Based on a comprehensive review of the substantial and competent evidence, including the testimony of Claimant, the medical reports, the video, the stipulations of the parties, and my personal observations of Claimant at the hearing, I make the following Rulings of Law:
- Did Claimant sustain an injury by accident arising out of and in the course of her employment for Employer on or about October 17, 2006?
Section 287.800, RSMo ${ }^{1}$ provides in part that administrative law judges shall construe the provisions of this chapter strictly and shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.
Section 287.808, RSMo provides:
The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting
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[^0]: ${ }^{1}$ All statutory references are to RSMo 2006 unless otherwise indicated. In a workers' compensation case, the statute in effect at the time of the injury is generally the applicable version. Chouteau v. Netco Construction, 132 S.W.3d 328, 336 (Mo.App. 2004); Tillman v. Cam's Trucking Inc., 20 S.W.3d 579, 585-86 (Mo.App. 2000). See also Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo.App. 2007).
such claim or defense must establish that such proposition is more likely to be true than not true.
Section 287.020.2, RSMo provides:
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.
Section 287.020.3, RSMo provides in part:
- (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.
(5) The terms 'injury' and 'personal injuries' shall mean violence to the physical structure of the body. . . .
Section 287.020.10, RSMo provides:
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 287.030.2, RSMo provides: "2. Any reference to the employer shall also include his or her insurer or group self-insurer."
A claimant has the burden to prove all the essential elements of his or her case, and a claim will not be validated where some essential element is lacking. Thorsen, 52 S.W.3d 611, 618 (Mo.App. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo. banc 2003) ${ }^{2}$; Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo. App. 1996).
The trier of facts may disbelieve the testimony of a witness even if no contradictory or impeaching testimony appears. Hutchinson, 721 S.W.2d at 161-2; Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo.App. 1980). The testimony of the employee may be believed or disbelieved even if uncontradicted. Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, 516 (Mo.App. 1993).
Based on the substantial and competent evidence and the application of the Missouri Workers' Compensation Law, I find that the credible evidence has established that Claimant sustained an injury to her lip and right shoulder arising out of and in the course of her employment for Employer which resulted from an accident on October 17, 2006 in Employer's workplace. I find that Claimant's accident while working for Employer was the prevailing factor in causing her injury, her resulting disability, and the need for the medical treatment she received.
I find that this occurrence qualifies as an "accident" as defined by Section 287.020.2, RSMo. I find that Claimant had an unexpected traumatic event when she tripped and fell on October 17, 2006, and her fall produced an objective symptom of an injury, a bloody lip and pain in her right shoulder, which was caused by a specific event during a single work shift.
Claimant testified that her left foot stuck on something on the concrete floor at Employer's workplace, and she pitched forward and fell. She said she did not trip on her own feet. I believe Claimant's testimony.
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[^0]: ${ }^{2}$ Several cases are cited herein that were among many overruled by Hampton on an unrelated issue (Id. at 224-32). Such cases do not otherwise conflict with Hampton and are cited for legal principles unaffected thereby; thus Hampton's effect thereon will not be further noted.
Claimant testified that she reported to the EMTs that her foot stuck on the floor. Employer offered no witnesses at the hearing. No EMTs testified at the hearing or by deposition to refute or contradict this testimony of Claimant. Employer offered no photographs of the floor where Claimant fell. Employer offered no investigative reports or other documentation regarding the incident. Employer offered no witnesses to testify that they had examined the floor where Claimant fell immediately after she fell, and found the floor to be dry, clean, and non-sticky.
Employer sites Bivins v. St. John's Regional Health Center, 272 SW3d 446 (Mo.App. 2009) in support of its position that Claimant's injury was not due to an accident arising out of in the course of her employment. The Southern District Court of Appeals affirmed the Commission's denial of benefits to claimant in Bivins. The court noted that the Commission found that there was no rational connection between claimant's work and injury that was sustained.
Bivins is distinguishable from the case at hand. In Bivins, Employer presented evidence that there was nothing on the floor that would have caused Claimant's foot to stick or would have caused her to slip or trip. The Court noted that photographs taken immediately after the incident provided no evidence of anything on the floor. In the case at hand, Employer offered no still photographs of the floor taken immediately after the incident and documented no evidence of anything on the floor. The surveillance video does not clearly show the condition of the floor where Claimant stepped at the time of the accident.
In Bivins, employer offered a dispatch report and emergency nursing record stating that claimant tripped, and neither indicated that claimant's foot stuck to the floor. In the case at hand, no such records were offered into evidence.
In Bivins, an officer who responded to the incident involving claimant asked claimant if she had tripped. Claimant responded that she "just fell", and did not advise the officer that she had fallen because her right foot stuck to the floor. In the case at hand, Employer did not offer the EMTs or anyone else investigating the accident to testify. They did not refute Claimant's statements that she told the EMTs that her foot had stuck to the floor.
In Bivins, a nurse, claimant's supervisor, testified that he discussed claimant's general condition with her. In Bivins, the supervisor denied that claimant told him she had fallen because her foot had stuck to the floor. Further, in Bivins, employer's health manager testified she spoke with claimant the day after the accident. She said the claimant told her that she "just fell". She also testified that claimant did not advise her that her foot did stick to the floor. The testimony of the officers, nurse and employee
health manager were all found to be credible. The Bivens court also noted that written documentation would not substantiate claimant's contention that she advised hospital personnel that her foot had stuck to the floor.
