Woodine Tidwell v. Firstline Transportation

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Terminal B. The closest of those stations is about a five to ten minute walk from where employees get off the shuttle bus.

Employee was required to arrive for work in full uniform, owing to the fact employer does not provide any location for employees to change clothes. Employer has strict policies about employee uniforms. Employee uniforms must be neatly pressed and clean, and employees are prohibited from wearing unauthorized hats, belts, or coats. These rules apply whenever an employee is in uniform, regardless whether the employee is clocked in. For example, an employee waiting for the shuttle bus would be prohibited from loosening her tie on a hot day or wearing anything but an employerapproved jacket and plain black stocking cap on a cold day. Employee once counseled another employee while on the shuttle bus because he violated employer's uniform policies by wearing a cowboy hat to work. Employee was not clocked in when she counseled the employee about his cowboy hat.

Employer's witness Karen Paris, director of human resources, explained that employees are representatives of employer whenever they are wearing the uniform. We note that Ms. Paris initially declined to provide a responsive answer to the question whether employer "required" employee to counsel another employee who was wearing a cowboy hat on the shuttle bus. But after repeated questioning, Ms. Paris conceded that employer expected employee to be mentoring other employees even when she was not on the clock. As to employee's security-related work duties for employer, Ms. Paris also conceded on cross-examination that employee was required to observe and report suspicious activities or vehicles around the airport, even if she was not clocked in.

Ms. Paris also identified a number of other policies restricting employee behavior while in uniform, even when employees are not on the clock. Such policies include restrictions on wearing employee uniforms in most public places, a prohibition against having an otherwise legal firearm in an employee's vehicle, and a prohibition against otherwise legal gambling or lottery activities. Ms. Paris testified that the policy prohibiting employees from wearing the uniform in most public places works the effect of prohibiting employees from stopping for groceries on the way to or from work. Ms. Paris explained that if the uniform got into the wrong hands, it would be a security issue.

On April 2, 2011, employee parked in the employee parking lot. She got onto the shuttle bus and rode it to Terminal B. When employee was stepping down the stairs of the shuttle bus and onto the pavement outside Terminal B, employee lost her footing. Employee believes she stepped on a rock. Employee's right knee twisted and struck a piece of metal on the bus. Employee heard a loud pop in her right knee.

The injury resulted in a torn meniscus in employee's knee. Employee's doctors took x-rays, placed her on bed rest, and gave her crutches and a brace to immobilize her knee. Employee underwent surgery to repair the torn meniscus on May 31, 2011. Employee first returned to work on August 8, 2011. Employee provided credible and unrebutted testimony identifying the exhibits containing her medical records and bills. We find employee incurred $\ 10,680.00 in medical expenses in connection with her right knee injury.

As a result of the injury, employee is not able to bend her knee. This affects her work in that bending is an essential part of performing pat-down searches on airport customers. Employee has to straighten her leg out to the side in order to perform this job function. Employee is unable to climb stairs correctly and instead has to go sideways. Employee continues to experience knee pain which keeps her awake at night. Employee experiences horrible pain if she tries to sleep with her leg straight out and must elevate her right knee with a pillow.

Dr. Hopkins, the only medical expert to testify, opined that employee's fall on April 2, 2011, is a direct and prevailing cause of the injury she sustained to her right knee. Dr. Hopkins rated employee's injury at 30\% permanent partial disability of the right knee at the 160week level. He also opined that employee was unable to work from April 23, 2011, through August 8, 2011. We find Dr. Hopkins's uncontested testimony to be credible.

The parties dispute whether employee sustained an accident when she fell while descending the shuttle bus stairs on April 2, 2011. The version of § 287.020.2 RSMo 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.

Given our factual findings, it's clear that employee's suffering a fall while descending the shuttle bus stairs on April 2, 2011, amounted to an "unexpected" and "traumatic event," that is "identifiable by time and place of occurrence," and that the event produced "objective symptoms of an injury caused by a specific event." The more difficult question is whether employee's fall occurred "during a single work shift."

Employer's position in this matter relies, to a large extent, on the premise that employee cannot have suffered an accident because she was not yet clocked in when she fell, but the courts have specifically indicated they would reject such an argument. See Henry v. Precision Apparatus, Inc., 309 S.W.3d 341, 342 (Mo. App. 2010). Accordingly, we do not find such an argument persuasive in this case.

Rather, we are more persuaded by the uncontested facts that employee was required to perform duties for employer and comply with policies of the employer from the moment that she arrived at the airport in uniform. Specifically, employee was required to observe and report suspicious vehicles or activities regardless whether she was on employer's premises or clocked in. Employee was also expected to appear for work dressed in a highly particularized uniform and to counsel employees who wore unauthorized items such as cowboy hats.

Employee: Woodine A. Tidwell

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Employer argues that, even if employee was expected to engage in some activities or refrain from others before she was clocked in, employee was not actually engaged in any particular work duty when she fell. We disagree. Even if employee was not presently engaged in the physical act of apprehending a suspicious person or counseling another employee regarding their appearance, the fact remains that, at the time she fell, employee was required by employer to have been engaged in the mindset of looking out for and responding to such issues and was expected to otherwise conduct herself as a representative of employer. Given these facts, we believe that employee was unquestionably in the service of her employer as soon as she arrived in uniform at the airport, such that her fall on April 2, 2011, occurred "during a single work shift." We conclude employee sustained an accident for purposes of § 287.020.2.

Injury arising out of and in the course of employment

This case turns on whether employee proved that her injuries arose out of and in the course of employment for purposes of § 287.020.3(2) RSMo, which 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.

We have credited Dr. Hopkins's uncontested testimony that employee's fall on April 2, 2011, was a prevailing cause in her suffering the right knee injury at issue in this case. We conclude that, for purposes of subsection (a) above, the accident is the prevailing factor in causing employee's injuries.

Turning to subsection (b), we note that the courts have interpreted the statute 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 the 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 found 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 concluded 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 holdin