                     In the Missouri Court of Appeals
                             Western District

MILTON YOUNG,                    )
                    Respondent, )
v.                               )                    WD76567 Consolidated with
                                 )                    WD76568
BOONE ELECTRIC COOPERATIVE, )                         OPINION FILED: April 14, 2015
                      Appellant, )
                                 )
TREASURER OF THE STATE OF        )
MISSOURI CUSTODIAN OF THE        )
SECOND INJURY FUND,              )
                                 )
                   Respondent. )

            Appeal from the Labor and Industrial Relations Commission

  Before: Alok Ahuja, Chief Judge, Presiding, and Joseph M. Ellis, Victor C. Howard,
  Thomas H. Newton, Lisa White Hardwick, James E. Welsh, Mark D. Pfeiffer, Karen
   King Mitchell, Cynthia L. Martin, Gary D. Witt and Anthony Rex Gabbert, Judges


      In this consolidated appeal, Boone Electric Cooperative ("Boone Electric") seeks

review of two decisions of the Labor and Industrial Relations Commission

("Commission"). Boone Electric contends that the first decision, which awarded workers'

compensation benefits to Milton Young ("Young") for a 2008 injury to his left knee, was

erroneous because Young's injury did not arise out of his employment. Boone Electric

argues that the second decision, which awarded benefits to Young for a 2009 injury to his
right shoulder, was erroneous because the incident was not a compensable accident under

the Workers' Compensation Law. 1                    For reasons explained herein, we affirm the

Commission's awards for the two injuries.

                           FACTUAL AND PROCEDURAL HISTORY

        Young began working as an electrical lineman for Boone Electric Cooperative in

1987. Young's duties as a lineman included electrical wire installation and repair, both

overhead and underground. In that capacity, Young's work has included building and

repairing power lines and running new electric services to homes and businesses. His job

involves climbing poles, pulling and jacking wire in, and crimping it. Most of Young's

work is strenuous, and everything is done with arms reaching out and stretching, mostly

shoulder high.

Knee Injury

        On January 4, 2008, Young injured his left knee while working at a job site.

Young was walking back to his work truck to retrieve materials when he stepped on a

"frozen dirt clod" and his left knee "buckled and popped," causing him to fall to the

ground. Young's knee popped again when two other linemen on his crew helped him to

his feet. As a result of the January 4, 2008 incident, Young sustained a sprain to his left

knee.

Shoulder Injury

        Young began his workday October 2, 2009 with a safety meeting. As part of that

meeting, Young performed an exercise called a "pole rescue." During that exercise, he

        1
            Section 287.010 provides that Chapter 287 shall be known as the "Workers' Compensation Law."

                                                        2
climbed a utility pole by using a tool belt with a "safety," cut loose a 180-pound dummy,

lowered the dummy to the ground with a rope and hand line, and climbed back down.

Young completed that exercise without incident or problem.2

        Later that day, Young was running electric service to a building and needed to step

up on a platform to access a 2,500-pound reel of wire on the truck. When the outriggers

are down to stabilize the truck, as they were at that time, the step getting up into the truck

is approximately twenty-seven inches off of the ground.3 The step is so high because the

trucks are never on level ground, and the outriggers are used to level and stabilize the

truck so the bucket can be lifted properly to raise the worker up to where the lines are

located on the pole. There are two handles designed to allow a person to pull up onto the

step, and both are needed to keep balance. As Young was pulling himself up, he felt a

"pop" in his right shoulder. After that, he could not raise his arm. Young's doctor

testified that the "pop" that Young heard was the sound of things tearing in his shoulder.

As a result of the October 2, 2009 incident, Young sustained a right shoulder glenoid

labral tear, partial biceps and subscapularis tears, and a full-thickness supraspinatus tear.4

        On December 9, 2009, Young filed workers' compensation claims against Boone

Electric for both the January 4, 2008, and October 2, 2009, injuries. 5 Following a


        2
            At the time of his shoulder injury in 2009, Young was approximately age 53. Prior to October 2, 2009,
Young had only occasional pain or soreness in his shoulders and had never received any medical treatment for that
soreness. X-rays on both shoulders taken in 2004, the only occasion where x-rays were taken prior to the incident at
bar, were interpreted as "unremarkable."
          3
            By way of visualization, a standard step is approximately eight inches high, and a standard desk is
approximately thirty inches tall.
          4
            Boone Electric presented the testimony of two doctors whose testimony the Commission deemed not
credible.
          5
            Young also filed claims against the Second Injury Fund, but those claims are not relevant to the instant
appeal.

                                                         3
hearing, an Administrative Law Judge ("ALJ") awarded benefits on both claims. Boone

Electric appealed the ALJ's decisions to the Commission. In supplemental opinions, the

Commission affirmed the ALJ's decision to award benefits on both of Young's claims.6

Boone Electric appeals the Commission's decisions, which we have consolidated for

review.7

        Further facts are set forth below as necessary.

                                       STANDARD OF REVIEW

        This court will not disturb the decision of the Commission on appeal unless it

acted without or beyond its power, the award was procured by fraud, the facts do not

support the award, or the award is not supported by sufficient competent evidence in the

record. § 287.495.1.8 "We examine the whole record to determine the sufficiency of the

evidence." Marmon v. City of Columbia, 129 S.W.3d 921, 924 (Mo. App. W.D. 2004)

(citation omitted). If we find the award is contrary to the overwhelming weight of the

evidence, then it is not supported by substantial evidence and we must reverse it. Id. In

making this determination, "[w]e do not reweigh the evidence; the Commission is the

judge of the weight to be given to conflicting evidence and the credibility of the

witnesses." DeLong v. Hampton Envelope Co., 149 S.W.3d 549, 554 (Mo. App. E.D.

2004) (citations omitted).


        6
           The Commission modified the ALJ's award for Young's 2009 injury by reducing the amount from 35
percent permanent partial disability at the right shoulder to 30 percent permanent partial disability at the right
shoulder. Young does not challenge that reduction on appeal.
         7
           Young filed a Motion for Attorney Fees pursuant to Rule 84.19, arguing Boone Electric's appeal is
frivolous. Young's motion, which was taken with the case, is hereby denied.
         8
           All statutory references are to RSMo 2000 as currently supplemented, which encompasses several
amendments from 2005 that apply to this case. Some sections were subsequently amended, but those amendments
are not germane to our analysis herein.

                                                         4
      However, "[t]he Commission's interpretation and application of the law . . . are not

binding on this court and fall within our realm of independent review and correction."

Snyder v. Consol. Library Dist. No. 3, 306 S.W.3d 133, 136 (Mo. App. W.D. 2010)

(citation omitted). We thus review the questions of law presented in this appeal de novo.

                                        POINT I

      In its first point, Boone Electric contends that the Commission erred in awarding

Young benefits for his 2008 knee injury because Young failed to prove that the accident

arose out of his employment.

      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." § 287.120.1.

      Section 287.020.3(2) governs whether an injury arises out of and in the course of

employment, and states:

      (2)   An injury shall be deemed to arise out of and in the course of the
      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.

      In the present case, Boone Electric does not challenge the Commission's finding

that the 2008 accident was the prevailing factor in causing Young's knee injury. Rather,

                                            5
Boone Electric confines its argument under Point I to the application of Section

287.020.3(2)(b). Boone Electric argues that Young failed to prove that the risk from

which his injury arose — slipping on a frozen clod of dirt — was related to his

employment. In support of its argument, Boone Electric cites two recent decisions in

which injuries were held not to have arisen out of the claimants' employment.

      First, in Miller v. Missouri Highway & Transportation, 287 S.W.3d 671 (Mo. banc

2009), the claimant was walking on a work site "when he felt a pop and his knee began to

hurt." Id. at 672. "He frankly admit[ted] . . . that nothing about the road surface . . .

caused any slip, strain or unusual movement . . . ." Id. (emphasis added). On appeal, our

Supreme Court made it clear that, under the 2005 amendments to the Act: "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 the risk involved — here, walking — is one to

which the worker would have been exposed equally in normal non-employment life." Id.

at 674. Thus, in affirming the Commission's denial of benefits, the Court held that the

claimant's injury did not arise out of employment because it did not occur "due to being

in an unsafe location due to his employment." Id. Rather, the claimant was "walking on

an even road surface when his knee happened to pop." Id.; see also Pope v. Gateway to

W. Harley Davidson, 404 S.W.3d 315, 320 (Mo. App. E.D. 2012) ("In Miller, the

employee was simply walking on an even road when his own physiology caused his knee

to pop. There was no evidence that anything about his work increased his risk of his knee

popping.").



                                            6
       Second, in Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. banc

2012), the claimant was making a pot of coffee in the break room of her workplace when

she turned and fell off the side of her sandal, injuring her right hip. Id. at 506. "There

were no irregularities or hazards on the kitchen floor. The floor was not wet, and there

was not any trash on the floor." Id. Therefore, because the only connection between the

claimant's injury and her employment was the fact that the injury "occurred in her office's

kitchen," our Supreme Court held that the claimant's injury did not arise out of her

employment. Id. at 511–12.

       "Together, Miller and Johme stand for the proposition that an unexplained injury

is not compensable merely because the injury occurred at work." Dorris v. Stoddard

Cnty., 436 S.W.3d 586, 592 (Mo. App. S.D. 2014).            "[W]e consider whether [the

claimant] was injured because he was at work as opposed to becoming injured merely

while he was at work." Pope, 404 S.W.3d at 320. Thus, because we find that Young was

injured because he was at work, Boone Electric's reliance on Miller and Johme is

misplaced.

       In Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo. App. E.D. 2012), a case

squarely on point, but not cited by either party, the claimant was the owner and operator

of a landscaping company. Id. at 865. The claimant was injured when he slipped on a

piece of ice in the parking lot of his office on his way back inside after holding a safety

demonstration in the lot. Id. In affirming the Commission's award of benefits, this Court

stated that the facts before it were "clearly distinguishable" from those in Miller and

Johme because the claimant "sustained an injury due to an unsafe condition (the ice

                                            7
itself)," the claimant was in the icy parking lot "as a function of his employment," and,

therefore, the claimant was exposed to the risk of slipping on the ice because of his

employment. Id. at 867–68.

       Here, as in Duever, there was evidence that Young's injury was caused by an

unsafe condition on the ground of the work site — the frozen dirt clod. Moreover, Young

was at the work site because of his employment and, therefore, was exposed to the risk of

slipping on the frozen dirt clod because of his employment. Accordingly, the risk from

which Young's injury arose was related to his employment.

       Boone Electric also asserts that Young's injury did not arise out of his employment

because he lives on a farm and, thus, was "equally exposed to clods of dirt" in his

nonemployment life. However, as recently explained in Dorris, under the Act's strict

construction, Section 287.020.3(2)(b)'s "hazard or risk" cannot be identified so generally.

In Dorris, the claimant was injured when she tripped on a crack in the street while

walking back to her office after completing a work-related task offsite. Id. at 588. On

appeal, the employer argued that the Commission erred in awarding benefits because the

claimant was equally exposed to the risk of cracks in a street in her nonemployment life.

Id. at 590. Rejecting the employer's argument, this Court first stated that, by dismissing a

similar argument in Duever, we "implicitly determined the hazard was not the hazard of

slipping on ice in general, but the hazard of slipping on that ice in that particular parking

lot." Id. at 592. Thus, identifying the "specific risk or hazard" the claimant was exposed

to as "cracks in [the] particular street" she tripped on, and finding that "[t]here [was] no

evidence in the record that [the] [c]laimant had any exposure to [t]hat particular hazard

                                             8
during her nonemployment life," the Dorris Court held that "the record could not support

a conclusion by the Commission that [the claimant] was equally exposed to that hazard in

her nonemployment life, as urged by employer." Id.

        Similarly, here, even assuming arguendo that Young was exposed to the hazard of

slipping on frozen dirt clods 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 frozen dirt clods at that particular work site

in his nonemployment life.9

        For all the reasons stated above, Young's injury arose out of and in the course of

his employment. Accordingly, the Commission did not err in awarding Young benefits

for his 2008 knee injury.

        This point is denied.




        9
            In its final award allowing compensation for the 2008 injury, the Commission stated:

                [W]e ask whether the record contained evidence sufficient to warrant a finding that
        employee was equally exposed to the risk of stepping on a frozen dirt clod and falling in his
        normal nonemployment life. Employer fails to identify such evidence in its brief . . . .

Boone Electric argues that, by stating that "[e]mployer fails to identify such evidence," the Commission "improperly
placed the burden upon [Boone Electric in its equal exposure analysis]." We disagree.
         A claimant is not required to prove both that the hazard from which her injury arose was related to her
employment and that the hazard was one which she was not equally exposed to in her nonemployment life. Rather,
the claimant has the burden of proving that her injury "was caused by [a] risk related to her employment activity as
opposed to a risk to which she was equally exposed in her 'normal nonemployment life.'" Johme, 366 S.W.3d at 512
(emphasis added). Meaning, implicit in a finding that the claimant was exposed to the risk from which her injury
arose because of her employment, is a finding that the claimant could have avoided the risk outside of her
employment.
         Here, Young established that his injury arose from the hazard of slipping on the frozen dirt clod, and
because Young's employment exposed him to that hazard, he proved that the hazard was related to his employment.
Thus, by stating that Boone Electric failed to identify any evidence of equal exposure, the Commission did not place
the burden on Boone Electric to prove that Young's injury arose out of his employment. Instead, the Commission
was merely stating that Boone Electric failed to point to any evidence tending to disprove the prima facie case
already made by Young.

                                                          9
                                                    POINT II

         In its second point, Boone Electric contends that the Commission erred in

awarding Young benefits for his 2009 shoulder injury because Young failed to prove that

an accident in fact occurred. The question is whether Young suffered an "accident" as

defined in Section 287.020.2. Understanding why we affirm the Commission on this

point entails application of the statutory definition of "accident," created by the 2005

amendment to the Act, to the facts surrounding Young's shoulder injury.

The Legislature expressly rejected and abrogated all earlier case law interpretations
                   on the meaning of or definition of "accident"

         In this issue of first impression, we begin by noting that, as part of the 2005

amendments, the Legislature expressly stated its "intent to reject and abrogate earlier case

law interpretations on the meaning of or definition of 'accident' . . . to include, but not be

limited to, holdings in Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d

524 (Mo. App. W.D. 2002) . . . and all cases citing, interpreting, applying, or following

[that] case[]." § 287.020.10 (emphasis added).

         Because interpretation of the term "accident" as used in the amended statute is an

issue of first impression 10 and because the Legislature abrogated all earlier case law

interpretations of the term "accident," we are without decisive precedent on which to rely

on this matter.



         10
            The issue of statutory interpretation of the meaning of the term "accident" is not raised in the Point
Relied On. This court would be within its discretion to deem the point abandoned and dismiss this point on appeal.
Lanham v. Div. of Employment Sec., 340 S.W.3d 324, 327 (Mo. App. W.D. 2011). Because we prefer to decide
cases on the merits and despite the deficiencies we are able to ascertain the arguments from the briefs, we proceed to
the merits. Randolph Co. v. Moore-Ransdell, 446 S.W. 3d 699, 704 n.3 (Mo. App. W.D. 2014).

                                                         10
                     General Principles of Statutory Interpretation

       The "primary rule of statutory interpretation is to ascertain the intent of the

legislature from the language used, to give effect to that intent if possible, and to consider

the words in their plain and ordinary meaning." In re Boland, 155 S.W.3d 65, 67 (Mo.

banc 2005) (citation omitted). "If statutory language is not defined expressly, it is given

its plain and ordinary meaning, as typically found in the dictionary." Derousse v. State

Farm Mut. Auto. Ins. Co., 298 S.W.3d 891, 895 (Mo. banc 2009) (citation omitted). We

presume "every word, sentence or clause in a statute has effect, and the legislature did not

insert superfluous language." Bateman v. Rinehart, 391 S.W.3d 441, 446 (Mo. banc

2013) (citation omitted). When the words of a statute are clear, "there is nothing to

construe beyond applying the plain meaning of the law." State ex rel. Valentine v. Orr,

366 S.W.3d 534, 540 (Mo. banc 2012) (citation omitted). We "'will look beyond the

plain meaning of the statute only when the language is ambiguous or would lead to an

absurd or illogical result.'" In re DeBrodie, 400 S.W.3d 881, 884 (Mo. App. W.D. 2013)

(emphasis added; citations omitted). "A statute is ambiguous when its plain language

does not answer the current dispute as to its meaning." Id. (citation omitted). "We

presume the legislature intended what the statute says, and if the statutory language is

clear, 'there is no room for construction beyond the plain meaning of the law.'" Treasurer

of State v. Stiers, 388 S.W.3d 217, 219 (Mo. App. W.D. 2012) (citation omitted).

       Put another way, "[p]roper statutory construction starts with the words of the

statute." In re M.D.R., 124 S.W.3d 469, 472 (Mo. banc 2004). "In most cases, it ends

there, as well." Id. "If the words of the statute are unclear or ambiguous, the Court may

                                             11
review the earlier versions of the law, or examine the whole act to discern its evident

purpose, or consider the problem that the statute was enacted to remedy." Id. (emphases

added; citation omitted).

Under the Act's plain language, Young's workplace injury constitutes an "accident"

       As noted above, an employer is "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."

§ 287.120.1. Section 287.020.2 defines "accident" as "an unexpected traumatic event or

unusual strain identifiable by time and place of occurrence and producing at the time

objective symptoms of an injury caused by a specific event during a single work shift.

. . ." We are asked to decide whether Young suffered "an unexpected traumatic event or

unusual strain."

       In so doing, we note that in addition to general principles of statutory

interpretation, the Legislature's 2005 amendments mandate that we construe the Workers'

Compensation law strictly. § 287.800.1. "Strict construction of a statute presumes

nothing that is not expressed." Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App.

W.D. 2010) (citation omitted). "The rule of strict construction does not mean that the

statute shall be construed in a narrow or stingy manner, but it means that everything shall

be excluded from its operation which does not clearly come within the scope of the

language used." Allcorn v. Tap Enters., Inc., 277 S.W.3d 823, 828 (Mo. App. S.D. 2009)

(citing 82 C.J.S. Statutes § 376 (1999)). "The clear, plain, obvious or natural import of

the language should be used, and the statutes should not be applied to situations or parties

                                            12
not fairly or clearly within its provisions." Id. (quoting 3 SUTHERLAND STATUTORY

CONSTRUCTION § 58:2 (6th ed. 2008)).

         The Commission's findings are in accordance with a plain reading of the relevant

statutory language:

                As will be seen in more detail below in our discussion of the issue of
         medical causation, the "pop" was not the injury itself, but rather merely a
         tangible manifestation to employee of a problem inside his shoulder. We
         are convinced that the employee suffered an accident, because despite the
         fact employee had pulled himself up onto the truck many times before, this
         time he felt a pop in his shoulder, and this time he was unable to lift his arm
         afterward. We believe that these facts constitute the "unexpected traumatic
         event or unusual strain" required under the law. We conclude that
         employee suffered an accident for purposes of § 287.020.2.

         The words "unexpected traumatic event or unusual strain" are clear and

unambiguous. As noted above, it is a cardinal rule of statutory construction that we

afford words not defined by the Legislature their plain and commonly understood

meaning --often a meaning found in the dictionary. Derousse, 298 S.W.3d at 895. It is

also a cardinal rule of statutory construction that we presume the Legislature does not

employ superfluous or meaningless language. Bateman, 391 S.W.3d at 446. This point

is particularly evident in this case because of the Legislature's edict that the courts shall

not look to prior court opinions interpreting this statute, but focus instead on the words

they used. § 287.020.10.

