Kayla Gruender v. Curators of the University of Missouri

Improve: Kayla Gruender

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provided for their use. As we have found, employee in this case was joined by a staff lead in the basketball game that led to her injury during a paid break. We find that employer's lead served in a managerial capacity. Employer required employees to remain on its premises during breaks and maintained a basketball court directly adjacent to their workplace. Employer never discouraged employees from playing basketball during their paid breaks. We find the facts of this case not materially different from those in Miles.

Miles considered the mutual benefit doctrine in rejecting employer's argument that Miles' injury did not arise out of and in the course of his employment, but hinged its finding of compensability on interpretation of forfeiture provisions included in § 287.120.7 RSMo. The court noted that § 287.120.7 relieves an employer of liability for injuries an employee incurs as a result of participation in a recreational activity or program, subject to the following three exceptions:

1. The employee was directly ordered by the employer to participate in such recreational activity or program;
2. The employee was paid wages or travel expenses while participating in such recreational activity or program (emphasis added); or
3. The injury from such recreational activity or program occurs on the employee's premises due to an unsafe condition and the employer had actual knowledge of the employee's participation in the recreational activity or program and of the unsafe condition of the premises and failed to either curtail the recreational activity or program or cure the unsafe condition.

Decided in 2008, Miles involved a 2004 injury governed by the pre-2005 liberal construction mandate of the workers' compensation law. Miles, however, interpreted § 287.120.7 based on the plain and ordinary meaning of the statute's terms. This interpretation resulted in a finding that, because employer paid wages to Miles while he was engaged in the recreational activity, § 287.120.7 did not bar recovery.

In responding to Judge Odenwald's dissenting opinion, the Miles majority stated:

We appreciate the dissent's concern that a strict construction of the statute could lead to inconsistent results. But this court's role is to interpret a law as the legislature promulgated it, not to unilaterally rewrite the law to conform to our perception of how the legislature should have written it. If lawmakers truly meant "for" rather than "while," then they can amend the statute accordingly. Such action is within their authority, not ours. Miles, Id., 69 n.3.

From the Internet: http://www.neu.edu/ar/2013/03/12/140300.html

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Given that the Miles court specifically adopted and applied a strict construction of § 287.120.7 in reaching its conclusion (and given the legislature's failure over a period of nine years to amend the relevant statutory language per the court's explicit invitation) we must conclude that Miles governs our resolution of this case. Because the forfeiture exceptions of § 287.120.7(2) remain in effect and because the reasoning of Miles is entirely consistent with the legislature's later enacted "strict construction" mandate, we reject employer's suggestion that Miles has no bearing on this case.

Our consideration of this appeal is further informed by decisions subsequent to Miles interpreting the legislature's 2005 changes relating to definition of an "injury" arising out of and in the course of employment. In particular, we find the decisions in Pile v. Lake Regional Health System 321 S.W. 3d 463 (Mo. App. 2010), Johme v. St. Johns Mercy Healthcare 287 S.W. 3d 504 (Mo. banc 2012), and Pope v. Gateway to the West Harley Davidson and Missouri Automobile Dealers Association, 404 S.W.3d 315 (Mo. App. 2012) relevant to the issues in this case.

In Pile, a nurse stumbled while walking down a carpeted hallway, turning her ankle and foot. The court found the employee faced an increased risk of injury at work because the prolonged walking her job required increased her risk of tendonitis. Pile, supra, at 468.

Pile held that application of § 287.020.3(2)(b) involves a two-step analysis:

The first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and injury is integral to the performance of a worker's job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life. Id., at 467.

The court held that since claimant was injured because of her exposure to excess walking at work, it was not necessary to consider whether she would have been equally exposed to the risk in her normal non-employment life. Pile, supra, at 467.

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1 Although we do not disagree with the ALJ that a mere failure of forfeiture does not establish compensability, to the extent almost all claims governed by § 287.120.7 will inevitably involve situations wherein the worker is not engaged in work-related activity when injured, it is difficult not to discern from the very detailed language of said section a legislative intent that injuries arising directly from permitted recreational activity while being paid be held compensable. If the legislature deemed such activities insufficiently work-connected to merit coverage under our workers' compensation law, it could have simply excluded them altogether. See § 287.020.5 RSMo.

In Johme an employee sustained injury when she turned, twisted her ankle and fell off her shoe while making coffee in employer's office kitchen. The Court noted that subsection 287.020.3(2)(b) provides that an injury "shall be deemed to arise out of and in the course of employment only if...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 (emphasis added)." Johme, supra, at 510.

