final award allowing compensation - missouridr. leslie testified that employee’s meniscus tear...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge)

Injury No.: 13-069045 Employee: Karon Simpson Employer: Columbia College Insurer: Self-Insured-Colleges & University Trust This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below. Preliminaries The parties asked the administrative law judge to determine the following issues: (1) employer’s liability, if any, for permanent partial disability benefits; (2) employer’s liability, if any, for future medical benefits pursuant to § 287.140 RSMo.; and (3) whether the employee is entitled to attorneys fees and costs pursuant to § 287.560 RSMo. The administrative law judge rendered the following determinations: (1) employee sustained a permanent partial disability of 22.5% at the level of the left knee as a result of her injuries of September 19, 2013; (2) employee will need additional medical treatment in the future, including but not limited to treatment recommended by Dr. Leslie and Dr. Volarich, to cure and relieve employee of the effects of her injuries sustained September 19, 2013; and (3) employee failed to sustain her burden to prove that employer defended this claim on unreasonable grounds; therefore employee is not entitled to an award of costs and attorney fees pursuant to § 287.560, including the costs of Dr. Leslie’s fees for appearing live at the hearing. The administrative law judge further found that employer did not abandon its right to select the treating physician by refusing to provide injections recommended by Dr. Leslie, employer’s authorized treating physician, prior to hearing. Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in that his determination of the extent of permanent partial disability was too low given that the employee currently needs Orthovisc injections in her left knee and ultimately will require a total knee replacement as a result of her work-related injury; (2) in determining that the employer had the right to continue to direct employee’s medical treatment in that employer refused to authorize Orthovisc injections authorized by employer’s treating physician in Spring of 2014 without securing a medical opinion to support its denial for a year and then subsequently claimed that employee’s injury did not cause her current medical problems; and (3) in failing to find that employee was not entitled to attorney fees and expenses pursuant to § 287.560.1, in that employee was denied medical treatment for a year and a half prior to hearing.

Injury No.: 13-069045 Employee: Karon Simpson

- 2 - For the reasons stated below, we modify the award of the administrative law judge referable only to the issue of employer’s liability for permanent partial disability benefits. Discussion Nature and extent of permanent partial disability Orthopedic surgeon Dr. Christopher Leslie, employer’s authorized treating physician, performed a left patella open reduction internal fixation on employee’s left knee on September 23, 2013, to address her work injury of September 19, 2013. On February 3, 2014, Dr. Leslie performed a second operation to remove hardware used in the original surgery which had broken and was causing pain. As the employee underwent physical therapy subsequent to her second surgery, she continued to experience pain and grinding in her knee. As of May 6, 2014, employee still had swelling and effusion of her knee. Dr. Leslie described employee’s conditions as significant patellofemoral crepitus and severe chondromalacia of the left patella. Dr. Leslie considered these conditions not unusual following employee’s work injury and two surgeries. He described employee’s continued problems with her knee as “a very typical cascade of events” following the type of trauma involved in her work related injury. Transcript, page 29. To address employee’s ongoing medical issues, Dr. Leslie recommended a third surgery consisting of a knee arthroscopy. Employer/insurer approved Dr. Leslie’s recommendation and on May 19, 2014, employee underwent an arthroscopic chondroplasty of her patellofemoral joint and resection of her patella. During this surgery Dr. Leslie confirmed his earlier finding of grade three chondromalacia of the patellofemoral joint. He further found that employee had developed tri-compartmental reactive synovitis, inflammation inside of the knee resultant from the injury. Dr. Leslie found no meniscus tear inside employee’s left knee at the time of the third, May 19, 2014, surgery. Dr. Leslie next saw the employee on June 3, 2014. On that date, he removed sutures from employee’s May 19, 2014, surgery and released the employee, recommending that she continue her home exercise program, return to activities as she could tolerate them, and contact him with any further problems. Dr. Leslie did not recommend physical therapy at that time because of a concern that the additional physical stress could make the employee’s condition worse. Employee next contacted Dr. Leslie on September 16, 2014, complaining of pain in her knee. Pursuant to his examination of claimant’s knee on September 23, 2014, Dr. Leslie was concerned that the employee had a torn medial meniscus in her left knee and recommended an MRI. Dr. Leslie advised employer’s insurer that he considered the employee’s current symptoms and condition consistent and reflective of her work related injury. Employer/insurer authorized the MRI test.


