Thomas Poss v. Lohr Distributing Co., Inc.

Employee first complained of right knee pain to Dr. Andrew Wayne December 1, 2004. Employee had already been seeing Dr. Wayne for his other conditions relating to the August 14, 2002, accident. Dr. Wayne noted that there was no swelling or discoloration over the knee. Employee had normal passive range of motion, but had mild tenderness over the medial jointline. Dr. Wayne attributed the right knee pain to compensatory gait pattern as opposed to any significant disorder with the right knee.

Employee continued to complain of right knee pain at visits with Dr. Wayne on December 21, 2004, and January 13, 2005. Dr. Wayne noted that he did not notice any significant objective abnormalities in the right knee and recommended that he periodically ice the knee and to elevate the knee if it gets swollen.

On March 8, 2005, employee alleged his "knee gave out" while walking down a curb and he went to St. Joseph Hospital of Kirkwood's emergency room. Employee alleged that his knee often gave out due to his right knee condition and that it was related to his altered gait. However, the medical records at St. Joseph Hospital state that employee injured his right knee when he "turned too quickly" and that he sustained a "twisting injury" while stepping down.

While at the ER, they examined employee's right knee which revealed moderate tenderness and mild swelling of the patella and limited ROM secondary to pain. An x-ray was taken of the right knee which showed no fracture, and mild degenerative joint disease. Dr. James Taylor recommended employee treat the injury with ice and gave him a knee immobilizer to wear until it was better.

Employee was next seen, regarding his right knee, by Dr. Wayne on August 26, 2005. Dr. Wayne summarized employee's prior treatment with him regarding employee's right knee. Dr. Wayne noted that he did not notice any significant objective abnormalities on examination and that he felt employee might have been experiencing some increased synovial fluid buildup but did not see any clinical evidence for internal derangement.

Dr. Wayne reviewed the notes from employee's March 8, 2005, visit at St. Joseph Hospital and noted that the x-rays did not reveal any acute abnormalities.

Employee complained to Dr. Wayne that he has persistent type pain in the right knee as well as a pulling sensation, and he says that the knee feels "unstable at times when he walks." However, employee denied any actual give way of the knee or any falls. Employee indicated that the pain has increased since the March 8, 2005, incident.

In McGraff v. Satellite Sprinkler Systems, 877 S.W.2d 704 (Mo. App. 1994), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), the court stated that "[m]edical causation ... must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause." Id. at 708. Even if supported by scientific medical evidence, "[a] medical expert's opinion must [also] be supported by facts and reasons proven by competent evidence that will give the opinion sufficient probative force to be substantial evidence." Silman v. Williams Montgomery \& Assoc., 891 S.W.2d 173, 176

(Mo. App. 1995), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

In this case, all of the medical evidence suggests that employee had an altered gait as a result of the problems caused to his left lower extremity from the work-related accident. However, the medical records from the March 8, 2005, incident do not show that this subsequent "twisting" injury to his right knee was caused by the work-related injury. Employee did not state that his knee "gave out" or that it was a result of his altered gait until he was questioned on the issue at the hearing. This testimony is contrary to the emergency room records. Employee stated that his right knee was worse after the March 8, 2005, incident, but has not sought any treatment for his right knee since the initial emergency room visit.

For the foregoing reasons, we find employer is not liable for the St. Joseph Hospital medical expenses relating to employee's alleged March 8, 2005, right knee injury, or any future medical care relating to employee's right knee.

We modify the award of the administrative law judge with respect to her award of past medical expenses relating specifically to employee's alleged March 8, 2005, right knee injury and any future medical care relating to employee's right knee. Employee is denied both past medical expenses relating specifically to employee's alleged March 8, 2005, right knee injury and any future medical care relating to employee's right knee. In all other respects, we affirm the award.

The award and decision of Administrative Law Judge Linda J. Wenman issued July 7, 2009, is attached hereto and incorporated herein to the extent it is 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 $26^{\text {th }}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

CONCURRING OPINION FILED

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

I submit this concurring opinion to disclose the fact that I was previously employed as a partner in the law firm of Evans and Dixon. While I was a partner, the instant case was assigned to the law firm for defense purposes. I had no actual knowledge of this case as a partner with Evans and Dixon. However, recognizing that there may exist the appearance of impropriety because of my previous status with the law firm of Evans and Dixon, I had no involvement or participation in the decision in this case until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case because there is no other mechanism in place to resolve the issues in the claim. Barker v. Secretary of State's Office, 752 S.W.2d 437 (Mo. App. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the modification of the award of the administrative law judge denying past medical expenses and future medical care relative to employee's right knee.

William F. Ringer, Chairman

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. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

John J. Hickey, Member

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 14, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 developed sharp low back pain while stacking cases of beer onto a pallet.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lumbar spine, left leg, psychiatric and right knee.
14. Nature and extent of any permanent disability: Permanent and total disability from Employer
15. Compensation paid to-date for temporary disability: $\ 144,235.25 covering two periods: $8 / 14 / 02-4 / 7 / 05, and 6 / 12 / 06-5 / 5 / 08$.
16. Value necessary medical aid paid to date by employer/insurer? \$302,369.29