Lula Gray v. Hy-Vee Food Stores

(Affirming Award and Decision of Administrative Law Judge)

Invoice 14-074997

Employee: Lula Gray (deceased)

Claimant: Laura Susan Daly

Employer: Hy-Vee Food Stores

Insurer: Emcasco Insurance Company

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

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, heard oral arguments 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 27, 2018 and

awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued

November 27, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 10th day of January 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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? No
4. Date of accident or onset of occupational disease: ---
5. State location where accident occurred or occupational disease was contracted: Alleged Columbia, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
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: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Alleged left shoulder
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 -

1. Value necessary medical aid not furnished by employer/insurer? - 0 -
2. Employee's average weekly wages: ---
3. Weekly compensation rate: 133.19 for temporary total disability benefits

215.00 for permanent partial disability benefits

1. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable: - 0 -
2. Second Injury Fund liability: - 0 -
3. Future Requirements Awarded: None

The above-referenced workers' compensation claim was heard by the undersigned administrative law judge on September 12, 2018. Memoranda were submitted by October 12, 2018.

The parties stipulated that on or about October 3, 2014, the claimant, Lula Gray, was in the employment of Hy Vee Food Stores (Hy Vee). The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by Emcasco Insurance Company with EMC Risk Services serving as the third party administrator. The employer had timely notice of the injury. A claim for compensation was timely filed. The compensation rate is $\ 133.19 per week for temporary disability benefits and $\ 215.00 per week for permanent partial disability benefits. No temporary disability benefits have been provided. No medical aid has been provided.

The issues to be resolved by hearing include 1) the occurrence of an accident, 2) whether the alleged accident arose out of and in the course of employment, 3) the liability of the employer/insurer for unpaid medical bills in the amount of $\ 82,512.85,4 ) the liability of the employer/insurer for past temporary total disability benefits, 5) the nature and extent of permanent disability, 6) the liability of the Second Injury Fund (note that permanent total disability is alleged), 7) the liability of the employer/insurer for future medical treatment, and 8) the rate of compensation for permanent total disability benefits.

The employer/insurer stipulated that in the event the claimant is successful in proving a compensable claim that medical benefits in the amount of $\ 82,512.85 would be the responsibility of the employer/insurer.

As of the date of hearing, the claimant, Lula Gray, was 82 years old. Ms. Gray was widowed in 2006, and has lived alone since 2007. Ms. Gray began her employment with Hy Vee in 2007, working six hours a day, three days per week, bussing tables and cleaning the dining area. Ms. Gray worked from 7 a.m. to 1 p.m. Ms. Gray had no difficulty with her job at Hy Vee, and in particular, had no difficulty walking to complete her duties at Hy Vee. Ms. Gray wore tennis

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lula Gray

Injury No. 14-074997

shoes to work and reserved these shoes for work only. Ms. Gray replaced these shoes every six months.

On October 3, 2014, Ms. Gray walked into the main entrance of Hy Vee at 6:50 in the morning after walking across a wet parking lot. Ms. Gray testified that it was not raining, but that the parking lot was wet as the result of dew. Ms. Gray said that her tennis shoes that day were possibly close to being six months old but that they were not defective in any way and had not caused her to slip or fall previously. Ms. Gray said that she fell suddenly and has no idea why she fell. Ms. Gray said that she was aware of no condition which could have caused her to fall. Ms. Gray identified the area where she fell as in the dining area. Ms. Gray described the floor in the dining room as being a smooth polished surface. Ms. Gray said that there was no water or liquids in the area where she fell and that there were no servers or waiters in the area. Ms. Gray injured her left shoulder in the fall and subsequently had a left shoulder replacement.

Ms. Gray acknowledged that although her claim for compensation stated that she slipped due to water on the floor, that she was aware of no water on the floor at Hy Vee at the time of her fall. During cross-examination Ms. Gray testified that her supervisor at the time of her fall was Tony Deaver, a gentleman with whom she had a "marvelous" relationship and a person of good character. Ms. Gray testified that she was sure that there was a mat or rug at the entrance to the store. Ms. Gray again emphasized that there was no water or food on the floor where she fell that would have caused the fall or that she actually fell on. Ms. Gray went on to say that there was no water or foreign substance on her clothing when she got up from the floor. Ms. Gray described the area where she fell as being 15 to 20 steps into the store. Ms. Gray said that it was likely that she had water on her shoe.

Ms. Gray said that she had had no prior falls in the shoes she was wearing when she fell. Ms. Gray also testified to dew throughout Columbia the morning of her fall.

Ms. Gray described having surgery on her left leg in 2010, followed by surgery on the right leg a year later. Ms. Gray described no restrictions or problems as the result of the leg surgeries and prior to 2014.

Ms. Gray described the limitations she now experiences as the result of her October 3, 2014 injury.

Stephanie Knedler testified that she is currently an employee of Boone Hospital, but that on October 3, 2014, she was employed in the kitchen at Hy Vee on West Broadway in Columbia. Ms. Knedler did not witness Ms. Gray's fall but went to her aid immediately afterward when she saw people running toward Ms. Gray. Ms. Knedler recalled Ms. Gray saying something about falling as well as something about her shoes having contributed to the fall and that Ms. Gray said she was trying to catch her purse which had fallen off of her shoulder when she fell. Ms. Knedler saw no food or water on the floor that could have contributed to a fall when she went to Ms. Gray immediately after the fall. Ms. Knedler was aware of no other falls at Hy Vee that day.

Julie Ruggiero, the manager of perishables at the West Broadway Hy Vee since August of 2001, testified that Lula Gray worked in the perishable department at the West Broadway Hy Vee and

WV-32-81 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lula Gray

Injury No. 14-074997

that she was Ms. Gray's supervisor. Ms. Ruggiero stated that she came down immediately after hearing of Ms. Grays's fall. Ms. Ruggiero testified that the area where Ms. Gray fell was not an area of normal foot traffic. Ms. Ruggiero testified to Hy Vee's policy of accident investigation and said that she was in charge of the investigation into Ms. Gray's fall. Ms. Ruggiero said that she found no wet area or water in the area where Ms. Gray fell and found no wet substance on Ms. Gray or on herself after being with Ms. Gray on the floor in the ten minute period following the fall. Ms. Ruggiero said that Ms. Gray said that her shoes had been sticking and that her son had planned on taking her to get new shoes. Ms. Ruggiero said that tennis shoes were common and permissible for work in her department at Hy Vee. Ms. Ruggiero said that she never inspected Ms. Gray's clothing or shoes and that she could not say whether they were defective.

Tony Deaver testified that he is currently the kitchen manager at the Hy Vee store in Topeka, Kansas, that he has worked at Hy Vee for 29 years and that from 2001 to 2016 he worked as the kitchen manager at the West Broadway Hy Vee. Mr. Deaver said that he initially met Ms. Gray as a customer and that after Ms. Gay's husband passed away she needed to get out of the house and began working at Hy Vee. Mr. Deaver found Ms. Gray to be an "awesome" employee and said that they became close friends. Mr. Deaver said that he got to Ms. Gray's side within the first moment after her fall. Mr. Deaver said that any fall at Hy Vee, whether customer of employee, always required detailed notes regarding anything on the floor near the site of the fall; Mr. Deaver said that he saw nothing which could have caused Ms. Gray's fall. According to Mr. Deaver, Ms. Gray said "those darn shoes got me" and said that it was her second fall in those shoes. Mr. Deaver admitted that he did not inspect Ms. Gray's shoes.

Emergency room medical records from the University of Missouri Health System for October 3, 2014, reflect that Ms. Gray told medical personnel with the ambulance that picked her up that she "was walking when she tripped over her own feet and landed on her left arm ..." (University of Missouri Health System, 10.3.14)

APPLICABLE LAW

RSMo 287.020.3(2) (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 nonemployment life.

An injury will not be deemed to arise out of employment if it merely happened to occur while working but work was not a prevailing factor, and the risk involved - here, walking - is one to which the worker would have been exposed equally in normal non-employment life. Miller vs. Missouri Highways and Transportation Commission, 287 S.W. 3d 671 (S.Ct. 2009). An injury is only compensable if it is shown to have resulted from a hazard or risk to which the employee would not be equally exposed in "normal non-employment life." Miller, supra. Failure to identify a specific risk or hazard associated with the work place supports a denial of

WCO2-8116-811

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**Employee:** Lula Gray

**Injury No.:** 14-074997

compensation. Porter vs. RPCS, Inc., 402 S.W.3d 161 (S.D. 2013), noting that the evidence where a worker fell was an ordinary tile floor with no particular hazards that might have caused the fall. According to Gleason vs. Treasurer of the State of Missouri - Custodian of the Second Injury Fund, WD77607, the holding in Porter simply recognizes that the hazard or risk of falling when walking on a smooth surface is a hazard or risk to which workers would have been exposed outside and unrelated to employment in normal non-employment life.

The claimant, Lula Gray, has failed to sustain her burden of proof that she sustained an accident that arose out of and in the course of her employment. There is no evidence that Ms. Gray did anything other than walk into the Hy Vee store and fall after taking 15 to 20 steps. Ms. Gray herself was not able to identify anything related to Hy Vee or her work for Hy Vee that caused her to fall. There was no evidence that work was a prevailing factor in causing her to slip and fall; moreover, there was no evidence that walking on the grocery store flooring was a hazard or risk to which she was not equally exposed in her non-employment life.

All other issues raised for resolution are hereby rendered moot.

---

I certify that on 11-27-18

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is returned with the executed award in the Division's case file.

By __________________________

**Made by** __________________________

HANNELORE D. FISCHER

Administrative Law Judge

Division of Workers' Compensation