Bonnie Jensen-Price v. Encompass Medical Group and Treasurer of the State of Missouri-Custodian of the Second Injury Fund

• Court: Missouri Court of Appeals
• Decided: August 23, 2016
• Docket: WD79526
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

BONNIE JENSEN-PRICE, ) Appellant, ) v. ) WD79526 ) ENCOMPASS MEDICAL GROUP and ) TREASURER OF THE STATE OF ) FILED: August 23, 2016 MISSOURI - CUSTODIAN OF THE ) SECOND INJURY FUND, ) Respondents. )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

BEFORE VICTOR C. HOWARD, PRESIDING JUDGE, LISA WHITE HARDWICK AND EDWARD R. ARDINI, JR., JUDGES

Bonnie Jensen-Price appeals the Labor and Industrial Relations Commission's

("Commission") decision denying her claim for permanent total disability benefits

after a maintenance worker's cart collided with her leg and caused her to fall as

she was engaged in a work activity for her job with Encompass Medical Group

("Employer"). Jensen-Price contends the Commission's decision constituted an

erroneous application of the law and was not supported by the evidence. For

reasons explained herein, we reverse the Commission's decision and remand the

case for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY

Jensen-Price is 66 years old. She graduated from high school, received her

RN certificate, and completed her coursework and certification to be a nurse

practitioner. Jensen-Price worked as a nurse practitioner for Employer for over 30

years. As a nurse practitioner, her job duties included evaluating, treating, and

diagnosing patients; ordering labs and tests; interacting with patients, which

sometimes required her to lift heavy patients; and computerized charting. Jensen-

Price worked ten or more hours per day and was on her feet for almost eight hours

each day. She worked five days a week and took eight hours of work home to

complete each weekend. She rarely missed work and received raises and good

work evaluations.

Jensen-Price saw patients in Employer's office, which was in a leased suite

on the fourth floor of a commercial office building. Employer's office was

accessible by taking either the stairs or elevators to the fourth floor, then walking

down a hallway to the Employer's suite.

On August 6, 2010, Jensen-Price left Employer's office at approximately

7:00 p.m. and walked down the hallway to the elevator. She was carrying her

purse on one arm and had her laptop computer, which she was taking home to

perform work for Employer, in a rolling briefcase that she was pulling with her

other arm. When the elevator door opened, it appeared dark inside the elevator,

and no one came out of the elevator. Jensen-Price started to walk into the

elevator when, all of a sudden, a housekeeping cart came out of the elevator and

2 hit her leg, causing her to fall to the floor. The floor was carpeted concrete.

Jensen-Price injured her back and the back of her head in the fall, and was

diagnosed with a fracture of the first lumbar vertebra and a disk herniation at the

L4-5 level.

Jensen-Price requested treatment for her injuries from Employer, but

Employer denied her request. On her own, Jensen-Price sought out pain

management medications, injections, and surgical repair of her back injury, with

follow-up physical therapy. She developed post-surgical complications, including a

post-operative infection in her incision site and a pulmonary embolism. The

infection has caused her to have ongoing pain at the surgical site. After her back

surgery, Jensen-Price suffered a heart attack, which required stent placement. Her

medical bills thus far total $77,703.13.

Since her 2010 accident, Jensen-Price continues to have significant back

pain, which she rates a six out of ten on the pain scale. She takes narcotic pain

medication and muscle relaxers because the pain in her back never goes away and

causes aching in her hips and legs. Jensen-Price's back pain interrupts her sleep,

causing her to get only four to six hours of sleep a night. Consequently, she

sometimes naps during the day and needs to lie down, with a heating pad on her

back, for 30 minutes to an hour up to three times each day. As a result of her

head injury from the incident, she continues to have occasional headaches,

dizziness, and balance issues.

3 Jensen-Price has difficulty performing her own personal grooming and

household chores. She cannot sit, stand, or walk for extended periods, and she

uses a cane for stability while walking outdoors or on stairs. Since her accident,

she no longer participates in her preferred hobbies of dancing, walking, and

shopping, and she drives only short distances.

Jensen-Price filed a claim for workers' compensation benefits against

Employer and the Second Injury Fund. In her claim, she alleged that her injury from

the 2010 accident, plus a prior back injury and fibromyalgia, rendered her either

permanently and partially disabled or permanently and totally disabled.

