Dorris v. Stoddard Cnty.

• Decision Date: 31 January 2014
• Docket Number: No. SD 32830.,SD 32830.
• Citation: 436 S.W.3d 586
• Parties: Linda DORRIS, Employee–Respondent, v. STODDARD COUNTY, Employer–Appellant.
• Court: Missouri Court of Appeals

436 S.W.3d 586

Linda DORRIS, Employee–Respondent,

v.STODDARD COUNTY, Employer–Appellant.

No. SD 32830.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 31, 2014.

Richard L. Montgomery, JR., Columbia, MO, for Appellant.

Michael A. Moroni, Bloomfield, MO, for Respondent.

MARY W. SHEFFIELD, J.

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.

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;

(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 determinationthat 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 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 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 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...