Travis Wilkins v. Piramal Glass USA, Inc.

supplement the administrative law judge's decision with respect to the issue whether employee's injuries arose out of and in the course of employment.

Medical causation

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.

The administrative law judge did not render an affirmative determination that employee's accident was the prevailing factor causing him to suffer a tear of his left calf muscle, as well as a resulting hematoma, but this finding is implicit in his award of compensation referable to this medical condition. We agree with, and defer to this implicit determination on the part of the administrative law judge. We conclude employee's accident was the prevailing factor causing him to suffer the resulting medical conditions of a torn left calf muscle and hematoma.

The administrative law judge found that employee's accident at work on December 6, 2014, was not the prevailing factor causing his subsequent staph infection. The administrative law judge so found based on his determination that the causation opinion from the authorizing treating physician, Dr. Richard Hulsey, was confusing, and supported the proposition that employee's staph infection may have resulted from an open wound on employee's left ankle on December 4, 2014.

We disagree. At his deposition, Dr. Hulsey made clear his opinion that employee's staph infection most likely developed within the 24 hours or so before employee was seen by the admitting physicians at Missouri Baptist Medical Center on December 25, 2014. In our view, this persuasive testimony effectively rules out the possibility that employee's infection process began prior to the accident as the product of some preexisting wound on the left ankle; we so find. ${ }^{1}$ Dr. Hulsey did concede that, typically, hematomas don't become infected and will heal with conservative treatment. He did not, however, change or in any way disclaim his own prior opinion, stated clearly in his treatment records, that the infection was related to employee's work injury of December 6, 2014. In our view, a testifying expert's concession that a resulting medical condition is unusual or atypical does not, standing alone, compel a finding that the accident is not the prevailing factor causing same.

Employer argues that the hematoma would not have become infected if employee were not suffering from poorly controlled diabetes at the time of the work injury, and proffers

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[^0]: ${ }^{1}$ By the same token, we deem the testimony from employer's occupational health and safety nurse, Jenger Hickman, unpersuasive to the extent it is proffered to establish that employee's infection resulted from an open sore that she observed on his left ankle as of December 4, 2014.

the opinion of Dr. Michael Burns that employee's diabetic condition was the prevailing factor in causing the staph infection to develop. Notably, though, Dr. Burns did not suggest that employee's diabetes would have caused him to suffer an infection in his left leg on December 25, 2014, if employee had not developed a hematoma as a result of the work injury on December 6, 2014. Instead, the expert medical evidence on record appears to be unanimous that the existence of the hematoma (a collection of blood under the surface of the skin) was a necessary precursor for the infection to develop. Stated simply, absent the work injury, there would have been no hematoma to become infected.

We are persuaded (and so find) that employee's diabetes was, at least, a contributing factor in the development of his staph infection. But we are not persuaded to find employee's diabetes was the prevailing factor causing the infection where there is no evidence employee would have suffered an infection but for the existence of the workrelated hematoma.

In any event, we find the opinions from employee's evaluating expert, Dr. Dwight Woiteshek, and Dr. Hulsey to be more persuasive than the contrary testimony from Dr. Burns on this point. We find that the accident was the prevailing factor causing employee to suffer the additional resulting medical condition of a staph infection, and disability referable thereto.

The administrative law judge implicitly determined that employee's injury arose out of and in the course of the employment. We agree, but discern a need to provide some additional analysis referable to the statutory test. Section 287.020.3(2) RSMo controls 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 determined that the accident is the prevailing factor causing employee's injuries, so we conclude that § 287.020.3(2)(a) is satisfied. Turning to the unequal

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[^0]: ${ }^{2}$ Although the parties and administrative law judge framed the issue as whether employee sustained an accident arising out of and in the course of the employment, the appropriate statutory test is whether employee's injuries arose out of and in the course of the employment. The distinction is not merely academic where both "accident" and "injury" enjoy unique definitions under Chapter 287, and where we are required under $\S 287.800 .1$ RSMo to construe those definitions strictly. From their briefs, at least, it is clear to us that the parties do not now dispute whether employee sustained an "accident," as defined under § 287.020.2 RSMo, but instead ask us to resolve the issue whether employee's injuries arose out of and in the course of the employment for purposes of $\S 287.020 .3(2)$ RSMo.

exposure test under § 287.020.3(2)(b), we adopt the administrative law judge's finding that employee's injury occurred when he arose from an awkward, squatting position upon a catwalk, where he had been engaged in his work duty of changing a spool valve.

Employer argues that the risk or hazard from which employee's injuries came was merely that of rising from a natural position; employer compares this risk to that of a worker slipping off her sandal while walking to get coffee. See Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012). We are not persuaded. First, we do not think the risk source can be so narrowly defined in this case. This is because the lay and medical evidence persuasively demonstrates (and we so find) that employee's injuries came from the action of rising from an awkward, squatting position upon a catwalk. We find that this activity was required by employee's work duties; it follows that this activity was directly related to employee's work for employer. Second, even if we were persuaded to find that the risk source in this case was merely that of rising from a squatting position, there is no evidence on this record that would support a finding that workers would have been equally exposed to that risk outside of and unrelated to the employment in normal, nonemployment life. Although employer urges us to do so, we cannot make such a finding based purely on our own speculation or surmise that such is a "natural" activity to which all workers are equally exposed in their normal, nonemployment lives.

In sum, we find that the risk or hazard from which employee's injuries came was directly related to his work. We find that workers would not be equally exposed to this risk outside of and unrelated to the employment in nonemployment life. We conclude, therefore, that employee's injuries arose out of and in the course of the employment.

Section 287.140.1 RSMo controls with respect to the issue of past medical expenses, and provides, in relevant part, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

It is well-settled in Missouri that an award of past medical expenses is supported when the record includes (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bills; and (3) testimony from the employee establishing the relationship between the bill