Kathy Narens v. Lincoln University

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No. 12-025345

Employee: Kathy Narens

Employer: Lincoln University

Insurer: C A R O

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Injury arising out of and in the course of employment ${ }^{1}$

The parties dispute whether employee suffered an injury arising out of and in the course of employment when she fell while traversing employer's premises at the end of her work shift. Employee fell when, in an effort to avoid a crowd of students walking in her direction down a narrow sidewalk, she stepped on a steep edge of the sidewalk with her right foot and turned her ankle. 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.

Employer suggests, in its brief, that employee's injuries are not compensable because she was on her way home for the day. We are not persuaded. "Pursuant to the plain language of section 287.020 .5 , the extended premises doctrine is not totally eliminated but is now limited to situations where the employer owns or controls the area where the accident occurs." Scholastic, Inc. v. Viley, 452 S.W.3d 680, 684 (Mo. App. 2014). Under the extended premises doctrine as it exists following the 2005 amendments to the Missouri Workers' Compensation Law, employee was unquestionably in the course of her employment when she sustained her injury, because she was on a premises owned and controlled by employer.

Second, we acknowledge employer's argument that employee would have traversed crowded sidewalks in her normal, nonemployment life, but we believe this argument

[^0]

[^0]: ${ }^{1}$ We note that the parties framed the issue as "whether the alleged accident arose out of and in the course of employment," Transcript, page 3 (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. The distinction is not merely academic where both terms enjoy specific definitions under Chapter 287, and where recent and controlling case law has reiterated that the focus must be on whether the claimed injuries-as opposed to the accident—arose out of and in the course of employment. See Gleason v. Treasurer of the State, 455 S.W.3d 494 (Mo. App. 2015).

misstates the real issue before the Commission. A risk or hazard need not be unique to the workplace in order to render an injury sustained thereby compensable; rather, the statute is satisfied by proof that the employment unequally exposed employee to the particular risk or hazard from which the employee's injuries came. Here, the risk or hazard from which employee's injuries came was traversing the crowded campus sidewalk with its steep drop-off.

Notably, subsequent to employee's accident, her supervisor suffered a fall at the same location owing to the same conditions. This evidence strongly suggests the condition of the sidewalk in that location was hazardous. After careful consideration, we are convinced (and we so find) that employee's daily exposure to this location and this condition of the sidewalk involved an increased risk of suffering an injury-producing fall. Given the fact that employee's work for employer daily exposed her to this increased risk, we feel confident in inferring (and we so find) that this is a risk or hazard to which employee was not equally exposed in her normal nonemployment life.

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 Hannelore D. Fischer, issued March 25, 2015, 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 1st day of September 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: April 11, 2012
5. State location where accident occurred or occupational disease was contracted: Cole 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: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Left ankle and foot
14. Nature and extent of any permanent disability: 30 % left ankle
15. Compensation paid to-date for temporary disability: -0-
16. Value necessary medical aid paid to date by employer/insurer? - 0 -

Employee: Kathy Narens Injury No. 12-025345

1. Value necessary medical aid not furnished by employer/insurer? $\ 2,682.59
2. Employee's average weekly wages: ----
3. Weekly compensation rate: $\ 350.47 for all benefits
4. Method wages computation: By agreement

1. Amount of compensation payable: 30 % left ankle $=46.5 weeks

46.5 \times \$ 350.47=\ 16,296.86

Plus TTD $=\ 5,607.52

Plus medical reimbursement $=\ 2,682.59

1. Second Injury Fund liability: N/A
2. Future Requirements Awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all amounts, including medical aid and TTD benefits, hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Brian J. Dean.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on February 24, 2015. Memoranda were submitted by March 13, 2015.

The parties stipulated that on or about April 11, 2012, the claimant, Kathy Narens, was in the employment of Lincoln University, Missouri Office of Administration (Lincoln University). The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was self-insured and administered by the Central Accident Reporting Office. The employer had timely notice of the injury. A claim for compensation was timely filed. The appropriate rate of compensation for all benefits is $\ 350.47 per week. No temporary disability benefits have been paid. No medical aid has been provided.

The issues to be resolved as the result of hearing include 1) the occurrence of an accident, 2) whether the alleged accident arose out of and in the course of employment, 3) the liability of the employer/insurer for four half days of temporary partial disability benefits, those days being August 2, 3, 4 and 5 of 2012, 4) the liability of the employer/insurer for medical expenses in the amount of $\ 2,089.48, and 5) the nature and extent of permanent disability.

The parties stipulated that in the event of an award favorable to the claimant on the preliminary issues, the employer/insurer would be liable for 16 weeks of temporary total disability benefits from April 11, 2012, through August 1, 2012, in the amount of \$5,607.52.

The claimant, Kathy Narens, has been employed full time by Lincoln University since 2009 as an administrative assistant in the career and academic support department. Currently, Ms. Narens works in the Martin Luther King building, but in 2012, Ms. Narens worked in the Dawson annex. Ms. Narens' workday spans from 7:45 in the morning through 4:45 in the afternoon. On April 11, 2012, Ms. Narens was leaving work, walking to the Lincoln University parking lot for which she had a parking pass, headed toward her car. Ms. Narens was walking on the right side of the sidewalk and stepped to the side to avoid a group of students walking toward her. When

**Employee:** Kathy Narens

**Injury No.:** 12-025345

Ms. Narens stepped to the right, she stepped off of the sidewalk down into a grassy area with her right foot and overcompensated by falling onto her left foot and ankle. The location of the fall was on property owned and controlled by Lincoln University. Ms. Narens testified that her supervisor sustained a similar type of fall in August of 2013 at the same location, injuring her knee.

Ms. Narens testified to medical treatment at Capital Region Medical Center where x-rays of her left foot and ankle were taken and where she had surgery on her left ankle performed by Dr. Galbraith two days later. Ms. Narens also testified to physical therapy for her left ankle with one physical therapy session with Central Missouri Physical Therapy and subsequent physical therapy at Lake Regional Health Center. Ms. Narens also testified to treatment for a pulmonary embolism at an Urgent Care Center and Lake Regional Health Center before she started physical therapy.

According to Ms. Narens, she was released to return to work on August 1, 2012, and actually returned to work the following Monday. Ms. Narens said that during her first week back she either worked half days or into the early afternoon. Ms. Narens said that since she has been back to work, she has missed no time from work as the result of her left ankle.

Ms. Narens reported that her group health carrier paid for the majority of her medical bills and that she is only claiming out of pocket expenses. Ms. Narens is claiming that her out of pocket expenses from the April 11, 2012 injury from Capital Region Health Center are