Edward Gleason, St. v. Treasurer of the State of Missouri-Custodian of The Second Injury Fund

In the
Missouri Court of Appeals
Western District
EDWARD GLEASON, SR., )
)
Appellant, ) WD77607
)
v. ) OPINION FILED: March 3, 2015
)
TREASURER OF THE STATE OF )
MISSOURI - CUSTODIAN OF THE )
SECOND INJURY FUND, )
)
Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division One: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
and Mark D. Pfeiffer, Judge
Edward Gleason, Sr. ("Gleason"), who appears pro se, appeals from the Labor and
Industrial Relations Commission's ("Commission") decision denying his claim for
permanent disability benefits from the Second Injury Fund following Gleason's 20- to 25-
foot fall from the top of a railcar he was inspecting. The Commission concluded that
Gleason's inability to explain why he fell was "fatal to [his] claim," negating, as a matter
of law, his ability to prove that his injuries did not come from a hazard or risk unrelated
to his employment and as to which he was equally exposed in normal nonemployment
life. Because the Commission erroneously declared and applied the law, we reverse and
remand for further proceedings consistent with this opinion.
Factual and Procedural History
Ceva Logistics employed Gleason as a transportation coordinator. Ceva Logistics
works with Ford Motor Company to deliver new vehicles throughout the United States
and Mexico. Gleason worked in a supervisory position over a crew of five to seven
employees. He testified:
We would load [the vehicles] on trains and secure them down . . . . [I]t
could be five railroad cars or ten railroad cars of trains which would
generally be 75, 80 or 100 some new cars . . . . [T]hen I would go up [onto
the railcars] and inspect and make sure everything was right and then we
would ship it off.
Gleason was employed in that capacity from February 2007 to November 2007.
On August 5, 2007, Gleason was walking atop one of the railcars conducting an
inspection when he fell approximately 20 to 25 feet to the ground. Gleason sustained
injuries to his head, neck, right shoulder, clavicle, and ribs. Gleason has no memory of
the circumstances leading up to the fall, the fall itself, or the three days after the fall when
he was hospitalized. Accordingly, Gleason cannot explain why he fell. No one testified
to having seen the fall.
Gleason filed a claim for workers' compensation against Ceva Logistics. Gleason
also asserted that he was entitled to permanent total disability benefits from the Second
Injury Fund.
Ceva Logistics and Gleason entered into a compromise settlement that was
approved by an Administrative Law Judge ("ALJ"). The Stipulation for Compromise
2
Settlement stated that Gleason and Ceva Logistics agreed that "[Gleason], while in the
employment of [Ceva Logistics], sustained an accidental injury/occupational disease
arising out of and in the course of [Gleason's] employment and that an accidental
injury/occupational disease resulted in injury to [Gleason]." Ceva Logistics agreed to pay
Gleason a lump sum of $34,000 in exchange for a release based on a determination that
Gleason sustained a permanent disability of 15 percent at the 232 week level on the right
side, as well as 13 percent body as a whole referable to the cervical region.1 Gleason's
claim against the Second Injury Fund remained pending.
An ALJ held a hearing on Gleason's claim against the Second Injury Fund.
Gleason and the Second Injury Fund entered into various stipulations prior to the hearing
leaving three issues to be determined: (1) "whether [Gleason] sustained an accident
arising out of and in the course and scope of his employment"; (2) "whether [Gleason]
suffered any disability either permanent partial or permanent total"; and (3) "whether the
Second Injury Fund is liable to [Gleason] for any disability compensation."
After considering the evidence presented at the hearing, the ALJ issued its written
decision denying Gleason's claim for benefits from the Second Injury Fund. The ALJ
concluded that Gleason did not meet his burden of proving that he suffered a work injury
on August 5, 2007, in that there was no evidence presented regarding the cause of
Gleason's fall. The ALJ also concluded that Gleason was employable on the open labor
market after his fall from the railcar, and that his inability to find work resulted from a
1
In addition, Ceva Logistics had paid temporary total disability compensation totaling $4,654.10, as well as
medical expenses totaling $85,735.36.
