Mary Perdue v. PeopLease Corp.

describe what the employee was doing and how the injury occurred, employee alleged: "While in the course and scope of employment, was unloading a trailer resulting in injury." There is no statement of fact pertaining to the issue of accident so there is no fact regarding the issue that can be deemed admitted.

Employee argues, in the alternative, that even if the untimely Answer is considered, employer's Answer itself states "[E]mployer and Insurer specifically admit that Employee was involved in an accident arising out of and in the course of employment for said Employer on or about January 5, 2006..." and for that reason, employer should not be allowed now to argue that an accident did not occur. Employee contends that employer is bound by a judicial admission that employee sustained an accident arising out of and in the course of employment on January 5, 2006.

At the outset of the hearing, the administrative law judge stated that one of the issues to be decided was "whether the employee sustained an accident arising out of and in the course of employment." Counsel for employee did not object to the administrative law judge's recitation of the issues to be tried. Neither did counsel for employee offer into evidence employer's Answer to Claim as proof of the alleged judicial admission. Employer's announced position at the hearing was a de facto amendment of employer's answer to which employee did not object. The issue of accident was a justiciable and controverted issue. See Snow v. Hicks Bros. Chevrolet, Inc., 480 S.W.2d 97 (Mo. App. 1972).

We move on to the merits of employer's first point. Employer argues that the administrative law judge "erred in finding that the employee is permanently and totally disabled because the injurious activity identified by the employee does not constitute an 'accident' as defined by the Missouri Supreme Court in [Miller v. Missouri Highway and Transportation Commission, 287 S.W.3d 671 (Mo. 2009)]." We disagree. The Miller court does not define or interpret "accident." The decision in Miller addressed only the issue of whether Mr. Miller's injury arose out of his employment. Id.

"[A]ccident" is defined by section 287.020(2) RSMo as "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." Implicit in employer's argument, is a request that we find the phrase "specific event" to mean the specific physical action in which employee was engaged at the exact moment employee experienced an objective symptom of an injury. We decline to read the statute so narrowly. "The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used." See Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. Ct. App. 2009).

While the definition of "accident" has changed over the years, the legislature has always given "accident" the character of an event.

The word accident as used in the statute is given the character of an event which is not limited to any single incident or circumstance. The word event is more comprehensive in meaning and in this connection is synonymous with the word occurrence.

Rinehart v. F. M. Stamper Co., 55 S.W.2d 729, 732 (Mo. App. 1932).

The administrative law judge specifically found that employee "engaged in the specific act of unloading pallets that included bending, stooping, lifting, and removing plastic wrappings on those pallets." As employee cut through shrink-wrap on the $7^{\text {th }}$ skid, she experienced an objective symptom of an injury; her back locked up. We find that the act of unloading pallets was the unexpected traumatic event and the specific event giving rise to employee's objective symptoms of an injury. We affirm the administrative law judge's conclusion that employee suffered an accident on January 5, 2006, as described above.

Employer states that "[i]n utilizing the box knife, this claimant was no more at risk for injury that she would have been in countless other daily activities." Employer argues that this case is analogous to Miller in the sense that the activities in which Mr. Miller and employee were engaged at the time of their injuries were similarly "mundane." We need not determine if employer's assertions are true, because they have no bearing on the determination of whether employee's injury arose out of her employment.

The question we must consider is whether employee's 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." Section 287.020.3(3) RSMo. Where the activity giving rise to the accident and injury is integral to the performance of a worker's job, the risk of the activity is related to employment. In such a case, there is clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life.

This case is distinguishable from Miller. Here, employee was injured while unwrapping pallets, a necessary activity in the performance of unloading the pallets. Because employee was performing an integral duty of her job of unloading pallets, there is a clear connection (nexus) between the injury and her work; that is, employee's injury came from a risk related to employment. Consequently, there is no need to consider whether employee is equally exposed to the risk of unloading pallets or the risk of unwrapping shrink wrap or the risk of using a box cutter in normal non-employment life.

Mr. Miller, on the other hand, was engaged in an activity incidental to the performance of his job. Mr. Miller's job was to provide asphalt to workers paving a roadway. At the time he was injured, employee was walking to his truck to move the truck to where the workers were paving. Because walking was not integral to Mr. Miller's job of bringing asphalt to the workers, there was no clear nexus between his work and his injury. Because there was no clear work nexus, it was necessary to consider whether

Mr. Miller was equally exposed to the risk of walking in normal non-employment life. Mr. Miller was equally exposed to the risk, so his injury did not arise out of his employment.

As discussed above, a worker's activity can provide the nexus needed to show an injury came from a hazard or risk related to employment. So, too, can the physical condition of the work environment. Where the physical condition of the work environment creates the hazard or risk giving rise to an injury, the physical condition provides the nexus needed to show the injury came from a hazard or risk related to employment. For example, imagine Mr. Miller stepped in a hole and injured his knee while walking to his truck. Under that scenario, because employer sent Mr. Miller to work on the roadway, the hole in the roadway would supply the nexus between work and the injury. There would be no need to consider Mr. Miller's non-work exposure to the risk of holes in the roadway.

Likewise, imagine a spill on a floor. The spill creates a risk of slipping and falling. If a worker engaged in the incidental activity of walking to her workstation slips on the spill and sustains an injury, the spill on the work premises provides the nexus between the work and the accident. Because the risk of the spill is related to the employment, there is no need to consider the worker's non-work exposure to the risk of spills.

In addition to the aforementioned arguments, employer also argues in its Application for Review that the administrative law judge "erred in finding that the employee is permanently and totally disabled because, in so doing, she necessarily weighed subjective medical findings over objective medical findings and therefore either ignored or misapplied the provisions of $\S 287.190 .6(2)$ RSMo."

Section 287.190.6(2) RSMo provides, in part:

In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

As the linchpin of its argument, employer asserts that "on the issue of permanent total disability, the claimant has provided the Court with conflicting expert opinions, one of which concludes she is capable of working." To the extent the medical doctors offered conflicting opinions about employee's employability, the opinions are not medical opinions; they are vocational opinions.

The question whether the claimant is totally disabled within the meaning of the workers' compensation law is not simply a medical question. The test for permanent total disability is whether, given the claimant's total situation and condition, he is competent to compete in the open labor market. This test measures the worker's prospects for returning to employment.

Crum v. Sachs Electric, 769 S.W.2d 131, 136 (Mo. App. 1989), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

Because employer cites us to no conflicting medical opinions regarding employee's disability, we conclude that the evidence-weighing directive of $\S 287.190 .6(2)$ was not triggered in this case.

For the foregoing reasons, the Commission agrees with the conclusions reached by the administrative law judge and affirms with supplementation as provided herein. The award and decision of Administrative Law Judge Lisa Meiners, issued August 19, 2009, is affirmed, and is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $14^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. R