LINDA DORRIS, Employee-Respondent v. STODDARD COUNTY, Employer-Appellant.

LINDA DORRIS, )
)
Employee-Respondent, )
)
vs. ) No. SD32830
)
STODDARD COUNTY, ) Filed: January 31, 2014
)
Employer-Appellant. )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

AFFIRMED

This is an appeal from an award of compensation entered by the Labor and

Industrial Relations Commission ("the Commission") in a workers' compensation

claim. Linda Dorris ("Claimant") was injured when she tripped on a crack in the

street while walking back to her office after going to look at a new office building

her employer, Stoddard County ("Employer"), was having constructed. Employer

appeals. We disagree with the arguments Employer raises and affirm the

Commission's award.

Factual and Procedural Background

Claimant worked in Employer's collector's office. During 2009, Employer

was building a new office building. On September 15, 2009, Claimant's

supervisor asked Claimant and her coworker, Linda Patrick ("Patrick"), if they

wanted to go over to the new building and see the new workstations because the
countertops were being installed. Patrick and Claimant were to determine

whether they liked the countertops and ascertain whether they had any

questions.

Patrick and Claimant walked across the street to the new building while

Claimant was "on the clock[.]" If something had been wrong with the new

countertops, Claimant was to have reported it, and changes would have been

made.

The street Claimant and Patrick had to cross to get from the old building to

the new building had cracks in the pavement, and it was a busy street. Claimant

was watching for vehicles passing in the street, so she was not looking down at

the pavement. As they crossed the street on their way back to the old office

building, Claimant tripped and fell. Claimant's right shoulder was injured during

the fall, and she subsequently received medical treatment including surgery to

repair a torn rotator cuff.1

Claimant sought workers' compensation benefits based on the injury to

her shoulder. A hearing was held regarding the claim, and the Administrative

Law Judge ("ALJ") awarded compensation. In support of her award, the ALJ

found "there is a clear nexus between the employee's work and her injury. She

was walking across the street because of work, and she tripped and fell on a

cracked street." Consequently, the ALJ concluded Claimant's injury arose out of

and in the course of Claimant's employment.

1As Employer contested the claim from the outset, this treatment was obtained by Claimant on
her own.

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 Employer sought review by the Commission. The Commission adopted

the ALJ's award and supplemented that award to address Employer's argument

based on Bivins v. St. John's Regional Health Center, 272 S.W.3d 446,

450 (Mo. App. S.D. 2008). In so doing, the Commission stated:

Employee need not prove that the nature of the risk to which she
was exposed was unique to her employment. Compensability is
established herein based upon our finding that, in the course and
scope of her employment, employee had a direct and greater
exposure to the specific risk of tripping inherent in the poor
condition of the roadway in a direct path from one office to another
and that she sustained injury as a result therefrom.

We agree with the administrative law judge's conclusion that
employee's shoulder injury arose out of and in the course of her
employment.

Employer appeals.

Standard of Review

"On appeal, this Court reviews the Commission's decision to determine if

it is 'supported by competent and substantial evidence upon the whole record.'"

Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 509 (Mo. banc

2012) (quoting Mo. Const. Art. V, § 18). Where, as here, the Commission

incorporates the ALJ's findings and conclusions, we review those findings as

adopted by the Commission. Kuykendall v. Gates Rubber Co., 207 S.W.3d

694, 702 (Mo. App. S.D. 2006). On appeal, the court:

may modify, reverse, remand for rehearing, or set aside the award
upon any of the following grounds and no other:

(1) [t]hat the [C]ommission acted without or in excess of its
powers;

(2) [t]hat the award was procured by fraud;

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 (3) [t]hat the facts found by the [C]ommission do not support
the award; [or]

(4) [t]hat there was not sufficient competent evidence in the
record to warrant the making of the award.

§ 287.495.1, RSMo (2000).

Discussion

Employer presents three points on appeal challenging the Commission's

determination that Claimant's injury arose out of and in the course of her

employment. In its first point, Employer states the Commission's determination

that Claimant's injury was caused by a trip on a crack in the street was not

supported by substantial competent evidence as there was no direct testimony

Claimant tripped on a crack in the street. In its second point, Employer argues

the Commission erred in determining Claimant's injury occurred out of and in

the course of Claimant's employment because Claimant was injured in a public

street at a time when Claimant was not performing an activity that provided a

benefit to Employer. Finally, in its third point Employer uses its factual

conclusion from its first point to support the legal argument that the injury did

not arise out of and in the course of the employment because Claimant was

equally exposed to the risk in her normal, nonemployment life. For ease of

analysis, we address Employer's points in the following order: Point I, Point III,

and then Point II.

Point I: Causation

Employer first argues the Commission's award is not supported by

substantial evidence because there was no testimony or other direct evidence

showing the cracks in the pavement caused Claimant to fall. This argument

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ignores our standard of review because it fails to give sufficient deference to the

Commission's credibility determinations and reasonable inferences drawn from

the direct evidence.

"The whole record is considered to determine if there is sufficient

competent and substantial evidence to support the Commission's award."

Johme, 366 S.W.3d at 509. While we need not view the evidence in the light

most favorable to the award, Hampton v. Big Boy Steel Erection, 121

S.W.3d 220, 223 (Mo. banc 2003), "[t]he Commission is the sole judge of the

credibility of witnesses and the weight and value to give to the evidence." Bivins

v. St. John's Regional Health Center, 272 S.W.3d 446, 450 (Mo. App. S.D.

2008) (quoting Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85

(Mo. App. E.D. 1995)). "Where competent evidence or permissible inferences

conflict, 'the choice rests with the Commission and is binding upon this Court.'"

Id. (quoting Montgomery v. Missouri Dept. of Corrs. And Human Res.,

849 S.W.2d 267, 271 (Mo. App. E.D. 1993) (overruled on other grounds by

Hampton, 121 S.W.3d 220)).

"To be entitled to workers' compensation benefits, the employee has the

burden of proving that his or her injury was caused by a work-related accident."

Claspill v. Fed Ex Freight East, Inc., 360 S.W.3d 894, 903 (Mo. App. S.D.

2012) (quoting Spencer v. Sac Osage Elec. Co-op., Inc., 302 S.W.3d 792,

800 (Mo. App. W.D. 2010)). "Determinations with regard to causation and work-

relatedness are questions of fact to be ruled upon by the Commission, and the

reviewing court may not substitute its judgment on the weight of the evidence or

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on the credibility of witnesses for that of the Commission." Id. (quoting

Spencer, 302 S.W.3d at 800).

Employer does not challenge the determination that the medical condition

was caused by Employee's fall, so the only issue is what caused Employee to fall.

Contrary to the implicit assumption in Employer's argument, nothing in the

workers' compensation law requires the claimant to testify to the exact cause of

the accident. Rather, the Commission is entitled to consider the evidence as a

whole and rely on reasonable inferences. Claimant testified there were cracks in

the pavement, she was watching for vehicles on the street and she believed

something must have caused her to fall. She also stated she was not prone to

frequent falls and did not suffer from seizures. Furthermore, at the hearing

before the ALJ, Claimant introduced photographs showing the condition of the

pavement in the area where Claimant fell. The pavement appears to be composed

of separate slabs joined together. Deep crevices mark the junctions.

Additionally, the edges of the pavement segments are crisscrossed with a network

of smaller cracks. Based upon the testimony that there were cracks in the street,

the testimony that Claimant did not suffer from conditions that might cause her

to fall for any other reason, and the photographs showing the cracked nature of

the street, it was reasonable for the Commission to infer Claimant tripped on a

crack in the street.

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

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exactly what happened or what caused the fall.'" Tiger v. Quality Transp.,

Inc., 375 S.W.3d 925, 927 (Mo. App. S.D. 2012) (quoting Brown v. Morgan

County, 212 S.W.3d. 200, 204 (Mo. App W.D. 2007)); see also Georgescu v.

K Mart Corp., 813 S.W.2d 298, 300 (Mo. banc 1991). That principle is equally

applicable to the causation analysis here. Under a correct application of the

standard of review, we defer to the Commission's factual finding based upon that

reasonable inference. See Bivins, 272 S.W.3d at 450.

Employer argues the Commission was not entitled to rely on the inference

that Claimant tripped on a crack in the street because the facts were undisputed

so the issue of whether the injury arose out of and in the course of the

employment was a question of law. This argument is without merit because the

facts were disputed. A party may contest evidence by cross-examining the

witnesses "or by pointing out internal inconsistencies in the evidence." White v.

