James Kellerman v. Plaza Motors

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 06-088342

Employee: James Kellerman

Employer: Plaza Motors

Insurer: Zurich American Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Denied)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) 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 ALJ dated October 2, 2012, as supplemented herein.

We issue this supplemental opinion solely to address two findings of fact contested by employee. Specifically, employee argues that on page 5 of the Award, the ALJ erred in her summary of Dr. Hinden's records when she found that "[employee] was told he needed back surgery, but he chose conservative treatment instead." We find, as employee argues, that the record is devoid of any medical notes indicating that employee had been told he needed back surgery and elected to pursue conservative treatment.

Employee also argues that the ALJ erred in listing Dr. Hinden as a doctor of osteopathic medicine (D.O.), when Dr. Hinden is actually a doctor of chiropractic medicine (D.C.). We agree with employee, and find that the ALJ incorrectly listed Dr. Hinden as a D.O. Dr. Hinden is, in fact, a D.C.

We find that the aforementioned corrections do not affect the ALJ's ultimate conclusions in this case, which we find are supported by competent and substantial evidence. Therefore, the Commission affirms the award and decision of the ALJ, as supplemented herein.

The award and decision of Administrative Law Judge Suzette Carlisle, issued October 2, 2012, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005 unless otherwise indicated.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $26^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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: August 22, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Claimant injured his cervical spine when he pulled on a bolt and fell to the floor.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Cervical spine
14. Nature and extent of any permanent disability: 40 % of the body, referable to the lumbar spine
15. Compensation paid to-date for temporary disability: $\ 24,441.08
16. Value necessary medical aid paid to date by employer/insurer? $\ 79,097.50

Said payments to begin 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: Kevin Wayman

The parties appeared at the St. Louis Division of Workers’ Compensation ("DWC") before the undersigned administrative law judge on June 18, 2012 for a hearing for a final award at the request of James Kellerman ("Claimant") to determine the liability of Plaza Motors. ("Employer"), Zurich American Insurance Co. ("Insurer"), and the Second Injury Fund ("SIF") for permanent total disability ("PTD") benefits. Attorney Kevin Wayman represented Claimant. Attorney Jared Cone represented the Employer and Insurer, and Assistant Attorney General Maria Daugherty represented SIF. The court reporter was Lori Sanders.

Venue is proper and jurisdiction lies with the DWC. The record closed after presentation of the evidence on June 18, 2012.

The parties stipulated that on or about August 22, 2006:

1. Claimant was employed by Employer and sustained an accident that arose out of and in the course of employment in St. Louis County; ${ }^{1}
2. Employer and Claimant operated under the Missouri Workers' Compensation Law { }^{2}$;
3. Employer's liability was fully insured;
4. Employer had notice of the injury;
5. A Claim for Compensation was timely filed;
6. Claimant's average weekly wage was sufficient for rates of $\ 718.87 for temporary total disability (TTD) and permanent total disability (PTD) and $\ 376.55 for permanent partial disability (PPD); and
7. Employer paid TTD benefits totaling $\ 24,441.08 and medical expenses totaling $\ 79,097.50.

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[^0]: ${ }^{1} All references to the Employer also refer to the Insurer.

{ }^{2}$ All statutory references in this award are to the 2005 Revised Statutes of Missouri unless otherwise stated.

The parties have identified seven issues for disposition:

1. Has Claimant reached maximum medical improvement ("MMI")? Yes
2. If so, what is the nature and extent of Employer's liability for PPD or PTD benefits, if any? 40 % PPD of the cervical spine
3. What is the nature and extent of SIF liability for PPD or PTD, if any? None
4. Is Employer liable for past medical expenses totaling $\ 5,447.25 ? No
5. Is Employer liable for future medical treatment for Claimant's cervical spine? Yes

Claimant offered Exhibits A through Q, which were admitted without objection. ${ }^{3} Employer offered Exhibits 1 through 6 which were admitted without objection. { }^{4}$ SIF offered no exhibits. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights in the exhibits they were made prior to becoming part of this record and were not made by the undersigned administrative law judge.

All evidence was reviewed but only evidence which supports this award is summarized below.

At the time of the hearing Claimant was a 53 year old graduate from Webster High School in 1977. He received automotive training at South County Technical School. Claimant uses a computer to shop online on Craig's List and to date on line. Claimant maintains his personal checking account. He reads newspapers and magazines.

After high school he worked as an auto mechanic until 2006. He completed on-the-job training with General Motors. Prior to working for Employer, Claimant worked for various dealers including Chevrolet, Auffenberg, Boulevard, and Mercedes Benz. While at Mercedes Benz, he received three weeks of initial training and yearly training on the job.

In 1986 Claimant injured his eye. In 1989 Claimant strained his low back at Boulevard Motors. He missed work for eight days.

In 1990 Claimant injured his left index finger, and does not recall missing work prior to August 2006 for his neck or low back. He did not remember a low back injury in 1992, but Division records show he settled the case for 7.5 % PPD of the body.

Division records show Claimant received a settlement for 5\% PPD of the low back for an injury that occurred July 6, 1992.

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[^0]: ${ }^{3} Employer's objection to Exhibit Q was withdrawn.

{ }^{4}$ Exhibit 5 was admitted for the limited purposes of pages 10 and 11.

WC-52-R1 (6-81)

Injury No.: 06-088342

Claimant received occasional chiropractic services from LInnel Hinden, D.O., as needed from 1993 to 2006. Claimant treated from February 11, 1993 to February 24, 1993 for neck and upper back complaints, which started two weeks earlier, after he was hit from behind during a bar fight. Dr. Hinden manipulated T3-4 and C6-C7. Claimant returned on June 25, 1993 with left shoulder and neck pain, and received manipulation at T3-4, C6-7, T11-12, and L5-S1.

Dr. Hinden treated Claimant off and on for his low back, neck, and both shoulders through August 2, 2006 when he reported right neck pain and left arm pain with movement, which started July 31, 2006. Dr. Hinden took Claimant off work. The last visit occurred on August 7, 2006. Claimant was told he needed back surgery, but he chose conservative treatment instead.

In 2001 Claimant developed a hernia while working for Employer, but does not recall how it happened. Division records show he settled the case for 9\% PPD of the body. Before August 22, 2006, Claimant's injuries did not affect his work performance or his ability to work overtime.

Claimant worked for Employer as a mechanic for ten years leading up to 2006. He provided customer service, trained other mechanics as a team leader, and performed auto mechanic work. As a team leader, Claimant ensured mechanics completed work, he talked to customers, and ordered parts if necessary, and used a computer to assign work. Claimant lifted 70-pound tires, and 50-pound batteries. He worked overtime and was required to stand, crawl, sit, lie down, kneel, squat, climb, and reach overhead on a regular basis.

On August 22, 2006, Claimant fell and injured his left side while using a breaker bar. He felt left sided pain and numbness. Claimant finished his shift. Later in the day, the pain increased.

Claimant has not worked since surgery and has not looked for work due to pain. He believed his spouse divorced him because of his neck problems. His ex-wife presented him with a letter from the Insurer asking questions about Clai