As a preliminary matter, we note that because employee's alleged injury occurred on January 28, 2009, this case falls under the purview of the 2005 amendments to the Missouri Workers' Compensation Law.
Section 287.120 RSMo "requires employers to furnish compensation according to the provisions of the Workers' 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). "The burden is on the employee and claimant in a workers' compensation proceeding to prove the basis of his claim, and the first essential is that the claimant must prove that the injuries were the result of an accident which arose out of and in the course of his employment." ${ }^{2}$ McClain v. Welsh Co., 748 S.W.2d 720, 724 (Mo. App. 1988).
The construction of the phrase "arising out of and in the course of employment" historically has been broken in half, resulting in a two prong test, with the "arising out of" portion construed to refer to cause or origin, and the "course of employment" portion to the time, place, and circumstances of the accident in relation to the employment. See Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. App. 2009). Employer essentially argues under $\S 287.020 .5$ RSMo that employee failed to prove that the accident occurred "in the course of" her employment because she failed to prove that employer owned or controlled the premises where the accident occurred.
Section 287.020.5 RSMo provides, as follows:
Injuries sustained in company-owned or subsidized automobiles in accidents that occur while traveling from the employee's home to the employer's principal place of business or from the employer's principal place of business to the employee's home are not compensable. The extension of premises doctrine is abrogated to the extent it extends liability for accidents that occur on property not owned or controlled by the
[^0]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.
[^0]: ${ }^{2}$ Section 287.020.2.3(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
employer even if the accident occurs on customary, approved, permitted, usual or accepted routes used by the employee to get to and from their place of employment.
The ALJ relied on Lammering v. United Benefit Life Insurance Co., 464 S.W.2d 511 (Mo. App. 1971) in concluding that employee's injuries arose out of and in the course and scope of her employment. In Lammering, the claimant was injured in an elevator shaft. The employer in Lammering was a tenant in a building housing many employers. The Court cited a Workers' Compensation treatise for the proposition that:
Where an employer is a tenant in a building housing many employers, so much of the steps, elevators, hallways and other parts of a building as are necessary for the employee to use in coming to or departing from the place where his services to his employer are rendered, are considered part of the employer's premises, and injuries sustained, while thereon for the purpose of entering upon the duties of the employment, or departing from such duties, are generally held to be compensable as coming within the purview of the compensation acts.
Id. at 513 .
As cited above, § 287.020.5 RSMo abrogates the extension of the premises doctrine to the extent that it extends liability for accidents that occur on property not owned or controlled by the employer. The effect of $\S 287.020 .10 RSMo ^{3} in conjunction with \S 287.020 .5$ RSMo was recently discussed in Hager v. Sybergs, 304 S.W.3d 771 (Mo. App. 2010). In Hager, the claimant was injured in a parking lot not owned or controlled by the employer. The Court concluded that when analyzing the extension of the premises doctrine, any case prior to 2005 must be rejected.
Initially, this Court must address Claimant's attempt to distinguish the facts of his case from those in earlier cases interpreting the extended premises doctrine. Claimant states in his brief that 'The Missouri Legislature likely intended to negate the holdings of [Wells v. Brown, 33 S.W.3d 190 (Mo. banc 2000)],...[Cox v. Tyson Foods, 920 S.W.2d 534 (Mo. Banc 1996)],...and [Roberts v. Parker-Banks Chevrolet, 58 S.W.3d 66 (Mo. App. 2001)]...that pertain to liability for injuries on property not owned or controlled by the employer.' Claimant erroneously attempts to either limit or disregard the Legislature's express intent 'to reject and abrogate earlier case law interpretations on the meaning of or definition of...'arising out of',
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[^0]: ${ }^{3}$ Section 287.020.10 RSMo provides as follows:
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.
and 'in the course of the employment." Section 287.020.10. As discussed above, the abrogation of case law by Section 287.020.10 "is not limited to simply those cases named therein but any case interpreting a number of key terms." [Ahern v. P \& H, LLC, 254 S.W.3d 129 (Mo. App. 2008)]. Moreover, Section 287.020.10 does not limit its rejection or abrogation of earlier cases to holdings "that pertain to liability for injuries on property not owned or controlled by the employer" as [c]laimant alleges. Rather, Section 287.020.10 explicitly rejects and abrogates earlier case law interpretations of 'arising out of' and 'in the course of employment' and does not limit the scope of its rejection or abrogation.
Hager, 304 S.W.3d at 775.
The ALJ noted that many cases were abrogated by the 2005 amendments to Missouri Workers' Compensation Law, but specifically found that "[t]he legislature did not abrogate the interpretations in Lammering and did not purport to exclude the hallways, elevators and stairs addressed in Lammering." Based upon the holding in Hager, we disagree. While Lammering was not specifically abrogated in § 287.020.10 RSMo, that subsection does specifically state that the earlier cases interpreting the meaning or the definition of "accident," "arising out of," and "in the course of the employment" are abrogated. For the foregoing reasons, we find that Lammering, decided in 1971, is not applicable to this post-2005 amendments case.
The Hager decision provides the proper analysis for this case. The Hager court found that the employee's injury did not occur on premises controlled by the employer because the employer "did not exercise power or influence over the parking lot." Hager, 304 S.W.3d at 776. (emphasis added). The Hager court examined the employer's lease and the testimony of employer's witness, and found the following factors determinative: under the lease, the landlord (1) was responsible for "managing and maintaining" the parking areas; (2) had "sole discretion to change, rearrange, alter, or modify the parking areas"; and (3) had the power to "make reasonable rules and regulations pertaining to the use of such parking areas by [Employer], its guests, invitees, and suppliers." Id. 776-77. The Hager court also cited testimony that the employer did not have control over parking decisions, but that the landlord permitted employer, its employees, and its guests to choose parking spaces. Id.
Here, because the evidence is clear that employer did not own the building where the accident occurred, the issue is whether employer exercised sufficient "power" and "influence" over the area at the top of the stairs so as to constitute "control" for purposes of $\S 287.020 .5$ RSMo. Unfortunately for employee, the record is devoid of any evidence or testimony regarding whether employer controlled the area in which employee fell. While employee testified that she fell at the top of the stairs as she was opening the door on the second floor and that she believes she fell inside the opened door, there is no evidence regarding whether employer controlled the area where employee fell.
Section 287.808 provides, as follows:
The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapt