Tina Shearer v. Convergys Corporation

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

Injury No.: 08-118457

Employee: Tina M. Shearer

Employer: Convergys Corporation

Insurer: Fidelity \& Guarantee Insurance

c/o Gallagher Bassett Services, Inc.

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 heard the parties' arguments, reviewed the evidence, read the briefs, 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 temporary award and decision of the administrative law judge dated September 17, 2009, as supplemented herein.

The administrative law judge concluded that employee sustained a compensable accident under the Missouri Workers' Compensation Law. Accordingly, the administrative law judge ordered employer to pay employee's past and future medical expenses, and awarded temporary total disability benefits to employee. We agree with the conclusions reached by the administrative law judge. We offer this supplemental opinion in order to discuss the award in light of the recent case of Hager v. Syberg's Westport, No. 93420 (Mo. App. E.D., February 23, 2010).

Injury Arising Out Of And In The Course Of Employment

Here, employee's claim for compensation stems from injuries employee sustained when she was struck by a vehicle while walking in the parking lot outside of employer's building at the end of her work day on December 18, 2008. In Hager v. Syberg's Westport, No. 93420 (Mo. App. E.D., February 23, 2010), the Court of Appeals for the Eastern District of Missouri was faced with a similar "going to and from work" case. In Hager, the employee was injured when he slipped and fell on ice in the parking lot while walking to his car after work. The Hager court found that the employee's injury could not be deemed to arise out of and in the course of employment under the current statutory scheme because "[c]laimant could have slipped and fallen on an ice-covered parking lot anywhere, and thus, his injury comes from a hazard or risk unrelated to his employment." Id. at *10.

Here, the administrative law judge found that employee's injury arose out of her employment, because "there is no evidence that Employee would have 'crossed paths' with the co-employee who failed to clean his windshield and failed to keep a careful lookout but for Employee's employment." Award, pg. 14. We agree with the conclusion of the administrative law judge.

Because the issue is whether employee sustained an injury arising out of and in the course of her employment, we briefly mention two other recent cases analyzing the 2005 amendments to § 287.020.3(2), RSMo. ${ }^{1}$ In Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671 (Mo.

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[^0]: ${ }^{1}$ Section 287.020.3(2) provides, in relevant part: "(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

2009), the Missouri Supreme Court affirmed this Commission's finding that the injury did not arise out of employment where the risk involved was "walking." Id. at 674. Also in Miller, there was testimony from the employee that he frequently walked briskly outside work and that his work did not require him to walk briskly. Id. at 672. In Bivins v. St. John's Reg'l Health, 272 S.W.3d 446 (Mo. App. 2008), the court affirmed this Commission's finding that the injury did not arise out of employment where the employee "just fell" and was unable to articulate any reason for falling. Id. at 450 .

We find that Hager, Miller, and Bivins are each distinguishable from the case at hand. Here, the risk involved was not a generic environmental risk such as black ice, was not a universal nonwork activity such as "walking," nor did employee "just fall," without explaining a reason. Here, the hazard or risk was unique and one that employee was exposed to each day as a condition of her employment: the careless driving of a coworker in employer's parking lot at the end of a work day. We affirm the conclusion of the administrative law judge that employee sustained an injury arising out of and in the course of her employment.

The Hager court found that the employee's injury did not occur on premises controlled by the employer because the employer "did not exercise power or influence over the parking lot." Hager, supra, at *16 (emphasis added). The Hager court examined the employer's lease and the testimony of employer's witness, and found the following factors determinative: under the lease, the landlord (1) was responsible for "managing and maintaining" the parking areas; (2) had "sole discretion to change, rearrange, alter, or modify the parking areas"; and (3) had the power to "make reasonable rules and regulations pertaining to the use of such parking areas by [Employer], its guests, invitees, and suppliers." Id. The Hager court also cited testimony that the employer did not have control over parking decisions, but that the landlord permitted employer, its employees, and its guests to choose parking spaces. Id.

Here, the issue is whether employer exercised sufficient "power" and "influence" over the parking lot so as to constitute "control" for purposes of $\S 287.020 .5, RSMo. { }^{2}$ We agree with the conclusion of the administrative law judge that employer had control of the parking lot.

The facts of this case differ from those in the Hager case in several important respects. Here, the landlord was responsible for "maintaining" the parking areas, but the landlord did not have the sole discretion to change, alter, or modify the parking areas. In fact, because employer leased more than 50 % of the building, the landlord was prohibited under the lease from making any improvements or changes to the parking lot without first obtaining employer's written consent. Further, nowhere in the lease did the landlord retain the right to make rules governing the parking lot. Specifically, Exhibit H of the lease, which outlines rules, is absent any mention of the parking lot.

Other factors not present in Hager tend to demonstrate that employer exercised "power" and "influence" over the parking lot. For example, the lease grants to employer the "exclusive use" of at least 585 parking spaces. This "exclusive use" is tied to employer's status as the sole

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."

${ }^{2}$ Section 287.020 .5 provides, in relevant 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" (emphasis added).

tenant, using all of the rentable space in landlord's building. The lease provides that if, at any time, employer leases less than all of the rentable space in the building, employer shall have the "nonexclusive use" of all of the parking spaces in the parking lot. There is no evidence that employer was ever required to share use of the lot with any other business or tenant of the building. Employer contracted with a security firm to provide guards who monitored video of the parking lot. Employer's sign was posted at the entrance to the parking lot, and there is no evidence that anyone other than employees and visitors of employer ever parked in the parking lot. Human resources required employees to register the vehicle they would be driving to work. Taken together, we are convinced that the foregoing factors indicate that employer exercised a degree of power and influence over the parking lot arising to the level of control.

Based on the foregoing, we agree with the conclusion of the administrative law judge that, at the time employee was injured, employer controlled the parking lot for purposes of $\S 287.020 .5$ RSMo. Because we otherwise agree with the findings, conclusion, and analysis of the administrative law judge, we affirm the award.

The award and decision of Administrative Law Judge Matthew W. Murphy, issued September 17, 2009, is affirmed, and is attached and incorporated by this reference.

This award is only temporary or partial. It 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 $\S 287.510$ RSMo.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day of March 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Tina M. Shearer

Injury No.: 08-118457

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Convergys

Additional Party: Gallagher Bassett Services

Insurer: Fidelity \& Guarantee Insurance

Appearances: Joseph Montecillo for Employee

Loretta Simon for employer/insurer

Hearing Date: July 20, 2009

Checked by: MM/kh

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? December 18, 2008.
5. State location where accident occurred or occupational disease contracted: Arnold, Jefferson 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.

1. Was employer insured by above insurer? Yes.
2. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was injured when she was struck be a vehicle in the employer's parking lot.
3. Did accident or occupational disease cause death? No.
4. Parts of body injured by accident or occupational disease: Body as a whole, bilateral lower extremities.
5. Compensation paid-to date for temporary total disability: $\ 0.00.
6. Value necessary medical aid paid to date by employer-insurer? $\ 0.00.
7. Value necessary medical aid not furnished by employer-insurer? $\ 70,936.53.
8. Employee's average weekly wage: $\ 677.67.
9. Weekly compensation rate: TTD/PTD: $\ 451.80, PPD: $\ 404.66.
10. Method wages computation: Stipulation.
11. Amount of compensation payable:

Unpaid medical expenses: $\ 70,936.53

Additional Medical Aid: Such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

TTD: $\$ 2,127.99(12 / 19 / 2008-1 / 20 / 2009,45 / 7$ weeks)

This award is only temporary and 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.

On J