Lincoln University v. Kathy Narens , 485 S.W.3d 811 ( 2016 )

In the
Missouri Court of Appeals
Western District
LINCOLN UNIVERSITY, )
)
Appellant, ) WD79003
)
v. ) OPINION FILED: April 12, 2016
)
KATHY NARENS, )
)
Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division Two: Cynthia L. Martin, Presiding Judge, Mark D. Pfeiffer, Judge and
Karen King Mitchell, Judge
Lincoln University ("Lincoln") appeals the decision of the Labor and Industrial
Relations Commission ("Commission") awarding workers' compensation benefits to its
employee, Kathy Narens ("Narens"), for an ankle injury she suffered after stepping off
the steep edge of a sidewalk while leaving work. Lincoln argues that the Commission
erred (1) by failing to conclude that the risk source of Narens's injury was walking; (2) in
awarding Narens benefits even though her injury occurred after work; and (3) because the
award of benefits was not supported by competent substantial evidence. Finding no
error, we affirm.
Factual and Procedural Background
Narens has been employed full time at Lincoln since 2009. Her normal working
hours are from 7:45 a.m. to 4:45 p.m. At the time of her injury, Narens was an
administrative assistant with an office in the Dawson Annex building on Lincoln's
campus.
On April 11, 2012, Narens left Dawson Annex at the end of her work day and
started walking to her car that was parked in a parking lot on Lincoln's campus. Narens
walked down a ramp and turned right onto a sidewalk that led to the parking lot.
Bumpers from cars parked on the left edge of the sidewalk made the sidewalk narrow.
Narens said students were walking toward her, so she stepped to the right. When she
stepped to the right, her right foot landed on a steep edge of the sidewalk and turned. As
her right ankle turned, Narens overcompensated to her left, fell, and broke her left ankle.
Narens filed a claim for workers' compensation benefits on June 4, 2012.
During a hearing before an Administrative Law Judge ("ALJ"), Narens and
Lincoln each submitted photographs of the sidewalk where Narens's injury occurred. The
photographs depict car bumpers overhanging the left side of the sidewalk, a close up of a
portion of the right side of the sidewalk that shows an edge higher than the ground
adjacent to it, and a worn path along the right edge of the sidewalk. The photographs
also show a blue trash can sitting on a concrete slab along the right side of the sidewalk.
The worn path along the right side of the sidewalk runs before and after the blue trash
can.
2
Narens testified that she stepped on the right edge of the sidewalk just after
passing the blue trash can. Narens also testified that she was walking with her supervisor
in August 2013 on the same sidewalk when the supervisor stepped on the edge of the
sidewalk and fell, injuring her knee.
The ALJ awarded Narens workers' compensation benefits in a written decision
dated March 25, 2015 ("ALJ Award"). The ALJ Award included the factual finding that:
[p]hotos of the location where . . . Narens fell indicate that there is a
difference in the height of the ground between the sidewalk and the grassy
area next to the sidewalk and that the sidewalk is higher than the grassy
area adjacent to it. Moreover, the photos reflect a worn area in the grass
adjacent to the sidewalk where . . . Narens fell, which looks like a path that
has been cleared by frequent use as a walkway alongside the sidewalk.
The ALJ Award found that Narens "sustained an accident arising out of and in the course
of employment when she fell on a crowded sidewalk after stepping down into the grass
and then falling onto her left ankle" and concluded that "[t]here is nothing to suggest that
the cause of the fall was anything other than the condition of the crowded sidewalk and
the lower level adjacent ground which . . . Narens was in effect trying to straddle when
she fell injuring her left ankle."
Lincoln appealed the ALJ Award to the Commission. The Commission affirmed
the ALJ Award in a supplemental opinion dated September 1, 2015 ("Commission
Award"). The supplemental opinion found that Narens's injury "unquestionably
[occurred] in the course of her employment . . . because she was on a premises owned
and controlled by [Lincoln]." The supplemental opinion also found that the "risk or
hazard from which [Narens'] injuries came was traversing the crowded campus sidewalk
3
with its steep drop-off." The Commission thus concluded that Narens's "daily exposure
to this location and this condition of the sidewalk involved an increased risk of suffering
an injury-producing fall . . . to which [Narens] was not equally exposed in her normal
nonemployment life."
Lincoln timely appealed.
Standard of Review
"We . . . review the findings and award of the Commission rather than those of the
ALJ, to the extent that it departs from the ALJ's ruling." Small v. Red Simpson, Inc., WD
78289, 2015 WL 7252997, at *3 (Mo. App. W.D. Nov. 17, 2015). "To the extent that the
Commission affirms and adopts the ALJ's findings and conclusions, we review the ALJ's
findings and conclusions." Id. 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 award, or that there was not sufficient
competent evidence to warrant making the award. Section 287.495.1.1
"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.3d 494, 497 (Mo. App. W.D. 2015) (internal
citation omitted). "This Court defers to the Commission's factual findings and recognizes
1
All statutory references to Chapter 287 are to the version enacted by the legislature in 2005 unless
otherwise indicated.
4
that it is the Commission's function to determine credibility of witnesses." Riley v. City
of Liberty, 404 S.W.3d 434, 439 (Mo. App. W.D. 2013) (quoting Hornbeck v. Spectra
Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012)). "This Court may not substitute its
judgment on the evidence, and when the evidence before an administrative body would
warrant either of two opposed findings, the reviewing court is bound by the
administrative determination, and it is irrelevant that there is supportive evidence for the
contrary finding." Riley, 404 S.W.3d at 439. "The Commission's determinations of law,
however, are reviewed independently." Gleason, 455 S.W.3d at 497.
Point One
In its first point, Lincoln argues that the Commission erred by finding that
Narens's injury arose out of and in the course of her employment because it did not
conduct a proper risk source analysis. Lincoln claims that the proper risk source of
Narens's injury was walking, which renders her injury not compensable because Narens
is equally exposed to the risk of walking outside of work.
Under the Missouri Workers' Compensation Law ("Act"), an employer "shall be
liable, irrespective of negligence, to furnish compensation under the provisions of [the
Act] for personal injury . . . of the employee by accident . . . arising out of and in the
course of the employee's employment." Section 287.120.1.
Section 287.020.3(2) governs whether an injury arises out of and in the course of
employment and provides:
(2) An injury shall be deemed to arise out of and in the course of the
employment only if:
5
(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.
"For an injury to be deemed to arise out of and 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 v. St. John's Mercy
Healthcare, 366 S.W.3d 504, 510 (Mo. banc 2012).
Lincoln limits the argument in its first point on appeal to the application of section
287.020.3(2)(b). Lincoln argues that the Commission erred by determining that "the risk
or hazard from which [Narens'] injuries came was traversing the crowded campus
sidewalk with its steep drop-off," when the risk source of her injury was simply walking.
Lincoln asserts that the Commission's application of section 287.020.3(2)(b) runs afoul of
the holdings in Miller v. Missouri Highway & Transportation Commission, 287 S.W.3d
671 (Mo. banc 2009) and Johme.
In Miller, the Supreme 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 as a road crew worker." Johme, 366 S.W.3d at 510 (citing Miller, 287 S.W.3d at
672). Miller concluded that the employee's injury did not arise out of and in the course of
employment, explaining:
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
6
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 Mr. Miller 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.
[T]he 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.
Miller, 287 S.W.3d at 674 (emphasis added).
In Johme, the Supreme Court considered whether workers' compensation was
payable to an employee who, after making a pot of coffee in an office kitchen, "turned
and twisted her right ankle, which caused her right foot to slip off of her sandal, and . . .
fell onto her right side and then onto her back." Johme, 366 S.W.3d at 507. Johme
addressed Miller, specifically noting:
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.
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 (internal quotations omitted) (emphasis added). Johme
declined to find that the employee suffered a compensable injury, concluding that "no
evidence showed that [the employee] was not equally exposed to the cause of her injury--
turning, twisting her ankle, or falling off her shoe--while in her workplace making coffee
7
than she would have been when she was outside of her workplace in her normal
nonemployment life." Id. at 511 (internal quotation omitted).
Miller and Johme are plainly inapplicable to this case. In stark contrast to both
cases, the Commission found that Narens's injury was the result of an unsafe condition
that Narens was exposed to due to her employment. Nonetheless, Lincoln argues that the
holdings of Miller and Johme stand for the proposition that a reviewing court cannot look
at the particular activity surrounding an injury when determining whether an employee's
injury comes from a hazard or risk unrelated to the employment to which an employee
would have been equally exposed in normal nonemployment life. In other words,
Lincoln asserts that the Commission erred by determining that the risk source of Narens's
injury was walking along the particular campus sidewalk with its steep edge, and instead
should have determined that the risk source of Narens's injury was simply walking.
