Patricia Smith v. Lester E. Cox Medical Centers

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 17-011723**

**Employee:** Patricia Smith

**Employer:** Lester E. Cox Medical Centers

**Insurer:** Self-Insured

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 April 28, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued April 28, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 24th ______ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

Injury Nos. 17-011723

17-027020

Employee: Patricia Smith

I find employee's testimony credible that the floor where she fell was slippery due to buffing and polishing. I also find credible claimant's testimony that she did not inform her doctor that she tripped. Although employee used the term "trip" in her call with employer's third-party administrator, I find credible that employee did not trip, but slipped on employer's buffed and polished floor.

I take issue with any implication in the award that employee had to pinpoint precisely why she fell.

There is no requirement that Claimant must personally identify the specific cause of her fall; a reasonable inference regarding the cause was sufficient. In fact, it is well settled that to prove causation in slip-and-fall cases "a plaintiff may rely on circumstantial evidence because he or she will not know exactly what happened or what caused the fall."

*Dorris v. Stoddard Cnty.,* 436 S.W.3d 586, 590 (Mo. App. S.D. 2014) (quoting *Tiger v. Quality Transp., Inc.,* 375 S.W.3d 925, 927 (Mo. App. 2012) (inner citations omitted).

Furthermore, I find that employee's injuries arose out of and in the course of employment, as defined by § 287.020.3, RSMo. The risk source was employer's buffed and polished floor, to which employee was not equally exposed outside of her employment.

Accordingly, I conclude that employee met her burden to establish a compensable work injury against employer. Because the majority finds otherwise, I respectfully dissent.

*Shalonn K. Curls*

Shalonn K. Curls, Member

Employee: Patricia Smith

Injury No. 17-011723

Dependents: N/A

Employer: Lester E. Cox Medical Centers

Additional Party: N/A

Insurer: Self-insured c/o Thomas McGee LC

Hearing Date: March 2, 2020

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/bh

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 21, 2017.
5. State location where accident occurred or occupational disease was contracted: Greene County, 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? 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 was contracted: Claimant fell while walking in a hallway at work.
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 elbow.
14. Nature and extent of any permanent disability: None.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patricia Smith

1. Compensation paid to date for temporary disability: None.
2. Value necessary medical aid paid to date by employer/insurer? None.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Employee's average weekly wages: $\ 925.16.
5. Weekly compensation rate: $\ 616.77 (TTD) / $\ 477.33 (PPD).
6. Method wages computation: By agreement of the parties.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: N/A.
3. Future requirements awarded: None.

Claimant Patricia Smith appeared in person for a final hearing on March 2, 2020. She was represented by her attorney, William Meehan. Attorney Patrick Platter appeared on behalf of Employer Lester E. Cox Medical Centers and its third party administrator. Two cases were tried simultaneously. Both cases involve injuries sustained in separate falls on the premises of Lester E. Cox Medical Center. One incident occurred on February 21, 2017, and is designated as Injury Number 17-011723. The second injury is alleged to have occurred on April 25, 2017, and is designated as Injury Number 17-027020. The seminal issue in each case is whether Claimant's injuries arose out of and in the course of her employment with Employer. Employer contends that neither case is compensable. The parties agreed to certain facts and narrowed the issues, as follows:

1. On February 21, 2017 and April 25, 2017, Lester E. Cox Medical Centers was a self-insured Missouri employer and was subject to the Missouri Worker's Compensation Law.
2. On the same dates, Claimant Patricia Smith was an employee of Employer and subject to the Missouri Worker's Compensation Law.
3. The parties agree that on the above dates Claimant sustained separate falls at work resulting in injury.
4. Claimant notified her employer of each alleged injury within the time required by $\ 287.420 RSMo.
5. The claim for compensation in each case was filed within the time prescribed by $\ 287.430 RSMo.
6. Employer has paid no temporary total disability in either case.
7. Employer has paid nothing in medical benefits in either case.
8. Claimant's average weekly wage was sufficient to yield the maximum permanent partial disability rate of $\ 477.33 in each case.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patricia Smith

Injury No.: 17-011723

1. The temporary total disability rates are $\ 617.77 for Injury Number 17-011723, and $\ 623.60 for Injury Number 17-027020.
2. Claimant's attorney seeks a fee of 25 percent of the award.

1. Did the injuries sustained on February 21, 2017 and April 25, 2017, arise out of and in the course of employment with Lester E Cox Medical Centers?
2. Is Claimant entitled to temporary total disability?
3. Is Claimant entitled to payment of medical expenses?
4. Is Claimant entitled to disfigurement benefits?
5. What is the nature and extent of permanent partial disability?

The following exhibits were admitted on behalf of Claimant:

1. Four Photographs of the Hallway
2. Eight Photographs of the Hallway
3. Cox ER records dated February 21, 2017
4. Operative Report dated February 27, 2017
5. Ferrell Duncan Orthopedic Records
6. Cox ER Records dated April 25, 2017
7. Summary of Cox Medical Bills
8. Cox Medical Bill for treatment from April 25 through May 1, 2017
9. Cox Medical Bill for removal of surgical hardware dated August 25, 2017
10. Report of Dr. Wade Hammond dated February 11, 2019
11. Deposition Transcript of Dr. Wade Hammond

The following exhibits were offered and admitted into evidence on behalf of the Employer:

A. Deposition of Dr. Ted Lennard

B. Deposition of Patricia Smith

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patricia Smith

Injury No.: 17-011723

Claimant Patricia Smith had worked as a registered nurse for Lester E. Cox Medical Centers since 2007. She normally worked the day shift from 7:00 a.m. to 5:15 p.m. in the surgery unit. Claimant sustained separate injuries from two falls at work within approximately two months of each other.

The first fall occurred near quitting time on February 21, 2017, as Claimant was walking in the hallway of CoxHealth South. Claimant landed on her left elbow and was diagnosed with an olecranon fracture. Claimant was referred to Dr. David Hicks who performed an open reduction with internal fixation of hardware. The hardware was removed at a later date.

While on modified duty from the February 21, 2017 injury, Claimant fell again. This latter incident occurred around 8:00 a.m. on April 25, 2017. Claimant had been standing at a board where the day's scheduled surgeries were listed. After she turned and began walking down a hallway toward the office, Claimant fell, landing on her left shoulder, elbow, and hip. X-rays and a CT scan confirmed a comminuted fracture of the left iliac bone and a minimally displaced fracture of the left distal clavicle.

The treating orthopedic surgeon, Dr. Robertson, believed neither fracture required surgery. Claimant concurred with this advice. She was admitted for general hospitalization for three days. She then was transferred for rehabilitation during which she underwent both occupational and physical therapy. She also saw a psychologist, Chastity Arnold, on May 9, 2017, a day before her discharge from rehabilitation. At that time she was capable of performing all activities of daily living and transfers. A therapist did not believe home health services were necessary; however, it was recommended that Claimant participate in water aerobics. Claimant returned to Ferrell Duncan Clinic on May 12, 2017, to see a physician's assistant, which was the last record of treatment for either her left hip or left clavicle.

Claimant resumed physical therapy for her left elbow on May 30, 2017. The hardware in the elbow was surgically removed on August 25, 2017. Her last postoperative office visit with a physician's assistant occurred on September 7, 2017, and her last physical therapy was September 12, 2017. She was having no active medical treatment at the time of the hearing.

Claimant identified the location of her falls in photographs. Each location has the same common type of vinyl floor tile. Nothing appears noteworthy about the floors. They appear flat with no apparent flaws or cracks. The photographs reveal that there are overhead lights reflected in the floors, indicating that 1) there is sufficient lighting, and 2) that the floors are shiny and clean rather than dull and dirty.

Claimant testified that the floors where she fell on each date were slippery from buffing or polishing, although she did not know when the maintenance crew buffed the floors. She could not remember whether the floors were more or less slippery between her two falls. She did not know whether anyone else had fallen in the same hallways between February 21 and April 25, 2017. Claimant heard that there were some people who had fallen in the surgical department, but she did not know their names. Claimant testified in deposition that a coworker had confided that she, too, had slipped because the floor, although the coworker had not fallen. Neither this coworker nor any other witness testified regarding the condition of the floors.

Immediately after Claimant fell on February 21, 2017, Claimant told emergency room personnel that she had

Injury No.: 17-011723

been "walking down the hallway, tripped and fell on her left elbow, denies LOC, denies neck or back pain...." [Emphasis added](Ex. B, p. 8, and depo. ex. 1). Two days later on February 23, 2017, Claimant saw Dr. Hicks, a treating orthopedic surgeon. Dr. Hicks also recorded in the medical record of that visit that Claimant had tripped. Claimant disagreed with Dr. Hicks' recitation, and believed she told him that she had slipped (Ex. B, p. 10).

Following her second fall on April 25, 2017, the emergency room staff at 8:06 a.m. recorded the following: "Presenting complaint: Patient states: she tripped over something while working (in OR) and fell ....C/o left hip pain [emphasis added]." (Ex. B, Depo. Ex. 3). Claimant disagreed with that statement. Upon her admission to the hospital that same date, Dr. Brad Smith recorded at 5:32 p.m. the following:

A 62-year-old female who works in the OR who fell on 02/21/2017, fracturing her left elbow. She underwent ORIF on 02/27/2017 by Dr. Hicks. The patient reports was back to her usual health until today when she fell again in the OR. She denies loss of consciousness. She is not sure why she fell. She is not sure of any other associated modifying factors. Left olecranon fracture post ORIF [Emphasis added].

(Ex. B, Depo. Ex. 4]. Claimant did not remember what she told the admitting physician.

On April 28, 2017, an interviewer with Employer's third party administrator contacted Claimant, and with Claimant's consent, recorded the following colloquy:

(MB): And what happened to you?

(PS): I tripped again.

(MB): What did you trip on?

(PS): The floors are slick everybody's been complaining about it, and I just, and I threw away my shoes afterwards.

(MB): Did you say the floor was slick?

(PS): I, I felt like it was, it's just certain, something again, I just like caught my foot and I went.

(MB): Did you say you threw away your shoes?

(PS): Yes cuz I'm thinking maybe it's partly my shoes, I don't know, I.

(MB): What kind of shoes were they? I don't remember.

(PS): New balance.

(MB): Like tennis shoes or?

(PS): Yeah.

(MB): They have like the rubber soles on them?

(PS): Yes. Yes.

(Ex. B, Depo. Ex. 6). Claimant agreed that the above conversation was accurately recorded, but stated she was emotional at the time and had been blaming herself. She no longer believed the fall was her fault.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patricia Smith

Injury No.: 17-011723

The Shoes

Claimant obtained the "New Balance" shoes with rubber soles around Christmas in 2016 or early 2017. Employer had advised employees to wear rubber-soled shoes, but no particular brand or style was required. As noted above, Claimant disposed of these shoes which she had been wearing on both occasions when she fell. She said in deposition that she had disposed of them while she was in the emergency room on April 25, 2017, because "I fell in them twice, and I don't know. I figured—like I said, at that time I didn't know if was partially shoes, partially the floor. The floor was—I don't know." (Ex. B, p. 43). Claimant explained that she did not change her mind regarding the cause of her falls. Rather, she just realized that the floor was slick, she slipped, and she had been blaming herself. Claimant has conceded that on neither occasion had she had observed anything on the floor such as any liquid. She observed no defect in the floor. She admitted that she was walking at a normal pace when she fell and had not been carrying anything.

On May 9, 2017, during her rehabilitation stay, Claimant saw psychologist Dr. Chasity Arnold, who reported the following:

> I met with Mrs. Smith and her husband this afternoon after OT reported she had been tearful and anxious during therapies today. Mrs. Smith admitted she is concerned about discharge and frustrated she is still not able to function as was prior to her accident. She is feeling guilt as well as anger as she believes the fall was her own fault and believes her inability to prevent it was "stupid". She expressed embarrassment about her fall and was hesitant to tell me what happened. She stated she had purchased a new pair of shoes in February 2017 and the soles of the shoes kept catching on the floor. She noted she fell while wearing the shoes in late February and fractured her elbow. After the second fall, which lead to this hospitalization, she and her husband stated they threw the shoes away [Emphasis added].

(Ex. B, Depo. Ex. 5). When asked about this entry by Dr. Arnold, Claimant admitted it was accurately dictated, but she was emotional at the time and now does not believe the fall was her fault.

Claimant's Current Condition

At the hearing, Claimant testified that her left hip does not bother her. Her left clavicle occasionally hurts, particularly when she sleeps at night, planking while exercising, and reaching behind her back. She has full range of motion but it can be painful at the extremes. The pain is more frequent in the elbow than the shoulder. Her left elbow aches and is painful with use. She lacks full extension. It is uncomfortable to use during housecleaning. Despite the discomfort, Claimant continues to exercise regularly in the morning, running and lifting weights, although her workouts are now less intense. She uses a step-stool to put away those groceries that are stored overhead.

Claimant did not return to the surgical unit after her rehabilitation. She applied for different positions within the Cox system, but she did not want to take a position with unpredictable hours. She instead chose to retire and now spends some of her time working as a volunteer.

Expert Opinions

Dr. Wade Hammond is a semi-retired orthopedic surgeon in St. Louis who examined Claimant at the referral of her attorney on February 14, 2018. His examination of the left elbow showed some diminished range in motion in flexion and extension. There was decreased forearm rotation. There was pain with firm palpation over the left olecranon area. Dr. Hammond opined that the fall at work was the prevailing factor

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patricia Smith

Injury No.: 17-011723

resulting to the diminished function of her left elbow. He rated her left elbow at 30 percent. He suggested that Claimant may need future treatment, such as physical therapy.

Dr. Hammond also opined that the falls on February 21, 2017 and April 25, 2017, were the prevailing factor leading to her injuries. As to the lower extremities, Dr. Hammond detected a subtle limp on the left side; however, he found that Claimant had good range of motion in the hips, knees and ankles. Claimant reported to Dr. Hammond that she still had symptoms in her left hip, lacked stamina, and had significantly diminished endurance. She reported difficulty in bending, lifting, and reaching. She expressed anxiety over having to apply for early retirement. Dr. Hammond provided the following ratings: 30 percent permanent partial disability for the left elbow; 20 percent permanent partial disability to the left hip; and 10 percent permanent partial disability to the left shoulder.

Dr. Ted Lennard is a specialist in physical medicine and rehabilitation who examined Claimant at the referral of Employer on April 18, 2019. His examination of the left elbow found a posterior elbow scar. There was full flexion, but Claimant lacked 10 degrees of extension. There was mild tenderness over the posterior elbow. There was crepitance at the radial head with rotation. There was negative Tinel's at the cubital tunnel. The bilateral wrist examination was normal. Claimant indicated in her pain diagram that she had an aching pain in her shoulders and her left elbow. Dr. Lennard likewise stated that the prevailing factor leading to the left elbow fracture was the fall at work. He rated the left elbow at 15 percent at the 210 week level. He stated that Claimant may require an occasional over-the-counter Advil or Tylenol upon an as needed basis, but he found no need for additional procedures. He said Claimant could return to normal activities without limitations.

He also found that Claimant had suffered a fracture of the left iliac bone and a minimally displaced fracture of the distal left clavicle which were the result of the fall at work on April 25, 2017. Claimant reported to Dr. Lennard that she was able to perform her activities of daily living and chores with minimal difficulty. She used a step stool to put away groceries in upper cabinets. She no longer hand-washed her floors. She had some difficulty sleeping. Her workout routines were not as intense, although she could run and lift weights on a regular basis. She walked with a normal gait on examination. The range of motion in her left hip was normal. There was no tenderness over the iliac crest. The examination for Claimant's right shoulder was normal. He found full range of motion with minimal pain; no palpable tenderness of the clavicle; no swelling present; no instability; and her skin appeared normal. Dr. Lennard gave the following permanent partial disability ratings: 15 percent to the left upper extremity at the 210-week level; 5 percent left upper extremity at the 232-week level, and no disability for the left iliac crest.

Disfigurement

Claimant has about a five inch scar around the left elbow.

Credibility Assessment

Claimant alleges that slippery floors were the primary reason she fell at work on two separate occasions. There are medical and other records, however, that reveal that Claimant has given inconsistent recitations as to what occurred to cause her to fall. Given the multitude of inconsistencies, I find Claimant's testimony is neither reliable nor persuasive. I find the truth appears to be what Dr. Brad Smith recorded at the time of Claimant's hospitalization on April 25, 2017, that Claimant does not know what caused her to fall.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patricia Smith

Injury No.: 17-011723

The parties agree that both incidents on February 21, 2017 and April 25, 2017, occurred at work and the injuries sustained were the result of the two falls. The issue is whether there was a "risk source" associated with the job that caused Claimant to fall on each occasion, thereby sustaining injury.

Section 287.800.1 RSMo requires that the terms of the Missouri Worker's Compensation Law be strictly rather than liberally construed. Section 287.800.2 RSMo requires that in weighing the evidence or resolving factual conflicts, the administrative law judge must view the evidence impartially without giving the benefit of the doubt to any party. Claimant bears the burden of proof to show that an injury is compensable in workers' compensation. *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 509 (Mo. banc 2012). Section 287.808 RSMo then requires that Claimant prove that the facts supporting that claim are more likely to be true than not true. Section 287.020.10 RSMo abrogates case law published before 2005 which interprets the phrases "arising out of" and "in the course of" employment to mean that injuries from falls which happen during the job, but in which there is no risk unique to the employment contributing to the fall, are nonetheless compensable. See *Johme*, 366 S.W.3d at 511 and n.11 (detailing a list of abrogated cases).

Since 2005, § 287.030.3 RSMo has required the following:

An injury shall be deemed to arise out of and in the course of employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing 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.

Employer concedes that Claimant's incidents of falling is the prevailing factor causing her injuries. Thus, it is only subsection (b), above, that is relevant to the question of compensability in this case.

A workers' compensation claim will be denied when the claimant fails to prove that there was a work hazard or risk of injury to which the employee would not have been exposed outside of work. *Miller v. Mo. Highway and Transp. Comm'n*, 287 S.W.3d 671, 673 (Mo. banc 2000); *Johme*, supra, at p. 510. In *Miller*, an employee was walking on a flat road and felt his knee pop. There was nothing about the walk to his truck that was a hazard or risk to which he would not have been exposed in normal nonemployment life. An injury that happens at work is not automatically compensable and some condition of employment must create a hazard or risk the employee would not be equally exposed to away from the job. *Miller*, supra, at p. 672. In *Johme*, an employee tripped and fell when she turned her body while making coffee in a workplace kitchen. Benefits were denied because there was no evidence that a risk related to her employment caused her to fall. *Johme*, supra, at p. 512. The Missouri Supreme Court held that an employee must prove a "risk source", namely a risk related to employment greater than that found in normal nonemployment life, in order to prevail upon this element of compensability. *Johme*, supra, at p. 511-512.

More recently, the Missouri Supreme Court issued its opinion in *Annayeva v. SAB of the TSD of the City of St. Louis*, SC 98122, S.W.3d (Mo. banc 3/17/2020), which similarly involved an employee's fall at work. The Missouri Supreme Court affirmed a denial of compensation by the Labor Commission that Annayeva failed to prove her injury arose out of and in the course of her employment because the hazard or risk involved was one to which she was equally exposed to in her normal non-employment life. *Annayeva*

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patricia Smith

Injury No.: 17-011723

testified at the Division hearing that she slipped in a hallway in the high school building where she worked because dirt, ice, dust and moisture covered the floor. However, there was no support in the record which confirmed Annayeva had reported the condition of the floor to either high school administration or medical providers close in time to the accident. The Supreme Court also described the important difference between the burden of proof and the burden of persuasion in footnote 8 of the opinion.

This case also is similar in many respects to the facts in Porter v. RPCS, Inc., 402 S.W.3d 161 (Mo. App. S.D. 2013); and Bivins v. St. John's Regional Health Center, 272 S.W.3d 446 (Mo. App. S.D. 2008)¹. In Porter, supra, at pp. 172-173, the employee found herself on a bathroom floor and she could not explain how she landed there. The Labor Commission found a "lack of credible evidence of circumstances of [Porter's] fall." More specifically, she failed to identify a specific risk or hazard connected to her employment that caused the accident. While Porter provided circumstantial of how she likely fell, the Commission found otherwise, and the Appellate Court affirmed. In Bivins, supra, at pp. 449-450, the parties disputed the cause of the fall. The claimant testified that her foot stuck to the floor. The employer claimed the floor was free from any substance or hazard that would cause a person walking on the floor to fall. The Labor Commission found that the claimant "just fell" meaning that she simply fell without explanation, and that there was no unique condition of employment which contributed to the claimant's fall and injuries. This opinion addressed the burden of proof the claimant must meet to prevail. The burden of proof rests upon the claimant to show evidence of the injury and its connection to a condition of the employment. There can be an award of compensation if the injury is a rational consequence of a condition of employment. The employment must in some way expose the employee to an unusual risk or injury which is not shared with the general public. It is insufficient that the injury merely occurred at work. Since the injury stemmed from an unexplained fall, the Commission could not establish a connection between the claimant's employment and her fall and it correctly denied compensation.

In the instant case, Claimant Smith has not proven it more likely than not that a condition at her workplace posed a risk of injury greater than what she faced off the job. First, she did not notice any hazards in that there were no substances on the floor. There were no defects on the floor. She did not notice any problems immediately afterward. She gave differing accounts of why she fell. She even believed that her shoes were at least partly to blame, so much so that she threw away her shoes. In short, Claimant did not carry her burden of proof or persuasion that there was a risk connected to her employment greater than one faced in normal nonemployment life, which led to her fall. Benefits are denied as the claim is not compensable. All other issues are moot.

I certify that on 4-28-20

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 retained with

the executed award in the Division's case file.

By: [Signature]

Made by: Victorine R. Mahon

Chief Administrative Law Judge

Division of Workers' Compensation

¹ This administrative law judge presided the hearing on both Bivins and Porter and is particularly familiar with the facts in those two cases.

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