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.
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, 1980, prior to going into the Army.
After his military service, he began working as a construction laborer out of Laborer's Union Local \#1098 in Saginaw, Michigan. He did this work from August of 1983 through May 30, 1988. He denies having any permanent injuries, while working as a construction laborer.
He then worked at a Cummins International Dealership as a diesel mechanic. He worked there from September 1, 1988, through June 30, 1989, without permanent injuries.
Mr. Davy next worked at S\&D Tree Farm. He was actually self-employed owning the tree farm. He produced Christmas trees.
He did that from July 1, 1989, through April 1, 1993, without permanent work-related injuries.
He then worked at Packaging Resources. He was employed there from May 1, 1993, to August 15, 1995. He was a grinder. This was a plastic manufacturer.
He had a work injury in 1994.
My understanding is that he had an 800-pound dust bag fall and injured his right shoulder.
He was treated with subacromial steroid injections. This treatment was by Dr. Montez.
He did not have any surgery.
He received a $\ 27,000.00 settlement.
He then went to work at Tony's Heating and Cooling, which was owned by his brother. He worked there from September 1, 1995, through October 1, 2002. He was an installer during this employment. He had no permanent work injuries during this employment. Mr. Davy then worked at MCT Trucking from December 2002 to 2005 without any permanent work-related injuries.
He had a motor vehicle accident in 2002 when he was driving a half-ton pickup. An ongoing vehicle struck a deer that resulted in contact with Mr. Davy's vehicle on the driver's side.
He began at Welded Construction in May of 2007.
Associated with the initial work injury accident of October 29, 2007, Mr. Davy had no lost time.
He was temporarily totally disabled from November 3, 2007, through November 7, 2007.
I would point out that Mr. Davy was previously on Social Security disability. This followed the 1994 work injury.
He has worked subsequent to the primary work injury claims. My understanding is that he worked at Precision Pipeline Motor Company in New York as a mechanic. He worked there from April of 2008 to August 16, 2008.
He was having to take Vicodin during this time period in order to sustain employment.
He was then laid off.
Subsequent to being laid off, he went back on Social Security disability, which he received previously.
In addition to his 1994 shoulder injury, Claimant also had neck and back problems prior to 2007. On November 4, 2002, Claimant was seen at Michigan Spine and Pain Clinic for "pain in lower back into left leg". Claimant attributed the onset to a work injury in California on September 27, 2002. Claimant also stated on the intake form: "Had similar injury about 5-6 years ago." On November 25, 2002, Claimant was complaining of neck and back pain, with tingling and numbness in his left leg with pain of " $8 / 10$ ". On December 6, 2002, Claimant complained of increased neck and back pain with tingling and numbness of left lower extremity. His pain was " $9 / 10$ ". Claimant was seen by Michigan Spine and Pain Clinic on 1/21/03, 2/19/03, 2/27/03, 3/10/03, 4/7/03, 5/5/03, 5/12/03, 5/27/03, and 8/4/03, all with complaints of neck, back and left lower extremity pain. On July 3, 2006, Claimant was again seen by Michigan Spine and Pain Clinic. Claimant stated he had moved to Arizona and was being treated for his neck, back and left lower extremity pain in Arizona. Claimant reported he had received a series of three epidural steroid injections in both his neck and back within the previous six months.
On August 9, 2006, Claimant was seen at Community Mental Health for Central Michigan. It was noted that Claimant had recently moved back to Michigan from Arizona and
was on Social Security Disability. On that date, he denied any illegal drug use. On November 8, 2006, Claimant tested positive for cocaine. On a December 13, 2006 visit to Community Mental Health for Central Michigan, it was noted that Claimant had recently tested positive for cocaine, Opioids and marijuana.
In May 2007, Claimant moved to central Missouri to work for Welded Construction. As stipulated, Claimant sustained two work injuries while working with Welded Construction, both occurring in Audrain County, Missouri, and both being motor vehicle accidents. Claimant complained of neck and back pain after these accidents. He was diagnosed with a L5-S1 disk herniation and received an epidural steroid injection. On April 18, 2008, Claimant was seen by Dr. Joel T. Jeffries, an orthopedic surgeon. Claimant advised Dr. Jeffries that he was scheduled to go to New York and return to work. Dr. Jeffries' note reads: "I think it is reasonable that the patient return to work without restriction. I have cautioned him not to needless (sic) expose himself to trauma with regard to the cervical spine."
