Larry Shelton v. Levy Restaurant

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 06-080998

Employee: Larry Shelton

Employer: Levy Restaurant

Insurer: New Hampshire Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have heard the oral arguments of the parties. We have reviewed the evidence and considered the whole record and we find 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, except as modified herein. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the October 18, 2010, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Dr. Volarich was the only expert to offer an opinion on the extent of the permanent partial disability employee suffered as a result of his work accident. Dr. Volarich believes employee sustained a 35 % permanent partial disability of the right knee as a result of the work accident. We find this opinion credible. We modify the award of permanent partial disability due from employer/insurer to employee to 35 % at the level of the knee.

The administrative law judge found that employer/insurer shall provide to employee a total knee replacement on the basis that the work accident accelerated the time when employee would need the knee replacement. The administrative law judge's ruling is consistent with the opinion of Dr. Kramer. But employee must prove more than that the work injury changed the timing of the need for medical treatment. Employee must prove that the work injury caused the need for the medical treatment.

Dr. Anderson believed employee could benefit from a knee replacement in 2003. Dr. Kramer believed that employee would have ultimately needed a knee replacement even if he had not suffered the work injury. Dr. Haupt testified that employee's pre-existing degenerative arthritis is the prevailing factor in causing employee's need for knee replacement. Dr. Ralph believes employee needs a total knee replacement but that it is not employer's responsibility to pay for it.

In December 2003, before the work injury, Dr. Anderson told employee his best option for relief of his right knee problems would be a knee replacement but employee wanted to wait. At most, the work accident and treatment accelerated the time at which employee would agree to the surgery. Our job is to determine if the work injury caused the need for surgery, not to determine what caused employee to agree to have the surgery.

[^0]

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

"Future medical care must flow from the accident before the employer is to be held responsible...."2 Employee's need for a total knee replacement did not flow from the work accident. It flowed from his preexisting degenerative arthritis. In other words, the need for a knee replacement is not an "effect" of the work injury. See § 287.140 RSMo. Consequently, employer/insurer is not obligated to provide to employee a knee replacement.

The primary injury increased employee's knee pain. Dr. Volarich and Dr. Kramer offered opinions that employee will need pain management to relieve the pain. Employee has established a reasonable probability that he will need pain management to relieve the effects of his injury. Employer/insurer shall provide to employee such pain management as is necessary to relieve him of the knee pain. This is so even if the treatment also relieves pain emanating from other conditions. ${ }^{3}$

We modify the award of permanent partial disability. Employer/insurer shall pay to employee 56 weeks of permanent partial disability benefits ( 35 % at the level of the knee).

We reverse the portion of the administrative law judge's future medical award concluding that employer/insurer is responsible for providing to employee a total knee replacement. Employer is not so obligated. Employer/insurer shall provide pain management to relieve the effects of the injury.

In all other respects, we affirm the award of the administrative law judge.

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.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued October 18, 2010, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $25^{\text {th }}$ day of May 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

[^0]

[^0]: ${ }^{2}$ Sifferman v. Sears, Roebuck \& Co., 906 S.W.2d 823 (Mo. App. 1995).

${ }^{3}$ Bowers v. Hiland Dairy Co., 132 S.W.3d 260 (Mo. Ct. App. 2004).

I have reviewed and considered all of the competent and substantial evidence on the whole record. I believe the decision of the administrative law judge should be modified. I would modify the award to a temporary award directing employer/insurer to provide to employee the knee replacement surgery and I would defer consideration of employee's permanent disability and future medical care needs until he has recovered from the surgery.

For that reason, I respectfully dissent from the decision of the majority of the Commission to modify the award of the administrative law to reduce the benefits awarded in this case.

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, 2006
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: Claimant fell as bottom of escalator while performing banquet set-up.
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: right knee
14. Nature and extent of any permanent disability: 40 % PPD of the right knee
15. Compensation paid to-date for temporary disability: $\ 2,860.67 ( 15 weeks)
16. Value necessary medical aid paid to date by employer/insurer? $\ 21,497.14

Employee: Larry Shelton Injury No.: 06-080998

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Disputed
3. Weekly compensation rate: $\ 376.55 PPD rate
4. Method wages computation: Stipulation

1. Amount of compensation payable:

64 weeks of permanent partial disability from Employer $\ 24,099.20

1. Second Injury Fund liability: Open

TOTAL:

$\ 24,099.20

1. Future requirements awarded: Yes (see narrative award).

Said payments to begin immediately 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 lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

John J. Larsen, Jr.

This case involves a compensable right knee injury resulting to Claimant with the reported accident date of August 14, 2006. Employer admits Claimant was employed on said date and that any liability was fully insured. The Second Injury Fund is a party to this claim but remains open for a determination of liability at a future date. Both parties are represented by counsel.

1. medical causation/attribution;
2. nature and extent of permanent partial disability; and,
3. future medical expenses.

Claimant, age 61, was employed as a bar tender/caterer for Employer when he fell at the bottom of an escalator and hyperflexed his right knee. Claimant performs banquet services, particularly bars. Claimant has other employment requiring him to be on his feet, including that as a school teacher and as referee/umpire for amateur sporting events.

Claimant reported his injury and first treated with BarnesCARE where x-rays revealed severe degenerative joint changes including spurring and sclerosis. The tibial femoral joint showed marked degenerative change. Dr. Anderson examined Claimant on September 19, 2006 after a recent twist while walking. An injection was recommended.

Claimant testified about his physical activity surrounding his routinely high number of sporting events he officiated. Claimant refereed basketball and baseball. He frequently had two or more games per day on the weekend and games throughout the week. He fully explained the running and pivoting and squatting and scissors movements.

On October 11, 2006 he saw Dr. Haupt who recommended surgery. Patient preference led to referral to Dr. Kramer who first saw Claimant on November 20, 2006 and performed surgery on February 16, 2007 for partial medial menisectomy, lateral menisectomy, articular cartilage and debridement generally, including the ACL. Post-surgery the right knee was aspirated and injected on March 21, 2007 and again on April 7, 2007. Knee swelling and pain continued. Dr. Kramer prognosed knee replacement. Claimant was off work for 15 weeks.

Dr. Kramer noted on April 30, 2007 that claimant reported that he had little discomfort prior to the reported injury. Dr. Kramer released Claimant July 14, 2007 with rather severe limitations of sitting standing in periods no longer than twenty minutes (notwithstanding the fact this may be suitable for teaching in a traditional classroom setting).

Claimant underwent a right knee surgery in 1997 for right medial meniscus tear, chrondamalcia of the patella, trochlea, medial femoral condyle lateral tibia plateau and posterior cruciate ligament injury. A prior 1995 right knee arthroscopic surgery is in evidence but apparently undocumented and undisputed. Claimant underwent a series of right knee injections in November-December 2003. In January 2004, Dr. Anderson noted Claimant had a prognosis for knee replacement surgery

Claimant offered the depostion of Dr. Volarich as Exhibit A. Dr. Volarich reviewed the treatment record including the prior