Alonzo Brown v. Superior Linen Supply Company

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 14-093366

Employee: | Alonzo Brown |

Insurer: Travelers Property Casualty Company of America

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Injury arising out of and in the course of the employment!

The parties asked the administrative law judge to determine whether employee sustained injuries arising out of and in the course of the employment when, after having been locked inside employer's courtyard at the end of his shift, employee suffered a right ankle injury while attempting to escape the premises. The administrative law judge concluded that employee's injuries did arise out of and in the course of the employment, because employee's activities were shown to be sufficiently incidental to his work. We agree with this result, but discern a need to provide some supplemental findings and conclusions to address the effect of the 2005 legislative changes to the Missouri Workers' Compensation Law.

In 2005, the Missouri legislature enacted § 287.020.10 RSMo, which provides as follows:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of "accident", "occupational disease", "arising out of", and "in the course of the employment" to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.

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[^0]: ${ }^{1}$ 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.

We note that, in her analysis, the administrative law judge cited and partially relied on pre-2005 case law interpretations of the meaning of the statutory phrase "arising out of and in the course of the employment" for the following propositions: "arising out of the employment" and "in the course of the employment" are two separate tests; compensability in certain factual scenarios depends on whether the "employee's acts benefit the employer"; and an employee must suffer an accident "within the period of employment at a place where the employee may reasonably be" in order to prove a compensable injury. See Award, pages 10 and 11. Giving effect, as we must, to the plain language of $\S 287.020 .10$, we hereby disclaim that portion of the administrative law judge's analysis relying on pre-2005 case law interpretations of the meaning or definition of "arising out of and in the course of the employment."

Instead, our analysis turns on the question whether the circumstances surrounding employee's injury satisfy the controlling statutory test under § 287.020.3(2) RSMo, which 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.

There is no contention that employee's fall while attempting to escape employer's premises was not the prevailing factor causing employee's injuries. We find that the accident was the prevailing factor causing employee's right ankle injury; we conclude, therefore, that $\S 287.020 .3(2)$ (a) is satisfied.

Turning to § 287.020.3(2)(b), our initial task is to identify, as accurately as possible, the "hazard or risk" from which employee's injuries came. See Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012). The parties presented conflicting evidence regarding the circumstances that led to employee falling from a box truck cab during his attempt to leave work on October 31, 2014. Employee's evidence suggests he was inadvertently trapped in employer's courtyard, and the only means of escape that appeared to be available to him was to climb a fire escape onto employer's roof, and then to descend from the roof by way of climbing onto and down from a box truck parked next to the building. Employer's evidence, on the other hand, suggests employee did not act reasonably, because employee should not have been in the courtyard in the first place; employee should have found some other, less dangerous way to escape, such as

entering and descending a rooftop hatch employee occasionally used in performing his duties; or employee should have simply waited and called for help if he was trapped, rather than attempting to escape, or climb down from the roof by way of the box truck.

After a thorough review, the administrative law judge found employee's evidence to be more persuasive. Upon our own careful consideration of the record, we are not persuaded to second-guess the administrative law judge's credibility findings. We adopt, therefore, her finding that employee believed that climbing onto and down from the roof was his only apparent option to escape from employer's premises after having been locked in the courtyard while leaving work on October 31, 2014. We further find that the hazard or risk from which employee's injuries came was that of being trapped in employer's courtyard and subsequently falling while attempting what then appeared to him to be his sole means of escape. We turn now to the question whether this risk or hazard was unrelated to the employment.

Employer points to employee's normal job duties, and correctly points out that these did not ever involve being on top of a box truck. Essentially, employer argues that, because employee was not engaged in an activity bearing any similarity to his work duties when he was injured, the hazard or risk from which his injuries came cannot be deemed related to the employment. However, the courts have recently declared that "compensation is not limited to workers injured while actively engaged in their duties." Mo. Dep't of Soc. Servs. v. Beem, 478 S.W.3d 461, 465 (Mo. App. 2015). Instead, "[t]he equal exposure consideration should center on whether the employee was injured because he or she was at work, rather than simply while he or she was at work. The focus of the equal exposure analysis should be not on what the employee was doing when the injury occurred, but rather on whether the risk source of the injury was one to which the employee is exposed equally in his or her nonemployment life. "Id. at 467 (emphasis in original). See also Lincoln Univ. v. Narens, 485 S.W.3d 811, 820 (Mo. App. 2016).

Notably, there is no evidence in this record that would suggest that employee, or workers generally, spent time in employer's courtyard in normal, nonemployment life, much less that they ever found themselves trapped therein. Nor is there any credible evidence on this record to support a finding that employee was located in employer's courtyard on the night of October 31, 2014, for any purpose unrelated to his work for employer. To the contrary, all of the available evidence suggests that employee found himself locked in employer's courtyard as a direct result of his performance of a normal, daily activity that was unquestionably related to his work: gathering his things before clocking out and heading home. We conclude that the risk or hazard from which employee's injuries came was related to the work, and that employee was not equally exposed to that risk or hazard outside of and unrelated to the employment in normal nonemployment life.

In sum, we are convinced that employee's injuries occurred because he was at work, not merely while he was at work. We conclude, therefore, that employee's injuries arose out of and in the course of the employment.

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

The award and decision of Administrative Law Judge Emily S. Fowler, issued February 28, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 7^{\text {th }} \qquad$ day of March 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Alonzo Brown

Injury No: 14-093366

Dependents: N/A

Employer: Superior Linen Supply Company

Insurer: Travelers Property Casualty Company of America

Additional Party: N/A

Hearing Date: February 6, 2017

Checked by: ESF/1h

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: October 31, 2014
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of his employment, Employee was attempting to climb down from the cab of a truck when he fell causing injury to his right lower extremity
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: right lower extremity
2. Nature and extent of any permanent disability: 25 % permanent partial disability to the left lower extremity
3. Compensation paid to date for temporary total disability: $\ 0
4. Value necessary medical aid paid to date by employer/insurer? $\ 0
5. Value necessary medical aid not furnished by employer/insurer? \45,305.39
6. Employee's average weekly wages: \ 424.32
7. Weekly compensation rate: $\$ 282.89 / \ 282.89
8. Method wages computation: By stipulation

1. Amount of compensation payable: Employer to pay to Employee 25 % permanent partial disability to the right lower extremity for a total of $\ 10,961.99. Employer to pay to Employee's medical expenses in the amount of $\ 45,305.39. Employer to pay to Employee 37.4 weeks of temporary total