| FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Injury No. 11-110863 |
| Employee: | David Wright |
| Employer: | Roto-Rooter Services Company (Settled) |
| Insurer: | Zurich American Insurance Company (Settled) |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ We have read the briefs, reviewed the evidence, 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 by this supplemental opinion.We offer this supplemental opinion to add additional legal authority to the administrative law judge’s sound reasoning and to address arguments raised in the parties’ briefs. |
| Discussion Employee injured his back when the chair in which he was seated collapsed. At the time of the chair collapse, employee was seated on a chair owned by employer during his lunch break on employer’s premises in a lunch room provided by employer. Employee may or may not have been clocked in at the time of the chair collapse but, as will be seen, it makes no difference.The parties stipulated that the incident during which employee’s chair collapsed was the prevailing factor in causing employee’s injury. Consequently, the issue in this case is confined to the application of subsection 287.020.3(2)(b). Subsection 287.020.3(2) states "[a]n injury shall be deemed to arise out of and in the course of the employment only if… (b) [i]t 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 Missouri Supreme Court has explained that § 287.020.3(2)(b) provides the test for determining if there exists a causal connection between the injury at issue and the employee’s work activity. ${ }^{2}$ |
^{1} Statutory references are to the Revised Statutes of Missouri 2010, unless otherwise indicated. ^{2} Miller v. Mo. Highway & Transp. Comm'n, 287 S.W.3d 671 (Mo. 2009); Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012).
The Court of Appeals for the Western District of Missouri recently analyzed the case law regarding the proper application of $\S 287.020 .3(2)$ (b) and set forth a simple two-step process to achieve the proper application:
The "causal connection" standard announced in Miller and further addressed in Johme...first requires identification of the risk source of a claimant's injury, that is, identification of the activity that caused the injury, and then requires a comparison of that risk source or activity to normal nonemployment life. ${ }^{3}$
Identification of risk source/identification of activity that caused the injury
Employee sustained his injury when the chair upon which he was seated collapsed. We identify the risk source of employee's injury as the collapse of this particular chair belonging to employer.
Comparison of the risk source or activity to normal nonemployment life
This second step of the causal connection test requires us to quantitatively compare employee's work exposure to the risk of employer's chair collapsing under him to employee's non-work exposure to the risk of employer's chair collapsing under him. ${ }^{4}$
The Second Injury Fund argues that employee "was equally exposed to a chair collapsing at work as he was in his nonemployment life." The Second Injury Fund's argument fails. We are not concerned with whether employee was equally exposed to the risk of any chair collapsing under him in his non-employment life. We are concerned with whether employee was equally exposed to the risk of this chair collapsing under him. ${ }^{5}$
The Second Injury Fund also suggests that employee had to prove that employer's collapsing chair was defective as an element of his case in chief. Again, the Fund's argument fails. There is no statutory requirement that employee prove the chair was defective. In any event, it is undisputed that employer's chair collapsed. The ordinary purpose of a chair is to sit upon it. The expectation is that a chair will maintain its structure when it is used for its ordinary purpose. The chair in this case did not perform up to expectations. Under these circumstances, we think it is reasonable to infer the chair was in some way dangerous or defective and we so find.
We find that employee's back injury came from a hazard or risk related to work employer's collapsing chair. Employee was exposed to the risk of employer's collapsing
[^0]
[^0]: ${ }^{3}$ Gleason v. Treasurer, No. WD77607 (Mo. App. W.D., March 3, 2015)(mandate issued March 25, 2015).
${ }^{4}$ We are cognizant that some courts have compared the injured worker's non-work exposure to the risk of injury to the injured worker's work exposure to the risk. In fact, the statute directs us to quantitatively compare the non-work exposure of workers in general to the risk of this chair collapsing with employee's work exposure to the risk of the chair collapsing. See § 287.020.3(2)(b) RSMo which conditions compensation on a finding that the injury did not come from a "hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to employment..." In the instant case, employee's work exposure to the failing chair was greater than both his non-work exposure to the failing chair and the non-work exposure of workers in general to the failing chair.
${ }^{5}$ See Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. 2014); Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo. App. 2012). See also, Scholastic, Inc. v. Viley, No. WD77546 (Mo. App. W.D., October 28, 2014)(app. for transfer to S. Ct. denied February 3, 2015).
Injury No. 11-110863
Employee: David Wright
- 3 -
chair only at work. We agree with the administrative law judge's finding that employee's injury did not come from a hazard or risk unrelated to his employment to which employee (or workers in general) would have been equally exposed outside of and unrelated to his employment in his normal nonemployment life.
The Second Injury Fund also contends compensation must be denied because "employee failed to meet his burden of proof that he was working at the time of his accident."
Other language in the Workers' Compensation Law authorizes compensation for injuries sustained by workers even though they are not actively performing their job duties. In the 2005 amendments to the Workers' Compensation Law, the legislature explicitly preserved the extension of premises doctrine as regards employee injuries sustained on property owned or controlled by employer. Inasmuch as such cases, by definition, involve injuries sustained prior or subsequent to the actual performance of job duties, the legislature clearly contemplated and accepted compensability of injuries sustained as a result of work-related risks even though employee was not at the time engaged in the performance of job duties (e.g. going to and coming from employer's lunchroom or bathroom).
Recent Missouri cases have applied the retained extension of premises doctrine and confirmed that compensation is not limited to workers injured while actively engaged in their duties (i.e. "working"). In *Scholastic, Inc. v. Viley*, the Court held that "[p]ursuant to the plain language of section 287.020.5, the extended premises doctrine is not totally eliminated but is now limited to situations where the employer owns or controls the area where the accident occurs." The existing extension of premises doctrine permits recovery of workers' compensation benefits for injuries sustained by workers going to or coming from work if (a) the injury-producing accident occurs on premises which are owned or controlled by the employer, and (b) that portion of such premises is a part of the customary, expressly or impliedly approved, permitted, usual and acceptable route or means employed by workmen to get to and depart from their places of labor and is being used for such purpose at the time of the injury. Mr. Viley was awarded compensation for an injury he sustained when he fell on ice on a parking lot controlled - but not owned - by employer while he was walking to his car at the conclusion of his work shift.
In the instant case, employee sustained injury while he was eating his lunch on property owned and controlled by employer. Applying the Second Injury Fund's theory, had employee been injured by a work risk (e.g. a wet floor) while walking from his work station to his lunchroom chair his injury would be compensable under the extension of premises doctrine because his injury would have occurred on employer-owned property while he was coming from work. The same would be true if employee had been injured by a work risk while walking from his lunchroom chair to his work station because employee would have been going to work. The Second Injury Fund would have us carve out artificial islands of non-compensability at the workplace, which islands have indistinct geographic and temporal boundaries. We deem such an approach impractical, inconsistent with the purposes of the Workers' Compensation Law, and unsupported by statutory language. As noted above, "arising out of and in the course of employment" is defined by § 287.020.3(2).
452 S.W.3d 680, 684 (Mo. App. 2014).
RSMo. This is the test for compensability in this case according to the holding in Johme v. St. John's Mercy Healthcare. ${ }^{7}$ Under strict construction, no additional burden of proof can be imposed. There is no provision of the Law that requires employee to prove he was "working" at the time of his accident.
We believe the purposes of the workers' compensation law are best-achieved by including within the sphere of compensability injuries such as the one sustained by employee where it is clear the injury occurred because employee was at work and not merely while employee was at work. ${ }^{8}$ Employers expect the protection of the exclusive remedy of workers' compensation for injuries sustained by hazards present in the workplace and employees expect a speedy and certain remedy for injuries sustained as a result of those hazards.