Winifred Thompson-Jamison v. Mediplex Health Care

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

At the initial setting of the hearing before the administrative law judge on July 27, 2015, the parties asked the administrative law judge to resolve the following issues: (1) whether employee sustained an accident arising out of and in the course of her employment; (2) medical causation; (3) employer/insurer’s liability, if any, for past medical expenses; (4) employer/insurer’s liability, if any, to provide future medical care; (5) whether employee is entitled to temporary total disability benefits; (6) the nature and extent of employee’s disability; and (7) the liability, if any, of the Second Injury Fund.

At the second setting of the hearing before the administrative law judge on August 24, 2015, employee and employer/insurer announced a settlement of all issues pertaining to employer/insurer’s liability in this case. Consequently, the only remaining issues before the administrative law judge were the following: (1) whether employee sustained an accident arising out of and in the course of her employment; (2) medical causation; (3) the nature and extent of employee’s disability; and (4) the liability, if any, of the Second Injury Fund.

The administrative law judge concluded as follows: (1) the credible evidence establishes employee was simply walking when she fell; (2) employee’s injury does not arise out of and in the course of employment; and (3) employee’s claim against the Second Injury Fund is not a compensable claim.

Employee filed a timely application for review alleging the administrative law judge erred: (1) in finding employee’s fall did not arise out of the course and scope of her employment; and (2) in admitting the testimony of Officer Jeremy Brown. Employee requests in her application for review that the Commission award permanent total disability benefits from the Second Injury Fund.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee was 68 years of age at the time of the hearing in this matter. Employee did not graduate high school, but obtained a GED and thereafter an associate's degree in nursing. She spent most of her career as a floor nurse, caring for patients and performing the heavy-duty physical demands attendant to this work.

Employee suffered a serious low back injury in 1983 or 1984, while lifting a patient. Treating physicians diagnosed a herniated disc, and employee ultimately underwent a lumbar laminectomy surgery. This injury and its aftermath hindered employee's ability to work as a nurse by making it harder for her to lift and care for patients. Nevertheless, employee continued working as a nurse with the help of coworkers, who assisted with heavier duties.

Employee was in a motor vehicle accident in 1993. Radiological studies at the time revealed high grade stenosis and severe spinal canal narrowing at L4-L5, and diffuse spondylosis with spinal canal narrowing throughout the lumbar spine. Employee ultimately underwent a decompressive lumbar microdiscectomy surgery at L4-5 in late December 1993. Employee was unable to return to her heavy-duty physical work as a nurse after this injury, owing to her physical limitations, including an inability to lift over 20 pounds.

Employee's evaluating medical expert, Dr. Shawn Berkin, rated employee's preexisting permanent partial disability referable to the low back at 35 % of the body as a whole referable to the lumbar spine. Dr. Berkin additionally rated 10\% preexisting permanent partial disability with respect to the cervical spine; this rating was not contradicted by any other expert medical opinion evidence in the record. We find these ratings persuasive, and adopt it as our own.

Following the 1993 accident, employee applied for and received social security disability benefits, and did not perform any work in the open labor market for almost a decade. In 2003, however, employee decided to return to work when a friend hired her as a director of nursing. Employee worked this sedentary job from 2003 through 2006 with accommodations including flexible hours and the ability to alternate sitting and standing as needed. She left that job to take a better-paying position with employer, where she worked as a supervisor and then in quality assurance, performing sedentary duties, and receiving similar accommodations.

At the outset, we acknowledge the conflicting evidence in this case turning on the critical issue whether employee slipped on a wet, shiny substance in employer's break room, or simply fell while walking, for reasons unknown. Employee consistently testified both at her deposition and at trial that she did slip on a wet, shiny substance, and that

this event caused her to fall. On the other hand, the Second Injury Fund points to the contemporaneous medical treatment records, which do not include any mention of a wet, shiny substance on the floor, and the testimony from witnesses, including coworkers and a responding police officer, each of whom failed to notice a wet, shiny substance on the floor. The Second Injury Fund also advances the testimony of Jeri Cashin, an insurance adjustor, who took a statement from employee while employee was in the hospital recovering from emergency spinal surgery. According to Ms. Cashin's testimony, employee told her that there was nothing abnormal on the floor, and that she merely fell.

We additionally acknowledge that the administrative law judge thoroughly discussed and analyzed this evidence and ultimately ruled against employee, finding her testimony lacking persuasive value in the face of the contradictory evidence. Notably, however, the administrative law judge did not specifically identify her own personal observations of employee's testimony as a basis for finding her testimony lacking credibility. Instead, it appears that the administrative law judge simply found the conflicting evidence more persuasive, and then declined to credit employee's testimony on this sole basis. This is evident in the fact that the administrative law judge expressly found employee to be a credible and persuasive witness with regard to nearly every other factual issue.

In other words, it does not appear to us that the administrative law judge's ability to personally observe employee's testimony played any special role in her ultimate findings with regard to whether a wet, shiny substance caused employee's workplace fall. For this reason, we were not persuaded to simply defer to the administrative law judge's findings on this point, but rather have conducted our own painstaking review of all of the evidence with regard to this critical factual issue. Ultimately, we reach the opposite result, for the following reasons.