Claimant testified that he did begin work in New York in May 2008 (according to Dr. Koprivica's history, Claimant began work in New York in April 2008; if Dr. Koprivica's history is correct, it would have been after the April 18, 2008 appointment with Dr. Jeffries), performing service and maintenance on trucks and heavy equipment. Claimant testified that he was paid $\ 42.00 per hour and worked up to 100 hours per week. Claimant testified that his neck and back hurt and he sought medical treatment while working in New York. Claimant testified that his last date of work in New York was August 16, 2008; he testified that he "quit" because he "just couldn't work anymore." (Per Dr. Koprivica's history, Claimant was "laid off".) Claimant is now back on Social Security Disability.
Claimant alleges that he is permanently and totally disabled, and is seeking permanent total disability benefits from the Second Injury Fund.
Under section 287.020.7, "total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Fletcher v. Second Injury Fund, 922 S.W.2d 402, 404 (Mo.App. W.D.1996). The test for permanent and total disability is whether a claimant is able to competently compete in the open labor market given his or her condition and situation. Messex v. Sachs Elec. Co., 989 S.W.2d 206, 210 (Mo.App. E.D.1999). When the claimant is disabled by a combination of the work-related event and pre-existing disabilities the responsibility for benefits lies with the Second Injury Fund. Section 287.220.1 RSMo. If the last injury in and of itself renders a claimant permanently and totally disabled the Second Injury Fund has no liability and the employer is responsible for the entire compensation. Nance v. Treasurer of Missouri, 85 S.W.3d 767 (Mo.App. W.D. 2003).
As noted above, Dr. P. Brent Koprivica evaluated Claimant on September 24, 2009, authored a report of the same date, and testified by deposition taken November 10, 2011. In analyzing these cases, Dr. Koprivica treated the 10-29-07 and 11-3-07 motor vehicle accidents as a single accident and injury. Dr. Koprivica opined that Claimant sustained a permanent partial disability of 25 % of the body as a whole ( 15 % low back and 10 % neck). Dr. Koprivica opined that Claimant had preexisting disability of 15 % of the body as a whole attributable to the low back and an additional 15 % of the body as a whole attributable to the neck. (Dr. Koprivica did not discuss any disability attributable to Claimant's 1994 right shoulder injury.) Dr. Koprivica further opined that Claimant had preexisting disability due to psychiatric problems, which he did not rate. Dr. Koprivica opined that Claimant was permanently and totally disabled as a result of the 10-29-07 and 11-3-07 motor vehicle accidents in combination with the preexisting back, neck and psychiatric disabilities. Dr. Koprivica deferred to a psychiatrist on the issue of Claimant's psychiatric disability, and he also felt that Claimant needed to be evaluated by a vocational expert on the issue of permanent total disability. Regarding Claimant's work in New York in 2008, Dr. Koprivica's report states:
He has worked subsequent to the primary work injury claims. My understanding is that he worked at Precision Pipeline Motor Company in New York as a mechanic. He worked there from April of 2008 to August 16, 2008. He was having to take Vicodin during this time period in order to sustain employment. He was then laid off.
Dr. A. E. Daniel, a Columbia psychiatrist, evaluated Claimant in January and February of 2011 at the request of Claimant's attorney. Dr. Daniel's report of March 8, 2011 was in evidence, as was his deposition testimony taken on October 7, 2011. Dr. Daniel testified that Claimant had significant psychiatric disability prior to the work accidents of 10-29-07 and 11-307, which he estimated to be 45 % permanent partial disability of the body as a whole. Dr. Daniel opined that Claimant was permanently and totally disabled as a result of the 10-29-07 and 11-307 motor vehicle accidents in combination with the preexisting psychiatric disability. I note Dr. Daniel's only mention of Claimant's work in New York in 2008 is as follows:
He started physical therapy, began feeling better, and subsequently saw Joel Jeffries, M.D., an orthopedist who allowed him to return to work in New York for his brother which lasted approximately three months. As he was taking Vicodin, he could not drive; therefore he left the job.
At the request of his attorney, Claimant was evaluated by James M. England, Jr., a licensed rehabilitation counselor, on February 18, 2010. England's report of February 24, 2010 was in evidence, as was his deposition testimony taken on November 30, 2011. England opined that Claimant was permanently and totally disabled as a result of the 10-29-07 and 11-3-07 motor vehicle accidents in combination with his preexisting disabilities. I note that, in Mr. England's eighteen-page, single-spaced report, the only mentions of Claimant's work in New York in 2008
are as follows: "He returned to work in April 2008 and continued doing this until his pain level became such that he had to stop work in August of 2008. ... He did keep track of the inventory of his supplies when he tried to return to work with a pipeline as a mechanic from around April through August of 2008."
During Mr. England's direct examination, there was no testimony elicited regarding Claimant's work in New York in 2008. On cross-examination, Mr. England testified as follows:
Q. You had the opportunity to review Dr. Koprivica's report in preparing your own report, correct?
A. Yes.
Q. In Dr. Koprivica's report he notes that Mr. Davy was subsequently employed after his work injury in New York, correct?
A. Right. He did try to work for a few months, that's correct.
Q. Do you know what kind of work he was performing?
A. I think the records indicated that -- well, no, it really doesn't say. Hold on just a second and let me just see if I have anything in the rest of my records that show. It looks like --I'm trying to read my own notes.
It looks like he tried to work on some equipment and trucks that were used on pipelines or on a pipeline in New York and said that he had to stop because of the pain level. He had also tried driving a truck briefly and he said he had to stop that because he couldn't handle the pain from doing the clutch.
Q. Do you know how long he was employed as a truck driver after his work injuries?
A. I've just got May of '08 and that he tried the other job around August of '08 with the pipeline, but that's as detailed as he was able to give me.
Q. Referring to Dr. Koprivica's report, he notes that Mr. Davy was laid off from the position with the pipeline company. Did Mr. Davy make that indication to you, or did he tell you he was unable to perform that job?
A. He told me that he had to stop because of the pain level.
Q. Did you ask any questions regarding whether he had been laid off at the pipeline company?
A. No, that's what I said. When I asked him what he had done and he said that he was doing it and that -- the notes I've got just said he had to stop because of pain.
Q. What level of difficult exertion was required in this position as a mechanic at the pipeline company in New York?
A. I really don't know specifically. I would say generally in that kind of work you're probably looking at medium to heavy work activity.
Q. Do you know what kind of physical motions or movements he would have made on a daily basis on that job?
A. Not really. Obviously if it was similar to what he did with Weldon Construction Company, which there he was doing mechanical work for another pipeline company that involved, you know, a pretty wide variety of bending, kneeling, squatting, climbing, all kinds of activities like that.
Q. Do you know again when he was employed with the pipeline company in New York, do you know what the heaviest amount of weight he was required to lift on a daily basis?
A. No.
Q. Again when he was working for the pipeline company, do you know if he had to miss any time because of any physical or mental symptoms?
A. I don't know specifically. I just know that he said that he had to stop after a short period.
I understand that Claimant has had an extremely difficult life. I understand that he has some significant psychiatric problems. However, I am compelled to find that Claimant is not permanently and totally disabled. On April 18, 2008, Dr. Jeffries, Claimant's treating doctor, allowed Claimant to return to work without restrictions. Claimant went to work in New York as a maintenance mechanic on trucks and heavy equipment. This would have been a very physically demanding job at 35-40 hours a week; Claimant was working up to 100 hours per week for (at least) $31 / 2 months. Claimant was paid \ 42.00 per hour with time and a half for everything over 40 hours a week. This was no entry-level job; this was an excellent-paying, highly-coveted job. Claimant secured that job, and he did the work for at least three and a half
months at up to 100 hours per week. There is no indication that Claimant was fired from this job. Claimant insists that he voluntarily quit because he hurt too much to continue to do the work; Claimant testified that Dr. Koprivica's assertion that he was "laid off" was incorrect, and that he could have continued to work until the project ended in early 2009. The fact that Claimant was NOT fired from the job, and that he could have continued to work until the project ended means that Claimant's employer was satisfied with the work he was doing. In other words, Claimant was able to compete for, and secure, an excellent-paying, highly-coveted job, and was able to perform the work to his employer's satisfaction. If this is not prima facie evidence of Claimant's to compete in the open labor market, what is? And, if indeed, Claimant is being truthful about why he left the New York employment, how does physical inability to sustain heavy employment for up to 100 hours a week translate into physical inability to sustain any employment for 40 hours per week?
In finding that Claimant is not permanently and totally disabled, I note that Dr. Daniel is a psychiatrist and not a vocational rehabilitation expert. Dr. Daniel's opinion that Claimant is permanently and totally disabled is instructive, but nevertheless is totally outside of Dr. Daniel's area of expertise. The same can be said for Dr. Koprivica; he is an expert on medical issues, but not on vocational issues. I also note that Dr. Daniel obviously knew next to nothing about Claimant's work in New York, and that Dr. Koprivica did not know much more. They did not know that Claimant was making $\ 42.00 per hour with time and a half for everything over 40 hours a week. They did not know that Claimant was working up to 100 hours a week.
