            SUPREME COURT OF MISSOURI
                                       en banc
MARAL ANNAYEVA,                                 )       Opinion issued March 17, 2020
                                                )
                    Appellant,                  )
                                                )
v.                                              )       No. SC98122
                                                )       Consolidated with
SAB OF THE TSD OF THE CITY                      )       No. SC98124
OF ST. LOUIS,                                   )
                                                )
and                                             )
                                                )
TREASURER OF MISSOURI AS                        )
CUSTODIAN OF THE SECOND                         )
INJURY FUND,                                    )
                                                )
                     Respondents.               )

     APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

       Maral Annayeva appeals a decision from the Labor and Industrial Relations

Commission ("Commission") denying her claim for workers' compensation benefits for

injuries sustained when she fell while entering her place of work. Annayeva failed to prove

her injury arose out of and in the course of her employment; therefore, the Commission's

denial of workers' compensation benefits is affirmed.
                     Factual Background and Procedural History

       Maral Annayeva worked as an English as a second language teacher at Roosevelt

High School in St. Louis. On January 8, 2013, Annayeva drove to Roosevelt, parked in

the school parking lot, and walked into the school carrying a bag containing various folders,

student papers, and lesson plans. Annayeva entered the school through a set of double

doors, passed a security guard station, and headed toward the room where she clocked-in.

At some time during the walk, Annayeva slipped on Roosevelt's linoleum floor, causing

her to fall forward and land on her hands and knees. Annayeva was taken for treatment to

the school nurse's office, where she filled out an accident report noting she could not

determine what had caused her to slip and fall.

       Annayeva then went to the emergency room at St. Mary's Hospital complaining of

back and knee pain. She returned to the emergency room the next day due to the pain she

was experiencing. After missing a few days of work due to the accident, Annayeva

returned to work for several days but stopped after having difficulties teaching. She did

not work again until August 2013, when the new school year began. She worked for two

days but again stopped after experiencing too much pain.           Annayeva testified she

experienced pain in her legs, back, head, right thigh, right hip, neck, arms, right shoulder

and fingers.    Additionally, Annayeva complained of breathing problems, stomach

problems, liver problems, anxiety, depression, dizziness, nausea, face drooping, and cysts

on her fingers. For her ailments, Annayeva sought and received an extensive list of medical




                                             2
treatments 1 including: injections, x-rays, physical therapy, spinal adjustments, an MRI, and

water therapy, as well as several other doctor's visits, medical tests, and medications.

       In addition to her testimony, Annayeva presented evidence of her medical records,

transcripts of doctors' depositions, and medical bills. The Special Administrative Board of

the Transitional School District of the City of St. Louis ("SAB") presented deposition

testimony of three other doctors who evaluated Annayeva and one other doctor's medical

records. The ALJ denied Annayeva any workers' compensation benefits, noting:

       [Annayeva] has failed to provide credible testimony to this Court. It is clear
       [Annayeva's] description of her injuries and their subsequent effects verge
       on the point of malingering. As all, if not most, of [Annayeva's] medical
       expert testimony relies . . . on [Annayeva's] own subjective description of her
       maladies[.] There is little or no objective medical finding to support any of
       [Annayeva's] anomalies. [Annayeva] has not met her burden of showing the
       incident of January 8, 2013 was the prevailing factor causing the
       physiological and/or psychological complaints.

       Annayeva appealed the ALJ's denial of benefits to the Commission, which affirmed

the ALJ's decision with a supplemental opinion. 2           In its supplemental opinion, the

Commission held Annayeva failed to establish that her injury arose out of her employment.

The Commission determined any evidence, including Annayeva's testimony, 3 regarding

the soiled condition of the floor on the day of her accident was not credible and held,




1
   SAB referred Annayeva to Concentra for medical treatment. After evaluation, Concentra
provided her with a knee brace and ordered physical therapy, which Annayeva attended twice.
The remainingmedical treatments were sought by Annayeva individually.
2
  When the Commission adopts the findings of the ALJ, appellate courts review those findings as
if originally made by the Commission. § 287.495.1, RSMo 2000.
3
  Annayeva testified the condition of the linoleum floor on the day of the accident was "normal"
but, after being repeatedly questioned by her attorney, she recanted this answer and testified the
floor was covered by particles of dirt, ice, dust, and moisture.
                                                3
"[w]ithout additional support in the record for the alleged hazardous condition of the

hallway floor, we find that the only risk source in this matter was that of walking, one to

which [Annayeva] would have been equally exposed in normal non-employment life."

After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V,

§ 10.

                                      Standard of Review

         This Court reviews all final decisions, findings, rules, and orders of the Commission

to determine "whether the same are supported by competent and substantial evidence upon

the whole record." Mo. Const. art. V, § 18. The Commission's decision will be affirmed

unless: "(1) the Commission acted without or in excess of its powers; (2) the award was

procured by fraud; (3) the facts found by the Commission do not support the award; or

(4) there was not sufficient competent evidence in the record to warrant the making of the

award." White v. ConAgra Packaged Foods, LLC, 535 S.W.3d 336, 338 (Mo. banc 2017);

§ 287.495.1, RSMo 2000. 4 "Upon appeal no additional evidence shall be heard and, in the

absence of fraud, the findings of fact made by the [C]ommission within its powers shall be

conclusive and binding." § 287.495.1, RSMo 2000. In addition to findings of fact, this

Court also defers to the Commission's determinations as to credibility of witnesses and the

weight given to conflicting evidence. Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664

(Mo. banc 2015).




4
    All statutory references are to RSMo Supp. 2008, unless otherwise provided.
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                                              Analysis

       Missouri's Workers' Compensation Law ("Act") was amended in 2005 "to provide

that its provisions are to be construed strictly and to require the evidence to be weighed

impartially without giving any party the benefit of the doubt." Miller v. Mo. Highway and

Transp. Comm'n, 287 S.W.3d 671, 673 (Mo. banc 2009) 5; § 287.800. Under the Act, an

injury is compensable only when the claimant demonstrates the injury has arisen out of and

in the course of employment. § 287.020.3(1); Johme v. St. John's Mercy Healthcare, 366

S.W.3d 504, 509 (Mo. banc 2012) ("[T]he workers' compensation claimant[] bears the

burden of proof to show that her injury was compensable in workers' compensation.").

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

       (a) It is reasonably apparent, upon consideration of all the circumstances, that
           the accident is the prevailing factor 6 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.

§ 287.020.3(2)(a)-(b). "For an injury to be deemed to arise out of and in the course of the

employment under section 287.020.3(2)(b), the claimant employee must show a causal

connection between the injury at issue and the employee's work activity." Johme, 366

S.W.3d at 510.




5
  "Prior to the 2005 amendments, the [A]ct's provisions were required to be construed liberally in
favor of compensation." Id. at 673.
6
  "'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing
both the resulting medical condition and disability." § 287.020.3(1) (emphasis omitted).
                                                   5
         This Court recognized in Miller and Johme that failure to prove the hazard or risk

causing the employee injury was related to employment to which the employee would not

have been equally exposed outside of work is fatal to an employee's workers' compensation

claim.

         In Miller, a road crew worker was repairing a section of road on Route N in Pike

County. Miller, 287 S.W.3d at 672. While walking on the flat road back to a truck

containing repair material, Miller felt his knee pop. Id. Miller required surgery to repair

an impinging medial shelf plica. Id. Miller sought workers' compensation benefits, which

the Commission denied. Id. This Court affirmed the Commission's decision, holding

Miller failed to prove his injury arose out of and in the course of his employment because

nothing about his work transformed his walk to the truck into a hazard or risk he was not

equally exposed to in normal, nonemployment life. Id. at 674. Said differently, an injury

occurring at work does not automatically make such an injury compensable; some

condition of employment must create a hazard or risk the employee would not be equally

exposed to in normal, nonemployment life. Id. 7

         In Johme, a billing representative at a hospital tripped and fell after making a pot of

coffee in the workplace kitchen.         366 S.W.3d at 505-06.        Johme sought workers'

compensation benefits, which the Commission awarded. Id. at 507. This Court reversed,

holding Johme failed to prove her injury arose out of and in the course of her employment

because no evidence demonstrated her injury was caused by a risk related to her


7
  "An injury is not compensable because work was a triggering or precipitating factor."
§ 287.020.2.
                                                6
employment activity as opposed to a risk she was equally exposed to in normal life. Id. at

512.

       Annayeva attempts to distinguish her situation from those cases by arguing the

condition of Roosevelt's linoleum floor on the day of the accident was a hazard or risk she

was not exposed to in her normal, nonemployment life. The Commission found the only

evidence presented regarding the floor's condition was Annayeva's testimony that the floor

was covered with particles of dirt, ice, dust, and moisture. The Commission, however,

determined this testimony was not credible. 8           Because this Court is bound by the



8
  Annayeva contends the Commission's determination that her testimony was not credible was not
supported by competent and substantial evidence on the whole record. This contention
misunderstands the nature of that requirement. Only factual findings that are necessary to make
an award for the employee must be supported by competent and substantial evidence on the whole
record. See Mo. Const. art. V, § 18; § 287.495.1, RSMo 2000; White, 535 S.W.3d at 338.
Credibility determinations, on the other hand, do not and – once expressed by the Commission –
are binding on this Court. Greer, 475 S.W.3d at 664. Annayeva's overall burden of proof is made
up of two separate burdens, the burden of persuasion and the burden of production. Krispy Kreme
Doughnut Corp. v. Dir. of Revenue, 488 S.W.3d 62, 67 (Mo. banc 2016). "The burden of
[production] is a party's duty to introduce enough evidence on an issue to have the issue decided
by the fact fact-finder[.]" Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49, 53 n.6 (Mo. banc 2001)
(internal quotations omitted). In a workers' compensation case, an employee meets this burden
when she introduces competent and substantial evidence on the whole record sufficient to support
a finding on each of the facts necessary to that award. The burden of persuasion, on the other
hand, requires the employee actually "to convince the fact-finder to view the facts in a way that
favors [her]." Krispy Kreme Doughnut Corp., 488 S.W.3d at 67. Assuming arguendo that
Annayeva carried her burden of production as to the condition of the linoleum floor through her
testimony, it is clear Annayeva failed to meet her burden of persuasion. In its findings, the
Commission analyzed why it was not persuaded by Annayeva's description of the floor. First,
Annayeva originally testified the floor was "normal" and only changed her answer upon repeated
questioning by her attorney. Second, the Commission reviewed the accident report Annayeva
filled out in the nurse's office immediately after her fall; it explicitly provided she did not know
what the cause of her accident was. Third, the Commission reviewed Annayeva's medical records,
none of which mentioned the condition of the linoleum floor at the time of the accident. Because
it did not believe Annayeva's testimony, the Commission concluded she had failed to carry her
burden of convincing the Commission that her injury arose out of or in the course of her
employment.
                                                 7
Commission's credibility determinations when they are expressed in the award or denial of

benefits and the weight the Commission gives to conflicting evidence, it must treat

Annayeva's testimony regarding the condition of the floor as not persuasive. Greer, 475

S.W.3d at 664. Because Annayeva has failed to produce any credible evidence regarding

the soiled condition of the floor, her walk into school was no different from any other walk

taken in her normal, nonemployment life. Under § 287.020.3(b), Annayeva's workers'

compensation claim is not compensable.

                                        Conclusion

       Just like the claimants in Miller and Johme, Annayeva failed to prove her injury

arose out of and in the course of her employment because the hazard or risk involved was

one Annayeva was equally exposed to in her normal, nonemployment life. Therefore, she

has failed to carry her burden of proof, and the Commission's denial of benefits is affirmed.




                                                    ________________________
                                                    Zel M. Fischer, Judge

All concur.




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