First, we must recognize that the factual issue whether there was a wet, shiny substance on the floor is critical in this case primarily because of a recent line of judicial decisions in Missouri instructing that workplace injuries are not compensable where an employee "just fell" or is injured during an innocuous activity such as walking. See, e.g., Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012) and Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671 (Mo. 2009). Obviously, as the finders of fact in this workers' compensation proceeding, we must focus on such details as whether there was a wet, shiny substance on the floor for the purpose of conducting a proper review in light of controlling judicial precedent. On the other hand, we are not persuaded that an injured employee's failure to focus on such details, especially in the moments after suffering a traumatic injury resulting (as further discussed below) in the immediate loss of sensation in her lower extremities, constitutes persuasive evidence that there was not a wet, shiny substance on the floor, after all. In our view, the same considerations apply to the coworkers who came to employee's aid, as well as the responding police officer-the latter of whom, by the way, conceded that he could not affirmatively testify there was not a wet, shiny substance on the floor at the time employee fell.

Second, we simply are not persuaded by Ms. Cashin's testimony on this point. As noted above, Ms. Cashin called employee while she was in the hospital, recovering from an emergency spinal surgery. At that time, Ms. Cashin was acting as an agent of the insurer, who was (before the settlement with employee, at least) an interested party in this contested workers' compensation claim. It is obvious, we think, that Ms. Cashin's questioning was most likely conducted with an eye toward accumulating facts that would, if possible, minimize insurer's liability and overall exposure for this workplace injury. Ms. Cashin, by her own admission, did not inquire into employee's whereabouts or mental state at the time of making this phone call, and instead proceeded to question employee about the circumstances of the fall. Suffice to say we do not find credible, in the least, Ms. Cashin's testimony suggesting it shouldn't matter whether someone is in the hospital recovering from surgery, or under the influence of medication at the time of giving a statement to an insurance adjustor regarding the material facts surrounding a workplace accident. Employee, for her part, could not even remember having received this phone call or making this statement to Ms. Cashin; this, in our view, speaks volumes to employee's mental state at the time and significantly undercuts the reliability of the statement taken by Ms. Cashin.

Third, we are not persuaded that employer's internal investigation persuasively rules out the existence of a wet, shiny substance on the floor in employer's break room at the time of employee's fall. We find it extremely unlikely that an employee would readily admit to having spilling the liquid that was responsible for causing a serious fall that left a coworker paralyzed. More importantly, employee's clothing could have simply soaked up the liquid entirely, leaving none to be discovered by investigators thereafter; employee did testify that her clothing felt wet after she fell.

Fourth, as the Missouri courts have consistently and repeatedly declared, "[t]here is no requirement that the medical records report employment as the source of injury." Daly v. Powell Distrib., Inc., 328 S.W.3d 254, 259 (Mo. App. 2010). Again, we will not fault an employee for failing to specify to treating medical providers each and every minute circumstance of a workplace accident, especially in a case such as this, where the effects of the injury were severe and employee was understandably more focused on the fact she had lost all feeling in her legs, rather than preserving a record that would conform to the exacting requirements set forth in cases such as Johme and Miller. Nor are we particularly troubled by employee's failure to allege, in her claim for compensation, the specific circumstance of employer's floor being wet, as it is wellsettled that litigants in workers' compensation proceedings are not required, in their initial pleadings, to state facts sufficient to support a particular claim or legal argument. See, e.g., Loyd v. Ozark Electric Coop., Inc., 4 S.W.3d 579, 586 (Mo. App. 1999). We find it more important that the first time employee was under oath in this matter, she testified consistently with her trial testimony in indicating the presence of a wet, shiny substance on the floor at the time of her fall.

In light of all of the foregoing considerations, and after much deliberation, we are most persuaded to credit the testimony from employee on this point. Accordingly, we find as follows with regard to the primary injury.

On July 27, 2006, employee went to employer's break room to get a cup of coffee. Employee took a few steps into the break room, then fell onto the ground, as her feet slipped out from under her. On her way to the ground, employee saw a wet, shiny substance on the floor. Employee landed on her stomach and heard a pop, then rolled onto her back. After the fall, employee felt with her hands the leg of her pants, and noticed it was wet. She also felt something wet on the floor. Employee experienced immediate pain in her low back, and also realized, to her alarm, that she couldn't feel her legs. As she was unable to get off the floor, employee began yelling for help.

After being transported to St. Mary's Health Center by emergency personnel, employee underwent an MRI, which revealed severe central canal stenosis at T10-11 due to facet arthropathy and hypertrophy of the ligamentum flavum; and moderate to severe central canal stenosis at L3-L4 with mild stenosis at T12-L1 and L2-L3. Dr. William Sprich performed an emergency thoracic laminectomy at T9, T10, T11 and T12 to address a diagnosis of acute paraplegia.

After her discharge from the hospital, employee continued to suffer from weakness and instability in her legs, causing multiple falls and prompting employee to seek additional emergency treatment. Employee underwent another spine surgery on November 28, 2006, which consisted of laminectomies at T12 through L5 performed by Dr. Robert Grubb, to address a diagnosis of lower thoracic myelopathy and cauda equina compression. Employee then underwent a third surgery on December 11, 2006, for a debridement to address an infection of her surgical wounds.

