Warren Cotner v. Southern Personnel Management, Inc.

The Commission hereby accepts the copies of the death and marriage certificates into the record, and finds that employee died on May 18, 2015. We additionally find that Ruth Ann Cotner is employee's surviving spouse.

We grant claimant's Motion. Pursuant to § 287.580 RSMo, these proceedings are revived and may proceed in favor of the successor to employee's rights. We substitute employee's surviving spouse, Ruth Cotner, as the claimant in this matter.

In his thorough and well-reasoned award, the administrative law judge determined that employee suffered an injury by accident which arose out of and in the course of his employment. We agree, but discern a need to provide some additional findings and comments of our own. The parties dispute whether employee suffered an injury arising out of and in the course of employment when he stumbled and fell after squatting down to check the sound of an air compressor in the air conditioning unit of the shuttle van he was driving for employer.

Section 287.020.3(2) RSMo provides, in relevant part, as follows:

An injury shall be deemed to arise out of and in the course of the employment only if ... [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.

As correctly noted by the administrative law judge, the courts have interpreted the foregoing provision to involve an inquiry into whether the employee was injured because he was at work, as opposed to becoming injured merely while he was at work. Pope v. Gateway to the W. Harley Davidson, 404 S.W.3d 315, 320 (Mo. App. 2012). In finding that employee was injured because he was at work, the administrative law judge pointed to a number of factors that arguably rendered employee's work activities at the time of the accident more risky or hazardous than they might otherwise have been: employee's stepping on a pebble or his foot sticking to the pavement; the existence of cracks in the pavement repaired with tar or asphalt sealant; the hot weather that day; and the significant slope going downhill from where employee was squatting to listen to the A/C compressor.

Employer argues that the administrative law judge's identification of various factors that may have contributed to employee's fall demonstrates that the administrative law judge engaged in speculation as to the specific risk or hazard from which employee's injuries came. Noting employee's somewhat tenuous testimony that he may have stepped on a pebble or that his foot otherwise stuck to the pavement, employer cites the case of Porter v. RPCS, Inc., 402 S.W.3d 161 (Mo. App. 2013), and argues that employee has failed to identify the cause of his fall, and that his claim must be denied as a result. We are not persuaded, for the following reasons.

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[^0]: ${ }^{1}$ We note that the parties framed the issue as "whether the accident arose out of and in the course of [employee's] employment," Transcript, page 7 (emphasis added). Section 287.020.3(2) RSMo, however, makes clear that the relevant inquiry is whether employee sustained an injury arising out of and in the course of the employment.

From the original source, this article is for informational purposes only. It is not a substitute for the original source, and it is not a substitute for the original source.

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First, we note that the courts have specifically rejected the proposition that an employee is required to provide testimony identifying the specific reason for an injury-producing fall at work. "There is no requirement that [an employee] must personally identify the specific cause of her fall[.]" *Dorris v. Stoddard County*, 436 S.W.3d 586, 590 (Mo. App. 2014). Second, we note that employee agreed that the incline or slope of the parking lot in which he was performing his duties precipitated his "going backwards" upon arising from a squatting position. *Transcript*, page 210. We credit this testimony from employee, and infer therefrom as follows.

Employee's action of squatting down upon a significant incline in employer's parking lot was related to and was a direct function of his employment for employer on June 2, 2011. Employee's work activity of squatting down on a significant incline *itself* exposed him to the risk or hazard of stumbling or falling upon returning to a standing position. We find, as a factual matter, that it was the risk or hazard of squatting down on a significant incline and subsequently stumbling or falling from which employee's injuries "came"[^2] for purposes of § 287.020.3(2)(b). It is therefore unnecessary to determine what (or whether) any additional, environmental factors may have contributed in causing employee to fall.

There is no evidence on this record to suggest that employee (or workers generally)[^3] would be equally exposed to the risk or hazard of squatting down on a significant incline and subsequently stumbling or falling outside of and unrelated to employment in normal nonemployment life. This employee was nearly 68 years of age as of the date of the accident, and suffered from bilateral ankle instability. Especially in light of these facts, we deem the record sufficient to support a factual finding that employee's work exposed him to the risk or hazard of squatting down on a significant incline and subsequently stumbling or falling to a greater extent and degree than he (or workers generally) faced in normal nonemployment life. We so find. We conclude, therefore, that employee's injuries arose out of and in the course of employment.

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

The award and decision of Administrative Law Judge L. Timothy Wilson, issued November 13, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

[^2]: The language of § 287.020.3(2)(b) does not, in our view, imply or require an identification of each and every minute factor or physical force (e.g. gravity) that may have contributed to an accident, followed by an inquiry into the degree of work vs. non-work exposure attendant with each, especially where the legislature has specifically directed that "[a]ll proceedings before the commission or any commissioner shall be simple, informal, and summary[.]" § 287.550 RSMo.

[^3]: Although the statute suggests that the pertinent comparison class is that of "workers" generally, the decisions applying § 287.020.3(2)(b) have instead analyzed whether the *specific* employee's nonemployment life equally exposed him or her to the injury-producing risk or hazard. See, e.g., *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 511-12 (Mo. 2012). Accordingly, we render our findings and conclusions herein in terms of workers generally, as well as this employee specifically, in order to give effect to both the language of the statute (which, of course, we must strictly construe) and the relevant and controlling case law.

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 $20^{\text {th }}$ day of August 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Warren Cotner

Injury No. 11-042143

Dependents: N/A

Employer: Southern Personnel Management, Inc.

Insurer: Lumbermen's Underwriting Alliance

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: August 12, 2014

Checked by: LTW

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: June 2, 2011
5. State location where accident occurred or occupational disease was contracted: Taney 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 occurred or occupational disease contracted: While engaged in employment and performing his work duties as a shuttle bus driver for Employer, Employee performed an inspection of the air conditioning compressor underneath the bus, which required him to bend forward and squat as much as possible, and put one leg behind him to stoop in such a position as to listen to the air conditioning compressor. As Employee attempted to stand up, he stepped backwards and his foot stepped on a pebble or otherwise got stuck on the pavement, causing him to stumble backwards and to fall to the ground, landing on the pavement. The slope of the parking lot increased the risk of stumbling and falling to the ground. As Employee stood up and stumbled backwards, the nature of the sloping parking lot enhanced the stumble backwards, resulting in the downhill slope propelling Employee to fall an