Pope v. Gateway to the W. Harley Davidson, ED 98108.

• Court: Court of Appeal of Missouri (US)
• Citation: 404 S.W.3d 315
• Decision Date: 29 November 2012
• Docket Number: No. ED 98108.,ED 98108.
• Parties: Jason POPE, Respondent, v. GATEWAY TO the WEST HARLEY DAVIDSON and Missouri Automobile Dealers Association, Appellants.

404 S.W.3d 315

Jason POPE, Respondent,
v.
GATEWAY TO the WEST HARLEY DAVIDSON and Missouri Automobile Dealers Association, Appellants.

No. ED 98108.

Missouri Court of Appeals,
Eastern District,
Division Four.

Oct. 23, 2012.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Nov. 29, 2012.

Application for Transfer Denied Jan. 29, 2013.

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Susan M. Kelly, Clayton, MO, for Appellants.

Thomas M. Burke, St. Louis, MO, for Respondent.

KURT S. ODENWALD, Judge.
Introduction

Gateway to the West Harley Davidson (“Employer”) and the Missouri Automobile Dealers Association Services Corporation (“Insurer”) appeal from the decision of the Labor and Industrial Relations Commission (“Commission”) awarding workers' compensation benefits to employee Jason Pope (“Pope”). Pope was injured when he fell down a small flight of stairs connecting an upper showroom to a lower showroom at Employer's motorcycle dealership. The fall caused Pope's right ankle to dislocate and fracture. Because Pope was not equally exposed to the risk that caused his injury in his normal non-employment life, the Commission's award was supported by competent and substantial evidence that Pope's injury occurred in the scope and course of his employment. Accordingly, we affirm.

Factual and Procedural History

Jason Pope began working at Employer as an entry-level technician on March 10, 2010. The position required Pope to do whatever his supervisor asked of him, including inspecting motorcycles that had been received as trade, washing motorcycles for customers, test driving motorcycles, and performing routine motorcycle maintenance. Pope was also asked, at the end of the day, to drive motorcycles from the sales lot into both an upper and lower showroom for overnight storage. Pope was required by Employer and by law to wear a helmet while moving the motorcycles.

On the evening of March 17, 2010, Pope was asked to drive the motorcycles into the showrooms for overnight storage. Employer's upper and lower showrooms were separated by a staircase consisting of approximately three to five steps. After moving the last motorcycle into the upper showroom, Pope went to check with his supervisor in the service department to ensure everything was completed satisfactorily before he clocked out for the day. The service department was located near the lower showroom, which required Pope to descend the small staircase between the showrooms. Pope walked down the stairs wearing his work boots and carrying his

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motorcycle helmet. While descending the stairs, Pope lost his footing and fell. Pope was taken by ambulance to St. Anthony's Medical Center, where he underwent surgery for a right ankle fracture and dislocation. A plate and two screws were placed in Pope's ankle. After seven months of treatment and physical therapy, Pope's medical expenses totaled $20,910.82. Pope was unable to work for nine weeks.

Pope filed a claim for workers' compensation with the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation. An administrative law judge (ALJ) denied the claim, finding that Pope did not meet his burden of showing his injury arose out of and in the course of his employment. Pope appealed to the Commission, which reversed the ALJ's decision and awarded Pope benefits. Employer and Insurer appeal the Commission's decision.

Points on Appeal

In their first point on appeal, Employer and Insurer claim the Commission's application of the two-step test used in Pile v. Lake Regional Health System, 321 S.W.3d 463 (Mo.App. S.D.2010), to determine whether Pope's injury arose out of and in the course of employment was in error. During oral argument, Employer and Insurer acknowledged that the Missouri Supreme Court's recent decision in Johme v. St. John's Mercy Healthcare departed from its analysis in Pile, and announced they would not proceed with their point on appeal based upon Pile.¹ In their only remaining point on appeal, Employer and Insurer contend that the Commission's decision that Pope was injured in the course and scope of employment is not supported by substantial and competent evidence because Pope was equally exposed to the risk that caused his injury in his normal, non-employment life.

Standard of Review

This Court determines whether the Commission's decision is “supported by competent and substantial evidence upon the whole record.” Mo. Const. art. V, § 18; Miller v. Mo. Highway & Transp. Comm'n, 287 S.W.3d 671, 672 (Mo. banc 2009). In reviewing the decision, we shall consider 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: the commission acted without or in excess of its powers; the award was procured by fraud; the facts found by the commission do not support the award; or, there was not sufficient competent evidence in the record to warrant the making of the award. Section 287.495.1. ²

Whether the award is supported by competent and substantial evidence or whether it is contrary to the overwhelming weight of the evidence is judged by examining the evidence in the context of the whole record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222–23 (Mo. banc 2003) (citation and footnote omitted). When the relevant facts are not in dispute, the issue of whether an accident arose out

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of and in the course of employment is a question of law requiring de novo review. Cox v. Tyson Foods, Inc., 920 S.W.2d 534, 535 (Mo. banc 1996).

Discussion

The sole issue raised on appeal is whether Pope's injury occurred within the course and scope of his employment. If so, Pope is entitled to receive workers' compensation benefits. If not, Pope is entitled to receive no benefits under the workers' compensation laws. Employer and Insurer argue that Pope was equally exposed to the risk of the injury he suffered at work in his normal, non-employment life, and therefore, under Miller and Johme, Pope's injury did not occur within the course and scope of employment. Pope challenges this assertion. After reviewing the record and considering the totality of the circumstances, we find the record contains competent and substantial evidence that Pope's injury did not come from a hazard or risk unrelated to his employment to which Pope was equally exposed in his normal non-employment life. Accordingly, the record contains competent and substantial evidence to support the Commission's award of workers' compensation benefits to Pope.

In 2005, the Missouri Workers' Compensation Act (“Act”) was amended to require strict construction and to require the evidence to be weighed impartially without giving any party the benefit of the doubt. Miller, 287 S.W.3d at 673. Under the revised Act, an employer “shall be liable, irrespective of negligence, to furnish compensation under the provisions of [the Workers' Compensation Act] for personal injury ... of the employee by accident arising out of and in the course of the employee's employment....” Section 287.120.1.

Section 287.020.3(2) governs whether an injury arises out of and in the course of employment. It 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...