Glenda Hunter v. Benchmark Healthcare of Harrisonville

Employee: Glenda Hunter, Injury No. 13-021747

Dependents: N/A

Employer: Benchmark Healthcare of Harrisonville

Additional Party: N/A

Insurer: American Compensation Insurance

Hearing Date: July 19, 2013 Checked by: LGR/cy

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: February 28, 2013
5. State location where accident occurred or occupational disease was contracted: Harrisonville, Cass 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

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Glenda Hunter

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was with co-employee who was assisting her in taking out the

trash and going for a smoke break in the shed on employers parking lot. On the way back into the facility, employee slipped and fell on ice causing injury.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: right lower extremity, back, body as a whole
3. Nature and extent of any permanent disability: N/A - Not at maximum medical improvement ("MMI")
4. Compensation paid to-date for temporary disability: $\ 0
5. Value necessary medical aid paid to date by employer/insurer? $\ 0
6. Value necessary medical aid not furnished by employer/insurer? $\ 0
7. Employee's average weekly wages: $\ 274.56
8. Weekly compensation rate: $\$ 183.04 / \ 183.04
9. Method wages computation: Stipulation of the parties
10. Amount of compensation payable: N/A
11. Future requirements awarded: Treatment for Ms. Hunter's low back and right knee injury, including MRI scans of the right knee and lumbar spine, pain management, physical therapy, and possible surgical intervention, and referral to a psychologist/psychiatrist are awarded.

Said payments to begin as of date of this award and to be payable and be subject to modification and review as provided by law.

Employee: Glenda Hunter, Injury No. 13-021747

Dependents: N/A

Employer: Benchmark Healthcare of Harrisonville

Additional Party: N/A

Insurer: American Compensation Insurance

Hearing Date: July 19, 2013 Checked by: LGR/cy

On July 19, 2013, the employee and employer/insurer appeared for a temporary hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Ms. Glenda Hunter, appeared in person and with counsel, Jonathan Bortnick. The employer/insurer, American Compensation Insurance, appeared through counsel, Steve Quinn. The parties entered into stipulations and the sole issue in this matter is whether or not claimant's fall in the parking lot of her employer on February 28, 2013, arose out of the course and scope of her employment. For the reasons noted below, I find in the affirmative on the issue.

The parties stipulated that:

1. On or about February 28, 2013 ("the injury date"), Benchmark Healthcare of Harrisonville ("Benchmark") was an employer operating subject to Missouri's Workers' Compensation Law with its liability fully insured by American Compensation Insurance;
2. Ms. Hunter was its employee working subject to the law in Harrisonville, Cass County, Missouri;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Glenda Hunter

Injury No. 13-021747

1. Ms. Hunter notified Benchmark Health Care of her injury and filed her claim within the time allowed by law;

1. Nature and extent of disability is not an issue for this hearing;

1. Ms. Hunter earned a 274.56 average weekly wage resulting in a weekly compensation rate of 183.04 for temporary total disability compensation, and $183.04 for permanent partial disability compensation.

Testimony at the hearing was provided by Ms. Hunter and co-workers Joe Vansel and Gwen Knibb. The testimony from all the witnesses was consistent with respect to the fact that claimant slipped in the parking lot of her employer's premises on February 28, 2013. What the claimant was doing at the time of the slip and fall is crucial to the determinations of liability in this matter.

Claimant's testifed that her designated duties included empting trash cans and taking trash from room 302 in the main building across the parking lot to the dumpster. The dumpster is located in close proximity to the shed that was built for employees to smoke cigarettes. Employees were allowed to smoke in the shed without clocking out on a scheduled break. Employees clocked out during the day for two 15-minute breaks and one lunch break. Claimant planned to clock out for her lunch break shortly after returning from the smoking shed.

Ms. Hunter testified that she fell as she walked out the door of the facility while carrying trash. Joe Vansel testified that he is a floor tech. On February 28, 2013, he had finished performing floor tech duties and he was putting away his floor machine when he saw Ms. Hunter. The two agreed to take a smoke break. Mr. Vansel testified that his sole purpose in going outside was to have a smoke. Mr. Vansel testified that he did not have any trash to dump, although he was carrying someone else's trash. Ms. Hunter gave Joe Vansel her trash to carry. Testimony was consistent that it was "extremely cold" that day and that the parking lot was on employer's premises and was covered with snow and ice at the time of the slip and fall by claimant. Claimant testified that she informed her supervisors of her injury.

