Missouri: Court Finds No "Equal Exposure" From Carrying Helmet During Fall at Work

Missouri: Court Finds No "Equal Exposure" From Carrying Helmet During Fall at Work

The court of appeals once again revisits the issue when “equal exposure” to the same hazard away from the job limits an employee’s ability to obtain worker’s compensation for an injury on the employer’s property.

Claimant lost his footing on a small staircase on the employer’s premises while carrying a helmet, resulting in a fracture to his ankle. He could not identify a defect or hazard related to the staircase or carrying a helmet that caused him to fall. The court of appeals found the case compensable, and affirmed an award by the Commission. Pope v Gateway to the West Harley Davidson, 2012 Mo. App. Lexis 1335 (Mo. App. ED 2012).

Missouri reform redefined “injury” to exclude injuries which “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 non-employment life.” Subsequently, many employers argued that a claimant failed to establish he did not have an “equal exposure” away from work. For example, in Niemeyer v Kozeny & McCubbin, 2010 Mo. WCLR Lexis 26, the ALJ harshly criticized the employer’s “equal exposure” argument as “ridiculous” that the claimant could have just as easily tripped over an uneven elevator threshold away from the job. The southern district essentially abolished any application of the equal exposure test if the employee established he performed an integral job function (no matter how loosely “integral” was defined), in Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010). The Eastern District rejected the Pile test. Johme v St. Johns Medical Center 2011 Mo. App. Lexis 1412. The Supreme Court addressed the issue and indicated the courts must consider the equal exposure prong. Johme v St. Johns Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012) “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.”

Pope requires the equal exposure test and concluded that Johme put an end to the two-step Pile test. The “Missouri Supreme Court indicated that the two-step Pile test is no longer the appropriate analysis….”

This provides clear support that the Eastern District considers Pile no longer good law, even though the Supreme Court in Johme did not expressly reverse it or adopt the harsh criticism by Judge Romines that the two-part Pile step was unsupported and illogical. The employer in Pope had abandoned its Pile argument after the Johme case was decided.

Pope was walking on an uneven surface and satisfied a work hazard (carrying a helmet) produced the consequence of falling, according to the Commission. The court of appeals deferred to this finding of fact. A claimant must present evidence of a proof a hazard that is a rational consequence of a work injury. Bivins v St. Johns Regional Health, 272 S.W.3d 446 (Mo. App. 2008). Bivins was denied benefits while walking on an even surface and there was conflicting evidence whether anything caused her foot to stick. The Commission has noted that carrying objects while descending a porch makes an employee more prone to mishap or misstep. Humphreys v Fort Zumwalt, 2009 MO WCLR Lexis 35. In both Humphreys and Pope, the Commission found carrying something caused the hazard of an injury, even though both claimants were unable to identify the object caused or contributed to falling. Pope v Gateway to the West Harley Davidson, 2012 Mo WCLR Lexis 15.

The more important aspect of Pope is how the court applied the equal exposure analysis. Pope affirmed an award of benefits because there was no evidence that claimant had equal exposure to the specific facts of carrying a helmet down steps. “The record contains no evidence that Pope normally carried his motorcycle helmet while descending stairs in his normal, non-employment life. Even if Pope were an avid motorcyclist, we will not presume facts not found in the record.” Evidence that claimant carried a helmet and walked on steps away from the job was not enough to show equal exposure without claimant admitting he carried a helmet while walked down steps at the same time.

Pope further appears to depart from Johme v St. Johns Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012) regarding which party has the burden of proof on this issue. Johme denied benefits and treated equal exposure as part of the prima facie case: there was “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 non-employment life." Pope, on the other hand, affirms an award of benefits because the employer did not show equal exposure of the identical factual circumstances of the accident. The very factual intensive analysis in Pope can easily produce absurd results which thwarts any legislative intent to narrow the entitlement to worker’s compensation benefits.

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

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