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 r