The Supreme Court of Missouri, in a split decision, construing the state’s version of the “increased-risk” doctrine, on Tuesday (May 29) reversed an award of workers’ compensation benefits to an employee who slipped off her sandal, fell, and injured her pelvis while making coffee in the employer’s office kitchen [Johme v. St. John’s Mercy Healthcare, 2012 Mo. LEXIS 101 (May 29, 2012)]. That the injury occurred while the employee (“Johme”) was “on the clock” during normal office hours and while she was following the office’s custom of making another pot for others since she had taken the last cup did not bring the risk of injury within the compensable range, held the majority of the state high court. Observing that there were no irregularities or hazards on the kitchen’s floor, that the floor was not wet, and that there was no trash or debris on the floor at the time, the majority indicated that Johme’s injuries had come from a hazard or risk unrelated to her employment to which she would have been equally exposed outside of and unrelated to her employment in her normal nonemployment life.
The Basic Workers’ Compensation Coverage Formula
In spite of the obvious differences between and among the states as to the level of benefits paid for workers’ compensation disability benefits, scheduled injuries, and the like, there is general agreement as to the basic coverage formula to be utilized. Indeed, more than four-fifths of the states, as well as the Longshore and Harbor Workers’ Compensation Act, have adopted the entire British Compensation Act formula: injury “arising out of and in the course of employment” [see Larson’s Workers’ Compensation Law, § 3.01]. As noted by Dr. Larson, “[f]ew groups of statutory words in the history of law have had to bear the weight of such a mountain of interpretation as has been heaped upon this slender foundation.”
To ease the task, many courts break the phrase in half, with the “arising out of” portion construed to refer to causal origin, and the “course of employment” portion to the time, place, and circumstances of the accident in relation to the employment. For the most part, this bifurcation does no harm; but it should never be forgotten that the basic concept of compensation coverage is unitary, not dual, and is best expressed in the term “work connection.”
Three Dominant Lines of Interpretation
As to the “arising” half of the formula, there are now three dominant lines of interpretation–the increased-risk, actual-risk, and positional-risk doctrines. While the increased-risk test is the prevalent test in the United States today [Larson, § 3.03], there are a number of states, however, that follow the actual-risk doctrine (very few follow the positional-risk doctrine and usually then only under specific types of cases). Under the actual-risk doctrine, the rule is essentially, “It doesn’t matter that the risk was also common to the public, if in fact it was a risk of this employment.” A number of courts (and Dr. Larson) have stated that the actual-risk doctrine is a more defensible rule, since there is usually no real statutory basis for insisting upon a peculiar or increased risk, as long as the employment subjected claimant to the actual risk that caused the injury.
Missouri’s 2005 Statutory Amendments
In Missouri, however, at least since 2005, there is such a statutory basis for insisting upon an increased risk. Two significant legislative changes occurred that year. First, the Missouri act was revised to provide that its provisions were to be construed strictly and to require that evidence be weighed impartially, without giving any party the benefit of the doubt. [§ 287.800 RSMo]. Gone, therefore, was the thought that the Workers’ Compensation Act should be “liberally construed” so as to effect the statute’s purposes. Second, the state Legislature also amended § 287.020(2) RSMo to read that an injury should 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 unrelated to the employment in normal nonemployment life.
§ 287.020(2) RSMo.
Background of the Johme Case
Johme’s desk was some 30 steps from the office kitchen where the employer provided a coffee station for use by all employees. At the time of her fall, she was wearing sandals with a thick heel and a flat bottom, with a one-inch thick sole. Johme’s fall occurred either as she turned to put the coffee grounds into the trash or as she turned to return to her desk. As noted above, the floor was clear and dry; there was nothing to cause her to stumble or trip. The ALJ accordingly denied her claim, finding that she was not performing work duties at the time of her fall and that she was exposed to the same hazard or risk in her normal non-employment life.
The Labor and Industrial Relations Commission reversed. The Commission found that at the time Johme finished making the coffee, she turned and twisted her right ankle, which caused her right foot to slip off her sandal and that she then fell on her back and right side. The Commission pointed to the “personal comfort doctrine,” which generally provides that workers’ compensation benefits can be available to an employee who is injured when tending to a basic personal need while at work. The Commission acknowledged that the personal comfort doctrine had been called into question after the 2005 amendments, but it found, however, that Johme’s act of making coffee was “incidental to and related to her employment” and that Johme’s “accident was the prevailing factor in causing [her] injury.” Based on those findings, the Commission indicated that it did not need to determine under section 287.020.3(2)(b) whether Johme would have been equally exposed to the hazard or risk that caused her injury during her normal non-employment life.
The Commission’s award was reversed by the state Court of Appeals [see Johme v. St. John’s Mercy Healthcare, 2011 Mo. App. LEXIS 1412 (Oct. 25, 2011)], but on that Court’s own Motion the matter was transferred to the Supreme Court.
The Majority’s Decision
The majority initially indicated that there was no issue regarding whether Johme’s fall was the prevailing factor for her injuries pursuant to section 287.020.3(2)(a). At issue, however, was whether her injury was compensable under the terms of section 287.020.3(2)(b)‘s requirement that an injury compensable in workers’ compensation not be from a “hazard or risk unrelated to the employment to which [she] would have been equally exposed in normal nonemployment life.”
The majority observed that the Court addressed a similar issue of causal connection in Miller v. Missouri Highway & Transportation Commission, 287 S.W.3d 671 (Mo. banc 2009). In Miller, the employee who was injured when his knee popped and began to hurt while he was walking briskly toward a truck containing repair material that was needed for his job as a road crew worker. It was uncontested that the employee was “working” and “he was walking briskly toward the truck containing repair material when he felt a pop and his knee began to hurt.” The employee admitted that his work did not require him to walk in an unusually brisk way, that he normally walked briskly at home and that he did nothing different than usual when walking at work that day. According to the majority, Miller determined that the employee’s injury was not compensable in workers’ compensation because “the uncontested facts show[ed] that [his knee pop] injury occurred at work, in the course of employment, but that it did not arise out of employment.” Id. at 673 (emphasis added by Court).
The majority continued that under Miller, an injury would not be deemed to arise out of employment if it merely happened to occur while working but work was not a prevailing factor and the risk involved–, walking–was one to which the worker would have been exposed equally in normal non-employment life. The majority indicated that the Commission failed to cite Miller in its assessment of Johme’s case; yet Miller’s holding was controlling.
Contrary to the Commission’s considerations, Miller’s focus was not on what the employee was doing when he popped his knee–he was walking to a truck to obtain materials for his work–but rather focused on whether the risk source of his injury–walking–was a risk to which he was exposed equally in his “normal nonemployment life.” The majority added that Miller instructed that it was not enough that an employee’s injury occurred while doing something related to or incidental to the employee’s work; rather, the employee’s injury was only compensable if it was shown to have resulted from a hazard or risk to which the employee would not be equally exposed in “normal nonemployment life.”
The majority continued that in Johme’s case, the Commission erred in focusing its assessment on whether Johme’s activity of making coffee was incidental to her employment. The evidence did not link her act of making coffee as the cause of her injury and fall. Instead, the issue in Johme’s case was whether the cause of her 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. The assessment of Johme’s case necessitated consideration of whether her risk of injury from turning, twisting her ankle, and falling off her shoe was a risk to which she would have been equally exposed in her “normal nonemployment life.” In her case, no evidence showed that she was not equally exposed to the cause of her injury–turning, twisting her ankle, or falling off her shoe–while in her workplace making coffee than she would have been when she was outside of her workplace in her “normal nonemployment life.”
The majority parenthetically observed that any focus in Johme’s case on her testimony that she did not make coffee at home was misplaced. Whether Johme made coffee at home was an irrelevant distraction from the risk that was causally connected to her injury, as her injury was not caused by making coffee. No evidence was presented to show that Johme’s “normal nonemployment life” exposed her to a lesser risk of turning, twisting her ankle, or falling off her shoe as compared to the risk she faced the day she fell in the workplace.
Judge Teitelman dissented, indicating that the plain language of section 287.020.3(2)(b) dictates a two-step analysis. The first step is to determine whether the hazard or risk is related or unrelated to the employment. If the risk is related to employment, the employee is entitled to compensation and the equal exposure analysis does not apply. If, however, the risk is unrelated to employment, the statute requires an analysis of whether the risk is one to which the employee would have been exposed equally in normal nonemployment life.
Judge Teitelman stated that the majority drew a “bright-line distinction” between an injury that merely happens while one is working and an injury that is caused by working. Teitelman found the distinction not convincing when, as in this case, the injury occurred during the performance of a work-related task. The work-related task and the injury were inextricably entwined. The fact that the injury occurred while one was working was, in most cases, the necessary factual predicate for showing that the injury was work-related. The judge concluded:
Under the principal opinion’s analysis, office workers, retail clerks, computer programmers and others in relatively sedentary professions will be barred from obtaining workers’ compensation benefits when they are injured while performing many of their work-related tasks. While the 2005 amendments certainly were drafted to limit worker’s compensation awards, there is nothing in the plain language of section 287.020 that necessitates such a restrictive analysis.