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.
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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009 unless otherwise indicated.
Section 287.120 RSMo, "requires employers to furnish compensation according to the provisions of the Worker's (sic) 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:
(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."
A recent Missouri Supreme Court case, Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012), provides guidance as to the application of § 287.020.3 RSMo. Similar to the employee in our case, in Johme there was no issue regarding whether the claimant's fall at her workplace was the prevailing factor in causing the injuries for which she sought workers' compensation. As such, the Court concluded that a discussion of employee's case in the context of subsection 287.020.3(2)(a) is not required. Instead, the Court found that the issue was confined to the application of subsection 287.020.3(2)(b), which instructs that employee's injury "shall be deemed to arise out of and in the course of [her] employment only if ... it [did] not come from a hazard or risk unrelated to [her] employment to which [she] would have been equally exposed outside of and unrelated to [her] employment in [her] normal nonemployment life." See Johme, 366 S.W.3d at 510 . We find the same to be true with this case.
The claimant in Johme was injured in a fall that occurred in the office kitchen after she made a new pot of coffee to replace a pot of coffee from which she had taken the last cup. As she finished making the new pot of coffee, she turned and twisted her right ankle, which caused her right foot to slip off of her sandal, and she fell onto her right side and then onto her back. At the time of the claimant's fall, she was wearing sandals with a thick heel and a flat bottom, with a one-inch thick sole. The claimant was alone in the kitchen during the fall. There were no irregularities or hazards on the kitchen's floor. The floor was not wet, and there was not any trash on the floor. Id. at 505-07.
In determining whether the claimant's injury arose out of and in the course of her employment, the Court in Johme cited Miller v. Missouri Highway \& Transportation Commission, 287 S.W.3d 671 (Mo. banc 2009) in support of its proposition "that it is not enough that an employee's injury occurs while doing something related to or incidental to the employee's work; rather, the employee's injury is only compensable if it is shown to have resulted from a hazard or risk to which the employee would not be equally exposed in 'normal nonemployment life."' Johme, 366 S.W.3d at 511.
The claimant in Miller was walking briskly toward a truck when he felt a pop and his knee began to hurt. The Court held that the claimant failed to prove that the risk involved - walking - was one to which he would not have been equally exposed to in normal nonemployment life. The Court also focused on the fact that the injury did not occur because the claimant fell due to some condition of his employment; and claimant did not allege that his injuries were worsened due to some condition of his employment, or due to being in an unsafe location due to his employment. The Court found that claimant was simply walking on an even road surface when his knee happened to pop. Nothing about work caused it to do so. The Court concluded that the injury arose during the course of employment, but did not arise out of employment and under subsections 287.020.2, 287.020.3, and 287.020.10 as currently in force, that is insufficient. Miller, 287 S.W.3d at 674.
Applying the principles of Miller, the Court in Johme focused on the mechanism of the claimant's injury in identifying the "hazard or risk," and concluded that employee "turning, twisting her ankle, and falling off her shoe" was the hazard or risk, which caused the injury. The Court then analyzed whether this hazard or risk had a causal connection to her work activity other than the fact that it occurred in her office's kitchen while she was making coffee. The Court held that this assessment required consideration of whether her risk of injury from turning, twisting her ankle, and falling off her shoe was a risk to which she would have been equally exposed in her "normal nonemployment life." The Court concluded that the claimant failed to meet her burden to show that the injury was compensable because "no evidence showed that she was not equally exposed to the cause of her injury - turning, twisting her ankle, or falling off her shoe $-\ldots$ than she would have been when she was outside of her workplace in her 'normal nonemployment life." Id. at 511-12.
We find that this case is distinguishable from Miller and Johme and is actually more analogous to Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo. App. 2012). In Duever, the claimant was the owner of a landscaping and snow and ice removal company. The claimant slipped and fell on a patch of black ice after a meeting on a parking lot, during which he demonstrated the proper way to wire a trailer's tail-lights. Id. at 865. The claimant injured his left arm and shoulder when he fell. The fall occurred in a parking lot which employer had access to under the terms of a lease. Id.
The Missouri Court of Appeals for the Eastern District distinguished Duever from Miller by pointing out that in Miller there was no evidence that some condition on the road caused Mr. Miller's injury or that it was otherwise work-related. Id. 867. Conversely, the claimant in Duever was in an unsafe location (an icy parking lot) as a direct function of
his employment as the owner of a landscaping and ice removal company. The court held that the claimant "sustained an injury due to an unsafe condition (the ice itself) over which he had no control given that the owner of the parking lot had hired another company to remove ice on the lot." Id.
The court distinguished Duever from Johme by pointing out that the floor Ms. Johme fell on did not have any irregularities or hazards, and there was no evidence of the employer's negligence. The court reiterated that Mr. Duever's injury "resulted from being in an unsafe location as a function of his employment and slipping on an unsafe icy condition.
In both Miller and Johme, the Court denied compensation because the evidence failed to establish that the injuries were sustained as a result of some hazard or risk related to the claimants' employment. In this case, like Duever, employee fell as a result of a hazard or risk created by her work activities and environment. Employee's fall is not analogous to a knee "just popping," or turning, twisting an ankle, and falling off a shoe on a floor with no irregularities or hazards.
Just prior to employee's accident, she walked through snow and ice on employer's premises. She entered the building through the only employee entrance with melting snow and ice on her shoes. At the time of the actual accident, employee was walking down the only hallway that serviced the employee entrance to the casino. Said hallway contains a slick concrete floor. The hazard or risk that caused the accident was the combination of employee's wet shoes and the slippery, smooth, highly polished, concrete floor. Similar to the claimant in Duever, when employee's injury occurred, she was in an unsafe environment as a direct function of her employment as a casino worker.
We specifically make a factual finding that the hazard or risk that caused the accident was the combination of employee's wet shoes and employer's slippery, smooth, highly polished, concrete floor. We further find, based upon employee's testimony, that she walks on polished concrete surfaces more at work than away from work, she would not have been in the hallway where the accident occurred if she was not working, she wore the type of shoes she was wearing at the time of the accident (heels) more at work than away from work, and she would not have walked over the snow and ice on employer's premises on December 31, 2009, but for her going to work for employer on that date. Finally, based upon the aforementioned, we make a factual finding and conclude that the combination of employee's wet shoes and employer's slippery, smooth, highly polished, concrete floor is a risk to which this employee would not be equally exposed to in her normal nonemployment life.
Based upon employee's testimony and the record as a whole, we find that the combination of employee's wet shoes on the slippery, concrete floor in the employeeonly hallway w