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 "severely arthritic knee." In her opinion, the course of treatment would be a total knee replacement, but the need for same was due to the degenerative changes present in the right knee and not the incident where he twisted his right knee at work. (Strong p. 8) She discussed in length how degenerative changes occurred. She felt the twisting incident at work caused a contusion. (Strong p. 9) Further, Dr. Strong testified that Employee would have needed a knee replacement at some point in time, irrespective of the twisting incident at work. (Strong p. 25)

Dr. Strong during cross-examination had answered a number of hypothetical questions by Claimant's counsel regarding possibilities, whether if believed or present, would have changed her opinion regarding causal connection. Dr. Strong was asked about the MRI finding of the absence of a graft placed in a previous ACL surgery. Dr. Strong was asked if the MRI findings post-accident of alleged April of 2018 indicated the graft was no longer present would have been caused

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Reginald Jones

Injury No. 13-031100

by twisting of the knee as alleged in this occurrence to which she responded it could. (Claimant's Exhibit A, p 13.) Also, Dr. Strong answered in the affirmative a finding suspicious of meniscal tear could have been caused with a twisting injury to which she also agreed was possible. (Employer and Insurer Exhibit A, p 15.) Also on cross-examination, the doctor was asked about the presence or absence of a posterior horn lateral tear could have happened with a twisting mechanism of injury to which she replied it could. (Employer and Insurer Exhibit A, p 17.) Dr. Strong was not of the opinion that postsurgical ACL changes, meniscal tears or posterior horn tears while possible with twisting injuries were caused by the accident alleged in April of 2013. Likewise, Dr. Strong could not agree the popping or clicking of the knee was present and noted Claimant had voiced no such complaints in her exam. Dr. Strong confirmed this finding by the application of the McMurray test which would replicate popping or clicking of the knee, which she indicated were absent when performing said test.

While the Claimant asserts Dr. Strong's cross-examination testimony admitting the possibility of physical changes with a twisting mechanism is possible, the doctor did not opine that the alleged incidents of April 30, 2013, were the cause of the alleged conditions, which the Claimant has presented, nor the reason for the Claimant's need for treatment.

RULINGS OF LAW

Section 287.020.2 R.S.Mo. provides:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.

Section 287.020.3 R.S.Mo. provides that "[a]n injury by accident is only compensable if the accident was the prevailing factor in causing both the resulting medical condition and disability." *Malam v. State Dept. of Corrections*, 492 S.W. 926, 929 (Mo. 2016). Prevailing factor is defined to be "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

Employee did establish an event at work, as he had an unexpected traumatic event or unusual strain on April 30, 2013. However, Employee did not prove that he sustained an injury due to the alleged accident of April 30, 2013. Rather, the greater weight of the evidence is that he had long standing degenerative and arthritic changes in his right knee which was aggravated.

The Supreme Court addressed this situation in the case of *Malam v. State Dept. of Corrections*, 492 S.W. 926 (Mo. 2016). Malam suffered a hypertensive crisis and the issue for the Court's determination was whether his takedown of an uncooperative inmate was the prevailing factor in his injury. The takedown itself was an accident. As to injury, the Supreme Court noted that only by relying on expert witnesses could an accurate decision be reached, as in that case, causation wasn't within common knowledge or experience.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Reginald Jones

Injury No. 13-031100

In this case, the more credible medical evidence is found to be orthopedic surgeons, Dr. Samuelson and Dr. Strong. Both physicians actively treat orthopedic injuries. This contrasts with Dr. Stuckmeyer, who the Court knows by virtue of his numerous reports offered before the Division on behalf of employees that he no longer treats patients and hasn't for several years. Dr. Stuckmeyer was relying on his singular exam of Employee on March 28, 2014. Unlike Dr. Samuelson, he had no treatment relationship by which to ascertain the full extent of the Employee's clinical picture. Dr. Stuckmeyer opined a need for treatment based on pain, swelling and instability. Neither Dr. Samuelson nor Dr. Strong found there to be any instability upon their examinations. Dr. Strong was not able to appreciate any popping or clicking upon her exam of the Employee. (Strong p. 30) For this reason then, Employee has failed in his burden of proof to establish by persuasive medical evidence that his injury is work related. See, for instance, Cole v. Alan Wire Co., 521 S.W.3d 308 (Mo.App. 2017).

The Southern District Court of Appeals has also analyzed these issues. In Armstrong v. Tetra Park, Inc., 391 S.W.3d 466, 468 (Mo.App. 2012), the employee alleged a work injury to his right shoulder that occurred as he was reaching overhead for a piece of cardboard. Diagnostics revealed no acute tears but tendinosis, degenerative arthritis and some fraying of the shoulder. Id. at 468-69. The Court of Appeals held that the employee failed to prove a compensable injury by accident as the evidence showed that the employee's work event was not the prevailing factor in causing his resulting medical condition and disability, but rather his pre-existing degeneration was to blame. This is similar to the present case.

Finally, the progenitor of this line of inquiry is the Tillotson case. Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo.App. 2011). In that case, the employee tore her lateral meniscus while working. The authorized physician determined that due to pre-existing degenerative arthritis, the employee would not obtain relief through an arthroscopy, but rather should have a total knee replacement. The court concluded that the employee had sustained a compensable workers' compensation injury to her right knee and that she'd proven that the need for the treatment and medication flowed from the work injury. The difference being Tillotson had a torn meniscus whereas here, the Employee was not found to have sustained more than an aggravation of his pre-existing condition by Drs. Strong and Samuelson.

It must be pointed out that the Claimant left the employ of the alleged employer in this case in early 2014. In the interim, the Claimant has had at least two different jobs with health insurance and is a veteran entitled to medical care through the veteran's administration. The Claimant has not sought treatment since leaving the Employer ATK and has been seen only by examining and rating physicians since that time. The Claimant testified to ongoing unrelenting pain substantially affecting his ability to work and engage in an active lifestyle. The Court, in follow up to this line of questioning by the Claimant, asked as to why the Claimant has not sought active treatment since 2014 except through this contested proceeding when he could avail himself of health insurance through various employers or through the Veteran's Administration to which the Claimant responded that it was in his mind the responsibility of ATK and not to be shifted to another source of responsibility for his treatment. This response seems to weaken the argument of constant and unrelenting pain to the extent to which the Claimant has testified without seeking equitable relief through easily available sources.

I find the incident of April 30, 2013, when Employee apparently stepped in a hole, was admitted. However, the Court does not find that the alleged accident was the prevailing factor in the Employee's current physical condition. So Employee did not sustain "personal injury." Therefore, no medical care is ordered of the Employer based on this event and the condition, aggravation of pre-existing, underlying degeneration, does not rise to the level of permanent disability.

I certify that on $\qquad 2-1-19$

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.


Made by: $\qquad

\qquad$ Mark Siedlik

Chief Administrative Law Judge

Division of Workers' Compensation