Johnnie Saunders v. Model Cities Health Corporation

The instant appeal does not present a novel issue to the Commission. The issue is: which party presented the more credible, believable and trustworthy factual evidence?

The ultimate determination of credibility of witnesses rests with the Commission; however, the Commission should take into consideration the credibility determinations made by an administrative law judge. When reviewing an award entered by an administrative law judge the Commission is not bound to yield to his or her findings including those relating to credibility, and is authorized to reach its own conclusions. An administrative law judge is no more qualified than the Commission to weigh expert credibility from a transcript or deposition. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo. App. 2004).

It is the employee's burden to prove the nature and extent of his disability to a reasonable certainty. Davis v. Bresner, 380 S.W.2d 523 (Mo. App. 1964); Matzker v. St. Joseph Minerals, 740 S.W.2d 362 (Mo. App. 1987). The determination of a specific amount or percentage of disability to be awarded an injured employee is a finding of fact within the unique province of the Commission. Landers v. Chrysler, 963 S.W.2d 275 (Mo. App. 1998). In making this determination, the Commission can consider all of the evidence in the record and draw all reasonable inferences from that evidence. Id. The Commission is not bound by the percentage estimates of the medical experts and is free to assess a disability either higher or lower than that expressed in the medical or vocational testimony. Id.

Pursuant to section 287.140 RSMo, an employer is required to furnish such medical treatment as is necessary to cure and relieve the employee from the effects of a work related injury. It is the employee's burden to prove that he is entitled to receive compensation for past medical expenses or future medical care. Sams v. Hayes Adhesive, 216 S.W.2d 815 (Mo. App. 1953). For past medical expenses to be awarded, such medical care and treatment must flow from a work related accident. Modlin v. Sunmark, 699 S.W.2d 5 (Mo. App. 1985). The medical expenses for which reimbursement is sought must be reasonable and necessary to treat a work related injury. Jones v. Jefferson City School District, 801 S.W.2d 486 (Mo. App. 1990). For future medical care to be awarded, the medical care must, of necessity, flow from the accident, via evidence of a medical causal connection between the compensable accident and the medical condition for which treatment is sought. Bock v. Broadway Ford, 55 S.W.3d 427 (Mo. App. 2001).

Pursuant to section 287.170 RSMo, compensation must be paid to an injured employee during the continuance of temporary total disability. The burden of proving entitlement to temporary total disability lies with employee. Boyles v. USA Rebar Placement, 26 S.W.3d 418 (Mo. App. 2000).

Temporary disability awards provided by workers' compensation law sections 287.170 RSMo and 287.180 RSMo, are not designed as unemployment compensation. Williams v. Pillsbury Company, 694 S.W.2d 488 (Mo. App. 1985).

Temporary total disability payments are intended to cover healing periods and are unwarranted beyond point at which employee is capable of returning to work. Temporary total disability awards are not intended to compensate employee after the condition has reached a point where further progress is not expected. Brookman v. Henry Transportation, 924 S.W.2d 286 (Mo. App. 1996). The act contemplates that temporary total disability is to be paid prior to the time when the employee can return to work, his condition stabilizes, or his condition has reached a point of maximum medical progress. Schuster v. Division of Employment Security, 972 S.W.2d 377 (Mo. App. 1998).

An injury is only compensable if it is clearly work related. Cahall v. Cahall, 963 S.W.2d 368 (Mo. App. 1998). An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition. Section 287.020.2 RSMo. Employee must show a causal connection between the injury complained of and the job or accident. Williams v. DePaul Health Center, 996 S.W.2d 619 (Mo. App. 1999).

III. Summary of Facts

At the outset, the Commission notes the facts were recounted in the award issued by the administrative law judge and will not be repeated by the Commission except when special emphasis necessitates.

In summary fashion, employee testified as follows: date of birth February 2, 1937; she has been a nurse since 1958; and she described an injury due to an accident occurring at work on February 2, 2002.

Prior to the accident occurring February 2, 2002, employee denied the existence of any physical limitation concerning her knees; denied any prior difficultly walking because of pain or swelling in her knees; denied any prior swelling in her knees; denied ever experiencing any back pain; denied any prior problems concerning stiffness or limitations in her low back; denied any prior problems concerning her neck; denied any prior problems concerning headaches; and denied experiencing any ear problems, hearing loss problems or any ringing in her ears.

Employee described the injury/accident occurring in the following fashion: she was sitting on a stool with rollers taking vital signs of a child; a stethoscope was in her ears; the child pulled the stethoscope forward, in turn, pulling employee forward; and when employee went forward the stool flipped over and employee landed on the floor. Employee testified that her knees struck the floor and her head struck a metal door facing.

Employee testified that Dr. Golfinopolous, employed by the employer, came to her aide and checked her vital signs; her only complaint of pain was her right knee. After checking employee's vital signs, Dr. Golfinopolous prescribed pain medication, Vioxx. Employee continued working the remainder of her shift, and continued her employment with employer through October 17, 2002. Employee has not attempted to work since October 17, 2002.

Post-accident, employee's medical treatment and medical evaluations, for the most part, chronologically transpired as follows: Dr. Mertz; Dr. LaPietra; Dr. Bonar; Baptist Lutheran Medical Center; Dr. Frevert; Dr. Zarr; Dr. Zipper; Dr. Weed; Dr. Chaplick; Dr. Luallin; Dr. Zimmerman; and Dr. Hood.

On February 6, 2002, employee consulted Janet S. Mertz, M.D., an otolaryngologist. Employee's history and complaints were as follows: fell and hit head Saturday; occipital area; saw stars; did not lose consciousness; now aware of some ringing in ears but also acknowledged she had ringing in her ears in the past. Dr. Mertz administered an audiogram, which showed employee's hearing to be within normal limits with good symmetry. There was a slight high tone loss that could cause tinnitus. The diagnosis of Dr. Mertz was tinnitus and recent head trauma without loss of consciousness. Employee did not register any additional complaints to Dr. Mertz.

Employee presented to Dr. Mertz due to the fact she was experiencing headaches and ringing in her ears. On direct examination employee testified that she had experienced ringing in her ears a long time ago when she had an infection.

The medical records of Dr. Latkovich/Dr. LaPietra, dated January 23, 2002, indicate the following: she (employee) presents today with very unusual feelings in her head and her ears; she (employee) has a feeling that her ears are closer together than they were before, and she (employee) has a mild decrease in hearing in her left ear; this is all relatively recently; and she (employee) complains of some mild ringing in her ears and no other symptoms. The assessment of Dr. Latkovich was decreased hearing, ringing in ears and a referral to an ENT for evaluation. Also, Dr. Latkovich desired employee to follow-up with Dr. LaPietra after her evaluation by an otolaryngologist.

When employee presented to Dr. Mertz on February 6, 2002, the intake sheet indicates that the office of Dr. LaPietra referred employee to Dr. Mertz.

The medical records of Dr. Mertz dated November 4, 1997, reveal that employee consulted Dr. Mertz on that date.

Her complaints given Dr. Mertz consisted of earaches and ringing in both ears. The assessment of Dr. Mertz was ringing in the ears possibly due to a high frequency hearing loss. Since February 6, 2002, employee has had little if any medical professional follow-up for these type complaints.

On April 9, 2002, employee followed up with her primary care physician, Dr. LaPietra. Employee registered right knee complaints only with Dr. LaPietra at this visit. Employee did not register any complaints concerning ringing in her ears, low back complaints, cervical spine complaints, right heel complaints, left knee complaints, or headaches. Dr. LaPietra assessed possible internal derangement of the right knee, and referred employee to Rockhill Orthopaedics for an evaluation and orthopedic recommendations.

Employee presented to Dr. Bonar on April 19, 2002; Dr. Bonar's assessment was right knee pain after falling; and Dr. Bonar recommended the scheduling of an MRI of the right knee and after reviewing the results to make further recommendations.

The intake sheet/past medical history sheet of Dr. Bonar dated April 19, 2002, indicated that employee had sustained a work related injury on February 2, 2002; and the reason for her visit was bilateral knee pain. The only problem employee indicated with her ears, nose and throat was a history of nosebleed. She denied any problems with her balance and did not indicate any problems with ringing in her ears. Employee denied any other medical illnesses and did not register any complaints concerning her low back, cervical spine, right heel, or headaches.

Employee presented to Baptist Lutheran Medical Center Emergency Room on August 28, 2002. Employee's history and presentation was a recent injury due to a fall, resulting in swelling of her right knee. Subsequent to examination and evaluation of employee, the clinical impression of the emergency room physician was possible internal derangement of the right knee and recommended follow-up with Rockhill Orthopaedics. During this emergency room visit employee did not register any complaints concerning headaches, ringing in her ears, left knee complaints, low back complaints, cervical spine complaints, or right heel complaints.

Employee followed-up with Dr. Frevert on August 29, 2002, at Rockhill Orthopaedics. Dr. Frevert's past medical history sheet dated August 29, 2002, indicates the following: a work related injury concerning the right knee occurring February 2, 2002; a denial of any other medical illnesses; and no complaints concerning headaches, ringing in the ears, left knee, low back, cervical spine or right heel. The impression of Dr. Frevert was probable meniscal tear of the right knee: Dr. Frevert scheduled an MRI scan, and upon review, options would be considered.

Subsequently, Dr. Frevert performed arthroscopic surgery on October 18, 2002, consisting of a partial medial and lateral meniscectomy, chondroplasty and partial synovectomy of employee's right knee. Post-operatively employee underwent physical therapy, while still following up with Dr. Frevert.

During employee's post-operative recovery from her initial right knee surgery, employee's first documentation of neck pain occurred January 18, 2003, and initial documentation of low back pain occurred February 3, 2003.

Due to these complaints, employer authorized consultation and treatment with Dr. Zarr. Employee presented to Dr. Zarr initially on February 27, 2003; in addition to right knee problems, the impression of Dr. Zarr was myofascial neck and low back pain; Dr. Zarr stated employee's mild myofascial neck and low back pain were minor problems when compared to the right knee condition. Dr. Zarr was of the opinion that it does seem reasonable that employee could have suffered injury in her work related fall that would causally relate her neck and low back pain to the injury occurring February 2, 2002, and he felt a short course of therapy would be adequate for treating these problems. Physical therapy was prescribed three times a week for three weeks consisting of hot packs, massage modalities, and stretching exercises.

As to employee's post-operative follow-up concerning her right knee, due to her lingering complaints, Dr. Frevert scheduled another MRI scan of the right knee which was conducted February 3, 2003; upon review of the results Dr. Frevert indicated that employee may possibly need additional right knee surgery.

A second opinion was obtained from Dr. Zipper on March 13, 2003; Dr. Zipper opined that he did not believe a second arthroscopy of the right knee would alleviate employee's symptoms due to her condition of symptomatic

arthritis.

Another opinion was obtained from Dr. Weed May 2, 2003. Dr. Weed noted that employee's right knee showed minimal degenerative changes, if any at all. Dr. Weed advised her to return to work the following Monday; employee did not return to work as employee testified that she was unable to perform her job duties as she could not walk. Employee presented again to Dr. Weed on June 6, 2003; Dr. Weed noted employee's treatment with Dr. Zarr for her neck and back complaints, and he also noted that employee indicated to him that she was incapable of working because of instability in the right knee. Dr. Weed did not feel that a second arthroscopy would benefit employee; he stated that employee previously underwent an arthroscopy and employee related she worsened post-surgery.

Subsequently, employee continued to treat on her own with Dr. Frevert, who performed a second arthroscopy of her right knee on August 19, 2003; and subsequent to that treatment, employee went to another orthopedist, Dr. Luallin, who had employee undergo a third arthroscopy on December 9, 2004.

Employee, on her own, also sought pain management under the auspices of Dr. Chaplick, for her low back complaints, who administered three lumbar epidural steroid injections in the year of 2003.

Employee eventually obtained evaluations of disability, treatment, etc., from Dr. Zimmerman and Dr. Hood. Employee requested the examination and evaluation of Dr. Zimmerman and employer scheduled the evaluation and examination with Dr. Hood.

Employee denied prior knee complaints or knee problems but several treating medical records indicate that employee did have knee complaints and problems pre-existing the accident occurring February 2, 2002. Employee also experienced problems concerning her spine prior to February 2, 2002, even undergoing an MRI of her lumbar spine in June, 2000, indicating the existence of lumbar herniated disc, and degenerative disc disease. Employee was diagnosed on June 29, 2000, with right lower extremity weakness and numbness, lumbar spondylosis and degenerative disc disease with multi level facet arthropathy.

Dr. Weed initially treated employee May 2, 2003. Dr. Weed noted the treatment provided by Dr. Zarr concerning employee's head and neck, and that her complaints had completely resolved. Dr. Weed noted her biggest problem presently was her right knee; Dr. Weed noted that he was not sure how her right knee could be worse presently but that was her statement; Dr. Weed was not sure he could make her right knee any better; in fact a second arthroscopy could make her right knee worse; and Dr. Weed was of the opinion to give her right knee a month before any surgery should be considered.

Employee followed up with Dr. Weed on June 6, 2003. After this evaluation Dr. Weed did not feel that another arthroscopy would benefit employee; due to her inconsistent statements given Dr. Weed, he felt that her complaints did not make any sense; Dr. Weed was of the opinion that employee had reached maximum medical improvement concerning her right knee; Dr. Weed stated the following:

"Obviously this patient's story changes frequently and it solidifies my opinion that there is nothing further that I can do as far as her knee is concerned. If left up to me I would say that she is at MMI today. I will state that she is at MMI. I would put her at restrictions of limited walking and limited stairs and I will see her back as needed."

On July 7, 2003, Dr. Weed rendered the following rating: using the AMA guides, Fifth Edition, Dr. Weed rated the impairment at 7 % body as a whole.

Commission makes its own findings of credibility, and in so doing, modifies the award issued by the administrative law judge. The employee has failed to convince the Commission that on account of her injury sustained February 2, 2002, there was a medical causal relationship between the accident and many of her complained of conditions, i.e., headaches, tinnitus, low back complaints, cervical spine complaints, right Achilles tendon complaints, and left knee complaints. The Commission also is convinced that employee's need for a total right knee replacement is not medically causally related and was not substantially caused by the accident occurring February 2, 2002. Furthermore, the Commission is of the opinion that employee is not in need of any additional future medical care and treatment to cure and relieve employee from the effects of this injury.

