MWCC NO. 98-02255-G-2145
RUFUS LEE BOGGS CLAIMANT
vs.
RILEY CONSTRUCTION, INC.
EMPLOYER
AND
ASSOCIATED GENERAL CONTRACTORS OF MISSISSIPPI,
INC.
CARRIER
REPRESENTING CLAIMANT:
Gregory W. Harbison, Esquire, Tupelo, MS
REPRESENTING EMPLOYER/CARRIER:
Robert P. Thompson, Esquire, Jackson, MS
This matter was heard by the Commission on January 10, 2000 pursuant to the Employer's and Carrier's Petition for Review. The Employer and Carrier question an Order of Administrative Judge which found that Rufus Lee Boggs was the statutory employee of Riley Construction when he was injured on February 1, 1998, and that he was entitled to temporary total disability benefits from that date through April 21, 1998. We affirm in part and reverse in part.
Rufus Lee Boggs, 15 years old at the time, unquestionably injured himself on February 1, 1998 while employed by Wiley Hallmark d/b/a Hallmark Painting when he fell from a section of scaffolding onto the ground. At the time, Riley Construction was acting as general contractor overseeing the construction of a building for Riley Construction company. Riley subcontracted with Hallmark to paint part of this building, and it was during the job that Boggs was injured.
Hallmark did not provide workers' compensation insurance for Boggs. Consequently, Boggs was considered the statutory employee of Riley Construction and is entitled to appropriate workers' compensation benefits from and through Riley Construction, without question. Miss. Code Ann. § 71-3-7 (Rev. 1995). We therefore affirm the Administrative Judge's finding the Rufus Lee Boggs sustained compensable injury on February 1, 1998 and at the time was deemed an employee of Riley Construction for workers' compensation purposes.
The second issue is whether and to what extent Rufus Boggs was temporarily disabled within the meaning of the Law. He was taken on the day of his fall to the North Mississippi Medical Center where he was treated for back pain and released. He sought additional treatment for back pain on February 3, 1998 at the Gilmore Memorial Hospital where he was again treated and released. He later sought treatment from MedServe and Dr. John McFadden. Dr. McFadden felt Boggs did not reach maximum medical improvement until April 21, 1998.
The Claimant himself testified that he felt better within two weeks of the accident and that he missed only about six days of school as a result. He was seen riding his bike and playing approximately eight days after the accident. One of Boggs's school teachers testified that Boggs did return to school after his injury wearing a neck brace, but that he did not exhibit any unusual physical behavior. He was observed running and playing at recess on April 8 without his neck brace.
As far as absence from work is concerned, Boggs testified that he had been hired by Hallmark only to help complete the paint work on the Riley Construction Building and that he was to work only on weekends since he was enrolled in schoo l. The Sunday he was injured was his first and last weekend to work for Hallmark. Because he was enrolled in school, Boggs did not make much effort subsequently to find other work, although we are more than satisfied that he was physically able to work within several days after his accident.
We are reminded that maximum medical improvement is that point in time following injury when the injured worker "reaches the maximum benefit from medical treatment" or "is cured or as far restored as the permanent character of his injuries will permit." Triangle Distributors v. Russell , 268 So. 2d 911, 912 (Miss. 1972). From all the evidence, including the Claimant's own admissions, it appears that Boggs clearly had reached his maximum improvement within two weeks after his accident. And because he was employed to work on weekends only, even had he continued his employment with Hallmark, his injury would not have kept him from work more than the five (5) days required because of this injury in excess of the five (5) days required before temporary disability benefits become due. Miss. Code Ann. § 71-3-11 (Rev. 1995). The Judge's award for temporary total disability benefits is therefore reversed and set aside.
In the end, we find that Boggs sustained a compensable injury for which he is entitled to appropriate medical treatment, but that he has failed to prove his entitlement to either temporary or permanent disability benefits as a result of this injury.
SO ORDERED this the 1st day of February, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION:
Mike Marsh
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 98 02255-G-2145
RUFUS LEE BOGGS CLAIMANT
vs.
RILEY CONSTRUCTION, INC.
EMPLOYER
AND
ASSOCIATED GENERAL CONTRACTORS OF MISSISSIPPI,
INC.
CARRIER
APPEARING FOR CLAIMANT:
Honorable Gregory W. Harbison, Attorney at Law,
Tupelo, Mississippi
APPEARING FOR EMPLOYER AND CARRIER:
Honorable Robert P. Thompson and Honorable Amanda
L. Baham, Attorneys at-Law, Jackson, Mississippi
Claimant filed a Petition to Controvert on February
16, 1998, alleging that he suffered a work-related injury on February 1,
1998, while painting the Riley Construction Company building. The claimant
alleges that Riley Construction Inc., was his statutory employer at the
time of the injury. Riley Construction Inc., and Associated General Contractors
of Mississippi Inc., deny compensability of the injury and have paid no
workers' compensation benefits. A hearing was held in this matter on May
22, 1999, at the Lee County Justice Center in Tupelo, Mississippi.
1. Whether the claimant received a work-related injury on the date alleged in the Petition to Controvert; and if so, whether Riley Construction, Inc. is statutorily liable for payment of workers' compensation benefits;
2. The amount of claimant's average weekly wage on the date of the injury;
3. The existence and extent of temporary disability attributable to the injury;
4. The existence and extent of permanent disability attributable to the injury;
5. The reasonableness and necessity of certain medical treatment; and
6. Whether penalties and interest are applicable.
A hearing was held in this matter on March 26, 1999 at the Lee County Justice Center in Tupelo, Mississippi. The claimant testified on his own behalf and called his sister, Dessie Fowler Jarchow, as a witness. Additionally, he offered into evidence a copy of his check from Wiley Hallmark and the medical records from Gilmore Hospital, Northwest Medical Center and Dr. McFadden. The employer and carrier called David Manley and Tim Riley as witnesses. Additionally, they offered into evidence the depositions of Wiley Hallmark and Sharon Braswell.
The claimant testified that he was 15 years old at the time of the alleged injury of February 1, 1998, and 16 years old at the time of the hearing. The claimant testified that he had been hired b y Wiley Hallmark to spray paint the Riley Construction building. Mr. Hallmark paid him $42.00 for approximately seven (7) hours of work. Claimant testified that he had no prior work experience. He had completed the eighth grade and was taking GED classes at the time of the hearing. Claimant testified that on the day of his fall, he arrived on the job between 8:00 a.m. and 8:30 a.m. He worked approximately one hour before his sister, Dessie Fowler Jarchow, brought him a sandwich. While there, his sister pulled out a camera and took pictures of him. Claimant said he went to the back of the building to retrieve his cap that had been placed on a scaffold approximately eight feet high. Claimant testified that he stepped up on the bottom rail of the s caffold, which was approximately two feet off the ground. He reached up with his left hand to get his cap when he slipped, falling on his back on hard red dirt. He immediately began to scream and cry in pain. His sister and Mr. Hallmark came over to him. Claimant testified that when his sister left to get help, Mr. Hallmark told him to get up because he had "ruined" him. He was taken to the North Mississippi Medical Center Emergency Room by ambulance, where he was treated and released the same day.
Claimant testified that he next sought medical attention on or about February 3, 1998, when he went to Gilmore Memorial Hospital complaining of vomiting up blood. He was treated and released. He next sought medical treatment at MedServe. The last medical treatment he received for his injury was from Dr. John McFadden. His treatment included medication and a cervical collar. He took the collar off when his neck became hot and sweaty. Claimant said his back and neck eventually got better after he saw Dr. McFadden.
Claimant testified that he started having fun again approximately two (2) weeks after the injury. He stated that he could run a little and ride his bike some. He denied that he had been seen running on the playground at school. The Claimant said he missed approximately six (6) days of school as a result of his injury and going to the doctor. He worked approximately two (2) days at a BP station after the accident.
On cross examination, the claimant admitted that he had been to the hospital approximately fifteen times for vomiting in the past. However, he had never gone to the hospital for vomiting up blood.
Dessie Fowler Jarchow, claimant's sister, testified that she had traveled to the work site at the request of her mother to take the claimant a bacon, lettuce and tomato sandwich. Ms. Jarchow said she teased the claimant about the paint in his hair and began to take pictures of him. She said after he ate the sandwich, claimant walked to the back of the building to retrieve his cap from a scaffold. She saw the claimant climb up to reach for the cap, but she then turned around to talk to Wiley Hallmark. Ms. Jarchow testified that when she looked back, she heard the claimant scream and saw the top of his feet going toward the ground. The claimant told her that he was hurt and could not move, so she went to get help. Ms. Jarchow testified that she assisted her brother to the ambulance and went with him to the emergency room. She returned home with him where he was in a great deal of pain.
David Manley testified for Riley Construction. He works as a volunteer fireman and an EMT. He is also the claimant's neighbor. He recalled arriving on the scene when the claimant was lying on his stomach, face down, on the sandy ground. Mr. Manley testified that they transported the claimant to North Mississippi Medical Center. He further testified that he saw the claimant later that night at his father-in-law's house, where there was a fire. He was walking around in a back brace. Several days later, he saw the claimant walking down the street. Approximately eight (8) days later on a Monday, he saw the claimant riding his bicycle. However, he did not notice any type of back brace or restraint.
Tim Riley testified that he owns and operates Riley Construction, Inc., which does general contracting work. He had workers' compensation insurance coverage at the time of the alleged injury. Mr. Riley said Riley Construction was the general contractor for its own building. He subcontracted with Wiley Hallmark to paint the frame portion of the building. He estimated that it would have taken three (3) days to complete the painting work. He could not recall whether or not he asked Mr. Hallmark if he had workers' compensation insurance coverage. However, after the accident, he learned that Mr. Hallmark did not have coverage. Mr. Riley further testified that the claimant worked for Wiley Hallmark. He never saw the claimant or talked to him. He said Mr. Hallmark worked one day following the claimant's alleged injury and did not return to the job site thereafter.
Mr. Riley testified that the building Mr. Hallmark and the claimant were painting was on a slab foundation with the back side raised approximately four (4) feet from the ground. He stated that if you are standing in front of the building and looking to the back of the building, you are unable to see the ground due to the height . Additionally, soft white sand extends from the building working outwards. He said the area where the claimant fell would not have been hard red packed dirt as the claimant testified, but soft white sand. However, he could not say that the red clay had not mixed with the sand.
By agreement of the parties, Wiley Hallmark's testimony was presented by deposition. Mr. Hallmark said he operated Hallmark Painting and at times had his son-in-law working for him on different painting jobs. Mr. Hallmark testified that he still works as a painter, but his son runs the business the majority of the time. Mr. Hallmark testified that he was hired as a subcontractor by Tim Riley to paint the Riley Construction Building. Mr. Hallmark testified that he was on prescription medication and could only relay "bits and pieces" of how he came to hire the claimant, as well as the alleged injury. He said claimant's mother and step-father agreed to allow the claimant to work for him. However, the claimant's step-father told him that he would have to watch the claimant, because he was difficult to control and "bad" about running and jumping. He initially agreed to pay the claimant $5.50 an hour. However, claimant's mother demanded $6.00 or $6.50 an hour. He could not recall the exact amount.
Mr. Hallmark testified that on the day of the accident, he and the claimant had been painting for about an hour when the claimant's sister brought him a sandwich. He said she took out a camera and began taking pictures of the claimant. He asked her to stop taking pictures.
Mr. Hallmark testified that when the claimant got through eating his sandwich, he went to get his baseball cap. He ran through the building, jumped down from the back door of the building, and jumped on the scaffold. He said the claimant had his left hand on the scaffold and reached with his right hand to get the cap. He did not know what happened after that, but said he was sure the claimant had fallen backwards because of the way he landed. However, he did not feel that it was high enough to hurt him. He further testified that he thought it was a plot. However, he called the ambulance to take the claimant to the hospital.
On cross-examination, Mr. Hallmark testified that he never discussed workers' compensation insurance with Mr. Riley. However, he assumed that Mr. Riley had coverage, because the contractor usually carries the workers' compensation insurance when a business only has one or two employees. Mr. Riley testified that he was using Riley Construction's equipment (i.e. forklift, boom truck, etc.) to do the job.
Mrs. Sharon Braswell's testimony was also presented by deposition. Mrs. Braswell was the claimant's teacher at Nettleton High School at the time of his injury. Mrs. Braswell testified that the claimant never did his best in school. He was repeating the eighth grade. She did not notice any unusual behavior on the part of the claimant following his injury. Mrs. Braswell testified that she saw the claimant take his neck brace off at school. Further, on Wednesday, April 8, 1998, the claimant was running around at afternoon recess and was not wearing his neck brace. She said that the claimant was frequently absent from school.
