Jackie Maize v. Preferred Family Healthcare, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-006324

Employee: Jackie Maize

Employer: Preferred Family Healthcare, Inc.

Insurer: Missouri Employers Mutual Insurance Co.

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated October 31, 2012.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge Vicky Ruth, issued October 31, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 13^{\text {th }}$ day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Jackie Maize

Injury No. 111-006324

Dependents: N/A

Employer: Preferred Family Healthcare, Inc.

Address: 111-006324

Address: 111-006324

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance Co.

Hearing Date: July 31, 2012

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: January 9, 2011.
5. State location where accident occurred or occupational disease was contracted: Kirksville, 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.
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee suffered an injury to his right knee when he slipped on some gravel as he was stepping up into his truck in the employer's parking lot.

1. Did accident or occupational disease cause death? No. Date of death? N/A.
2. Part(s) of body allegedly injured by accident or occupational disease: Right knee/leg.
3. Nature and extent of any permanent disability: N/A.
4. Compensation paid to-date for temporary disability: None.
5. Value necessary medical aid paid to date by employer/insurer? $\ 3,776.43.
6. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: $\ 276.58.
2. Weekly compensation rate: $\$ 184.38 / \ 184.38.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer: See below.
2. Second Injury Fund liability: N/A.
3. Future medical awarded: Yes.

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

Employee: Jackie Maize

Injury No: 11-006324

Dependents: N/A

Employer: Preferred Family Health Care, Inc.

Additional Party: N/A

Insurer: Missouri Employer Mutual

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On July 31, 2012, Jackie Maize and Preferred Family Health Care, Inc./Missouri Employers Mutual appeared in Jefferson City, Missouri, for a temporary award hearing. ${ }^{1}$ Jackie Maize, the claimant, was represented by attorney Keith Link. Preferred Family Health Care, Inc. and Missouri Employers Mutual (the employer/insurer) were represented by attorney Eric Lanham. Late-filed exhibit 3 was submitted on August 2, 2012. Claimant submitted his brief on August 18, 2912. The employer/insurer submitted a brief on August 24, 2012, and the record closed at that time. Claimant's attorney requests an attorney's fee of 25 %.

The parties stipulated to the following:

1. On or about January 9, 2011, claimant was an employee of the employer.
2. The claimant and the employer were operating under and subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was insured by Missouri Employers Mutual Insurance (the insurer).
4. A Claim for Compensation was filed within the time prescribed by law.
5. Notice is not an issue.
6. The Missouri Division of Workers' Compensation has jurisdiction and venue in Adair County is proper. By agreement of the parties, the hearing was held in Jefferson City, Missouri.
7. Claimant's compensation rate was $\ 184.38 for temporary total disability benefits and permanent partial disability benefits.
8. No temporary disability benefits were provided.
9. Medical aid was provided in the amount of $\ 3,776.43.

[^0]

[^0]: ${ }^{1}$ The hearing was a hardship hearing, but was not brought under Section 287.203.

At the hearing, the parties agreed that the following issues are to be resolved in this proceeding:

1. Accident arising out and in the course of employment.
2. Medical causation.
3. Need for additional medical treatment.
4. Attorney costs and fees under Section 287.560.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit A Deposition of Dr. Dwight Woiteshek.

Exhibit B Medical records from Dr. Robert Sparks.

Exhibit C Medical records from Northeast Regional Medical Center.

Exhibit D Kirksville Osteopathic Medical Center.

Exhibit E Medical Records from North Kansas Hospital.

Exhibit F Records from Columbia Orthopaedic Group.

Exhibit G Medical records from Northeast Regional Medical Center Radiology.

Exhibit H Letter, dated July 10, 2012, from Keith Link to Eric Lanham.

Exhibit I Itemization of costs and fees pursuant to Section 287.560, RSMo. (late-filed on 8/02/12).

On behalf of the employer/insurer, the following exhibits were admitted into evidence:

Exhibit 1 Deposition of Jackie Maize.

Exhibit 2 Deposition of Dr. Michael Nogalski.

Exhibit 3 Medical records.

Note: All marks, handwritten notations, highlighting, and tabs on the exhibits were present at the time the documents were admitted into evidence. The deposition was received subject to the objections contained therein.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings of fact:

1. Claimant was born on May 25, 1946. At the time of the trial, he was 66 years old. Claimant lives in Kirksville, Missouri.

1. In late 2010, claimant began working for Preferred Family Health Care (the employer) as a residential care technician. He worked there for two years on a part-time basis until approximately two weeks before the hearing, when he left for reasons unrelated to the work injury. Prior to his employment with the employer, claimant worked for the Kirksville Fire Department and retired after approximately 35 years of service.
2. Claimant's duties as a residential care technician included cleaning rooms, checking on residents, and doing the facility's laundry.
3. On January 9, 2011, claimant completed his work shift and prepared to go home. He walked outside to his pick-up truck, which was parked in the employer's parking lot. He had parked under an overhead light that was surrounded by a circular concrete curb and filled with river gravel. He stepped up onto the curb and his right foot slipped on gravel that was on top of the curb. As he slipped, his right knee bent forward and then backwards. He grabbed the pick-up truck to keep from falling. He heard a pop and felt a sharp snap on the inside of his right knee, and he had immediate pain in the right knee.
4. Claimant testified that this incident occurred on the employer's property, specifically on the parking lot, and that the employer controlled and maintained the area. He testified that employees were allowed and encouraged by the employer to park their vehicles in this area.
5. Claimant testified that this incident occurred on a weekend day and therefore, there was not a supervisor available for him to report the incident to; instead, he went home. Claimant reported the incident the following Monday. Claimant continued to work as he waited to see if his knee would improve.
6. The employer/insurer sent claimant to see Dr. Sparks on February 3, 2011. On that date, claimant provided a consistent history of the January 9, 2011 incident. Dr. Sparks' examination revealed significant tenderness to the entire knee, including significant joint line tenderness along the medial aspect of the right knee. ${ }^{2}$ Dr. Sparks diagnosed probable internal derangement of the right knee, recommended an MRI of the right knee, restricted the Employee's duty to "no steps," prescribed Voltaren for pain, and prescribed a knee immobilizer.
7. The right knee MRI was performed on February 3, 2011 at Northeast Regional Medical Center. ${ }^{3}$ In addition to arthritic changes in the knee, the MRI was interpreted by the radiologist to also show "an osteochondral injury through the posterior femoral condyle with associated bone marrow edema," as well as "a second region of osteochondral injury of the anterior lateral femoral condyle with underlying bone marrow edema." ${ }^{4}$ The radiologist concluded that the MRI findings were consistent with a "high-grade" partial tear versus complete tear of the anterior cruciate ligament, osteochondral injuries of the posterior medial femoral condyle and anterior lateral femoral condyle, severe

[^0]

[^0]: ${ }^{2} Claimant's Exh. B.

{ }^{3} Claimant's Exh. C.

{ }^{4} I d$.

chondromalacia, and severe joint space narrowing of the medial and patellofemoral compartments of the knee.

1. On February 4, 2011, claimant returned to Dr. Sparks, to discuss the MRI results. At that time, Dr. Sparks noted that although claimant did have a history of having had three prior surgeries on his right knee, "[t]he MRI of his right knee shows a tear of the ACL. There is some edema in it so I believe that this is in fact a new injury." ${ }^{5}$ Dr. Sparks further noted "there is certainly a significant amount of arthritis in the knee, i.e., chondromalacia that is not related to this injury but I do believe in spite of all that there is some acute injury here to [sic] and that may involve the ACL." ${ }^{6}$ Dr. Sparks recommended that claimant be referred to an orthopedic surgeon for further evaluation.
2. The employer/insurer referred claimant to Dr. Michael Nogalski, an orthopedic surgeon. ${ }^{7}$ At the first visit, on March 16, 2011, claimant provided the history of the January 9, 2011 incident. During that examination, Dr. Nogalski noted that there was a small amount of fluid in the knee and tenderness in the inside portion of the knee rather than the outside along the joint lines. He noted that range of motion in the right knee was "about 0 to 100 degrees" with pain at end ranges of motion. Dr. Nogalski recorded that claimant had fairly significant pain in the knee. Dr. Nogalski also noted that although clai