Michael Webb v. Pepsi MidAmerica Company

arthritis to set in during the eighteen months employee went without treatment following his work injury, and found a medical causal relationship between the work injury and employee's arthritis. We disagree with this finding.

Dr. Haupt, a board-certified orthopedic surgeon, was employee's treating doctor and thus had the benefit of appraising employee's medical condition and right knee complaints from October 2007 through March 2008. Dr. Haupt performed the December 2007 right knee surgery. Dr. Haupt's post-operative diagnoses were Grade IV changes at the entire medial tibial plateau, Grade III and IV changes at the femoral trochlea, and chronic tearing of the medial meniscus. Dr. Haupt explained that chondromalacia is the breakdown of the articular cartilage covering the ends of bones and that in employee's case, there is no articular cartilage left to be broken down. Dr. Haupt opined that employee's Grade IV chondromalacia is the result of a chronic rather than an acute process. Dr. Haupt explained that the acute injury suffered by employee on December 1, 2005, was a hyperflexion injury that resulted in a meniscus tear, and that employee's arthritis was a condition preexisting and unrelated to the work injury. Dr. Haupt found employee at maximum medical improvement on December 1, 2005, in regard to the work injury, and opined that employee is not in need of future medical treatment related to the effects of the work injury. Dr. Milne concurred in Dr. Haupt's opinion that employee's degenerative conditions of the right knee were preexisting rather than the results of the work injury, and that there is no need for future medical treatment flowing from the work injury. Dr. Volarich offered conflicting opinions, but we find his testimony less persuasive than that of Drs. Haupt and Milne.

Because we are convinced Drs. Haupt and Milne provided the more convincing expert medical testimony in this matter, we conclude that the work injury of December 1, 2005, was not the prevailing factor causing employee's chondromalacia and degenerative conditions of the right knee, and we credit Dr. Haupt's opinion that employee is at maximum medical improvement and that any need employee has for future medical care is attributable to employee's preexisting conditions and does not flow from the work injury.

Nature and extent of permanent disability referable to the December 1, 2005, work injury The administrative law judge took into account employee's preexisting degenerative conditions of the right knee when he found that employee suffered a 35\% permanent partial disability of the right knee at the 160-week level as a result of the work injury. Given our resolution of the conflicting medical expert testimony, we disagree with the administrative law judge's assessment of the nature and extent of employee's permanent partial disability.

Dr. Haupt opined that employee has an overall 10\% permanent partial disability of the right knee, of which 3 % is attributable to the work injury. Dr. Milne found a 15 % overall permanent partial disability of the right knee, with 5 % attributable to the work injury. Dr. Volarich found a 50 % permanent partial disability of the right knee, but took into account the degenerative conditions we have found unrelated to the work injury and did not provide an alternative rating limited to employee's disability resulting from the medial meniscus tear. We note employee's testimony regarding the considerable difficulties and limitations he presently suffers in regard to his right knee, but we find employee's testimony lacking probative value

en the issue because he offered an overall picture of his present disability that includes the effects of the preexisting degenerative conditions we have found unrelated to the work injury.

After carefully weighing the evidence presented, we find that employee sustained a 15\% permanent partial disability of the right knee at the 160-week level.

The question is whether employee met his burden of demonstrating he is entitled to future medical treatment as a result of the work injury of December 1, 2005. Section 287.140.1 RSMo provides, as follows:

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.

We have credited the opinions of Drs. Milne and Haupt that employee has no need for future medical care as a result of the December 1, 2005, injury, and that any need for future medical care is related to his preexisting degenerative conditions.

The claimant is not required to present evidence of the specific medical care that will be needed but he is required to establish through competent medical evidence that the care requested flows from the accident. An employer is required to compensate for future medical care only if the evidence establishes a reasonable probability that additional medical treatment is needed and, to a reasonable degree of medical certainty, that the need arose from the work injury.

ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007) (citations omitted).

We conclude that employee has failed to meet his burden of establishing a reasonable probability that additional medical treatment is needed and that the need arose from the work injury. Accordingly, we conclude that employer is not liable for future medical treatment.

Nature and extent of permanent partial disability resulting from the work injury The question is the nature and extent of permanent disability resulting from the work injury of December 1, 2005.

The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a

medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.

Elliott v. Kan. City School Dist., 71 S.W.3d 652, 657 (Mo. App. 2002) (citations omitted).

We have found that employee sustained a 15\% permanent partial disability of the right knee as a result of the work injury of December 1, 2005. Employee is entitled to permanent partial disability benefits consistent with this finding, and employer is liable for same.

We modify the award of the administrative law judge. We find that employee failed to meet his burden of proving he is entitled to future medical treatment. Accordingly, we conclude employer is not liable for future medical treatment. Additionally, we find that employee did not sustain a 35\% permanent partial disability but rather sustained a 15\% permanent partial disability of the right knee at the 160-week level as a result of the work injury. Employer is liable for permanent partial disability benefits in the amount of $\ 8,761.92 ( 24 weeks $x \ 365.08 ).

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 Carl Strange, issued August 20, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 2^{\text {nd }} \qquad$ day of June 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

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.

I disagree with the majority's credibility determinations on the issue of medical causation. On December 1, 2005, employee slipped on a pile of sugar while working for employer. Employee's right leg and knee were twisted and pinned underneath him as he fell to the floor. Employer had timely notice of employee's injury, but nonetheless neglected to have him sent for treatment. As a result, employee walked around and worked on an injured knee for approximately sixteen to eighteen months before receiving the treatment he needed, which eventually included surgery. Employee had no complaints or problems with either of his knees prior to December 1, 2005. Currently, employee's right knee swells, catches, is painful, lacks mobility, and