Elizabeth Downing v. McDonald's Sirloin Stockade, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-140864

Employee: Elizabeth Downing

Employer: McDonald's Sirloin Stockade, Inc.

Insurer: Missouri Restaurant Association Insurance Trust

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, read the briefs, heard the parties' arguments, 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 and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert H. House, issued August 17, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $4^{\text {th }}$ day of April 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: 8/6/05 AND 6/12/06
5. State location where accident occurred or occupational disease was contracted: JASPER COUNTY, MO
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: BUSING TABLES AND DUTIES OF A WAITRESS
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: BACK
14. Nature and extent of any permanent disability:
15. Compensation paid to-date for temporary disability: $\ 0.00 - BOTH CASES
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,545.44-- 05-140864

-0-

1. Value necessary medical aid not furnished by employer/insurer?
2. Employee's average weekly wages: $\ 184.80-- BOTH CASES
3. Weekly compensation rate: $\ 132.09-- BOTH CASES
4. Method wages computation: AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: June 13, 2006, emergency room visit -- \$1,105.79

June 15, 2006, emergency room visit -- \$1,116.53

20 1/7 weeks of temporary total disability (or temporary partial disability) $20.142 \times \$ 132.09=\ 2,660.56

100 weeks of permanent partial disability from Employer $100 \times \$ 132.09=\ 13,209.00

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: None

TOTAL: $\ 18,091.88

1. Future requirements awarded:

Said payments to begin IMMEDIATELY and to be payable and be subject to modification and review as provided by law.

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:

THOMAS CARLTON

Employee: Elizabeth Downing

Injury Nos. 05-140864 \& 06-079039

Dependents: N/A

Employer: McDonald's Sirloin Stockade

Additional Party: N/A

Insurer: Missouri Restaurant Association

Hearing Date: July 13, 2012

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

The parties presented evidence at a hearing on July 13, 2012, regarding injury numbers 05-140864 and 06-079039. Claimant appeared in person and with her attorney, Tom Carlton. Employer/insurer appeared through their attorney, Greg Carter. Also appearing was Matt Adrian, who represented Freeman Healthcare System regarding medical fee dispute number 06-00764 relating to injury number 06-079039.

The parties agreed that claimant's average weekly wage was $\ 184.80 for both cases representing a workers' compensation rate of $\ 132.09 per week. Employer/insurer paid no temporary total disability benefits and paid medical benefits in the amount of $\ 6,545.44 which the employer/insurer represent were paid in the ' 05 case. An off-the-record discussion was held concerning the issues to be presented for determination at the hearing. The following issues were stated by the parties:

Injury number 05-140864:

1. Whether claimant sustained an injury by accident arising out of and in the course and scope of her employment.
2. Whether claimant provided sufficient notice as required under Missouri law to the employer of her alleged accidental injury at work.

1. Whether claimant's current physical condition was caused by her alleged accidental injury at work.
2. The liability of employer/insurer for past medical care.
3. The nature and extent of claimant's disability for the liability of employer/insurer for past temporary total disability benefits.

Injury Number 06-079039:

1. Whether claimant sustained an injury by occupational disease arising out of and in the course and scope of her employment or whether she was exposed to the hazards of an occupational disease through repetitive trauma.
2. Whether claimant's current physical condition was caused by her alleged occupational disease.
3. Whether claimant provided sufficient notice of her alleged occupational disease.

4 The nature and extent of any disability.

1. The liability of employer/insurer for past medical care.
2. The liability of the employer/insurer for any alleged temporary total disability benefits.

There was also the independent issue of a medical fee dispute with Freeman Healthcare System seeking payment for two emergency room visits by claimant. One emergency room visit was for services provided on June 13, 2006, in the amount of $\ 1,105.79. The person listed as having authorized the services was Jim Vaughn, manager. The second services were provided

**Employee:** Elizabeth Downing

**Injury No:** 05-140864 and 06-079039

Through the emergency room on June 15, 2006, in the amount of $1,116.53 with Amy Clements, assistant manager, being listed as the person authorizing such care. The medical fee provider has dismissed all other medical fee applications for direct payment asserted against employer/insurer for the underlying cases based upon lack of authorization.

