Diane Koch v. Aldi, Inc.

^{1} Employer’s application for review focuses on the issue of nature and extent of the employee’s disability; employer’s brief raises the issue of medical causation. We consider both arguments. ^{2} *Award*, p. 9. ^{3} *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo., 2003); *McCutchen v. Peoplease Corporation*, 195 S.W.3d 421 (Mo. App., 2006).

We rely on Dr. Volarich's opinion that, within a reasonable degree of medical certainty, the employee's April 11, 2013, injury was the prevailing factor in causing her severe right hip strain, requiring conservative medical treatment. ${ }^{4}$ We further credit Dr. Volarich's opinion that the employee's multiple preexisting disabilities were a hindrance to employment or reemployment and that these disabilities combined synergistically with disability resulting from the primary injury to create substantially greater disability than the simple sum. We conclude consistent with Dr. Volarich's evaluation and the opinion of vocational expert Timothy Lalk, that employee's physical disabilities considered in relation to her age, education, work experience, and lack of transferable skills, have rendered the employee permanently and totally disabled.

Regarding the issue of past medical expenses, we note Dr. Volarich's opinion that the employee's December 2014, right hip replacement was due to wear and tear of a prior hip replacement over a period of eighteen years, unrelated to her primary work injury. ${ }^{5}$ Based on this evidence, we conclude that the ALJ properly found that the employee's outstanding medical bills in the amount of $\ 51,445.81 relating to her 2014 hip revision did not flow from her work injury and that employer is not liable for these past medical expenses.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued June 20, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $31^{\text {st }}$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{4} Transcript, 2227-2228.

{ }^{5}$ Id. 2232.

Employee: Diane Koch

Injury No.: 13-026268

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Injury

Employer: Aldi, Inc.

Division of Workers' Compensation

Department of Labor and Industrial

Additional Party: Second Injury Fund (SIF)

Relations of Missouri

Jefferson City, Missouri

Insurer: Self c/o Cannon Cochran Management Services, Inc.

Hearing Date: March 13, 2017

Checked by: KMH

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: April 11, 2013
5. State location where accident occurred or occupational disease was contracted: St. Charles, MO
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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured right hip and right knee when she fell while climbing off her forklift.
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: right hip and right knee
14. Nature and extent of any permanent disability: 15 % PPD of the right hip payable by Employer, and permanent and total disability payable by the SIF as a result of the combination of Claimant's primary and prior injuries and disabilities.
15. Compensation paid to-date for temporary disability: $\ 13,376.24
16. Value necessary medical aid paid to date by employer/insurer? $\ 4,703.85

Employee: Diane Koch Injury No.: 13-026268

1. Value necessary medical aid not furnished by employer/insurer? none
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 714.76 / \ 433.58
4. Method wages computation: Stipulation

1. Amount of compensation payable:

31.05 weeks of permanent partial disability from Employer $\ 13,462.66

1. Second Injury Fund liability:

Indeterminate

Permanent total disability benefits from Second Injury Fund:

weekly differential of $\ 281.18 payable by SIF for 31.05 weeks beginning

August 21, 2013, and, $\ 714.76 weekly thereafter, for as long as provided by law

TOTAL:

INDETERMINATE

1. Future requirements awarded: see award

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:

Ryan Cox

Employee: Diane Koch

Departments: n/a

Employer: Aldi, Inc.

Additional Party: SIF

Injury No.: 13-026268

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Innurer: Self c/o Cannon Cochran Management Services, Inc.

Checked by: KMH

A hearing was held on the above captioned matter March 13, 2017. Diane Koch (Claimant) was represented by attorney Ryan Cox. Aldi (Employer) was represented by attorney Lynn Barnett. SIF was represented by Assistant Attorney General Barbara Toepke.

The SIF offered Exhibit I, Claimant's facebook posts, over Claimant's objections. The exhibit was admitted subject to the objection, and Claimant was given the opportunity to brief her objection in her proposed award. Claimant did not do so, and Exhibit I is hereby admitted. All remaining objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant had an accident in the course and scope of her employment for Employer on April 11, 2013.
2. Venue is proper in St. Louis.
3. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
4. Employer's liability was self-insured c/o CCMSI.
5. Employer had notice of the accident and a claim for compensation was timely filed.
6. Claimant's average weekly wage was sufficient to yield rates of $\ 714.76 for TTD/PTD and $\ 433.58 for PPD.
7. Claimant has been paid compensation to date in the amount of $\ 13,376.24 covering a time period of April 13, 2013 through August 20, 2013. She received \$4,703.85 in medical benefits.

The parties stipulated the issues to be resolved are as follows:

1. Medical causation
2. Liability for past medical expenses of $\ 51,445.81
3. MMI date
4. Future medical care
5. TTD from August 21, 2013 through the date of MMI.
6. Permanent disability
7. SIF liability

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 64 year-old female who graduated from high school and cosmetology school. She has no other vocational training or certification. She began working for Employer in 1979. She worked in the warehouse, and her duties involved unloading trailers, stacking product, filling store orders, operating a fork lift, and various warehouse duties. This was a physical job and required her to stand, lift, bend, squat, climb, and kneel. She worked up to 50 hours a week, and worked for Employer for 34 years.
2. Prior to her 2013 accident, Claimant had a number of injuries. In 1989, she injured her right hip, and Dr. Whiteside performed a total hip replacement in February 1990. He noted Claimant had congenital dysplasia of the hip with pain for the past five years. She was able to return to work, but her hip bothered her when she had to walk a lot at work. By June 1996, Claimant developed a large osteolytic cyst. Dr. Lux diagnosed a failed total hip replacement and performed a revision of the acetabular component and cup. He released her from treatment in December 1996 and noted she was doing well with no more hip pain.
3. Leading up to the 2013 accident, Claimant had pain in her hip. She had limitations that slowed her down at work. She was not able to lift as much and could not kneel.
4. In 1993 Claimant slipped on broken eggs at work and landed on her left elbow. She was treated with injections. She also developed pain in her right elbow. Both elbows were weaker, and she had pain and problems lifting leading up to 2013. Claimant settled a 1994 case for 10 % PPD of the right elbow.
5. Clamant injured her left knee in 2001 when she fell at work. She tore her meniscus and Dr. Johnson performed arthroscopic partial medial meniscectomy and debridement. He released Claimant at MMI in April 2002. Claimant settled this case for 25\% PPD of the left knee. She also settled the SIF aspect of this case for 40 % PPD of the right hip. Leading up to the 2013 accident and continuing, Claimant had s