Kay Brown v. Christian County, Missouri

compounded by the added pressure of having to complete multiple tasks affecting statewide election results, governed by time constraints. Also, stating that she had lost her footing, and describing a feeling as if her ankle had given out, is not inconsistent with her suffering a fall as a consequence of having her left foot stuck under the rolling cabinet, when she turned and attempted to take a step (emphasis added).

After consideration and review of the evidence, and after having been presented with the opportunity to view Ms. Brown at the hearing of this case, I find Ms. Brown to be credible. I accept as true Ms. Brown's testimony and description of the accident as presented at the evidentiary hearing. I find and conclude that at the time of her fall she was looking through the folders when one of her staff called to her, she believed Paula Brumfield, and she turned to her right. When she turned, her left foot was situated underneath and against the wheel of the rolling file cabinet. As she attempted to take a step, and because of the positioning of her foot situated underneath and against the wheel, her left foot was prevented from moving forward, causing her to fall to the ground. ${ }^{2}$

Employer's application for review references several cases which uphold the Commission's rejection of an employee's testimony or testimony of witness who testified on the employee's behalf. ${ }^{3}$ None of these authorities suggest that an employee's hearing testimony must be discredited because the employee gave different, less detailed and/or incomplete accounts of the circumstances of a work injury earlier in time.

Employer's authorities reiterate the well-established precedent that, with respect to credibility findings, "the issue is one of fact and the [c]ommission's finding will not be disturbed unless the [c]omission acted unreasonably in accepting testimony that was not substantial or decided the issue contrary to the overwhelming weight of the evidence." ${ }^{4}$ In this case we give careful consideration to an ALJ's credibility determination based on his first-hand observation of the employee and other witnesses. Based upon our review of all of the evidence in the record, we find that employee is credible.

Employer argues that employee's injury did not arise out of and in the course of her employment because " $[t]$ he overwhelming weight of the competent credible evidence shows the hazard causing employee to fall was that of turning, twisting her ankle, and falling off her shoe."5 This argument fails because we defer to the ALJ's finding that the employee is credible, and we therefore accept her sworn description of the accident as presented before the ALJ.

Employer challenges the ALJ's suggestion that employer raised an affirmative defense by arguing that employee's injury resulted from idiopathic reasons and then failed to meet its burden of proving it more likely than not that employee "merely fell." ${ }^{6}$ As employer's application for review notes, for purposes of the workers' compensation law, "idiopathic" means a condition

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[^0]: ${ }^{2} Award, pp. 14-15.

{ }^{3}$ Johnson v. Indiana Western Express, Inc. 281 S.W.3d 885, 892 (Mo. App. 2009); Walker v. Skaggs Comm. Hosp., 935 S.W.2d 370 (Mo. App. 1996); Deffendoll v. Stupp Brothers, 415 S.W.2d 36 (Mo. App. 1967).

${ }^{4} Johnson V. Indiana Western Express, Inc., 281 S.W3d at 892.

{ }^{5}$ Employer/Insurer's Application for Review, p. 6.

${ }^{6}$ Section 287.020.3.(3) provides "An injury resulting directly or indirectly from idiopathic causes is not compensable." Section 287.808 RSMo provides "The burden of establishing any affirmative defense is on the employer...In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."

peculiar or innate to the individual. ${ }^{7}$ We find that employer did not raise a defense premised upon the "idiopathic cause" provision of $\S 287.020 .3(3)$, but rather argued that employee's fall was not compensable because it was unexplained. We agree that this argument did not constitute an affirmative defense and did not shift the burden of proof to employer.

Having said that, we nevertheless adopt the following analysis and conclusions of law set out in the ALJ's decision:

The adjudication of this issue involves a "risk source analysis" required by Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo banc 2012); and Miller v. Missouri Highway and Transportation Commission, 287 S.W.3d 67 (Mo banc 2009). In the present case, this analysis involves a determination of whether the injury sustained by Ms. Brown caused by the turning and attempting to take a step of August 21, 2014, arose out of and in the course of her employment with the employer, Christian County. As to this concern, the facts readily support a finding that at the time of the turning and attempting to take a step, the employee was in a location and was performing work because of her employment. Further, she sustained the injury due to the condition of her employment, being situated in the clerk's office, working at a rolling file cabinet. At the time Ms. Brown sustained her injury, she turned and attempted to take a step in such a way that her left foot became stuck underneath or against the wheel of the rolling file cabinet, causing her to lose her footing and to fall to the ground. There is no evidence that such facts exist equally in Ms. Brown's normal nonemployment life (emphasis added). ${ }^{8}$

Employer alleges the ALJ erred in awarding employee $\ 40,515.36 in past medical expenses.

Division of Workers' Compensation Rule 8 CSR 50-2.010(14) states, in pertinent part, "Prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues (emphasis added)." At hearing the ALJ identified "whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\mathbf{\$ 4 0 , 5 1 5 . 3 6}$ (emphasis added) as a disputed issue."9

In his award, the ALJ found as follows:

Exhibit 5 concerning medical expenses was admitted into evidence. These expenses correlate with the medical treatment outlined in Exhibits 2, 3 and 4, the medical records of Ferrell Duncan Clinic, Southwest Spine and Sports Medicine and Cox Medical Center respectively. The Employer does not contest these charges (emphasis added). The medical expenses are reasonable, and relate to reasonable and necessary medical care to cure and relieve the employee from the effects of the work injury of August 21, 2014. See, for example, Ellis v. Treasurer, 302 S.W.3d 217 (Mo.App. S.D. 2009); Farmer-Cummings v. Personnel Pool of Platte County, 110 S.W.3d 818 (Mo banc 2003). ${ }^{10}$

On appeal, employer contends employee should not be awarded past medical because she did not sustain a compensable injury. This argument fails because we have found that employee

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[^0]: ${ }^{7}$ Alexander v. D. L. Sitton Motor Lines, 851 S.W.2d, 525, 527, no. 3 (Mo. 1993).

${ }^{8} Award, p. 16

{ }^{9} Tr. 7.

{ }^{10}$ Award. p. 10.

sustained a compensable accident arising out of and in the course of her employment on August 21, 2014. Employer was obligated, pursuant to $\S 287.140$ RSMo, to provide that treatment reasonable and necessary to cure or relieve employee's work-related injury.

Employer next argues that the ALJ's award of past medical expenses should be reversed because employee failed to demonstrate that she remains actually liable for $\ 40,515.36 in past medical charges and failed to prove that her medical treatment was reasonable or necessary to cure or relieve a work injury.

First, we note that employer repeatedly misstates, throughout its application for review and briefs filed in this matter, the well-settled case law in this area. Contrary to employer's assertion, an injured employee is not required to testify as to the question of actual liability for disputed past medical charges in order to meet her burden of proof. Instead, as the courts have consistently declared, an award of past medical expenses is supported when the record includes (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bills; and (3) testimony from the employee establishing the relationship between the bills and the disputed treatment. See Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. 1989); Shores v. General Motors Corp., 842 S.W.2d 929, 932 (Mo. Ct. App. 1992); Meyer v. Superior Insulating Tape, 882 S.W.2d 735, 739 (Mo. App. 1994); Metcalf v. Castle Studios, 946 S.W.2d 282, 288 (Mo. App.