Karolyn Knierim v. Good Shepherd Nursing Home

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Temporary Award and Decision of Administrative Law Judge)

**Injury No.:** 16-097900

**Employee:** Karolyn Knierim

**Employer:** Good Shepherd Nursing Home

**Insurer:** Health Care Facilities of Missouri

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 briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the Temporary 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.

The parties asked the administrative law judge to resolve the following issues: (1) whether employee¹ sustained an accident arising out of and in the course of employment on December 9, 2016; (2) whether employee's current symptoms of left ankle and left knee are causally related to a work accident on December 9, 2016; (3) whether employer is liable for medical treatment to cure and relieve the effects of the December 9, 2016 accident; and (4) whether employer is liable for costs and expenses due to an unreasonable defense pursuant to § 287.560.

The administrative law judge determined as follows: (1) employee sustained injury arising from a work-related accident on December 9, 2016; (2) employee's symptoms of left knee and ankle complaints are causally related to the December 9, 2016 accident; (3) employer is liable for medical treatment to the left knee and left ankle to cure and relieve the effects of the December 9, 2016 injury; and (4) employer owes costs and expenses due to its unreasonable defense pursuant to § 287.560, in the amount of $21,337.15. The administrative law judge also determined that employer is liable for additional medical care of the left knee and ankle pursuant to § 287.140.1, and future temporary total disability benefits, should an authorized medical provider find it necessary until employee has reached maximum medical improvement or working in the open labor market.

Employer/insurer filed a timely application for review² with the Commission on November 16, 2017, alleging the administrative law judge's award was erroneous in finding: (1) the injury suffered by employee on December 9, 2016, was within the scope

¹ We note that the record and the pleadings in this matter include references to both claimant and employee. Because of the relevant definitions under § 287.020, we generally refer to the injured worker as "employee" and to anyone else pursuing a claim on behalf of the employee, as "claimant." However, in this matter the terms are used interchangeably by the parties and the administrative law judge. We use the designation of "employee" throughout this award.

² Employer/insurer filed an Amended Application for Review on November 20, 2017.

Injury No.: 16-097900

Employee: Karolyn Knierim

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and course of employment with employer; (2) employee's left knee and ankle symptoms are causally related to a work injury; (3) that employer is responsible to provide medical treatment for the left knee and ankle; and (4) that employer's defense by denying compensability of the claim was unreasonable and without basis and that attorney's fees and costs pursuant to § 287.560 should be awarded.

We affirm and adopt the administrative law judge's findings, conclusions and award relating to all issues, except as modified below.

We modify the administrative law judge's award only with respect to her findings relating to the award of fees and costs, in the amount of $21,337.15, and for employer's unreasonable defense pursuant to § 287.560. We find that issue is not yet ripe for consideration and decline to rule on the issue in this temporary award. The extent of our review of a temporary award of an administrative law judge is limited to a challenge by a party aggrieved by the finding that the applicant is liable for the payment of any compensation. 8 CSR 20-3.040 (1) - Temporary or Partial Awards.

Discussion

The administrative law judge observed employee at the hearing. She found employee credible, "based upon observation during her testimony" and found employee "credibly testified through the hearing." Award, page 7. We adopt the administrative law judge's credibility finding. Employee's slight delay in reporting her injury on the next workday does not diminish her credibility. Employee credibly described the day, time and circumstances of the accident. She reported injury to her left knee and left ankle. Employee's behavior at work that day in carrying on with her workload on an exceptionally busy day says more about her work ethic than it reflects on the manner in which she displays or hides her pain symptoms. As noted by the administrative law judge, employer provided two witnesses who did not notice employee to be in pain. We agree with the administrative law judge that "two witnesses lack of observation of the event/effects of the event" does not equate to the "event not happening." Award, page 7-8.

We find that the administrative law judge's finding that employee's work-related accident of December 9, 2016 was the prevailing cause of the injury to her left knee and ankle, is well supported. This finding was based on employee's credible testimony; the objective evidence of injury to her left knee and left ankle; and the opinions of authorized medical professionals who treated employee close in time to the accident. Therefore, it follows that employer is responsible for medical care to cure and relieve the effects of employee's injuries.

At this juncture, the matter is not fully litigated and the employee was not at maximum medical improvement at the time this record was submitted for our review. The legislature has recognized the need for a hardship procedure under § 287.510, in order to obtain a temporary award in appropriate circumstances. This necessitates that the evidence that is presented is limited to what has been developed at that stage of the case, and the treatment course pursued to date. Because the record is not yet complete, we conclude the award of fees and costs, is best reviewed at the time that the

Injury No.: 16-097900

Employee: Karolyn Knierim

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case has been fully developed. The award of fees and costs in the amount of $21,337.15, pursuant to § 287.560, is not properly resolved at this time.³ Our ruling on this issue is without prejudice to either party raising this issue in the future.

**Order**

We modify the award of the administrative law judge only as to the issue of the award of fees and costs pursuant to § 287.560.

The award and decision of Chief Administrative Law Judge Lisa Pottenger, issued October 30, 2017, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby remanded to the Division of Worker's Compensation to be kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 3/5th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

---

³ Section 287.560 provides "... if 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, prosecute or defended them..."

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Employee: Karolyn Knierim

Injury No. 16-097900

Dependents: N/A

Employer: Good Shepherd Nursing Home

Insurer: Health Care Facilities of Missouri

Additional Party: N/A

Hearing Date: September 26, 2017

Checked by: LP/lh

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: December 9, 2016
5. State location where accident occurred or occupational disease was contracted. Joplin, 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee pushed a food cart up a ramp and caused injury to her left ankle and knee while in the course and scope of employment
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 ankle and knee
14. Nature and extent of any permanent disability, not at MMI

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

1. Compensation paid to-date for temporary disability: 0

1. Value necessary medical aid paid to date by employer/insurer? $5,476.81.

1. Value necessary medical aid not furnished by employer/insurer? 0

1. Employee's average weekly wages: 491.54

1. Weekly compensation rate: 337.71/$337.71

1. Method wages computation: stipulation

1. Additional requirements awarded: The employer is liable to claimant for additional medical care of the left knee and ankle pursuant to 287.140.1 RSMO, and future TTDB should an authorized medical provider find it necessary until claimant has reached MMI or working in the open labor market.

1. The employer is liable to claimant for costs and fees due to unreasonable defense of claim pursuant to 287.560 RSMO.

Said payments to begin as of the date of this award 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% payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Pat Platter

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

Employee: Karolyn Knierim

Dependents: N/A

Employer: Good Shepherd Nursing Home

Insurer: Health Care Facilities of Missouri

Additional Party: N/A

Hearing Date: September 26, 2017

Checked by: LP/lh

On September 26, 2017, the parties appeared for hearing. The Employee, Karolyn "Susie" Knierim, appeared in person and was represented by Patrick J. Platter. The Employer, Good Shepherd Nursing Home, through its insurer, Hartford Insurance Company, was represented by Joe Ebbert.

The parties stipulated to the following:

1. That the Employer was working subject to Missouri's workers' compensation law on December 9, 2016;
2. That Good Shepherd Nursing Home was insured c/o Sedgwick Claims Management Services;
3. That Ms. Knierim was their employee;
4. That the claim was filed within the time allowed by law;
5. That jurisdiction was proper in the state of Missouri;
6. That notice was given;
7. That the average weekly wage was $491.54, which makes the temporary total disability and permanent partial disability rates 337.71; and
8. That the Employer has provided 5,476.81

The parties stipulated that the issues to be tried are as follows:

1. Whether Claimant sustained an accident that arose out of and in the course of her employment on December 9, 2016;

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

2) Whether Claimant's current symptoms of the left ankle and left knee are causally related to the December 9, 2016 accident;

3) Whether the Employer is liable to the Employee for medical treatment in order to cure and relieve the effects of the December 9, 2016 accident; and

4) Whether the Employer is liable to the Employee for costs and expenses due to an unreasonable defense pursuant to 287.560.

FINDINGS

Claimant, who is presently employed with Good Shepherd Nursing Home, has worked as a dietary supervisor since 2015. She supervises ten people in a nursing home that has a total of 70 residents. Part of her job duties is to assist with lunch time that occurs between 11:00 and 12:30. On December 9, 2016, not only were the employees working to feed the residents during lunch time, they were also preparing for their annual Christmas party and could bring a guest the night of the event.

On December 9, 2016, Claimant was performing her job duties working in the dining room serving food, drinks and cutting food for residents. She also needed to provide food for those residents not dining in the dining room. On December 9, 2016, she was pushing a food cart weighing approximately 200 pounds to an area of those not dining in the dining room. The food cart, as evidenced by Exhibit 23, is the same food cart she used to push up a ramp that is shown in Exhibit 25. The food cart is at a height where one is unable to see over the cart, and sometimes assistance is needed open doors. As Claimant approached the top of the ramp, as outlined in Exhibit 25, she felt her left ankle turn inwards and her left knee pop when her shoe caught on the metal tack area at the top of the ramp. She continued to push the cart over the tack part to the flat area. She returned back to the dining hall and continued to work. Approximately 30 minutes later as she was pushing a resident up the same ramp, she felt another pop in her left knee. It was the same sensation she felt after pushing the food cart up the ramp.

After lunch she took a 15 minute break and went into her office to take two ibuprofen and rest. She recalled at that time her left knee and ankle hurt. Regardless, she began working on the evening event for the Christmas party. There were other employees who helped assist preparing for the Christmas party, mostly in the kitchen. Claimant testified Emily Rice did not spend a lot of time in the kitchen while they were preparing for food and that she had a conversation of 15 to 20 minutes to discuss the logistics of the party in the dining area. Claimant testified she took ibuprofen that evening, kept moving despite the stiffness and pain in the left ankle and knee. She was able to stand on her left lower extremity all afternoon. Eventually she sat down for the Christmas dinner, which ended at 7:30. Claimant cleaned the area after the party then left her employment around 8:30 she drove home. Claimant testified by the time she arrived home the swelling and pain had increased in her left ankle and knee.

Her husband, Ross Knierim, also testified at hearing. Mr. Knierim testified that at the Christmas party his wife was busy prepping the party. There were lots of people and activity going on and as such they did not interact much at the party, but by the time she had arrived home that evening she was crying. He observed her left knee swollen that evening as well as the following

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

day. He did not recall whether or not the left ankle was swollen, but he did recall Claimant complaining of painfulness of the left ankle. Mr. Knierim went Christmas shopping with the children, while Claimant stayed home to rest her left ankle and knee.

Claimant testified that the left knee and ankle progressively worsened to the point on Sunday when she went to work and told her supervisor to look at her left ankle and knee. Claimant testified she didn't report it immediately because she was afraid to report it as well as just assumed the sprain would resolve. Claimant, however, realized with the progressive swelling, as evidenced from Exhibit 28, that this was not a strain/sprain so she reported it to Linda Sullivan, her supervisor, on December 11th. The alleged accident report, or Employee's Exhibit 7, notes the following:

That on December 9, 2016, Employee was pushing a food cart up a ramp and left knee made a pop sound and pain occurred instantly. Throughout the day worsened and that she felt she reinjured the left knee assisting a patient up the ramp. Pain not alleviated with rest and elevation. Exhibit 7 reveals the primary injuries were to the left knee and left ankle. The accident report was signed by Linda Sullivan and Emily Rice and dated December 12, 2016. Later on December 13, 2016, the Report of Injury was filled out by a Shery Wynn. The Report of Injury notes left knee only and the ROI was then sent to the Missouri Department of Labor and Industrial Relations as well as the claims administrator at Sedgwick.

On December 13, 2016, the Employer sent Claimant to be seen by a Barry Rineer. There she complained of left knee pain and the only thing documentation on December 13 regarded the left knee. X-ray of the left knee was performed revealing no fracture. She was then placed in a knee brace. However, when Claimant returned to see Mr. Rineer on December 23, she reported left knee and swelling of her left ankle and Mr. Rineer reported left ankle complaints were made on December 13, 2016, but he did not record them. She was then referred to physical therapy and received physical therapy between December 29 and January 5th, 2017.

On January 6, 2017, Mr. Rineer noted complaints of pain and swelling in the left knee and left ankle. An x-ray taken at that time of the left ankle showed a chip fracture inferior to the medial malleolus which may be acute or chronic as per radiology. An MRI of the left knee was ordered, as well as additional physical therapy. On January 20, 2017, the MRI of the left knee revealed a horizontal tear of the medial meniscus and a mild chronic sprain of the medial collateral ligament. Mr. Rineer, the authorized medical provider, indicated that the patient following the MRI should see an orthopaedic surgeon for the left knee. At that time, she was informed that the left ankle was not being addressed per her work place.

Indeed, Claimant's Exhibit 14 reveals that the doctor's office called the insurer indicating that an MRI should be ordered for the left ankle to determine whether or not there was a new or old fracture. At that time, the Employer only authorized treatment for the left knee stating that Claimant did not injure her left ankle on the date of injury. The rationale was the left ankle was not reported as an injury on the initial claim.

Thereafter, Claimant was referred to a Christopher Miller, an orthopaedic surgeon, to review the MRI of her left knee. On February 13, 2017, Dr. Miller, the authorized physician, noted a two-month history of medial sided left knee pain and that this began after an incident at work. Dr. Miller noted that she had a medial meniscus tear with a para meniscal cyst and that the symptoms are a result of the work injury. He stated that within a reasonable degree of medical

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

certainty that her current left knee dysfunction is a result of the alleged work injury on December 9, 2016. Dr. Miller, the authorized treating surgeon, noted that surgery would entail a partial medial meniscectomy and decompression of the meniscal cyst. Claimant has yet to receive treatment of her left knee pursuant to Dr. Christopher Miller, the authorized treating physician.

Claimant then went to her primary care physician, Dr. Hailey Wolf, who prescribed a CAM walker for left ankle and repeat x-ray. Claimant contacted her work comp representative and was informed that the Employer was denying the injury and as well treatment for the left knee. Currently, and since December 9, 2016, Claimant has experienced pain of her left knee and ankle. Her left knee catches and swells from walking, pops, and she has weakness. She is unable to squat, kneel and craw. Claimant testified that her left knee condition has worsened and it is hard to do chores. Regarding her left ankle, Claimant testified that she still wears the CAM boot and that it is painful when she takes the CAM boot off and that by the end of the day her left ankle is swollen. Claimant is able to stand for approximately one hour. Claimant has continued to work despite the left knee and left ankle restrictions.

On May 15, 2017, Claimant reported that she was walking into the dining room and was struck in the CAM boot by a resident being pushed in a wheelchair. She stated that the symptoms of her left foot increased her pain levels of her left ankle and this was reported to her supervisor. On May 16th, Claimant was seen in occupational medicine by Dr. John Lorette for complaints. An x-ray was performed of the left foot and ankle, which showed no acute abnormalities, and an MRI was ordered.

The MRI performed on May 25, 2017 revealed moderate degenerative changes involving the talonavicular joint. No acute fracture or dislocation is seen but that there were two loose bodies in the medial joint likely related to previous trauma. Ankle joint effusion with moderate synovitis and tenosynovitis around the tibialis posterior and peroneus longus tendons without tears. Dr. Lorette opined that her complaints were not related to her work injury that occurred on May 15, 2017. Instead, he felt the ankle injury was degenerative in nature and Dr. Lorette testified that the two loose bodies in the medial ankle were still there from a previous trauma. However, Dr. Lorette testified he could not tell which past event caused the two loose bodies of her left ankle. Instead, he mentioned previous trauma and could not point to any one particular incident. Dr. Lorette, on May 31, 2017, diagnosed Claimant with chronic pain of the left ankle, a history of rheumatoid arthritis, moderate degenerative changes at the left midfoot and talonavicular joint that could possibly be related to horseback riding, but that there was no evidence of a recent acute fracture or medical condition of the left ankle due to a May 15, 2017 work accident. Dr. Lorette recommended Claimant follow up with her primary care physician for further evaluation. She was released from care without limitations on May 31, 2017.

Likewise, Dr. Mitchell C. Mullins, D.O., did not think there was a new injury as a result of the May 2017 work-related incident. Instead, Dr. Mullins after reviewing all the medical records, diagnostic tests and performing a physical examination of Claimant found that the December 9, 2016 accident was the prevailing cause of the meniscus tear, as well as the objective findings of the MRI of the left ankle.

The parties request that this award address whether Claimant sustained an accident that arose out of the course and scope of her employment on December 9, 2016. I find that Claimant

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

sustained injury when she pushed the food cart up the ramp on December 9, 2016. I also find based upon observation during her testimony that she credibly testified throughout the hearing. The overwhelming weight of evidence, including medical records generated close in time along with authorized medical providers of Dr. Miller and Barry Rineer, found the December 9, 2016 ramp incident was the prevailing factor of Claimant's left ankle and knee complaints, lead me to find an accident occurred within the course and scope of her employment. I do not find the May 2017 an intervening cause of Claimant's left knee and ankle condition based on the evidence presented.

I also find that these authorized medical providers who saw Claimant close in time to the injury, coupled with Dr. Mullin's testimony and report, that Claimant's left knee and ankle condition are causally related to the December 9, 2016 accident.

I find Dr. Miller, Barry Rineer, and Dr. Mullins more persuasive than Dr. Lorette. Dr. Lorette found that the MRI of the left ankle was due to a previous trauma yet could not testify as to a single incident. Indeed, the medical evidence presented does not reflect any prior injuries to the left ankle other than a December 9, 2016 accident that occurred within the course and scope of her employment.

Additionally, I find the Employer is liable to the Employee for additional medical care pursuant to the authorized providers evaluations and opinions and the opinion of Dr. Miller regarding future treatment of the left knee. Indeed, several authorized treating providers recommended treatment for the left ankle and the left knee as a result of the work-related injury of December 9, 2016 yet those were denied by the insurer.

The next issue is whether the Employer is liable to the Employee for costs and expenses due to an unreasonable defense pursuant to 287.560 RSMO. The Employer's defense is that the Report of Injury did not mention the left ankle, yet Claimant did not fill out the Report of Injury. Claimant instead filed a Report of Accident where a left ankle and a left knee were included. All signatures of the supervisor were included on the Report of Accident that notes the left knee and left ankle.

The Employer also argues that because Claimant did not immediately report it the day of the accident that therefore it logically did not happen at work. There is no case law revealing that the Claimant must report the incident on the day of the accident. Indeed, Claimant timely reported the injury pursuant to Missouri workers' compensation law. Claimant's rationale for not immediately reporting was reasonable since she thought the left knee strain/sprain would resolve. However, the diagnostic tests of the left ankle and knee clearly reveal the medical conditions were not strains/sprains and claimant reported the incident within 48 hours.

The Employer also presented the testimony of Emily Rice and Diane Voskamp, who testified they did not observe Claimant limping, and that, therefore, the theory is no work-related accident occurred. Ms. Voskamp testified she was "I was more focusing on what I was doing and not what she was doing." (Exhibit B, p 18, lines 19 and 20.) Emily Rice testified that she never observed Claimant in discomfort or in pain and easily observed her walking and preparing for the Christmas party. Ms. Rice also testified that Claimant never reported the injury to her that day, and that she first learned of the injury on the following Monday. The employer's defense of

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

equating two witnesses lack of observation of the event/effects of the event as the event not happening is unpersuasive and contrary to the majority of evidence presented.

Despite Employer's unpersuasive defenses, I find Employer's refusal to provide left knee and ankle care pursuant to the authorized treating physician, Dr. Miller, and medical provider Barry Rineer unreasonable and the Employer owes costs and expenses due to unreasonable defense pursuant to 287.560 RSMO. Landman v. Ice Cream Specialties, INC. 107 S.W.3D 240, 252(Mo 2003) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121S.W.3d 220 (Mo. 2003). I find unreasonable that Claimant prepared/litigated a hardship hearing regarding the left knee and ankle when authorized medical providers concluded the medical conditions were work related and recommended treatment.

I order the employer/insurer liable to claimant for costs and fees as outlined in Claimant's Exhibit 27 including 25% attorney's lien of future temporary total payments. I find the expenses listed in Exhibit 27, including attorney's fees, are fair and reasonable in the amount of $21,337.15. I do not find Claimant's request to order 25% of all future medical payments appropriate as fees pursuant to 287.560 RSMO.

I find based on Claimant's current complaints and the opinions of the authorized treating providers, Barry Rineer, Dr. Miller, and the independent medical evaluation of Dr. Mullins, that Claimant has not yet achieved maximum medical improvement with regard to her left knee and left ankle. The Employer is liable to Claimant to receive additional medical care as may be reasonably required to cure and relieve Claimant from the effects of the December 9, 2016 injury pursuant to §287.140.1 RSMO. I also order the Employer must reimburse Claimant pursuant to 287.560 RSMO. for reasonable fees and expenses outlined in Exhibit 27, as well as attorney's fees on future payments of TTDB.

I certify that on 10-30-17 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By: __________________________

Made by: __________________________

Lisa Pottenger

Chief Administrative Law Judge

Division of Workers' Compensation

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