Kimberly Regan-Mercer, Kimberly 7-10-11 v. Quest Diagnostics

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, heard the parties’ arguments and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of Administrative Law Judge Paula McKeon, dated October 26, 2010.

The issues stipulated in dispute at the hearing were: (1) whether employee sustained an accident arising out of and in the course of her employment with employer on February 6, 2007; (2) whether the alleged accident was a prevailing factor in employee’s need for medical treatment; and (3) Second Injury Fund liability.

The administrative law judge found: (1) the “causal hug” does not meet the statutory definition of accident under § 287.020.2 RSMo; (2) assuming, arguendo, that the “causal hug” met the statutory definition of accident, employee’s injuries did not arise out of and in the course of her employment; and (3) work was not the prevailing factor in causing employee’s injuries.

Employee filed an Application for Review alleging the administrative law judge erred in applying Miller v. Mo. Highway & Transp. Comm'n, 287 S.W.3d 671 (Mo. 2009) to the facts of this case.

For the reasons set forth herein, we reverse the award of the administrative law judge.

In 2003, as part of her treatment for cervical myelopathy, employee underwent neck surgery that included an anterior cervical corpectomy at C6 with anterior plating from C5 to C7. She underwent a second neck surgery in 2005 that involved a C4 to C5 fusion. Following those surgeries, employee had numbness and tingling and could no longer engage in activities such as horseback riding. Employee needed some accommodations at work, such as having her computer monitor raised so that she didn’t have to look down, which hurt her neck. Employee also had to take periodic vacation days from work in order to attend ongoing medical tests and diagnostic procedures to monitor her neck condition.

Improve: Kimberly Regan (Mercer)

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Dr. James Stuckmeyer examined employee and reviewed her past medical history and provided the only expert medical testimony on record. Dr. Stuckmeyer opined that employee suffered a preexisting 30% permanent partial disability of the body as a whole referable to the cervical spine in connection with her neck surgeries and pain and limitations. We find Dr. Stuckmeyer credible and adopt his opinion and rating with regard to employee's preexisting neck condition.

Michael Dreiling performed a vocational evaluation of employee and provided the only expert vocational testimony on record. Mr. Dreiling opined that employee's preexisting neck condition constituted a hindrance and obstacle to her obtaining employment. We find Mr. Dreiling credible on this point.

**Primary injury**

Employee worked for employer processing medical records. Her duties involved getting medical records from the mail room, taking them back to her desk, opening the files, removing staples, examining the records, and preparing them for electronic scanning. On February 6, 2007, employee got up from her workstation to take a restroom break. As employee was walking toward the restroom, a coworker, Erin Logan, came up behind her suddenly and grabbed employee around the neck and pulled employee's head to her shoulder, causing employee's neck to pop. Employee experienced immediate and severe pain.

Ms. Logan did not mean to hurt employee and her actions were not undertaken maliciously. Ms. Logan was employee's friend at work but the two did not socialize outside the workplace. Employee was not expecting Ms. Logan to grab her. Employee's family and friends knew to be careful when hugging claimant due to her previous neck surgeries and employee believed they would not have grabbed her in the unexpected and forceful fashion that Ms. Logan did.

Employee's neck condition deteriorated after the event with Ms. Logan on February 6, 2007, and employee underwent a course of medical treatment that culminated in a third neck surgery in April 2007. Dr. Feigenbaum, the treating surgeon, performed a posterior left C3-4 transpedicular discectomy with extension of the existing hardware to C3 from C4, and released employee from his care on November 7, 2007.

Dr. Stuckmeyer opined that the February 6, 2007, event was the prevailing reason for the development of employee's increased symptoms and need for a third neck surgery. Dr. Stuckmeyer opined that employee sustained a 25% permanent partial disability of the body as a whole referable to the cervical spine as a result of the neck injury on February 6, 2007.

We find Dr. Stuckmeyer credible. We find that the February 6, 2007, event was the prevailing factor causing employee's injuries, resulting medical condition including an increase in her neck symptoms and need for a third surgery, and resulting disability. We find that employee reached maximum medical improvement on November 7, 2007, the date Dr. Feigenbaum released employee from his care. We find that claimant sustained a 25% permanent partial disability of the body as a whole as a result of the injuries she sustained when her coworker grabbed her around the neck on February 6, 2007.