- 3 - The September 23, 2014, MRI of employee’s left knee showed severe chondromalacia of the patella consistent with traumatic arthritis from palletar fracture, a torn medial meniscus and joint effusion. Dr. Leslie recommended an arthroscopic surgery to address the meniscal tear. Employer’s insurer authorized the procedure and Dr. Leslie performed an arthroscopy of employee’s left knee on December 1, 2014. Dr. Leslie testified that employee’s meniscus tear diagnosed in September of 2014 was causally related to her September 19, 2013, work injury. Dr. Leslie based his opinion not just based on employee’s denial of any subsequent injury but also based on his physical findings after having scoped employee’s knee two times. He concluded that the meniscus tear in employee’s left knee was due to trauma based on the location of the tear inside of the employee’s cartilage rather than in the periphery of the meniscus. Dr. Leslie testified that within a year of her initial injury on September 19, 2013, employee had progressed to end-stage osteoarthritis. Dr. Leslie opined that employee’s pain in her knee, altered gait subsequent to her injury and multiple related surgeries caused her to develop arthritis and chondromalacia in the area of her left knee. By December of 2014, employee developed grade four chondromalacia in two of three compartments of her knee. Dr. Leslie recommended Orthovise injections after claimant’s fourth surgery in December, 2014, but noted that because employee currently has no articular cartilage, her condition will ultimately require a total replacement of her left knee. Dr. Leslie testified that claimant’s current conditions as well as her eventual need for a total knee replacement are all directly related to her original September 19, 2013, work related injury. Employee credibly testified (and we so find) that her left knee is stiff, aches every day, is sore and tender to touch and has a burning sensation inside. Her knee swells and feels full and tight all the time. Employee’s left thigh muscle feels weak and her left thigh is now smaller than the right thigh. She experiences sudden and unexpected popping in her left knee, which is very painful. After standing for more than fifteen or twenty minutes, employee’s pain increases so much she is compelled to sit down. She can only walk for twenty to thirty minutes. She avoids stairs because she finds it uncomfortable to go “heel over heel, step over step.” She climbs stairs one step at a time and comes down by using side steps, while holding on to a guard rail or her husband. She can kneel but is unable to walk on her knees. She cannot squat. She continues to perform her job, which consists of desk work, because employer allows her to get up and move around as needed. She avoids lifting items heavier than twenty pounds at work. Employee has largely given up her hobby of gardening because she is no longer physically able to maintain her extensive flower beds. She is unable to perform housework involving lifting such as laundry and vacuuming and relies on her husband to assist with these tasks. Prior to her injury, employee exercised by walking two miles outside her home four or five times per week. In spring of 2016 she tried to resume this activity but found it too painful to continue. She is no longer able to enjoy vacations that involve a lot of walking, as she had in the past. She now confines


- 4 - necessary shopping to short trips in order to avoid walking on concrete floors. Employee suffers chronic pain, which she rates at a level of four to five. Dr. David T. Volarich’s July 14, 2015, report mirrors the present complaints and physical limitations employee testified to at hearing. In addition, Dr. Volarich noted employee experiences difficulty sleeping, and sleeps with a pillow between her knees. She usually wakes up three to four times a night to change positions. His report states that weather changes aggravate employee’s symptoms. With regard to the employee’s ability to work, Dr. Volarich advised her to limit repetitive stooping, squatting, crawling, keeling, pivoting, climbing, and all impact maneuvers. He cautioned her to be cautious navigating uneven terrain, slopes, steps, and ladders especially if she must handle weight. He instructed employee that, if work activities require her to be on her knees, she should appropriately pad the surface on which she is kneeling. Based on his independent medical exam, Dr. Volarich found that employee sustained a 50% permanent partial disability of her left lower extremity rated at the knee, for the following pathology:

[T]he patellar fracture that required open reduction internal fixation and subsequent hardware removal, as well as the development of accelerated post-traumatic arthropathy that required arthroscopic chondroplasty and because of a medial meniscal tear, another arthroscopic chondroplasty of the patella with partial medial meniscectomy. Transcript, page 948.

His report further explains that this rating “accounts for ongoing discomfort, lost motion, weakness, crepitus and atrophy in the left lower extremity (emphasis added). Id.” After considering employee’s testimony concerning her present condition and limitations, Dr. Volarich’s evaluation of employee’s permanent disability as 50% of the left knee, a form completed by Dr. Leslie rating employee’s permanent impairment as 8% of the left knee, and Dr. Mall’s rating of permanent partial disability of 10% of the left knee attributable to employee’s work injury, the administrative law judge concluded that employee suffered a 22.5% permanent partial disability at the level of the left knee as a result of her injuries on September 19, 2013. We disagree with the administrative law judge’s conclusion regarding the nature and extent of employee’s permanent partial disability. Employee’s testimony regarding her physical condition and activities prior to the September 19, 2013, work injury is uncontroverted. We further find entirely credible employee’s testimony regarding the nature and extent of her physical limitations and continued chronic pain subsequent to her work injury and four related surgeries within sixteen months. “The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause,


- 5 - and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence.”1 We reject Dr. Mall’s suggestion that employee’s disability and eventual need for a total replacement of her left knee is due to pre-existing patellofemoral arthritis unrelated to her work injury. There is no documentation that employee experienced pain in her left knee prior to her September 19, 2013, work injury. There is further no evidence she had any physical limitations prior to her injury. Dr. Mall’s testimony was discredited by the testimony of Dr. Leslie and Dr. Volarich, as well as by documentary evidence produced by the employee at hearing.2 We further reject Dr. Mall’s testimony dismissing employee’s pain symptoms as “subjective” and suggesting that her current complaints are attributable to her age and gender, Dr. Leslie’s failure to prescribe physical therapy after employee’s May, 2014 surgery, a new injury that employee concealed from her treating physician, employee’s failure to comply with home exercises, or her weight. These suggestions are inconsistent with Dr. Mall’s March 3, 2016, report finding that employee sustained a 10% disability of her left knee resultant to injury to her patella and three of employee’s four subsequent surgeries as well as his admission on September 9, 2016, in response to questioning by employer’s attorney that his 10% permanent partial disability rating related only to employee’s work injury and did not include any “non work issue[s].” Transcript, pages 701-702, 757. As we have found, employee’s four surgeries, ongoing physical limitations, chronic pain, need for ongoing treatment and her certain need for a complete replacement of her left knee at some point in the future are all directly related to her September 19, 2013, work related injury. After considering the expert medical evidence produced at hearing, in particular the evaluation of Dr. David Volarich, in addition to the employee’s testimony regarding her physical limitations and chronic pain, we conclude that an award of 40% permanent partial disability of the employee’s left knee is appropriate. Accordingly, we modify the administrative law judge’s award with respect to the issue of employer’s liability for permanent partial disability benefits. We find that employer is liable for 64 weeks of permanent partial disability at the stipulated compensation rate of $407.95, for a total of $26,108.80 in permanent partial disability benefits. Conclusion We modify the award of the administrative law judge as to the issue of employer’s liability for permanent partial disability benefits. Employee is entitled to, and employer/insurer is hereby ordered to pay, $26,108.80 in permanent partial disability benefits.

1 Delbert Pruett v. Federal Mogul Corporation, 365 S.W.3d 296, 306 (Mo. App. 2012) citing ABB Power T & D Co. v. Kemker, 236 S.W.3d 43, 51 (Mo. App. 2007) (quoting Reiner v. Treas. of State of Mo., 837 S.W.2d 363, 367 (Mo.App. 1992)). 2 See Claimant’s Exhibit 9 (marked “Claimant’s Exhibit I”), Jeffrey B. Driban, Charles B. Eaton, Grace H. Lo, Robert J. Ward, Bing Lu and Timothy E. McAlindon, Association of Knee Injuries with Accelerated Knee Osteoarthritic Progression: Data from the Osteoarthritis Initiative, Arthritis Care and Research, American College of Rheumatology (Vol. 66, No. 11, pp 1673-1679, November 2014).


- 6 - The award and decision of Administrative Law Judge David L. Zerrer, issued January 10, 2017, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award. The Commission approves and affirms the administrative law judge’s allowance of an 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 28th day of July 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman VACANT Member Curtis E. Chick, Jr., Member Attest: Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Revised Form 31 (3/97) Page 1

AWARD

Employee: Karon Simpson Injury No. 13-069045 Dependents: Employer: Columbia College Additional Party: Insurer: Self-insured-Colleges & University Trust Hearing Date: September 20, 2016 Checked by: DLZ

FINDINGS OF FACT AND RULINGS OF LAW 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: September 19, 2013 5. State location where accident occurred or occupational disease was contracted: Camden 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? Self-insured 11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant suffered fall on left knee 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 knee 14. Nature and extent of any permanent disability: 22.5% 15. Compensation paid to-date for temporary disability: $8,632.80 16. Value necessary medical aid paid to date by employer/insurer? $48,428.02

