Bonnie Jensen-Price v. Encompass Medical Group

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Because employee was carrying work materials and was going from one worksite to another, and was thereby engaged in a work activity, we conclude that employee was still engaged in her "work shift" for employer when the maintenance worker's cart collided with her leg.

All of the above statutory criteria are satisfied in this case. We conclude that employee sustained an "accident" as defined under § 287.020.2.

Section 287.020.3(2) RSMo 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.

The medical experts agree that the accident was the prevailing factor causing employee to suffer the injuries at issue. As a result, subsection (a) above is satisfied. We turn now to subsection (b).

The parties and the administrative law judge assumed that the compensability of this case turns on whether employee has satisfied the extension of premises doctrine. We disagree. The extension of premises doctrine was always an exception to the going/coming rule, and not applicable to cases where (as here) the worker is engaged in a work activity when injured. See, e.g., Huffmaster v. Am. Rec. Prods., 180 S.W.3d 525 (Mo. App. 2006); Roberts v. Parker-Banks Chevrolet, 58 S.W.3d 66, 69 (Mo. App. 2001); and Bountiful Brick Co. v. Giles, 276 U.S. 154, 158 (U.S. 1928).

We acknowledge that prior cases involving injuries resulting from risks not created by the employer, such as robberies, e.g. Jordan v. Farmers State Bank, 791 S.W.2d 1 (Mo. App. 1990), flooding, e.g. Lunn v. Columbian Steel Tank Co., 364 Mo. 1241 (Mo. 1955), or shooting, e.g. Scullin Steel Co. v. Whiteside, 682 S.W.2d 1 (Mo. App. 1984), were abrogated by the legislature in 2005 by way of $\S 287.020 .10$ RSMo. However, we view the simultaneous deletion in 2005 of the premises requirement under § 287.020.5 RSMo, along with the adoption of the unequal exposure definition of "arising out of and in the course of employment," as a legislative endorsement of the reasoning and analysis in those cases:

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[^0]: ${ }^{1}$ We acknowledge that the parties framed the issue as "whether the employee's accident and injury occurred on premises owned or controlled by the employer." Transcript, page 7. Because there is currently no requirement under Chapter 287 that an employee's accident and/or injury occur on premises owned or controlled by the employer, the parties' arguments on the topic are better addressed under the more general issue whether the employee's injury arose out of and in the course of employment.

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namely, that if the circumstances of the employment involve an increased risk or hazard of the injury, the fact the injury occurs off-premises, or while engaged in an activity that is not a normal work duty, does not necessarily defeat the claim.

The recent case of Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. 2014) makes this clear. In Dorris, as here, the employee was not injured on employer's premises, but was injured while travelling from one workplace to another. Id. at 587-88. Rather than apply the extension of premises doctrine, the Dorris court determined compensability by applying the unequal exposure test under § 287.020.3(2)(b). Id. at 590-91. Applying Dorris, it would appear now to be well-settled in Missouri that accidents caused by defects or hazards encountered at the workplace-or during travel away from the workplace necessitated by work duties-are plainly compensable.

Here, though, there is no evidence that employee's accident was the product of a defect in the premises she encountered as a result of travel necessitated by her work duties. Accordingly, the question is whether, given the totality of the circumstances, employee has established that her employment exposed her to a greater risk of injury than faced in normal nonemployment life. We note that the unequal exposure test may be satisfied where the workplace exposure to the risk is only minimally increased. See Pope v. Gateway to the W. Harley Davidson, 404 S.W.3d 315 (Mo. App. 2012)(holding that an employee's action of carrying a motorcycle helmet while descending stairs supported a finding that the employee was unequally exposed at work to the hazard or risk of sustaining injuries in a fall down the stairs).

Certain facts surrounding employee's accident might support at least an inference of greater risk: the darkened elevator, the fact that employee was leaving work after hours (suggesting she might have been more likely to encounter a maintenance worker with a cleaning cart), or the fact that she was carrying work in a rolling briefcase, which may have affected her balance and her ability to keep herself from falling or from mitigating the consequences of her fall.

After careful consideration, however, we deem the record simply too vague to support affirmative findings as to any of these possible indicators of increased risk. This is because employee did not testify that pulling the rolling briefcase affected her balance, or that it was unusual for the elevator to be dark, or that she did not typically encounter maintenance workers (or their carts) during normal business hours. It was employee's burden to establish an increased risk, and we are concerned that if we were to infer an increased risk from the circumstances of which employee did testify, we would stray into the realm of advocacy.

In sum, we find the record insufficiently developed to support a finding that employee's injuries did 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. For this reason, we conclude that employee's injuries did not arise out of and in the course of employment.

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All other issues are moot, and the claim is denied.

**Decision**

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

The award and decision of Administrative Law Judge Kenneth J. Cain, issued February 19, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **24th** day of February 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I agree with the Commission majority's conclusion that employee suffered an accident. However, I disagree with the majority's choice to deny the claim, because I am convinced that employee satisfied her burden of proof with respect to § 287.020.3(2).

As noted by the Commission majority, the parties and the administrative law judge appear to have assumed that $\S 287.020 .3(2)$ includes an additional, unstated requirement, namely, that an employee's injuries must occur on premises owned or controlled by the employer. This is evident in the administrative law judge's assertion, at the outset of his analysis, that this is "a going to and from work case," Award, page 9, and in his discussion of the legislative changes, in 2005, affecting the extension of premises doctrine. I agree with the majority that this analysis is inappropriate, for the following reasons.

First, I note that in 2005, the legislature deleted previous language in § 287.020.5 RSMo declaring that the Missouri Workers' Compensation Law did not cover workers "except while engaged in or about the premises where their duties are being performed," with the result that there is no longer any requirement that injuries occur on or about an employer's premises to be compensable. The absence of any such requirement after 2005 is evident in the recent cases of Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo. App. 2012) and Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. 2014). In both cases, the courts held that injuries that were not sustained on the employer's premises were nevertheless compensable where they satisfied the "prevailing factor" and "unequal exposure" requirements of $\S 287.020 .3(2)$.

Second, I note that the legislature in 2005 abrogated all prior case law interpretations on the meaning of or definition of the terms "arising out of" and "in the course of the employment." See § 287.020.10 RSMo. As a result, I cannot rely upon pre-2005 case law to categorize this matter, at the outset, as a "going to and from work case." To the contrary, the legislature has essentially provided us with a blank slate for applying the plain language of $\S 287.020 .3(2)$. In doing so, it appears that the legislature recognized the wi