Employee continued to suffer falls and require emergency treatment for severe complaints of low back pain and lower extremity weakness; like the administrative law judge, we do not discern a need to recount all such treatment in our award herein. Ultimately, the Second Injury Fund's evaluating medical expert, Dr. Robert Bernardi, opined that employee had reached maximum medical improvement by the date of his examination on June 4, 2008. We find this opinion persuasive, and adopt it as our own

Employee's current complaints include severe pain in her mid and low back that radiates into her lower extremities, leg weakness, and numbness in both feet. She uses a walker or wheelchair most of the time, as she suffers from severe difficulties with balance. To manage her symptoms, she takes multiple prescription medications on a daily basis, including morphine, Dilaudid, and zitanidine. Employee currently lives with her daughter in Atlanta, Georgia, whom she relies upon for daily assistance with basic activities of daily living, including all personal care and bathing, dressing, and routine household tasks.

As we have noted above, employee presents the expert medical opinion of Dr. Shawn Berkin, who examined employee on July 24, 2007. Dr. Berkin believes the fall at work of July 27, 2006, was the prevailing factor causing employee to suffer the resulting medical conditions of a contusion to the lumbar spine with spinal cord trauma and acute paraplegia, as well as an aggravation of preexisting multilevel degenerative arthritis of

the thoracic and lumbar spines. After recounting employee's additional treatment in a supplemental report dated November 12, 2011, Dr. Berkin ultimately rated 55\% permanent partial disability of the body as a whole referable to the thoracolumbar spine for the effects of the July 2006 injury, and indicated his belief that employee is unable to compete for or maintain gainful employment in the open labor market owing to the combination of her disabilities.

The Second Injury Fund, on the other hand, presents the expert medical opinion of Dr. Robert Bernardi, who examined employee on June 4, 2008. Dr. Bernardi noted that employee's low back was severely compromised as of July 2006, but he agreed with Dr. Berkin that the fall at work was the prevailing factor causing employee to suffer a new injury affecting her spinal cord. Specifically, Dr. Bernardi found that the fall at work caused employee to develop thoracic myelopathy, for which she required the emergency surgery performed by Dr. Sprich. Dr. Bernardi rated a 35\% permanent partial disability of the body as a whole for the work injury.

Employee also presents the expert vocational opinion of Stephen Dolan, a vocational rehabilitation counselor who examined employee on October 1, 2012. Mr. Dolan believes that, while employee has numerous transferable skills from her lengthy career in the medical field, she is unlikely to find work in the open labor market given her physical condition, especially her inability to stand or walk for long distances without an assistive device, and her poorly controlled pain problem and frequent hospitalizations. Mr. Dolan credibly opined that employers don't like to see employees with walkers, and consider them liabilities. Mr. Dolan noted that, even with a walker, employee appeared to be very unsteady on her feet, to the extent that he accompanied her outside after the evaluation to ensure she didn't fall. In Mr. Dolan's estimation, employee is "extremely disabled." Transcript, page 417.

Notably, both Drs. Bernardi and Berkin agreed that the July 2006 fall at work was the prevailing factor causing employee to suffer a new injury, despite the fact she suffered from rather severe preexisting permanent partial disability referable to her spine. We find most persuasive, and adopt as our own, Dr. Berkin's opinion that the fall at work caused employee to suffer a contusion to the lumbar spine with spinal cord trauma and acute paraplegia, as well as an aggravation of preexisting multilevel degenerative arthritis of the thoracic and lumbar spines. We further find persuasive, and hereby adopt as our own, the unanimous opinions from Dr. Berkin and Mr. Eldred indicating that employee will be unable to compete for work in the open labor market. We specifically credit the opinion from Dr. Berkin that such permanent total disability is a product of the effects of her preexisting disabling conditions combined with the effects of the last work injury.

Section 287.020.2 RSMo controls our determination with regard to the issue of accident, and 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.

We have found that on July 27, 2006, employee fell in employer's break room, and suffered the immediate onset of symptoms indicative of a serious injury, including the loss of sensation in her legs. These findings satisfy each of the criteria for an "accident" as defined above. We conclude that employee sustained an accident.

Section 287.020.3(1) RSMo sets forth the statutory test 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.

We have credited the essentially unanimous opinions from the testifying medical experts that the accident of July 27, 2006, was the prevailing factor causing employee to suffer the claimed injuries. Accordingly, we conclude that the accident was the prevailing factor causing employee to suffer the resulting medical conditions of a contusion to the lumbar spine with spinal cord trauma and acute paraplegia, as well as an aggravation of preexisting multilevel degenerative arthritis of the thoracic and lumbar spines, with associated permanent partial disability of 50 % of the body as a whole.

The primary dispute in this matter turns on whether employee's injuries arose out of and in the course of the employment. Section 287.020.3(2) RSMo controls our analysis with regard to this question, and 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.

We have already determined that the accident is the prevailing factor causing employee's injuries, so we must conclude that § 287.020.3(2)(a) is satisfied. Turning to the unequal exposure test under $\S 287.020 .3(2)(b)$, we have found that employee

slipped on a shiny, wet substance on the floor while walking into employer's break room, and that this circumstance caused her to fall. Effectively, we have found that employee's injuries were the product of her encountering a dangerous condition in her workplace. The courts have instructed that dangerous conditions that are encountered at work constitute, by their very nature, hazards or risks that are intrinsically related to the employment, and are not those to which workers would be equally exposed outside of work. See, e.g., Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. 2014).

Here, there is no evidence on this record that would support a conclusion that workers would have been equally exposed to the risk of slipping on a wet, shiny substance on the floor in employer's break room outside of and unrelated to the employment in normal, nonemployment life. Instead, the evidence overwhelmingly demonstrates that the risk or hazard from which employee's injuries came was directly related to her work, in that it amounted to a unique, dangerous condition of the workplace.

We conclude, therefore, that employee's injuries arose out of and in the course of her employment.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that she suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

We have found that, at the time of the primary injury, employee suffered preexisting permanent partial disability referable to the lumbar and cervical spines. After careful consideration, we are convinced that employee's preexisting disability was serious enough to constitute a hindrance or obstacle to employment. This is because we are convinced that employee's preexisting disabling conditions had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of these preexisting conditions. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

We turn now to the question whether employee satisfied the statutory requirements for proving the claim of permanent total disability against the Second Injury Fund.

Fund liability for PTD under Section 287.220.1 occurs when [the employee] establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For [the employee] to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD.

Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014).

Section 287.220 requires us to first determine the compensation liability of the employer for the last injury, considered alone. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003). If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, not the Second Injury Fund, is responsible for the entire amount of compensation. Id.

We have found that the last injury did not render employee permanently and totally disabled in isolation, but instead resulted in a 50 % permanent partial disability of the body as a whole. We have also credited the opinion from the testifying expert Dr. Berkin that employee is unable to compete for work in the open labor market as a result of the primary injury in combination with her preexisting disability. We conclude, therefore, that the Second Injury Fund is liable for permanent total disability benefits.

We reverse the award and decision of the administrative law judge. We conclude that employee suffered a compensable injury by accident arising out of and in the course of her employment.

The Second Injury Fund is liable for weekly permanent total disability benefits beginning on the date of maximum medical improvement, June 4, 2008, at the differential rate of $\ 252.64 for 200 weeks, and thereafter at the stipulated weekly permanent total disability rate of $\ 629.19. The weekly payments shall continue for employee's lifetime, or until modified by law.

This award is subject to a lien in favor of Robert Merlin, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued November 9, 2015, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $\qquad 15th \qquad$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

DISSENTING OPINION FILED

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed.

As noted by the Commission majority, the administrative law judge concluded that employee's injuries did not arise out of and in the course of her employment. Specifically, the administrative law judge stated that she was not persuaded by employee's testimony that she slipped on a shiny, wet substance on the floor in employer's break room. The administrative law judge reached this determination after contrasting employee's testimony with the evidence set forth in the contemporaneous medical records and the statements from witnesses who were there when employee fell, all of which suggested there was no wet or shiny substance on the floor at the time employee fell.

I am mindful that the administrative law judge was able to observe employee as she testified, whereas we have only the written transcript of employee's testimony for purposes of our own review. Although the administrative law judge did not specifically discuss or describe her own personal observations of employee as a basis for finding employee's testimony with regard to the accident lacking credibility, it is implicit to me from the administrative law judge's ultimate findings and award that she was simply not persuaded by the testimony that she observed.

As a matter of general policy, I am reluctant to overturn an administrative law judge's express credibility determinations with regard to the witnesses that testify before them. After careful consideration, I am not persuaded to disturb the administrative law judge's credibility determination in this case. For this reason, I affirm and adopt as my own the administrative law judge's conclusion that employee's injuries did not arise out of and in the course of her employment, because she was merely walking when she fell. See Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671 (Mo. 2009). Consequently, I conclude that the claim is not compensable, and that all other issues are moot.

I would affirm the administrative law judge's award denying compensation. Because the Commission majority has decided otherwise, I respectfully dissent.

John J. Larsen, Jr., Chairman

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: July 27, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis
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? No
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: Claimant fell while at work, but not because she was at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 943.78
3. Weekly compensation rate: $\$ 629.19 / \ 376.55
4. Method wages computation: By agreement

1. Amount of compensation payable:

Employer/Insurer settled its liability.

1. Second Injury Fund liability: No
2. Future requirements awarded: None

The matter of Winifred Thompson-Jamison aka Winifred Thompson ("Claimant") proceeded to hearing to determine the liability of the Second Injury Fund. Attorney Robert Merlin represented Claimant. Assistant Attorney General Kristin Frazier represented the Second Injury Fund. Mediplex Health Care ("Employer") and it insurer, whom Attorney Rick Day represented at trial, settled their risk of liability with Claimant by the second day of trial, and the case was submitted against the Second Injury Fund only.

The parties stipulated that on or about July 27, 2006, Claimant was an employee of Employer working in the City of St. Louis and earning an average weekly wage of $\ 943.78, with corresponding rates of compensation of $\ 629.19 for permanent total disability ("PTD") and $\ 376.55 for permanent partial disability ("PPD"). Employer paid no temporary total disability ("TTD") or medical expenses.

