Abel By and Through Abel v. Mike Russell's Standard Service

Decision Date25 June 1996
Docket NumberNo. 78687,78687
Citation924 S.W.2d 502
PartiesVerne L. ABEL, deceased, By and Through William ABEL, Appellant, v. MIKE RUSSELL'S STANDARD SERVICE and Grinnell Mutual Reinsurance Company, Respondents.
CourtMissouri Supreme Court

David F. Sullivan, Springfield, for Appellant.

William D. Powell, Springfield, for Respondents.


The issue in this case is whether an employee who suffers an idiopathic fall is entitled to compensation under section 287.120.1, RSMo1994, when the conditions of the work place bear no causal relationship to the employee's injury. The Labor and Industrial Relations Commission denied workers' compensation. The Court of Appeals, Southern District, reversed, relying on this Court's decision in Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525 (Mo. banc 1993). One member of the court of appeals' panel dissented and certified the case to this Court because he believed the majority opinion was contrary to Alexander. We have jurisdiction, Mo. Const. art. V, § 10, and hold that section 287.120.1, RSMo1994, requires the employee to establish a causal relationship between the conditions of the work place and his or her injuries before workers' compensation is available. The decision of the Labor and Industrial Relations Commission is affirmed.


At approximately 2:00 p.m. on March 27, 1991, Verne L. Abel fell while working for Mike Russell's Standard Service as a "gas attendant." The record shows that Abel went to a credit card machine located on his employer's premises to check credit card receipts. The credit card machine was located outside and at the south end of a gasoline pump island, beneath a canopy that covered all pump islands. Abel stood on level, paved ground at the time of his fall. Abel attended to the credit card receipts and stood for five to ten minutes, then he fainted, fell backwards, and hit the back of his head on the paved driveway. 1

Abel went to a hospital emergency room twice that day, seeking treatment for symptoms experienced after his fall. Medical personnel finally diagnosed his injury as a intercerebral hematoma. Medical personnel admitted Abel to the hospital where a neurosurgeon performed a right temporal craniectomy for evacuation of the hematoma.

Abel filed for workers' compensation. An administrative law judge heard the evidence and denied compensation. After summarizing the evidence and making factual findings, the administrative law judge decided that the cause of Abel's fall was not work-related but idiopathic.

Abel appealed to the Labor and Industrial Relations Commission. The commission adopted and affirmed the administrative law judge's findings. Abel again appealed.


The standard of review is set out in section 287.495.1, RSMo1994:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its power;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Since the commission denied recovery, this Court may set aside the commission's decision only if "the commission acted without or in excess of its powers." We are bound by the commission's findings of fact.

Section 287.120.1, RSMo1994, provides workers' compensation where an injured worker shows that his injury was caused by an accident "arising out of and in the course of his employment." (Emphasis added.) An accident arises out of the employment relationship "when there is a casual connection between the conditions under which the work is required to be performed and the resulting injury." Kloppenburg v. Queen Size Shoes, Inc., 704 S.W.2d 234, 236 (Mo. banc 1986), quoting Dehoney v. B-W Brake Co., 271 S.W.2d 565, 566 (Mo.1954). An injury occurs "in the course of" employment "if the injury occurs within the period of employment at a place where the employee reasonably may be fulfilling the duties of employment." Shinn v. General Binding Corp., 789 S.W.2d 230, 232 (Mo.App.1990). "Arising out of" and "in the course of" are two separate tests. "[B]oth must be met before [an employee] is entitled to compensation." Automobile Club Inter-Insurance Exchange v. Bevel, 663 S.W.2d 242, 245 (Mo. banc 1984).

In Alexander, 851 S.W.2d 525, the Court focused on the "arising out of" test and held that "a causal connection is established if the conditions of the work place contributed to cause the accident, even if the precipitating cause was idiopathic." Id. at 528. This language is, of course, broad. Its scope is expanded even more by the cases gathered in footnote five. Those cases seem to support a conclusion that Alexander intended to collapse the "arising out of" requirement of section 287.120.1 into the "in the course of" test and permit recovery in workers' compensation for every injury to an employee occurring at a workplace.

We do not, however, read Alexander to have that intent for two reasons. First, section 287.120.1 determines coverage; this Court cannot decide away a statutory requirement. Section 287.120.1 requires a causal connection between the conditions of employment and the employee's injury.

Second, Alexander's holding proceeds from the conviction that Collins v. Combustion Engineering Co., 490 S.W.2d 394 (Mo.App.1973), was wrongly decided. For this reason, Alexander expressly overrules Collins and says that "Collins misapplies the 'causal connection' test by focusing solely on the initial ... cause of the accident...." Alexander, 851 S.W.2d at 528. Thus, the limits of the language used in Alexander can be found only within the context of this Court's dissatisfaction with Collins.

Collins holds that section 287.120.1 does not permit recovery when an idiopathic condition results in a fall from a ladder. The Collins' court ignores the fact that a condition of employment--working on a ladder--heightens the effects of gravity and, commensurately, the likelihood of injury.

Alexander properly rejects Collins' narrow focus on the initial cause of the injury, suggesting that courts must consider "the entire sequence of events that takes place, ... the injuries suffered, and ... whatever cause or causes give rise to those events and injuries ..." to determine whether an accident arises out of employment. Alexander, 851 S.W.2d at 528. Indeed, in rejecting Collins' rationale, Alexander anticipates this case. "[H]ad the employee in Collins been standing on the ground when he became dizzy, in all likelihood, there would have been no fall, and thus no accident and no injury. In other words, the accident would not have occurred but for the condition of the workplace." Alexander, 851 S.W.2d at 528.

The sine qua non of recovery under section 287.120.1 and Alexander is a condition of the workplace that bears a causal connection to the employee's injury. The condition of the workplace bears a causal connection to the injury only when the condition is unique to the workplace or is a common condition that is exacerbated by the requirements of employment.

In Alexander, the employment condition was a platform four to four and one-half feet off the ground. It was not gravity or paved ground that Alexander recognized as providing a sufficient causal connection to support workers' compensation coverage. It was the height at which the employee worked--a height that made gravity more dangerous and the ground a more likely cause of injury when struck after falling.

Here, Abel fell while standing on paved, level ground. Although his injuries occurred in the course of his employment, nothing about this condition of his workplace enhanced the effects of gravity or made the conditions of his workplace any different from or any more dangerous than those a member of the general public could expect to confront in a non-work setting.

Consistent with section 287.120.1, we hold that a claimant must show that his or her injury arises out of and in the course of his or her employment as a condition precedent to recovery. It is not enough to show that the employee suffered an injury while working. Instead, recovery under section 287.120.1 follows only where a condition unique to or exacerbated by the workplace exists and contributes to cause the injury.


The decision of the Labor and Industrial Relations Commission is affirmed.


BLACKMAR, Senior Judge, dissents in separate opinion filed.

PRICE and WHITE, JJ., concur in opinion of BLACKMAR, Senior Judge.

HOLSTEIN, C.J., not sitting.

BLACKMAR, Senior Judge, dissenting.

The employee sustained a fall, the cause of which could not be precisely determined. He struck his head on the concrete apron of a service station. As a direct result of striking his head he suffered substantial injury. Yet we are told that he is not entitled to workers' compensation for this injury because it did not arise "out of" his employment. The framers of the workers' compensation statute would be shocked at this conclusion, as his friends and neighbors undoubtedly would. They would say that he was injured in a work-related accident.

Our statute uses the phrase "out of and in the course of his employment," as do the great majority of workers' compensation statutes in the United States and other common law nations. The governing principle of workers' compensation is clear. In place of an uncertain common law remedy with numerous exceptions and qualifications, but with no ceiling on recovery, the statutes substituted a supposedly sure and certain remedy with a prescribed scale of benefits. Some common...

To continue reading

Request your trial
21 cases
  • Fetzer v. N.D. Workforce Safety & Ins.
    • United States
    • North Dakota Supreme Court
    • 3 Mayo 2012
    ... ... N.D.C.C. 283246. The same deferential standard of review is applied to an ALJ's factual ... employment has reference to the time of service, the hours of employment; arising out of the ... LEXIS 836 (Oct. 15, 2003); Abel v. Mike Russell's Std. Serv., 924 S.W.2d 502 ... ...
  • Drewes v. Trans World Airlines, Inc.
    • United States
    • Missouri Supreme Court
    • 9 Febrero 1999
    ... ... require their presence as a part of such service." Sec. 287.020.5. The 1993 amendment ...         The majority departs from Abel v. Mike Russell's Standard Service, 924 S.W.2d ... ...
  • Kasl v. Bristol Care, Inc.
    • United States
    • Missouri Supreme Court
    • 9 Febrero 1999
    ... ... Wagner Cartage Service, Inc., the 1993 amendment requires that, to be ... Abel v. Mike Russell's Standard Service, 924 S.W.2d ... ...
  • Smith v. Donco Const.
    • United States
    • Missouri Court of Appeals
    • 23 Enero 2006
    ... ... (quoting Abel v. Mike Russell's Std. Serv., 924 S.W.2d 502, 503 ... " Claimant was treated with antibiotics through a percutaneous inserted central catheter ("PICC") ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Resurrection of a dead remedy: bringing common law negligence back into employment law.
    • United States
    • Missouri Law Review Vol. 75 No. 3, June 2010
    • 22 Junio 2010
    ...481,483 (Mo. App. W.D. 1988), overruled on unrelated grounds by Hampton, 121 S.W.3d 220. (93.) Abel v. Mike Russell's Standard Serv., 924 S.W.2d 502, 503 (Mo. 1996)(en banc); Arnold v. Wigdor Furniture Co., 281 S.W.2d 789, 792-94 (Mo. 1955)(en banc); Chambers v. SDX, Inc., 948 S.W.2d 448 (M......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT