No. 00-70168 (2002). Abell v. Candlewood Hotel Co.

Case DateMarch 27, 2002
CourtKentucky
Kentucky Workers Compensation 2002. No. 00-70168 (2002). Abell v. Candlewood Hotel Co TAMMIE ABELL PETITIONER vs. CANDLEWOOD HOTEL COMPANY and HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: March 27, 2002CLAIM NO. 00-70168APPEAL FROM HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * * * * * ** BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. LOVAN, Chairman. Tammie Abell ("Abell") appeals from the decision of Hon. J. Kevin King, Administrative Law Judge ("ALJ"), dismissing her claim for failure to provide due and timely and notice. Abell filed her Form 101 on November 9, 2000 alleging she sustained an injury to her neck and left shoulder while flipping mattresses on May 22, 2000. Abell testified by deposition taken January 10, 2001 and at the hearing held October 22, 2001. In her deposition, Abell indicated she was working alone and was flipping a mattress when she felt a sharp pain shoot through her back. The pain was across her shoulder blade and into the neck. She felt something pull at that time but did not tell anyone. She believed it was only a pulled muscle and her condition at that time was not serious. She did not seek immediate medical treatment. On June 2, 2000, Abell experienced burning and stinging in the upper part of her back and sought treatment at the emergency room of University Hospital. She indicated she had given a history of the injury to the emergency room doctor. Abell sought additional treatment with Dr. Orgel at the Fern Creek Medical Center on June 5. She believed she provided a history of the work injury to Dr. Orgel. Abell was questioned regarding any previous injuries. She had been treated for arthritis and was first treated for that condition ten years ago. She had previously strained her low back in 1998 while working for Candlewood Hotel Company ("Candlewood"). On that occasion she was picking up a case of Kleenex. She did not recall a December 1997 incident where she was alleged to have experienced pain in her upper back and neck while bending over making beds. She acknowledged working for an apartment complex called Lake in the Woods in 1994 but could not recall treatment with Dr. William Nash for a December 5, 1994 cervical strain. Abell also acknowledged having been involved in a motor vehicle accident in 1994. She stated she was thrown sideways in her van and then thrown into the back. Her neck and head were hurt in the accident. She did not seek treatment from any chiropractors or anyone else after that. Abell had been provided with a handbook and believed the handbook did state that any work-related injuries must be immediately reported to a supervisor. When she was injured in 1998 she had no problem reporting her injury to Marilyn Beatty. However, Abell indicated at a meeting held six months to one year following that injury, Beatty stated Abell had previously filed a workers' compensation claim and was investigated. Abell was embarrassed as a result of Beatty's comments. Abell acknowledged she did not tell anyone at Candlewood about the alleged injury until sometime in late July or early August. At that time, Beatty indicated it was not a workers' compensation claim and Abell applied for short-term disability and received roughly $2,500 in short-term disability benefits. Abell's testimony at the hearing essentially confirms testimony in her deposition. She again indicated her initial belief she had only pulled a muscle and her condition was not serious. She again stated she informed the emergency room physician and Dr. Orgel in her first visit at Fern Creek that she had been injured at work flipping mattresses. Abell indicated she was aware the proper procedure for Candlewood was to report any type of injury immediately. She admitted she did not give notice to Beatty until at least August 2000. She did not start missing work at Candlewood until...

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