Linda Dorris v. Stoddard County

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

Injury No.: 09-073246

Employee: Linda Dorris

Employer: Stoddard County

Insurer: Missouri Association of Counties

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, heard the parties' arguments, reviewed the evidence, and considered the whole record. ${ }^{2}$ We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge by this supplemental opinion.

We offer this supplemental opinion to address arguments raised by the parties on appeal and to analyze the matter in light of recent appellate decisions controlling the determination of the issues at hand.

Employee's supervisor invited employee and a co-worker to walk across the street from their current office to view workstations installed in a new workspace they would soon occupy. Employee testified that while she and her co-worker were returning to their current office, she tripped and fell in the street resulting in an injury to her shoulder. The evidence overwhelmingly supports the administrative law judge's conclusion that employee's accident was the prevailing factor in causing employee's shoulder injury. ${ }^{4}$

In dispute in this matter is whether employee's shoulder injury came 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."5

Employer also argues that employee's fall was unexplained like the fall Ms. Bivins suffered in Bivins v. St. John's Reg'l Health. ${ }^{6}$ Therefore, employer argues, employee has not established that her injury arose out of and in the course of her employment. Bivins is distinguishable.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

${ }^{2}$ Chairman Larsen was not a member of the Commission at the time the Commission heard oral argument.

${ }^{3}$ Section 287.020.3(2) RSMo provides this statutory test: "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."

${ }^{4} \S 287.020 .3(2) (a) RSMo.

{ }^{5} \S 287.020 .3(2)(b) RSMo.

{ }^{6} 272$ S.W.3d 446 (Mo. App. 2008).

Employee suffered the trip and fall while employee was walking to the office where she was then performing services for employer from an office across the street where employee would soon be performing those services for employer. Two administrative law judges considered the evidence now before us and each drew from that evidence the inference that the hazard that caused employee's injury was the poor condition of the pavement upon which employee was walking when she tripped. We find that inference reasonable. ${ }^{7}$

Employee need not prove that the nature of the risk to which she was exposed was unique to her employment. Compensability is established herein based upon our finding that, in the course and scope of her employment, employee had a direct and greater exposure to the specific risk of tripping inherent in the poor condition of the roadway in a direct path from one office to another and that she sustained injury as a result therefrom.

We agree with the administrative law judge's conclusion that employee's shoulder injury arose out of and in the course of her employment.

We affirm the award of the administrative law judge as supplemented herein.

We approve and affirm the administrative law judge's allowance of attorney's fees herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The July 13, 2011, award and decision of Administrative Law Judge Maureen Tilley is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $26^{\text {th }}$ day of June 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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[^0]: ${ }^{7}$ In determining questions of fact the administrative law judge and commission have the right and the duty to draw such reasonable inferences as are warranted by the evidence taken as a whole and the circumstances disclosed by it. See Davies v. Carter Carburetor, 429 S.W.2d 738 (Mo. 1968); Taylor v. Labor Pros L.L.C., 392 S.W.3d 39, 45 (Mo. App. 2013).

Employee: Linda Dorris

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Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

I do not believe employee's injury arose out of and in the course of her employment. ${ }^{8}$ Employee is unable to identify what caused her to trip. Before we can conclude that an injury arose out of and in the course of employment, it is incumbent upon us to identify the hazard giving rise to employee's injury. It is only by weighing employee's work exposure to the hazard against her non-work exposure to that hazard that we can determine if there is the necessary causal connection between her fall and her work. Here, employee has not proven what hazard caused her fall so I cannot perform the quantitative comparison required by the Workers' Compensation Law. Employee bears the burden of proving all elements of her claim for compensation. Employee has failed to prove her injury arose out of and in the course of employment.

For the foregoing reasons, I would deny the claim for compensation. I respectfully dissent from the decision of the majority of the Commission to award compensation for this claim.

James G. Avery, Jr., Member

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[^0]: ${ }^{8} \S 287.020 .3(2)$ RSMo.

Employee: Linda Dorris

Injury No. 09-073246

Dependents: N/A

Employer: Stoddard County

Additional Party: N/A

Insurer: Missouri Assoc of Counties c/o Gallagher Bassett Services

Hearing Date: April 13, 2011

Checked by: MT/rf

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? September 15, 2009.
5. State location where accident occurred or occupational disease contracted: Stoddard County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was crossing the street and she tripped and fell.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Right shoulder.
4. Nature and extent of any permanent disability: See findings.
5. Compensation paid to date for temporary total disability: None.
6. Value necessary medical aid paid to date by employer-insurer: None.
7. Value necessary medical aid not furnished by employer-insurer: 32,804.06
8. Employee's average weekly wage: 401.63
9. Weekly compensation rate: $267.75
10. Method wages computation: By agreement.
11. Amount of compensation payable: See findings.
12. Second Injury Fund liability: N/A
13. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Michael Moroni.

On April 13, 2011 the employee, Linda Dorris appeared in person and with her attorney, Michael Moroni for a hearing for a final award. The employer was represented at the hearing by its attorney, Jared Vessell. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was fully insured by the Missouri Association of Counties.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Stoddard County Missouri and was working under the Workers' Compensation Act.
3. The employer had notice of the employee's accident.
4. The employee's claim was filed within the time allowed by law.
5. The parties stipulate that Employee's average weekly wage is $\ 401.63, creating a compensation rate of $\ 267.75 for all benefits.
6. The parties stipulate that the employer/insurer paid $\ 0 in medical aid.
7. The parties stipulate that the employer/insurer paid $\ 0 in temporary total disability benefits.

1. Whether on or about September 15, 2009, Employee sustained an accident or occupational disease arising out of and in the course of her employment?
2. Whether Employee's back condition is related to the fall on September 15, 2009?
3. Whether Employer and Insurer are liable for past medical?
4. Whether Employer and Insurer are liable for mileage?
5. Whether the employer and insurer are liable for past temporary total disability benefits?
6. Whether Employer and Insurer are liable for any permanent partial disability regarding Employee's shoulder, and if so, what is the nature and extent?

Employee and Employer-Insurer stipulate the following into evidence:

1. Photograph of street where Plaintiff's alleged accident occurred.
2. Medical records pertaining to Plaintiff from Dr. Sonjay Joseph Fonn.
3. Medical records pertaining to Plaintiff from Bloomfield Medical Clinic.

1. Medical records pertaining to Plaintiff from Orthopaedic Associates, Dr. R. August Ritter.
2. Deposition of Linda Dorris, taken December 29, 2009.
3. Deposition of Linda Patrick, taken December 29, 2009.

A. Temporary Award.

B. Records from Dr. Fonn.

C. Medical bill from Dr. Fonn.

D. Certified records Bloomfield Clinic.

E. Certified records Orthopaedic Associates.

F. Notice of Constitutional Objections.

G. Rating Report of Dr. Guidos.

H. Summary of medical expenses and mileage and monthly wages.

I. Statement of hours missed from work.

1. Report of Dr. Nogalski.
2. Curriculum Vitae of Dr. Nogalski.

Linda Dorris (Employee) testified she is currently employed with Stoddard County as a clerk in the Collector's office. She has held this position for approximately six years and has been an employee of Stoddard County for approximately thirteen years. She is currently sixtytwo years old.

On September 15, 2009, the employee and a co-worker, Linda Patrick, traveled across the street to look at countertops that were being installed in their new of