Bobby Rowden v. McCarthy Building Companies

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-133713

Employee: Bobby Rowden

Employer: McCarthy Building Companies

Insurer: Ace American Insurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 25, 2009, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, March 25, 2009 issued, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 14th day of August 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Bobby Rowden

Injury No. 06-133713

Dependents: N/A

Employer: McCarthy Building Companies

Additional Party: Second Injury Fund

Insurer: Ace American Insurance

Appearances: Sam Eveland for the employee

Julie Madsen for the employer-insurer

Hearing Date: December 22, 2008

Checked by: LCK/kh

- Are any benefits awarded herein? No

- Was the injury or occupational disease compensable under Chapter 287? No

- Was there an accident or incident of occupational disease under the Law? No

- Date of accident or onset of occupational disease? N/A

- State location where accident occurred or occupational disease contracted: N/A

- Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

- Did employer receive proper notice? N/A

- Did accident or occupational disease arise out of and in the course of the employment? No

- Was claim for compensation filed within time required by law? Yes

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: N/A

- Did accident or occupational disease cause death? No

- Parts of body injured by accident or occupational disease: N/A

- Nature and extent of any permanent disability: N/A

- Compensation paid to date for temporary total disability: None

- Value necessary medical aid paid to date by employer-insurer: None

- Value necessary medical aid not furnished by employer-insurer: N/A

- Employee's average weekly wage: N/A

- Weekly compensation rate: N/A

- Method wages computation: N/A

- Amount of compensation payable: None

- Second Injury Fund liability: None

- Future requirements awarded: None

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A.

On December 22, 2008, the employee, Bobby Rowden appeared in person and by his attorney, Sam Eveland, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Julie Madsen. 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 facts that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

- McCarthy Building Companies was operating under and subject to the provisions of the Missouri Workers’ Compensation Act and its liability was fully insured by Ace American Insurance Company c/o Gallagher Bassett.

- On or about December 14, 2006, Bobby Rowden was an employee of McCarthy Building Companies and was working under the Workers’ Compensation Act.

- The employee's claim was filed within the time allowed by law.

- The employee's injury was medically causally related to the alleged accident.

- The employer-insurer has not paid any medical aid.

- The employer-insurer has not paid any temporary disability.

- Accident

- Notice

Claim for additional medical aid.

Employee's Exhibits

- Medical report of Dr. Raskas

- Medical report of Dr. Berkin

- CT report

- Medical records of Dr. Frissell

- Medical records of Ste. Genevieve Memorial Hospital

- Medical records of Dr. Rengachary

Employer-Insurer's Exhibits

- Deposition of Bobby Rowden

- Deposition of Byron Black

- Deposition of Larry VanMeter

- Medical records of Physical Health and Rehab

- Division of Workers' Compensation records

Judicial notice of the contents of the Division's files was taken.

WITNESSES: Bobby Rowden and Lester Stone, Jr.

BRIEFS: The employee's brief was received on January 5, 2009. The employer-insurer's brief was received on January 8, 2009.

The employee was walking with a cane at the hearing. He was born in 1953. The employee started working for McCarthy in September of 2006. His last day on the job was August 7, 2007. He worked on one job site, which was the Holcim Concrete Plant, as a skilled laborer.

In his deposition, the employee testified that he had no other workers' compensation claims or any injury where the employer or their insurance company paid for his medical bills. He testified that prior to December of 2006, he had not injured either of his legs.

The employee testified at the hearing, that prior to his fall he had no injuries to his back or neck, and had no other workers' compensation claims. The employee agreed that in 1995, while working at Bridwell, he had a low back strain. He testified that he went to St. Anthony's Hospital where he was given a shot and sent home for a week. He had no ongoing problems. The Division file for the 1995 case is Injury Number 95166937 which showed a pulled back muscle. The employee was paid for lost time and the employer-insurer paid medial bills.

The Division files show a low back injury on November 12, 1991, while the employee was working for McBride and Sons which was Injury Number 91-164329. The employee was seen at St. Anthony's and by Dr. Elcock. The employee testified that he does not recall the 1991 injury. The Division files show a 1986 injury for the employee which was Injury Number 86-139322. The employee had an attorney and filed a claim. Dr. Strickland, an orthopedic surgeon rated the employee at 5 % for a low back strain, and 5 % for a right leg laceration. The employee settled his case for 2 % of the body and 2.5 % of the leg at the knee. The

employer-insurer paid medical bills.

The employee testified that before December 14, 2006, he did not have any back problems. The medical records of Physician's Health and Rehab in Ste. Genevieve show that on April 1, 2003, the employee saw Dr. Kuenzel, a chiropractor for his low back. In 1991, the employee had low back pain and muscle spasms. In 2003, the onset was five days ago with no injury or accident. In the physical examination, it was noted that the employee had low back pain which was sharp if he got up from a seated position. His legs gave out when the pain hits. The employee denied numbness and tingling in the legs. His low back gets stiff, especially when he is not moving around.

The employee testified that around 7:00 p.m. on December 14, 2006, he fell at work. It was quitting time. He was climbing up a wooden ladder and was about 10 feet up when he fell backwards. He hit Lester Stone, who was coming up the ladder. When he fell, his working crew of around eight people was present. There were quite a few other employees also present. He remembered Russ, Vinny, and Bobby Wolfong being present. The employee testified that after he fell, he was on the ground for a minute or so. He got up and asked Lester Stone if he was okay. The employee and Lester Stone climbed up the ladder and went to the office. They reported the accident to Larry VanMeter, the general foreman, which is the procedure to be followed after an accident. The employee told Mr. VanMeter that he had fallen off a ladder and landed on Lester Stone. Mr. VanMeter asked if he and Lester were okay, and the employee stated that he had a bruise on his right leg, and it was stiff. To his knowledge, there was no written report made. In his deposition, the employee testified that the only bruises he had were on his right leg from his hip down past the knee.

The employee testified that the employer's policy was to report any injury to the general foreman. He did not fill out any written paper work for his fall and never asked McCarthy for treatment. To his knowledge, Mr. Stone did not fill out any paperwork for the fall.

In his deposition, the employee testified that he reported the injury to Larry VanMeter the night of the injury and again the next morning. That night, Larry VanMeter did not have him fill out an accident report. The employee did not ask for medical treatment, and Mr. VanMeter did not offer him any. The next morning Mr. VanMeter asked if the employee was okay and he stated that he was. There was nothing filled out.

The employee testified that Bart Burgess was a shop steward/union representative but does not know if he was there when he fell. The employee had a conversation with him the next day. The employee testified Bryon Black had been a foreman but was not the foreman on the day he fell. The employee cannot remember if Mr. Black was present when he fell but a couple of days after the injury he talked to Mr. Black in the office trailer before starting work. Everyone was joking about the fall, and he told Mr. Black that he fell and landed on Lester Stone. Byron Black asked if he was okay. In his deposition, the employee testified that Byron Black was around when he fell.

Mr. Stone testified that he started working for McCarthy on December 4 or 5 of 2006. He worked with the employee on the same crew. He remembered the employee falling off a ladder sometime around December 10-14 of 2006. At the end of the shift, they had to go up a ladder that was 10-12 foot high. For safety, he would wait for the person ahead of him to get to the top before starting to go up. When the employee was at the top of the ladder, Mr. Stone looked down to get his lunch box, and the next thing he knew, the employee fell on him which drove him to his knees. The employee hit him on the left shoulder with his legs or hip, and glanced off of him. The employee hit the ground with his head and legs, and knocked his hard hat off. Bobby Wilfong asked if they were okay. Mr. Wilfong first helped the employee up, and then helped Mr. Stone up. Mr. Stone's left shoulder was hurting the next day but it healed up.

Mr. Stone testified that the employer's safety policy is for the employees to report an accident or near miss to the supervisor who will take it to the safety department. He did not fill out a report. The correct procedure for

reporting an injury was to tell their supervisor, Larry VanMeter. They told Larry VanMeter about the injury in the labor trailer where everybody signed in and out of. Mr. VanMeter asked if they were okay and they said they were. Mr. Stone did not know if Mr. VanMeter made a written report.

Mr. Stone testified that Bryon Black is a foreman for McCarthy, but was not his foreman at the time of the fall. Mr. Black knew about the fall because he was in the trailer when they told Mr. VanMeter about the fall. Bart Burgess, the shop steward, was also in the trailer when Mr. VanMeter was informed about the fall. Everybody in his crew knew about it, including Russell, Bobby Wilfong, and Vinnie. Th