The Court held that the Commission erred in focusing its assessment on whether Johme's activity of making coffee was incidental to her employment, consistent with Pile's two-step analysis. The Court stated:

Instead, the issue in Johme's case was whether the cause of her injury-turning and twisting her ankle and falling off her shoe--had a causal connection to her work activity other than the fact that it occurred in her office's kitchen while she was making coffee. The assessment of Johme's case necessitated consideration of whether her risk of injury from turning, twisting her ankle and falling off her shoe was a risk to which she would have been equally exposed in her "normal nonemployment life." Johme, supra, at 674.

The Court concluded that Johme's injury was not compensable even though it occurred while she was doing something incidental to her work, because the employee failed to demonstrate the injury resulted from a hazard or risk related to her employment to which she was not equally exposed in her non-employment life. Johme, supra, at 511 .

In Pope, an employee, who was carrying a work-required helmet, fell while descending stairs at work. The employee was en route to check with his supervisor to ensure his work was satisfactorily completed before clocking out. The court found this employee's injury arose out of and in the course of his employment in that it occurred because the employee was at work, not simply while he was at work. The court stated, "[W]e find little factual basis for the argument that Pope was equally exposed to the risk of walking down stairs while holding a motorcycle helmet in his normal, non-employment life." Pope, Id., at 320-321.

Regardless of whether employee was engaged in work-related activity when injured § 287.020.3(2)(b) requires us to determine whether employee's injury came from a hazard or risk to which she would have been equally exposed outside of an unrelated to her normal nonemployment life. Applying the "risk source analysis" required by Johme, we find that the employee's injury in this case was caused by her foot being stuck on the blacktop surface of employer's basketball court, due to slip-resistant shoes employer required her to wear. As found by the ALJ:

[Employee's injury] "did 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". . .

While there was no evidence as to whether Claimant 'shoots hoops' in her normal nonemployment life, it is clear that Claimant was not exposed to the hazards of shooting hoops...while wearing her slip resistant work shoes in her normal nonemployment life. Award, p. 9.

We conclude that the employee has demonstrated the nexus needed to show that her injury, the result of playing basketball while wearing slip-resistant work shoes, was due to a hazard or risk related to her employment. To paraphrase *Pope*, we find no factual (or reasonable) basis to believe the employee herein was equally exposed to the risks of playing basketball in slip-resistant work shoes in her normal, non-employment life. Employee's accident was clearly the prevailing factor in the cause of her medical condition and disability. Her injury must therefore be found compensable.

We affirm and adopt the award of the administrative law judge as supplemented herein.²

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued November 2, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this **16th** day of August 2017

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**VACANT**

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

² We note that footnote 1 on page 8 of the ALJ's award includes the following clerical or typographical errors: The recent Missouri Court of Appeals case of *White v. Conagra Packaged Foods*, W.D. 79449, September 27, 2016, is referenced as having been decided "9-27-26 (emphasis added)." In addition, the final paragraph of footnote 1 of the award cites language which is not included in the court's opinion.

Employee: Kayla Gruender

Injury No. 14-043810

Dependents:

Employer: Curators of the University of Missouri

Address: 20110000000000

Address: 201100000000000

Address: 2011000000000000

Additional Party: None

Address: 201100000000000

Insurer: (Self-insured)

Address: 2011000000000000

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: June 23, 2014.
5. State location where accident occurred or occupational disease was contracted: Boone 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? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee stumbled, fell and broke her left foot while shooting hoops during a paid afternoon break.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Left foot.
14. Nature and extent of any permanent disability: 20 % permanent partial disability of the left foot at the 110 week level.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? $\ 2,025.00.

Employee: Kayla Gruender

1. Employee's average weekly wages: $\ 568.60.
2. Weekly compensation rate: $\ 379.07.
3. Method wages computation: Stipulation.

