Andrew Sutton v. Tom Boyce Excavating, Inc.

Before the

DIVISION OF

WORKERS'

COMPENSATION

Department of Labor and

Industrial Relations of

Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Tom Boyce Excavating,

Inc.

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance

Hearing Date: June 7, 2007 Checked by:

FINDINGS OF FACT AND RULINGS OF LAW

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: SEPTEMBER 22, 2004
5. State location where accident occurred or occupational disease was contracted: CHRISTIAN COUNTY, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
7. Did 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 employer insured by above insurer? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

RAKING GRAVEL

1. Did accident or occupational disease cause death? NO

1. Part(s) of body injured by accident or occupational disease: LEFT RING FINGER
2. Nature and extent of any permanent disability: 10 PERCENT
3. Compensation paid to-date for temporary disability: -0-
4. Value necessary medical aid paid to date by employer/insurer? -0-
5. Value necessary medical aid not furnished by employer/insurer? $\ 25,754.29
6. Employee's average weekly wages:
7. Weekly compensation rate: $\ 250.00
8. Method wages computation: STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: $\ 25,754.29

4 weeks of temporary total disability (or temporary partial disability)

17.5 weeks of permanent partial disability from Employer

6 weeks of disfigurement from Employer

1. Second Injury Fund liability: NO

Total: $\ 32,629.29

1. Future requirements awarded: NONE

Said payments to begin IMMEDIATELY and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 PERCENT of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

ROB BULLOCK

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Andrew Sutton

Before the

DIVISION OF WORKERS'

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Tom Boyce Excavating, Inc.

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance

Hearing Date: June 7, 2007

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on June 7, 2007. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the case being submitted to the undersigned for issuance of an award on or about July 9, 2007.

The employee, Andrew Sutton, appeared personally and through his attorney, Rob Bullock, Esq. The employer, Tom Boyce Excavating, Inc., and its insurer, Missouri Employers Mutual Insurance Co., appeared through their attorney, Kevin Rapp, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about September 22, 2004 Tom Boyce Excavating, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Employers Mutual Insurance Co.

(2) On the alleged injury date of September 22, 2004 Andrew Sutton was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged accident occurred in Taney County, Missouri. The parties agree to venue lying in Christian County, Missouri. Venue is proper.

(4) The employee notified the employer of his alleged injury as required by Section, 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) At the time of the claimed accident the employee's average weekly wage was sufficient to allow a compensation rate of $\ 250.00 for both temporary total disability compensation, and permanent disability compensation.

Exhibit 4.

Deposition of Andrew Sutton

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official notice of the documents contained in the Legal File, which include:

- Request for Hearing-Final Award

- Notice of Hearing

- Answer of Employer \& Insurer to Claim for Compensation

- Claim for Compensation

The claimant, Andrew Sutton, is 29 years of age, having been born on September 24, 1977. He resides in Joplin, Missouri with his wife and children.[1]

Mr. Sutton enjoys limited education, as he attended but did not complete the 9th grade. And, he has not obtained a GED. In light of this limited education, Mr. Sutton's employment history is varied, and relates primarily to laborer oriented work. He is presently employed as a dishwasher for Ryan's Steakhouse.

Also, Mr. Sutton's personal history is marked by a criminal record that involves convictions for stealing and writing bad checks. He is presently on probation for this concern, and notes that he has been successful in his probation, and expects to complete the probation in September 2007.

The employer, Tom Boyce Excavating, is a construction business that is engaged in the earth moving phase of construction projects, which includes clearing, general grading, and installation of underground utilities. As an employer, Tom Boyce Excavating employs approximately 65 to 70 employees, who involve primarily operators and general laborers, and secondarily foremen and office staff. The operators are responsible for operating the heavy equipment, including the backhoes and bulldozers. The laborers, which number about 30, are responsible for shoveling, raking and laying and assembling pipe for underground utilities. Additionally, laborers assist the operators in spotting, and perform other laborer oriented work needed at the construction site.

In or around June 2004 Mr. Sutton obtained employment with Tom Boyce Excavating, working as a laborer. Mr. Sutton continued in this employment until being terminated in or around October 2004. As an employee of Tom Boyce Excavating, Mr. Sutton performed labor work that included raking, shoveling, using the pick and such other labor activities as might be presented on a construction project. Notably, he did not wear gloves when engaged in these activities, nor were gloves provided by Tom Boyce Excavating.

The parties appear to agree readily that, in September 2004, Mr. Sutton suffered a medical injury or condition in the nature of Methicillin-resistant Staphylococcus aureus ("MRSA"), which necessitated receipt of medical care, including hospitalization and surgical interventions. Notably, this medical condition involves a bacterial infection, and is now considered an epidemic concern in the United States. In describing the nature of this medical condition, David McKinsey, M.D. (infectious disease expert for the employer and

insurer) propounded the following comments:

Q. Okay. Can you explain to the Administrative Law Judge what MRSA is or what is the history of MRSA?

A. MRSA is Methicillin-resistent Staphylococcus aureus. Staphylococcus aureus has been an important bacterial cause of infection in humans for ma