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Conagra Foods, Inc. v. Phillips

Court of Appeals of Missouri, Western District, Second Division

September 5, 2017

JON PHILLIPS, Respondent.

         Appeal from Labor and Industrial Relations Commission

          Before Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge, Anthony Rex Gabbert, Judge

          Anthony Rex Gabbert, Judge

         ConAgra Foods, Inc. (ConAgra) appeals the final award of the Labor and Industrial Relations Commission (Commission) granting Jon Phillips permanent partial disability benefits, temporary total disability benefits, and medical expenses for a 2013 injury that was sustained while Phillips was at work. ConAgra asserts two points on appeal. ConAgra contends that the Commission erred in finding that Phillips sustained an injury arising out of and in the course of his employment because the competent and substantial evidence showed that the injury resulted from non-compensatory idiopathic causes. ConAgra further contends that the Commission erred in finding that Phillips sustained an injury arising out of and in the course of his employment by concluding that the source of Phillips's injury was a workplace ramp because workers would have been equally exposed in nonemployment life to conditions such as the ramp from which Phillips fell. We affirm.

         The Commission's Findings of Fact, which are not disputed by ConAgra, are as follows: Phillips worked as a forklift driver for ConAgra and its predecessors for almost thirty-two years prior to October 14, 2013, when he sustained an injury after falling off of a shallow graded ramp while entering ConAgra's break room. The ramp had no safety rail. The day after Phillips's fall, ConAgra ordered the installation of a hand rail, "to prevent Team Members from Falling/slipping off the graded drop off."

         A Grundy County ambulance report states that, upon arrival at the site of the injury, "According to witnesses and pt., his leg gave out and pt. fell to concrete floor landing on left hip area. Pt. stated same leg had been broken in 4 places before …." The ambulance transported Phillips to Wright Memorial Hospital where he was seen by Dr. James Dickie approximately one hour after the fall. Dr. Dicke's report states: "FALL. LEFT HIP INJURY … Occurred at work. (leg gave out on him causing him to fall). The patient complains of severe pain." An x-ray showed that Phillips had fractured his left hip. Emergency medical technicians gave Phillips morphine and then transferred him to Liberty Hospital where he had surgery to repair his left hip the same day.

         Three weeks after sustaining the injury, Phillips filed a Claim for Compensation with the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation, stating that while in the course and scope of employment, he "slipped and fell from an inclined ramp, " injuring his left hip.

          Dr. Truett L. Swain examined Phillips approximately four months after the fall at the request of Phillips's attorney. Dr. Swain's report states, in pertinent part:

He [employee] . . . was stepping off of a ramp to go to the [break room] vending machine and unexpectedly fell. The ramp had no rail. He estimates his step-off was approximately 4-5 inches. He does not know why he fell.

          On May 6, 2015, Dr. P. Brent Koprivica examined Phillips at the request of ConAgra's attorney. Dr. Koprivica's report states, in pertinent part:

Mr. Phillips . . . was stepping down about 4 to 5 inches from the angled ramp that goes up to the break room. As he was stepping down to a level area where the vending machines are placed, he believes he caught his heel on his left boot on the edge of the ramp causing him to fall. He fell directly on his left hip and left leg in the fall.

Dr. Koprivaca explored idiopathic causes of the injury when he examined Phillips. Koprivaca considered idiopathic to mean "not arising out of and during the course of his employment as being the precipitating event" for which Phillips "would have been at that same risk if he had been at work or away from work." Based on the history provided by Phillips, Koprivica concluded that Phillips's October 14, 2013, injury was work-related and not idiopathic in nature. Koprivica considered Phillips to be "a very straight forward person, and when I asked him a question, he answered it; and I didn't think there was any evasiveness on his part. I mean, I thought he was an honest person…. That was my perception."

         Phillips testified at the hearing on his case. He stated that, in compliance with ConAgra's rule, he wore steel-toed shoes with heavy waffled rubber soles to work the day of the injury. At approximately 9:00 a.m. on October 13, 2013, he "started up the ramp … to get a snack … and I turned to come off of that ramp and caught my heel on it. And the next thing I knew I was laying on the floor and laying back against the vending machines." Phillips testified "I don't remember how I fell, except my heel, I believe, caught on that ramp." Later he testified, "I'm not really sure, but I think my heel caught." He testified that he was "pretty sure" his left foot caught on the ramp. The area of the ramp Phillips fell from was about five inches high. The ramp had yellow paint with a rough, bumpy texture that "had wore down some."

         Phillips had no recollection of any conversations with ambulance personnel on the date of the injury. He testified that he told Dr. Swain on February 24, 2014, he did not know why he fell. Phillips did not remember talking to Dr. Koprivica about why he fell. Phillips believed he told Dr. Koprivica that he "didn't know how I fell." Phillips also testified he thought it was possible that he told Dr. Koprivica "I don't know how I fell, except that I caught my heel on that boot on that ramp."

         Phillips sustained an injury to his left knee while working on a farm in 1991, breaking his knee in four places. He had surgery to repair his knee and subsequently felt pain in his left knee with weather changes but testified that "it didn't bother me too much." Prior to the October 4, 2013, injury, Phillips's left knee had never buckled causing him to fall.

         Section 287.495[1] requires that we affirm the Commission's decision unless the Commission acted in excess of its powers, the award was procured by fraud, the facts do not support the award, or insufficient competent evidence exists in the record to warrant the making of the award. We give no deference to the Commission's interpretation and application of the law and review the same de novo. Pierson v. Treasurer of State, 126 S.W.3d 386, 387 (Mo. banc 2004). We review the findings of the Commission and not those of the Administrative Law Judge. Johnson Controls, Inc. v. Trimmer, 466 S.W.3d 585, 590 n.5 (Mo. App. 2015). "However, where the Commission's award attaches and incorporates the ALJ's award and decision, … we consider the findings and conclusions of the Commission as including the ALJ's award." Id. '"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."' Gleason v. Treasurer of State of Missouri-Custodian of Second Injury Fund, 455 S.W.494, 497 (Mo. App. 2015) (quoting Smith v. Capital Region Med. Ctr., 412 S.W.3d 252, 258 (Mo. App. 2013)). '"The Commission is free to believe or disbelieve any evidence, and we defer to the Commission's credibility determinations."' Id.

         Any claim that an injury is non-compensable because it had an idiopathic cause is in the nature of an affirmative defense. Gleason, 455 S.W.3d at 502. Contrary to ConAgra's assertion on appeal, ConAgra had the burden of proving an idiopathic cause as Section 287.020.3(3) allows an idiopathic cause to be presented as an affirmative defense. See Id. at n.6. Section 287.020.3(3) states that "An injury resulting directly or indirectly from idiopathic causes is not compensable." Hence, even in cases where there may be a "risk source" at the place of employment, if the cause of the injury is directly or indirectly idiopathic and not caused by the risk source, there can be no ...

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