Based on the above, the employee is not permanently totally disabled and the finding made by the administrative law judge is reversed; the employer is not liable for any additional temporary total disability benefits and the determination that the employer was responsible for additional temporary total disability between June 9, 2003, through March 10, 2005, is reversed; the employer is not liable for any additional unpaid medical expenses and the amount awarded of $\ 49,599.60 for unpaid medical expenses by the administrative law judge is reversed; and the finding by the administrative law judge that the employer is responsible for future medical care and treatment necessary to cure and relieve employee from the effects of her injury is reversed.

Section 287.020.2 RSMo states in part:

". . . an injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor."

Section 287.020.3 RSMo states as follows:

"(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;"

In the instant claim, employee alleges multiple body parts were injured on account of her accident. As the Workers' Compensation Act requires, and as interpreted by our Missouri courts, an injury is only compensable if it is clearly work related; an injury is clearly work related if work was a substantial factor in the cause of the complained of and/or resulting medical condition; and employee has the burden of proof to establish a medical causal relationship between the complained of injury and/or injuries and the accident.

The Commission concludes that the only medical condition complained of by employee medically causally related to her work accident, and which was clearly work related, was employee's injury to her right knee. The Commission cannot conclude based on the credible evidence presented, that employee's additional complained of conditions were clearly work related, or that the accident and injury was a substantial factor in the cause of the complained of resulting medical conditions.

The Commission finds the most credible, trustworthy and believable evidence presented as to these issues was the evidence presented by the employer, i.e., the treating medical records, along with the medical opinions of Dr. Weed, Dr. Zipper and Dr. Hood.

The Commission finds the testimony of employee lacking in credibility as to her medical condition or state of health both prior to her accident and subsequent to her accident. Her trial testimony as to her medical condition belies credulity when compared and contrasted with the histories and complaints contained in the prior treating medical records as well as the contemporaneous and post-accident treating medical records. The Commission does not find her testimony persuasive.

Likewise, the testimony of Dr. Zimmerman lacks credibility and is not persuasive or convincing. Dr. Zimmerman's lack of awareness and review of prior treating records, as well as contemporaneous and post-accident treating records, renders his testimony superficial in nature, with a lack of depth and understanding, consequently resulting in mere conclusory opinions, without any basis in fact. His testimony is of no persuasion to the Commission.

In contrast, the medical opinions rendered by Dr. Zipper, Dr. Weed and Dr. Hood, are unequivocal, representative of the facts, and were not impeached.

As to employee's complaint concerning her ringing in the ears/tinnitus, even though she attempted to deny it, there was obviously a history of prior complaints, problems and treatment. In fact, ten days prior to the accident she was treated for ringing in the ears/tinnitus. Since Dr. Zimmerman was completely unaware of her history of treatment for tinnitus, both before her accident, and after her accident, his conclusory opinions concerning medical causal relationship and permanent disability based solely on employee's self-serving history given him are not reliable. Dr. Zimmerman did not even review the medical records concerning treatment for this condition.

As to employee's low back complaints and cervical spine complaints, Dr. Hood unequivocally explained why these conditions were not medically causally related to the accident, and consequently there was no permanent disability assigned to these body parts which were attributable to the accident. Employee suffered from pre-existing degenerative arthritis, and as Dr. Hood explained, the accident occurring February 2, 2002, was insignificant to her pre-existing cervical spine condition and pre-existing lumbar spine condition. The physical therapy prescribed by Dr. Zarr adequately treated her complaints, and there were no permanent residuals.

Dr. Hood's analysis as to the Achilles tendon complaints and left knee complaints was analogous to his opinions concerning the low back and cervical spine, as these conditions complained of were due to prior medical conditions, independent of the accident, and were not caused by the accident occurring February 2, 2002, or aggravated/exacerbated by the accident.

Dr. Hood's medical opinions were based on a review of all pertinent treating medical records and medical opinions rendered prior to the accident and subsequent to the accident, and were further based on his evaluation and examination of the employee. The Commission finds the opinions rendered by Dr. Hood to be trustworthy and believable.

As to the issue of temporary total disability, Dr. Weed placed employee at maximum medical improvement as of June 6, 2003, on account of this injury, and the Commission accepts his opinion as being most credible. Accordingly, employee is not entitled to temporary total disability benefits subsequent to June 6, 2003. Employee's inability, if any, to return to the labor market as of June 6, 2003, was not attributable to the residual disability on account of the accident occurring February 2, 2002.

As to the issue of permanent disability, the opinions of Dr. Weed and Dr. Hood are the most credible. Employee only sustained permanent disability to her right knee on account of this injury and the disability is partial in nature, not total; i.e., 15 % permanent partial disability referable to the right knee.

The Commission determines and concludes that based on the credible, believable and trustworthy evidence, employee sustained an injury due to an accident arising out of and in the course of her employment. The body part injured that was clearly work related was the right knee. Employer has provided all medical care and treatment deemed reasonable and necessary to cure and relieve employee from the effects of her right knee

injury. Employer is not responsible for any additional medical care and treatment past, present or future. Employer is not responsible for any additional temporary total disability benefits.

Based on the above modifications, employee is awarded the following amounts of compensation payable and no other: 15 % permanent partial disability referable to the right knee, which amounts to a lump sum of $\ 6,526.08 ( $160 \times 15 \% \times \ 271.92 ). No additional amount of compensation is payable to the employee by the employer, on account of this injury.

The award and decision of Administrative Law Judge Emily S. Fowler dated November 28, 2005, as modified, is attached and incorporated by 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 $23^{\text {rd }}$ day of October 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

Prior to the work accident, employee was able to work full-time and engaged in many activities, including dancing. After the work accident, employee was unable to work again, walks with crutches, and must crawl and slide to get up and down the stairs in her home. The medical experts agree employee is not employable.

The administrative law judge concluded that the work injury and its sequela rendered employee permanently and totally disabled. Among the conditions the administrative law judge found medically causally related to the work injury are bi-lateral knee problems, neck problems, low back problems and ankle/Achilles tendon problems. By contrast, the majority of the Commission finds only a minor right knee disability resulted from the work injury.

The administrative law judge's conclusion is soundly supported by the competent and substantial evidence in this case.

The claimant does not...have to establish the elements of his case on the basis of absolute certainty. 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."

Employee has met her burden as enunciated above through her testimony and the medical opinions of Dr. Zimmerman. The medical opinions of Dr. Zimmerman are bolstered by the impressions of Dr. Luallin and Dr. Zarr. I agree with the administrative law judge's finding that Dr. Hood's causation opinions are not persuasive. Dr. Hood's failure to find a medical causal relationship between the admitted right knee injury and the third knee surgery renders his causation opinions unreliable.

I would affirm the award of the administrative law judge. I respectfully dissent from the decision of the majority of the Commission to modify the award of the administrative law judge.

John J. Hickey, Member

Employee: Johnnie Kaye Saunders

Injury No. 02-126583

Dependents: N/A

Employer: Swope Parkway Medical Center

Insurer: Commerce \& Industry Insurance Company

Additional Party: N/A

Hearing Date: October 17, 2005

Submission date: November 17, 2005

Checked by: ESF/1h

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 2, 2002.
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 her employment as a nurse, Claimant was sitting on a stool treating a pediatric patient when said patient pulled Employee forward causing her to fall off the stool landing on her knees and hitting her head causing injury to her body.
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: Body as a whole.

1. Nature and extent of any permanent disability: permanent total disability.
2. Compensation paid to-date for temporary disability: $\ 12,863.82.
3. Value necessary medical aid paid to date by employer/insurer? $\ 23,474.76.
4. Value necessary medical aid not furnished by employer/insurer? $\ 49,599.60.
5. Employee's average weekly wages: $\ 407.86.
6. Weekly compensation rate: $\$ 271.92 / \ 271.92.
7. Method wages computation: By Agreement.

1. Amount of compensation payable:

Employer is to pay Employee the sum of $\ 24,559.30 as and for temporary total disability benefits from June 9, 2003 to March 10, 2005, representing 91 and 3/7ths weeks. Said amount has been adjusted by $\ 309.96 for over payment. Further Employer shall pay to Employee the sum of $\ 8,584.51 for permanent total disability payments owed to Employee beginning March 10, 2005 to present. Employer shall pay to Employee the sum of $\ 271.92 as and for permanent total disability payments beginning from the date of hearing forward for her life. Employer shall pay to Employee the sum of $\ 49,599.60 for unpaid medical bills. Finally, Employer shall provide to Employee additional medical care to cure and relieve symptoms to Employee's back, neck, knees, and Achilles tendon.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all benefits herein to Employee's attorney Mr. Stephen Lynn.

Employee: Johnnie Kaye Saunders

Injury No: 02-126583

Dependents: N/A

Employer: Swope Parkway Medical Center

Insurer: Commerce \& Industry Insurance Company

Additional Party: N/A

Hearing Date: October 17, 2005

Briefs Due:

Checked by: ESF/lh

On October 17, 2005, the Employee and Employer appeared for a final hearing. The Employer and Insurer appeared by and through their attorney Mr. Chris McCurdy. The Employee appeared in person and through her attorney Mr. Stephen Lynn. The Division had jurisdiction to hear this case pursuant to $\S 287.110$ RSMo.

The parties stipulated to the following:

1) that on or about February 2, 2002, Employer was an employer operating subject to Missouri workers' compensation law and its liability was fully insured by Commerce \& Industry Insurance Company;

2) that Johnnie Kaye Saunders was its employee;

3) that Johnnie Kaye Saunders was working subject to the law in Kansas City, Jackson County, Missouri;

4) that Johnnie Kaye Saunders sustained an accident or occupational disease arising out of the course and scope of her employment as to the right knee only;

5) that Employee notified the Employer of the injury as required by law;

6) that Employee's claim was filed within the time allowed by law;

7) that Employee's average weekly wage was $\ 407.86 resulting in a compensation rate of $\ 271.92 as and for temporary total disability, permanent partial disability, and permanent total disability; that Employer has paid the sum of $\ 12,863.82 as and for temporary total disability compensation and $\ 23,474.76 as and for medical care;

8) the Employee seeks additional temporary total disability benefits in the amount of $\ 24,869.26 less a $\ 309.96 overpayment as well as medical expenses totaling $\ 49,599.60.

The issues the parties requested the Court to determine were:

1) whether the Employee sustained an accident or occupational disease arising out of and in the course of her employment with regard to parts of her body other than her right knee;

2) whether the Employee is entitled to temporary total disability benefits from June 9, 2003 to March 10, 2005, representing 91 3/7ths weeks of temporary total disability totaling $\ 24,869.26 less a $\ 309.96 overpayment;

3) whether the Employer must reimburse the Employee for medical expenses totaling $\ 49,599.60;

4) whether the Employer must provide the Employee with additional medical care;

5) whether the Employee suffered any disability; and if so, the nature and extent of Employee's disability;

6) whether the Employer must reimburse to the Employee the cost of this proceeding for defending the claim without reasonable grounds pursuant to $\S 287.560 in the sum of \ 3,832.00.

The Employee's evidence consisted of the testimony of the Employee's husband, Thomas Saunders, as well as the Employee, and the following exhibits which were admitted into evidence without objection:

Exhibit A - Dr. Daniel Zimmerman April 27, 2004 report

Exhibit B - Dr. Daniel Zimmerman April 6, 2005 report

Exhibit C - Dr. Daniel Zimmerman August 14, 2005 report

Exhibit D - Dr. Daniel Zimmerman deposition August 31, 2005 original transcript

Exhibit E - Attachment "A" listing of medical bills

Exhibit F - Bills/Affidavit from Medical Group of Kansas City (3 pages)

Exhibit G - Bills/Affidavit from Rockhill Orthopedics (15 pages)

Exhibit H - Bills/Affidavit from Research Medical Center (3 pages)

Exhibit I - Bills/Affidavit from Research Medical Center (17 pages)

Exhibit K - Bills/Affidavit from Baptist Lutheran Medical Center (6 pages)

Exhibit M - Bills/Affidavit from Pain Management Associates/KC Pain Center (4 pages)

Exhibit N - Bills/Affidavit from Carondelet Orthopaedic Surgeons (2 pages)

Exhibit O - Bills/Affidavit from South Kansas City Surgical Center (1 page)

Exhibit P - Medical Records from Rockhill Orthopedics - Dr. Larry Frevert

Exhibit Q - Medical Records from Carondelet Orthopaedics - Dr. Scott Luallin

Exhibit R - Medical Records from HealthSouth

Exhibit S - Medical Records from KC Pain Centers

Exhibit T - Medical Records from Research Medical Center - 6/8/04 MRI

Exhibit U - Medical Records from Research Medical Center

Exhibit V - Medical Records from Peter E. Shapiro, MD; Janet Mertz, MD

Exhibit W - Medical Records from Surgicenter of Kansas City 10/18/2002 arthroscopy

Exhibit X - Medical Records from Medical Group of Kansas City

Exhibit Y - Medical Records from James S. Zarr, MD

Exhibit Z - Medical Records from Ronald Zipper, DO

Exhibit AA - Medical Records from Baptist Medical Center

Exhibit BB - Dr. Larry Frevert September 23, 2004 report

Exhibit EE - Claimant's offer of Dr. Roger Hood's 10/11/05 deposition

The Employer and Insurer's evidence consisted of no testimony but included the following exhibits which were admitted into evidence:

Exhibit 1 - Medical record of 1/23/02

Exhibit 2 - 11/4/97 medical report of Dr. Janet Mertz, MD

Exhibit 3 - Medical records, Dr. Kimball, MD

Exhibit 4 - Medical records of Dr. LaPietra, MD and Dr. Shalet, MD

Exhibit 5 - Medical records of Dr. LaPietra, MD, 1/3/00 \& 6/19/00

Exhibit 6 - MRI report

Exhibit 7 - 6/29/00 report of Dr. Eden Wheeler, MD

Exhibit 8 - 11/14/00 medical record, Dr. Kimball, MD

Exhibit 9 - 11/14/97 medical record, Dr. Spurny, MD

Exhibit 10 - Medical record 4/9/02, Dr. LaPietra, MD

Exhibit 11 - 4/23/02 report of Dr. Bonar, MD

Exhibit 12 - Health Midwest/Baptist Lutheran Medical Center records

Exhibit 13 - Health Midwest/Baptist Lutheran Medical Center records, outpatient

Exhibit 14 - 7/7/03 report of Dr. Daniel D. Weed, MD, and affidavit

Exhibit 15 - 1/18/03 progress note

Exhibit 16 - 10/11/05 deposition of Dr. Roger W. Hood, MD with exhibits

After reviewing all of the above evidence and testimony, the Court makes the following findings: Johnnie Kaye Saunders is a 68-year-old woman who has worked as an LPN since 1958. Her daily activities as a nurse included, among other things, triage, injections, histories and physicals, handling patients, including small children when she would have to restrain struggling children at times. Her work hours were between 40 and 48 hours a week. She would spend at least 6 hours a day on her feet stooping, kneeling, bending, and squatting. She worked in pediatrics prompt care, which was walkin care. Her other jobs that she had during her life included working for a construction company as a delivery person, which also required her to drive and spend a lot of time getting in and out of vehicles all day. She had a job in car sales with Miller Pontiac, which required her to be on her feet 6 to 8 hours a day. She also worked in retail sales at Macy's and apparently worked in some form in security.

On February 2, 2002, she was sitting on a stool taking vitals on a small child. She had the stethoscope in her ears and a cuff on the arm of the child. The child apparently grabbed the stethoscope and pulled her forward causing her to fall off the stool landing on her knees and fall to the side causing her to hit her head on the metal doorway. She felt like she was temporarily blacked out in the sense of seeing stars but everything else was black, although she doesn't feel she lost consciousness. The doctor came in and checked her out. She felt pain in her right knee instantly. She continued through the day with some pain in her right knee. The doctor gave her some Vioxx for her pain but did not examine her knee.

She states that she saw Dr. Mertz on February 6, 2002, with headaches and because her ears were jerked when the stethoscope was jerked. Her specific complaints were ringing in the ears, pain in the ears, and headaches, pain in the left side of the head. She complained of continuous nonstop ringing in her ears. She saw her primary care physician, Dr. LaPietra, on April 9, 2002, with right knee swelling. She had this problem daily and was icing it but it kept swelling. She used various knee braces between the date of the fall and April, which did not seem to help. She had continued using Vioxx at one a day every day. The Vioxx relieved some of her pain. Dr. LaPietra, told her not to use the brace because it would make it worse but to continue the Vioxx. At that time she did not have any additional pain as she was on the Vioxx. She eventually saw Dr. Bonar as a referral from Dr. LaPietra because of the pain in her knee and additional pain in her back. She believed that she did have pain in her lower back since the date of the injury. On August 28, 2002, she went to Baptist Medical Center emergency room because her knee was swollen, causing her severe pain. She could hardly walk on it. She could not sit very

well as the knee would not bend. She had, however, continued to work five days a week with pain and discomfort. On the day she went to the emergency room, she had taken three pain pills but they did not work and that is why she went to the emergency room. She had no other falls or injuries between February 2, 2002 and August 28, 2002.

She saw Dr. Frevert on August 29, 2002, and he reviewed an MRI that was taken which showed a torn meniscus and he recommended arthroscopic surgery, which took place on October 18, 2002. She still had a lot of pain after the surgery and stated that her pain was an 18 on a scale of 1 to 10 prior to the surgery and about a 14 after the surgery. She continued to have swelling in the knee so bad she could not bend her knee. She was placed on additional narcotics after her surgery. She was sent to physical therapy, which included exercises and bicycle but the physical therapy did not help the pain or swelling. She states that Dr. Frevert indicated she possibly needed additional surgery and was sent to Dr. Zipper on March 13, 2003. She states that Dr. Zipper did a thorough examination of her knee. She was also sent to Dr. Zarr, and complained she was still having the same pain, that her right knee and her back hurt, she was having severe neck pain. The neck pain started since the accident. She could not recall what Dr. Zarr did for her, but sent her to physical therapy on both her neck and her back. She also saw Dr. Daniel Weed on June 6, 2003. When she saw Dr. Weed, she said she had a pain between 12 and 14 on a scale of 1 to 10 . She could not stand for any length of time. She stated he x-rayed her, asked her questions, called the insurance company and then came back and told her to go back to work on Monday. She did not return to work because she could not walk. On August 19, 2003, she had a second arthroscopic surgery. She states that the second surgery did not help and that she was taking Darvocet and Lortabs. She stated after that surgery she was about the same. She was seen again by Dr. Frevert who stated she needed a third surgery to the right knee. She saw Dr. Luallin, who sent her for an MRI on December 9, 2004, which still showed a torn meniscus. Dr. Luallin did a third arthroscopic surgery in 2005. Employee has not seen any doctor since then. Employee states she also went to Kansas City Pain Center at the suggestion of Dr. LaPietra for her back problems. She received epidural injections, which did give her relief from her back pain. The effect of these injections lasted her approximately a year. She has had two more but couldn't afford the last shot and wants the last series of shots.

Employee also testified about prior problems. She admitted that she had mild back strain five to seven days prior to this injury but that it went away. And then back in 2000 she was seen at Rockhill Orthopedics for weakness in her leg. She stated she was in a chair and apparently her leg was in a wrong position. She thought maybe she had a blood clot and her leg had fallen asleep. She also noted that prior to 2002 no doctor had ever said she had any arthritis in her knees and she had not taken any medication for her knees prior to the accident. She stated that when she saw Dr. Hood for an examination he touched her knee maybe three or four times, moved the joint, but took no x-rays and no MRIs and no exam of her back or her neck, and he did not ask her about problems with her back and neck. She has gained weight, approximately 30 pounds since the fall, because she can't walk. She has to crawl up the stairs to get to the bathroom in her house and eats oatmeal in the morning until her husband comes and cooks her something to eat. She avoids the stooping and bending that she would have to do for cooking because it hurts her knee and back. She cannot walk without a crutch or cane. She has used magnets in her shoes for her back. If she takes her medications and lays right, she can get the knee pain to go away for some time, at least to alleviate it. Her left knee now hurts. She is still having headaches and difficulty sleeping due to pain. She takes Darvocet every six hours as needed to take care of her pain. She cannot wear heals any longer. She has to use a handicapped bathroom and cannot take a bath because she cannot get in and out of the tub without help. She cannot walk very far, even with a crutch because a crutch hurts her arm. The problems with her right knee have been fairly stable with regard to pain and swelling ever since her surgery with Dr. Luallin although the knee still locks up at times. Her left knee does not lock up. The back pain she suffers from is on the right side and in her lower back. She still has ringing in her ears all the time. If she has to travel any distance, she uses pillows in the car and gets out of the car and stands for a minute or so as her knees begin to lock up and she gets pain in her lower back from sitting too long. She would like to continue her epidural injections.

On cross-examination, she confirmed that she never had any difficulty walking and never sought care for knee pain or back pain and ringing in the ears, other than a time when she had a minor infection in her ear. She was questioned about seeing Dr. Latkovich in January 2002 for ringing in her ears stating she had an unusual feeling and a mild decrease of hearing in the left ear and ringing in the ears. Again, in February 2002, she saw Dr. Mertz who was going to send her to an ENT specialist prior to the fall. The attorney for Employer also noted that Employee saw Dr. Mertz in 1997 for earaches and ringing in the ears on two separate occasions. Attorney for Employer also pointed out that in August 2001 she saw a Dr. Kimball for complaints of knee pain. However, she did not recall this. He noted that she suffered pain in her knee from dancing approximately a week prior. She stated that at that time it was a momentary thing. She worked every day and she had no problems, and that was five months before the fall in 2002. She had been treated and released and no further complaints. Again Employer's attorney noted that she saw a doctor in 2000 for sitting the wrong way in a chair causing her right leg to go to sleep and she was assessed with paresthesia with lumbar radiculopathy of the right leg. She was also seen in Dr. LaPietra's office in 1999 with complaints of pain in the right leg that she thought was a blood clot. She stated that she had no difficulty walking prior to the injury in 2002. Employer's attorney noted that in Exhibit 5 it stated that she had

difficulty ambulating and didn't like going anywhere by herself, and that she was not comfortable driving anywhere. Further, Dr. Kimball in 2001 found mild crepitus in her knee. He also pointed out to her a 1997 medical record, which showed she had hurt her lower back while pulling a medicine cart and was diagnosed with low back strain. Employer's attorney pointed out to her that the physical therapy people stated she was self-limiting and not giving her full effort. Employee also stated in cross-examination that she has had no surgery on the left knee and the left knee started hurting her when she stopped taking pain pills or whenever the pain pills wore off. Her left knee was actually painful before she saw Dr. Luallin. She states that she has not gone back to work since she quit working at Swope Parkway, although people have asked her to as LPNs are in high demand. She stated she does not go back to work because she simply cannot do it. She considers herself disabled but not retired.

Employee's husband Thomas Saunders also testified on her behalf. He noted that they had been married for 43 years and that he was employed at Samuel Rodgers South as substance abuse counselor. He noted that prior to her fall, the Employee did quite a few recreational activities, including boating, hiking, going to football and basketball games, and she could easily navigate going up and down the bleachers at those games. She had no pain problems, always took the lead. She loved to go dancing and that she had no physical limitations prior to her fall. She was always doing yard work and had no problems with her back, neck, right knee, left knee and headaches. After the fall and through the date of the hearing, he stated that the changes in her included physical limitations; that she couldn't sit down long; that she has difficulty with sun because of the medication she takes; that although she has gone to a football game, she has had to use a wheelchair or drive the cart to get to the stadium; that she has difficulty with the stairs in her personal home, and that she either slides up and down the stairs or crawls up and down the stairs. She also goes very slowly and very gingerly. She also complains a great deal due to pain, and that prior to the fall she did the vacuuming, laundering, and work, however he does the chores now. Further, she uses crutches to walk.

In reviewing Employee's exhibits it is noted that there are quite a few medical records, which reflect treatment of Employee for her injury of February 2, 2002. It is noted that Dr. LaPietra saw her initially. As pain continued, an MRI was performed on September $3^{\text {rd }}$, as requested by Dr. Frevert, showing a meniscal tear. Surgery was performed on October 18, 2002, wherein Dr. Frevert performed an arthroscopically partial medial and lateral meniscectomy, a chondroplasty and a partial synovectomy of the right knee. She was re-evaluated with an MRI of the right knee on February 3, 2003, which showed concerns regarding the posterior horn of the medial meniscus centrally and was characterized as a free margin in the mid-body of the lateral meniscus. A second surgery was performed on August 19, 2003, by Dr. Frevert, wherein after such surgery Employee reported no improvement in the symptoms affecting her knee. Dr. Frevert saw Employee in follow-up and noted that she was having improvement in her range of motion, however, there was still swelling affecting the right knee. It was indicated that she did well in therapy and was to continue her pool therapy. On October 17, 2003, Dr. Frevert noted that range of motion and function of the right knee had improved and that it was indicated that the pain was "settling down." Employee however reported continued difficulty with ambulation and walking and she was unable to fully extend the right knee. It was indicated she should continue working in therapy to regain range of motion and strength. November 14, 2003, it is noted that her range of motion had improved but Dr. Frevert indicated that there was a lack of strength and he recommended that she continue therapy, working on range of motion, and strengthening modalities. On January 23, 2004, it is noted that Employee lacked "just a little bit of full extension" but it was indicated that her knee was giving her less and less pain and she was having minimal swelling. On that date, it appears that Dr. Frevert released her to return only for the knee condition as needed. Employee continued to have problems with her right knee and on April 27, 2004, she was seen by Dr. Luallin where she indicated she was having problems with her left knee because of favoring her right knee. The left knee was painful and swollen. Dr. Luallin performed a third right knee arthroscopy on December 9, 2004.

Employee was also seen by Dr. Zarr on February 27, 2003, suffering from myofacial neck and low back pain. He also noted she had persistent right knee pain and was status post-arthroscopic partial medial and lateral meniscectomy, and that she needed a second orthopedic opinion. She was also seen by Dr. Weed who noted on May 2, 2003, that Employee lacked full extension activity of the right knee and felt that she was stable to varus, valgus, pivot shift and Lachman's test. Dr. Weed noted that an x-ray of the right knee showed minimal degenerative changes if any at all. An additional progress note by Dr. Weed dated June 6, 2003, indicated that Employee was being seen for neck, back and shoulder pain by Dr. Zarr. In this note Employee reported that she was incapable of working because of instability affecting the right knee.

On January 3, 2003, Employee underwent a CAT scan as requested by Dr. Melvin Glazier due to the tinnitus she was suffering and that study showed no significant abnormalities.

Employee was also seen by Dr. Mark Chaplick, D.O., on December 30, 2003 for her back pain, who indicated that he recommended epidural blocks. She underwent three such blocks and was reported to be doing well with regard to her lumbosacral spine, and that at that time she was being discharged from the Kansas City Pain Center's care.

Employee was seen by Dr. Daniel Zimmerman on April 6, 2005. He reviewed her medical care and issued a report dated October 27, 2004. Said report was updated on April 6, 2005, wherein he indicated that he felt Employee suffered a permanent aggravation of the meniscal pathology and chondromalacial change affecting the right knee and is status post what is now the third arthroscopic operative intervention. He felt that Employee sustained a permanent partial disability of the right lower extremity at the knee level at 45 percent. He also felt that she suffered a permanent aggravation of the osteoarthritis affecting her left knee and that that should be rated at 15 percent of the left lower extremity at the knee level. After examining her, he determined that she suffered from right Achilles tendonitis as a consequential condition to her original injury and that she sustained a permanent partial disability to the right lower extremity at the ankle level at 10 percent. He also felt that secondary to tinnitus due to an inner ear condition that she sustained a 5 percent permanent partial disability to the body as a whole. That due to a permanent aggravation of cervical disc disease and cervical osteoarthritic changes, that she suffered a 20 percent permanent partial disability to the body as a whole. That secondary to her permanent aggravation of the lumbar disc disease and degenerative lumbar osteoarthritic changes that she sustained a permanent partial disability to the body as a whole rated at 30 percent. In summation, Dr. Zimmerman determined that Employee suffered 100 percent disability due to all her conditions combined. He feels that Employee is not capable of work for remuneration. He believes that with regard to the cervical spine and lumbosacral spine she has achieved maximum medical improvement; however, that he believes that a total knee replacement as was suggested as a possible treatment option by Dr. Zipper is a continuing option. He feels that continued epidural blocks on a palliative basis to reduce pain and discomfort at the lumbar level are reasonable, and further that additional physical therapy management to reduce pain and discomfort at the cervical level is also reasonable. He feels that such interventions are not likely using reasonable medical judgments to modify the pathology at the cervical or lumbar levels and would not be expected, particularly long term, to resolve her symptomatic complaints or improve the underlying lumbar and cervical conditions. He feels that the pain and discomfort can be treated by Vioxx, however, she should be careful as long-term use can cause problems affecting kidneys, liver and gastrointestinal tract. He further feels that the pain and discomfort can also be treated with heat in the form of hot tub baths, hot showers and/or heating pad locally applied. Dr. Zimmerman also reviewed her medical bills for all medical treatment that was not covered by the Employer for treatment for her right knee, physical therapy, and care for the lumbar radiculopathy, as in Claimant's Exhibit C, and felt that all of these charges are reasonable and customary and necessitated by the injuries of the work-related incident which Ms. Saunders sustained on February 2, 2002. Dr. Zimmerman also believes that all problems with Employee's knee, neck, lower back, tinnitus, left and right knee, as well as Achilles tendon are all causally related to her original injury of February 2, 2002.

