Jamie Overstreet v. TAMKO Building Products

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 18-009989**

**Employee:** Jamie E. Overstreet

**Employer:** TAMKO Building Products

**Insurer:** ACE American Insurance Company

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 July 14, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karen Wells Fisher, issued July 14, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 8th ______ day of June 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence within the 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 award of the administrative law judge should be reversed.

I find that employee's February 12, 2018 primary injury arose out of his employment with employer. I also find that employer should have been found liable for employee's temporary total disability (TTD), permanent partial disability (PPD), and future medical benefits.

Unlike the claimant in Miller v. Mo. Highway \& Transp. Comm'n, ${ }^{1}$ employee was required to think and operate at a faster pace during his job at employer than he did in normal, nonemployment life. Moreover, employee's case is different from that in Annayeva v. SAB of the TSD of the City of St. Louis ${ }^{2}$ because of employee's increased risk of injury caused by the cracked, uneven, inclined, low-lit, asphalt surface where semi-trucks pull through where employee was injured, as proven by the testimony and exhibits in this case. The circumstances in employee's case are also different from those present in Johme v. St. John's Mercy Healthcare ${ }^{3}$ because of the substantial evidence of employee's unequal exposure at work to the cause of his injury and the hazards of the walking surface where his injury occurred. Employee's February 12, 2018 primary injury is compensable because it arose out of and in the course of his employment. As a result, I believe that employee is entitled to TTD benefits from February 13, 2018 through March 5, 2018 and again from April 2, 2018 through April 12, 2018. This represents a total of $42 / 7 weeks. Based on his maximum compensation rate of \$ 923.01 / week, he is entitled to \ 3,955.76 in TTD benefits from employer.

Additionally, Dr. Preston Brent Koprivica opined that employee's February 12, 2018 primary injury was the direct, proximate and prevailing factor in his left knee injury. Dr. Koprivicia also felt there was compensatory pain within employee's right knee "from overuse and noted altered mechanics." ${ }^{4}$ Dr. Koprivica opined that employee was 20\% PPD at the left knee, and that he was likely to need "ongoing, indefinite treatment

[^0]

[^0]: ${ }^{1} 287$ S.W.3d 671, 674 (Mo. Banc 2009). In Miller, the employee "experienced a "popping" of his knee, followed by pain, while walking briskly at work." Id. at 672 . Strictly construing $\S 287.020$, the Court in Miller determined that the employee's injury arose during the course of employment, but did not arise out of employment. Under $\S \S 287.020 .2,287.020 .3$ and 287.020 .10 , the court found that to be insufficient to find the injury to be compensable. Id. at 674 .

${ }^{2}$ No. SC98122. In Annayeva, the employee was a high school teacher. At some time during her walk into the high school, the employee slipped on the school's linoleum floor which caused her to fall forward and land on her hands and knees. Id. at 1. The court in Annayeva determined that the employee's injury was not compensable, because "[j]ust like the claimants in Miller and Johme, [the employee] failed to prove her injury arose out of and in the course of her employment because the hazard or risk involved was one [the employee] was equally exposed to in her normal, nonemployment life." Id. at 8 .

${ }^{3} 366$ S.W.3d 504, 509-10 (Mo. Banc 2012). In Johme, the employee twisted her angle and fell after making coffee in the office kitchen at her employer. Citing to Miller, the court determined that the employee did not suffer a compensable injury, because "no evidence showed that she was not equally exposed to the cause of her injuryturning, twisting her ankle, or falling off her shoe-while in her workplace making coffee than she would have been when she was outside of her workplace in her 'normal nonemployment life.'" Id. at 511.

${ }^{4}$ See Transcript at 442 .

Employee: Jamie E. Overstreet

needs" due to his primary injury. ${ }^{5}$ He further opined that employee was 10\% PPD at the right knee for the compensatory pain.

