June Davis v. Missouri Baptist Medical Center

Decision date: March 28, 201414 pages

Summary

The Labor and Industrial Relations Commission affirmed the administrative law judge's award denying workers' compensation benefits to employee June Davis. The case involved allegations that the employee made threatening statements about bringing a gun to the workplace, which the Commission found to be not credible based on the evidence presented.

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Caption

FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)
Injury No.: 08-104278
Employee:	June Davis
Employer:	Missouri Baptist Medical Center
Insurer:	Self-Insured
Additional Party:	Treasurer of Missouri as Custodian of Second Injury Fund

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, reviewed the evidence, heard the parties' arguments, 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.

Findings of Fact

Did employee threaten to bring a gun to work? This case arises from a series of incidents that began on February 25, 2008, when employee's coworkers reported to human resources that employee made some comments about bringing a gun into the workplace. Employer presented written statements from Agnes Gebel, Ashley Davis, and Jennie Hancock, in which these coworkers alleged the following: (1) when discussing with coworkers a recent mass shooting incident, employee expressed empathy for the shooter and indicated sometimes she would like to bring a gun in and shoot everyone; (2) employee told coworker Ashley Davis that employee had pulled a gun on employee's daughter and was ready to shoot until employee's fiancée stopped her; and (3) on February 8, 2008, employee told coworker Agnes Gebel that she could understand why people would walk into a place with guns and start shooting people because she was mad enough to do that herself.

As the administrative law judge noted in her award, employee admitted making comments expressing empathy for the gunman in the mass shooting event and telling a story about pulling a gun on her ex-husband, but denied any comment about holding a gun to her daughter's head or bringing a gun into work. It is not evident from the administrative law judge's award whether she ultimately believed employee's testimony on this topic. As a result, the factual issues whether employee told coworkers she held a gun to her daughters head, or that she would like to bring a gun to work, or that she was angry enough to do so remain unresolved.

After careful consideration, we find employee's testimony to be more credible than the contrary hearsay evidence. We find that employee did not tell anyone that she held a gun to her daughter's head. We find that employee did not tell anyone that she would like to bring a gun into work or that she was angry enough to do so. We find instead

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adopted by the legislature in 2005, abrogates all prior case law interpreting the phrases "arising out of" and "in the course of employment," we do have some subsequent decisions upon which we may rely. In a case involving an injury sustained after the 2005 amendments to the Missouri Workers' Compensation Law, the Missouri Court of Appeals stated that an injury arises "in the course of employment' if the action occurs within a period of employment at a place where the employee may reasonably be fulfilling the duties of employment." Harness v. Southern Copyroll, Inc., 291 S.W.3d 299, 305 (Mo. App. 2009). Post-2005 case law further suggests that an employee who is injured while engaging in voluntary activities unrelated to her duties for employer cannot be said to have sustained such injuries "in the course of the employment." Henry v. Precision Apparatus, Inc., 309 S.W.3d 341, 342 (Mo. App. 2010). We recognize that in the more recent case of Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012), the Missouri Supreme Court indicated that the statutory language set forth in $\S 287.020 .3(2)$ comprises the test, or in other words, the exclusive criteria for determining whether an injury arises out of and in the course of employment. ${ }^{1} See Johme, at 509-10. In any event, the case law and the plain language of \S 287.020 .3(2)$ require a finding that the injury does not come from a hazard or risk unrelated to the employment, and from this perspective we believe both Harness and Henry may be harmonized with Johme if they are read as dealing with the issue whether a hazard or risk can properly be seen as related to the employment.

Here, employee worked for employer as a clinical specialist technician. Her duties involved receiving tubes or vials of blood and body products and sorting them so that they reached the appropriate area of the lab, performing customer service duties on the telephone, and dealing with specimens that needed to be sent to another facility. Employee alleges injuries resulting when she was deprived of her purse and coat, made to disrobe in view of a surveillance camera, and held in a secure emergency room during a psychiatric evaluation after a representative from a third party employee assistance program determined that she was a homicide risk. Although these allegedly injurious acts occurred on employer's premises and were performed by employer's agents, we are of the opinion that these circumstances are not dispositive of the issue whether said acts constitute hazards or risks related to the employment. This is because employer's allegedly injurious conduct took place in the context of a medical evaluation of a possible medical condition not shown to be work-related. The relationship of the parties at the time of alleged injury was one of patient and healthcare provider, not employee and employer. As a result, we must conclude that employee's alleged injuries came from a hazard or risk that was unrelated to her employment.

With that said, we do not wish to minimize the indignity that employee suffered. If the evidence supported a finding that employer required employee, as a condition of her employment, to undergo an evaluation of the type she endured on February 26, 2008, the result in this case might be very different. But because we are convinced that employee's injuries did not arise out of or in the course of her employment, we believe employee's remedy does not lie under the Missouri Workers' Compensation Law.

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[^0]: ${ }^{1}$ We note the possible exception in cases dealing with the extension of premises doctrine, which the legislature specifically recognized and, to a certain extent, adopted in 2005 when it only partially abrogated that doctrine with the language of $\S 287.020 .5$ RSMo.

In light of the above considerations, all other issues are moot, and employee's claim is denied.

Conclusion

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

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued August 2, 2013, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

AWARD

Employee:	June Davis	Injury No.: 08-104278
Dependents:	N/A	Before the <br> Division of Workers' Compensation
Employer:	Missouri Baptist Medical Center	Department of Labor and Industrial Relations
Additional Party	Second Injury Fund	Of Missouri
Insurer:	Self	Jefferson City, Missouri
Hearing Date:	April 15, 2013	Checked by: KOB

FINDINGS OF FACT AND RULINGS OF LAW

Are any benefits awarded herein? No.
Was the injury or occupational disease compensable under Chapter 287? No.
Was there an accident or incident of occupational disease under the Law? No
Date of accident or onset of occupational disease: February 26, 2008
State location where accident occurred or occupational disease was contracted: Saint Louis County
Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
Did employer receive proper notice? Not determined.
Did accident or occupational disease arise out of and in the course of the employment? No.
Was claim for compensation filed within time required by Law? Yes.
Was employer insured by above insurer? Yes.
Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was upset by the manner in which Employer conducted a workplace risk assessment based on allegations of her coworkers.
Did accident or occupational disease cause death? No
Part(s) of body injured by accident or occupational disease: $\mathrm{n} / \mathrm{a}
Nature and extent of any permanent disability: \mathrm{n} / \mathrm{a}$
Compensation paid to-date for temporary disability: 0
Value necessary medical aid paid to date by employer/insurer? 0

Value necessary medical aid not furnished by employer/insurer? 0
Employee's average weekly wages: $\ 561.63
Weekly compensation rate: $\ 367.73
Method wages computation: Stipulation

COMPENSATION PAYABLE

Amount of compensation payable: None.
Second Injury Fund liability: No
Future requirements awarded: None

Said payments to begin immediately and to be payable and 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 -% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A

FINDINGS OF FACT and RULINGS OF LAW:

Employee:	June Davis	Injury No.: 08-104278
Dependents:	N/A	Before the
Employer:	Missouri Baptist Medical Center

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