Employer's evidence consisted of exhibits. There is a January 23, 2002 medical record from Dr. Katarina Latkovich wherein Employee described unusual feelings in her head and ears including a mild decrease in hearing in her left ear wherein Dr. Latkovich was going to send her in for an ENT evaluation. Employer's Exhibit No. 2 is a letter dated November 7, 1997, by Dr. Mertz wherein she notes that Employee is suffering from ringing in both ears. Employer's Exhibit No. 3 is an August 29, 2001 medical record by Dr. Jason Kimball wherein it is noted that patient had some pain over the right knee "however, which with one week ago her dancing more than usual leading to a dull constant discomfort that is a lot worse when she bears weight. The patient (sic) has not kept her awake at night. She recognizes small amount of effusion on that side." Dr. Kimball treated her with a Medrol Dosepak and Doxycycline, with Vioxx to be reinitiated for semimembranosus tendinitis and ice or heat, whichever feels better, with decreased activity and he discussed weight loss to help her with her knees. Employer's Exhibit No. 4 is a medical record dated April 8, 1999, by Dr. LaPietra, wherein employee was concerned of a possible blot clot in her left leg. She had a knot in the left calf, associated numbness, took some aspirins and the symptoms had gone away. She was not aware of any trauma or injury to the area. She was diagnosed with lower extremity edema, which was benign. On March 16, 1999, in that same exhibit, it is noted that she saw Dr. Shalet for numbness in the left foot and pain in the left calf. She awoke with a numb feeling in the left foot, mostly on the lateral aspect of the foot, but with no history of an injury. Later that day she had pain in her calf and came in that day with a limp and some pain in the left calf. She was diagnosed with a painful calf and numbness in the left foot. Employer's Exhibit No. 5 on a date of January 3, 2000, it is noted that she had chronic pain on the right ankle ever since she had a previous fracture but was taking Tylenol at night to help her sleep and was doing fine. On June 19, 2000, it is noted that she saw Dr. LaPietra with regard to having taken a nap in an easy chair and when she awoke she had difficulty and could not feel her right leg and had difficulty ambulating. It is noted that had gradually gotten better, however, she was still having a fair amount of difficulty using the right leg with the numbness. She did not feel comfortable driving or going anywhere by herself and denies any previous or similar episodes. She was diagnosed with paresthesias of the right leg with associated lumbar radiculopathy. Employer's Exhibit No. 6 is an MRI of the lumbar spine dated June 21, 2000, wherein it is noted that she suffered from age related lower lumbar degenerative disc and facet changes, bulging disc material at lumbosacral junction slightly more prominent left of midline with resulting very mild posterior displacement of left S-1 nerve root. No extruded disc fragment or significant bony central canal stenosis is detected at any lumbar level, and degenerative foraminal narrowing which is moderate bilaterally at L3-4, moderately advanced bilaterally at L4-5, (greater right than left) and severe bilaterally at lumbosacral junction. Employer's Exhibit No. 7 is a medical record from Dr. Eden Wheeler at Rockhill Orthopaedics with regard to right leg numbness and weakness. Her symptoms at the time were diffuse right lower extremity numbness as well as subjective

weakness in the leg. She had gait impairment related to the weakness itself but with difficulty apparently accessing stairs. Again, she had absolutely no presence of pain and did not have sleep disturbance. She had not had any bowel or bladder incontinence episodes. She had never had prior symptoms. His impression was that she suffered from right lower extremity weakness and numbness and lumbar spondylosis with multi level facet arthropathy. He felt she had inconsistencies on her exam. Specifically an abnormal gait pattern, which is not supported by an essential normal manual motor testing. There was however, some possible discoordination on the right heel to shin testing. He noted that although the MRI did have multiple abnormalities, he was not clear that this explained her symptoms. In light of this, he was requesting an MRI of the brain to rule out the presence of a central lesion. If that was within normal limits, then he would consider referral to physical therapy. He did not feel that referral to surgery was indicated despite her subjective complaints. Her objective findings were minimal other than some distal sensory change. And, again, she had no associated pain. Employer's Exhibit No. 8, medical records from Dr. Kimball dated November 14, 2000, showed the Employee had lumbar radiculopathy causing paresthesia down the right leg and osteoarthritis which was treated with Vioxx 25 milligrams once a day. Employer's Exhibit No. 9 shows medical records of November 14, 1997, by Dr. Spurny where he noted she suffered from a low back strain due to hurting herself while pulling a medication cart. Employer's Exhibit No. 10 is a medical record dated April 9, 2002 from Dr. LaPietra wherein Employee was seen for internal derangement of the right knee due to the injury of February 2, 2002. Employer's Exhibit No. 11 were medical records by Dr. Bonar dated April 23, 2002, who recommended an MRI due to right knee pain. Employer's Exhibit No. 14 is a report by Dr. Daniel Weed wherein he determined that Employee suffered 17 percent impairment at the level of the right lower extremity which correlates to 7 percent of the whole person impairment. Employer's Exhibit No. 16 is a deposition and attending exhibits of Dr. Hood. Dr. Hood feels the Employee suffers from a 20 percent permanent partial disability to the knee with 5 percent being due to the fall of February 2, 2002. He stated that Employee will need a total knee replacement to the right knee but he believes it is due to degenerative arthritis. Further he feels that Employee's second and third arthroscopy were not related to her injury and therefore her bills were not related. He did not believe that her low back, cervical spine, Achilles tendon, left knee or tinnitus were due to her fall of 2002. In his deposition he admitted that he could not say one way or the other what caused the meniscal tear whether it was old or new it was just that it was there on September 3, 2000. He stated that he saw no MRIs nor did he perform any MRIs on Employee as part of his examination of Employee for his rating.

