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: Jon Phillips

Injury No: 13-081880

Dependents: N/A

Employer: ConAgra Foods, Inc.

Insurer: Old Republic Insurance Company

Additional Party: N/A

Hearing Date: May 4, 2016

Checked by: EF/drl

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 14, 2013
5. State location where accident occurred or occupational disease was contracted: Trenton, Brundy County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of his employment, Employee was walking up and then off a ramp when he fell to his left hip causing injury.
12. Did accident or occupational disease cause death? No

Date of death? N/A

Employee: Jon Phillips

Injury No: 13-081880

Dependents: N/A

Employer: ConAgra Foods, Inc.

Insurer: Old Republic Insurance Company

Additional Party: N/A

Hearing Date: May 4, 2016

Checked by: EF/drl

On May 4, 2016, the parties appeared for a hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Jon Phillips, appeared in person and with counsel, Mr. Corey Jackson. The Employer/Insurance carrier appeared through counsel, Mr. John Fox.

The parties stipulated to the following:

1. That the employer was operating subject to the Missouri Workers' Compensation law on October 14, 2013 and its liability was fully insured by Old Republic Insurance Company;
2. That Jon Phillips was its employee;
3. That Employee was working subject to the law in Trenton, Brundy County, Missouri;
4. That Employee notified the Employer of his injury as required by law and the Employee's claim was filed within the time allowed by law;
5. That the Employee's average weekly wage was $\ 969.52 resulting in a compensation rate of $\ 646.35 for temporary total disability and $\ 446.85 for permanent partial disability compensation;
6. That the Employer has not paid any temporary total disability compensation nor any medical care.

The issues to resolve in this hearing are as follows:

1. Whether Employee sustained an accident arising out of and in the course of his employment;
2. 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;
3. Whether the Employer must reimburse to the Employee for medical expenses totaling $\ 37,776.30;
4. Whether the Employer must provide the Employee with additional medical care pursuant to determination made by Dr. Swaim;
5. Whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability;
6. Whether the accident that caused the disability Employee claim with regard to Employee's low back and right hip symptoms
7. Whether the Employer must reimburse the Employee the cost of this proceeding for defending the claim without reasonable grounds pursuant to Section 287.560.

The Employee, Jon Phillips, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit A - Employee Swaim \& Koprivica 60 Day

Exhibit B - Medical Files of Grundy County Ambulance, Liberty Hospital, Liberty Ortho, Wright Memorial Hospital

Exhibit C - Division Records

Exhibit D - Handrail Employer Statement \& Photos

Exhibit E - Personnel File

Exhibit F - Trover Lien

Exhibit G - Alliance Radiology Bill

Exhibit H - Client Contract \& Expenses

Exhibit I - Idiopathic Denial Letter

The Employer offered no live testimony, but offered the following exhibits, which were admitted into evidence without objection:

Exhibit 1 - Claim for Compensation

Exhibit 2 - Grundy County Ambulance Report

Exhibit 3 - Deposition - Dr. Brent Koprivica

Based on the above exhibits and the testimony of the Employee I make the following findings.

Jon Phillips, hereinafter referred to as Employee, testified that he initially injured his left knee in 1991 where he broke the knee and bones in approximately four places which was treated with surgery which included screws and washers. He stated that the symptoms prior to his accident of 2013 were mainly that weather would cause pain in his knee and that he maybe had arthritis but it did not bother him too much. On October 14, 2013 Employee stated that he was walking up a ramp in the break room and made a right turn to step off the ramp when his heal caught and he fell to the floor causing injury to his left hip. He is not sure if anyone witnessed it or who was around, but eventually a supervisor and a nurse showed up and the ambulance came and took him to Wright Memorial Hospital. He did not remember saying anything to the ambulance drivers with regard to how the injury happened. He was off of work until January 6, 2014 because he was unable to work due to the condition of his hip. He had received surgery which included a rod and other instrumentation to repair the injury to his hip. He stated that now his hip hurts all the time, both the right and left hip, as well as his lower back. He has gained approximately 10 to 15 pounds and he stated his gait is different due to his injury. He noted there were no physical problems to his left hip, right hip, or low back prior to his fall. He turned the medical bills in to his group health insurance and assumed that they had been paid. He does not know how much has been paid to date. He attempted to have the bills paid by Workers' Compensation insurance, but received a letter on November 20, 2013, saying that the claim had been denied.

He noted that his right hip causes pain now because he limps due to the injury to the left hip. If he walks very far, he feels right hip pain of approximately 4-5 out of a scale of 1 to 10 . He is able to alleviate the pain once he gets off his feet. Likewise, his low back is painful because he feels that his gait is impaired since his hips are not straight. He states that he has a pain level of 4 out of 10 when he walks too much, and his pain is alleviated with rest. He noted with regard to the left hip that he has pain even just sitting. His resting pain is approximately 3 out of 10 and gets worse upon physical exertion. He finds it hard to get down on the floor and try to get back up again, and as his mobility increases, his pain increases.

He testified that his work at ConAgra and for the previous employers at the same plant has always been as a forklift driver for the receiving crew. He noted that the forklift he drives has pedals and after a typical workday his pain is a 3 to 4 in the left hip but a 5 to 6 in the right hip. He states he does not take any pain medication, either prescription or over the counter. He only takes medication for his glaucoma. He noted that he is less active than prior to his injury. He used to mow his lawn but now has a riding mower and he has his boys do the weed eating. He cannot walk and push a mower anymore. These problems also affect his ability to interact with his grandchildren. He cannot get on the floor to play with the little ones. In order to alleviate pain he normally uses a heating pad and sits down.

He noted that the injury occurred when he was walking up and then off of a ramp to get to the soda and snack machines. There is a large picnic bench table in the way and it was difficult to get around it. So the routine was to walk up the ramp and then step off in order to get to the snack machines. He is part of a union and due to his union contract he is still on the clock even

during breaks. His breaks are two 15-minute breaks a day plus a dinner break in the middle of the day. He is allowed to stay on the premises for the dinner break. Since returning to work he has gone to a chiropractor starting at the beginning of this year and will see the chiropractor approximately two or three times a year. He does this to pop his back and get it realigned.

On cross-examination he admitted he started working at the plant February 5, 1985, but it was owned at the time by Carnation, then Nestle, then eventually ConAgra. He believes ConAgra took over approximately 15 years ago. He notes that he currently has health insurance through ConAgra with Blue Cross Blue Shield. To the best of his knowledge the bills were submitted for payment to them. He stated that nobody from Blue Cross Blue Shield ever told him that they would not pay these bills because it was a workers' compensation claim. He noted that he worked side jobs a number of years ago for a farmer hauling hay and that is how he broke his leg on September 25, 1991, when he was climbing a fence.

He states that he is not one hundred percent sure exactly how he fell. It was noted that the claim states he slipped and fell from the inclined ramp, but he feels that the best explanation is that his heel caught on the ramp. He was wearing steel toed boots with rubber soles and it was the boot that caught on the ramp. He states that, when he stepped off the ramp, his left foot got caught. However, it was noted that in his deposition that he stated it was his right foot. In live testimony, he felt that it was probably his left foot which got caught. He agreed that the ramp area that he stepped off of was approximately five inches high off the floor and that there was no moisture or water on the ramp. He did not pass out or feel dizzy at all after the fall. Again, he stated that he did not recall saying anything to the ambulance personnel with regard to how the injury occurred. He further did not recall stating anything to the nurses or medical personnel who cared for him at either Wright Memorial or Liberty Hospital. He admitted that, after the accident and the hip surgery, he did return to the same job as before with the same hours. At times he was working up to seven days a week. He noted that after February they are no longer doing the extended seven days as ConAgra is selling the plant. He admitted that he had been up and down that ramp probably thousands of times for the 20 years that the ramp was in the break room and had never fallen before. He does not recall telling Dr. Swaim that he does not know why he fell. He further does not recall talking to Dr. Koprivica about why he fell. He was not absolutely sure that he caught his heel. He simply does not know what happened, but his best explanation is that he caught his heel.

On redirect the Employee admitted that he was given Morphine in the ambulance and that his focus was on his broken hip, not exactly how or why he fell. He noticed that, even though he has stairs at home, they are not an inclined ramp and he does not normally wear steel toed shoes or boots with heavy waffle soles when he is walking up and down his stairs at home. A hand rail had been put in place after he fell so a person can no longer step off the edge of the ramp now. He admitted that he knew Gary Smiley used to be the safety manager and felt that possibly Mr. Smiley sent an order saying that the handrail is a hot safety item and he did that because Employee had fallen. He again reiterated that he had worked an average of 56 hours a week for over a year prior to the injury and he probably walked up and off the ramp 6 times a day. He had never had his left knee buckle under him either inside or outside of work or cause him to fall. He did sue the farmer who he was working for back in 1991 when he injured his knee and received $\ 3,000 from the lawsuit. He had never filed any other workers' compensation claims prior to

this one. He recalls asking to take a photograph of the ramp but was denied to do so by the employer.

After reviewing Employee's testimony along with the submitted evidence this Court finds his testimony to be credible.

