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Workers' Compensation

Missouri: Crack In Pavement Found To Be a Work Hazard

Everyone knows stepping on a crack can break your mother’s back.  Can a step on a crack get you comp benefits in Missouri? 

The Court of Appeals affirmed a commission award for benefits in Dorris v Stoddard County, SD 32830 (Jan. 31, 2014), 2014 MO App. Lexis 94 ( 2014 MO App. Lexis 94 (Lexis Advance).  Claimant was on the clock performing her job duties when she crossed between two buildings owned by the employer and tripped and fell on a crack and hurt her shoulder.  The employer refused to provide comp benefits claiming the employee wasn’t really working at the time and she could step on the same sort of cracks away from work. 

The court of appeals indicated that claimant testified about cracks in the pavement, that she had photos of cracks in the pavement, and that she had no idiopathic risks that made her fall sufficient to identify a specific risk or hazard.  The court concluded that poor conditions caused a greater and direct exposure to the specific risk of tripping and in this case there were pictures of “deep” crevices between separate slabs of pavement.  The court deferred to the commission as a finding of fact whether the cause of the accident originated from the crack or from a different source.

The claimant had the burden to prove accident.  The Southern District indicated this can be established by reasonable inference.  The employer offered no forensic crack experts.  This is not the type of risk that required expert opinion to show  a proposition was more likely than not.

The court of appeals indicated that the evidence of a crack was an identifiable hazard which made the case distinguishable from other often-cited cases denying benefits based on equal exposure defenses such as Miller v Mo Highway and Transp Comn, 287 S.W.3d 671 (Mo banc 2009) ( 287 S.W.3d 671 (Mo banc 2009) (Lexis Advance) (knee popped) and Johme v St. John’s Mercy Healthcare, 366 S.W.3d 504 (Mo banc 2012) ( 366 S.W.3d 504 (Mo banc 2012) (Lexis Advance) (losing balance).  An unexplained injury is not compensable merely because an injury occurs at work.  The employer offered no evidence to show lack of equal exposure to the specific risk or hazard present at the time of the accident of losing balance from an irregular surface or not watching where a person steps.  The case suggests when a hazard is identified then the employer carries to burden to present evidence the claimant is equally exposed away from work.  This was the clear message in Pope v Gateway to the West Harley Davidson, 404 S.W.3d 315 (Mo. App. 2012) ( 404 S.W.3d 315 (Mo. App. 2012) (Lexis Advance) that it is the employer’s burden to demonstrate the same non-occupational hazards away from work with the the bizarre constellation of alleged risks in each case. 

An accident  cannot be based entirely on circumstantial evidence.  Porter v RPCS, 402 S.W.3d 161 (Mo. App. 2013) ( 402 S.W.3d 161 (Mo. App. 2013) (Lexis Advance).   Porter failed to prove how she fell and suggested the most likely explanations such as possible wet or slippery surface.  The court declined to apply the doctrine of res ipsa to alleviate a burden of proof on a hazard of fall on the assumption that a claimant who does not ordinary fall would not fall unless a hazard existed.   “Allowing the application of res ipsa loquitor to a workers' compensation claim conflicts with a claimant's statutorily imposed burden to prove that injury arose out of and in the course of employment.” 

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



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