Ervin Hampton v. R. C. Lonestar, Inc.

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Injury No.: 08-013352

Injury No.: 08-013352

When we apply the appropriate test, we are not persuaded that the total knee replacement was reasonably required to cure and relieve from the effects of the work injury. We find Dr. Burke's opinion on the issue credible and persuasive. Dr. Burke opined the work injury had nothing to do with employee's need for a total knee replacement, and that employee would have required a knee replacement based on the arthritic changes in his knee alone. We find Dr. Burke credible. We conclude the need for the total knee replacement did not flow from the work injury and was not reasonably required to cure and relieve from the effects of the work injury.

Accordingly, employee's claim for the cost of his total knee replacement is denied.

**Conclusion**

The Commission supplements the award and decision of the administrative law judge with our own analysis herein.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten issued June 10, 2011, is affirmed and attached hereto and incorporated herein to the extent it is not inconsistent with this supplemental opinion.

We approve and affirm 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.

Given at Jefferson City, State of Missouri, this 16TH day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 disagree with the majority's choice to deny employee's claim for medical expenses related to his total knee replacement.

On February 21, 2008, employee was cleaning a plug chute when he slipped and fell to the floor, injuring his right knee. The key issue in this matter is the nature and extent of the injury that employee suffered as a result of this event. Employer tries to limit its liability in this matter by blaming the condition of employee's knee on degenerative arthritis. But employee had no problems with his right knee before the accident, and the evidence is uncontested that he thereafter suffered unrelenting pain and disability that was so bad he ultimately had to get a total knee replacement. Clearly, something changed on February 21, 2008, within employee's right knee that caused him to become symptomatic. The parties have provided competing expert medical opinions on the issue.

Employee presents Dr. Berkin, who believes employee sustained a strain of his right knee which caused a tear in his medial meniscus and also aggravated the underlying arthritis in his knee. Dr. Berkin opined employee needed the total knee replacement as a result of the February 2008 work injury, rated employee's permanent partial disability of the right knee at 65 %, and opined employee will need future medical treatment for his right knee as a result of the work injury. Employer, on the other hand, presents Dr. Burke, who believes employee suffered only a medial meniscus tear as a result of the work injury, and that his other problems are totally unrelated to the work injury but instead the product of degenerative arthritis.

In my view, employer and Dr. Burke have set up a straw man argument here by characterizing Dr. Berkin's opinion as an anatomical impossibility because a medial meniscus tear doesn't cause Grade II or III arthritis. This is not what Dr. Berkin opined. Rather, Dr. Berkin believes the accident aggravated the arthritis and made it symptomatic. It appears both the administrative law judge and the majority failed to recognize this distinction, as the award affirmed by the majority basically restates employer's misleading theory as to why Dr. Berkin is not credible.

I find Dr. Berkin more credible than Dr. Burke. Dr. Burke asks us to believe a man with no knee problems whatsoever would have needed a total knee replacement in July 2008 even if he had not fallen down while working for employer in February 2008. To credit such an argument would require that we turn a blind eye to the medical treatment record, employee's history, and the undeniable reality that employee's problems started with the work injury and only progressed from there.

I find a total knee replacement was reasonably required as a result of the compensable injury employee sustained on February 21, 2008. I find that employee was temporarily totally disabled from July 30, 2008, until October 20, 2008. I find employee sustained a 50 % permanent partial disability as a result of the work injury. I would modify the award

Improvee: Ervin Hampton

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of the administrative law judge and enter an award granting additional permanent partial disability benefits, temporary total disability benefits, and the past and future medical benefits to which I believe employee is entitled.

Because the majority has determined otherwise, I respectfully dissent from the decision of the Commission.

Curtis E. Chick, Jr., Member

Employee: | Ervin Hampton |

Employer: R.C. Lonestar, Inc.

Insurer: Sentry Insurance Company

Appearances: Gary Matheny, attorney for employee.

Mike Banahan, attorney for the employer-insurer.

Hearing Date: March 9, 2011 Checked by: LCK/rf

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? February 21, 2008.
5. State location where accident occurred or occupational disease contracted: Jefferson 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.

On March 9, 2011, the employee, Ervin Hampton, appeared in person and with his attorney, Gary Matheny, for a hearing for a final award. The employer-insurer was represented at the hearing by it's' attorneys, Mike Banahan and Mary Ann Lindsey. Also present for the employer was Regional Human Resource Manager, Denise Menke. The Second Injury Fund was voluntarily dismissed without prejudice at the hearing. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. R.C. Lonestar, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its' liability was fully insured by Sentry Insurance Company.
2. On February 21, 2008 Ervin Hampton was an employee of R.C. Lonestar, Inc. and was working under the Workers' Compensation Act.
3. On February 21, 2008, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 930.61. The rate of compensation for temporary total disability is $\ 620.41 per week and for permanent partial disability is $\ 389.04 per week.
7. The employee's injury to the right medial meniscus and the March 10, 2008 surgery was medically causally related to the accident.
8. The employer-insurer paid $\ 3