Lois McDowell v. St. Luke's Hospital of Kansas City

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 16-051794

**Employee:** Lois McDowell

**Employer:** St. Luke's Hospital of Kansas City

**Insurer:** Self-Insured/Thomas McGee, LC

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 2, 2018. The award and decision of Administrative Law Judge Emily S. Fowler, issued March 2, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms 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 **22nd** day of August 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

Employee did not establish that the accident was causally connected with her employment because the risk source was one which employee would be equally exposed to in normal nonemployment life. See *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504 (Mo. 2012).

In *Johme*, the risk source was "turning and twisting her ankle and falling off her shoe." *Id.*, at 511. The court held that "no evidence showed that [employee] was not equally exposed to the cause of her injury—turning, twisting her ankle, or falling off her shoe—while in her workplace making coffee than she would have been when she was outside of her workplace in her 'normal nonemployment life.'" *Id.* An opposite example is found in *Gleason v. Treasurer of the State*, 455 S.W.3d 494 (Mo. App. 2015), where the risk source was falling 20-25 feet off of a railcar, which was a risk employee was not exposed to in nonemployment life. *Id.* at 500.

In this matter, the risk source was catching a two-wheeled cart on a doorway and falling. Like *Johme*, no evidence showed that employee was not equally exposed to the cause of her injury—catching a two-wheeled cart on a doorway and falling—while walking from the parking garage to her work than she would have been when she was outside of her workplace, such as walking from her home driveway into her house after returning from work. Just because employee was at work does not mean that employee's injury was connected to work.

Furthermore, the evidence does not support that the nature of the doorway in the parking garage established any additional risk that employee would not otherwise face in her nonemployment life. For example, in *Conagra Foods, Inc. v. Phillips*, 527 S.W.3d 74 (Mo. App. 2017), the court upheld benefits when an employee fell while walking down an unguarded ramp at work. *Id.* at 82. Similarly, a court upheld benefits when an employee slipped off "a steep drop off on [a] sidewalk—a risk source that she would not have been equally exposed to outside of the workplace in normal nonemployment life." *Lincoln University v. Narens*, 485 S.W.3d 811, 818 (Mo. App. 2016).

Because the evidence did not show that employee was not equally exposed to the risk of catching the cart on a doorway while in her nonemployment life, there was no causal connection between the accident and employee's work.

I would reverse the administrative law judge's award allowing benefits. Because the Commission majority has decided otherwise, I respectfully dissent.

*Reid K. Forrester*

REID K. FORRESTER, Member

Issued by Division of Workers' Compensation

Employee: Lois McDowell

Injury No. 16-051794

FINAL AWARD

Employee: Lois McDowell

Injury No: 16-051794

Employer: St. Luke's Hospital of Kansas City

Insurer: Self-Insured/Thomas McGee, LC

Hearing Date: January 22, 2018

Checked by: ESF/pd

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the law? Yes

1. Date of accident or onset of occupational disease: July 13, 2016

1. State location where accident occurred or occupational disease was contracted: Kansas City, Missouri

1. Was employee an employee of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of employment? Yes

1. Was Claim for Compensation filed within time required by law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of employment, was in a parking garage owned and controlled by employer on her way to work when she sustained injuries in a fall after a cart she was pulling containing her lunch, purse, medicines, and work paperwork caught on a doorway frame in a congested entryway.

1. Did accident or occupational disease cause death? No

Date of Death? N/A

1. Part(s) of body injured by accident or occupational disease: Left hand, left wrist, and left upper extremity.

Issued by Division of Workers' Compensation

Employee: Lois McDowell

1. Nature and extent of permanent disability: 25% disability at 200 week level of the left upper extremity.
2. Compensation paid to date for temporary disability: $0
3. Value of necessary medical aid paid to date by employer/insurer? $0
4. Value necessary medical aid not furnished by employee/insurer?
5. Employee's average weekly wage: 1,456.18
6. Weekly Compensation rates: 911.27 for TTD/ $477.33 for PPD
7. Method of wages computation: Stipulation.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: 27,893.62

6 weeks and 2 days of temporary total disability: 5,727.98

50 weeks of permanent partial disability: $23,866.50

**Total:** $57,488.10

1. Future Medical Requirements Awarded: Employer is to provide employee with future medical care reasonably necessary to cure and relieve the symptoms related to the injury of July 13, 2016 or to address complications or other issues arising from the implanted hardware.

The Court awards attorney fees in the sum of 25% of all benefits herein to Claimant's attorney Brett J. Coppage and Edelman & Thompson, LLC, for services rendered.

Issued by Division of Workers' Compensation

Employee: Lois McDowell

**Injury No. 16-051794**

Employer: St. Luke's Hospital of Kansas City

Insurer: Self-Insured/Thomas McGee, LC

Hearing Date: January 22, 2018

Checked by: ESF/pd

On January 22, 2018, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. Lois McDowell, the employee, appeared in person and with counsel, Brett Coppage. The employer, St. Luke's Hospital, was represented by Matthew Stretz.

The parties stipulated to the following:

1. That Claimant was employed subject to the Missouri Workers' Compensation Law;
2. That employer was operating subject to the Workers' Compensation Act;
3. That notice was given and a claim filed within the time allowed by law;
4. That injury by accident occurred in Kansas City, Missouri;
5. That on July 14, 2016, Employer, by and through its third-party claims administrator Thomas McGee, L.C., denied Claimant's worker's compensation claim arising from the July 13, 2016 accident;
6. That Claimant's Average Weekly Wage is 1,456.18, resulting in a TTD rate and PPD rate of 911.27 and 477.33, respectively;
7. That Claimant incurred 27,893.62 in medical expenses for medical treatment which was necessary to cure and relieve the injuries sustained in the July 13, 2016 accident. The treatment obtained was reasonable, necessary, and the charges incurred were customary for the services rendered. In order to satisfy the medical bills, Claimant's health insurer, Aetna, paid 8,765.54 and Claimant personally paid 241.74;
8. That due to the injuries sustained in the July 13, 2016 accident, Claimant was placed off work by her treating orthopedic doctor from July 13, 2016 until August 29, 2017.

Issued by Division of Workers' Compensation Employee: Lois McDowell Injury No. 16-051794 2016; 9. That no temporary total disability benefits were paid by Employer; 10. That no hospital or medical expenses were paid by Employer; 11. That the location where Claimant's July 13, 2016 injury occurred is owned and controlled by Employer.

ISSUES The parties requested the Division determine the following issues: 1. Whether Claimant's injuries arose in the course and scope of employment; 2. Whether Claimant's injury arose from idiopathic causes; 3. Whether Claimant sustained any disability and, if so, the nature and extent of that disability as a result of the July 13, 2016 accident; 4. Whether Employer is obligated to pay temporary total disability benefits in the amount of $5,727.98; 5. Whether Employer is obligated to pay for past medical expenses in the amount of $27,893.62; and 6. Whether Employer is obligated to provide future medical care?

EVIDENCE PRESENTED The Employee testified at hearing in support of her claim. Also, the employee offered for admission the following exhibits:

Issued by Division of Workers' Compensation

Employee: Lois McDowell

Injury No. 16-051794

The parties stipulated to the admission of Employee's exhibits which were received and admitted into evidence.

The Employer offered no witnesses at hearing. The Employer offered the following exhibits:

All of Employer's Exhibits were received and admitted into evidence.

**Background and Employment**

Claimant, Lois McDowell, works as a chemist at the St. Luke's Hospital plaza campus in Jackson County, Missouri. Ms. McDowell has worked for this employer for over 46 years consecutively.

Ms. McDowell is 68 years old. She is a widow and lives by herself in a home in Kansas City, Missouri. Ms. McDowell obtained a bachelor's degree in Biology in 1971, completed a 12 month internship thereafter, and has been working at St. Luke's Hospital ever s