the Commission to strictly construe the statutory changes.
More specifically one of employer's contentions is that employee did not prove a work accident occurred under the statute because the injury was not derivative or caused from a specific event during a single work shift. Employer contends that due to the fact employee had not "clocked in," the accident did not occur during his work shift; therefore, employee's accident is not compensable. Employer's second contention is that the injury came 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.
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. Section 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 cause or origin and the "course of employment" portion to the time, place and circumstances of the accident in relation to the employment.
The instant case is categorized as a "going to and from work" type case. At the time of the injury employee had parked his car on the parking lot owned by the employer, and provided for the employees; while entering or attempting to enter the building of the employer, employee was injured while passing through a security turnstile. Employee was attempting to enter the employer's building in order to clock in, and begin employee's scheduled work activities. The turnstile was on the premises of employer and the employee had to pass through the security turnstile in order to gain access to employer's building. (The Commission notes there were other entrances to the building, however, the most usual, customary and accepted entrance from the parking lot used by the employee was this particular turnstile.)
The general rule of law is that injuries occurring to employees going to and from work are not compensable unless the injuries occur on premises owned or controlled by the employer. The rule permits recovery of workers' compensation benefits provided the injury-producing accident occurs on premises owned or controlled by employer and if that portion of the premises is a customary, approved, permitted, usual and accepted
Injury No.: 06-094098
Employee: Curtis Leible
route or means employed by employees to arrive and depart from their place of employment.
Upon reviewing the current statutory scheme as amended in 2005, the Commission does not find a legislative intent to abolish this general rule. In further support of this finding, the Commission emphasizes the "new" statutory language contained in § 287.020.5 RSMo, which states in part:
The "extension of premises" doctrine is abrogated to the extent it extends liability for accidents that occur on property not owned or controlled by the employer even if the accident occurs on customary, approved, permitted, usual or accepted routes used by the employee to get to and from their place of employment.
The instant case is not one of "extended premises," which involve premises not owned by employer or contiguous to employer's premises; rather, all relevant events undisputedly occurred on premises owned by employer. In addition, the injuryproducing accident occurred on a customary, approved, permitted, usual or accepted route used by employee to get to and from his place of employment. Section 287.020.5 expressly limits the application of the extended premises doctrine to those cases in which accidents occur on property owned or controlled by the employer. Hager v. Syberg's Westport and Treasurer of Missouri as Custodian of Second Injury Fund, (Mo.App. No. ED 93420).
These multiple statutory changes of 2005 are in pari materia and must be considered together. Adhering likewise to the strict construction of statutory provisions required by $\S 287.800$, the Commission must consider the plain and ordinary meaning of the words used. Hager, supra. In so doing the Commission does not find a legislative intent to abandon the general "going to and coming from" work rule that injuries are not compensable unless they occur on premises owned or controlled by employer. Each case then must be decided as to its own particular facts.
Argument A. Employee did not sustain an injury due to an accident arising out of and in the course of employment because employee had not "clocked in": therefore, the accident did not occur during his work shift.
The definition of accident, due to the 2005 legislation, states that it means an unexpected traumatic event 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. The injury and accident must also be deemed to have arisen out of and in the course of employment.
The fine distinction is the fact that the accident and injury must "arise" out of and in the course of employment, and it does not require that the accident and injury "occur" in the course of employment. The term "during a single work shift" in § 287.020.2 RSMo is not defined and there is no requirement an employee must have clocked in for his work shift in order to be eligible for workers' compensation benefits due to an accident.
In the case of Henry v. Precision Apparatus, No. SD29772 (Mo.App. S.D., February 16, 2010), the Court of Appeals stated the following:
Claimant argues in his first point that the Commission erred in its application of section 287.020.2 RSMo Cum Supp. 2005, because it construed the "work shift" too narrowly as being on the "company clock." The Commission did not make such a finding, nor would we (em