Calvin Flemons v. Land of Oz Academy

¹ Employee’s *Application for Review*, filed June 11, 2021.

Section 287.020.3(2) RSMo further provides:

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.

In Johme v. St. John's Mercy Healthcare 366 S.W.3d 504 (Mo. banc 2012), the Missouri Supreme Court interpreted $\S 287.020 .2(2)$ (b) as requiring an employee to prove that his or her injury "was caused by [a] risk related to her employment activity as opposed to a risk to which she was equally exposed in her 'normal nonemployment life (emphasis added)." Id at 512. The risk source standard described in case law "requires the finder of fact to consider whether the employee was injured because he was at work, as opposed to becoming injured merely while at work. (emphasis added)". Pope v. Gateway to West Harley Davidson, 404 S.W.3d at 315, 320 (Mo. App. 2012)

Employee's brief on appeal relies heavily on Duever v. All Outdoors, Inc., 371 S.W. 3d 863 (Mo. App. 2012). In that Court of Appeals, Eastern District case, the court found that the employee's slip and fall on ice while walking across a parking lot not owned by the employer was compensable because the employee was in an unsafe location as a direct part of his employment.

Employee urges us to find that the employee sitting in a parked truck in the parking lane of Kingshighway was a direct function of his employment. He cites the employee's testimony and that of the employee's wife, supervisor, and employer's co-owner that they were required to meet every day to address the daycare center's afternoon bus route as part of their employment duties. Employee asserts that limited space on employer's premises and the lack of an employer' owned or dedicated parking lot forced employee and co-owner to meet inside employer's company vehicle to ensure the necessary privacy and avoid disrupting the ongoing activities inside while remaining close to employer's premises in the event of an emergency or state inspection. The employee further urges that he is not exposed to a similar hazard in his everyday life because he lives thirty-five miles away from the situs of the accident, does not hold afternoon bus meetings on his days off, and uses a private vehicle for transportation those days. Based on this version of events, the employee urges us to find the employee was injured because the employer required him to work in an unsafe location where there was an increased risk of being struck by a moving motor vehicle.

We find as follows. The employer's location had a conference room and office space available where the employee could have eaten his lunch. The employee instead chose

to eat lunch in the parking lane of Kingshighway to avoid other employee questions and phone calls. The employee was not placed in an unsafe location due to his employment but rather because he chose to eat lunch while parked on Kingshighway Boulevard.

Parking on Kingshighway Boulevard was freely available to the public. Other individuals would park in front of the employer's business at times, and there was no restricted parking for the employer only. The employee was not limited to where he was located when the accident occurred because of his employment. The employee was not parked in the parking lane of Kingshighway Boulevard to perform any direct function of his employment.

The employee acknowledged it was possible he would drive on Kingshighway Boulevard outside of work. The employee drove the employer's truck home the evening after the collision and traveled on Kingshighway Boulevard to go to work. The only remote causal connection between the employee's accident and his work is that the truck was located near the employer's building when the collision occurred.

Although the employee testified he was discussing work activities at the time of the accident, the employee was not injured because of his work activities. The risk source is the immediate cause of the injury. Here, the employee discussing business was not the risk source in causing the injury. Instead, the risk source was the employee's being located in the parking lane of a busy thoroughfare.

Based on our factual findings, we find the instant case distinguishable from Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo. App. 2012). We note that in Duever, the claimant had no control over the parking lot where his injury occurred, and the claimant was working when the injury occurred.

The recent Missouri Supreme Court decision in Gary Boothe, Jr. v. Dish Network, Inc., No. SC98948 (December 21, 2021) supports our finding that the employee's injury, in this case, is not compensable. In Boothe, the Court upheld the Commission's finding that injury an employee sustained in a motor vehicle accident, resulting from eating while driving to a work assignment, was not compensable under The Workers' Compensation Law. The Court concluded, "no condition of [employee's] employment required him to eat while driving or significantly contributed to the accident and injury . . . [as such] there was no causal connection between [employee's] work activity and his employment other than mere occurrence at work. As such, his injury is not compensable." Id., pp. 7-8.

Applying the above-cited judicial precedent, we find that the employee, in this case, failed to demonstrate that the employer required him to eat lunch or conduct company business in a vehicle parked on a busy thoroughfare outside of the employer's premises. We agree with the ALJ's finding that the risk source of the employee's injury was not work-related or related to a risk to which the employee was not equally exposed outside of his employment. See Young v. Boone Elec. Coop. 462 S.W.3d 783 (Mo. App. 2015). We, therefore, affirm the ALJ's denial of compensation.

Employee: Calvin D. Flemons

We affirm and adopt the award of the administrative law judge as supplemented herein.

The June 3, 2021, award and decision of Administrative Law Joseph P. Keaveny is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, and this $\qquad 25th \qquad$ day of January, 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have read the parties' briefs and considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find that the employee sustained a compensable injury.

The risk or hazard in this matter was related to work. In Duever v. All Outdoors, Inc., 371 S.W. 3d 863 (Mo. App. 2012), the court found EE's slip and fall on ice while walking across a parking lot not owned by the employer compensable because EE was in an unsafe location as a direct part of his employment. As the employee's attorney persuasively argues in her well-written brief:

Here, as in Duever, Calvin was in an unsafe location (sitting in a parked truck, in the parking lane, of Kingshighway) as a direct function of his employment. Both Calvin and Tonae [the employee's wife, supervisor, and employer's co-owner] testified that, as part of their employment duties, they were required to meet every day to address the afternoon bus route. The evidence further established that, because of the limited space within the Land of Oz Academy [the employer], Calvin and Tonae had to hold these meetings inside the company vehicle, in order to ensure the necessary privacy and avoid disrupting the ongoing activities inside. Not only were these meetings held in the company vehicle due to privacy but also for the benefit of the employer so that management was close in case of an emergency or State inspection. Calvin and Tonae also both testified that, because the Land of Oz Academy has no parking lot or dedicated parking, they must park the company vehicle in the parking lane of North Kingshighway, behind the Academy's buses . . . Further, the record established that the parking lane of Kingshighway is dangerous by nature with five separate incidents of their vehicles getting hit while parked as reported by the Flemons. In sum, Calvin was injured because the Land of Oz's [sic] required him to work in this unsafe location where there was an increased risk of being struck by a moving motor vehicle.

Not only was Calvin in an unsafe location due to a direct function of his employment, but the record is devoid of any evidence to suggest that Calvin was equally exposed to "sitting in a truck, in the parking lane, of Kingshighway" in his normal nonemployment life. Calvin lived in O'Fallon, Missouri, thirty-five miles from the Academy and did not visit North Kingshighway when he was not working. Calvin testified he does not work in his car or sit in his car for forty-five minutes on his days off. He does not hold afternoon bus route meetings on his days off. He has a private vehicle he uses on the weekends which is registered to him and his wife. Therefore, Calvin is not equally exposed to "sitting in a truck, in the parking lane, of Kingshighway" in his normal nonemployment life. ${ }^{2}$

[^0]

[^0]: ${ }^{2}$ Memorandum in Support of Employee's Application for Review, filed with the Commission on July 22, 2021, pp. 5-6.

Under the analysis of Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012), the risk or hazard of having no viable alternative to conducting work-related meetings in a company vehicle parked on a busy highway was related to work and constituted a risk to which employee was not equally exposed in his non-employment life.

The recent Supreme Court case of Gary Boothe, Jr. v. Dish Network, Inc., SC98948 (December 21, 2021), is based on an entirely different set of facts. The Court found that the employee, in that case, was responsible for the risk source of his injury because the employee chose to stop to pick up breakfast while en route to his first assignment and then, against his employer's safety policy, to eat a breakfast sandwich while driving a company vehicle. This case is distinguishable from Boothe. Based on the facts in the record herein, the employee, in this case, had no other viable options other than to conduct work-related daily meetings inside his employer's company vehicle, parked on a busy thoroughfare nearby the employer's premises. Boothe cannot reasonably be interpreted as a compelling denial of compensation in every case where an employee sustains an on-the-job injury due to a motor vehicle accident.

Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Calvin D. Flemons

Injury No.: 17-003266

Dependents: N/A

Employer: Land of Oz Academy

Additional Party: N/A

Insurer: FirstComp Insurance Company

Hearing Date: March 3, 2021

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: January 10, 2017
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Employee was eating lunch in a company vehicle, parked on a public roadway, when his vehicle was rearended by another vehicle.
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: Cervical and lumbar spine
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

1. Value necessary medical aid not furnished by employer/insurer: 0.00
2. Employee's average weekly wages: 673.08
3. Weekly compensation rate: $448.72 TTD/ $448.72 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable: 0.00

Unpaid medical expenses: 0.00

1. Second Injury Fund liability: No

TOTAL: $0.00

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

Employee: Calvin D. Flemons

Injury No.: 17-003266

Dependents: N/A

Employer: Land of Oz Academy

Additional Party: N/A

Insurer: FirstComp Insurance Company

Hearing Date: March 3, 2021

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JPK

On March 3, 2021, the parties appeared for a hearing. Calvin D. Flemons ("Employee") appeared in person and with counsel, Nathan McMahill and Selma Mujanovic. The Employer, Land of Oz Academy, and Insurer, FirstComp Insurance Company, were represented by Thomas Pettit. The proceedings were transcribed by Court Reporter Lori Sanders.

1) Employee was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by FirstComp Insurance Company.

2) On or about the date of the alleged accident or occupational disease, Employee was an employee of Land of Oz Academy and was working under the Missouri Workers' Compensation Act.

3) On or about January 10, 2017, Employee sustained an accident as defined in R.S.Mo. 287.020.2.

4) Employer had notice of Employee's accident.

5) Employee's claim was filed within the time allowed by law within the statute of limitations.

6) Medical aid furnished by Employer/Insurer was: $\ 0.

7) Temporary total disability paid by Employer/Insurer is: $\ 0.

8) Employee's medical expenses totaled: $\ 21,835.40.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) Missouri Baptist Medical Center records and bill

2) Midwest Radiological Associates bill

3) Tri County Family Practice Records and bill

4) St. Luke's Hospital records and bill

5) Diagnostic Imaging bill

6) Dr. James Lu Records and bill

7) First Capital Chiropractic records and bill

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-003266

8) Dr. Berkin IME report

9) Title of 2010 Ford F-150

10) Photographs of accident

Employer/Insurer introduced, and had admitted into evidence, the following Exhibits:

A) Missouri Uniform Police report

B) Calvin Flemons Deposition transcript

C) Dr. James Doll IME report

D) Screen shot map of area surrounding Employer's business

ISSUES

1) Whether the injury arose out of and in the course of employment.

2) Liability of the Employer for unpaid medical expenses, stipulated in the amount of $21,835.40.

3) Liability of the Employer for permanent partial disability.

FINDINGS OF FACT

Employee was born on October 31, 1971. He was 49 years old at the time of the hearing. Employee is married to Tonae Flemons. He testified that he has a high school education and a college degree in childcare. He resides, with his wife and two children, in O'Fallon, Missouri.

Employee and his wife are owners of Land of Oz Academy, the Employer. The Employer is a childcare center. Employee testified during his deposition that he has been employed by Employer since 2003. His job title is assistant director and his wife is his supervisor. Employee testified that his job duties as the assistant director include: managing, cooking, performing maintenance, and driving. His duties include: making sure children were in the classroom, preparing breakfast and lunch, and transporting children to and from the facility. He testified that he did every job associated with running the facility.

Employer is located at 1176 N. Kingshighway Boulevard, St. Louis, Missouri 63113. Kingshighway Boulevard is a busy roadway in the City of St. Louis. Employer is located near the intersection of Kingshighway Boulevard and Vernon Avenue.

Employee testified that Employer owns five vehicles which include three buses, one truck, and one van. Employer has no onsite parking at its location. Claimant estimated Employer's lot is 130 feet long. The vehicles owned by Employer would be parked on the street, on Kingshighway, in front of Employer's building.

Employee testified he and his wife would eat lunch while sitting in Employer's vehicle, parked on Kingshighway. Employee and his wife testified that they would eat lunch in the truck every day while working for Employer. There is a staff lounge located inside Employer's building, but Employee and his wife preferred to eat in the truck for privacy. Employee and his wife testified that they discussed business activities while eating lunch, including planning for the next business day, and to avoid phone calls or employee questions during the lunch hour.

