Hager v. Syberg's Westport

Citation304 SW 3d 771
Decision Date23 February 2010
Docket NumberNo. ED 93420.,ED 93420.
PartiesMichael HAGER, Appellant, v. SYBERG'S WESTPORT and Treasurer of Missouri as Custodian of Second Injury Fund, Respondent.
CourtCourt of Appeal of Missouri (US)
304 S.W.3d 771

Michael HAGER, Appellant,
v.
SYBERG'S WESTPORT and Treasurer of Missouri as Custodian of Second Injury Fund, Respondent.

No. ED 93420.

Missouri Court of Appeals, Eastern District, Division Four.

February 23, 2010.


Alif A. Williams, St. Louis, MO, for Appellant.

Robert M. Evans, Sarah E. Reichert, St. Louis, MO, for Respondent.

OPINION

GEORGE W. DRAPER III, Judge.

Michael D. Hager (hereinafter, "Claimant") appeals from the decision of the Labor and Industrial Relations Commission (hereinafter, "the Commission") which adopted the findings of the Administrative Law Judge (hereinafter, "the ALJ") denying compensation to Claimant after he was injured while leaving work at Syberg's Eating & Drinking Company (hereinafter, "Employer"). Claimant raises one point on appeal, but claims two bases for relief.1

304 SW 3d 772

First, Claimant alleges his injury arose out of and in the course of his employment because it occurred within a reasonable margin of time and space after his work had ended. Second, Claimant alleges his injury arose out of and in the course of his employment because it occurred either: (1) on a parking lot that was the Employer's business premises or (2) on an extended premises which the Employer controlled within the meaning of Section 287.020.5 RSMo (2005)2. We affirm.

On December 4, 2006, Claimant worked at Employer's restaurant as a cook before clocking out at 11:30 p.m. and leaving the restaurant. While walking to his vehicle, Claimant slipped and fell on black ice and injured his left ankle. Claimant filed a claim for permanent partial disability on December 7, 2006. On December 21, 2006, Claimant's left ankle was surgically repaired using a plate and seven screws. Employer paid Claimant $11,061.09 in medical benefits and $2,526.53 in temporary total disability benefits.

On October 14, 2008, the ALJ held a hearing during which the ALJ received the deposition testimony of Kirk Syberg (hereinafter, "Syberg"), co-owner of Employer's restaurant. According to Syberg, the lease signed by Employer and BWWP, LLC, (hereinafter, "Landlord") provided Landlord with exclusive control of the parking lot, including snow removal, sidewalk cleaning, landscaping, and pothole repair. Syberg denied telling employees where to park, but asserted Employer merely suggested employees park behind or on the side of the restaurant.

The ALJ denied Claimant's claim on two grounds. First, the ALJ found, "Based on the time and location of the accident . . . the accident did not arise out of and in the course of Claimant's employment." Second, the ALJ found the extended premises doctrine did not apply. The Commission subsequently issued its decision denying compensation to Claimant and affirming the ALJ's award and decision. Claimant appeals.

In affirming the ALJ's denial of compensation, the Commission attached and incorporated the ALJ's award and decision to its decision. "When the Commission's findings include the administrative law judge's award by incorporation by reference, it is reviewed as part of the Commission's decision." Johnson v. Indiana W. Exp., Inc., 281 S.W.3d 885, 887 (Mo. App. S.D.2009)(quoting Reese v. Coleman, 990 S.W.2d 195, 197 n. 2 (Mo.App. S.D. 1999)).

Under Article V, Section 18 of the Missouri Constitution, this Court must determine whether the Commission's award is "supported by competent and substantial evidence upon the whole record." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). Section 287.495.1 RSMo (2000) provides this Court:

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 powers;
(2) That the award was procured by fraud;
304 SW 3d 773
(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.

This Court must consider the whole record to determine whether it contains sufficient, competent, and substantial evidence to support the award. Harness v. S. Copyroll, Inc., 291 S.W.3d 299, 303 (Mo.App. S.D.2009); Lawson v. Ford Motor Co., 217 S.W.3d 345, 348 (Mo.App. E.D.2007). "We will set aside the Commission's award if it is contrary to the overwhelming weight of the evidence." Harness, 291 S.W.3d at 303. This Court defers to the Commission on issues of fact, the credibility of witnesses, and the weight to be given to conflicting evidence. Allcorn v. Tap Enters., Inc., 277 S.W.3d 823, 827 (Mo.App. S.D.2009). However, "we review the Commission's decisions which are clearly interpretations or applications of law for correctness without deference to the Commission's judgment." Id.

In his sole point on appeal, Claimant provides two reasons why the Commission erroneously interpreted and applied Section 287.020.5. First, Claimant asserts the Commission erroneously interpreted and applied Section 287.020.5 in finding "Claimant was no longer working when he fell" because "after Claimant's shift ended, he clocked out, left the building, and headed toward his truck." Specifically, Claimant asserts his injury occurred within a reasonable margin of time and space after his work had ended. Claimant relies on Roberts v. Parker-Banks Chevrolet, 58 S.W.3d 66 (Mo.App. E.D.2001) and Huffmaster v. American Recreation Products, 180 S.W.3d 525 (Mo.App. E.D.2006), to support his argument that "in the course of employment" includes "not only the actual doing of work, but a reasonable margin of time and space to be used in passing to and from the place where the work is to be done." Roberts, 58 S.W.3d at 70(quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158, 48 S.Ct. 221, 72 L.Ed. 507 (1928))(emphasis added). Claimant's reliance on Roberts and Huffmaster is misplaced.

In 2005, the Missouri Legislature amended The Workers' Compensation Law. "Since the effective date of the 2005 changes to The Workers' Compensation Law, new and significantly different standards must be applied in determining the compensability of a claim." Johnson, 281 S.W.3d at 890. As part of the 2005 amendments, the Legislature amended Section 287.020.10 to provide:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of "accident", "occupational disease", "arising out of", and "in the course of the employment" to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.

(emphasis added). In Ahern v. P & H, LLC, 254 S.W.3d 129 (Mo.App. E.D.2008), this Court acknowledged Section 287.020.10 abrogated Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525 (Mo. banc 1993), which interpreted the meaning or definition of "arising out of," despite the case not being specifically mentioned by name in Section 287.020.10. See Ahern, 254 S.W.3d at 136.

We likewise find Section 287.020.10 abrogates Roberts and Huffmaster. Section 287.020.10 abrogates Roberts because it explicitly interprets the meaning or definition

304 SW 3d 774

of "arising out of and in the course of employment." See Ahern, 254 S.W.3d at 136. Therefore, Claimant cannot rely upon Roberts to support his claim the Commission erroneously interpreted and applied Section 287.020.5 in finding Claimant was no longer working when he fell. Similarly, Section 287.020.10 abrogates Huffmaster because it predates the 2005 amendments and interprets the meaning or definition of "arising out of and in the course of employment."3 See Ahern, 254 S.W.3d at 136. As such, Claimant fails to cite any binding authority in support of his argument.4

Since Section 287.020.10 abrogates earlier case law interpreting the meaning of "arising out of and in the course of employment," this Court must consider whether Claimant's injury arose out of and in the course of employment under the current statutory scheme. Section 287.120.1 provides: "Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by...

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