Claimant placed into evidence the medical records of Dr. John McFadden. It was stipulated among the parties that Dr. McFadden does not enjoy the benefit of any hospital privileges and his license was suspended for the prescription of narcotic medications. Dr. McFadden's medical records show that he saw the claimant on or about March 12, 1998, for complaints of neck and low back pain. Dr. McFadden's records show that the claimant completed a Tupelo Pain Clinic history form. This form indicates that the claimant suffered a workers' compensation injury while working for Wiley Hallmark, who was subcontracting with Riley Construction.
Dr. McFadden's diagnoses of the claimant were neck pain, cervical disc injury, lo w back pain and a lumbar disc injury. The claimant was given a cervical collar and treated with muscle relaxants, NSAID, and analgesics for the pain. Additionally, he was told to stay off work. Dr. McFadden's conclusion was that the claimant was temporarily and totally disabled. When Dr. McFadden last saw the claimant on April 21, 1998, he opined that the claimant h ad reached maximum medical improvement.
The medical records from North Mississippi Medical Center show that the claimant received emergency medical attention on or about February 1, 1998, after failing from a scaffold. The radiologist reports showed no evidence of fracture or disc location. The claimant was treated for lumbar/spine pain and released.
The medical records from Gilmore Memorial Hospital
show that the claimant was admitted in this hospital on February 3, 1998,
with complaints of vomiting up blood, blurred vision, difficulty breathing
and low back pain. The claimant related his complaints to having been injured,
when he fell from a scaffold while painting. Additionally, the medical
records show that the claimant was admitted to this hospital on numerous
occasions for various reasons, including: September 17, 1997 for vomiting;
April 3, 1997 for vomiting and sore throat; April 28, 1997 for diarrhea
and vomiting approximately 15 times that day; February 22, 1995 for vomiting;
and September 24, 1994 for vomiting.
Having heard the evidence presented by the parties, and having considered same, I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:
1. The claimant sustained a compensable work-related injury on February 1, 1998, while painting the Riley Construction Company building. The evidence shows that Tim Riley's own company, Riley Construction, Inc., was the general contractor for the Riley Construction Company building under construction at the time of the claimant's injury. The evidence further shows that Tim Riley hired Wiley Hallmark as the sub-contractor to paint the newly constructed building.
The evidence shows that the sub-contractor, Wiley Hallmark, had no worker's compensation insurance coverage at the time of the claimant's injury. Section 71-3-7 of the Mississippi Code provides in pertinent part as follows:
2. The claimant's average weekly wage on the date of the injury was $240. Although the claimant only worked for a short period of time, the evidence shows that he was making approximately $6.00 an hour.
3. The claimant reached maximum medical improvement on April 21, 1998.
4. The claimant was temporarily totally disabled from February 1, 1998 until he reached maximum medical improvement on April 21, 1998.
5. The claimant has not met his burden of proof of permanent disability and loss of wage-earning capacity.
6. The claimant is entitled to recover penalties and interest on any installments of compensation not timely paid in accordance with the Act.
7. The claimant is entitled to reasonable and
necessary medical services and supplies such as the nature of his injury
or the process of his recovery may require consistent with Miss. Code
Anno. § 71-3-15
(1972) as amended, and the Medical Fee Schedule.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier shall pay disability benefits as follows:
1. Pay to the claimant temporary total disability benefits of $160 per week from February 1, 1998 through April 28, 1998. There shall be added to each installment of compensation not timely paid the statutory penalty of 10% together with interest at the legal rate from and after the date the Petition to Controvert was filed. The employer and carrier are entitled to credit for any wages earned by the claimant or any payments of disability heretofore made to the claimant.
2. Pay for, furnish and provide such reasonable and necessary medical services and supplies as the nature of the claimant's injury and the process of his r ecovery may require, consistent with Miss. Code Anno. , 71-3-15 (1972) as amended, and the Medical Fee Schedule.
SO ORDERED this the 21st day of July, 1999.
MELBA DIXON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary