David Davy v. Welded Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-109992

Employee: David Davy

Employer: Welded Construction (Settled)

Insurer: Hartford Fire Insurance Company (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge.

The administrative law judge heard this claim with the claim in Injury No. 07-132271. Employee filed an Application for Review identifying Injury Nos. 07-109992 and No. 07-132271. Although employee included this injury number on his Application for Review, we find no allegations of error related to this claim (Injury No. 07-109992). We have read the briefs, reviewed the evidence, and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge.

We approve and affirm 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.

The August 17, 2012, award and decision of Chief Administrative Law Judge Robert J. Dierkes, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of April 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007, unless otherwise indicated.

Employee: David Davy

Injury No. 07-109992

Dependents:

Before the

Employer: Welded Construction (settled)

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: Hartford Fire Insurance Company (settled)

Jefferson City, Missouri

Hearing Date: May 29, 2012

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: October 29, 2007
5. State location where accident occurred or occupational disease was contracted: Audrain 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 was driving a truck in the course of his employment and ran off the road into a ditch.
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, lumbar spine.
14. Nature and extent of any permanent disability: 12.5 % permanent partial disability of the body as a whole.
15. Compensation paid to-date for temporary disability: Unknown.
16. Value necessary medical aid paid to date by employer/insurer? Unknown.
17. Value necessary medical aid not furnished by employer/insurer? Unknown.

Employee: David Davy

1. Employee's average weekly wages: sufficient for maximum compensation rates
2. Weekly compensation rate: $\ 742.72 for temporary total disability and permanent total disability; $\ 389.04 for permanent partial disability.
3. Method wages computation: Stipulation

1. Second Injury Fund liability:

29 weeks of permanent partial disability benefits

$\ 11,282.16

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:

Jonathan McQuilkin

Employee: David Davy

Injury No: 07-109992

Checked by: RJD/ga

These cases (Injury No. 07-109992 and Injury No. 07-132271) were consolidated for hearing. The evidentiary hearing was held on May 29, 2012 in Columbia. The hearing was held to determine the liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits in each case. The employee is seeking permanent total disability benefits from the Second Injury Fund. The claim against Welded Construction ("Employer") in each case was settled by stipulation on February 15, 2012.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over each case;
2. That venue for the evidentiary hearing in each case is proper in Audrain County and adjoining counties, including Boone County;
3. That the claim for compensation in each was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant's average weekly wage was sufficient for the maximum compensation rates, and thus the compensation rate for temporary total disability benefits and permanent total disability benefits in each case is $\ 742.72, and the compensation rate for permanent partial disability benefits in each case is $\ 389.04;

1. That Claimant, David Davy, sustained an accident arising out of and in the course of his employment with Welded Construction on October 29, 2007; and
2. That Claimant, David Davy, sustained an accident arising out of and in the course of his employment with Welded Construction on November 3, 2007.

The evidence consisted of the testimony of Claimant, David Davy; medical records; the deposition testimony and medical report of Dr. P. Brent Koprivica; the deposition testimony and medical report of Dr. A. E. Daniel; and the deposition testimony and narrative report of James M. England, Jr., a vocational rehabilitation counselor.

Claimant, David Davy, was born on August 17, 1963. Claimant dropped out of school in the ninth grade. According to Claimant's testimony, he did receive a GED while in the military. Claimant testified that he entered the military at age 17, and received a less than honorable discharge in July 1982.

Claimant has apparently had psychiatric problems throughout his life, starting in childhood. Claimant was apparently physically and emotionally abused by his parents, and was apparently sexually abused by an older female cousin. Claimant has a history of multiple suicide attempts. Claimant has a long history of drug and alcohol abuse starting in his early teens. Claimant reports having auditory hallucinations since age 14, which have continued off and on throughout his life. Claimant has been treated for Major Depression with Psychotic Features throughout his life, including inpatient hospital stays.

Claimant began working for Welded Construction ("Employer") on May 29, 2007 and sustained the two work injuries with Employer on 10-29-07 and 11-3-07. There is no question that Claimant's psychiatric condition affected Claimant vocationally prior to May 2007, and thus I believe it is important to have an accurate vocational picture of Claimant prior to May 2007. In this regard, Claimant testified at the hearing as follows:

Q: Has it (psychological condition) ever prevented you from working in the past?

A: Yes, sir.

Q: Have you ever sought Social Security Disability as a result of your psychological issues before this?

A: Yes, sir I have.

Employee: David Davy

Injury No. 07-109992

Q: And you were actually approved and were on Social Security Disability?

A: Yes, sir.

Q: And you have been kind of off and on Social Security Disability throughout your adult life?

A: Yes, sir.

Q: Alright. About how many times?

A: Uh, every time I started to work, like four times, four different times. And then I'd go back on Social Security.

Q: Can you tell me when you first went on disability?

A: I think when I was 30 years old.

Q: And how old are you now, I should be able to do the math; how old are you?

A: Forty-eight.

Q: OK. And so then most recently before your employment with Welded, had you been on Social Security before that?

A: Yeah, yes sir.

Q: OK. And you actually had to go off of disability to do this work for Welded Construction?

A: Yes, sir.

Q: And what was it, your situation, or what was it that led you to do this return to work?

A: Encouragement from my brother, and trying to get me into the union, trying to make a better life for myself and for my family.

Q: Uh, and so it seems then kind of throughout your adult life you had kind of the experience where you would go and work with the truck driving, and work with the union, and then have an increase in your symptoms and you'd go on Social Security Disability?

A: Yes, sir.

Q: OK, and then you might then have, your symptoms would improve, and you would get out and attempt to work again?

A: Yes, sir.

Q: And are we talking, in regards to the prior work, before Welded, is that something where you'd be off for several months you'd be off disability or several years you'd be out working?

A: It'd be about a year or so, usually. And then I'd be back on disability, several years before I'd get back to work again.

Claimant was born in August 1963; if he first went on Social Security Disability at age 30, that would have been in 1993 or 1994. On September 25, 2003, Claimant's psychiatrist in Michigan, Dr. Gary Ralph, noted: "(h)e has now been approved for disabilities benefits apparently." Claimant told Dr. Koprivica that he was on Social Security Disability following a 1994 work-related injury to the right shoulder injury. Therefore, the way I understand Claimant's quoted testimony, from 1993 (or 1994) through 2007, Claimant would have been "on and off" Social Security Disability three or four times; he would be on disability for a few years, work for about a year, go back on disability for a few years, work for about a year, etc.

At the request of his attorney, Claimant saw Dr. P. Brent Koprivica for a medical evaluation on September 24, 2009. Dr. Koprivica authored a report of the same date, which is in evidence. That report contains an "Educational and Vocational History" which reads as follows:

Mr. Davy completed the ninth grade of formal education. He has a GED.

He told me that he attended Central Michigan Community College from the fall semester of 1998 through the fall semester of 1999. Overall, he believes he has twelve hours of college study. He does not have a degree.

Mr. Davy was trained as a mechanic in the United States Army. He served from September 3, 1980, through July 3, 1983. He denies having any military disabilities.

He worked at Kraft's Construction as a parts runner from August 1, 1979, to August 31, 19