Porter v. RPCS, Inc.

• Decision Date: 26 June 2013
• Docket Number: No. SD 32492.,SD 32492.
• Citation: 402 S.W.3d 161
• Parties: Jackie PORTER, Employee–Appellant, v. RPCS, INC., Employer–Respondent.
• Court: Missouri Court of Appeals

402 S.W.3d 161

Jackie PORTER, Employee–Appellant,

v.RPCS, INC., Employer–Respondent.

No. SD 32492.

Missouri Court of Appeals,

Southern District,

Division One.

June 26, 2013.

Randy Alberhasky, Springfield, MO, for Appellant.

Raymond E. Whiteaker and Brandon C. Potter, Springfield, MO, for Respondent.

WILLIAM W. FRANCIS, JR., J.

Jackie Porter (“Porter”) appeals a unanimous decision by the Labor and Industrial Relations Commission (“Commission”) denying Porter's claim for workers' compensation benefits. We affirm the decision of the Commission.

Factual and Procedural Background

On June 11, 2001, Porter began working for RPCS, Inc. (“RPCS”) ¹, at the corporate office. Her job consisted of sorting coupons while sitting at a desk.

On July 16, 2009, at approximately 4:00 p.m., Porter fell in the bathroom at RPCS. Porter broke her hip as a result of the fall and received emergency medical treatment, followed by rehabilitation. Porter was approximately 83 years of age at the time of her accident.

On December 21, 2009, Porter filed a “Claim for Compensation” alleging she had fallen on a “slippery floor in restroom.” Porter sought additional medical treatment and temporary total disability compensation. Porter also alleged she was entitled to “multiple increases in the award pursuant to RSMo. Sec. 287.120[ ²] [sic] as a result of the employer's failure to obide [sic] by safety laws and regulations and failure to reasonably develop and enforce safety procedures/devices for dangerous conditions known or discoverable to the employer.” On January 8, 2010, RPCS filed its “Answer” denying Porter's claim.

On July 28, 2011, a hearing was held before the Administrative Law Judge (“ALJ”) at the Division of Workers' Compensation(“Division”). Porter testified she had no memory of falling or what caused her to fall. She recalled washing her hands and then waking up on the floor. She did not recall how she got on the floor, “unless the floor was wet.” Porter testified she did not remember looking at the bathroom floor prior to her fall. Porter testified that before her fall, she did not use a walker but used one now.

Porter could not recall having been previously diagnosed with conclave scoliosis, spondylosis, osteoporosis, osteopenia, severe and extensive degenerative disc disease, cardiac dysrhythmia, or atrial fibrillation, and did not recall that it was feasible her fall was the result of “uncontrolled atrial fibrillation.” She did recall having been diagnosed with arthritis, “[m]ostly in my legs.”

No one witnessed Porter's fall, or witnessed water or any other debris or material on the floor that could have caused Porter's fall.

Thomas James (“James”), Porter's grandson, testified on her behalf at the hearing. At the time of his testimony, Porter was 85 years old and in poor health. James had lived off and on with Porter for much of the past 10 years, but consistently since January 2009. He testified that Porter was mentally “sharp as a tack” and physically spry before the accident, she walked a lot, but had always had a bend in her back and poor posture. James testified Porter's memory is “better some days than others[,]” she jumbled or got wrong “daily routine stuff.”

James often drove Porter to and from work, taking her at about 8 a.m. and picking her up at around 4:30 p.m.³ On the date of the accident, James dropped Porter off at work in the morning and was scheduled to pick her up at the end of the day. When he arrived to pick her up that afternoon, he was met by an RPCS employee who told him Porter had fallen. He found Porter slumped on the floor between “an outside door and like a foyer area and to the door that went into the bathroom.” ⁴ Porter was conscious and lucid, but in pain. Porter told James she “went to the restroom and she woke up on the floor.”

James called for an ambulance and as he was holding Porter's hand, he wedged his foot against the outside door, from the hallway into the foyer, to keep it open. He noticed the floor was slick, “like a waxed floor[,]” and he had trouble keeping the door open with his foot. The door was larger and heavier than a typical household door and had a device on the top that put pressure on the door so that it would automatically close. The floor was a hard smooth laminate-type surface in the foyer with tile flooring in the bathroom. James never entered the women's bathroom at RPCS, although he did see about five feet inside the bathroom when the door opened. He did not see any water, oily substance, or debris on the floor when the bathroom door opened.

