Pauline Nugent v. State of Missouri, Missouri State University

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 17-011083**

**Employee:** Pauline Nugent

**Employer:** State of Missouri, Missouri State University

**Insurer:** 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 November 14, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karen Wells Fisher, issued November 14, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **5th** day of September 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Pauline Nugent

Injury No. 17-011083

Dependents: N/A

Before the

Employer: State of Missouri, Missouri State University

DIVISION OF WORKERS' COMPENSATION

Additional Party: N/A

Department of Labor and Industrial

Relations of Missouri

Injurer: Office of Administration

Jefferson City, Missouri

Hearing Date: July 12, 2018

Checked by:

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 13, 2017
5. State location where accident occurred or occupational disease was contracted: Springfield, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational dsease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Walking in a parking lot and tripped on a parking island, which caused her to fall and break her wrist.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Wrist
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -
17. Value necessary medical aid not furnished by employer/insurer? $\ 26,933.49
18. Employee's average weekly wages: N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Injury No

1. Weekly compensation rate: 911.27/477.33

1. Method wages computation: Stipulated

1. Amount of compensation payable: -0-

Unpaid medical expenses: N//A

weeks of temporary total disability (or temporary partial disability) N/A

weeks of permanent partial disability from Employer N/A

weeks of disfigurement from Employer N/A

1. Second Injury Fund liability: N/A

TOTAL:

1. Future requirements awarded: N/A

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of the following attorney for necessary legal services rendered to the claimant:

Revised Form 21 (3/97)

Page 2

Employee: Pauline Nugent

Injury No. 17-011083

Dependents: N/A

Employer: State of Missouri, Missouri State University

Additional Party: N/A

Insurer: Office of Administration

Hearing Date: July 12, 201

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The parties appeared before the undersigned Administrative Law Judge for a final hearing to determine the liability of Employer, State of Missouri. Employee, Pauline Nugent, appeared with her attorney of record, Randy Alberhasky. Assistant Attorneys General Cara Harris and Mike Bang represented Employer, State of Missouri. Employee alleges a date of injury of February 13, 2017. The parties were afforded the opportunity to submit written suggestions or briefs. The proposed award submitted by Assistant Attorneys General Cara Harris and Mike Bang has been adopted as the final award in this case.

The parties agreed that the following issues were the only ones to be determined at this hearing.

1. Whether the hazard or risk that caused Employee's injury is a hazard or risk unrelated to her employment to which she would have been equally exposed to outside of and unrelated to her employment in her normal non-employment life.
2. Whether or not Employer is liable for payment of past medical expenses incurred related to Employee's injury of February 13, 2017 in the amount of $\ 26,933.49.
3. If Employee's claim is found compensable, the nature and extent of disability which she sustained related to the injury of February 13, 2017.

1. If Employee sustained a compensable injury, whether or not she is entitled to disfigurement related to the injury of February 13, 2017.
2. If Employee sustained a compensable injury, whether or not Employer is obligated to provide Employee with future medical care necessary to cure and relieve her of the effects of the February 13, 2017 injury.

Employee offered the following exhibits, which were received into evidence:

1. Cox Health, 13 pages certified $6 / 30 / 17
2. Mercy Hospital, 651 pages certified 6 / 6 / 17
3. Cox Health, 1 page certified 6 / 20 / 17
4. Mercy Hospital, 7 pages certified 5 / 30 / 17
5. Dr. Mitch Mullins IME report dated 4 / 3 / 18

a. CV

1. Dr. Mullins Addendum 4 / 25 / 18
2. Claim 3 / 4 / 17$
3. Answer from Employer/Insurer 4/10/17
4. Report of Injury
5. Medical Disclosure to Opposing Counsel dated 7/6/17
6. Medical Disclosure to Opposing Counsel dated 11/6/17
7. RSMo $\S 287.210 letter dated 4 / 16 / 18$
8. Medical Disclosure to Opposing Counsel dated 4/25/18
9. Deposition of Sr. Pauline Nugent dated 1/12/18
10. Deposition of Dr. Mitch Mullins dated 5/2/18
11. Parking Lot Photo \#1
12. Parking Lot Photo \#2
13. Parking Lot Photo \#3
14. Parking Lot Photo \#4
15. Parking Lot Photo \#5
16. Parking Lot Photo \#6
17. Parking Lot Photo \#7
18. MSU Parking Lot Photo \#1
19. MSU Parking Lot Photo \#2
20. MSU Parking Lot Photo \#3
21. St. Elizabeth Church Parking Lot \#1
22. St. Elizabeth Church Parking Lot \#2

1. St. Elizabeth Church Parking Lot \#3
2. Walmart S. Campbell Parking Lot \#1
3. Walmart S. Campbell Parking Lot \#2
4. Walmart S. Campbell Parking Lot \#3
5. Walmart S. Campbell Parking Lot \#4
6. Personal Driveway Photo \#1
7. Personal Driveway Photo \#2
8. Statement provided RSMo $\S 287.215$ - Report of Injury from Sr. Nugent
9. CV - Bruce Moore
10. Bruce Moore's site inspection of Glen Isle Center

Employer offered the following exhibits, which were received into evidence:

A. Police report with picture

B. Email regarding fall

C. U.S. Post Office (USPO) picture

D. USPO picture

E. USPO picture

F. Walmart picture

G. Walmart picture

H. Smith Glynn picture

I. Smith Glynn picture

J.Smith Glynn picture

K. Smith Glynn picture

L. Smith Glynn picture

M. U.S. Bank picture

N. U.S. Bank picture

O. St. Elizabeth Ann Seaton Catholic Church (SEAS) picture

P. SEAS picture

Q. SEAS picture

R. SEAS picture

S. SEAS picture

T. Holy Trinity Catholic Church (HTCC) picture

U. HTCC picture

V. HTCC picture

W. HTCC picture

X. HTCC picture

Y. HTCC picture

Z. HTCC picture

AA.Dillard's picture

BB.Dillard's picture

CC.Bank of America picture

DD. Wes Wright's pictures

EE.Wes Wright's Curriculum Vitae

Employee testified on her own behalf. She is a very pleasant, welleducated lady who I find to be very credible. She was born in Ireland and came to the United States at the age of 16 to enter a convent. She has spent the last 26 years working as a professor at the Missouri State University where she teaches Latin, Greek and Hebrew, along with other classical classes. She testified that in addition to her classroom work she spends several hours a day doing other work activities, including grading papers, responding to students' emails as well as other various tasks. Employee testified that she has to walk a lot on the campus of Missouri State University while performing her job. She testified she parks in the parking lot on the corner of Grand and National. Pictures of her parking lot were admitted into evidence as Exhibits 23, 24, and 25. Employee testified she parks far away in the parking lot to give herself more exercise. She also testified that during the school year she walks more at work and for work than she does personally. However, she also walks personally, sometimes going to the mall to walk if the weather is bad.

Employee testified she typically goes back to England and Ireland every other summer. She most recently went to England, Ireland and Israel the summer of 2017, just months after sustaining her accident, which is the subject of this workers' compensation claim. On that excursion she traveled by herself, flying from Springfield to Chicago to Heathrow to Dublin to Tel Aviv, and then back in the same order.

Employee testified that during the school year outside of work she does other normal household activities, including laundry and shopping, housekeeping and lecturing occasionally. She also attends church on a daily basis, going to Holy Trinity Catholic Church every day of the week except Wednesday, when she attends at St. Elizabeth Ann Seaton Church. Employee testified she typically does her grocery shopping at Walmart located on South Campbell.

Employee:

Injury No

On the date of the injury, Employee left Missouri State University campus and had driven to the Glen Isle Center where she went to the post office on some sort of personal errand. While she was at the Glen Isle Center she decided to visit some colleagues from Missouri State University whose offices were located in the Glen Isle Center. After leaving the post office she drove her car across the parking lot of the Glen Isle Center to the other end to be near the door of the Missouri State University offices. At the time she was going into the Missouri State offices she was going to talk with Guy Weber regarding something work related.

