Decision date: March 6, 201323 pages
Summary
The Labor and Industrial Relations Commission reversed the administrative law judge's decision that dismissed the case due to improper naming of the employer, finding that Kids Kick-Start Campus, LLC was the proper defendant based on the employer's own admission in its Answer. The employee, Yordanka Morrero, sustained a work-related injury on December 10, 2007, while working as a childcare provider and is entitled to workers' compensation benefits including evaluation of her claimed 24% permanent partial disability of the left arm.
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| FINAL AWARD ALLOWING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Employee: | Yordanka Morrero |
| Employer: | Kids Kick-Start Campus, LLC |
| Insurer: | Uninsured |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge. | |
| Introduction | |
| The parties submitted the following issues for determination by the administrative law judge:(1) whether employer was an employer operating subject to the Missouri Workers’ Compensation Law on December 10, 2007, and whether employer was insured;(2) whether employee was employed by employer; (3) whether employee was working subject to the law in Kansas City, Clay County, Missouri; (4) whether employee sustained an accident arising out of and in the course of her employment; (5) whether employee notified employer of her injury as required by law; (6) employee’s average weekly wage and the applicable rates of compensation; (7) whether employee is entitled to temporary total disability benefits; (8) whether employee is entitled to reimbursement for past medical care; (9) whether and to what extent employee suffered any permanent partial disability, with employee alleging a 24% permanent partial disability at the 200-week level of the left arm; (10) whether employee is entitled to any compensation for disfigurement; and (11) whether “Kids Kick Start Campus” was a properly named employer in this matter. Employee requested an award against both the alleged employer and the Second Injury Fund for reimbursement of her past medical expenses in the event that the administrative law judge found in favor of employee on the disputed issues.The administrative law judge concluded employee improperly pled “Kids Kick Start Campus” when the properly named employer should have been “Kids Kick-Start Campus, LLC.” The administrative law judge concluded that she could not make a finding of liability against any employer, and could not make a finding of liability against the Second Injury Fund.Employee filed a timely Application for Review with the Commission arguing the administrative law judge erred because the alleged employer filed an Answer in which it was admitted that the employee was employed by “Kids Kick Start Campus” on the date of injury.For the reasons set forth herein, we reverse the administrative law judge’s award and decision. |
On December 10, 2007, employee was working at the Kids Kick-Start Campus daycare center located at 428 N.W. Englewood Road in Kansas City, Clay County, Missouri. Employee worked 40 hours per week performing childcare services at the daycare center. For her services, she earned $\ 8.00 per hour.
Employee was hired to work at the daycare center by Angela Lukenbill. Angela Lukenbill ran the daycare center and signed the paychecks. Employee submitted a paycheck stub which identifies "Kids Kick-Start Campus/Angela Lukenbill" as the payor. Angela Lukenbill is the registered agent for Kids Kick-Start Campus, LLC, a limited liability company organized under the laws of Missouri. We find that the name of the entity for which employee was performing services on December 10, 2007, was Kids Kick-Start Campus, LLC. We find, based on the paycheck stub, that Kids Kick-Start Campus, LLC, was conducting business using the name "Kids Kick-Start Campus." On December 10, 2007, twenty-three employees were working for Kids Kick-Start Campus, LLC, at least ten of whom were full-time staff.
On December 10, 2007, employee was taking a group of children to a gym at the daycare center, when a little girl started running. Employee ran after the child to keep her from falling. Employee tried to grab the child, but slipped and fell. Employee landed on her outstretched left arm and hand and felt immediate and severe pain. Employee's supervisor, Terry, came over and helped employee stand up. Employee asked Terry for medical help. Terry took employee in her car to a clinic, where employee saw Dr. Erich Lingenfelter, who gave employee medication for pain, took some x-rays, and sent employee to the hospital. Terry took employee to the hospital, where doctors told employee that she needed to come back and have surgery on her arm.
From December 10, 2007, employee's doctors restricted her from returning to work. On December 12, 2007, Dr. Lingenfelter performed surgery on employee's left arm. Employee did not experience relief following this surgery and continued to suffer pain and discomfort. On January 2, 2008, Dr. Steven Smith performed a second surgery on employee's left arm. During a follow-up appointment on March 27, 2008, Dr. Smith released employee to return to work with a restriction that she lift nothing over ten pounds. Employee went back to work for Kids Kick-Start Campus, LLC, from April to June 2008. Employee eventually returned to see Dr. Smith, who performed a third surgery on July 2, 2008, to remove the hardware from employee's left arm. Because of ongoing problems following that third surgery, employee was unable to work, and eventually quit her job on August 23, 2008. Employee returned to Dr. Smith for some follow-up care, but was not able to obtain the physical therapy Dr. Smith prescribed because Ms. Lukenbill told her that Kids Kick-Start Campus, LLC, would not pay for it.