3
worsening cardiac condition and the effects of a stroke that occurred after Gleason's fall
from the railcar.
Gleason filed an application for review with the Commission. The Commission
issued its Final Award Denying Compensation, with one member dissenting. The Final
Award did not incorporate the findings of the ALJ. The majority of the Commission
concluded that because Gleason was unable to explain why he fell, Gleason had not met
his burden to prove that "his injury did not come from a hazard or risk unrelated to his
employment to which workers would be equally exposed outside of and unrelated to
employment in their normal nonemployment lives." Thus, the majority concluded that
Gleason failed to show that his injury arose out of and in the course of his employment
with Ceva Logistics. The Commission did not address whether Gleason would otherwise
have been entitled to benefits from the Second Injury Fund.
Gleason appeals.
Standard of Review
We review the findings of the Commission, not the findings of the ALJ. Smith v.
Capital Region Med. Ctr., 412 S.W.3d 252, 258 (Mo. App. W.D. 2013). We may
modify, reverse, remand for rehearing, or set aside the award of the Commission only if
we determine that the Commission acted without or in excess of its powers, that the
award was procured by fraud, that the facts found by the Commission do not support the
4
award, or that there was not sufficient competent evidence to warrant making the award.
Section 287.495.1.2
"We review the whole record to determine whether there is sufficient competent
and substantial evidence to support the award or if the award is contrary to the
overwhelming weight of the evidence." Smith, 412 S.W.3d at 258. "The Commission is
free to believe or disbelieve any evidence, and we defer to the Commission's credibility
determinations." Id. The Commission's determinations of law, however, are reviewed
independently. Id.
Analysis
Although Gleason's Brief sets forth four points on appeal, the limited argument in
his Brief primarily claims that the Commission erred in concluding that this fall from a
great height while performing the duties of his work did not result in a compensable
injury.3
"'The Second Injury Fund compensates injured workers who are permanently . . .
disabled by a combination of past disabilities and a primary work injury.'" Second Injury
Fund v. Cook, 323 S.W.3d 105, 110 (Mo. App. W.D. 2010) (quoting Concepcion v. Lear
Corp., 173 S.W.3d 368, 371 (Mo. App. W.D. 2005)). "[A] claimant's preexisting
2
All statutory references to Chapter 287 are to the version enacted by the legislature in 2005 unless
otherwise indicated. As Gleason's injury occurred in 2007, his entitlement to workers' compensation benefits is
controlled by the 2005 version of the Workers' Compensation Act in effect at that time.
3
Gleason's Brief suffers several Rule 84.04 deficiencies. However, we are readily able to discern from
Gleason's Brief that his principal claim of error involves the Commission's determination that his inability to explain
why he fell renders his injuries not compensable as a matter of law. The Second Injury Fund plainly understands
this to be Gleason's primary allegation as evidenced by its Brief addressing that very issue. We thus exercise our
discretion to address the merits of Gleason's claim, notwithstanding his technical noncompliance with Rule 84.04.
Emig ex rel. Emig v. Curtis, 117 S.W.3d 174, 177 (Mo. App. W.D. 2003) ("We will not exercise our discretion to
dismiss an appeal for technical deficiency under Rule 84.04 unless the deficiency impedes disposition on the
merits." (internal quotation marks omitted)).
5
disabilities are irrelevant until employer's liability for the last injury is determined."