For these reasons, I would find employer to be liable for employee's TTD, PPD, and future medical benefits. Because the majority of the Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Jamie E. Overstreet

Injury No. 18-009989

Dependents: N/A

Employer: TAMKO Building Products

Additional Party: N/A

Insurer: ACE American Insurance Co.

Hearing Date: March 12, 2020

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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? No
4. Date of accident or onset of occupational disease: February 12, 2018
5. State location where accident occurred or occupational disease was contracted: Joplin, Jasper 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 contracted: While walking on level ground Employee made a "plant and twist" movement to turn around, thereby injuring his left knee.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left knee

1. Nature and extent of any permanent disability: N/A
2. Compensation paid to-date for temporary disability: None
3. Value necessary medical aid paid to date by employer/insurer? $\ 2326.14
4. Value necessary medical aid not furnished by employer/insurer? None
5. Employee's average weekly wages:
6. Weekly compensation rate: $\ 923.01 for Permanent Total Disability (PTD)/Temporary Total Disability (TTD) benefits and $\ 483.48 for Permanent Disability (PPD) benefits.
7. Method wages computation: Statutory

1. Amount of compensation payable: None ordered

Unpaid medical expenses: 0

weeks of temporary total disability (or temporary partial disability) 0

weeks of permanent partial disability from Employer 0

weeks of disfigurement from Employer 0

1. Second Injury Fund liability: None

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 of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

The final hearing in this matter was held by Administrative Law Judge Karen W. Fisher on March 12, 2020. The employee appeared in person and by his attorney, Will Peterson. The employer appeared by its authorized representative, Josh Marsh, and its attorney, Ron Sparlin.

The parties were able to stipulate to numerous matters, set forth as follows: On February 12, 2018, TAMKO was an employer operating subject to the Missouri Workers' Compensation Law;

On February 12, 2018, Employer's liability was fully insured by ACE American Insurance Company;

On February 12, 2018, Jamie E. Overstreet was an employee of Employer; On February 12, 2018, Employee was working subject to the Missouri Workers' Compensation Law;

On February 12, 2018, Employee sustained an alleged work related injury to his left knee; Employee alleges that the injury of February 12, 2018, arose out of and in the course of his employment with Employer, but this allegation is denied by Employer/Insurer;

Employee's alleged injury of February 12, 2018, occurred in Jasper County, Missouri; Employee notified Employer of his alleged injury as required by Section 287.420, R.S.Mo., although Employer/Insurer dispute the injury is compensable under Chapter 287;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jamie E. Overstreet

Injury No. 18-009989

Employee filed a Claim for Compensation arising from the alleged February 12, 2018, injury that was assigned Injury No. 18-009989;

Employee's Claim for Compensation was filed within the time prescribed by Section 287.430, R.S.Mo.;

At the time of the alleged February 12, 2018, injury, the employee's average weekly wage of 1461.37 was sufficient to allow a compensation rate of 923.01 for temporary total disability and $483.48 for permanent partial disability;

As a result of the alleged February 12, 2018, injury, temporary total disability benefits have been paid by Employer/Insurer of $0.00.

As a result of the alleged injury of February 12, 2018, Employer/Insurer have paid medical benefits in the amount of $2326.14;

As a result of the alleged injury of February 12, 2018, Employee reached maximum medical improvement on April 24, 2018.

The issues that were presented for determination at the hearing were:

1. Whether the employee's alleged injury of February 12, 2018, is compensable under Chapter 287, R.S.Mo., including whether the employee sustained an accident, whether the alleged accident arose out of and in the course of employee's employment, and whether work was the prevailing factor in causing employee's alleged injury.

a. If not compensable, then there are no further issues.

1. If the alleged injury is compensable, then:

a. Whether the employee is entitled to temporary total disability;

b. Whether the employee is entitled to reimbursement for unauthorized medical treatment in the amount of $1676.13;

c. The nature and extent of any permanent partial disability resulting from the alleged injury of February 12, 2018;

d. Whether the employee is entitled to future medical care to help cure and/or relieve the effects of the alleged injury of February 12, 2018.

Both the employee and the employer offered multiple exhibits into evidence, all of which were received without objection by either side.

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The employee testified in the presentation of his own case.

Jamie Overstreet is 43 years old and resides in Lamar, Missouri, with his wife and three children. His wife runs a daycare out of their home. Overstreet denied any prior injuries on the job. He recounted his work history prior to becoming employed by TAMKO in July, 2005. Overstreet worked out of the "Range Line" facility in Joplin. He initially worked as a third hand in the felt mill, worked at the glass plant, moved to relief operator, then worked as a senior asphalt plant operator from 2007 until he left TAMKO in 2018.

Overstreet's varying duties included loading trucks, unloading railroad cars, processing asphalt, and pulling/testing samples of asphalt. His shifts ranged from 8-12 hours, and 36-44 hours per week. Overstreet described a significant amount of walking on his shift, as well as a lot of trips on stairs, and crawling under and on top of railroad cars. The employee testified that if he was busy at work, then about 40 % of the time he would have symptoms in his knees. This had occurred for several years prior to February of 2018.

February 12, 2018, was a shift much like any other Overstreet had worked in his twelve years at TAMKO. He worked the same hours and had the same duties as any other day. At the time of his alleged injury, Overstreet was in the lab, saw a trucking arriving, so he needed to walk from the lab to the load station to facilitate getting the truck loaded. This was a task Overstreet had performed multiple times every shift in his years at TAMKO. The chore required him to walk a path on the asphalt lot from the lab office to the loading station, a path he had traversed numerous times every shift.

Overstreet began the familiar walk to the load station, but en route realized he had forgotten his "Prox" card, similar to a hotel room key, which an employee swipes or slides to gain access at the load station. So the employee turned to go back the direction he had come from, toward the load station. As he planted his foot to turn to his right and reverse direction, Overstreet heard an audible "pop" and felt a tearing in his left knee. He had never heard or felt such symptoms before.

Exhibit 3 is a video from a camera on the premises which captured Overstreet's alleged injury. The video was played for the Court to view.

Initially, the employee testified that he thought he had been walking at a slightly faster than normal pace when he changed directions. However, after watching the video of the incident, Overstreet retracted that testimony and stated that he was only walking at a normal pace. The only point at which his pace of movement shown on the video was quicker was after the employee's knee popped and he was trying to "jog it off." He could not say that anything about his speed was a factor in his knee popping.

After Overstreet's knee popped, he actually just continued on back on his original path, toward the load station and abandoned retrieving his Prox card.

The employee reported the incident to his superior and an incident report (Incident/Claim Form) was completed. The form, received into evidence as Exhibit 2, described the incident as "changed direction walking and knee popped." Overstreet agreed that description in the incident report is accurate. The claimant likewise gave a history to the OccuMed Occupational Medicine Clinic and to Dr. Grantham that he "was walking and changed directions." The employee also identified numerous photographs that depicted the area of his incident, Exhibits 4-1 through 4-12.

In both his deposition testimony and trial testimony Overstreet stated that the surface where he was walking was the same as always, was not wet, was not slick, and while it was nighttime, the area was lighted. In his deposition, the claimant stated that he was walking on a "downhill" or "across a decline" when his knee popped, but essentially answered "I don't know" when asked if he thought that contributed to the incident. At trial, Overstreet said there was a "slope" in the area, but he did not indict the slope as contributing to his knee popping.

The claimant stated there were cracks in the area he was walking, typical of asphalt, but he could not say that he stepped in a crack or that a crack caused his knee incident.