The first issue to be determined by this Court is whether Employee sustained an accident or occupational disease arising out of and in the course of her employment. Employer has admitted that Employee sustained an accident or occupational disease arising out of and in the course of employment with regard to her right knee only. This Court must then determine whether or not the subsequent and additional physical impairments Employee complains of are causally related to the original accident. It is noted throughout her medical records that her initial injury to the right knee, which has been admitted by the Employer, was causally related to her fall. The Employer is also questioning whether the second and third arthroscopic surgeries were related to the right knee. In reviewing Dr. Frevert's medical records, it is apparent that after the first surgery Employee continued to have serious problems with her right knee and his concern was that there was additional damage that had not been taken care of in the first arthroscopic surgery, and therefore he suggested, recommended and proceeded with a second arthroscopy. This Court, based upon this information, feels that the second arthroscopy was causally related to the initial injury on February 2, 2002. Subsequent to that, Employee had a third arthroscopy, which was performed by Dr. Luallin. In Dr. Luallin's medical records it notes that there is relation back to the original accident through Employee's history and there is no information contained in those medical records historically that showed there was any intervening incident. Further, Employee denies any intervening incident prior to the third arthroscopy. Therefore, this Court finds that the third arthroscopy was also required by her injuries, which were caused by her fall in February 2002. In reviewing the other medical records, it is noted that Dr. Zarr examined Employee in February 2003, approximately a year after the initial injury. He examined her with regard to her neck and low back as well. It is noted in his conclusions, that although the right knee is the most significant problem, "she does have mild myofacial neck and low back, which are minor problems in relationship to the knee. It does seem reasonable that she could have suffered injury in her work-related fall that would relate her neck and low back pain to the work injury of February 2, 2002." Dr. Zimmerman, who was employed by Employee's attorney to do a rating exam, has reviewed and discusses in detail the causal relationship between Employee's injuries to her neck, low back, left knee, and Achilles tendon. This Court believes it is reasonable to determine that based upon the serious problems with Employee's right knee, as well as the trauma from the original fall, that Employee has suffered subsequent causally related problems to her neck and low back, as well as her left knee and Achilles tendon. Dr. Hood notes that there is no causal relationship between the accident and any of these subsequent problems, however, Dr. Hood also states that there is no causal relationship between the initial injury to the right knee and the third arthroscopic surgery. Dr. Hood's determination is not convincing to this Court. It is clear that Employee had numerous pre-existing conditions of the cervical lumbar spine including osteoarthritis. However, she testified that prior to the accident of February 2, 2002, she had no ongoing problems with these body parts. The Court has reviewed the additional medical records that Employer submitted. These showed incidents wherein she saw doctors for various different complaints to her back, however, these clearly were short-term complaints apparently resolved as there is limited medical care to them. They were not ongoing or as severe as the subsequent problem that she had to her right knee after the fall and then the subsequent

Chronic problems she had to her back, neck, and left knee and ankle after the original accident. Therefore, this Court determines that although Employee had pre-existing problems they were asymptomatic for the most part and that her subsequent problems to her neck, low back, left knee, and ankle are causally related to Employee's fall of February 2, 2002.

The next issue to be determined by this Court is whether the Employee is entitled to temporary total disability benefits from June 9, 2003, to March 10, 2005. It is apparent that although she was released at some point by her doctors, she was unable to return to work. Further, in reviewing Dr. Hood's deposition and medical report, it is clear that even Dr. Hood, Employer's own expert, deems Employee 100 percent disabled from being able to work anywhere. While Employee was under Dr. Frevert's initial care for both the first and second arthroscopic surgery, she was unable to return to work. Subsequent to those arthroscopic procedures, she continued to have serious problems with her right knee as well as subsequent problems with the other parts of her body. It has also been determined by Employee's expert, Dr. Zimmerman, that Employee is unable to return to any type of work and clearly could not have as of June 9, 2003, through March 10, 2005. Therefore, this Court determines that Employee is entitled to temporary total disability benefits beginning June 9, 2003, through March 10, 2005.

The next issue the Court is to determine is whether the Employer must reimburse the Employee for medical expenses totaling $49,599.60. Having reviewed the medical records and determined that the additional arthroscopic surgery was causally related to her injury of February 2, 2002, this Court deems that the medical bills associated with that third surgery are compensable and the Employer should reimburse Employee for those medical expenses. Further, having determined that Employee's neck, back, left knee, and Achilles tendon are related to her injury of February 2, 2002, this Court determines that those medical bills are related to Employee's initial injury of February 2, 2002, and therefore should be reimbursed by the Employer to the Employee. This Court also finds that such medical care was reasonable and necessary and that the bills themselves, the expenses charged are reasonable and customary.

The next issue to be determined by the Court is whether the Employer must provide Employee with additional medical care. It is clear that Employee needs additional medical care for both her lower back and right knee as well as her left knee. The Employee stated she does not want a total knee replacement, which has been recommended by just about every doctor associated with this case. However, it is apparent at some point she may very well need such a replacement to the right knee and therefore the Court would order that Employer should provide Employee with additional medical care including a total right knee replacement, additional injections in the lumbar region for relief of pain for her lower back complaints, and any other medical care which may cure or relieve her symptoms related to her neck, low back, left knee, right knee, and Achilles tendon.

The next issue to be determined in this matter is whether the Employee suffered any disability and if so the nature and extent of the Employee's disability. Without going into the details of what percentage relates to which body part, this Court based upon the totality of the evidence determines that Employee is unable to return to any work in the open labor market and therefore finds Employee was permanently and totally disabled. This Court also determines that based upon her initial injury of February 2, 2002, and subsequent effects upon her other body parts that her permanent total disability is related to her initial injury of February 2, 2002. This determination is based upon Employee's testimony, which this Court finds credible, with regard to the fact that she was working full time prior to her injury, that although she had some minor complaints, none of these complaints to her back or her knees were significant enough to impede her ability to work full time in a rather vigorous medical practice. Further, the doctors related to this case have determined that in fact the Employee is permanently and totally disabled. This Court determines that her permanent and total disability is causally related to the original accident of February 2, 2002.

The final issue to be determined by the Court is whether the Employer must reimburse the Employee the cost of this proceeding for defending the claim without reasonable ground pursuant to §287.560 in the sum of $3,832. This Court has reviewed the medical records, documentation, and testimony by the Employee. Although it is clear that the Employer failed and refused to continue treatment on Employee for both her third right knee arthroscopy, as well as her additional physical problems, it is not unreasonable to determine that the Employer made this decision based upon the information it had before it at the time. There has been no argument presented to this Court which convinces the Court that Employer's actions were unreasonable in failing to provide Employee with additional medical care to her other body parts or a third arthroscopy treatment. Therefore, this Court denies Employee's request for reimbursement for the cost of the proceeding pursuant to §287.560.

Wherefore, this Court orders Employer to pay to Employee the sum of $24,829.26 as and for temporary total disability benefits from June 9, 2003, through March 10, 2005. This Court further awards that Employer must reimburse Employee for medical expenses totaling $49,599.60. This Court further orders that Employer must provide Employee with additional medical care including possible total right knee replacement, as well as additional conservative treatment for

Employee's neck, back, left knee, and ankle. Finally, this Court orders Employer to pay Employee permanent total disability benefits beginning March 10, 2005 to present in a lump sum amount of $\ 8,584.51 and thereafter the amount of $\ 271.92 per week as and for permanent total disability benefits for the length of Employee's life.

Finally, this Court awards to Employee's attorney, Steve Lynn, 25 percent of all benefits provided herein.

Date: $\qquad Made by: \qquad$

Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation