Ann Hemenway v. North American Montessori Childcare d/b/a Casa Dia Montessori

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 10-107564

Employee: Ann Hemenway

Employer: North American Montessori Childcare d/b/a Casa Dia Montessori

Insurer: Missouri Employers Mutual Insurance Co.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ Having reviewed the evidence, read the briefs, heard oral argument, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated December 12, 2011, as supplemented herein.

On December 16, 2010, employee slipped and fell on an icy curb in employer's parking lot. Employee sustained injuries to her left elbow, right hand and wrist, and both knees. A hardship hearing was held on September 11, 2011.

The ALJ issued a final award denying employee's claim. The ALJ found that employee sustained an accident, but concluded that it did not arise out of and in the course of her employment. The ALJ further dismissed employee's argument for compensability under the "personal comfort" doctrine by citing Johme v. St. John's Mercy Healthcare, 2011 Mo. App. LEXIS 1412 (Mo. App. Oct. 25, 2011).

Employee appealed to the Commission, alleging the ALJ erred in suggesting that the personal comfort doctrine has been abrogated and incorrectly concluded that her accident did not arise out of and in the course of her 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.

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).

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2010 unless otherwise indicated.

Enployee: Ann Hemenway

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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.

The primary issue in this case concerns whether employee's injury arose "in the course of" her employment. Injuries are deemed to have arisen in the course of employment "if the action occurs within a period of employment at a place where the employee may reasonably be fulfilling the duties of employment." *Harness v. Southern Copyright, Inc.*, 291 S.W.3d 299, 305 (Mo. App. 2009), citing *Custer v. Hartford Ins. Co.*, 174 S.W.3d 602, 610 (Mo. App. 2005). In this case, employee's accident occurred on the edge of employer's parking lot while she was "off the clock" and returning from her smoke break. For reasons further discussed below, we affirm the ALJ's award and find that employee's injuries did not arise in the course of her employment.

The facts of this case are similar to, but distinguishable from, the facts in *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 to employees 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 court found that the claimant in *Duever* sustained a compensable accident because he 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.* Based upon the aforementioned, the court concluded that the claimant's injuries arose out of and in the course of his employment.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

In this case, similar to the claimant in Duever, employee sustained injuries due to a slip and fall on ice in a parking lot. However, a very important distinguishing fact in this case is that employee was not in the icy parking lot as a direct function of her employment as a lead teacher. Employee was in the icy parking lot as a direct function of taking an unpaid smoke break. Unlike the claimant in Duever, employee was not clocked in, nor was she fulfilling any of her duties of employment at the time of her accident. Employee's accident may have occurred on employer's property, but employee was not in the course of her employment at the time of the accident; therefore, her claim is denied.

Employee spends a great deal of time in her brief arguing that the ALJ erred in failing to find her claim compensable under the "personal comfort" doctrine. Specifically, employee argues that the ALJ improperly relied on Johme v. St. John's Mercy Healthcare, 2011 Mo. App. LEXIS 1412 (Mo. App. Oct. 25, 2011) in rejecting her personal comfort doctrine argument because at the time of the ALJ's award, that case was on transfer from the Missouri Court of Appeals for the Eastern District to the Missouri Supreme Court and was not final. Employee argues that the Missouri Supreme Court has since ruled on Johme ${ }^{2}$ and held that the case did not deal with the personal comfort doctrine and, therefore, offered no precedential value with respect to whether the personal comfort doctrine survived the 2005 amendments to Missouri Workers' Compensation Law.

To the extent that employee's argument suggests that Johme offers no precedential value on the issue of the applicability of the personal comfort doctrine in post-2005 amendment cases, we agree. The courts have not yet affirmatively stated whether numerous case law doctrines created prior to the 2005 amendments, including the personal comfort doctrine, survive strict construction. We stand by our analysis as stated in Sandy Johme, Injury No. 08-069091 (LIRC, February 22, 2011) that the personal comfort doctrine is consistent with § 287.020.3(2) RSMo.

But, we still do not find employee's accident compensable. The court in Kunce v. Junge Baking Co., 432 S.W.2d 602 (Mo. App. 1968) denied a factually similar pre-2005 amendment claim. In Kunce, the employee sustained injuries when he tripped and fell on the employer's premises while returning from a paid break. The employer allowed its workers to take off-premises breaks with no restrictions as to where they could go or what they could do, and the employees remained "on the clock" during these breaks. The claimant left the premises on foot to buy cigarettes and Christmas tinsel, as was permitted by the employer's break policy. His injury occurred when he returned to employer's premises and stepped on a "hoop," causing him to fall.

In Kunce, the court recognized the law provided that an injury arises "out of" the employment when there is a causal connection between the conditions of the work and the resulting injury, and arises "in the course of" the employment when the accident occurs within a period of the employment at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of the employment, or engaged in doing something "incidental thereto." Id. at 609, citing Lampkin v. Harzfield's, 407 S.W.2d 984 (Mo. App. 1967). In interpreting what was considered "incidental" to employment, the

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[^0]: ${ }^{2}$ Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. App. 2012).

Impr

Injury No.: 10-107564

Employee: Ann Hemenway

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court affirmed that risks and acts are considered an incident of the employment if they "constitute an inherent and component element of it." Kunce, 432 S.W.2d at 609. The court explained this rationale provided the basis for various doctrines of compensability, including the personal comfort doctrine. Id. The court described what acts fall under the personal comfort doctrine:

> The inevitable acts of human beings in ministering to their personal comfort while at work, such as seeking warmth and shelter, heeding a call of nature, satisfying thirst and hunger, washing, resting or sleeping, and preparing to begin or quit work, are held to be incidental to the employment under the personal comfort doctrine.

Id. (citations omitted).

The court also recognized that there are certain "incidents" or "fixtures" of employment that are not considered incidental to the work the employee is hired to perform and expose workers to hazards that are not necessarily associated with the work. The court cited obvious incidents or gratuities such as paid vacation and sick leave. Id. at 609-10.

In determining that the claimant's injury did not arise out of or in the course of employment, the court held that when the claimant exercised the right to take an off-premises break with no restrictions, he was "partaking of a gratuity suffered and allowed by his employer," and the departure from the bakery "constituted a definite and real lacuna in the employment and the employer's right to control and direct." Id. at 610. The court noted it was wholly the claimant's decision to undertake the venture of taking a break to obtain cigarettes and Christmas tinsel. He was not engaged in any special employment tasks when he left the building (or returned), and the services for which he was hired did not require his presence at the place where he fell. The court concluded that the claimant was not in the course of employment when the accident occurred and the activity was not sufficient to invoke the personal comfort doctrine.

In this case, similar to Kunce, employer allowed its workers to take off-premises breaks with no restrictions as to where they could go or what they could do. Smoking was strictly prohibited on the employer's premises, but employer did not restrict this activity off-premises. Employee's injuries occurred while she was "partaking of a gratuity suffered and allowed by [her] employer." Employee was not engaged in any special employment task, performing any service for the employer, and her employment did not require her presence at the place where this fall occurred. Employee even admitted that she would not have been on this portion of the employer's property except for the circumstances of her leaving the premises to smoke.

Based upon the aforementioned, even assuming the personal comfort doctrine applies to post-2005 amendment cases, we do not find employee's claim compensable. Employee's injuries did not arise in the course of her employment because the accident did not occur at a pl