Danny Green v. Platte County

for total knee arthroplasty. Dr. Koprivica opined that at employee's young age, revision arthroplasty is also a future consideration. Lastly, Dr. Koprivica stated that "[l]eaving medical open to address these future needs in light of the difficulty of predicting when intervention will be necessary and its precise nature would be recommended."

The administrative law judge also stated in his award that Dr. Hartley had opined that if employee's symptoms became worse, he would recommend additional diagnostic workup. Dr. Hartley also said that if employee's present symptoms persisted or increased, his recommendation would include "treatment of physical therapy for range of motion, strengthening of the left lower extremity, symptomatic modalities and walking aids. In addition, the use of nonsteroid anti-inflammatory agents, injections, visco-supplementation agents or consideration of joint injection of cortisone would not be inappropriate, depending on the diagnostic information provided. Continued bracing of the extremity will be necessary presently and continued in the future." Lastly, Dr. Hartley stated that if employee's present symptoms continue to persist, or increase, that his recommendation would include, but not be limited to, "repeat left knee examination under anesthesia, arthroscopy, arthroscopic cartilaginous debridement and arthroscopic meiscectomy versus meniscal repair and/or ACL shrinkage or reconstruction." Additionally, proximal tibial osteotomy, unincompartmental arthroplasty, and total knee arthroplasty may be needed in the future with anticipated degeneration of the knee joint surface.

Section 287.140.1 RSMo requires that the employer provide "such medical, surgical, chiropractic and hospital treatment...as may reasonably be required...to cure and relieve [the employee] from the effects of the injury." This has been held to mean that the worker is entitled to treatment that gives comfort or relieves even though restoration to soundness [a cure] is beyond avail. Bowers v. Highland Dairy Co., 132 S.W.3d 260, 266 (Mo. App. 2004); Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo. App. 1996). The employee must prove beyond speculation and by competent and substantial evidence that his or her work related injury is in need of treatment. Williams v. A.B. Chance Co., 676 S.W.2d 1 (Mo. App. 1984). However, conclusive evidence is not required. It is sufficient if employee shows by reasonable probability that he or she is in need of additional medical treatment. Bowers, 132 S.W.3d at 270.

In the present case, it is clear that the competent and substantial medical evidence provided by Drs. Koprivica and Hartley prove beyond speculation that employee's work related injury is in need of future medical treatment. On the other hand, employer's medical evidence is silent on the subject of future medical evidence. For the foregoing reasons, the Commission finds that employee is entitled to future medical benefits.

Section 287.140.1 RSMo. provides:

When an employee is required to submit to medical examinations or necessary medical treatment at a place outside of the local or metropolitan area from the employee's principal place of [injury or the place of his residence] employment, the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses; except that an injured employee who resides outside the state of Missouri and who is employed by an employer

Injury No.: 05-099387

Employee: Danny F. Green

- 3 -

located in Missouri shall have the option of selecting the location of services provided in this section either at a location within one hundred miles of the injured employee's residence, place of injury or place of hire by the employer....

Because employee's principal place of employment is Platte City and his place of residence is even further north of Platte City and the Sheriff's Office, the doctors visits are not local, especially when he has to drive 47 and 63 miles to and from the appointments. Furthermore, the Commission finds that Overland Park, Kansas and the adjoining counties of Clay and Jackson, are not part of the "metropolitan area" of Platte City. For the foregoing reasons, the Commission finds that employee is entitled to medical mileage reimbursement.

Upon careful review of the entire record and relevant Missouri law, the Commission determines and concludes that, pursuant to section 287.140.1 RSMo, employee is entitled to future medical benefits and medical mileage reimbursement.

**Award**

We modify the award of the administrative law judge on the issues of employee's future medical benefits and medical mileage reimbursement. Employee is entitled to both future medical benefits and medical mileage reimbursement to be paid by employer. In all other respects, we affirm the award.

The award and decision of Administrative Law Judge Carl Mueller issued March 2, 2009, 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.

Given at Jefferson City, State of Missouri, this 2nd day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Danny F. Green

Injury No: 05-099387

Dependents: N/A

Employer: Platte County

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: Mid America Regional Council Insurance Trust

Hearing Date: January 28, 2009

Checked by: RCM/rm

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 25, 2005
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte 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: Employee fell on his left knee while attempting to scale a fence in the course of his duties.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left lower extremity at the 160-week level.
14. Nature and extent of any permanent disability: 23.5 % permanent partial disability of the left lower extremity at the 160 -week level.
15. Compensation paid to-date for temporary disability: $\ 12,901.41
16. Value necessary medical aid paid to date by employer/insurer? $\ 26,631.43
17. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: $\ 728.67
2. Weekly compensation rate: $\ 485.78 for temporary total and $\ 365.08 for permanent partial disability
3. Method wages computation: By stipulation
4. Amount of compensation payable:

Medical Expenses

Medical Already Incurred $\ 26,631.43

Less credit for expenses already paid. $\ 26,631.43)

Total Medical Owing $\underline{0.00}$

26 and $4 / 7 s weeks \ 12,901.41

Less credit for benefits already paid. $\ 12,901.41)

Total TTD Owing. $\ 0.00

23.5 % disability of left knee (. $235 \times 160 weeks) x \$ 365.08 / week \ 13,727.01

Total Award: $\ 13,727.01

1. Second Injury Fund liability: None. The claim against the State Treasurer as Custodian of the Second Injury Fund is dismissed pursuant to the request of claimant's counsel made at the commencement of the hearing.
2. Future requirements awarded: None

Said payments to begin as of date of this award 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 twenty-five percent (25\%) lien totaling $\ 3,431.75 in favor of Frank Eppright, Attorney, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. $\S 287.260 .1$.

Employee: Danny F. Green

Injury No: 05-099387

Dependents: N/A

Employer: Platte County

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: Mid America Regional Council Insurance Trust

Hearing Date: January 28, 2009

Checked by: RCM/rm

On January 28, 2009, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 28