1. From Employer/Insurer:

22 weeks of permanent partial disability benefits $\ 8,339.54

6 weeks of temporary total disability benefits $\ 2,274.42

Reimbursement of medical expenses $\ 2,025.00

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Dean Christianson

The evidentiary hearing in this case was held on September 28, 2016, in Columbia. Claimant, Kayla Gruender, appeared personally and by counsel, Dean Christianson. Employer, Curators of the University of Missouri, appeared by counsel, Brian Fowler., and by corporate representative, Jack Woodbury. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on October 21, 2016. The hearing was held to determine the following issues:

1. Whether Employee sustained an accident arising out of and in the course of her employment with the University of Missouri on June 23, 2014;
2. The liability of Employer, if any, for temporary total disability benefits;
3. The liability of Employer, if any, to reimburse Employee for past medical expenses; and
4. The liability of Employer, if any, for permanent partial disability benefits.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the average weekly wage is $\ 568.60, with compensation rate of $\ 379.07;

1. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation; and
2. That University of Missouri was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of Claimant, Kayla Gruender; the deposition testimony of Jack Woodbury; the narrative report of Dr. David Volarich dated August 25, 2015; curriculum vitae of Dr. Kevin Donserm Komes; May 5, 2016 report of Dr. Komes; medical records; medical bills.

Kayla Gruender ("Claimant") was born February 28, 1991. She currently works as a maintenance assistant for Residential Life at the University of Missouri. From 2009 to 2014, Claimant worked on the custodial staff for Residential Life at the University of Missouri. While working for the custodial staff, her supervisor was Jack Woodbury.

The focus of this case is an incident that occurred on June 23, 2014. Claimant's shift was from 7:30 AM to 4:00 PM; Claimant would clock in at Jones Hall at the beginning of the shift and clock out at Jones Hall at the end of the shift. Claimant would not clock out during the day, unless she was going to have lunch off-campus. If Claimant was to have lunch off-campus, she was required to clock out before she left and to clock in after she returned. If Claimant stayed on campus for lunch, she remained on the clock and was paid for her lunch time. If Claimant had lunch off-campus, she was not paid for her lunch time. There were no restrictions as to what Claimant could do with her lunch break. Claimant also had breaks from 10:00 A.M. to 10:15 A.M. and from 2:30 P.M. to 2:45 P.M. Claimant stayed on the clock during the fifteen-minute breaks and was paid for those breaks. There were no restrictions as to what Claimant could do with her fifteen-minute breaks, except that she was not allowed to leave campus.

On June 23, 2014, Claimant was cleaning the Jones, Laws and Lathrop buildings. At the afternoon break she was in Jones Hall with the other workers. Right outside Jones Hall was Colburson Court, an outdoor basketball court. It is a part of the University of Missouri. The custodians had a basketball which had been left in their break room by a summer camp attendee, so Claimant and her team leader, Jamaro Clark, decided to play basketball. A student intern joined them. They had played basketball once or twice previously during their break time. Claimant described the basketball court surface as being blacktop, though she could not remember whether it was cracked or otherwise had problems with the surface. She was wearing slip resistant shoes at the time, which were required by Employer. The day was sunny and warm. There was no moisture on the ground.

While Claimant and the others were playing, Claimant was turning to her right when her left foot "got stuck," causing her to fall. She said her body landed on top of her left leg. She said that her left ankle pivoted to the outside. She felt that her foot got stuck because of the slip resistant shoes she was wearing. The others helped her to the break room and she put ice on her foot. An injury report was filed. She felt a lot of pain at the time. She was then referred to Employer's workers' compensation medical department, where she was evaluated.

The deposition testimony of Jack Woodbury was submitted into evidence (Claimant's Exhibit 4). Mr. Woodbury is the Building Services Supervisor. At the time of this Claim he was Claimant's Supervisor. The entirety of Mr. Woodbury's testimony is as follows:

Q. What is your name, please?

A. Jack Woodbury.

Q. And your address?

A. (Deleted) Prairie Home, Missouri.

Q. Your date of birth?

A. (Deleted)

Q. Where are you employed?

A. University of Missouri.

Q. When did you start working there?

A. Six years ago.

Q. And what is your job title?

A. Building Services Supervisor for Residential Life.

Q. Do you supervise a number of the custodial staff?

A. Yes, I do.

Q. About how many do you supervise?

A. I have a total staff of about 24 that is custodial, maintenance and painter.

Q. Do you know Kayla Gruender?

A. Yes, I do.

Q. How do you know her?

A. She's one of our employees.

Q. Are you her supervisor?

A. Yes, I am.

Q. Do you come into contact with her on a daily basis?

A. Yes, I do.

Q. In what way?

A. I always visit with my staff one way or another.

Q. Okay.

A. Either in the break rooms or out on the floors while they are working.

Q. Are you aware of an injury that she had at work on June 23, 2014?

A. Yes, I am.

Q. How were you made aware of that?

A. Kayla came into my office after the incident and told me what had happened. And so we filled out an accident report. And I sent her over to have it checked out.

