            SUPREME COURT OF MISSOURI
                                        en banc
LUCILLE SCHOEN,                                )       Opinion issued April 14, 2020
                                               )
                           Appellant,          )
                                               )
v.                                             )      No. SC98168
                                               )
MID-MISSOURI MENTAL                            )
HEALTH CENTER,                                 )
                                               )
and                                            )
                                               )
TREASURER OF THE STATE OF                      )
MISSOURI – CUSTODIAN OF THE                    )
SECOND INJURY FUND,                            )
                                               )
                           Respondents.        )

                  APPEAL FROM THE MISSOURI LABOR AND
                   INDUSTRIAL RELATIONS COMMISSION

      Lucille Schoen (hereinafter, “Employee”) appeals from the Labor and Industrial

Relations Commission’s (hereinafter, “the Commission”) decision denying her workers’

compensation benefits because she failed to prove her work injury was the prevailing or

primary factor causing any permanent disability. Employee also claims the

Commission’s finding denying her claim against the Second Injury Fund (hereinafter,

“Fund”) as moot was erroneous. Employee asserts the Commission misapplied the law
and its award was contrary to the evidence presented. The Commission’s decision is

affirmed. 1

                         Procedural and Factual Background

       On May 8, 2009, Employee was exposed to cypermethrin, an insecticide, while

working as a charge nurse at Mid-Missouri Mental Health Center (hereinafter,

“Employer”). Employee complained of throat and eye irritation; she also began coughing

and wheezing. Employer sent her to the emergency room on May 11, 2009. Employee

was prescribed medication and returned to work without any limitations.

       Employee continued to complain, and Employer sent her to Dr. Eddie Runde

(hereinafter, “Dr. Runde”) for further evaluation. While at Dr. Runde’s office, another

patient had a dog in the office. Employee was being escorted for pulmonary function

testing when the dog got loose. Dr. Runde attempted to divert the dog from Employee’s

path, but he accidently tripped Employee. Employee fell and claimed she sustained

permanent injuries to her knees, lower back, hip, and neck.

       After falling, Dr. Runde completed Employee’s evaluation and released her to

regular work duty without restrictions. Dr. Runde also opined he expected no permanent

disability due to Employee’s exposure to cypermethrin.

       On June 10, 2009, Employee was evaluated by Dr. Lawrence Lampton

(hereinafter, “Dr. Lampton”) for her respiratory symptoms. Dr. Lampton concluded

Employee’s respiration issues were likely related to allergies or possibly asthma.


1
 This Court has jurisdiction under article V, section 10, of the Missouri Constitution
because it granted transfer after opinion by the court of appeals.
                                             2
Following a pulmonary functions test, Dr. Lampton determined Employee was within

normal limits.

       Employer requested Employee obtain an independent medical examination by

Dr. Thomas Hyers (hereinafter, “Dr. Hyers”). Dr. Hyers assessed Employee had

transient bronchitis and upper airway irritation. He opined these conditions were not

chronic or permanent. Dr. Hyers also assured Employee she would not develop chronic

asthma as a result of her cypermethrin exposure. Dr. Hyers placed Employee at

maximum medical improvement and assessed no permanent disability.

       Employee underwent additional treatment due to her alleged injuries sustained

after being tripped accidently in Dr. Runde’s office. 2 Employee requested Dr. David T.

Volarich (hereinafter, “Dr. Volarich”) evaluate her. Dr. Volarich took Employee’s

history, reviewed her medical records, and performed a physical evaluation. Dr. Volarich

diagnosed Employee with upper airway and pulmonary irritation with a residual non-

productive cough. He determined based upon the cypermethrin exposure, Employee had

a five percent permanent partial disability rating of the body as a whole. Dr. Volarich

provided additional diagnoses and ratings connected to her accidental tripping at

Dr. Runde’s office.

       Employee sought workers’ compensation benefits for her exposure to

cypermethrin. Employee then filed an amended claim for workers’ compensation,



2
  The issue in this appeal is whether Employee’s accidental tripping arose out of and in
the course of her employment. Accordingly, there is no need to engage in a recitation of
Employee’s alleged injuries resulting from being tripped.
                                             3
asserting, in addition to cypermethrin exposure, Employee sustained injuries from being

tripped while walking out of Dr. Runde’s office after an examination.

       An administrative law judge (hereinafter, “ALJ”) awarded Employee benefits for

her exposure to cypermethrin and her injuries from being tripped accidently at

Dr. Runde’s office because it was the “natural and probable consequence of” the

cypermethrin exposure. Employer appealed this decision to the Commission.

       The Commission reversed the ALJ’s decision and award. The Commission found

Employee failed to meet her burden of proving her cypermethrin exposure was the

prevailing or primary factor in causing any alleged injury from being tripped accidently

at Dr. Runde’s office. Employee appeals the Commission’s decision regarding the denial

of benefits for injuries arising from being tripped accidentally.

                                   Standard of Review

       “This Court may modify, reverse, remand, or set aside the Commission’s decision

only when: (1) the Commission acted ultra vires; (2) the decision was procured

fraudulently; (3) the facts found by the Commission do not support the award; (4) there

was not sufficient competent evidence to support the award.” Mantia v. Mo. Dep’t of

Transp., 529 S.W.3d 804, 808 (Mo. banc 2017); section 287.495.1. 3 The whole record

must be examined to determine whether there is sufficient and competent evidence to

support the Commission’s decision. Hampton v. Big Boy Steel Erection, 121 S.W.3d




3
 This statutory reference is to RSMo 2000. All other statutory references are to RSMo
Supp. 2008.
                                              4
220, 222-23 (Mo. banc 2003). Questions of law are reviewed de novo. Cosby v.

Treasurer of State, 579 S.W.3d 202, 206 (Mo. banc 2019).

                                         Analysis

       Employee challenges the Commission’s denial of compensation benefits for

injuries she sustained after being tripped accidently at Dr. Runde’s office. 4 Employee

believes she presented sufficient causation demonstrating any injury from being

accidently tripped arose from her employment. Employee also contests the

Commission’s denial of Fund compensation as moot.

       Missouri’s Workers’ Compensation Law (hereinafter, “the Act”) provides an

injury “by accident is compensable only if the accident was the prevailing factor in

causing both the medical condition and disability.” Section 287.020.3(1). An injury

must arise “out of and in the course of employment.” Id.

       An injury shall be deemed to arise out of and in the course of employment
       only if:

              (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.




4
 Employee does not challenge the denial of benefits related to her cypermethrin
exposure.
                                             5
Section 287.020.3(2)(a)-(b). A claimant has the burden of demonstrating a causal

connection between the injury and the work activity. Johme v. St. John’s Mercy

Healthcare, 366 S.W.3d 504, 509-10 (Mo. banc 2012).

       Employee argues her accidental tripping injuries were the “natural and legitimate

consequent” of her cypermethrin exposure. Employee claims this Court should

implement a broader application of the natural consequences doctrine to allow her to

recover workers’ compensation benefits for her alleged injuries following her accidental

tripping.

       However, Employee fails to acknowledge the Act’s 2005 amendment, which

provided the Act’s “provisions are to be construed strictly and to require the evidence to

be weighed impartially without giving any party the benefit of the doubt.” Miller v. Mo.

Highway & Transp. Comm’n, 287 S.W.3d 671, 673 (Mo. banc 2009); section 287.800.1.

“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, 366 S.W.3d at 510

(emphasis added). “An injury is not compensable because work was a triggering or

precipitating factor.” Section 287.020.2.

       Employee argues that but for her cypermethrin exposure she would not have been

in Dr. Runde’s office and would not have been tripped accidently. Hence, Employee

asserts her accidental trip was a “natural and legitimate consequence” of her employment.

       Employee’s risk of being tripped accidently is a risk she equally is exposed to

outside of her employment. Any of Employee’s injuries stemming from the accidental

                                             6
tripping did not occur because of a condition of her employment. See, e.g., Annayeva v.

SAB of the TSD of the City of St. Louis, No. SC98122, __ S.W.3d __, *8 (Mo. banc

March 17, 2020) (finding a teacher who slipped in the hallway of the school where she

taught was not entitled to workers’ compensation benefits because she was unable to

prove a causal connection with her employment); Johme, 366 S.W.3d at 510 (finding no

compensable injury for an employee who was making coffee at work when she twisted

her ankle because her injury did not arise out of her employment in that she was exposed

equally to the chance of twisting her ankle outside of work); Miller, 287 S.W.3d at 674

(finding no compensable injury because, while the claimant’s injury occurred at work,

walking was equally a risk of non-employment and there was “no causal connection of

the work activity to the injury other than the fact of its occurrence while at work”). 5

       Employee’s assertion of simple but-for causation is not sufficient to demonstrate a

causal connection with her work. For her injury to arise out of and in the course of her

employment, Employee must demonstrate the accident is a prevailing factor of the injury

and is not a risk that the claimant would have been exposed outside of and unrelated to

the employment. Section 287.020.3(2)(a)-(b). Employee is unable to demonstrate the

risk of her accidental tripping was a risk she would not have been exposed to outside of

her employment as required by section 287.020.3(2)(b). It is not enough for an injury to

occur while an employee is doing something related to or incidental to work. Employee


5
  Further, in Annayeva, Johme, and Miller, each claimant’s injury occurred while the
claimant was at work and each was denied compensation because the injury did not arise
out of and in the course of employment. Employee’s claim is even more attenuated
because she was not injured on the worksite.
                                              7
is not entitled to workers’ compensation benefits because this injury did not arise out of

and in the course of her employment.

       Further, Employee’s argument the Commission erred finding her claim against the

Fund was moot is without merit. Section 287.220.2 imposes liability on the Fund in

certain circumstances “for injuries arising out of or in the course of employment … prior

to January 1, 2014.” Cosby, 579 S.W.3d at 207. Employee seeks SIF compensation

based upon her belief the accidental tripping arose out of her employment. Because

Employee’s accidental tripping did not arise out of and in the course of her employment,

the Fund is not implicated.

                                        Conclusion

       Employee is not entitled to workers’ compensation for any injury sustained from

her accidental tripping. The Commission did not err, and its decision is affirmed.



                                                 ________________________________
                                                 GEORGE W. DRAPER III, CHIEF JUSTICE


All concur.




                                             8
