Jon Phillips v. ConAgra Foods, Inc.

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

Injury No.: 13-081880

Employee: Jon Phillips

Employer: ConAgra Foods, Inc.

Insurer: Old Republic Insurance Company

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, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge awarding 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 (ALJ) with this supplemental opinion.

The threshold issue in this case is whether the employee's October 14, 2013, injury arose out of and in the course of his employment.

Employee worked as a forklift driver for employer and its predecessors for almost thirtytwo years. On October 14, 2013, at approximately 9:00 a.m. employee sustained an injury when he fell off a shallow graded ramp while entering employer's break room. The ramp had no safety rail. ${ }^{1}$

A Grundy County ambulance report states that, upon arrival at the site of the injury, "According to witnesses and pt., his left leg gave out and pt. fell to concrete floor landing on left hip area. Pt. stated same leg had been broken in 4 places before...." The Grundy County ambulance transported employee to Wright Memorial Hospital where he was seen by Dr. James Dickie at 10:10 a.m. Dr. Dickie's report states "FALL. LEFT HIP INJURY...Occurred at work. (leg gave out on him causing him to fall). The patient complains of severe pain." An x-ray showed employee fractured his left hip. Emergency medical technicians gave employee morphine and transferred him to Liberty Hospital, where he had surgery to repair his left hip the same day.

Employee's Claim for Compensation, filed November 4, 2013, states that while in the course and scope of employment, employee "slipped and fell from an inclined ramp," injuring his left hip.

Dr. Truett L. Swain examined employee on February 24, 2014, at the request of employee's attorney. Dr. Swain's report states, in pertinent part:

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[^0]: ${ }^{1}$ Photographs of the site, taken on September 18, 2014, show dark and light patches on the slope, a soda machine directly alongside the ramp, and a safety hand rail that extends the entire length of the ramp. Employer ordered the installation of the hand rail the day after employee's injury, "to prevent Team Members from falling/slipping off of the graded drop off."

He [employee] ...was stepping off of a ramp to go to the [break room] vending machine and unexpectedly fell. The ramp had no rail. He estimates the step-off was approximately 4-5 inches. He does not know why he fell (emphasis added).

Dr. P. Brent Koprivica evaluated employee on May 6, 2015, at the request of employer/insurer's attorney. Dr. Koprivica's report states, in pertinent part:

Mr. Phillips...was stepping down about 4 to 5 inches from the angled ramp that goes up to the break room. As he was stepping down to a level area where the vending machines are placed, he believes he caught his heel on his left boot on the edge of the ramp causing him to fall. He fell directly on his left hip and left leg in the fall (emphasis added).

At hearing, employee testified that in compliance with employer's rule, he wore steeltoed shoes with heavy waffled rubber soles to work the day of the injury. He stated that at approximately 9:00 a.m. on October 14, 2013, he "started up the ramp...to get a snack...and I turned to come off of that ramp and caught my heel on it. And the next thing I knew I was laying on the floor and laying back against the vending machines." Employee testified "I don't remember how I fell, except my heel, I believe, caught on that ramp"; and later that "I'm not really sure, but I think my heel caught (emphasis added)." Employee testified he was "pretty sure" his left foot caught on the ramp. ${ }^{2}$ The area of the ramp employee fell from was about five inches high. The ramp had yellow paint with a rough, bumpy texture that "had wore down some."

Employee had no recollection of any conversations with ambulance personnel on the date of the injury. He testified that he told Dr. Swain on February 24, 2014, he did not know why he fell. Employee did not remember talking to Dr. Koprivica about why he fell. Employee believed he told Dr. Koprivica that he "didn't know how I fell." Employee also testified he thought it was possible that he told Dr. Koprivica "I don't know how I fell, except that I caught my heel on that boot on that ramp."

Employee sustained an injury to his left knee while working on a farm in 1991, breaking his knee in four places. Employee had surgery to repair his knee and subsequently felt pain in his left knee with weather changes but stated "Besides that, it didn't bother me too much." Employee's left knee never buckled and caused him to fall prior to his October 14, 2013, injury.

Dr. Koprivaca explored idiopathic causes of the injury when he examined employee on May 6, 2015. Dr. Koprivica considered idiopathic to mean "not arising out of and during the course of his employment as being the precipitating event" for which employee "would have been at that same risk if he had been at work or away from work." Based

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[^0]: ${ }^{2}$ On cross-examination, employer/insurer's attorney pointed out that when deposed, employee stated he believed it was his right foot that slipped off the ramp.

