Susan Franklin v. Mid America Hotels Corp.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-143216

Employee: Susan Franklin

Employer: Mid America Hotels Corp.

Insurer: Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 25, 2012, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued July 25, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Susan Franklin

Injury No. 05-143216

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

Employer: Mid America Hotels Corp.

Additional Party: None

Insurer: Self c/o Claims Management, Inc.

Appearances: Melvin Franke, attorney for employee.

Ed Weiss, attorney for the employer/insurer.

Hearing Date: March 21, 2012 commenced Checked by: LCK/rf

April 24, 2012 completed

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? N/A
5. State location where accident occurred or occupational disease contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Undetermined.
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.

1. Describe work employee was doing and how accident happened or occupational disease contracted: N/A
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: N/A
4. Nature and extent of any permanent disability: N/A
5. Compensation paid to date for temporary total disability: None.
6. Value necessary medical aid paid to date by employer-insurer: None.
7. Value necessary medical aid not furnished by employer-insurer: N/A
8. Employee's average weekly wage: 705.67.
9. Weekly compensation rate: 470.45 for temporary total disability and permanent total disability and $365.08 for permanent partial disability.
10. Method wages computation: By agreement.
11. Amount of compensation payable: None.
12. Second Injury Fund liability: N/A
13. Future requirements awarded: None.

On March 21, 2012 and April 24, 2012 the employee, Susan Franklin, appeared in person and with her attorney, Melvin Franke for a hearing for a temporary award. The employer was represented at the hearing by its attorney Ed Weiss. Also present for the employer was Jerry Barker, the Director of Loss Prevention and Human Resources. 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 a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. Mid America Hotels Corporation was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self insured employer care of Claims Management, Inc.
2. On or about November 10, 2005 Susan Franklin was an employee of Mid America Hotels Corporation and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 705.67. The rate of compensation for temporary total disability and permanent total disability is $\ 470.45 per week. The rate of compensation for permanent partial disability is $\ 365.08 per week.
5. The employer did not pay any medical aid.
6. The employer did not pay any temporary disability.

1. Accident.
2. Notice.
3. Medical causation.
4. Claim for medical aid.

The following exhibits were offered and admitted into evidence:

A. Deposition of Dr. Russell including his CV and report

D. Medical records of Jefferson Memorial Hospital

F. Medical records of Center for Interventional Pain Management

H. Medical records of Dr. Swope

I. Medical records of Baker Medical Group

J. Medical records of Dr. Liss

K. Medical records of Dr. Meyer

M. Medical records of Dr. Garcia

1. Report of Dr. Mishkin dated January 17, 2012
2. Medical records of Dr. Baker
3. Medical records of Dr. Liss
4. Report of Dr. Padda
5. Triage and assessment nursing record of Jefferson Memorial Hospital
6. Wage records
7. Deposition of Dr. Mishkin including his CV and reports

The following exhibit was offered by not admitted into evidence:

- Employee’s Exhibit B, a chronology.

The following employee’s exhibits were marked but not offered into evidence:

- C – Itemization of medical cost;

- E – Billing records from Jefferson Regional Medical Center;

- G – Billing records from Center for Interventional Pain Management;

- L – Billing records from Dr. Rickmeyer;

- T – Itemization of expenses; and

- Y – Wage rate calculation.

During the hearing on March 21 an issue arose as to the admissibility of Dr. Mishkin’s deposition. Prior to the hearing the employee filed a Motion for an Interlocutory Order prohibiting the testimony of Dr. Mishkin or in the alternative a Motion in Limine to prohibit his testimony or in the alternative a Motion to Strike his deposition testimony. On March 21, the Motions were taken under advisement by the undersigned administrative law judge; the employee filed an offer of proof; and the hearing was continued. On March 23, 2012 the employee’s Motions were denied by the undersigned administrative law judge. The continuation of the hearing was held on April 24, and the deposition of Dr. Mishkin was admitted into evidence.

Judicial notice of the contents of the Divisions' file for the employee was taken.

