Ronald Reynolds v. Missouri Highway and Transportation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge With Supplemental Opinion)

**Injury No.:** 14-060340

**Employee:** Ronald W. Reynolds

**Employer:** Missouri Highway and Transportation

**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. Having reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The parties identify a single issue on appeal to the Commission, whether employee is entitled to future medical care arising from the July 22, 2014, work-related knee injury.

Employee's compensable work injury of the right knee resulted in surgery performed by Dr. David Denenny on September 2, 2014. Employee was released to full duty, however, his complaints of pain continued. He received injections to help with the pain on more than one occasion post-operative, through at least June 2015. *Transcript*, page 43, 309-311, 334-335. As of June 5, 2015, Dr. Robert Paul determined that employee was in need of future medical care as a result of employee's July 22, 2014 injury. He noted employee continued to be "quite symptomatic," at that time. *Transcript*, page 45. His opinion was that the medical care should be left open for an indefinite period for the ongoing pain management of the injury. *Transcript*, page 44. In its brief, employer/insurer concedes that this is "the only expert testimony regarding the need for future medical care." See *Appellant Brief*, page 4. Employer did not offer any expert testimony to controvert this medical opinion.

Dr. Paul rendered his opinion prior to a subsequent injury on January 14, 2016, the precise nature of which cannot be ascertained from the record before us. However, we cannot ignore competent expert testimony on record that is admittedly unrebutted and which is unimpeached. *Garibay v. Treasurer of Missouri*, 930 S.W. 2d 57, 61 (Mo. App. E.D. 1996). No award or defense can be sustained based on mere speculation. *Sanderson v. Producers Commission Association*, 229 S.W. 2d 563, 567 (Mo. 1950), *Shrock v. Wolfe Auto Sales, Inc.*, 358 S.W. 2d 812, 815 (Mo. 1962).

An award of future medical care is not only supported, it is essentially mandated by the facts before us. Employee's burden of proof regarding any claim for future medical is clearly set forth in *Tillotson v. St. Joseph Medical Center*, 347 S.W. 3d 511, (Mo. App. W.D. 2011). "The legal standard for determining an employer's obligation to afford

Injury No.: 14-060340

Employee: Ronald W. Reynolds

- 2 -

medical care is clearly and plainly articulated in § 287.140.1 as whether the treatment is reasonably required to cure and relieve the effects of the injury." It is not necessary to establish that the compensable injury is the prevailing factor that resulted in the need for continued treatment. It is only necessary to show that "the need for treatment and medication flow from the work injury." The fact that the medication or treatment may also benefit other conditions or non-compensable injury is irrelevant. *Id.* at 519.

The only medical opinion before us, (Dr. Robert Paul) opines that employee continued to be symptomatic after his injury and initial surgery, thereby establishing a reasonable probability of a need for future treatment flowing from the effects of the compensable injury. *Landman v Ice Cream Specialties, Inc.* 107 S.W. 3d 240, 248 (Mo. banc 2003). If the care flows from the accident, and a medical causal relationship between the condition and the compensable injury is established, employer is responsible for medical treatment, including future medical treatment. *Tillotson* at 518.

**Conclusion**

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

The award and decision of Administrative Law Judge Maureen Tilley, issued May 5, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of 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 20th day of June 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Ronald W. Reynolds

Injury No. 14-060340

Employee: Ronald W. Reynolds

Injury No. 14-060340

Dependents: N/A

Employer: Missouri Highway and Transportation

Additional Party: N/A

Insurer: Self

Hearing Date: February 3, 2017

Checked by: MT/kg

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: July 22, 2014.

1. State location where accident occurred or occupational disease was contracted: Van Buren, Carter County, Missouri.

1. Was above Claimant in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did the employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was claim for compensation filed within the time required by law? Yes.

1. Was the employer insured by above insurer? Yes.

1

Employee: Ronald W. Reynolds

Injury No. 14-060340

1. Describe work Claimant was doing and how accident occurred or occupational disease contracted: Employee injured his right knee while attempting to get underneath a truck, while he was at work.

1. Did accident or occupational disease cause death? No.

1. Part(s) of body injured by accident or occupational disease: Right knee.

1. Nature and extent of any permanent disability: 20% permanent partial disability of the right knee.

1. Compensation paid to date for temporary disability: 0

1. Value necessary medical aid paid to date by the employer-insurer? 0

1. Value necessary medical aid not paid by the employer-insurer? 19,621.97

1. Employee's average weekly wages: 649.60

1. Weekly compensation rate: $433.07

1. Method of computation: By agreement of the parties.

1. Amount of compensation payable: See findings.

1. Second Injury Fund liability: N/A.

1. Future requirements awarded: See findings.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Elijah Haahr

**Injury No. 14-060340**

On February 3, 2017, the employee, Ronald W. Reynolds, appeared in person and with his attorney, Elijah Haahr, for a hearing for a final award. The employer was represented at the hearing by its attorney, Jeffrey Wright. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. **Covered Employer:** On or about July 22, 2014, Missouri Highway & Transportation was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully self-insured.
2. **Covered Employee:** On the alleged date of injury of July 22, 2014, Ronald W. Reynolds was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.
3. **Notice:** Employer had notice of Employee's accident.
4. **Statute of Limitations:** Employee's claim was filed within the time allowed by law.
5. **Average weekly wage and rate:** At the time of the alleged accident, the employee's average weekly wage was 649.60, which is sufficient to allow a compensation rate of 433.07 for temporary total disability compensation and permanent disability compensation.
6. **Medical causation:** Employee's injury was medically causally related to the accident or occupational disease.
7. **Medical aid furnished by Employer:** Employer provided no medical aid to Employee.
8. **Temporary disability paid by Employer:** The employer has not provided temporary total disability to the employee.

1. **Accident:** Whether on or about July 22, 2014, the employee sustained an accident that arose out of and in the course of the employment.
2. **Previously incurred medical aid:** The employee has made a claim for previously incurred medical aid in the amount of $19,621.97. The employer is disputing this claim as to the issue of authorization.
3. **Future medical aid:** The employee is making a claim for future medical aid.
4. **Temporary total disability:** Employee is making a claim for temporary total disability in the amount of $804.27, for the time periods of 9-2-2014 through 9-15-2014.
5. **Permanent partial disability:** The employee is making a claim for permanent partial disability.
6. **Fees and Costs:** The employee is making a claim against the employer for Fees and Costs under RSMO Section 287.560.

The following exhibits were offered and admitted into evidence:

MNKOI 0001630968

1. Complete Medical Report of Dr. Robert Paul, his curriculum vitae and supporting medical documentation
2. Shannon County Medical Records
3. Open MRI of West Plains
4. Ozarks Medical Center Medical Records
5. Ozarks Medical Center - Dr. Denenny Medical Records
6. Medical Bills and Table
7. Employee's deposition of July 24, 2015

Employer did not offer any exhibits into evidence.

Ronald Reynolds, hereafter referred to as "Employee", works for Missouri Highway and Transportation as a Senior Maintenance worker in their Van Buren office. His job duties include patching roads, mowing right of ways, plowing snow, and performing maintenance on the vehicles.

On July 22, 2014, Employee was working on a dump truck. A mud flap had broken off underneath it. Employee was going to weld the bracket back on to the vehicle. This required Employee to get underneath the truck between the tire and the back of the truck. He had a welder and torch. He was on his knees attempting to get underneath the truck to weld the bracket to the undercarriage of the truck. As he squatted down on his knees, he had to twist and roll underneath the truck to get in position for him to weld the bracket to the truck. During this period of twisting and rolling, he felt a pop in his right knee.

Employee's knee swelled up and he filled out an accident report. He also began to feel pain in his right knee. Employee called the Willow Springs office to tell the safety officer there what had occurred. He told them he wanted to see if the knee got better on its own before he got medical treatment.

The next week, the knee was not improving. Employee contacted the Willow Springs office again and asked them to set him up with a doctor to evaluate the swelling and pain in his right knee. The person he spoke with said they would schedule an appointment.

After several days with no appointment made, Employee called them back. They told him his claim was being denied. During that period of time between the incident and the denial of treatment, Employee was never contacted by anyone.

Employee: Ronald W. Reynolds

Injury No. 14-060340

**Medical Treatment**

Employee treated with Dr. Denenny at Ozarks Medical Center. He was referred out for an MRI. The MRI showed a radial tear on the edge of the lateral meniscus as well as tendinopathy. On September 2, 2014, surgery was performed. The surgery was a right knee arthroscopic chondroplasty of the lateral and medial formal condyles and medial tibial plateau. Employee followed up with Dr. Denenny as he continued to have problems with his right knee. He was given multiple Synvisc injections and was eventually released back to full duty.

Employee continues to have pain in his right knee and a loss of range of motion.

**Independent Medical Examinations**

Employee was seen by Dr. Robert Paul on June 5, 2015. Dr. Paul performed a physical examination and reviewed the medical records including the MRI reports and the surgical notes. He took a social history from Employee as well as a list of physical complaints.

Dr. Paul determined that the prevailing factor in Employee's knee surgery and current complaints was his on-the-job injury of July 22, 2014, when he was twisting his right knee in an effort to get underneath the vehicle he was repairing.

Dr. Paul found that Employee was temporarily and totally disabled from July 30, 2014 until December 8, 2014, except when he was working. Dr. Paul provided restrictions to Employee that included no repetitive bending or squatting, crawling, or climbing ladders.

He also assigned a permanent partial disability of 20% to his right knee and recommended that future medical treatment be left open for pain management for an indefinite period of time. He further found that all of Employee's treatment was necessary to cure and relieve the effects of the injury and that the billing for said treatment was reasonable, necessary and related to his on the job injury.

**RULINGS OF LAW:**

**Issue 1. Accident**

Employee's injury is compensable if it arose out of and in the course of his employment pursuant to section 287.020.3(2).

In this case, there is no issue regarding whether the twisting incident that occurred at work was the prevailing factor in causing the injury. As such, the only discussion is in the context of whether his injury, "...did not come from a hazards or risk unrelated to [his] employment to which he would have been equally exposed outside of and unrelated to [his' employment in his normal non employment life." See RSMo 287.020.3(2)(b); See Miller v. Missouri Highway & Transportation Commission, 287 SW 3d 671, at 673 (2009).

MNKOI 0000811646

Employee: Ronald W. Reynolds

Injury No. 14-060340

Based on all of the evidence presented, including the credible opinion of Dr. Paul, I find that Employee is in need of additional medical care to cure and relieve the effects of the July 22, 2014 work accident and injury. The employer is directed to provide to the employee all the medical treatment that is reasonably necessary to cure and relieve his symptoms from the effects of his work-related injury pursuant to Section 287.140 RSMo.

**Issue 4. Temporary total disability**

Employee is claiming temporary total disability benefits from September 2, 2014 through September 15, 2014. The amount they are claiming is $804.27. However, Employee's sick leave/return to work form stated that Employee could go back to work on September 15, 2014. Therefore, based on all of the evidence presented, I find that Employee is entitled to temporary total disability benefits from the time period of September 2, 2014 through September 14, 2014. The employer is directed to provide temporary total disability benefits in the amount of $804.27, for the time period of September 2, 2014 through September 14, 2014. This amount is the same dollar amount that Employee claimed, although the time period is different.

**Issue 5. Permanent partial disability**

Based on all of the evidence presented, I find that Employee sustained 20% permanent partial disability of his right knee (160 week level) for work injury he sustained on July 22, 2014. This equals 32 weeks of compensation. Employee's rate for permanent partial disability is 433.07. Therefore, Employer is directed to pay Employee 13,858.24 in permanent partial disability benefits.

**Issue 6. The Employee is making a claim for fees and costs under RSMO Section 287.560**

Section 287.560 states that if it is determined that "Any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted, or defended them."

Employer based their denial on the issue of accident. Based on all of the evidence presented, I find that Employee did not meet his burden of proof burden that "unreasonable conduct" occurred. Therefore, based on all of the evidence presented, I find that Employee's request for Fees and Costs, under RSMO Section 287.560, is denied.

**ATTORNEY'S FEE:**

Elijah J. Haahr, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

**INTEREST:**

Interest on all sums awarded hereunder shall be paid as provided by law.


Made by:


Maureen Tilley

Administrative Lawludge

Division of Workers' Compensation