Jessica Hurd v. SSM Health Care St. Louis

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 17-037838

**Employee:** Jessica Hurd

**Employer:** SSM Health Care St. Louis

**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 read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding 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.

Employer asserts that the administrative law judge erred in basing his award, in part, on Dr. David Volarich's review of an MRI of employee's knees.

The administrative law judge's award states, in pertinent part:

> Dr. Volarich's report meets all the requirements of a complete medical report under Section 287.210.5 RSMo (2014) and is bolstered by the private treatment record of Dr. Herleth that apparently included an MRI (emphasis added). This record of evidence compels an inference that Dr. Volarich was more fully informed than Dr. Karre.¹

No party disputes employee's treatment for her work injury from her primary care physician Dr. Daniel Herleth on or about August 2, 2017, or the fact that Dr. Herleth ordered an MRI.

Employer's attorney correctly notes that Dr. Volarich's original November 2, 2017, report cited unavailability of employee's primary care physician's report. She further accurately states that Dr. Volarich's subsequent, November 21, 2017, "Addendum to IME of November 2, 2017 (Addendum)" referenced receipt of additional medical records from Dr. Herleth but did not specifically mention Dr. Volarich's review of an MRI of employee's knees.

Dr. Volarich's November 21, 2017, Addendum clearly documents Dr. Volarich's review of Dr. Herleth's treatment records and Dr. Volarich's reaffirmation of the opinions voiced in his original, November 2, 2017, report.²

1 Award, p. 4.

2 Transcript, 29.

Injury No.: 17-037838

Employee: Jessica Hurd

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Employee testified that when she sought treatment for her work injury from primary care physician Dr. Herleth on or about August 2, 2017, Dr. Herleth ordered an MRI.³ Based on this evidence, the administrative law judge reasonably surmised that Dr. Herleth's records included an MRI. We consider the administrative law judge's speculation that Dr. Herleth's records likely included an MRI extraneous to his ultimate finding, as a factual matter, that Dr. Volarich's opinion was entitled to greater weight than the opinion of employer's expert Dr. Joseph Karre.

Dr. Volarich's November 2, 2017, seven-page report documented his general physical examination including an evaluation of employee's lower extremities joints, his documentation of employee's present complaints, his diagnosis relating to employee's May 31, 2017, injury and his evaluation of related disability. His November 21, 2017, addendum, reaffirmed those findings based on review of additional records from Dr. Herleth, employee's primary care physician.

Dr. Karre's entire opinion consists of a letter dated January 29, 2018, to Jane Ruppert of MVP Law stating:

> Regarding Ms Hurd's injury, patient has been followed medically and treated with physical therapy and injury [sic] and has reached maximum medical improvement with a 0% permanent disability. The patient was able to attend 5 therapy sessions during her return to full activity. Patient was released from care on 6/23/17.⁴

As the administrative law judge notes, Dr. Karre's opinion references no reexamination of employee after her June 23, 2017, release and makes no mention of employee's primary care physician Dr. Herleth. Based on these facts, we agree with the administrative law judge's assignment of greater weight to Dr. Volarich's opinion than to that of Dr. Karre.

Employer/insurer further argues that the administrative law judge erred by awarding permanent partial disability because Dr. Volarich's report "was nearly devoid of any objective findings of disability."⁵ In support of this contention, employer/insurer cites, § 287.190.6(2) which states, in pertinent part "In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings."

Case law construing § 287.190.6(2) suggests that the courts do not interpret § 287.190.6(2) as usurping the Commission's authority as fact finder. See *Ballard v. Woods Supermarkets*, 422 S.W. 3d 473 (Mo. App. 2014); *Johnson v. Ind. Western Express, Inc.*, 281 S.W.3d 885 (Mo. App. 2009); and *Hall v. Mo. State Treasurer*, 500 S.W. 3d 282 (Mo. App. 2016). We are not persuaded that § 287.190.6(2) requires the Commission, as a matter of law, to reverse the administrative law judge's award in this case.

³ Id. 5-6.

⁴ Id. 33.

⁵ Employer/Insurer's Application for Review, p. 2.

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The above clarification of the administrative law judge's award does not detract from his correct analysis of the evidence in the record or his ultimate legal conclusions.

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

The award and decision of Administrative Law Judge Joseph E. Denigan, dated January 9, 2019, 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 5th day of September 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Secretary

Improve: Jessica Hurd

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision affirming the administrative law judge's award.

I concur with the majority's findings relating to the accuracy of statements included in the administrative law judge's award. I further agree with the majority's opinion insofar as it upholds the discretion of administrative law judges and this Commission to evaluate the nature and extent of an employee's compensable disability.

That said, considering the evidence including the employee's testimony and expert opinions in this case, I consider an award of 8% permanent partial disability of employee's right and left knees more appropriate than the majority's award of 15% permanent partial disability of each knee.

I would therefore modify the administrative law judge's award to adjust employee's permanent partial disability to 8% of her right and left lower extremities, rated at the knee.

