Patsy Allgier v. Claru DeVille Healthcare a/k/a Claru DeVille Nursing Center

waived. As a result, there is no need for us to determine whether the omission of a curriculum vitae for Dr. Volarich renders employee's exhibits inadmissible as complete medical reports under $\S 287.210. We conclude that employee's Exhibits A and B$ are properly in evidence.

To the extent employer is arguing that employee's failure to provide a curriculum vitae for Dr. Volarich means that Dr. Volarich's opinions in this matter should be deemed lacking credibility, we are not persuaded. The lack of a curriculum vitae certainly leaves us with little evidence whereby to discern the extent of Dr. Volarich's experience with regard to the medical conditions and disability at issue in this case. But employer failed to provide any contrary expert medical opinion evidence. Given these circumstances, Dr. Volarich's opinions, as the only expert medical opinions available to us, are by default the best qualified, despite our inability in this case to assess Dr. Volarich's professional history, publications, or achievements.

Employer challenges the administrative law judge's finding that employee's need for a total knee replacement surgery flowed from the injury she sustained on October 1, 2008, while undergoing physical therapy in connection with a compensable low back work injury. (The back injury is not at issue here.) Employer acknowledges Dr. Volarich's opinion that the need for the total knee replacement flowed from the injury employee sustained during physical therapy. Employer further acknowledges that Dr. Volarich was the only doctor to provide an opinion as to the reason employee required a total knee replacement surgery, but argues we should reject Dr. Volarich's opinion because it is contradictory.

Employer argues that Dr. Volarich's opinion is contradictory because he identified different diagnoses for employee's right knee condition as between his May 17, 2010, and August 25, 2011, reports. We acknowledge that Dr. Volarich initially diagnosed the right knee injury as a right knee bone bruise of the tibial plateau with effusion. We also note that Dr. Volarich then offered the additional diagnosis of accelerated right knee post-traumatic arthropathy in his August 2011 report. But we do not perceive any contradiction. Dr. Volarich's August 2011 report plainly reveals that the doctor still believed employee's right knee injury was a bone bruise of the tibial plateau, but that employee's condition had progressed. Specifically, Dr. Volarich opined that employee had suffered right knee post traumatic arthropathy "as a direct result" of the injury on October 1, 2008, which the doctor explained involved injury to the medial compartment of the knee. It appears to us that Dr. Volarich did not contradict his earlier diagnosis but instead identified a deterioration of employee's right knee condition which had developed since the last time he evaluated her.

Employer has failed to direct us to any contrary medical evidence suggesting that the post-traumatic arthritis identified by Dr. Volarich did not result from the work injury but instead from what employer describes as "degenerative changes." Employer suggests we will find such evidence in the notes from Dr. Burke, the treating doctor who performed the total knee replacement, but Dr. Burke merely diagnosed the arthritis and provided treatment for it; he did not offer any opinion as to what caused the condition. Dr. Burke's notes provide little support for employer's contention that Dr. Burke believed

the arthritis to be wholly unconnected to the work injury, and certainly do not contradict, or as employer argues, "impeach" Dr. Volarich's opinions. We note that employer's use of "degeneration" as short-hand for a condition not caused by a work injury fails, in this case, to provide any material distinction from Dr. Volarich's opinion-Dr. Volarich indeed identified "deterioration" in employee's right knee, but he opined that it was a product of the work injury.

In sum, we are not persuaded that the distinction identified by employer amounts to a legitimate contradiction in the reports from Dr. Volarich. We find Dr. Volarich's opinions credible. Because we are convinced that employee satisfied her burden of proving her need for a total knee replacement flowed from her October 1, 2008, right knee injury, see Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519-20 (Mo. App. 2011), we discern no reason to disturb the administrative law judge's well-reasoned award.

The Commission affirms and adopts the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with this supplemental opinion.

The award and decision of Administrative Law Judge Maureen Tilley, issued July 23, 2012, is attached and incorporated by this reference.

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 $1^{\text {st }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: | Patsy J. Allgier |

Employer: | Claru DeVille Healthcare, a/k/a Claru DeVille Nursing Center |

Insurer: Missouri Nursing Home Insurance Trust, c/o Maxim Insurance Solutions, LC

Hearing Date: April 24, 2012 Checked by: MT/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? On or about October 1, 2008.
5. State location where accident occurred or occupational disease contracted: At Madison Medical Center in Fredericktown, Madison 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.
11. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was undergoing physical therapy following a work-related injury