Mark Barrientos v. Ben Hur Construction

strained my back lifting and drilling screens for 8 hours"). "It accords with legislative intent to let the words actually have their ordinary meanings." Valdez v. MVM Sec., Inc., 349 S.W.3d 450, 456 (Mo. App. 2011).

Second, we cannot endorse the administrative law judge's suggestion that "at the time" as set forth in § 287.020.2 necessarily means "immediately." We believe that if the legislature intended that an employee must experience objective symptoms of an injury immediately after the causative event in order to prove an accident, the legislature would have used that word in its definition. Notably, the legislature framed the objective symptoms requirement in the context of "causation," suggesting that if a qualified medical expert is able to credibly link an employee's objective symptoms of injury to a specific event during a single work shift, such proof may assist an employee in demonstrating an accident, even though the objective symptoms do not manifest immediately.

For purposes of this case, we need not determine the legal question whether employee's history at trial of experiencing no symptoms whatsoever until lying in his bed the night following the work shift constitutes an accident for purposes of $\S 287.020 .2$, because we ultimately agree with the administrative law judge that employee failed, as a factual matter, to prove that he suffered any identifiable injury as a result of his work duties on December 28, 2010. In his award, the administrative law judge thoroughly detailed employee's various histories and the competing versions of what happened on that date; we agree that in light of these inconsistencies, employee's evidence simply is not sufficiently persuasive to support the requisite factual findings necessary for employee to prevail on the issues of accident and medical causation. For this reason, we affirm the award denying employee's claim.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge John K. Ottenad, issued September 22, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of February 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: December 28, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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? No
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: Claimant worked as a journeyman ironworker for Employer and allegedly injured his low back as he performed his job duties for Employer erecting steel and cutting security screening.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: (Alleged) Low Back
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Mark Barrientos Injury No.: 10-108268

1. Value necessary medical aid not furnished by employer/insurer? $\ 32,929.88
2. Employee's average weekly wages: $\ 1,321.49
3. Weekly compensation rate: $\ 799.11 for TTD/ $\ 418.58 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer/Insurer Claim denied \$0.00

1. Second Injury Fund liability:

Second Injury Fund Claim denied \0.00

TOTAL: \mathbf{\$ 0 . 0 0}$

1. Future requirements awarded: N/A

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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Matthew J. Padberg.

On May 6, 2014, the employee, Mark Barrientos, appeared in person and by his attorney, Mr. Matthew J. Padberg, for a hearing for a final award on his claim against the employer, Ben Hur Construction, its insurer, Travelers Indemnity Company of America, and the Second Injury Fund. The employer, Ben Hur Construction, and its insurer, Travelers Indemnity Company of America, were represented at the hearing by their attorney, Mr. Gregory L. Temme. The Second Injury Fund was represented at the hearing by Assistant Attorney General E. Joye Hudson.

To allow the parties time to prepare and submit their briefs or proposed awards in this matter, the record was technically left open for a period of thirty days. Although we did not go back on the record or take any further evidence in this matter after May 6, 2014, the record was, then, finally closed on June 5, 2014 and the briefs were submitted by the parties by June 6, 2014, pursuant to the agreement of the parties.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about December 28, 2010, Mark Barrientos (Claimant) allegedly sustained an accidental injury.

2) Claimant was an employee of Ben Hur Construction (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 1,321.49, resulting in applicable rates of compensation of $\ 799.11 for total disability benefits and $\ 418.58 for permanent partial disability (PPD) benefits.

7) Employer has not paid any benefits to date.

8) Claimant sustained pre-existing permanent partial disability of 20 % of the right knee, prior to the alleged accident on December 28, 2010.

9) If the Administrative Law Judge should find that Claimant's pre-existing right knee disability was a hindrance or obstacle to employment that combined synergistically with the primary low back disability, then a load factor of 10 % for the combination of the disabilities should be applied to calculate the extent of Second Injury Fund liability in this case.

1) Did Claimant sustain an accident?

2) Did the accident arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to his alleged accident at work for Employer on December 28, 2010?

4) Is Employer responsible for the payment of past medical expenses in this case in the stipulated amount of $\ 32,929.88 ?

5) Is Claimant entitled to the payment of temporary total disability benefits for a period of time from January 1, 2011 to January 17, 2011, or 2 weeks?

6) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

7) What is the liability, if any, of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Deposition of Dr. Robert Margolis, with attachments, dated February 4, 2013

B. Medical treatment records of Mercy Hospital St. Louis

C. Certified medical treatment records of St. John's Mercy Medical Center

D. Certified me