Skip to content
Ott Law Firm

Keith Grimes v. Curators of the University of Missouri

Decision date: March 13, 2017Injury #10-04424314 pages

Summary

The Labor and Industrial Relations Commission modified the administrative law judge's award, increasing the permanent partial disability rating for the employee's left knee injury sustained on June 2, 2010, and finding employer liable for future medical benefits including knee replacement. The Commission rejected the employer's expert testimony that minimized the work injury's effects and found the employee's preexisting degenerative arthritis was asymptomatic prior to the work accident.

Archive Notice

This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

Related Legal Help

Practical guidance for this decision

Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge)
Employee:Keith Grimes
Employer:Curators of the University of Missouri
Insurer:Self-Insured
This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.
Preliminaries
The parties asked the administrative law judge to determine the following issues:(1) employer’s liability, if any, for permanent partial disability benefits; and (2) employer’s liability, if any, for future medical benefits pursuant to § 287.140 RSMo.The administrative law judge rendered the following determinations:(1) employee has sustained a permanent partial disability of 25% of the left knee as a result of the acute aggravation of the significant preexisting degenerative arthritis which occurred in the work accident of June 2, 2010; and (2) the need for future treatment for employee’s left knee does not flow from the June 2, 2010, accident and injury.Employee filed a timely application for review with the Commission alleging the administrative law judge erred:(1) in that his determination of the extent of permanent partial disability was too low given the nature of the injury and long-term sequelae resulting therefrom; and (2) in determining that the need for future left knee replacement did not flow directly from the June 2, 2010, work accident.For the reasons stated below, we modify the award of the administrative law judge referable to the issues of:(1) employer’s liability for permanent partial disability benefits; and (2) employer’s liability for future medical expenses pursuant to § 287.140 RSMo.
Discussion
Nature and extent of permanent partial disability
The administrative law judge found the testimony from employer’s expert medical witnesses, Drs. Lyndon Gross and Anthony Frisella, to be most persuasive with regard to the nature and extent of permanent partial disability resulting to employee’s left knee from the work injury of June 2, 2010. We disagree. Dr. Frisella (whom employer retained after Dr. Gross conceded that employee suffered at least some permanent disability referable to the work injury) repeatedly emphasized the preexisting degeneration in employee’s left knee in an attempt to minimize the effects of the work injury; in Dr. Frisella’s estimation, the work injury was a mere “sparkler” contrasted against the preexisting arthritis, a “house on fire.” Transcript, page 496-97. In our view,

Dr. Frisella failed to persuasively explain why, if employee's left knee truly was a "house on fire," employee's left knee was essentially asymptomatic for at least five years prior to the occurrence of the work injury.

In keeping with his theory that preexisting degeneration is employee's only real problem, Dr. Frisella indicated he would rate 25 % permanent partial disability with respect to the left knee, referable solely to preexisting degeneration; Dr. Frisella believed the work injury was a mere contusion that resolved without causing any permanent disability. Notably, Dr. Frisella testified he would also rate 20 to 25\% permanent partial disability for the degenerative arthritis in employee's uninjured right knee. Yet, employee credibly testified (and we so find) that he is not currently having any problems with his right knee, and his right knee has never caused him any difficulty at work. Where Dr. Frisella was willing to rate at least 20\% permanent partial disability for an essentially asymptomatic right knee, we find Dr. Frisella's opinions in this case lacking credibility.

Turning to the opinions from Dr. Gross, as noted above, he specifically conceded that the work injury caused employee to suffer a change in pathology consistent with at least some permanent disability. After careful consideration, we are most persuaded by the testimony from Dr. Volarich identifying the trochlear lesion, meniscus tear, and freefloating cartilage seen during surgery as consistent with the mechanism of the work injury, which involved a direct blow to employee's flexed left knee, with an additional element of twisting as employee fell. Specifically, Dr. Volarich persuasively explained (and we so find) that a twisting blow to a flexed knee of the type suffered by employee causes direct contact of the patella against the trochlea, in addition to torque affecting the meniscus, all of which are consistent with causation of the fresh-looking pathology described by the authorized treating surgeon, Dr. James Stannard.

We also find it relevant that employee lost his job with employer following this work injury. It appears that this occurred, at least in part, owing to employee's inability, following the work injury, to maintain his pre-injury pace of work, combined with his inability to tolerate the prolonged weight-bearing activities that employer was asking him to perform. Thereafter, employee took jobs that permitted him to remain seated throughout most of the work day.

In light of the foregoing considerations, we find that employee suffered 35\% permanent partial disability with respect to the left knee as a result of the work injury. Accordingly, we modify the administrative law judge's award with respect to the issue of employer's liability for permanent partial disability benefits. We find that employer is liable for 56 weeks of permanent partial disability at the stipulated compensation rate of $\ 422.97, for a total of $\ 23,686.32 in permanent partial disability benefits.

Future medical treatment

The administrative law judge determined that there is not a reasonable probability that employee has a need for future medical treatment that flows from the effects of the work injury. In so ruling, he relied on the following considerations: employee has not sought treatment for his left knee since November 8, 2011; employee will likely require bilateral knee replacements in the future owing to his arthritis and obesity, regardless whether

the work injury had occurred; employee sought some treatment for his left knee before the occurrence of the work injury, and so the pattern of waxing and waning symptoms referable to arthritis was established before the injury and continues thereafter; and employee currently takes only ibuprofen to manage his symptoms referable to the work injury.

