Steven Wright v. Echota Systems, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-091385

**Employee:** Steven L. Wright

**Employer:** Echota Systems, Inc.

**Insurer:** Twin City Fire Insurance Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This 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, read the parties' briefs, heard oral argument, 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.

The administrative law judge correctly held that employer/insurer admitted to facts as stated in employee's compensation claim by filing an answer over thirty (30) days from the date the division acknowledged receipt of the claim. Division regulation 8 CSR 50-2.010.8(B) provides:

> Unless the Answer to Claim for Compensation is filed within thirty (30) days from the date the division acknowledges receipt of the claim or any extension previously granted, the statements of fact in the Claim for Compensation shall be deemed admitted for any further proceedings.

In employee's claim for compensation, he alleged, that "while in the course and scope of his employment, [he] was injured while climbing seven flights of stairs, exerting unusual and extraordinary physical exertion, which was the prevailing factor in employee suffering a stroke and resulting in severe injury and permanent disability to his body as a whole and cerebrovascular system." *Transcript*, page 21.

The administrative law judge held that employer/insurer admitted that the injury occurred "while in the course and scope of his employment." Employer/insurer argues that the quoted language is not a fact, but the legal issue of whether employee's injury "arose out of and in the course of the employment." § 287.020.3(2), RSMo. We disagree.

The words "while in the course and scope of his employment," as stated in employee's claim merely meant that employee was at work, performing a work-related function, when the injury occurred. The administrative law judge did not deem employer to have admitted a legal conclusion.

1 Subsequently, the administrative law judge fully analyzed the legal issue whether the injury arose out of and in the course of employment.

Injury No.: 12-091385

Employee: Steven L. Wright

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**Employee's injury arose out of and in the course of the employment:**

Section 287.020.3(2), RSMo, provides: "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.

The first prong in this statutory test is actually a factual issue. "The determination of whether a particular accident is the 'prevailing factor' causing an employee's condition ... is inherently a factual one ..." *Leake v. City of Fulton*, 316 S.W.3d 528, 532 (Mo. App. 2010) (citing *Endicott v. Display Techs.*, 77 S.W.3d 612, 615 (Mo. banc 2002)).

Therefore, the administrative law judge correctly found that one of the facts admitted by employer/insurer's late answer was that the accident ("exerting unusual and extraordinary physical exertion" while climbing seven flights of stairs) was the prevailing factor causing employee's injury (stroke). Hence, employee established the first prong pursuant to § 287.020.3(2)(a), RSMo.

Had employer/insurer timely filed its answer, then the administrative law judge, and this Commission, would have determined the facts raised in employee's claim, instead of deeming the facts as admitted. Under such circumstances, it would have been very possible for this Commission to not have found that employee established the first prong of this test. But, alas, that is not what is in front of us.

Regarding § 287.020.3(2)(b), RSMo, the administrative law judge stated that "[n]othing in the record would persuade this Court to determine that the accident was the result of a nonemployment risk." *Award*, page 11. We agree.

The administrative law judge identified the risk in this matter by pointing out that employee did not have complications until after "climbing stairs to the seventh floor." *Award*, page 11. Arguably, one could identify "exerting unusual and extraordinary physical exertion" as the risk. However, applying the analysis of *White v. Conagra Packaged Foods, LLC*, 535 S.W.3d 336 (Mo. 2017), the "exerting unusual and extraordinary physical exertion" while climbing seven flights of stairs was the accident, or unexpected traumatic event or unusual strain.

Employer/insurer argues that the risk was the "extraordinary physical exertion," to which employee was equally exposed to outside of work. Employer/insurer pointed out that employee exercised outside of work and that employee admitted to his doctor "that vigorous physical activity did not give him shortness of breath." Employer/insurer Brief, page 21. However, employer/insurer's arguments are not persuasive.

In clarifying the relevant hazard or risk, we cannot disregard the particular circumstances of the case. For example, in *Young v. Boone Electric Coop.*, 462 S.W.3d 783, 790 (Mo. App. 2015) the court held that an employee's injury resulting from slipping on frozen clods of dirt arose out

2 See further discussion below regarding the holding in *White v. Conagra Packaged Foods, LLC*, 535 S.W.3d 336 (Mo. 2017).

Injury No.: 12-091385

Employee: Steven L. Wright

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of his employment. The court stated, "even assuming arguendo that Young was exposed to the hazard of slipping on frozen dirt clods in his nonemployment life, his injury still arose out of his employment because there is nothing in the record to support a conclusion that he was equally exposed to the hazard of slipping on frozen dirt clods at that particular work site in his nonemployment life." *Young*, 462 S.W.3d at 790.

Therefore, we cannot define the risk in this matter so narrowly as "extraordinary physical exertion." Rather, the relevant risk or hazard is extraordinary physical exertion resulting from climbing seven flights of stairs. The record does not establish that employee had such risk outside of his employment. Therefore, the fact that employee exercised or was able to endure other vigorous physical activity does not defeat the claim. There was no evidence in the record that employee was equally exposed to extraordinary physical exertion by climbing seven flights of stairs outside of work.

Because "exerting unusual and extraordinary physical exertion" resulting from climbing seven flights of stairs was the prevailing factor in causing employee's injury (stroke) and the stroke did not come from a risk unrelated to employment, the administrative law judge made the correct legal conclusion that employee's injury arose out of and in the course of his employment.

Section 287.020.3(4), *RSMo. and White v. Conagra Packaged Foods, LLC*:

Due to the nature of the injury in this matter, there is an additional statutory requirement to compensability pursuant § 287.020.3(4), *RSMo*. It provides:

> A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

The Missouri Supreme Court recently addressed a case involving a cardiovascular injury. *White v. Conagra Packaged Foods, LLC*, 535 S.W.3d 336 (Mo. 2017). The court held that the requirement of § 287.020.3(4), *RSMo*, was "in addition to and distinct from the requirement imposed" pursuant to § 287.020.3(2), *RSMo*. *Id*.

The court in *White* acknowledged that "[i]n a simple slip-and-fall case, the accident and the employee's injury usually are distinct and easily identifiable. It can be harder, however, in cases involving cardiovascular events." *White*, 535 S.W.3d at 339. The same can be said for a "cerebrovascular accident" or other medical condition referred to in 287.020.3(4), *RSMo*.

In its analysis, the court used the terminology "cardiovascular event," and held that:

> Section 287.020.3(4) makes it clear that - when a cardiovascular event kills or injures an employee at work - the claimant must show: (1) there was an 'accident,' e.g., some specific trauma or strain of the sort required by section 287.020.2; (2) there was an 'injury,' e.g., a cardiovascular event resulting in death or damage to heart muscles, the brain, or other tissues; and (3) the former was the prevailing factor in causing the latter.

*White*, 535 S.W.3d at 340.

3 The reason for this was to avoid a technical dispute as to the exact cardiovascular condition at issue. See *White*, 535 S.W.3d n.2.

Injury No.: 12-091385

Employee: Steven L. Wright

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Pursuant to this analysis, there needs to be a separate and distinct accident (unexpected traumatic event or unusual strain) that is independent of the stroke or heart attack that must be the prevailing factor in causing the "injury." § 287.030(2)(a), RSMo. The stroke or heart attack, identified in § 287.020.3(4), RSMo, can be "the injury" if the independent accident causes the resulting medical condition.

In this matter, employee "exert[ed] unusual and extraordinary physical exertion" while climbing seven flights of stairs. This was the unexpected traumatic event or unusual strain that was the prevailing factor in causing the stroke and subsequent medical condition. We note once again that the requirement of whether the accident is the prevailing factor in the resulting medical condition is a question of fact.4 Therefore, by its late answer, employer/insurer admitted that the "exerting unusual and extraordinary physical exertion" while climbing seven flights of stairs resulted "in severe injury and permanent disability to [employee's] body as a whole and cerebrovascular system." Therefore, the requirement of § 287.020.3(4), RSMo, is met.

**Conclusion**

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

The award and decision of Administrative Law Judge Mark Siedlik 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 _______ day of January 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

4 "The determination of whether a particular accident is the 'prevailing factor' causing an employee's condition ... is inherently a factual one ..." *Leake v. City of Fulton*, 316 S.W.3d 528, 532 (Mo. App. 2010) (citing *Endicott v. Display Techs.*, 77 S.W.3d 612, 615 (Mo. banc 2002)).

TI11600189

Appeal No.: 12-091385

Employee: Steven L. Wright

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 Worker's Compensation Law, I believe the decision of the administrative law judge should be