Lewis v. Second Injury Fund, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014). Here, the
employer, Ceva Logistics, stipulated its liability for Gleason's 2007 injury and, relevant
to this case, stipulated that Gleason's injury arose out of and in the course of Gleason's
employment. The Second Injury Fund did not join in this stipulation, however, and
remained free to litigate the issue conceded by Gleason's employer. Hoven v. Second
Injury Fund, 414 S.W.3d 676, 680 (Mo. App. E.D. 2013) ("The [Second Injury Fund] is
not bound by terms of settlement agreements to which it is not a party. Nor is the
[Second Injury Fund] collaterally estopped by a settlement agreement to which it is not a
party." (citations omitted)). At most, Gleason's settlement with his employer was
evidence that the Commission could consider. Id. Gleason thus remained obligated to
prove all of the essential elements of his workers' compensation claim against the Second
Injury Fund. See Angus v. Second Injury Fund, 328 S.W.3d 294, 299 (Mo. App. W.D.
2010) ("The claimant in a workers' compensation case has the burden to prove all
essential elements of her claim . . . .").
As the employer, Ceva Logistics was responsible to furnish Gleason
"compensation under the provisions of [Chapter 287] for personal injury . . . by accident
. . . arising out of and in the course of the employee's employment." Section 287.120
(emphasis added). "Accident" is statutorily defined as "an unexpected traumatic event or
unusual strain identifiable by time and place of occurrence and producing at the time
objective symptoms of an injury caused by a specific event during a single work shift."
6
Section 287.020.2. The Commission found that Gleason suffered an "accident" when he
fell from the railcar.
However, not every "injury . . . by accident" is compensable. "Injury" is
statutorily defined as "an injury which has arisen out of and in the course of
employment." Section 287.020.3(1). "The express terms of the workers' compensation
statutes as revised in 2005 instruct that section 287.020.3(2) must control any
determination of whether [a claimant's] injury shall be deemed to have arisen out of and
in the course of [his or] her employment." Johme v. St. John's Mercy Healthcare, 366
S.W.3d 504, 509 (Mo. banc 2012). Section 287.020.3(2) provides:4
An injury shall be deemed to arise out of and in the course of the
employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances,
that the accident is the prevailing factor in causing the injury; and
(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.
The Commission found that Gleason's accident was the prevailing factor in
causing his injuries as required by section 287.020.3(2)(a). The Commission concluded,
however, that Gleason did not prove the second factor required by section
287.020.3(2)(b). The Commission concluded as a matter of law that because Gleason
could not explain why he fell, "we do not know what hazards or risks gave rise to
employee's fall, [so that] we cannot determine if those hazards or risks are related or
4
Gleason's accident occurred in 2007 and his claim against the Second Injury Fund was thus plainly
controlled by the 2005 version of the Workers' Compensation Act. Inexplicably, throughout its Brief and during
oral argument, the Second Injury Fund relies on the 2000 version of the Workers' Compensation Act to urge that
Gleason failed to establish his claim. This is plainly incorrect.
7
unrelated to employment and we cannot determine if workers are equally exposed to
those hazards or risks outside of and unrelated to employment in their normal
nonemployment lives."
In reaching this conclusion, the Commission misapplied the law. "For an injury to
be deemed to arise out of an in the course of the employment under section
287.020.3(2)(b), the claimant employee must show a causal connection between the
injury at issue and the employee's work activity." Johme, 366 S.W.3d at 510. As the
Supreme Court noted in Johme, the nature of this "causal connection" was addressed in
Miller v. Missouri Highways & Transportation Commission, 287 S.W.3d 671 (Mo. banc
2009). 366 S.W.3d at 510-11.
In Miller, the Court "considered whether workers' compensation was payable to an
employee who was injured when his knee popped and began to hurt while he was
walking briskly toward a truck containing repair material that was needed for his job."
Johme, 366 S.W.3d at 510 (citing Miller, 287 S.W.3d at 672). In concluding that the
claimant's injury did not arise out of and in the course of employment, Miller explained:
An injury will not be deemed to arise out of employment if it merely
happened to occur while working but work was not a prevailing factor
and the risk involved--here, walking--is one to which the worker would
have been exposed equally in normal non-employment life. The injury
here did not occur because the employee fell due to some condition of his
employment. He does not allege that his injuries were worsened due to
some condition of his employment or due to being in an unsafe location due
to his employment. He was walking on an even road surface when his knee
happened to pop. Nothing about work caused it to do so. The injury
arose during the course of employment, but did not arise out of
employment.
8
. . . [T]he the [sic] injury is not compensable, as there is no causal
connection of the work activity to the injury other than the fact of its
occurrence while at work.
Johme, 366 S.W.3d at 511 (quoting Miller, 287 S.W.3d at 674).
"Miller's focus was not on what the employee was doing when he popped his
knee--he was walking to a truck to obtain materials for his work--but rather focused on
whether the risk source of his injury--walking--was a risk to which he was exposed
equally in his 'normal nonemployment life.'" Id. (emphasis added). "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.'" Id. (emphasis added).
The "causal connection" standard announced in Miller and further addressed in
Johme thus first requires identification of the risk source of a claimant's injury, that is,
identification of the activity that caused the injury, and then requires a comparison of that
risk source or activity to normal nonemployment life. In Miller, the "risk source," that is
to say, the activity that caused the injury, was "walking on an even road surface." 287
S.W.3d at 674. Not surprisingly, Miller concluded that the claimant was not exposed to a
risk that was "due to some condition of his employment"; in other words, the risk source-
-walking on an even road surface--was one to which the claimant would have been
exposed in normal nonemployment life. Id. In Johme, the "risk source," that is to say,
the activity that caused the injury, was "turning and twisting [an] ankle and falling off
[the claimant's] shoe." 366 S.W.3d at 511. Not surprisingly, Johme concluded that "no
9
evidence showed that [the claimant] was not equally exposed to the cause of her injury--
turning, twisting her ankle, or falling off her shoe--while in her workplace . . . than she
would have been when she was outside of her workplace in her 'normal nonemployment
life.'" Id.
Here, the Commission expressly found that Gleason "was atop a railcar
performing an inspection as part of his duties for employer." The Commission expressly
found that Gleason "fell 20-25 feet from the top of the railcar and landed on the ground."
The Commission expressly found that Gleason's fall from this height caused Gleason's
injuries. Plainly, the "risk source," that is the activity which caused Gleason's injuries,
was falling from a railcar 20 to 25 feet above the ground. This is not a risk source to
which Gleason would have been exposed in his "normal nonemployment life."
Borrowing from Johme, "[the Commission's] focus [should] not [have been] on what
[Gleason] was doing when he [suffered his injuries]--he [had fallen from the top of a
railcar where he was conducting an inspection]--but rather [should have been] focused on
whether the risk source of his injury--[falling 20 to 25 feet from the top of a railcar]--was
a risk to which he was exposed equally in his 'normal nonemployment life.'" 366 S.W.3d
at 511. Plainly, there was a causal connection between Gleason's work activity (working
on the top of a railcar) and his injury (injuries incurred after falling 20 to 25 feet from that
work location).
The Commission acknowledged that Gleason satisfied the "causal connection"
standard addressed in Johme. The Commission held:
10
If this were the only judicial guidance regarding how to apply section
287.020.3(2)(b), we would be inclined to agree with the rationale of the
dissenting opinion and find that [Gleason] has shown section
287.020.3(2)(b) is satisfied in this case because [Gleason] has shown a
causal connection between the height at which he was required to
perform his duties and his injury.
(Emphasis added.) Yet, despite controlling Supreme Court precedent on the point, the
Commission opted instead to rely on two intermediate appellate decisions out of our
Southern District for the alleged proposition that section 287.020.3(2)(b) is not
established as a matter of law unless an injured worker cannot explain why he or she fell.
This was legally erroneous.
The Commission relied on Bivins v. St. John's Regional Health Center, 272
S.W.3d 446 (Mo. App. S.D. 2008), and Porter v. RPCS, Inc., 402 S.W.3d 161 (Mo. App.
S.D. 2013). We need not address Bivins. Even presuming its holding is inconsistent with
Miller and Johme, a determination we need not and do not make, Bivins was decided
prior to both Supreme Court cases. It is not controlling.
The Commission's reliance on Porter is equally misplaced. In Porter, a claimant
fell on a bathroom floor at her place of employment. 402 S.W.3d at 164. The claimant
"did not recall how she got on the floor," though she speculated the floor was wet. Id. at
165. The claimant told her grandson that she "went to the restroom and she woke up on
the floor." Id. The evidence established that the bathroom floor was an ordinary tile
floor with no particular hazards that might have caused the claimant to slip or trip. Id. at
166-67. The Commission concluded that the claimant suffered an "accident," but that
"[she] failed to establish as a factual proposition, the risk or hazard that resulted in her
11
fall." Id. at 170. On appeal, the Southern District acknowledged Johme, and noted that
"[i]n order to show a causal connection under Johme, an employee must identify the
cause of the injury." Id. at 172 (emphasis added).
To this point in its discussion, Porter is indistinguishable from Miller. Just as in
Miller, the "risk source," that is the activity that caused Porter's injury, was walking on a
smooth surface. Just as in Miller, while engaged in this "risk source," Porter was injured.
The section 287.020.3(2)(b) inquiry was thus required to turn to whether the "risk
source," that is the activity causing the injury, was one to which the claimant would have
been equally exposed outside of and unrelated to the employment in normal
nonemployment life. It is a matter of common acceptance that the "risk source" of
walking across a smooth surface is a "risk source" a worker is equally exposed to in
normal nonemployment life. Thus, in such cases, where the identified cause of an
accident involves a risk source to which a worker is equally exposed in normal
nonemployment life, unless the worker can establish something about the "risk source"
that differentiates it from the equivalent risk in normal nonemployment life, the worker
will be unable to establish the required causal connection between a work activity and the
injuries sustained. Consistent with this observation, Porter was not entitled to benefits
not merely because she couldn't explain why she fell, but because she fell while engaged
in a risk source encountered in normal nonemployment life. Under that factual
circumstance, because "Porter failed to establish how she fell . . . , [she] therefore, failed
to show that she was exposed to an unusual risk of injury that was not shared by the
general public." Porter, 402 S.W.3d at 174 (emphasis added). The holding in Porter
12
simply recognizes that the hazard or risk of falling when walking on a smooth surface is a
hazard or risk to which workers would have been exposed outside and unrelated to the
employment in normal nonemployment life. 402 S.W.3d at 172-73 (citing Miller, 287
S.W.3d at 673). The Commission erroneously concluded that Porter stands for the
proposition that every unexplained fall in the workplace is not compensable, as a matter
of law, without regard to the risk source related to the fall.5
Gleason's risk source was not walking on a smooth surface at ground level, as was
the case in Miller and Porter. Gleason's risk source was working on a railcar 20 to 25
feet above the ground. Because this risk source is plainly not one to which a worker
would be exposed in normal nonemployment life, Gleason's fall while engaged in the risk
source establishes "a causal connection between [his] injur[ies] at issue and [his] work
activity." Johme, 366 S.W.3d at 510. Borrowing from Miller, Gleason's "injuries were
worsened . . . due to being in an unsafe location due to his employment. He was
[working on the top of a railcar when he happened to fall 20-25 feet]." 287 S.W.3d at
674. In contrast to the outcome in Miller, Gleason fell 20 to 25 feet to the ground
because of his required work activity. Id. It was thus not necessary for Gleason to
establish why he fell because he had already established that he "was exposed to an
unusual risk of injury that was not shared by the general public." Porter, 402 S.W.3d
at 174 (emphasis added).
5
In fact, to read Porter as the Commission does is to attribute to Porter the announcement of a standard for
assessing whether a workplace injury arose out of and in the course of employment that is inconsistent with Johme
and Miller, evidenced by the Commission's acknowledgement that Gleason satisfied the standard set forth in Johme,
but failed to satisfy the standard purportedly set forth in Porter. We are confident that the Southern District had no
intention of disregarding Johme and Miller. A simple reading of Porter reveals its heavy reliance on both Supreme
Court decisions. The only error here is in the Commission's overly broad reading of Porter.
13
The Second Injury Fund argues that unless we require claimants to prove why they
fell, we will be permitting a claimant to recover for injuries resulting from idiopathic
causes. [Respondent's Brief, p. 9] We disagree. Section 287.020.3(3) does indeed
provide that "[a]n injury resulting directly or indirectly from idiopathic causes is not
compensable." However, as we have already noted, a claimant's burden to establish a
compensable injury is limited to establishing that the injury arose out of and in the course
of employment, which requires proof only of the two criteria set forth at section
287.020.3(2)(a) and (b). Johme, 366 S.W.3d at 509. Once these criteria are established,
any claim that an injury is nonetheless not compensable is in the nature of an affirmative
defense. See, e.g., Crumpler v. Wal-Mart Assocs., Inc., 286 S.W.3d 270, 273 (Mo. App.
S.D. 2009) (holding that claimant was aware prior to her hearing of employer's theory of
defense that claimant's injury was idiopathic, rendering it harmless error that the defense
was not pled by the employer); see also Taylor v. Contract Freighters, Inc, Injury No.:
06-104584, 2009 WL 1719443, at *8 (Labor & Indus. Relations Comm'n June 16, 2009)
(holding that the exclusion from category of compensable injuries of an injury resulting
directly or indirectly from idiopathic causes "is in the nature of an affirmative defense to
employer," and that it was not the claimant's burden to prove an injury was not idiopathic,
but instead the employer's burden to prove that it was).6 Here, the Second Injury Fund
6
We recognize that administrative agency decisions are not binding precedent on Missouri courts. State ex
rel. AG Processing, Inc. v. Pub. Serv. Comm'n, 120 S.W.3d 732, 736 (Mo. banc 2003). However, it is also true that
"[t]he interpretation and construction of a statute by an agency charged with its administration is entitled to great
weight." Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197 (Mo. banc 1972). Here, a plain reading of
section 287.020.3 supports the Commission's view that section 287.020.3(3) identifies an exclusion from what
would otherwise be a compensable injury. "An affirmative defense is one that may defeat a plaintiff's cause of
action because of facts which allow the defendant to avoid legal responsibility." Century Fire Sprinklers, Inc. v.
CNA/Transp. Ins. Co., 23 S.W.3d 874, 877 (Mo. App. W.D. 2000). An "exception" or "exclusion" from the
14
neither alleged, nor sought to establish, that Gleason's injuries resulted directly or
indirectly from an idiopathic cause.
Gleason's injuries arose out of and in the course of his employment with Ceva
Logistics. The Commission committed legal error in concluding otherwise.
Gleason's first and second points on appeal are granted.
Conclusion
We reverse and remand this matter to the Commission for further proceedings
consistent with this Opinion.7
__________________________________
Cynthia L. Martin, Judge
All concur
universe of otherwise compensable injuries is plainly an affirmative defense. See, e.g., id. at 877-78 (addressing that
exclusions to coverage in insurance policies are affirmative defenses).
7
The ALJ who heard Gleason's case determined not only that Gleason failed to prove that he incurred an
injury as statutorily defined, but as well that he did not establish that he was permanently disabled by a combination
of past disabilities and a primary work injury as to trigger Second Injury Fund liability. The Commission did not
adopt the findings of the ALJ, and in its Final Award, did not address whether Gleason was permanently disabled by
a combination of past disabilities and a primary work injury as to trigger Second Injury Fund liability. That issue
remains to be addressed and determined by the Commission on remand.
15