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

Page 2

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 bega