Robert Gregory v. Modine Manufacturing

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-002381

Employee: Robert Gregory

Employer: Modine Manufacturing

Insurer: Sentry Insurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated November 28, 2011. The award and decision of Administrative Law Judge Karen Fisher, issued November 28, 2011, is attached and incorporated by this reference.

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.

Given at Jefferson City, State of Missouri, this $\qquad 19^{\text {th }} \qquad$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED

James Avery, Member

Curtis E. Chick, Jr., 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 (ALJ) should be reversed because employee failed to prove that the January 10, 2008, accident was the prevailing factor in causing his injury.

Employee's history of problems with his left knee began over 30 years prior to the January 10, 2008, work accident. When employee was approximately 32 or 33 years old he jammed his knee while sliding into second base during a softball game. This incident resulted in noticeable swelling. Approximately 10 years later employee had a flare up of pain in his left knee, but he could never identify what triggered this incident. However, the pain was severe enough to cause employee to go to a doctor for a cortisone injection. Employee had a third occasion of left knee pain in the 1990s, which again led him to the doctor for another cortisone injection. Employee could not identify what caused the onset of symptoms for this incident either.

Employee injured his knee as a result of a fall in November 2007, which was the fourth prior incident affecting his left knee. This injury caused sufficient pain and employee immediately sought medical treatment. Dr. Grantham diagnosed a torn medial meniscus and performed surgery to repair the knee on December 14, 2007.

Employee had a follow-up appointment with Dr. Grantham on December 27, 2007. The office note from that visit indicates that employee was doing well, but Dr. Grantham told employee to continue his rehab on the knee and "continue with activity and work restrictions." Employee was to follow-up with Dr. Grantham again in four weeks, which would have been January 24, 2008.

Before employee could follow-up with Dr. Grantham regarding his left knee condition, he sustained a new fall on January 10, 2008. The incident occurred when employee was checking inventory in the plant and tripped on a piece of weld wire. When he tripped, employee twisted his left knee and fell to the floor on his left knee. The following day employee was sent to the Freeman Occumed clinic for his complaints of left knee pain.

Employee was seen again at the Occumed clinic on January 18, 2008. At the visit, x-rays were taken and employee was told to follow-up with Dr. Grantham because the problems he was having in his left knee were related to the 2007 surgery, not the January 10, 2008, fall. Employee followed up with Dr. Grantham on January 24, 2008. Employee was released from treatment by Dr. Grantham at the January 24, 2008, office visit.

Employee next sought medical care in March 2008 with a chiropractor, Dr. Carson. Dr. Carson's office note of March 7, 2008, contains the entry: "Knee surgery December 2007, went to PT times two, slipped three to four weeks later, reinjured left knee, then played golf, aggravated knee."

Employee returned to Dr. Grantham on March 18, 2008. Employee related to Dr. Grantham that his knee had gotten better after the 2007 surgery and the 2008 incident, but had started bothering him again recently. Employee underwent another left knee surgery by Dr. Grantham on April 21, 2008. Employee improved after the surgery, but eventually had a return of pain in the knee. Employee was released from Dr. Grantham's care in July 2008, but returned again in August 2008 with renewed symptoms. Dr. Grantham noted that employee returned with complaints of increased pain over the medial aspect of his left knee after playing golf.

Employee eventually treated with Dr. Black, who performed a total knee arthroplasty on March 23, 2009. Employee was released from Dr. Black's care in July 2009. Dr. Black wrote a letter dated April 20, 2009, in which he stated that employee's total knee arthroplasty was related to the January 2008 fall.

Employee underwent an independent medical evaluation by Dr. Swaim. Dr. Swaim opined that the January 10, 2008, occupational injury caused the left knee condition that led to all of the treatment received thereafter. He rated employee's permanent partial disability at 35 % rated at the left knee.

Dr. Estep was the first doctor to evaluate employee following the work incident on January 10, 2008. Dr. Estep opined that the prevailing factor in the employee's difficulties at that time was not the alleged work event, but postsurgical difficulty from the December 2007 procedure.

Dr. Roeder performed an independent medical evaluation on January 13, 2010. Dr. Roeder stated: "It is clear that [employee] ultimately had substantial degenerative changes in his knee, requiring knee replacement." With regard to causation, Dr. Roeder stated that "the degenerative changes and possible avascular necrosis were present prior to the injury on 01/10/08. I think these preexisting changes are the prevailing factor in the need for the knee replacement. It is my opinion that the work incident on 01/10/08 was not the prevailing factor in leading to the treatment [employee] received, including the total knee arthroplasty."

Dr. Burleigh also saw employee at the Occumed clinic. He saw employee on January 18, 2008, and included in his note that work was not the prevailing factor in employee's condition.

First of all, it is important to note that employee's alleged injury occurred on January 10, 2008. Therefore, this case falls under the purview of the 2005 amendments to Missouri Workers' Compensation Law.

Section 287.120 RSMo ${ }^{1}$ "requires employers to furnish compensation according to the provisions of the Workers' Compensation Law for personal injuries of employees caused by accidents arising out of and in the course of the employee's employment." Gordon v. City of Ellisville, 268 S.W.3d 454, 458-59 (Mo. App. 2008).

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007 unless otherwise indicated.

Improve: Robert Gregory

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Section 287.020.2 RSMo defines "accident" as: "An unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor."

Pursuant to § 287.020.3 RSMo, an "injury" is defined to be "an injury which has arisen out of and in the course of employment." Section 287.020.3(1) RSMo further states that:

"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."

It is employee's "burden to prove all essential elements of his claim, including a causal connection between the injury and the job." *Bond v. Site Line Surveying*, 322 S.W.3d 165, 170 (Mo. App. 2010). Therefore, the primary issue in this case is whether employee met his burden of establishing that the January 10, 2008, incident was the prevailing factor in causing the injury.

I do not believe employee met his burden of proof that his injury arose out of and in the course of his employment because the great weight of the evidence established that the January 10, 2008, incident was not the prevailing factor in causing employee's injury to his left knee. In my opinion, the January 10, 2008, incident was merely a triggering or precipitating factor relating back to employee's history of left knee problems and, more specifically, the December 2007 surgery for which employee was still treating with Dr. Grantham.

The opinions of Dr. Estep, Dr. Roeder, and Dr. Burleigh are more credible than Drs. Swaim and Black. Dr. Estep had the unique perspective of seeing employee within a day of the January 10, 2008, work incident and he believed that the prevailing factor in causing his injury was his postsurgical difficulty, not the work incident. Dr. Estep had contemporaneous information about the status of employee's knee before the event and about any change in the knee right after the event.

Dr. Roeder noted that employee's knee condition was caused by his preexisting degenerative condition. He opined that the January 10, 2008, incident was not the prevailing factor in causing employee's injury. Dr. Roeder noted that the physiological problems in employee's knee were not solved by the December 2007 surgery because employee was continuing to have problems on the date of the alleged incident.

Dr. Burleigh set out his opinion in the "Workers' Compensation Treatment Form" completed during employee's January 18, 2008, visit. Dr. Burleigh marked the box indicating that the work incident was "Not Prevailing Factor." Dr. Burleigh's medical causation opinion is further evidenced by his impression of employee's x-ray results, which indicate employee had "postoperative symptomatology."

Injury No.: 08-002381

Drs. Swaim and Black's opinions should be given less weight. Dr. Swaim conceded that a number of different factors could have caused employee's knee injury, including employee's obesity, degenerative changes prior to January 2008, or an osteochondral defect that may have also preexisted the January 10, 2008, incident. In addition to the aforementioned, Dr. Swaim provided his opinions without the knowledge of employee's left knee problems occurring prior to the November 2007 fall.

Dr. Black simply found employee's "total knee arthroplasty to be related to his fall." Dr. Black's opinion fails to meet the level of proof required of $\S 287.020 .3$ RSMo, which requires the prevailing factor to be "the primary factor in relation to any other factor." Without more, Dr. Black's opinion could simply mean that he believes the January 10, 2008, incident was a "triggering" or "precipitating" factor, which would not be compensable.

For the foregoing reasons, I find that the great weight of the evidence establishes that employee failed to meet his burden of proving that the January 10, 2008, work incident was the prevailing factor in causing his left knee condition. As such, I would reverse the award of the ALJ and issue a final award denying compensation.

I respectfully dissent from the decision of the majority of the Commission.

James Avery, Member