James Cotter v. Nitelines USA, Inc.

2005 legislative amendments to $\S 287.020 .5$ did not totally abrogate the doctrine, because the plain language of that section abrogates the doctrine only "to the extent it extends liability for accidents that occur on property not owned or controlled by the employer." In the Viley case mentioned above, the court applied the extension of premises doctrine in a case arising under the 2005 amendments.

We acknowledge that the particular circumstances of this case, with employee working as a temporary or loaned employee on a premises other than that of his immediate employer, would render any application of the extension of premises doctrine more complicated, but it would appear that the Reneau doctrine, as stated by the court in Harness, may be available to such employees to prove that they are in the course of their employment:

This exception, known as the Reneau doctrine, is generally interpreted to mean that an employee whose work entails travel away from the employer's primary premises is held to be in the course of employment during the trip, except when on a distinct personal errand.

Harness v. Southern Copyroll, Inc., 291 S.W.3d 299, 305 (Mo. App. 2009)(emphasis added).

In any event, it is clear that certain injuries occurring while going to and coming from work remain compensable under the 2005 amendments, and that an injury need not be sustained on an employer's premises to be compensable.

Finally, we would not find that the risk or hazard that resulted in employee's injuries was that of merely "descending steps" in general. Rather, as the court instructed in the Viley case, we would analyze the risk or hazard involved in descending the particular steps located at the premises where employee worked, including any defects or dangerous conditions.

Having provided all of the foregoing clarifications, however, we ultimately affirm the administrative law judge's award denying benefits in this case, because we are not persuaded that employee has met his burden of proving he suffered any identifiable trauma at work.

Employee testified that he fell down the stairs owing to inadequate lighting when leaving after his work shift on April 29, 2012, which ran from 4:00 p.m. to midnight. Employee initially testified that he was quite certain that he fell on April 29, 2012, but when confronted on cross-examination with the timesheet he filled out for the relevant period, employee agreed that it appeared that he did not work the 4:00 p.m. to midnight shift on April 29, 2012, but instead worked from 8:00 a.m. to 4:00 p.m. on April 29, 2012. Employee agreed that it was not dark at 4:00 p.m. The timesheet suggests (and we so find) that from April 16 to April 30, 2012, all of employee's shifts ended at 4:00 p.m.

Turning to the earliest medical treatment records, we find no mention of a workplace fall, on a stairway or otherwise. Rather, the May 9, 2012, record from St. Mary's Health Center suggests employee's left foot and ankle swelling and pain started 1 week ago "after having tight clothing around ankle," that "[t]he injury mechanism is unknown

(mossibly related to compression garments)" and that "[h]is pain began shortly after he removed these garments 1 week ago and noticed a red 'ring' around his ankle." Transcript, pages 194-95. The May 17, 2012, record from Dr. Tracy Reed suggests employee's left ankle pain and swelling "has existed for several days and began suddenly." Transcript, page 67.

We note the approximate one week lag time reflected in the May 9, 2012, St. Mary's treatment record from the onset of pain and employee's first seeking treatment for this condition. We note also that the only real explanation provided for this gap comes from the testimony of employer's medical expert, Dr. John Krause, who opined that employee likely suffered a non-work-related stress fracture, and that complaints of pain from such an injury would come on suddenly.

Considered individually, employee's failure to identify the specific date of his claimed injury or the absence in the contemporaneous treatment records of a history of a work accident would not necessarily be fatal to employee's claim. But when we consider all of these circumstances together, we are unable without speculation to make factual findings that would support a conclusion that employee suffered any identifiable "accident" as defined in § 287.020.2. We believe the legislature's requirement that an accident be shown to have taken place during a "single work shift" means, at minimum, that an employee provide evidence sufficient to support factual findings as to what happened and when. Here, there is considerable ambiguity regarding what happened, and a near total absence of any evidence to permit us to determine, with any reasonable degree of specificity, when employee suffered his left ankle fracture.

For these reasons, we conclude that employee has failed to meet his burden of proving he suffered an accident, and deny employee's claim.

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 August 13, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 30^{\text {th }} \qquad$ day of December 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: James Cotter

Injury No.: 12-046083

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

Before the

Employer: Nitelines USA, Inc.

Division of Workers' Compensation

Department of Labor and Industrial

Additional Party: n/a

Relations of Missouri

Jefferson City, Missouri

Insurer: Amerisure Mutual

Hearing Date: May 27, 2014

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? No
4. Date of accident or onset of occupational disease: alleged April 29, 2012
5. State location where accident occurred or occupational disease was contracted: alleged 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 fractured his left lower extremity when he fell on steps leading to a parking lot after work.
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: left lower extremity
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? None

Employee: James Cotter

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 418.13
3. Weekly compensation rate: $\$ 278.75 / \ 425.19
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: James Cotter

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

Employer: Nitelines USA, Inc.

Additional Party: n/a

Insurer: Amerisure Mutual

Injury No.: 12-046083

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter May 27, 2014. James Cotter (Claimant) was represented by attorney Ron Caimi. Nitelines USA (Employer) was represented by attorney Dennis Lassa.

All objections not expressly ruled on in this award are