In the case at hand, Dr. Pazell's report documents Claimant's report to personnel in Dr. Romito's office three days after the fall that "she was walking when she caught her foot in the carpet." Dr. Romito's records were not offered into evidence. Dr. Pazell's summary of Dr. Romito's record refers to Claimant having "caught her foot in the carpet" rather than her left foot having stuck on a concrete floor. I do not find the difference of the surface of the floor to be material. The important fact is that the record documents that Claimant did state just three days after the fall that she had caught her foot while walking and that she then fell. The doctor's record indicates there was something on the surface of the floor that caused Claimant to fall, and that Claimant's fall was not an unexplained fall, as was found to be the case in Bivins.
The court notes in Bivins at 449 that the Commission had found and concluded "that the employee was walking in a hallway on the premises of employer when the employee 'just fell', meaning that she simply or merely fell, without explanation." The court notes that the Commission did not find credible "employee's trial testimony that her foot stuck to the floor immediately prior to falling." The Commission specifically found that the most credible version of what transpired was that employee "just fell", i.e., the injury simply was the result of an unexplained fall.
The court in Bivens states at 449:
Due to the fact that the injury was the result of an unexplained fall, the commission is unable to determine clearly if there was any condition of employment that contributed to the result of injury.
The burden rests upon the employee to show some direct causal connection between the injury and the employment. An award of compensation may be at issue if the injury were a rational consequence of some hazard connected with the employment. However, the employment must in some way expose the employee to an unusual risk or injury from such agency which is not shared by the general public. The injury must have been a rational consequence of that hazard to which the employee has been exposed and which exists because of and is part of the employment. It is not sufficient that the employment may simply furnish an indication for an injury for some unconnected source.
In Miller v. Missouri Highway and Transp. Com'n, 287 S.W.3d 671 (Mo. 2009), claimant was walking briskly toward a truck when he felt a pop and his knee began to hurt. The Court noted there was "nothing about the road surface, his work clothes or the job that caused any slip, strain or unusual movement, and he did not fall or otherwise sustain any additional injuries due to the popping. He just felt a pop." Id. at 672. The Missouri Supreme Court stated in Miller at 674:
An injury will not be deemed to arise out of employment if it merely happened to occur while working but work was not a prevailing factor and the risk involved-here, walking-is one to which the worker would have been exposed equally in normal non-employment life. The injury here did not occur because Mr. Miller fell due to some condition of his employment. He does not allege that his injuries were worsened due to some condition of his employment or due to being in an unsafe location due to his employment. He was walking on an even road surface when his knee happened to pop. Nothing about work caused it to do so. The injury arose during the course of employment, but did not arise out of employment.
The Miller court noted that claimant did not allege that his injuries were worsened due to some condition of his employment or due to being in an unsafe location due to his employment. The court noted that claimant was walking on even road surface when his knee happened to pop and that nothing about work caused it to do so.
Miller is also distinguishable from the case at hand. Claimant's injury did not occur merely because she was walking and she suffered a pop in her knee. Here, she asserts, and I believe, that she tripped because of a sticky surface on the floor, and the trip caused her to fall. I find that her injury arose during the course of employment and also arose out of her employment.
I find that that Claimant's accident is the prevailing factor in causing her injury. I also find that her accident 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. I find that there was a rational connection between Claimant's work and the injury sustained. I find that Claimant's injury was a rational consequence of some hazard connected with the employment, the hazard being a substance on the floor that caused her foot to stick to the floor and caused her to then fall to the floor. In believing the Claimant's testimony, I find that the condition of the floor exposed Claimant to an unusual risk or injury from such hazard which was not shared by the general public, and that the injury was a rational consequence of that hazard to which the Claimant had been exposed and which existed because of and as part of the employment. I find that Claimant's injury was not sustained
due to an unexplained fall. I find that Claimant's work was not a triggering or precipitating factor.
In the case at hand, Employer's attorney acknowledged at the beginning of trial that medical aid has previously been furnished in this case in the amount of $\ 23,492.38. Claimant specified that all medical bills have been paid. Employer's attorney also acknowledged that temporary total disability benefits had been paid in the amount of $\ 3,683.21 for time Claimant was off work after her May 15, 2007 surgery.
The parties stipulated at the hearing that in the event it is determined that Claimant sustained a compensable accident arising out of her employment for Employer, Claimant shall be entitled to an award of permanent partial disability benefits from Employer of 19.5 % of the right shoulder at the 232 week level at the permanent partial disability rate of $\ 376.55 per week. I have determined that Claimant sustained a compensable accident on October 17, 2006 arising out of her employment for Employer. I therefore award permanent partial disability benefits to Claimant in the amount of $\ 17,035.12 from Employer/Insurer.
The parties stipulated at the hearing that in the event it is determined that Claimant sustained a compensable accident arising out of her employment for Employer, Claimant shall be entitled to an award of temporary total disability benefits from Employer for the period from and including October 18, 2006 through and including April 1, 2007 at the temporary total disability rate of $\ 460.38 per week. That period amounts to $235 / 7$ weeks. I have determined that Claimant sustained a compensable accident on October 17, 2006 arising out of her employment for Employer. I therefore award temporary total disability benefits to Claimant in the amount of $\ 10,917.58 from Employer/Insurer.
The compensation awarded to Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorneys for necessary legal services rendered to the claimant: Mark E. Kolich.
Made by: /s/ Robert B. Miner<br>Robert B. Miner<br>Administrative Law Judge<br>Division of Workers' Compensation
This award is dated and attested to this $\underline{8 t h} day of \underline{\text { October, } 2009}$.
Issued by DIVISION OF WORKERS' COMPENSATION
Re: Injury No.: 06-100104
Employee: Mary E. Miller
/s/ Naomi Pearson
Naomi Pearson
Division of Workers' Compensation