Jackie Porter v. RPCS, Inc.

grandson, Thomas James, testified that all employee told him when he arrived on the scene was that she had gone to the restroom and woken up on the floor.

We note that employee's attorney, in the course of adducing evidence suggesting the vestibule itself was hazardous, made clear that whether employee fell inside or outside of the bathroom was "disputed." See *Transcript*, page 31. We find the evidence on this point indeterminate. Both Ms. Blodgett and Ms. Bonner testified they heard employee say she fell inside the bathroom and then crawled out of the bathroom, but it strikes us as unlikely, especially considering that the vestibule door was, as employee's grandson put it, "super heavy," that employee was able to navigate her way through that door while crawling on the floor with a serious hip injury. We note both Ms. Blodgett and Ms. Bonner agreed it was difficult to imagine how employee could have made it through the vestibule door in such a condition. This would tend to indicate employee fell in the vestibule, rather than inside the bathroom, but the lack of any credible evidence of the circumstances of employee's fall does not permit us to resolve this question.

Ultimately, in light of the foregoing ambiguities and gaps in the evidence, we are able to find only the following facts with regard to what happened to employee at about 4:00 p.m. on July 16, 2009: (1) employee was on her feet inside the bathroom, (2) employee fell for unknown reasons, and (3) employee was discovered on the floor outside the bathroom. We are unable to determine the specific risk or hazard that resulted in employee's fall.

The version of Chapter 287 applicable to this claim provides the following definition of an "accident" for purposes of the Missouri Workers' Compensation Law:

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 conclude employee sustained an accident. Employee established that she fell somewhere in or around the employee bathroom at about 4:00 p.m. on July 16, 2009, and that she experienced symptoms of a serious injury at that time. In other words, employee proved that she suffered an unexpected traumatic event identifiable by time and place and producing at the time objective symptoms of an injury caused by a specific event during a work shift. Employee's evidence has satisfied the foregoing statutory definition.

We proceed now to the question whether employee proved her injuries arose out of and in the course of employment. Section 287.020.3(2) RSMo sets forth the test and 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.

Here, we are concerned only with subsection (b) set forth above, because we are convinced that its application is dispositive. The courts have interpreted the language of subsection (b) to involve a "causal connection" test that employees must satisfy in order to prove that an injury has arisen out of and in the course of employment. Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 510-11 (Mo. 2012), quoting Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671, 674 (Mo. 2009). In Johme, the Missouri Supreme Court held that an employee who fell while making coffee at work did not sustain injuries that were compensable under workers' compensation. Id. at 512. The Johme employee fell in her office kitchen after making a new pot of coffee, per workplace custom, to replace a pot of coffee from which she had taken the last cup. Id. at 506. The Johme court concluded that the risk or hazard that resulted in the employee's fall was "turning and twisting her ankle and falling off her shoe." Id. at 511. The Court held that the employee "failed to meet her burden to show that her injury was compensable because she did not show that it was caused by risk related to her employment activity as opposed to a risk to which she was equally exposed in her 'normal nonemployment life.'" Id. at 512.

In so holding, and in specifically contrasting a "work-related risk" versus a "risk to which the employee was equally exposed" outside of work, the Johme court made clear that our analysis must begin with an identification of the risk or hazard that resulted in the employee's injuries, followed by a quantitative comparison whether this specific employee was equally exposed to that risk in her own normal nonemployment life. Following the Court's reasoning, the result of that quantitative comparison should tell us whether the risk is related or unrelated to employee's work, and in turn, whether the employee's injuries were sufficiently causally connected to work, which finally will resolve the question whether an employee's injuries arose out of and in the course of employment.

But here, we have found that employee failed to establish, as a factual proposition, the risk or hazard that resulted in her fall. Employee advances a number of theories in an attempt to overcome this critical evidentiary problem, but each simply invite us to speculate that something dangerous about employer's bathroom or the vestibule outside it may have caused employee to fall. Employee variously attacks the heavy door to the bathroom, the tile flooring in the bathroom or the smooth laminate flooring in the vestibule, and even the mere possibility that there was water or some other substance on the bathroom floor. In our view, these disparate attempts to portray employer's bathroom as unusually treacherous merely reinforce the conclusion that we simply don't know what risk or hazard caused employee to fall.

We note that the administrative law judge cited Bivins v. St. John's Reg'l Health, 272 S.W.3d 446 (Mo. App. 2008), wherein the court found that an employee's injuries were not compensable where she testified that she "just fell" and where no evidence suggested something about her work contributed to the event. Id. at 450. The Bivins court concluded that, in such circumstances, the employee failed to prove that her injuries arose out of and in the course of her employment. Id. at 451-52. We agree with the administrative law judge that Bivins is fatal to this claim. This is because even if we accept employee's argument that the heavy door or possibly wet floor rendered employer's bathroom more dangerous than other bathrooms, employee's evidence does not permit us to rule out the possibility that nothing about the bathroom itself actually contributed to the event but that employee "just fell." In other words, because employee has failed to identify a specific risk or hazard, we are unable to perform the causal connection test identified by the court in Johme as determinative of the issue whether employee's injuries arose out of and in the course of her employment.

Finally, we reject employee's argument that this Commission should apply the civil negligence doctrine of res ipsa loquitor because employee fails to identify any authority for using a common law civil negligence doctrine to analyze a statutory element of a workers' compensation claim.

Based upon the foregoing, we affirm the award of the administrative law judge with this supplemental opinion. We deny employee's claim because she failed to prove that she sustained injuries arising out of and in the course of her employment for purposes of the Missouri Workers' Compensation Law.

All other issues are moot.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued September 14, 2011, is attached, affirmed, and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, and decision herein.

Given at Jefferson City, State of Missouri, this $\qquad 7^{\text {th }}$ day of December 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Jackie Porter

Injury No. 09-052591

Dependents: N/A

Employer: RPCS, Inc.

Additional Party: N/A

Insurer: Fuel Marketers Insurance Trust

c/o Alternative Risk Services

Hearing Date: July 28, 2011

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/db

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? No.
4. Date of accident or onset of occupational disease: Alleged July 16, 2009.