Reggie Jones v. Orbital ATK (f/k/a ATK Alliant Techsystems Inc.)

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-031100

**Employee:** Reginald Jones

**Employer:** Orbital ATK (f/k/a ATK Alliant Techsystems Inc.)

**Insurer:** Indemnity Insurance Co. of North America

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 1, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Mark Siedlik, issued February 1, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 12th day of September 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 13-031100

Employee: Reginald Jones

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge denied this claim on the issue of medical causation. He found that although employee had an unexpected traumatic event or unusual strain, the injury was merely an aggravation of a preexisting condition. By so doing, the administrative law judge summarily dismissed the possibility that an "aggravation" may be the actual compensable injury.

Missouri court decisions have recognized that an employee may recover compensation for aggravation of a preexisting, degenerative condition where the accident is the prevailing factor causing such aggravation. See, e.g., *Maness v. City of De Soto*, 421 S.W.3d 532, 540 (Mo. App. 2014); *Randolph County v. Moore-Ransdell*, 446 S.W.3d 699, 710 (Mo. App. 2014). As the Supreme Court of Missouri has made clear, this is the case even where the credible evidence suggests the injury might not have occurred absent the preexisting condition. *Malam v. Dep't of Corr.*, 492 S.W.3d 926 (Mo. App. 2016).

Here, employee twisted his knee while in the course and scope of his work when he stepped in a pothole. He sustained an injury consisting of the aggravation of a preexisting, degenerative condition. I find Dr. Stuckmeyer's opinion persuasive that the accident was the prevailing factor in causing both the resulting medical condition (aggravation) and employee's disability.

I would reverse the administrative law judge's award denying compensation, award temporary total disability benefits, and remand this matter for further medical treatment needed to get employee to maximum medical improvement. Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Reginald Jones

Injury No. 13-031100

Employee: Reginald Jones

Injury No.: 13-031100

Dependents: N/A

Employer: Orbital ATK (f/k/a ATK Alliant Techsystems Inc.)

Insurer: Indemnity Insurance Co. of North America

Additional Party: N/A

Hearing Date: October 23, 2018

Proposed Awards Submitted: November 21, 2018

Checked by: MSS/lh

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

1. Date of accident or onset of occupational disease: Alleged April 30, 2013

1. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri

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? No

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 walking in the plant when he stepped into a hole in the floor.

1. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Reginald Jones

Injury No. 13-031100

1. Part(s) of body injured by accident or occupational disease: Alleged aggravation of the right knee

1. Nature and extent of any permanent disability: None

1. Compensation paid to date for temporary disability: $0.00

1. Value necessary medical aid paid to date by employer/insurer? $2,155.54

1. Value necessary medical aid not furnished by employer/insurer? 0.00

1. Employee's average weekly wages: 769.40

1. Weekly compensation rate: TTD $512.94/PPD $433.58

1. Method wages computation: Agreement

**COMPENSATION PAYABLE**

1. Amount of compensation payable: None

1. Second Injury Fund liability: N/A

1. Future requirements awarded: None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Reginald Jones

Injury No. 13-031100

**FINDINGS OF FACT and RULINGS OF LAW:**

**Dependents:** N/A

**Employer:** Orbital ATK (f/k/a ATK Alliant Techsystems Inc.)

**Insurer:** Indemnity Insurance Co. of North America

**Additional Party:** N/A

**Hearing Date:** October 23, 2018

**Proposed Awards Submitted:** November 21, 2018

Checked by: MSS/lh

This case came before Chief Administrative Law Judge Mark Siedlik in Kansas City, Missouri, on October 23, 2018 for final hearing. Previously this matter was decided on a temporary award basis (November 8, 2016 hardship hearing). The Employee, Reginald Jones, was represented by his counsel, Eric Roby. The Employer/Insurer was represented by counsel, Michelle Daum Haskins. The Employee alleges an injury by accident April 30, 2013, while in the course and scope of his employment in Independence, Missouri. The Employer is insured by Indemnity Insurance Co. of North America. The formal Claim was timely filed. There have been medical benefits paid in the amount of $2,155.54. No temporary total disability benefits were paid.

**STIPULATIONS**

The parties stipulated to the following:

1. That both the Employer and Employee were operating under and subject to the provisions of the Missouri workers' compensation law on April 30, 2013;
2. That Employer's liability was fully insured by Indemnity Insurance Co. of North America;
3. That Reginald Jones was its Employee;
4. That Employee was working subject to the law in Independence, Jackson County, Missouri;
5. That Employee notified the employer of the alleged accident as required by law;
6. That Employee's Claim was filed within the time allowed by law;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Reginald Jones

Injury No. 13-031100

1. That Employee's average weekly wage was 769.40 per week, which makes the temporary total disability rate 512.94 and the permanent total disability rate 433.58;

1. That Employer has paid medical expenses in the amount of 2,155.54; no temporary total disability benefits have been paid.

EXHIBITS

The evidence at trial consisted of the testimony of the Employee in person as well as the following exhibits offered by the Employee:

1. Medical records
2. Rating report by Dr. James Stuckmeyer
3. MRI report of 5/17/13
4. Kansas City Bone & Joint record of 5/22/13
5. Kansas City Bone & Joint record of 5/30/13

The Employer offered the following exhibits:

A. Deposition of Dr. Alexandra Strong

B. Medical records from Kansas City Bone & Joint

All exhibits were offered and accepted into evidence and were considered herein.

ISSUES

1. Whether the Employee sustained an accident on April 30, 2013, that arose out of and was in the course of his employment;
2. Whether the incident on April 30, 2013, was the prevailing factor in causing the alleged injury to Employee's right knee;
3. Whether the Employee is entitled to additional medical care in order to cure and relieve the effects of his injuries;
4. Whether the Employee is entitled to any permanent partial disability.

FINDINGS OF FACT

Employee worked for Employer as a tool setter. He testified that this entailed setting up machines, performing quality assurance and generally assisting with production. On April 30, 2013, Employee was at work and was walking around the end of the line when he snagged his foot in a hole in the plant floor. At hearing, Employee was vague in describing the hole or defect. He could not describe the depth of the hole, for instance. Nevertheless, he testified that in catching his foot, he twisted his right knee, which was "instantaneously painful and swollen."

MNKOI 0000241466

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Reginald Jones

Injury No. 13-031100

Employee gave notice of his accident to the Employer and medical treatment was provided. A right knee MRI was performed on May 17, 2013. The radiologist interpreted the results as follows: postsurgical changes from prior ACL repair; an abnormal medial meniscus, which may be related to postsurgical changes or a tear; complex posterior horn lateral meniscal tear; and degenerative and arthritic changes. Employee was authorized to treat with orthopedic surgeon Dr. Samuelson of Kansas City Bone & Joint. On May 22, 2013, Dr. Samuelson's report indicates that his assessment or diagnosis was right knee degenerative joint disease, ACL deficient right knee and history of ACL reconstruction.

By way of medical history, in 1999 the Employee underwent a surgical reconstruction of this same right knee. Dr. Samuelson opined Employee had now "aggravated the significant changes present in his knee. He also has laxity in his knee that may have resulted from an ACL tear at the time of his injury." Based on his recommendations, Employee underwent local steroid injection and physical therapy. Ultimately on July 10, 2013 Dr. Samuelson wrote: "Due to his significant DJD in the knee, which includes lateral translation and anterior subluxation of the tibia, both of which are indicative of chronic ACL deficiency..." nothing further was being offered by way of authorized care. "It was felt that the degenerative meniscus pathology was also the result of prior trauma, surgery, and degenerative changes in the knee."

Employee's counsel sent him to Dr. James Stuckmeyer for an independent evaluation on March 30, 2014. At that time, Employee was complaining of significant right knee pain and difficulty with prolonged postures and movements. Dr. Stuckmeyer felt that Employee's physical exam was "suspicious" for medial meniscus tear. He recommended consideration of arthroscopy for the right knee, but if no further treatment was provided, then he assessed Employee as having 25% permanent partial disability.

Employer volunteered a second opinion with orthopedic surgeon Dr. Alexandra Strong of Drisko, Fee & Parkins on Sept. 22, 2015. By that time, Employee no longer worked for Employer but was instead employed as a diesel mechanic (Employee ceased working for ATK in early 2014). Dr. Strong reviewed the medical records, including the MRI report. She found that Employee had normal gait and alignment, mild effusion, no atrophy. She found the range of motion to be normal. She also found normal motor function and no popping or clicking. (Strong deposition p. 30) It was Dr. Strong's opinion that Employee had a "se