A hearing was held in this matter on June 28, 2006. Claimant appeared in person and with her attorney, Jay Cummings. However, the record was held open until 7-28-06 by agreement of the parties. Employer/self-insured appeared through its attorney, Kevin Johnson. An off-the-record discussion was held concerning the issues to be presented for determination at this hearing. The parties agree that the following issues were to be considered:
- Whether claimant is entitled to past medical benefits with the employer/self-insured alleging that that medical is not authorized.
- Whether claimant is entitled to temporary total disability benefits from February 17, 1999, to April 17, 2000.
- Whether claimant's current condition and the need for medical care both past and future was caused by an accident at work.
- Whether claimant provided notice to the employer as required by Missouri law.
- The nature and extent of any disability.
Employer/self-insured attempted to present the issue of accident during a prehearing discussion of this case. In that discussion it was determined that causation was the issue rather than accident. However, upon presentation of all of the evidence in this case it appears that accident has also been raised as an issue by the parties, and I will consider that as an additional issue to be determined. Employer/Insurer also have sought a credit for all amounts paid by claimant's health insurance and her medical bills.
The parties agree that claimant's average weekly wage is $\ 294.38 and that her workers' compensation rate is $\ 196.23 per week. Medical benefits have been paid in the amount of $\ 811.36.
The parties attempted to settle the case following the hearing and informed the Court on October 2, 2006, thatan award needed to be entered.
Claimant was the only witness testifying at the hearing. However, Dr. Marion L. Wolf, an orthopedic surgeon testified by deposition as did Arless Hazel Evans, a co-worker of claimant. Medical reports of Drs. David Paff and Ted Lennard were also presented into evidence along with various medical records for claimant's alleged injury at work and her other medical conditions.
Claimant was a certified nurse's aid and registered medication certificate holder for Citizen's Memorial Healthcare Facility, a nursing home. Her work required her to do lifting and walking. On February 17, 1999, a co-employee, Arless Evans, asked claimant to assist her with another patient. According to claimant's testimony, she exited the room in which she was working. She walked into the hallway and pivoted to go toward the nursing home patient with whom she was to assist her co-worker. While pivoting and walking toward that patient and placing pressure and weight upon her left foot, she heard a pop and suffered pain, causing her to nearly fall to the floor. She hopped to a guardrail, called for help and was assisted by other nursing home workers so that she did not fall to the floor. She was placed in a chair. Claimant indicated that she did not twist her knee and instead merely pivoted while placing weight upon her foot when she heard the pop.
Arless Evans, a co-worker, testified that her view to the event was partially obscured. She heard claimant scream and saw her arms waving. Ms. Evans testified that claimant may have somewhat twisted or turned as she was holding onto the rail trying to stay off the floor. While claimant was halfway to the floor, Arless Evans approached claimant and got her left knee under claimant to keep claimant from hitting the floor. Other employees assisted claimant into a chair. Arless Evans testified that claimant was in obvious pain. Claimant was transported to the emergency room where she was treated and referred to an orthopedic surgeon, Dr. Marion Wolf.
On March 17, 1999, claimant was asked to give a statement. Within that statement claimant testified that she did not know whether she tripped or stumbled since it happened so fast. She stated, "I don't know what happened." She also stated that she was walking fast, had almost made it up all the way to the desk when her leg started going out from under her and something snapped on the back side of her left leg on the knee area. The emergency room record indicated that claimant's knee popped as she was walking along at work. Dr. Wolf's initial examination shows the history of claimant walking when her knee gave way. Claimant's letter of May 19, 1999, along with the testimony of Arless Evans indicated that claimant had turned as she was walking.
Dr. Wolf performed an arthroscopic surgery on claimant's knee on April 7, 1999, which included abrasion chondroplasty and shaving of the patella. Dr. Wolf later performed a surgery on October 20, 1999, for a total knee replacement.
Dr. Wolf has testified that although claimant's underlying osteoarthritis or chondromalacia was not caused by her work, it could have been aggravated by it. Dr. David Paff has opined that claimant's February 17, 1999, injury was "one substantial cause of her necessity for surgery," and rated her as having a 30 percent disability to the left lower extremity at the 160 -week level with 50 percent of that total to her preexisting condition and 50 percent to her injury at work. Dr. Ted Lennard in his independent medical examination rated claimant as having 35 percent disability to the left lower extremity at the 160 -week level with 20 percent being related to preexisting conditions and 15 percent to her work injury. He also opined that, "[H]er work injury, however, on 2/17/99 was such that necessitated an arthroscopic exploration of the joint and ultimately a total knee arthroplasty."
This case is remarkably similar to Bennett v. Columbia Healthcare, 80 S.W.3d 524 (Mo.App. W.D. 2002) and Bennett v. Columbia Healthcare, 134 S.W.3d 84 (Mo.App. W.D. 2004). ${ }^{[1]}$ In Bennett the claimant was a nurse's aid whose knee injury was found compensable as a result of two incidents at work in which she was walking around a bed and felt a pop in her right knee and later in the day was carrying linens up a flight of stairs when she felt another pop in her knee. Bennett had preexisting arthritis and had undergone a surgery in 1979 for a torn cartilage . She also earlier had experienced problems with her other knee in 1986 for which she had arthroscopic knee surgery. The focus of both Bennett decisions was whether claimant sustained an accident arising out of and in the course and scope of her employment under Missouri law. The ultimate conclusion of the court in both cases was that claimant had sustained a compensable injury by accident. Those
decisions held that walking generally and walking up stairs in particular were incidents of claimant's employment as an nurse's aid and were a substantial factor in the change of pathology of claimant's right knee. Based upon the Bennett decisions, it is clear that claimant sustained an injury by accident arising out of and in the course and scope of her employment. I so find.
Employer/self-insurer has also raised the issue of whether claimant's specific condition was caused by her accidental injury at work. It is clear from all three physicians who rendered opinions in this case that claimant had preexisting arthritis. Nevertheless, all three doctors have opined that claimant's condition necessitating surgery was a result of her accidental injury at work. In effect, Dr. Wolf indicated that her condition (chondromalacia) was aggravated by her accidental injury at work; Dr. Paff believed that the necessity for her surgery had her injury as "one substantial cause of the injury;" and Dr. Lennard opined that "her work injury, however, on 2/17/99 was such that necessitated arthroscopic explorat