Marth Sampley-Riggins v. My Camp

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

The award and decision of Administrative Law Judge Maureen Tilley, issued September 30, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 14th day of May 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the Commission should reverse the award of the administrative law judge.

I disagree with the majority's conclusion that the testimony from Dr. Schwartz is sufficient to demonstrate that employee's accident and resulting injuries arose out of and in the course of her employment. Dr. Schwartz admitted that he reviewed (at most) only a handful of employee's medical records, that he never even interviewed her, and that he based his decision solely on employee's timesheets and his own assumptions about employee's activities during her time off. As employee's counsel conceded at oral argument, there is no evidence on this record of employee's normal sleep patterns in her off-work time. It may be that employee routinely sleeps less than 6 hours per day. If so, Dr. Schwartz can hardly fault employee's work schedule for not permitting her enough time to sleep. Absent evidence of employee's normal sleep schedule, we cannot rule out the possibility that employee's accident was more the product of her personal choices in her normal nonemployment life than any risk or hazard resulting from her work schedule. Given the record before us, I believe it is clear that employee has failed to conclusively identify the hazard or risk that caused her accident, and that she has thus failed to meet her burden of proof under Porter v. RPCS, Inc., 402 S.W.3d 161 (Mo. App. 2013).

I acknowledge that in the recent case of Gleason v. Treasurer of the State, WD77607 (Mar. 3, 2015), the court distinguished the Porter case, and held that when an employee's injuries are the product of falling from a height to which the worker would not have been equally exposed in normal non-employment life, the employee is not precluded from an award of benefits merely because the employee is unable to remember specifically why she fell. Here, however, there are no such unusual circumstances. Employee did not fall 25 feet from the top of a railcar, but in a kitchen at the home of employer's client.

I would also note that in distinguishing Porter, the Gleason court stated that the activity that caused the employee's injuries in Porter was "walking on a smooth surface." Gleason, at pg. *12. But the actual holding in Porter was that the employee "failed to prove that she sustained injuries arising out of and in the course of her employment because she failed to identify a specific risk or hazard that caused the accident. Porter failed to establish how she fell and, therefore, failed to show that she was exposed to an unusual risk of injury that was not shared by the general public." Porter, 402 S.W.3d at 174 (emphasis added). The employee in Porter failed to prove her case not because her injuries resulted from walking on a smooth surface, but because she was unable to establish how or why she fell. That is precisely the situation before us. Absent a showing of an increased risk of injury as was present in the Gleason case, I do not believe we can use Dr. Schwartz's speculative opinions to fill in the gaps in employee's own testimony regarding what happened to her.

I would reverse the award and decision of the administrative law judge and enter an award denying compensation. Because the majority has determined otherwise, I respectfully dissent.

Employee: Martha (Sampley) Riggins

Injury No. 11-019035

Dependents: N/A

Employer: My Camp

Insurer: Missouri Employers Mutual Insurance

Hearing Date: July 10, 2014

Checked by: MT/rf

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? March 16, 2011.
5. State location where accident occurred or occupational disease contracted: Perry County, Missouri.
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? Yes.
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 happened or occupational disease contracted: The employee was injured when she fell toward the end of her second consecutive 17.5 hour shift.

On July 10, 2014, the employee, Martha (Sampley) Riggins, appeared in person and with her attorney, Sarah Elfrink, for a hearing for a final award. The employer-insurer, My Camp, was represented at the hearing by their attorney, Kenneth L. Voigt. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These stipulations and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Covered employer: My Camp (employer) was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Employers Mutual Insurance (insurer).
2. Covered employee: On March 16, 2011 Martha (Sampley) Riggins (employee) was an employee of My Camp and was working under the Workers' Compensation Act.
3. Notice: The employer had notice of the employee's accident.
4. Statute of limitations: The employee's claim was filed within the time allowed by law.
5. Average weekly wage and rate: The employee's average weekly wage was $\ 489.98, resulting in a compensation rate of $\ 326.67 for temporary total disability benefits and permanent partial disability benefits.
6. Medical aid furnished by employer-insurer: The employer-insurer paid $\ 0 in medical aid.
7. Temporary disability paid by employer insurer: The employer-insurer paid $\ 0 in temporary disability benefits.

1. Accident: Whether on March 16, 2011, the employee sustained an accident or occupational disease arising out of and in the course of her employment.
2. Medical causation: Whether the employee's injury was medically causally r