(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 10-076600
Employee: Lolita Maderazo
Employer: Dillard's, Inc.
Insurer: Fidelity \& Guaranty Insurance Co.
Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)
The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms and adopts the award and decision of the administrative law judge dated June 2, 2011.
This award is only temporary or partial, 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 section 287.510 RSMo.
The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued June 2, 2011, is attached and incorporated by this reference.
Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of December 2011.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
DISSENTING OPINION FILED
Alice A. Bartlett, Member
Curtis E. Chick, Jr., Member
Attest:
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be reversed because employee's injury did not arise out of and in the course of her employment.
Employee fell at work and fractured her left hip. Employee testified at the hearing that a coworker, Sherry Ryan, swung a door open and employee caught her foot in the door, causing employee to fall. Employee further reiterated that Ms. Ryan was there when this happened and that Ms. Ryan was the first person to see her when she fell. Mardi Miller, another coworker, also saw employee while she was sitting on the floor following the fall.
Employee testified on cross-examination that she did not initially tell anyone what caused her fall. Employee specifically denies saying anything to Ms. Ryan right after the fall. However, Ms. Ryan testified that employee affirmatively told her that she did not know why she fell. Ms. Ryan denied that employee caught her foot in the door after Ms. Ryan had gone through the door and pushed it open. Ms. Ryan testified that had that been the case, she would have felt employee hit the door or otherwise heard her hit the door or fall, which Ms. Ryan did not.
Ms. Miller testified that employee did not mention her foot being caught in the door. In fact, Ms. Miller testified that she asked employee how she fell shortly after the fall and employee stated, "I don't know. I just fall."
Ms. Miller testified that employee was sitting approximately six feet from the swinging doors when she found employee on the floor. Ms. Ryan testified that employee was lying approximately eight to nine feet from the swinging doors when she first saw employee on the floor. Employee testified that she was unable to move at all following her fall.
Ms. Miller also testified that employee has walked with a limp for as long as she has known employee. Similarly, Ms. Ryan testified that employee has had trouble walking for as long as she had known her. Employee denied having problems with her left knee "giving out" due to her arthritis during the hearing. This was in contrast to employee's deposition testimony in which she stated that her left knee would occasionally give out due to her arthritis.
The first doctor employee saw following the injury was Dr. Eckenrode. Employee testified that she affirmatively told Dr. Eckenrode that she did not know why she fell. She further testified that Dr. Eckenrode's report was accurate when it stated that "[employee] says she is not sure why she slipped. The floor was not wet. She did not trip over anything...."
Employee testified that she did not remember getting her foot caught in the door until several months after she fell at work. She attributed this lapse in memory to "losing her mind" for approximately four weeks after the fall.
Employee bears the burden of proof with regard to whether an accident occurred and resulted in an injury to her while working for the employer. McGrath v. Satellite Sprinkler Systems, Inc., 877 S.W.2d 704, 708 (Mo. App. 1994), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). Employee did not satisfy her burden of proof.
Section 287.020.2 RSMo ${ }^{1}$ defines "accident" 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."
Section 287.020.3 RSMo provides, as follows:
(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."
I do not find employee's testimony that her foot was caught in the swinging door to be credible. Therefore, I find that the credible evidence establishes that employee "just fell" and that there was no causal connection between the work activity and the injury other than the fact of its occurrence while at work.
The ALJ found employee's testimony credible despite the fact that it conflicts with employee's own testimony, the testimony of Ms. Miller and Ms. Ryan, as well as the Boone County Hospital medical records offered by employee. It is illogical to conclude that employee would remember her foot getting caught in the door months after the
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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2010 unless otherwise indicated.
Improvee: Lolita Maderazo
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incident when she affirmatively told several people right after the incident that she did not know how she fell.
Employee explained that the reason she did not remember her foot getting caught in the door for several months was because she "lost her mind" for several weeks after the injury. Despite losing her mind after the injury, employee was still able to communicate with Dr. Eckenrode regarding her medications, her personal history, and her family.
In my opinion, it is suspiciously convenient that employee would recall - months later very specific facts that satisfy the legal criterion for determining that her injury arose out of and in the course of her employment. For this reason, I do not find employee's testimony credible. Employee's testimony is inconsistent with the weight of the evidence.
The credible evidence establishes that employee "just fell." Employee was found several feet from the swinging door and had testified that she could not move after she fell to the floor. Employee told several people after the fall that she did not know why she fell, "I just fall."
The Court in Miller v. Missouri Highway Transportation Commission, 287 S.W.3d 671 (Mo. 2009), found that injuries of this nature are not compensable. Id. at 674. In Miller, the claimant was walking on an even road when his knee popped. Id. The Court found that because there was no causal connection between the work activity and the injury, other than the fact of its occurrence at work, the injury was not compensable.
Similar to the facts in Miller, the credible evidence in this case shows that there is no causal connection between employee's work activity and the injury. The credible evidence establishes that employee's fall was most likely due to an idiopathic condition, her arthritic knee condition. Section 287.020.3(3) RSMo provides that, "[a]n injury resulting directly or indirectly from idiopathic causes is not compensable." An idiopathic injury is one that is "peculiar to the individual." Stricker v. Children's Mercy Hospital, 304 S.W.3d 189, 191-92 (Mo. App. 2009) (citations omitted). Employee testified that her left knee occasionally gave out and both Ms. Ryan and Ms. Miller testified as to employee's difficulty walking prior to this injury.
I find that employee failed to satisfy her burden of proving that her injury arose out of and in the course of her employment. For the foregoing reasons, I disagree with the administrative law judge's conclusion that this is a compensable injury. As such, I would reverse the temporary or partial award of the administrative law judge and issue a final award denying compensation.
I respectfully dissent from the decision of the majority of the Commission.