Betty Yount v. Circle K

pursuant to 8 CSR 50-2.010(8)(B). The administrative law judge disposed of the issue by concluding that medical causation is a question of law, not fact, and therefore employer was not precluded from disputing that issue even if it filed an untimely answer.

Contrary to the administrative law judge's analysis, the Missouri courts have held that the issue of medical causation is one of fact. See, e.g., Sanderson v. Porta-Fab Corp., 989 S.W.2d 599, 603 (Mo. App. 1999)(stating that "[w]hether or not the employment is a substantial factor in causing the injury is a question of fact.") In light of this precedent, it appears to us that if employee had alleged, in her claim for compensation, that the accident of January 17, 2010, was the prevailing factor causing her to suffer the resulting medical condition of a peroneal tendon tear, that employer's answer, if late, would be deemed to admit those facts pursuant to 8 CSR 50-2.010(8)(B). But because employee did not so allege, there is no basis for a conclusion that employer admitted the specific issue of medical causation involved in this case. For this reason, we conclude that 8 CSR 50-2.010(8)(B) does not work the effect that employer was precluded from disputing the issue of medical causation.

We modify the award of the administrative law judge as to the issue of the nature and extent of permanent partial disability employee suffered as a result of the accident of January 17, 2010.

Employer is liable for $\ 13,650.46 in permanent partial disability benefits.

The award and decision of Administrative Law Judge Gary L. Robbins, issued July 25, 2013, is attached and incorporated by this reference to the extent not inconsistent with our award and decision herein.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $6^{\text {th }}$ day of May 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? January 17, 2010.
5. State location where accident occurred or occupational disease contracted: Jefferson County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

On April 29, 2013, the employee, Betty J. Yount, appeared in person and with her attorney, John J. Larsen Jr. for a hearing for a temporary award. The parties indicated that a final award should be prepared if the Court did not order the employer-insurer to provide additional medical care. The employer-insurer was represented at the hearing by their attorney, Edward L. Weiss. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Circle K was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Ace American Insurance Company.
2. On January 17, 2010, Betty J. Yount was an employee of Circle K and was working under the Workers' Compensation Act.
3. On January 17, 2010, the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 528.40, resulting in a compensation rate of $\ 352.27 per week for all purposes.
7. The employer-insurer paid $\ 5,198.38 in medical aid.
8. The employer-insurer paid $\ 704.51 in temporary disability benefits.
9. The employee has no claim for previously incurred medical bills.
10. The employee has no claim for mileage.
11. The employee had no claim for any temporary disability benefits.
12. The employee has no claim for permanent total disability.
13. The parties agreed that the employee reached maximum medical improvement as of February 1, 2010, if she receives no additional medical care.

1. Medical Causation - Whether the employee's need for additional medical care after February 1, 2010 is medically causally related to the accident?
2. Additional Medical Care.
3. Permanent Partial Disability.
4. If the employer-insurer fails to file a timely answer is the need for medical care a factual issue and therefore admitted?

The following exhibits were offered and admitted into evidence:

Employees Exhibits:

A. Deposition of David T. Volarich, D.O.

B. Division of Workers' Compensation records.

C. Medical records of Seth M. Anderson, DPM.

D. Medical records from St. Anthony's Medical Center.

E. Medical records.

Employer-insurer Exhibits:

1. Deposition of John O. Krause, M.D.

The employee, Betty J. Yount was the only witness to personally testify at trial. All other evidence was presented in the form of written records, medical records or deposition testimony.

On January 17, 2010, the employee was employed by Circle K as an assistant manager. Her duties included stocking, cleaning, customer service and various other activities on a day to day basis. She works on her feet virtually her whole shift. She sustained injury on January 17, 2010, when she missed a rung while descending a ladder and fell backwards against an ice machine and onto the floor. In this process, the employee injured her right ankle, low back and left hip. She said that her ankle popped. There were no witnesses to the incident.

Immediately following this event, employee was unable to bear weight on her right lower extremity. She crawled to the front of the store and called the store manager for assistance. After the store manager arrived, the employee was taken to the hospital by her father.

Employee was seen in the emergency room at St. Anthony's Hospital shortly after midnight following the accident. Records referable to this emergency room visit document complaints referable to employee's back, left hip, and right ankle. X-rays were taken of the employee's injuries, including the ri