Director of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010). When the

relevant facts are contested, the reviewing court defers to the factual

determinations made by the Commission. Riley v. City of Liberty, 404

S.W.3d 434, 441 (Mo. App. W.D. 2013) (quoting White, 321 S.W.3d at 308);

Bivins, 272 S.W.3d at 450. Here, Employer cross-examined Claimant regarding

the condition of the roadway and whether her shoes might have caused her to

trip. Thus, the evidence of what caused Claimant to trip was disputed, and we

defer to the Commission's determination of the disputed facts. See Bivins, 272

S.W.3d at 450.

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 The Commission's factual determination that Claimant tripped on a crack

in the street was supported by substantial evidence. Employer's first point is

denied.

Point III: Equally Exposed

In its third point, Employer argues Claimant failed to prove she was not

equally exposed to the risk which caused her injury in her ordinary,

nonemployment life. This argument is without merit because it does not employ

a strict construction of the statute.

An injury is compensable under Missouri's workers' compensation law if it

arises out of and in the course of the claimant's employment. Duever v. All

Outdoors, Inc., 371 S.W.3d 863, 866 (Mo. App. E.D. 2012). Section

287.020.3(2)2 controls the determination of whether an injury is "deemed to

have arisen out of and in the course of [the] employment." Johme, 366 S.W.3d

at 509. That section provides as follows:

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.

§ 287.020.3(2). In the present case, Employer does not challenge the

Commission's finding that the September 15, 2009 incident was the prevailing

factor in causing Claimant's injury. Consequently, the issue is limited to the

2 This and all subsequent statutory references are to RSMo Cum. Supp. (2013).

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construction and application of Section 287.020.3(2)(b). See Johme, 366

S.W.3d at 510. Under the 2005 amendments to the workers' compensation law,

this Court is required to "construe the provisions of [the law] strictly."

§ 287.800.1. That is, the "statute can be given no broader application than is

warranted by its plain and unambiguous terms." Harness v. Southern

Copyroll, Inc., 291 S.W.3d 299, 303 (Mo. App. S.D. 2009). Thus, we are

required to strictly construe the phrase, "risk or hazard unrelated to

employment," in identifying the exact risk or hazard Claimant faced here.

The Supreme Court of Missouri addressed the meaning of the statutory

language at issue here in Miller v. Missouri Highway and Transp. Com'n,

287 S.W.3d 671, 672 (Mo. banc 2009), and in Johme. In Miller, the claimant,

while at a worksite, was walking briskly toward his truck to get repair material for

the job. 287 S.W.3d at 671-72. He felt a pop, and his knee began to hurt. Id. at

672. There was no evidence "the road surface, his work clothes or the job caused

any slip, strain or unusual movement[.]" Id. The ALJ denied compensation, and

the Commission adopted the ALJ's decision. Id. On appeal, the Supreme Court

of Missouri discussed the 2005 amendments to the workers' compensation law

and then affirmed the Commission's determination based on the following

reasoning:

The meaning of these provisions is unambiguous. 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
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

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 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 (emphasis added).

The Supreme Court of Missouri later elaborated on that reasoning in

Johme. In Johme, the claimant, an office worker, fell after making a pot of

coffee in the break room at her workplace. 366 S.W.3d at 505-06. The floor was

not wet, and there were no hazards on the break room floor. Id. at 506. The

Commission granted compensation, and the Supreme Court of Missouri reversed

because it found Miller to be controlling. Id. at 510-11. The Court reasoned that

under Miller the focus of the analysis is not on what the employee was doing,

but rather whether the risk was one to which the employee was not equally

exposed in nonemployement life. Id. at 511. That is, "[f]or an injury to be

deemed to arise out of and in the course of the employment under [S]ection

287.020.3(2)(b), the claimant employee must show a causal connection between

the injury at issue and the employee's work activity." Id. at 510. Together,

Miller and Johme stand for the proposition that an unexplained injury is not

compensable merely because the injury occurred at work. Neither case identified

any risk or hazard that caused the injury to occur.