WITNESSES: Susan Franklin, Shannon Franklin, Chalmer Herron and Julie Jones.

BRIEFS: The employee's brief was received on May 16, 2012. The employer's brief was received on June 4, 2012.

Based on the review of the evidence, I make the following findings of fact concerning the issue of accident:

The claimant testified that she started working at Burger King in 1996 or 1997.

The claimant saw Dr. Baker on July 26, 2002 with neck and back pain. Past medical history showed neck and back pain for two days. The claimant had positive neck muscle spasms. Vioxx was prescribed; and a strain was diagnosed. On November 20, 2002 the claimant saw Dr. Baker for eye, neck and back complaints.

The claimant testified that she never saw Dr. Baker for back and neck pain, and only saw him for being sick like she had the flu and she had body aches. She does not know how it got into Dr. Baker's records of having a back and neck strain; and does not know why that would be there. With regard to the visit of November 20, 2002, she does not remember that she had neck and back pain but it might have been for having a big cyst behind her ear. She does not know why back and neck pain is in that record.

The claimant started seeing Dr. Liss for anxiety and depression on September 15, 2005. She started seeing Dr. Swope on September 26, 2005 and it was noted that she needed her pain medication straightened out for abdominal pain. She was currently on FMLA and had been off work since September 9, 2005. On October 19, 2005 the claimant saw Dr. Swope with a diagnosis of chronic abdominal pain; and a pain specialist referral was made.

In November of 2005, she had been the Store Manager of the Burger King in Pevely for at least 9 years. She does not remember seeing signs about workers' compensation; and did receive a handbook but does not remember if it had any workers compensation in it. She regularly attended managers meetings, and had her own assistant managers meetings. There was a manger meeting once a month with all store managers, Chalmers Herron the Regional Manager, and Julie Jones the District Manager. The store managers were trained not to file workers' compensation injuries. It was said more than one time, and at every meeting there was something said about avoiding workers compensation. As a manager she received an award due to not having any workers' compensation claims for one year. She was responsible for her store being clean and safe, and she ran a good store.

The claimant testified that around 8 or 9 p.m. on November 10, 2005, she was pulling down boxes from the walk in freezer. She stepped up to take a case of hamburgers off the shelf.

The safety mat slid when she stepped down, her foot slipped, she jerked and she fell down onto her side and back, and hit her back and buttocks. The other employees in the store at the time were Stephanie and Greg, who were helping her close. Stephanie was doing dishes, and the claimant does not know if Stephanie saw her fall, but she helped her up. Greg and Stephanie helped her the rest of the shift. She did not call Mr. Herron or Ms. Jones that night because she would have gotten in trouble if she had called at night. She stayed until closing. The next day Mr. Herron and Ms. Jones were both in the store for a supervisory visit, and she told them that she hurt her back after falling in the freezer. Ms. Jones just looked at her and Mr. Herron said that we all work with bad backs. After November 10, 2005, Greg worked a couple of months, and Stephanie worked 7 more months. To her knowledge, Mr. Herron and Ms. Jones did not perform an inspection or an investigation, did not offer medical treatment, and did not ask how she was doing. She asked them for treatment, and she was ignored.

The claimant testified on direct that the accident was on November 10, 2005. The claimant testified in her June 18, 2010 deposition that she could not remember when the injury happened.

The claimant's husband, Shannon Franklin, testified that he saw the claimant the night after November 10, 2005. She had problems with pain in her low back due to falling, slipping and jarring her back pulling down a box of hamburgers. The claimant was concerned if she went to Ms. Jones, which she did the following day, they would brush her off and she was concerned about losing her job because that is the way the company is. Mr. Franklin testified that if a workers' compensation claim is filed, they are going to make your job miserable or they are going to fire you. The claimant kept working with medication but it has been downhill every since she left Burger King.

Chalmer Herron testified by deposition on May 4, 2011. At the time of the injury and at the time of the deposition he was a regional manager for Burger King. With regard to becoming aware of a workers' compen