Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical treatment records, and the other documentary evidence in this matter, as well as based on my personal observations of Claimant at hearing, I find:
1) Claimant is a 60-year-old car hauler, who has worked for Cassens Transport (Employer) for 19 years delivering new vehicles to car dealerships. Claimant explained that, as a car hauler, he is responsible for loading vehicles, strapping them down, driving to various dealerships in a 600-mile radius, unstrapping the cars and unloading them at the dealerships. He testified that his job duties include setting up ramps and driving the new vehicles on and off the car transport vehicle. Claimant noted that he works out of Kansas City now, but he was employed out of Fenton, when there was a car plant there. He said that he works on average, 50-60 hours per week, up to a maximum of 70 hours per week.
2) Claimant admitted to having a prior right knee injury in 1972 from playing football. He had surgery to the right knee, but testified that he had no problems with the knee and no limitations at work leading up to December 3, 2009 on account of the prior right knee injury.
3) Claimant also admitted having prior claims for left elbow epicondylitis, which was surgically treated, and perhaps a shoulder injury. Further, he broke his right thumb, last October. He denied having any prior or subsequent injuries to his right knee with Employer, except for the injury on December 3, 2009.
4) Claimant testified that on December 3, 2009, he was working in Salina, Kansas unloading minivans at a car dealership. He said that he was coming down ramp \#4 on the transport vehicle, missed the last step, and fell approximately 2 feet and twisted his right knee. He described pain and a burning sensation in the right knee. He noted that he eventually had some swelling in the knee. He said that he continued working that day and finished his duties.
5) Claimant's Driver's Daily Log (Exhibit F) confirms that he was in Salina, Kansas at 1:00 p.m. on December 3, 2009. Records from his personnel file (Exhibit G) confirm that he was then on vacation the next week from December 7-11, 2009.
6) Claimant admitted that he did not report the injury that day. He said that he went back to the terminal in Kansas City, Kansas, and, then, went home to Union, Missouri because he already had a prescheduled physical examination on Monday with his primary care physician, Dr. Borgmann. Claimant testified that he told Dr. Borgmann about his right knee and had an X-ray and MRI taken of the knee.
7) Medical treatment records from Dr. Jamie Borgmann at Patients First Internal Medicine (Exhibit A) confirm Claimant was examined by Dr. Borgmann on Monday, December 7, 2009. Claimant reported a complaint of right knee pain. The medical records contain the following history: "HX of operation at age 18 for torn cartilage. Has started having problems over the past few months and progressively getting worse. States he works as a car hauler. Has a lot of pain when weather changes, when he steps/twists a certain way. States that it occas [sic] nearly gives out on him." There is absolutely no history of any right knee injury, much less an injury just days earlier, described in this record. On physical examination, Dr. Borgmann found a right knee medial scar (presumably from the prior surgery), but no effusion, negative anterior and posterior drawer signs, no ligamentous laxity and a negative Lachman's test. Dr. Borgmann diagnosed pain in the knee, ordered X-rays and suggested an MRI, given the complaint of the knee giving out. X-rays taken on that date showed mild-to-moderate degenerative changes based on the medial joint height loss, but no other bony abnormalities.
8) Claimant also had the right knee MRI performed on December 10, 2009 at Sullivan Open MRI (Exhibit A). It showed a resected medial meniscus with medial tibial plateau Grade 4 chondrosis and irregular Grade 3 and probable scattered Grade 4 medial femoral condylar weight bearing surface chondrosis, as well as a chronically torn, absent anterior cruciate ligament with mild anterior subluxation, and an elongated patellar lower pole extending into the patellar tendon (with the tendon otherwise intact and normal in appearance distally).
9) Claimant initially testified at hearing that he finally told his supervisor about the December 3, 2009 injury on the same day that he was sent to Concentra in Kansas City by Employer, December 22, 2009. However, on cross-examination, he said that he worked the full day on December 16, 2009, and, then, reported the injury to Employer the next day, December 17, 2009.
10) Claimant's Driver's Load Detail Reports (Exhibit K) confirm that after he returned from vacation, he worked on December 14, 2009, and December 16, 17 and 21, 2009, before going to Concentra Medical Centers (KS), the next day.
11) In any event, Claimant was examined at Concentra Medical Centers (KS) (Exhibit 3) on December 22, 2009. He provided a history at that examination of missing the last step as he was coming down a ladder and hurting his right knee. The record indicates that he "twisted" the right knee, while coming down a ladder on the truck. The physical examination revealed mild joint effusion in the right knee and that Claimant was walking with a moderate limp. He was diagnosed with unspecified internal derangement of the knee and referred to Concentra Medical Centers in St. Louis for further care, since Claimant was from the St. Louis area.
