Work Comp Update: "No Greater Risk" defense
By: J. Bradley Young, Harris Dowell Fisher & Young L.C.
In Jaime Overstreet v. Tamko, the Missouri Labor and Industrial Relations Commission issued an opinion that, if affirmed on appeal, will strengthen the “No Greater Risk” defense to workers compensation claims in Missouri.
The Commission issued the decision on June 8, 2021, and I anticipate this will be appealed to the Court of Appeals. Here, claimant was walking at work, pivoted, and injured his knee as a result of the pivot/turn. Specifically, he planted his foot to turn to his right and reverse direction, heard an audible “pop” in his left knee, and felt a tearing sensation in his left knee.
The Administrative Law Judge found the claim non-compensable, and the Commission upheld this denial and adopted the opinion of the ALJ.
NO GREATER RISK DEFENSE
Under Section 287.020.3(1), an injury that occurs during work is NOT compensable under the Missouri Workers Compensation Act if the injury comes 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.”
Traditionally, this has been applied to situations where an employee is walking in a straight line and suddenly his/her knee gives out. The Missouri Supreme Court found this type of injury non-compensable in Miller v. MHTC, 287 S.W.3d 671 (Mo. 2009).
However, until now, this legal reasoning has not been applied to situations where an employee was walking and then turned or pivoted. The reasoning has always been that the act of turning or pivoting at work was specifically done for a work-related purpose, thereby creating a work-related risk or hazard that is different from merely walking and feeling pain in the knee.
The Commission’s decision explains that under the reasoning of the Missouri Supreme Court in Miller, 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 he would not be equally exposed in normal nonemployment life. The Commission then reached this conclusion:
“Thus the relevant inquiry is whether the claimant proved that the risk of walking and changing directions was a risk related to his employment and not one to which he was equally exposed in his nonemployment life. The employee did not meet this burden of proof and so his claim must fail as not compensable under Chapter 287.”
WHY THIS DECISION IS IMPORTANT
If this award is upheld on appeal, this will significantly broaden the ability of employers/insurers to assert the "No Greater Risk" defense. Since the Miller decision in 2009 and a similar decision in Johme v. St. John’s Mercy Healthcare in 2012, the appellate courts have repeatedly scaled back the application of the "No Greater Risk" defense. This appears to be an attempt to reverse that trend.
If the Court of Appeals and/or the Missouri Supreme Court ultimately uphold this decision, Employers will have far more options to challenge the compensability of cases such as:
Falls on stairs
Injuries occurring while getting in and out of vehicles
Injuries occurring while carrying routine items or items that do not have significant weight
We will keep you updated as this case moves through the appellate process. If you have any questions about this decision, or if you have any claims where the "No Greater Risk" defense may apply, please feel free to call or email Brad Young at firstname.lastname@example.org or (636) 532-0300.