Pamela Cotter v. Bakersfield R-IV School

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-148156

Employee: Pamela Cotter

Employer: Bakersfield R-IV School

Insurer: Missouri United School Insurance

c/o Gallagher Bassett Services

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 17, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued June 17, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of December 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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? Yes.
4. Date of accident or onset of occupational disease: October 18, 2004.
5. State location where accident occurred or occupational disease was contracted: Bakersfield, Ozark 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? 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: Alleged herniated disc from lifting.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.

1. Part(s) of body injured by accident or occupational disease: Alleged cervical spine.
2. Nature and extent of any permanent disability: None Awarded.
3. Compensation paid to-date for temporary disability: None.
4. Value necessary medical aid paid to date by employer/insurer? None.
5. Value necessary medical aid not furnished by employer/insurer? None.
6. Employee's average weekly wages: $\ 290.92.
7. Weekly compensation rate: $\ 194.00.
8. Method wage computation: Agreement.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: No.

TOTAL: NONE.

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: No Lien Awarded.

Employee: Pamela Cotter

Injury No. 04-148156

Dependents: Not Applicable

Employer: Bakersfield R-IV School

Additional Party: Not Applicable.

Insurer: Missouri United School Insurance

c/o Gallagher Bassett Services

Hearing Date: May 3, 2010

The undersigned Administrative Law Judge convened the final hearing in this case on

May 3, 2010. Pamela Cotter (Claimant) appeared at the hearing in person and by her attorney, Randy Alberhasky, who has requested a 25 percent fee. Attorney Catherine Goodnight appeared on behalf of Bakersfield R-IV School, its insurer Missouri United School Insurance Company, and its third party administrator, Gallagher Bassett Services (hereafter referenced collectively as Employer). The parties stipulated to the following facts.

1. On or about October 18, 2004, Pamela Cotter had an accident that arose out of and in the course of employment with Bakersfield R-IV School.
2. Pamela Cotter was an employee of Bakersfield R-IV School, working under the protections of the Missouri Workers' Compensation Act.
3. Bakersfield R-IV School was fully insured and subject to the Missouri Workers' Compensation Act.
4. The parties agreed to venue in Greene County, Missouri.
5. The claim was filed within the time prescribed by law and jurisdiction is not disputed.

1. Claimant's average weekly wage of $\ 290.92, yielding a compensation rate of $\ 194.00.
2. No temporary total disability or medical benefits have been paid.
3. Exhibit Z, Claimant's personnel file, is the entire file relating to Claimant which is retained by Employer in the ordinary course of the Employer's business. Further, it was Employer's custom to keep records regarding an employee's absences.

1. Did Claimant provide timely notice?
2. Is Claimant's work accident of October 18, 2004, medically and causally related to the Claimant's current disability?
3. What is the nature and extent of Claimant's permanent disability?
4. Are future medical benefits necessary and directly related to Claimant's work-related injuries of October 18, 2004?
5. Is Employer liable for outstanding medical bills in the amount of $\ 50,784.47 ?
6. Is Claimant entitled to temporary total disability from March 3, 2005 to May 16, 2005?

The following exhibits were offered and admitted:

A. Ozarks Medical Center, 43 pages, certified 5/19/2008

B. St. John's Clinic, Mt. Grove, 14 pages, certified 4/10/2006

C. St. John's Clinic, Mt. Grove, 21 pages, certified 5/19/2008

D. St. John's Clinic, Mt. Grove, 1 pages, certified 11/19/2008

E. St. John's Regional Health Center, 137 pages, certified 5/24/2006

F. St. John's Regional Health Center, 16 pages, certified 6/20/2008

G. St. John's Regional Health Center, 55 pages, certified 10/14/2008

H. Bradford Pharmacy, 6 pages, certified 11/14/2008

I. Ozark Medical Center, 10 pages, certified 5/16/2008.

J. St. John's Regional Health Center, 17 pages, certified 4/25/2006

K. St. John's Regional Health Center, 2 pages, certified 6/11/2008

L. St. John's Clinic, 5 pages, certified 4/10/2006

M. St. John's Clinic, 11 pages, certified 6/18/2008

N. Wal Mart Pharmacy, 7 pages, certified 12/30/2008

O. Claim, Original

P. Answer, Employer/Insurer

Q. Entry of Appearance, Randy C. Alberhasky

R. Medical records disclosure, 6/27/2008

S. R.S.Mo. §287.210, 9/19/2008

T. R.S.Mo. §287.210, 9/25/2008

U. R.S.Mo. §287.210, 10/10/2008

V. R.S.Mo. §287.210, 12/23/2008

W. Settlement offer, 7/21/2009

X. Settlement offer, 8/28/2009

Y. Wage statement

Z. Personnel file, Bakersfield School District ${ }^{1}$

AA. Accidental Injury Claim Form

BB. School Employee Report of Absence, 5/16/2005

CC. Staff Absence Reports

DD. Dr. P. Brent Koprivica w/ attached exhibits

EE. Pamela Cotter, Claimant

1. Dr. Lennard deposition
2. James England deposition

All objections contained in the depositions are ruled in a manner consistent with this Award.

Claimant is a high school graduate. She is 52 years old and lives with her husband of 30 years, who is disabled from a work-related back injury. At the time of her deposition, Claimant's 22 year old daughter, a college student, also lived with her.

Claimant was an employee of Bakersfield School District from 1984 through November of 2005, working the entire time in the food service department. She served breakfast and lunch to students. In 1999, she was promoted to Food Service Manager. She reported to Superintendent Jerry Taylor, whose office was physically located in another building. Her job involved paperwork as well as physical work, including frequent lifting of pots, pans, and utensils.

Claimant supervised three food staff workers. As Food Service Manager, part of her responsibility was to call Lola Bridges, the Superintendent's secretary, when an employee informed her of a work injury. Claimant would orally advise Ms. Bridges of the injury. Claimant had not been responsible for completing written reports regarding other employees' injuries.

On the morning of October 18, 2004, Claimant was stacking boxes of 16 ounce vegetable cans. As she lifted a box weighing about 40 pounds to her shoulder level, she experienced a sharp pain that felt like a pulled muscle. She did not have any immediate numbness in her arm.

No one witnessed the event. After Claimant completed the stacking in the supply room, she told Elma Gargione and Marcille Davidson, two of her kitchen workers, of the event and that her neck was bothering her. While neither of these women testified at the hearing, Employer does not contest that an accident occurred at work.

There was no written notice of the accident. Claimant testified that to the best of her recollection, she called the Superintendent and spoke with his secretary, Lola Bridges, about the incident. On cross-examination, Claimant admitted she really did not recall when she advised the Superintendent's Office of the accident. Her deposition testimony was even less certain:

Q. Did you report that to the superintendent, Mr. Taylor?

A. Yes. I told him, but I don't know if it was that day. Usually when one of us would get hurt-if anybody cut their finger or fall-Marcille fell a couple timeI'd call the office and let them know that we'd had an injury.

Q. So you may not have told Mr. Taylor that day, but it would have been a day later or a week later?

A. Could have been.

Q. Okay. You think you would have talked to him with a week?

A. I don't know. I'm not-I think I did, but-

(Ex. EE p. 26-27).

Claimant then explained that she remembered an in-person conversation with the Superintendent regarding her injury, but that would have occurred months later after surgery

already had been scheduled. She also could not identify the date of the in-person conversation. She believed, however, that the Superintendent recommended that she submit her medical bills to her private insurance, and possibly later turn it into Workers' Compensation (Ex. EE, page 28).

Superintendent Taylor left the school district within the year. No party called him as a witness. Claimant's personnel file does not reflect any notice of a work-related injury.

Claimant alleged that the personnel file is incomplete. She presented a number of staff absentee reports or "pink slips," documenting her need to be off work due to illness (Ex. BB \& CC). Copies of these reports or "pink slips" in 2004 and 2005 are not contained in the personnel file. The personnel file also does not contain an Accidental Injury Claim Form that Claimant asked Dr. Lee to sign so that she could collect benefits from AFLAC, a disability insurance policy offered through her employment. Claimant produced a copy of this document separately (Ex. AA).

I find that the personnel file is not materially incomplete. Although Employer, at some point, apparently ceased retaining the hard copies of the "pink slips," each absence was accurately recorded on a computer printout with the reason - either illness or personal. This computer printout is in the personnel file. Second, nothing in the AFLAC disability application indicates that anyone at the school was required to approve or sign the application. The policyholder was Pamela Cotter. Simply because the Bakersfield R-IV School offered its employees a group disability policy (just like a group health insurance policy), does not mean the application for the payment of benefits was a business record that would be retained by Employer

in the ordinar