12) When Claimant was examined at Concentra Medical Centers (MO) (Exhibit B) the next day, December 23, 2009, the doctor noted that Claimant had already had an MRI done of the right knee that showed "only chronic changes" and he was referred to an orthopedic doctor, but, then, reported an injury. Claimant admitted that he had been working and he is not able to see anyone (presumably for treatment) until after the holidays. The physical examination showed mild laxity and decreased range of motion in the knee. The report indicates the MRI showed degenerative changes and a chronic ligament tear. Claimant was diagnosed with knee pain, released from care and referred to his primary care physician for further treatment of this "non-work related condition."
13) Claimant was examined by Dr. Dean Lusardi (Exhibit 4), an orthopedic specialist on referral of Dr. Borgmann, on December 31, 2009. Claimant provided Dr. Lusardi with a history of missing the last step when coming down a ladder on a truck and developing pain in his right knee. After a physical examination and additional X-rays, Dr. Lusardi diagnosed chronic right knee ACL tear with degenerative arthritis, primarily medial and patellofemoral compartment following probably previous meniscal excision. Dr. Lusardi provided a steroid injection for the right knee and an ACL brace, because of some symptoms of instability in the knee, "partially related to his anterior cruciate ligament deficient knee." When Claimant followed up with Dr. Lusardi on February 8, 2010, Dr. Lusardi confirmed that Claimant had previously had an injection "for degenerative arthritis with essentially bone-on-bone arthritis in the medial compartment." Claimant reported not really having much pain in the knee, following the injection. Dr. Lusardi felt Claimant was doing well status post right knee degenerative joint disease. He recommended that Claimant continue to use the ACL brace and released him to follow up as needed for further injections if the pain recurs.
14) Claimant testified that he missed a couple weeks of work after the injury, but he went back to full-duty work. He also admitted that he has continued to obtain his normal DOT physicals since this injury, where they check your blood pressure, weight and maybe vision, but they don't really examine your joints.
15) Claimant's DOT physical performed at Concentra Medical Centers (KS) (Exhibit H) on March 16, 2010 noted that he had a knee injury in December 2009, but he wrote "none" where the report asked for current limitations or medications. The physical examination showed no impairment in the extremities. Similarly, when DOT physicals were performed on March 8, 2012 and February 27, 2013, no limitations or impairments were noted with regard to the right knee.
16) Medical treatment records from Dr. Jamie Borgmann at Patients First Internal Medicine (Exhibit A) show that Claimant has continued to follow up with the doctor yearly for physical examinations (September 20, 2010, September 7, 2011 and December 21, 2012). There are absolutely no right knee complaints or problems listed in any of these examination records. Further, the physical examination in each case reveals no edema or any other abnormalities with the legs.
17) In terms of current complaints, Claimant testified that his right knee bothers him every day, depending on the weather. He noted that it is weaker and he takes ibuprofen ( 1000 milligrams) sometimes twice a day, for his complaints. He said that it is hard to get out of the truck sometimes after sitting for awhile and it feels like he has a "trick knee" with some giveaway weakness in the knee. Claimant noted that climbing causes problems, as does sitting for extended periods of time. In that respect, I would note that as Claimant was testifying in this case, sitting in the witness chair, I did observe that he was often flexing and extending the knee to apparently gain some relief of his right knee complaints. Claimant noted that he does not wear the ACL brace Dr. Lusardi gave him anymore, because it is too big and awkward. He said that instead he wears a knee sleeve that provides some stability.
18) The independent medical report of Dr. Dwight Woiteshek (Exhibit 1) shows that Claimant was examined by the doctor on September 6, 2011 at the request of Claimant's attorney. Dr. Woiteshek is a board certified orthopedic surgeon (Exhibit 2). He examined Claimant on that one occasion and issued his report on September 11, 2011. He provided no medical treatment to Claimant in this case. Dr. Woiteshek took a history from Claimant of injuring his right knee on December 3, 2009, when he was getting down off a ladder on his truck, missed the last step and twisted his right knee. He noted that despite the prior knee surgery, Claimant's knee was "just fine and pretty much asymptomatic" leading up to the December 3, 2009 injury. Claimant reported numerous problems with the knee including pain every day, difficulty walking more than a mile before resting, and problems with standing, walking, lifting, carrying, bending, reaching, pushing, pulling, climbing, squatting and kneeling. On physical examination, Dr. Woiteshek found a surgical scar over the right knee, pain and tenderness, small effusion, a slightly positive Lachman test and Drawer sign, a positive McMurray's sign, mild patellofemoral mistracking, some lost range of motion, and atrophy in the right knee.
19) Medically casually related to the work injury on December 3, 2009, Dr. Woiteshek diagnosed traumatic internal derangement of the right knee with a subsequent ACL tear seen on the MRI and aggravation of the osteoarthritis of the right knee. Preexisting the December 3, 2009 injury, he diagnosed a torn medial meniscus of the right knee, status post surgery in 1972 and osteoarthritis of the right knee, which was completely asymptomatic. Dr. Woiteshek opined that the injury on December 3, 2009 was the prevailing factor in the cause of the traumatic internal derangement of the right knee with the subsequent ACL tear and aggravation of the knee osteoarthritis. He rated Claimant as having 20\% permanent partial disability of the right knee related to the December 3, 2009 injury, and an additional 5\% permanent partial disability that pre-existed the injury on account of the prior surgery and asymptomatic arthritis.