         Taken apart, the beginning of the definition of "accident" describes two categories:

(1) "unexpected traumatic event," or (2) "unusual strain."11 Neither phrase is defined in

         11
            The use of the word "or" constitutes a disjunctive meaning; if an event falls under either category, this is
sufficient to constitute an "accident" under the statute. See Renner v. Dir. of Revenue, 288 S.W.3d 763, 766 (Mo.
App. E.D. 2009).

                                                           13
the statute. In arriving at their intended definitions, we are required to presume that the

phrases are not redundant, and have distinct meanings. Id. (holding that we presume

"every word, sentence or clause in a statute has effect, and the legislature did not insert

superfluous language"). In other words, "unusual strain" is not synonymous with, or

redundant of, "unexpected traumatic event." Rather, "unusual strain" is a category unto

itself, distinguishable from "unexpected traumatic event." Nonetheless, it is possible that

a particular "strain" or "event" could fall within both categories; it is compensable if it

falls under a single category. Williams v. Dir. of Revenue, 446 S.W.3d 272, 273 (Mo.

App. E.D. 2014) (statute that defined "vehicle" as "designed primarily for use, or is used

on highways" encompasses both a car which is designed for use on a highway, whether it

was on a highway or not, as well as a golf cart, which was not designed for use on the

highway, but was in fact used on a highway).

       Because we find that Young's shoulder injury fits within the category of "unusual

strain," we do not have to reach the issue of whether it likewise fits within the category of

an "unexpected traumatic event."

       With this starting point, we turn to the dictionary to locate common meanings:

       "Unexpected": "Unforeseen." WEBSTER'S THIRD NEW INTERNATIONAL
       DICTIONARY (1993, Unabridged) at 2494.

       "Traumatic": "Of, relating to, or resulting from a trauma." "Trauma" is
                    defined as: "1 : an injury or wound to a living body caused by
                    the application of external force or violence <injuries . . . such
                    as sprains, bruises, fractures, dislocation, concussion -- indeed
                    traumata of all kinds -- Lancet>".; "2 a : a psychological or
                    emotional stress or blow that may produce disordered feelings
                    or behavior"; "[2] b : the state or condition of mental or


                                             14
                          emotional shock produced by such a stress or by a physical
                          injury." Id. at 2432.12

        "Event": "Something that happens." Id. at 788.

        "Unusual": "Being out of the ordinary." Id. at 2514.

        "Strain": "2 a : to exert (as oneself) to the utmost : put great stress or effort
        : use or cause to function with extreme vigor. . . b : to injure (as oneself or
        a body part) by overuse or misuse" (when used as a verb). "An act of
        straining or the condition of being strained: as 1 a: excessive physical or
        mental tension . . . b : excessive or difficult exertion or labor : a violent or
        overtaxing effort c : A hurt or injury of a body part or organ resulting or
        such as results from excessive tension, effort or use" (when used as a noun,
        as is the case here). Id. at 2255.

        Employing these common meanings, an "accident" requires either: (1) an

unforeseen happening relating to or resulting from a physical wound ["unexpected

traumatic event"], or (2) an unordinary act of excessive physical or mental tension,

difficult exertion, or a violent or overtaxing effort ["unusual strain"].

        Applying the second plain meaning of "accident," it is evident that in pulling his

weight up as high as twenty-seven inches, Young plainly sustained an act of excessive

physical tension -- that is to say, Young suffered an "unusual strain." The varying nature

of the ground and the necessity of having the truck stable and level result in this

unavoidably high step -- roughly the equivalent of stepping onto a standard-height desk

or kitchen table in one movement -- such that Young had to use two handles and careful

balance to pull up the weight of his entire body and any tools in his belt. In the course of

this action, Young suffered an "unusual strain" so as to meet Section 287.020.2's

        12
            While this dictionary definition includes descriptions of mental injuries, the Legislature has placed
additional restrictions on the application the Workers' Compensation Law to mental injuries in sections 287.120.8
and 287.120.9.

                                                        15
definition of "accident." The Commission correctly recognized this: "the employee

suffered an accident, because despite the fact employee had pulled himself up onto the

truck many times before, this time he felt a pop in his shoulder, and this time he was

unable to lift his arm afterward."

            Young did not need to establish an external cause of his injury

       In our holding, we reject Boone Electric's argument that Young did not establish

that his accident was caused by an "unexpected traumatic event" or an "usual strain."

Boone Electric argues that Young "was merely getting into the truck as he had done

many times before when he heard the pop. [Young] getting into his truck was a routine

procedure and there is no evidence that there was any trauma or duress associated with

him entering the truck." In essence, Boone Electric argues that this could not be an

"unexpected traumatic event or unusual strain" because Young had to take the same

actions every time he entered his truck when the outriggers were in use. However,

repeated unusual strain does not make it usual; it merely makes it repeated.

       Once a claimant has established an "unexpected traumatic event" or an "unusual

strain," the balance of the statutory definition of "accident" requires proof of the

following additional criteria: (1) the "accident" must be identifiable by time and place of

occurrence; (2) the "accident" must produce at the time objective symptoms of an injury;

and (3) the "accident" must be caused by a specific event during a single work shift.

§ 287.020.2.

       Boone Electric does not contest that Young's injury was identifiable by time and

place of occurrence, and that it produced at the time objective symptoms of an injury.

                                            16
Nor does Boone Electric contest that the injury occurred during a single work shift. The

only portion of the statute that Boone Electric's argument implicates is the term "caused

by a specific event." Although its argument is not fully developed, Boone Electric

appears to contend that the Act's definition of "accident" requires something

distinguishable from and in addition to routine work, such as a precursor event (e.g. a

rabid dog on the chase)13 or an external force (e.g. a slip and fall). But succeeding in that

argument requires reliance on case law that was either specifically abrogated by the 2005

amendments to the Act or case law that interpreted a completely different provision of the

Act addressing hernia injuries. More to the point, the argument unnecessarily contorts

and disregards the plain meaning of the phrase as it is currently enacted in this statute.14

         13
             Appellants argue in their brief that an example of an "unexpected traumatic event" would be an employee
who injured his shoulder while rushing to get into a truck because he was being chased by a rabid dog.
          14
             The Dissent marches the reader through a long line of precedent studiously tracing the history of
Missouri's workers' compensation cases since its 1929 inception in an effort to establish that Young's injury does not
fit within the meaning of an "unusual strain." This is a curious exercise as there is no meaningful assertion by the
parties that the words of the statute as written or as applied to these facts are unclear or ambiguous. As noted above,
"[w]e presume the legislature intended what the statute says, and if the statutory language is clear, 'there is no room
for construction beyond the plain meaning of the law.'" Stiers, 388 S.W.3d at 219. The Dissent cites a treatise in
support of its contention that the term "unusual strain" has been interpreted differently in different jurisdictions and
thus is ambiguous. Dissent at n.5. A treatise is no substitute for careful examination of the actual language enacted
by our Legislature. Thus, the Dissent's painstaking research jumps past our first obligation, to interpret the statute as
written.
          The Dissent's research can be separated into four rough categories. The beginning demarcation of the
research is what the Dissent describes as a liberal interpretation of an early version of the Act, rejected by Hussman-
Ligonier Co. v. Hughes, 153 S.W.2d 40 (Mo. 1941), separated by forty years by Wolfgeher v. Wagner Cartage
Service, Inc., 646 S.W.2d 781 (Mo. banc 1983), and capped off by Bennett v. Columbia Health Care, 80 S.W.3d 524
(Mo. App. W.D. 2002), which the Legislature specifically abrogated in 2005.
          The Dissent attempts to show that that it is "obvious" the Legislature employed the term "unusual strain" to
"restore" or "resurrect" the second of the four periods, or what it terms the "pre-Wolfgeher" line of cases. Dissent at
2, 11. In so doing, the Dissent notes accurately that "[w]hen the legislature enacts a statute referring to terms that
have had other judicial or legislative meaning attached to them, the legislature is presumed to have acted with
knowledge of that judicial or legislative action." Dissent at 5 (quoting Balloons Over the Rainbow, Inc. v. Dir. of
Revenue, 427 S.W.3d 815, 825-26 (Mo. banc 2014) (additional citations omitted)). And this holding from Balloons
forms the platform of the Dissent's lengthy analysis.
          Neither the number of cases cited by the Dissent nor the presumption noted in Balloons overcomes the
Legislature's 2005 language explicitly requiring us to reject and abrogate earlier judicial interpretations on the
meaning of or definition of "accident," including but not limited to Bennett. There is no qualifying language on the
blanket abrogation of prior judicial precedent, nor is there any language directing us to the "pre-Wolfgeher" line of
analysis. Notably, the Legislature did not abrogate the Wolfgeher case in particular. If the Legislature had desired to

                                                          17
         Again employing the dictionary, "specific" means "3 : restricted by nature to a

particular individual, situation, relation, or effect : PECULIAR." WEBSTER'S at 2187.

"Event," as noted, means "something that happens." Id. at 788. In application, this plain

meaning, coupled with the plain meaning of "unexpected traumatic event," or "unusual

strain," requires proof of the following to establish an "accident" pursuant to Section

287.020.2:

         In the case of an "unexpected traumatic event":

         an unforeseen happening relating to or resulting from a physical wound
         [unexpected traumatic event], identifiable by time and place of occurrence
         and producing at the time objective symptoms of an injury caused by a
         particular happening [specific event] during a single work shift.

         In the case of an "unusual strain":

         an unordinary act of excessive physical or mental tension, difficult
         exertion, or a violent or overtaxing effort [unusual strain], identifiable by
         time and place of occurrence and producing at the time objective symptoms
         of an injury caused by a particular happening [specific event] during a
         single work shift.

         In the case of an "unexpected traumatic event," the traumatic event leading to

injury will be the "particular happening," or "specific event" to which the injury can be

plainly connected. In the case of an "unusual strain," the "particular happening" linked to

the injury need not be traumatic, or accidental, but need only be identifiable:                                         a

"particular happening." In either case, the requirement of a "specific event" operates to


refer us to the pre-Wolfgeher line of reasoning or to any other case or line of cases in particular, the Legislature is
well aware of how to do so. In fact, this very statute clearly shows that the Legislature knows exactly how to direct
the courts to a particular case or line of cases.
          The Legislature did not direct us to restore an unidentified line of cases; the Legislature instead directed us
not to resort to prior interpretations and to determine the plain meaning of the words of the statute. To hold
differently would be a judicial choice to disregard the plain language of the 2005 amendments abrogating all earlier
case law interpreting the meaning of the word "accident."

                                                           18
preclude recovery for complaints or injuries that cannot be isolated to a "particular

happening" or "specific event." Rather, from the context of the statute, it is evident that

the Legislature employed the term "specific event" to clarify that an "accident" must

occur "during a single work shift," a phrase necessary to exclude, e.g., injuries caused by

occupational diseases acquired over time, including injuries that result from the repetitive

routine performance of work, which are addressed separately in Section 287.067.

Amesquita v. Gilster-Mary Lee Corp., 408 S.W.3d 293, 301 (Mo. App. E.D. 2013). To

reiterate, repeated unusual strain does not make it usual; it only makes it repeated.15


         15
            Again, we take stock of the Dissent's arguments that the Commission should be reversed on this point
because the accident must cause the injury. The Dissent posits that separate, arguably similar provisions from other
sections of the Act support reversal, including the hernia statute and a section relating to mental stress.
Understanding why the Dissent's argument is misplaced on this point is evident in examining McClain v. Yellow
Cab Co., 439 S.W.2d 200 (Mo. App. S.D. 1969), a case the Dissent relies on that interprets the Act's hernia
provision. In McClain, the Southern District of our court determined that the fact of a hernia was not, in and of
itself, proof of a workplace strain under the hernia statute. Id. at 205. The McClain court reached its conclusion in
reliance on analysis "in other types of worker's compensation cases" that at the time were deciding that for an
"unusual strain" to qualify as an "accident," the "usual strain" had to involve an accidental or external force outside
the routine performance of one's work. Id. at 205. As McClain was decided in 1969, the "other" cases referred to
would have been the pre-Wolfgeher line of cases. Additionally, McClain's reliance on "other types of worker's
compensation cases" to define the phrase "unusual strain" as used in Section 287.195 was plainly erroneous. That
statute requires a hernia claimant to demonstrate that his or her hernia resulted from "an accident or unusual strain."
The use of the disjunctive "or" expressed legislative intent to create two distinct circumstances that could result in a
hernia – an "accident" or an "unusual strain." The McClain court disregarded this fact. Instead, it effectively
equated the terms "accident" and "unusual strain" when it looked to "other types of worker's compensation cases"
that had attempted to figure out when and whether an "unusual strain" could fit within the statutory definition of
"accident." McClain thus mistakenly relied on cases discussing whether "unusual strains" fell within the statutory
definition of "accident" to define "unusual strain."
           Additionally, as to the hernia statute, other cases have held that the "unexpected or abnormal strain usually
results from the performance of work in an abnormal manner or in a manner not routine, but this is not necessarily
so." Pattengill v. Gen. Motors Corp., 845 S.W.2d 630, 632 (Mo. App. E.D. 1992) (overruled on other grounds)
(citing Wolfgeher, 646 S.W.2d at 783). "Abnormal strain may also result from the lifting of heavy objects while in
an awkward or unbalanced posture where the worker is subjected to stress of unforeseen force or duration." Id. In
Pattengill, the Eastern District determined that a claimant had suffered an "unusual strain" where he had extended
his arms above his head and stretched as far as he could reach, causing injury. "In determining whether an unusual
strain occurred, we must focus 'on the fact that the injury has occurred rather than what act or force immediately
preceded the injury.'" Pattengill, 845 S.W.2d at 632 (citations omitted). As an aside, we note that the Dissent
recognizes Pattengill in stating that Section 287.195 "has been interpreted consistently with the pre-Wolfgeher case
law." But Pattengill expressly relied on Wolfgeher, as this larger excerpt indicates:

                 "[A]n unusual or abnormal strain may be classified as an accident even though not
         preceded by a slip and fall. The unexpected or abnormal strain usually results from the
         performance of work in an abnormal manner or in a manner not routine, but this is not necessarily

                                                          19
         In application, the "specific event" requirement, afforded its plain meaning,

couples with the separate requirement that an "accident" be identifiable by time and place

of occurrence to require proof of a temporal (time), geographic (place), and causal

(specific event) relationship to the injury. In Young's case, the particular happening was

the act of grabbing the truck handles to hoist himself up onto a raised step or platform.

This is consistent with the Legislature's motivation to ensure that "accidents" include only

         so. Abnormal strain may also result from the lifting of heavy objects while in an awkward or
         unbalanced posture where the worker is subjected to stress of unforeseen force or duration."
         Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 783 (Mo. banc 1983); accord
         Alexander v. Pin Oaks Nursing Home, 625 S.W.2d 192, 193 (Mo. App. 1981) [("The law treats an
         abnormal strain as an accident and the resultant violence to the body as an injury within § 287.020.
         Work done in an awkward or unbalanced position, albeit in the execution of a regular assignment,
         which causes the employee to undergo a stress exceeding the usual and begets an unanticipated
         strain, results in a compensable injury.")]. Merriman v. Ben Gutman Truck Service, Inc., 392
         S.W.2d 292, 297 (Mo. 1965) [("An abnormal strain may, therefore, be classified as an accident
         even though not preceded or accompanied by a slip or a fall"; "The abnormal strain is the event
         and the injury is the result. The unexpectedness lies in the fact that force produces more strain
         than the employee has contemplated. This is true even though the force which caused the
         abnormal strain comes entirely from the physical exertion rather than from sources external to the
         body."]. In determining whether an unusual strain occurred, we must focus "on the fact that the
         injury has occurred rather than what act or force immediately preceded the injury." Viola v.
         Custom Coatings, Inc., 664 S.W.2d 266 (Mo.App.1984) quoting Wolfgeher, 646 S.W.2d at 267.

Pattengill, 845 S.W.2d at 632. Not only did the Pattengill court rely on Wolfgeher, it also provided no definitive
language for the Dissent's assertion that we must interpret this statute in comparison to the claimant's normal routine
work activities. In actuality, Pattengill's facts are analogous to those in the case at bar in every relevant way, and its
holding is in line with our opinion. Pattengill dispenses of the argument that there must be some sort of external
cause or force preceding the injury in order for a claimant to recover by emphasizing that our focus is on the fact
that the injury occurred rather than what preceded the injury. 845 S.W.2d at 632 (citing Viola, 664 S.W.2d at 267)
(where claimant had sat in similar positions before in his job and testified that "nothing struck his leg nor did he hit
it in any way at the time he was injured" nor did he "trip or fall over anything," the court held that "[t]he simple act
of getting up from an awkward position was the medical cause of the tear to claimant's right medial meniscus.").
          Regardless of the varying prior judicial interpretations of the hernia statute, there is a further compelling
reason to look anew at the language the Legislature employed in its 2005 amendments rather than reflecting on
inapposite statutes: "A phrase used more than once in a statutory scheme may have different meanings depending
on the context in which it is used." Dungan v. Fuqua Homes, Inc., 437 S.W.3d 807, 813-14 (Mo. App. W.D. 2014)
(citation omitted). "It is not logical or necessarily inferable that the same words used elsewhere [in a statutory
scheme] are used interchangeably with exactly the same intent. . . . " Id. (citation omitted). "Statutory construction
must be made on the basis of the wording in the context in which it occurs." Id. (citation omitted). Pattengill
emphasizes just how dangerous it is to transplant case law surrounding the usage of a term in one statute into
another statute, and in any event, that case simply does not support the Dissent's rationale.
          We are not persuaded that the Legislature's 2005 amendment's use of the term "unusual strain" was
intended to direct us to prior select interpretations of the hernia provision (or of Section 287.120.8), particularly
without any such indication from the Legislature. It is clear from the language in the 2005 amendments that directs
us to the statutory interpretation of particular case law, that if the Legislature had intended for us to use a particular
statutory interpretation from a particular prior case, it is well aware of how to do so.

                                                           20
those injuries directly connected to the work. Because of the "specific event" provision,

we reject any contention that the statute operates to narrow the intended meaning of

"unusual strain" to require proof that an external, accidental force caused the injury.16

                              Public policy supports our interpretation

         Our holding is further supported by the longstanding public policy behind the

Workers' Compensation Law. Courts have long held that "[t]he purpose is to provide a

simple and nontechnical method of compensation for injuries sustained by employees

through accident arising out of and in the course of employment and to place the burden

of such losses on industry." Bethel v. Sunlight Janitor Serv., 551 S.W.2d 616, 618 (Mo.

banc 1977) (emphasis added). "Innumerable decisions indicate that the law is intended to

enable an injured employee to recover compensation and to do away with the common

law defenses and disabilities." Id. Under Boone Electric's rationale, Young would

prevail had he been negligent in not taking care to balance himself and thus slipped

causing his injury, yet he could not recover where he took the action of properly

balancing himself in what necessarily is an awkward and dangerous motion that his

employment forced him to endure. This result would be unreasonable and absurd. Just

as a broken piece of equipment, an unbalanced body, or a rabid dog on the chase might

play a role in a claimant's accident, so too can simple use -- even careful, proper use -- of


         16
            For the reasons set forth in this opinion, there is no indication in the statute that an injury must be
"preceded" by an event. Additionally, we disagree with the Dissent's note 3 that "'a traumatic event' would appear to
require 'the application of external force or violence' to the body" and "[n]o such 'external force or violence' was
involved in Young's shoulder injury" is unsupported by the language of the statute. The Legislature used the word
flagged by the Dissent in its adjective form: an "unexpected traumatic event" is an accident. Regardless of the fact
that the adjective is defined by reference to the noun in Webster’s, the Legislature did not employ the noun form of
"trauma," so as to require that an accident must be caused by trauma or follow trauma. Rather, the statute reads
simply that "an accident as used in this chapter shall mean an unexpected traumatic event or unusual strain. . . ."

                                                        21
equipment such as this, result in an accident. In the words of the Commission, "the

employee suffered an accident, because despite the fact employee had pulled himself up

onto the truck many times before, this time he felt a pop in his shoulder, and this time he

was unable to lift his arm afterward." Simply put, the definition of "accident" does not

require examination of these surrounding circumstances for a cause.

      This point is denied.

                                       Conclusion

      The Commission's awards as to both injuries are affirmed.




                                   __________________________________
                                   Gary D. Witt, Judge


Joseph M. Ellis, Victor C. Howard, Thomas H. Newton, James E. Welsh, Mark D.
Pfeiffer, Karen King Mitchell, Cynthia L. Martin, Anthony Rex Gabbert, Judges, Concur
in the Majority Opinion
Chief Judge Alok Ahuja concurs in part and dissents in part in separate opinion, joined by
Judge Lisa White Hardwick




                                            22
                    IN THE MISSOURI COURT OF APPEALS
                            WESTERN DISTRICT
MILTON YOUNG,                     )
                      Respondent, )
v.                                )                           WD76567
                                  )                           consolidated with WD76568
BOONE ELECTRIC COOPERATIVE,       )
                       Appellant, )                           FILED: April 14, 2015
                                  )
TREASURER OF THE STATE OF         )
MISSOURI CUSTODIAN OF THE         )
SECOND INJURY FUND,               )
                      Respondent. )

             OPINION CONCURRING IN PART AND DISSENTING IN PART

        I concur in affirmance of the Labor and Industrial Commission’s award of compensation

to Milton Young for his knee injury. I respectfully dissent, however, from the majority’s

affirmance of the separate award for an injury to Young’s right shoulder.

        The Commission found that Young sustained the shoulder injury while engaged in the

routine task of lifting himself up onto a platform on his work truck. Young had performed this

same task innumerable times without incident. Because Young’s shoulder injury was apparently

caused by his performance of his usual work duties in the normal manner, it does not appear that

Young’s shoulder injury was caused by an “unusual strain” as required by the definition of an

“accident” found in § 287.020.2.1 That injury would accordingly not be compensable.



        1
           Unless otherwise indicated, statutory citations refer to the 2000 edition of the Revised Statutes of
Missouri, as updated through the 2013 Cumulative Supplement. No substantive changes have been made to the
relevant statutory provisions since Young’s shoulder injury on October 2, 2009.
       The “unusual strain” requirement was added to the definition of an “accident” by the

2005 amendments to the Workers’ Compensation Law. At the time of the 2005 amendments, the

term “unusual strain” had been given a well-understood meaning in Missouri workers’

compensation caselaw for more than 60 years, and that interpretation was still being applied with

respect to particular classes of injuries. Under the well-establishing meaning of the term, an

“unusual strain” would only be found where a worker was injured while performing a task

outside his or her normal job responsibilities, or while performing a normal task in a non-routine

way. The legislative intent behind the addition of the “unusual strain” requirement to the

definition of “accident” in 2005 is obvious: to restore the understanding of the term “accident”

which had prevailed for 40 years prior to a 1983 Missouri Supreme Court decision. We cannot

ignore the copious and undeniable evidence of the legislature’s intent, whatever our views as to

the wisdom of the legislature’s policy choices.

       Because Young’s shoulder injury does not appear to have been caused by an “unusual

strain,” I would reverse the Commission’s award of compensation for that injury, and remand to

the Commission to reconsider the compensability of Young’s shoulder injury under a proper

understanding of the term “accident.”

                                           Discussion

       The Workers’ Compensation Law provides that:

               The word “accident” as used in this chapter shall mean an unexpected
       traumatic event or unusual strain identifiable by time and place of occurrence and
       producing at the time objective symptoms of an injury caused by a specific event
       during a single work shift. An injury is not compensable because work was a
       triggering or precipitating factor.

§ 287.020.2. The Act makes clear that the “accident” – meaning, the “unexpected traumatic

event” or “unusual strain” – must cause the claimant’s compensable injury, and the resulting

disability. Thus, § 287.020.3(1) states:


                                                  2
         An injury by accident is compensable only if the accident was the prevailing
         factor in causing both the resulting medical condition and disability. “The
         prevailing factor” is defined to be the primary factor, in relation to any other
         factor, causing both the resulting medical condition and disability.

(Emphasis added.) Similarly, § 287.020.3(2)(a) provides that “[a]n injury shall be deemed to

arise out of and in the course of the employment only if . . . [i]t is reasonably apparent, upon

consideration of the circumstances, that the accident is the prevailing factor in causing the injury

. . . .” (Emphasis added.)2

         Thus, to establish a right to worker’s compensation, a claimant must establish that an

“unexpected traumatic event” or “unusual strain” caused his injury. The majority opinion does

not contend that Young experienced “an unexpected traumatic event.”3 For reasons explained

below, it cannot be said that Young’s shoulder injury resulted from an “unusual strain,” either.

         According to the dictionary, “strain” means “excessive or difficult exertion or labor,” “a

violent or overtaxing effort.” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 2255

(1993 unabridged ed.). “Unusual” is defined as “being out of the ordinary,” “deviating from the

normal,” or “being unlike others.” Id. at 2514. “Unusual” is a relative term, however, and the

dictionary definition leaves open a critical question: “unusual” in relation to what?

         This question has been asked before, and answered in various ways. Workers’

compensation statutes across the country contain provisions, like § 287.020.2, which specify that




         2
            The majority opinion confuses this point, stating that under § 287.020.2, “the ‘accident’ must be caused
by a specific event during a single work shift.” Maj. Op. at 16. The majority misreads § 287.020.02, and
erroneously suggests that the “accident” must be the result of some other event, rather than being the cause of an
injury. Section 287.020.02 only requires that “objective symptoms of an injury” be “caused by a specific event
during a single work shift”; it does not require that the “accident” be caused in this manner. When read in
conjunction with §§ 287.020.3(1) and (2)(a), § 287.020.2 simply requires that an “accident” constitute “a specific
event during a single work shift.” This serves to distinguish an injury by “accident” from an injury constituting an
“occupational disease” (which can result from the repeated exposure to injury-causing conditions). § 287.067.
          3
            Although it is unnecessary to discuss the issue in detail, the dictionary definitions quoted by the majority
indicate that, as relevant here, a “traumatic event” requires “the application of external force or violence” to the
body. Maj. Op. at 14-15. No such “external force or violence” was involved in Young’s shoulder injury.


                                                            3
compensable injuries must result from “unusual” exertion or circumstances. As a leading treatise

explains, courts have interpreted the term “unusual” in these statutes in three different ways:

               To summarize: there can thus be identified three answers to the question:
         “unusual compared with what?” These are:

                  (1) Unusual compared with this employee’s normal strains.

                  (2) Unusual compared with the strains of employment life generally.

                  (3) Unusual compared with the wear and tear of everyday nonemployment
                      life.

Arthur Larson & Lex K. Larson, LARSON’S WORKERS’ COMPENSATION LAW § 44.05[4][d], at 44-

51 (2014).

         Although the majority opinion does not explicitly state how it interprets the word

“unusual” in § 287.020.2, it appears that the majority adopts the third alternative suggested by

the treatise-writer: namely, that a strain is “unusual” if it exceeds the level of exertion or

physical demand experienced in normal non-employment life. Thus, the majority opinion takes

pains to compare the lift required to climb onto Young’s truck to the rise of a normal stair, and

the height of an ordinary desk. Maj. Op. at 15. Similarly, the majority opinion states that,

although Young experienced the strain of lifting himself up onto his truck “repeated[ly],” that

strain was nonetheless “unusual.” Id. at 16, 19. The majority offers absolutely no justification

for adopting the third alternative meaning of the word “unusual,” when other interpretations are

equally available, and equally reasonable.4


         4
          It appears that the Commission’s decision (and arguably, the majority opinion) adopt a fourth definition of
“unusual,” under which a strain will be considered “unusual” whenever it produces an injury. The problem with
such a definition, of course, is that it is circular, and renders the term “unusual” redundant and unnecessary.
Section 287.020.3 already requires that an “unusual strain” cause an injury in order to support a claim for
compensation. The word “unusual” must do something more than simply repeat the requirement that a “strain”
cause an injury. See, e.g., Saint Charles Cnty. v. Dir. of Revenue, 407 S.W.3d 576, 578 (Mo. banc 2013) (“When
engaging in statutory construction, this Court recognizes that ‘every word, clause, sentence, and provision of a
statute must have effect,’” and that “the legislature did not insert superfluous words into a statute” (quoting 801
Skinker Blvd. Corp. v. Dir. of Revenue, 395 S.W.3d 1, 5 (Mo. banc 2013))); Bateman v. Rinehart, 391 S.W.3d 441,
446 (Mo. banc 2013).


                                                         4
       Contrary to the majority, I conclude that the phrase “unusual strain” in § 287.020.2 must

be interpreted consistently with the first option identified by the treatise; namely, a strain will be

considered “unusual” only when it exceeds the normal physical demands of the claimant’s job.

