Young v. Boone Elec. Coop.

• Decision Date: 14 April 2015
• Docket Number: C/w WD 76568,WD 76567
• Citation: 462 S.W.3d 783
• Parties: Milton Young, Respondent, v. Boone Electric Cooperative, Appellant, Treasurer of the State of Missouri Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

462 S.W.3d 783

Milton Young, Respondent

v. Boone Electric Cooperative, AppellantTreasurer of the State of Missouri Custodian of the Second Injury Fund, Respondent.

WD 76567

C/w WD 76568

Missouri Court of Appeals, Western District.

Opinion Filed: April 14, 2015

Joshua K. Friel and Terry M. Evans, Jefferson City, MO, for Appellant.

Truman E. Allen, Columbia, MO, for Respondent.

Before: Alok Ahuja, Chief Judge, Presiding, and Joseph M. Ellis, Victor C. Howard, Thomas H. Newton, Lisa White Hardwick, James E. Welsh, Mark D. Pfeiffer, Karen King Mitchell, Cynthia L. Martin, Gary D. Witt and Anthony Rex Gabbert, Judges

Opinion

Gary D. Witt, Judge

In this consolidated appeal, Boone Electric Cooperative (“Boone Electric”) seeks review of two decisions of the Labor and Industrial Relations Commission (“Commission”). Boone Electric contends that the first decision, which awarded workers' compensation benefits to Milton Young (“Young”) for a 2008 injury to his left knee, was erroneous because Young's injury did not arise out of his employment. Boone Electric argues that the second decision, which awarded benefits to Young for a 2009 injury to his right shoulder, was erroneous because the incident was not a compensable accident under the Workers' Compensation Law.¹ For reasons explained herein, we affirm the Commission's awards for the two injuries.

FACTUAL AND PROCEDURAL HISTORY

Young began working as an electrical lineman for Boone Electric Cooperative in 1987. Young's duties as a lineman included electrical wire installation and repair, both overhead and underground. In that capacity, Young's work has included building and repairing power lines and running new electric services to homes and businesses. His job involves climbing poles, pulling and jacking wire in, and crimping it. Most of Young's work is strenuous, and everything is done with arms reaching out and stretching, mostly shoulder high.

Knee Injury

On January 4, 2008, Young injured his left knee while working at a job site. Young was walking back to his work truck to retrieve materials when he stepped on a “frozen dirt clod” and his left knee “buckled and popped,” causing him to fall to the ground. Young's knee popped

again when two other linemen on his crew helped him to his feet. As a result of the January 4, 2008 incident, Young sustained a sprain to his left knee.

Shoulder Injury

Young began his workday October 2, 2009 with a safety meeting. As part of that meeting, Young performed an exercise called a “pole rescue.” During that exercise, he climbed a utility pole by using a tool belt with a “safety,” cut loose a 180–pound dummy, lowered the dummy to the ground with a rope and hand line, and climbed back down. Young completed that exercise without incident or problem.²

Later that day, Young was running electric service to a building and needed to step up on a platform to access a 2,500–pound reel of wire on the truck. When the outriggers are down to stabilize the truck, as they were at that time, the step getting up into the truck is approximately twenty-seven inches off of the ground.³ The step is so high because the trucks are never on level ground, and the outriggers are used to level and stabilize the truck so the bucket can be lifted properly to raise the worker up to where the lines are located on the pole. There are two handles designed to allow a person to pull up onto the step, and both are needed to keep balance. As Young was pulling himself up, he felt a “pop” in his right shoulder. After that, he could not raise his arm. Young's doctor testified that the “pop” that Young heard was the sound of things tearing

in his shoulder. As a result of the October 2, 2009 incident, Young sustained a right shoulder glenoid labral tear, partial biceps and subscapularis tears, and a full-thickness supraspinatus tear.⁴

On December 9, 2009, Young filed workers' compensation claims against Boone Electric for both the January 4, 2008, and October 2, 2009, injuries.⁵ Following a hearing, an Administrative Law Judge (“ALJ”) awarded benefits on both claims. Boone Electric appealed the ALJ's decisions to the Commission. In supplemental opinions, the Commission affirmed the ALJ's decision to award benefits on both of Young's claims.⁶ Boone Electric appeals the Commission's decisions, which we have consolidated for review.⁷

Further facts are set forth below as necessary.

