Judy West v. Phoenix Home Care

male any additional showing in order to demonstrate her injuries arose out of and in the course of the employment.

For purposes of this case, however, we wish to make clear that we are convinced that employee's injuries were sustained in the course of her employment under any measure. It is uncontested that employee's work for employer required travelling to the homes of employer's clients. It is further uncontested that, in recognition of this condition of her employment, employer paid employee for any travel over 30 miles. Under the Harness decision, employee's injuries would have been sustained in the course of her employment if they had been the product of a motor vehicle accident occurring during her compensated car ride to the client's home. Employer argues, in effect, that employee was not in the course of her employment from the time she exited her vehicle to the time she clocked in because she hadn't yet performed any work activities, comparing this case to Henry v. Precision Apparatus, Inc., 309 S.W.3d 341 (Mo. App. 2010).

We are not persuaded. Employer's narrow definition of employee's work activities runs contrary to the uncontested circumstances of her employment, which required travel to and from the homes of employer's clients; moreover, the performance of employee's job duties necessitated navigating the dangerous condition of the premises where her work was to be performed. In light of these circumstances, the Henry decision is clearly distinguishable. The Henry employee, a mechanic, was "volunteering his assistance to a friend engaged in a personal vehicle repair" at the time he sustained his injuries, and thus was engaged in a wholly non-work-related activity. 309 S.W.3d at 341-42. Here, on the other hand, there is no evidence of any deviation from employee's essential work activity of travelling to the home of employer's client.

With regard to "clocking in," the Commission has previously held (and the court specifically indicated in Henry) that an employee does not necessarily have to be "on the clock" to sustain a compensable injury. See Curtis Leible, Injury No. 06-094098 (LIRC, March 5, 2010), affirmed without opinion by Leible v. TG Mo. Corp., 331 S.W.3d 732 (Mo. App. 2011). See also the more recent case of Scholastic, Inc. v. Viley, 452 S.W.3d 680 (Mo. App. 2014), wherein the court upheld an award of benefits to an employee who fell while traversing his employer's parking lot at the end of the day.

We find that travelling to the homes of employer's clients was one of employee's essential duties for employer, and conclude that she was in the course of performing those duties when she fell. To accept employer's argument to the contrary would require us to artificially carve out a "zone of non-compensability" somewhere between a travelling employee's arrival at the premises and her embarking upon the duties to be performed there. We find no support for such a construct in the plain language of Chapter 287, in case law, or in sound public policy.

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

The award and decision of Administrative Law Judge Margaret D. Landolt, issued December 24, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

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

Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of May 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Judy West

Departments: N/A

Employer: Phoenix Home Care

Additional Party: N/A

Insurer: Missouri Merchants and Manufacturing Association

Hearing Date: October 20, 2014

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

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: January 31, 2104
5. State location where accident occurred or occupational disease contracted: St. Louis venue
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: Employee was entering a client's home when she slipped on some icy steps and fell.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Low back and right leg
14. Compensation paid to-date for temporary disability: 0
15. Value necessary medical aid paid to date by employer/insurer? 0
16. Value necessary medical aid not furnished by employer/insurer? N/A

Employee: Judy West

1. Employee's average weekly wages: $\ 525.00
2. Weekly compensation rate: $\$ 350.00 / \ 350.00
3. Method wages computation: By stipulation

1. Amount of compensation payable:

TO BE DETERMINED

TOTAL:

TO BE DETERMINED

Each of said payments to begin and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Judy West

Dependents: N/A

Employer: Phoenix Home Care

Additional Party: N/A

Insurer: Missouri Merchants \& Manufacturing Association

Injury No.: 14-006600

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on October 20, 2014 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Judy West ("Claimant") was represented by Mr. Sam Eveland. Phoenix Home Care ("Employer") and its insurer Missouri Merchants and Manufacturing Association were represented by Mr. Matthew Murphy. Due to the temporary nature of these proceedings, Mr. Eveland did not request a fee.

The parties stipulated that on or about January 31, 2014 Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Claimant's average weekly wage at the time of injury was $\ 525.00 resulting in a rate of $\ 350.00 for both Temporary Total Disability ("TTD") and Permanent Partial Disability ("PPD") benefits; and Employer has denied the claim and paid no benefits.

The issues to be resolved are whether Claimant sustained an accidental injury arising out of and in the course of employment on or about January 31, 2014; and liability of Employer to provide future medical treatment.

On January 31, 2014 Claimant was employed by Employer as an LPN. Employer is in the business of providing home health services. Employer's office is in Maryland Heights, Missouri. Claimant lives in Washington, Missouri.

On January 31, 2014, Claimant traveled from her home in Washington, Missouri to Fenton, Missouri to perform home health services for a patient. Claimant was scheduled to begin working at 7:00 P.M., but was running late, and didn't clock in until 7:15 P.M. It had been icy and snowing that day. Claimant drove her own car, and it is an 83 mile round trip. Employer compensated Claimant for her mileage.

When Claimant arrived at the patient's home, she got out of her car, and approached the residence which was a trailer. As she was going up some wooden steps that were hooked to the front door of the trailer, she slipped on some ice and fell, landing on her back and bottom. Claimant was not yet on the clock when she fell, and had not begun performing any of her patient care job duties at the time of the accident.

After Claimant fell, she remained on the ground for a while, and then was able to get