Earlene Smith v. APAC Kansas, Inc.

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 15, 2002.
5. State location where accident occurred or occupational disease was contracted: 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: During the course and scope of her employment, claimant was assaulted by an unknown passing motorist.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Left side of face, left ear, head, left shoulder, right knee, left knee and low back.
14. Nature and extent of any permanent disability: Permanently and totally disabled.
15. Compensation paid to-date for temporary disability: $77,611.42.
16. Value necessary medical aid paid to date by employer/insurer? $122,226.49.
17. Value necessary medical aid not furnished by employer/insurer? None.
18. Employee's average weekly wages: 744.63.
19. Weekly compensation rate: 496.44/$340.12.
20. Method wages computation: By agreement.

1. Amount of compensation payable: Permanent total disability benefits from employer shall continue for Claimant’s lifetime.
2. Second Injury Fund liability: None.

TOTAL: Unknown.

Employee: Earlene Smith Injury No: 02-090859 Dependents: N/A Employer: APAC Kansas, Inc. Insurer:Pacific Employer’s Mutual Insurance Company Additional Party: Missouri State Treasurer, as Custodian of Second Injury Fund Hearing Date: February 21, 2006 Checked by: RSM/lh

At the hearing, the parties stipulated:

1) that on or about August 15, 2002, APAC Kansas, Inc., was an employer operating under the provisions of the Missouri workers' compensation law and that their liability under said law was fully insured by Pacific Employer’s Mutual;

2) that on or about August 15, 2002, Earlene Smith was an employee of APAC Kansas, Inc., and was working under the provisions of the Missouri workers' compensation law;

3) that on or about August 15, 2002, Earlene Smith sustained an injury by accident arising out of and in the course of her employment;

4) that the employer had notice of the injury and that a claim for compensation was filed within the time prescribed by law;

5) that Claimant’s average weekly wage was 744.63 and that the applicable compensation rate is 496.44/$340.12 per week;

6) that the employer has paid temporary disability benefits up to the present in a total amount of $77,611.42, and that no additional claim for temporary total disability benefits was being made by the employee, and that the temporary benefits that were paid were properly paid;

7) that medical aid had been furnished by the employer in the amount of $122,226.49, that this amount was for reasonable and necessary treatment, and that the employee was making no

claim for unpaid medical bills;

8) that the employer is responsible for ongoing medical treatment for the lifetime of the employee with reference to the Claimant's right knee, left shoulder, left side of her face, and left ear so long as the treatment is related to the August 15, 2002 injury.

The issues in the case are as follows:

1) the nature and extent of permanent disability resulting from the August 15, 2002 accident;

2) the liability of the Second Injury Fund under §287.220 RSMo. 2000; and

3) the liability for future medical aid with regard to the Claimant's left knee.

At the hearing the Claimant and her son offered the only live testimony. Numerous medical records, reports and depositions were admitted into evidence by both the Employee and the Employer. Claimant alleges she is permanently and totally disabled under the Missouri workers' compensation law and therefore is entitled to lifetime benefits. She is also requesting that medical remain open for her lifetime and that the Employer provide ongoing medical treatment to her for any and all injuries she sustained as a result of the accident. The Employer admits liability for future medical treatment on all conditions complained of by the Claimant referable to the August injury except for the Claimant's left knee. Claimant alleges she sustained injury to her left knee as a result of her altered gait due to her right knee injury, and needs treatment for her left knee.

There is no dispute that the Claimant sustained a significant injury, which arose out of and in the course of her employment with APAC on August 15, 2002. On that date, the Claimant was working as a flagger on a paving construction site. She tried to direct an individual driving a car to avoid freshly laid asphalt. The driver went ahead and went across the asphalt and came back about 15 minutes later. He sat and waited for a while in his car and eventually got out of his car and as he approached her kicked off his shoes. The Claimant had turned her head to see where her coworkers were to see if anyone would be there to help her. The driver assaulted her by hitting her with the base of his hand on the left temporal area of the Claimant's head. The Claimant was knocked unconscious. The Claimant twisted her right knee as she fell to the ground. She also injured her left shoulder. She was taken to the emergency room at Liberty Hospital.

At Liberty Hospital the Claimant was assessed as having a closed-head injury and a right medial tibial plateau fracture. She was diagnostically evaluated with multiple x-rays, including x-rays of the right knee, which revealed degenerative changes and joint space narrowing, x-rays of the left shoulder, which revealed evidence of degenerative changes with no acute fractures or dislocations. The Claimant was seen in follow-up on August $19^{\text {th }}$ by Dr. George. He treated the Claimant's right knee with a cylinder cast. On October $1^{\text {st }}$, Dr. George noted problems with impingement in the left shoulder. At that time he gave the Claimant a subacromial steroid injection. Multiple cast changes to the Claimant's right knee were performed and on November $5^{\text {th }}, 2002$, repeat x-rays revealed callous formation at the tibial plateau. She was instructed on a partial weight-bearing status. On December $3^{\text {rd }}$, the Claimant was using a brace and remained partial weight-bearing status. Dr. George prescribed a course of physical therapy at this time. The physical therapy notes on January 2, 2003, at HealthSouth Physical Therapy state the following: "Increase in edema noted left medial knee possibly secondary increase in function due to pain with right knee, lower extremity, in weight bearing." Claimant apparently complained of left knee problems to the physical therapist in early January of 2003. Claimant testified at the hearing that she complained both to Dr. George and to the physical therapist regarding her left knee pain, but Dr. George's records have no indication of any left knee complaints by the Claimant. This physical therapy record, however, of January 2, 2003, does demonstrate the Claimant was having left knee problems as early as January of 2003.

In February of 2003, Dr. George saw the Claimant again and noted that she was unable to do the standing requirements of work. He recommended an MRI scan of the right knee at that time. The MRI scan of the right knee performed on February 19, 2003, revealed a small effusion. There were changes of the posterior horn of the medial and lateral meniscus consistent with the tear. Following this diagnostic study, Dr. George reevaluated the Claimant and noted that she had significant arthritic changes in all three compartments with the most significant findings in the lateral compartment. He recommended proceeding with an arthroscopic exam. Dr. George commented in a letter

dated July 17, 2003, that the Claimant had not undergone an MRI scan at the time of her August 2002 injury. He stated that while the Claimant most likely had pre-existing degenerative changes of the meniscus, that the mechanism of the injury to the tibial plateau could very well have resulted in a tear through the degenerative meniscus.

Throughout the course of her treatment, the Claimant was evaluated by Dr. Koprivica. The first time being January 3, 2003, Dr. Koprivica commented in the subjective complaints section numerous notations of problems the Claimant now had with the right knee that she did not have before the accident. He also noted that the Claimant was complaining of pain and swelling in the left medial knee, which the patient associated with favoring the right lower extremity because o