Mr. England is an excellent expert on vocational issues, whose opinion is usually of significant value to the administrative law judge. However, his lack of curiosity regarding the nature of Claimant's 2008 work in New York is disappointing. Mr. England's ultimate conclusions in this case were made without the benefit of all the material facts, and thus have no real probative value. I find it extremely difficult to believe that Mr. England would have dismissed Claimant's work in New York as merely "a failed attempt at return to work" had he been made aware that Claimant was working in a job that paid $\ 42.00 per hour with time and a half after 40 hours, and had worked at that job to his employer's satisfaction for up to 100 hours per week for more than $31 / 2$ months.
In determining whether Claimant's 2008 work in New York was, in fact, definitive proof of Claimant's ability to compete in the open market for employment or was a failed attempt at return to work, I believe Claimant's work in 2007 and 2008 must be examined in light of Claimant's clearly-established pattern of "disability/work/disability/work/disability." Claimant began working for Welded Construction in Missouri on May 29, 2007; he worked 80-100 hour weeks continuously until at least November 3, 2007. Welded Construction and its insurer paid Claimant temporary total disability benefits until Claimant began working in New York in late
April or early May of 2008. ${ }^{1}$ Claimant then worked up to 100 hours per week in New York until August 16, 2008, and then went back on Social Security Disability. This fits in precisely with Claimant's previously-established pattern of "working for about a year and then going on Social Security disability for a few years". Even if Claimant is being truthful about why he left his job in New York, how is that any different than his separation from his previous employments? The pattern has stayed the same. There is little doubt in my mind that Claimant will soon be making his next sojourn into employment (if he has not already done so).
Therefore, Claimant's claim for permanent total disability benefits against the Second Injury Fund must be denied.
I must also consider the possibility that Claimant may be entitled to permanent partial disability benefits from the Second Injury Fund. Dr. Daniel clearly did not analyze this case as a potential case of permanent partial disability. I believe Dr. Koprivica's analysis could be considered as a basis for an award of permanent partial disability benefits against the Second Injury Fund. Claimant settled Injury No. 07-109992 with Employer for 12.5\% permanent partial disability of the body as a whole/low back (which meets the statutory threshold for a potential award). Claimant settled Injury No. 07-132271 for $\ 1000.00 and Employer's agreement to waive any subrogation right against Claimant's third-party liability claim arising out of the November 3, 2007 automobile accident; this simply does not meet the statutory threshold requirements for a potential award of permanent partial disability benefits.
I believe Claimant is entitled to permanent partial disability benefits in Injury No. 07109992. I find that Claimant sustained a compensable last injury on October 29, 2007, which resulted in permanent partial disability of 12.5 % of the body as a whole, rated at the low back, and that such disability constituted a hindrance or obstacle to Claimant's employment or reemployment. I find that as of the time the last injury was sustained, Claimant had a preexisting permanent partial disability of the body as a whole, rated at the low back, which meets the statutory threshold and is of such seriousness as to constitute a hindrance or obstacle to employment or reemployment, being 15 % of the body as a whole ( 60 weeks). I also find that as of the time the last injury was sustained, Claimant had a preexisting permanent partial disability of the body as a whole, due to mental and psychiatric illness, which meets the statutory threshold and is of such seriousness as to constitute a hindrance or obstacle to employment or reemployment, being 35 % of the body as a whole ( 140 weeks). I also find that as of the time the last injury was sustained, Claimant had a preexisting permanent partial disability of the body as a whole, rated at the neck, being an additional 10 % of the body as a whole ( 40 weeks). The evidence establishes that the last injury, combined with the pre-existing permanent partial
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[^0]: ${ }^{1}$ The settlement stipulation between Claimant and Welded Construction states that Claimant was paid 23 weeks of temporary total disability benefits. Assuming that Claimant did not work for Welded at all after November 3, 2007, this would have paid Claimant through April 19, 2008. There is no evidence that Claimant was receiving Social Security Disability benefits at anytime between November 3, 2007 and the start of his employment in New York.
disabilities, causes greater overall disability than the independent sum of the disabilities. I find that a loading factor of 10 % is appropriate to compensation, Claimant for the greater overall disability. The Second Injury Fund liability is thus calculated as follows: 50 weeks for the last injury +240 weeks for preexisting disability $=290$ weeks X 10 % load $=29 weeks. 29 weeks times \ 389.04 equals $\ 11,282.16.