After parking her car and exiting her car Employee tripped on a parking island in the parking lot of the Glen Isle Center while walking toward the Missouri State University offices. Pictures were offered into evidence of the area near where Employee fell, including Employee's Exhibits 16 - 19, and 22. Employer also offered Exhibits showing where Employee fell, which include particularly the last page of Exhibit A, which was taken the day of Employee's fall by a responding officer. Through Employee's expert, Bruce Moore, further pictures of the area where Employee fell were offered as Exhibit 37. Through Employer's expert, Wes Wright, further pictures of the parking lot in which Employee fell were offered as Exhibit DD.

In looking at the picture taken most closely in time to the actual fall, Employee believes that she fell behind the gray car depicted on the fourth page of Employer's Exhibit A. Showing another angle of the same area, specifically where she fell, is picture 4 in Employee's Exhibit 37. Employee testified she was walking behind what is the red car in this picture and tripped over the portion of the parking island painted in yellow sticking out farther than the bumper of the red car depicted in picture 4 of Employee's Exhibit 37. Employee testified she did not see the parking island, or sidewalk as she called it, and lost her balance and fell onto the parking island. She testified she hit her foot against the curb and fell. She testified she did not see the curb and in the fall she broke her wrist. After the fall she looked at her arm, saw her broken wrist, and fainted.

Employee was taken by ambulance to Mercy Hospital where she later underwent surgery the next day for her broken wrist.

The undersigned observed the scar on Employee's wrist, should benefits be awarded in this case, and the undersigned determined three weeks of disfigurement would be assessed for the scar on Employee's wrist.

Employee testified currently she does not use her left hand very much. She has difficulty holding some things and now has trigger finger in the long

Employer:

Injury No

finger on her left hand. She testified the weakness in her left wrist is greater than the pain and she has had no pain in the last three weeks, although it does hurt from time to time. She testified that her 2 lb . prayer book is difficult for her to hold at times, and she does not use her left hand or wrist very much. Employee testified she is right hand dominate.

Employee identified some of the pictures offered into evidence by her counsel, including the picture of St. Elizabeth Ann Seaton Church where she worships on Wednesdays as well as other days occasionally, and the picture of her home. Employee testified with respect to Dillard's. She does not typically shop there, but may have parked in the parking lot near Dillard's to get to the mall where she walks sometimes. She further testified she occasionally goes to the Bank of America and may have been at the Bank of America portrayed in Employer's Exhibit CC on occasion.

Employee identified Employer's Exhibit B as being an email chain from her whereby she answered specific questions related to her fall on February 27, 2017, two weeks after her fall. She testified that in answer to the question as to if she was carrying anything at the time, she answered she was carrying only her handbag, which she testified was personal. In answer to the question of whether or not she was in a hurry, she admitted she was not in a hurry and answered as such in February 2017. In answer to the question as to whether weather was a factor in her fall, she answered in February 2017 that weather was not a factor, and agreed with that at the hearing as well. In answer to the question as to "what do you think caused your fall?" she agreed she answered "I lost my balance as I turned to head towards the building" And in answer to the question of "Was there anything defective in the area?" she agreed she answered "No! I missed a small curb that was clearly marked" (Employer's Exhibit B). She testified similarly on both issues at the hearing.

Employee testified she uses the United States Post Office at Glen Isle Center on occasion for personal needs when the post office on the Missouri State University campus is closed or does not have what she needs.

Employee also testified she shops at the Walmart on South Campbell. Pictures of the parking lot at that Walmart were offered as Employee's Exhibits 29-32, and Employer's Exhibits G and F. Employee also admitted to having utilized the Urgent Care Clinic at Smith Glynn Callaway Clinic. Exhibits showing Smith Glynn Callaway Clinic's parking lot was admitted as Employer's Exhibits H-L. Employee also testified she banks at the U.S. Bank on North Glenstone. Pictures of this parking lot were entered into evidence as Employer's Exhibits M and N.

Employee also testified she attends church and other functions at St. Elizabeth Ann Seaton Catholic Church, pictures of their parking lot were put into evidence as Employee's Exhibits 26-28, and Employer's Exhibits O-S. Employee also testified she attends church daily, with the exception of Wednesdays, at Holy Trinity Catholic Church. She testified Employer's Exhibits T-Z depicted the parking lot at Holy Trinity Catholic Church.

