45-Year Employee Did Not Face Similar Risk in Non-Employment Life
A Missouri appellate court affirmed a decision by the state’s Labor and Industrial Relations Commission that awarded workers’ compensation benefits to a hospital employee who sustained injuries in a fall near an exit of the hospital’s employee parking garage [McDowell v. St. Luke’s Hosp., 2019 Mo. App. LEXIS 538 (Apr. 16, 2019)]. Construing Missouri’s relatively restrictive “arising out of and in the course of employment” standard, which denies benefits if the hazard or risk is one to which the worker would have been “equally exposed outside of and unrelated to the employment in normal nonemployment life” [Mo. Rev. Stat. § 287.020.3], and distinguishing an earlier decision by the state’s Supreme Court, the appellate court agreed with the Commission that the employee’s fall was occasioned by her need to pull and maneuver a two-wheeled cart containing work-related supplies through a congested entryway. She faced no such hazard in her normal, nonemployment life.
On the day of her injury, the employee had worked for the hospital for more than 45 years. Typically, the employee arrived about 15 minutes before her 3:00 p.m. start time, parked on the fourth level of a high-volume parking garage used exclusively by the hospital’s employees, and descended to the ground floor, via an elevator, in order to continue through the north-facing parking garage exit into the hospital. Over time, as the employee aged, she began experiencing difficulties with these arrival practices as she could not walk long distances while carrying work and personal items.
In 2013, the employee had a right hip replacement. After her recovery and return to work, she used a support cane, but had increased difficulty carrying items from her vehicle in the parking garage to her work station within the hospital. Eventually, a supervisor provided the employee with a two-wheeled rolling cart to more easily transport her items [purse, lunch, medications, work schedule, and occasionally other employment-related paperwork].
On July 13, 2016, she followed her usual parking procedure. At the north door of the parking garage, the exit was somewhat congested. As she sought to pull and maneuver her cart through the threshold, the wheel of her rolling cart was caught on the door frame. The employee lost her balance and fell, fracturing her left wrist.
The hospital denied her claim for workers’ compensation benefits. Following a hearing, the ALJ awarded benefits, finding that risk source—pulling a cart of work-related supplies through a congested entryway—was a risk related to the employment and not a risk that the employee likely encountered in her non-work life. The Commission affirmed and the hospital appealed.
Missouri’s Johme Rule
The hospital, citing Johme v. St. John’s Mercy Healthcare, 366 S.W.3d 504 (Mo. banc 2012), contended that the employee’s pull cart was not work-related, that she had been injured while at work, rather than because of her work. Within this website, I discussed the Johme decision here almost seven years ago.
In Johme, the employee injured her ankle after falling off her high-heeled sandal as she made coffee for herself and co-workers in the employer’s break room. The Missouri high court reversed the Commission’s award, holding that an injury was not compensable merely because it was work related or incidental to work. Rather, the injury must be shown to have resulted from a hazard or risk to which the employee would not be equally exposed in normal nonemployment life.
The Johme Court expressly cautioned against focusing the risk source analysis on “whether [the employee’s] activity of making coffee was incidental to her employment” [366 S.W.3d at 511-12]. Instead, it held that the issue was whether the cause of the employee’s injury—turning and twisting her ankle and falling off her shoe——had a causal connection to her work activity other than the fact that it occurred in her office’s kitchen while she was making coffee. In Johme, the Court found that there was no evidence that the employee was not equally exposed to the risk outside her employment.
Appellate Court: Johme is Distinguishable
The appellate court indicated that Johme was clearly distinguishable from the instant case. In sum, the court said there was substantial and sufficient competent evidence to support the Commission’s finding that the employee here was not equally exposed to the cause of her injury outside of her workplace in non-employment life. The employee testified that she only used the cart, which had been provided by a supervisor, when arriving to and departing from work; that when she arrived home from work she carried the items in the rolling cart inside her home and left the rolling cart in her vehicle; and that she exclusively used the north parking garage door because it was the door closest to her destination.
The court added that despite cross-examination regarding the employee’s use of the rolling cart and the location of the injury, the hospital failed to adduce any evidence suggesting that McDowell was exposed to the cause of her injury—pulling a cart of work-related supplies through a congested entryway—in nonemployment life.
I know, I know, every story has two sides, but I have to say that this is the sort of claim that gives some employers and claims adjusters “the bad name they deserve” [a phrase used by one of my “beloved” law professors more than 40 years ago]. On the day of her injury, the employee had been working for the employer more than 45 years. As my mentor, Arthur Larson, would have said, “She was a warrior of the workplace.” One would think her claim would have been given the benefit of the doubt, if it needed that benefit. This claim, however, needed no such benefit of the doubt.
Note also: this isn’t a going and coming rule case. The parking lot was exclusively used by employees. She was proceeding to her work post, using the shortest route possible. She encountered a door opening that was congested with fellow employees. She was pulling a small cart that had been provided to her by her supervisor.
I recognize that under the Johme doctrine, Missouri took a strong legal position against the “positional risk” argument [see Larson’s Workers’ Compensation Law, § 3.05]. Yet, there are a number of post-Johne decisions that should have given the employer some pause in taking its hard line position [e.g., Wilkins v. Piramal Glass United States, Inc., 540 S.W.3d 891 (Mo. Ct. App. 2018); Lincoln Univ. v. Narens, 485 S.W.3d 811 (Mo. Ct. App. 2016); Young v. Boone Elec. Coop., 462 S.W.3d 783 (Mo. Ct. App. 2015)]. Hindsight is, of course, 20/20, and reasonable minds can disagree, but some additional exercise of judgment here by the employer would have saved considerable time and expense.