There are two considerations which require this result: (1) this is the way in which Missouri

workers’ compensation caselaw has consistently interpreted the concept of an “unusual strain”

(as part of the definition of an “accident”) since at least 1941; and (2) this is the way in which the

concept of an “unusual strain” continues to be applied with respect to particular types of injuries

under the Workers’ Compensation Law. Under well-established principles of statutory

construction, we are required to interpret the phrase “unusual strain” consistently with the way in

which it has previously been interpreted by Missouri courts, and consistently with the way the

same term is understood in other contexts under the Workers’ Compensation Law.

                                                 I.

       The term “unusual strain” has a well-developed, established meaning in the caselaw

applying Missouri’s Workers’ Compensation Law. Under long-standing principles of statutory

construction, we are required to read the term “unusual strain” consistently with this prior

judicial construction: “‘When the legislature enacts a statute referring to terms which have had

other judicial or legislative meaning attached to them, the legislature is presumed to have acted

with knowledge of that judicial or legislative action.’” Balloons over the Rainbow, Inc. v. Dir. of

Revenue, 427 S.W.3d 815, 825-26 (Mo. banc 2014) (quoting Cook Tractor Co. v. Dir. of

Revenue, 187 S.W.3d 870, 873 (Mo. banc 2006)); see also, e.g., Est. of Nelson v. Mo. Dep’t of

Social Servs., 363 S.W.3d 423, 426 n.5 (Mo. App. W.D. 2012). Resort to the accepted legal

definition of “unusual strain” is also required by § 1.090, which specifies that “technical words




                                                  5
and phrases having a peculiar and appropriate meaning in law shall be understood according to

their technical import.”5

         When first enacted, the Workers’ Compensation Law defined “accident” as “an

unexpected or unforeseen event happening suddenly and violently, with or without human fault

and producing at the time objective symptoms of an injury.” § 3305(b), RSMo 1929. The

earliest cases interpreted the statutory definition liberally, requiring only that the injury itself be

“unexpected or unforeseen.” See, e.g., Carr v. Murch Bros. Constr. Co., 21 S.W.2d 897, 899

(Mo. App. 1929).

         This liberal construction was rejected by the Missouri Supreme Court in State ex rel.

Hussman-Ligonier Co. v. Hughes, 153 S.W.2d 40 (Mo. 1941). In Hussman, the claimant

suffered a heart attack while carrying a bucket of water in the performance of his usual duties.

Id. at 41. The Supreme Court held that the claimant had not suffered an injury “by accident,”

and was therefore not entitled to compensation. The Court likened the Hussman case to its

earlier decision in DeLille v. Holton-Seelye Co., 66 S.W.2d 834 (Mo. 1933), which denied

compensation for death caused when an aneurysm ruptured while the claimant was sawing a

piece of lumber. The Court explained:

         The facts in the DeLille case, supra, are very similar to those in the instant case.
         In both, the injury and death were caused, or hastened, by an increased flow of
         blood through diseased blood vessels; such increased flow being due to necessary
         and customary physical exertion incident to the normal duties of the workman. In
         neither case was there any unusual occurrence, such as a slip, or fall, or abnormal
         strain.

Id. at 42 (emphasis added).


         5
            It is unclear whether it is necessary to find the term “unusual strain” to be ambiguous before referring to
the earlier caselaw interpreting the term. To the extent a finding of ambiguity is necessary, the treatise quoted above
establishes beyond question that the term “unusual” – as used in this specific context – is subject to multiple
potential meanings. This establishes the term’s ambiguity. See, e.g., State v. Liberty, 370 S.W.3d 537, 548 (Mo.
banc 2012) (“‘If statutory language is subject to more than one reasonable interpretation, then the statute is
ambiguous.’” (quoting State v. Graham, 204 S.W.3d 655, 656 (Mo. banc 2006))).


                                                          6
         Following Hussman, Missouri decisions repeatedly held that, in order to be compensable,

a claimant’s injury must arise from an “unusual or abnormal strain,” meaning physical demands

beyond those which were normal for the claimant’s particular employment. As the Court

explained in Schoessel v. Standard Automotive Components, 539 S.W.2d 708 (Mo. App. 1976),

         it has become clear that an employee must at least prove he suffered unusual and
         abnormal strain before he can receive compensation for an “accident.” A long
         line of cases attests to this fact. . . . Injuries produced by strains which are normal
         for the job to be performed in a customary fashion are not compensable although
         the amount of straining may be great or would be considered abnormal in other
         classes of employment.

Id. at 709-10 (citations and internal quotation marks omitted).

         Russell v. Southwest Grease & Oil Co., 509 S.W.2d 776 (Mo. App. 1974),6 similarly

recognized that this “unusual strain” rule had become an established component of Missouri’s

workers’ compensation jurisprudence. Russell affirmed the Commission’s denial of

compensation for a worker who died of a heart attack while unloading barrels from a truck,

because there was no evidence of an “unusual strain.”

         [T]he work being done by [the worker] on the afternoon of his death was simply
         his usual, ordinary routine type of work. The barrels were no bigger or different
         than those which he had been delivering for the past 5 or 6 years. The unloading
         by him from the truck by the hydraulic lift was no different than what he had
         previously done. Still further, there is no showing whatsoever of any slip, fall or
         other similar untoward event.

Id. at 781.

         Russell rejected the claimants’ argument that an “unusual strain” should not be required:

                 As an alternative proposition, claimants argue that the Commission erred
         in following the rule that in order for a heart attack to be compensable, the attack

         6
           Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), clarified the proper standard for
judicial review of Commission decisions, and overruled a large number of prior appellate decisions on this discrete
point of law. Id. at 223, 224–32. I cite and rely on several such cases in this opinion for legal propositions unrelated
to the standard of review, without further notation. In addition, as recognized in Kasl v. Bristol Care, Inc., 984
S.W.2d 852 (Mo. banc 1999), several of the cases cited in this opinion rely on a causation standard which was
abrogated by 1993 amendments to the Workers’ Compensation Law. This fact is not separately noted with respect
to each such case.


                                                           7
        must have resulted from an unusual strain not customarily exerted by the
        employee in his normal work. Claimants rely heavily upon the writings of
        Professor Larson, and they cite cases from other jurisdictions representing what is
        said to be the majority rule permitting recovery of compensation even in
        situations where the employee has not been subjected to unusual strain.

               The same arguments and the same authorities were presented to this court
        and were by this court rejected in Herbert v. Sharp Brothers Contracting Co., 467
        S.W.2d 105 (Mo. App. 1971), on the basis of authoritative Missouri Supreme
        Court decisions to the contrary. Since the decision in Herbert, the Missouri
        Supreme Court in Snuggs v. Steel Haulers, Inc., 501 S.W.2d 481, l.c. 485 (Mo.
        banc 1973) has reiterated the Missouri rule which requires unusual strain for the
        showing of an accident. Therefore, now with even more reason than was true
        when Herbert was decided, this court must adhere to the unusual strain rule.

Id. at 782.7

        Missouri courts applied this “unusual strain” doctrine in dozens upon dozens of cases.

Thus, some cases reversed Commission awards of compensation because of the lack of an

“unusual and abnormal strain,”8 others affirmed the Commission’s denial of compensation on

this basis,9 while still other cases held that a claimant was entitled to compensation because he or


        7
            The existence of this “unusual strain” doctrine was also recognized in, e.g., Robert Domrese & Stephen
Graham, Workmen’s Compensation in Missouri, 19 St. Louis U. L.J. 1 (1974):
          If a worker strains his back or suffers a hernia while doing his work in the usual fashion, it is to be
          anticipated. Only if the strain is accompanied by a sudden slip or a fall, or if the strain is
          abnormal, non-routine, and unexpected, will the injured worker qualify for compensation.
Id. at 23 (footnotes omitted).
          8
            See, e.g., Baker v. Krey Packing Co., 398 S.W.2d 185, 189 (Mo. App. 1965) (reversing award of
compensation where “[a]ccording to [claimant’s] own testimony he was doing exactly the same kind of work he had
done practically every working day for approximately five years, and was performing it in his usual and customary
manner”); Flippin v. First Nat’l Bank of Joplin, 372 S.W.2d 273 (Mo. App. 1963) (reversing award of compensation
based on conclusion that claimant failed to present evidence of an “unusual or abnormal strain” where worker died
of heart attack after shoveling snow from sidewalk), overruled by Snuggs v. Steel Haulers, Inc., 501 S.W.2d 481,
486 (Mo. banc 1973).
          9
            See, e.g., Principe v. Great Atl. & Pac. Tea Co., 618 S.W.2d 284, 285-86 (Mo. App. W.D. 1981);
Schoessel, 539 S.W.2d at 710 (“Here we have a situation where the employee was engaged in his normal work,
using the same method he had often used, without any variance of his routine. The only thing unusual was the onset
of pain.”); Gold v. Sharp, Kidde, Webb, 564 S.W.2d 612, 614 (Mo. App. 1978); Roux v. Dugal’s Big Star Food
Store, 510 S.W.2d 810, 812 (Mo. App. 1974) (worker who injured back while stooping down to pick up coupon off
the floor; “whether the claimant has sustained an accident within the meaning of § 287.020(2) is dependent upon
whether there was an abnormal or unusual strain which brought about her injury. Where an employee experiences
an injury as a result of normal and customary duties and within the normal routine there is no compensable
accident.”); Mason v. F.W. Strecker Transfer Co., 409 S.W.2d 267, 270 (Mo. App. 1966) (noting distinction
between “cases [where] there was some evidence of an unusual or abnormal strain,” and “cases where one suffers an
injury in the course of his usual work and no abnormal or unusual strain is present”; affirming denial of
compensation for back injury sustained while loading hand truck with cargo, where there was no evidence of any


                                                        8
she had presented sufficient evidence of an “unusual or abnormal strain” causing their injuries.10

The cases cited in the preceding footnotes are only a small sampling of the Missouri appellate

decisions which applied the concept of an “unusual or abnormal strain” in determining the

compensability of workplace injuries.

         The Missouri Supreme Court abandoned the “unusual strain” requirement in Wolfgeher v.

Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983). Wolfgeher recognized that the

“unusual strain” doctrine, which had developed following Hussman, required that a worker be

injured doing something other than his or her routine work in the normal way:


“slip, fall or other mishap which caused the injury,” or that there was anything “unusual in the manner in which
[claimant] was working.”); Harryman v. L-N Buick-Pontiac, Inc., 402 S.W.2d 828, 831 (Mo. App. 1966) (back
injury sustained by automobile mechanic while leaning into vehicle’s engine compartment to remove head from
engine block; no “unusual or abnormal strain”; “if the employee suffers an injury resultant from a strain while he is
engaged in doing his normal or customary duties without variance from his normal routine, it is not a compensable
accident within the meaning of the statutes”); Brandt v. E.O. Dorsch Elec. Co., 400 S.W.2d 452, 456 (Mo. App.
1966) (affirming finding that claimant “suffered no abnormal or unusual strain” causing back injury; claimant was
injured while hoisting light fixture up to scaffolding where he was working); Hall v. Mid-Continent Mfg. Co., 366
S.W.2d 57, 63 (Mo. App. 1963) (claimant injured while attempting to remove material which was stuck in machine;
“Her method in attempting to loosen the machine was identical with the method used by her on various other
occasions and over a period of many months.”).
           10
              Snuggs v. Steel Haulers, Inc., 501 S.W.2d 481, 485 (Mo. banc 1973) (reversing Commission’s denial of
compensation, and concluding that truck driver’s fall and resulting skull fracture were caused by an “accident,”
because driver “was subjected to an unusual, abnormal and continuous physical and mental strain” in having to work
for 27-hour period to meet a deadline); Davies v. Carter Carburetor, 429 S.W.2d 738, 747-48 (Mo. 1968) (affirming
Commission’s award of benefits where claimant injured back when he lost his balance while lifting a tray of
automotive parts); Merriman v. Ben Gutman Truck Servs., Inc., 392 S.W.2d 292, 297-98 (Mo. 1965) (reversing
Commission’s denial of compensation; undisputed evidence established that claimant “was required to assume an
extended position with his body which placed him completely out of a normal, usual or routine lifting position”
while lifting “a heavy, cumbersome coil of rope”; “The strain was thus abnormal; was unexpected in that it was
more strain than claimant anticipated he would exert, and hence was an accident within the meaning of Section
287.020(2)”); Crow v. Missouri Implement Tractor Co., 307 S.W.2d 401, 405 (Mo. banc 1957) (reversing
Commission’s denial of compensation, and clarifying that “where an employee's injury is the result of an unusual or
abnormal strain arising out of and in the course of his employment, the injury is compensable. An abnormal strain
may, therefore, be classified as an accident even though not preceded or accompanied by a slip or a fall.”); Homan v.
Am. Can Co., 535 S.W.2d 574, 576 (Mo. App. 1976) (evidence supported Commission’s finding of an “unusual or
abnormal strain” where machine operator injured back when the stack of strips he was attempting to lift to feed into
the machine shifted and worker assumed an awkward position and exerted more force than usual as he attempted to
stabilize the stack); Wilson v. Kansas City, 479 S.W.2d 135, 140 (Mo. App. 1972) (reversing Commission’s denial
of compensation, and finding that claimant’s injuries resulted from “unusual or abnormal strain,” where claimant
was injured when boom operator mistakenly lowered tree onto the ground next to the hole prepared for it, rather
than into the hole, and claimant attempted to lower tree into hole himself); Herbert v. Sharp Bros. Contracting Co.,
467 S.W.2d 105, 108 (Mo. App. 1971) (reversing Commission’s denial of benefits where decedent suffered heart
attack as a result of assisting in moving and starting 1,500 to 2,000-pound electrical generator; emphasizing that
decedent, a supervisor, was “‘engaged in doing something beyond and different from his normal routine,’”
consisting of “‘overexertion’ [which] was ‘unusual to the deceased’”).


                                                         9
        The unexpected or abnormal strain usually results from the performance of work
        in an abnormal manner or in a manner not routine, but this is not necessarily so.
        Abnormal strain may also result from the lifting of heavy objects while in an
        awkward or unbalanced posture where the worker is subjected to stress of
        unforeseen force or duration.

Id. at 783 (citations omitted). Wolfgeher abandoned the “unusual strain” requirement, reasoning

that it was inconsistent with the liberal construction to be applied to the Worker’s Compensation

Law, and with the underlying purpose of the Act to place the cost of workplace injuries on

employers; “prevent[ed] compensation for gradual and progressive injuries which result from

repeated or constant exposure to on-the-job hazards”; was inconsistent with the statutory

treatment of occupational disease claims; and was inconsistent with the interpretation applied by

the vast majority of other States. Id. at 785.

        Later decisions recognize that Wolfgeher had the effect of eliminating the “unusual

strain” requirement from Missouri worker’s compensation jurisprudence. Thus, in Wynn v.

Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. banc 1983), the Supreme Court observed that

Wolfgeher “eras[ed] the abnormal or unusual strain requirement,” and “teaches that the right to

compensation is not lost simply because the strains described are not unusual.” Id. at 89.11 The

most recent case recognizing Wolfgeher’s abandonment of the “unusual strain” concept was

Bennett v. Columbia Health Care, 80 S.W.3d 524 (Mo. App. W.D. 2002). After discussing the

history of the interpretation of the term “accident” in Missouri’s Worker’s Compensation Law,

Bennett explained that in the case before it, the administrative law judge “took the position that,

to be compensable, Bennett’s injury had to be immediately preceded by either a sudden fall . . .

        11
           See also, e.g., State ex rel. McDonnell Douglas Corp. v. Ryan, 745 S.W.2d 152, 154 (Mo. banc 1988)
(Wolfgeher “h[e]ld[ ] that a[n] unexpected work-related injury not produced by unusual or abnormal strain is an
‘accident’”); Carter v. Jones Truck Lines, Inc., 943 S.W.2d 821, 824 (Mo. App. S.D. 1997); Rector v. City of
Springfield, 820 S.W.2d 639, 642 (Mo. App. S.D. 1991) (en banc); Arens v. Delcon Corp., 760 S.W.2d 914, 915-16
(Mo. App. W.D. 1988); Westerhold v. Unitog–Holden Mfg. Co., 707 S.W.2d 456, 458 (Mo. App. W.D. 1986)
(“Wolfgeher does not eliminate the statutory requirement of accident but dispenses with the employee’s need to
prove abnormal or unusual strain to show an accident.”); Staab v. Laclede Gas Co., 691 S.W.2d 343, 344 (Mo. App.
E.D. 1985); Matthews v. Roadway Express, Inc., 660 S.W.2d 768, 771 (Mo. App. S.D. 1983).


                                                      10
or by some unusual strain upon her knee.” Id. at 529. The Court held that “[t]his was an

erroneous application of the law under Wolfgeher.” Id.

       While it may be that Wolfgeher “eras[ed] the abnormal or unusual strain requirement” in

1983,12 the General Assembly resurrected that requirement in 2005, and restored the pre-

Wolfgeher understanding of the term “accident.” Any contrary interpretation of § 287.020.2 is

inconsistent with this obvious legislative intent.

                                                II.

       Besides the pre-Wolfgeher caselaw applying the “unusual strain” requirement, a second

compelling reason exists to interpret the phrase “unusual strain” to require some exertion beyond

the ordinary physical demands of the claimant’s employment: despite Wolfgeher, the “unusual

strain” concept continued to be applied in 2005 under other provisions of the Worker’s

Compensation Law, and the interpretation of the concept in connection with those other statutory

provisions was consistent with the pre-Wolfgeher decisions.

       “‘[W]hen the same or similar words are used in different places within the same

legislative act and relate to the same or similar subject matter, then the statutes are in pari

materia and should be construed to achieve a harmonious interpretation of the statutes.’”

Williams v. State, 386 S.W.3d 750, 754 (Mo. banc 2012) (quoting State v. Knapp, 843 S.W.2d

345, 347 (Mo. banc 1992)).

       The phrase “unusual strain,” which was added to the definition of an “accident” in 2005,

has appeared in § 287.195 since 1957. Section 287.195, which addresses the compensability of

work-related hernias, provides:




       12
            Wynn, 654 S.W.2d at 89.


                                                  11
                 In all claims for compensation for hernia resulting from injury arising out
         of and in the course of the employment, it must be definitely proved to the
         satisfaction of the division or the commission:

                  (1)      That there was an accident or unusual strain resulting in hernia;

                 (2)     That the hernia did not exist prior to the accident or unusual strain
         resulting in the injury for which compensation is claimed.

(Emphasis added.)

         The term “unusual strain,” as used in § 287.195, has been interpreted consistently with

the pre-Wolfgeher caselaw. Thus, in McClain v. Yellow Cab Co., 439 S.W.2d 200 (Mo. App.

1969), the Court explained that

                 Performance of any manual task is accompanied by a certain degree of
         straining the muscles and other parts of a workman’s body. The amount of strain
         incurred will, of course, vary according to the work to be accomplished and the
         circumstances and conditions under which it is being performed. Injuries
         produced by strains which are normal for the job to be performed in a customary
         fashion are not compensable although the amount of straining may be great or
         would be considered abnormal in other classes of employment or if performed in
         an abnormal manner under unusual circumstances. On the other hand, if an
         employee suffers an unexpected and abnormal strain (at least while he is engaged
         in doing something beyond and different from his normal routine) and, as a result
         thereof, sustains an injury which is not the result of orderly natural causes, the
         injury is (the result of) an accident.

Id. at 203 (citations and internal quotation marks omitted); see also Pattengill v. General Motors

Corp., 845 S.W.2d 630, 631 (Mo. App. E.D. 1992).13 McClain reversed the Commission’s


         13
            The majority opinion suggests that Pattengill adopted the post-Wolfgeher understanding of an “accident.”
Maj. Op. at 19-20 n.15. That contention simply misreads Pattengill. Although Wolfgeher ultimately rejected the
“unusual strain” requirement, it first described the contours of the “unusual strain” doctrine. It is that part of
Wolfgeher – which describes the “unusual strain” doctrine – which is quoted in Pattengill. 845 S.W.2d at 632. The
standard Pattengill derives from Wolfgeher – that an “unusual strain” includes “the lifting of heavy objects while in
an awkward or unbalanced posture where the worker is subjected to stress of unforeseen force or duration” – is fully
consistent with the other “unusual strain” cases discussed in this opinion. Id. In addition, the other two cases cited
by Pattengill clearly adhere to the “unusual strain” requirement as it was applied prior to Wolfgeher. Id. (citing
Merriman v. Ben Gutman Truck Serv., Inc., 392 S.W.2d 292, 297-98 (Mo. 1965) (finding compensable injury when
claimant “was required to assume an extended position with his body which placed him completely out of a normal,
usual or routine lifting position,” and was injured while “exerting his full force in that position”); Alexander v. Pin
Oaks Nursing Home, 625 S.W.2d 192, 193 (Mo. App. E.D. 1981) (“Work done in an awkward or unbalanced
position, albeit in the execution of a regular assignment, which causes the employee to undergo a stress exceeding
the usual and begets an unanticipated strain, results in a compensable injury.”)). The injury-causing event in


                                                         12
award of compensation to a taxicab driver who suffered a hernia as a result of loading a

customer’s luggage into his cab, because of a lack of evidence that the driver was exerting

himself in a manner that was “unusual or abnormal to that customarily experienced in the

discharge of his usual duties.” 439 S.W.2d at 205.

         A similar reading has been applied to § 287.120.8, which states that “[m]ental injury

resulting from work related stress does not arise out of and in the course of the employment,

unless it is demonstrated that the stress is work related and was extraordinary and unusual.”

Under § 287.120.8, “disabilities arising from work related stress are subject to the ‘unusual

strain’ doctrine.” George v. City of St. Louis, 162 S.W.3d 26, 30 (Mo. App. E.D. 2005). And

here too, an “unusual strain” requires that the worker experience stress which is out of the

ordinary for the worker’s particular employment: “‘[T]he proper comparison for purposes of

Section 287.120.8 . . . is to compare Employee’s work-related stress with the stress encountered

by employees having similar positions, regardless of employer, with a focus on evidence of the

stress encountered by similarly situated employees for the same employer.’” Schaffer v. Litton

Interconnect Tech., 274 S.W.3d 597, 602-03 (Mo. App. S.D. 2009) (footnote omitted; quoting

Williams v. DePaul Health Ctr., 996 S.W.2d 619, 628 (Mo. App. E.D. 1999)); see also Carnal v.

Pride Cleaners, 138 S.W.3d 155, 158-59 (Mo. App. W.D. 2004); Sherman v. First Fin.

Planners, Inc., 41 S.W.3d 633, 637 (Mo. App. E.D. 2001).

         Thus, at the time the legislature modified the definition of an “accident” in 2005, an

“unusual strain” requirement was being applied in two other contexts in the Worker’s

Compensation Law. In each of those contexts, the phrase was interpreted to require that an



Pattengill plainly satisfied the well-established understanding of an “unusual strain”: the claimant “was injured
while standing on top of a 12-foot ladder and reaching up as far as he could to guide a 300- to 500-pound object
suspended over his head by ropes held by four men.” 845 S.W.2d at 632.


                                                         13
employee experience stresses or demands outside those which were typical in the employee’s

particular occupation.

       In interpreting a statute, we presume that the General Assembly enacts new legislation

with knowledge of existing law, and with knowledge of the interpretation which appellate courts

have placed on existing statutes. See, e.g., E&B Granite, Inc. v. Dir. of Revenue, 331 S.W.3d

314, 317 (Mo. banc 2011); Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 667 (Mo. banc

2010). Here, the “unusual strain” concept has been employed in two other contexts within the

Worker’s Compensation Law, and has been interpreted identically in both contexts. We must

presume that the 2005 General Assembly intended to adopt this uniform interpretation of the

“unusual strain” requirement.

                                               III.

       Reliance on the pre-2005 caselaw discussed above is not precluded by § 287.020.10,

which provides:

               In applying the provisions of this chapter, it is the intent of the legislature
       to reject and abrogate earlier case law interpretations on the meaning of or
       definition of “accident”, “occupational disease”, “arising out of”, and “in the
       course of the employment” to include, but not be limited to, holdings in: Bennett
       v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo. App. W.D.
       2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. banc 1999); and Drewes
       v. TWA, 984 S.W.2d 512 (Mo. banc 1999) and all cases citing, interpreting,
       applying, or following those cases.

(emphasis added).

       Section 287.020.10 did not erase history, and does not prevent our reliance on the

caselaw applying the “unusual strain” requirement. First, § 287.020.10 plainly does not apply to

the interpretation of an “unusual strain” in connection with hernia injuries under § 287.195, or in

connection with stress-related psychological injuries under § 287.120.8.




                                                 14
        Second, I find it hard to believe that in 2005 the legislature felt it necessary to “reject and

abrogate” pre-Wolfgeher caselaw interpreting the term “accident,” when that caselaw had already

been overruled by the Missouri Supreme Court more than twenty years earlier. The more

plausible reading of § 287.020.10 is that it had the effect of restoring the pre-Wolfgeher

understanding of an “accident”: Bennett described and applied Wolfgeher’s rejection of the

“unusual strain” requirement, and § 287.020.10 specifically lists Bennett as a case the General

Assembly “rejected and abrogated.”

        Third, and most importantly, the 2005 legislature for the first time added an explicit

“unusual strain” requirement into the “accident” definition. As explained in §§ I and II, above,

the “unusual strain” concept was well understood in 60 years of Missouri caselaw at the time of

the 2005 amendments, and was being employed in connection with other provisions of the

Worker’s Compensation Law which were unchanged by the 2005 amendments. The

legislature’s specific incorporation of an “unusual strain” requirement into the definition of an

“accident” must take precedence over the general edict of § 287.020.10 that prior caselaw is

abrogated. See, e.g., Turner, 318 S.W.3d at 668 (“The doctrine of in pari materia recognizes

that statutes relating to the same subject matter should be read together, but where one statute

deals with the subject in general terms and the other deals in a specific way, to the extent they

conflict, the specific statute prevails over the general statute.”).

                                                IV.

        Wolfgeher offered cogent policy reasons for abandoning the “unusual strain”

requirement: that requirement is inconsistent with the law in a majority of the States; it treats

injuries by “accident” and by “occupational disease” differently; and it is inconsistent with the

general purpose of the Workers’ Compensation Law to impose the cost of workplace injuries on

employers. To this I would add that, if the “unusual strain” requirement is interpreted as I


                                                   15
believe it must be, it may limit compensation in occupations in which workers are subject to the

most strenuous physical demands, and face the highest risk of injury. In those physically

demanding occupations, a certain incidence of workplace injuries may be an inevitable aspect of

the work, even when that work is performed in the customary and routine manner. A compelling

argument could be made that these are precisely the sorts of injuries which should be

compensable: employers should bear the cost of accidents which are an inherent by-product of

employees’ customary work. Yet the 2005 legislature adopted precisely the opposite approach.

       While there may be strong public policy reasons for a broad definition of covered

“accidents,” I am not aware of any legal principle which prevented the General Assembly from

adopting a more narrow compensation standard. And that is what it did by amending the

“accident” definition in 2005 to impose an “unusual strain” requirement. Whether I consider that

decision to be good or bad public policy is irrelevant; we must apply the statute as written.

“Courts determine questions of power, not policy.” Bader Realty & Inv. Co. v. St. Louis Housing

Auth., 217 S.W.2d 489, 493 (Mo. banc 1949); see also, e.g., State ex rel. Reser v. Rush, 562

S.W.2d 365, 369 (Mo. banc 1978); State ex rel. KCP&L Greater Mo. Operations v. Cook, 353

S.W.3d 14, 27 (Mo. App. W.D. 2011) (en banc) (citing State v. Rowe, 63 S.W.3d 647, 649-50

(Mo. banc 2002)). And, although resurrection of the “unusual strain” requirement may be

anachronistic, it can hardly be considered absurd or irrational. This was, after all, the legal

standard which governed the compensability of all accidental workplace injuries from the time of

the Hussman decision in 1941, through the overruling of that case in Wolfgeher in 1983.

                                            Conclusion

       When it added the “unusual strain” requirement to the definition of an “accident” in

2005, the General Assembly acted against the backdrop of 60 years of workers’ compensation

caselaw which interpreted the phrase. Under the well-establishing meaning of the term, an


                                                 16
“unusual strain” would only be found where a worker was injured while performing a task

outside his or her normal job responsibilities, or while performing a normal task in a non-routine

way. The legislature evidently intended to apply this “unusual strain” doctrine to all injuries, not

just to particular classes of injuries, and thereby restore the definition of an “accident” which had

prevailed for more than 40 years prior to the Supreme Court’s decision in Wolfgeher.

       The majority’s reading of the post-2005 “accident” definition ignores the obvious

evidence of legislative intent concerning the “unusual strain” requirement. Under a correct

understanding of the “unusual strain” requirement, Young’s shoulder injury would not be

compensable. I therefore dissent in part, and would reverse the Commission’s award related to

Young’s right shoulder injury. Because this is an issue of first impression, and because Young

may not have anticipated the evidentiary burden placed upon him by the post-2005 “accident”

definition, I would remand the case to the Commission to afford Young an opportunity to present

evidence to satisfy the standard discussed in this opinion.




                                                      Alok Ahuja, Chief Judge




                                                 17
