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