Paula Miller v. Roger Mertens Distributor, Inc.

the testimony contradicts the findings and conclusions of the ALJ.

The decision of the ALJ to allow the time card of employee is erroneous. The time card was not in employee's writing and was not properly identified as a business record. In fact the times reflected in this specious card do not correlate with the events of the night in question.

I find the testimony of employee to be credible. She testified, truthfully, that the employer had notice of the injury on at least two occasions. The store manager called employee the morning after she had gone to the emergency room. At that time, the manger inquired as to employee's back and admitted that a co-employee had left a note advising the manager of the injury. The ALJ chose to ignore this testimony. Employee also testified that she spoke on the phone with the owner of the store and told him she had hurt her back on the job. The ALJ chose to ignore this testimony. To do so flies in the face of the intent and spirit of the compensation law which requires a liberal construction and mandates that questions as to the right of an employee to compensation should be resolved in favor of the employee. Section 287.800 RSMo; State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303 (Mo. App. E.D. 1996).

The ALJ incorrectly evaluated the testimony of witness Hughes to surmise a time frame for this testimony, which would be at odds with employee.

The ALJ incorrectly and narrowly evaluated the testimony of Dr. Cox. The ALJ refers to the testimony of Dr. Cox as stating that the work can be one of many factors causing the condition.

When asked whether he had an opinion "based on a reasonable degree of medical certainty as to whether or not continuous lifting...can be a substantial factor in causing the type of disk protrusion that this young lady had" the Doctor opined that "repetitive, consistent bending and heavy lifting could certainly contribute to the condition that she presented with." I would conclude that this testimony, taken as a whole, establishes medical causation. Bock v. Broadway Ford Truck Sales, Inc., 55 S.W.3d 427, 438 (Mo. App. E.D. 2001).

I would find this compensable and would issue a temporary award allowing past and future medical benefits and appropriate temporary total disability.

John J. Hickey, Member

Employee: Paula Miller

Injury No: 01-160830

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Roger Mertens Distributor Inc.

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: Federated Mutual Insurance

Hearing Date: September 2, 2004

Briefs Filed: September 22, 2004

Checked by: RCM/rm

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: Alleged on or about June 16, 2001.
5. State location where accident occurred or occupational disease was contracted: Alleged Versailles, Morgan 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? No.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
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: Employee alleged that she injured her back while emptying trash and stocking beer in a convenience store cooler.
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: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? N/A
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: $\ 216.66
19. Weekly compensation rate: $\ 144.44
20. Method wages computation: by agreement of the parties.

1. Benefits Currently Due: None; claim is not compensable.
2. Second Injury Fund liability: None
3. Future requirements awarded: None

Employee: Paula Miller

Injury No: 01-160830

Dependents: N/A

Employer: Roger Mertens Distributor Inc.

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: Federated Mutual Insurance

Hearing Date: September 2, 2004

Briefs Filed: September 22, 2004

Checked by: RCM/rm

On September 2, 2004, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to MO.REV.STAT. §287.110. The employee, Paula Miller, appeared in person and with counsel, Jerry Kenter. The Employer and its insurer appeared through counsel, Susan Turner. Although the Second Injury Fund is a party it was not represented at hearing as the benefits Mrs. Miller sought were temporary in nature. The primary issues the parties requested the Division to determine were whether or not Mrs. Miller suffered an accident - or series of accidents arising out of and in the course and scope of her employment; whether she notified the employer of her injury as required by law; and, whether she needs future medical care. For the reasons noted below, I find that Mrs. Miller did not sustain a compensable accident or series of accidents on June 16, 2001. In addition, I find that she failed to notify the Employer of her alleged accident as required by law. Therefore, I deny her claim.

The parties stipulated that:

1. On or about June 16, 2001, Roger Mertens Distributor, Inc., was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by the Federated Mutual Insurance Co.;
2. Mrs. Miller was its employee working subject to the law in Versailles, Morgan County,

Missouri;

1. Mrs. Miller's contract of employment was made in Missouri;
2. Pettis County was the proper venue to hear this case;
3. The nature and extent of any disability Mrs. Miller may have is not an issue for this hearing;
4. Mrs. Miller filed her claim within the time allowed by law;
5. Mrs. Miller earned a $\ 216.66 average weekly wage resulting in a weekly compensation rate of $\ 144.44 for temporary total and permanent partial disability compensation; and,
6. The Employer has not provided Mrs. Miller either with any medical care or temporary total disability payments.

The parties requested the Division to determine:

1. Whether Mrs. Miller sustained an accident or series of accidents arising out of and in the course of employment?
2. Whether Mrs. Miller notified Roger Mertens Distributor Inc. of the alleged accident as required by law?
3. Whether Roger Mertens Distributor Inc. must reimburse the employee for medical expenses totaling $\ 4,090.18 ?
4. Whether Roger Mertens Distributor Inc. must provide the employee with additional medical care? And,
5. Whether the alleged accident or series of accidents caused the employee's alleged injuries and need for medical treatment that Mrs. Miller claims?

Mrs. Miller testified on her own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

Exhibit A - Report of Injury

Exhibit B - Medical records:

A. Capital Regional Medical Center

B. Bothwell Regional Health Center

C. Mary Ann Kurek, D.O.

D. Thomas Hoeft, M.D.

E. Donald Eldenburg, M.D.

F. Ryan Kelly Edwards, M.D.

G. Curtis Cox, M.D.

Exhibit C - Deposition of Curtis Cox, M.D.

Exhibit D - Report of James Stuckmeyer, M.D.

Exhibit E - List of Medical Bills from Eldenburg Family

Practice, Bothwell Regional Health Center, Ravinder Arora, M.D., Capital Regional Medical Center, and Wal-Mart Pharmacy.

The following, in addition to the claimant, were called as witnesses: Donald Hughes, Hazel Wilson, Roger Mertens, Sue Reiken, Bob Ferguson, and Calvin Miller.

The employer offered Exhibit 1, Mrs. Miller's time card for the period including June 16, 2001, into evidence. Counsel for the Employee objected that the exhibit lacked foundation and was a statement included under $\S 287.215$ and was not provided pursuant to that provision. The Court overruled these objections and admitted the exhibit into evidence.

Based upon the above exhibits and the testimony of Mrs. Miller and the other witnesses, I make the following findings. Paula Miller is a 40-year-old female who lives with her husband in Tipton, Missouri, and formerly lived in Versailles, Missouri. She earned a high school diploma and completed six months of general studies at Southeast Missouri State University.

Mrs. Miller held a variety of jobs before working for the present employer. The Employee worked for a sewing factory in Farmington, Missouri; for a realty company as a part-time receptionist answering telephones; and at a donut shop. Also, she was self-employed in catalog sales for eight months and worked for Casey's General Store as a stocker and cashier.

Mrs. Miller started working for Roger Mertens Distributor, Inc., on October 26, 2000. The company operates a series of gas stations/convenience stores in central Missouri. Her duties at the convenience store where as a clerk and cashier with general cash register duties. She also had to keep the store clean and empty the trashcans by the gas pumps. She also had to stock the coolers with soda and beer and had to stock other grocery items as well. Occasionally, Mrs. Miller was required to dep