Employee has received bills for the medical care she received following her left arm fracture on December 10, 2007. Employee has been unable to satisfy the charges, and receives calls from collection agencies seeking payment of her outstanding balances. Employee provided the bills she received, the medical records reflecting the treatment giving rise to the charges, and testimony identifying the bills. We find that employee
| Northland Anesthesiology | $1,875.00 |
| Northland Bone & Joint, Inc. | 6,677.00 |
| North Kansas City Hospital | 34,027.96 |
| Northland Radiology, Inc. | 32.00 |
According to the foregoing bills, the total amount incurred by employee for past medical expenses related to her left arm fracture equals 42,611.96. We note, however, that employee, in her brief, identifies 40,829.96 as the total amount of past medical expenses.
Following her three surgeries, employee continues to have pain and reduced strength and range of motion in her left arm. Changes in the weather increase employee's pain. Sometimes when employee grabs an object with her left hand, she drops it. The multiple surgeries also left employee with some scarring, including a three to four inch scar down the center of her left forearm, a one to two inch scar on her left hand, and a third scar higher up on her left arm which is approximately an inch to an inch-and-a-half in length.
Employee presented expert medical testimony from Dr. Douglas Rope, who opined that employee's fall on December 10, 2007, was the prevailing factor causing her to suffer a comminuted intra-articular fracture of the left wrist. Dr. Rope rated employee's left arm injury at 24% permanent partial disability of the left upper extremity at the 200-week level. The Second Injury Fund did not provide any expert medical testimony to contradict Dr. Rope's opinions. We find Dr. Rope's testimony to be credible.
We take administrative notice of the records of the Division of Workers' Compensation (Division) connected with this file. On June 19, 2008, employee filed with the Division a Claim for Compensation alleging that on December 10, 2007, she sustained an injury in the course and scope of her employment for "Kids Kick Start Camput [sic]." Employee did not identify the alleged employer as "Kids Kick-Start Campus, LLC." On June 23, 2008, the Division sent notice of employee's filing her Claim for Compensation to 428 N.W. Englewood Road, Kansas City, MO 64118, the address where Kids Kick-Start Campus, LLC, was operating the daycare center.
On July 21, 2008, an entity identifying itself as "Kids Kick Start Campus" filed with the Division an Answer to employee's Claim for Compensation wherein it admitted employee was employed by it on December 10, 2007, but denied the other elements of employee's claim. In its Answer, the entity identifying itself as the employer left blank the box marked "Name of Insurance Carrier or Self-Insured Group/Trust." In the space for "Employer's Signature," an unknown person wrote "Kids Kick Start Campus." The Answer set forth 428 N.W. Englewood Road, Kansas City, MO 64118, as the address of the employer, and the Division continued to send notices to that address. (We note that, after the United States Postal Service returned a March 7, 2011, Notice of Hearing to the Division bearing a "Return to Sender" sticker and a new address for "Kids Kick-Start Campus," the Division thereafter sent notices to the new address.)
On February 7, 2012, employee's counsel sent a letter, via certified mail, to Angela Lukenbill, informing her that employee's claim was set for hearing before the Division on March 9, 2012. That certified letter was signed for as received on February 8, 2012. We find that on February 8, 2012, Kids Kick-Start Campus, LLC, acquired, via its registered agent Angela Lukenbill, actual notice of employee's claim, and that it was set for hearing before the Division on March 9, 2012.
Kids Kick-Start Campus, LLC, failed to appear or present any defense at the hearing before the administrative law judge on March 9, 2012. The hearing took place at 1410 Genessee Street, Suite 210, Liberty, MO 64102. We take administrative notice that this address is located in Jackson County, Missouri.
The administrative law judge determined that employee improperly pled "Kids Kick Start Campus" when the properly named employer should have been "Kids Kick-Start Campus, LLC," and that this defect in employee's Claim for Compensation precluded a finding of liability against any employer. In effect, the administrative law judge dismissed employee's claim because she failed to write "LLC" after the words "Kids Kick Start Campus" on her Claim for Compensation. To reach this result, the administrative law judge did not rely upon any provision of the Missouri Workers' Compensation Law, and instead accepted the Second Injury Fund's argument that the civil pleading rule of § 509.020 RSMo should apply. That provision states, as follows:
Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in section 509.010. In the petition the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.
The foregoing statute governs the captions that litigants in civil lawsuits must set forth in their pleadings. Turning back to Chapter 287, we find no provision setting forth pleading requirements or authorizing an administrative law judge to dismiss a claim for failure to properly name an employer. Instead, we find § 287.550 RSMo, which provides that: "All proceedings before the commission or any commissioner shall be simple, informal, and summary..." Turning to the applicable regulations, we find the following provision governing an employee's Claim for Compensation:
(7) The employee or the employee's dependents may file a Claim for Compensation. In order that the place of setting may be determined, the county in which the accident occurred must be stated on the claim, and if the injury occurred outside of the state of Missouri, the name of the county in which the contract of employment was made must be stated. The
Full decision text continues in the plain-text archive copy.
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