Cathryne Reid v. Security Armoured Car Services, Inc.

(Modifying Award and Decision of Administrative Law Judge by Separate Opinion)

Injury No.: 00-085402

Employee: Cathryne Reid

Employer: Security Armoured Car Services, Inc.

Insurer: Reliance Insurance Co.

c/o MO Property \& Casualty Insurance Guaranty Assn.

Date of Accident: July 31, 2000

Place and County of Accident: St. Louis, Missouri

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. We have reviewed the evidence and briefs, and we have considered the whole record. Pursuant to section 286.090 RSMo, we issue this final award and decision modifying the March 31, 2005 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.

Dr. Kleier's last name was misspelled "Klier" throughout the award and decision of the administrative law judge. For clarity, we note that all references to "Dr. Klier" refer to E.B. Kleier, Jr., M.D.

The administrative law judge identifies the date of injury of August 31, 2000 (introductory paragraph). The date of injury, as stipulated by the parties, is July 31, 2000.

The administrative law judge found that employee first treated with Dr. Kleier for her injury on August 1, 2005 (finding 6). Employee's testimony and the medical records of Dr. Kleier confirm that employee first treated with Dr. Kleier on the date of the injury, July 31, 2000.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued March 31, 2005, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $\underline{14^{\text {th }}}$ day of September 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I respectfully dissent from the Commission majority's decision to deny employee workers' compensation benefits for her knee injuries. I believe employee has met her burden of proving the knee injuries are compensable.

The claimant has the burden of proving all the essential elements of the claim and must establish a causal connection between the accident and the injury. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195, 198 (Mo.App. E.D.1990). The claimant does not, however, have to establish the elements of his case on the basis of absolute certainty. Id. It is sufficient if he shows them by reasonable probability. Id. "Probability means founded on reason and experience which inclines the mind to believe but leaves room for doubt." Id. at 198-99; Ellis v. Western Elec. Co., 664 S.W.2d 639 (Mo.App.1984).

Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo. App. 1996).

"[A]ll doubts should be resolved in favor of the employee and in favor of coverage, but a claim will not be validated where some essential element is lacking." Id. at 223.

"[A]n injury is compensable when it is an unexpected result of the performance of the usual and customary duties of an employee which leads to physical breakdown or a change in pathology. Wolfgeher, 646 S.W.2d at 784; See also § 287.020.3." Smith v. Climate Engineering, 939 S.W.2d 429, 436 (Mo. App. 1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003) (citing Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo.banc 1983)).

It has long been the rule in Missouri that an inherent weakness or bodily defect, such as degenerative joint disease, occurring in conjunction with an abnormal strain will support a claim for compensation. See Johnson v. General Motors Assembly Division G.M.C., 605 S.W.2d 511, 513 (Mo. App. 1980). (citations omitted) (overturned on other grounds). To prove a compensable injury, employee must prove she experienced a change in pathology as a result of the fall. "The worsening of a preexisting condition, i.e., an increase in the severity of the condition, or an intensification or aggravation thereof, is a 'change in pathology.'" Winsor v. Lee Johnson Constr. Co., 950 S.W.2d 504, 509 (Mo. App. 1997), citing Rector v. City of Springfield, 820 S.W.2d 639, 643 (Mo. App. 1991).

Employee testified credibly that she had no knee complaints before the fall. Employee testified credibly that she suffered right knee and right calf complaints within two weeks of the fall, which complaints she reported to Dr. Kleier. The right calf complaint appears in Dr. Kleier's records while the knee complaint does not.

Employee produced the expert medical testimony of Dr. Levy, offered within a reasonable degree of medical certainty, that employee's fall on July 31, 2000, was a substantial factor in causing her right knee condition. This opinion was supported by the reports of Dr. Volarich and Dr. Berkin. Dr. Levy credibly explained that chondromalacia generally develops after a trauma such as the one claimant suffered. Dr. Levy testified that employee's left knee condition was caused by employee favoring her right knee after the right knee became symptomatic. Again, this opinion was supported by the reports of Dr. Volarich and Dr. Berlin, who both attribute the left knee problems to abnormal weight-bearing. Employer/insurer produced no expert testimony to refute Dr. Levy's opinion. Employer/insurer produced no expert testimony at all.

The Commission may not substitute an administrative law judge's personal opinion on the question of medical causation for the uncontradicted testimony of a qualified medical expert. See Wright v. Sports Associated, 887 S.W.2d 596, 600 (Mo. banc 1994). That is exactly what the Commission has done in this case by disregarding the uncontradicted opinion of Dr. Levy, which is bolstered by other medical reports, in favor of the administrative law judge's opinion.

The administrative law judge seems unduly persuaded by the absence of knee complaints in the medical records of Dr. Kleier during the brief period from July 31, 2000, through September 29, 2000. The Commission is not bound to accept as true matters asserted in medical records.

The Missouri Supreme Court has noted that entries in medical records should not be considered to be conclusive evidence. Baugh v. Life \& Casualty Ins. Co. of Tennessee, 307 S.W.2d 660, 665 (Mo.1957). Rather, the Baugh court held the evidentiary value of medical records is to be weighed by the finder of fact, along with the other facts and circumstances, who may either believe or disbelieve the facts disclosed in the medical records. Id.

Schneider v. Ashburn/Schneider Painting, 849 S.W.2d 271, 274 (Mo. App. 1993). Certainly, then, the Commission is not bound to conclude the non-existence of matters simply because they are not referred to in the medical records. The other facts and circumstances in this case, specifically employee's credible testimony that she informed Dr. Kleier of her knee complaints on August 10, 2000, at the same time she reported her calf pain, convinces me that Dr. Kleier's records do not accurately and completely reflect the history employee provided to him.

I must comment on the deposition of Dr. Levy, which has come to the Commission for review with permanent marks throughout. (Claimant's Exhibit Q.) I reiterate my previously expressed opinion that the addition of any permanent markings or annotations to documents, records, or depositions after their entry in the official record is completely inappropriate. If this case is appealed to the Missouri Court of Appeals or the Missouri Supreme Court, I want the appellate judges to know that the markings were not made by any member of this Commission.

John J. Hickey, Member

Employee: Cathryne Reid

Injury No.: 00-085402

Dependents: N/A

Before the

Employer: Security Armored Car

Division of Workers'

Additional Party:

Compensation

Department of Labor and Industrial

N/A Relations of Missouri

Jefferson City, Missouri

Insurer: Reliance Insurance Co. c/o MO Property \&

Casualty Insurance Guaranty Assn.

Hearing Date:February 17, 2005

Checked by: JED:tr

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 31, 2000
5. State location where accident occurred or occupational disease was contracted: St. Louis, Mo.
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 in employer's coin room when she tripped and fell.
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: Right ankle
2. Nature and extent of any permanent disability: 2.5\% PPD of right ankle
3. Compensation paid to-date for temporary disability: -0-
4. Value necessary medical aid paid to date by employer/insurer? \$999.59

Employee: Cathryne Reid Injury No.: 00-085402

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 408.49
3. Weekly compensation rate: $\$ 272.33 / \ 272.33
4. Method wages computation:

COMPENSATION PAYABLE

21.Amount of compensation payable:

3.875 weeks of permanent partial disability from Employer $\ 1,055.28

1. Second Injury Fund liability: No

TOTAL: $\quad \ 1,055.28

1. Future requirements awarded: None

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:

Clement Burns

Employee: Cathryne Reid

Injury No.: 00-085402

Dependents: N/A

Employer: Security Armored Car

Additional Party: N/A

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Reliance Insurance Co. c/o MO Property \& Checked by: JED:tr

Casualty Insurance Guaranty Assn.

This case involves an ankle sprain, with subsequent disputed bilateral knee conditions, resulting to Claimant with the reported accident date of August 31, 2000. Employer admits Claimant was employed on said date and that any liability was fully insured. The Second Injury Fund ("SIF") is not a party to this claim. Both parties are represented by counsel. Claimant proceeds pursuant to Hardship Petition.

1. medical causation, attribution and maximum medical improvement;
2. liability for unpaid medical expenses;
3. nature and extent of unpaid temporary total disability benefits;
4. nature and extent of permanent partial disability;

1. The applicable compensation rates are $\ 272.33 for both TTD and PPD benefits.
2. The parties stipulated that Employer paid $\ 999.59 in medical benefits and no TTD benefits.
3. Claimant was an employee of Employer on the reported accident date.
4. Claimant performed duties as a vault cashier counting money including heavy amounts of coin moved about on pallet jacks and skids.
5. Claimant reported falling