| TEMPORARY AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Employee: | Paula Eberhard |
| Employer: | G4S/ Wackenhut Corporation |
| Insurer: | New Hampshire Insurance Company |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund (Open) |
| 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 allowing 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. |
| Discussion Injury arising out of and in the course of employmentThe administrative law judge determined that this travelling surveillance employee suffered an injury arising out of and in the course of her employment when, during a visit to a McDonald’s restroom, a heavy toilet paper dispenser fell on her left shoulder and face. Employer correctly notes that the administrative law judge did not specifically analyze these facts under certain recent and controlling case law. We write this supplemental opinion to provide that analysis.Section 287.020.3(2) RSMo provides, as follows:An injury shall be deemed to arise out of and in the course of the employment only if:(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and(b) It does not come 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. |
| The courts have interpreted the foregoing language to involve a causal connection test that employees must satisfy in order to prove that an injury has arisen out of and in the course of the employment.Johme v. St. John’s Mercy Healthcare, 366 S.W.3d 504, |
510-11 (Mo. 2012). The Johme court held that an employee who fell and suffered injuries when her foot slipped off her sandal while making coffee "failed to meet her burden to show that her injury was compensable because she did not show that it was caused by risk related to her employment activity as opposed to a risk to which she was equally exposed in her normal nonemployment life." Id. at 512.
Here, we agree with the administrative law judge's determination that employee's injuries resulted from a risk related to and specific to her employment activities on November 3, 2011, and one to which she was not equally exposed in her normal nonemployment life. This is because employee was required to use public restrooms owing to the unique nature of her work. Employer places much emphasis on the fact that employee exercised a personal choice to visit a McDonald's restroom as opposed to some other restroom. We find this fact largely irrelevant.
We believe it obvious (and so find) that the use of public restrooms exposes one to risks greater than those associated with the use of private facilities. The high-volume use of public restrooms creates increased maintenance problems over which the visitor has no control and of which a visitor is less likely to be aware. This is evidenced by the specific facts of this case, in that the McDonald's restaurant was very busy when employee visited, and the manager told employee she was aware of the faulty toilet paper dispenser, but had not had time to correct it. And, although workers would have some exposure to the risks associated with the use of public restrooms in normal, nonemployment life, the duties of employee's work for employer effectively necessitated an increased reliance upon the use of such facilities, in that employee did not report to an identified, regular, or established worksite to perform her duties; instead, the nature of her work involved travelling.
It would also appear (and we so find) that employee was attempting to mitigate the risks associated with the use of public restrooms by choosing one which, based on her experience, was more likely to be clean and well-maintained. Of course, to the extent employer's emphasis on employee's choice to visit McDonald's amounts to an argument that employee was partially at fault in causing her injuries, such arguments are unavailing under a workers' compensation system that specifically renders considerations of negligence irrelevant in determining employer's liability. See § 287.120.1 RSMo.
Nor do we deem it particularly relevant that employee's injuries came from a risk or hazard attendant to a condition of a premises other than employer's. In 2005, the legislature deleted previous language in § 287.020.5 RSMo declaring the Missouri Workers' Compensation Law did not cover workers "except while engaged in or about the premises where their duties are being performed," with the result that there is no longer any requirement that injuries occur on or about an employer's premises to be compensable. In both Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo. App. 2012) and Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. 2014), the courts held that injuries that were not sustained on the employer's premises were nevertheless compensable. In both cases, the courts noted that although those employees were not on their employers' premises, they sustained their injuries while "on the job." Duever, 371 S.W.3d at 868; Dorris, 436 S.W.3d at 593. The same is true here, in that employee
stopped to use the restroom at McDonald's during the approximately three-hour compensated trip from southeast Missouri back to St. Charles where she lived. It is uncontested that employer paid employee for all of her travel time and did not deduct pay for restroom or other breaks during the course of her travels. We find that employee was on the job when she sustained her injuries.
We note also that from an "unequal exposure" standpoint at least, the facts at issue herein may be compared to those in Harness v. Southern Copyroll, Inc., 291 S.W.3d 299 (Mo. App. 2009), and for this reason we agree with the administrative law judge's reliance on that decision. In Harness, the hazard resulting in injury (a motor vehicle accident) was not unique to the employment but rather a hazard to which almost all workers are regularly exposed in normal, non-employment life. Although the Harness court primarily addressed and directed its holding to the application of 2005 legislative amendments to $\S 287.020 .5$ RSMo which exclude compensation for certain injuries sustained in subsidized vehicles (a provision which is obviously not at issue in this matter) the court did ultimately hold that the employee's injuries "arose out of and in the course of employment," suggesting the court deemed the employee to have satisfied the requirements of $\S 287.020 .3(2)$ (b). Id. at 306.
In light of the Harness decision, an employee need not establish that a risk or hazard resulting in injury was unique to an employment (or specific to a workplace) in order to meet the requirements of $\S 287.020 .3(2)$ (b). Rather, the burden of proving unequal exposure may be sustained by a showing that the duties of an employment resulted in a greater frequency of exposure to a risk, even a common risk. Such analysis is in keeping with the Missouri Supreme Court's emphasis on unequal exposure (as opposed to the categorization of various hazards or risks) evident in Johme and Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671 (Mo. 2009).
We find that employee's injuries came from the risk or hazard of using public restrooms. We find that employee's work for employer exposed her to a greater frequency of using public restrooms, and the risks and hazards attendant thereto. We find that employee's injuries did not come from a hazard or risk unrelated to the employment to which workers would be equally exposed outside of and unrelated to the employment in normal non-employment life. We conclude, therefore, that employee's injuries arose out of and in the course of her employment for purposes of $\S 287.020 .3(2)$ (b).