Larry Barton v. MKG Construction

ISSUED BY DIVISION OF WORKERS’ COMPENSATION

FINAL AWARD

On January 24, 2007, the employee, Larry Barton, appeared in person and by his attorney, Mr. Mark Haywood, for a hearing for a final award against the employer-insurer. The employer-insurer was represented at the hearing by its attorney, Mr. Juan Arias. By agreement, the employee’s claim against the Second Injury Fund was left open. 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 the findings of fact and rulings of law, are set forth below as follows:

1. On or about June 23, 2004, MKG Construction was a covered employer operating under and subject to the provisions of the Missouri Workers’ Compensation Act, and its liability was fully insured by American Home Assurance Company.
2. On or about June 23, 2004, Larry Barton was an employee of MKG Construction, and working under the provisions of the Missouri Workers’ Compensation Act.
3. The employer had notice of the employee’s accident.
4. The employee’s claim was filed within the time allowed by law.
5. The employee’s average weekly wage qualified him for a temporary total disability rate of 662.55 and a permanent partial disability rate of 347.05.
6. The employer-insurer furnished medical aid in the amount of $847.15.
7. No temporary total disability benefits were paid by the employer-insurer.

1. Accident
2. Medical causation
3. Additional medical aid
4. Nature and extent of disability – TTD and PPD

The following exhibits were offered and admitted into evidence: Employee’s Exhibits A-1. Medical records and bills from Val Verde Regional Medical Center in Del Rio, Texas A-2.Medical bill from Team Radiology of Del Rio A-3.Medical bill from Physical America Emergency Services A-4.Medical records and bills from Veteran’s Affairs Hospital West in Columbia, Missouri A-5.Physical therapy records and bills from Texas County Memorial Hospital in Houston, Missouri B. Deposition of Dr. Jerome F. Levy Employer-Insurer’s Exhibits

1. Deposition of Dr. Michael Nogalski
2. Employee's objection to the admission of the deposition of Larry Barton taken August 31, 2006 was sustained, but employer-insurer's exhibit 2 was accepted as an offer of proof.
3. The employer-insurer's Motion for a Continuance to allow the submission of the testimony of Mr. Kent Grab the owner of MKG Construction was denied. The employer-insurer's attorney summarized the expected testimony of Mr. Grab, and the administrative law judge concluded that those points were already included as part of the evidence, and Mr. Grab's testimony would not have any affect on the rulings on the disputed issues. It was also noted that the employerinsurer offered no reasonable explanation for its failure to offer Mr. Grab's testimony at the time of the hearing, either through an appearance or through a deposition.

Based on the testimony of the employee and the other evidence submitted, I find as follows:

- On or about June 23, 2004, Larry Barton ("employee") was employed by MKG Construction as heavy equipment operator. At the time of his accident, the employee had worked for MKG Construction for approximately seven years, and was working in the State of Texas. The job involved rebuilding a parking lot on an Air Force Base.

- On June 23, 2004, the employee was asked to work on his day off to help pump rainwater out of holes in the area where they were working. The employee and the owner of MKG Construction, Kent Grab, were using pumps powered by gasoline motors to remove the water from the holes.

- At the time of his accident, the employee had a cell phone in his shirt pocket. The employee brought his cell phone to work so he could communicate with Mr. Grab when Mr. Grab was not present on the job site. The Air Force also expected contractors that were working on or near the flight lines to have some type of communication available so they could be contacted by airport officials. Although, MKG did not require the employee to have a cell phone with him on the job site and did not purchase a cell phone for him to use, the employee did frequently use his cell phone to make work related calls while working at the Air Force Base in Texas.

- During the course of the day on June 23, 2004, the employee was required to start the gasoline pumps several times by pulling the rope starters or "cranking" them. Although this activity may have contributed to the symptoms that the employee developed in his right shoulder, the evidence indicates the employee suffered a traumatic injury to his right shoulder when his cell fell out of his shirt pocket. The employee was leaning over a water hole with the hose from the pump in his left hand when his cell phone came out of his pocket and was falling toward the water. The employee grabbed for the cell phone with his right hand and felt a pop or tear in his right shoulder. The employee indicated Mr. Grab was standing next to him when his shoulder popped, and asked him what happened.

- Based on the employee's complaints of shoulder pain, Mr. Grab authorized the employee to go to the emergency room at the Val Verde Regional Medical Center on June 24, 2004. Although the employee testified that he told the emergency room physician about cranking the engines and grabbing for the cell phone, the history recorded in the ER records is limited to cranking the pumps by pulling on a rope. The emergency room physician concluded the employee had suffered a "work related injury", and treated the employee by prescribing Naprosyn and Flexeril. The emergency room doctor also recommended the employee stay off work for a few days and provided the employee with a sling for his right arm (Employee's exhibit A-1).

- Although the employee's shoulder continued to bother him and limit his ability to use his right arm, with encouragement from Mr. Grab, the employee stayed in Texas until the job was completed in the spring of 2005. During this time, the employee testified that he basically worked "one handed". On one occasion, the employee went across the border into Mexico and paid cash for a Cortisone injection.

- After he returned to Missouri, the employee indicated that Mr. Grab did not authorize treatment, so the employee was forced to obtain treated at the VA Hospital in Columbia, Missouri. Although the employer-insurer disputes that it denied medical treatment, the employee's original claim for compensation was filed on June 9, 2005, and the employerinsurer denied "each and every allegation contained therein" in his answer that was filed July 28, 2005.

- The physician at the VA Hospital diagnosed the employee as having impingement syndrome wit