Q. What did she tell you had happened?

A. She told me she was playing basketball out on the basketball court at Jones.

Q. And you had her fill out A - -

A. An accident report.

Q. Okay. What did you do with that after you filled it out?

A. That is something that they have to take with them over with the injury when they go see them, because they have to have that for them to be looked at, signed by a supervisor. And so she had that. And then it gets sent down through the system and taken care of through there.

Q. Were you aware that she and possibly others were playing basketball?

A. I was after it happened, yes.

Q. Okay.

A. And she told me what had happened.

Q. Had you instructed them in any way that this was okay or this was not okay?

A. No. I didn't know they were out there.

Q. Okay.

A. Until after it happened.

Q. Was it against any rule that you're aware of?

A. No.

Q. Has it since been discouraged?

A. No.

Q. Was she being paid at the time she was out there?

A. She was.

Q. After you gave her this report to fill out, you sent her where for medical treatment?

A. Over to the Workmen's Comp over at the University.

Q. Okay. Do you ever play basketball out there with them?

A. No, I don't.

Q. Okay.

A. I wish I could, maybe.

Q. Sir, was her job function in custodial?

A. Yes. That's what her job is.

Q. Does that involve playing basketball?

A. No, it does not.

Q. To your knowledge was she performing any job duties for the University at the time that she fell on her foot playing basketball?

A. No, she was not.

Q. The place where she was playing basketball -- was that University property?

A. Yes, it was.

On June 24, 2014, Dr. Kyle Fiala, a podiatrist at the Missouri Orthopedic Institute, diagnosed Claimant with an avulsion fracture of the left fifth metatarsal. She was placed in a Cam boot, given crutches and prescribed pain medication. Dr. Fiala noted that "patient states this has been denied by workers' compensation". Dr. Fiala stated that Claimant was "to abstain from work for the next four weeks to allow complete fracture healing." Indeed, Employer did deny benefits under Chapter 287, and Claimant continued to treat with Missouri Orthopedic Institute. When Claimant was seen by Dr. Fiala on July 22, 2014, x-rays showed good alignment and

"early healing changes without bridging callus at the base of the fifth metatarsal." Dr. Fiala placed Claimant in a boot and stated that Claimant "may begin weightbearing as tolerated in a Cam boot." Dr. Fiala also gave Claimant a "work slip" which stated that Claimant should "(r)efrain from working for 2 weeks", and that Claimant "will be able to return to work on August 5, 2014." When Claimant was seen on September 2, 2014, the fracture had healed and the physician stated: Claimant "may continue to be weightbearing and activities as tolerated in regular shoes."

Dr. David Volarich rated Claimant's permanent partial disability at 25 % of the left foot at the 110 week level. Dr. Kevin Komes stated that "(t)here is no evidence of permanent disability".

Accident and injury arising out of and in the course of employment. Claimant argues that this issue should be decided solely by reference to Section 287.120.7 (the "recreational activity" section). While that section will be discussed more fully herein below, Claimant ignores the fact that this section is primarily a "forfeiture of benefits" section. The first section of that section reads:

Where the employee's participation in a recreational activity or program is the prevailing cause of the injury, benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited regardless that the employer may have promoted, sponsored or supported the recreational activity or program, expressly or impliedly, in whole or in part. (Italics mine.)

As is clear to me from the italicized portion above, Claimant's injury must first be adjudged as being compensable before the "recreational activity" analysis can begin. Therefore, there must first be a compensable "accident". There must also be an "injury which has arisen out of and in the course of employment" and the "accident" must be "the prevailing factor in causing both the medical condition and the disability." Otherwise, there are no benefits or compensation "otherwise payable".

The first sentence of Section 287.020.2 defines "accident". It reads:

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.

Claimant sustained an unexpected traumatic event on June 23, 2014; she fell and broke her foot (a traumatic event), and no one, least of all Claimant herself, expected same to occur. The traumatic event was identifiable by time of occurrence (during the 2:30 P.M. to 2:45 P.M. break) and by place of occurrence (Colburson Court). The traumatic event produced objective symptoms of an injury (immediate pain and swelling, with a fracture confirmed the following day

by x-ray). Those injury symptoms were caused by a specific event during a single work shift. here clearly was an "accident". Did that accident arise out of and in the course of employment? ${ }^{1}$

Claimant was a member of the "custodial staff"; Claimant clearly was not performing "custodial duties" at the time of the accident. However, this is only the beginning of the inquiry. There have been myriad cases found to be compensable under Chapter 287 in which the injured employee was engaging in activities other than his or her "assigned work duties". Some examples of these cases would be cases found compensable under the personal comfort doctrine, e.g., Wright v. Treasurer, 484 S.W.3d 56 (Mo. App. E.D. 2015), and cases found compensable under the mutual benefit doctrine, e.g., Blatter v. Dept. of Social Services, 655 S.W.2d 819 (Mo. App. S.D. 1983).

Claimant's injury occurred on her break. Employer provided Claimant and her coworkers a fifteen-minute paid break in the morning and in the afternoon. By its very nature, a "break" contemplates that Claimant would be engaging in activities other than assigned work duties. While Claimant was allowed to chose the activity(ies) in which she would engage during the break, she was required to remain on campus, i.e., Claimant was required to remain at the workplace. The paid breaks are obviously a benefit to Claimant and her co-workers; they can attend to personal needs, relax, "blow off steam", engage in brief recreation. Is there a benefit to Employer to pay employees not to perform their assigned duties? At first blush, it might appear

[^0]We recognize that the last sentence of section 287.020 .2 , which follows enumeration of the four components required to establish an "accident," reads as follows: "An injury is not compensable because work was a triggering or precipitating factor." The sentence by its plain terms does not address whether an accident has been established. The sentence's location in the definition of "accident" is an apparent carryover from the statutory definition of "accident" which was in effect before the 2005 amendment of the Worker's Compensation Act. Then, "accident" was defined as a "work related injury." See infra note 9. The 2005 amendment to the Act completely reconstituted the definition of "accident," which is, by its plain terms, defined without reference to "work activities." The last sentence of section 287.020 .2 addresses when an injury is not compensable, and at best, strictly read, disqualifies injuries from compensation if the evidence establishes that work was no more than a triggering or precipitating factor in causing the injury. The last sentence of section 287.020 .2 does not, however, itself establish an affirmative test which must be established between work activities and an injury as a condition of compensability. It appears plain that the legislature intended this causal connection to be controlled by the standards described in section 287.020.3(2), addressing when an injury is deemed to arise out of and in the course of employment.

While the Court's analysis is correct that the definition of "accident" contains no requirement of "work-relatedness", it wholly ignores the first sentence of Section 287.120.1 which states: "Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment." Thus, even though an alleged accident meets the statutory definitional requirements of "accident", said accident is not "compensable" (i.e., the employer is not "liable ... to furnish compensation") unless the accident is one "arising out of and in the course of the employee's employment."

[^0]: ${ }^{1}$ The recent case of White v. Conagra Packaged Foods, (Mo. App. W.D. 9-27-26) (opinion not final as of this writing) states, in a footnote, that the Missouri Workers' Compensation Law no longer contains a requirement that an accident be "work related" to be compensable. That footnote reads:

The four components required to constitute an "accident" as defined by section 287.020 .2 are devoid of any requirement that the component be causally connected to work, save the temporal requirement that the unexpected traumatic event or unusual strain occur within a single work shift. As we explain, infra, the causal connection between an injury caused by accident and work activities is instead the subject of section 287.020 .3(1) and (2), addressing the need for an injury to have "arisen out of and in the course of employment."

that there is no benefit to Employer, but rather a detriment - a decrease in employee production. Why would Employer voluntarily pay for a decrease in employee production? No rational employer would do that. The reason, I believe, for allowing the paid breaks is that they actually promote an increase in employee production. The break allows the employees to refresh, reenergize and refocus. Fresh, energetic and focused employees produce more and better work than tired distracted employees. Therefore, I find that, generally, employee activities during a paid break mutually benefit the employee and the employer.

In this particular case Claimant and her co-worker were engaging in a positive teambuilding activity. They were not gambling, gossiping or grumbling against Employer. They were "shooting hoops" - getting exercise and fresh air. They were engaged in precisely the type of break-time activity that helps employees refresh, reenergize and refocus. As Mr. Woodbury testified, such activity was not against any rule, and (even after Claimant's injury), such activity has not been discouraged by Employer. I believe the "mutual benefit doctrine" applies in this case. "The mutual benefit doctrine applies if an employee is injured while engaging in an act that benefits both the employer and the employee and some advantage to the employer results from the employee's conduct." Wilson v. Wilson, 360 S.W.3d 836, 843 (Mo. App. W.D. 2012). I find, therefore, that Claimant sustained an accident arising out of and in the course of her employment.

The accident was clearly the prevailing factor in the cause of Claimant's medical condition (avulsion fracture of the left fifth metatarsal) and disability (medically-documented inability to work for six weeks), and Employer does not dispute this issue. I further find that Claimant's injury did "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 Section 287.020.3(2)(b)]. While there was no evidence as to whether Claimant "shoots hoops" in her normal nonemployment life, it is clear that Claimant was not exposed to the hazards of shooting hoops on Colburson Court while wearing her slip resistant work shoes in her normal nonemployment life. Therefore, I find that Claimant has sustained a compensable "injury".

As Claimant has sustained a compensable injury and accident, it is at this point that Section 287.120.7 (the "recreational activity" section) comes into play. Shall the "benefits or compensation otherwise payable under this chapter ... be forfeited"? The statute itself does not define "recreational activity or program". Miles v. Lear Corporation, 259 S.W.3d 64 (Mo. App. E.D. 2008), cited by both parties in their post-hearing briefs, involved a lunch-time basketball game. The Miles court found that Section 287.120.7 applied to such activity. Therefore, I find that Section 287.120.7 likewise applies to this case. Under Section 287.120.7, Claimant's workers' compensation benefits shall be forfeited unless:

(1) The employee was directly ordered by the employer to participate in such recreational activity or program;

(2) The employee was paid wages or travel expenses while participating in such recreational activity or program; or

(3) The injury from such recreational activity or program occurs on the employer's premises due to an unsafe condition and the employer had actual knowledge of the employee's participation in the recreational activity or program and of the unsafe condition of the premises and failed to either curtail the recreational activity or program or cure the unsafe condition.

Claimant was not directly ordered by Employer to shoot hoops, therefore (1) above does not apply. There was no evidence of any unsafe condition on Colburson Court, therefore (3) above does not apply. Claimant was, however, on a paid break when the accident occurred. She was, therefore, paid wages "while participating in such recreational activity". The claimant in Miles was likewise on a paid break when he sustained a basketball-related injury and the Miles court found that the forfeiture of benefits did not apply because Mr. Miles was paid while participating in such recreational activity. The employer in Miles argued that the statute should be read to mean that the forfeiture of benefits is negated when wages are paid for participation in the recreational activity; the Miles court rejected that argument and applied the language of the statue as written. ${ }^{2}$

Therefore, I find that Claimant's benefits shall NOT be forfeited because the prevailing cause of her injury was her participation in a recreational activity, as she was paid wages while participating in such recreational activity.

Temporary total disability benefits. Claimant's foot was fractured, she was in a boot and was non-weightbearing. Dr. Fiala ordered Claimant to stay off work from June 24, 2014 through August 4, 2014, a total of six weeks. Claimant is entitled to six weeks of benefits at the stipulated rate of $\ 379.07, totaling $\ 2,274.42.

Reimbursement of medical bills. Because of Employer's denial of benefits under Chapter 287, Claimant was required to seek medical treatment for her foot fracture. This resulted in medical charges of $\ 2,025.00. Employer is responsible for reimbursement of those medical charges.

Permanent partial disability benefits. I find that Claimant has sustained a permanent partial disability of 20 % of the left foot at the 110 week level. This results in 22 weeks of benefits at the stipulated rate of $\ 379.07, totaling $\ 8,339.54.

Employer and Insurer are ordered to pay Claimant the sum of $\ 8,339.54 for permanent partial disability benefits, the sum of $\ 2,274.42 for temporary total disability benefits, and the sum of $\ 2,025.00 for reimbursement of necessary medical expenses.

[^0]

[^0]: ${ }^{2}$ While Miles was decided under the "liberal construction" of the pre-2005 law, the "strict construction" required by current Section 287.800 .1 would yield the same result.

Claimant's attorney, Dean Christianson, is allowed 25\% of benefits awarded as and for necessary attorney's fees, and the amount of such fees shall constitute a lien on those benefits. No attorney's fees are allowed on the future medical benefits.

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

Made by

/s/Robert J. Dierkes - 11-2-2016

Chief Administrative Law Judge

Division of Workers' Compensation