Keith Grimes v. Curators of the University of Missouri

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.

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;

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.

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:

Employee: Keith Grimes

Injury No. 10-044243

Dependents:

Employer: Curators of the University of Missouri

Address: 20100000000000

Address: 201000000000000

Address: 201000000000000

Address: 201000000000000

Additional Party: None

Address: 201000000000000

Insurer: Self-Insured

Address: 201000000000000

Hearing Dates: May 16, 2016

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: June 2, 2010.
5. State location where accident occurred or occupational disease was contracted: Boone 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? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was moving supplies out of a truck into a clinic when he slipped and fell, falling onto his knees and injuring his left 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: Left knee.
14. Nature and extent of any permanent disability: 25 % permanent partial disability of the left knee.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? $\ 21,730.36.
17. Value necessary medical aid not furnished by employer/insurer? None.

Employee: Keith Grimes

1. Employee's average weekly wages: $\ 704.80.
2. Weekly compensation rate: $\$ 469.87 / \ 422.97.
3. Method wages computation: Stipulation.

From Employer:

40 weeks of permanent partial disability benefits

$\ 16,918.80

Said payments to begin immediately 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:

Allen \& Nelson, P.C.

The evidentiary hearing in this case (Injury No. 10-044243) was held in Columbia on May 16, 2016. Employee, Keith Grimes, appeared personally and by counsel, Benjamin Nelson; Employer, Curators of the University of Missouri, appeared by counsel, Rick Montgomery. Posthearing briefs were filed on June 28, 2016. The hearing was held to decide 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 $\S 287.140$, RSMo.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the rates of compensation are $\ 469.87 for temporary total disability and $\ 422.97 for permanent partial disability, based on an average weekly wage of $\ 704.80;

1. That Keith Grimes ("Employee") sustained an accident arising out of and in the course of his employment with the University of Missouri on or about June 2, 2010;
2. That the notice requirement of Section 287.420, RSMo, is not a bar to this action;
3. That Curators of the University of Missouri ("Employer") was an authorized selfinsurer for Missouri Workers' Compensation liability at all relevant times;
4. That Employer paid medical benefits of $\ 21,730.36; and
5. That Employer paid no temporary total disability benefits.

The evidence consisted of the testimony of Claimant, Keith Grimes; medical records; the narrative report and deposition testimony of Dr. David Volarich; the narrative reports and deposition testimony of Dr. W. Anthony Frisella; the narrative report of Dr. Lyndon Gross.

Keith Grimes ("Claimant") was born on August 18, 1966. Claimant is currently employed at the Truman VA Hospital where he has worked for approximately three years as a telephone operator. He also does paperwork. He does very little standing other than getting up to walk to a printer or filing cabinet. Prior to working at the Truman VA Hospital, Claimant worked as a bus driver for Columbia Public Schools for one and a half to two years. As a bus driver, he sat most of the time, but did have to climb stairs to get in and out of the bus.

This case concerns an injury to Claimant's left knee on June 2, 2010. While Claimant denied any prior left knee problems, other than brief problems while playing baseball in high school and while wrestling with his brother, Claimant's recollection in that regard is not completely accurate.

Medical records indicate that on December 9, 2004, Claimant presented to Dr. Matt Thornburg at University Hospital and Clinics complaining of left knee pain. He had awakened with pain and swelling in the left knee and relayed an old high school injury when he hyperextended his knee. The pain was affecting his sleep and was aggravated by sitting and stairs. He had range of motion from 0-125 degrees. Dr. Thornburg diagnosed subluxation and recommended physical therapy, rest, NSAIDS, and an MRI. An X-Ray on that same date showed mild joint space narrowing that would be better evaluated with weight bearing views, marginal osteophytes present in all three joint compartments, and calcification overlying the

margin of the lateral tibial plateau suspicious for chondrocalcinosis. The impression was mild degenerative changes and possible chondrocalcinosis.