**ANALYSIS**

Section 287.020.3(2)(b) governs whether an injury arises out of and in the course of employment. The statute states that an injury shall be deemed to arise out of and in the

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course of employment only if 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 and normal non-employment life.

The employer/insurer argue that the facts of case are similar in analysis to Johme v. St. John's Mercy Health Care, 366 S.W. 3d 504 (Mo. Banc 2012) interpreting 287.020.3(2)(b) where claimant must show a causal connection between the injury at issue and the employer's work activity. The Court in Johme stated the case necessitated consideration of whether her risk of injury from turning, twisting her ankle, and falling off her shoe was a risk to which she would have been equally exposed in her normal, non-employment life.

This matter at issue is distinguishable in that Ms. Hunter slipped and fell on her employer's icy parking lot while walking with a co-employee to take out the trash she had collected. For an injury to be deemed to arise out of and in the course of the employment, the claimant's employee must show a causal connection between the injury at issue and the employee's work activity. Pope v. Gateway to the West Harley Davidson, ED98108; WL 5207529 (MO App E.D. Oct. 23, 2012). In Pope, the Claimant fell down stairs at Employer's business and dislocated and fractured his right ankle. At the time of the fall, Claimant was carrying his motorcycle helmet, which he was required to wear in conjunction with his work duties. The court found that the injury arose out of and was within the course of employment because the claimant was not equally exposed to the risk of walking down stairs while carrying a work-required helmet while outside of work.

The court of appeals in Kunce v. Junge Baking Co., 432 S.W.2d 602 (Mo. App. 1968) involved an employee that was injured when he tripped and fell while returning from an off-premises paid break. The employer allowed its workers to take off-premises breaks and the employees remained "on the clock" during these breaks. The claimant left the premises to buy cigarettes and Christmas tinsel. On the way back, the claimant was walking when he stepped on a "hoop," on a cement runway causing him to fall. The cement runway was on employer's premises but was not a customary or permitted route nor the usual and customary way of going to and from work.

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 court affirmed that risks and acts are considered an incident of the employment if they "constitute an inherent and component element of it." Kunce, at 609. The court explained this rationale provided the basis for various doctrines of compensability, including the

Personal comfort doctrine. *Id.* Human beings in ministering to their personal comfort at work are held to be incidental to their employment under the personal comfort doctrine. *Id.* These conclusions follow as the employee is on the employer's premises subject to all the environmental hazards associated with the employment and to the employer's right to control. *Id.*

There is no dispute that her employer required Ms. Hunter to take trash from the main building to the dumpster. The employer/insurer's argument in its trial brief is that "…if claimant did have any trash to dump, the credible evidence is that she gave it to Joe to toss at which point her sole reason for the trip outside was to have a smoke." (Employer/Insurer Trial Brief p. 3). I agree with the Employer's determination of the facts in this case. However, the facts of this case demonstrate that Ms. Glenda Hunter was in furtherance of the employer's business in taking out the trash. She was performing this duty at the time of her injury regardless of whether or not Joe Vansel was carrying the trash. Mr. Vansel did not have a duty to take out trash as provided in his testimony. Also, the employer required that employees smoke in a designated shed which they provided. The employer further did not require the employee to clock out when taking a smoke break. The employer had ownership and control of the parking lot and placement of the shed. Claimant was exposed to the risk due to the placement of the dumpster and the instructions of her employer to smoke in a designated area which required her to cross an icy lot under their control. She was required to cross the lot to both dispose of the trash in the dumpster and to smoke in the designated area.

Finally, whether or not claimant was injured going to the dumpster or coming back from the smoke break is not material to the analysis. One cannot argue that claimant's trip across a parking lot was in part to make sure that her duty to dispose of the trash was completed. The fact that she smoked a cigarette in the shed by the dumpster does not impact the analysis as she would be required to cross the same parking lot to return to work.

The trip to the dumpster and shed was casually related to Ms. Hunter's job duties and she is entitled to compensation. Accordingly, the employer is hereby order to provide all required benefits and compensation under the Missouri Workers Compensation Law.

Made by: $\qquad$

Lawrence G. Rebman

Administrative Law Judge

Division of Workers' Compensation