No. 00-70168 (2002). Abell v. Candlewood Hotel Co.
Case Date | March 27, 2002 |
Court | Kentucky |
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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