Maral Annayeva v. SAB of the TSD of the City of St. Louis

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 13-000909

**Employee:** Maral Annayeva

**Employer:** SAB of the TSD of the City of St. Louis

**Insurer:** Self-Insured

**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 briefs, and considered the whole record, we find that the award of the administrative law judge denying 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.

Employee's claim involves injuries she sustained after walking through an entryway at the beginning of her work day as a high school teacher on January 8, 2013. Employee entered the school through a double set of doors and headed by the security guard, on her way to the time-clock room. When she was just inside the entryway, a few feet inside a public school hallway, employee fell and landed on her hands and knees. Employee went to the emergency room with back pain and knee pain. Subsequently, she returned to work briefly, but soon experienced too much pain and ceased to work. She unsuccessfully attempted to return to work again in August 2013, but she still experienced too much pain and had to stop.

Over time, employee's medical treatment included: injections to her knee, other injections (unspecified), spine adjustments, physical therapy, an MRI of her head, water therapy, neurological evaluations, and psychiatric medication. Medical experts diagnosed employee with somatic symptom disorder.

At the hearing, employee complained of neck pain; head pain due to temperature changes; increased head pain when showering, talking, and laughing; a loss of range of motion in her neck; dizziness when looking up; constant back pain; shoulder and arm pain; pain when sitting straight; right hip pain; bilateral leg pain; depression; anxiety; insomnia; stomach issues; liver issues; cysts on fingers; nausea; and a limited ability to walk, clean, drive, stand, climb stairs, get dressed, etc.

The administrative law judge denied employee's claim for benefits because employee "has failed to provide credible testimony to this Court." Award, p. 12. The administrative law judge found that employee's "description of her injuries and their subsequent effects verge on the point of malingering." Id. The administrative law judge did not find credible the medical expert opinions because they were based on employee's "own subjective

Injury No.: 13-000909

Employee: Maral Annayeva

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description of her maladies." *Id.* In conclusion, the administrative law judge found that employee failed to meet her burden of medical causation. He stated, "[t]here is little or no objective medical finding to support any of [employee's] anomalies." *Id.*

Employee appealed the administrative law judge's decision, arguing that employee sustained an injury by way of accident on January 8, 2013 and that the accident and resulting injuries arose out of and in the course of employee's employment. Employee further argued that she is entitled to temporary total disability benefits, permanent partial disability benefits, and the payment of past medical bills and for future medical treatment.

Employer filed a brief arguing that the administrative law judge properly assessed employee's credibility and correctly found that employee failed to establish (1) that her accident arose out of and in the course of employment and (2) the medical causation between her accident and her injuries.

We deny employee's claim because employee did not establish that her injuries arose out of and in the course of her employment.

Employee did not establish that her injury arose out of her employment because the risk source was one to which employee was equally exposed in normal non-employment life. See *Miller v. Mo. Highway & Transp. Comm'n*, 287 S.W.3d 671 (Mo. 2009). In *Miller*, the risk source was walking, "one to which the worker would have been exposed equally in normal non-employment life." *Miller*, 287 S.W.3d at 674.

The *Miller* court explained, "[t]he injury here did not occur because Mr. Miller fell due to some condition of his employment. He does not allege that his injuries were worsened due to some condition of his employment or due to being in an unsafe location due to his employment. He was walking on an even road surface when his knee happened to pop. Nothing about work caused it to do so. The injury arose during the course of employment, but did not arise out of employment." *Id.*

Similarly, here, the risk source was walking; employee was walking on an even, flat surface when she fell. There was nothing about employee's work that caused her to fall. "The 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." *Mo. Dep't of Soc. Servs. v. Beem*, 478 S.W.3d 461, 467 (Mo. App. 2015) (emphasis in original) (citing *Scholastic, Inc. v. Viley*, 452 S.W.3d 680, 686 (Mo. App. 2014)).

Injuries are not deemed compensable merely because they occurred while the employee is working. *Pope v. Gateway to the W. Harley Davidson*, 404 S.W.3d 315, 321-22 (Mo. App. 2012). The court in *Pope* stated that, "[a] worker's compensation award is permitted only if evidence shows a causal connection to employment other than the fact that the injury occurred at work." *Pope*, 404 S.W.3d at 321. A

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Employee: Maral Annayeva

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compensable claim is one where an employee "was injured because he was at work, and not simply because [he] sustained an injury while at work." *Id.*, at 321-22.

Here, employee was injured while she was at work, but not because she was at work. We also note that employee had not even clocked in for work, was not on any work assignment, and had not taken any action related to work before the incident, e.g., checked in with the principal or department head, entered a classroom, made copies for class, etc. Employee was not in her course of employment at the time of the incident because she had not started for the day. See *Henry v. Precision Apparatus, Inc.*, 309 S.W.3d 341, 342 (Mo. App. 2010) (Affirming a denial of benefits on a finding that an employee was not engaging in work activities at the time of the accident).

We also do not find credible that the condition of the hallway at the date of the injury presented a hazard or risk to employee. When testifying about the condition of the floor at the hearing before the administrative law judge, employee initially indicated in her testimony that the floor was "normal." *Transcript*, page 20. After several follow-up questions by her attorney, employee further testified that the floor was dirty due to "foot traffic," including "some particles of dirt, ice, dust, moist." *Transcript*, page 20. Because employee did not focus on the alleged hazardous condition of the floor until specifically asked by her attorney, employee's testimony on the alleged hazardous condition is questionable.

The record also does not corroborate employee's testimony regarding the alleged hazardous condition of the hallway floor at the time of the injury. Medical records do not indicate any mention of a hazardous condition regarding the hallway floor. The emergency room documents simply indicate that employee's "fall occurred walking." *Transcript*, pages 353. Likewise, medical records from two days later merely report that employee "entered school and slipped and fell forward on both knees and strained her low back." *Transcript*, pages 1043.¹

Similarly, when describing the event on employer's accident investigation report on the date of the injury, employee did not mention any ice, salt, or dirt on the floor that caused her to slip, but stated that she "could not determine the cause of the accident." *Transcript*, page 1042. Employee also stated that she "walked in as usual ... [and] suddenly ... fell down very badly." *Id.* Without additional support in the record for the alleged hazardous condition of the hallway floor, we find that the only risk source in this matter was that of walking, one to which employee would have been equally exposed in normal non-employment life.

Because employee did not establish that her injury arose out of and in the course of her employment, we must deny the claim. All other issues are moot.

¹ Employee testified at the hearing that before entering the building she passed through "snow, ice, salt, dirt" while walking through the parking lot and that there were no floor mats to wipe her feet on as she entered the building. *Transcript*, pages 18-19. This description of the parking lot is also not credibly substantiated by the record. We note that employee first mentioned salt in the parking lot when she reported to the Logan College of Chiropractic on January 24, 2013. *Transcript*, page 547. However, there was no mention of ice anywhere or the hallway floor being moist or dirty.

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**Decision**

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

The award and decision of Administrative Law Judge Marvin O. Teer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 17th 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

Impry No.: 13-000909

Employee: Maral Annayeva

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.

I do not agree that employee should be denied benefits because she had yet to clock-in or otherwise perform an action related to work prior to her accident. Employee was on employer's premises, under employer's control, on her way to perform her work. Case law supports a finding of liability when an employee is arriving to work or leaving work and is in an area "where the employer owns or controls the area where the accident occurs." *Lincoln Univ. v. Narens*, 485 S.W.3d 811, 819 (Mo. App. 2016) (quoting *Scholastic, Inc. v. Viley*, 452 S.W.3d 680 (Mo. App. 2014) (emphasis in original)).

In *Narens*, an employer was liable for an employee's injuries when the employee slipped and fell while walking on a sidewalk that led to the employer's parking lot after work. 485 S.W.3d 811 (Mo. App. 2016). The court in *Narens* relied on a discussion in the *Viley* decision that explained the history of the premises doctrine prior to 2005 and a change in the law in 2005 that abrogated the extension of the premises doctrine "to the extent it extends liability for accidents that occur on property not owned or controlled by the employer." § 287.020.5, RSMo. However, the *Viley* court explained, an employer is still liable for accidents occurring in areas the employer owns or controls. *Viley*, 452 S.W.3d 684.

"Because extension of premises cases involve injuries sustained before or after the actual performance of job duties, the legislature clearly contemplated and accepted compensability of injuries sustained as a result of work-related risks even though [an] employee was not engaged in the performance of job duties at the time (e.g. going to or coming from [an]