Anne Poole v. Preferred Hospice of Missouri SW, LLC

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

Injury No.: 10-049134

Employee: Anne Poole

Employer: Preferred Hospice of Missouri SW, LLC

Insurer: Missouri Nursing Home Insurance Trust

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, 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 with this supplemental opinion.

Injury arising out of and in the course of employment

The parties dispute whether employee's injuries resulting from the motor vehicle accident of June 7, 2010, arose out of and in the course of employment. The administrative law judge concluded that they did. We agree with this conclusion, but we wish to provide certain supplemental findings and comments.

Section 287.020.3(2) RSMo 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.

The courts have interpreted the foregoing language 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). The Johme court held that an employee who fell and suffered injuries when her foot slipped off her sandal while making coffee "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.

The administrative law judge determined that employee testified credibly that she was returning to employer's place of business at the time of the motor vehicle accident on

June 7, 2010. The administrative law judge had the opportunity to observe the witnesses and we discern no compelling reason on this record to disturb her credibility determination. We agree that employee is credible, and we affirm and adopt the administrative law judge's determination that employee was on her way to employer's premises at the time of the motor vehicle accident that caused her injuries.

The administrative law judge went on to conclude, on page 9 of her award, that "it does not matter in this case whether [employee] had intended to return to the Office or was going home," and analyzed the issue of compensability under a hypothetical alternative factual scenario. Because our finding as to employee's actual destination at the time of the motor vehicle accident is (as employer concedes) dispositive of the issue in favor of employee, there is no need to consider whether her injuries would be compensable otherwise. Accordingly, we hereby disclaim the administrative law judge's additional comments and analysis pertinent to the Reneau doctrine and the case of Harness v. Southern Copyroll, Inc., 291 S.W.3d 299 (Mo. App. 2009). We conclude that employee's injuries arose out of and in the course of employment, because employee's injuries did 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 affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued July 23, 2013, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this $\qquad 26^{\text {th }}$ day of February 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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: June 7, 2010.
5. State location where accident occurred or occupational disease was contracted: Webster 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 the time required by law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, who traveled as an admissions coordinator for clients who were receiving hospice care, was injured in a motor vehicle accident while leaving from an inperson interview with a client.
12. Did accident or occupational disease cause death? No. Date of death? N/A.

Employee: Anne M. Poole

Injury No. 10-049134

Dependents: N/A

Employer: Preferred Hospice of Missouri SW, LLC

Additional Party: Not applicable

Insurer: Missouri Nursing Home Insurance Trust, c/o Maxim Insurance Solutions, LC (TPA)

Hearing Date: June 3, 2013

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Reviewed by: VRM/ps

The undersigned administrative law judge conducted a final hearing on this case on June 3, 2013, in Springfield, Missouri. Anne Poole (Claimant) appeared in person and by her attorney of record, Elijah Haahr. Patrick Reidy appeared on behalf of Preferred Hospice Southwest, LLC, and its insurer Missouri Nursing Home Insurance Trust and Maxim Insurance Solutions, LC (TPA), (hereafter referenced collectively as Employer). The Second Injury Fund was not a party to this proceeding. The parties entered into the following stipulations:

1. On June 7, 2010, Claimant Anne Poole sustained injuries as a result of an automobile accident. On that date, she was an employee of Employer.
2. On the date of the accident, Preferred Hospice of Missouri SW, LLC, was an employer operating in the State of Missouri and was fully insured by Missouri Nursing Home Insurance c/o Maxim Insurance Solutions, LC.
3. Claimant was covered by, and Employer was subject to, the Missouri Workers' Compensation Act on the date of the accident.
4. The accident occurred in Webster County, Missouri and the parties have agreed to venue in Greene County, Missouri.
5. Claimant's average weekly wage on the date of the accident was $\ 1,193.02, yielding a weekly rate of $\ 795.35 for temporary total and permanent total disabilities.
6. There is no dispute as to jurisdiction, notice, or statute of limitations.
7. Employer has paid no medical benefits and no temporary total disability.

The parties agree that the following are the issues that are in dispute:

1. Did Claimant's injuries arise out of and within the course of her employment for Employer?
2. What is the nature and extent of any permanent disability for which Employer is liable?
3. Is Employer liable for temporary total disability benefits?
4. Is Employer liable for certain past medical care?
5. Is Employer liable for future medical care?

The following evidentiary issues arose during the hearing:

1. Should Exhibit 2 be excluded for failure to comply with $\S 287.215$ RSMo, pertaining to statements of an employee?
2. Was certain testimony of Phyllis Wiley admissible as an exception to the hearsay rule?

These evidentiary issues are rendered moot in light of this Award in favor of Claimant. Moreover, any objections or evidentiary rulings not previously addressed are now ruled in a manner consistent with this Award.

The undersigned administrative law judge took official notice of the Division's administrative file, including all claims and answers in this case. In addition, the following exhibits were offered. Each was admitted, unless noted otherwise:

Exhibit A Dr. Stuckmeyer Report

Exhibit A-1 Dr. Stuckmeyer Deposition and Exhibits

Exhibit B Dr. Whetstone Report

Exhibit B-1 Dr. Whetstone Deposition and Exhibits

Exhibit C Rehab Consulting-Phil Eldred Vocational Evaluation

Exhibit D Medical Bills (all hospitals)

Exhibit D-1 Cox Medical Center Records

Exhibit D-2 Select Specialty Hospital Records

Exhibit D-3 Mercy Hospital Records

Exhibit D-4 Ozark Neuro Rehab Records

Exhibit D-5 CMH Records

Exhibit D-6 Dr. West-Diagnostic Clinic Records