Employee has not worked since reaching maximum medical improvement from the primary injury. Employee now experiences ongoing pain, numbness, and tingling to a degree that is much worse than before February 6, 2007. Employee is only able to sleep about an hour per night due to neck pain. Employee can no longer lift a laundry basket, vacuum, make her bed, and no longer visits family and friends as much as she used to. After about 20 minutes of driving, employee experiences severe neck pain and her arms fall asleep. Employee takes ibuprofen every four hours for neck pain.

Dr. Stuckmeyer opined that employee should be restricted to the non-occupational sedentary level. Dr. Stuckmeyer explained employee is a "walking time bomb when it comes to her cervical spine," because minimal lifting could cause devastating neurological injury to employee. Ultimately, Dr. Stuckmeyer opined that employee is permanently and totally disabled as a result of her overall neck condition. Mr. Dreiling agreed that employee is permanently and totally disabled based on her overall cervical condition.

We are persuaded by employee's testimony and find credible the uncontested expert opinions of Dr. Stuckmeyer and Mr. Dreiling. We find that employee is permanently and totally disabled due to the combination of her preexisting cervical condition and the disability stemming from the injuries she sustained on February 6, 2007.

We have resolved the disputed fact issues and now proceed to the legal questions presented by the parties. First, however, we wish to point out that the issues stipulated by the parties appear to have been imprecisely stated and perhaps have not heretofore been appropriately framed. Some discussion is in order so that further confusion is avoided.

The parties asked the administrative law judge to resolve the issue whether employee "sustained an accident arising out of and in the course of her employment." But the Missouri Workers' Compensation Law does not require an employee to prove an "accident" arising out of and in the course of employment, but rather an "injury" arising out of and in the course of employment. See § 287.020.3(2) RSMo. This distinction is not merely academic where both "accident" and "injury" have specific definitions for purposes of Chapter 287. The problem with the way in which the parties have stated the issue is that it raises the question whether, by stipulating as a single issue whether employee "sustained an accident arising out of and in the course of her employment," the parties really mean to stipulate two issues, i.e., whether employee sustained an "accident" as that term is defined in the Missouri Workers' Compensation Law, and whether the injuries resulting from that accident "arose out of and in the course of employment." Because we are duty-bound to resolve no more and no less than the particular factual and legal issues the parties stipulate as in dispute, the importance of precisely stating those issues can easily be seen.

In the present case, it appears from the parties' briefs and arguments that we are, in fact, asked to resolve both (1) whether employee sustained an "accident," and (2) whether employee's injuries arose out of and in the course of her employment.

Improve: Kimberly Regan (Mercer)

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Section 287.020.2 RSMo defines "accident" 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.

We have found that on February 6, 2007, employee was walking to the restroom during her work shift when her coworker, Ms. Logan, unexpectedly came up behind her and grabbed her around the neck and pulled employee's head toward her shoulder. We have found that the event was traumatic: employee's neck popped and she experienced immediate and severe pain. We have found that, as a result of the February 6, 2007, event, employee suffered objective symptoms of injury in the form of a deterioration of her cervical spine condition which eventually necessitated a third surgery.

Given the foregoing facts, we are convinced that the February 6, 2007, event meets every aspect of the definition of "accident." That the accident occurred as a result of a coworker's joking around or horseplay does nothing to take this event outside the definition of "accident" under the language set forth above.

We conclude that the specific event on February 6, 2007, of Ms. Logan grabbing employee around the neck and pulling employee's head toward her constituted an "accident" for purposes of $\S 287.020 .2$.

Section 287.020.3(2) RSMo provides, as follows:

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.

We have already determined that the accident of February 6, 2007, is the prevailing factor in causing employee's injuries. We must now determine whether employee has satisfied the second prong of the foregoing section, namely, that her injuries did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of work in normal life.

In Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463 (Mo. App. 2010), the court made clear that the application of $\S 287.020 .3(2)$ (b) involves a two-step analysis. The first step in

the analysis is to "determine whether the hazard or risk is related or unrelated to the employment." Id. at 467. The court explained that "[o]nly if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life." Id.

Here, we are convinced that employee's injuries stemmed from a hazard or risk directly related to her employment. Simply stated, work