The employee testified at great length that on his job at TAMKO he: had to frequently go up and down stairs, walk on uneven surfaces, traverse an area with cracks and holes, walk across a slope, walk in "low light" situations, and wear steel-toed boots. He claimed that he did all of these enumerated things more on his job than in his nonemployment life away from work. However, at no time did the employee specifically testify that any of those caused his knee to pop on February 12, 2018. Further, Overstreet agreed on cross-examination that his claim in this matter arises out of the one-time, unique event of February 12, 2018, when he changed direction and had a distinct, audible pop and painful tearing in his knee. That was the acute event that led to his symptoms and treatment.

Overstreet's deposition and trial testimony acknowledged that off the job, in his normal non-employment life, he had certainly walked and changed directions. He did not state it was at all uncommon for him in his nonwork life to be walking somewhere and then change directions for one reason or another. He certainly could not, and did not, testify that he changed directions at work more frequently than he did away from work.

The employee also conceded on cross-examination that the asphalt lot at TAMKO is not dissimilar from numerous other asphalt lots in the area and to which he is exposed in his nonemployment life. He was shown photographs of asphalt parking lots of the Lamar High School, Lamar Walmart, Lamar McDonald's, the Northpark Mall in Joplin, and the Hollywood Theater in Joplin (Exhibits I, J, K, L, M and N). Overstreet was familiar with each of these asphalt lots and confirmed he had been on all of them in his nonemployment life. He agreed the lots were a similar asphalt surface as at TAMKO, including cracks, and some being uneven. The employee identified Exhibit O as a photograph of his own home in Lamar, where a portion of the driveway is sloped and is asphalt, as is the street in front of the home.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jamie E. Overstreet

Injury No. 18-009989

Overstreet recounted the medical treatment he received, primarily with orthopedic surgeon, Dr. Jonathan Grantham. Following an MRI, the employee underwent a surgery to repair his left knee. Dr. Grantham released Overstreet from his care on April 24, 2018, and the employee has required no care since that time. He takes no prescription medication for his knee, but will take over-the-counter Tylenol as needed. When asked about any ongoing problems with the left knee Overstreet answered: "Nothing", and that he "gets slight pain." None of the ongoing minor symptoms keep Overstreet from doing anything he needs to do at work or at home.

The employee left his job at TAMKO in 2018 for personal reasons, not in any way connected to his alleged knee injury.

Josh Marsh is the operations manager at the TAMKO Range Line facility and he has worked for the employer for thirteen years. Marsh works in a supervisory capacity relative to employees like Jamie Overstreet, and is fully knowledgeable of the daily tasks Overstreet performed in his years at TAMKO. Marsh observed the employee conduct his job duties countless times, including traversing the lot from the lab to the load station. Multiple other employees traversed that same path on each shift with Overstreet, as well as on other shifts the plant ran regularly each day.

1. Marsh was working in his same capacity on February 12, 2018. He was intimately familiar with the asphalt lot of the Range Line facility at the time and the specific portion between the lab office and the load station. Marsh had walked that path himself on numerous occasions. Marsh identified Exhibits B through H as accurately representing the appearance of the TAMKO lot and specific location where Overstreet twisted his knee, as they appeared in February 2018. Marsh had never personally encountered any difficulties with that portion (or any) of the lot from cracks or holes or any unevenness. Further, Marsh testified that no other employee had ever fallen or twisted a knee nor complained about the surface of the lot.

Marsh further testified that the asphalt lot at TAMKO is typical of, and very similar to, many asphalt lots to which he is regularly exposed outside of his work at TAMKO. Marsh identified the lots of the Northpark Mall and Hollywood Theater in Joplin (Exhibits L, M and N). He stated that he had regularly been on those lots over the years in his nonemployment life and both were examples of lots quite similar to the TAMKO Range Line facility, in terms of surface, cracks, and unevenness.

Medical Report

The employee offered into evidence the medical report of Dr. P. Brent Koprivica, Exhibit 11. Dr. Koprivica evaluated Overstreet at the request of his attorney on January 9, 2019.

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**Employee:** Jamie E. Overstreet

**Injury No. 18-009989**

(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.

The simple and straightforward issue before the Division, and which is dispositive, is whether the employee has proven a compensable injury. The focal inquiry under the statute is whether the employee's alleged injury arose out of and in the course of his employment at TAMKO.

Guidance for determination of compensability can properly begin in only one place: the Missouri Supreme Court's opinion in *Miller v. Missouri Highway and Transportation Commission*, 287 S.W.3d 671 (Mo. 2009). *Miller* is the seminal case. The Supreme Court further expanded on the "arising out of" and "hazard or risk unrelated to the employment" provisions of Chapter 287 in *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504 (Mo. banc 2012). Most recently, the Court addressed this same issue and reaffirmed the proper interpretation and application of the law in *Annayeva v. SAB of the TSD of the City of St. Louis*, 2020 WL 1270858; decided a mere month ago.

This triumvirate of Supreme Court opinions, pursuant to foundational legal principles of stare decisis, provide the only relevant and controlling case law for the issue at hand here. The employee wastes paper, ink, and this Court's time if he seeks to argue that any lower level appellate decisions dictate the outcome here. And to further underscore the predominance and exclusive authority of these cases: the Supreme Court clearly accepted transfer in *Annayeva* for the purpose of restating its holdings in *Miller* and *Johme*. It is the Supreme Court's reminder that *Miller* and *Johme* are still the law. If the employee cites decisions of the court of appeals it must be remembered that: (1) those cases did not go to the Supreme Court, and (2) we know from *Miller*, *Johme* and *Annayeva* what the Court would have decided had the cases gone before them.

In *Miller*, the claimant was a member of a MHTC crew repairing a section of Route N. He was "walking briskly toward the truck containing repair material when he felt a pop and his knee began to hurt. . . He just felt a pop." 287 S.W.3d at 672 Miller testified that his work did not require him to walk "in an unusually brisk way", he normally walked briskly at home, and nothing about the surface caused any "slip, strain or unusual movement." Id at 672

The Court in *Miller* denied the claim for compensation because it did not arise out of the employment as it did not "come from a hazard or risk unrelated to the employment to which the worker would have been equally exposed outside of and unrelated to the employment in normal nonemployment life." Id at 673

The *Miller* Court, in affirming the denial of the claim for compensation, elucidated its reasoning as follows:

> 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. The

**Employee:** Jamie E. Overstreet

**Injury No. 18-009989**

Injury here did not occur because Mr. Miller fell due to some condition of his employment. He does not allege that his injuries were worsened due to some condition of his employment or due to being in an unsafe location due to his employment. He was walking on an even road surface when his knee happened to pop. Nothing about work caused it to do so. The injury arose during the course of employment, but did not arise out of employment. Id at 674

*Johme* was decided by our Supreme Court in 2012 and followed the Court's reasoning announced in *Miller*. It is particularly noteworthy that the *Johme* Court specifically pointed out that: "Miller's holding is controlling." 366 S.W.3d at 511

The facts in the *Johme* case were: the employee was employed at St. John's Mercy as a billing representative. Her job involved typing charges into the computer, but it was also customary for her (and other employees) to make coffee in the office kitchen. *Johme* was injured when, after making coffee, "she turned and twisted her right ankle, which caused her right foot to slip off her sandal, and she fell onto her right side and then onto her back." Id at 507

The Court acknowledged that there was no dispute that *Johme's* fall was the prevailing factor in causing her injury. The issue was whether the injury arose out of her employment. The Court explained that the inquiry at issue was under Section 287.020.3(2)(b), which provides that an injury arises out of employment "only if ... it [did] not come from a hazard or risk unrelated to [employee's] employment to which [employee] would have been equally exposed outside of and unrelated to [employee's] employment in [employee's] normal nonemployment life." Id at 510

As set out above, the *Johme* Court made it clear in its analysis that its earlier decision in *Miller* was controlling, and that the Commission had erred in not citing and following *Miller*. The Court explained it reasoning in *Miller*, stating:

> Miller's focus was not on what the employee was doing when he popped his knee - he was walking to a truck to obtain materials for his work - but rather focused on whether the risk source of his injury - walking - was a risk to which he was equally exposed in his normal nonemployment life. Miller instructs that it is not enough that an employee's injury occur while doing something related to or incidental to the employee's work; rather, the employee's injury is only compensable if it is shown to have resulted from a hazard or risk to which he would not be equally exposed in normal nonemployment life." Id at 511

Applying this controlling analysis from *Miller*, the Court in *Johme* found the claim not compensable. The salient portion of the holding is a follows:

> ... the issue in *Johme's* case was whether the cause of her injury - turning and twisting her ankle and falling off her shoe - had a causal connection to her work activity other than the fact that it occurred in her office's kitchen while she was making coffee. The assessment of *Johme's* case necessitated consideration of whether her risk of injury from turning, twisting her ankle, and falling off her shoe was a risk to which she would have been equally exposed in her "normal nonemployment life." In her case, no evidence showed that she was not equally exposed.

**Employee:** Jamie E. Overstreet

**Injury No. 18-009989**

exposed to the cause of her injury - turning, twisting her ankle, or falling off her shoe - while in her workplace making coffee than she would have been when she was outside of her workplace in her "normal nonemployment life." Id at 511

*Annayeva v. SAB of the TSD of the City of St. Louis*, decided by the Supreme Court on March 17, 2020, is the most recent pronouncement by any court of this state on the issue involved herein. The employee in *Annayeva* was a teacher at Roosevelt High School and was walking into the school, heading toward her, room carrying a bag of her teaching supplies, when she slipped on the linoleum floor, landing on her hands and knees. The administrative law judge denied benefits and the Commission affirmed the denial, finding that Annayeva's testimony about the alleged soiled condition of the floor was not credible and that "without additional support in the record for the alleged hazardous condition of the hallway floor, we find that the only risk source in this matter was that of walking, one to which [Annayeva] would have been equally exposed in normal nonemployment life."

In addressing the issue of hazard or risk source, it is absolutely and abundantly clear that the Court in *Annayeva* looked to two cases and two cases only, *Miller* and *Johme*. The Court did not devote one sentence to any lower level appellate decisions in its analysis. The *Annayeva* Court summarized the applicable law: "This Court recognized in *Miller* and *Johme* that failure to prove the hazard or risk causing the employee injury was related to employment to which the employee would not have been equally exposed outside of work is fatal to an employee's workers' compensation claim."

The claimant in *Annayeva* sought to distinguish her case from *Miller* and *Johme* by arguing that the condition of the linoleum floor at the time she fell was such (allegedly soiled with particles of dirt, ice, dust, and moisture) that it exposed her to a risk different than her nonwork life. But since the Commission did not find that testimony credible, the Court was bound by the Commission's credibility determination. The Court therefore found: "Because Annayeva has failed to produce any credible evidence regarding the soiled condition of the floor, her walk into school was no different from any other walk taken in her normal, nonemployment life. Under Section 287.020.3(b), Annayeva's workers' compensation claim is not compensable."

Application of the guiding principles of these three Supreme Court opinions leads to the inescapable conclusion that Mr. Overstreet's claim is likewise not compensable as it did not arise out of his employment - it did not come from a hazard or risk that he wasn't equally exposed to outside of work.

When the claimant's testimony is boiled down to its essence, and all the smoke and mirrors about steel-toed boots, and lighting and possible cracks in the asphalt, or any slope to the surface, is stripped away, all there is at the core is this: he was walking on asphalt and turned to change directions and his knee popped. As *Miller* first taught—it is insufficient if the injury occurred merely while the employee was at work. It is not enough that the injury occurred while doing something related to or incidental to work. The focus of the inquiry, per *Miller*, is not on what the claimant was doing when his knee popped, but rather is focused on whether the risk

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jamie E. Overstreet

Injury No. 18-009989

source, walking on asphalt and changing directions, was a risk to which he was exposed equally outside of his employment.