In December 2014, a hearing was held before an Administrative Law Judge

("ALJ") on Jensen-Price's claim. In addition to her own testimony, Jensen-Price

offered medical records, medical bills, and the reports of her medical expert,

Employer's medical expert, and her vocational expert. Both of the medical experts

and the vocational expert opined that Jensen-Price was permanently and totally

disabled.

The ALJ denied Jensen-Price's claim for compensation. The ALJ found that

Employer had no control over the common areas of the building, which included the

hallway where Jensen-Price sustained her injuries. The ALJ further found that the

incident occurred as Jensen-Price was going from work and, because the accident

did not occur on property owned or controlled by Employer, her injury was not

compensable.

4 Jensen-Price appealed to the Commission. The Commission found that,

because Jensen-Price was carrying her laptop with her for the purpose of

performing some work for Employer at her home, she was engaged in the process

of going from one worksite to another when the accident occurred. As a result,

the Commission determined that the ALJ's application of the extension of premises

doctrine, which is an exception to the going to and from work rule, was not

appropriate in this case. Rather, the Commission concluded that compensability

hinged on whether Jensen-Price established that her employment exposed her to a

greater risk of injury than that faced in her normal nonemployment life.

On this issue, the Commission found facts in Jensen-Price's employment to

support an inference that she was exposed to a greater risk than in her

nonemployment life:

Certain facts surrounding employee's accident might support at least an inference of greater risk: the darkened elevator, the fact that employee was leaving work after hours (suggesting she might have been more likely to encounter a maintenance worker with a cleaning cart), or the fact that she was carrying work in a rolling briefcase, which may have affected her balance and her ability to keep herself from falling or from mitigating the consequences of her fall.

The Commission declined to infer an increased risk from those facts,

however, because it found the record "too vague" to do so. The

Commission explained:

After careful consideration, however, we deem the record simply too vague to support affirmative findings as to any of these possible indicators of increased risk. This is because employee did not testify that pulling the rolling briefcase affected her balance, or that it was unusual for the elevator to be dark, or that she did not typically

5 encounter maintenance workers (or their carts) during normal business hours. It was employee's burden to establish an increased risk, and we are concerned that if we were to infer an increased risk from the circumstances of which employee did testify, we would stray into the realm of advocacy.

Therefore, the Commission upheld the denial of compensation. Jensen-Price

appeals.

STANDARD OF REVIEW

We will not disturb the award in a workers' compensation case unless the

Commission acted in excess of its powers, the award was procured by fraud, the

facts found by the Commission do not support the award, or there was not

sufficient competent evidence in the record to support the award. § 287.495.1.1

In deciding whether there was sufficient competent and substantial evidence to

support the Commission's award, we examine the evidence in the context of the

whole record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo.

banc 2003). "Nothing requires this Court to review the evidence and all reasonable

inferences drawn from the evidence in the light most favorable to the

Commission's decision." Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504,

509 (Mo. banc 2012).

We defer to the Commission's factual findings and credibility determinations.

Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012).

Where the evidence before the Commission would warrant either of two opposed

findings, we are bound by the Commission's decision, "'and it is irrelevant that

1All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013 Cumulative Supplement.

6 there is supportive evidence for the contrary finding.'" Id. (citation omitted). We

review the Commission's determinations of law de novo. Lincoln Univ. v. Narens,

485 S.W.3d 811, 815 (Mo. App. 2016).

ANALYSIS

Jensen-Price's injury is compensable only if it arose out of and in the course

of her employment pursuant to [S]ection 287.020.3(2). Section 287.020.3(2)

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.

It is undisputed that Jensen-Price's fall was the prevailing factor in causing

her injury; thus, no discussion of Section 287.020.3(2)(a) is necessary. See

Johme, 366 S.W.3d at 510. Instead, this case hinges on Section

287.020.3(2)(b)'s requirement that the injury did "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."

"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."

7 Johme, 366 S.W.3d at 510 (citing Miller v. Mo. Highway & Transp. Comm'n, 287

S.W.3d 671, 674 (Mo. banc 2009)). In other words, the employee must

demonstrate that she was injured because she was at work and not simply while

she was at work. Wright v. Treasurer of Missouri as Custodian of Second Injury

Fund, 484 S.W.3d 56, 63 (Mo. App. 2015). Whether an injury is causally

connected to the employee's work under Section 287.020.3(2)(b) "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." Gleason v. Treasurer of State of

Missouri-Custodian of Second Injury Fund, 455 S.W.3d 494, 499 (Mo. App.

