Workers' Compensation

Chris T. Archer, Esquire

Pre-award interest on past medical expenses can be properly awarded to a claimant as against the Second Injury Fund. Eason v. Treasurer of the State of Missouri, No.74209 (Mo. App. W.D., May 22, 2012), Welsh, J.

Claimant sustained a compensable work related injury in the State of Missouri. Although his Employer was insured for worker’s compensation in another state, his Employer was not insured in the State of Missouri. The Second Injury Fund (SIF) was added as a party to the claim to pay for the medical bills consistent with § 287.220.5, RSMo 2005. The Administrative Law Judge (ALF) found the SIF liable for the past medical expenses but denied request for interest on the past sum due. The commission affirmed.

The court reversed and found the SIF was liable for past interest to be calculated upon the date the SIF was put on notice of the bills when the amended claim was filed. The court found the amended claim was notice and demand for the bills to be paid by the SIF. Consistent with McCormack v. Stewart Enterprises, 956 S.W.2d 310 (Mo App 1997).

Despite the dicta in Pile v. Lake Regional Health System, 321 S.W. 3d 463 (Mo. App. 2010), the “no greater hazard” defense contained in § 287.020, RSMo 2005, requires a claimant to show how or why an accident occurred and identify the “risk source of the injury” came from a risk related to his/her employment. Johme v. St. John’s Mercy Healthcare,  No. 92113 (Mo. banc, May 29, 2012), Russell, J.       

Claimant was a billing representative for the hospital.  She turned and twisted her ankle and fell off her shoe (sandal with 1” heel) in her office’s kitchen while making coffee.  The Administrative Law Judge (ALJ) ruled the claim was not compensable because she was not performing her work duties at the time of the fall.  The ALJ found that “she just fell” and would have been exposed to the same hazard or risk in her normal non-employment life. 

The commission reversed this finding by following Pile v. Lake Regional Health System, 321 S.W. 3d 463 (Mo App 2010), and held the claim compensable on the basis that making coffee was “incidental to and related to her employment”.  It also noted this was consistent with the “personal comfort doctrine” as this activity was of some benefit to the employer.  The Eastern District reversed the commission, focusing on the fact that nothing about her employment as a billing representative created a “risk” of injury or caused the fall and injury. 

The Eastern District Court of Appeals requested transfer of this case to the Supreme Court in order to resolve an apparent inconsistency in how it and the Western District interpreted “arising out of”  and “in the course of the employment,” as defined in § 287.020.3(2)(b), RSMo 2005.  The Western District had applied a 2-step analysis first set out in Pile v. Lake Regional Health Systems. This analysis first required a determination of whether the activity giving rise to the accident and injury was "integral" to the performance of the job.  If there was a clear "nexus" between the work and the injury, the accident was deemed to have arisen out of and in the course of employment.  Only if the risk or hazard was unrelated to the employment would the second step of the analysis apply, which was to determine whether the claimant was equally exposed to this hazard or risk in normal, non-employment life. 

From the opinion in Pile:  “Where the activity giving rise to the accident and injury is integral to the performance of a worker’s job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life.”

The Supreme Court took a slightly different approach in analyzing the “risk of injury” issue.  It held there was no evidence claimant’s injury was caused by a risk related to her employment activity, as opposed to a risk she was equally exposed to in her normal non-employment life.  It noted there was nothing about making coffee that caused the injury.  Therefore, the commission’s focus on whether this activity was integral or incidental to the employment was irrelevant.  Instead, it simply concluded claimant’s turning and falling off of her shoe could have happened anywhere.  Work did not create this risk. The event merely happened at work.  The Supreme Court impliedly but not explicitly overruled Pile or at least this language quoted above discussing "nexus." The court held: "it is not enough that an employee’s injury occurs while doing something related to or incidental to the employee’s work; rather, the employee’s injury is only compensable if it is shown to have resulted from a hazard or risk to which the employee would not be equally exposed  in 'normal non-employment life'."