Court of Appeals of Missouri, Western District, Second Division
from Labor and Industrial Relations Commission
Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell,
Judge, Anthony Rex Gabbert, Judge
Anthony Rex Gabbert, Judge
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
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."
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.
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.
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.
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."
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."
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."
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.
287.495 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.
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 ...