2015).

For example, in Miller, an employee whose knee popped while he was

walking briskly at work failed to prove a causal connection because the risk source

of his injury, "walking on an even road surface," was one to which he was equally

exposed in his normal nonemployment life. 287 S.W.3d at 674. Similarly, in

Johme, an employee who fell while making coffee at work failed to prove a causal

connection between her injury and work because the risk source of her injury,

"turning, twisting her ankle, or falling off her shoe," was one to which she was

equally exposed outside of her workplace in her normal nonemployment life. 366

S.W.3d at 511.

In contrast, in Pope v. Gateway to the West Harley Davidson, an employee

who fell down a flight of stairs while performing a work task for his employer

8 established a causal connection because the risk source of his injury, the location

of the stairs and the fact that the employee had to carry his helmet while

descending the stairs, was one to which he was not equally exposed in his normal

nonemployment life. 404 S.W.3d 315, 320 (Mo. App. 2012). Likewise, in

Gleason, an employee who fell from atop a railcar while performing an inspection

for his employer established a causal connection because the risk source of his

injury, "falling from a railcar 20 to 25 feet above the ground," was not one to

which he was equally exposed in his normal nonemployment life. 455 S.W.3d at

500. Notably in Gleason, this court rejected the Commission's assertion that the

employee's claim should have been denied because he could not explain why he

fell. Id. at 501-02. The identification of the employee's risk source and the fact

that it was not one to which the worker was exposed in normal nonemployment

life was sufficient to establish a causal connection. Id.

In this case, the Commission expressly found that Jensen-Price was

"performing a work activity for employer at the time the maintenance worker's cart

collided with her leg." The Commission further found that Jensen-Price's collision

with the maintenance worker's cart caused her to fall and that this fall caused her

injury. The Commission then identified facts that it believed would support an

inference of a greater risk: the fact that she was carrying work in a rolling

briefcase, which may have affected her balance or her ability to keep herself from

falling or from mitigating the consequences of her fall; the fact that the elevator

was dark; and the fact that she was leaving work after hours and was more likely

9 to encounter a maintenance worker's cart at that time. Nevertheless, the

Commission declined to infer an increased risk from these facts. The Commission

explained that, to make such an inference without additional testimony from

Jensen-Price as to: (1) whether pulling the briefcase affected her balance; (2)

whether it was unusual for the elevator to be dark; or (3) whether she typically

encountered maintenance workers or their carts during normal business hours,

"would stray into the realm of advocacy." We disagree that any additional

testimony was necessary, as the facts that the Commission did find established

that the risk source of Jensen-Price's injury was one to which she was not equally

exposed outside of work.

The Commission's facts established that the risk source of Jensen-Price's

injury was colliding with a maintenance worker's cart as it was pushed out of a

darkened elevator. This risk source was related to her employment, in that

Employer's office was located on the fourth floor of a commercial office building

where maintenance workers used the elevator to transport their carts and

employees used the elevator to access and to leave the floor. Jensen-Price was

using this elevator solely because, as the Commission found, she was engaged in

the process of going from one worksite to another. Therefore, she was exposed to

the risk of colliding with the maintenance worker's cart coming out of this

darkened elevator because of her employment. See Young v. Boone Elec. Coop.,

462 S.W.3d 783, 789 (Mo. App. 2015).

10 There was no evidence that Jensen-Price had any exposure, let alone equal

exposure, to the hazard of colliding with a maintenance worker's cart as it was

being pushed off of this darkened elevator in her normal nonemployment life. See

Wright, 484 S.W.3d at 64 (holding that the employee, who was injured when a

chair owned by his employer collapsed as he was sitting on it at work, was not

equally exposed to this risk source outside of work because the risk source was

this particular chair); and Young, 462 S.W.3d at 790 (holding that the employee's

"injury arose out of his employment because there is nothing in the record to

support a conclusion that he was equally exposed to the hazard of slipping on

frozen dirt clods in that particular work site in his nonemployment life").

