Cheri Allen v. Luther Manor Retirement & Nursing Center; Quality Inn/Hannibal Area Hotel Group

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-086108

Employee: Cheri Allen

Employers: 1) Luther Manor Retirement \& Nursing Center

2) Quality Inn/Hannibal Area Hotel Group

Insurers: 1) Missouri Nursing Home Insurance

2) American Home Assurance c/o AIG

Date of Accident: On or about May 14, 2004

Place and County of Accident: Marion County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 26, 2007. The award and decision of Administrative Law Judge Ronald F. Harris, issued November 26, 2007, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 24th day of July 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: On or about May 14, 2004.
5. State location where accident occurred or occupational disease was contracted: Marion 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:

Injured back as result of repetitive motion activities, including pushing, pulling, bending, lifting, and cleaning.

1. Did accident or occupational disease cause death? No. Date of death? N/A.
2. Part(s) of body injured by accident or occupational disease: Neck/shoulder.
3. Nature and extent of any permanent disability: 171 / 2 % BAW.
4. Compensation paid to-date for temporary disability: None.
5. Value necessary medical aid paid to date by employer/insurer? \$193.84 paid by Quality Inn/American Home Assurance.
6. Value necessary medical aid not furnished by employer/insurer? See award.
7. Employee's average weekly wages: $\ 270.00.

1. Weekly compensation rate: $\$ 180.00 / \ 180.00.
2. Method wages computation: By agreement.

1. Amount of compensation payable: By Quality Inn/American Home Assurance

TOTAL: $\quad \ 29,032.17

1. Future Requirements Awarded: N/A.

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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Vicki Dempsey

Employee: Cheri Allen

Employee: \#1: Luther Manor Retirement \& Nursing Center \#2: Quality Inn/Hannibal Area Hotel Group

Insurer: \#1: Missouri Nursing Home Insurance

\#2: American Home Assurance c/o AIG

Injury No: 04-086108

Checked by: RFH/tmh

On August 27, 2007, Cheri Allen ("Employee") appeared in person and by her attorney, Vicki Dempsey, for a hearing for a final award on her claim. Employer 1, Luther Manor Retirement and Nursing Center, and its insurer, Missouri Nursing Home Insurance Trust ("LM") were represented by Patrick Reidy. Employer 2, Quality Inn/Hannibal Area Hotel Group and its insurer, American Home Assurance ("QI") were represented by Robert Bidstrup. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of facts and rulings of law, are set forth below as follows:

1) The Missouri Division of Workers' Compensation has jurisdiction over this case;

2) Venue is proper in Marion County;

3) The Claim for Compensation was filed within the time prescribed by law;

4) Both Employers and the Employee were operating under the Missouri Workers' Compensation Law at all relevant times;

5) Employee's average weekly wage was $\ 270.00, which would equate to a compensation rate of $\ 180.00 for both TTD and PPD[1];

6) Both Employers were insured at all relevant times; and

7) Employer \#2 (QI) paid medical expenses in the amount of $\ 193.84.

1) Whether proper notice was given to Employers;

2) Did Employee sustain an occupational disease arising out of and in the course of her employment;

3) Are Employee's injuries and continuing complaints medically causally connected to her alleged occupational disease at work on or about May 14, 2004;

4) Application of last exposure rule/liability of insurer.

5) Liability for past medical expenses;

6) Liability for temporary total disability benefits, and if so, for what periods of time;

7) Nature and extent of any permanent partial disability.

The following exhibits were admitted into evidence:

A. Dr. Levy Report

B. Deposition of Dr. Levy

C. Quincy Medical Group Records

D. Blessing Hospital Records

E. Palmyra Clinic Records

F. Advance Physical Therapy Records

G. Luther Manor Personnel Records

H. Quincy Medical Group Bills

I. Blessing Hospital Bills

J. Palmyra Clinic Bills

K. Advance Physical Therapy Bills

L. Walgreens Bills

M. Best Buy Home Care Letter

N. Summary

O. Wage Statement

P. Department of Social Services Medicaid Lien

Q. Collection Letter from CBQ Services

1. Earnings Statement

1. Deposition of Dr. Mishkin
2. Deposition of Theresa Morris
3. Deposition of Chris Reeter
4. Advance Physical Therapy Account Statement
5. Quincy Medical Group Account Statement
6. Certified records from the Missouri Division of Workers’ Compensation

Any exhibits containing markings, highlighting, etc., were submitted in that manner. The undersigned has made no markings of any kind on any of the evidence. Any objections not specifically addressed in this award are overruled.

Employee’s attorney requests a fee of 25 % of all benefits awarded.

Based on a comprehensive review of all the testimony and evidence, I find as follows: The evidence showed that Employee worked for Employer #1 (LM) from January 27, 2004, until June 2, 2004, with her last day of actual work taking place on May 22, 2004. Employee began working for Employer #2 (QI) on May 5, 2004 with July 26, 2004, being the last day she actually worked there.

Employee worked in housekeeping and laundry for the 3-11 p.m. shift at LM. Her duties included cleaning the office, crafts room, therapy room, and dining room. She would dust, mop the floors, pick up trash, and once a week assist another employee in moving the wooden tables and chairs in the dining room. She would push her cleaning cart with a five-gallon mop bucket from room to room. Employee pushed a plastic tub on wheels to three locations to pick up bedding, towels, and clothes of the 60 residents of LM. The laundry was then taken to the room with the washers and dryers where she would separate the clothes by color, load the machines, and eventually fold the clean clothes. Also, included in her duties at LM was the cleaning of two bathrooms and stooping over to clean out the whirlpool tub in the therapy room.

At QI, Ms. Allen also performed housekeeping duties. She worked from 8 a.m. to 2 p.m. cleaning 15-30 motel rooms. Her duties included setting up her cart with laundry basket, clean towels and linens, bars of soap, racks of clean glasses, a vacuum cleaner, and cleaning supplies. She would push the cart to the rooms where she would strip the beds, get down on her knees to check under the bed, pick up dirty towels, trash, and glasses. She then would dust, vacuum, make the beds, and clean the tub, sink, and toilet and clean the bathroom floor on her hands and knees with a rag and disinfectant.

The medical records reflect and Employee testified that she first saw her personal physician, Dr. Wells of the Palmyra Clinic, for pain radiating down her left leg on May, 14, 2004 (Employee Exhibit E). Dr. Wells’ medical record of that visit states that, "[S]he has not injured her back recently. It also fails to mention a complaint of work or work-related activities as causing the complaint of pain in the left hip and left buttocks. Finally, Dr. Wells’ note for the May 14th visit states, "[A]sked to see her back in three months or sooner if her

pain persists." Employee did not return to Dr. Wells until July 21, 2004.

Employee testified that she missed one or two shifts at her employment at LM during this time period due to her back pain. She testified that she mentioned her back pain as being work related to one or two people at LM.

Employee returned to work at LM on or about May 18, 2004, and worked one or two more days before leaving her shift early on May 22, 2004, for an undisclosed reason. She later called in to report that she was taking time off to travel to Kansas City to be with her mother who had a stroke. Employee never returned to work at LM and was terminated for violating the facility's "No call-No show" attendance policy.

Following termination at LM, Employee continued to work in her job with QI, working an increasing number of hours, as reflected by Employee Exhibit O (a Wage Statement for her employment with QI):

Pay Period ending May 16, 2004

25 hours

Pay Period ending May 30, 2004

28 hours

Pay Period ending June 13, 2004

57 hours

Pay Period ending June 27, 2004

78.5 hours

Pay Period ending July 11, 2004

66.5 hours

Pay Period ending July 25, 2004

65.5 hours

Pay Period ending July 26, 2004

27.5 hours

The record reflects that in June and July, Employee was working considerably more hours at QI than she had in almost any pay period while working at LM alone and more than she had while working both jobs during the month of May 2004 (according to the testimony of witness Sharon Moore, the Administrator of LM, the paycheck Employee received from LM dated May 28, 2004 covering May 9 through 22 and the check dated June 11, 2004, covering May 23 through June 5, 2004).

Employee subsequently returned to Dr. Wells on July 21, 2004 (Employee Exhibit E), with continuing complaints of left leg pain. Dr. Wells noted that she had been to see a chiropractor and had manipulation three times. The doctor diagnosed employee as having