After Employer settled, the issues were: 1) Did Claimant sustain a compensable accidental injury arising out of and in the course of employment; 2) What is the nature and extent of Claimant's disability; and 3) What is the liability of the Second Injury Fund? Claimant seeks to recover PTD benefits on account of the combination of her primary and preexisting injuries.

Claimant offered voluminous records. Admitted without objection were the depositions of Dr. Berkin (Exhibit 1), Mr. Dolan (Exhibit 2) and Ms. Vinson (Exhibit 3), and the Claim for Compensation (Exhibit 4). Exhibits 6 through 39, admitted without objection, consisted of medical records and bills primarily related to Claimant's post-injury treatment. Employer's exhibits, which were adopted by the Second Injury Fund and admitted without objection, consisted of the transcript and audio of Claimant's recorded statement (Exhibits A \& B), the deposition of Dr. Bernardi (Exhibit E) and a photographs of the accident scene (Exhibit F). The Second Injury Fund offered transcripts of Claimant's March 16, 2007 deposition (Exhibit Roman Number I) and the November 22, 2013 deposition (Exhibit Roman Number II).

Employee's objection to the admission of Exhibits C and D, the report and testimony of Officer Brown, is overruled for the reasons noted below in footnote 4.

Based on a comprehensive review of the evidence, including witness testimony, expert testimony, treatment records, and the other documentary evidence in this matter, as well as my personal observations of Claimant and the other witnesses at hearing, I find:

Claimant is a 68-year-old woman who currently lives with her daughter in Lawrenceville, Georgia. Claimant earned her high school diploma and thereafter obtained an associate's degree in nursing from Forest Park Community College. She continued to pursue learning throughout her life, taking business and secretarial classes, continuing education classes to maintain her licensing, and college classes toward a bachelor's degree. She worked since age 18, and has over 20 years of experience working as a nurse providing patient care. As an RN, Claimant worked in several area hospitals, and successfully performed work that required lifting over 150 pounds, pushing, pulling, standing, walking and other physically challenging activities.

In 1984, Claimant injured her lumbar spine while attempting to turn a patient and thereafter underwent a lumbar laminectomy ${ }^{1}$. Although her symptoms resolved and she did not miss work after she recovered, Claimant testified credibly she had limitations to avoid further injury, needed more assistance and moved slower. I find the first back surgery resulted in permanent disability that was serious enough to constitute a hindrance and obstacle to employment.

Claimant was in an automobile collision in $1993^{2}$, and further injured her low back. Radiological studies at the time showed high grade stenosis and severe spinal canal narrowing at L4-L5, and diffuse spondylosis with spinal canal narrowing throughout the lumbar spine. Dr. Albanna performed a decompressive lumbar microdiscecctomy at L4-L5 in late December 1993, and discharged Claimant after three days. Claimant testified the restrictions of no heavy lifting, twisting or bending effectively ended her career as a patient-care RN. She applied for and received Social Security Disability ("SSD").

Claimant received SSD from1994 to 2003. Although she attempted a few temporary jobs in the home healthcare field between 1999 and 2003, her first post-SSD job was as the Director of Nursing at a friend's home health care agency. The job was sedentary, and within her physical restrictions. Claimant was happy to return to the work force, but left this job in 2006 because she was not getting enough hours. Employer then hired Claimant, first as a supervisor and then in quality assurance. The salaried job was within her restrictions, and involved records review, phone communication, and no direct patient contact.

July 27, 2006 started as a typical work day for Claimant, as she evaluated her responsibilities for the day, pulled files, and settled into her work space. Around 8:30 a.m., as was her routine, Claimant rose from her desk, walked to the company break room and took approximately three steps into the tile-floored room to pour a cup of coffee. What happened next

[^0]

[^0]: ${ }^{1}$ There are no records available for this hospitalization. However, in records for a subsequent surgery (Exhibit 37), the doctor notes the patient is "status post lumbar laminectomy in 1983." I note Claimant's testimony with respect to the date of her first surgery is not consistent with the record, but I find that contradiction insignificant.

${ }^{2}$ Again, Claimant's testimony as to the year of her accident was not consistent with the records. Although she said the car accident occurred in 1994, the radiological and operative records are dated in December 1993, and the doctor's note references a May 1993 MVA. Here, the records control as to the date of the accident and surgery.

is undisputed: Claimant fell, and her life was never the same. Why Claimant fell is the key point of contention and the determinative issue of this case. Either she stepped on a shiny liquid substance which caused the fall, or the fall occurred without apparent cause. The evidence addressing the mechanism of the fall will be analyzed below.

When Claimant fell, her feet went backwards and she fell face first onto the floor, like a "belly burst," and ended up flipping over to her back. She heard a cracking sound, immediately felt pain, and began yelling for someone to call 911 . Claimant thought she might have internal bleeding or a broken pelvis, experienced back pain, and developed paralysis/loss of feeling of the lower extremities.

Claimant was alone in the break room, so no one else witnessed the fall. However, several co-workers immediately responded to her cries and observed her lying on the floor, including Deborah Vinson, Leanna Robinson, women Claimant identified as Kim, Pam and Ruby, and investigating Officer Jeremy Brown. The Ladue Fire Department transported Claimant to St. Mary's, where she was admitted for acute paraplegia secondary to spinal cord trauma and underwent an emergency microsurgical thoracic laminectomy at multiple levels of the thoracic spine. Claimant's recovery was complicated by medical issues related to her heart, diabetes and other issues, and she underwent a second surgery in November 2006 to address her multilevel spinal canal stenosis with myelopathy.

Claimant was in and out of hospitals and rehab centers for the rest of 2006. In early 2007, she dealt with the fracture of her right ankle. From 2007 though at least 2010, the period for which there is documentation in the record, Claimant struggled to deal with the pain and its side effects, often seeking relief from various emergency rooms. She had falls with ankle fractures, hypertension, diabetes and a depressive disorder. Despite the fact Claimant attempted to redact her record to do away with any treatment unrelated to the 2006 fall, the redacted postinjury records in evidence filled a banker's box. Most of those records dealt with Claimant's search for relief from the back pain she experienced. A detailed recitation of all Claimant's hospitalizations, diagnoses and treatment is not deemed necessary, and no findings will be made thereon except as set forth below.

Claimant testified credibly and persuasively about how the injury and its aftermath have affected her life. As compared to her state of being before the work accident, Clamant now is even more limited by her need to avoid standing or sitting too long - she is basically bedridden. She still has numbness and paralysis in two toes, with the accompanying gait disturbance and instability. She is more depressed. Her blood pressure has become even harder to control and she has even more pain. She relies on a wheelchair, is dependent on her children to assist with activities of daily life, and has lost her independence. Her average day is spent in bed watching TV, with some time spent in a recliner to avoid bed sores and elevate her feet to limit swelling. Claimant realistically does not believe she can work due to the overwhelming pain she experiences on a daily basis, the limitations caused by the pain and medication, and the spasms she experiences.

In addition to the medical records and personal testimony submitted, Claimant also provided expert medical and vocational evidence to support her claim the work injury in combination with her preexisting disabilities renders her permanently and totally disabled.

Based on the substantial competent evidence and pursuant to the Missouri Workers' Compensation Act (the "Act"), I make the following additional findings of fact and rulings of law:

The Second Injury Fund compensates injured workers who are permanently disabled by a combination of past disabilities and a primary work injury. Gleason v. Treasurer of State of Missouri Custodian of Second Injury Fund, 455 S.W.3d 494, 497-98 (Mo. Ct. App. 2015)(citations omitted). [A] claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. Id. citing Lewis v. Second Injury Fund, 435 S.W.3d 144, 157 (Mo.App.E.D.2014). Here, Employer stipulated its liability for Claimant's 2006 injury and, relevant to this case, stipulated that Claimant's injury arose out of and in the course of Claimant's employment. The Second Injury Fund did not join in this stipulation, however, and remained free to litigate the issue conceded by Employer. Hoven v. Second Injury Fund, 414 S.W.3d 676, 680 (Mo.App.E.D.2013) ("The [Second Injury Fund] is not bound by terms of settlement agreements to which it is not a party. Nor is the [Second Injury Fund] collaterally estopped by a settlement agreement to which it is not a party." (citations omitted)). At most, Claimant's settlement with the employer was evidence that the Commission could consider. Id. Claimant thus remained obligated to prove all of the essential elements of her workers' compensation claim against the Second Injury Fund. See Angus v. Second Injury Fund, 328 S.W.3d 294, 299 (Mo.App.W.D.2010) ("The claimant in a workers' compensation case has the burden to prove all essential elements of her claim....").

In every workers' compensation case, the employer is responsible to furnish the worker "compensation under the provisions of [Chapter 287] for personal injury ... by accident ... arising out of and in the course of the employee's employment." Section 287.120 (emphasis added). "Accident" is statutorily defined as "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." § 287.020.2. I find Claimant suffered an "accident" when she fell in the break room..

However, not every "injury ... by accident" is compensable. "Injury" is statutorily defined as "an injury which has arisen out of and in the course of employment." § 287.020.3(1). "The express terms of the workers' compensation statutes as revised in 2005 instruct that section 287.020.3(2) must control any determination of whether [a claimant's] injury shall be deemed to have arisen out of and in the course of [his or] her employment." Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 509 (Mo. banc 2012). Section 287.020.3(2) provides:

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.

See, Gleason v. Treasurer of State of Missouri Custodian of Second Injury Fund, 455 S.W.3d at 498. Here, the issue is not whether Claimant's fall in Employer's break room was the prevailing

factor in causing her injury, a required finding for compensable injury under §287.020.3(2)(a). The issue in this case is the application of $\S 287.020 .3(2)(\mathrm{b}).

In the last decade, the issues involving \S 287.020 .3$ in general, and the "equally exposed" provision in particular, have been at the crux of many reported cases. The current controlling precedence is found in Miller v. Missouri Highway \& Transportation Commission, 287 S.W.3d 671 (Mo. banc 2009) and Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 509 (Mo. banc 2012), which hold, "For an injury to be deemed to arise out of and in the course of the employment under section 287.020.3(2)(b), the claimant employee must show a causal connection between the injury at issue and the employee's work activity." Johme, 366 S.W.3d at 510. "Miller instructs that it is not enough that an employee's injury occurs while doing something related to or incidental to the employee's work; rather, the employee's injury is only compensable if it is shown to have resulted from a hazard or risk to which the employee would not be equally exposed in 'normal nonemployment life." Gleason, 455 S.W.3d at 499.