The additional testimony from Jensen-Price that the Commission believed it

needed to hear to draw this conclusion was not necessary. Testimony as to how

pulling the rolling the briefcase may have affected her balance after the cart

collided with her leg was immaterial, as she did not need to explain why she fell as

a result of the collision. See Gleason, 455 S.W.3d at 502. Likewise, the

frequency with which this elevator was dark and the frequency with which Jensen-

Price encountered maintenance workers with their carts during normal business

hours was also immaterial. Regardless of how often Jensen-Price was exposed,

while she was engaged in a work activity, to the risk source of colliding with a

maintenance worker's cart as it was being pushed off of this darkened elevator, it

was still a risk source to which she was not equally exposed in her normal

nonemployment life.

11 Employer argues that the risk source of Jensen-Price's injury was merely

walking and, therefore, this case is analogous to claims for compensation that our

Supreme Court denied in Miller and Johme. We rejected this construction of Miller

and Johme recently in Lincoln University, 485 S.W.3d 811. The employee in

Lincoln University was injured when, as she walked to her car in the parking lot,

she stepped off a steep edge of the sidewalk and turned and broke her ankle. Id.

at 813. Like Employer in this case, the employer in Lincoln University argued that

the risk source of the employee's injury was simply walking and that, pursuant to

Miller and Johme, she should be denied compensation. Id. at 815.

In finding this construction erroneous, we explained that "[n]either Miller nor

Johme found that the employee's injuries were not compensable because the risk

source was walking." Id. at 818. "Rather, each found that the risk source --

walking on an even road surface in Miller, and turning, twisting an ankle, and

falling off a shoe in Johme -- were risk sources the employee would have been

equally exposed to outside of the workplace in normal nonemployment life." Id.

(citing Miller, 387 S.W.3d at 674; and Johme, 366 S.W.3d at 511). Applying

Miller and Johme to the facts of Lincoln University, we reasoned that, while the

employee was walking when she was injured, walking was not the risk source of

her injury; instead, the risk source of her injury was stepping off the steep edge of

a sidewalk. Id. The employee was not injured because she was walking but

"because while walking, she encountered a steep drop off on the sidewalk -- a risk

12 source that she would not have been equally exposed to outside of the workplace

in normal nonemployment life." Id.

Applying Lincoln University's reasoning to this case, although Jensen-Price

was walking when she was injured, walking was not the risk source of her injury.

The risk source of her injury was colliding with a maintenance worker's cart as it

was pushed out of the darkened elevator. Jensen-Price was not injured because

she was walking but because while walking, she collided with a maintenance

worker's cart as it was pushed out of the darkened elevator -- a risk source that

she would not have been equally exposed to outside of the workplace in her normal

nonemployment life. Therefore, Jensen-Price's injury arose out of and in the

course of her employment and was compensable. The Commission erred in

concluding otherwise.

Employer argues that we should affirm this case on the same basis that the

ALJ denied Jensen-Price's claim, which was that she was going from work at the

time of the accident and her injury occurred in an area of the office building that

was under the building owner's -- not Employer's -- control. To support this

argument, Employer cites Section 287.020.5, which abrogates the extension of

premises doctrine "to the extent that it extends liability for accidents that occur on

property not owned or controlled by the employer even if the accident occurs on

customary, approved, permitted, usual or accepted routes used by the employee to

get to and from their place of employment."

13 The Commission specifically rejected the ALJ's factual determination that

Jensen-Price was going from work at the time of the accident, however. Instead,

the Commission found that Jensen-Price was engaged in a work activity at the

time of her accident. We are bound by the Commission's factual determinations.

Hornbeck, 370 S.W.3d at 629. As noted in Duever v. All Outdoors, Inc., Section

287.020.5 is not applicable in cases where the employee is "not on the way to

work or on the way home from work" but is "on the job" at the time of the

accident. 371 S.W.3d 863, 868 (Mo. App. 2012). Section 287.020.5 has no

bearing on the compensability of Jensen-Price's accident. See id.

CONCLUSION

We reverse and remand this case to the Commission for further proceedings

consistent with this opinion.2

____________________________________ LISA WHITE HARDWICK, JUDGE

ALL CONCUR.

2 The Second Injury Fund asks us to find that Jensen-Price's disability was the result of her 2010 work injury alone and in isolation. Neither the ALJ's findings nor the Commission's decision addressed whether Jensen-Price was permanently disabled by a combination of her past disabilities and the primary work injury so as to trigger the Second Injury Fund’s liability. That issue is to be determined by the Commission on remand. See Gleason, 455 S.W.3d at 503 n.7.