On September 25, 2006, Claimant presented to University Hospital and Clinics complaining of pain in both knees, his right hand, and his right elbow. He had missed a handrail and fallen forward down some stairs. He was 5'10" tall and weighed 355 pounds at the time.

As stipulated, Claimant sustained an accident arising out of and in the course of his employment on June 2, 2010. On that date, Claimant was on a lift moving supplies out of a truck into a clinic when his toe caught the lip of the lift, causing him to fall forward on his knees, left greater than right. The fall also caused a jamming injury to Claimant's right shoulder with symptoms that resolved. After his delivery, Claimant immediately told his supervisor about the fall, and the next day filled out paperwork. After a few days, Claimant continued to feel pain in the left knee and saw Work Injury Services on June 8, 2010.

Work Injury Services prescribed Ibuprofren for pain and limited Claimant to sedentary work, with only occasional walking, no squatting, no climbing, and no ladders. In August 2010 Work Injury Services released Claimant to full duty with no restrictions.

Employer sent Claimant to see Dr. Kevin Komes, a physical medicine and rehabilitation physician, on August 28, 2010. Claimant was complaining of intermittent knee pain. At that time, Claimant's weight was 434 pounds. Dr. Komes wanted Claimant to be evaluated by Orthopedic Surgery to delineate whether there was knee pathology related to the work accident or whether there were only degenerative complaints.

Orthopedic surgeon Dr. James Stannard saw Claimant on October 18, 2010. Dr. Stannard noted that Claimant was remarkably obese and diagnosed a left knee sprain that did not need any treatment. He could work full duty. On January 24, 2011, Dr. Stannard noted that while Claimant previously did not have mechanical symptoms when he saw him last, Claimant believes he does have them now. Diagnostic arthroscopic surgery was recommended because Claimant could not fit in the MRI machine.

Claimant underwent arthroscopic surgery by Dr. Stannard on April 26, 2011. The postoperative diagnosis was left knee loose body, medial meniscus tear, and chondral defect in the medial femoral condyle and trochlea. Physical therapy was recommended.

Dr. Stannard last saw Claimant on August 4, 2011. He noted significant blood pressure problems that prevented formal testing during the work capacities evaluation. He did not think at his body size Claimant was going to be able to go to a physically demanding job although this had nothing to do with his underlying problem (with the left knee). Dr. Stannard released Claimant at maximum medical improvement without restrictions on the knee. No future medical treatment was recommended.

Employer had Claimant evaluated by orthopedic surgeon Dr. Lyndon Gross on August 11, 2011, and Dr. Gross authored a report of the same date. Dr. Gross' conclusions are as follows:

At this time, the patient continues to have some occasional left knee pain. I did discuss with him that from review of his medical records, his x-ray studies, and his examination today that it appears that he has some underlying degeneration of his knee. I do believe that his injury from 06/02/10 aggravated the underlying degeneration of his knee. He was treated nonoperatively for this but continued to be symptomatic. Due to his body habitus, he was unable to have an MRI scan to confirm intraarticular pathology. He subsequently underwent surgical intervention by Dr. Stannard where he was found to have some osteochondral lesions of the trochlear groove and medial femoral condyle in addition to a meniscal tear. I do believe that a portion of this process could be related to his injury but that the majority of this process was related to underlying degeneration of his knee due to his age and his body habitus. I do believe he has had appropriate treatment and management for his knee by Dr. Stannard for the damage to his knee related to the injury of 06/02/10. At this point in time, any further management would be related to the underlying degeneration of his knee and not related to his injury. I did discuss this with the patient. I do believe he is at maximum medical improvement and could return to regular duty, although I believe that his body habitus and other medical comorbidities may be issues with regards to returning to activity. I believe he has a partial permanent disability rating of 5 % with regards to his left knee related to his injury of 06/02/10. The remainder of his disability is related to underlying degeneration of his knee.

