Workers' Compensation

MO: Is falling on the employer’s lot in the morning enough to obtain benefits?

The recent Commission case Lantie Wilson v Buchanan County, Oct. 14, 2011, 2011 Mo WCLR Lexis 206, involved a claimant who fell on the employer's lot reporting to work. The Commission affirmed an award of benefits and concluded that there was no need to even consider if claimant had equal exposure to falling away from work because he was reporting for work and that was a risk "related to employment."

The issue of whether a fall on a parking lot fall is compensable has often addressed if the hazard was a common generic risk (such as black ice) that claimant might encounter in non-employment.  A person who falls on property not owned by the company encounters a risk that anyone could encounter. Hager v Syberg'sWestport, 304 S.W.3d 771 (Mo. App. 2010) (not owned, no benefits). A claimant cannot generally claim disability or medical benefits under worker's comp for going and coming to work. The suggestion in Wilson that leaving work in Hager is somehow not a hazard and going to work is a hazard creates a dubious distinction.   Hager is distinguished whether property is owned or not owned by the employer.  In  Roemisch v Green County, DOLIR 4-14-11, the commission case awarded compensation to a juror who fell while reporting to work in the morning when he slipped on the "employer's" lot.  This hazard analysis applied even if the lot was controlled by the employer. Shearer v Convergys, DOLIR 3-24-10 (leaving work).

The Commission in Wilson abandons that traditional hazard analysis and looks to whether claimant reporting to work was performing a job duty. The case interprets Pile v Lake Regional Health System, 321, S.W.3d 463 (Mo. App. 2010)  which  applies a new standard if claimant performed an integral job duty before deciding to consider any evidence regarding equal exposure. . Whitely v City of Poplar Bluff, No. SD31287 (Mo. App. 10-11-11) loosely applied the "integral" requirement in Pile . Wilson waters down "integral" even more. The implications of Wilson takes employers back to pre-reform standards of cases like Wells v Brown, 33 S.W.3d 190 (Mo. 2000) that positional risk of being on property is all that is required because a claimant would otherwise been on the lot but for reporting to work.

That new standard when to apply the equal exposure test applied by Pile has been called into question by the recent case Johme v St. John's Mercy, ED 96497 (Mo. App. 10-25-11). The conflict may be resolved by a transfer to the Supreme Court. As Missouri temperatures drop and more claimant's fall more often the answer needs to be resolved.

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

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