MWCC NO. 98 16128-G-4371
KENDRA ODOM CLAIMANT
vs.
B.C. ROGERS PROCESSORS, INC.
SELF-INSURED
EMPLOYER
REPRESENTING CLAIMANT:
Hon. Laurel G. Weir, Attorney at Law, Philadelphia,
Mississippi
REPRESENTING DEFENDANT:
Hon. Alan C. Goodman, Attorney at Law, Jackson,
Mississippi
The Commission heard the above styled cause on May 1, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the claimant's "Notice of Appeal to Full Commission".
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated February 29, 2000.
SO ORDERED, this the 17th day of May, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Ben Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
BY:
Janet Summers, Assistant Secretary
___________________________
KENDRA ODOM CLAIMANT
vs.
B.C. ROGERS POULTRY, INC. EMPLOYER/SELF-INSURED
APPEARING FOR CLAIMANT:
Honorable Laurel G. Weir, Attorney at Law, Philadelphia,
Mississippi
APPEARING FOR DEFENDANT:
Honorable Alan C. Goodman, Attorney at Law, Jackson,
Mississippi
A hearing was held on January 19, 2000 at the Neshoba County Courthouse located in Philadelphia, Mississippi. This cause concerns injury suffered by the Claimant as the result of a third party assault upon Claimant on October 9, 1998. The compensability of the claim was contested by the Employer as to whether the injury was work related and if it occurred within the course and scope of Claimant's employment. Prior to going on the record the parties entered into the following stipulation:
1. The average weekly wage of the Claimant was determined to be $299.62.
Evidence was entered into this cause as follows:
1. Claimant Exhibit 1 - This is a combined exhibit consisting of the following:
The claimant also presented on the date of the
hearing a Motion for Independent Medical Examination. After reviewing the
Motion and hearing arguments of counsel, the Claimant's Motion for an Independent
Medical Examination was denied
The compensability of the claim and the existence,
nature and extent of disability attributable to the injury.
Claimant testified on the occasion of this hearing that she is 22 years old with her date of birth being June 20, 1977. She completed high school at South Leake High School in 1995 and while in high school completed a two year course in business technology offered by the Leake County Vocational Technology Center. Claimant testified that she has never been married nor does she have any children.
Claimant's first job out of high school was with B.C. Rogers. She began her employment at B.C. Rogers on October 17, 1995, where she initially worked in the marination line. Claimant testified that in 1998 she worked in the cooking department at B.C. Rogers where she was responsible for putting the plastic lining in the cardboard boxes used for packaging the chickens processed at the plant. Claimant's normal hours on the cooking shift were from 2:30 p.m. to 11:30 p.m, Monday through Friday. Also in 1998 Claimant worked in the sanitation department at B.C. Rogers where her hours ran from 11:30 p.m. to 2:30 a.m.
The Claimant testified that all employees had a time card that they would swipe through a reader when they "clocked in" at work. This same procedure was followed when an employee completed a shift and they would "clock out" from work.
Claimant alleges injury occurring on Friday, October 9, 1998. On that date Claimant was to report to her normal cooking shift at 2:30. Claimant testified that she had a hair appointment and was unable to make it to the B.C. Rogers plant in time for her cooking shift. Claimant testified that she had been written up for excessive absences before this date and she was aware that B.C. Rogers had a policy of terminating employees with excessive absences. Claimant testified that she arrived at work at approximately 9:30 that evening and went directly to the sanitation line to begin her night shift work. After cleaning approximately three scales in the sanitation department, Claimant and a co-worker left the Employer's premises to get a snack.
Upon returning to the plant site, the Claimant went through a different area of the B.C. Rogers plant where she encountered Derrick White talking to another girl. Claimant testified that she had known Derrick White before this date and had never been able to get along with him. She also testified that she did not fear for her safety nor did she think Derrick White would harm her in any way. Claimant walked past Derrick White at which time he struck her with his fist and picked up a metal stand near the processing line and swung it at Claimant, causing several cuts to her left hand and a single cut to her scalp.
