Dontarius Marks v. Missouri Department of Corrections

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-086644

**Employee:** Dontarius Marks

**Employer:** Missouri Department of Corrections

**Insurer:** Missouri Office of Administration

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 October 22, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge, Bruce Farmer, issued October 22, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **4th** day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Improved: Dontarius Marks

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 am mindful that the administrative law judge was able to observe employee as he testified, whereas the Commission only has the written transcript of employee's testimony for purposes of review. However, the administrative law judge did not specifically discuss or describe his own personal observations of employee as a basis for finding employee's testimony with regard to the accident lacking credibility. Instead, the administrative law judge did not find employee's testimony credible because it was "inconsistent with the statements provided almost immediately after the accident." *Award, p. 5*. The administrative law judge further found that employee's "testimony is a not-credible, post-accident attempt to avoid the requirements of section 287.020.3(2)(b)." *Award, p. 5*.

As a matter of general policy, I am reluctant to overturn an administrative law judge's express credibility determinations with regard to the witnesses that testify before them. However, I am disturbed by the administrative law judge's finding that employee is not credible simply because his answers on a short, post-accident questionnaire did not contain sufficient detail and description to foreshadow and perfectly harmonize with his later testimony at a workers' compensation hearing.

After careful consideration, I am persuaded to disagree with the administrative law judge's credibility determination in this case. I find employee credible in this matter. There may not have been any immediate emergency, as asked by the questionnaire, but there was always the pending possibility of danger and the need to be cognizant of employee's surroundings and the safety of his coworker.

Furthermore, just because employee stated on the post-accident questionnaire that he merely stepped wrong does not negate the need to further analyze whether employee's injury arose out of and in the course of employment. Therefore, I would proceed to that issue.

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.

Injury No.: 17-086644

Employee: Dontarius Marks

- 2 -

The second prong is the issue in dispute in this matter. The administrative law judge characterized the risk as "simply walking down the stairs." *Award*, p. 8. I disagree.

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

Accounting for the particular circumstances of this case, I find that the risk in this matter was not simply walking down stairs, but "was walking down the stairs while conducting [a] security check for criminal offenders." *Employee brief*, p. 10. Employee was in a particular circumstance where at any moment his safety or that of his colleague could be jeopardized. It was due to this particular circumstance that caused claimant to turn his head, prior to completing his descent down the stairs, to ensure that no offender was risking the safety of his colleague. Employee was not exposed to this risk source outside of the workplace.

Furthermore, the courts have instructed that dangerous conditions that are encountered at work constitute, by their very nature, hazards or risks that are intrinsically related to the employment, and are not those to which workers would be equally exposed outside of work. See, e.g., *Dorris v. Stoddard County*, 436 S.W.3d 586 (Mo. App. 2014). The courts have suggested once we've found the hazard/risk to be "related" to the employment, there's no need to analyze equal exposure:

> A claimant is not required to prove both that the hazard from which her injury arose was related to her employment and that the hazard was one which she was not equally exposed to in her nonemployment life. Rather, the claimant has the burden of proving that her injury "was caused by [a] risk related to her employment activity as opposed to a risk to which she was equally exposed in her 'normal nonemployment life.'" *Johme*, 366 S.W.3d at 512 (emphasis added). Meaning, implicit in a finding that the claimant was exposed to the risk from which her injury arose because of her employment, is a finding that the claimant could have avoided the risk outside of her employment.

*Young v. Boone Elec. Coop.*, 462 S.W.3d 783, 790 Fn.9 (Mo. App. 2015) (emphasis in original).

1 Even if the risk was walking downstairs, employee is not equally exposed to such risk outside of work. Employee walked down far more stairs while at work than in his nonemployment life. Taking a strict construction approach to the statute, there was no equal exposure in this matter.

Injury No.: 17-086644

Employee: Dontarius Marks

- 3 -

[T]he application of [§ 287.020.3(2)(b)] involves a two-step analysis. The first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and injury is integral to the performance of a worker's job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life.

Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463, 467 (Mo. App. 2010).

Therefore, I would find that employee's injury arose out of and in the course of employment. I would find a compensable injury and award benefits accordingly.

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

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

AWARD

Employee: Dontarius Marks

Dependents: N/A

Employer: Missouri Department of Corrections

Injury No.: 17-086644

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Missouri Office of Administration

Central Accident Reporting Office

Hearing Date: September 5, 2018

Briefs filed: September 19, 2018

Checked by:

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No.

1. Was the injury or occupational disease compensable under Chapter 287? No.

1. Was there an accident or incident of occupational disease under the Law? No.

1. Date of accident or onset of occupational disease: November 9, 2017.

1. State location where accident occurred or occupational disease was contracted: Callaway County.

1. Was above employee in employ 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 the employment? No.

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 was walking down stairs and missed a step.

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: Right knee.

1. Nature and extent of any permanent disability: None.

1. Compensation paid to-date for temporary disability: None.

1. Value necessary medical aid paid to date by employer/insurer: None.

WC-32A

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: N/A

1. Weekly compensation rate: N/A

1. Method wages computation: N/A

COMPENSATION PAYABLE

1. Amount of compensation payable: None.

1. Future requirements awarded: None

WC-32A

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An evidentiary hearing was held in this case in Jefferson City, Missouri on September 5, 2018. Claimant, Dontarius Marks, appeared personally and by counsel, Elizabeth Skinner. The Employer, State of Missouri Department of Corrections, appeared by counsel, Adam Hermann, assistant attorney general. The parties filed post-hearing briefs on September 19, 2018 and the case was submitted for decision.

1. The Employer was operating under and subject to the provisions of Missouri's workers' compensation law and was qualified as a self-insurer through the Central Accident Reporting Office (CARO) at all relevant times.
2. On or about November 9, 2017, the Claimant was an employee of the State of Missouri Department of Corrections and covered under the Missouri workers' compensation law at all relevant times.
3. Claimant's employment occurred in Callaway County, Missouri, and the parties agree that Cole County, Missouri, is the proper venue for this hearing.
4. The Employer did receive proper notice of the accident as required by law.
5. Claimant's claim was filed in the time allowed by law.

This was a hardship hearing. The Employer denied the claim. The issue is whether Claimant sustained a compensable injury under Missouri's workers' compensation law.

Claimant was previously employed by the State of Missouri, Department of Corrections at the Fulton Reception and Diagnostic Center. Claimant began that employment in May 2017 as a Correctional Officer I. He received initial safety and

Issued by DIVISION OF WORKERS' COMPENSATION

security training that included coursework and defensive tactics training. For his job, Claimant completed security checks once or twice each hour during his shifts.

The security checks required Claimant to perform cell searches while offenders were outside the housing unit and this required him to go up and down the stairs depending on the location of the cells. The housing unit contained four wings. Each wing has two floors and two sets of stairs along with the door leading to the rotunda area. On November 9, 2017, Claimant was performing a security check. As he descended the stairs, Claimant mis-stepped off the stair and felt his right knee twist and felt immediate pain in his knee. He did report the injury, but no treatment was authorized by the Employer. The Employer denied the claim citing section 287.020.3(2) (b). See CARO letter dated November 20 2017 (I take administrative notice of the Division's files containing this letter).

Claimant completed a questionnaire from the employer. Exhibit A. Claimant completed this questionnaire on November 13, 2017, just four days after the accident. Question 6 asked if he was "responding to a code or other emergency type situation." Ex. A. Claimant answered "no" to this question. Question 8 asked if he was "distracted for any reason while on the stairs." Claimant answered "no" to this question. In answering the other questions, Claimant verified that he was not carrying anything at the time, there were no offenders in the area (the housing unit had been cleared of offenders), there was nothing on the floor, and there was nothing "physically wrong with the steps." Id.

WCO2A

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Finally, the questionnaire asked Claimant to state what "may have caused their injury." Claimant answered: "Stepped of (sic) the step wrong." *Id.*

Claimant is exposed to stairs outside of his employment and in normal non-employment life. Claimant testified that there are the stairs to his apartment as he lives in a second floor unit. He also noted that the stairs to his apartment are carpeted while the stairs at the Department of Corrections are metal and concrete.

The only other testimony at the hearing came from Grayson Imhoff, an employee of the State of Missouri in Risk Management, who testified on behalf of the employer. His testimony was largely irrelevant. He testified generally that the stairs were built to building codes and had no physical defect. As Claimant does not argue that the stairs were defective, Imhoff's testimony has little value.

Claimant testified at length about his security training, about working with an officer he had not worked with before, about looking out for her safety during the security check and about looking back for her when he missed the step. I do not find that Claimant's testimony on these matters to be credible or that they had any impact on the accident. Claimant's testimony is inconsistent with his statements provided almost immediately after the accident. I find that his testimony is a non-credible, post-accident attempt to avoid the requirements of section 287.020.3(2) (b). Therefore, based on all the evidence, I find that the accident occurred when Claimant missed a step and did not arise out of and in the course of employment.

WC-32A

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

The first step in finding a compensable claim is to determine whether an accident occurred. Section 287.020.2 defines "accident" as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." In this case, the Employer does not dispute that an accident occurred when Claimant misstepped while descending the stairs.

The question in this case, however, is not whether an accident occurred but whether the accident and injury arose out of and in the course of employment. Section 287.020.3(2) states:

(2) 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 non-employment life.

(Emphasis added).

Claimant bears the burden of proof that his injury was compensable in workers' compensation. *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 509 (Mo. banc 2012). Claimant must prove that he suffered an injury as a result of an accident that arose out of and in the course of employment. *Miller v. Mo. Highway & Trans. Comm'n*, 287 S.W.3d 671, 673 (Mo. banc 2009).

WCO2A

Page 6

Miller considered an employee who was injured when his knee "popped" and began to hurt when he was "walking briskly" toward a truck containing repair material needed for his job. 287 S.W.3d at 671 . The court noted that the employee was working at the time, that his work did not require him to walk in an unusual brisk way, that he normally walks the same way at home, and that he did nothing unusual when walking at work that day. Id. at 672 .

The court denied compensability stating:

An injury will not be deemed to arise out of employment if it merely happened to occur while working but work was not the prevailing factor and the risk involved - here, walking - is one to which the worker would have been exposed equally in normal non-employment life. The injury here did not occur because [the employee] fell due to some condition of employment.

Id. at 674. The court reemphasized Miller's holding in Johme, stating:

Miller's focus was not on what the employee was doing when he popped his knee-he was walking to a truck to obtain materials for his work-but rather focused on whether the risk source of his injury-walking-was a risk to which he was exposed equally in his normal non-employment life.

366 S.W.3d at 511 .

In Johme, the injury occurred when the employee was making coffee and she turned, twisted her ankle and fell off her shoe. Id. at 505 . Johme was clocked in as an employee and there were no irregularities or hazards on the kitchen floor. Id. 506. The court denied compensability because "no evidence showed that she 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 non-employment life." Id. at 512 .

We now apply these holdings to the findings of fact in this case. Here, I have found that Claimant was simply walking down the stairs at the time of his injury. I have also found that he was not carrying anything, was not responding to code, was not hurrying to complete a task, was not distracted, and was not looking for a co-worker. I further find that there was nothing on the stairs and no physical defect in the stairs. I have rejected as noncredible his testimony about walking quickly or looking for his co-worker or any other security reason put forth. As Claimant admitted, he just missed a step while descending the stairs.

Thus, the risk source of his injury-walking down stairs-was a risk to which he was exposed equally in normal non-employment life. What is required under the statute is that "workers" be equally exposed to the hazard or risk outside of employment. This does not require a comparison of the number of stairs Claimant is exposed to outside the workplace with the stairs on the job. Such a narrow reading of the statute is not warranted. What matters is whether "workers" are exposed to the risk source outside the workplace. It is undeniable that workers are exposed to stairs in their normal non-employment life.

In support of his position, Claimant relies on Pope v. Gateway to W. Harley Davidson, 404 S.W.3d 315 (Mo. App. 2012). There, the court held that the employee suffered a compensable injury when he fell down the stairs while carrying a motorcycle helmet he was required to wear by his employer. The court allowed compensation because there was no substantial evidence in the record to support that the claimant normally carried his motorcycle helmet while descending stairs outside of work. 404 S.W.3d at 321.

Issued by DIVISION OF WORKERS' COMPENSATION

Here, Claimant was not carrying any work-related items and, as found, was simply descending stairs. Even if Claimant was looking at his coworker and attempting to complete a task in a timely matter, the only risk source was walking down stairs.

Other cases are distinguishable. In *Wilkins v. Piramal Glass USA, Inc.*, 540 S.W.3d 891 (Mo. App. 2018), the employee was injured when he stood up from an awkward position while changing a valve on a catwalk. The court found compensability because the risk factor of rising from an awkward position is not one the employee was equally exposed to in his non-employment life. 540 S.W.3d at 897. *Lincoln Univ. v. Narens*, 485 S.W.3d 811 (Mo. App. 2016), involved an employee who stepped off a steep edge of a sidewalk. The court found compensability because the risk source—walking along a sidewalk with its steep edge on Lincoln’s campus—arose out of and in the course of employment. 485 S.W.3d at 818.

Finally, the *Miller* court recognized that the 2005 amendments were intended to "narrow the definition of accident" and that section 287.020.3(2) was "revised to narrow the scope of those injuries that will be deemed to arise out of and in the course of employment." 287 S.W.3d at 672-73. And, in section 287.020.10, the legislature explicitly abrogated earlier case law on these issues including *Bennett v. Columbia Health Care and Rehabilitation*, 80 S.W.3d 524 (Mo. App. W.D. 2001) (allowed compensation for knee injury that occurred when walking on employer’s premises and traversing stairs while carrying linens); *Kasl v. Bristol Care, Inc.*, 984 S.W.2d 852 (Mo. banc 1999) (allowed compensation for injury that occurred when employee fell rising from chair when her foot

fell asleep); Drewes v. TWA, 984 S.W.2d 512 (Mo. banc 1999) (allowed compensation for fall that occurred while employee was carrying lunch tray on work premises).

Consistent with the legislative intent and the holdings in Miller and Johme, I find that Claimant has not met his burden of proof and did not sustain a compensable injury. Because of this finding, I am entering a final award denying Claimant's claim for compensation.


Made by:

Bruce Farmer

Administrative Law Judge

Division of Workers' Compensation