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

[^0]

[^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

[^0]

[^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. 1997); Esquivel v. Day's Inn, 959 S.W.2d 486, 488 (Mo. App. 1998); Goerlich v. TPF, Inc., 85 S.W.3d 724, 732 (Mo. App. 2002); Treasurer of the State v. Hudgins, 308 S.W.3d 789, 791 (Mo. App. 2010); and Abt v. Miss. Lime Co., 420 S.W.3d 689, 703 (Mo. App. 2014).

When these three elements are met, the burden shifts to the employer to prove some reason the award of past medical expenses is inappropriate (such as employee's liability for them has been extinguished, the charges are not reasonable, etc.) See Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818, 822-23 (Mo. 2003); Ellis v. Mo. State Treasurer, 302 S.W.3d 217, 225 (Mo. App. 2009); Proffer v. Fed. Mogul Corp., 341 S.W.3d 184, 190 (Mo. App. 2011); and Maness v. City of De Soto, 421 S.W.3d 532, 544 (Mo. App. 2014).

Employer's suggestion that an employee must testify as to the extent of her liability for disputed past medical expenses is not well taken. We note that the Martin employee testified that she "received" the bills at issue in connection with treatment for her work injury, and no less authority than the Supreme Court of Missouri held that this was sufficient to shift the burden to the employer. See Martin, 842 S.W.2d at 111-12.

We further note that our courts have recently rejected a nearly identical argument in the case of Maness v. City of De Soto, 421 S.W.3d 532 (Mo. App. 2014). There, the court made clear that an injured employee is not required to explain the bills themselves or testify as to actual liability for various charges in order to shift the burden to employer under Martin:

Relying on Martin, Employer asserts that Claimant's testimony was without credibility or probative value because he stated that he did not know if he could read and understand Exhibit K and that he did not know "the specifics, the detail of what's included in Exhibit K." However, we find nothing in Martin requiring a claimant to testify that he can read and understand the specifics of the medical bills. Instead, the Martin court found sufficient the claimant's testimony identifying the bills "as being related to and the product of her injury."

Id. at 544-45 (footnote omitted).

Employee: Kay Brown

- 5 -

Employer argues that the *Maness* case is distinguishable, because there, the record included documents the employee signed agreeing to be responsible for the total charges for services rendered by one of the providers. *Id.* at 546. We are not persuaded. The *Maness* court discussed those documents in the context of analyzing whether the employer had carried its burden of proving entitlement to credits for various unexplained write-offs and reductions, and did not suggest that the employee was required to provide such evidence to shift the burden under *Martin*. *Id.* Employer essentially asks us to read *Maness* as establishing an additional element of proof that an employee must satisfy before the burden is shifted to the employer, but the court specifically stated that "[t]he bills, Claimant's testimony identifying the bills, and the accompanying medical records constitute a sufficient factual basis under *Martin* for the Commission's award of past medical expenses." *Id.* at 544.

Far from establishing a new requirement that an employee personally opine as to the extent of liability for past medical expenses, the *Maness* court confirms and reinforces the longstanding and unbroken line of cases applying the *Martin* burden-shifting analysis.

Here, employee presented her medical records, the medical bills reflecting the disputed charges, and her own testimony detailing the self-directed treatment she received following her work injury. Employee's Exhibit 5, which consists of her medical bills, was received into evidence absent any objection from the employer, and employer's counsel did not cross-examine employee as to the authenticity of the bills, or present any rebuttal evidence that would suggest that the bills in Exhibit 5 correspond to treatment that was unrelated to her workplace fall. In her brief, employee has provided a detailed breakdown of how she reaches the total figure of $40,515.36 in disputed charges.

We conclude that the burden was properly shifted to employer to demonstrate that employee "was not required to pay the billed amounts, that her liability for the disputed amounts was extinguished, and that the reason that her liability was extinguished does not otherwise fall within the provisions of section 287.270 [RSMo]." *Farmer-Cummings v. Pers. Pool of Platte County*, 110 S.W.3d 818, 823 (Mo. 2003). Employer has provided no such evidence.

With regard to employer's contention that the disputed past medical expenses were not shown to have been reasonably required to cure and relieve the effects of employee's work injury, we note that both Drs. Abrams and Lennard agreed that the treatment employee received was necessary to cure her injury and condition. See *Transcript*, pages 149, 605. It thus appears that employer invites us to reject, absent any basis whatsoever, the undisputed and unrebutted testimony from the medical expert witnesses in this case, something we are not permitted to do. See *Corp v. Joplin Cement Co.*, 337 S.W.2d 252, 258 (Mo. banc 1960). We adopt the administrative law judge's finding that the disputed past medical expenses were reasonably required to cure and relieve the effects of the work injury.

In light of the foregoing considerations, we conclude that employer is liable for employee's past medical expenses in the amount of $40,515.36.

---

11 We note that the parties, by asking the administrative law judge to resolve the issue whether employee is entitled to disputed past medical expenses in the specific amount of $40,515.36, appear to have agreed, before the hearing, that this amount properly totals the disputed charges at issue. Otherwise, we would expect the parties to either refrain from identifying a total amount in dispute, or identify an additional issue: whether the total of $40,515.36 is properly calculated from the bills.

Lastly, employer alleges the ALJ erred in finding employee sustained 35\% permanent partial disability to the right wrist/hand, 5 % permanent partial disability to the right shoulder, and 6 weeks of disfigurement, as a result of the alleged accident.

Employer initially argues employer has no responsibility to pay permanent partial disability benefits or disfigurement pursuant to $\S 287.190$ RSMo because employee failed to show she sustained an injury arising out of and in the course of employment. This argument has become moot because of our finding on the issue of compensability.

In the alternative, employer argues that the opinion of its expert medical witness, Dr. Lennard, represents the only objective medical evidence in the record and that the Commission must award his rating of 20 % permanent partial disability of claimant's right upper extremity at the 200-week level.

We adopt the following analysis of the ALJ relating to the issue of permanent partial disability:

The evidence is supportive of a finding that the August 21, 2014, accident caused the employee to suffer certain permanent disability to her right upper extremity. In this regard, Ms. Brown testified that subsequent to recovering from the injury, she experienced a return in function of the right arm, but it is not as good as it was prior to the injury. She continues to experience significant ongoing complaints of pain and difficulties involving her right upper extremity. In this regard, Ms. Brown suffers from swelling, lack of flexibility, weakness, an inability to handwrite and reduced range of motion in her fingers and wrist in her right hand, among other things. These limitations have hampered her ability to utilize fine motor skills with her right hand. As a consequence, she indicates that she no longer writes the minutes for Christian County Commission meetings.

Also, while the parties offer competing medical opinions relative to the nature and extent of the resulting permanent disability in Ms. Brown's right upper extremity, both physicians enjoy credibility and are recognized as respected physicians in assessing and evaluating workers' compensation cases, including assessment of permanent disability. Notably, the medical opinions of Dr. Abrams and Dr. Lennard offer some similarity. In rending an assessment of permanent disability referable to the right wrist/hand and right shoulder, it is noted that Dr. Abrams found a decrease in strength in the right shoulder (4/5). Similarly, Dr. Lennard determined that Ms. Brown presented with a diminishment (4+/5) in her right shoulder, as well as reduced extension of the right shoulder.

Accordingly, after consideration and review of the evidence, I find and conclude that as a consequence of the August 21, 2014, accident, the employee, Kay Brown, sustained a permanent partial disability of 35 percent to the right wrist/hand ( 61.25 weeks); and she sustained an additional permanent partial disability of 5 percent to the right shoulder ( 11.6 weeks). ${ }^{12}$

As noted in the case of Johnson v. Indiana Western Exp., supra, a case cited by employer herein, "When the right to compensation depends on the acceptance of one of two competing

[^0]

[^0]: ${ }^{12} Award, p. 20.

medical theories, the issue is one of fact". { }^{13}$ We approve the above findings and award of the ALJ on the issue of nature and extent of employee's permanent partial disability.

We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued July 11, 2016, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }}$ day of May 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

V A C A N T

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{13}$ Johnson v. Indiana Western Exp., Inc., 892.

Employee: Kay Brown

Injury No. 14-063533

Dependents: N/A

MFD No. 14-01095

Employer: Christian County, Missouri (A Governmental Entity)

Insurer: Midwest Public Risk of Missouri

Health Care Provider: Lester E. Cox Medical Center

Additional Party: N/A

Hearing Date: April 12, 2016 (Evidentiary Record Closed May 12, 2016)

Checked by: LTW

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: August 21, 2014
5. State location where accident occurred or occupational disease was contracted: Christian County, Missouri (The parties agree to venue lying in Greene 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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While engaged in employment and performing her work duties for Employer, and while looking through the folders when one of her staff called to her, Employee turned to her right. When Employee turned, her left foot was situated underneath and against the wheel of the rolling file cabinet. As Employee 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. As a consequence of falling to the ground, Employee sustained an injury to her right upper extremity.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right Wrist/Hand \& Right Shoulder
14. Nature and extent of any permanent disability: 35 % PPD to the Right Wrist/Hand \& 5\% PPD to Right Shoulder

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None
3. Value necessary medical aid not furnished by employer/insurer? $40,515.36
4. Employee’s average weekly wages: Not Identified
5. Weekly compensation rate: $451.02 for permanent partial disability compensation
6. Method wages computation: Stipulation

1. Amount of compensation payable:

1. Second Injury Fund liability: N/A

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Patrick J. Platter, Esq.

Employee: Kay Brown

Injury No. 14-063533

Dependents: N/A

MFD No. 14-01095

Employer: Christian County, Missouri (A Governmental Entity)

Insurer: Midwest Public Risk of Missouri

Health Care Provider: Lester E. Cox Medical Center

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on April 12, 2016. The evidentiary record was left open for 30 days in order to afford the parties opportunity to submit additional evidence. Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about May 16, 2016.

The employee appeared personally and through her attorney, Patrick Platter, Esq. The employer and insurer appeared through their attorney, Shari Lockhart, Esq. The Health Care Provider, Lester E. Cox Medical Center did not appear for the evidentiary hearing. (Prior to the hearing, by counsel, Lester E. Cox Medical Center filed a Motion for Dismissal of the Application for Direct Payment. This motion to dismiss the medical fee dispute was filed on grounds that the health care provided by Lester E. Cox Medical Center was not authorized by the employer or insurer. In light of the motion filed by the Health Care Provider, the parties proceeded to hearing without involvement of the Health Care Provider. Further, the adjudication of Medical Fee Dispute No. 14-01095 shall be addressed by separate order, and is not made part of this award.)

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about August 21, 2014, Christian County, Missouri (a governmental entity) was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Midwest Public Risk of Missouri.

(2) On the alleged injury date of August 21, 2014, Kay Brown was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about August 21, 2014, the employee sustained an accident.

(4) The above-referenced employment and accident occurred in Christian County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of August 21, 2014, the employee's average weekly wage was sufficient to allow a compensation rate of $\ 451.02 for permanent partial disability compensation.

(8) Temporary disability compensation has not been provided to the employee.

(9) The employer and insurer have not provided medical treatment to the employee.

The issues to be resolved by hearing include:

(1) Whether the accident of August 21, 2014, arose out of and in the course of the employee's employment with the employer?

(2) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\ 40,515.36 ?

(3) Whether the employee sustained any permanent disability as a consequence of the accident of August 21, 2014; and, if so, what is the nature and extent of the disability?

(4) Whether the employee is entitled to additional compensation in the nature of disfigurement?

The employee testified at the hearing in support of her claim. Also, the employee offered for admission the following exhibits:

Exhibit 1 Medical Report of Bernard Abrams, M.D.

Exhibit 2 Medical Records from Ferrell - Duncan Clinic

Exhibit 3 Medical Records from Southwest Spine \& Sports Medicine

Exhibit 4 Medical Records from Cox Medical Center

Exhibit 5 Medical Expenses

Exhibit 6. Photos of Copier Machine

Exhibit 7 E-mail (Dated August 26, 2014)

Exhibit 8

Exhibit 9

Exhibit 10

Photograph of Employee's Shoe (as worn on date of accident)

Photograph of Employee's Shoe (with measurements)

The exhibits were received and admitted into evidence.

The employer and insurer presented one witness at the hearing of this case - Norma Ryan-. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit A Medical Report of Ted Lennard, M.D.

Exhibit B Written Transcript of Employee's Recorded Statement (August 26, 2014)

Exhibit C Audio Transcript of Employee's Recorded Statement (August 26, 2014)

Exhibit D Additional Medical Records

Exhibit E Deposition of Paula Brumfield

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Request for Dismissal of Application for Direct Payment

- Notice of Hearing

- Response of Claimant to Application for Direct Payment

- Application for Direct Payment (MFD No. 14-01095)

- Answer of Employer/Insurer to Amended Claim for Compensation

- Amended Claim for Compensation

- Answer of Employer/Insurer to Original Claim for Compensation

- Original Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Carolyn Kay Marie Brown ("Kay Brown"), is 58 years of age, having been born on December 17, 1957. Ms. Brown resides in Nixa, Missouri. Ms. Brown has a master's degree, graduating from Southwest Baptist University with honors in 2000.

In 2002 Ms. Brown was elected to the position of County Clerk for Christian County, Missouri. On January 1, 2003, Ms. Brown assumed the position of Christian County Clerk. She continues to serve in this elected position, and has remained in this position since her election in 2002. Prior to serving as the Christian County Clerk, Ms. Brown worked for the Missouri Secretary of State, and was responsible for working with corporations, limited liability companies and similar entities concerning their registrations.

As the Christian County Clerk, Ms. Brown performs a variety of duties as an elected official. These responsibilities include managing elections and recounts, responding to requests under the Missouri Sunshine law, performing and monitoring registration of voters, performing certification of tax levies, and handling accounts payable and payroll for Christian County. Also, as the county clerk, Ms. Brown is responsible for supervision of multiple employees. On August 21, 2014, Ms Brown supervised the following employees: Norma Ryan, Deputy County Clerk; Paula Thompson, Elections Clerk; Alicia Monsato, Elections Clerk; Rebecca Miller, Elections Clerk; Paula Brumfield, Payroll; and Holly Burnett, Benefits.

At the time of the claim of injury (August 21, 2014), the county clerk's office was operating under two important deadlines relating to election concerns. The first election concern involved a deadline of September 2, 2014, and related to certification of tax levies. The second election concern involved the completion of a recount for the proposed Amendment 1, resulting from the August 3, 2014, primary election. Amendment 1 was known as the Right to Farm amendment.

As part of their assigned duties, members of the county clerk office used a portable copier machine. This was a copy machine on top of a rolling file cabinet. The copier on top of this rolling file cabinet is best depicted in Exhibits F-1 and F-2. The rolling file cabinet had two lateral drawers to store file folders. Rolling plastic wheels were located on all four corners of the bottom of the filing cabinet. This copier and rolling file cabinet were usually next to the desk of Deputy Clerk Norma Ryan. However, any of the employees could use it if they needed to make copies and stay relatively close to their desk. This was convenient for employees because this was the only copier that moved. Three other copiers were located in the office, but they were all stationary. Also, this rolling copier was one of two color copiers.

On August 21, 2014, while engaged in employment and performing her work duties as the Christian County Clerk, Ms. Brown suffered a fall. As a consequence of this incident, Ms. Brown sustained multiple injuries, including an injury to her right upper extremity. (The employer and insurer acknowledge that this incident caused Ms. Brown to sustain an injury to her right upper extremity. The employer and insurer, however, dispute liability, contending that the injury and accident did not "arise out of and in the course of" Ms. Brown's employment, as the term is defined by statute. Further, the employer and insurer dispute the nature and extent of the injury sustained by Ms. Brown.)

Ms. Brown fell on Thursday, August 21, 2014, between 2:00 and 2:30 p.m. She was standing at the copier and rolling file cabinet. She had three files of documents measuring between one-quarter $\left({ }^{1} / 4\right) to one-half \left({ }^{1 / 2}\right)$ inch each in thickness. The placement of her left foot and the relationship of her foot to the rolling file cabinet is relevant to a determination of whether Ms. Brown sustained a compensable work injury.

At the time of the fall, Ms. Brown was wearing open toed dress shoes with a wedge heel. The heels were approximately one and one-half ( $1 \frac{1}{2}$ ) to two (2) inches high. The height of the toe of the shoe is approximately three-quarters ( $3 / 4$ ) to one (1) inch. The mid front immediately behind the toe is approximately five-eighths $\left({ }^{5} / 8\right)$ inch. Brown wore these shoes both at and away from work. She had had them for nine (9) months before she fell.

The carpet in the clerk's office when Ms. Brown fell has been replaced. The carpet now, as then, is thin and had a comparable texture.

Also, at the time of the fall, Ms. Brown was standing at the copier and her left foot was tucked underneath the bottom of the left front corner of the rolling file cabinet, as indicated in Exhibit 6-1 and Exhibit 10. Ms. Brown took the photographs, Exhibits 6-1 through 6-5, shortly after Bob Gooldy, a claims representative, took a recorded statement from Ms. Brown. Exhibit 10 (photograph) was taken the day of Paula Brumfield's deposition.

As described by Ms. Brown, 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 went against the wheel and she fell. She fell upon her right side with her right arm extended. This fall fractured her right wrist and the ulna bone pierced through her skin. She did not notice her bone was sticking outside of her skin until a person from the clerk's office told her. She stayed positioned on the floor until an ambulance crew arrived and placed her on a stretcher and then transported her to Cox Medical Center South in Springfield, Missouri.

Norma Ryan, Deputy County Clerk, testified. She was, and is, second in command in the office. She remembered Ms. Brown was standing at the copier. She did not believe there was anything in Brown's hands when she fell. Ms. Ryan was working at her desk looking at her computer screen. She testified that, at one moment, Ms. Brown was standing there and "the next thing she is on the floor." She did not hear Paula Brumfield ask a question of Brown. The copier and rolling file cabinet had not been moved. Both Ms. Brown and Ms. Ryan testified the left shoe worn by Ms. Brown was off her foot after she fell.

Ms. Ryan did not know what history was given to the ambulance crew. She did not remember whether or not someone mentioned Ms. Brown catching her foot. She stated, "we were speculating" when others in the office discussed how the accident happened, such as whether Ms. Brown stepped out of her shoe or twisted her ankle. When pressed upon specifying the cause of the accident, Ms. Ryan testified, "If you want to know, you go look." She further testified she could put her feet underneath the gap between the floor and the bottom of the rolling file cabinet.

Paula Brumfield was, and is, a bookkeeper employed in the clerk's office. She has been an employee of the clerk's office for two years. This means she would have started her employment in the clerk's office shortly before Ms. Brown fell. Her work desk and that of Holly Burnett (benefits clerk) were located west of Ms. Brown's office. A door separates the office where Ms. Burnett and Ms. Brumfield worked from the desks of Mses. Brown and Ryan.

Ms. Brumfield did not see Ms. Brown fall and did not know she fell until the ambulance crew arrived. She testified that to the best of her memory, she did not ask Ms. Brown any question before she fell. All three witnesses are deemed credible. They testified to their best ability based upon the circumstances as they saw them.

An ambulance transported Ms. Brown from her office to Cox Medical Center South. The crew placed her right wrist in a splint and gave her Zofram and morphine. The ambulance arrived at Cox South and began providing treatment for Ms. Brown at approximately 3:00 p.m. The attending paramedics reported that Ms. Brown "lost her footing" while standing at work. Later, the attending nurse noted that Ms. Brown had an open wound and deformity to the right hand and wrist. The triage assessment noted:

Airway is patent. Breathing is even and unlabored. Circulation: pulse is regular and strong, skin normal, bleeding is controlled. General: appears uncomfortable. Well developed, behavior is appropriate for age, cooperative. Pain: complains of pain in right hand and right arm.

Ms. Brown indicated that her pain was a " 5 " or " 6 " on a scale of 1 to 10 between 3:06 p.m. until 5:45 p.m. She underwent a trauma assessment and also answered questions at 3:29 p.m. The pain she mentioned was aching, dull and throbbing. It started suddenly and was continuous. Increased activity and repositioning aggravated it. Her pupils were sluggish and constricted. She denied any dizziness before the fall stating, according to the nurse's note, "I think I lost my footing" and "it felt like my ankle gave out." Her right wrist was difficult to move. The nurse noted the open fracture in the right hand and wrist. There was also swelling present in the right hand and tenderness in the right arm. She received an additional dosage of Zofram at 3:50 p.m. and then received morphine intravenously. allotments at 3:54 p.m.; 4:51 p.m. and 5:46 p.m. She underwent surgery in the early evening hours and left the emergency department at 7:39 p.m.

Dr. Erin Greer, an orthopedic hand surgeon, saw Ms. Brown in the emergency room. He noted the gross deformity of the wrist, an open wound on the ulnar side of the wrist. X-rays showed a comminuted and widely displaced distal radius fracture. Ms. Brown did not have numbness in the right hand at that time.

That evening Dr. Greer performed irrigation, debridement and an open reduction and internal fixation of the right distal radius fracture while removing multiple articular fragments. Post-operative x-rays indicated a mirror and anatomic alignment. Ms. Brown was discharged from the hospital in the early morning hours on Friday, the $22^{\text {nd }}$. In discharging Ms. Brown from

the hospital the attending physician instructed Ms. Brown to stay off work until cleared by the hand surgeon, Dr. Greer.

Ms. Brown returned to the emergency room later on Friday, the $22^{\text {nd }}$, reporting she hit her head when she fell, but that she said nothing until now. A physician ordered Percocet and told her to follow up with Dr. Greer.

Ms. Brown returned to Dr. Greer on September $2^{\text {nd }}$. Numbness and tingling had started in her fingers, especially her index, long and ring fingers. Dr. Greer recommended physical therapy due to continued stiffness and swelling. He told her to wear a cock-up splint as needed and he would recheck her in one month. Dr. Greer permitted Ms. Brown to return to work with restrictions. She could use the fingers on her right hand as tolerated for typing, handwriting and assistive use only. She was to wear her custom splint other than when bathing and hand washing. X-rays taken that date indicated a soft tissue shadow indicating moderate swelling.

Continued numbness and tingling in the fingers prompted Dr. Greer to refer Ms. Brown for a nerve conduction and EMG study. These studies took place on October 21. 2014. These studies demonstrated evidence of median neuropathy, consistent with findings of carpal tunnel syndrome, severe. Based on these studies, Dr. Greer performed a carpel tunnel release on October 30, 2014.

Ms. Brown had her initial evaluation for physical therapy on September 2, 2014. However, this therapy eventually lasted until November 21, 2014. This therapy primarily included hot wax treatment, finger manipulation and massage.

Dr. Greer saw Ms. Brown following the carpal tunnel release. He wanted her to return to physical therapy for vigorous management for her range of motion and swelling. He noted that her hand stiffness had improved slightly following the carpal tunnel release, but he believed Ms. Brown's right hand was quite stiff with moderate swelling. Ms. Brown had five (5) sessions from November 10 through November 21. She still had swelling and stiffness in her fingers. Her therapist's last note told her that she should work up to wearing an orthosis three (3) times per day for thirty (30) minutes. Dr. Greer prescribed a Medrol dose pack on November 26, 2014.

Ms. Brown's right wrist is not as flexible as it was before her fall. She notes residual weakness in her right hand, as compared to before the injury, and that it hurts to flex the middle finger. Also, Ms. Brown notes that she now drops things, such as items in the kitchen. Additionally, it is noted that the tendons to her middle and ring fingers have thickened. Further, it is more difficult for her to write as the day progresses. She now needs to massage her fingers and she has continued her home exercise program. Her right hand and fingers swell. Notably, because of the swelling, she no longer wears rings on her right hand.

As to the right shoulder, Ms. Brown noted that she has lost strength in her right shoulder. She can lift as much as ten pounds, although she avoids lifting more.

At the hearing, Ms. Brown displayed her right hand and wrist in order to allow assessment of disfigurement. In this context, there is a scar approximately two to three inches with suture marks through the wrist and forearm. This scarring includes discoloration and

unevenness in the skin. In addition to the scarring associated with the open fracture, there is minimal scarring on the ulnar side of her right wrist and extending along a lifeline on her right palm, consistent with the residual effects of carpal tunnel surgery.

Ms. Brown did not return to work until Tuesday, August 26, 2014. She rested from Friday, the $22^{\text {nd }}, until Tuesday, the 26^{\text {th }}$. She took a variety of medications, including morphine. She took morphine until Sunday evening, August 24. However, she took other pain medication during her recovery from her first surgery and while she continued to see Dr. Greer. Although she was released from working until September 2, she had to return to work because of deadlines concerning the tax levy certifications and Amendment 1.

