Austin Reiter v. Kansas City Police Department

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

Injury No.: 15-103652

Employee: Austin Reiter

Employer: Kansas City Police Department

Insurer: Board of Police Commissioners KC MO

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, 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 he fell while navigating employer's obstacle course during off-duty hours. The administrative law judge concluded that employee's injuries did arise out of and in the course of the employment. We agree with this result, but discern a need to provide some supplemental analysis to address the effect of the 2005 legislative changes to the Missouri Workers' Compensation Law.

In 2005, the Missouri legislature enacted a sweeping abrogation of prior workers' compensation case law with § 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, we note that the appropriate statutory test is whether employee's "injury" arose out of and in the course of the employment. "An injury, for purposes of workers' compensation, has its own definition which is not identical to the definition of an accident. In applying the statute, courts must not blur together the meanings of 'accident' and 'injury.'" Clark v. Dairy Farmers of Am., No. SD34826, at *6 (Jan. 25, 2018). 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 injury arose out of and in the course of the employment for purposes of $\S 287.020 .3(2)$ RSMo.

In her analysis, the administrative law judge cited numerous pre-2005 case law decisions for propositions such as the following: (1) "arising out of the employment" and "in the course of the employment" are two separate tests subject to different proof and analysis; (2) an injury does not occur in the course of the employment unless it is within the period of employment at a place where the employee may reasonably be; and (3) compensability in certain cases may depend on whether an employee's acts are undertaken in good faith to advance the employer's interests. See Award, pages 6 and 7. Giving effect, as we must, to $\S 287.020 .10$, we can no longer endorse these propositions derived from abrogated case law decisions. Accordingly, 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, "section 287.020.3(2) must control any determination of whether [an] injury shall be deemed to have arisen out of and in the course of [the] employment." Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 509 (Mo. 2012). Section 287.020.3(2) RSMo 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 on employer's obstacle course was not the prevailing factor causing employee's right knee injury-the parties effectively stipulated the accident was the medical cause of employee's injury. We conclude, therefore, that $\S 287.020 .3(2)$ (a) above is satisfied.

Turning to § 287.020.3(2)(b), our initial task is to appropriately identify the "hazard or risk" from which employee's injuries came. See Johme, 366 S.W.3d at 511. Employer, in its brief, fails to specifically address the statutory test under § 287.020.3(2)(b), or to identify the particular hazard or risk from which it believes employee's injuries came. As best we can determine, employer seems to suggest we should view the relevant hazard or risk as that of voluntarily undertaking an athletic endeavor.

We are not persuaded. In the Johme case, the court very clearly cautioned us against dwelling upon the particular activity (there, making coffee) the employee was undertaking at the time of injury, and instead urged us to carefully identify the particular causative forces (there, slipping off one's sandal) that actually produced the employee's injury. See Johme, 366 S.W.3d at 511-12. Here, after careful consideration of the entire record, we find, as a factual matter, that the relevant hazard in this case was the

obstacle (i.e. the hurdle) placed in employee's intended path, which created the risk of landing awkwardly, which risk directly led to employee's injury.

The next question for purposes of $\S 287.020 .3(2)$ (b) is whether this hazard or risk was "unrelated to the employment." As thoroughly detailed in the administrative law judge's award, employee was running employer's obstacle course for no other purpose than that he worked for employer, and was encouraged, as part of the employment relationship, to run the course, with the incentive of an employment-related reward in the form of additional benefits. We find that the hazard or risk of landing awkwardly after attempting to clear a hurdle on employer's obstacle course was related to the employment.

Finally, we will examine whether this employment-related hazard or risk was one to which employee was equally exposed outside of and unrelated to the employment, in normal nonemployment life. ${ }^{2}$ It does not appear that employer's obstacle course was open to members of the general public, or that the risks or hazards of the obstacle course were akin to any risk or hazard that employee, or workers generally, would face in equal measure outside the context of an employment relationship with employer. We find that employee was not equally exposed, outside the employment in his normal, nonemployment life, to the risk of coming down awkwardly after attempting to clear a hurdle on employer's obstacle course.

Employer, as we have noted, does not address the statutory test in its brief, or advance any evidence that would persuade us to make factual findings contrary to those we have provided above. Instead, employer's appeal turns entirely on its contention that employee's injury simply cannot be deemed to have arisen out of and in the course of employment given the nature of the activity in which he was engaged when he fell. We cannot give effect to this argument, however, where the courts have very recently declared that " $[t]$ he 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." Mo. Dep't of Soc. Servs. v. Beem, 478 S.W.3d 461, 467 (Mo. App. 2015)(emphasis in original).

Because we find each of the elements of the statutory test under $\S 287.020 .3(2)$ (b) to be satisfied in this case, we conclude that employee's injury arose out of and in the course of the employment.

We turn now to employer's affirmative defense that the forfeiture provision pertaining to certain recreational activities under $\S 287.120 .7$ applies to this case. We are not persuaded. To the contrary, employer's evidence has failed to convince us to make a

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[^0]: ${ }^{2}$ See, however, Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463, 467 (Mo. App. 2010) and Young v. Boone Elec. Coop., 462 S.W.3d 783, 790 Fn. 9 (Mo. App. 2015), holding that once an injury is shown to be "related" to the employment, there is no need to undertake the "equal exposure" prong of analysis. We nevertheless address the "equal exposure" test in order to complete the record for any reviewing authority that may disagree with the holdings in Pile and Young, et al.

factual finding that employee's participation in a "recreational activity or program" was the prevailing cause of employee's injury. This threshold evidentiary showing is necessary to trigger the forfeiture provisions under § 287.120.7.

In our view, activities designed and incentivized by an employer, engaged in on the employer's premises, with the specific purpose of enhancing an employee's job performance, which activities are not entertaining, refreshing, or restorative, are not recreational. Because employer has failed to persuasively demonstrate, as a factual matter, that employee's participation in a recreational activity or program was the prevailing cause of employee's injury, our analysis under $\S 287.120 .7$ ends here.

Because we need not consider whether any of the enumerated statutory exceptions to the recreational activity forfeiture provision are applicable in this case, we hereby disclaim the administrative law judge's analysis with regard to same.

Finally, we will briefly address employer's reference to a purported waiver employee signed before running employer's obstacle course on December 10, 2015. Employer's Exhibit 2 shows employee's signature on a document that includes the following language:

I understand that any injury or illness suffered as a result of my participation in [employer's Aerobics Program or Physical Fitness Award Program] will be treated as a NON-DUTY RELATED INJURY.

Transcript, page 193.

To the extent employer advances employee's signature on its Exhibit 2 as precluding employee from filing a workers' compensation claim, employer is, in effect, arguing that employee waived his rights under Chapter 287 when he signed Exhibit 2. We are not, however, authorized to give effect to such an agreement, because § 287.390.1 RSMo plainly declares that "no agreement by an employee or his or her dependents to waive his or her rights under this chapter shall be valid[.]" Accordingly, we conclude the purported waiver is not valid, and is of no effect in this proceeding whatsoever.

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 July 27, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

The Commission approves and affirms the administrative law judge's allowance of an 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 $\qquad 12^{\text {th }} \qquad$