Sue Ann Hecker v. Endeavor Home Care LLP

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-073834

Employee: Sue Ann Hecker

Employer: Endeavor Home Care LLP

Insurer: Guarantee Insurance Company

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 16, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Gary L. Robbins, issued June 16, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

Employee worked as an in-home caregiver for employer. Her work entailed frequent travel between clients' homes and she was compensated for her mileage. On July 19, 2007, employee was in a motor vehicle accident while travelling between two client homes. The administrative law judge denied compensation in this matter on a finding that employee's evidence was less credible than that provided by employer's witnesses. Implied in the administrative law judge's credibility determination was a finding that employee did not sustain an accident arising out of and in the course and scope of her employment, because she was not travelling for employer at the time of her accident. I disagree with the credibility determination of the administrative law judge.

Employee testified as follows. On July 19, 2007, she was scheduled to visit two clients of employer: Mary Houghtaling in Greenville and Katie Venable in Poplar Bluff. Employee originally planned to see Ms. Venable in the morning and Ms. Houghtaling in the afternoon, but received a call from employer that morning requesting that she reverse the order she saw the clients because another employee had a scheduling conflict. Employee agreed to do this and called Ms. Houghtaling to ask whether the change would be okay. Ms. Houghtaling agreed to the switch and employee reported this to her supervisor. Employee provided services in Ms. Houghtaling's home from 9:00 a.m. to 11:00 a.m., then stayed for awhile to visit with Ms. Houghtaling. Employee then went to her car and filled out some paperwork. After finishing the paperwork, employee started driving toward Poplar Bluff for her appointment with Ms. Venable. Employee was able to recall the specific items that she purchased and ate for lunch at a gas station. Employee was also able to recall specific road conditions including construction taking place on Highway 67. The motor vehicle accident that is the subject of this claim took place on the east outer road to U.S. Highway 67 near the intersection with Missouri Highway W-the road leading to Ms. Venable's house. A vehicle pulled out from a car wash and struck employee's vehicle on the driver's side. Employee sustained injuries to her neck and left shoulder in the crash.

Employer presented Mary Houghtaling, who was unable to remember whether she received a phone call from employee on July 19, 2007, about switching her appointment. Ms. Houghtaling couldn't remember what time of day employee typically performed services. Ms. Houghtaling did remember that employee indicated she had to go to Poplar Bluff after leaving her home on July 19, 2007.

Employer presented Sandra Roberts, a former employee, who testified as follows. Ms. Roberts provided services for Ms. Venable during the morning of July 19, 2007. Ms. Roberts didn't believe she would have asked employer for a change in schedule because she had only been working for employer for two weeks or so at that time.

Employee: Sue Ann Hecker

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Employer presented Kellie Kearbey, a co-owner, who testified that employee was not scheduled to visit Ms. Venable on July 19, 2007. Ms. Kearbey testified she went to Poplar Bluff herself that day to pick up a prescription for a client and that she would have just had employee do it if she had indeed been scheduled to go to Poplar Bluff. Ms. Kearbey admitted that scheduling miscommunications were possible, but she didn't think they had ever happened. Employer also presented Melinda Joplin, a co-owner, who admitted calling employee early July 19, 2007, but denied asking her to visit Ms. Venable that afternoon or otherwise change her plans.

In resolving the testimony of the foregoing witnesses, the administrative law judge found Ms. Roberts the most credible. I disagree with this finding. Ms. Roberts's testimony is riddled with inconsistencies. For example, Ms. Roberts reversed herself as to whether she provided part-time or full-time work for certain clients and went back and forth as to whether she had a set schedule of providing care for Ms. Venable. Ms. Roberts also testified in language that belies the administrative law judge's finding that she was "positive about the matters she was questioned about." Ms. Roberts equivocated in answering questions and stated many times that she wasn't sure or could not remember or did not know the answer to what was asked.

Worse, a key factual gap exists in the administrative law judge's findings based on Ms. Roberts's testimony. The administrative law judge decided that Ms. Roberts was the other worker with whom employee had to switch shifts on July 19, 2007, without identifying any basis in the evidence for this finding. Ms. Venable had several different caregivers assigned to her during the summer of 2007. It's true that employer produced evidence showing that Ms. Roberts provided care for Ms. Venable during the morning of July 19, 2007, but this doesn't mean she was scheduled for the afternoon. In fact, the time sheet itself, if accurate, suggests that Ms. Roberts was not scheduled for the afternoon. If Ms. Roberts was not actually scheduled to perform services for Ms. Venable during the afternoon of July 19, 2007, her testimony that she would not have asked employer to change her schedule is legally irrelevant and of little consequence and does nothing to contradict or discredit employee's evidence. For this reason, regardless whether Ms. Roberts is a credible witness, I fail to see how her otherwise unremarkable testimony provides a compelling reason to discount employee's testimony and deny her claim.

Employee's testimony was not only corroborated by Ms. Houghtaling's recollection that employee had to go to Poplar Bluff for another client after seeing her, but also by the fact that the motor vehicle accident occurred on the road leading to Ms. Venable's house at about the time employee would have been travelling there for her shift. There is no evidence on the record to suggest an alternate reason for employee's travel plans or to explain what employee might have been doing in this area if she were not in fact on her way to an appointment for employer. The time sheets presented by employer also reveal that employee was in Ms. Venable's home during the afternoon and evening providing care only two days before the motor vehicle accident. This evidence—provided by employer—squarely contradicts the testimony of Ms. Kearbey that Ms. Venable was not a client of employee's, and lends credence to employee's

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the administrative law judge and enter a temporary award granting the future medical care to which employee is entitled.

Because the majority has determined otherwise, I respectfully dissent from the decision of the Commission.

John J. Hickey, Member

Employee: Sue Ann Hecker

Injury No. 07-073834

Dependents: N/A

Employer: Endeavor Home Care LLP

Additional Party: N/A

Insurer: Guarantee Insurance Company

Hearing Date: March 22, 2010

Checked by: GLR/rf

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? July 19, 2007.
5. State location where accident occurred or occupational disease contracted: Butler 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? 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 happened or occupational disease contracted: The employee was involved in a motor vehicle accident and injured her neck, and left shoulder and body as a whole.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Neck, left shoulder and body as a whole.
3. Nature and extent of any permanent disability: N/A.
4. Compensation paid to date for temporary total disability: $\ 0.
5. Value necessary medical aid paid to date by employer-insurer: $\ 0.
6. Value necessary medical aid not furnished by employer-insurer: None.
7. Employee's average weekly wage: Not determined.
8. Weekly compensation rate: Not determined.
9. Method wages computation: Wages not computed.
10. Amount of compensation payable: $\ 0.
11. Second Injury Fund liability: N/A.
12. Future requirements awarded: None.

No attorney fees are ordered in this case.

On, March 22, 2010, Sue Ann Hecker, the employee, appeared in person and by her attorney, Sheila R. Blaylock, for a hearing for a temporary award. The employer-insurer was represented at the hearing by its attorney, James H. Wesley. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. The main issue in the case was whether the employee sustained an accident or occupational disease that arose out of and in the course of her employment. The Court prepared a final award as the Court determined that the employee did not have an accident that arose out of and in the course of her employment. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Guarantee Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Endeavor Home Care LLP and was working under the Workers' Compensation Act.
3. The employer had notice of the employee's accident.
4. The employee's claim was filed within the time allowed by law.
5. The employee's injury was medically causally related to her accident or occupational disease.
6. The empl