Cathy Werner v. Madison Warehouse Corp.

Decision date: July 18, 201331 pages

Summary

The Commission affirmed the Administrative Law Judge's award denying workers' compensation benefits, despite finding that the employee did sustain an accident when she fell while descending restaurant stairs on July 10, 2008. The employee was attending a work-related business dinner meeting, but the Commission ultimately upheld the denial of compensation.

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Caption

FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)
Injury No.: 08-122998
Employee:	Cathy Werner
Employer:	Madison Warehouse Corp.
Insurer:	Zurich American Insurance Company
Additional Party:	Treasurer of Missouri as Custodian of Second Injury Fund (Denied)
This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, heard the parties’ arguments, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying 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 with this supplemental opinion.
Discussion
Accident
The parties dispute whether employee sustained an accident when she fell while descending restaurant stairs on July 10, 2008. The administrative law judge determined that employee “did not sustain an accident during a single work shift.”Award, page 8. We disagree. 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.
It’s clear that employee’s suffering a fall while descending restaurant stairs on July 10, 2008, 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.”
Employee testified that the purpose behind meeting her coworkers at the restaurant was to discuss the work to be done the next day. Employee explained that she and her coworkers were otherwise occupied during the day, and that a dinner meeting provided the only time available to engage in the planning and discussions needed to move the work forward. Employee further explained that such dinner meetings are a frequent and regular aspect of her duties when she’s working out of town for employer.
Given these facts, we believe that employee was unquestionably in the service of her employer both during the business dinner, and for a reasonable time thereafter, such

http://www.healthcare.gov.th/2013/07/08/healthcare/20130708/healthcare-20130708-122998

http://www.healthcare.gov.th/2013/07/08/healthcare/20130708-122998

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We must conclude, therefore, that employee's injuries did not arise out of and in the course of her employment.

Conclusion

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

The award and decision of Administrative Law Judge Suzette Carlisle, issued December 18, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $18^{\text {th }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

DISSENTING OPINION

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 administrative law judge's award denying benefits is in error, and should be reversed.

I agree with the majority to the extent that I am convinced that employee suffered an accident, and that the outcome of this case turns on whether employee's injuries arose out of and in the course of her employment. I disagree, however, with the majority's conclusion that employee's injuries resulted from a hazard or risk unrelated to the employment for purposes of $\S 287.020 .3(2)$ RSMo.

In Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012), the Missouri Supreme Court held that an employee who fell while making coffee at work did not sustain a compensable injury. 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 holding, and in specifically contrasting a "work-related risk" versus a "risk to which the employee was equally exposed" outside of work, the Johme decision implies that our analysis under $\S 287.020 .3(2)$ (b) must begin with an identification of the risk or hazard that resulted in the employee's injuries, followed by a quantitative comparison whether employee was equally exposed to that risk in her own normal nonemployment life. Following the Court's reasoning, the result of that comparison should tell us whether the risk is related or unrelated to employee's work, and in turn, whether the employee's injuries arose out of and in the course of the employment.

Here, I agree with the majority that the risk or hazard that resulted in employee's injuries is that of descending a single step at a Paula Deen restaurant in Savannah, Georgia. The next question is whether employee was equally exposed to that risk or hazard in her normal nonemployment life. I find that employee was not so exposed.

Employee's uncontested testimony reveals that when she traveled out of town for employer, she conducted regular business dinners with her associates, as this was typically the only time available to go over the next day's business. In the course of attending these business dinners, employee was necessarily exposed to the hazards of navigating an unfamiliar environment. The majority ignores the increased danger that results from such circumstances. Employee testified that she didn't see the single step immediately outside of the restaurant exit, and that this is what caused her to fall. Employee's right ankle injury is thus a direct result of the fact that employee was unfamiliar with her environment.

The majority would require employee to show some abnormally hazardous aspect of the step. I believe the majority misreads the Johme decision. The Missouri Supreme Court in Johme did not suggest that an employee is required to demonstrate some irregularity or environmental risk as a causative factor in order to secure workers' compensation benefits for injuries sustained in a workplace fall. The Johme decision merely stands for the proposition that where an employee's fall is a direct product of her foot slipping off her non-work sandals, the employee has failed to demonstrate a causal connection between her injuries and her employment. The majority also overlooks the more recent decision of Pope v. Gateway to the W. Harley Davidson, No. ED98108 (Oct. 23, 2012). ${ }^{1}$ In Pope, the court found that an employee who fell down stairs while working for employer suffered a compensable workers' compensation injury where there was no evidence that employee was equally exposed to the risk involved in descending those stairs in his normal nonemployment life. Id. at pg. *16-17. The court noted that employee was carrying a work-related helmet while descending the stairs, but did not suggest that employee was required to demonstrate some abnormally hazardous aspect of the stairs themselves in order to meet his burden of proof. Id.

The Pope decision also makes clear that we are not to presume facts not in evidence in analyzing the issue of equal exposure: "Moreover, the record contains no evidence that Pope normally carried his motorcycle helmet while descending stairs in his normal, nonemployment life. Even if Pope were an avid motorcyclist, we will not presume facts not found in the record. Given the absence of such facts, we find little factual basis for the argument that Pope was equally exposed to the risk of walking down stairs while holding a motorcycle helmet in his normal, non-employment life." Id. at pg. *16. Here, the majority's finding that employee was equally exposed, in her nonemployment life, to the risk of descending the single step outside the Paula Deen restaurant in Savannah, Georgia, seems to me to be premised on nothing more than speculation and conjecture. The majority fails to identify any evidence to support its finding that employee was so exposed. This is not surprising, because there is no such evidence on this record. Instead, the uncontested evidence reveals that the only reason that employee was descending that step-and was thus exposed to the risk of missing it and falling-was because her work for employer put her there.

In sum, I believe the majority's analysis runs contrary to the recent and controlling case law on the issue whether an employee's injuries arise out of and in the course of employment. I am convinced that employee's work for employer on July 10, 2008, placed her in an unfamiliar setting, and exposed her to the particular risk or hazard that caused her to fall. I conclude that employee's injuries arose out of and in the course of employment.

[^0]

[^0]: ${ }^{1}$ The Missouri Court of Appeals, Eastern District, published the Pope decision on the day it was issued, and an application for transfer to the Missouri Supreme Court

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