Claimant testified that at the time of the assault on October 9, 1998, Derrick White was not an employee of B.C. Rogers but was employed by Southern Sanitation. In her employment on the cooking and sanitation line, Claimant would not come into contact with Derrick White and she had no particular reason to be in the area of the plant where Derrick was working that evening. Claimant testified that the assault by Derrick White had nothing to do with her work at B.C. Rogers; there was nothing about her job that caused Derrick White to assault her; and that the assault could have just as easily occurred off of the premises of B.C. Rogers.
Claimant testified that following the assault her supervisor at B.C. Rogers offered to take her to a doctor, which offer she refused. Claimant testified that she did not seek any medical treatment until she was seen by Nurse Practitioner Mary E. Pearson with the Primary Care Clinic in Carthage on Monday, October 12, 1998. The Primary Care Clinic referred Claimant for x-rays and a CT scan at Leake Memorial Hospital and the University of Mississippi Medical Center. All of these studies were negative. The Claimant testified that she has never sought any additional medical treatment other than the initial visit with Nurse Pearson nor has she had any medical care provider give her a work restriction or an off work duty slip to present to her employer. Additionally, Claimant testified that she is not working nor has she worked since the date of the assault. She has made application for employment only with two employers "during the surnmer" of 1999, but she was never contacted with regard to those jobs.
The Employer called as a witness, Cheryl McGee, the Human Resource and Workers' Compensation Administrator for B.C. Rogers. Ms. McGee testified that in her position with B.C. Rogers she has daily contact with the workers' compensation claims and in particular she possesses personal knowledge with regard to the claim of Kendra Odom. McGee testified that in 1998 B.C. Rogers had in place a policy of terminating employees with excessive absences. She also identified the employee performance note for Kendra Odom dated June 29, 1998 which placed Claimant on probation from any further job absences. Cheryl McGee further testified that B.C. Rogers employees must use their employee I.D. badge to clock in and out of their particular shifts. This process generates computerized time records that show when an employee is actually on the job. McGee testified it was her understanding that Claimant was not at work on October 9, 1998 as alleged in her Petition. She reviewed the time sheet printout for the cooking line shift for that date and Kendra Odom was marked as absent. Additionally, McGee reviewed the computer time printout of the sanitation shift for October 9, which also did not show Claimant as clocked in for that date.
Cheryl McGee further testified that Derrick White was an employee of Southern Sanitation and was not paid any benefits by B.C. Rogers. McGee was not aware of any problems between Derrick White and Claimant before October 9, 1998. She also testified that B.C. Rogers had never received any information indicating that the assault by Derrick White was in any way caused or provoked by Claimant's employment at B.C. Rogers.
Cheryl McGee next testified that Claimant was
terminated by B.C. Rogers due to company policy for three days of missed
work without a doctor's excuse. McGee testified that at no time did B.C.
Rogers ever receive any work restrictions or medical excuse for Kendra
Odom. She testified that Claimant could have returned to her position at
B.C. Rogers and that employment has been available since Claimant's last
day of work on October 9, 1998.
Upon evaluation of all testimony, lay and medical, and based upon a preponderance of the evidence supported by applicable law, I hereby render the following findings of fact:
1 . The assault upon the Claimant by a third party non-employee did not cause injury arising out of and in the course of the Claimant's employment. The assault by Derrick White upon Claimant Kendra Odom was purely personal in nature and had no connection whatsoever with Claimant's employment at B.C. Rogers. Accordingly, the claim of Kendra Odom is denied.
2. Alternatively, in viewing the totality of the
circumstances herein and with reference to all testimony and proof submitted,
there is no substantiation that the Claimant has suffered from any temporary
or permanent impairment, medical or otherwise, as a result of the assault
by Derrick White and no disability of a temporary or permanent nature is
found.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the claim of Kendra Odom for temporary and permanent disability benefits be and the same is hereby denied.
SO ORDERED, this the 29th day of February, 2000.
VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary