Scott Hunt v. Hendrick Automotive Group/Superior Buick Cadillac

(Affirming Award and Decision of Administrative Law Judge)

Injury No.11-014882

Employee: Scott B. Hunt

Employer: Hendrick Automotive Group/Superior Buick Cadillac

Insurer: Hartford Accident \& Indemnity Co.

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 25, 2016. The award and decision of Administrative Law Judge Mark Siedlik, issued January 25, 2016, 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 $\qquad 13^{\text {th }}$ day of July 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Scott B. Hunt

Injury No: 11-014882

Dependents: N/A

Employer: Superior Buick Cadillac

Insurer: Harford Accident and Indemnity Company, c/o Specialty Risk Services

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

Hearing Date: October 6, 2015

Checked by: MSS/drl

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: February 19, 2011
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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: While in the course and scope of Employee's work, Employee sustained an injury when he was walking from one part of the Employer's premises to another and he was tripped, causing him to twist and fall against a 4 foot wall.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: : left lower extremity at or about the knee, low back, left hip and right knee.
2. Nature and extent of any permanent disability: Permanent total disability.
3. Compensation paid to date for temporary disability: $\ 77,502.54
4. Value necessary medical aid paid to date by employer/insurer? $\ 96,487.03
5. Value necessary medical aid not furnished by employer/insurer? Undetermined
6. Employee's average weekly wages: $\ 894.70
7. Weekly compensation rate $\$ 596.49 / \ 418.58
8. Method wages computation: By Agreement

1. Amount of compensation payable:

Permanent total disability benefits from the Employer at the rate of $\ 596.49 per week from and after August 18, 2013 which is $1311 / 7$ weeks from the date of accident (Employee returned to work for two weeks in July 2011) to continue for the balance of the Employee's life.

Unpaid medical expenses: Undetermined.

Weeks for temporary disability: 129.17 weeks paid at rate of $\ 600 per week for a total of $\ 77,502.54.

1. Future medical awarded: Yes, from the Employer/Insurer.

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 claimant: James E. Martin.

Employee: | Scott B. Hunt |

Employer: Superior Buick Cadillac

Insurer: | Harford Accident and Indemnity Company, c/o Specialty Risk Services |

Checked by: MSS/drl

This case comes on for hearing before Administrative Law Judge Mark Siedlik on October 6, 2015 in Kansas City, Missouri. The Employee, Scott Hunt, was present with his counsel, Mr. James Martin. The Employer and its insurance carrier appeared by their attorney, Jeff Bloskey. The Second Injury Fund was represented by its counsel, Jacob Colling.

This case involves injuries sustained by Mr. Hunt on February 19, 2011 while Mr. Hunt was in the employ of Superior Buick Cadillac (n/k/a Hendrick Buick Cadillac). The injuries resulted from an accident which arose out of and in the course of his employment with the aforesaid Employer in Jackson County, Missouri. At the time of the injuries, the parties were subject to the Missouri Worker's Compensation law and the Employer's liability was insured by Specialty Risk Services. The Employer had notice of the injury and claim was timely filed.

Compensation rates are agreed to be $\$ 596.49 / \ 418.58 for the purposes of this proceeding.

The evidence at trial consisted of the testimony of the Employee together with deposition testimony of James A. Stuckmeyer, M.D. with attached exhibits, Michael J. Dreiling with attached exhibits, Terry Cordray with attached exhibits, Danny Gurba, M.D. with attached exhibits and Bernard M. Abrams, M.D. with attached exhibits.

The issues are:

1) Was the accident of February 19, 2011 the prevailing cause of the Employee's injuries and need for medical care;

2) Whether the Employee will require future medical care at the expense of the Employer and its insurance company;

3) What is the nature and extent of disability;

4) What is the Second Injury Fund Liability, if any.

The Employee testified he was born in 1961 and was 50 years old when this accident occurred. At that time he was employed at Superior Buick Cadillac in Kansas City, Missouri as a service writer. His duties included greeting customers as they drove their cars into the garage, reviewing with the customers the reason they brought their car in, writing up service orders, inspecting vehicles to determine the cause of a problem, and working with the service technicians who actually perform the maintenance on the customer's vehicle. Generally, he worked five days a week and would be on his feet anywhere from 10 to 14 hours per day. His education included graduation from high school, approximately two years of college at Central Missouri State University and, finally, he participated in a vocational technical training course and completed a certificate program in electronics theory at Control Data Institute. His employment history is lengthy and, generally, revealed that he'd worked as a copier technician, a service writer for Roach Cadillac-Jaguar, as a warranty claims adjuster, and was in sales for Gateway 2000 and APS Technologies. All of these jobs required that he be on his feet most of the day and be able to move around and carry some small amount of weight, at a minimum, to perform his job duties.

He became employed at Superior Buick Cadillac in July, 2010 in the same capacity in which he was employed on the date of the accident. At the time he was hired and, thereafter, he testified he did not have any restrictions upon his ability to perform any activities or any limitations on his ability to do any work. Likewise, although he had prior workers' compensation claims and, in 2008, had sustained an injury to his left lower extremity which did require surgery, he was symptom-free thereafter. He had no limitations or loss of ability to perform any of his normal daily activities, hobbies or activities outside of work, nor did he have any physical limitation on his ability to obtain employment.

He testified the accident occurred on a Saturday afternoon about 2:30 o'clock p.m. He was going from the area where the customers bring their vehicles out to the garage to check with a service technician about a particular job when a couple of young co-employees stuck a broom handle between his legs as he walked by. This caused him to jam his leg into the door and he tripped. He twisted his leg falling through the doorway landing against a 4 foot wall in the garage. He collected himself and then walked out to the service technician who noted that he was limping. He finished the work day and went home hoping the injury was something minor and that it would go away. The next two days he lay at home with his leg elevated to see if he could get some relief but he did not so, on the next work day, he notified his employer of the accident, how it occurred, and the difficulties he was having. He told them that on Monday, his day off, he had contacted Dr. Dugan and was scheduled to see him that week. Initially, that was approved but he received a call later that day advising he had to go to the company occupational physician. He then called the occupational physicians for an appointment and was told that he should proceed to see an orthopedic physician. He then spoke with the adjuster for the insurance company who, in fact, authorized Dr. Dugan.

Dr. Dugan examined him, tried some medication, physical therapy and restrictions before recommending and then performing surgery. At that point he was having significant swelling and

pain and was unable to stand on his leg except for very brief periods. All weight-bearing caused pain to the point he would have to lay down and put ice on it.

He testified that in 2008 he was in Mexico on vacation and was running toward the water when his heel got stuck in the sand and he sustained an injury to his left knee. Dr. Dugan became the treating physician and did surgery, releasing him in 2009 with no restrictions. Mr. Hunt said he came back in 2009 to see Dr. Dugan and, although Dr. Dugan's records indicated he had the onset of symptoms and they were gone by the time of the appointment, Mr. Hunt said that, actually, the reason he was there was for a one-year follow-up and that he had not had any difficulties whatsoever. In fact, despite the fact that he had a small metal plate inserted at the time of the 2008 surgery, he really had no symptoms whatsoever until the injury of February 19, 2011. He had not missed any time from work as a result of the 2008 injury, nor were his personal hobbies and activities restricted in any way. Additionally, while he did have some previous accidents and injuries, none of the others had affected his left knee, left hip, low back or right knee. In fact, it was after the 2008 injury that he applied for and was hired as a service writer for the Employer in this case as he was hired in July, 2010.

Mr. Hunt testified that following the February 19, 2011 accident, Dr. Dugan performed two more surgeries which provided him no relief. Ultimately, although Dr. Dugan did not believe that it was related in any way, Dr. Dugan did a third surgery to remove the plate that had been put in the leg in 2008. More therapy and medication did not relieve the continuing symptoms of swelling and pain. Therefore, Dr. Dugan told him that it would probably be a good idea to get a second opinion. The insurance company agreed and referred him to Dr. Danny Gurba, another orthopedic surgeon.

He next saw Dr. Gurba as he continued to experience the same symptoms that he had ever since the February 19, 2011 accident and Dr. Gurba quickly concluded the only treatment available was a total knee replacement