BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G (5/19/2015) MARQUETTE MARSHALL, EMPLOYEE LOUISIANNA RICE MILL, LLC, EMPLOYER

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G (5/19/2015) MARQUETTE MARSHALL, EMPLOYEE LOUISIANNA RICE MILL, LLC, EMPLOYER GREAT AMERICAN ASSURANCE CO., CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED DECEMBER 30, 2015 Hearing before ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on October 9, 2015, at Marion, Crittenden County, Arkansas. Claimant represented by the HONORABLE JOE M. ROGERS, Attorney at Law, West Memphis, Arkansas. Respondents represented by the HONORABLE CAROLYN HARDER, and the HONORABLE FRANK B. NEWELL, Attorneys at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was conducted in the above styled claim to determine the claimant s entitlement to workers compensation benefits. On August 17, 2015, a pre-hearing conference was conducted in this claim, from which a Pre-hearing Order of the same date was filed. The Pre-hearing Order reflects stipulations entered by the parties, the issues to be addressed during the course of the hearing, and the contentions of the parties relative to the afore. The Prehearing Order is herein designated a part of the record as Commission Exhibit #1. The parties further stipulate that the claimant earned an average weekly wage of $425.79, generating compensation benefit rates of $284.00/$213.00, for temporary total/permanent partial disability.

2 The testimony of Marquette Marshall, Shonda Rogers, Quantae Marshall, Tommy Lee Rogers, Greg W. Bud Currie, Aaron Kyle Mitchell, and Roberto Gonzales, coupled with medical reports, photographs, and other documentary evidence comprise the record in this claim. The September 17, 2015, deposition of the claimant was inadvertently included in the hearing transcript as a part of Respondent Exhibit #1. As reflected in the index of Respondents Documentary Evidence, the afore comprises five (5) separate exhibits, with the first three (3) being photographs, the fourth (4 th ) being Wage and Hour Report, and the fifth (5 th ) being the September 17, 2015, deposition of the claimant. The Claimant s Abstract of Medical Records was received subsequent to the hearing and has been bluebacked for inclusion in the record. DISCUSSION Marquette Marshall, the claimant, with a date of birth of January 28, 1983, has a 10 th grade education. The claimant commenced his employment with respondent in August 2013, and worked continuously for same through May 19, 2015, the date of his injury. The claimant testified that prior to his employment by respondent-employer he worked for FedEx where he packaged boxes. Prior to his employment by FedEx the claimant worked for David Wallace at a grain bin. The claimant also previously worked for the City of Crawfordsville, with duties of reading the meters and picking up garbage. (RX #5, p ). The claimant testified that he suffered a prior work-related injury, which was to the small finger of his left hand. At the time of the afore, the claimant was scooping rice with a shovel; the shovel got caught in the auger and the same resulting in twisting and cutting his finger. At the time of the injury the claimant was working at the same rice mill, however it was named Gulf 2

3 Rice. The testimony of the claimant reflects that the cover was off the auger at the time of the injury. The claimant received workers compensation benefits as a result of the injury. (RX #5, p ). The testimony of the claimant reflects that he worked By-Products, explaining that he loaded trucks, and cleaned up. The claimant testified that from the time he commenced his employment with respondent until his May 19, 2015, injury he worked in different areas of the plant. The claimant s testimony reflects that he usually arrived for work before 7:00 a.m. On May 19, 2015, the claimant testified that he worked in the rough rice area scooping beans. The testimony of the claimant reflects that in performing his job duties in the rough rice area he was in a bin scooping the beans into an auger from the top to the bottom until it gets empty. The claimant testified that at 12:00 noon he was off for lunch, during which he walked to his grandmother s house, which is approximately five (5) minutes from the rice mill. The claimant s lunch break ended at 12:30 p.m. After eating lunch the claimant testified that he returned to rice mill. The claimant explained that as he was leaving his grandmother s house and coming off of the porch, which had two steps, he had to step over a cat. In stepping over the cat he experienced a little tingle in his ankle. The claimant denied that he twisted his ankle in the afore process, adding: No, I had a little - - it was just hurting there just a little bit. (T. 16). The testimony of the claimant reflects that he walked back to the rice mill following lunch and resumed his employment duties. The claimant testified that he talked to a Hispanic 3

4 co-worker, Martin, just passing the time of day. The claimant denied seeing any of the supervisors or managers before going back to the job on May 19, 2015, after lunch. In describing the mechanics of getting into the bin, the testimony of the claimant reflects: You ve go to go up - - you ve got to go into it - - you ve got to climb up into it. (T. 18). The claimant offered that there is a door on it, and that you have to step on an auger to get in it. The claimant testified that the auger had a cover on it when he went into the bin, adding: Because you have to step on the auger to get in it. (T. 19). The claimant s testimony reflects that he stepped on the covered auger, got into the bin and commenced shoveling the grain. The claimant noted that the shoveling is dusty-type work, and that after a period of time he had to take a break from the dust. In exiting or getting out of the bin, the claimant testified that he backed out of it, adding: You don t have to come out backwards, but that s the way I come out. (T. 19). The claimant maintains that when he backed out of the bin on May 19, 2015, he stepped into the auger. The claimant testified that at the time of the afore he was wearing high-top boots that came above his ankle. During his September 17, 2015, deposition, the claimant testified regarding the mechanics of the May 19, 2015, injury: I was going - - I was coming out the bin and just stepped in the auger. They had - - the lid wasn t even on it. I just stepped - - I stepped out the bin and stepped right in the auger. * * * 4

5 Yeah. When I went in there - - when I went in the bin, the lid was on when I went in there. When I come out the bin, the lid was off like that. Because there was some rice beside it. They was probably scooping rice back in there. But I don t know. When I come out, wasn t nobody - - wasn t nobody around when I come out the bin. * * * Like if - - they [covers] be off like if they make a spill. (RX #5, p ). The claimant testified regarding his actions/activities after stepping in the auger: Nothing. I went to the little yellow building and went out there when I was first talking to Martin. Martin and what you call it, Marvin. (T. 20). The testimony of the claimant reflects that he saw Marvin and Roberto, both Hispanic coworkers, at the other building. The claimant maintains that one of the afore observed that he was bleeding. The claimant asserts that he looked down and observed that his boot was cut, however did not take any action because he did not think it was major. (T. 21). The claimant testified that he did not go talk to any supervisor at that time. The claimant testified that he was not aware of the severity of his injury at the time it occurred. The claimant testified that he continued to work, but afterwards it was the plant manager, Mr. Currie, who asked him if he was all right, to which he responded he was. The claimant s testimony reflects that he continued to work until he got off work at 3:15 p.m. The testimony of the claimant reflects that after work he commenced walking to his grandmother s house, and during the afore he saw his father, Tommy Rogers. The claimant maintains that when he encountered his father, he told him that he needed to go to the doctor. The claimant testified that when he showed his father his foot, he was taken by same to the house of his sister, Shonda 5

6 Rogers. While at his sister s house, the claimant testified, he and his father removed the boot from his foot. Regarding his observation of the foot at the time of the afore, the claimant testified: Yeah, after I took my sock off - - when I took my sock off, my toe just fell. The right, the right big toe. (T ). The claimant noted that the toe was bleeding badly. The testimony of the claimant reflects that his other sister, Quantae Marshall, arrived and took him to Cross Ridge Community Hospital in Wynne. The claimant s testimony reflects that once he arrived at the hospital in Wynne, his foot was examined and he relayed a history of the injury. The claimant testified that his wound was cleaned at the hospital in Wynne, and that he was then transported via ambulance to the Regional Medical Center in Memphis. The claimant testified that when he arrived at the Regional Medical Center in Memphis he underwent emergency surgery relative to the great toe on his right foot. The claimant explained that the first time pins were put in his toe and foot. The claimant confirmed that he was discharged from the Med on May 23, The claimant testified that while he was in the hospital at the Med he attempted to contact his place of employment to report the injury but was unable to reach anyone. The claimant testified that following his May 23, 2015, discharge from the Med he went to respondent-employer and spoke with Mr. Currie, the plant manager. The claimant maintains that he inquired about workers compensation benefits but was told that he was not within the twenty-four-hour period, so he was not going to fill out a report. The claimant testified that the 6

7 only thing he signed was for family medical leave. The claimant was placed in a boot when he was discharged from the Med on May 23, The claimant testified that he returned to the Med on June 4, 2015, for outpatient treatment he was readmitted to the hospital. The claimant remained in the hospital from June 4, 2015, until June 9, 2015, during which time the great toe on the right foot was amputated. The testimony of the claimant reflects that while he was at Cross Ridge Hospital in Wynne on May 19, 2015, his right foot was photographed. (CX #2). The record reflects the presence of a photograph of the claimant s right foot since the amputation of the right great toe. (CX #3). The testimony of the claimant reflects that following the amputation of the toe he underwent three (3) more outpatient treatments. The claimant offered that the last time he was at outpatient treatment he was provided a boot with a heel on it in an effort to get his balance back. The claimant confirmed that he returned to outpatient on three (3) different occasions, June 17; June 18; and July 2. The claimant s testimony reflects that during the afore visits he was on antibiotics and blood thinners. The claimant testified that he had to take shots for fourteen (14) days, and that he had to take medication for three (3) weeks following his last visit of outpatient treatment. The claimant testified that he has been unable to go back to work, and that he has not been contacted by respondent about coming back to work. The claimant described his problem with his foot since the July 2, 2005, doctor visit as just still a little tender. (T. 31). The claimant offered that during a typical day he just sit and keep it [foot] propped up. (T. 31). The claimant s testimony reflects that while he has tried, he is unable to wear a boot on his right foot. The claimant explained that when he puts a shoe on the foot, the foot hurts and swells. The 7

8 testimony of the claimant reflects that in an effort to keep the foot from hurting and swelling he keeps it elevated/propped up. The claimant testified that he has problems with his balance. The testimony of the claimant reflects that at the present time he feels that he is capable of going back to work doing the same job as he did before his injury. The claimant s testimony reflects, regarding his capability of returning to work: I been wanting to go to work now, but after - - it [my foot] won t let me. I think I can, but I know I ain t going to be able to stand up long. (T ). During his September 17, 2015, deposition, the claimant testified that he was unable to return to work because he could not physically put a boot on the right foot. The claimant added that respondent-employer prefer that he wear steel toe boots. (RX #5, p. 28). Additionally, during the afore deposition the claimant relayed that the doctor had released him to return to work with restrictions: They told me restriction - - they told me to - - I can go back to work when I get ready whenever my foot - - I have to go with my foot. They told me I can go back to work. But I couldn t put no boot on my foot. By my foot still hurting, I can t. And then I have to walk on concrete. (RX #5, p. 29). The claimant testified regarding the physical restrictions that he now encounters as result of the May 19, 2015, injury, during the September 17, 2015, deposition. (RX #5, p ). The testimony of the claimant reflects that he does not own an automobile nor does he have a driver s license. The claimant s September 17, 2015, deposition testimony reflects that he lives at home with his mother and father; that he does not have any hobbies; that he watches television and 8

9 feeds the animals [chickens and hogs]; that he does not play any sports nor attend a gym; and that his chores around his parents house include washing dishes. (RX #5, p ). The testimony of the claimant reflects that he now receives food stamps/a debit card of $194.00, monthly. During cross examination, the claimant testified that the injury involving the auger occurred between 12:30 p.m. and 1:00 p.m., on May 19, As noted above, the claimant went to lunch at 12:00 p.m. on May 19, The claimant acknowledged that he was limping when he returned from lunch, attributing same to stepping over the cat when leaving his grandmother s house and injuring his right ankle. The claimant denied speaking to Mr. Currie or Kyle Mitchell about his ankle after returning from lunch. The claimant described the clothes he worked in as blue jeans, a Louisiana Rice Mill shirt, and boots. The boots worn by the claimant were not steel-toed, and were approximately three months old. The claimant maintains that when he went into the bin after lunch on May 19, 2015, the cover was on the auger, that he remained in the bin working for approximately fifteen (15) minutes, that there was no one in the bin with him, and that there was not anyone outside the bin in the area by the auger with him. The testimony of the claimant reflects that he is not aware of anyone that saw him step in the auger. The claimant confirmed that the cover of the auger is attached by screws. As to whether he was bleeding after he stepped in the auger, the claimant testified: I didn t know. I didn t know if I was bleeding or not, the only thing that I knew, when I was bleeding, Martin said something. (T. 37). The claimant testified that while the auger cut his boot, he continued to work. The claimant 9

10 maintains that the accident occurred between 12:30 p.m. and 1:00 p.m., and he continued to work until approximately 3:15 p.m. The claimant testified that while he noticed the hole in his boot, he never noticed blood. The claimant testified that he did not tell anyone at respondent-employer that he hurt himself on an auger. The testimony of the claimant reflects that he never told anyone at respondent-employer that he hurt himself on an auger at work. (T. 38). The claimant testified that he arrived at the hospital at 4:30 p.m. on May 19, Regarding the disposition of the boot that he was wearing on the day of the May 19, 2015, accident, the claimant s testimony reflects: My sister throwed them away to keep them out of the house for to keep them from the kids. (T. 39). The claimant acknowledged that he has been released to return to work by a physician, and that he does not have any restrictions in the release to return to work. The testimony of the claimant reflects that his mailing address is P.O. Box 133, Crawfordsville, Arkansas, however he lives with his parents at 634 Barrett Road in Crawfordsville, Arkansas. The claimant acknowledged receiving a letter from respondent-employer on the first of October 2015, directing him to return to work on October 1, The claimant testified that he did not return to work on October 1, 2015, because of the residuals from the injury. The claimant confirmed that he has not completed an accident report regarding the May 19, 2015, injury. The claimant testified that after his injury on May 19, 2015, he returned to the bin and continued scooping the bin. The claimant maintains that when he returned to the bin the cover was back on the auger. The claimant testified that he did not see anyone put the cover back on 10

11 the auger. The testimony of the claimant reflects that he left the area where the bin was located between the time of his injury and the time he quit working for the day. The claimant testified that during the afore he went to the bathroom. The claimant acknowledged that he filed a prior workers compensation claim when he hurt his finger. The claimant offered that respondent-employer has had a number of different names, to include Gulf Rice and Blue Bonnet. The claimant testified that when he hurt his finger his employer was Gulf Rice, and he reported the injury to the office. During redirect examination, the claimant confirmed that when he was discharged from the Med on May 23, 2015, he went to respondent-employer and tried to fill out a report about the work injury. As to the results of the afore effort, the claimant testified: Yeah, I talked to Mr. Bud; he told me ain t nothing he could do. He said it was a twenty-four-hour period. (T ). During further examination, the claimant testified that there was not a specific requirement regarding the type of footwear to be worn at work, just boots. The claimant maintains that while getting out of the bin he stepped in the auger; that he later ran into a coworker, Martin, who pointed out that there was blood on his boots. Regarding the afore, the testimony of the claimant reflects: Yeah, when I went in the little building and I was sitting down, sat down for a minute, because I had got tired, sat down for a minute, he come in there, You bleeding. I just looked down. I didn t pay it no mind. I just seen a little blood. I didn t pay it no mind. I went back to work. (T. 47). The claimant testified that at the time he did not experience any pain in the foot or toe. The 11

12 testimony of the claimant reflects that he returned to work and completed his shift. The claimant asserts that at about 2:00 p.m. on May 19, 2015, he told Mr. Currie, the General Manager of respondent-employer, that he needed to go to the house. The claimant testified that the reason for requesting to leave early was because his foot was hurting: I told him my foot was hurting. (T. 51). The claimant acknowledged that the did not relay to Mr. Currie that he had hurt his foot. The claimant s testimony reflects, regarding the response from Mr. Currie to his request: Oh, I need you. I need you to work. (T. 52). As a consequence of the afore, the claimant continued working. The claimant continued to work until his shift ended at 3:30 p.m. The claimant s testimony reflects that at the conclusion of his shift he walked to his grandmother s house, a five minute walk from the rice mill. The claimant testified that as he walked to his grandmother s house he was hopping due to symptoms in his right foot. Nevertheless, the claimant testified that he did not take his boot off. The claimant testified that there was blood on his boot at that point. The testimony of the claimant reflects that while en route to his grandmother s house he came in contact with his father, and told him that he needed to immediately go to the hospital. (T. 49). The testimony of the claimant reflects that while he was en route to his grandmother s house at the time he made contact with his father, he did not enter the house before disclosing his need for immediate medical treatment regarding his foot. The claimant testified that his father transported him to the house of his sister, which was approximately fifteen (15) miles from the house of his grandmother. The claimant did not remove the boot from his right foot until he reached the house of his sister. The claimant 12

13 explained that his foot was bleeding and painful at the time he relayed the need of immediate medical treatment to his father. The claimant offered, by way of explanation the basis for the increased symptoms: Because I wasn t walking on it, see? I wasn t moving on it. When I was in the bin - - I went back in the bin after I was bleeding too. (T. 51). The testimony of the claimant reflects that once he arrived at his sister s house the boot was removed from his right foot: When I made it to my sister s house. I make it to my sister s house, then, I took it off; me and my daddy, we took it off. I was trying to see what was going on; see was it real, real bad. I took my boot off and when I got ready to take my sock off I told you it fell, like this here. When it fell off, I went to crying. (T. 52). The claimant maintains that he relayed a history of his injury to emergency medical personnel at both Cross Ridge Community Hospital and Regional Medical Center. Specifically, the claimant testified that he relayed that he sustained his injury while at work. The claimant asserts that following his May 23, 2015, discharge from the Med, he went to the rice mill, respondent-employer, and spoke to Mr. Currie about workers compensation benefits: I just asked him, I said, Can I get - - can I get workers compensation? He said, You had a twenty-four-hour period. (T. 54). The claimant s testimony reflects that he informed Mr. Currie about the injury he sustained at work on May 19, 2015, and that he had just gotten out of the hospital, which was the basis for the 13

14 request for workers compensation benefits. Tommy Lee Rogers, the claimant s father, testified regarding his contact with the claimant on May 19, Mr. Roger s testimony reflects that at approximately 3:15 p.m. on May 9, 2015, he saw the claimant in front of the house of Mr. Roger s mother-in-law the claimant s grandmother. Mr. Rogers continued regarding the afore: Well, immediately, I saw he was hopping, and I looked down at his foot. And I looked down at the foot and I seen his boot cut, and then, I seen the blood running out of his boot. I picked him up. I picked him up, and I took him over to my daughter s house. (T ). The testimony of Mr. Rogers reflects that he removed the claimant s boot from his right foot and the great toe looked like it was crushed (T. 56). Mr. Rogers continued: It was bleeding. The boot - - as a matter of fact, the boot was full of blood. (T. 56). Mr. Rogers described the condition of the right boot as being cut badly. Mr. Rogers offered that the distance from his mother-in-law s house to the house of his daughter is less than a mile. (T. 57). The testimony of Mr. Rogers reflects that he telephoned his oldest daughter, Quantae Marshall, who then came and transported the claimant for medical treatment. Mr. Rogers testified that he became aware that the claimant was transported to the Med in Memphis for treatment in connection with the right foot injury. Mr. Rogers maintains that while the claimant was hospitalized at the Med, he attempted to report the claimant s injury and hospitalization to personnel of respondent-employer. Specifically, Mr. Rogers testified that he went to the rice mill and talked with Mr. Currie in person. The testimony of Mr. Rogers reflects 14

15 regarding his conversation with Mr. Currie: I asked him - - you know, I asked him about Smurf [claimant], he had - - his toe got cut off, what could he do? He told me he couldn t do nothing. (T. 58). Mr. Rogers testified that the claimant had told him how the injury was sustained, and that he, in turn, relayed the same to Mr. Currie. Mr. Rogers maintains that Mr. Currie informed him that after twenty-four hours there was nothing he could do. Mr. Rogers testified that thereafter he looked up on the internet, and called the workers compensation social worker at respondentemployer, Louisiana Rice Mill. and reported the claimant s injury to her. Mr. Rogers testified that when the claimant was discharged from the Med on May 23, 2015, he and the claimant went to the rice mill. Mr. Rogers testimony reflects that he heard the claimant, in a conversation with Mr. Currie, ask for some workers compensation. In response to the claimant s request, Mr. Rogers testified: He [Mr. Currie] pulled up a paper and said wasn t nothing he could do. It was something on the back of the paper that said within twenty-four hours or something. (T. 59). The testimony of Mr. Rogers reflects that during the May 23, 2015, conversation with Mr. Currie he relayed that he had been contacted by someone from the Louisiana Rice Mill Association: Yes, sir. He said a woman had called him and he looked kind of - - acted like he was kind of upset about it. (T. 59). During cross-examination Mr. Rogers was questioned regarding the date of his initial contact with Mr. Currie regarding the claimant s injury: I don t remember. It was just a couple of days. I talked to him - - I talked to him at first - - that was before he got his toe cut off. (T ). 15

16 Mr. Rogers maintains that the conversation with Mr. Currie in which he relayed that the claimant s toe had been cut off was subsequent to his initial conversation: Well, that was the last conversation. That wasn t the conversation he asked me about, but I went to - - I called the social worker at Louisiana Rice Mill. I called the social worker myself at workman s comp. That was before this conversation. (T ). Shonda Rogers, the claimant s sister, testified that she resides at the McNeil s Apartments in Crawfordsville. Ms. Rogers confirmed that on May 19, 2015, the claimant was brought to her apartment by her father, Tommy Rogers. Ms. Rogers testimony reflects that she observed the claimant s boot being removed from his foot, and that his foot was cut badly along with his boot. Ms. Rogers explained that she has small children, and that the claimant s boot was thrown in the garbage. Ms. Rogers confirmed that her sister, Quantae Marshall, later arrived at her residence and transported the claimant for medical treatment. Quantae Marshall, the claimant s sister, testified that on May 19, 2015, she received a telephone call relaying that her brother had been hurt and needed to be taken for medical treatment. As a consequence of the afore, Ms. Marshall went to the residence of her sister, Shonda Rogers, where the claimant was located. Ms. Marshall described her observation of the claimant s foot at the time she arrived: It was hanging off and I said, Wrap it up in a towel. I don t need to see no more of this, because - - (T. 66). Ms. Marshall s testimony reflects that the claimant s foot was bleeding real bad. Ms. Marshall s testimony reflects that she transported the claimant to the hospital in Wynne. While at the hospital in Wynne Ms. Marshall took photographs of the claimant s injured right foot. (CX #2). Ms. Marshall has the photographs on her cell phone. Ms. Marshall testified 16

17 that she remained with the claimant while he was being seen in the emergency room at Cross Ridge Community Hospital in Wynne. Thereafter the claimant was transported by ambulance to the Med in Memphis. Greg W. Currie, the General Manager of respondent-employer, testified regarding his job responsibilities in that capacity: Pretty much oversee every department and make sure that the supervisors are supervising their people. Make sure the mill runs properly and that production moves along. Maintenance is taken care of, pretty much everything. (T. 70). The physical facility of respondent-employer is located at 5178 Main Street, Crawfordsville, Arkansas. The testimony of Mr. Currie reflects, regarding the operation of the mill: We have about thirty-five employees. We bring in rough rice out of the fields. It s harvested from the field. So, after it s been dried, we process it, we mill it, and send out a food-grade product. We have storage bins in the back that hold our rough rice until it is pulled up to the mill and it is milled out, where we remove the hull and the brand from the kernel of rice, polish it, and then, we store it in a bin until it is shipped out by truck or train. (T. 71). Mr. Currie described the activities entailed in working in the By-Products: By-Products, they will do anything from loading by-products, which are hulls and bran to sanitation work in the mill to helping in rough rice. By-products are kind of fall over the place. (T. 71). Mr. Currie was questioned regarding photographs, marked as evidence in the record as respondents exhibits. Mr. Currie testified that the photograph marked as respondents exhibit #1 was taken approximately around the 23 rd or 24 th of May by the Maintenance Supervisor. In describing the area depicted in the photograph, Mr. Currie testified: This shows the area which Mr. Marshall is claiming he was injured. This shows actually between the two bins and these spouts 17

18 that feed into the auger that pull the rice up to the mill. * * * The bin is on the right and the left side of the photograph, you can see what appears to be a metal box coming out of each bin. Above the metal box, you can see, actually, there s a side gate where rough rice will free flow into that box, and then, fall into the auger, which is in the center of the picture. The door and the entrance to the bin is the large square that you can see right above the sheet that leads down into the spout? (sic) (T ). Mr. Currie described how the bin in entered: You pull the - - you pull the side gate, and then, you take a manway, what we call a manway on the entrance that s bolted into the bin. You take the bolts off, and then, it allows access into the top of the bin. (T. 73). The testimony of Mr. Currie reflects that the cover is adhered to the auger with twelve to fifteen sheet-metal screws. Mr. Currie maintains that the cover is removed from the auger either with an impact drill with a nut-driver or a wrench or socket, and takes three to five minutes. Mr. Currie outlined the safety procedure utilized by respondent-employer in removing the cover from the auger: Yes, covers are not to be removed until the equipment is locked out and tagged out. When someone has a problem, they will notify their supervisor they have an equipment problem, we notify Maintenance. Maintenance, then, fills out lock-out tag-out forms. They actually de-energize the equipment, lock the equipment out; so, nobody can access it and turn it back on and take whatever lids need to be taken off and perform whatever maintenance they have to do. (T ). Mr. Currie testified that employees are informed when the covers of the augers will be removed. Regarding the total duration of the lock-out tag-out procedure, Mr. Curry offered: 18

19 It depends on - - the procedure itself is a matter of filling out a piece of paperwork. Actually locking the machine out, it depends on how long repairs take to that particular machine, dictates or determines how long it s locked out or tagged out. (T. 74). Mr. Currie testified that he is not aware of any documents showing that the auger cover was removed on May 19, 2015, nor is he aware of any document showing that any lock-out tagout procedures were initiated on May 19, at work: The testimony of Mr. Currie reflects regarding the notice procedures of employee injured Well, if an employee is hurt at work, they notify their immediate supervisor or fellow employee and notifies the supervisor and he brings it to my attention. (T. 75). Mr. Currie denied that he received a telephone call about the claimant s injury, however added: Well, excuse me, other than the Med calling after the day he was admitted. The asked me if it was a workman s comp claim. If Mr. Marshall s injury was going to be covered by workman s comp. (T. 75). Mr. Currie testified that in response to the afore inquiry, he stated that it would not. Mr. Currie testified that he had no personal knowledge of an injury until he received the telephone call from the Med. Regarding when he first received knowledge of the claimant s toe injury, Mr. Currie: That would have been when his father - - himself and his father came to the mill, three or four days later. * * * Mr. Rogers, I believe his name is, was very irate when he came 19

20 in. Mr. Marshall sat at a seat next to my desk and put his head down and really didn t say anything. His father said that this had happened at the mill, and I told his father the statement that he had given me the day of his injury that he had told me he had stepped over a cat coming down some steps at his grandmother s house. I had several other of my supervisors ask him the same thing to which he - - * * * Well, the day we noticed Mr. Marshall limping across the yard, which would have been the 19 th of May. I questioned him. He was coming back from rough rice up to the front of the mill. I walked up and asked him what had happened. He had told me he had injured his ankle at lunch stepping down some steps and trying not to step on a cat. I questioned him. He seemed to be limping pretty good. I questioned him if he had hurt himself at the job, did we need to fill out an accident report, what happened? No, no, he had done it off site and it didn t happen at the mill. I, then, later noticed him coming back up limping again and that s when I had my Mill Supervisor go ask him, basically, the same thing. (T ). Mr. Currie provided testimony regarding the process of entering and exiting the bin relative to the location of the auger: We have two - - a row of bins on each side of this auger that runs down between. The bins are probably six feet apart. They re large concrete silos that we store rough rice in. Each bin has a sloped forty-five-degree angle concrete floor that slopes down towards the center to the auger and the troughs in the picture that you showed me while ago. To access it, like I say, you have to pull the slide out and take the manway out, step into the bin, and then, you proceed to sweep the bin or sweep the bin from there. (T. 78). Mr. Currie described the maneuver an employee would undertake entering and exiting the bin relative to the location of the auger: There s - - you can step from the ground into the bin or you can step on top of the spouts that just butts up against the side of the bin to access the floor of the - - of the bin itself. Like I say, it s 20

21 sloped. Depending on how tall you are, you can step from the ground in through the manway. You have to stick one leg in, and then, pull another leg in as you re ducking down going through the manway. Exiting the bin is similar; you back up to the hole, stick one leg out, either step on the spout or step on the ground, depending on how tall you are, and pull your leg out to exit the bin. (T ). Mr. Currie estimated that the distance of the bin from the auger is eighteen to twenty-four inches. injury: Mr. Currie testified that he has seen the claimant since the date of the May 19, 2015, He and his father visited the office on the 23 rd or 24 th. I ve seen him just around town or in a local store, across the street. His dad stopped and talked to me, he and his dad stopped and talked with me somewhere around the 27 th on the side of the street as I was walking across to get lunch, just various places around town. (T. 79). Mr. Currie s testimony reflects, regarding his observation of the manner of the claimant s walk: Early on, he had a boot type of splint or I don t know the term, a strap-on boot with a soft heel on it that he was walking on. And then, in the past, I don t know, two or three weeks, I ve seen him walking around town with tennis shoes on. (T. 79). During cross-examination, Mr. Currie testified that he has been the General Manager at the rice mill in Crawfordsville for three years and three or four months. The Crawfordsville is the only mill that Mr. Currie supervises. The testimony of Mr. Currie reflects that the duration of his employment by respondent-employer is the same as his general management. The headquarters of respondent-employer is in Crowley, Louisiana. Mr. Currie testified that the floor of the bin is at a sloping level to allow the rice to free flow down to the spout. In explaining the purpose of having employees getting in the bin with shovels to perform the work described by the claimant, Mr. Currie testified: 21

22 Once the rice reaches a certain level and due to the amounts of trash or grass or straw mixed in with the rough rice, it reaches a certain point to where it will stop flowing just above the floor bin. They will get in and actually push that rice down to the auger. (T. 81). In describing the contents depicted in the photograph identified as Respondent #1, Mr. Currie testified: Yes, that s the lid of an auger, yes, sir. No, sir. It (the auger) stops just behind here; just behind these spouts. No, sir. Actually they (spouts) stop. If you can - - you can barely see here. You can, actually, see rough rice right here free flowing, those spouts but up against the side of the bin. (T. 82). The testimony of Mr. Currie reflects that removal of the lids from the spouts that butts up against the bin will not result in exposing the auger, however removal of the middle lid would do so. Mr. Currie testified that employees are advised verbally when the covers are being removed. (T. 87). Mr. Currie acknowledged that the claimant and his father came to the mill to talk with him after the claimant s release from the hospital. At the time of the afore visit, Mr. Currie testified that the claimant s father reported that the claimant had been hurt at the mill. Mr. Currie concedes that he did not allow the claimant to fill out an accident report at the time of the visit. Mr. Currie testified that while he took the claimant s statement at the time of the meeting, he did not fill out an accident report. (T ). The testimony of Mr. Currie reflects: Well, I filled out an incident report the next day after hearing from the Med about the injury. Our policy claims or states that accident reports must be filled out within twenty-four hours to be covered 22

23 under workman s comp, and then, steps followed after that to be filed with workman s comp. (T. 88). Mr. Currie denies that he received a telephone call at the mill from someone at the Louisiana headquarters. Mr. Currie maintains that when he met with the claimant on May 19, 2015, and noticed him limping the claimant attributed it to hurting his ankle at lunch. Mr. Currie s testimony reflects that while he did not see any blood on the claimant s boot, he did notice a hole in the top of his boot. (T. 89). Mr. Currie added regarding the hole: I couldn t tell if it was cut or worn in two(sic), though. (T. 89). In describing the movements of the auger, Mr. Currie testified that it does not turn all the time but on and off, explaining: There is telemetry from the mill that sends a signal to the motor controls that tell it when to turn on and off. (T. 90). During the times that the bins are low and being manually shoveled by employee, Mr. Currie testified of the auger: Periodically, it will move until the mill tells it to shut off. Well, there s a hopper up front that feeds the mill itself and it gets so low, it commands the auger to come on and it fills it up and it turns it off. (T. 90). During re-direct examination, Mr. Currie testified that during his investigation since May 19, 2015, he has not found any indication that the cover was off the auger where the claimant was working. The testimony of Mr. Currie reflects, regarding the number of times he inquired of the claimant about his limping: 23

24 From the time I noticed him limping, I would say around 12:45 until the time he left around 3:15, 3:30, I talked to him two or three times? (sic) (T. 92). During re-cross examination, Mr. Currie acknowledged that following the claimant s discharge from the hospital, the request to complete an accident report was denied because of the time period. Mr. Currie denies that the claimant asked him to leave work early at 2:00 p.m. on May 19, 2015, because his foot was hurting: He did say his foot was hurting, but he went back to work and worked another two and a half hours. (T. 94). The testimony of Mr. Currie reflects, regarding the telephone call he received from the Med concerning the claimant: Oh, it was the next - - it was the following morning, I received a call from someone at the Med asking if this was a workman s - - if this was being covered by workman s comp, and I informed them that no accident report had been filled out and there had been no accident at our facility to my knowledge? (sic) (T. 94). Mr. Currie elaborated on the twenty-four hour policy of respondent-employer: That s Louisiana Rice Mill - - well, we have that policy in place - - or go ahead. We have that policy in place, because of the procedures that follow the accident report, the filling out of the accident report, and seeking the medical attention. * * * I don t know if it - - I don t know if it states that we will not allow ; it s more that a workman s comp - - having to turn it in to workman s comp within twenty-four hours of the accident being reported. (T. 95). 24

25 Mr. Currie acknowledged that his reference to workman s comp is in regards to the workers compensation insurance carrier for respondent-employer. Aaron Kyle Mitchell, Plant Supervisor for respondent-employer, has been so employed since January 22, Mr. Mitchell testified regarding his job responsibilities: I check on the mill, make sure the mill is running properly, all the employees, I m everywhere. (T. 98). Mr. Mitchell s testimony reflects regarding his work with the claimant: He was on the load-out side, the By-Products, the department he worked in, when we loaded trucks and I do my walk around every day, talk to all the employees. (T. 98). The testimony of Mr. Mitchell reflects regarding his contact with the claimant on May 19, 2015: We were sweeping bins to clean the bin out; so, we were changing the variety of the bin - - variety of rice to put into it. We had to have this bin cleaned out to put some clear field run into it, and we had to sweep out the rest of the older rice and the trash that was in the rice to get it run through the mill; so, we could have this bin empty and cleaned to put different rice in. (T ). In describing his interaction with the claimant on May 19, 2015, Mr. Mitchell testified: Every morning, Good morning. Every morning, he got instructions to go to rough rice to help a couple of guys to sweep out the rough rice bin; so, we could have it clean. (T. 99). Mr. Mitchell testified that on May 19, 2015, he noticed the claimant limping when the claimant returned from lunch. Regarding the afore, the testimony of Mr. Mitchell reflects: The first time I asked on the radio, you know, if anybody knew what happened and when he got closer to me coming back towards the Break Room, I was coming out by the Break Room going back to the office, I talked to him and asked him, you know, What happened? Was he okay, and he said, everything was fine. It just happened between his grandmother s house and his mother s house that he tripped over a cat. He went in the Break Room. I seen him 25

