Sead Muminovic v. St. John's Mercy Medical Center

Enployee: Sead Muminovic, deceased

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Second, we note that the administrative law judge cited Hager v. Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010) for the proposition that after the 2005 amendments to the Missouri Workers' Compensation Law, the extension of premises doctrine is no longer "viable." Award, page 7. But the Hager court did not so hold. Instead, the court acknowledged the continued viability of at least some aspect of the doctrine, when it considered whether the employer controlled the premises where the employee fell. Id. at 776-777. For this reason, we must disclaim the administrative law judge's comments regarding the Hager decision and its effect on the continued viability of the extension of premises doctrine. ${ }^{2}$

We acknowledge that in the case of Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012), the Supreme Court stated, as follows:

[An employee's] injury is compensable in workers' compensation only if it arose out of and in the course of her employment pursuant to section 287.020.3(2). The express terms of the workers' compensation statutes as revised in 2005 instruct that section 287.020.3(2) must control any determination of whether Johme's injury shall be deemed to have arisen out of and in the course of her employment. See sec. 287.020.10 (expressly noting the legislature's intent to abrogate prior case law definitions applicable to workers' compensation, including case law interpretations for the definitions of "arising out of" and "in the course of the employment"). And the legislature has left no doubt that the provisions of section 287.020.3(2) are to be construed strictly. See sec. 287.800 ("courts shall construe the provisions of [chapter 287] strictly").

Id. at 509-10.

It can and has been argued that through the above language the Supreme Court ruled that the provisions of $\S 287.020 .3(2)$ now constitute the statutory definition describing what injuries arise out of and in the course of employment. But we do not read the Johme decision so narrowly. Importantly, the legislature stated in § 287.020.3(2) that "[a]n injury shall be deemed to arise out of and in the course of the employment only if" it meets the named requirements, suggesting that a satisfaction of the unequal exposure test as described in Johme is necessary to an award of compensation, but may not be sufficient where there are further questions as to whether an employee's injuries arose out of and in the course of the employment. ${ }^{3}$

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[^0]: ${ }^{2}$ Of course, the Hager court did not ultimately apply the extension of premises doctrine, so it is unclear what (if any) element of compensability the doctrine may have supplied in that case.

${ }^{3}$ The legislature did not offer, with the 2005 amendments, any other test or any further guidance in interpreting the meaning of the phrase "arising out of and in the course of the employment." This, combined with the legislature's sweeping abrogation of case law interpreting the phrase, suggests a legislative recognition of the wisdom inherent in the judicial admonition: "every case involving this phrase [arising out of and in the course of the employment] should be decided upon its own particular facts and circumstances and not by reference to some formula." Finley v. St. Louis Smelting \& Refining Co., 361 Mo. 142, 144 (Mo. 1950).

In our view, the Johme decision's silence regarding the extension of premises doctrine is in no way instructive because application of said doctrine wasn't necessary to an analysis or resolution of that case. We believe an extension of premises doctrine remains applicable in cases such as this, wherein the employee is injured while travelling to or from work on premises owned or controlled by the employer, because § 287.020.5 specifically so states. We are left, then, to define and to apply an extension of premises doctrine pursuant to the strict construction mandate of $\S 287.800$ and despite the legislative abrogation of the entire body of case law wherein said doctrine was exclusively developed and described. Although all prior cases which have defined and applied the extension of premises doctrine are no longer controlling, in the absence of any statutory definition, we deem it necessary (and therefore appropriate) to refer to such cases for guidance in an attempt to define and apply the doctrine in a manner that does not conflict with other strictly-construed provisions of Chapter 287.

Employee correctly cites certain pre-2005 cases quoting or paraphrasing a 1928 decision by the United States Supreme Court which suggested that the extension of premises doctrine provided both the "arising out of" and "in the course of" requirements to an award of benefits under § 287.120.1 RSMo:

If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer's premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer's premises, the injury is one arising out of and in the course of employment as much as though it had happened while the employee was engaged in his work at the place of its performance.

Roberts v. Parker-Banks Chevrolet, 58 S.W.3d 66, 70 (Mo. App. 2001), quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158 (1928).

Such broad language must, however, be considered in the context of the factual scenarios the extended premises doctrine was developed to address: employees who are injured while going to or coming from work rather than engaged in a particular work duty. Seen in this light, we believe the extension of premises doctrine permits employees to demonstrate that they were "in the course of" their employment when injured. See, e.g., Wells v. Brown, 33 S.W.3d 190, 192 (Mo. 2000), stating the doctrine as follows: "[i]f an employee is injured on extended premises while coming to or from work, the injury is in the course of employment as if it had happened while the employee was engaged in his work at the place of its performance" (emphasis added). See also Hunt v. Allis-Chalmers Mfg. Co., 445 S.W.2d 400, 408 (Mo. App. 1969)(suggesting that the extension of premises doctrine supplies the "in the course of" element, but that additional considerations are necessary to resolve whether an injury "arises out of" the employment).

We have previously considered these issues in our decision in the case of David Viley v. Scholastic, Inc., and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-050708 (LIRC, April 16, 2014). In that case, we held that the extension of premises doctrine was applicable to demonstrate that an employee's injuries, occurring on a parking

Int controlled by the employer, were sustained in the course of employment. Here, we likewise believe that the extension of premises doctrine satisfies employee's burden to prove that his injuries were sustained "in the course of" employment, because employee suffered his injuries on employer's premises while leaving work. See Wells, supra. A broader definition of the extension of premises doctrine appears to us to be incompatible with the clear language of $\S 287.020 .3(2)$ (b) and inconsistent with the Supreme Court's directive in Johme.

As noted above, employee has failed to satisfy the unequal exposure test under § 287.020.3(2)(b) as defined in the Johme case. Accordingly, even though we believe that employee's injuries were sustained in the course of his employment, we find they did not arise out of his employment. For this reason, we affirm the award of the administrative law judge denying benefits.

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 November 7, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $22^{\text {nd }}$ day of September 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: May 21, 2008
5. State location where accident occurre