Pamela Bertels v. Houghton Mifflin Harcourt Publishing Company

expenses, and modify the award of the administrative law judge as to the issue of past medical expenses.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact on the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications herein.

The parties now dispute whether any issue of medical causation was properly before the administrative law judge where employer stipulated that employee suffered an injury by accident arising out of and in the course of employment. Employer argues that the administrative law judge was required, in order to resolve the issue whether the treatment employee received was reasonably required to cure and relieve the effects of her injury, to first determine whether the accident was the prevailing factor resulting in the medical conditions for which employee sought the disputed treatment. Employee responds that once a compensable injury is stipulated, the only inquiry remaining under Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. App. 2011) is whether employee proved that the disputed treatment was reasonably required to cure and relieve the effects of her injury.

Notably, the parties did not specifically stipulate the particular medical conditions or disabilities resulting from the accident of August 6, 2009. ${ }^{1}$ In her brief and at oral argument, employee failed to explain how we are to resolve the issue of what medical treatment flows from her stipulated injury by accident without resolving the conflicting expert medical opinions as to the question what particular medical conditions resulted from that accident. As recognized by the court in Armstrong v. Tetra Pak, Inc., 391 S.W.3d 466 (Mo. App. 2012), the Tillotson decision does not relieve an employee from the burden of proving that an accident was the prevailing factor in causing the resulting medical conditions and disability (i.e. the particular injuries) for which the employee claims compensation. Id. at 471. Even where an employee is shown to have suffered an injury by accident, there may remain legitimate disputes regarding the particular medical conditions and disabilities resulting from the accident. Id. at 472-73. The Armstrong court made clear that, in such cases, it is appropriate to apply the standard for medical causation of a compensable injury set forth in § 287.020.3 RSMo. Id.

In any event, we find most persuasive the opinion from Dr. James Strickland that the accident of August 6, 2009, caused employee to suffer the medical conditions he identified during his surgeries and described during his deposition as resulting from the accident: the initial traumatic injuries to the medial femoral condyle and patella; chondral degeneration affecting the patellofemoral joint (and specifically the lateral as well as the medial patellar facet), medial femoral condyle, and lateral tibial plateau; a chondral fissure affecting the patellofemoral compartment; and a breakdown of cartilage on the femoral groove. Dr. Strickland credibly explained that the accident of August 2009

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[^0]: ${ }^{1}$ Section 287.020.3(1) RSMo provides that "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability" (emphasis added).

Enployee: Pamela Bertels

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caused trauma to the primary weight-bearing surface in employee's knee, which in turn rendered the surrounding cartilage in employee's knee far more susceptible to further breakdown whenever employee put weight on her knee. Dr. Strickland noted that he'd seen many patients with presentations similar to employee's, and that it did not surprise him that employee continued to have problems in her knee following the surgery performed by Dr. Gross. Dr. David Volarich substantially corroborated Dr. Strickland's theory when he opined that, although employee had some preexisting chondromalacia in her knee, the cartilage flaps seen during the course of Dr. Strickland's surgeries were traumatic and products of the accident.

On the other hand, employer's expert Dr. Gross suggested that employee's ongoing complaints did not result from the accident but instead were the product of a purely spontaneous breakdown in the cartilage in employee's right knee in the months after he released her from his care. Dr. Gross conceded that chondromalacia can progress rapidly and can be impacted by trauma to the knee joint. He also agreed that the recurrent pathology affecting the medial femoral condyle identified during Dr. Strickland's September 2011 surgery was in the very same area of the knee as one of the cartilage tears Dr. Gross originally diagnosed as resulting from the accident.

We note that employee had no right knee problems before the accident of August 2009, and there is no evidence she has experienced any pain or limitations affecting her left knee. After careful consideration, we are not persuaded by the theory from Dr. Gross.

Accordingly, we find that the accident of August 2009 was the prevailing factor causing employee to sustain the initial traumatic injuries to the medial femoral condyle and patella (including the pre-patellar bursitis and tear of the medial patellar facet identified by Dr. Gross); chondral degeneration affecting the medial femoral condyle, lateral tibial plateau, and patellofemoral joint (including specifically the lateral as well as the medial patellar facet); a chondral fissure affecting the patellofemoral compartment; and a breakdown of cartilage on the femoral groove.

Past medical expenses

Having credited the opinions from Drs. Strickland and Volarich regarding the particular medical conditions resulting from employee's stipulated injury by accident, we additionally credit their opinions (and so find) that the treatment employee received (including the disputed arthroscopic surgeries and total knee replacement) flowed directly from the accident, and were reasonably required to cure and relieve the effects of her compensable injuries. We further credit the testimony from Dr. Strickland (and so find) that the charges reflected in the bills employee received for her treatment for her knee injury were reasonable and are the charges normally assessed for that type of treatment.

With regard to her past medical expenses, the administrative law judge accurately recounted employee's testimony that she is unsure whether she has any further liability for her medical expenses. Employer makes much of this testimony from employee. But there is no showing on this record that employee has any particular training or expertise with regard to the topics of medical billing, insurance law, or an employee's liability for past medical expenses incurred in the context of a disputed workers' compensation case.

**Improvement in the care of the patient**

Accordingly, we are neither surprised by employee's testimony that she is unsure as to the extent of her liability for the bills, nor do we believe that a contrary assertion would be particularly persuasive. On the other hand, we do find credible employee's testimony describing the disputed treatment she received in connection with her work injury after employer declined to authorize further care, as well as her identification of Exhibit G listing the bills she received for that treatment. We find that employee received the bills set forth in Exhibits 11, 15, 16, 17, 18, and 19 in connection with the disputed treatment for her work injury.

Turning to the bills, we find attached affidavits from the custodians of records for each of the providers. Therein, these custodians identify the bills and also purport to identify the total costs for the services, the amounts employee paid, the amounts paid by health insurance, the amounts "written off" or adjusted, and the "balance[s] outstanding for which [employee] is personally liable." Transcript, pages 1101, 1112, 1117, 1120, 1125, and 1133. The affidavits do not identify the individual or individuals who negotiated or authorized the "write-offs" or adjustments, nor do they identify the various providers' reasoning in agreeing to discounts of their original charges. Nor do they contain any foundational statements that would qualify the custodians of these medical bills as authorized on behalf of the providers to fix or set employee's actual liability with regard to the bills.

In fact, there is no evidence on this record that the individuals who signed these affidavits possessed any qualification whatsoever to opine as to the question of employee's ongoing liability for the bills. (We are not convinced that the mere fact that one is a custodian of records automatically confers any special authority or qualification to opine as to the actual meaning of the records themselves.) Our concer