Jimmie Davidson v. Mihalevich Concrete Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-145218

Employee: Jimmie Davidson

Employer: Mihalevich Concrete Construction

Insurer: Ace Fire Underwriters Insurance Company

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

Date of Accident: June 24, 2003

Place and County of Accident: Adair County, Missouri

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 Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 27, 2006. The award and decision of Administrative Law Judge Robert J. Dierkes, issued February 27, 2006, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 12^{\text {th }} \qquad$ day of October 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: June 24, 2003.
5. State location where accident occurred or occupational disease was contracted: Adair County, Missouri.
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:

Employee injured his back while using a board to direct the flow of concrete from a chute. 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: Low back. 14. Nature and extent of any permanent disability: Total disability. 15. Compensation paid to-date for temporary disability: $\ 20,856.63. 16. Value necessary medical aid paid to date by employer/insurer? $\ 63,707.82. 17. Value necessary medical aid not furnished by employer/insurer? None. 18. Employee's average weekly wages: $\ 611.10. 19. Weekly compensation rate: $\$ 407.40 / \ 340.12. 20. Method wages computation: Stipulation.

1. Amount of compensation payable:

Weekly benefits of $\mathbf{\$ 4 0 7 . 4 0}$ for permanent total disability from and after June 3, 2004, for Claimant's life. 22. Second Injury Fund liability: None. 23. Future requirements awarded: Medical benefits as set forth herein.

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

Employee: Jimmie Davidson

Injury No: 03-145218

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Mihalevich Concrete Construction

Additional Party: Second Injury Fund

Insurer: Ace Fire Underwriters Insurance Company

Checked by: RJD/tmh

These cases, Injury Nos. 01-165367 and 03-145218, were consolidated for evidentiary hearing by order of the Division of Workers' Compensation. The evidentiary hearing was held in these cases on December 12, 2005, in Kirksville. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on January 18, 2006. The hearing was to determine the following issues:

1. (In both cases) the nature and extent of Claimant's permanent disability, if any;
2. (In both cases) the liability of Employer-Insurer, if any, for permanent partial disability benefits or permanent

total disability benefits;

1. (In both cases) the liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits; and
2. (In Injury No. 03-145218 only) whether Employer and Insurer shall be ordered to provide additional future medical benefits for Claimant, pursuant to Section 287.140.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over these cases;
2. That venue for both cases is proper in Adair County;
3. That the claim for compensation in each case was filed within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. (In Injury No. 01-165367) that the rates of compensation are $\$ 407.40 / \ 329.42, based on an average weekly wage of $\ 611.10;
6. (In Injury No. 03-145218) that the rates of compensation are $\$ 407.40 / \ 340.12, based on an average weekly wage of $\ 611.10;
7. (In Injury No. 01-165367) that Claimant sustained an accident arising out of and in the course of his employment with Mihalevich Concrete Construction on October 12, 2001;
8. (In Injury No. 03-145218) that Claimant sustained an accident arising out of and in the course of his employment with Mihalevich Concrete Construction on June 24, 2003;
9. That the notice requirement of Section 287.420 is not a bar to the claim for compensation in either case;
10. That Ace Fire Underwriters Insurance Co. fully insured the Missouri workers' compensation liability of Mihalevich Concrete Construction at all relevant times;
11. (In both cases combined) that Employer-Insurer paid $\ 63,707.82 in medical benefits;
12. (In Injury No. 01-165367) that Employer-Insurer paid 2 3/7 weeks of temporary total disability benefits, totaling $\ 989.40; and
13. (In Injury No. 03-145218) that Employer-Insurer paid 51 4/7 weeks of temporary total disability benefits, through June 2, 2004, totaling $\ 20,856.63.

The evidence consisted of the testimony of Claimant, Jimmie ("Pat") Davidson; the deposition testimony of Dr. Mark Lichtenfeld; the deposition testimony of Timothy G. Lalk, a vocational rehabilitation counselor; and medical records.

I find that Claimant, Jimmie ("Pat") Davidson was born March 11, 1955, and has an $11^{\text {th }}$ grade education. He does not have a GED, nor any other vocational training or further education. Claimant has not served in the military; Claimant testified that he tried to enlist in the Navy, but he was rejected. Claimant has been married for 31 years, and Claimant and his wife have three children.