Thus, the outcome of this case turns on the risk source of Claimant's injury, that is, identification of the activity that caused the injury and a comparison of that risk source or activity to normal nonemployment life. There is a genuine issue of fact as to the activity that caused the injury. Claimant asserts she slipped on a shiny liquid substance that was unique to her workplace, making her injury compensable such as in cases like Dorris v. Stoddard Cnty., 436 S.W.3d 586, 589 (Mo. Ct. App. 2014)(Claimant tripped on a crack in the street while scouting new offices), Pope v. Gateway to the West Harley Davidson, 404 S.W.3d. 315, 320 (Mo. App. W.D. 2012)(Fall down stairs while wearing work boots and carrying motorcycle helmet) and Randolph Cnty. v. Moore-Ransdell, 446 S.W.3d 699, 707 (Mo. Ct. App. 2014)(work actions of squatting down, reaching into the back of a file drawer, and twisting to remove files from full file drawers was a risk to which worker would not have been equally exposed in normal nonemployment life). The Second Injury Fund asserts there was no liquid on the floor or any work-related risk source that contributed to Claimant's fall, making her injury noncompensable, such as in cases ${ }^{3}$ like Porter v. RPCS, Inc., 402 S.W.3d 161, 173 (Mo. Ct. App. 2013)(evidence established that the bathroom floor on which claimant fell was an ordinary tile floor with no particular hazards that might have caused her to slip or trip), and Bailey v. Phelps Cnty. Reg'l Med. Ctr., 328 S.W.3d 770, 773 (Mo. Ct. App. 2010)(knee simply popped out of place while she was walking). Both positions are legally sound - the outcome is dependent on a factual determination.

The critical determination is whether Claimant slipped on a "shiny substance" or simply fell. The following evidence speaks directly to the key issue:

- Deborah Vinson, Employer's Director of Nursing, arrived in the break room moments after Claimant fell and asked her what happened. According to Ms. Vinson, Claimant said her legs and feet "did something." Claimant did not mention any wetness, and she did not see any evidence of wetness even after Claimant left. Ms. Vinson confirmed Employer's internal investigation showed no evidence of a foreign substance.

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[^0]: ${ }^{3}$ The Second Injury Fund relies on Bivins v. St. John's Reg'l Health Ctr., 272 S.W.3d 446, 448 (Mo. Ct. App. 2008), which is factually similar and supports their position. However, as the Gleason court recently held, "Even presuming its holding is inconsistent with Miller and Johme, a determination we need not and do not make, Bivins was decided prior to both Supreme Court cases. It is not controlling." Gleason, 455 S.W.3d at 500.

- Leanna Robinson, a co-worker and former nurse supervisor, made coffee that morning, and did not see any wetness on the floor before, during or after the incident. Ms. Robinson did not see Claimant fall, but observed her on the floor. She also heard Claimant tell the EMS personnel she tripped over her shoes.

- Police Officer Jeremy Brown ${ }^{4}$, who arrived on the scene of Claimant's accident before the paramedics, conducted an investigation. Claimant told him she had slipped on the tile floor of the break room and landed on her back ${ }^{5}$. In his investigation as to the potential cause of the fall, Officer Brown observed no sign the tile was wet and no trip hazard at the time of his arrival. He noted Claimant wore unremarkable rubber-soled shoes. He conceded it was possible Claimant's clothing could have absorbed any liquid that might have been on the floor at the time of the fall.

- The initial treatment records from the day of the accident do not mention wetness, a shiny spot or any other external cause of Claimant's fall. The Ladue Fire Department ambulance records indicate the patient was ambulatory into the break room where she tripped and fell forward landing face first. The emergency room record from St. Mary's on the date of the accident indicates the patient was in the break room when she fell forward and struck her abdomen.

- On July 31, 2006, when she was in the hospital ICU recovering from surgery, Claimant gave a recorded statement by phone to Jeri Cashin, a claims representative, although she did not later recall making the statement. When Ms. Cashin asked for the details of what happened, Claimant said she "just fell." She did not recall seeing any items on the floor. When asked "Did you recall any liquid or anything on the floor", Claimant replied, "I can't recall anything. I was just walking and fell." She did not recall tripping. "I don't know if anything was there or not." Ms. Cashin testified a policeman came up to take a look, but did not find anything to her knowledge.

- One month later, on August 30, 2006, Claimant filed her Claim for Compensation, which states, Claimant fell to the floor during the course and scope of her employment, and is silent as to wetness, a shiny spot or any other external cause of Claimant's fall.

- On March 16, 2007, counsel for Employer deposed Claimant on the events of July 27, 2006. She described her daily routine beginning between 8:00 and 8:10, to the point she entered the break room for coffee between 8:25 and 8:30. The following exchange took place:

Q: Okay. And when you went into the breakroom [sic], did you fall right when you got in the breakroom?

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[^0]: ${ }^{4}$ Claimant's hearsay objection to the admission of Officer Brown's testimony and report is overruled because they fall within the "Present Recollection Recorded" exception to the hearsay rule. Officer Brown had no independent recollection of the events of July 27, 2006 and testified solely from his report, which he dictated to a third party service charged with transcribing the information provided by officers into report form. Unlike Brookman v. General Safety and Security, Inc., 600 S.W.2d 100 (Mo. App. E.D. 1980), cited by Claimant in support of excluding the Officer's evidence, here Officer Brown checked and approved the report shortly after it was prepared (see Ex.C, p. 34-35). Officer Brown testified he printed, reviewed and turned in the typed report on the day of the accident. The allegations in Claimant's proposed award to the contrary are only supported by selective evidence, and are inconsistent with the record as a whole.

${ }^{5}$ This is inconsistent with the other credible evidence that Claimant landed on her belly, and then rolled over to her back.

A: I took about a - it seems like three or four steps, more like three.

Q: Okay. Did you see anything on the floor that you fell on?

A: I saw - it's a tile floor....So, as I'm going down, I could see like a shiny spot.

Q: Okay. Was it - was there something, was it liquid or was it just -

A: It was liquid. After my fall, I felt my pants and it felt wet. Not soaking, but it felt damp/wet.

She described how her feet slipped backwards, she fell forward and she landed like a "belly burst" which flipped her over to the back. Claimant said she looked around to see if there were objects in the way, and "that's when I could feel on my pants leg that it was damp... [a]nd it was low." Claimant was in extraordinary pain, and recalls "telling them I'm paralyzed...[b]ecause [I] had no feelings from my hip down to my foot."

- At the hearing, Claimant testified consistently with her deposition testimony regarding the fall. She explained how she rarely makes coffee at home, but usually gets it at work. She said she entered the break room looking straight ahead to see if there was coffee. She took three steps into the room, when her feet went backwards, and she fell forward. As she fell, she said she saw something shiny and wet on the floor. She reiterated her pants were wet and added she was lying in a wet spot - not a big puddle. At hearing, Claimant was "certain" she fell in liquid and did not trip over her feet.

After careful consideration of all the evidence, I am not convinced Claimant established her injuries resulted from a hazard or risk to which the she would not be equally exposed in normal nonemployment life. In other words, the credible evidence establishes Claimant was simply walking when she fell. I am not persuaded by Claimant's testimony that she slipped in a shiny, wet substance. While she testified at hearing she was "certain" she slipped in a liquid, in the immediate aftermath of the accident she had no less than six opportunities to mention there was a liquid on the floor, and she failed to do so. But she did explain the fall in those early hours by stating her legs and feet "did something," she tripped, or she was "just walking and fell." Even factoring in the trauma with which Claimant was dealing at the time, it is beyond reason that Claimant would have so many opportunities to mention the cause of her fall and fail to do so.

It is only after Claimant's attorney filed a claim that she gives a deposition and mentions the shiny spot that allegedly caused the fall. Furthermore, Claimant provides a specific detail for the first time that she felt a wet spot low on her pants. However, Claimant testified, and medical records document, she had paralysis and loss of feeling of her lower extremities. In light of the overall trauma and pain she was experiencing, including a loss of function of the lower extremities, it seems implausible Claimant is more accurately recalling details months after the event. Claimant's present recollection of past events is simply not reliable or persuasive.

Finally, other than Claimant's assertion she saw and felt a wet spot, there is no evidence to support the existence of a work-related hazard. The witnesses who observed the break room before and immediately after Claimant's fall saw no evidence of a shiny spot, liquid or any other foreign material or hazard. Among the witnesses were those who were charged with determining the reason for the fall, and they ruled out a liquid as the cause.

Given Claimant's months-long failure to mention the shiny spot, the improbable detail she supplied when finally mentioning the wetness and the overwhelming evidence that there was no liquid or other hazard on the break room floor, I find Claimant failed to establish a causal connection between the injury at issue and her work activity. Rather, as in Porter v. RPCS, Inc., 402 S.W.3d 161, 173 (Mo. Ct. App. 2013), the evidence established the break room floor on which Claimant fell was an ordinary tile floor with no particular hazards that might have caused her to slip or trip. An injury will not be deemed to arise out of employment if, as here, it merely happened to occur while working." Id. at 172, citing Miller v. Missouri Highway and Transp. Comm'n, 287 S.W.3d 671, 674 (Mo. banc 2009).

Claimant's injury does not arise out of and in the course of employment because the persuasive evidence establishes it is not the result of a hazard or risk to which she would not be equally exposed in normal nonemployment life. In other words, Claimant's unfortunate and costly accident did not occur because Claimant was at work, but merely occurred while Claimant was working. With no causal connection established on the primary injury, Claimant's claim against the Second Injury Fund is not a compensable claim.

Claimant's evidence does not establish she sustained a compensable primary claim on July 27, 2006. Therefore, her claim against the Second Injury Fund must fail. The Claim is denied.

Made by:

KARLA OGRODNIK BORESI

Administrative Law Judge

Division of Workers' Compensation