Cathy Hinklin v. Stone Crest Motel

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 11-111607

**Employee:** Cathy Hinklin

**Employer:** Stone Crest Motel (settled)

**Insurer:** Missouri Employers Mutual (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

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 December 10, 2019. The award and decision of Administrative Law Judge Amy L. Young, issued December 10, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 15th day of December 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

Shalonn K. Curls, Member

**Attest:**

Secretary

Injury No.: 11-111607

Employee: Cathy Hinklin

I have reviewed the evidence, read the briefs of the parties, and considered 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 disagree with the majority's decision to affirm the administrative law judge's award. I do not believe that, in combination with her preexisting disabilities, employee became permanently and totally disabled after her November 17, 2011 primary work injury.

I would like to start out by stating that I think that employee is an honorable person. However, she appears to minimize the facts surrounding her job duties and activities between 2005 and her November 17, 2011 work injury. I believe that employee was permanently and totally disabled before her November 17, 2011 work injury, and I can't find anything in the record that would demonstrate to me that she officially recovered from being permanently and totally disabled before the primary injury. The surveillance video that was entered into the record by Second Injury Fund demonstrates that employee was able to move outside of the physical restrictions put in place by her medical doctors.

Employee also appears to have a selective memory. For instance, when directly asked about whether she traveled to attend a Celebrate Recovery event, employee gave a vague response that she "probably" did. However, after she was shown surveillance footage of what appeared to show her exceeding her physical limitations, she was able to recall the contents of a tote as being the lightest items on the list of donations being gathered, and specific items in a tote that she carried out of an event that she minutes earlier wasn't certain she attended.

Additionally, there was no medical expert testimony that would explain any improvement of employee's memory and cognition between 2005 and 2011. I could not find any evidence that employee's memory worsened after 2011. Moreover, employee's activities were inconsistent with someone claiming significant memory and cognitive issues. Employee prepares and presents sermons, leads breakout sessions, officiated funerals, conducted baptisms, serves as a state representative for Celebrate Recovery¹ and is involved in events across the state.

To summarize, I believe that the administrative law judge's award should be reversed in its entirety. Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

¹ Celebrate Recovery is a 12 step support group.

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? November 17, 2011.
5. State location where accident occurred or occupational disease contracted: Wayne County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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 the employer insured by above insurer? Yes.

Employee: Cathy Hinklin

Injury No. 11-111607

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee was moving a mini-fridge, felt a pop, and sustained injury to her cervical spine.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Cervical spine and head (migraines).

1. Nature and extent of any permanent disability: 33% of the body as a whole referable to the cervical spine.

1. Compensation paid to date for temporary total disability: $3475.85.

1. Value necessary medical aid paid to date by the employer-insurer: Unknown.

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: 744.82.

1. Weekly compensation rate: 496.55 for temporary total and permanent total disability and $425.19 for permanent partial disability.

1. Method wages computation: By stipulation.

A. Amount of compensation payable: Employee's claim against the employer-insurer settled by compromise settlement agreement prior to the hearing.

B. Employee awarded permanent total disability benefits from the Second Injury Fund (See Award).

1. Second Injury Fund liability: Yes. See Award.

1. Future requirements awarded: N/A.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Joseph P. Rice, III.

Page 2

On September 11, 2019, the employee, Cathy Hinklin, appeared in person and with her attorney, Joseph P. Rice, III for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorneys, Assistant Attorneys General Keyla Rhoades and Rachel Harris. 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 statement of the findings of fact and rulings of law, are set forth below as follows:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Employers Mutual Insurance.
2. On November 17, 2011, the employee was an employee of Stone Crest Motel and was working under the Workers' Compensation Act.
3. On November 17, 2011, the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 744.82, resulting in a compensation rate of $\ 496.55 for temporary total and permanent total disability benefits and $\ 425.19 for permanent partial disability benefits.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid seven weeks of temporary disability benefits in the amount of $\ 3475.85.

1. Liability of the Second Injury fund for permanent partial versus permanent total disability.
2. The date Employee reached maximum medical improvement.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

Exhibit 1: Genesis Health Care

Exhibit 2: Orthopaedic Associates

Exhibit 2A: Orthopaedic Associates

Exhibit 2B: Orthopaedic Associates

Exhibit 2C: Orthopaedic Associates

Exhibit 2D: Orthopaedic Associates

Exhibit 3: Dr. Franklin McGinty

Exhibits 14B (Deposition of Dr. Volarich) and 16 (Deposition of Susan Shea with Reports from 10/2004 and 8/11/2015 attached) were admitted into evidence subject to Employee's objections to portions of her own exhibits. Employee's objections were taken under advisement and are addressed below under RULINGS ON OBJECTIONS.

The Second Injury Fund Exhibits:

Employee: Cathy Hinklin

Injury No. 11-111607

Exhibit M: Part 1 video June 24, 2018 surveillance

Exhibits C and D were admitted subject to Employee's objections. Employee's objections were taken under advisement and are addressed below under RULINGS ON OBJECTIONS.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The Court took judicial notice of all the records contained in the files of the Division of Workers' Compensation.

RULINGS ON OBJECTIONS:

Exhibit 14B: Deposition of Dr. Volarich 2/23/18

Employee offered Exhibit 14B, but objected to portions of the Exhibit as follows: p. 20, line 24; p. 21, lines 8-10, and p. 22, line 18. Employee objected to thes