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Injury No.: 17-003266

On January 10, 2017, Employee and his wife, were eating lunch in Employer's company truck. Employee testified he and his wife had gone to a nearby restaurant to pick up lunch and upon return to Employer's location, had parked directly in front of the building on Kingshighway. Employee testified he and his wife had been discussing business while they ate their lunch.

During lunch, they were rear-ended by a vehicle traveling on Kingshighway. Employee did not have an estimation as to how fast that vehicle was traveling. The crash report filed after the accident documented that neither Employee nor his wife reported being injured following the collision. Medical treatment was offered but Employee and his wife declined. Employee and his wife returned to work and completed their work shift following the crash.

Employee testified he began noticing symptoms from the lower part of the back of his head down to the lower part of his back, the day following the crash. His symptoms included: stiffness, tightness, soreness, and aching. He decided to seek medical attention the day following the crash.

Employee presented to Missouri Baptist Medical Center emergency department on January 11, 2017 for evaluation. The history of present illness documented complaints of head, neck, and chest wall pain that had gradually worsened since a motor vehicle accident 24 hours prior. X-ray of the cervical spine noted no acute bone abnormality with straightening of the spine. X-ray of the chest was negative. X-ray of the lumbar spine was negative. Employee was given a prescription for Flexeril and discharged.

Employee was evaluated by Nurse Practitioner Jenna Sanders at Tri County Family Practice on January 19, 2017. He presented with complaints of pain from his neck to buttocks, with more frequent headaches. He reported inability to lay on his stomach and had constant pain with spasms. NP Sanders diagnosed back pain, neck pain, and chest wall pain and provided a prescription for prednisone and physical therapy.

Physical therapy at St. Luke's Hospital began on January 25, 2017. During initial assessment, examination noted restricted cervical and lumbar mobility with tenderness along the spine. Employee was discharged from physical therapy after 12 visits, on March 21, 2017.

Employee returned to NP Sanders on March 28, 2017 following the conclusion of physical therapy. NP Sanders ordered MRI's of the lumbar spine and cervical spine and noted if studies were normal then Employee would continue pain management and physical therapy. The MRI of the lumbar spine was interpreted to reveal mild diffuse disc bulging at L5-S1. MRI of the thoracic spine revealed mild posterior disc bulging at C6-7 with a small left paracentral disc protrusion, small right paracentral disc protrusion at T3-4 which appeared to abut the cord, and tiny left paracentral disc protrusions at T5-6 and T6-7.

Claimant was evaluated by neurosurgeon Dr. James Lu on April 21, 2017. Dr. Lu reviewed the MRI's of the lumbar and thoracic spine. Dr. Lu noted the lumbar spine showed degenerative disc disease with disc desiccation at L5-S1, and the remainder of the lumbar discs appeared normal. He noted central annular bulging adjacent to the S1 nerve roots, but no significant stenosis or nerve impingement. Review of the thoracic spine MRI noted minor annular bulging at T3-4, without disc herniation and minimal degenerative change throughout.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-003266

the remainder of the thoracic spine. Based on the imaging studies, Dr. Lu did not believe Employee was a surgical candidate. Dr. Lu believed Employee had musculoskeletal strain and recommended conservative treatment consisting of physical therapy and medications.

Therapy records from St. Luke's document Employee continued physical therapy until April 26, 2017. The formal discharge date from physical therapy was May 23, 2017.

Employee received chiropractic treatment with Dr. Daniel Geisler at First Capital Chiropractic & Rehab beginning May 3, 2017. Dr. Geisler provided spinal adjustments, EMS stimulation, and therapeutic exercise on Employee throughout treatment. Employee continued treatment until June 28, 2017. He was released on an as-needed basis with a reported pain level of 1/10.

Opinion Evidence

Shawn L. Berkin, D.O.

Claimant offered the report of Dr. Shawn L. Berkin dated February 11, 2018 (Exhibit 8). Dr. Berkin evaluated Employee on January 10, 2018. During the medical evaluation, he personally obtained a medical history, performed a physical examination, obtained the subjective complaints issued by Employee, and examined medical records and test results that were furnished to him.