STANDARD OF REVIEW

This court will not disturb the decision of the Commission on appeal unless it acted without or beyond its power, the award was procured by fraud, the facts do not support the award, or the award is not supported by sufficient competent evidence in the record. § 287.495.1.⁸ “We examine the whole record to determine the sufficiency of the evidence.” Marmon v. City of Columbia, 129 S.W.3d 921, 924 (Mo.App.W.D.2004) (citation omitted). If we find the award is contrary to the overwhelming weight of the evidence, then it is not supported by substantial evidence and we must reverse it. Id. In making this determination, “[w]e do not reweigh the evidence; the Commission is the judge of the weight to be given to conflicting evidence and the credibility of the witnesses.”DeLong v. Hampton Envelope Co., 149 S.W.3d 549, 554 (Mo.App.E.D.2004) (citations omitted).

However, “[t]he Commission's interpretation and application of the law ... are not binding on this court and fall within our realm of independent review and correction.” Snyder v. Consol. Library Dist. No. 3, 306 S.W.3d 133, 136 (Mo.App.W.D.2010) (citation omitted). We thus review the questions of law presented in this appeal de novo.

POINT I

In its first point, Boone Electric contends that the Commission erred in awarding Young benefits for his 2008 knee injury

because Young failed to prove that the accident arose out of his employment.

Under the Missouri Workers' Compensation Law (“Act”), an employer “shall be liable, irrespective of negligence, to furnish compensation under the provisions of [the Act] for personal injury ... of the employee by accident ... arising out of and in the course of the employee's employment.” § 287.120.1.

Section 287.020.3(2) governs whether an injury arises out of and in the course of employment, and states:

(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.

In the present case, Boone Electric does not challenge the Commission's finding that the 2008 accident was the prevailing factor in causing Young's knee injury

. Rather, Boone Electric confines its argument under Point I to the application of Section 287.020.3(2)(b). Boone Electric argues that Young failed to prove that the risk from which his injury arose—slipping on a frozen clod of dirt—was related to his employment. In support of its argument, Boone Electric cites two recent decisions in which injuries were held not to have arisen out of the claimants' employment.

First, in Miller v. Missouri Highway & Transportation, 287 S.W.3d 671 (Mo. banc 2009), the claimant was walking on a work site “when he felt a pop and his knee began to hurt.” Id. at 672. “He frankly admit[ted] ... that nothing about the road surface ... caused any slip, strain or unusual movement....” Id. (emphasis added). On appeal, our Supreme Court made it clear that, under the 2005 amendments to the Act: “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.” Id. at 674. Thus, in affirming the Commission's denial of benefits, the Court held that the claimant's injury did not arise out of employment because it did not occur “due to being in an unsafe location due to his employment.” Id. Rather, the claimant was “walking on an even road surface when his knee happened to pop.” Id. ; see also Pope v. Gateway to W. Harley Davidson, 404 S.W.3d 315, 320 (Mo.App.E.D.2012) (“In Miller, the employee was simply walking on an even road when his own physiology caused his knee to pop. There was no evidence that anything about his work increased his risk of his knee popping.”).

Second, in Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. banc 2012), the claimant was making a pot of coffee in the break room of her workplace when she turned and fell off the side of her sandal, injuring her right hip. Id. at 506. “There were no irregularities or hazards on the kitchen floor. The floor was not wet, and there was not any trash on the floor.” Id. Therefore, because the only connection between the claimant's injury and her employment was the fact that the injury “occurred in her office's kitchen,” our Supreme Court held that the claimant's injury did not arise out of her employment. Id. at 511–12.

“Together, Miller and Johme stand for the proposition that an unexplained injury is not compensable merely because the injury occurred at work.” Dorris v. Stoddard Cnty., 436 S.W.3d 586, 592 (Mo.App.S.D.2014). “[W]e consider whether [the claimant] was injured because he was at work as opposed to becoming injured merely while he was at work.” Pope, 404 S.W.3d at 320. Thus, because we find that Young was injured because he was at work, Boone Electric's reliance on Miller and Johme is misplaced.

In Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo.App.E.D.2012), a case squarely on point, but not cited by either party, the claimant was the owner and operator of a landscaping company. Id. at 865. The claimant was injured when he slipped on a piece of ice in the parking lot of his office on his way back inside after holding a safety demonstration in the lot....