After a careful review of the conflicting evidence with regard to this issue, we disagree. First, we must note that where, as here, it is uncontested that a compensable injury has occurred, "the question of whether or not [employee] may have needed future treatment even if the injury did not occur is irrelevant to the analysis of whether the future medical care flows from the injury that actually occurred." Stevens v. Citizens Mem'l Healthcare Found., 244 S.W.3d 234, 238 (Mo. App. 2008). In the context of this case, we must conclude that it is wholly irrelevant to our analysis that employee may, at some point in the future, have developed a need for a total knee replacement even if the work injury had not occurred.

Second, we do not find it particularly relevant that employee has not sought additional medical treatment for his left knee during the several years that have elapsed since he reached maximum medical improvement. Obviously, there are many reasons an injured employee might delay or refrain altogether from seeking treatment, especially in the context of a disputed workers' compensation claim. In this case, we do not perceive employee's refraining from seeking additional treatment as undercutting, in any fashion, the otherwise persuasive evidence regarding the severity of the work injury. As we noted above, employee was essentially forced to change jobs as a result of the work injury, and now enjoys a position where he is very rarely on his feet for any extended period of time. Employee also credibly testified (and we so find) that he plans to hold off on undergoing a knee replacement surgery until his symptoms are unbearable. We will not fault employee for this eminently reasonable decision.

Third, the fact that employee is, for the time being at least, able to manage his symptoms referable to the work injury utilizing only ibuprofen does not, in our view, defeat the claim for future medical treatment. Relief under § 287.140 RSMo is not limited to prescription medications, but instead specifically includes all "medicines" that may relieve from the effects of the work injury. An employer's duty to provide statutorilyrequired medical aid to an employee is absolute and unqualified. Downing v. McDonald's Sirloin Stockade, 418 S.W.3d 526, 529 (Mo. App. 2014).

Of course, the administrative law judge noted employee's use of ibuprofen as support for his finding that the effects of the work injury are not very serious, and thus employee does not now need a total knee replacement. The premise appears to be that if an employee cannot prove, at the time of hearing, that a specific treatment modality is imminently required, the claim for future medical care is defeated. We cannot endorse this view. As recently made clear in the case of State ex rel. ISP Minerals, Inc. v. Labor \& Indus. Rels. Comm'n, 465 S.W.3d 471 (Mo. 2015), the Commission retains jurisdiction to hear and resolve disputes arising from questions of future medical treatment. Consequently, in a case such as this where the doctors are in agreement that employee will likely require a left total knee replacement at some point in the future;

Employee: Keith Grimes

we find it inappropriate to now foreclose, forever, the employee's opportunity to advance evidence showing that such need, if and when it arises, flows from the work injury.

In sum, we are most persuaded by employee's evidence with regard to this issue. We find that there is a reasonable probability that employee will have a need for future medical treatment flowing from the effects of the work injury. We conclude that, pursuant to $\S 287.140$ RSMo, employer is obligated to provide that future medical treatment that may reasonably be required to cure and relieve the effects of the work injury.

Conclusion

We modify the award of the administrative law judge as to the issues of: (1) employer's liability for permanent partial disability benefits; and (2) employer's liability for future medical expenses pursuant to $\S 287.140$ RSMo.

Employee is entitled to, and employer/insurer is hereby ordered to pay, $\ 23,686.32 in permanent partial disability benefits.

Employee is entitled to, and employer/insurer is hereby ordered to provide, that future medical treatment that may reasonably be required to cure and relieve the effects of the work injury.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued July 21, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 13th day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee: Keith Grimes

Injury No. 10-044243

Dependents:

Employer: Curators of the University of Missouri

Address: 20100000000000

Address: 201000000000000

Address: 201000000000000

Address:

Full decision text continues in the plain-text archive copy.

Related Decisions

affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award allowing workers' compensation benefits for an employee's left knee injury, including approval for total knee replacement and related medical care. One dissenting member argued the knee replacement did not flow from the work injury and that employer liability should be limited to the successful meniscectomies already performed.

knee5,412 words

The Commission reversed the ALJ's award granting workers' compensation benefits to a certified nursing assistant who injured her left knee while backing out of a narrow space between a bed and wall at a nursing home on March 5, 2015. The ALJ had found the injury work-related and awarded medical expenses, temporary total disability, mileage reimbursement, and permanent partial disability benefits, but the Commission determined this award was erroneous.

knee12,845 words
affirmed

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award denying workers' compensation benefits to Jamie E. Overstreet for a knee injury sustained on February 12, 2018. A dissenting opinion argued the injury arose out of employment and that the employee was entitled to temporary total disability, permanent partial disability, and future medical benefits.

knee6,228 words
affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award of workers' compensation benefits for Jackie W. Hooper's work-related knee injuries involving two tears to the medical meniscus. The commission found the award was supported by competent and substantial evidence and in accordance with Missouri Workers' Compensation Law, though one member filed a dissenting opinion regarding the scope of future medical treatment responsibility.

knee5,575 words

Davis v. Negri Plumbing(2020)

January 14, 2020#10-069808

reversed

The Commission reversed the administrative law judge's decision and found the Second Injury Fund (SIF) liable for compensation in this case involving a preexisting condition of osteogenesis imperfecta. The employee sustained a compensable right knee injury on September 1, 2010, and the Commission determined that the preexisting condition constituted a hindrance or obstacle to employment for purposes of SIF liability.

knee10,924 words