William Tordt v. Don Wessel Oldsmobile Honda, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-003246

Employee: William Tordt

Employer: Don Wessel Oldsmobile Honda, Inc.

Insurer: Missouri Automobile Dealers Association

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

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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated February 7, 2012. The award and decision of Administrative Law Judge Victorine R. Mahon, issued February 7, 2012, 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 $\qquad 25^{\text {th }} \qquad$ day of July 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, Member

Attest:

Employee: William Tordt

Injury No. 08-003246

Dependents: N/A

Employer: Don Wessel Oldsmobile Honda, Inc.

Additional Party: Treasurer of the State of Missouri as custodian of The Second Injury Fund

Insurer: Missouri Automobile Dealers Association

Hearing Date: December 15, 2011

Checked by: VRM/db

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: January 22, 2008.
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri.
6. Was above employee in employ of above employer at the 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: Claimant was in the sales lot and fell on ice.
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: Left leg.
14. Nature and extent of any permanent disability: Permanent Total Disability.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Tordt

1. Compensation paid to-date for temporary disability: $\ 12,953.02.
2. Value necessary medical aid paid to date by employer/insurer? $\ 74,217.76.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Employee's average weekly wage: $\ 708.81.
5. Weekly compensation rate: $\$ 472.56 / \ 389.04.
6. Method of wage computation: By agreement.

1. Amount of compensation payable:

Employer and Insurer are liable for Permanent Total Disability.

TOTAL: SEE BELOW.

1. Second Injury Fund liability: None.
2. Future Requirements of the Award:

Beginning August 1, 2009, and continuing and for the remainder of Claimant's lifetime, Employer and Insurer shall pay permanent total disability in the benefit amount of $\ 472.56 each week. This Award is subject to review and modification as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent of all payments to Claimant in favor of the following attorney for necessary legal services rendered to Claimant: E. Joseph Hosmer.

Employee: William Tordt

Injury No. 08-003246

Dependents: N/A

Employer: Don Wessel Oldsmobile Honda, Inc.

Additional Party: Treasurer of the State of Missouri as custodian of The Second Injury Fund

Insurer: Missouri Automobile Dealers Association

Hearing Date: December 15, 2011

Checked by: VRM/db

The parties appeared for final hearing before the undersigned Administrative Law Judge on December 15, 2011. Claimant William Tordt appeared in person and with his attorney, E. Joseph Hosmer. Don Wessel Oldsmobile Honda, Inc. (Employer), and Missouri Automobile Dealers Association (Insurer), appeared by William Belden. Assistant Attorney General Susan Colburn represented the Treasurer of the State of Missouri as custodian of the Second Injury Fund. The parties agreed to the following facts:

On January 22, 2008, Claimant sustained an injury by accident in Greene County, Missouri, which arose out of and within the course of his employment with Employer. The hearing is being conducted in the proper venue. Jurisdiction is not challenged. On the date of the injury, Don Wessel Oldsmobile Honda, Inc., was an employer subject to, and Claimant was covered by, the Missouri Workers' Compensation Law. Employer was fully insured with Missouri Automobile Dealers Association. Notice was proper and the claim was filed timely. Employer/Insurer paid \$74,217.76 in medical bills. The parties agree to leave open the issue of future medical. Employer/Insurer paid \5,198.16 in temporary total disability and \ 7,754.86 in temporary partial disability. Claimant's average weekly wage was $\ 708.81. The permanent partial disability is $\ 389.04, and the permanent total disability rate of $\ 472.56.

The parties agree that the sole issues to be resolved are:

1. What is the nature and extent of Claimant's disability?
2. What is the liability of Employer/Insurer and the Second Injury Fund for Claimant's disability?

Claimant offered the following exhibits, which were admitted:

A. Deposition of Dr. Koprivica with Volumes I and II of medical records

B. Diagram

C. Curriculum Vitae - Wilbur Swearingin

D. Vocational Report - Wilbur Swearingin

Employer/Insurer offered the following exhibits:

1. Wage Statement Form (withdrawn)
2. TTD/TPD Payment Records (withdrawn)
3. Reports of Dr. Hartman (admitted)
4. Deposition - Dr. Caffrey, with report (admitted)

Claimant was born May 31, 1939. He graduated from North Phoenix High School in 1956. He then enlisted in the United States Army. He spent the next 21 years in the armed forces. His assigned duties included security, signal corps, motor pool, missile ordnance, and finally, recruiting. After leaving the Army in 1977, he worked seven years as a licensed broker. From 1984 to 1985, he worked in automotive sales for Vincel Buick. Claimant worked approximately one year at Associate Financial, which was a personal loan company. He then worked for a trucking company as an account manager, and in sales from 1986 until March 1991. He returned to Vincel Buick in automotive sales from March 1991 until March 1992. He started employment with Don Wessel Olds-Honda, Inc., his last employer, in March 1992.

On January 22, 2008, Claimant was performing an inventory check on a used car. As he opened the trunk he slipped on ice and fell to the pavement. He testified he hit his back side and may have lost consciousness for a few minutes. He attempted to get up, but could not use his left side and could not get off of the ground. He used his cell phone to call several numbers. He was able to reach another car salesman. He was taken by ambulance to Cox South Emergency Room.

The day following the work injury, Dr. Michael Hartman, an orthopedic surgeon, diagnosed Claimant with left intertrochanteric femur fracture with subtrochanteric fracture. Dr. Hartman performed cephalomedullary nailing, left femur with Stryker long gamma nail. Claimant described the procedure as a rod inserted in his femur from the top all the way down to his left knee with a bolt in the top part of the rod and screws in the lower part of the rod in his knee.

Following the surgery, Claimant was moved to Cox Walnut Lawn, where he remained for rehabilitation until February 14, 2008. He thereafter continued to receive in-home rehabilitation care.

On February 19, 2008, approximately five days returning home, Claimant fell while using his walker. Claimant fell backwards and fractured the interlocking screws in his knee. On February 21, 2008, Dr. Hartman performed another surgery to remove and replace the two screws in his knee. Dr. Hartman's diagnosis was left intertrochanteric femur fracture, subtrochanteric femur fracture, and distal femur fracture. In an April 8, 2008 office note, Dr. Hartman states:

Plain x-rays of the left hip demonstrated gamma nail fixation. The fracture along the medial calcar does show evidence of healing. The long spike in the subtrochanteric region does not show any evidence of healing at this time. The distal femur fracture has remained in position but does not show any signs of any healing at this point.

Upon Claimant's request, Dr. Hartman released Claimant to work effective April 8, 2008, but with the restriction of part-time, light-duty, desk-type work.

Claimant returned to work in late April or early May. He worked Monday, Wednesday and Friday, four hours each day, while in a wheelchair. His employer paid him $\ 7.50 per hour, along with temporary partial disability. In June 2008, Claimant no longer needed the wheelchair at work and began to use a walker. In June 2008, Claimant's hours were increased to eight hours per day on Monday, Wednesday and Friday, and four hours per day on Tuesday and Thursday. He continued to work using a walker until October 14, 2008, when his hours were increased to eight hours per day, five days a week. He used a cane while at work after October 14, 2008.

Prior to the work injury of January 22, 2008, Claimant had worked full time, eight hours per day, six days per week. He earned more than $\ 700.00 a week in winter and $\ 900.00 a week in summer. The seasonal differential was due to an increased volume in sales during the summer. Prior to the work injury, Claimant devoted 75 percent of his work day with car sales, and the remainder of his time was spent with inventory control and special financing. When Claimant returned to work after the injury, he was given no car sales, no inventory control, virtually no customer contact, and no special finance work. His duties consisted of scanning records and writing manuals. He worked with no supervision, could get up and move around as necessary, and work at his own pace. He used a stair-lift to get to the second floor. He was allowed to take breaks as needed. Throughout his 17 years of working for Employer, Claimant was unaware of any person having performed this last job.

On July 8, 2009, General Manager Randy Madsen spoke to Claimant about retiring. Mr. Madsen told Claimant to finish out the month and not come back. Claimant did not return to employer after July 31, 2009. Claimant had not intended on retiring.

Claimant thereafter drew unemployment while attempting to find other employment. His work search included other car dealerships, as well as other places of employment in the Springfield-Branson area. Claimant said no one would take a chance on him. In the two and one-half years since his dismissal from Don Wessel Olds-Honda, Claimant has found no work.

Claimant has left hip and left knee pain. He is unable to stand, walk or sit in one position for more than one-hour. He always uses a cane for stability, which limits his ability to lift with more than one hand. He can only use his left hand to lift up to 25 pounds. He cannot squat, crawl or kneel. He had none of these limitations or complaints prior to the work injury.

Claimant currently takes medications, including Tramadol for left hip and left knee pain on a daily basis from one to three times per day. He takes Ambien every night to help with sleep since