Sydney Durr v. Americare Systems, Inc. (Clark's Mountain Nursing Center)

Employee testified that on March 5, 2015, she injured her left knee while moving back out of a narrow space between a bed and a wall and quickly turned to exit the confined space on her way out of a resident's room. Employee twisted her left knee when she pivoted on her left foot to turn and exit the narrow space. She stated that her upper leg and upper body turned but her left shoe stuck to the floor like it was glued down and she felt the twist in her knee with immediate pain and swelling. She was wearing the non-skid shoes that she purchased at the recommendation of her employer. Employee stated that she did not wear these non-skid shoes except when she was working at the nursing home.

Employee testified that she did not notice anything on the floor and was not holding anything in her hands at the time she turned and twisted her left knee at work that night. Employee was asked if her vision was impaired that evening and although she did not believe her vision was affected, she did indicate that the resident's room was dark except for light from the hallway. She also acknowledged that there were no witnesses to her turning and twisting accident or her left knee injury that evening at work. Employee asked the nurse supervisor for an ambulance, but employer did not provide or authorize any treatment for the left knee injury she sustained at work that evening.

Employee was examined multiple times in regards to her 2015 injury by Dr. August Ritter III, an orthopedic physician. Dr. Ritter diagnosed employee with a left lateral patellofemoral dislocation. Dr. Ritter released employee at maximum medical improvement (MMI) on April 4, 2016.

Ms. Ashley Toelupe is employed as a medical records clerk at employer, and was a night shift charge nurse for employer in March 2015. Her duties at that time involved supervising other employees. Ms. Toelupe testified that she was working on the night of employee's 2015 injury, and was notified of the injury at that time. She stated that every night, a certified nurse aide will take the ice bin and fill it from the ice machine and pass out ice to the residents in the rooms. The bin is placed on a cart that is rolled down the halls. The cart stays in the hallway. This cart is shared between all sections of the building. A certified nurse aide is assigned to one section at a time and the facility is divided into multiple sections. One hall has ten to twelve rooms. Ms. Toelupe testified that there is no time limit for passing ice, but it is preferred that it be done within the first two hours of the shift. Ms. Toelupe did not see or notice anything unusual about the room, such as any item or substance on the floor.

At the time of employee's incident, the floors in the patient rooms were tile, and the hallways were carpeted. Ms. Toelupe testified that she heard a loud yell, and that she was 50 to 75 feet away from where the 2015 injury occurred and that she went down to help employee get up in the hallway and helped her to the nursing office. No one else was with employee.

Ms. Toelupe's further testified that employee indicated to her that she had turned too quickly, and her knee gave out causing her to fall. Ms. Toelupe testified that employee has not worked at the facility since her 2015 injury. She also confirmed that closed-toed, non-skid shoes are recommended to workers, so they do not slip and fall.

Employee testified that Exhibit 17 accurately reflected the round-trip mileage from employer to the places she traveled for treatment related to her 2015 injury. Employee was evaluated by Drs. Dwight Woiteshek and Mahesh Bagwe for her 2015 injury. Employee agreed with Dr. Bagwe's opinion that employee was 5\% PPD at the left knee.

On June 30, 2017, employee was examined by Dr. Woiteshek, an orthopedic physician. Dr. Woiteshek opined that the 2015 injury was the prevailing factor and cause of her traumatic transient patellar dislocation with a medial patellar prominent osteochondral avulsion fragment

with large knee effusion seen on the MRI scan taken March 18, 2015 with a medial retinacular tear seen on the MRI scan performed on February 2, 2016 and the resulting disability from that work injury. Dr. Woiteshek stated in his report that the treatment employee received was reasonable and necessary to help relieve the effects of the 2015 injury, including the surgery performed by Dr. Ritter. Dr. Woiteshek also opined that employee reached MMI when she was released by Dr. Ritter on April 4, 2016 and that she was unable to work due to her 2015 injury until April 4, 2016. Dr. Woiteshek rated employee's disability from the 2015 injury at 35\% PPD at her left knee.

On June 4, 2018, employee was examined by Dr. Bagwe, of whom diagnosed employee with a left knee patellar dislocation with tear of the medial retinaculum along with avulsion of a bony fragment. He opines the left knee findings as documented by MRI are consistent with a twisting injury causing the patellar subluxation as described to Dr. Ritter on April 16, 2015. Dr. Bagwe stated in his medical report that employee would have been totally disabled in the initial few days after her knee injury but after the initial pain and swelling subsided, she could have returned to sitting work and work with modified duties with no heavy lifting and no squatting until her left knee arthroscopy was performed. Dr. Bagwe rated employee's disability at 5\% PPD at the left knee from her 2015 injury.

Section 287.020.2 RSMo, ${ }^{1}$ provides, in relevant part:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

Section 287.020.3 RSMo provides, in relevant part:

(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(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 ... is one to which the worker

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[^0]: ${ }^{1}$ All statutory references are to the Revised Statutes of Missouri, as amended.

would have been exposed equally in normal non-employment life."2 "For an injury to be deemed to arise out of and in the course of the employment under section 287.020.3(2)(b), the claimant employee must show a causal connection between the injury at issue and the employee's work activity."3 "[A]n injury is compensable only when the claimant demonstrates the injury has arisen out of and in the course of employment."4

We reverse the ALJ's award in its entirety. Based on the ALJ's factual findings alone, we do not believe that employee's alleged 2015 injury arose out of her employment at employer. Employee's testimony, at the very least, indicates that she may have been careless in performing her job duties at the time of her alleged 2015 injury. Employee testified that she tried to complete her job quickly. Ms. Toelupe testified that there was no time limit for passing ice, but noted that it was preferred that it be done within the first two hours of an employee's shift. Ms. Toelupe further testified that closed toed, non-skid shoes were recommended for employee's job, but were not required. Twisting and turning does not appear to be a condition of employee's employment or for the performance of her job duties, and even if they were, employee, like every other human being, would have been exposed equally in normal nonemployment life to twisting and turning during normal daily activities. We do not see a causal connection between employee's work duties, and her alleged 2015 injury. Therefore, we reverse the ALJ's award and find that employee is entitled to no compensation from employer because her March 5, 2015 accident was not a compensable injury.

We reverse the award and d