Missouri: Sleepy Worker Collects Disability for Breaking Her Ankle

The Commission in a 2-1 opinion affirmed an award of disability of more than $82,000 for a worker who fell because of a sleep disorder caused by working long shifts. Riggins v My Camp, 2015 MO WCLR Lexis 47 (May 14, 2015)

An injured worker must show a risk source in order to recover benefits. The employer argued based on Porter v RPCS, 402 S.W.3d 161 (Mo. App. 2013) that a claimant has an obligation to identify a risk source, and since she could not identify how or why she fell she is not entitled to compensation. The Commission in Riggins concluded an expert may establish a risk source even if the claimant has no clue why the accident occurred. The risk source must be something more than what someone encounters in normal non-employment life, such as falling off of rail cars. Gleason v Treasurer of State of Mo, 455 S.W.3d 494 (Mo. App. 2015).

The idea of a non-physical risk source isn't exactly new ground. Missouri recognized working too many hours as a hazard since Snowbarger v Tri County, 793 S.W.2d 348 (Mo. 1990). In Snowbarger the claimant had worked extensive hours (86 out of 100.5), performed strenuous labor, and on his way home fell asleep and collided with another vehicle. Riggins had worked 17.5 hours from March 14-15, took a 6.5 hour break, and was injured about 12 hours into her next 17.5 hour shift. She had routinely worked 12 hour shifts in the past.

Claimant in March 2011 apparently drifted asleep in the middle of the night after giving a resident some medication, and without explanation found herself on the floor around 3 a.m. with a broken ankle. Claimant reports she had put a resident to bed at 8 p.m, she gave medication at midnight, and in the next 3 hours she performed some house cleaning and watched television. In the middle of the night she collapsed and was diagnosed with multiple fractures of her ankle as a result of falling. The only thing she states that she remembers is that she was going to get a cigarette to go outside and smoke.

A sleep medicine specialist concluded that a shift work disorder and circadian misalignment syndrome contributed to her syncope and loss of consciousness. He concluded she fell asleep and that's why she fell. An employer's expert concluded the claimant could have been deprived of sleep but disagreed on the precise diagnosis.

The ALJ concluded claimant worked "extremely long over night shifts" with inadequate rest intervals which created a work risk that was the most likely explanation for claimant's fall. She had a 6.5 hour interval after her previous shift. The employer offered no persuasive evidence to support its assertion the fall arose from an idiopathic condition such as hypotension.

This is a very a clever premise that if work makes you tired, then being clumsy gets you compensation. Factually there is no physical hazard at all, much like Miller v MO Highway Transportation Com’n, 287 S.W.3d 671 (Mo. 2009). There is no identifiable physical risk at all. This is a level surface fall, unlike Gleason. There is not even immobility causing a leg to "fall asleep" and an increased risk to stumble as in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999). There is no associated hazard operating a car while tired.

The dissent found the expert testimony not persuasive. Many first responders, health care workers and even home health care aids work shifts longer than 8 hours. Even lawyers once in a while bring work home. Claimant’s capacity to work 12 hour shifts in the past suggests more that she has acclimated to that routine more than she has progressed into a sleep disorder disease. This is not a case of over-stimulation such as Snowbarger. This may in the end not really be a case about long shifts but a case about boredom. The work activity is inactivity. The only activity appears to be to stay awake until it is time for the next pill or the time to leave.

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

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