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.
This claim results from an unexplained single-car accident that occurred on April 11, 2011, on Highway 71 south of Joplin, Missouri. The testifying experts agree, and it appears to be wholly uncontested by the parties, that it is impossible to determine why employee's car left the road and traveled over a 30 -foot cliff at highway speed. I have nothing but utmost sympathy for claimant and for employee's family and friends as a result of their grievous loss. But I must respectfully disagree that these facts establish a compensable workers' compensation claim following the 2005 amendments to the Missouri Workers' Compensation Law. The courts have recently made clear that a compensable workers' compensation injury must be shown to have occurred because an employee was at work, and not merely while the employee was at work. Pope v. Gateway to the W. Harley Davidson, 404 S.W.3d 315, 320 (Mo. App. 2012). Because I am convinced claimant failed to make such a showing, I believe the claim must be denied.
At the outset, I wish to briefly address insurer's ${ }^{1}$ arguments, neither of which I find persuasive. First, insurer suggests that claimant failed to show that employee was in the course of his employment at the time of the motor vehicle accident. But employee was a small-business owner driving a work vehicle on a Monday in an area where he was known to make sales calls and perform other professional duties. Claimant provided persuasive testimony from witnesses who were able to establish employee's characteristic behaviors and work habits, and he appears by all accounts to have been very active and involved in the business, and to have very rarely taken personal time away from work during the typical work week. In my view, the circumstantial evidence is overwhelming that employee was "at work" when the accident occurred. ${ }^{2}$
Second, insurer argues that employee's death resulted directly or indirectly from an idiopathic cause, and is therefore not compensable under § 287.020.3(3) RSMo. Insurer highlights the weakness in its own argument, though, when it points out that the record permits only speculation as to the cause of employee's motor vehicle accident or death, because it was insurer's burden to establish, as an affirmative defense premised on a factual proposition, that employee's injuries resulted from an identifiable idiopathic cause. See § 287.808 RSMo and Taylor v. Contract Freighters, Inc., 315 S.W.3d 379 (Mo. App. 2010).
Having provided the foregoing comments, I note that the parties asked the administrative law judge to determine whether employee's motor vehicle accident arose out of and in the
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[^0]: ${ }^{1}$ Although the appellant identifies itself before the Commission as the "employer/insurer," it does not appear to me from this record that employer disputes this claim, as the deceased employee was the "sole owner" (i.e. sole shareholder) of the employer, Trees Unlimited, Inc., Transcript, page 30, and the claim is pursued by his surviving spouse (i.e. his apparent successor in interest).
${ }^{2}$ My own past experience running a business strongly suggests to me that there are very few occasions when a small-business owner is not at work.
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course of his employment. Transcript, page 8. The relevant statutory inquiry, therefore, is § 287.020.3(2) RSMo, which 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.
Remarkably, the parties, the administrative law judge, and now the majority of the Commission have overlooked the relevant and controlling statutory test set forth above. No less authority than the supreme court of our state has made clear that any inquiry into whether an employee's injuries arose out of and in the course of employment must turn on the foregoing language. See Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 51112 (Mo. 2012); Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671, 674 (Mo. 2009).
Turning to subsection (a), I am convinced that claimant has failed to prove that the motor vehicle accident was the prevailing factor causing employee's death. Although the administrative law judge (quite reasonably) credited the testimony from claimant's expert Dr. Stein that the trauma to employee's body from the motor vehicle accident would have been sufficient to cause employee's death, the statute requires a showing that the accident was the prevailing factor that actually caused employee's death. As insurer correctly points out in its brief, Dr. Stein stopped short at providing an opinion that the trauma from the motor vehicle accident was the prevailing factor that caused employee's death. Given the absence of a forensic autopsy in this case, as well as the testimony from Dr. Mitchell that employee may have been in the throes of a serious medical emergency (or may already have been deceased) at the time of the impact, it appears to me that the cause of employee's death is not a matter for lay understanding.
Consequently, claimant was required to provide expert medical testimony to meet her burden of proof. "Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." Gordon v. City of Ellisville, 268 S.W.3d 454, 461 (Mo. App. 2008). Because claimant has failed to provide an expert medical opinion that the motor vehicle accident was the prevailing factor causing employee's death, I am convinced that claimant has failed to satisfy the requirements of subsection (a) set forth above, and that the claim must be denied as a result.
However, even if the testimony from Dr. Stein is deemed sufficient to satisfy claimant's burden of proof under subsection (a) above, I believe claimant has failed to satisfy subsection (b). The courts have interpreted the language of this subsection to involve a causal connection test that employees must satisfy in order to prove that an injury has
an ises not of and in the course of employment. See Johme, 366 S.W.3d at 510-11, quoting Miller, 287 S.W.3d at 674. In the Johme decision, the Supreme Court of Missouri held that an employee who fell while making coffee at work did not sustain injuries that were compensable under workers' compensation. Id. at 512. The Johme employee fell in her office kitchen after making a new pot of coffee, per workplace custom, to replace a pot of coffee from which she had taken the last cup. Id. at 506. The Johme court found that the risk or hazard that resulted in the employee's fall was "turning and twisting her ankle and falling off her shoe." Id. at 511. The Court held that the employee "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 .
In so holding, and in specifically contrasting a "work-related risk" versus a "risk to which the employee was equally exposed" outside of work, the Johme court made clear that our analysis under $\S 287.020 .3(2)$ (b) must begin with an identification of the specific risk or hazard from which the employee's injuries came, followed by a quantitative comparison whether the employee was equally exposed to that specific risk in normal nonemployment life. Following the Court's reasoning, the result of that quantitative comparison will tell us whether the risk is related or unrelated to employee's work, and in turn, whether the employee's injuries were sufficiently causally connected to work, which will resolve the question whether an employee's injuries arose out of and in the course of employment.
Notably absent from the award of the administrative law judge is any identification of the risk or hazard that caused the motor vehicle accident of April 11, 2011. It appears to me that the record lacks any evidence whatsoever to support such a finding. As a result, this Commission is unable to perform the causal connection test identified by the court in Johme as determinative of the issue whether an employee's injuries have arisen out of and in the course of employment, and the claim fails under the relevant and controlling decision in Porter v. RPCS, Inc., 402 S.W.3d 161 (Mo. App. 2013). In Porter, the court determined that an 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." Id. at 174. The Porter decision recognizes the logical impossibility of performing the causal connection test mandated by $\S 287.020 .3(2)$ (b) where an employee fails to identify the injury-producing risk or hazard. In my view, the Porter decision is dispositive here and requires reversal of the administrative law judge's award.
I acknowledge the recent case of Gleason v. Treasurer of the State, 455 S.W.3d 494 (Mo. App. 2015), wherein the Court distinguished Porter and held that an employee who fell from the top of a railcar was not precluded from an award of benefits merely because he could not recall why he fell. I would note, however, that in distinguishing Porter, the Gleason court was operating under the assumption that the risk source that caused the employee's injuries in Porter was "walking on a smooth surface." 455 S.W.3d at 501. But the actual holding in Porter was that the employee "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." 402 S.W.3d at 174 (emphasis added). The employee in
Improve: Richard Campbell, deceased
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Porter failed to prove her case not because her injuries resulted from the risk of walking on a smooth surface, but because she failed to establish the risk or hazard that caused her cl