Claimant's work history includes hauling hay, trimming trees, building pole barns, working as a handyman, working an assembly line, fork lift operator, and loading and delivering lumber. From 1982 to 1990, Claimant drove a concrete mixer.

Beginning in 1990, Claimant worked for Mihalevich Concrete Construction, Employer herein. Claimant's job title was "lead man". As lead man, Claimant was responsible for the crew's tools and equipment, and was responsible for setting up the concrete jobs. Claimant worked right along side the other crewmembers, shoveling concrete, using a jackhammer, bull float and finishing tools, and tearing out old driveways and floors.

As stipulated, I find that Claimant sustained work-related accidents with Employer and October 12, 2001, and on June 24, 2003, both accidents causing injury to Claimant's back. Prior to October 12, 2001, Claimant had experienced hearing problems, including problems interpreting speech when background noise is present. Claimant also testified that he experiences constant ringing in his ears. Claimant has never sought any diagnostic testing, care or treatment for the hearing problems. Claimant also testified regarding a loss of central vision in his left eye. There are no medical records regarding this problem prior to October 12, 2001. In the Fall of 2002, Claimant was referred by his family doctor to eye specialists in Columbia. Two laser treatments were performed which were unsuccessful. Claimant was then referred to Dr. Dean Hainsworth at University of Missouri, who performed surgery on Claimant's left eye on December 12, 2002. On a follow-up visit on February 24, 2003, Claimant was noted to have 20/30 vision in his left eye. This decreased to 20/50 on the August 4, 2003; visit, and to 20/60 on the February 4, 2004, visit. On the latter visit, Dr. Hainsworth noted that Claimant felt his left-eye visit had decreased, and has times where "he can't see anything at all".

In addition to the alleged hearing and vision problems, Claimant had back problems prior to October 12, 2001. In 1974, Claimant slipped while climbing on a machine and had one doctor visit. In 1991, Claimant had back pain while pouring a floor, and missed one or two days of work. In April 1995, Claimant twisted his back and had one or two doctors' visits. In August 1998, Claimant was seen at the Emergency Room for pain in the left lumbar area after hammering in a bent-over position; Claimant's pain got so bad he could not get up off the ground and had to be picked up into a vehicle and brought to the E.R. Claimant gave a history of a similar episode happening once before. In December 2000, Claimant was seen by his family doctor for back pain from a fall a week earlier, with some radiation of pain down his right leg. By December 26, 2000, Claimant was doing well and was released to full duty by Dr. Sparks. There is no record of back complaints between December 26, 2000, and October 12, 2001.

October 12, 2001 accident. On October 12, 2001, Claimant was working for Employer getting ready to pour curbs and gutters. He was bending over, nailing the forms with a hammer. While swinging the hammer, Claimant felt immediate pain in his back and both legs. Claimant "couldn't straighten out". The parties stipulated that Claimant sustained an accident arising out of and in the course of his employment with Mihalevich Concrete Construction on October 12, 2001. The following day, Claimant went to see a chiropractor, and on October 15, 2001, Claimant saw Dr. Sparks. An MRI done on 10/18/01 showed central disc herniations at L3-4, L405 and L5-S1, none of which were causing foraminal stenosis or canal stenosis. On 10/25/01, a lumbar epidural steroid injection was done for back and left leg pain. On 10/30/01, Dr. Sparks noted that "This gentleman had as much back pain as I have ever seen any one person have." Nevertheless, by 11/6/01, Dr. Sparks noted that Claimant was "doing well" and Dr. Sparks returned Claimant to full duty. On January 11, 2002, Claimant had CT-guided right sacroiliac joint injection. On 1/21/02, Dr. Sparks noted that Claimant "feels fine". On 2/4/02, Claimant returned to Dr. Sparks reporting no troubles and no pain. Claimant was to continue working at full duty. Claimant did not see a physician for his back between 2/4/02 and 6/24/03.

June 24, 2003 accident. On June 23, 2003, Employee slipped while getting out of Employer's truck. He fell, and his lower back started hurting. Claimant