Kyle Hunter v. Sachs Electric

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 08-112333

Employee: Kyle Hunter

Employer: Sachs Electric

Insurer: Travelers Indemnity Company of America

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. ${ }^{1}$ Having reviewed the evidence, read the briefs, heard oral argument, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated January 23, 2012, as supplemented herein.

In denying employee's claim for permanent partial disability benefits, the ALJ concluded that while employee sustained acute synovitis from striking his knee at work on July 15, 2008, employee "did not materially change the structural soundness of his knee or cause any addition[al] chondral injury" to the knee. On appeal, employee argues that it is inconsistent to find that the injury caused synovitis, but yet did not cause an acute change to the structure of the knee. In support of his argument, employee meticulously analyzed the definitions of "synovitis," "membrane," and "inflammation" before concluding that it is impossible to have acute synovitis to the knee without an acute change to the structure of the knee.

The medical evidence supports a finding that as a result of the July 15, 2008, injury employee sustained acute synovitis, which caused acute inflammation and swelling to the knee. While employee focuses on proving that the July 15, 2008, injury caused an acute change to the structure of the knee, we find that the primary focus should be on proving that the July 15, 2008, accident was the prevailing factor in causing employee's permanent disability to the knee.

Dr. Milne opined that employee had 6\% permanent partial disability of the left knee, but stated that this entirely preexisted his work injury.

The ALJ thoroughly reviewed the evidence and concluded that Dr. Milne's opinion that employee did not have any permanent disability associated with his work injury was

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

more credible than Dr. Volarich's opinion that he did. We find that the ALJ's decision is fully supported by competent and substantial evidence.

We affirm the award of the ALJ as supplemented herein.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued January 23, 2012, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the ALJ'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 **21st** day of November 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSIN

Attest:

Secretary

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: July 15, 2008
5. State location where accident occurred or occupational disease was contracted: Saint Louis County
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 down stairs while carrying building materials.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: alleged left knee
14. Nature and extent of any permanent disability: 0 %
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? \$2,306.20

1. Value necessary medical aid not furnished by employer/insurer? $\ 13,725.59
2. Employee's average weekly wages: $\ 1,338.49
3. Weekly compensation rate: $\$ 772.53 / \ 404.66
4. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 13,725.59

$51 / 7 weeks of temporary total disability \ 3,973.01

0 weeks of permanent partial disability from Employer $\ 0.00

1. Second Injury Fund liability: No

TOTAL: $\ 17,698.60

1. Future requirements awarded:

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: Dean Christianson

Employee: Kyle Hunter

Dependents: N/A

Employer: Sachs Electric

Additional Party Second Injury Fund

Insurer: Travelers Indemnity Co of America

Hearing Date: October 20, 2011

Injury No.: 08-112333

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: KOB

The matter of Kyle Hunter ("Claimant") proceeded to final hearing on October 20, 2011. Attorney Dean Christianson represented Claimant. Attorney Rick Day represented Sachs Electric ("Employer"), and its insurer. Assistant Attorney General Rachel Houser represented the Second Injury Fund.

The parties stipulated Claimant was an employee of Employer on the alleged date of accident of July 15, 2008. The parties stipulated the St. Louis Division of Workers' Compensation is the proper venue, and notice, timeliness of the claim, and coverage of the Act were not at issue. At the relevant time, Claimant earned an average weekly wage of $\ 1,338.49, with corresponding rates of compensation of $\ 772.53 for temporary total disability ("TTD") benefits and $\ 404.66 for permanent partial disability ("PPD") benefits. Employer paid no TTD benefits, but did pay medical benefits of $\ 2,306.20.

The issues for determination are: 1) did Claimant sustain an accident ${ }^{1}$ arising out of and in the course of employment; 2) is the accident the prevailing cause of Claimant's medical condition and disability; 3) is Employer liable for past medical expenses of $\ 13,725.59; 4) is Employer obligated to provide future medical care; 5) is Employer liable for TTD benefits from September 14, 2009 to October 20, 2009; 6) what is Employer's liability for PPD benefits; and 7) what is the liability of the Second Injury Fund?

Claimant is a 45-year-old high school graduate who served eight years in the National Guard, and is a commercial electrician. In 1997, he tripped at work, fell, and hurt his left knee. He underwent a diagnostic arthroscopy that ruled out a meniscus tear, and confirmed grade III chondromalacia. Claimant settled his 1997 left knee claim for 22 % of the left knee. He returned to work, avoided kneeling, and experienced pain after long periods of work.

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[^0]: ${ }^{1}$ Although Employer did not stipulate to accident at the hearing, in the proposed award submitted post-trial, Employer conceded Claimant met his burden of establishing an accident as defined in the Act.

In 2008, Claimant worked for Sachs Electric as a journeyman electrician on a St. Louis County building project. On July 15, 2008, while carrying pieces of conduit down a temporary metal stairwell with awkwardly spaced steps, Claimant missed one of the steps, tumbled forward, and struck the front of his left knee on a metal pipe. He immediately felt fiery left knee pain.

Employer authorized treatment with Barnes Care. Claimant went to Barnes Care several times and received x-rays, an MRI, ice and a wrap for his knee. Employer accommodated his light duty restrictions. Claimant testified he continued to have complaints.

Employer authorized Claimant to see Dr. Milne in November. Despite Dr. Milne's recommendation for further care in the form of a high quality MRI or diagnostic arthroscopy, Employer did not authorize any more treatment. Feeling he was "not getting anywhere" with Employer, Claimant sought treatment on his own with Dr. Sedgwick, who performed surgery after conservative treatment. Claimant was off work for $51 / 7^{\text {th }}$ weeks on doctor's orders, and attended physical therapy at ProRehab. He is no longer treating, other than taking supplements, but incurred medical bills of $\ 13,725.59, as indicated in Exhibit H, for the treatment provided by Dr. Sedgwick. The statements submitted indicate that most or all of the charges have been written off, and the balances of the various accounts are near or at zero.

Claimant continues to have problems in his left knee. He describes a discomfort that increases with strenuous activity. He wears kneepads at work for protection, and to "hold things together." He elevates and ices his knee at night. Climbing ladders increases his discomfort and he sometimes asks co-workers for help. He is not able to run.

In 1998, Claimant sustained an accidental injury. The records of Dr. Kostman (Exhibit J) document a diagnostic arthroscopy on Claimant's left knee on June 22, 1998 to rule out a meniscus tear. The post-operative diagnosis was chondromalacia of the patella, specifically grade III chondromalacia involving the patellofemoral joint and the patellar surface. When he last saw Dr. Kostman, Claimant had full range of motion and no notable motor weakness, but still had some discomfort in his left knee when squatting or kneeling for an extended time. The workers' compensation settlement for this injury was equivalent to 22 % of the left knee. Claimant had few complaints or limitations over the years.

The BarnesCare records (Exhibit G) document four authorized visits. On July 15, 2008, Claimant received x-rays, a knee brace, medication, and restrictions to keep leg elevated, limit climbing and avoid kneeling and squatting entirely. On July 22, 2008, BarnesCare physicians released Claimant to full duty with the diagnosis of a knee contusion. At an incident recheck on November 12, 2008, BarnesCare physicians recommended an MRI, which revealed no evidence of meniscal tear. It did show articular cartilage narrowing in the lateral patellar facet that is likely degenerative and small joint effusion, but no other abnormality (Exhibit D). BarnesCare physicians discharged Claimant on November 24, 2008 with instructions to see his family doctor.

The next physician Claimant saw was Dr. Sedgwick on March 24, 2009, on referral by his attorney ${ }^{2}$ (Exhibit B). Upon examination, and considering his records and history, Dr. Sedgwick diagnosed Claimant with patellofemoral arthrosis with synovitis in the left knee. History of prior chondroplasty for grade III chondromalacia of the patella left knee - 1998. History of