| FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Injury No.: 08-123324 |
| Employee: | Milton Young |
| Employer: | Boone Electric Cooperative |
| Insurer: | Missouri Electric Cooperative Insurance Plan |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, heard the parties’ arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion. |
| Introduction |
| The parties asked the administrative law judge to resolve the following issues: (1) whether employee sustained an accident or occupational disease arising out of and in the course of his employment; (2) whether the accident or occupational disease was the prevailing factor in the cause of any or all of the injuries and/or conditions that may be alleged in the evidence; (3) employer’s liability, if any, for permanent partial disability benefits; and (4) Second Injury Fund liability, if any, for permanent partial disability benefits. |
| The administrative law judge rendered the following findings and conclusions: (1) employee sustained an accident arising out of and in the course of his employment on January 4, 2008; (2) employee sustained a left knee sprain arising out of and in the course of his employment on January 4, 2008; (3) employee’s accident was not the prevailing factor in the cause of chondromalacia found by Dr. Quinn in employee’s left knee; (4) the April 29, 2008, surgery was reasonably required to cure and relieve employee from the effects of the work injury; (5) employee sustained a 15% permanent partial disability of the left knee, and employer is liable for $9,336.96 in permanent partial disability benefits; and (6) the Second Injury Fund has no liability for permanent partial disability benefits. |
| Employer filed a timely Application for Review with the Commission alleging the administrative law judge erred: (1) because employee did not suffer an unexpected traumatic event or unusual strain as defined in § 287.020 RSMo; (2) in relying upon Pile v. Lake Reg’l Health Sys., 321 S.W.3d 463 (Mo. App. 2010); (3) in declining to credit employer’s experts on the issue of medical causation; (4) in relying on Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. App. 2011); and (5) in failing to apportion non-compensable preexisting disability as against compensable work-related disability. |
Enployee: Milton Young
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In its Application for Review, employer challenged the administrative law judge's conclusion that employee suffered an "accident," defined in § 287.020.2 RSMo, as follows:
The word "accident" as used in this chapter shall mean 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.
The administrative law judge appears to have credited employee's testimony as to what occurred on January 4, 2008. We agree that employee is credible. We find that employee was walking to his work truck on January 4, 2008, to get materials for the job when he stepped on a frozen dirt clod and his left knee buckled and popped, causing him to fall down. We find that other members of employee's crew helped him to his feet, at which time employee experienced another pop in his left knee.
We are convinced the circumstances of employee's fall on January 4, 2008, constitute an "unexpected traumatic event," or an "unusual strain." The event was likewise "identifiable by time and place of occurrence," and employee experienced "objective symptoms of an injury." We conclude, therefore, that employee suffered an accident.
**Medical causation**
The administrative law judge concluded that employee's accident is the prevailing factor causing employee to suffer a left knee sprain, but did not indicate which expert he credited to reach such a conclusion. Section 287.020.3(1) RSMo sets forth the statutory test for medical causation, and provides, in relevant part, as follows:
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.
The parties presented conflicting expert medical testimony on the question of medical causation. Employer presents Dr. Szewczyk, who opined that employee suffered a sprain but that the accident didn't cause any of the degeneration found in employee's left knee, or any ongoing disability. Dr. Szewczyk reasoned that because Dr. Quinn didn't find a meniscal injury during the surgery he performed on employee's left knee, employee didn't suffer any internal derangement or pathology to his left knee in the January 2008 fall.
Employee: Milton Young
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Employer also presents Dr. Herting, who opined that the accident was not the prevailing factor causing employee to suffer chondromalacia in his left knee. Dr. Herting did, however, opine that the accident caused employee to suffer a sprain of the anterior cruciate ligament, and that the accident caused the preexisting degenerative condition of his knee to become symptomatic. We note that Dr. Herting seemed to stumble over the meaning of "triggering" for purposes of the Missouri Workers' Compensation Law, and then changed his answer on that topic after generous prompting from employer's counsel.
Employee presents Dr. Volarich, who opined that the accident was the prevailing factor causing employee to suffer chondral lesions in the form of some loose cartilage on the patellofemoral joint. Dr. Volarich agreed that the chondromalacia of the tibial plateau was preexisting, but explained that the twisting mechanism of the accident suffered by employee is a classic cause of chondral injury to the patellofemoral joint. Dr. Volarich opined that employee suffered a 35% permanent partial disability of the left knee as a result of the accident.
In concluding that the accident was the prevailing factor in causing employee to suffer a sprain but not chondromalacia, it appears that the administrative law judge credited employer's experts Drs. Szewczyk and Herting. But in concluding that employee sustained permanent partial disability as a result of the accident, the administrative law judge also appears to have partially credited Dr. Volarich's opinion. However, we can only speculate, as the administrative law judge did not render any credibility findings. In a case such as this, with divergent opinions on the issue of medical causation, explicit credibility determinations are needed to resolve the conflicting evidence, and to make clear that the fact-finder has not improperly substituted his or her own lay opinion for that of the medical experts. See Corp. v. Joplin Cement Co., 337 S.W.2d 252, 258 (Mo. 1960).
After careful consideration, we find most credible Dr. Volarich's opinion. Dr. Szewczyk seemed to be more focused on the fact Dr. Quinn didn't find the expected meniscal injury, and does not appear to have considered the possibility that the accident caused the preexisting degenerative condition in employee's knee to become symptomatic. Meanwhile, Dr. Herting seemed to betray a certain level of bias when he had to be directed toward offering an opinion on "triggering" that would favor the employer. In our view, only Dr. Volarich's opinion provides a reasonable and credible explanation for why employee's accident caused the ongoing pain and discomfort in his knee.
We conclude that the accident was the prevailing factor causing employee to suffer the resulting medical condition of a left knee sprain and chondral injury in the form of loose cartilage on the patellofemoral joint, and associated disability.
Injury arising out of and in the course of employment
Employer appeals the administrative law judge's finding that employee sustained an injury arising out of and in the course of his employment for purposes of § 287.020.3(2) RSMo, which provides, as follows:
An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.
We have already concluded that the accident on January 4, 2008, was the prevailing factor causing employee to suffer the injury for which he seeks compensation; it follows that the requirements of subsection (a) have been satisfied.
Turning to subsection (b), we note that the administrative law judge failed to apply the requisite "causal connection" test as set forth in Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012). In Johme, the Court held that an employee who fell while making coffee at work did not sustain injuries that were compensable under the Missouri Workers' Compensation Law. Id. at 512. The Johme employee fell in her office kitchen after making a new pot of coffee, per workplace custom, to replace a pot of coffee from which she had taken the last cup. Id. at 506. The Johme court found that the risk or hazard that resulted in the employee's fall was "turning and twisting her ankle and falling off her shoe." Id. at 511. The Court concluded that the employee "failed to meet her burden to show that her injury was compensable because she did not show that it was caused by risk related to her employment activity as opposed to a risk to which she was equally exposed in her 'normal nonemployment life.'" Id. at 512.
In so holding, and in specifically contrasting a "work-related risk" versus a "risk to which the employee was equally exposed" outside of work, the Johme court made clear that our analysis under $\S 287.020 .3(2)$ (b) must begin with an identification of the risk or hazard that resulted in the employee's injuries, followed by a quantitative comparison whether this specific employee was equally exposed to that risk in her own normal nonemployment life. Following the Court's reasoning, the result of that quantitative comparison should tell us whether the risk is related or unrelated to employee's work, and in turn, whether the employee's injuries were sufficiently causally connected to work, which finally will resolve the question whether an employee's injuries arose out of and in the course of the employment.
Here, we conclude that the risk or hazard that resulted in employee's injuries is that of stepping onto a frozen clod of dirt and falling. The next question is whether employee was equally exposed to that risk or hazard in his normal nonemployment life.
The most recent court to apply the quantitative analysis identified by the Johme court was the Missouri Court of Appeals, Eastern District in Pope v. Gateway to the W. Harley Davidson, No. ED98108 (Oct. 23, 2012). In Pope, the employee was climbing down a staircase at the motorcycle dealership where he worked, on his way to check with his supervisor whether his duties were done for the day. Id. at pg. *3. The