Phillip Wood v. Gann Asphalt, Inc.

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

Injury No.: 05-096794

Medical Fee Dispute No.: 05-01767

Employee: Phillip Wood

Employer: Gann Asphalt, Inc.

Insurer: Auto Owners Insurance Company

Health Care Provider: Liberty Hospital

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

At the outset of the hearing, after identifying the parties and their respective counsel, the administrative law judge recited the following as if it were a stipulation by the parties:

The case involves injuries on or about September 14, 2005, while the employee was in the employ of [employer] and sustained injuries by accident arising out of and in the course and scope of employment in Platte County, Missouri.

Transcript, page 3.

Moments later, the administrative law judge stated that " $[t]$ he issues to be resolved today include whether the accident arose out of and in the course and scope of employment." Id. Before this Commission, employee does not argue that the parties intended to stipulate that employee's injuries arose out of and in the course of employment; for this reason, we do not believe the administrative law judge's initial confusing statements preclude us from resolving this dispute.

We would caution that, in the future, parties would be better served by ensuring that the record contains a complete, accurate, and precise statement of the parties' stipulations as well as the issues in dispute. ${ }^{1}$ This is because the administrative law judge and this

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[^0]: ${ }^{1}$ Typically, the administrative law judge will ask the parties to confirm whether the stipulations and issues have been correctly recited; however, this did not occur in this case.

Commission are duty-bound to both give effect to the parties' stipulations and confine our review to the particular issues the parties identify as in dispute, see, e.g., Hutson v. Treasurer of Mo., 365 S.W.3d 269 (Mo. App. 2012), Boyer v. National Express Co., Inc., 49 S.W.3d 700 (Mo. App. 2001), and Lawson v. Emerson Electric Co., 809 S.W.2d 121 (Mo. App. 1991).

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.

On September 14, 2005, employee wrecked his motorcycle in employer's parking lot while executing a turn in the process of attempting to position his motorcycle so that he could wash it using employer's power washer. ${ }^{3}$ He claims that the wrist fracture he sustained in that event should be found compensable as a workers' compensation injury. In his brief, employee does not cite or discuss the foregoing statutory test. Instead, he argues that, because he was a new employee, he reasonably understood from the conduct of his coworkers that washing his motorcycle while on the clock was permissible, and that his injuries should be deemed compensable because he thus remained within the "course and scope" of his employment when he wrecked his motorcycle. Employee fails to cite statutory authority or case law that would suggest a "course and scope" showing is sufficient (or even necessary, for that matter) to support an award of benefits. Nor does employee acknowledge or cite the line of recent reported decisions applying § 287.020.3(2).

In the case of Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463 (Mo. App. 2010), the court described the test under § 287.020.3(2) as consisting of two steps:

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[^0]: ${ }^{2}$ Although the administrative law judge framed the issue as whether employee sustained an accident arising out of and in the course of the employment, the appropriate statutory test is whether employee's injuries arose out of and in the course of the employment. The distinction is not merely academic where both "accident" and "injury" enjoy their own specific definitions under Chapter 287, and where we are required under $\S 287.800 .1 RSMo to construe those definitions strictly.

{ }^{3}$ Employee suggested, in his brief and at oral argument, that he might have been moving his motorcycle anyway, regardless of his desire to wash it, because he'd been asked by coworkers to move the motorcycle out of the way. We are not persuaded to so find, because employee forthrightly admitted at hearing that the accident happened as he was turning his motorcycle to position it behind another coworker's vehicle for the purpose of washing it.

[T]he application of [§ 287.020.3(2)(b)] involves a two-step analysis. The first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and injury is integral to the performance of a worker's job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life.

Id. at 467 .

Turning back to the case at hand with the foregoing in mind, we first ask whether employee's injuries came from a hazard or risk related or unrelated to his employment. We note that, at oral argument, employee advanced a somewhat different theory than that set forth in his brief. Citing Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. 2014), employee asks the Commission to find that he wrecked his motorcycle owing to a dangerous condition at work; namely, the existence of water accumulating on the surface of the parking lot as coworkers washed their own vehicles. Employee, however, fails to cite the transcript for evidence to support a finding that water was collecting on the surface of the lot, or that this condition, if it existed, was unusually hazardous. Nor does employee cite any evidence that would support a finding that water on the surface of the lot ultimately played any role in the motorcycle accident.

We cannot and will not search the transcript for evidence to make employee's argument. However, a cursory review of employee's own testimony reveals that he merely acceded to his attorney's leading questions, posed on redirect examination, suggesting that his motorcycle tires were wet and that he "thought" this "played a role" in the motorcycle falling over. Transcript, page 47. This appears to have been the first time a theory of wet tires causing the accident was advanced on the record; at his deposition, employee did not identify wet tires as causing the motorcycle accident.

After careful consideration, we are not persuaded to make a finding that water on employer's parking lot played any role in the motorcycle accident. Instead, we find that the risk or hazard from which employee's injuries came was simply that of wrecking his motorcycle while executing a turn in order to position his motorcycle to be washed. Although employee asks us to find that washing his motorcycle was sufficiently related to his work because other employees were doing it and employee was new to the workplace, this theory stands in contrast to employee's own testimony on the subject. At both the hearing and in his deposition, employee admitted that a coworker told him it was only okay to wash his motorcycle provided he wasn't "caught." In other words, to

the best of his knowledge, employee understood that his employer would not approve of his washing his personal vehicle during work time-even though other coworkers were doing so.

Given this circumstance, we cannot conclude that employee's injuries came from a hazard or risk related to the employment, and we must proceed to the question whether employee's work involved an unequal exposure to the risk of wrecking his motorcycle while executing a turn.

In that regard, we find instructive the case of Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012), wherein the employee, a billing representative, fell while making coffee in her employer's kitchen. 366 S.W.3d at 506-07. The Johme employee's fall resulted from turning her ankle and falling off her shoe. Id. The Court denied the claim because "[n]o evidence was presented to show that [her] 'normal nonemployment life' exposed her to a lesser risk of turning, twisting her ankle, or falling off her shoe as compared to the risk she faced the day she fell in the workplace."4

With regard to the second, equal exposure step of the analysis, we conclude that Johme controls the result herein. Employee's job for employer was that of a general laborer. Typical duties included cleaning parking lots for resurfacing, spreading tar, or cleaning the shop. Nothing about this employment required employee to operate a motorcycle, and there is no evidence on this record to suggest that the employment exposed employee to this risk to a degree unequal to the exposure faced by workers outside of and unrelated to the employment in normal nonemployment life. ${ }^{5}$ In other words, employee was not injured because of work, but rather merely while he was at work. See Pope v. Gateway to the W. Harley Davidson, 404 S.W.3d 315, 320 (Mo. App. 2012).

In sum, employee's wrecking his motorcycle while executing a turn is, in our view, as unrelated to the employment as was the Johme employee's turning her ankle and falling off her sandal. Consequently, following Johme, this case must be denied.

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

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[^0]: ${ }^{4}$ Notably, the Johme court did not overrule Pile or even explicitly distinguish it, but instead proceeded directly to the equal exposure analysis because "[the employee's] injury was not caused by making coffee," (emphasis in original) and there was no need to discuss whether the actual causative risk or hazard (turning one's ankle) was related to employee's work as a billing representative-it clearly was not. Johme, 366 S.W.3d at 511-12. Where our highest Court declined to overrule Pile (upon which the Commission and lower court expressly relied) we do not read Johme to diminish the precedential value of the Pile two-step analysis.

${ }^{5}$ If, for example, employee's job for employer was that of a motorcycle courier, our equal exposure analysis herein might be different.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued July 23, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 1^{\text {ST }}$ day of August 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Phillip Wood

Injury No. 05-096794

Dependents: N/A

Employer: Gann Asphalt, Inc.

Insurer: Auto Owners Insurance Company

Additional Party: N/A

Hearing