Dr. Berkin's examination of the lower back revealed a normal lumbar curve without scoliosis. He demonstrated a normal station without pelvic asymmetry. The heights of the iliac crests were equal. His gait was not antalgic with fluid stride and cadence. Palpation of the lumbar spine failed to reveal any swelling, asymmetry, or step off deformity of the bony landmarks of the vertebral segments. There was tenderness to palpation over the paraspinal muscle lateral to the vertebral column. Provocative sacroiliac maneuvers were negative to pelvic rock and sacral compression.

Dr. Berkin offered the following final impressions:

1) Cervical strain.

2) Lumbosacral strain.

3) Facet arthropathy of the lumbar spine with bulging of the L5-S1 intervertebral disc.

He stated the accident that occurred on January 10, 2017 was the prevailing factor in causing cervical and lumbosacral strains associated with degenerative facet disease of the lumbar spine and a bulging disc. He rated the injury as 15% permanent partial disability of the body as a whole at the level of the cervical spine. Also, he rated the injury as 20% permanent partial disability of the body as a whole at the level of the lumbosacral spine.

James T. Doll, D.O.

Employer and Insurer submitted the report of Dr. James T. Doll, dated November 5, 2018 (Exhibit C). Dr. Doll examined Employee on November 5, 2018. His evaluation was compiled utilizing the available history, physical examination, diagnostic studies and medical records.

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Dr. Doll noted that on January 11, 2017, Employee was diagnosed with cervical, thoracic and lumbar strain injuries, as well as chest contusion. In addition, he noted that a March 31, 2017 MRI study of the thoracic spine revealed multilevel disc protrusions to the left and to the right. Also, a March 31, 2017 MRI study of the lumbar spine revealed mild diffuse disc bulging at L5-S1.

Dr. Doll noted that Employee reported ongoing diffuse neck and back pain, which he attributes solely to his January 10, 2017 occupational injury. Employee denied any prior occurrences of symptoms in his neck or back before the occupational incident. These diffuse subjective complaints were reported without correlating objective findings. Such inconsistencies suggest the possibility of a non-organic basis for his ongoing symptomatology such as symptom magnification. His diagnostic testing revealed mild degenerative changes and no acute structural abnormalities associated with his January 10, 2017 occupational injury.

It was Dr. Doll's opinion, within a reasonable degree of medical certainty, that Employee's January 10, 2017 occupational injury was the prevailing factor in the medical causation of his cervical, thoracic, and lumbar strain injuries and the need for treatment. Finally, Dr. Doll opined that Employee sustained no permanent partial disability attributable to this occupational injury.

Section 287.020 .3 provides, in 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.

"It is not enough that an employee's injury occurs 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 the employee would not be equally exposed in normal nonemployment life." Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504,509 (Mo. Banc 2012).

"For an injury to be deemed to arise out of and in the course of 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." Johme, 366 S.W.3d at 510. In determining the

"causal connection," this Court applied a two-part test. Gleason v. Treasurer of State of Missouri - Custodian of Second Injury Fund, 455 S.W.3d 494, 499 (mo. App. 2015). This test "first requires identification of the risk source of a claimant's injury, that is identification of the activity that caused the injury, and then requires a comparison of that risk source or activity to normal nonemployment life." Id.

With respect to the first test of identifying the risk source, I find that the "activity that caused the injury" to Employee was sitting in his truck, in the parking lane, of a major thoroughfare (Kingshighway).

With respect to the second test, comparing the "risk source or activity" of sitting in a parked truck "to normal nonemployment life". I find that Employee was equally exposed to this same risk in his "normal nonemployment life". Because Employee was equally exposed to the risks of parking on a major thoroughfare in his normal nonemployment life, he has failed to establish the requisite "causal connection between the injury at issue and the employee's work activity." Johme, 366 S.W.3d at 510. Therefore, I find that, by failing to satisfy the second requirement of the two-part test, Employee failed to establish that his injuries do "not come from a hazard or risk unrelated to employment to which he would have been equally exposed outside of and unrelated to the employment in normal nonemployment life." Because Employee failed to satisfy subsection (b) of section 287.020.3(2), Employee has failed to meet his burden of showing that his injuries arose "out of and in the course of" his employment.

Employee has failed to prove that his injuries arose "out of and in the course of employment." As Employee has failed to prove his injuries arose "out of and in the course of employment', his claim for unpaid medical expenses and permanent partial disability are moot. Therefore, Employee's Claim for Compensation is denied.