Jason Pope v. Gateway to the West Harley Davidson

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 10-019309

Employee: Jason Pope

Employer: Gateway to the West Harley Davidson

Insurer: Missouri Automobile Dealers WC Fund

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ) dated August 4, 2011.

On March 17, 2010, employee injured his right ankle in a work fall. The ALJ denied employee's claim for benefits because she found that the injury did not arise out of his employment.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are adopted and incorporated by the Commission herein.

Based upon the opinions of Dr. Berkin, employee's testimony, and the record as a whole, we find that as a result of the work injury, employee sustained 30\% permanent partial disability of his right ankle.

It is important to note that employee is alleging that his accidental injury occurred on March 17, 2010. Therefore, this case falls under the purview of the 2005 amendments to Missouri Workers' Compensation Law.

Section 287.120 RSMo "requires employers to furnish compensation according to the provisions of the Worker's Compensation Law for personal injuries of employees caused by accidents arising out of and in the course of the employee's employment." Gordon v. City of Ellisville, 268 S.W.3d 454, 458-59 (Mo. App. 2008).

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:

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009 unless otherwise indicated.

(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."

The primary issue in this case lies in whether the injury satisfies § 287.020.3(2) (b). The application of $\S 287.020 .3(2)$ (b) RSMo involves a two-step analysis. Pile v. Lake Reg'l Health Systems, 321 S.W.3d 463, 467 (Mo. App. 2010).

The first step is to determine whether the hazard or risk is related or unrelated to the employment. 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 a 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. Only 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.

The ALJ found that the hazard or risk of injury (descending stairs while carrying a helmet and wearing work boots) was unrelated to employee's employment. The ALJ reasoned that employee's normal job duties did not include climbing an excessive number of stairs or moving motorcycles to the showrooms. Further, the ALJ reasoned that employee was not even involved in a work activity when he fell because he had finished moving the motorcycles, and planned to clock out if his supervisor had no additional work for him to do. We disagree with the ALJ's conclusions.

It is irrelevant that employee did not move the motorcycles to the upper showroom on a daily basis. The facts are undisputed that on March 17, 2010, employee moved the motorcycles to the upper showroom in compliance with a work directive given to him by his supervisor. It is further undisputed that he was required to wear a helmet whenever he moved the motorcycles. Lastly, it is undisputed that when employee fell he was on his way to the service department to ask his supervisor if there were any other duties he needed to complete before clocking out.

First, moving the motorcycles to the upper showroom was clearly integral to the performance of employee's job. He was engaged in that activity solely because his supervisor directed him to complete that task. As part of his employment, employee was required to comply with his supervisor's directives. On March 17, 2010, these directives included moving motorcycles to the upper showroom. Second, the ALJ's conclusion that descending the stairs was not part of the work activity of moving the motorcycles is illogical. In order to report back to his supervisor and see if there were any more tasks he needed to complete that day, he had to descend those stairs. It was integral to employee's job as a technician to make sure there were no other tasks that his supervisor needed him to complete before he clocked out. There are numerous activities that employee's engage in throughout a workday that may not be listed in their job description, but that does not necessarily mean that they are not integral to the performance of their job.

We find that the competent and substantial evidence shows that the risk to which employee was exposed, negotiating stairs while in the process of performing work activities, while wearing work boots and carrying necessary tools of his trade (helmet), created a clear connection or nexus

between the hazard or risk of injury and the injury itself. Consequently, there is no need to consider whether employee is equally exposed to the hazard or risk in normal non-employment life.

We reverse the ALJ's award and find that employee's injury arose out of and in the course of his employment.

In accordance with the parties' stipulations and the findings herein, employee is entitled to, and employer is ordered to pay: 1) past medical expenses of $\ 20,910.82; 2) $91 / 7$ weeks of temporary total disability benefits from March 18, 2010 to May 21, 2010, or $\$ 2,438.13 ;{ }^{2} 3$ ) hardware removal from the ankle at the 155 week level; and 4) 30 % permanent partial disability benefits rated at the right ankle, or $\$ 12,400.16 .^{3}$

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

The award and decision of Administrative Law Judge Suzette Carlisle, issued August 4, 2011, is attached and incorporated to the extent it is not inconsistent with this final award.

Given at Jefferson City, State of Missouri, this $2^{\text {nd }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

CONCURRING OPINION FILED

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{2} 91 / 7 weeks x \ 266.67 TTD rate

${ }^{3} 46.5 weeks x \ 266.67 PPD rate

I write separately to disclose the fact that I did not participate in the December 14, 2011, oral argument in this matter. I have reviewed the evidence, read the briefs of the parties, and considered the whole record. I concur with the decision of the majority of the Commission.

James Avery, Member

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: March 17, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri
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? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant fell down the stairs and fractured his right ankle.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right ankle
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

Employee: Jason Pope

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 400.00
3. Weekly compensation rate: $\$ 266.67 / \ 266.67
4. Method wages computation: Stipulated

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: N/A

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A-of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Thomas Burke

Employee: Jason Pope

Departments: N/A

Employer: Gateway to the West Harley David

Additional Party: N/A

Insurer: Missouri Automobile Dealers WC Fund

Injury No.: 10-019300

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

A hearing was held at the Missouri Division of Workers’ Compensation (DWC), St. Louis office at the request of Jason Pope (Claimant), on May 12, 2011, pursuant to Section 287.450 RSMo (2005). ${ }^{1}$ Claimant seeks a Permanent Partial Disability (PPD) award against Gateway to the West Harley Davidson (Employer) and the Missouri Automobile Dealers Workers' Compensation Fund (Insurer), c/o MADA Services Corporation. Venue is proper and jurisdiction lies with the DWC. Attorney Thomas Burke represented Claimant. Attorney Susan Kelly represented the Employer and Insurer. The Second Injury Fund is not a party to the case.

The record closed after presentation of the evidence. Parties were asked to submit Memorandums of Law by June 2, 2011.

The parties stipulated that on or about March 17, 2010:

1. The Claimant was employed by the Employer; ${ }^{2}$
2. Claimant sustained an accident in St. Louis County, Missouri;
3. The Employer and Claimant operated under the provisions of the Missouri Workers’ Compensation Law;
4. Employer's liability was fully insured by Insurer;
5. Employer had notice of the injury;
6. A Claim for Compensation was timely filed;
7. Claimant's average weekly wage was $\ 400.00, resulting in a rate of compensation of $\ 266.67 for temporary total disability (TTD) and PPD;

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[^0]: ${ }^{1}$ All references in this award are to the 2005 Revised Statues of Missouri unless otherwise stated.