On the history employee provided, Dr. Koprivica concluded that employee's October 14, 2013, injury was work-related. Dr. Koprivica considered employee "a very straight forward person, and when I asked him a question, he answered it; and I didn't think there was any evasiveness on his part. I mean, I thought he was an honest person...That was my perception."

Employee's statements describing the details of his work accident over a two-and-a-half year period varied. We find employee's statements reflect a less than perfect recall of the exact circumstances of his injury. We find inconsistencies in employee's accounts understandable, considering the sudden and unexpected occurrence of the injury, the extreme pain caused by his left hip fracture, the effects of medication administered shortly after the accident to alleviate employee's pain and nausea, and trauma of undergoing major surgery the same day as the injury.

The ALJ found the employee to be credible. We note that Dr. Koprivica, employer/insurer's rating physician, also deemed employee "an honest person." The Commission is not required to defer to an ALJ's credibility determination and may come to a different conclusion, so long as there is competent and substantial evidence to support our award. ${ }^{3}$ That said we give careful consideration to an ALJ's credibility determination based on her first-hand observation of witnesses. Based upon our review of all of the evidence in this case, we affirm the ALJ's finding that employee's testimony is credible.

An employee's inability to explain why an accident occurred does not preclude compensability, so long as the employee demonstrates that his injuries came from a hazard or risk related to his employment to which he would not be equally exposed in his normal non-employment life. ${ }^{4}$ The evidence shows that employer required employee to navigate a three to five-inch graded ramp without a guard rail while wearing steel-toed shoes in order to access a designated break area. We find that employer's unguarded ramp constituted a risk source not encountered in employee's 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.

The fact that an employee is not engaged in the performance of his job duties at the time of the injury does not defeat his claim for compensation so long as the employee's injury is a result of a work-related risk. ${ }^{5}$

It is employer/insurer's burden to prove than an injury is idiopathic as an affirmative defense. ${ }^{6}$ In this case, no expert medical evidence supports the conclusion that

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[^0]: ${ }^{3}$ Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo., 2003); McCutchen v. Peoplease Corporation, 195 S.W.3d 421 (Mo. App., 2006).

${ }^{4}$ Gleason v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, 455 S.W.3d 494 (Mo. App. 2015).

${ }^{5} Lincoln University v. Kathy Norens, 485 S.W.3d 811 (Mo. App. 2016).

{ }^{6}$ Id., at 503.

Employee's injury of October 14, 2013, was caused by his leg suddenly and unexpectedly giving out due to an idiopathic condition peculiar or innate to employee. We conclude that employer/insurer did not meet its burden of proving that employee's injury was due to an idiopathic cause.

Therefore, we affirm the ALJ's award finding that employee sustained a compensable injury within the course and scope of his employment on October 14, 2013.

Employee appeals the ALJ's decision to deny assessment of attorney fees and costs against employer/insurer pursuant to $\S 287.560$ RSMo. Section 287.560 RSMo provides, in relevant part: [I]f the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.

The Commission is authorized under the foregoing section to award costs and attorney's fees incurred by a party in responding to proceedings that are brought, prosecuted, or defended without reasonable ground. ${ }^{7}$ We are to exercise our authority only "where the issue is clear and the offense egregious." "An employer's defense is without reasonable ground where the employer offers "absolutely no ground, reasonable or otherwise'" for refusing benefits clearly owed to a claimant because his injury was indisputably work-related." 9

On November 20, 2013, employer's third party workers' compensation benefits administrator informed employee that pursuant to its investigation it determined that work was not "the prevailing factor" in employee's fall at work on October 14, 2013, and that "[a]s we do not know the nature of your fall it appears idiopathic in nature."

Employer/insurer's Answer to Claim for Compensation, filed November 21, 2013, denied that all conditions complained of were causally related to the accident.

Employer/insurer's attorney subsequently raised the issue of whether employee's accident was a result of an idiopathic cause at the hearing on May 4, 2016. Based on this evidence we believe employer/insurer had a colorable defense to the claim. We agree with the ALJ's conclusion that employer had the right to question and deny this claim and that employer/insurer's defense of this claim was not unreasonable. We therefore affirm the ALJ's denial of costs and attorneys fees against employer/insurer.

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

The award and decision of Administrative Law Judge Emily Fowler, issued July 11, 2016, is attached and incorporated by this reference.

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[^0]: ${ }^{7}$ DeLong v. Hampton Envelope Co., 149 S.W.3d 549, 555-556 (Mo. App. 2004) (citation omitted).

${ }^{8} Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. 2003)

{ }^{9}$ Clark v. Harts Auto Repair, 274 S.W.3d 612, 618. (Mo. App. 2009) (citations omitted).

Given at Jefferson City, State of Missouri, this 7th day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Jo