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Phyllis Tillotson v. St. Joseph Medical Center

Decision date: August 25, 201013 pages

Summary

The Labor and Industrial Relations Commission affirmed the administrative law judge's decision denying workers' compensation benefits to an employee who sustained a lateral meniscus tear to her knee when a patient bed rolled unexpectedly during repositioning. The Commission found the employee failed to prove that the accident, rather than preexisting arthritis, was the prevailing factor in causing the need for knee replacement surgery.

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Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-015463

Employee: Phyllis A. Tillotson

Employer: St. Joseph Medical Center

Insurer: Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 6, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Carl Mueller, issued October 6, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $25^{\text {th }}$ day of August 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

Attest: John J. Hickey, Member

Secretary

DISSENTING OPINION

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon 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 to deny benefits should be reversed.

Preliminaries

On January 7, 2006, employee and a coworker were repositioning a patient on a bed. The wheels of the bed were not locked and the bed rolled unexpectedly causing employee to lose her balance and strike her knee on the arm of a chair. Employee immediately felt severe pain and could not put weight on her right leg.

An MRI revealed that claimant had a lateral meniscus tear. The MRI also revealed degenerative changes involving the medical meniscus. The treating physician selected by employer recommended a knee replacement. Employer sent employee to be evaluated by Dr. Stechschulte who agreed a knee replacement is indicated but opined that employee's "preexisting arthritis is the major prevailing factor for the need for this surgery."

The administrative law judge found that employee sustained a compensable accident, but failed to prove that the accident was the prevailing factor in causing her need for surgery. Further, the administrative law judge concluded that employee failed to prove that she sustained any disability as a result of the accident.

Compensability

Section 287.120.1 RSMo (2005) ${ }^{1}$ sets out employer's obligation to provide compensation under Chapter 287.

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.

In turn, "injury" and "accident" are defined in § 287.020 RSMo. Section 287.020.3(1) RSMo defines "injury" as an injury that arises out of and in the course of employment.

In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

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[^0]: ${ }^{1}$ All references are to the 2005 Revised Statutes of Missouri, unless otherwise indicated.

If an injury by accident is compensable under the Workers' Compensation Law, we look to § 287.140.1 RSMo, to determine employer's liability to provide treatment for the injury.

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Strict Construction

Section 287.800.1 RSMo provides that,"[a]dministrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly."

"[A] strict construction of a statute presumes nothing that is not expressed." 3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6th ed. 2008). The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. 82 C.J.S. Statutes § 376 (1999). Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. 3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6th ed. 2008). The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions. 3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6th ed. 2008).

Allcorn v. Tap Enterprises, 277 S.W.3d 823, 828 (Mo. App. 2009)

Past Medical Expenses and Future Medical Care

Although the administrative law judge found employee sustained an injury by accident arising out of and in the course of employment, the administrative law judge denied compensation for medical expenses. The administrative law judge's denial was based upon his erroneous belief that the statute requires employee to prove that the accident was the prevailing factor in causing her need for a total knee replacement (TKR). I have highlighted the erroneous standard as it appears in the following administrative law judge's findings.