On November 8, 2011, Claimant consulted with Dr. Bhajanjit "Sonny" Bal, an orthopedic surgeon. Dr. Bal's report states:

This is a 45-year-old gentleman, employed, with almost end stage left knee osteoarthritis clearly visible on x-rays and has failed reasonable attempts at arthroscopy. The opposite knee does not hurt him for some reason. This one does.

The question is what to do and he tells me Dr. Sanders (sic) has exhausted all options. I explored these further with him; arthroscopic, meniscal transplants, cartilage transplants, so on and so forth. This is a very heavyset gentleman.

He is functionally disabled. He is unable to go enjoy his children, et cetera. I told him knee replacement is an option. We have done some of these heavy patients before usually with a noncemented implant. The ultimate prognostic indicator is how well the knee is aligned. That is a matter of luck and skilled surgeon. Probably, a combination of both. At this point, I would like him to read the book that I have on this issue, give it some thought. He is neither being encouraged nor discouraged to have surgery, but to really get as much information as possible.

Dr. David Volarich evaluated Claimant at his attorney's request on August 20, 2012, and testified by deposition on June 21, 2013.

Dr. Volarich noted the 4/26/11 arthroscopy described "excision of loose bodies that were free-floating, large pieces of articular cartilage, repair of the medial meniscus and a

chondroplasty of the medial femoral condyle and trochlea." Dr. Volarich testified that the mechanism of injury described by Claimant was consistent with the injuries identified by the surgeon. Specifically, Dr. Volarich testified that the fresh lesion found at the trochlea and the free-floating cartilage was consistent with a direct blow to Claimant's knee. Dr. Volarich testified that the description of the lesion as having rough edges was consistent with an acute injury, rather than smoothed or rounded edges that would be consistent with a chronic or longstanding defect. Dr. Volarich additionally testified that Claimant's fall forward onto his knees and then onto the right shoulder is consistent with an injury that will tear a meniscus.

Dr. Volarich agreed that x-rays of both knees were the same revealing moderate degenerative changes in both knees. This degeneration was present in both knees prior to the accident. These degenerative changes by their very nature progress and worsen with time, aging and activities of daily living. Claimant's obesity further accelerates the degenerative changes. Claimant's BMI of 61 was one of the highest Dr. Volarich has ever calculated. He indicated that the impact on the knees of a person as overweight as Claimant is significant because the extra weight he's carrying around causes accelerated wear and tear, and causes degenerative changes to progress more quickly and at a faster rate than someone of ideal weight. It affects not only his knees, but also his hips, ankles, feet and back. As the degenerative changes progress on their own, they can cause pain that waxes and wanes and can lead to degenerative tears, surgery and knee replacements even without any type of acute trauma. Dr. Volarich expects Claimant's symptoms to worsen with time due just to age and further degeneration.

Dr. Volarich believes Claimant will require a knee replacement in the future, and that the need for a knee replacement flowed directly from the work injury of 6/2/10. He testified that any treatment Claimant may require in the future will be dictated only by his level of pain. Claimant was only taking ibuprofen periodically when Dr. Volarich saw him and not complaining of much pain. As a result, no treatment was immediately necessary, nor would any be necessary unless he later has pain due to progression of his degenerative knees that requires it. Dr. Volarich believes that Claimant suffered a permanent partial disability of 60 % of the left knee.

Employer had Claimant evaluated by orthopedic surgeon Dr. W. Anthony Frisella on March 7, 2013. Dr. Frisella prepared a report on that same date, a supplemental report on December 31, 2013, and testified by deposition on March 27, 2014. A summary of Dr. Frisella's opinions follows:

Dr. Frisella diagnosed a left knee contusion from the accident, and pre-existing osteoarthritis. Osteoarthritis pain waxes and wanes, so it is not significant that Claimant may not have had complaints prior to his accident. The very nature of osteoarthritis is that it progresses and worsens with time as a part of the natural aging process, and in and of itself, can lead to surgery, even total knee replacements, without any specific trauma or acute injury. Arthritis isn't always painful. X-Rays taken of both knees were identical. This is significant because it confirms that the pre-existing osteoarthritis in the left knee was not accelerated in any way by the fall since it is that same as the right. The accident of June 2, 2010, had no effect whatsoever on Claimant's osteoarthritis. It did not cause a chondral lesion or meniscus tear. These were both degenerative. 95 % of patients with osteoarthritis develop meniscus tears as arthritis progresses.

Claimant will need both knees replaced in the future, but any future treatment does not flow from his June 2, 2010 work injury. The persistent knee pain he presented with on March 7, 2013, would have been the same regardless of whether or not the June 2, 2010, injury ever occurred. The June 2, 2010, accident did not alter the natural history of the arthritis and it did not accelerate the need for any treatment in the future. The fresh appearing lesion Dr. Stannard noted in his operative report was not caused by the June 2, 2010 accident. It is not likely that a direct blow to the knee would gouge a piece of cartilage out. This is a natural progression of arthritis. The arthritis caused bone spurs in the knee and irregular cartilage, and when Claimant flexes or extends his knees, those irregularities are damaging the other parts because the two pieces of cartilage are rubbing against each other, so if there is a missing piece on one side, as you flex and extend the knee, it can take a piece of cartilage off the other side. This is a more likely explanation of the fresh appearing osteochondral lesion, which is just a natural progression of the arthritis. Surgery was performed on April 26, 2011. The accident occurred on June 2, 2010. Any lesion that occurred nine months prior would not appear fresh that long afterwards. The surgery Dr. Stannard performed would have been necessary regardless of whether or not Claimant had fallen.

It was Dr. Frisella's opinion that Claimant did not suffer any permanent partial disability to his left knee as a result of his accident. Claimant has a permanent partial disability to his left knee of 25 % and to his right knee of 20 %, but this is entirely due to pre-existing non-related degenerative osteoarthritis and not the accident.

Claimant testified that he has daily symptoms in the left knee including pain that he rates at a 4 to 5 out of 10 . He guards his knee when walking, and watches for obstacles. He has changed the way he handles stairs. He is afraid his knee will give out. His knee grinds when it is bent, and it is painful. His only current treatment is Ibuprofen, ice and heat. He also elevates his feet and rests. Being on his feet for long periods of time causes him knee pain. The worst pain he ever gets is a $7 / 10. The best is approximately 2 or 3 / 10$. He can stand approximately one hour before he has knee pain. He also uses a cart to push and lean against when shopping now. He never spends more than one half to one hour at a grocery store once every one to two weeks.

At home Claimant pulls a chair up to the sink when washing dishes or to the stove while cooking. Standing hurts his knee. He also uses a chair when he does laundry. He seldom cooks, and eats on the run. Driving does not hurt his knee, and it is mainly just the position of his leg that causes him pain. On a long distance drive, he just needs to make sure his leg and knee are positioned correctly. He cannot squat because he is afraid he cannot get back up. He has not tried to squat since prior to the accident.

Claimant is 5' 10" tall and currently weighs 475 pounds. He is not on a diet, but watches what he eats. He had been told to lose weight even prior to the accident. Claimant does not wear a sleeve or brace on his left knee. He has not seen a doctor for any kind of treatment of his left knee since November 8, 2011, when he saw Dr. Bal on his own. He takes no medication other than over-the-counter ibuprofen occasionally as needed.

I find the opinions of Dr. Gross to be the most persuasive. I find the opinions of Dr. Volarich to be the least persuasive. Drs. Gross and Frisella are knee surgeons who deal daily with patients with similar issues. Dr. Volarich does not treat knees. Claimant clearly had preexisting degeneration of his left knee (actually, of both knees). I believe that Dr. Gross is correct that the June 2, 2010 work accident aggravated the underlying left knee degeneration. I do not believe that the June 2, 2010 work accident caused a meniscus tear. I believe Dr. Frisella is correct that the meniscus tear found by Dr. Stannard at the time of the diagnostic arthrocopy was preexisting and degenerative. I find that Claimant has sustained a 25 % permanent partial disability of his left knee as a result of the June 2, 2010 work-related accident which caused an aggravation of Claimant's preexisting left knee degeneration.

While Claimant will undoubtedly require knee replacements in both knees in the future, I cannot agree with Dr. Volarich's conclusion that the future need for a left knee replacement "flowed directly" from the June 2, 2010 accident. It has now been six years since the accident. Claimant has not had left knee replacement surgery, nor has he even seen a doctor for any kind of treatment of his left knee since November 8, 2011. Claimant will require bilateral knee replacements in the future, irrespective of the June 2, 2010 accident. I agree with Dr. Gross's statement that "any further management would be related to the underlying degeneration of his knee and not related to his injury."

Claimant analogizes this case to Dierks v. Kraft Foods, 471 S.W.3d 726 (Mo. App. W.D. 2015). Indeed, there are some similarities: Ms. Dierks, in her late sixties, had preexisting degenerative arthritis in both knees, she landed on her knees and had left knee pain that has never gone away despite surgery to repair a torn meniscus, she will likely need future left knee replacement surgery. However, there are some differences. The Dierks opinion states: "Dierks testified, however, that she was asymptomatic in her left knee prior to falling at work on January 17, 2009, and nothing in the record indicates problems with the use of her left knee prior to the fall." In this case, the record shows that Claimant sought treatment for his left knee in 2004 and in 2005. The Dierks opinion also states: "Dierks's orthopedic surgeon, Dr. Buchert, testified that Dierks's fall at work was the prevailing factor in causing her torn meniscus and her need for arthroscopic surgery." In this case, there is no orthopedic surgeon who has opined that Claimant's work-related fall caused the meniscus tear.

Claimant argues that (despite seeking treatment for his left knee in 2004 and for both knees in 2005) his left knee was "fine" immediately prior to the June 2, 2010 accident. If, indeed, Claimant's left knee was "fine" in early 2010, it is simply evidence that (as stated by Dr. Frisella) Claimant's osteoarthritis pain "waxes and wanes". Claimant didn't seek treatment for five years between 2005 and 2010. Claimant has not sought treatment for five years between 2011 and the present, and is only taking ibuprofen for his symptoms. The pattern of "waxing and waning" symptoms was established prior to the June 2, 2010 accident, and continues thereafter.

Considering all of the evidence, Dr. Volarich's opinion that Claimant's need for future left knee replacement flowed directly from the June 2, 2010 accident simply is not credible. Therefore, Claimant's request for future medical treatment should be denied.

In addition to those facts and legal conclusions to which the parties stipulated, I find the following facts and make the following rulings of law:

1. Prior to June 2, 2010, Claimant had significant preexisting degenerative arthritis in both knees.
2. The work-related accident of June 2, 2010 was the prevailing factor in causing an acute aggravation of the significant preexisting degenerative arthritis in Claimant's left knee.
3. The work-related accident of June 2, 2010 was not the prevailing factor in causing a left medial meniscus tear.
4. The left medial meniscus tear found by Dr. Stannard during the arthroscopic procedure on April 26, 2011 was degenerative and preexisted the June 2, 2010 accident.
5. Claimant 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.
6. The need for future treatment for Claimant's left knee does not flow from the June 2, 2010 accident and injury.

Employer is ordered to pay Claimant the sum of $\ 16,918.80 for permanent partial disability benefits. Claimant's attorney, Allen \& Nelson, P.C., is allowed 25 percent of that amount as and for necessary attorney's fees, and the amount of such fees shall constitute a lien thereon, until paid.

Interest shall accrue as per applicable law.

Made by $\qquad$

/s/Robert J. Dierkes 7-21-2016

Chief Administrative Law Judge

Division of Workers' Compensation