James testified that Porter did not appear to be wet. He also testified that Porter told him she did not recall how she fell, but was in the bathroom when it happened. James accompanied Porter to the hospital and managed her medical care thereafter.⁵

James never knew Porter to be unsteady when she walked or to need a cane or walker prior to the incident at RPCS, and stated Porter had no history of passing out or losing consciousness prior to her fall. He recalled in recent years Porter had fallen only twice before the accident; once in the ice-covered parking lot when going to work at RPCS, and another time at home when she tripped over a dog bed in the dark and broke her wrist. James testified Porter wore glasses before the accident, but had gone through cataract surgery a month or two before the accident and had been given a new prescription since her eyesight had improved. Porter had not expressed to him any problems with her glasses or vision.

Angie Bolen (“Bolen”) testified by deposition on behalf of RPCS, where she worked as the assistant controller and supervisor to Porter. Bolen had already left for the day at the time of Porter's accident, so she had no first-hand knowledge of any of the events which took place surrounding the accident. However, she was familiar with the bathroom where Porter fell and stated the bathroom floor where Porter fell was made up of one-inch-square tile, an older bathroom tile, and there were no “hazards in this bathroom that might cause someone to trip or fall[.]” As to the “little foyer area” leading into the bathroom, she testified that it was a “smooth transition from the bathroom into the foyer”—no “lip or any sort of bump that someone might trip over[.]” She agreed the two entry doors to the bathroom were made of wood and larger than those you would find in a home, with each having a mechanical arm on the top to close them automatically. Bolen testified that the facility was cleaned by an outside company that came in only at night, and that no one cleaned the bathrooms during the day. However, she recalled seeing a mop bucket and other cleaning supplies in the foyer on occasion if the cleaning crew failed to store them away in the janitorial closet.

Bolen testified that after Porter was involved in an auto accident in 2008, she had a lot of back pain and was “hunched over” more than usual. She testified Porter had always walked a little hunched over, but after the auto accident, she was hunched over to the point that even standing, “she was looking at the floor[.]” Bolen testified that Porter would look down as she walked and had to “arch her neck to look up[.]” Bolen described Porter as “more spry” prior to the auto accident.

Bolen further testified that Porter had more balance issues after the auto accident and that sometimes it would be better and sometimes worse that it “just depend[ed] on the earliness of the day, if she's felt more rested [.]” However, Porter's condition was not so unsteady that Bolen considered it to be unsafe. Bolen stated Porter also had problems with her eyesight, particularly after her cataract surgery. After Porter's surgery, she would misstep or bump into something and would comment, “ ‘Oh, I'm just having a hard time getting used to these glasses.’ ” Bolen testified that Porter might have a misstep, but she never saw Porter fall. She testified Porter would often lean against a desk when she stood.

Bolen stated Porter was just not the same after her auto accident, however, she was still working full time and doing her job adequately when the July 2009 fall occurred. Bolen was not worried Porter would fall at work, and that besides Porter having “some balance issues, [she] wasn't expecting her to fall down. She'd never fallen.” She testified that as a manager for RPCS, had she thought Porter was unsteady to the point of being unsafe, she would not have allowed her to continue to work.

Debbie Blodgett (“Blodgett”), accounting clerk for RPCS, also testified by deposition. Blodgett was working on the day Porter fell. Around 4:10 p.m., she heard Porter cry for help and found her slumped against the wall in the interior foyer just outside the bathroom. Porter was coherent, but in pain. Blodgett asked Porter what had happened and Porter said she had fallen. Porter told her she was in the “bathroom area, had reached out for the stall door, and lost her balance and fell.” When asked how she got into the foyer outside the bathroom, Porter told her she “pushed herself through the door and then hollered for help.”

Blodgett did not observe Porter's clothes as being wet, sticky or oily, nor did she notice any water, sticky substance, or oil substance on the floor. Blodgett did not see anything blocking the bathroom stalls, or anything that would cause someone to trip or fall. She testified that the bathroom floor just “look[ed] like ordinary tile” with no holes that would cause someone to trip and fall.

Blodgett stated Porter never walked in a straight line, and after being shown a surveillance video, indicated that the “zigzagging from right to left” was Porter's normal walk. Blodgett also testified that after Porter's auto accident, she saw changes in Porter's posture, balance and walking, and Porter was always complaining of back pain.

Heather Bonner (“Bonner”), payroll assistant for RPCS, testified by deposition. She testified that she followed...