Gwendolyn Beem v. Missouri Department of Social Services

(Reversing Award and Decision of Administrative Law Judge)

Injury No. 10-005912

Employee: Gwendolyn Beem

Employer: Missouri Department of Social Services

Insurer: C A R O

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision reversing the February 28, 2014, award and decision of the administrative law judge.

The primary issue we must decide is whether employee sustained an injury by accident arising out of and in the course of her employment. If we decide the primary issue in the affirmative, we must determine how much compensation employer owes to employee.

The administrative law judge identified the primary issue for determination at trial as "whether employee, Gwendolyn Beem, sustained an accident arising out of and in the course of her employment with the Missouri Department of Social Services on February 1, 2010." The parties do not dispute that on February 1, 2010, employee slipped on ice in the parking lot adjacent to the building in which employer directed employee to work and that employee sustained injury to her left lower extremity as a result of the slipping incident.

The administrative law judge accurately recounted the circumstances and mechanism of employee's slip and resulting injury in paragraphs four and five of the "Discussion" section of his award. We adopt the administrative law judge's findings in this regard, as supplemented herein.

Employee works in a building located at 1661 Hilltop Drive, in Warsaw, Missouri. ${ }^{2}$

Employer first leased the building in 1994 and has continuously leased the building since that time. The 1994 lease was executed by and between employer and Gib Adkins/Wyota Investments, Inc. At some point, Wyota Investments transferred ownership of the property upon which the building and parking lot sits to Blandwal, Incorporated (Blandwal) so at the time of employee's injury, the lease was between Blandwal and employer. Mike Walters

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

${ }^{2}$ At the time of the execution of the original lease, the address of the building was 2175 Hilltop Drive.

was the principal of Blandwal with whom employer conducted its negotiations and communications regarding the leased property.

The lease contains the following provisions relevant to our analysis:

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

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.

Notably, the lease does not reserve to Blandwal exclusive control of the parking lot. Nor does the lease prohibit employer from removing snow and ice from the sidewalks and parking area or from performing general lawn care.

Employer's designee testified that employer leased both the building and the parking lot at 1661 Hilltop Drive. Her testimony coupled with the stipulation of employer's counsel that employer leased the parking lot from Mike Walters convinces us that the lease in the instant case created a landlord/tenant relationship between Blandwal and employer as to the building and the parking lot. We find that on the date of employee's fall, employer had a leasehold interest in the parking lot upon which employee was injured.

To fulfill its lease obligation to provide 23 parking spaces to employer for its use, Blandwal provided the parking spaces in the lot adjacent to the building; that is, Blandwal provided for employer's use the "spaces located on the premises." The employer's designee testified that generally, the visiting public parked in the parking spaces in front of the building by the entrance to the building. Employees generally parked on the lot running from the side of the building out to the street. Employee generally parked in the spot adjacent to the street and she was parked there on the day of her injury.

Although Blandwal agreed to pay for removal of snow and ice from the sidewalks and parking area, it was all-too-common during the course of the lease that Blandwal did not promptly clear snow and ice. According to the testimony of employee and employer's designee, on many of those occasions individuals employed by employer - including employee and employer's designee - cleared the sidewalks throughout the lot with supplies purchased with their own funds.

Employee testified that after one significant snowfall, she was the only one of employer's workers to make it to the office. Upon arriving, employee discovered that the parking lot and sidewalks were not cleared. Employee called employer's designee who told employee to contact Mike Walters. It was during his telephone conversation with employee that Mike Walters discovered he had no one under contract to perform snow removal at 1661 Hilltop Drive. On that occasion, employee contacted Crain's - a snow removal contractor - to clear the lot and sidewalks for employer.

Blandwal eventually contracted with Crain's to clear the parking lot after snow and ice events and contracted with one of employer's workers (Robert DeWitt) to clear the sidewalks. Crain's performed snow removal from the lot after the snow event that immediately preceded the date of employee's injury. Crain's shoveled some of the snow from the parking lot into a significant pile on a sidewalk adjacent to the section of the lot considered to be the employee parking area. It was this pile of snow blocking the sidewalk that forced employee to be on the parking lot at the time of her fall and it was melting snow from this pile which ran onto the parking lot and refroze to form the black ice patch upon which employee slipped resulting in her injury.