Before the DIVISION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Karon Simpson Injury No. 13-069045

WC-32-R1 (6-81) Page 2

17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $611.93 19. Weekly compensation rate: $407.95 20. Method wages computation: Stipulation

COMPENSATION PAYABLE

21. Amount of compensation payable: Unpaid medical expenses: -0- 36 weeks of permanent partial disability from Employer N/A weeks of disfigurement from Employer 22. Second Injury Fund liability: Yes No X Open TOTAL: $14,686.20 23. Future requirements awarded: Future medical to remain open, as provided for in this award Said payments to begin immediately 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: McDuffey Law Firm


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FINDINGS OF FACT and RULINGS OF LAW:

Employee: Karon Simpson Injury No: 13-069045 Dependents: Employer: Columbia College Additional Party: Insurer: Self-insured-Colleges & University Trust Checked by: DLZ

On the 20th day of September, 2016, the parties appeared before the undersigned

Administrative Law Judge for final hearing on Claimant’s claim against the Employer and

Insurer. Claimant appeared in person and by her attorney, Timothy McDuffey. The Employer

and Insurer appeared by their attorney, Joshua Friel. The award being sought is a final award

against the Employer and Insurer. The record was ordered to be left open until 5:00 p.m.

October 7, 2016.

The parties entered into a stipulation with regard to certain facts which are not at issue in

this claim as follows, to wit: On or about the 19th day of September, 2013, Columbia College

was an employer operating subject to the Missouri Workers’ Compensation Law; the Employer’s

liability was fully self-insured by Colleges & University Trust, third party administrator, Cannon

Cochran Management Services; on the alleged injury date of September 19, 2013, Karon

Simpson was an employee of the Employer; the Claimant was working subject to the Missouri

Workers’ Compensation Law; the parties agree that on or about September 19, 2013, Claimant

sustained an accident, which arose out of the course of and scope of employment; the

Before the DIVISION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri


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employment occurred in Camden County, Missouri, and the parties agree that Camden County,

Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as

required by Section 287.420; the Claimant’s claim was filed within the time prescribed by

Section 287.430; at the time of the claimed accident, Claimant’s average weekly wage was

$611.93, sufficient to allow a compensation rate of $407.95 for temporary total disability,

temporary partial disability, permanent partial disability, and permanent total disability;

temporary total disability benefits have been paid in the amount of $8,100.73 prior to the date of

this hearing, which represents 19-6/7 weeks of benefits and $532.07 of temporary partial

disability benefits have been paid prior to the date of this hearing; Employer and Insurer have

paid medical benefits in the amount of $48,428.02 prior to the date of this hearing; Claimant’s

attorney seeks approval of an attorney fee of 25% of the amount of any award

ISSUES

Whether the Claimant has sustained injuries that will require future medical care in order to

cure and relieve the effects of the injury?

The nature and extent of any permanent disabilities?

Whether the Claimant is entitled to attorney fees and costs pursuant to Section 287.560?

DISCUSSION

A legal file was established for this hearing, which consisted of the following documents,

to wit: Report of Injury; Claim for Compensation, filed with the Division May 11, 2015;


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Answer of Employer and Insurer, filed with the Division June 5, 2015; Request for Final

Hearing, filed with the Division June 7, 2016.

Claimant offered, and there was admitted, without objection, Exhibits 1 through 8, 10, 11

and 13. Claimant offered, and there was admitted over objection, Exhibits 9 and 12. The

Employer and Insurer offered and there was admitted, without objection, Exhibits A, B, C, D, E,

F, G, H, I, J, and K.

Karon Simpson, claimant herein, testified on her own behalf. Claimant testified that she

was born on June 15, 1954, and is 62 years of age at the date of this hearing. Claimant has a

Master’s Degree in Business Administration. She has worked for Employer for more than 16

years.

Claimant testified that she teaches various business classes and works as an

administrative assistant. She works mainly with student accounts. She described this as light

work, mostly sitting with very little lifting.

Claimant testified that prior to the work-related accident of September 19, 2013; she had

no problems with her left knee. She had not been treated by a doctor for her left knee. She

testified that she could perform her job duties without any problem. She could bend, crouch,

kneel, and crawl. Claimant stated that she was active outside of work. She walked and gardened

with no limitations. Prior to the September 19, 2013, injury Claimant walked up to two miles

several days per week for exercise, without limitations.