In all other respects, I concur with the majority's supplemental opinion

Reid K. Forrester, Member

Employee: Jessica K. Hurd

Dependents: N/A

Employer: SSM Health Care St. Louis

Additional Party: N/A

Insurer: Self-Insured

Hearing Date: October 9, 2018

Injury No.: 17-037838

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

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: May 31, 2017

1. State location where accident occurred or occupational disease was contracted: St. Louis County

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

1. Did 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 time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was monitoring computer equipment and tripped and fell onto floor while retrieving data printouts.

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: both knees

1. Nature and extent of any permanent disability: 15% PPD of each knee

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? $2,250.13

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? Unknown
2. Employee's average weekly wages: 448.08
3. Weekly compensation rate: 298.72/$298.72
4. Method wages computation: Stipulation.

COMPENSATION PAYABLE

1. Amount of compensation payable:

48 weeks of permanent partial disability from Employer $14,338.56

1. Second Injury Fund liability: N/A

TOTAL: $14,338.56

1. Future requirements awarded: None

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:

James J. Sievers

Revised Form 31 (3/97)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

injury Number: 17-037838

Employee: Jessica K. Hurd

Dependents: N/A

Employer: SSM Health Care St. Louis

Additional Party: N/A

Insurer: Self-Insured

Hearing Date: October 9, 2018

injury No.: 17-037838

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a trip and fall resulting in bilateral knee injuries to Claimant with the reported accident date of May 31, 2017. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund is not a party to this claim. Both parties are represented by counsel. The single issue for trial is the nature and extent of permanent partial disability.

1. Claimant, age 32, worked as a computer technologist monitoring bedside units for patient cardiology.

1. On the reported accident date, Claimant fell striking her right knee, then left knee, on the floor while retrieving data strips from a printer.

1. Claimant treated conservatively at Concentra, including physical therapy. She was diagnosed with bilateral knee "contusions." She was not placed off work but x-rays were taken and broad ambulation restrictions, including sitting at least 50 percent of the time, were imposed. Claimant reported short-term relief from the physical therapy.

1. X-rays were "negative" (no reading memorialized) and no further radiological studies were provided despite persistent symptoms. Claimant was complaining of difficulty on stairs and pain from standing for extended periods.

1. Claimant was released by the Concentra physician, Dr. Joseph Karre, on June 23, 2017 after three weeks of treatment. Notes of that date contain no physical examination notes of the knees. Claimant was not referred to an orthopedist. Claimant testified she did not feel better and elected to treat privately through her primary care provider, Dr. Herleth, and underwent an MRI. She continues to treat conservatively.

1. Claimant denied prior injury to either knee and prior use of anti-inflammatory drugs for knee symptoms.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 17-037838

1. Claimant offered the narrative report of Dr. David Volarich as Exhibit 1 dated November 2, 2017. Dr. Volarich reviewed the medical record and examined Claimant. Notes on physical examination included inability to squat more than half way, all negative tests for meniscus or ligament tears, 1-2/4 patellofemoral crepitus and mistracking and somewhat weak hamstrings bilaterally. Dr. Volarich diagnosed bilateral patellofemoral syndrome. He assigned a 22.5 percent PPD of the right knee and 20 percent PPD of the left knee.

1. Dr. Volarich reviewed additional medical records of Dr. Herleth and produced a supplemental report dated November 21, 2017 stating his opinions remained unchanged from his initial examination.

1. Dr. Karre issued a rating letter dated January 29, 2018 indicating no permanent partial disability.

RULINGS OF LAW

Nature and Extent of PPD

Claimant's testimony was straightforward and uncontradicted on cross-examination or by the treatment record. Her bilateral knee injuries are problematic as ambulation injuries and use of stairs or extended standing are easily understood as provoking recurrent symptoms on a permanent basis. While Claimant had no lost time from work, such a status is not dispositive of Claimant's disabling symptoms since she works a sedentary position. Such jobs permit avoidance of painful movement and therapeutic rest during the healing period.

Separately, it may be observed in hindsight that Employer under-treated Claimant given the persistent complaints and, with the standing diagnosis of patellofemoral syndrome, perhaps beyond the expertise of an urgent care physician.

The parties each offered narrative PPD opinions without objection. Claimant offered the PPD rating opinions of Dr. Volarich which were based on the Concentra treatment records and subsequent treatment, including MRI, by Dr. Herleth. Employer's Dr. Karre offered a zero PPD rating but he apparently did not have opportunity to re-examine Claimant and the brief letter also makes no mention of Dr. Herleth.

Dr. Volarich's report meets all the requirements of a complete medical report under Section 287.210.5 RSMo (2014) and is bolstered by the private treatment record of Dr. Herleth that apparently included an MRI. This record of evidence compels an inference that Dr. Volarich was more fully informed than Dr. Karre. Dr. Volarich's ratings are somewhat high and not currently supported by sufficient clinical findings to justify such levels of PPD. However, restrictions of adhering to normal tolerances and precautions are intended to limit aggravation of the syndrome. Nevertheless, his evaluation supports a finding of PPD in the 15 percent range for each knee. Claimant apparently controls her symptoms with over-the-counter anti-inflammatory medication which she uses on a near-daily basis. Claimant cannot stand longer than one hour.

WV-32-R1 (6-01)

Page 4

Accordingly, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have sustained 15 percent PPD of the right knee and 15 percent PPD of the left knee as a result of the reported injury.

I certify that on 1-9-19

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.


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