         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT

MISSOURI DEPARTMENT OF                      )
SOCIAL SERVICES,                            )
                                            )
               Appellant,                   )
                                            )
vs.                                         )       WD78159
                                            )
GWENDOLYN BEEM,                             )       Opinion filed: October 13, 2015
                                            )
               Respondent.                  )


      APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

                  Before Division Two: Thomas H. Newton, Presiding Judge,
                     Victor C. Howard, Judge and Mark D. Pfeiffer, Judge


        The State of Missouri, Department of Social Services (“DSS”) appeals the decision of the

Labor and Industrial Relations Commission awarding workers’ compensation benefits to

Gwendolyn Beem. DSS argues that Ms. Beem’s injury did not arise out of and in the course of

her employment with DSS because Ms. Beem was on break when the injury occurred and

because the extension of premises doctrine did not apply because DSS allegedly did not control

the parking lot where the injury occurred. DSS also contends that Ms. Beem failed to prove that

she was not equally exposed to the risk or hazard causing her injury in her nonemployment life.

The judgment is affirmed.
                             Factual and Procedural Background

        Ms. Beem worked for DSS at the time of her injury. DSS allowed, but did not require, its

employees to take a fifteen-minute paid break in the morning and afternoon, during which

employees were allowed to leave the premises. On February 1, 2010, Ms. Beem took a break

around 10:00 a.m. to go home and let her dog out. Ms. Beem exited the building and walked

across the parking lot toward her car. The parking lot had been plowed and the snow was piled

on the sidewalks. Snow from a pile on the sidewalk had melted and refrozen on the parking lot.

Ms. Beem slipped on this ice on the way to her car, suffered a broken ankle, and required surgery

to repair the ankle.

                                      Standard of Review

        The Missouri Constitution, Article V, Section 18 provides for judicial review of the

Commission’s award to determine whether the award is “supported by competent and substantial

evidence upon the whole record.” Section 287.495.1 further indicates:

        The court, on appeal, shall review only questions of law and may modify, reverse,
        remand for rehearing, or set aside the award upon any of the following grounds
        and no other:
        (1) That the commission acted without or in excess of its powers;
        (2) That the award was procured by fraud;
        (3) That the facts found by the commission do not support the award;
        (4) That there was no sufficient competent evidence in the record to warrant the
        making of the award.

“The constitutional standard (‘supported by competent and substantial evidence upon the whole

record’) is in harmony with the statutory standard (‘sufficient competent evidence in the

record’).” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). Thus,

“[a] court must examine the whole record to determine if it contains sufficient competent and

substantial evidence to support the award, i.e., whether the award is contrary to the

overwhelming weight of the evidence.” Id. at 222-23. The Commission is responsible for


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determining the credibility of witnesses and the weight and value to be given to evidence, and

such determinations will not be disturbed on review unless they are against the overwhelming

weight of the evidence. Tilley v. USF Holland Inc., 325 S.W.3d 487, 491, 495 (Mo. App. E.D.

2010).

                                         Discussion

         DSS argues that Ms. Beem’s injury did not arise out of and in the course of employment

because (1) Ms. Beem was on break when the injury occurred, and (2) the extension of premises

doctrine did not apply because DSS allegedly did not control the parking lot where the injury

occurred. The Commission found that because “[t]he unrebutted testimony of [Ms. Beem]

establishes that [Ms. Beem] slipped while she was walking to her car to depart her place of

employment[,] [t]he extension of premises doctrine applies in this case.” The Commission

further concluded that DSS controlled the parking lot and that it was part of the customary,

expressly or impliedly approved, permitted, usual and acceptable route or means employed by

workers to get to and depart from their places of labor, so as to meet the limitations of section

287.020.5.

Extension of Premises Doctrine

         Ms. Beem’s injury is compensable even giving due consideration to the undisputed fact

that she was traversing the parking lot of her own accord as part of a paid break, not mandated by

DSS, during which she intended to leave DSS’s premises to go home and let her dog out.

         Prior to 2005, injuries were not deemed to have arisen out of and in the course of

employment unless they happened while employees were “engaged in or about the premises

where their duties [were] being performed, or where their services require[d] their presence as a

part of such service.” § 287.020.5, RSMo 2000.



                                                3
       Courts subsequently developed what came to be referred to as the “extension of

premises” or “extended premises” doctrine as an exception to the general rule of

noncompensability of injuries occurring on the trip to or from work. Scholastic, Inc. v. Viley,

452 S.W.3d 680, 683 (Mo. App. W.D. 2014). The doctrine specified that such injury arose “out

of and in the course of” employment if (1) it occurred on premises that were “owned or

controlled by the employer” or “have been . . . so appropriated by the employer or . . . so situate,

designed and used by the employer and his employees incidental to their work as to make them,

for all practical intents and purposes, a part and parcel of the employer’s premises and operation”

and (2) “that portion of such premises is a part of the customary, expressly or impliedly

approved, permitted, usual and acceptable route or means employed by workers to get to and

depart from their places of labor and is being used for such purpose at the time of injury.” Id. at

683 n.3 (quoting Wells v. Brown, 33 S.W.3d 190, 192 (Mo. banc 2000)).

       The Workers’ Compensation Act was amended in 2005, limiting its scope and

construction. Viley, 452 S.W.3d at 683. The extension of premises doctrine was “abrogated to

the extent it extend[ed] liability for accidents that occur on property not owned or controlled by

the employer even if the accident occurs on customary, approved, permitted, usual or accepted

routes used by the employee to get to and from their place of employment.” § 287.020.5, RSMo

(Cum. Supp. 2005). The 2005 amendments also require the Workers’ Compensation Act to be

strictly construed, thus the extended premises doctrine is “not totally eliminated but is now

limited to situations where the employer owns or controls the area where the accident occurs.”

Viley, 452 S.W.3d at 684 (emphasis in original). For purposes of our application of the extension

of premises doctrine, “control” is given its plain meaning: “‘1. To exercise power or influence

over .... 2. To regulate or govern.... 3. To have a controlling interest in.’” Hager v. Syberg's



                                                 4
Westport, 304 S.W.3d 771, 776 (Mo. App. E.D. 2010) (quoting BLACK'S LAW DICTIONARY

(8th ed. 2004)).

       Because extension of premises cases involve injuries sustained before or after the actual

performance of job duties, the legislature clearly contemplated and accepted compensability of

injuries sustained as a result of work-related risks even though employee was not engaged in the

performance of job duties at the time (e.g. going to or coming from employer's worksite).

Recent Missouri cases have applied the retained extension of premises doctrine and confirmed

that compensation is not limited to workers injured while actively engaged in their duties. E.g.,

Viley, 452 S.W.3d 680; Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo. App. E.D. 2012);

Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. S.D. 2014).

       In Viley, the claimant was awarded compensation for an injury he sustained when he fell

on ice on a parking lot controlled by employer while he was walking to his car at the conclusion

of his work shift. Viley, 452 S.W.3d at 681-82. The Viley court distinguished Hager v. Syberg’s

Westport, 304 S.W.3d 771 (Mo. App. E.D. 2010), in which the claimant also slipped on ice in

the parking lot while walking from his place of employment to his car, but the Hager court found

that, based on the definition of “control” and the provisions of the employer’s lease, the

employer did not “exercise power or influence” over the parking lot and did not “regulate or

govern” it. 452 S.W.3d at 684.

       In Hager, the lease granted the employer the “right to use” parking facilities that were

shared with occupants and guests of other premises. 304 S.W.3d at 776. It provided that

landlord was in charge of managing and maintaining the premises and reserved to landlord the

right to make changes or alterations to the premises for common use among tenants and to make

rules and regulations as to the use of the parking areas by all those authorized to use them. Id. at



                                                 5
776-77. In Viley, on the other hand, the lease provided employer “exclusive use for parking of

Tenant’s Automobiles” in the subject parking lots. 452 S.W.3d at 684. Furthermore, the lots at

issue were expressly governed by separate provisions from areas of common use, which were

subject to the exclusive control and management of the landlord. Id. at 684 n.6.

       In addition to analyzing the lease provisions, both the Hager court and the court in Viley

discuss the course of conduct of the employers and landlords as relevant to the issue of control.

Hager, 304 S.W.3d at 777; Viley, 452 S.W.3d at 685. In Hager, the court mentioned that the

landlord permitted the employer and its employees and guests to choose their own parking

spaces, while the landlord retained ultimate control over parking decisions. 304 S.W.3d at 777.

In Viley, although the court ultimately decides the “exclusive use” lease provision is sufficient to

establish control for purposes of the extended premises statutory provision, it includes a

discussion of evidence regarding the course of conduct pertaining to the subject parking lots as

showing that employer “was authorized to, and did, exercise power over, regulate, and govern

the lots.” 452 S.W.3d at 685. The employer had at times ejected non-employees from the lots,

regularly contacted the landlord requesting maintenance for the lots, which the landlord was

obligated to provide pursuant to the lease, occasionally complained of the snowy and icy

condition of the lots to the landlord, and required certain employees to report unsafe driving

incidents occurring in the lots to a supervisor. Id.

       Here, DSS leased the subject parking lot, along with the office building in which Ms.

Beem worked, from Blandwal, Incorporated (“Blandwal”). The lease contained the following

provisions relevant to analysis of control of the parking lot:

       The LESSOR agrees to provide 23 parking spaces located on the premises or
       within a reasonable distance from the premises.




                                                  6
       The LESSOR agrees to direct and pay for removal of snow and ice from the
       sidewalks and parking area and to provide and pay for general lawn care.

The lease also provides that DSS had the right to transfer its interest in the lease, including the

parking lot, to other governmental entities without Blandwal’s approval.

       The Commission found that the language of the lease between Blandwal and DSS

distinguished it from that in Hager. In Hager, the subject lot was a common area under the lease

terms, 304 S.W.3d at 776, whereas the lot in the instant case was not. The Hager lease explicitly

provided “exclusive control” of the common area parking lot to the landlord, whereas the lease

between Blandwal and DSS makes no such provision, granting only that landlord would provide

the parking spots and direct and pay for snow and ice removal in the area. Another important

difference is the Hager lease’s provision that the landlord had the power to make rules and

regulations regarding the use of the subject lot, as opposed to the lease between Blandwal and

DSS, under which Blandwal does not have the authority to make rules about DSS’s use of the

lot. Furthermore, the Hager lease provided the subject lot would be managed and maintained

under the landlord’s supervision, as opposed to the lease here which gives Blandwal no such

authority, but rather obligates Blandwal to clear the lot of snow and ice.

       In sum, the lease between Blandwal and DSS provides very limited retention of control

rights to Blandwal, and, granting use of the lot only to DSS without explicitly reserving for itself

any particular rights as to the lot, in effect accords such rights to DSS. The possibility that

Blandwal could move the parking spaces within a reasonable distance does not show that DSS

did not control the lot. See, Hardesty v. Mr. Cribbin’s Old House, Inc., 679 S.W.2d 343, 346-47

(Mo. App. E.D. 1984) (holding that tenant had exclusive control of the portion of the lot upon

which the parking spots guaranteed by the landlord were located where the lease contained a

provision allowing the landlord to change the location of the spaces). The lease language

                                                 7
supports the Commission’s finding of DSS’s control of the lot sufficient to bring it under the

extension of premises doctrine.

       As to the course of conduct of Blandwal and DSS regarding the lot, the Commission

found that Blandwal did not promptly clear snow and ice during the course of the lease, and

when such delay occurred, many times employees of DSS, including Ms. Beem, cleared the

sidewalks in the lot with supplies purchased with their own funds. On one occasion Ms. Beem

was told to contact the landlord when the parking lot and sidewalks were not cleared, and it was

discovered that the landlord had no one scheduled to remove snow at the lot. Ms. Beem

contacted a snow removal contractor to clear the lot at that time. The foregoing conduct supports

the Commission’s conclusion that DSS controlled the lot by governing the condition of the lot

and exercising power and influence over the lot in hiring the contractor for clearance when

Blandwal did not provide it. The course of conduct between the parties to the lease supports the

Commission’s finding that DSS controlled the lot sufficient to bring it under the extension of

premises doctrine.

Equal Exposure

       Concluding that the extension of premises doctrine applies to Ms. Beem’s injury, we

proceed to the determination of whether her injury arises out of and in the course of employment

pursuant to section 287.020.3(2). Section 287.020.3(2) controls this determination, providing

that

       [a]n 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




                                                8
        (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.

        DSS does not contest that the February 1, 2010, accident was the “prevailing factor” in

causing Ms. Beem’s injury.           Thus, the remaining issue is limited to the construction and

application of section 287.020.3(2)(b). Under paragraph (b), if Ms. Beem’s injury did not come

from a hazard or risk unrelated to the employment to which she would have been equally

exposed outside of, and unrelated to, the employment in her nonemployment life, then her injury

arose out of and in the course of employment. See § 287.020.3(2)(b).

        The equal exposure consideration should center on whether the employee was injured

because he or she was at work, rather than simply while he or she was at work. Viley, 452

S.W.3d at 686. The focus of the equal exposure analysis should be not on what the employee

was doing when the injury occurred, but rather on whether the risk source of the injury was one

to which the employee is exposed equally in his or her nonemployment life. Id. (citing Johme v.

St. John’s Mercy Healthcare, 366 S.W.3d 504, 511 (Mo. banc 2012)).

        DSS contends that Ms. Beem failed to prove that she was not equally exposed to the risk

or hazard causing her injury in her nonemployment life. DSS argues that Beem’s risk source

was walking on an icy parking lot and that being exposed to an icy parking lot is a hazard or risk

to which Ms. Beem was equally exposed in her nonemployment life. DSS further argues that it

was Ms. Beem’s burden to prove that she was not equally exposed to icy parking lots, or in the

alternative, at least that she was not equally exposed to the icy parking lot in which she was

injured, in her nonemployment life, and that she failed to do so.1



1
  DSS’s argument treats the analyses of “hazard or risk” in Hager and Viley as inconsistent, and seems to indicate
that either might apply here; however, the Viley court addressed the issue in a footnote:


                                                        9
        DSS’s argument is contrary to decided cases. As noted by the Viley court,

        [e]ven assuming arguendo that [employee] was equally exposed to the hazard of
        slipping and falling on an icy parking lot in his nonemployment life, his injury
        still arose out of his employment because there is nothing in the record to support
        a conclusion that he was equally exposed to the hazard of slipping on the icy
        parking lot at that particular work site in his nonemployment life.

452 S.W.3d at 687; see also, Duever, 371 S.W.3d at 867-68; Dorris, 436 S.W.3d at 592 (“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”) (citing the implicit ruling in Duever).

        Furthermore, as noted by this Court in Young v Boone Electric Cooperative:

        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.

462 S.W.3d 783, 790 n.9 (Mo. App. W.D. 2015).

        Here, Ms. Beem established that her injury arose from the hazard of slipping on the ice

that had refrozen on the parking lot controlled by DSS. Ms. Beem established that being

employed at DSS exposed her to that particular hazard, in that DSS employees parked in the

subject lot and had to use it in order to come and go from DSS’s office each work day.

Therefore, she proved that the hazard was related to her employment. The Commission’s

“fail[ure] to do any analysis as to whether Beem was equally exposed to the parking lot in her


        Hager was decided before Johme, Duever, and Dorris, does not distinguish Miller [v. Mo.
        Highway & Transp. Comm’n, 287 S.W.3d 671, 672–74 (Mo. banc 2009)], and does not examine
        whether the employee was exposed to the risk of that particular icy parking lot in his employment
        versus nonemployment life.

452 S.W.3d at 687 n.9. The analysis in Viley, which does account for all relevant precedent mentioned above, is
binding precedent rather than the broader test used in Hager.

                                                       10
normal nonemployment life” merely indicated that DSS failed to point to any evidence tending

to disprove the prima facie case already made by Ms. Beem.

                                         Conclusion

       For all the reasons stated above, Ms. Beem’s injury arose out of and in the course of her

employment. Accordingly, the Commission did not err in awarding Ms. Beem benefits for her

2010 ankle injury. The judgment is affirmed.




                                            __________________________________________
                                            VICTOR C. HOWARD, JUDGE

All concur.




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