Claimant testified that on September 19, 2013, she had a meeting scheduled in her office

and needed an extra stool for a place to sit. She went to a storage closet to retrieve a short rolling

stool. As Claimant was pushing the chair with her foot, her foot became tangled in the stool


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causing Claimant to trip and fall. Claimant stated that she landed on her left knee. She had

immediate pain in the front of her knee. She indicated that she could not get up from the floor.

Claimant stated that she was taken by ambulance to Lake Regional Hospital emergency room in

Osage Beach, Missouri. Claimant stated that x-rays taken at the hospital revealed a fractured left

patella. Claimant’s care was thereafter transferred to Dr. Christopher Leslie as an authorized

treating physician.

Claimant testified that she had surgery on her left knee. Following surgery she used a

wheel chair for about six weeks, she used a walker for a period of time, then crutches, and then a

cane to assist in walking. Claimant stated that during physical therapy she did strengthening

maneuvers, weight lifting, and rowing, but the pain in her left knee did not completely resolve.

During the period of physical therapy, she began to experience an increase in pain and returned to

Dr. Leslie who diagnosed Claimant with a broken wire from the first surgery on Claimant’s left

knee.

Claimant testified that she had a second surgery to repair the hardware in her left knee,

after which she began to have a “grinding” feeling in her left knee. Claimant stated that she had

a limp in her walk after the second surgery and began to use a cane as an assistive device.

Claimant testified that she returned to Dr. Leslie for additional treatment because of the

painful grinding feeling in her left knee. Dr. Leslie performed a third surgery on Claimant’s left

knee. Claimant stated that she was given home exercises for her left knee which included

planking, chair bending of the leg and knee, toe stands, and leg raises. Claimant indicated that

after the third surgery, her left knee would not straighten completely. She stated that she started

walking again for exercise, but her left knee became painful quickly after starting to walk and


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that she could no longer make one trip around her driveway without stopping because of the pain

in her left knee.

Claimant testified that in September 2014, she returned to Dr. Leslie for additional

treatment. She indicated that she could not walk without pain, she could not lift or carry any

weight, she had a burning sensation in her left knee, she could not straighten her left knee, and

she was awakened at night from sleep because of the pain. Dr. Leslie performed a fourth surgery

on Claimant’s left knee; all surgeries were approved by Employer. Claimant stated that after the

fourth surgery she did not have physical therapy, but did continue her home exercises. Claimant

indicated that Dr. Leslie recommended injections in the left knee following the fourth surgery.

Claimant testified that she had no intervening events to cause the pain in her left knee before

September 2014, other than the injury of September 19, 2013.

Claimant testified that in January 2015 her left knee remained stiff, sore, and also had a

burning sensation. She stated that about May 2015 she contacted Dr. Leslies to arrange the

injections he recommended earlier. Claimant stated that she was advised by Dr. Leslie’s staff

that her appointment for treatment was “put on hold.” Claimant was then notified that she was to

see Dr. Mall. Claimant stated that she received a letter from Insurer that her treatment was being

transferred to Dr. Mall, but when she presented to Dr. Mall, he advised Claimant that he was not

her doctor and that he was performing an independent medical evaluation.

Claimant testified that she is continuing to have pain in her left knee as a result of the

September 19, 2013, injury. She stated that she has daily pain and stiffness with popping in her

left knee. Claimant described her pain as an aching and burning pain which she rated at about

4-5 on a pain scale of 0-10. She further stated that the pain is chronic and does not resolve, that

she cannot completely straighten her left knee, that she walks with a limp, and that her left knee


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is always swollen. Claimant indicated that the popping and grinding in her left knee are still

present and that she cannot crawl or squat, but that she can kneel. Claimant stated that she

cannot walk more than one-quarter mile before she has to stop and rest because of the pain in her

left knee. Claimant can stand for 20-30 minutes, but then must sit to rest her knee. Claimant

further stated that she can use stairs, but she walks up and down one step at a time and she leads

with her right leg while she holds onto a railing.

Claimant testified that she used to have several flower gardens in her yard which she

tended to, but since the injury she has eliminated all but one flower garden because it is hard to

kneel and she cannot crouch. Claimant stated that her husband now helps with laundry, and he

does the mopping and vacuuming. She also stated that she is awakened at night from the pain in

her left knee and that she takes over-the-counter medication every day for her pain.

Claimant testified that she continues to perform her job tasks at work. She indicated that

she no longer gets up from her chair to assist students, but she can handle packages and other

items at work that weigh less than 20 pounds.

On cross-examination by Employer, Claimant admitted that she last saw a doctor for

treatment to her left knee in January 2015, Dr. Leslie. She further admitted that she last filled her

prescription for Hydrocodone in May 2014 for 30 pills.

Claimant further admitted that she agreed with the content of her treatment records and

that on June 3, 2014, she reported that her left knee felt “full” inside. She admitted that she does

drive a motor vehicle without applying for a handicap sticker. Claimant further admitted that she

stopped using a cane for assistance in spring 2015. Claimant also admitted that her left knee

might be better at the date of hearing than when she was examined by Dr. Volarich, but that she

has pain every day in her left knee.


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Dr. Christopher Leslie testified on behalf of Claimant. Dr. Leslie testified that he is a

board certified orthopedic surgeon. He testified that he was Claimant’s authorized treating

physician from the time of the accident of September 19, 2013, until January 2015. He testified

extensively concerning the treatment administered to Claimant, including, but not limited to, four

surgeries performed on Claimant’s left knee.

Dr. Leslie testified that during the summer of 2014 he saw Claimant for treatment with

complaints of ongoing pain and swelling of the left knee. Dr. Leslie indicated that he diagnosed

Claimant at that time with traumatic osteoarthritis and a torn medial meniscus. After reviewing a

new MRI, Dr. Leslie recommended a fourth surgery, which was performed on December 1, 2014,

to “clean up” the arthritis and to explore the torn meniscus.

Dr. Leslie testified that on follow-up in January 2015 he found ongoing medial joint pain

with grinding and swelling. He diagnosed Claimant with traumatic arthritis and recommended

Orthovisc injections. He further testified that after his treatment of January 13, 2015, he noted

that Claimant’s post traumatic arthritis would continue to progress toward end-stage joint failure

of the left knee, which would eventually end with knee replacement.

Dr. Leslie rated Claimant’s permanent disability at 10% of the knee.

On cross-examination by Employer, Dr. Leslie admitted that on June 3, 2014, treatment

date, his notes indicated no swelling, effusion and full range of motion. He further admitted that

he did not have any pain complaints from Claimant during July and August 2014, but that by

September 9, 2014, treatment date, there were complaints of medial joint pain and patellar

femoral joint pain.

Dr. Leslie admitted that meniscal tears were not unusual following an injury like

Claimant experienced. He further admitted that knee replacement was not that unusual following


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a patellar fracture. Dr. Leslie admitted that he observed Claimant limping after the surgeries

which he performed. He also admitted that the rate of progression of traumatic arthritis varies by

patient.

Dr. Leslie admitted that there was a difference in meniscal tears caused by trauma as

opposed to arthritic. He indicated that meniscal tears caused by trauma involve the inside of the

meniscus where arthritic tears involve the outside edge of the meniscus.

Dr. David Volarich testified on behalf of Claimant by deposition. Dr. Volarich testified

that he performed an independent medical evaluation of the Claimant and authored a report of his

findings and opinions dated July 14, 2014. He testified that he took a history of the Claimant,

reviewed certain medical records, and performed a physical examination of the Claimant.

Dr. Volarich diagnosed Claimant with left patellar fracture, with open reduction and

internal fixation, hardware removal, accelerated post-traumatic arthropathy patellofemoral joint

and internal derangement of the left knee as a result of medial meniscal tear and full thickness

chondral injury to the patella. Dr. Volarich found that Claimant has achieved maximum medical

improvement and rated Claimant at 50% permanent partial disability to the left knee.

Dr. Volarich opined that Claimant would benefit from ongoing treatment in the form of

medications and physical therapy. He also indicated that Claimant’s resultant accelerated post-

traumatic arthritis in the left knee would require future medical treatment including left total knee

joint replacement.

On cross-examination by Employer, Dr. Volarich admitted that the factors leading to his

diagnosis of post traumatic arthritis was the mechanism of the injury, the fracture of the patella,

and damage to the surfaces of the bone on both components of the patella femoral joint. He

further admitted that once this process starts, it continues to break down. He further admitted


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that his opinion that the arthritis was brought on by a traumatic event based on no pre-existing

arthritic changes identified in the medical records, which he reviewed, other than the natural

presence of low grade arthritis in most people over 50 years of age and mostly asymptomatic.

Dr. Volarich admitted that the history of the Claimant of having no problem with the left

knee prior to the injury and the fact that the event was a direct blow to the joint, causing damage

to the articular surface supported his opinions for permanent disability. Dr. Volarich admitted

that his rating of 50% of the left knee was based on significant ongoing problems of the

Claimant, including the patellar fracture with hardware, which had to be removed, condro injury

to the patellofemoral joint, and accelerated post traumatic changes on the articular surfaces with

two additional surgeries.

Dr. Volarich admitted that if Claimant receives the Orthovisc injections recommended

that it will not eliminate the need for total knee replacement, but it will slow down the

progression of the condition to extend the time before a replacement is necessary.

Dr. Nathan Mall testified on behalf of Employer by deposition. Dr. Mall testified that he

performed an independent medical evaluation of the Claimant and authored a written report of

his findings and opinions dated March 3, 2016. Dr. Mall took a history of the Claimant,

reviewed certain records, and performed a physical exam of the Claimant.

Dr. Mall testified that after reviewing the medical records submitted to him and the

examination of the Claimant he found that Claimant’s first two surgeries were reasonable and

necessary to cure and relieve the Claimant of the effects of her injuries. He found that the third

surgery was “questionable” as to the need for surgery as a result of the Claimant’s injury. He

further found that the fourth surgery was not related to Claimant’s work injury.


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Dr. Mall rated the Claimant’s permanent disability at 10% of the knee. He opined that

Claimant’s arthritis in the knee was pre-existing and not caused by the injury of September 19,

2013. Dr. Mall testified that his justification for his opinions as to Claimant’s arthritis being not

work-related was that most individuals, and particularly women in Claimant’s age group, have

arthritis in the knees, notwithstanding the fact that the condition may be asymptomatic prior to an

event such as the fall which Claimant suffered. He further testified that, in his opinion, he did

not feel that Claimant’s increase from grade one to grade three following the accident was caused

by the accident, but that it was a natural progression of the Claimant’s arthritis condition.

On cross-examination by the Claimant, Dr. Mall admitted that he could not state within a

reasonable degree of medical certainty what grade of arthritis Claimant had in the patellar

femoral compartment prior to September 19, 2013, without having an MRI to refer to. Dr. Mall

admitted that the transverse fracture of Claimant’s patella caused a separation of the patella and

that the separation was caused by the forces of the quadriceps muscle firing at the time of the

injury.

Dr. Mall admitted that 90 percent of the females in Claimant’s age group have grade three

chondromalacia. He further admitted that in his opinion, Claimant had a trochlear cartilage

defect prior to fracturing her patella. He also admitted that, in his opinion, the cartilage breaking

away, found in the third surgery, was caused by the arthritis condition rather than a traumatic

injury. Dr. Mall admitted that his opinion concerning Claimant’s arthritis condition and the

work-related injury is based on his finding that he sees “patients all the time with knee arthritis

that had no symptoms beforehand and did not have a traumatic accident.” And that that is more

common than people coming in after a traumatic accident having acceleration or an aggravation

of their osteo arthritis.


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FINDINGS OF FACT AND RULINGS OF LAW

Whether the Claimant has sustained injuries that will require future medical care in order

to cure and relieve the Claimant of the effects of the injuries?

The parties stipulated that Claimant suffered a compensable accident and that the accident

caused the injuries and disabilities for which benefits are now being claimed. There is a dispute

as to whether there is a reasonable probability that Claimant will need additional treatment in the

future to cure and relieve the effects of her injury of September 19, 2013.

Claimant testified that she continues to experience pain in her left knee as a result of the

injury of September 19, 2013. The treating physician, Dr. Leslie, testified that Claimant would

need ongoing medical treatment to cure and relieve the effects of the work-related accident.

Dr. Leslie recommended injections and testified Claimant may ultimately need a complete knee

replacement. Dr. Volarich also testified that the Claimant would need ongoing medical

treatment to cure and relieve the effects of her work-related accident. Dr. Volarich also

recommended injections and testified that the Claimant may ultimately need a complete knee

replacement. Both Dr. Leslie and Dr. Volarich testified the work-related accident was the

prevailing factor in causing Claimant’s need for ongoing medical treatment, including the need

for a knee replacement.

Dr. Mall agreed Claimant requires ongoing medical treatment and may eventually need a

knee replacement. He testified that the work-related accident was not the prevailing factor in

causing the need for the ongoing treatment.


