Robert Kant v. Dave Littleton Ford

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-011681

Employee: Robert Kant

Employer: Dave Littleton Ford (Settled)

Insurer: Self-Insured (Settled)

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 April 26, 2016. The award and decision of Administrative Law Judge Angie Robyn, issued April 26, 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 $27^{\text {th }}$ day of October 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Robert Kant

Injury No: 06-011681

Employer: Dave Littleton Ford

Insurer: Self-Insured

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

Hearing Date: February 11, 2016

Checked by: AR/lh

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 17, 2006.
5. State location where accident occurred or occupational disease was contracted: Smithville, Clay 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: Employee was walking to wash his hands when he tripped over an ankle-high wire, placed across the doorway by a co-worker/practical joker, falling and injuring his left knee and back.
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: Low back and left knee.
14. Nature and extent of any permanent disability. Permanent Total Disability.

1. Compensation paid to-date for temporary disability: $\ 38,238.41.
2. Value necessary medical aid paid to date by employer/insurer: $\ 55,528.01.
3. Value necessary medical aid not furnished by employer/insurer: N/A
4. Employee's average weekly wages: $\ 770.60.
5. Weekly compensation rate: $\$ 513.60 / \ 365.08.
6. Method wages computation: By agreement.

1. Amount of compensation payable: Employee previously settled his claim with the Employer for 15 percent of the left knee and 25 percent of the body as a whole, 124 weeks of compensation.
2. Second Injury Fund liability: Yes. Second Injury Fund liability beginning August 30, 2007, for weekly differential of $\ 148.68 for 124 weeks and $\ 513.76 weekly thereafter for Claimant's lifetime.
3. Future requirements awarded: N/A.

Said payments to begin as of the date of this award 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 all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Jerry Kenter.

Employee: Robert Kant

Injury No. 06-011681

Employer: Dave Littleton Ford

Insurer: Self- Insured

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

Hearing Date: February 11, 2016

Checked by: AR/1h

On February 11, 2016, the Employee and the Second Injury Fund appeared for a final hearing. The Employee and the Employer had previously settled the claim filed against the Employer. The Division had jurisdiction to hear this case pursuant to 287.110. The Employee, Robert Kant, appeared in person and with counsel, Jerry Kenter. The Second Injury Fund appeared through Assistant Attorney General Jacob Colling.

The parties stipulated to the following:

1) That both Employer and Employee were operating under and subject to the Missouri Workers' Compensation Law;

2) That Robert Kant was Dave Littleton Ford's employee;

3) That Kant sustained an accident in the course and scope of his employment on February 17, 2006;

4) That Kant provided notice and filed a timely claim for compensation;

5) That Kant has a compensation rate of $\$ 513.76 / \ 365.08;

6) That Kant received $\ 38,238.41 in temporary total disability benefits and $\ 55,528.01 in medical benefits; and

7) That Kant reached maximum medical improvement on August 30, 2007.

1) Second Injury Fund liability.

The Employee, Robert Kant, testified in person and offered the following exhibits, all of which were admitted without objection or if deposition transcripts, subject to the objections contained therein:

Exhibit A - Medical Records Volumes I \& II

Exhibit B - The Kansas City Neurosurgery Group, LLC

Exhibit C - Kant Letter to Jeff Littleton 1/19/08

Exhibit D - Tasks of a Master Technician

Exhibit E - IME from John A. Pazell, M.D. 10/28/08

Exhibit F - John A. Pazell, M.D. Disability Rating 11/26/08

Exhibit G - Rehabilitation Expertise, LLC Report 10/9/09

Exhibit H - Kansas Vocational Rehabilitation Records

Exhibit I - Report of Injury

Exhibit J - Stipulation for Compromise Lump Sum Settlement with the Employer

Exhibit K - Deposition Transcript of Terry Cordray 3/15/10

Exhibit L - Deposition Transcript John A. Pazell, M.D. 10/29/09

The Second Injury Fund offered the following exhibits:

Exhibit No. 1 - Deposition of Robert Kant 9/3/2009

Based on the above exhibits and the testimony of the Employee, this Court makes the following findings:

Robert Kant is a 64-year-old former auto mechanic for Dave Littleton Ford. Kant is a high school graduate.

Kant has been an auto mechanic for 30 years and has worked for several of the Ford Automotive Dealerships in the Kansas City Metropolitan area. He is a certified Senior Master Mechanic. Kant attended classroom and online training with Ford to satisfy the requirements necessary to become a Senior Master Mechanic. Annually, he successfully completed required tests to maintain his certification. As a Ford certified Senior Master Mechanic, Kant testified that he is qualified to work on all parts of a Ford automobile bumper to bumper but that training is not necessarily transferrable to other car manufacturers.

As a Senior Master Mechanic at Dave Littleton Ford, Kant was required to lift 80-150 pounds; however, he used a hoist when possible. He performed a lot of overhead work. Kant was also required to kneel frequently.

Kant testified that he used a computer frequently at work and at home for personal use. However, he does not have strong typing skills.

On February 17, 2006, he had finished a repair job and was walking to a restroom to wash his hands. A practical joker had placed a thin wire across a doorway about ankle high and Kant tripped over the wire causing him to fall on his left side. He testified that he injured his left knee, left shoulder and his low back when he fell. Although he did not realize the damage to the left shoulder until he was no longer on narcotic pain medicine and was in physical therapy over a year after the fall.

Kant reported his accident and injury immediately to the Employer. The Employer first sent Kant to St. Luke's Medical Group in Smithville, Missouri. Kant gave a consistent history of his primary and prior back injuries and was complaining of severe low back pain. On March 3,

2006, Kant underwent an MRI of the lumbar spine at Shawnee Mission Medical Center which showed degenerative disk disease and facet changes of the mid and lower lumbar spine with mild acquired canal stenosis at L5-S2 and degenerative disc bulging at L3-4 and L2-3. (Ex A p 274)

On March 7, 2006, Kant returned to Dr. Charles Striebinger who he had not seen since 2003. He indicated that he had been able to function on a daily basis at work and could even bale hay in the summer, work around his house, and had not missed work from the prior 2001 accident involving an injury to the low back, until the last accident of February 17, 2006. Dr. Striebinger indicated that the MRI of March 3, 2006, was unchanged from any prior MRI from the auto accident in 2001. He did order additional testing to rule out a subluxation or instability at L4-5. (Ex A p 808)

Kant was initially treated conservatively with physical therapy, injections, medications and water therapy.

On April 18, 2006, at the request of the employer/self-insurer, Kant was sent to Dr. John Ciccarelli. He told Dr. Ciccarelli that the baseline chronic back ache and pain with intermittent radicular symptoms worsened after the February 2006 accident. Dr. Ciccarelli, as did Dr. Striebinger, compared the MRI's of April 9, 2001 and March 3, 2006, finding no significant difference. He did not recommend surgical intervention and ordered continuation of the physical therapy and a facet block. He advised lighter work activity and prescribed anti-inflammatory medications. His conclusion was that Kant "suffered a work related lumbar strain and in the face of moderate to severe pre-existing degenerative multi-level spondylosis in the lumbar spine." (Ex A p 730) When the treatment did not significantly improve Kant's symptoms, he was referred to a physiatrist who recommended a diagnostic radio-frequency ablation and physical therapy. (Ex A p 733)

Dr. Galate ordered a lumbar radio-frequency medial branch neurolysis and Kant saw improvement in his symptoms. (Ex A p 313-315, p 738-739) Dr. Galate ordered three additional trigger point injections and work conditioning. (Ex A Tab 4; Ex A p 741)

On October 20, 2006, Kant told Dr. Galate that he still had low back and left knee pain and that the trigger point injections had calmed down some of his back pain. To follow up on the knee pain, Dr. Galate ordered an MRI which showed a tear of the medial meniscus and a grade 3-4 patella chondromalacia. Dr. Galate then referred Kant to Dr. Daniel Stechschulte for treatment. Kant disclosed the prior 1977 knee problem and indicated he was treating it conservatively until the present injury. He complained of popping, pain and giving way in the knee. Dr. Stechschulte recommended a left knee arthroscopy and returned Kant to work light duty, sitting and standing for pain control, with no kneeling, squatting, climbing, or crawling. (Ex A p 657-660) However, Kant testified that the Employer could not accommodate his restrictions and he was unable to return to work.

On December 18, 2006, Dr. Stechschulte performed an arthroscopic repair for a tear of the posterior horn of the left medial meniscus with a patella femoral chondroplasty. (Ex A p 695) This was followed by physical therapy.

The surgery did not alleviate all of the left knee problems and Dr. Stechschulte recommended injections. (Ex A p 669) Dr. Stechschulte indicated that the meniscal pathology had been appropriately addressed but Kant did have arthritic changes, some being pre-existing in the knee, which were exacerbated and aggravated by the last accident.

On March 3, 2007, Kant returned to Dr. Galate who indicated no further treatment was require