Suzanne Miller v. Gen X Mex Foods, Inc. d/b/a Taco Bell

(Affirming Award and Decision of Administrative Law Judge)

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 September 30, 2008. The award and decision of Administrative Law Judge June Striegel Doughty, issued September 30, 2008, 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 29th day of April 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Suzanne M. Miller

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

Employer: Gen X Mex Foods, Inc., d/b/a Taco Bell

Additional Party: Second Injury Fund

Insurer: Continental Western Insurance Co.

Hearing Date: July 9, 2008

Checked by: JSD/sb

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: April 1, 2002.
5. State location where accident occurred or occupational disease was contracted: Warrenton, 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: Employee slipped on water and fell on her back.
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: Lower back.
14. Compensation paid to-date for temporary disability: $\ 4,365.48.

1. Value necessary medical aid paid to date by employer/insurer? $\ 73,331.56.
2. Value necessary medical aid not furnished by employer/insurer? $\ 1,997.54.
3. Employee's average weekly wages: $\ 233.86.
4. Weekly compensation rate: $\ 155.91.
5. Method wages computation: Stipulation by the participating parties.
6. Nature and extent of disability: 12.5 % PPD of the body as a whole.

1. Amount of compensation payable: \ 311.82 in TTD for April 5-6, 2002

\ 7,795.50 in PPD

Total: $\quad \ 8,107.32

1. Future requirements awarded: None.
2. Second Injury Fund liability: Left open.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of attorney E. Thomas Liese for necessary legal services rendered to the Claimant.

Employee: Suzanne M. Miller

Injury No: 02-141648

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

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

Employer: Gen X Mex Foods, Inc., d/b/a Taco Bell

Additional Party: Second Injury Fund

Insurer: Continental Western Insurance Co.

Checked by: JSD/sb

This workers' compensation claim was heard before the undersigned administrative law judge on July 9,

1. The claimant, Suzanne M. Miller, appeared in person and with counsel, E. Thomas Liese. Attorney Michael C. Margherio represented the employer and the insurer. The parties agreed that the Second Injury Fund liability would not be determined at this hearing and no one appeared on behalf of the Fund. The claimant and the employer/insurer submitted post-hearing briefs on July 21, 2008.

The parties stipulated that on April 1, 2002:

- Miller was in the employment of Gen X Mex Foods, Inc., d/b/a Taco Bell ("Taco Bell") and sustained an injury by accident arising out of and in the course of her employment that resulted in injury to her low back;

- Taco Bell and Miller were operating under and subject to the provisions of the Missouri Workers' Compensation Law;

- Taco Bell's liability was insured by Continental Western Insurance Co.;

- Miller earned an average weekly wage of $\ 233.86; and

- The weekly rate of compensation for temporary total and permanent partial disability benefits was $\ 155.91.

The parties also stipulated that:

- The Missouri Division of Workers' Compensation has jurisdiction over this case and venue is proper in Warren County;

- Taco Bell had proper notice of the injury and a Claim for Compensation was timely filed;

- Taco Bell paid Miller \$4,365.48 in temporary total disability benefits representing payment for April 7, 2002, and February 12, 2004, through August 25, 2004; and

- Taco Bell provided Miller with medical care costing \$73,331.56.

The parties request that the Division determine:

- Whether Taco Bell is liable for temporary total benefits for the periods of:

- April 5, 2002 - April 6, 2002;

- May 13, 2002 to August 25, 2002; and

- October 29, 2002 to February 12, 2004?

- Whether Miller is entitled to permanent partial disability benefits or permanent total disability benefits and, if so, the extent thereof?

- Whether Taco Bell is liable for past medical expenses for medical treatment Miller sought on her own?

- Whether Taco Bell is liable for future medical expenses for medication?

Miller testified on her own behalf and the following exhibits were entered into evidence by the claimant:

- Medical Records: Dr. Rachel George

- Crossroads Hospital Records

- Medical Records: Jean M. Burle, D.C.

- Medical Records: Russell T. Imboden, D.O.

- Medical Records: J. Al Vellinga, D.O.

- Deposition of Thomas F. Musich, M.D.

- Deposition of Samuel Bernstein, Ph.D., CRC

Carla Boshers testified on behalf of Taco Bell and the following exhibits were entered into evidence by the employer:

- Deposition of Dr. R. Peter Mirkin

- Deposition of Beth Collins

- Deposition of David S. Raskas, M.D.

- Claim for Compensation, Injury No. 99-063800

Any objections not specifically addressed in this award are overruled.

- Suzanne Marie Miller was born on August 17, 1967. Miller has a 10th grade education and no other educational training. Miller's work history includes some factory work but is primarily in food service, including a period of time in 1999 when she worked at Kentucky Fried Chicken in Creve Coeur, Missouri ("KFC") as a shift leader. When she worked at KFC, Miller's last name was Turner.

- Miller began working at Taco Bell in November of 2001. Miller's supervisor was Carla Boshers, Taco Bell's Restaurant General Manager in Warrenton, Missouri. While at work on April 1, 2002, Miller slipped on water on the floor and fell on her back ("the fall"). Miller testified that she felt pain immediately in her low back and by later that evening she was also experiencing pain radiating down both legs.

- Miller reported to work on April 2 but could not stand up straight so Boshers told Miller to go home and scheduled Miller to be seen at Dr. Buckles' office the next day.

- Dr. Rachel George, a physician working in Dr. Buckles' office , first saw Miller on April 3, 2002. Dr. George's impression was that Miller was suffering from lumbar strain and she prescribed Darvocet and instructed Miller to stay home from work on April 4 and use ice packs on her back. Dr. George also sent Miller to Crossroads Regional Hospital ("Crossroads") for an X-ray of Miller's lumbar spine. The X-ray, taken on April 3, 2002, found: "Minimal levoconvex rotary lumbar scoliosis" and "no evidence of spondylolysis, spondylolisthesis, fracture, or focal bone lesion."

Miller returned for a follow up visit with Dr. George on April 5, 2002. Miller reported that she was better but still in pain and not ready to go back to work. Dr. George explained the results of the X-ray to Miller, instructed Miller to continue using ice packs and taking Darvocet as needed, and authorized Miller to return to work on Monday, April 8, 2002, "if better."

- Just after 7:30 p.m. on the evening of April 5, 2002, Miller went to the emergency department at Crossroads because "the pain was still way too bad." While at Crossroads, Miller was given Flexeril and Toradol. This reduced Miller's assessment of her pain from 9 to 6 on a 10-point scale. Miller was discharged from Crossroads at 8:45 p.m. with instructions to: 1) follow up with Dr. George on Monday, April 8, 2002; 2) discontinue taking Darvocet; 3) continue taking Flexeril; and 4) take Ibuprofen for pain, or Percocet if the Ibuprofen did not relieve her pain.

- Miller did not follow up with Dr. George as directed. Instead Miller returned to work at Taco Bell on April 8, 2002, and was able to perform her duties satisfactorily. Miller confirmed that Dr. Buckles' office and Crossroads were the only providers Taco Bell had authorized to treat Miller for injuries from the fall. Miller continued working on a full-time basis at Taco Bell until May 13, 2002.

- Five weeks after Miller had gone back to work at Taco Bell, she sought medical treatment on her own from a chiropractor, Dr. Burle, rather than return to Dr. Buckles' office.

Dr. Burle's records from May 13, 2002, indicate that Miller reported constant lower back pain and radiating pain shooting down both legs to the knees, as well as down her right arm to the thumb. Dr. Burle adjusted Miller's back, which according to Miller, provided no relief. Miller received an "off-work slip" from Dr. Burle that she provided to Taco Bell. Miller stopped working at Taco Bell on May 13, 2002.

- Later that day, Miller went to the Emergency Department at Crossroads complaining of pain in her right hip radiating down to the right knee. Miller's right hip was X-rayed on May 13, 2002. The X-ray revealed a normal right hip with no evidence of fracture or dislocation. Crossroads' Emergency Physician Record describes the context of this injury as "no apparent injury; 'chiropractor told her it was probably dislocated today.'" Hospital staff also noted "reportedly has hx of intermittent R hip dislocation over many years." Miller was discharged that same day with instructions to rest, apply moist heat to painful areas as needed for spasms or stiffness, take Naprosyn 2 times daily and Darvocet N-100 every 4-6 hours as needed for pain, and follow up with Dr. Imboden in one week if not better.

- Approximately six weeks later, on June 25, 2002, Miller returned to see Dr. Burle, complaining of low back pain, among other things. Dr. Burle's June 25, 2002, record indicates Miller was "re-injured" when "getting up from sitting, leg went out." Dr. Burle adjusted Miller's back and gave her another off-work slip, which Miller gave to Boshers.

- Miller went back to see Dr. Burle on July 1, 2002, complaining of low back pain. Again, Miller was directed to see Dr. Imboden, which she did for the first time on July 11, 2002.

- Dr. Imboden's records reflect that Miller complained of back pain and told him about her fall at Taco Bell. Dr. Imboden's impression on July 11, 2002, was that Miller suffered from lumbar-sacral contusion and pain secondary to the fall. He recommended a lumbosacral MRI, pres