Robert Davinroy v. Roadway Express, Inc.

Before the

Division of Workers' Compensation

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Roadway Express, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Old Republic Insurance Company

C/O Gallagher Bassett (Settled)

Hearing Dates: February 27, 2007 and March 27, 2007 Checked by: JKO

FINDINGS OF FACT AND RULINGS OF LAW

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: (allegedly) January 1, 2003
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? N/A
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? N/A
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was a dockworker for Employer who allegedly injured his right knee from the repetitive nature of his work.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: (allegedly) Right Knee
3. Nature and extent of any permanent disability: N/A
4. Compensation paid to-date for temporary disability: $\ 0.00
5. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Robert Davinroy Injury No.: 03-145855

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: N/A
4. Method wages computation: N/A

1. Amount of compensation payable:

Employer/Insurer previously settled their risk of liability in this case

1. Second Injury Fund liability:

None

$\ 0.00

Total:

$\ 0.00

1. Future requirements awarded: None

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: Cynthia M. Hennessey.

Employee: Robert Davinroy

Injury No.: 03-145855

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Before the

Division of Workers'

On February 27, 2007, the employee, Robert Davinroy (Claimant), appeared in person and by his attorney, Ms. Cynthia M. Hennessey, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Roadway Express, Inc. (Employer), and its insurer, Old Republic Insurance Company C/O Gallagher Bassett, were not present or represented at the hearing since they had previously settled their risk of liability in this Claim. The Second Injury Fund was represented at the hearing by Assistant Attorney General Da-Niel Cunningham.

Along with this Claim [Injury Number 03-145855, with a date of injury of January 1, 2003, alleging injury to the right knee], Claimant also tried his three other open companion Claims at the same time. Injury Number 01-152727, with a date of injury of December 26, 2001, alleges injury to the neck, right arm and body as a whole. Injury Number 02-158714, with a date of injury of December 31, 2002, alleges injury to the low back. Injury Number 03-147336, with a date of injury of January 2, 2003, alleges injury to the left knee. Separate awards have been issued for each of those other cases.

On the original hearing date, there were some evidentiary issues raised regarding some of the Exhibits, and Claimant was given up to 30 days to submit certified records for the disputed Exhibits. Claimant subsequently submitted the certified records, which were admitted into evidence on March 27, 2007. The record in this matter then closed as of the submission of those Exhibits on March 27, 2007. 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) Venue is proper in the City of St. Louis. 2) Employer received proper notice.

1) Did Claimant sustain an accident or occupational disease? 2) Did the accident or occupational disease arise out of and in the course of employment? 3) Are Claimant's injuries and continuing complaints medically causally connected to his alleged injury and/or exposure at work leading up to January 1, 2003? 4) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury? 5) What is the liability of the Second Injury Fund? 6) Was the Claim filed within the time prescribed by the law (within the statute of limitations)? 7) What is the appropriate rate of compensation for payment of benefits in this case?

8) Was Claimant an employee of Employer under the statute?

The following exhibits were admitted into evidence:

A) Medical reports of Dr. David Volarich dated August 3, 2004 and April 14, 2005

B) Vocational assessment report of Mr. James England dated April 4, 2005

C) Certified medical treatment records of Dr. Randall Roush at Northland Mid America Orthopedics

D) Certified medical treatment records of Dr. Jacques VanRyn and Dr. William Schroer at Premier Care Orthopedics

E) Certified medical treatment records of Dr. T.Z. Chen

F) Certified medical treatment records of Christian Hospital Northeast-Northwest

G) Certified medical treatment records of Dr. Terrell Mulford at Mercy Medical Group-North County Office

H) Certified medical treatment records of Dr. David Kennedy

I) Certified medical treatment records of St. Louis Cardiology Consultants, LTD.

J) Certified medical treatment records of Christian Hospital Northeast-Northwest

K) Certified medical treatment records of Sears Optical

L) Settlement stipulations resolving cases between Claimant and Employer in Injury Numbers 01-152727, 02-158714, 03-145855, and 03-147336

M) Deposition of Dr. David Volarich, with attachments, dated August 11, 2005

N) Deposition of Mr. James England, with attachments, dated August 11, 2005

O) Claim for Compensation for Injury Number 01-152727

P) Claim for Compensation for Injury Number 02-158714

Q) Claim for Compensation for Injury Number 03-145855

as a dockworker from 1988 until November 1, 2003, when he took early retirement. He confirmed that during his employment there, he was a regular full-time employee, not an independent contractor. He worked for no one else during this period of time. He estimated that including overtime, he made approximately $\ 1,000.00 per week. He sometimes worked 7 days a week, for 8 to 10 hours per day. In that position, he was responsible for loading and unloading trucks, driving a forklift, and lifting and stocking freight. His job required walking, bending, stooping, climbing, and sitting (while operating the forklift). Most of the time he was on his feet.

2) Claimant testified that he graduated from high school in 1964 and took two years of classes at SIUEdwardsville. He did not obtain a degree. He testified he has never done any management or supervisory work. He has not worked behind a desk or as a clerk, and he has not done paperwork. He said he is computer illiterate