JAMIE E. OVERSTREET v. TAMKO BUILDING PRODUCTS, INC., and ACE AMERICAN INSURANCE COMPANY

JAMIE E. OVERSTREET, )
)
Appellant, )
)
vs. ) No. SD37171
)
TAMKO BUILDING PRODUCTS, INC., )
and ACE AMERICAN INSURANCE )
COMPANY, )
) Filed: January 27, 2022
Respondents. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
AFFIRMED
Jamie E. Overstreet ("Overstreet") appeals the denial of workers' compensation benefits.
The Labor and Industrial Relations Commission ("the Commission") found Overstreet was not
entitled to an award because his injury did not arise out of and in the course of his employment.
Because Overstreet failed to establish that his injury's risk source was related to his employment
and that he was not equally exposed to that risk in non-employment life, the Commission's
decision is affirmed.
Background
Overstreet worked as an asphalt plant operator for TAMKO Building Products, Inc.
("TAMKO"). This position required Overstreet to load trucks and unload railroad cars,
involving significant amounts of walking, going up and down stairs, and crawling under and on
top of railroad cars. On February 12, 2018, Overstreet saw a truck arrive and began walking on
the asphalt path to the load station when he realized he had forgotten his ProxCard.1 He planted
his foot to turn right, turned around to retrieve his card, heard a "pop" and felt tearing in his left
knee.
Overstreet reported the injury, went to the hospital and then was treated by a doctor
whose notes stated Overstreet "was in a hurry and was walking very fast when he suddenly
switched directions."2 The notes from an orthopedic surgeon stated Overstreet was suffering
from a left knee "injury that he sustained at work when he went to change directions quickly. He
planted on the left knee and twisted back the other direction, felt a pop and had an immediate
onset of pain." Later, Overstreet began experiencing pain in his right knee. He was diagnosed
with patellofemoral pain syndrome in both knees plus a left knee medial meniscus tear.
Overstreet sought temporary total disability benefits, permanent partial disability, and
past medical compensation. At the hearing with the administrative law judge ("ALJ"),
Overstreet, his supervisor, and Dr. P. Brent Koprivica ("Dr. Koprivica") testified and medical
records were admitted. In both deposition and hearing testimony, Overstreet stated the area
where he was walking on the date of the injury was not out of the ordinary, not wet, not slick and
the area was lit. He also claimed he was walking "downhill" or "across a decline" or a "slope"
when his knee popped. Overstreet did not indicate the slope was a contributing factor to his
knee popping. Overstreet stated even though there were cracks in the area where he was
walking, he could not be sure if he stepped in a crack or that a crack caused his knee incident.
Overstreet's supervisor testified he had never personally experienced or had any other employee
experience any difficulties with the area where Overstreet's incident took place due to cracks,
holes, or unevenness. He also testified that TAMKO's asphalt lot was typical and similar to
many of the community lots.
1A "ProxCard" is similar to a hotel room key, which an employee swipes for access to a load station.
2Overstreet initially thought he had been walking at a slightly faster than normal pace, but later retracted
and said that he was walking at a normal pace.
2
Finally, Dr. Koprivica opined that Overstreet's "described acute injury on February 12,
2018, where he pivoted and suffered acute injury to his left knee, is felt to represent the direct,
proximate and prevailing factor in the identified acute internal derangement of the left knee[.]"
The ALJ found Overstreet did not prove that he suffered a compensable injury arising
out of and in the course of his employment because his risk source—walking on asphalt and
changing directions—was a risk to which Overstreet was exposed equally outside of
employment. The ALJ denied compensation. In making this determination, the ALJ stated:
Overstreet can cite to no credible or persuasive evidence that the condition of the
asphalt surface or the conditions surrounding his walk were a hazard or risk he
was not equally not [sic] exposed to outside of work. Nothing in [Overstreet's]
testimony or exhibits affirmatively and persuasively proved there was anything
different about his walk and change of direction than any walk and direction
change away from work. And certainly nothing even arguably established that
anything about the walking surface, or surface conditions, were different than
similar non-employment conditions.
