Janice Simon v. St. Louis County

conditions rather than a traumatic injury. But the records of Dr. Piontek, who provided care and treatment for employee's preexisting left knee problems during 12 visits and multiple phone calls from February 23, 2007, through October 10, 2008, contain no mention whatsoever of preexisting right knee complaints. We note also that employee was performing physically demanding work for employer prior to September 5, 2009, without any documented or apparent disability or need for medical care referable to her right knee.

When employee twisted her right knee on September 5, 2009, she heard a "horrible popping noise" and experienced the immediate onset of pain and swelling. *Transcript*, page 12. The next day, employee's symptoms were so severe that she went to the emergency room without even attempting to perform any work for employer, and received ongoing medical care that ultimately culminated in a right knee replacement.

We are persuaded that, as described by Dr. Volarich, employee sustained an acute change in pathology referable to her right knee as a result of her accident on October 5, 2009, which resulted in permanent disability, and which in combination with employee's preexisting disabilities, has rendered her permanently and totally disabled.

We note that the administrative law judge did not specifically address the disputed issue of medical causation. Section 287.020.3(1) RSMo sets forth the standard for medical causation applicable to this claim 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.

We have adopted the administrative law judge's (implied) finding that Dr. Volarich persuasively opined that employee's accident on September 5, 2009, is the prevailing factor in causing employee's right knee injury. We conclude that the accident is the prevailing factor causing the resulting medical conditions of a torn medial meniscus and accelerated posttraumatic arthropathy of the right knee, as well as irreversible aggravation of underlying previously asymptomatic chondromalacia, and permanent partial disability to the extent of 25% of the right knee.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Cornelius T. Lane, issued April 30, 2013, 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 $11^{\text {th }}$ day of October 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

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: September 5, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 occurred or occupational disease contracted: Claimant while working as a corrections officer was walking down stairs at the jail, heard a commotion behind her and she turned and twisted to the right and felt injury to her right knee.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right knee
14. Nature and extent of any permanent disability: 25 % permanent partial disability of the right knee
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Janice Simon Injury No.: 09-071564

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\ 403.44 permanent total disability
4. Method wages computation: Stipulation

1. Amount of compensation payable:
2. Second Injury Fund liability:

$\ 403.44 per week for Claimant's lifetime beginning 40 weeks after January 26, 2011

TOTAL:

TO BE DETERMINED

1. Future requirements awarded:

Said payments to begin 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: Thomas Kendrick

Employee: Janice Simon

Departments: N/A

Employer: St. Louis County (previously settled)

Additional Party: Second Injury Fund

Insurer: Self-insured (previously settled)

Injury No.: 09-071564

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: CTL

A hearing was held in the above mentioned matter on February 26, 2013. The Claimant, Janice Simon, was represented by Attorney Thomas Kendrick. The Claimant's primary case against the Employer/Insurer was previously settled. The hearing was against the Second Injury Fund only which was represented by Assistant Attorney General Joye Hudson.

1. Whether Claimant's incident of September 5, 2009 caused Claimant's right knee injury.
2. Nature and extent of the liability of the Second Injury Fund.
3. Nature and extent of permanent partial disability; partial or total disability

1. On September 5, 2009, Claimant was an Employee of Employer.
2. Employer received proper notice of the claim.
3. The average weekly wage for Claimant was sufficient to result in a temporary total disability rate of $\ 403.44 and permanent partial disability rate of $\ 403.44.
4. Employer did not pay any temporary total disability to Claimant nor did the Employer pay any medical benefits.

Claimant's Exhibits:

A - Stipulations

B - Records of St. Mary's Hospital

C - Records of St. Luke's Hospital

D - Records of Cardiology Diagnostics

E - Records of Dr. Tucker

F - Records of St. Joseph Hospital West

G - Records of Dr. Shisko

H - Records of Dr. Piontek

I - Records of Chesterfield Surgery

J - Records of St. Luke's Hospital

K - Records of Dr. Stein

L - Deposition of Dr. Volarich

M - Deposition of Mr. England

Claimant's exhibits were all accepted into evidence.

Second Injury Fund's Exhibit:

I - Deposition of Dr. Nogalski

Second Injury Fund Exhibit I was accepted into evidence.

1. The Claimant, Janice Simon, was 66 years of age and has been unemployed since she last worked for Employer on January 26, 2011.
2. Claimant began working for the Employer as a corrections officer in 2003. As a corrections officer, she indicated that she did cell searches, pat downs, oversaw medication for prisoners, oversaw the laundry and took inmates to see their visitors.
3. Claimant testified that on September 5, 2009 she was walking down stairs when she heard a loud noise behind her and she turned her body to the right in a quick manner and as she turned she felt a pop in her right knee and felt pain. She immediately told her supervisor what occurred, but did remain at work. Claimant returned to her home and the next morning, September 6, 2009, she had pain in her right knee and had inability to put weight on the leg. Claimant testified her sister drove her to work where she had her sister run in and got the authorization and paperwork from Captain Reed to obtain medical treatment. Claimant was sent to SSM St. Mary's Health Center for medical care.
4. At St. Mary's Health Center, Claimant complained of pain, swelling and tenderness in her right knee as a result of the twisting event to her right knee while walking down the steps at work. X-rays were ordered at the hospital and it was the impression that the Claimant had a fracture of the right lateral femoral condyle as a result of her twisting

injury and lateral pain and a possible avulsion fracture from the lateral collateral ligament.

1. On September 10, 2009, Claimant was sent