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The Supreme Court has indicated that the inquiry into the need for medical treatment

should be whether the treatment is reasonably required to cure and relieve the effects of the

injury. Tillotson v. St. Joseph Medical Center 347 S.W.3d 511

In this claim, I find the opinions of Dr. Leslie and Dr. Volarich to be more persuasive

than the opinions of Dr. Mall with regard to whether there is a reasonable probability that

Claimant will need medical care in the future as a result of the injuries of September 19, 2013.

After review of all the evidence adduced at the hearing, both oral and written, and based

on the record as a whole, I find that Claimant has sustained her burden of proof by substantial

and competent evidence that there is a reasonable probability that Claimant will need additional

medical treatment in the future including, but not limited to, the treatment recommended by Dr.

Leslie and Dr. Volarich. I further find that Claimant is entitled to such medical treatment as

may be reasonably necessary to cure and relieve the Claimant of the effects of her injuries

sustained September 19, 2013.

Employer is hereby ordered to provide to Claimant such medical treatment as may be

necessary from time to time in order to cure and relieve the effects of Claimant’s injury of

September 19, 2013.

I find this issue in favor of the Claimant.

The nature and extent of any permanent disabilities.

At the hearing, there was evidence adduced of the ratings from Dr. Leslie, Dr. Volarich

and Dr. Mall. Claimant testified concerning her present condition as well as her limitations.


15

After a review of all the evidence adduced at hearing, both oral and written, and based

on the record as a whole, I find that there is substantial and competent evidence that Claimant

has suffered a 22.5% permanent partial disability at the level of the left knee as a result of her

injuries of September 19, 2013.

The parties stipulated that Claimant’s compensation rate is $407.95. Employer is hereby

ordered to pay to Claimant the sum of $14,686.20, as and for permanent partial disability

benefits (22.5% x 160 weeks = 36 weeks x $407.95 = $14,686.20).

I find this issue in favor of Claimant.

Whether Claimant is entitled to attorney fees and costs pursuant to Section 287.560?

As set out in Section 287.560, the Division has the authority to assess the costs of a

proceeding against a party who unreasonably defends the proceeding. Nolan v. Degussa

Admixtures, Inc., 276 S.W.3d 332, 335 (Mo. App. S.D. 2009). The award of costs and attorney

fees should only be exercised with “great caution and only when the case for costs is clear and

the offense egregious.” Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, 120 (Mo. App. W.D.

2004).

Based on testimony of Claimant and the stipulations of the parties, the Employer has paid

$48,428.02 for past medical benefits and there has been no authorized medical treatment expense

which has not been paid by Employer prior to the date of the hearing. The parties stipulated that

Employer paid all temporary benefits due to the Claimant.

The recommended treatment that the Employer has refused to provide prior to the hearing

is injections recommended by Dr. Leslie, the authorized treating physician. Dr. Leslie opined

that Orthovisc injections may be needed to treat the Claimant’s work injury.


16

After a review of all the evidence adduced at the hearing, both oral and written, and based

on the record as a whole, I find that Claimant has failed to sustain her burden to prove that

Employer has defended this claim on unreasonable grounds. I find that Employer relied on the

opinions of Dr. Mall with regard to whether additional treatment was necessary to cure and

relieve the Claimant of the effects of her injuries, and although I do not find Dr. Mall’s opinions

to be persuasive in this claim, that is not sufficient grounds to find that Employer unreasonably

defended the Claimant’s claim for future medical benefits or permanent partial disability

benefits.

I further find that Employer has not abandoned its right to select the treating physician,

notwithstanding the fact that the authorized treating physician shall recommend and select the

treatment necessary to cure and relieve the effects of the injuries of September 19, 2013.

Claimant has filed a post-hearing motion for costs of Dr. Leslie’s fees for appearing live

at the hearing. I am treating this Motion to Compel Testimony Costs as part and parcel of

Claimant’s claim for attorney fees and costs pursuant to Section 287.560. The Motion to

Compel Testimony Costs is overruled and the issue of attorney fees and costs is found in favor

of Employer.

Claimant’s attorney has requested approval of an attorney fee of 25% of the amount of

any award. Claimant’s attorney’s fee request is hereby approved. Claimant’s attorney is

awarded an attorney fee of 25% of the amount of this award. Claimant’s attorney is hereby

granted a lien on the proceeds of this award unless and until the attorney fee shall have been

paid in full.


17

Made by: __________________________________ David L. Zerrer Administrative Law Judge Division of Workers' Compensation

final award allowing compensation - missouridr. leslie testified that employee’s meniscus tear...

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