26 come back out on the backside of the Break Room, down the other side of the back doorsteps and I asked him again, you know - - you know, Do you need an accident report? Because if you do, you know, we can fill one out, because if you got hurt here, we want to, you know, help you out as best we can. And he said he - - he told me again it happened between his grandmother s house and his mother s house. He stepped over a cat and twisted his ankle. (T ). Mr. Mitchell continued, regarding a subsequent encounter with the claimant: Maybe probably twenty or thirty minutes afer that, I think he was coming out of he mill by then, and then, I asked him again if - - you know, I need to know, you know. We re here to help and it s my job. I m here to help you, and if it happened here, I d like to know; so, we can do an accident report. (T. 100). Mr. Mitchell testified that the claimant again relayed that it happened at his grandmother s house. During cross-examination Mr. Mitchell testified that he was not the claimant s direct supervisor, but rather his supervisor s supervisor. Mr. Mitchell identified the claimant s direct supervisor as Gina [Tate]. On May 19, 2015, Mr. Mitchell confirmed that the claimant worked in the rough rice area, however denied that the same always entailed working in the bins, adding: They dump trucks, the dump rough rice trucks. They probe trucks. The truck comes in on the scales, they weigh it in, they probe it, take a sample. If it s good and it passes, we send it to rough rice and rough rice dumps it into a pit and the truck leaves. (T. 101). Mr. Mitchell acknowledged that the rough rice area was not the area where the claimant normally worked, but rather By-Products, which is where they clean and load-out trucks. Mr. Mitchell concedes that on the morning of May 19, 2015, he requested that the claimant be transferred to help the guys sweeping out the bins. 26

27 Mr. Mitchell acknowledged that the claimant was assigned duties of sweeping out the bins, since the bins had gotten to point that gravity would not allow the material fall to the auger: Yes, sir, the bin is at, like I say, maybe a forty-five-degree angle. And it flows down, and then, when it gets so low, you know, it - - when it gets so low that we consider it trash, that all it is is straw and rice mixed together and it won t flow properly. (T. 102). Mr. Mitchell confirmed that the auger would be running when the men are doing the sweeping. Mr. Mitchell denied that there are times that an overflow occurs in the area of bins where the shoots run into the auger necessitating the removal of the cover from the auger to clean it out so that the fallen rice or grain may be scooped in. Mr. Mitchell provided testimony regarding his responsibility with respect to completing workers compensation reports in the event of an injury on the job: It s my duty to, it s my duty to talk to the employees. I help every employee that I possibly can help as long as they re willing to help, you know, me help them, but I get the information before I pass it to Bud, and then - - you know, because Bud has to sign off on my signature just as well as I have to sign off on everybody - - other supervisor s signature. (T. 103). The testimony of Mr. Mitchell reflects that he saw the claimant the morning of May 19, 2015, and that pursuant to his directions the claimant was assigned duties sweeping out the bin. Mr. Mitchell s testimony reflects that the claimant went to lunch at 12:00 p.m. Mr. Mitchell testified that he next saw the claimant at 1:00 p.m.: Coming between the load-out tanks from the rough rice area coming across the parking lot; we ve got some load-out tanks there. We ve got our bran tanks and hull tanks - - he was coming 27

28 through the little alleyway right there. (T ). As to whether the claimant had been in the bins and been sweeping after returning from lunch, Mr. Mitchell s testimony reflects: He went back to rough rice. He went back to the bins. He climbed back in the bin. (T. 105). Mr. Mitchell acknowledged that the claimant had been back in the bin after returning from lunch, and had done so at the time he saw him at approximately 1:00 p.m. The testimony of Mr. Mitchell reflects that at the time he saw the claimant limping at approximately 1:00 p.m., the claimant was coming from the bin and en route to the break room. Mr. Mitchell maintains that the claimant then relayed that he had sprained his ankle stepping on a cat. Mr. Mitchell testified that he did not notice any injury to the claimant s foot, adding that he did look. The testimony of Mr. Mitchell reflects, regarding his observation of the claimant s boot: He had, like, where the toe of the boot folds I wish I could show you with my boots, but right there, I would say, between the shoelaces and the toe of the boot, you know, how when you walk on a pair of boots, you know, an old pair of boots, they crinkle up? Okay. There was like a little cut right there. (T ). Mr. Mitchell testified that the area on the claimant s boot appeared to be wear and tear, not any kind of accident. Following the initial post-lunch encounter with the claimant, Mr. Mitchell testified regarding his subsequent contact: 28

29 I want to say 1:00, maybe 1:30, 1:15 or 1:30, he was coming out the back door of the Break Room, because that s where the water, the refrigerator, and everything else is, and was coming out, and when he come down the stairs, I seen him limping more coming down the steps than he was when he was walking that way and that s when I asked him again if every - - if he was okay. (T. 107). Mr. Mitchell maintains that he asked the claimant if he needed to go home, to which the claimant responded that he wanted to go back to work. Mr. Mitchell never specifically answered the question of being in the presence of the claimant when the claimant relayed that he needed to go home because he was hurting. (T ). The testimony of Mr. Mitchell reflects that he saw the claimant at the time clock, which is located in his office, and that while the claimant was limping at that time he did not see any blood on his foot. Mr. Mitchell added: No, sir, and before he left, one more time I asked him again if he needed to fill out an accident report. (T. 108). Roberto Gonzales, a three (3) year employee of respondent-employer, testified that he worked in the unloading area. Mr. Gonzales testified that while he and the claimant have been co-workers, he did not work directly with him. Mr. Gonzales testified regarding his conversation with the claimant on May 19, 2015: Well, it wasn t a lot. I had come back from lunch, and I just saw him, he didn t look good. So, I asked him, What s wrong with you? And he told me he hurt his foot. So, I told him, he should go up front, but he told me he was all right, that he d just got hurt at his grandma s house. (T. 112). Mr. Gonzales denies having any other conversation with the claimant. As to his observation of any hole in the claimant s shoe, Mr. Gonzales testified: 29