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Starkey v. ACE American Insurance Co.

Court of Workers Compensation of Montana

March 17, 2014


Submitted: October 22, 2013



Summary: Petitioner alleges she injured her right foot in the course and scope of her employment with Shopko Stores in Valley County, Montana, and that she is entitled to medical and wage-loss benefits, attorney fees, and a penalty. Respondent argues that Petitioner's foot injury was incurred prior to the day she claimed she injured it at work and that she is not entitled to workers' compensation benefits.

Held: No legal dispute is involved in this matter as it is essentially a fact issue that hinges on witness credibility. The Court concluded Petitioner suffered a right-foot injury in the course and scope of her employment and is therefore entitled to medical benefits. However, the record reflects that Petitioner continued to work in her time-of-injury position until she voluntarily left to move out of state, so she is not entitled to wage-loss benefits. As Respondent did not act unreasonably in denying Petitioner's claim, Petitioner is not entitled to attorney fees, or a penalty.

¶ 1 Trial in this matter was held October 22, 2013, at Fisher Court Reporting, 27111st Avenue North, Billings, Montana. Petitioner Lila Starkey was present and represented by Patrick R. Sheehy. Respondent ACE American Insurance Co. (ACE American) was represented by Steven W. Jennings. Elaine Palmer, claims adjuster for Gallagher Bassett Services, Inc. (Gallagher Bassett), third-party adjuster for ACE American, was also present.

¶ 2 Exhibits: I admitted Exhibits 1 through 7 without objection. During the course of trial, Petitioner offered Exhibit 8, which I admitted without objection.

¶ 3 Stipulations: The parties stipulated that the 2011 version of the Workers' Compensation Act (WCA) applies to this case.

¶ 4 Witnesses and Depositions: The parties agreed that the depositions of Cameron L. Acor, D.P.M., Carol Kickland, Margaret Otterberg, Jeffrey Bense, and Danny Carr can be considered part of the record. Starkey was sworn and testified. Kickland, Otterberg, Bense, and Carr were sworn and testified via videoconference from Glasgow, Montana.

¶ 5 Issues Presented: The Pretrial Order sets forth the following issues:[1]

Issue One: Did Petitioner suffer an injury arising out of and in the course of employment with Shopko Stores (Shopko) in Valley County, Montana?
Issue Two: Is insurer liable for payment of workers' compensation benefits, including medical and wage benefits (either temporary or otherwise) to the Petitioner going back to the date she ceased working due to her injury?
Issue Three: Is Petitioner entitled to the 20% penalty and attorney fees?

¶ 6 At the close of trial I issued a bench ruling pursuant to ARM 24.5.335.[2] The following findings of fact, conclusions of law, and judgment are in accordance with that ruling.


¶ 7 Starkey testified at trial. I found Starkey to be a credible witness. Starkey left high school after her sophomore year and has worked ever since. She testified that she worked in a variety of jobs, including nurse's assistant, truck driver, film developer, grocery clerk, bartender, secretary, car detailer, and began work in August 2012 stocking shelves at Shopko in Glasgow, Montana.[3]

¶ 8 Starkey testified that her job at Shopko evolved from a temporary position to a more permanent one when she was hired as the store's fashion supervisor. Starkey explained she also worked as a checker and at the time of her injury on October 31, 2012, she was being trained to be a key carrier so she could close the store one or two nights a week. Starkey testified that after her injury, she was eventually entrusted with closing the store, counting the day's receipts and locking them in a safe, and locking the store.

¶ 9 Starkey testified that she stopped working at Shopko on February 19, 2013, because her boyfriend was becoming belligerent with her and her 14-year-old son. Since Starkey could not support herself and her son with only her earnings from Shopko, she concluded she had to quit her job and move to Guernsey, Wyoming, where she now lives with her sister.[4]

¶ 10 Starkey testified that she started work around noon on the day of her injury, October 31, 2012. At 7:00 p.m., she and Kickland took a break outside the store at a picnic table.[5] The picnic table has six individual seats arrayed around it. When Starkey realized the seat closest to the building was too close to it for her to sit comfortably, she shifted to a seat to her left and in doing so, the outside of her right foot came down on the slanted table leg. Starkey said she put all of her weight on her right foot and fell to the seat, rolling her foot and feeling immediate pain in the outside middle of her foot.[6]

ΒΆ 11 When she felt the pain, she exclaimed, "Ow!", and then explained to Kickland that she had been experiencing pain on the inside of her foot for about a week, but the new pain on the outside of her foot was completely different. The following day, Starkey stated she showed up for work with her foot wrapped. The store manager, Danny Carr, asked Starkey why she was ...

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