The Commission affirmed the ALJ's decision and attached and incorporated it into its decision.
Overstreet appeals.
Standard of Review
We review the Commission's Final Award to determine if it is "supported by competent
and substantial evidence upon the whole record." Mo. Const. art. V, § 18. On appeal, this Court:
may modify, reverse, remand for rehearing, or set aside the award upon any of
the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award; [or]
(4) That there was not sufficient competent evidence in the record to warrant the
making of the award.
§ 287.495.1; Annayeva v. SAB of TSD of City of St. Louis, 597 S.W.3d 196, 198 (Mo. banc
2020).3 "This Court defers to the Commission's factual findings and recognizes that it is the
3 All statutory references are to RSMo (2016).
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Commission's function to determine credibility of witnesses." Hornbeck v. Spectra
Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012). "When the relevant facts are not in
dispute, the issue of whether an accident arose out of and in the course of employment is a
question of law requiring de novo review." Miller v. Missouri Highway & Transp.
Comm'n, 287 S.W.3d 671, 672 (Mo. banc 2009).
Analysis
The issue in this case is whether the facts found by the Commission support its
determination that Overstreet was not entitled to compensation because his injury did not arise
out of and in the course of his employment in that the risk source—walking on asphalt and
changing directions—was a risk to which Overstreet was equally exposed in his non-employment
life. Overstreet argues "the evidence demonstrated multiple work-related risk sources" that
caused his injury, including:
(i) his work duties that unequally exposed him to unique, repetitive stress to his
bilateral knees leading up to the time of the acute injury; (ii) the sloped, hillside
nature of [TAMKO]'s facility where he was injured; (iii) the busy nature of his
work requiring him to think, multi-task, and mentally process information more
quickly than in his normal, nonemployment life; (iv) his work-required protective
gear of steel-toed boots; (v) the specific location where he was injured, which was
a low-lit, cracked, uneven asphalt surface with significant inclines/declines where
multiple objects of various sizes and visibilities had to be navigated along with
moving semi-trucks; and (vi) his work-required ProxCard he sought to retrieve
when he reverse-pivoted and injured his knee.
Overstreet, as claimant, bore the burden of proof to show his injury was compensable
under the Missouri Workers' Compensation Act ("Act"). Annayeva, 597 S.W.3d at 199. For an
injury to be compensable under the Act, it must arise out of and in the course of employment.
See §§ 287.020.3; 287.120.1. An injury is deemed to arise out of and in the course of the
employment only if:
...
(b) It does not 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 nonemployment life.
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§ 287.020.3(2)(b). Under that section, a claimant must show "a causal connection between the
injury at issue and the employee's work activity" in order for an injury to arise out of and in the
course of employment. Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 510 (Mo.
banc 2012).
Overstreet's argument is essentially a claim that the Commission misapplied the law
concerning section 287.020.3(2)(b)'s "causal connection" requirement. The "causal connection"
requirement has been discussed in a number of Supreme Court of Missouri cases beginning in
Miller and most recently in Boothe v. DISH Network, Inc., No. SC 98948, 2021 WL
6057372 (Mo. banc December 21, 2021). In Miller, the claimant was working with a road crew
to repair a section of road when he was walking briskly and felt a pop in his knee, which was
later determined to be a meniscus tear. Miller, 287 S.W.3d at 672. The claimant admitted that
his work did not require him to walk in an unusually brisk way; that he normally walked briskly
at home and did nothing different than usual when walking at work that day; that nothing about
the road surface, his work clothes or the job caused any slip, strain, or unusual movement; and
that he did not fall or otherwise sustain any additional injuries due to the popping. Id. The
Supreme Court affirmed the Commission's denial finding the risk of walking was one to which
the claimant was equally exposed to in non-employment life, thus there was no causal
connection of the work activity to the injury other than the fact it occurred at work. Id. at 674.
Miller's holding was reiterated in Johme:
Miller instructs that it is not enough that an employee's injury occurs while doing
something related to or incidental to the employee's work; rather, the employee's
injury is only compensable if it is shown to have resulted from a hazard or risk to
which the employee would not be equally exposed in "normal nonemployment
life."
Johme, 366 S.W.3d at 511. In Johme, the Supreme Court found the claimant failed to
demonstrate she was not equally exposed to the cause of her injury—turning, twisting her ankle,
or falling off her shoe while making coffee at work—in her normal non-employment life. Id.5
The "causal connection" requirement was revisited again in Annayeva and Schoen v.
Mid-Missouri Mental Health Center, 597 S.W.3d 657 (Mo. banc 2020). In Annayeva,
the claimant was a teacher who slipped in the school and claimed the floor was covered with
particles of dirt, ice, dust, and moisture. 597 S.W.3d at 197, 200. The Commission determined
that the claimant's testimony regarding the condition of the floor was not credible. Id. at 200.
Deferring to the Commission's credibility findings, the Supreme Court held that since there was
no credible evidence that the claimant's walk within the school was any different from other
walks she would have taken in her normal, non-employment life, she failed to demonstrate that
her claim was compensable. Id. at 200.
In Schoen, the claimant was exposed to an insecticide while working for her employer
and was sent for further evaluation at a doctor's office where the claimant was injured after
tripping over the doctor's foot. 597 S.W.3d at 658. The issue in the case was whether the
claimant's injuries from the tripping incident were injuries arising out of the course of her
employment. Id. at 659-60. The Supreme Court, relying on Miller, Johme, and Annayeva,
rejected claimant's argument: "[Claimant] is unable to demonstrate the risk of her accidental
tripping was a risk she would not have been exposed to outside of her employment as required
by section 287.020.3(2)(b)." Schoen, 597 S.W.3d at 661.
Finally, and most recently, our Supreme Court decided Boothe, in which a claimant
who, while en route to an appointment for work, choked on a breakfast sandwich while driving
and was injured in a resulting crash. 2021 WL 6057372 at *1. The Supreme Court found that
the claimant "did not establish that the risk source—eating while driving—was related to his
employment or that he was not equally exposed to that risk in nonemployment life." Id. at *3.
The lesson of this line of cases is clear. It is not enough that a claimant's injury occur at
work or even while engaged in a work-related activity. To show a causal connection between the
injury and work, the risk involved must be one to which the worker would not have been equally
exposed in his non-employment life. Overstreet fails to meet this requirement.
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Overstreet acknowledged that in his normal non-employment life, he often walked and
changed directions. According to Overstreet, the asphalt lot at his work was not dissimilar from
numerous other asphalt lots in his community which had similar surfaces, cracks, unevenness
and slopes. Overstreet's supervisor also testified that the asphalt on which Overstreet's injury
occurred was similar to other asphalt lots.
The only activity that Overstreet identified as causing his injury was walking and turning
on the asphalt lot. He did not offer credible evidence that the conditions under which he
performed that activity—such as wearing steel-toed boots, the low lighting, cracks in the
asphalt—led to or worsened his injury. We defer to the Commission's credibility findings.
Annayeva, 597 S.W.3d at 200. Thus, there was no causal connection between his injury and
his employment other than the injury occurred at work. Overstreet failed to demonstrate that
the injury's risk source—walking on asphalt and turning—was a risk which Overstreet was not
equally exposed to in his normal, nonemployment life. Overstreet failed to show his injury was
compensable under the Act. Overstreet's point is denied.
Conclusion
The Commission did not misapply the law and properly denied workers' compensation
benefits pursuant to section 287.020.3(2)(b). The decision is affirmed.
MARY W. SHEFFIELD, P.J. – OPINION AUTHOR
GARY W. LYNCH, C.J. – CONCURS
DON E. BURRELL, J. – CONCURS
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