However, those cases do not address the question presented when the

claimant is "in an unsafe location due to his employment." Miller, 287 S.W.3d

at 574. Thus, Miller and Johme have been distinguished where there was

evidence showing the reason for the injury. See, e.g., Pope v. Gateway to the

West Harley Davidson, 404 S.W.3d 315, 318-19 (Mo. App. E.D. 2012);

Duever, 371 S.W.3d at 867-68; Stricker v. Children's Mercy Hosp., 304

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S.W.3d 189, 192-93 (Mo. App. W.D. 2009). For example, in Duever the

claimant was the operator of a company that provided snow and ice removal. 371

S.W.3d at 865. The claimant was injured when he slipped on ice in the parking

lot on his way back to the office after a safety meeting with employees to discuss

maintenance of tail lights on company trailers. Id. The Commission awarded

compensation, and the employer appealed. Id. One of the employer's claims on

appeal was that the accident did not arise out of and in the course of the

employment. Id. at 867. The employer argued that since slipping on ice was a

risk to which the employee was equally exposed in his nonworking life the injury

was not compensable. Id. The appellate court disagreed and affirmed the

Commission's decision. Id. In doing so, it distinguished Miller and Johme

because unlike in Miller and in Johme the employee's job required him to be in

an unsafe location. Duever, 371 S.W.3d at 867-68. That is, by rejecting the

employer's argument the court implicitly determined the hazard was not the

hazard of slipping on ice in general, but the hazard of slipping on that ice in that

particular parking lot. Strictly construing Section 287.020.3(2)(b), we must use

that same analysis to identify the specific risk or hazard to which Claimant was

exposed here.

The present case is more like Duever than it is like Miller and Johme.

As in Duever, there was evidence of a hazardous condition in the surface on

which Claimant was walking, i.e., there were cracks in the road that Claimant was

required to cross, and it was a busy street that required her to pay attention to

traffic. Furthermore, as in Duever, the fall occurred while Claimant was

completing a task related to her work. Claimant's supervisor had asked Claimant

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to go look at the new workstations, and Claimant would have reported any

deficiencies she observed. Finally, the accident occurred during the work day

while Claimant was "on the clock[.]" Claimant was exposed to cracks in that

particular street because of her employment. There is no evidence in the record

that Claimant had any exposure to this particular hazard during her

nonemployment life and therefore, the record could not support a conclusion by

the Commission that she was equally exposed to that hazard in her

nonemployment life, as urged by employer.

Point III is denied.

Point II: Arising out of and in the Course of the Employment

Finally, Employer argues the injury did not arise out of and in the course

of Employee's work because the accident occurred on a public street which

Employer did not control while Employee was on a break. We disagree.

To receive workers' compensation benefits, the claimant must

demonstrate the injury "was caused by an accident 'arising out of' and 'in the

course of' [her] employment." Harness, 291 S.W.3d at 305 (quoting

§ 287.120.1). For the injury to be deemed to have arisen out of and in the course

of the employment, the claimant must show a causal connection between the

injury and her work activity. Porter v. RPCS, Inc., 402 S.W.3d 161, 172 (Mo.

App. S.D. 2013). More specifically, "[a]n injury 'arises out of' the employment if

it is a natural and reasonable incident thereof and it is 'in the course of

employment' if the accident occurs within the period of employment at a place

where the employee may reasonably be fulfilling the duties of employment."

Storie v. Americare Systems, Inc., 304 S.W.3d 254, 258 (Mo. App. S.D.

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2010) (quoting Automobile Club Inter-Ins. Exch. v. Bevel, 663 S.W.2d

242, 245 Mo. banc 1984)).

Here, Claimant was walking across this particular street because her

supervisor asked her to look at the new workstations. Consequently, there was a

causal connection between Claimant's work activity and the accident.

Furthermore, contrary to Employer's assertion that Claimant was on a break at

the time of the accident, Claimant testified she was "on the clock" when the

accident occurred. The Commission had the ability to weigh the conflicting

testimony and determine that the injury did occur within the period of

employment. The Commission's determination that the injury arose out of and in

the course of the employment was supported by competent substantial evidence.

Employer's primary argument to the contrary is based on Section

287.020.5. An argument similar to the one Employer raises was rejected by the

Eastern District of this Court in Duever. In that case, the court noted the

revisions to Section 287.020.5 abrogated the extended premises doctrine for

injuries that occurred on the way to work from home or on the way to home from

work. Duever, 371 S.W.3d at 868. However, the court held the statute had no

application where the employee was clearly on the job. Id. Here, Claimant was

"on the clock" and her supervisor had requested that she make the trip across the

street during her working hours. Claimant was not on her way to work or going

home from work and that defense is not available.

There was sufficient competent evidence to support the Commission's

determination that Claimant's injury arose out of and in the course of her

employment. Claimant's third point is denied.

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 Conclusion

The Commission's award is affirmed.

MARY W. SHEFFIELD, J. - OPINION AUTHOR

JEFFREY W. BATES, P.J. - CONCURS

GARY W. LYNCH, J. - CONCURS

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