Timothy Bain v. Apria Healthcare Group, Inc.

(Reversing Award and Decision of Administrative Law Judge)

Injury No. 15-030879

Employee: Timothy Bain

Employer: Apria Healthcare Group, Inc.

Insurer: New Hampshire Insurance Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we reverse the award and decision of the administrative law judge.

The parties asked the administrative law judge to decide the following issues: (1) whether employee suffered an accident within the course and scope of employment; (2) whether the injury was medically causally related to the work for the employer; (3) whether employee is entitled to temporary total disability benefits; and (4) whether employer is liable for employee's medical expenses.

The administrative law judge concluded employee failed to demonstrate that his injuries arose out of and within the course of employment, and denied compensation.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred in concluding that employee's accident did not occur in the course and scope of the employment.

For the reasons set forth herein, we reverse the administrative law judge's award and decision.

Employer is in the business of providing and servicing durable medical equipment. Employee's duties for employer as a driver technician included the delivery, setup, and servicing of respiratory and wound therapy equipment in homes, businesses, and hospitals. Employee drove employer's 24 -foot van to make deliveries and service calls. Employee drove between 150 and 250 miles per day while working for employer.

Employee's normal schedule was from 8:00 a.m. to 4:30 p.m. Employee alternated between normal and on-call weeks. During a normal week, employee drove his personal vehicle to employer's location at 2127 West Vista Street in Springfield, Missouri, where he picked up a route sheet generated by employer's logistics center, got in employer's supply van, and began making deliveries. Five employees worked at the 2127 West Vista Street location, and there was a warehouse located there.

Every other week, employee worked on an on-call basis for employer. While on-call, employee had to remain available to respond to calls during weeknights from the moment his shift ended at 4:30 p.m. until his shift began the next morning at 8:00 a.m., and during the entire 48 -hour period on Saturday and Sunday. While on-call, employee had to drive employer's supply van home at night during weeknights, and keep it during the weekends, and he took an employer-issued cell phone with him, which he was required to keep on his person at all times. Dispatchers would call this cell phone whenever off-hours deliveries, troubleshooting, or other services were required, and employee was required to answer or return the call within 10 minutes.

Employee was not permitted to use employer's van for any personal errands or appointments while on-call, and he was expected to remain close to his home so that he could get back to the van and timely respond to a call. For obvious reasons, employee was not permitted to drink any alcohol while on-call, or otherwise render himself unavailable for any reason. While working on-call, employer paid employee an extra $\ 10 for each weekday, and $\ 20 each for Saturday and Sunday, and also paid him overtime for any calls that he took.

Employee was on-call for employer during the week beginning Monday, April 27, 2015. He did not receive any service calls on Monday, Tuesday, or Wednesday. On Thursday, April 30, 2015, employee did not receive any service calls in the hours leading up to his normal shift beginning at 8:00 a.m., so he prepared himself for work and began driving employer's van toward employer's 2127 West Vista Street location.

While driving toward employer's 2127 West Vista Street location, and while he was still oncall, employee encountered a red light at the intersection of Missouri Highway 13 and Route O. Employee had almost come to a complete stop at the intersection, when he was unexpectedly struck from behind by another vehicle. Employee was dazed immediately following the accident, and began to experience pain in his head, neck, left shoulder, left elbow, and back. An ambulance transported employee to Mercy Hospital in Springfield, where he received emergency care including the prescription medications hydrocodoneacetaminophen and Valium, and a series of x-rays and CT scans, which were deemed negative for acute fractures.

Thereafter, employee saw Dr. James Shaeffer on May 15, 2015, at the Springfield Family Medical Walk-In Clinic, for his continued complaints. Dr. Shaeffer took employee's history of back pain, headaches, neck pain, and radicular complaints running down the side and back of his left leg causing intermittent numbness. Employee also reported psychiatric complaints in the form of severe anxiety. Dr. Shaeffer ordered x-rays, which he read to reveal bilateral spondylosis of the L5 pars interarticularis, as well as comminution of a prior defect of the pars.

Dr. Shaeffer's impression was that the motor vehicle accident had caused employee to suffer a significant impact and soft tissue injuries to his neck; a probable cerebral concussion; and a traumatic comminution of a prior defect of the pars on the left side at

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We find that the foregoing expenses were incurred for medical treatment that was reasonably required to cure and relieve the effects of employee's injuries suffered in the motor vehicle accident of April 30, 2015.

Employer provided testimony from Rhonda Barnes, a market leader, who manages employer's various locations in Arkansas and southern Missouri. From Ms. Barnes's testimony, it appears that the 2127 West Vista Street location where employee worked was one of eight similar "branch" locations in the region. Ms. Barnes did not indicate whether she works at one of the branch locations, or elsewhere. Ms. Barnes referred to a logistics center that generates the route sheets that employee used to perform his duties, but she did not indicate where this logistics center is located. Ultimately, Ms. Barnes did not provide testimony that would establish which employer location, if any, was its principal place of business in Missouri or elsewhere.

The record also contains the deposition testimony of Matt Luader, a branch logistics coordinator, and Michele Gibb, a branch manager; neither provided testimony that would establish which employer location was its principal place of business in Missouri or elsewhere. Ms. Gibbs did suggest that most of employer's higher level decision making took place within employer's human resources department, but she did not provide any testimony that would establish where this department was located. We note that, at his deposition, employee indicated his understanding that employer's logistics center is located in Kansas City, and that employer's human resources department is located in the state of California.

After careful consideration, we deem the record before us insufficient to permit us to make any finding as to which of employer's various locations was its principal place of business.

The parties dispute whether employee suffered an "accident," as that term is defined in § 287.020.2 RSMo, which provides, in relevant part, as follows:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.

The motor vehicle accident of April 30, 2015, unquestionably constituted an unexpected traumatic event; the event is identifiable by time and place of occurrence; the event produced at the time objective symptoms of injury; and we are convinced that the specific event of the motor vehicle accident occurred during a single work shift, because employee was on call and working for employer at the time. We conclude that employee suffered an accident for purposes of the foregoing statutory definition.

Section 287.020.3(1) RSMo sets forth the standard for medical causation applicable to this claim and provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

As we have noted above, the only medical opinion on record with regard to the causation of employee's claimed injuries is that of the treating physician, Dr. James Shaeffer. We have credited Dr. Shaeffer's unopposed opinions and found that the accident caused employee to suffer injury to his lumbar spine, a cerebral concussion, and soft tissue injuries affecting the cervical spine, as well as disability in the form of pain, anxiety, and an inability to remain in a fixed position for any length of time. We conclude employee has met his burden of proof with regard to the issue of medical causation.

We conclude that the accident of April 30, 2015, was the prevailing factor causing employee to suffer the resulting medical conditions of injury to his lumbar spine, a cerebral concussion, and soft tissue injuries affecting the cervical spine, as well as his current disability.

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

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[^0]: ${ }^{1}$ We note that the parties and administrative law judge framed this issue as whether employee "suffered an accident within the course and scope of employment," Transcript, page 5. However, Chapter 287 does not require an employee to prove that an "accident" occurred within the "course and scope of employment." Instead, the law requires the employee demonstrate that his injuries arose out of and in the course of the employment for purposes of $\S 287.020 .3(2)$ RSMo. From the briefs and arguments of the parties, we are confident that this is the issue we are called upon to r