  1. Ms. Tillotson's arthritis present at the time of her accident was the prevailing factor in causing her need for her TKR. Employer's Exhibit 2 at 17:5-22, and Employer's Exhibit 1 at 10:12-14.
  1. While Dr. Koprivica is a well-qualified rating doctor, I find that he does not possess the expertise necessary to offer credible conclusive opinions regarding the cause of precise orthopedic conditions. When presented with the opinions of board certified and board eligible orthopedic surgeons whose practices are predominantly centered on treating patients, such as Drs. Van Den Berghe and Stechschulte, I will defer - and give greater weight - to their medical causation opinions instead of Dr. Koprivica's opinions. I do not find Dr. Koprivica's opinion that Ms. Tillotson's January 7, 2006 accident was the prevailing factor in causing her need for a TKR credible and I disbelieve this opinion. While interesting, Dr. Koprivica's "torn rag" analogy misrepresents the medical condition and effects of Ms. Tillotson's arthritis that was diagnosed by Drs. Van Den Berghe and Stechschulte. See, Claimant's Exhibit A at 24:11-25:6. More accurately, at the time of Ms. Tillotson's accident, the "rag" already was worn so thin that it required being replaced before it "tore"; the "tear" simply brought attention to a fact that already existed at the time it occurred.
  2. I reject Dr. Koprivica's conclusion that the prevailing factor in causing Ms. Tillotson's need for a TKR was both her tri-compartmental arthritis and her January 7, 2006 injury. Id. at 45:2 - 46:5. Had Ms. Tillotson suffered only a meniscal tear, a TKR would not have been required. Employer's Exhibit 2 at 9:16 - 11:14, and Employer's Exhibit 1 at 16:7 - 19. Ms. Tillotson required a TKR because of her arthritis alone that existed at the time of her accident.
  3. Because I find that Ms. Tillotson's accident was not the prevailing factor in causing her TKR I deny her request for future medical care. Neither Drs. Van Den Berghe nor Stechschulte testified that Ms. Tillotson required additional medical care, and Dr. Koprivica only testified that she required testing for deep venous thrombosis related to her TKR. Id. at 54:12-22.
  4. Ms. Tillotson requested reimbursement for medical expenses totaling $\ 4,646.21 related to her TKR. Because I find that the TKR was not due to her accident, I deny her request for reimbursement of these expenses.

The primary problem with the administrative law judge's analysis is that the Workers' Compensation Law does not impose upon employee the burden to prove that her accident was the prevailing factor in causing her need for medical treatment. The text of $\S 287.140 .1$ bears repeating.

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

The statute does not recite a prevailing factor standard and, under a strict construction, the operation of the statute is confined to matters affirmatively pointed out by its terms. Id.

The administrative law judge correctly determined that employee sustained a compensable injury. Under § 287.140.1, we are called upon to determine if the TKR was reasonably required to cure and relieve employee from the effects of the work injury. If the TKR was reasonably required to cure or relieve employee of the effects of the work injury, employer should have provided the TKR and is now required to reimburse employee for the expenses of the TKR.

So what were the effects of employee's work injury? Employee sustained a torn lateral meniscus. Dr. Van den Berghe removed employee's menisci, so the TKR undoubtedly cured the tear. As a result of the work injury, employee suffered pain due to the swelling, tear, and rapid progression of her arthritis. Dr. Van den Berghe removed employee's knee structures, thereby reducing the pain. The TKR clearly relieved employee of the pain in her knee. The TKR cured and relieved employee of the effects of her injury. Dr. Van den Berghe testified he would not have performed the surgery if employee was not suffering pain. Clearly, the surgery was reasonably required to eliminate the lateral meniscus tear and to alleviate employee's pain.

We are not charged with considering whether the TKR also cured or relieved employee of the effects of other conditions. "[T]he need for the treatment must flow from the work injury, the fact that it also benefits a noncompensable condition is irrelevant." Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 268 (Mo. App. 2004).

Employee is entitled to reimbursement of her medical expenses.

Dr. Koprivica testified that employee suffers from continued swelling of her right lower extremity, which exposes her to a greater risk of deep venous thrombosis. Dr. Koprivica believes employee should be medically monitored for this risk. Dr. Koprivica also believes employee may need another TKR in the future because the life expectancy of a TKR is 10-15 years.

Employee is entitled to an award of future medical care.

Temporary Total Disability

Because claimant's TKR was reasonably required to cure and relieve the effects of employee's work injury, she is entitled to temporary total disability for her recovery period after the TKR. The administrative law judge found that employee was totally disabled following the TKR from June 16, 2006, through December 11, 2006, representing twenty five and three-sevenths weeks. I agree. Since employee was entitled to compensation in the form of the TKR, employee is entitled to temporary total disability benefits during her hearing period.

Permanent Partial Disability

Empl

Full decision text continues in the plain-text archive copy.

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