Hackler v. Waid's Restaurant ( 1974 )

Per Curiam:

This is an appeal from an order denying benefits under the workmens compensation act.

Appellant, while working as a waitress for appellee Waid’s on August 2, 1969, allegedly slipped and fell. She continued working despite pain in her back and leg for about one and one-half hours when she reported the incident to Waid’s manager and went home. She attempted to work the next day but worked only about one and one-half hours. Thereafter she consulted a chiropractor who treated her, his last treatment being given September 21, 1970. The chiropractor also prescribed home treatment consisting of hot baths which claimant later administered to herself. Claim for compensation was not filed until January 11, 1972.

The examiner, director and trial court all ruled that the claim was not timely filed. Whether a claim has been filed within the time fixed by statute (K. S. A. 44-520a) is primarily a question of fact (Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P. 2d 521). Here, among other things, it was disputed factually whether appellees had ever directed appellant to the chiropractor in the first place or had paid any compensation by way of medical treatment furnished her after September 21, 1970, so as to render her claim timely filed. The evidence sufficiently supported the trial court’s negative finding against appellant and its judgment is affirmed.