Rifet Obic v. St. Louis Antique Lighting Co.

his lunch at Lee's Chicken. Nothing about employee's workplace or work duties necessitated his leaving the workplace to eat lunch at a fast food restaurant. There is no evidence that the employment was located in an area more prone to wind gusts than elsewhere. Given these considerations, we must conclude that employee's injuries 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. See Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012).

We affirm and adopt the award of the administrative law judge to the extent it is not inconsistent with our supplemental findings, analysis, and conclusions herein.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued July 25, 2014, is attached and incorporated by this reference.

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:

Secretary

Employee: Rifet Obic

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

Employer: St. Louis Antique Lighting Co.

Additional Party: Second Injury Fund (SIF)

Insurer: Secura Insurance

Hearing Date: May 13, 2014

Injury No.: 11-044808

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: May 23, 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 fell on his way back to work and fractured his right elbow.
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 upper extremity at the elbow
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: Rifet Obic

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 681.46
3. Weekly compensation rate: $\$ 454.31 / \ 418.58
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: Rifet Obic

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

Employer: St. Louis Antique Lighting Co.

Additional Party: SIF

Insurer: Secura

Injury No.: 11-044808

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 13, 2014. Rifet Obic (Claimant) was represented by attorney Frank Niesen. St. Louis Antique Lighting Co. (Employer) was represented by attorney Dennis Lassa. The SIF was left open.

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

Claimant alleges he fell in the course and scope of his employment and injured his elbow. Employer denies liability.

The parties stipulated to the following:

1. Although the claim for compensation lists an injury date of May 12, 2011, the alleged date of injury is May 23, 2011.
2. Employer and Claimant were acting under the provisions of the Missouri Workers' Compensation law on the alleged date of injury.
3. Employer's liability was fully insured by Secura.
4. Employer had notice of the alleged injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage was $\ 681.46 and his rates for TTD and PPD are $\ 454.31 and $\ 418.58 respectively.
6. Employer has paid no benefits to date.

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

1. Accident
2. Arising out of and in the course of employment

1. Medical causation
2. Future medical care
3. TTD from May 23, 2011-August 19, 2011
4. Permanent disability

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 60 year-old, right-handed, male who is divorced and lives with his daughter. Claimant was born and raised in Bosnia, where he graduated from high school and had some technical training in the textile industry. Upon arrival in the United States, he attended one month of English language classes and became a United States citizen. Claimant can speak English to some extent, but testified with the assistance of a translator.
2. Claimant worked at a textile plant in Bosnia for 21 years and supervised about 30 people. After the Bosnian civil war, Claimant was in a refugee camp in Croatia until he immigrated to the United States in November 1996. He came directly to St. Louis.
3. Claimant's first job in St. Louis was for a small plastics company. He also worked at the Holiday Inn Hotel washing dishes and at Schnucks as a stocker. Claimant worked for Employer from February 1998 through May 23, 2011. He cleaned, polished, and restored historic light fixtures. Claimant has not worked since the accident.
4. Claimant worked eight hour shifts, from 8 am through $4: 30 \mathrm{pm}$. He drove to work and parked in the lot designated by Employer for employee parking. He clocked in and out at the beginning and end of the day, but employees were not required to clock in and out when they went to lunch. Claimant got two 15 minute breaks and one 30 minute, unpaid, lunch break each day.
5. The plant did not have vending machines or a cafeteria, but there was a lunch area with a refrigerator, microwaves, coffee, and seating for 24 . Employees also had their own lockers. Many employees brought their lunches and ate in the lunch room. Claimant testified he was free to do whatever he wanted during his 30 minute lunch break, and he almost always went out to lunch. The closest restaurants were Lee's Chicken and Taco Bell. Claimant walked to one of these restaurants during his lunch break almost every day and ate either in the restaurant or in his car.
6. Employer's plant is on Skinker Blvd. To get to Lee's and Taco Bell, Claimant walked out of the plant, turned left, walked north on Skinker, passed another business, and crossed Vernon Avenue. Lee's Chicken is at the corner of Vernon and Skinker.

1. On May 23, 2011, Claimant decided to go buy his lunch at Lee's Chicken and bring it back to the plant to eat because the weather was bad. He thought a tornado may be coming, and it was safer to be in the plant than at Lee's. By the time he got his food and came out of the restaurant, the weather had worsened, and the wind was blowing strongly. As he was crossing Vernon Avenue to return to the plant, Claimant felt the wind pick him up and push him down. He fell forward in the street, onto his right arm.
2. Claimant agreed he fell on a public street, and not on Employer's property. Claimant was not picking up food for Employer or any co-workers, and no one from Employer instructed him to go to Lee's. He was not working at the time of his fall, and he was not running an errand for Employer.
3. Claimant had difficulty getting up after he fell. He had pain in his hip, leg, and arm. An employee of Lee's helped him up, carried him back to Lee's, and called the police and firefighters. This all occurred within about 15 minutes of the time Claimant left the plant to get lunch.
4. The ambulance came and took Claimant to St. Mary's Emergency Room. He had complaints in his right arm, elbow, left leg, and hip. He was diagnosed with an intraarticular comminuted fracture of the right radial head, and was told to follow-up with a specialist. Claimant returned to the Emergency Room a few days later with complaints of left leg pain. He was diagnosed with a hematoma and discharged. Claimant testified he could not walk at all for two to three weeks.
5. Claimant saw Dr. Perry who treated him conservatively. He noted Claimant's left leg symptoms had resolved, but he continued to have tenderness and reduced motion in his elbow. He released Cla