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.,