Tommy Patrick v. Derek Mulvaney / Jerry Dierker Construction / City of Monett

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 16-056896

**Employee:** Tommy Patrick

**Employer/Insurer:** Derek Mulvaney/Uninsured

Jerry Dierker Construction

Missouri Employers Mutual Insurance Company

City of Monett

Missouri Rural Services Workers' Compensation Insurance Trust

**Health Care Provider:** Ozark Anesthesia Association (MFD 1602061)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 19, 2020. The award and decision of Administrative Law Victoriac R. Mahon, issued February 19, 2020, 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 3rd day of December 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**Attest:**

Shalonn K. Curls, Member

**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: March 17, 2016.
5. State location where accident occurred or occupational disease was contracted: Monett, Lawrence County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes as to Mulvaney Construction and as a statutory employee of the City of Monett.
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? Derek Mulvaney had no insurance. All other alleged employers had insurance.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was injured while using a saw to cut a piece of wood in the course and scope of his employment.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.
13. Part(s) of body injured by accident or occupational disease: Left hand.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Tommy Patrick

1. Nature and extent of any permanent disability: 25 percent of the left hand and 6 weeks disfigurement.
2. Compensation paid to-date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer? None.
4. Value necessary medical aid not furnished by employer/insurer? $\ 42,007.13.
5. Employee's average weekly wages: $\ 1,114.00.
6. Weekly compensation rate: $\ 464.58 for permanent partial disability.
7. Method wages computation: By agreement.

1. Amount of compensation payable:

For unpaid medical expenses:

$\ 42,007.13

For disfigurement:

(6 weeks $\times \$ 464.58)=

\ 2,787.48

For permanent partial disability:

43.75 weeks $\times \$ 464.58=

\ 20,325.38

(25 percent of the hand at the 175 -week level $=43.75 weeks)

TOTAL: \quad \ 65,119.99

1. Second Injury Fund liability: Not applicable.
2. Future requirements awarded:

Claimant shall receive future medical care to cure and relieve the effects of the work injury as discussed in the award.

The Direct Pay Medical Fee Dispute filed on behalf of Ozark Anesthesia in the amount of $\ 1,128.00 is hereby resolved in favor of the health care provider. From the $\ 42,007.13 in past medical bills, Ozark Anesthesia shall be paid $\ 1,128.00.

Derek Mulvaney is primarily liable. The City of Monett is secondarily liable and may proceed against Derek Mulvaney for reimbursement. Jerry Dierker and Jerry Dierker Construction are found not liable.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: The Newman Law Firm, LLC.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Tommy Patrick

**Employee:** Tommy Patrick

**Dependents:** Not applicable

**Employer:** Derek Mulvaney, Jerry Dierker Construction, City of Monett, Missouri

**Additional Party:** Not applicable

**Insurer:** Missouri Employers Mutual (Dierker Construction), Missouri Rural Services Workers' Compensation (City of Monett)

**MFD:** 1602061

**Hearing Date:** December 2, 2019

**Injury No. 16-056896**

**Before the DIVISION OF WORKERS' COMPENSATION**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Address:** 1602061

**Address:** 1602061

**Checked by:** VRM/ps

The undersigned Administrative Law Judge convened the Final Hearing in the above referenced case which concerns a work injury sustained on March 17, 2106. Tommy Patrick appeared in person and with his attorney, John Newman. No one appeared on behalf of the alleged employer Derek Mulvaney. There is no evidence of any insurance for Derek Mulvaney or his construction company. Attorney Ron Sparlin represented Dierker Construction and its insurer. Attorney Clinton Collier represented the City of Monett and its insurer. The Second Injury Fund is not a party to this claim. Counsel for the healthcare provider, which filed a direct pay medical fee dispute, advised the ALJ that it was unable to appear. The parties present at the hearing stipulated to the following:

1. On March 17, 2016, Claimant Tommy Patrick suffered an accidental injury which arose out of and in the course of his employment, and is medically and causally related to the work.

1. Claimant and alleged employers, Dierker Construction and the City of Monett, were protected by and subject to the Missouri Workers' Compensation Law.

1. On March 17, 2016, alleged employer Dierker Construction was fully insured by Missouri Employers Mutual Insurance Company and alleged employer City of Monett was fully insured by Missouri Rural Services Workers' Compensation. Alleged employer Derek Mulvaney was not insured on March 17, 2016.

1. Claimant's average weekly wage was 1,114.00, which is sufficient to yield a permanent partial disability rate of 464.58.

1. Claimant received no monies for medical treatment from any of the alleged employers or workers' compensation insurers.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Tommy Patrick

Injury No. 16-056896

1. Claimant received no temporary total or temporary partial benefits.

1. The injury occurred in Monett, Lawrence County, Missouri. Venue was agreed upon and jurisdiction is appropriate in Springfield, Greene County, Missouri.

1. Claimant gave timely notice of his injury and the claim was filed within the statute of limitations.

1. Claimant's average weekly was sufficient to yield the maximum permanent partial disability rate of $464.58.

1. There is no Second Injury Fund claim alleged.

ISSUES

1. Who was an employer of Claimant at the time of his injury on March 17, 2016?

1. What is the nature and extent of any permanent disability to which Claimant is entitled?

1. What is the amount of disfigurement?

1. Is Claimant entitled to reimbursement for his past medical expenses in the amount of 42,007.13?

1. Is Ozark Anesthesia Association entitled to payment of 1,128.00 as a result of its direct pay medical fee dispute?

1. May employers, Dierker Construction and/or the City of Monett, proceed against Derek Mulvaney if it is determined that either Dierker Construction and/or the City of Monett is responsible to Claimant as a result of Derek Mulvaney not having workers' compensation insurance?

1. Is Claimant entitled to future medical treatment as a result of his injuries?

1. Counsel for employee seeks an attorney fee of 25 percent.

EXHIBITS

The following exhibits were offered and received into evidence without objection:

Claimant's Exhibits

1. Medical Records

A. Barry Lawrence Ambulance

B. Cox Hospital

C. Ferrell Duncan Clinic

D. Cox Rehabilitation

1. Deposition of Dr. David Volarich (includes CV, report and medical expenses)

1. Deposition of Tommy Patrick dated December 1, 2016 (includes Notice)

1. Deposition of Derek Mulvaney dated August 22, 2017 (includes Subpoena and Invoice)

1. Amended claim stamped filed August 16, 2016.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Tommy Patrick

Injury No. 16-056896

A. Answer to Amended Claim

A. Report of Dr. Ted Lennard.

B. City Minutes of July 2015.

C. Invoice from Derek Mulvaney.

D. Answer to Amended Claim.

1. Application for Direct Payment - Ozark Anesthesia Associates

Neither Derek Mulvaney nor Mulvaney Construction appeared at the hearing or offered any exhibits.

Claimant was born on August 11, 1965. He is 54 years old. He has worked in construction most of his entire adult life. He was injured on March 17, 2016, while performing construction work at the City of Monett's City Hall building.

The City of Monett needed to renovate a part of its City Hall, including office space for the city collector. Because the bids for the project were higher than anticipated, the City Council voted to manage the construction project on their own to save money. The City Council assigned one of the council members, Jerry Dierker, the task of coordinating the renovation project, as he had construction experience. City workers could perform some of the tasks. Dierker, on behalf of the City, engaged subcontractors to perform other aspects of the renovation project. One of those subcontractors was Derek Mulvaney who operated under the name of Mulvaney Construction. Dierker admits he failed to verify on this occasion whether Mulvaney had workers' compensation insurance for the job at Monett City Hall, relying instead on past experience when Mulvaney had obtained the necessary insurance. Dierker's construction company also performed some of the work on the City Hall, but Dierker Construction was not engaged as a general contractor.

Claimant had worked with Derek Mulvaney about a year when the Monett City Hall renovation project began. Claimant credibly said Mulvaney had at times arranged for transportation. Mulvaney provided the tools, and told Claimant where to work and what work to perform. Claimant had performed a variety of jobs for Mulvaney including roofing, framing and metal work. There is no evidence that Claimant had any particular or unique skill. Mulvaney paid Claimant by the hour, not by the job. When Mulvaney turned in his bills for the work performed on the City Hall renovation project, it included the work performed by Claimant. In 2017, when Mulvaney sent Claimant to work on the City Hall project, Claimant understood he was to prep walls for the hanging of sheet