Upon returning to work on August 26, Ms. Brown was required to respond or answer numerous emails and questions from staff. Among her emails included an email from the Secretary of State's office concerning Amendment 1, which she received at 11:12 a.m. This concerned the official notification of recount and related documents for conducting the recount of the Right to Farm Amendment (Exhibit 7).

Shortly after Ms. Brown received the email from the Secretary of State, Robert Gooldy, a representative for the insurer, called Ms. Brown for the purpose of obtaining from Ms. Brown a statement concerning the accident. The recorded statement indicates an incorrect date of loss and incorrect date of statement. The recording begins with Mr. Gooldy speaking mid-sentence. The most pertinent portion of the statement is on page 6:

CB [Ms. Brown]: So I was looking at those that I'd received [tax levy certifications] and noted that I should be receiving a notice that had already had certification letters attached.

RG [Mr. Gooldy]: Okay, okay. You said you were just kind of looking there and then all of a sudden you were on the ground. I mean, did . . .

CB [Ms. Brown]: Yeah, my foot just kind of, I don't know. I just lost my footing or something.

RG [Mr. Gooldy]: But I mean, there was nothing, was there any defects in the floor, did you catch your foot on anything or just standing there and . . .

CB [Ms. Brown]: Well I don't think so, but, um, you know, I was thinking about that earlier, um, I was thinking, see we're going to get new carpet in here and I'll, and when we pull it up that would be good to look at and see. Cause I really don't know what happened.

RG [Mr. Gooldy]: Right.

CB [Ms. Brown]: I just fell. And, um, I don't know, I don't think there is."

In explaining her conversation with Mr. Gooldy, Ms. Brown noted that at the time of the recorded statement, she was groggy because she had not been sleeping. Also, she was having difficulty concentrating and was suffering from the side effects of Percocet, which she mentioned

in her recorded statement. Likewise, she was suffering from pain and the residual effects of having undergone surgery with suture repair. Notably, Ms. Brown's stitches were not removed until she next saw Dr. Greer on September 2.

Bernard Abrams, M.D., a physician practicing in the specialty of neurology, testified by deposition on behalf of the employee. Dr. Abrams practices medicine in Overland Park, Kansas. He is a clinical professor of neurology at the University of Missouri School of Medicine in Kansas City. He has board certifications from five different organizations having served as president of what is now the American Association of Electrodiagnostic Medicine. He has consistently published and spoken since at least 1970 until the present. His publications include medical textbooks for neurologists and anesthesiologists. Many of his writings concern diagnosis and management of pain. Other journals in which he has published include Progress in Neurology, Pain Digest, The Journal of Back and Musculoskeletal Rehabilitation, Internal Medicine, and the Archives of Neurology.

Dr. Abrams performed an independent medical examination of Ms. Brown on May 3, 2015. At the time of this examination, Dr. Abrams took a history from Ms. Brown, reviewed various medical records and other documents, including 351 pages of documents concerning Ms. Brown's treatment, two settlement documents from previous claims, and performed a physical examination of her. Her right hand dynamometer testing indicated marked decrease in strength compared to her left. The right hand in five (5) positions showed 2 kilograms, 4 kilograms, 10 kilograms, 7 kilograms and 7 kilograms respectively. Her left hand indicated 12 kilograms, 18 kilograms, 20 kilograms, $171 / 2$ kilograms, and 14 kilograms respectively.

In explaining the results of his testing, Dr. Abrams noted that these curves showed relative bell shaped curves except for position 4 of the right hand, with considerable consistency. Ms. Brown's right hand exhibited hypoesthesia of the fingers, but not in the dorsum of the hand. The fourth and fifth digits were also involved, but less in the first, second and third digits. Decreased range of motion in the right wrist included Omar deviation, radial deviation, flexion and extension. There was difficulty with extension of the third and fourth fingers at the knuckle joints next to the hand. Strength of the right hand was about half of what one would expect. There was also decreased general strength in the right shoulder, approximately four on a scale of five. Additionally, Dr. Abrams noted that the previous EMG indicated the presence of significant carpal tunnel syndrome.

In light of his examination and evaluation of Ms. Brown, Dr. Abrams opined that the work incident of August 21, 2014, which involved a fall, was the prevailing factor in causing Ms. Brown to sustain multiple injuries to her right upper extremity, including injuries to her wrist, hand and shoulder. In summarizing his opinions, Dr. Abrams propounded the following comments:

This patient sustained a distal fracture of the right radius with an open wound. She provided me with x-rays which you have which clearly demonstrate this as

well as post-operative x-rays which demonstrate a considerable amount of hardware in her wrist. She has a markedly diminished right hand grip and dexterity. It is my feeling that she has suffered a fifty percent ( 50 % ) permanent partial disability of her right hand at the level of the wrist and a ten percent ( 10 % ) disability of the remainder of her right arm at the level of her shoulder.

The prevailing cause for this was her accident as described above of August 21, 2014. All of the treatment that she received was necessary to cure her injury and condition. She is at maximum medical improvement."

As stated, Dr. Abrams opined that the work injury caused Ms. Brown to sustain a permanent partial disability of 50 percent, referable to the right wrist/hand; and she sustained a permanent partial disability of 10 percent, referable to the right shoulder. According to Dr. Abrams, the prevailing cause for these disabilities is the accident of August 21, 2014. Further, according to Dr. Abrams, all of the treatment Ms. Brown received was necessary to cure her injury and condition, and he considered her to be at maximum medical improvement.

Ted Lennard, M.D.

Ted Lennard, M.D., a physician practicing in the specialty of physical medicine, testified by deposition on behalf of the employee. Dr. Lennard is a specialist in physical medicine and rehabilitation. He has practiced in the Springfield medical community for approximately 25 years. He is board certified and has served as an editor for medical textbooks concerning pain management and rehabilitation. He actively presents programs concerning medical topics to the Springfield medical and legal communities.

Dr. Lennard performed an independent medical examination of Ms. Brown on September 16, 2015. At the time of this examination, Dr. Lennard took a history from Ms. Brown, reviewed various medical records and other documents, and performed a physical examination of her. The examination results of Dr. Lennard's testing differed from the testing results performed by Dr. Abrams. In discussing his examination of Ms. Brown, Dr. Lennard noted five over five strength level in both biceps, both triceps and deltoid muscles. Also, he noted that the muscle strength was four plus in the right upper extremity. There was slightly reduced range of motion in extension of the shoulder. There was slightly diminished grip strength. There were mild limits in extension and flexion in the right hand and wrist. There were mild limits in the second and third digit flexion. There was scarring over the volar wrist and palm. Dr. Lennard noted no abnormalities in the shoulder.

In light of his examination and evaluation of Ms. Brown, Dr. Lennard opined that the work incident of August 21, 2014, which involved a fall, was the prevailing factor in causing Ms. Brown to sustain an injury in the nature of a "left (sic) distal radial fracture and CTS requiring surgical treatment." Further, Dr. Lennard opined that relative to the work injury of August 21, 2014, Ms. Brown was at maximum medical improvement, and she did not require any additional treatment or testing.

In considering the nature and extent of the injury sustained by Ms. Brown, Dr. Lennard opined that Ms. Brown may return to work without any permanent restrictions. He further opined

that as a consequence of the August 21, 2014, accident, Ms. Brown sustained a permanent partial disability of 20 percent, referable to the right upper extremity at the 200-week level. Notably, in rendering this opinion Dr. Lennard includes consideration of the distal radial fracture requiring ORIF and her CTS surgery.

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

The initial issue presented by the parties involves consideration of whether the employee sustained an injury by accident on August 21, 2014; and if so, whether the accident arose out of and in the course of her employment with the employer, Christian County. The adjudication of this issue requires consideration of the "Prevailing Factor" test, as set forth in Section 287.020.3, RSMo, which states the following:

(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An 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

(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.

The adjudication of this issue involves a three-step process, and requires consideration of the following questions:

1. What is the injury (medical condition and disability)?
2. Which factor among the factors is the prevailing factor in causing the injury?

1. Whether the injury comes 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?

See, Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011)

What is the injury? Which factor among the factors is the prevailing factor in causing the injury?

These two questions are examined together in determining the nature of the injury sustained by Ms. Brown. As to this issue, the employer and insurer do not dispute that on the date in question (August 21, 2014), and while engaged in her employment as the Christian County Clerk, Ms. Brown suffered a fall. Further, the employer and insurer do not dispute that as a consequence of this fall, Ms. Brown sustained an injury to her right upper extremity. Rather, the parties have placed in dispute the factual issue of what caused the fall. In adjudicating this factual issue it is noteworthy to consider the principles enunciated in Dorris v. Stoddard County, 436 S.W.3d 586, 589 (Mo.App. S.D. 2014), wherein the court propounded the following comment:

Contrary to the implicit assumption in Employer's argument, nothing in the workers' compensation law requires the claimant to testify to the exact cause of the accident. Rather the Commission is entitled to consider the evidence as a whole and rely on reasonable inferences. Dorris at page 589.

At the evidentiary hearing Ms. Brown presented testimony and other evidence indicating that there was a gap of three inches between the floor and the bottom of the frame of the rolling cabinet where a person's foot and shoe would slide underneath. Exhibits 6-1 and 6-2 show that a foot and common shoe will fit underneath. Exhibit 10 demonstrates that Ms. Brown's foot and shoe clearly fit underneath. Also, Ms. Brown measured the height of the toe and forefoot of the shoe. The toe is three-quarters ( $3 / 4 ) to one (1) inch; the forefoot is five-eighths ( 5 / 8$ ) of an inch; and the heel was only two (2) inches. Based on these measurements, Ms. Brown could have easily have placed her left foot by the wheel under the frame and this could serve as the fulcrum from which she fell. Also, at the time of the fall Ms. Brown was facing the copier and cabinet so her left foot would have been located underneath the rolling cabinet. There is substantial circumstantial evidence, much less testimony from Brown herself, to support the cause of the fall was Brown's left foot positioned against the wheel underneath the frame of the filing cabinet.

The employer and insurer question the veracity of Ms. Brown, and argue that during the course of her case Ms. Brown changed her story, and developed a different set of facts in an "attempt to later contrive a cause of her injury." In presenting this argument, the employer and insurer note that Ms. Brown initially testified in her recorded statement that she suddenly "lost her footing," causing her to fall. Additionally, the employer and insurer note that the initial medical records reflect a loss of footing, and describing the event as if her ankle "gave out." Finally, the employer and insurer note that Ms. Brown concedes that at the time of the accident, the condition of the floor did not cause her to fall, and any items that she may have been carrying were not responsible for her fall.

The employer and insurer correctly point to testimony and evidence that suggest Ms. Brown modified or supplemented her explanation as to the cause of her injury. In doing so, as reflected in the recorded statement and at the time of initial triage, Ms. Brown's initial testimony does not explain the basis for her fall, and offers only the explanation of having lost her footing. However, evaluation of this initial testimony must be considered in context of having suffered a significant injury, causing Ms. Brown to be in pain and presenting with the residual effects of such an injury. Similarly, at the time of the recorded statement, Ms. Brown was working under the effects of taking pain medication and suffering from the residual symptoms associated with her injury, 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.

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.

In addition, I find and conclude that when Ms. Brown fell to the ground, she fell upon her right side with her right arm extended. This fall fractured her right wrist and the ulna bone pierced through her skin. She did not notice her bone was sticking outside of her skin until a person from the clerk's office told her. She stayed positioned on the floor until an ambulance crew arrived and placed her on a stretcher and then transported her to Cox Medical Center South in Springfield, Missouri.

Further, I find credible the opinions of both Dr. Abrams and Dr. Lennard. Both physicians identify the injury to involve a fracture of the right distal radius with an open wound of the ulnar aspect of the forearm/wrist, as well as a traumatic carpal tunnel syndrome. The injury involving the right distal radius fracture necessitated surgical repair, including an open reduction and internal fixation. The carpal tunnel syndrome necessitated a surgical release. Yet, to the extent there are differences in medical opinion as to the nature of the injury, I resolve the differences in favor of Dr. Abrams. In this context, I find and conclude that the injury to Ms. Brown included injury to her right shoulder, wherein she suffered a loss of physical strength.

Accordingly, after consideration and review of the evidence, I find and conclude that the injury in question is a fracture of the right distal radius with an open wound of the ulnar aspect of the forearm/wrist, as well as a traumatic carpal tunnel syndrome. The injury causes Ms. Brown to present with residual right wrist/hand pain, as well as loss of strength in the right upper extremity, including loss of strength at the level of the shoulder. Further, I find and conclude that the turning and attempting to take a step, while unable to do so because of the positioning of her

foot in relation to the rolling cabinet, on August 21, 2014, is the prevailing factor in the cause of Ms. Brown sustaining this injury.

Whether the injury comes 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?

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.

Appellate courts have issued several opinions in the last few years concerning this subject. These decisions bear reprise:

- Setting forth the standard of when an injury happens because of employment and not merely during employment. Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo banc 2012); Miller v. Missouri Highway and Transportation Commission, 287 S.W.3d 67 (Mo banc 2009).

- Cases where the employee has fallen due to a condition of employment increasing the risk of injury. Dorris v. Stoddard County, 436 S.W.3d 586 (Mo.App. S.D. 2014); Young v. Boone Electric Cooperative, 462 S.W.3d 783 (Mo.App. W.D. 2015); Lincoln University v. Narens, 2016 WL 1436275 (Mo.App. W.D. 2016); Stricker v. Children's Mercy Hospital, 304 S.W.3d 189 (Mo.App. W.D. 2010); Pope v. Gateway to West Harley Davidson, 404 S.W.3d 315 (Mo.App. E.D. 2013).

- An injury due to close awkward quarters in an office setting. Randolph County v. Moore-Ransdell, 446 S.W.3d 699 (Mo.App. W.D. 2014); Wright v. Treasurer, 2015 WL 6926992 (Mo.App. E.D. 2015).

- Specifying a cause of the injury is not necessarily required when the accident and risk source can be identified. Gleason v. Treasurer, 455 S.W.3d 494 (Mo.App. W.D. 2015).

- Slips and falls on icy parking lots. Missouri Department of Social Services v. Beem, 478 S.W.3d 461 (Mo.App. W.D. 2016); Scholastic, Inc., v. Viley, 452 S.W.3d 680

(Mo. App. W.D. 2014); Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo.App. E.D. 2012).

- A fall on a level surface where compensation is denied. Bivins v. St. John's Regional Health Center, 272 S.W.3d 446 (Mo.App. S.D. 2008); Porter v. RPCS, Inc., 402 S.W.3d 161 (Mo.App. S.D. 2013); (See also, Johme) (Miller concerned where the employee felt no symptoms in the knee while walking briskly on level ground.)

The risk presented in this case occurred when Ms. Brown placed her left foot underneath the cabinet so the inner portion of her left foot pushed against the wheel, leaving her at risk of falling if she turned. The risk here is not merely standing, or merely walking or merely turning. The risk was turning her body and left foot against the wheel of the file cabinet so she was susceptible to falling. In Missouri, we know the risk source as we find it by concluding the risk source from the specific conditions the employee faced.

See the following, for example: Dorris at pages 590-592 (uneven slabs in a street); Young at page 790[3] (alignment walking on frozen clods of dirt); Lincoln University at pages 25 (walking on a specific campus sidewalk with a steep edge); Stricker at pages 191-192 (walking on clog shoes); Pope at pages 319-321 (walking down a stairway wearing boots and holding a motorcycle helmet); Randolph County at pages 706-707 (bending over in a tight workspace to pull papers out of a full lower file drawer while twisting); Gleason at page 501 (working on the top of a railcar 20 to 25 feet above the ground); and Wright at pages 5-6 (sitting in a chair which collapsed during a lunch period). In each case, the Labor Commission and the courts were not satisfied with labeling the risk source as an innocuous activity such as merely walking, merely bending over, merely sitting, etc. They identified the specific risk source of injury from the facts presented making those risk sources specific, and therefore fairly representative of the situation facing the employee.

The facts of this case do not present a situation, as with Miller and Bivens, where the employee is merely walking upon level ground without more. Similarly, the facts of this case are distinguishable from Johme, which concerns a simple turn in the middle of a vacant floorway; and Porter, in which an elderly employee could not explain how she ended up on a clean bathroom floor. Unlike theses cases, Ms. Brown was turning against the wheel of the file cabinet, causing her to fall.

Christian County submits several factual arguments to disagree with this risk source of injury. First, as a general proposition, it seems to argue the cause of the fall, if there was a cause, is idiopathic. If Christian County is arguing the injury resulted from idiopathic reasons, then it is arguing an affirmative defense. See, Gleason at page 502[6-8], wherein the court stated:

The Second Injury Fund argues that unless we require claimants to prove why they fell, we will be permitting a claimant to recover her injuries resulting from idiopathic causes. [Citing authority]. We disagree. Section 287.020.3(3), does indeed provide that '[a]n injury resulting directly or indirectly from idiopathic causes is not compensable.' However, as we have already noted, a claimant's burden to establish a compensable injury is limited to establishing that the injury arose out of and in the course of employment, which requires proof only of the

two criteria set forth at Section 287.020.3(2)(a) and (b). Johme, 366 S.W.3d at 590. Once these criteria are established, any claim that an injury is nonetheless not compensable is in the nature of an affirmative defense. See, e.g., Crumpler v. Wal-Mart Associates, Inc., 286 S.W.3d 270, 273 (Mo.App. S.D. 2009) holding that claimant was aware prior to her hearing of employer's theory of defense that claimant's injury was idiopathic, rendering it harmless error that the defense was not pled by the employer); see, also, Taylor v. Contract Freighters, Inc., Injury No. 06-104584, 2009 WL 1719443, at 8 (LIRC June 16, 2009)(holding that the exclusion from category of compensable injuries of an injury resulting directly or indirectly from idiopathic causes 'is in the nature of affirmative defense to employer,' and that it was not the claimant's burden to prove that an injury was not idiopathic, but instead the employer's burden to prove that it was.

Thus, the burden is on Christian County to prove that the fall was idiopathic, and not Ms. Brown to disprove it. See, Section 287.808, RSMo.

In addition, the employer and insurer argue the fall did not result from work conditions because Ms. Brown apparently told medical staff at Cox she "lost her footing." However, this does not acknowledge Ms. Brown would lose her footing if her left foot became caught with the cabinet wheel. She would lose her footing from either an idiopathic fall or a fall from her work condition. And we know that she fell. The statement of "lost her footing" is not inconsistent with a fall stemming from work conditions.

Christian County next argues that Paula Brumfield did not ask Ms. Brown a question, which served as a catalyst for causing Ms. Brown to turn and attempt to take a step. This argument is misplaced. Ms. Brown was undoubtedly working with files on top of the copier. She was undoubtedly busy with two major deadlines and one of those deadlines was an end of the month deadline. The copier she used next to Norma Ryan's desk was close to her office and it was the most practical one for her to use. Also, Ms. Brown was trying to keep track of various tax certifications still coming in from municipalities and governmental service units. Whether it was Ms. Brumfield she heard or someone else, Ms. Brown was tending to business when she turned and attempted to take a step. Further, there is no doubt Ms. Brown came out of her left shoe and the most plausible explanation is that her left foot rubbed against the roller pulling the left shoe away from her foot.

Moreover, it is understandable that Ms. Brown could have provided an inaccurate or incomplete description of the accident, immediately following the accident. At the time of the incident, Ms. Brown was in considerable distress. She suffered an open fracture on her right wrist. She underwent a morphine IV in route to the hospital. She continued to receive morphine, and also Percocet, upon her admission and after her discharge from the emergency department.

Lastly, Christian County points to the recorded statement of Ms. Brown taken by the claims representative, Bob Gooldy, taken on Tuesday, August 26. To say Ms. Brown would have been distracted from providing a full statement that day would be an understatement. She was not even cleared to return to work until September 2. She had just stopped taking morphine that Sunday and had only stopped taking Percocet recently. She was not sleeping at night due to pain and felt groggy at the time she gave her statement. Additionally, she was presented with

numerous questions from staff, emails to answer and a deadline given to her with a checklist of matters to perform at 11:12 a.m. concerning the Right to Farm amendment. Further, she did not expressly and unequivocally admit there was no reason for her fall. Even then, she qualified her statement by saying she wanted to look at the carpet. She went back to her office with her husband, looked at the flooring and noticed the gap between the bottom of the file cabinet and the floor, discovering that her foot would easily fit against the wheel.

Therefore, it can be ruled that Ms. Brown's injury arose out of and in the course of her employment (concerning a risk source analysis) for two reasons. First, she presents a persuasive prima facie case with substantial evidence to connect her fall with the positioning of her foot against the file cabinet. Second, Christian County does not support its affirmative defense of an idiopathic fall proving it more likely than not, under Section 287.808, RSMo that Ms. Brown merely fell. Accordingly, after consideration and review of the evidence, and in light of Section 287.020.5, RSMo, I find and conclude that the employee sustained an injury by accident on August 21, 2014, which arose out of and in the course of her employment with the employer.

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. 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).

Accordingly, after consideration and review of the evidence, I find and conclude that as a consequence of the work injury of August 21, 2014, the employee, Kay Brown, incurred medical care and expenses in the amount of $\ 40,515.36, which remain unpaid. Therefore, the employer and insurer are ordered to pay to the employee, Kay Brown, the sum of $\ 40,515.36, which represents payment of past medical expenses incurred by her relative to reasonable and necessary medical care flowing from the work injury of August 21, 2014.

Both Dr. Abrams and Dr. Lennard are respected physicians when issuing ratings for permanent disability. Further, Dr. Abrams found a decrease in strength in the right shoulder (4/5) and even Dr. Lennard found a diminishment (4*/5). Dr. Lennard also found reduced extension in the right shoulder. These ratings follow what the Division sees in similar cases. It is ruled that Ms. Brown is entitled to permanent partial disability benefits totaling $\ 32,856.80.

The evidence is supportive of a finding that the August 21, 2014, accident caused the employee to suffer certain permanent disability to her right upper extremity. In this regard, Ms. Brown testified that subsequent to recovering from the injury, she experienced a return in

function of the right arm, but it is not as good as it was prior to the injury. She continues to experience significant ongoing complaints of pain and difficulties involving her right upper extremity. In this regard, Ms. Brown suffers from swelling, lack of flexibility, weakness, an inability to handwrite and reduced range of motion in her fingers and wrist in her right hand, among other things. These limitations have hampered her ability to utilize fine motor skills with her right hand. As a consequence, she indicates that she no longer writes the minutes for Christian County Commission meetings.

Also, while the parties offer competing medical opinions relative to the nature and extent of the resulting permanent disability in Ms. Brown's right upper extremity, both physicians enjoy credibility and are recognized as respected physicians in assessing and evaluating workers' compensation cases, including assessment of permanent disability. Notably, the medical opinions of Dr. Abrams and Dr. Lennard offer some similarity. In rendering an assessment of permanent disability referable to the right wrist/hand and right shoulder, it is noted that Dr. Abrams found a decrease in strength in the right shoulder (4/5). Similarly, Dr. Lennard determined that Ms. Brown presented with a diminishment ( $4^{*} / 5$ ) in her right shoulder, as well as reduced extension in the right shoulder.

Accordingly, after consideration and review of the evidence, I find and conclude that as a consequence of the August 21, 2014, accident, the employee, Kay Brown, sustained a permanent partial disability of 35 percent to the right wrist/hand ( 61.25 weeks); and she sustained an additional permanent partial disability of 5 percent to the right shoulder ( 11.6 weeks).

In addition, I find and conclude that as a consequence of sustaining the work injury of August 21, 2014, which included an open fracture that required surgical repairs, Ms. Brown suffered scarring and permanent disfigurement about her right upper extremity. I further find and conclude that this disfigurement is sufficient to merit additional compensation, as allowed by Section 287.190.4, RSMo, and assess or award 6 weeks of disfigurement compensation.

Therefore, the employer and insurer are ordered to pay to the employee, Kay Brown, the sum of $\ 32,856.80, which represents 72.85 weeks of permanent partial disability compensation, payable at the compensation rate of $\ 451.02 per week. Further, the employer and insurer are ordered to pay to the employee, Kay Brown, the sum of $\ 2,706.12, which represents 6 weeks of permanent disfigurement compensation, payable at the compensation rate of $\ 451.02 per week.

The award is subject to modifications as provided by law.

An attorney's fee of 25 percent of the benefits ordered to be paid is hereby approved, and shall be a lien against the proceeds until paid. Interest as provided by law is applicable.

Made by: /s/ L. Timothy Wilson

L. Timothy Wilson

Chief Administrative Law Judge

Division of Workers' Compensation