Employee also offered as an exhibit the report of Dr. Truett Swaim as well as all of the medical records with regard to Employee's care for this injury. Dr. Swaim notes that on October 14, 2013, while at Employee's workplace, Employee was in the lunchroom area and stepping off a ramp to go to a vending machine when he unexpectedly fell. Employee noted that the step-off was approximately four to five inches and he does not know why he fell. He wound up lying on his left side with his back against the vending machines and had significant pain in his left hip. He was transported by ambulance to Wright Memorial Hospital where he was evaluated, diagnosed with left hip fracture and was transferred to Liberty Hospital. He was sent to Liberty Hospital and underwent surgery, a reduction and fixation of the fracture and was hospitalized until October 17. Postoperatively Employee followed up with the treating physician, Dr. Rives. He had also developed right hip pain which he told Dr. Rives about and also an increase in pre-existing low back discomfort. Employee was allowed to return to work on January $6^{\text {th }}$ without any restrictions. Dr. Swaim noted that Employee's current status included constant discomfort of the left hip, which was generally an aching sensation with intermittent sharp and/or burning pain; left hip discomfort increases with prolonged walking, standing, stooping, stair climbing, squatting, lifting, and prolonged sitting. There is a decreased motion in the left hip. His discomfort improved by resting or taking a hot shower. He does have medication for pain, but does not want to take it. He noted that the pain was averaged at 5 on a 10 scale and a high of 9 and a low of 2. Dr. Swaim also noted that Employee stated he had intermittent low back pain, his low back pain occurs with prolonged standing, walking, lifting, or twisting. The chronic intermittent low back pain was present prior to the injury, but has become worse since the injury. Further, his right hip pain increases with lifting, carrying, and prolonged walking. He has also developed numbness and tingling of the right distal thigh laterally without any specific precipitating cause. He also noted there is chronic discomfort of the left knee which is exacerbated by weather changes, lifting, carrying, prolonged walking, and stair climbing. This is related to the 1991 left tibia fracture.

With regard to Employee's functional status, Dr. Swaim noted that Employee has difficulties and increased pain with occupational activities, walking, carrying, household chores, yard work, prolonged driving, stair climbing, and sexual activity. He was not placed under any official permanent work restrictions, but does self-restrict activities that aggravate his symptoms. Dr. Swaim noted that there is no significant history of any pre-existing occupational injury or pre-existing left hip, right hip, or right thigh conditions. Upon examination, Dr. Swaim noted that Employee's lumbar region revealed mild tenderness at the left SI joint region. Further, there was muscle spasm and guarding noted on examination. Deep tendon reflexes were $1+$ on the right patellar tendon and absent at the left patellar tendon. Deep tendon reflexes were absent at both Achilles tendons. He noted that Employee could not squat, he could toe raise on the right with difficulty. He has extensor contraction of the left ankle and walked with a severe antalgic gait with significant limp and Trendelenburg component. He could navigate steps with difficulties and used hand rails to assist in navigating the steps. He noted there was pain with

motion of the left hip, especially with internal rotation and, further, there was left hip weakness in every motion.

Examination of the knees revealed tenderness of the left knee and mild tenderness of the right patellar region. He noted further there was atrophy of the left quadriceps, the right knee has a 4 degree valgus alignment and the left knee has a neutral degree varus/valgus alignment. Further, there were hypertrophic changes of the left knee and mild-moderate crepitation at the patellofemoral articulation with range of motion of the right knee. There is severe crepitation with range of motion of the left knee. He found extensor contraction of the left ankle. He concluded that Employee suffered left hip pain with weakness and decreased range of motion; status post left hip fracture necessitating fixation. Further, he found status post treatment of left tibia/fibular fracture and possible patella fracture, severe posttraumatic arthritis of the left knee and significant left ankle fracture related to the left knee injury. He also noted chronic lumbar pain, probable degenerative changes, and right hip pain with history of right thigh dysesthesias.

He noted that the occupational injury of October 14, 2013, that Employee sustained working for ConAgra Foods, caused him to sustain a left hip intertrochanteric fracture. He further determined that the injury of October 14, 2013, sustained while working for ConAgra Foods, caused or was the prevailing factor to cause him to develop left hip pain with decreased motion and weakness. Further, that it was the prevailing factor to cause the necessity for the evaluation and treatment he has had for the left hip condition since the occupational injury occurred. He also found that the injury of October 14, 2013, was the prevailing factor to cause him to develop lumbar strain and right hip strain due to protecting the left hip and altering his gait. He felt that the medical bills from the various medical treaters reflected the usual and customary fees for services rendered and they reflected medical billings which were necessitated to evaluate and treat Employee for the occupational injury sustained on October 14, 2013, while working for ConAgra.

Dr. Swaim determined that Employee's permanent disability was a 25 percent permanent partial disability of the left leg at the 207 week level. He further felt that Employee had a 5 percent permanent partial disability to the body as a whole due to the lumbar and right hip conditions combined. He also felt that Employee was temporarily totally disabled between October 14, 2013 to January 6, 2014, as a result of the occupational injury of October 14, 2013, which he sustained while working for ConAgra. Dr. Swaim felt that Employee would become a candidate for the removal of the left proximal femur hardware at some point and that the estimated charge would be approximately $\ 15,000. He also felt that, due to the right hip discomfort and increase in discomfort to Employee's lumbar region, that he would be a candidate to undergo evaluation and potential treatment of these conditions, including x-rays of the lumbar area and right hip. The treatment would be conservative as it relates to occupational injury and most likely consist of medication and/or therapy. The estimate charge for evaluation, including x-rays, would be $\ 400. Employee also offered medical records with regard to all treatment for Employee's injury.

The Employer offered the deposition of Dr. Brent Koprivica along with his medical rating. Dr. Koprivica noted that, after reviewing the medical records and examining the Employee, that he felt the fall sustained on October 14, 2013, was the proximate, direct, and prevailing factor in the development of Employee's comminuted intertrochanteric left hip

**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