MO: Supreme Court to Address "Equal Exposure" Defense

When is an accident not compensable because an injured worker was equally exposed to the hazard or risk outside of and unrelated to the employment?  The issue will now go to the Missouri Supreme Court, based on a recent transfer by the Eastern District in Sandy Johme v St. John's Mercy Healthcare, No. ED 96497 (Mo. App. 10-25-11).   The Southern District in Pile v Lake Regional Health Systems, 321 S.W.3d 463 (Mo. App. S.D. 2010) indicated that the arising out of defense was available for employers only  if the claimant did not perform integral job duties and there was no clear nexus between work and the injury.  The Eastern District found the Commission in Johme applied the Pile test which led to erroneous award, and considered the Pile approach is not supported by statute or case law.

Judge Mooney in a concurring opinion concluded that claimant did not have "equal exposure" because claimant's risk of turning and falling out of her sandal was different because she was changing coffee for an "industrial" coffee maker compared to a "home" coffee maker.

The Commission award compensation based on the personal comfort doctrine when Johme twisted her foot and fell.  The court found that strict construction abolished the doctrine.

The Court rejected the employer's argument that claimant failed to establish she "twisted" her ankle, when the supervisor described the accident as a "twist."

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

(Lexis.com subscribers can access the Lexis enhanced version of the Johme v. St. John's Mercy Healthcare, 2011 Mo. App. LEXIS 1412 (Mo. Ct. App. 2011) decision with core terms, case law links, and Shepard's).

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