Employee testified she goes to the U.S. Post Office on Glenstone, the U.S. Bank on Glenstone, the Walmart Super Center on Campbell and Walnut Lawn, Smith Glynn Callaway Clinic on South National, St. Elizabeth Ann Seaton Catholic Church, and Holy Trinity Catholic Church in her normal non-employment life. Employee testified she drives herself wherever she goes.

Employee called Bruce Moore, professor of architecture at Drury University, as an expert in her case. Mr. Moore has two degrees. One is a bachelor of science in architecture, and the other is a master of architecture. He currently teaches architecture and specifically a design studio which is application based at Drury University. He has been a professor for approximately

34 years.

Mr. Moore testified he is familiar with areas of parking lot and building codes that have a requirement to do with egress, specifically how to get safely away from a building. Mr. Moore testified he has experience with parking lots and the level of safety that they exhibit.

Mr. Moore testified "the path" and the condition of "the path," include how level it is, if there any changes in the slope of it, what is the color and the placement of color, is there contrast, how noticeable are any changes in the surface, and how visible are placements of any changes in the surface level.

Mr. Moore testified a level pathway can have no more than $1 / 4 inch of difference in it. If there is greater than 1 / 4$ inch it needs to have some sort of treatment on it, unless it is a curb or a step. He testified if it is greater than 1 inch incline it would need to have a ramp.

Mr. Moore testified about Exhibit 37, which are pictures he took of the parking area where Employee fell. These were taken in April 2018. He testified the islands depicted in the picture, and particularly the parking island where Employee fell, are put in parking lots to coordinate movement and help with traffic and pedestrian flow. He believes photo 4 of Exhibit 37 shows best where he understands Employee fell. He understands she fell on the far end of the island as she was walking towards the building. He testified

Employec:

Injury No

that the curb was treated with high contrast of bright yellow paint. He said that the middle portion of the island was mechanically built, but the ends of the island which curve were made by hand.

Looking particularly at picture 4 of Exhibit 37, Mr. Moore testified that the edge of the curb near where Employee fell is at an angle instead of going straight up and down like the mechanical portions of the curb do, as seen best on picture 7. He also did measurements of the curb and found, as depicted in pictures 13-16, that the side of the parking island closest to the building was 6 inches tall, as seen in pictures 13 and 14 , yet the far end of the curb and the side of the curb furthest away from the building, as depicted in pictures 15 and 16 , was 7 inches tall. Mr. Moore did admit that the pictures and the measurements he took, depicted in pictures 13-16, were done with him holding the tape measure and holding the camera, and that the camera did not sit on a specific stand or anything that would hold the camera at the same level in each picture. Mr. Moore also admitted that it appeared particularly in picture 15 that the tape measure was held much further away from the curb than it was in pictures 13 and 14 . He further agreed that angling of the camera and placement of the tape measure could have some effect on the measurements depicted in the pictures.

Mr. Moore testified he did not believe there were more parking islands in the parking lot where Employee fell than in any other parking lot. He also testified that more parking islands in a parking lot typically lead to a safer parking lot. Mr. Moore testified that the one inch height difference in the area of the parking island curb where Employee fell was unusual and unexpected.

On cross-examination, Mr. Moore testified parking islands are not unusual. He also testified the angle at the end of the parking lot curb, as depicted in picture 4 of Employee's Exhibit 37, would be kinder to cars should a car cross over the parking island. He testified there is no specific requirement as to the height of curbing or a parking island in Springfield, although most are generally 6 inches and are certainly 6 inches if they are public works projects.

Mr. Moore testified that the coloring and contrast on the parking island curb in the area where Employee fell was reasonable and very bright. Mr. Moore testified he did not know why Employee fell or if the difference between the 6 inches versus 7 inches that he noted in the height of the parking island contributed to her fall at all. He agreed that hypothetically if she did not see the curb and fell because of that, it would not matter if the curb was 6 or 7 inches tall.

Employee:

Mr. Moore testified he did not observe any other parking lots or curbs that Employee may encounter in her daily life. In reviewing Employer's Exhibits C-Z, which were the pictures of the parking lots Employee goes to in her non-employment life, Mr. Moore found safety issues with all. Particularly in Exhibits F and G from Walmart, he noticed that the curbs on the parking islands were not contrasted at all. He also testified the parking islands in the Walmart lot where Employee shops would be less safe for pedestrians in a lot of ways than where Employee fell.

In reviewing Employer's Exhibits H-L, the pictures from Smith Glynn Callaway Clinic, Mr. Moore testified the curbs and parking islands, while well contrasted in color, have problems. Particularly the islands shown in Employer's Exhibits J and K are not a safe installation, in his opinion, given how they specifically slope to the ground.

Mr. Moore was particularly taken aback by Employer's Exhibits N and M, which show the parking island curbs at the bank where Employee personally banks. While noting that the parking islands are planted to try to discourage egress across the parking islands, the curbs themselves are in very bad shape, particularly as shown in Employer's Exhibit M where a piece of curb is completely displaced. He testified this parking lot and these islands are particularly less safe than that in the parking lot where Employee fell, and are indeed not safe.

In reviewing Employer's Exhibits O-S, which are pictures taken of the parking lot at St. Elizabeth Ann Seaton Church, Mr. Moore pointed out none of the parking islands have color contrast and that, indeed, the parking apron which goes down from the curb onto the ground is the same color as the curb itself, which causes concern. He also testified it appeared that perhaps the end curbs on the parking islands, particularly noted in Employer's Exhibit P, are like the parking island where Employee fell and appear to be sloped down to the ground instead of straight up and down. Mr. Moore testified that there are deficiencies in the parking islands at St. Elizabeth Ann Seaton Church equally, if not worse, than those he found at the parking lot where Employee fell.

In reviewing Employer's Exhibits T-Z, which depict the parking islands found at Holy Trinity Catholic Church and is the church where Employee goes six days a week, Mr. Moore testified that particularly Exhibit U shows no contrast whatsoever in the curbing around the island versus the ground, which is a problem. He noted it appears that the only contrast on any of the parking island curbs at Holy Trinity Catholic Church are where there is a fire lane as depicted by Employer's Exhibits V, W and Y. He also noted a corner

injury No

on the parking island depicted in Employer's Exhibit Z, which has some deficiencies and is not straight up and down. Overall; he testified the parking islands and lot at Holy Trinity Catholic Church has deficiencies that would cause safety issues, in his opinion.

Employer called civil engineer Wes Wright as an expert. Mr. Wright testified, and his curriculum vita establishes, that for the last 11 years he has been working as a senior engineer in the civil division for Sempke Forensics. He conducts forensic investigations and technical research of complex civil engineered systems, including design and construction defect and pedestrian accidents, including slip and falls.

Mr. Wright visited the parking lot where Employee fell and took several pictures, which were admitted as Employer's Exhibit DD.

Mr. Wright testified the purpose of a parking island is to limit conflicts between pedestrians and vehicles. He testified that engineers use information, including the number of spaces that are required, to create a good traffic flow and ques for pedestrians as to where to walk.

Mr. Wright said he observed no concerns regarding the design and construction or safety of the parking island upon which Employee fell. He testified the design and construction are typical for public and private facilities. The color and striping provided visual ques, which were appropriate. Mr. Wright testified it is not unusual to see a slope at the end of the parking island, such as Mr. Moore observed on picture 4 of his exhibit. He also testified it is not a safety concern if the parking island did vary by one inch from side to side in the height. Mr. Wright testified he did not take measurements because the design and construction of the parking lot, particularly the parking island, was made in such a manner as to limit conflicts because of the layout, markings, signage and lighting. He opined there was no degree of danger or safety concern because the parking island was adequately marked to indicate to any pedestrian that there was a change in elevation. He testified parking islands are common in most all parking lots and testified that the lot where Employee fell has no more parking islands than most parking lots.

Employee offered medical records and bills showing the treatment and costs incurred for the treatment she had related to the broken wrist she sustained following the fall in the parking lot.

Employee has the burden of proving all elements of her claim to a reasonable degree of probability. Cardwell vs. Treasurer of the State of Missouri 249 S.W.3rd 902, 911(Mo.App.E.D.2008).

The facts of this case are undisputed. Employee fell over a parking island in the Glen Isle Center parking lot in Springfield Missouri, while walking toward the Missouri State University offices located in that center.

The underlying issue presented is whether or not Employee was exposed to a hazard or risk that caused her injury, unrelated to her employment to which she would have equally been exposed to outside of and unrelated to her employment. Under $\S 287.020 .3(2)$ (b), if Employee's injury is deemed to have arisen from such a hazard or risk, it would not be considered to have arisen out of and in the course of her employment and no benefits would be due under Chapter 287.

Under Gleason v. Treasurer, 455 S.W.3d 494 (Mo.App. W.D. 2015), when assessing this issue, I must determine the "risk source" of the injury and determine "whether the risk source of [her] injury - [walking in a parking lot with parking islands]- was a risk to which [she] was exposed equally in [her] 'normal non-employment life."' (Adapting the holding in Gleason to the facts presented in this case) Id. at 499.

As noted above, I find that the "risk source" that caused Employee's injury was walking in a parking lot with a parking island that caused her to trip and fall thereby breaking her wrist. Having determined the risk source, I must now determine if Employee is equally exposed to similar parking lots with similar parking islands in her normal non-employment life.

I find no cases specifically involving an injury occurring by falling over parking lot islands. I find cases involving walking and even walking in parking lots where this issue has been evaluated, but none involving parking islands.

In the cases where walking has been identified as at least an element of "the risk source" of an injury, something more than just "walking" has been required in order for the injury to be deemed compensable, and there has been no evidence establishing that the employee was exposed to similar circumstances in their normal non-employment life. See: Pope v. Gateway to the West Harley Davidson, 404 S.W.3d 315 (Mo.App. E.D. 2012) (walking down steps carrying motorcycle helmet and wearing motorcycle boots as part

Employer:

injury No

of job, no evidence employee was exposed to the same in normal nonemployment life); Scholastic, Inc. v. Viley, 452 S.W.3d 680 (Mo.App. W.D. 2014) (walking in an icy parking lot controlled by employer, no evidence employee was exposed to this icy lot in normal non-employment life); Duever v. All Outdoors, Inc., 371 S.W.3d 863(Mo.App. E.D. 2012) (falling in icy parking lot, no evidence employee was exposed to this icy lot in normal nonemployment life); Dorris v. Stoddard County, 436 S.W.3d 586 (Mo.App. S.D. 2014) (walking on busy street with cracks having to watch for traffic, no evidence employee was exposed to crossing this street with these cracks in normal non-employment life); Lincoln University v. Narens, 485 S.W.3d 811 (Mo.App. W.D. 2016) (stepping off the steep edge of a sidewalk on work campus, no evidence employee was exposed to steep edged sidewalks in her normal non-employment life); Social Services v. Beem, 478 S.W.3d 461 (Mo.App. W.D. 2015) (walking in icy parking lot controlled by employer, no evidence employee was exposed to the icy parking lot in normal nonemployment life) Pile v. Lake Regional Health System, 321 S.W.3d 463 (Mo.App. S.D. 2010)(exposed to "prolonged walking over a period of time", no evidence employee was exposed to prolonged walking over a period of time in normal non-employment life); Conagra v. Phillips, 527 S.W.3d 74 (Mo.App.W.D. 2017) (falling off an "unguarded ramp" in steel-toed boots, no evidence employee was exposed to unguarded ramps wearing steel-toed boots in normal non-employment life); Gleason v. Treasurer, 455 S.W,3d 494 (Mo.App.W.D. 2015) (falling 20 to 25 feet from the top of a railcar, no evidence employee was exposed to walking on the top of a 20 to 25 foot high railcar in normal non-employment life).

In each of these cases there was found to be some additional factor related to employment, such as carrying or wearing a certain item related to employment, or there was found to be some defect or safety issue related to the "risk source." Examples of the items being related to work include the helmet and boots the employee was wearing in Pope or the shoes the employee was wearing in Conagra. Examples of the defect or safety issue related to the "risk source" include the icy parking lots in Viley, Duever, and Beem, the cracks in the busy street in Dorris, the steep edge of the sidewalk in Narens, the unguarded ramp in Conagra and the height of the rail car in Gleason. All of these cases made specific findings as well that there was no evidence that the employees were exposed to the same risk factors in their normal non-employment life.

In this case, there is no evidence that Employee was carrying or wearing any item related to her employment. She testified the only thing she was carrying was her handbag, which contained personal items. There is no

Immployee:

Injury No

testimony that Employee was required to, or was, wearing special shoes related to her employment.

Furthermore, the evidence establishes that Employee when injured was walking in a parking lot that she walks in on occasions in her normal nonemployment life. In fact Employee had, just moments before her alleged work related fall, walked in the very same parking lot, with the very same parking island in her normal non-employment life when she went to the United State Post Office located in the Glen Isle Center on personal business. Employee also testified that since the fall in February 2017, she has been in the same parking lot on personal non-employment business

Employee's own testimony establishes that she is routinely exposed to similar parking islands in similar parking lots that she frequents in her normal non-employment life. The parking lot of her grocery store, her bank and mostly notably of the churches that she attends daily, all have similar parking islands found within their parking lots. I find based on the evidence that Employee is at least "equally exposed," if not in fact more exposed, to parking lots with similar parking islands "outside of and unrelated to her employment in [her] normal non-employment life" as she is in her employment life.

I must next evaluate if there is a particular hazard or risk associated with the parking lot and parking island over which Employee fell that makes it somehow different and a greater risk source than all of the parking lots and parking islands to which she is exposed in her normal non-employment life.

Expert evidence was offered on this very topic by both Employee and Employer. After listening to and evaluating the opinions of both experts, I find that they basically reach the same opinion on this issue. While Mr. Moore testified that the parking island over which Employee fell was higher on one side than the other and that the height difference was "unexpected," he also testified that he did not know if the one inch height difference that he unscientifically measured was the cause of, or contributed to, Employee's fall. In fact, Mr. Moore testified that if Employee fell because she did not see the parking island, the one inch different in height between the two sides of the island would have made no difference. Furthermore, Mr. Moore agreed that the "contrast" of the parking island (meaning the bright yellow paint around the edge) was reasonable and very bright. Finally, Mr. Moore testified that the parking islands found within the parking lots Employee is exposed to in her normal non-employment life, as depicted in Employer Exhibits C-CC, all cause him concern regarding their condition, structure and contrast or lack thereof. Mr. Moore agreed that the parking islands depicted in the pictures of

injury No

where Employee goes in her normal non-employment life are worse and more dangerous than the one she fell over in the Glen Isle Center. Mr. Wright agreed with Mr. Moore on all of these points and found no concerns with the parking lot or parking islands in the Glen Isle Center.

Finally, when I look to Employee's own statement, made just two weeks after the fall, in which she stated when asked "was there anything defective in the area?" she answered "No! I missed a small curb that was clearly marked", I find that even Employee did not believe that there was a defect with the parking lot or parking island (Employer Exhibit B).

Given Mr. Moore and Mr. Wright's testimony, and Employee's own testimony and statement, I find that there is no defect or safety issue with the parking lot or parking island on which Employee fell that would be a unique risk source to her employment. I further find Employee was not exposed to a hazard or risk that she was not equally exposed to in her normal nonemployment life when she fell on February 13, 2017.

This case is a textbook example of a case illustrating that not every injury that occurs while an employee is at work or preforming work activities is compensable under Chapter 287. "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 in a parking lot with parking islands]- is one to which the worker would have been exposed equally in normal non-employment life." Miller v. Missouri Highway and Transp. Com'n., 287 S.W.3d 671, 674 (Mo.banc 2009) (adapted slightly to fit the facts of this case). All benefits under Chapter 287 are denied.