Marks v. Mo. Dep't of Corr.

CourtCourt of Appeal of Missouri (US)
Citation606 S.W.3d 159
Docket NumberWD 82956
Parties Dontarius J. MARKS, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, Respondent.
Decision Date14 April 2020

606 S.W.3d 159

Dontarius J. MARKS, Appellant,

WD 82956

Missouri Court of Appeals, Western District.

OPINION FILED: April 14, 2020

Elizabeth W. Skinner, Jefferson City, MO, for appellant.

Kimberley Cox Fournier, Kansas City, MO, for respondent.

Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

Cynthia L. Martin, Judge

Dontarius Marks ("Marks") appeals from the Labor and Industrial Relations Commission's ("Commission") final award denying his claim for workers' compensation benefits. Marks asserts the Commission's denial of benefits was erroneous because: (1) as a matter of law, Marks's injury arose out of and in the course of employment; (2) as a matter of law, Marks was not equally exposed to the risk source of stairs in his non-employment life; and (3) there was not sufficient, competent and substantial evidence to support the finding that Marks was only exposed to the risk source of walking down the stairs at the time of the injury. Finding no error, we affirm.

Factual and Procedural Background

In November 2017, Marks worked for the Missouri Department of Corrections ("Employer") as a Correction Officer I. He was assigned to work at the Fulton Reception and Diagnostic Center. Marks undertook security training that included coursework and defensive tactics training. Marks's job required that he complete security checks once or twice each hour during his shifts. These security checks required him to ascend and descend several staircases.

On November 9, 2017, Marks was descending a staircase while conducting a security check when he mis-stepped and felt his right knee twist. He immediately felt pain in his knee. Marks reported the injury.

On November 13, 2017, Marks completed a questionnaire from the employer about the incident. On the questionnaire, Marks answered that at the time of the injury he was not responding to a code or other emergency situation, he was not distracted, he was not carrying anything at the time, there were no offenders in the area, there was nothing on the floor, and there was nothing wrong with the steps. When asked what may have caused the injury, Marks answered that he "[s]tepped of[f] the step wrong."

Marks filed a timely claim with the Division of Workers' Compensation that sought a medical evaluation of his injured knee, payment of past medical expenses incurred, and temporary total disability ("TTD") payments. During his hearing before

606 S.W.3d 162

an Administrative Law Judge ("ALJ"), Marks testified that he was injured when he became distracted and looked back to check on a coworker who was helping Marks conduct the security check. Marks testified that he was concerned about his coworker's safety and the risk posed by offenders who might have remained in their cells after being released for a meal. Marks confirmed during his testimony that he was required to ascend and descend stairs at the apartment complex where he lived.

The ALJ denied Marks's workers' compensation claim ("ALJ Award"). The ALJ found that "On November 9, 2017, [Marks] was performing a security check. As he descended the stairs, [Marks] mis-stepped off the stair and felt his right knee twist and felt immediate pain in his knee." The ALJ found that "[Marks] is exposed to stairs outside of his employment and in normal non-employment life." Regarding the credibility of Marks's testimony, the ALJ found:

[Marks] testified at length about his security training, about working with an officer he had not worked with before, about looking out for her safety during the security check and about looking back for her when he missed the step. I do not find that claimant's testimony on these matters to be credible or that they had any impact on the accident. [Marks's] testimony is inconsistent with his statements provided almost immediately after the accident. I find that his testimony is a non-credible, post-accident attempt to avoid the requirements of section 287.020.3(2)(b).

The ALJ found that "the accident occurred when [Marks] missed a step and did not arise out of and in the course of employment."

Marks appealed the award to the Commission. The Commission affirmed and adopted the ALJ Award into its final award denying Marks compensation ("Final Award").1 Marks filed this timely appeal.

Standard of Review

In reviewing the Commission's Final Award, our standard of review is controlled by section 287.495.1,2 which provides as relevant:

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 powers;

(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.

Because the Commission affirmed and adopted the findings and conclusions of the ALJ Award, we review the ALJ's findings and conclusions for error. Jefferson City Country Club v. Pace , 500 S.W.3d 305, 311 (Mo. App. W.D. 2016).

"We review the whole record to determine whether there is sufficient and substantial evidence to support the award or if the award is contrary to the overwhelming weight of evidence."

606 S.W.3d 163

Hayes v. Ginger C, LLC , 582 S.W.3d 140, 146 (Mo. App. W.D. 2019). "This court defers to the Commission's factual findings and recognizes that it is the Commission's function to determine credibility of witnesses." Riley v. City of Liberty , 404 S.W.3d 434, 439 (Mo. App. W.D. 2013) (citing Hornbeck v. Spectra Painting, Inc. , 370 S.W.3d 624, 629 (Mo. banc 2012) ). "This Court may not substitute its judgment on the evidence, and when the evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding." Id. "When the relevant facts are not in dispute, the issue of whether an accident arose out of and in the course of employment is a question of law requiring de novo review." Miller v. Missouri Highway and Transp. Com'n , 287 S.W.3d 671, 672 (Mo. banc 2009).


Marks raises three points on appeal. Marks argues in Point One that the Commission erred in finding that Marks did not sustain an injury arising out of and in the course of employment because the Commission failed to consider that Marks was in an unsafe environment when his injury occurred. Marks argues in Point Two that the Commission erred because the Commission did not strictly construe section 287.020.3(2)(b)'s requirement relating to the comparison of risk in Marks's nonemployment life. Marks argues in Point Three that the Commission's finding that Marks was only exposed to the risk source of walking down the stairs at the time of injury is not supported by the sufficient competent and substantial evidence.

Resolution of Marks's Points One and Two on appeal depend first on whether there was sufficient competent and substantial evidence to support the Commission's conclusion that Marks was only exposed to the risk source of walking down the stairs at the time of his injury. Marks challenges this conclusion in Point Three. Because an analysis of all points benefits from an overview of the applicable law relating to section 287.020.3(2)(b), we begin with a discussion of general principles, then proceed to an analysis of Point Three. We then address Points One and Two, collectively.

Section 287.020(2)(b)

Under the Missouri Workers' Compensation Law ("Act") in effect at the time of Marks' injury, section 287.120.1 provides that 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." For an injury to be compensable it must arise "out of and in the course of ... employment pursuant to section 287.020.3(2)." Johme v. St. John's Mercy Healthcare , 366 S.W.3d 504, 509 (Mo. banc 2012). Section 287.020.3(2) provides that:

An injury shall be deemed to arise out of and in the course of the employment only if:


(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.3
606 S.W.3d 164

An injury is deemed to "arise out of and in the course of employment" under section 287.020.3(2)(b) when a claimant shows "a causal connection between the injury at issue and the employee's work activity." Johme , 366 S.W.3d at 510. The Supreme Court has discussed the nature of this "causal connection" in Miller v. Missouri Highway and Transp. Com'n , 287 S.W.3d 671 (Mo. banc 2009) and Johme , 366 S.W.3d at 504.

In Miller , the Commission found that an employee injured his knee while "walking...

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