Employee offered into evidence medical records documenting the medical treatment she received for her injured leg and ankle. We highlight treatment milestones here. The Warson-Lincoln Ambulance District transported employee to Bothwell Regional Health Center (Bothwell) in Sedalia by ambulance. The ambulance crew administered intravenous pain medication en route. Emergency room staff ordered diagnostic films which confirmed employee had fractures of her fibula and tibia with dislocation. Dr. Kiburz performed surgery late in the afternoon. The operative note records employee's preoperative diagnosis was a fracture/dislocation of the left ankle. Hand-written notes in Dr. Kiburz's records record employee also had syndesmotic ligament disruption and torn ligaments/tendons. Dr. Kiburz recorded the procedure he perfomed as an "ORIF with syndesmotic fixation and splinting." Dr. Kiburz's records indicate he affixed the following hardware to employee's left lower extremity: a semitubular plate on employee's fibula (with five cortical screws), a syndesmotic ligament anchor, and a malleolar screw on employee's tibia.

The hospital discharged employee on February 4, 2010. Dr. Kiburz next examined employee on February 10, 2010 at which time he put employee's leg in a cast. At this visit, Dr. Kiburz released employee to return to light duty work on February 16, 2010. Dr. Kiburz next examined employee on March 3, 2010, at which time he took new x-rays and applied a new cast. Dr. Kiburz examined employee again on March 17, 2010, at which time he placed employee in an air cast. Dr. Kiburz prescribed physical therapy. Employee participated in physical therapy until her release from therapy on April 23, 2010. Dr. Kiburz last examined employee on April 14, 2010, with the note reading "at this point will return as needed, hoping not to take the metal out."

Employee introduced medical bills reflecting the charges for employee's medical treatment:

Employee testified that employer has paid no amount toward the above-described bills.

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[^0]: ${ }^{3} Total charges on the bill for employee's 2010 treatment equal \ 3,200.00. In order to grant employee an office visit, Dr. Kiburz's office required employee to pay for some visits. Three credit card payments totaling $\ 240.00 are credited against the balance. Employee is entitled to reimbursement of these payments.

${ }^{4}$ The Bothwell Regional Health Center bills reflect adjustments and/or payments by UMR, the administrator of employee's health coverage.

Employee testified she walks with a strange gait. She explained that going down stairs is particularly difficult and she has to take stairs one at a time. Employee reported she has difficulty walking on uneven terrain and often wears an ankle brace, even to walk in her yard. Employee explained that when the instrumentation in her leg gets cold (for example, in air conditioning) she can feel the cold run up the bone in her leg. Employee keeps a blanket at her desk to keep her leg warm. Employee testified that due to her ankle condition she is no longer able to engage in her hobbies in the manner she could before the injury. She has given up playing tennis. If employee hikes on a trail - something she used to do frequently - she is sore for a couple days. Employee has given up running longer distances because the pounding causes discomfort. She also is unable to cross her legs at the ankle because the screws in her leg cause her discomfort. Employee testified she has difficulty sleeping due to pain if the hardware in her leg comes into contact with anything. Employee states it feels as if her left leg is longer than her right leg. Employee has difficulty engaging in climbing activities requiring her to flex her foot at the ankle such as climbing a ladder. Employee experiences fatigue if she stands for long periods.

Employee takes ibuprofen to relieve symptoms associated with her ankle injury. Based upon a conversation with her evaluating physician Dr. David Volarich, employee believes the discomforting instrumentation could be removed from her leg because the bones in her leg and ankle have reached maximum healing.

We find credible employee's testimony.

Dr. Volarich evaluated employee and issued a report on October 25, 2010. His opinions are the only expert medical opinions appearing of record and stand unchallenged.

Dr. Volarich relayed employee's history that her ankle ached 75 % of the time and remains swollen. Employee also reported difficulty walking down steps or slopes. Employee said she takes steps one at a time on her tiptoes and uses a handrail. Employee reported she is unable to walk on uneven terrain without an ankle brace and she must wear a brace when gardening. When shopping, employee said she uses a shopping cart as a walker due to her concern about slick surfaces. Employee reported difficulty sleeping due to the hardware in her ankle. She also is unable to cross her legs at the ankle and knee due to discomfort caused by the hardware. Employee is also unable to stand with her leg behind her. Employee's ankle is sensitive to cold and when the hardware gets cold it sends pain up her leg to her hip. Employee stated that due to her ankle condition she has given up hiking and playing tennis and she has difficulty running and biking. Employee also reported difficulty squatting and kneeling due to the angle of her injured ankle.

Dr. Volarich diagnosed employee with bimalleolar fracture/dislocation status post open reduction internal fixation including syndesmotic screw fixation and mild bilateral SI joint discomfort secondary to abnormal weight bearing. Dr. Volarich believes that employee's February