20) The cross-examination deposition of Dr. Dwight Woiteshek (Exhibit D) was taken by Employer on September 12, 2012, to make his opinions in this case admissible at trial. Although the doctor does not currently perform surgery, he noted that in the past he performed all types of orthopedic surgeries, including 25 % of his practice spent performing knee surgeries. Dr. Woiteshek admitted that the X-rays taken of Claimant's right knee on December 7, 2009 and the MRI taken on December 10, 2009, showed degenerative changes (the knee was wearing out), which occurred over time. He noted that he thought the ACL tear discussed in the MRI looked more traumatic in nature and occurred subsequent to the December 3, 2009 injury. He explained that, even though the radiologist found it to be "chronically torn and absent," in his experience it can be folded on itself and look absent, "So the ability to date an anterior cruciate ligament is more difficult to do on an MRI scan." Despite the radiologist's opinion to the contrary, Dr. Woiteshek believed the ACL tear had not been present for longer than a week at the time the MRI of the knee was taken. However, upon further questioning, he opined that "you cannot date an anterior cruciate-it's very hard to date an anterior cruciate ligament rupture by the MRI scan...but in my experience as an orthopedic surgeon, that could definitely be a sign of an acute tear because the ligament can be folded on itself." Ultimately, he admitted that the actual MRI did not show an acute tear.
21) The deposition of Dr. Michael Milne (Exhibit C) was taken by Employer on June 3, 2013, to make his opinions in this case admissible at trial. Dr. Milne is a board certified orthopedic surgeon, who performs knee surgeries. He examined Claimant on one occasion, November 14, 2011, at Employer's request, and issued his report on that same date. He also issued an addendum report dated March 1, 2013 after reviewing Dr. Woiteshek's deposition testimony. He provided no treatment to Claimant. He took a history from Claimant of missing the last step when coming down a ladder and twisting his knee, reviewed the medical treatment records, and performed a physical examination of Claimant, in reaching his conclusions in this case. The physical examination revealed the scar from the prior surgery, no edema, patellofemoral crepitus and ligamentous stability. X-rays revealed moderate-to-severe joint line narrowing over the medial aspect of the knee.
22) Dr. Milne reviewed the MRI films personally and testified that there was edema within the medial femoral condyle and medial tibial plateau that could be acute, or could be chronic, he was not sure. It also showed an absent ACL, absent medial meniscus and Grade 4 cartilage loss. Dr. Milne opined that most of the findings in the knee would be attributable to the prior injury and surgery. He said that Claimant likely had a medial meniscus tear and ACL tear at age 18, and they trimmed the meniscus but left the ACL alone. Dr. Milne explained that the resected medial meniscus showed that it was gone and had been cut out. Grade 4 chondrosis means a complete loss of cartilage, or bone on bone in the knee. He believed all of this pathology pre-existed the alleged December 3, 2009 injury, because the MRI that showed it was just ten days later. As for the ACL, Dr. Milne explained that if it was an acute tear, you could see fibers of the ligament, albeit disrupted, but in this case there were no fibers to even see, so it was chronically torn and absent, consistent with the injury and surgery years earlier. Dr. Milne also testified that he did not believe the mechanism of injury of twisting the knee from missing a step would correlate with an acute tear of the ACL, because it was not significant enough to tear the ACL in such a way that it would be completely absent on an MRI seven days later.
23) Dr. Milne diagnosed Claimant with right knee significant degenerative joint disease. He opined that the alleged injury on December 3, 2009 was not the prevailing factor in causing his condition. He noted that Claimant was working full duty and not in need of any work restrictions. Finally, he estimated Claimant's permanent partial disability, regardless of causation, at 6 % of the right knee.
24) On cross-examination, Dr. Milne acknowledged that sometimes the findings during surgery are different from the findings on MRI, and in this case, it is possible that he could reach a different conclusion on whether the ACL tear was acute or chronic, but he thought that was "unlikely." Dr. Milne agreed that the alleged accident was an aggravating factor, in that it caused an increase in his pain and symptoms and it probably caused an increase in the bony edema seen on the MRI. He even acknowledged that it was sufficient to make an asymptomatic condition symptomatic.
25) Claimant testified on cross-examination at hearing, that he could not recall telling Dr. Borgmann that his knee was worsening over several months, but he also could not recall giving the doctor a history of the accident. Despite having a number of DOT physicals over the years, Claimant testified that he could not recall if he filled out any forms when he had the physicals, but, in fact, he does. He could not recall much about the physicals, but did not believe they were very thorough. Claimant could not recall telling Dr. Borgmann about his knee complaints in his follow-up physicals. In fact, Claimant was unable to recall many of the details of his examinations at all.