**Injury No: 13-081880**
The practice of fracture has been a major concern in the literature. He believes that the impairment involving the left hip is a causal consequence of the work accident of October 14, 2013. He felt that the fall of October 14, 2013, necessitated the surgical treatment that has been provided for the left hip and he determined that he would assign a 20 percent permanent partial disability to the left lower extremity at the level of the hip at the 207 week level. He did not feel that the right hip nor the lumbar problems that Employee stated he suffered from were related to the fall. He did believe that Employee suffered permanent restrictions, including refraining from constant squatting, crawling, kneeling, or climbing types of tasks. Dr. Koprivica also felt that Employee was temporarily totally disabled from October 14, 2013, until January 6, 2014, and that the temporary total disability was felt to be medically reasonable and a direct necessity of the permanent injuries sustained to the left hip. He also felt that the work injury was the prevailing factor necessitating the period of temporary total disability.
The first issue to be determined herein is whether the Employee sustained an accident arising out of and in the course of his employment. Employer argues numerous cases in support of his claim that Employee's injury did not occur within the course and scope of his employment. Employer quotes from Miller v. Missouri Highway and Transportation Commission, 287 S.W.3d 671 (Mo. Banc 2009) also Scott v. Bellfontaine Garden Nursing Center and Rehab, 2014 Mo. WCLR Lexis 121, October 7, 2004, as well as Johme v. St. John's Mercy Health Care, 366 S.W.3d 504, May 29, 2012. In all of these cases, it appeared that the injury each claimant suffered was due to some type of idiopathic problem with no surrounding additional factors involved. In the Miller case, the claimant was simply walking to his truck. In the Scott case, the employee said her knee simply gave out. She did not trip over anything and was not in any place that could have caused her additional harm. The Johme case, likewise, was a woman who simply was standing making coffee, turned, and her knee gave out. Those cases stand for the idea or the proposition that an unexplained injury is not compensable merely because the injury occurred at work.
Neither case identified any risk or hazard that caused the injury to occur. Linda Dorris v. Stoddard County, 436 S.W.3d 586, MoApp SD 2014. In the Dorris case, the claimant was walking with her direct supervisor crossing a public street to review some new construction of a building being built by the employer. The street had cracks in it and traffic was busy. The claimant was watching traffic and not looking down at the pavement when she tripped and fell in during her shoulder. The Court found that the injury was compensable. The Court further stated that "When there is evidence of an unsafe condition that the employee is exposed to because of his employment then the hazard is particular to employment." Further, in Pope v. Gateway to West Harley Davidson, 404 S.W.3d 315, 320 (Mo. App. E.D. 2012) the court notes "The injury is compensable only if his injury had a causal connection to his work activity other than the fact that it occurred at work. More simply stated, we consider whether Pope was injured because he was at work as opposed to becoming injured merely while he was at work. This analysis requires us to consider whether the risk source of Pope's injury – here, walking down steps while wearing work boots and carrying a work-required helmet – is a risk to which Pope is equally exposed in his non-employment life. If Pope is equally exposed to this risk outside of his employment, then the injury does not arise out of the employment, and is not compensable under Missouri's workers' compensation laws." In the Pope case, the court found that sufficient evidence existed to support a finding that employee's injury had a causal connection to his work activity, and that the employee was not equally exposed to this risk source.
in his normal, non-employment life. "At the time of the employee's fall, he had just finished moving motorcycles from the sales lot into the upper showroom. The employee was going to check with his supervisor in the service department to ensure his work was completed satisfactorily before clocking out and leaving work. Because the service department was on the first floor, Pope was required to descend the staircase connecting the upper and lower showrooms. Pope was wearing his work boots and carrying his work-required helmet as he descended the stairs." Pope at 320
Further, the court noted "In this case, Pope was injured at work because he was performing work activities. Pope was required to do as his supervisor asked, and his supervisor asked him to move motorcycles into the upper showroom. Pope was required to wear a motorcycle helmet while moving motorcycles. To report back to his supervisor after the assignment, Pope was required to descend the stairs, which he did while carrying his motorcycle helmet. Pope had his helmet with him because of the work activity he had performed immediately prior to descending the stairs. The location of the stairs between Employer's upper and lower showrooms and the fact that Pope had to carry his helmet while descending the stairs increased Pope's risk of falling and sustaining injuries. These facts reasonably support a finding that Pope's injury was causally connected to his work activity, i.e., a risk related to his employment as opposed to a risk to which he was equally exposed in his normal, nonemployment life." Pope at 320 .
