Barbara Fuller v. Elementis Specialties, Inc.

Employee filed an application for review alleging the ALJ erred in:

(1) finding that employee's left knee condition was not entirely medically causally related to the January 6, 2013, work injury;

(2) failing to find that employee is permanently and totally disabled, either as a result of the work injury alone, or as a result of the work injury in combination with preexisting conditions; and,

(3) failing to award future medical care.

Employer/insurer filed an application for review alleging the ALJ erred in:

(1) awarding past medical benefits for employee's left total knee replacement, as the surgery was not reasonable or necessary and the need for the surgery did not flow from the accident;

(2) awarding past temporary total disability benefits beyond May 14, 2013; and

(3) awarding permanent partial disability and disfigurement benefits.

For the reasons stated below, we modify the award of the ALJ referable to the issues of: (1) future medical care; (2) medical causation of employee's permanent and total disability and liability of the Second Injury Fund. In all other respects, we affirm and adopt the award and decision of the ALJ.

On January 6, 2013, claimant, a then sixty-one year old machine operator, slipped and fell on Bentone, a chemical substance that had spilled on the employer's concrete floor. Claimant struck her mouth and right wrist on the floor and also injured her left knee by twisting and/or striking it on the floor.

After her injury at work on January 6, 2013, employee worked for the rest of the day. When she arrived home after work, she lay down and treated her wrist with ice. Later than night, at her husband's insistence, employee sought emergency room treatment for injury to her right wrist, right cheek and left knee. On January 8, 2013, employer referred employee to Dr. Christopher Kostman for treatment. On January 11, 2013, Dr. Kostman performed surgery to address employee's right wrist injuries sustained in the accident.

On January 29, 2013, during a follow-up visit with Dr. Kostman, employee reported trouble descending stairs, pain and an occasional catching sensation in her left knee since the accident. Dr. Kostman examined employee's left knee, ordered x-rays and administered a steroid injection.

Employee next visited Dr. Kostman on February 6, 2013, and complained of difficulty kneeling, squatting and descending stairs. Dr. Kostman ordered an MRI scan to evaluate employee's knee joint. On February 13, 2013, based on his review of employee's MRI, Dr. Kostman diagnosed a meniscus tear attributable to employee's

Injury No.: 13-002442

Employee: Barbara Fuller

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work injury. Dr. Kostman also noted patello femoral chondrosis, which he opined was not related to employee's injury on January 6, 2013. Dr. Kostman performed surgery for employee's torn medial meniscus on February 25, 2013.

Employee returned to Dr. Kostman on May 1, 2013, with swelling in her knee. That day, Dr. Kostman drained fluid to reduce the swelling. Employee returned to work. Dr. Kostman next evaluated employee on May 14, 2013. Employee reported additional swelling and pain in her left knee. Employee testified that although she told Dr. Kostman she was not even able to walk up stairs, he advised her he had repaired her meniscus tear and was sending her back to regular duty work. Dr. Kostman's report of May 14, 2013, opined that employee's left knee pain and swelling were attributable to degenerative joint disease or calcium pyrophosphate deposition disease (pseudogout), unrelated to the January 6, 2013, injury. He recommended that employee follow up with her primary care physician for pseudogout treatment, and at the same time declared her to be at "maximum medical improvement."

Employer refused to authorize further treatment by Dr. Kostman. As chronicled in the ALJ's award, after Dr. Kostman released employee from his care she sought treatment from several other medical providers for continued chronic pain in her left knee. Employee's knee pain remained unresolved. On October 25, 2013, she consulted orthopedic surgeon Dr. Nam. Pursuant to Dr. Nam's examination on that date, he considered employee a candidate for a left total knee arthroplasty. Dr. Nam performed that procedure on December 16, 2013.

Pursuant to §287.140, RSMo, employee need not prove that her left knee condition was entirely attributable to her January 6, 2013, accident to establish that replacement of her left knee was reasonably required to cure and relieve her compensable injury. As noted in Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011):

[I]t is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Bowers v. Hiland Dairy Co., 188 S.W.3d 79, 83 (Mo. App. S.D. 2006). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. Id. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. Id. (emphasis added).

In awarding compensation for employee's left knee replacement surgery, the ALJ relied on Dr. David Volarich's opinion that employee's knee replacement "flows directly from the work-related injury of 1/6/13 as Ms. Fuller had no pre-existing limitations or hindrances or disabilities in either low extremity prior to 1/6/13." Dr. Volarich's opinion was at odds with Dr. Kostman's opinion that employee's persistent pain after his surgery of February 25, 2013, was unrelated to her fall at work on January 6, 2013, and was instead caused by pre-existing degenerative joint disease or pseudogout.

Dr. Kostman's deposition testimony that employee's left knee replacement was unrelated to her January 6, 2013, injury is inconsistent with his original assessment that employee's left knee meniscus tear was attributable to her work injury. For that reason, we are persuaded by Dr. Volarich's opinion that employee's work-related injury caused her to become a candidate for a full knee replacement.

We therefore adopt the ALJ's finding that employee reached maximum medical improvement when she was released by Dr. Nam on January 28, 2014, and his award of compensation for the cost of employee's total left knee replacement surgery and for past temporary total disability from May 15, 2013, the date of her release to return to work by Dr. Kostman, until her January 28, 2014, release by Dr. Nam.

The ALJ declined to award future medical care for employee's left knee, relying heavily on Dr. Kostman's opinion that "severe arthritis and crystalline deposition disease was the cause of the claimant's deterioration of her knee condition and her need for treatment." From this, the ALJ inferred "that the claimant's condition will continue to deteriorate and that claimant's future medical requirements for pain medication and a knee replacement flow from her degenerative condition."

We are unable to reconcile the ALJ's finding that employee's total left knee replacement surgery flowed from her work-related injury on January 6, 2013, with his denial of future medical to address employee's ongoing need for medication to address pain in her left knee and potential replacement of her left knee joint prosthesis.

We find that because employee's left knee joint has been removed and replaced with a prosthetic device, any problems she experiences in the future relating to her left knee joint cannot be considered causally related to pre-existing degenerative arthritis.

Therefore, we reverse the ALJ's finding on the issue of future medical care and award future medical reasonable and necessary to cure and relieve employee of the effects of the injury to her left knee to include ongoing pain medication. By this award, we anticipate at some time in the future employee may need to have her knee prosthesis replaced. Replacement of the prosthesis is specifically encompassed within this award of future medical care, to the extent medical evidence proves replacement reasonable and necessary to cure and relieve employee of the effects of her injury.

The ALJ found that employee is now permanently and totally disabled. We agree. The ALJ concluded employee's permanent total disability is not the result of the effects of her work injury in combination with her preexisting disabilities. We disagree.

We affirm and adopt the ALJ's findings and conclusions that employee sustained a 20\% permanent partial disability of the right forearm and a 25 % permanent partial disability of the left knee as a result of the work accident and injury.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed..." Id.

Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Section 287.220 requires us to first determine the compensation liability of the employer for the last injury, considered alone. Landman v. Ice Cream S