Claimant was the only witness testifying at the hearing. Terry McDonald, the owner of Sirloin Stockade, claimant's employer, testified by deposition. Jimmy Edward Vaughn, the manager for employer, also testified by deposition as did Amy Clements, who was the assistant manager/waitress for employer. Additionally, LuAnn Henderson, who is an adjuster for the insurer at the time of the events in this case also testified by deposition. I find the testimony of those witnesses to be credible.

The circumstances concerning claimant's injury in this case and the circumstances that followed are in dispute. Claimant alleges that she injured her back on August 6, 2005, while leaning over a table to clean it off. When she was returning to an upright position, she felt immediate pain in her back. That pain was enough for her to catch her breath. Nevertheless, claimant continued to work. Claimant testified in her deposition and at hearing that she might have mentioned in passing to Jim Vaughn, the manager, what happened. However, claimant did not state in her testimony that she told Mr. Vaughn anything specific about her injury that allegedly occurred while leaning over and then returning to an upright position while cleaning off a table. In her deposition testimony she testified that she said to him that she had just pulled something. Mr. Vaughn then rubbed her back for a couple of seconds similar to a pat on the back. Mr. Vaughn testified that he does not recall specifically that incident, but that claimant could have told him in August of '05 that she had lifted a tray and felt pain in her back after which he rubbed her back. Mr. Vaughn testified that that could have happened "because I've rubbed their backs and shoulders many times … oh, yes, when they have their monthly thing they complain about it it's just you hear stuff all the time about their aches and pains." In response to the question, "Do they complain to you about their backs from lifting of trays?" Mr. Vaughn replied, "I mean they just complain that their back is sore. I don't know."

Employer/insurer did not file a report of injury at that time, nor did claimant request any treatment at that time. Claimant continued to work without receiving any treatment until March 7, 2006, when she went on her own to a chiropractor, Dr. Webb. Dr. Webb noted in his records that claimant's diagnosis was "Subacute exertional right sciatic radiculitis associated to lumbosacral segmental dysfunction." A specific complaint noted in claimant's history was right hip pain radiating down the right leg to the calf. Additionally, there were two separate records from the same date indicating that claimant's symptoms were gradual for three months but got better at times and that claimant "thinks may be related to activities at work but not positive." A similar record on that date (not in the records certified by Dr. Webb's office) simply indicated that claimant "thinks maybe related to activities but not positive," without any indication of work. Dr. Webb's records also note on March 7, 2006, claimant's low back pain and right leg pain. Claimant continued to treat with Dr. Webb, who on April 28, 2006, ultimately concluded that claimant needed an MRI. He advised claimant to check with her insurance for an MRI. He continued to treat her through May 4, 2006.

Claimant eventually was seen at Occumed in Joplin, Missouri on May 12, 2006. The owner of Sirloin Stockade, Terry McDonald, and the manager, Jim Vaughn, along with the assistant manager, Amy Clements, deny authorizing any treatment. So too initially did, LuAnn Henderson, the adjuster for the insurance company, who, in her deposition, initially stated that Jim Vaughn had authorized treatment. However, LuAnn Henderson, later in her deposition, admitted that she had authorized treatment and specifically authorize the MRI. Employer/insurer paid for the services of Occumed. Occumed also provided an EMG which indicated the possibility of a herniated disk. The EMG was paid for by employer/insurer. Claimant was treated at Occumed, and an MRI was obtained which demonstrated a large L5-S1 disc herniation. The MRI was paid for by the employer/insurer. The initial Occumed patient registration/admission from May 12, 2006, notes claimant's pain in her back and right leg and indicates authorization from Jim Vaughn, manager of Sirloin Stockade. It also noted the guarantor as Sirloin Stockade. On June 14, 2006, the Freeman Occumed Worker's Compensation referral form noted a referral to Dr. Ipsen as approved by "LuAnn" on June 14, 2006. Claimant was assessed by Dr. Ipsen. He recommended surgery. However, on June 20, 2006, as set out in the notes included as an exhibit in LuAnn Henderson's