In the case at hand employee was walking in the break room to get to a vending machine. There was a picnic table of some sort in the way of the path directly to the vending machines. Employee, in order to get to the vending machines, was required to walk up an inclined ramp which required a step down to the area where the vending machines were, in order to access the vending machines. This Court finds that this particular circumstance of the ramp being the path to the vending machines is something that Employee would not normally encounter in his everyday life and, therefore, the risk to Employee of injury from falling from the ramp was due to a condition of a worker's employment. Because of the condition which occurred at the Employer's work site, i.e. the ramp which Employee had to ascend and then step off from in order to get to the vending machines, was a risk source not encountered in his everyday life and, therefore, a hazard related to the employment which the worker was not equally exposed to outside of employment in his normal non-employment life.
Employer also argues that there is inconsistency in Employee's testimony as well as surrounding versions of how Employee fell. In testimony, Employee was not sure whether he tripped or slipped off the ramp. Employer argues that Employee had stated that he had a bad knee and that it just gave out. He quotes from third-party sources such as the EMT's notes that Employee's knee simply gave out and this was the cause of his injury and, therefore, should not be compensable. In the case Edward Gleason v. Treasurer of the State of Missouri, (Mo. App. W.D. 2014) WD 77607, a case which this court is very familiar with, the Employee was walking on top of a railcar, conducting an inspection when he fell approximately 20 to 25 feet to the ground sustaining injuries. The employee had no memory of the circumstances leading up to the fall or the fall itself and, thus, could not explain why he fell. There was no testimony regarding anyone having seen the fall. The Court found that the causal connection standard announced in Miller and further addressed in Johme first requires identification of the risk source of a claimant's injury. "The section 287.020.3(2)(b) inquiry was thus required to turn to whether the
"risk source," that is the activity causing the injury, was one to which the claimant would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. It is a matter of common acceptance that the "risk source" of walking across a smooth surface is a "risk source" a worker is equally exposed to in normal nonemployment life. Thus, in such cases, where the identified cause of an accident involves a risk source to which a worker is equally exposed in normal nonemployment life, unless the worker can establish something about the "risk source" that differentiates it from the equivalent risk in normal nonemployment life, the worker will be unable to establish the required causal connection between a work activity and the injuries sustained." In the Gleason case, the court found that, "Gleason's risk source was not walking on a smooth surface at ground level, as was the case in Miller. Gleason's risk source was working on a railcar 20 to 25 feet above the ground. Because this risk source is plainly not one to which a worker would be exposed in normal nonemployment life, Gleason's fall while engaged in the risk source establishes "a causal connection between [his] injur[ies] at issue and [his] work activity." "Borrowing from Miller, Gleason's "injuries were worsened ... due to being in an unsafe location due to his employment. He was [working on the top of a railcar when he happened to fall 20-25 feet]. In contrast to the outcome in Miller, Gleason fell 20-25 feet to the ground because of his required work activity. It was thus not necessary for Gleason to establish why he fell because he had already established that he "was exposed to an unusual risk of injury that was not shared by the general public." Gleason at 502.
In the case at hand Employee was on a ramp from which he fell causing him injury. This ramp was not something that he was equally exposed to in his non-work environment. Based on the Gleason case, even if Employee's fall was initiated by a knee giving out, his fall was not on a flat surface to which other people were equally exposed, it was from a height, albeit three to five inches or more and, therefore, put him at a hazard risk of injury greater than in any non-work environment. However, this Court is not convinced that Employee's knee simply gave out. Employee testified that his knee did not give out, but simply that he either slipped or tripped, which was due to the ramp itself. Further, there is no evidence that prior to this injury Employee had had instances of his knee giving out. There were no medical records and there was no testimony by Employee or other parties who had witnessed any problems with Employee's knee giving out. Wherefore, this Court finds based upon the case law and the evidence at hand that Employee sustained an injury within the scope and course of his employment.
The next issue to be resolved is whether the Employee is entitled to temporary total disability benefits from October 14, 2013, to January 6, 2014, representing 12 weeks of temporary total disability totaling $\ 7,756.20. Since this Court has determined that Employee did in fact sustain an accident arising out of and in the course of his employment, the Court must first review whether the accident caused any injury to Employee and, if so, was there medical treatment that necessitated Employee being unable to return to work. It is clear, from both Dr. Swaim's report as well as Dr. Koprivica's, that they both felt that Employee's surgery to his left hip was causally related to his fall of October 14, 2013, and that the treatment of surgery was necessary to cure or relieve the symptoms due to the injury from this fall. It is clear that Employee was unable to return to work immediately after his injury and, further, until he was released by his treating physician on January 6, 2014. Wherefore, this Court finds that Employee in fact is entitled to temporary total disability benefits from October 14, 2013 to January 6, 2014, representing 12 weeks of temporary total disability totaling $\ 7,756.20.
The next issue to be determined by this Court is whether the Employer must reimburse the Employee for medical expenses totaling $\ 37,776.30. Both Dr. Swaim and Dr. Koprivica deemed that the medical care was reasonable and necessary to cure and relieve the symptoms from which Employee suffered due to his fall on October 14, 2013. Further, Dr. Swaim stated and clarified that the amount charged for the care was reasonable for the care provided. Wherefore, this Court finds that in fact Employer does owe to Employee medical expenses totaling $\ 37,776.30.
The next issue to be determined is whether the Employer must provide Employee with additional medical care. Dr. Swaim noted that Employee may need removal of his hardware at some point and, further, he may need additional diagnostic testing and care for the complaints for his low back and right hip. Dr. Koprivica did not make a determination as to whether any future medical care would be necessary. This Court finds that Dr. Swaim's determination is reasonable and, therefore, determines that Employer must provide Employee with additional medical care pursuant to recommendations made by Dr. Swaim in his report.
The next issue to be determined is whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability. Both Dr. Swaim and Dr. Koprivica felt that Employee did, in fact, suffer permanent disability due to his injury of October 14, 2013. Dr. Swaim felt that Employee suffered a 25 percent permanent partial disability to the left hip at the 207 week level. In addition, he found that Employee suffered an overall 5 percent permanent partial disability to the body as a whole due to the complaints he had regarding his low back and right hip. Dr. Koprivica felt that Employee suffered a 20 percent permanent partial disability to the left hip at the 207 week level, but felt that any complaints of problems with regard to either his low back or his right hip were unrelated to the accident of October 14, 2013. It is apparent that Employee through his testimony stated he has been having an irregular gait ever since the injury; further, that he had no complaints of pain to his right hip prior to this injury. Although Employee did have some pre-existing low back problems these were aggravated by this injury. Therefore, after reviewing the medical records, the testimony of Employee, and the reports of Dr. Koprivica and Dr. Swaim, this Court finds that Employee in fact suffers a $221 / 2$ percent permanent partial disability to the left hip at the 207 week level and, further, a 5 percent permanent partial disability to the body as a whole for both his right hip and low back complaints.
The next issue to be determined is whether the accident caused the disability that Employee claims to his low back and right hip. Dr. Swaim felt that Employee suffered problems to his low back and right hip due to the antalgic gait for which he suffered due to the pain from his injury to his left hip. Dr. Koprivica did not feel that the low back or right hip pain was in any way related to the injury. After reviewing the medical records, the extensive care that Employee has had and, further, the medical notes with regard to the antalgic gait he suffered while recovering from the injury, as well as the Employee's testimony that he continued to have an antalgic gait, this Court finds that Dr. Swaim's determination with regard to Employee's additional injuries to his low back and right hip are causally related to the injuries he sustained in the accident of October 14, 2013, is more persuasive.
The last issue to be determined herein is whether the Employer must reimburse the Employee for the cost of this proceeding for defending the claim without reasonable ground
pursuant to Section 287.560. Although the current case law is clear with regard to falls from areas in the workplace that people generally are not exposed, it was not as clearly defined at the time of Employee's injury. Employer had the right to question whether or not Employee's injuries occurred during the course and scope of his employment. In this case it was a legal question for which the Employer felt that they were not liable. This Court determines that Employer had the right to question and deny this claim and this Court, therefore, does not find that Employer's defense of this claim was unreasonable herein. Therefore, this Court does not find that Employee is entitled to be reimbursed for the cost of the proceeding for the Employer defending it without reasonable grounds pursuant to Section 287.560.
Wherefore, this Court orders Employer to pay the Employee $221 / 2$ percent permanent partial disability to the right lower extremity at the 207 week level for a total of 46.575 weeks disability, as well as 5 percent permanent partial disability to the body as a whole related to Employee's low back and right hip for a total of 20 weeks of disability. The total weeks of disability are 66.575 weeks times the permanent partial disability rate of $\ 446.85 for a total of $\ 29,749.04 which the Employer owes to the Employee for permanent partial disability herein. The Employer further shall pay to Employee the sum of $\ 7,756.20 for 12 weeks of temporary total disability. The Employer shall also pay to Employee the amount of $\ 37,776.30 as and for medical expenses herein. Finally, the Employer shall provide to Employee any and all additional medical care to cure or relieve Employee's injuries due to the accident of October 14, 2013, as specified by Dr. Swaim.
Finally, this Court awards to Employee's attorney, Corey Jackson, a 25 percent of all benefits awarded herein.
Made by:
Emily Fowler
Administrative Law Judge
Division of Workers' Compensation