March 01, 2010

Claimant’s Accident did not Arise out of and in the Course of Employment

March 01, 2010

Colleen Davis v. Frozen Treats, Inc. No. 07 080628

Colleen Davis, a minor, was employed at an ice cream store, Frozen Treats.  On August 3, 2007, while cleaning the store at the close of the day, she squatted to pick up trash and place it into the waste can when her right knee gave way.  She testified that she heard a pop, felt pain, and was unable to stand up; she was stuck in a squatting position until her supervisor and other co‑workers assisted her into a chair.  She saw Dr. Anderson who diagnosed torn cartilage and performed surgery to repair a “bucket handle” tear of the lateral meniscus.

The histories contained in the medical records indicate Colleen presented with knee pain resulting from her knee giving out while squatting down to pick up trash.  At the hearing, she testified that she squatted down to pick up trash and then pivoted to place the trash into the waste can.  In a recorded statement, she reported that she squatted down to pick up trash from the floor and when arising felt pain in her right knee.

Administrative Law Judge Carlisle found that Colleen failed to prove the accident arose out of and in the course of her employment.  Judge Carlisle found that she was exposed equally to the risks associated with squatting outside of work, citing a previous case, Miller v. Missouri Highway Transportation Commission, 287 S.W.3d 671, 672 (Mo Banc 2009), where compensation was denied when the claimant testified that his work did not require him to walk briskly, that he normally walked briskly at home, and that he walked in his usual manner on the day his knee popped.  The claimant inMiller did not sustain an injury to his knee resulting from a slip, strain or unusual movement associated with the ground but rather while merely walking briskly at work.

Judge Carlisle found claimant’s testimony was credible in that she squatted to pick up trash.  But she noted there was no evidence that claimant’s knee problems were caused by employment conditions: work conditions were not unsafe, the floor was level, there was no substance on the floor, and Colleen did not claim that she fell, slipped, tripped, or squatted on an object lying on the floor.

Further, Judge Carlisle found claimant’s testimony not credible when she stated she “squatted and pivoted.”  The medical records did not contain a history of “squatting and pivoting”; the first mention of “squatting and pivoting” was her testimony more than two years after the accident.

This award will become final on March 18, 2010, if no appeal is filed.  However, it is anticipated that claimant will file an appeal with the Commission.

Editor’s Note:  This case illustrates the proposition that not all accidents that happen at work are compensable.  In order to be compensable, the injury must not only occur “in the course of” employment, but also “arise out of” the employment.  There must be a work‑related risk to which an employee is exposed which is a causative factor in the injury.  Here, the Administrative Law Judge found that there was no such work‑related risk operating as a cause of the injury.  We will monitor this decision on appeal.