There is absolutely no question from Overstreet's testimony, in his deposition and at trial, supplemented by the video that captured his event, that the source of his injury was walking on asphalt and changing directions. Overstreet tried to insert multiple red herrings by talking about wearing steel-toed boots at work but not at home, more frequently walking on uneven surfaces at work than at home, and walking over areas of asphalt with cracks and holes more often at work than at home. But he never claimed that any of those factors caused his knee to pop. He did not and could not point to any of those as the reason his knee popped. At the very most, Overstreet stated that it was "possible" and "I don't know" when asked about any alleged contribution of the uneven surface or any cracks in the asphalt. The only thing he ever identified as the source of his knee popping was walking and then changing directions.

Thus the relevant inquiry is whether the claimant proved that the risk of walking and changing directions was a risk related to his employment and not one to which he was equally exposed in his nonemployment life. The employee did not meet this burden of proof and so his claim must fail as not compensable under Chapter 287.

Again, there is no doubt that the employee's own testimony, as well as that of his medical expert, identified the source of his injury as walking and changing directions. Or, as Dr. Koprivica worded it, the incident "where he pivoted." Likewise, the incident report made by Overstreet to the employer and the history given to the medical providers were uniform in saying "changed directions walking" and "was walking and changed directions."

Overstreet acknowledged that he certainly walks and changes direction when away from work. He agreed it is not uncommon at all for him to be walking in his nonemployment life and then turn, or pivot, and change directions for any number of reasons. Additionally, it was portrayed in multiple photographic exhibits that Overstreet is commonly exposed to similar asphalt lots in his life away from work, such as Walmart, McDonald's, the Northpark Mall, and the movie theater.

Overstreet most certainly did not testify that he walked and changed directions more frequently, or in some different way, at work compared to at home. Also, like the employee in Miller, Overstreet did not testify that his injury was somehow worsened due to some condition of his work nor due to being in some unsafe location because of his work. He was walking in a place, at a time, for a reason, which he would do multiple times every shift. The only thing that can be identified as the cause of the knee popping is Overstreet walking and changing directions. As the Miller Court taught, it is not sufficient if the injury "merely happened to occur while working," which is all that was proven here.

Stated differently, as Johme teaches: the question is whether the cause of Overstreet's injury, walking and then turning and changing directions, had a causal connection to his work other than the fact that it occurred at the TAMKO facility. Just as in Johme, no evidence showed

12

**Employee:** Jamie E. Overstreet

**Injury No. 18-009989**

That Overstreet was not equally exposed to the cause of his injury, walking and turning to change directions, at his workplace than outside of work in his nonemployment life.

Also, just like the claimant in *Annayeva*, the employee here cannot distinguish his situation from that of the employee in *Miller* and *Johme*. Like *Annayeva*, Overstreet can cite to no credible or persuasive evidence that the condition of the asphalt surface or the conditions surrounding his walk were a hazard or risk he was not equally not exposed to outside of work. Nothing in the employee's testimony or exhibits affirmatively and persuasively proved there was anything different about his walk and change of direction than any walk and direction change away from work. And certainly nothing even arguably established that anything about the walking surface, or surface conditions, were different than similar nonemployment conditions.

Just like the employees in *Miller*, *Johme*, and *Annayeva*, Overstreet failed to prove his injury arose out of and in the course of his employment, because the hazard or risk involved was one to which the claimant was equally exposed in his normal nonemployment life. Therefore, the employee failed to carry his burden of proof and all benefits should be denied. All other issues presented are moot.

**Date:** 7-9-2020

**I certify that on** 7-14-20

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:** ______________________

**By:** ______________________

**By:** ______________________

**Name:** Karen Wells Fisher

**Administrative Law Judge**

**Division of Workers' Compensation**