Bernice Scott v. Bellefontaine Gardens Nursing & Rehab Center

proving the requisite causal connection between the conditions of her employment and her injury. Employee cites specific conditions that she believed contributed to cause her injury. Although not a model of clarity or specificity, we do not deem the application for review so deficient as to warrant dismissal.

The parties dispute whether employee's injuries arose out of and in the course of her employment. We agree with the administrative law judge's ultimate determination that employee's injuries cannot be deemed to arise out of and in the course of employment for purposes of $\S 287.020 .3(2)$ RSMo as that provision was interpreted by the court in Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012).

The Missouri courts have determined that where an employee fails to identify the specific hazard or risk that caused an injury, the employee fails to show that the injury arose out of and in the course of the employment. Porter v. RPCS, Inc., 402 S.W.3d 161, 174 (Mo. App. 2013). As employee admitted in her own testimony, she is unable to identify how or why she fell down at work, and her medical expert, Dr. Woiteshek, does not provide any explanation for why employee fell. This failure of proof prevents us from determining under $\S 287.020 .3(2)$ (b) whether employee's injury came 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. For this reason, we must deny the claim for compensation.

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

The award and decision of Administrative Law Judge Kathleen M. Hart, issued July 16, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of October 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Bernice Scott

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Bellefontaine Gardens Nursing \& Rehab Center

Additional Party: none

Insurer: Self c/o Missouri Nursing Home Insurance Trust

Hearing Date: April 28, 2014

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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? Yes
4. Date of accident or onset of occupational disease: December 3, 2011
5. State location where accident occurred or occupational disease was contracted: St. Louis
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? No
9. Was claim for compensation filed within 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: Claimant twisted her right knee at work while walking to the nurse's station.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: right knee
14. Nature and extent of any permanent disability: $\mathrm{n} / \mathrm{a}$
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 719.90

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\ 425.19 for PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

weeks of permanent partial disability from Employer None

1. Second Injury Fund liability:

No

TOTAL:

NONE

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

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 $\mathrm{n} / \mathrm{a}$ of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Bernice Scott

Injury No.: 11-099793

Dependents: n/a

Before the

Employer: Bellefontaine Gardens Nursing \& Rehabilitation Center

Division of Workers'

Additional Party: none

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: self c/o Missouri Nursing Home Insurance Trust

Checked by: KMH

A hearing was held on the above captioned matter April 28, 2014. Bernice Scott (Claimant) was represented by attorney Mark Cordes. Bellefontaine Gardens (Employer) was represented by attorney Patrick Reidy.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

Claimant alleges she injured her right knee by accident in the course and scope of her employment. Employer denies liability.

The parties stipulated to the following:

1. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the alleged date of injury.
2. Employer's liability was self insured through the Missouri Nursing Home Insurance Trust.
3. Employer had notice of the alleged injury and a claim for compensation was timely filed.
4. Claimant's rate for PPD is $\ 425.19.
5. Employer paid no TTD benefits, and paid $\ 719.90 in medical benefits.

The parties stipulated the issues to be resolved are as follows:

1. Accident
2. Arising out of and in the course of employment
3. Medical Causation
4. PPD

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 49 year-old female who worked for Employer, off and on, several years as an LPN. The last date she worked for Employer was March 26, 2012. She has not worked since her last date with Employer, and testified she is collecting "SSA" disability now.
2. At the time of this alleged work injury, Claimant had worked for Employer several months. She was the supervisor of the night shift, and worked 10:45 pm through 7:15 am on Friday, Saturday, and Sunday nights. She was responsible for the care of over 50 patients. She assisted CNAs in turning and lifting patients. She handled pain management, treatment, documentation, safety, and all aspects of patient care.
3. On December 3, 2011, Claimant fell as she was walking to the nurse's station. She testified she does not know how or why she fell. Claimant testified she had unbearable pain into her right leg, and screamed for help. Two CNAs helped Claimant to the nurse's station. Claimant testified she was in so much pain; she immediately called the Director of Nursing and the Administrator to report her injury. Claimant did not speak to either of them that night. There was no one to cover for her, so Claimant finished her shift. Claimant testified her supervisor said she could not leave after her shift without completing an incident report. Claimant filled out the report, and called her son-in-law to pick her up. He took her directly to Touchette Hospital.
4. The records from Touchette Hospital show Claimant was seen December 3, 2011, with complaints of right knee and ankle pain. She had mild swelling in her knee. Claimant testified she told the Emergency Room doctors she didn't know how she fell. One doctor noted Claimant's knee "gave out" while at work the night before and she denied any trauma. Another doctor noted Claimant was at work the night before, and the next thing she knew she was on the floor in pain, and she denied any injury. Another notation in the Emergency Room records indicates Claimant said she was working and felt her knee give out. Claimant was diagnosed with knee pain, given medications, and released.
5. Claimant testified she could not work that weekend. She talked to the Director of Nursing on Monday, and was told to come in Friday until her workers' compensation kicked in. Employer sent Claimant to Concentra two weeks later. Claimant testified they did nothing for her on her first visit because Employer had not filled out the paperwork. Two to three days later, she went back to Concentra, and the doctor ordered two weeks of physical therapy. Claimant went to therapy, and it helped control the pain.
6. The records from Concentra show an initial visit date of December 16, 2011. Claimant gave a history that she fell and hurt her right knee on December 3, 2011. She stated after directing an aide to assist a resident, she turned, and she suddenly fell down. She did not know why she fell. She did not trip on anything or slip. She "just found myself on the

floor." She said she tried to work over the next few days, but couldn't, so she saw her private physician. He gave her a knee brace, and scheduled an MRI for December 21.