Lincoln's argument misreads the holdings of Miller and Johme and fails to account for
subsequent cases which have clarified the concept of risk source in connection with the
application of section 287.020.3(2)(b).
In Gleason, we addressed Miller and Johme and clarified that "[t]he 'causal
connection' standard announced in Miller and further addressed in Johme . . . 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." Gleason, 455 S.W.3d at 499 (emphasis in
original). "In Miller, the 'risk source,' that is to say, the activity that caused the injury,
was 'walking on an even road surface.'" Id. (quoting Miller, 287 S.W.3d at 674). "In
8
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.'" Gleason, 455 S.W.3d at 500
(quoting Johme, 366 S.W.3d at 511). Applied to the circumstances before us, we thus
found in Gleason that an employee injured after falling from a railcar was entitled to
benefits because "the 'risk source,' that is the activity which caused Gleason's injuries,
was falling from a railcar 20 to 25 feet above the ground" which was "not a risk source to
which Gleason would have been exposed in his 'normal nonemployment life.'" Id.
Our holding in Gleason is in accord with other cases decided after Miller and
Johme which have similarly applied the concept of risk source to determine whether an
injury is deemed to arise out of and in the course of employment under section
287.020.3(2)(b). See Scholastic, Inc. v. Viley, 452 S.W.3d 680, 687 (Mo. App. W.D.
2014) ("[e]ven assuming arguendo that Viley was equally exposed to the hazard of
slipping and falling on an icy parking lot in his nonemployment life, his injury still arose
out of his employment because there is nothing in the record to support a conclusion that
he was equally exposed to the hazard of slipping on the icy parking lot at that particular
work site in his nonemployment life"); Dorris v. Stoddard County, 436 S.W.3d 586, 592
(Mo. App. S.D. 2014) ("[t]here is no evidence in the record that Claimant had any
exposure to this particular hazard during her nonemployment life and therefore, the
record could not support a conclusion by the Commission that she was equally exposed to
that hazard in her nonemployment life"); Young v. Boone Elec. Coop., 462 S.W.3d 783,
790 (Mo. App. W.D. 2015) (employee's "injury . . . arose out of his employment because
there is nothing in the record to support a conclusion that he was equally exposed to the
9
hazard of slipping on frozen dirt clods at that particular work site in his nonemployment
life"); Missouri Dep't of Soc. Services v. Beem, 478 S.W.3d 461 (Mo. App. W.D. 2015)
(the risk source of employee's injury was slipping on ice in a parking lot controlled by her
employer because her employment "exposed her to that particular hazard"); Wright v.
Treasurer of Missouri as Custodian of Second Injury Fund, ED 102892, 2015 WL
6926992, at *6 (Mo. App. E.D. Nov. 10, 2015) (employee "did not suffer a general injury
from the act of sitting itself . . . but a particular injury because the chair he sat on
collapsed" and "[i]t was this particular chair that carried the risk of collapse").2
We thus reject Lincoln's erroneous construction of Miller and Johme. Neither
Miller nor Johme found that the employee's injuries were not compensable because the
risk source was walking. Rather, each found that the risk source--walking on an even
road surface in Miller, and turning, twisting an ankle, and falling off a shoe in Johme--
were risk sources the employee would have been equally exposed to outside of the
workplace in normal nonemployment life. Miller, 287 S.W.3d at 674; Johme, 366
S.W.3d at 511. Applying the same logic here, though Narens was walking when she was
injured, walking was not the risk source of her injury. Stepping off the steep edge of a
2
Lincoln notes that in Hager v. Syberg's Westport, 304 S.W.3d 771, 775 (Mo. App. E.D. 2010), the Eastern
District did not look at the particular activity that caused an employee's injury when it denied workers' compensation
benefits, concluding that the employee "could have slipped and fallen on an ice-covered parking lot anywhere, and
thus, his injury comes from a hazard or risk unrelated to his employment." Lincoln argues that Hager's approach is
in line with the holdings of Miller and Johme and urges us to adopt that approach here while disregarding the
numerous cases cited above that hold a court should identify the particular activity that causes an employee's injury
when applying section 287.020.3(2)(b). We decline to do so. First, Hager did not address Miller and was decided
before Johme, which itself further clarified what is necessary when conducting the proper risk source analysis under
section 287.020.3(2)(b). Second, the Eastern District moved away from Hager's approach in Wright when it
determined that "[u]nder strict construction, Section 287.020.3(2)(b)'s hazard or risk cannot be identified so
generally." Wright, 2015 WL 6926992, at *6 (internal quotation omitted). In short, we will not disregard the
overwhelming precedent that holds a court should look at the particular activity that caused an employee's injury
when conducting the risk source analysis under section 287.020.3(2)(b).
10
sidewalk was the risk source of her injury. Stated another way, Narens was not injured
because she was walking. She was injured because while walking, she encountered a
steep drop off on the sidewalk--a risk source that she would not have been equally
exposed to outside of the workplace in normal nonemployment life.
Here, the Commission found that "the risk or hazard from which [Narens'] injuries
came was traversing the crowded campus sidewalk with its steep drop-off." The
Commission clearly identified the risk source of Narens's injury by looking at the
particular activity that caused the injury--walking along a sidewalk with its steep edge on
Lincoln's campus--and comparing that particular activity to Narens's normal
nonemployment life in order to determine whether Narens's injury arose out of and in the
course of her employment, all in accordance with Miller, Johme, and the subsequent
cases cited above. The Commission committed no error in reaching the conclusion that
Narens's injury arose out of and in the course of employment pursuant to section
287.020.3(2)(b).
Point one is denied.
Point Two
In its second point, Lincoln argues that the Commission erred by finding that
Narens's injury arose out of and in the course of her employment pursuant to section
287.020.3(2) because the injury did not have a causal connection to a work activity.
Lincoln claims that Narens's injury is not compensable because she was leaving work for
the day and was not doing anything work related when the injury occurred.
11
Before 2005, section 287.020.53 provided that injuries did not arise out of and in
the course of employment unless employees were "engaged in or about the premises
where their duties [were] being performed, or where their services require[d] their
presence as a part of such service." In construing this provision, courts adopted the
"extended premises" or "extension of premises" doctrine "as an exception to the general
rule of noncompensability of injuries occurring on the trip to or from work." Beem, 478
S.W.3d 461. The doctrine provided that an injury sustained while going to or from work
would be compensable if:
(1) the accident that caused the injury occurred on premises that are "owned
or controlled by the employer" or "have been so appropriated by the
employer or so situate[d], designed and used by the employer and his
employees incidental to their work as to make them, for all practical intents
and purposes, a part and parcel of the employer's premises and operation,"
and (2) "that portion of such premises is a part of the customary, expressly
or impliedly approved, permitted, usual and acceptable route or means
employed by workers to get to and depart from their places of labor and is
being used for such purpose at the time of injury."
Viley, 452 S.W.3d at 683 n.3 (quoting Wells v. Brown, 33 S.W.3d 190, 192 (Mo. banc
2000)).
Section 287.020.5 was amended in 2005 to read as follows:
Injuries sustained in company-owned or subsidized automobiles in
accidents that occur while traveling from the employee's home to the
employer's principal place of business or from the employer's principal
place of business to the employee's home are not compensable. The
extension of premises doctrine is abrogated to the extent it extends
liability for accidents that occur on property not owned or controlled
by the employer even if the accident occurs on customary, approved,
permitted, usual or accepted routes used by the employee to get to and
from their place of employment.
3
RSMo 2000.
12
(Emphasis added). Thus, the extension of premises doctrine "is not totally eliminated but
is now limited to situations where the employer owns or controls the area where the
accident occurs." Viley, 452 S.W.3d 684 (emphasis in original). "Because extension of
premises cases involve injuries sustained before or after the actual performance of job
duties, the legislature clearly contemplated and accepted compensability of injuries
sustained as a result of work-related risks even though [an] employee was not engaged in
the performance of job duties at the time (e.g. going to or coming from [an] employer's
worksite)." Beem, 478 S.W.3d 461.
Here, it is undisputed that Narens was on the Lincoln campus for work. It is
undisputed that Narens was leaving work at the end of her regular work day when the
injury occurred. It is undisputed that Lincoln owned and controlled the sidewalk where
Narens was injured. Under the retained extension of premises doctrine, Narens did not
have to prove that she was otherwise engaged in a work-related activity when the injury
occurred because "the legislature clearly contemplated and accepted compensability of
injuries sustained as a result of work-related risks even though [an] employee was not
engaged in the performance of job duties at the time [of the injury]." Id.
Lincoln nonetheless argues that the extension of premises doctrine alone does not
satisfy all of the elements of section 287.020.3(2), and that the mere fact of being on
premises owned or controlled by an employer does not automatically mean that every
injury sustained by an employee arose out of and is in the course of employment. As a
general proposition, we agree. Even if an employee shows that an injury occurred on
13
premises owned or controlled by an employer, the employee still must show that the
injury arose out of and in the course of employment because an accident was the
prevailing factor in causing the injury (section 287.020.3(2)(a)), and that the injury did
not come from a risk or hazard in which the employee would have been equally exposed
to outside of the workplace in normal nonemployment life (section 287.020.3(2)(b)).
Viley illustrates this principle. In Viley, an employee suffered a knee injury when
he slipped and fell in an icy parking lot as he was leaving work. Viley, 452 S.W.3d at
681. We held that the injury arose out of and in the course of employment because the
employer exercised sufficient control over the parking lot where the employee was
injured--satisfying the extended premises doctrine--and because the injury did not come
from a risk or hazard in which the employee was equally exposed to outside of the
workplace in normal nonemployment life--satisfying section 287.020.3(2)(b).4 Id. at
685-87; see also Beem, 478 S.W.3d 461 (employee's injury, which occurred when she
slipped on ice in a parking lot while leaving work on a break, deemed to arise out of and
in the course of employment because the employer controlled the parking lot and the risk
source of the injury was not one in which the employee was equally exposed to outside of
the workplace in normal nonemployment life).5
Narens's circumstances are indistinguishable from those in Viley and Beem. She
was injured leaving work when she encountered a risk source on property that was owned
4
There was no dispute that the accident was the prevailing factor in causing the employee's injury,
satisfying section 287.020.3(2)(a). Id. at 685.
5
There was no dispute that the accident was the prevailing factor in causing the employee's injury,
satisfying section 287.020.3(2)(a). Id. at *4.
14
and controlled by her employer, with no dispute that her accident was the prevailing
factor in causing her injury.
Undaunted, Lincoln cites to Miller, Johme, and Pope v. Gateway to W. Harley
Davidson, 404 S.W.3d 315 (Mo. App. E.D. 2012) for the proposition that an employee
must be performing some type of work activity if the employee is injured while leaving
work in order to receive workers' compensation benefits. Lincoln is mistaken. As we
discussed above, compensability in Miller and Johme hinged on the whether the
employee's injury in each case came from a risk or hazard to which the employee would
have been equally exposed to outside of the workplace in normal nonemployment life,
per section 287.020.3(2)(b), not whether the employee in each case was performing a
work activity at the time of the injury. Miller, 287 S.W.3d at 674; Johme, 366 S.W.3d at
511. "This is why even employees who are specifically performing work duties, as in
Miller, may not ultimately recover." Wright, 2015 WL 6926992, at *4. In Pope, the
Eastern District discussed the employee's work activities when identifying the risk source
of his injury--walking down steps while wearing work boots and carrying a work-related
helmet--and affirmed the Commission's award of benefits not simply because the
employee was performing a work activity, but because the employee was not equally
exposed to the risk source outside of work in normal nonemployment life. Pope, 404
S.W.3d at 321.6 Simply put, Lincoln has not cited any authority for the proposition that
6
Lincoln also cites Bivins v. St. John's Reg'l Health Ctr., 272 S.W.3d 446 (Mo. App. S.D. 2008) and a 2013
decision from the Commission as support for its argument that an employee must be performing work duties in
order to receive workers' compensation benefits. Lincoln's reliance on both decisions is misplaced. Bivins is not
controlling because it was decided before Miller and Johme and does not conduct the required risk source analysis
as required by those cases. If it had, it is likely that the injury would not have satisfied section 287.020.3(2)(b)
15
an employee must be engaged in a work-related activity when injured in order to receive
workers' compensation benefits.
The Commission did not err in rejecting Lincoln's argument that Narens's injury
was not compensable because her injury occurred when she was leaving work.
Point two is denied.
Point Three
In its third point, Lincoln argues that the Commission erred by finding that
Narens's injury arose out of and in the course of employment because the conclusion was
not supported by competent substantial evidence. Lincoln claims that the Commission's
award of workers' compensation benefits was against the overwhelming weight of the
evidence because photographs of the sidewalk where she was injured do not show a
dangerous condition.
In order to bring a "weight of the evidence" challenge a party must "identify (1) a
factual proposition needed to sustain the results; (2) identify evidence supporting that
position; (3) identify contrary evidence, subject to the factfinder's credibility
determinations, explicit or implicit; and (4) prove in light of the whole record that the
supporting evidence is so non-probative that no reasonable mind could believe the
proposition." Riley, 404 S.W.3d at 440 (emphasis in original).
because the employee fell while walking down a hallway while going to clock in and there was no evidence that
there was anything on the floor that caused the fall. Bivins, 272 S.W.3d at 448. In any event, Bivins does not state
that an employee must be engaged in a work-related activity in order to receive workers' compensation benefits. As
for the 2013 Commission decision, it applies the law as it existed before the 2005 amendments. In any case,
"administrative agency decisions are not binding precedent on Missouri courts." Gleason, 455 S.W.3d at 502 n.6.
16
Lincoln identified the factual proposition needed to sustain the Commission
Award as the finding that the sidewalk on which Narens was injured was hazardous.
Lincoln identified support for that proposition as Narens's testimony that she was walking
on Lincoln's sidewalk with its steep edge when she fell trying to avoid a crowd of
students, and Narens's testimony that she saw her supervisor fall on the same sidewalk.7
In identifying contrary evidence, Lincoln highlights discrepancies about whether
the sidewalk was crowded based on Narens's testimony at the ALJ hearing, a campus
report taken after the injury, a police report taken after the injury, and an emergency
room report taken after the injury. Lincoln also highlights the photographs of the
sidewalk that it admitted into evidence during the ALJ hearing.
Finally, Lincoln argues that in light of the whole record, the supporting evidence
of a dangerous condition on the sidewalk is so non-probative as to not support the
Commission's Award. We disagree.
While Narens's testimony, the campus injury report, the police injury report, and
the emergency room injury report did not all describe the sidewalk on which Narens was
injured as crowded, the ALJ nonetheless found that "Narens' testimony was consistent
with the [campus] report of injury, the [emergency room] intake information, and the . . .
Police Report." "[I]t is the [factfinder's] function to determine credibility of witnesses."
Id. at 439. And though Lincoln asserts that the photographs it admitted at the ALJ
7
Lincoln argues Narens's testimony that she witnessed her supervisor fall while walking on the same
sidewalk should be disregarded as irrelevant. Lincoln ignores, however, that Narens's testimony was admitted by
the ALJ over Lincoln's objection and that Lincoln has not challenged that ruling on appeal. "An argument that is not
included within the points relied on is not preserved for appeal." Dep't of Soc. Services v. Peace of Mind Adult Day
Care Ctr., 377 S.W.3d 631, 642 (Mo. App. W.D. 2012).
17
hearing do not show a sidewalk with a steep edge, Lincoln ignores that Narens testified
that photographs of the sidewalk she admitted into evidence accurately represented the
steep drop off on the right side of the sidewalk. The ALJ Award clearly found after
weighing this competing evidence that:
[p]hotos of the location where . . . Narens fell indicate that there is a
difference in the height of the ground between the sidewalk and the grassy
area next to the sidewalk and that the sidewalk is higher than the grassy
area adjacent to it. Moreover, the photos reflect a worn area in the grass
adjacent to the sidewalk where . . . Narens fell, which looks like a path that
has been cleared by frequent use as a walkway alongside the sidewalk.
"This Court may not substitute its judgment on the evidence . . . ." Id. at 439.
The Commission found that "the risk or hazard from which [Narens'] injuries
came was traversing the crowded campus sidewalk with its steep drop-off." Competent
substantial evidence supported this finding. The Commission did not err when it found
that Narens's injury arose out of and in the course of employment because her "work for
[Lincoln] daily exposed her to this increased risk" and "that this is a risk or hazard to
which [Narens] was not equally exposed [to] in her normal nonemployment life."
Point three is denied.
Conclusion
We affirm the Commission Award of workers' compensation benefits.
__________________________________
Cynthia L. Martin, Judge
All concur.
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