Jackie Pressley v. Homewood Suites

on this record as involving a level of physical stress or strain to which employee would not be equally exposed in her normal nonemployment life. Dr. Feinstein persuasively testified that it would be unusual to suffer an injury from a low-grade activity such as this, and Dr. Volarich did not specifically address the question of unequal exposure. Given this record, we find that the simple action of wringing out a wet rag would not involve forces sufficient to cause employee's injuries if the tendons and bone structure of employee's left wrist were not already compromised. We believe our legislature specifically contemplated such injuries-and declared that they would not be compensable-when they instructed that "[a]n injury is not compensable because work was a triggering or precipitating factor." § 287.020.2 RSMo.

Employee did testify that her job duties involved repetitive and strenuous use of her hands and wrists, and that she would often have pain in her hands at the end of a workday. But employee does not provide expert medical testimony identifying such duties as the prevailing factor causing a repetitive motion injury of the type contemplated under § 287.067.3 RSMo, and has made clear, in both her brief and at oral argument in this matter, that she is pursuing an accident theory of injury based on the isolated February 28, 2009, rag wringing incident. "An injury will not be deemed to arise out of employment if it merely happened to occur while working but work was not a prevailing factor and the risk involved ... is one to which the worker would have been exposed equally in normal non-employment life." Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671, 674 (Mo. 2009). Because employee has failed to convince us that the activity of wringing out a wet rag involved a risk or hazard to which she would not have been equally exposed in her normal nonemployment life, we are convinced that " $[t]$ he injury arose during the course of employment, but did not arise out of employment." Id.

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

The award and decision of Administrative Law Judge Linda J. Wenman, issued August 15, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day of June 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge should be reversed in favor of an award of permanent partial disability benefits from both employer and the Second Injury Fund.

First, I wish to register my disagreement with the administrative law judge's determination that employee failed to demonstrate that the accident of February 2009 was the prevailing factor causing her to suffer a compensable injury of the left wrist. Dr. Volarich testified that the accident was the prevailing factor causing employee to suffer a severe strain injury and aggravation of arthritic change at the distal ulna with a corresponding 30\% permanent partial disability. Dr. Feinstein, meanwhile, did not address the question whether employee suffered a severe wrist strain or aggravation of arthritic change at the distal ulna resulting in permanent partial disability. Instead, his ultimate causation opinion focused exclusively on the question whether the accident could be deemed the prevailing factor causing a rupture of the extensor tendon to the left index finger. Thus, Dr. Volarich's opinion that the February 2009 accident caused employee to suffer a severe strain injury and aggravation of arthritic change at the distal ulna resulting in permanent partial disability stands wholly unrebutted on this record.

Notably, Dr. Feinstein agreed, in a letter dated November 10, 2010, that employee "injured the wrist at work in February of 2009 while wringing out a rag," and that "the tendon was partially torn as a result of the initial rag wringing incident of February 2009." Transcript, page 526 (emphasis added). At the request of employer's counsel, Dr. Feinstein authored a letter dated May 1, 2011, wherein he purported to "clarify" his earlier causation opinion and stated he believed the rag wringing incident was not the prevailing factor causing employee's "injury." Transcript, page 524. Again, though, it appears the only "injury" to which Dr. Feinstein refers in the context of a prevailing factor analysis is the extensor tendon rupture. In fact, on cross-examination, Dr. Feinstein confirmed that he believed employee suffered a partially torn tendon as a result of the February 2009 accident.

It thus appears to me that we are faced with uncontested medical opinions from both Dr. Volarich and Dr. Feinstein that the rag-wringing incident caused employee to suffer an injury in the form of either: (1) a severe strain and aggravation of arthritic change at the distal ulna as identified by Dr. Volarich; or (2) a partially torn tendon as identified by Dr. Feinstein. The administrative law judge thus erred as a matter of law in finding that employee failed to meet her burden of proof with respect to the issue of medical causation, as it is well-settled in Missouri that "[t]he commission cannot find there is no causation if the uncontroverted medical evidence is otherwise." Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465, 470 (Mo. App. 2004).

I also disagree with the majority's conclusion that employee failed to satisfy the unequal exposure requirement of $\S 287.020 .3(2)$ (b) RSMo, because the majority fails to apply the

Improve: Jackie Pressley

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relevant and controlling case law on the issue. In *Pile v. Lake Reg'l Health Sys.*, 321 S.W.3d 463 (Mo. App. 2010), the Missouri Court of Appeals, Southern District, held that:

> [T]he application of [§ 287.020.3(2)(b)] involves a two-step analysis. The first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and injury is integral to the performance of a worker's job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life.

*Id.* at 467.

I acknowledge that in the case of *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 510-11 (Mo. 2012), the Supreme Court of Missouri focused on the unequal exposure requirement (or second step of the test set forth above), but I do not read the *Johme* decision to diminish the precedential value of *Pile*, for several reasons. First, and most importantly, our Supreme Court could have simply overruled *Pile* in the *Johme* decision if it had wished to do so, but it did not. That our highest court declined to overrule a decision which the Missouri Court of Appeals, Eastern District, discussed in its decision ordering a transfer, see *Johme v. St. John's Mercy Healthcare*, ED96497 (Oct. 25, 2011), and upon which the Commission relied in its award, implies that the Court saw some wisdom in the *Pile* approach, and wished to leave that precedent undisturbed.

Second, the *Johme* court did not purport to shift the analysis away from the first-step *Pile* question whether a risk is related or unrelated to employment, but rather exhorted us to take better care in identifying the actual risk at issue: the Commission had considered the *Johme* employee's activity of making coffee as the risk that caused her injuries, and analyzed whether making coffee was "related" to her work, but the Court defined the relevant risk as "turning and twisting her ankle and falling off her shoe." *Id.* at 508, 511. Having appropriately defined the risk, the Court proceeded to the unequal exposure analysis, as there was no need to discuss the first-step *Pile* question whether the employee's turning and twisting her ankle was integral to her work as a billing representative: it clearly was not.

In contrast, here we have a risk source—wringing out a wet cleaning rag—that was not only related to employee's work for employer, but integral thereto: employee was a housekeeper whose duties frequently required her to wipe down surfaces with cleaning rags. I find that the risk source of employee's injury was directly related to her work for employer as a housekeeper; as a result, I conclude that employee's injury did not come from "a hazard or risk unrelated to the employment