Sondra Denomy v. Francis Howell R-III School District

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-012655

**Employee:** Sondra Denomy

**Employer:** Francis Howell R-III School District

**Insurer:** Missouri United School Insurance Council

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 April 3, 2019. The award and decision of Administrative Law Judge Margaret D. Landolt, issued April 3, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms 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 **24th** day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Improved Health

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Injury No.: 13-012655

Employee: Sondra Denomy

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conclusion that "claimant consistently complained of hip pain after the injury"¹ is a fallacy. There were no complaints to Mercy of right hip pain nor to Dr. Krause. On May 10, 2013, employee told Dr. Volarich she noted a shooting pain in her right hip. However, Dr. Volarich noted full motion and no groin pain over the hip joint. The administrative law judge cited a December 19, 2013, notation where employee told Dr. Peter she had pain in her low back shooting down to her groin area. These are one, perhaps two, arguable complaints to employee's hip out of multiple visits to others doctors. The administrative law judges' findings that employee consistently complained of hip pain after the injury are simply not supported by the evidence in the record. The administrative law judge's conclusion that possibly two complaints to the right hip equates to a diagnosis of labral tear is unrealistic and inaccurate.

The administrative law judge erred in rejecting Dr. Frisella's opinion that the labral tear in employee's right hip was not causally related to employee's work injury. Dr. Frisella's opinion did not lack a factual foundation because Dr. Frisella had Dr. Volarich's May 10, 2013 independent medical examination report with employee's history and complaints. Dr. Frisella noted that this report showed a normal right hip exam and that Dr. Volarich gave no diagnosis to employee's right hip. Dr. Frisella opined that a labral tear would have manifested itself at this time as loss of motion or pain in the hip. A note from Dr. Quigley's office dated September 10, 2013, documented "Physical Exam: hip is normal."² The administrative law judge ignored eight reasons Dr. Frisella gave why employee's March 1, 2013, injury was not the prevailing factor causing any diagnosis in employee's right hip.

Dr. Frisella accurately advised that employee had Cam impingement, which is abnormal touching of the bony structures of the hip, that this abnormal touching is the cause of employee's labral tear and not the result of an acute injury.

The administrative law judge erred in rejecting the findings and opinions of Dr. Jessee Crane, Dr. Krause, Dr. Volarich, Dr. Peter, Dr. Quigley, and Dr. Frisella. Her decision is contrary to the overwhelming weight of the competent and substantial evidence in that she finds the opinion of Dr. Dwight Woiteshek, who examined the employee over three years after the work accident, more persuasive than the treating physicians who examined the employee at or near the time of the injury.

Past Medical Bills

Employee failed to sustain her burden of proof with regard to medical bills for treatment to her right knee and hip.

Employer provided medical treatment to employee's right ankle, the only condition related to her March 1, 2013, injury. Because employee failed to prove that her right knee and right hip conditions were medically causally related to the injury, medical bills that flowed from those conditions are not compensable.

1 Award, p. 10.

2 Transcript, 177.

Enployee: Sondra Denomy

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Injury No.: 13-012655

The administrative law judge conceded that there was no evidence presented at hearing that employee made a specific demand for additional medical treatment. On her own, the administrative law judge took administrative notice of the Division of Workers' Compensation files. This is yet another example of how the administrative law judge ignored the evidence and reached outside the hearing record to find her own evidence.

**Past Temporary Total Disability Benefits**

Employee is not entitled to past temporary total benefits because employee was off work for surgeries to her right knee and right hip because, as explained *supra*, those conditions were not related to employee's March 1, 2013 injury.

**Nature and Extent of Permanent Partial Disability**

The administrative law judge erred in awarding employee permanent partial disability of 20% of the right hip, 25% of the right knee, and 10% of the right ankle.

Dr. Krause, employee's treating physician, found zero percent permanent partial disability from the March 1, 2013, injury. Dr. Frisella, employer's examining physician, found zero percent permanent partial disability to employee's right hip. Dr. Woiteshek, employee's examining physician, found 35% permanent partial disability to the right hip, 35% permanent partial disability to employee right knee, and 20% permanent partial disability to employee's right ankle.

The employee returned to work and continues to work without any restrictions attributable to the March 1, 2013 injury. She testified at hearing that she had no problems related to her right ankle, right knee, or right hip and that her only complaint involved the right thigh. No evidence supports the administrative law judge's conclusion that employee experiences problems with lifting, twisting, kneeling, squatting, climbing, reaching, bending and carrying.

**Conclusion**

There has been a serious miscarriage of justice against the employer and insurer in this case. The administrative law judge's award should be reversed in its entirety. I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

*Award, 11.*

Employee: Sondra Denomy

Injury No.: 13-012655

Dependents: N/A

Employer: Francis Howell R-III School District

Additional Party: N/A

Insurer: Missouri United School Insurance Council

Hearing Date: January 22, 2019

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: March 1, 2013
5. State location where accident occurred or occupational disease was contracted: St. Charles County, 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 was holding a door open when a parallel bar fell on her right lower extremity
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: right ankle, right knee, and right hip
14. Nature and extent of any permanent disability: 10 % PPD of the right ankle, 25 % PPD of the right knee, and 20 % PPD of her right hip
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 3,459.38

Said payments to begin 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: Mr. Steve Trefts

Employee: Sondra Denomy

Dependents: N/A

Employer: Francis Howell R-III School District

Additional Party: N/A

Insurer: Missouri United School Insurance Council

Injury No.: 13-012655

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on January 22, 2019, at the Division of Workers' Compensation in St. Charles, Missouri. Sondra Denomy ("Claimant") was represented by Mr. Steve Trefts. Francis Howell R-III School District ("Employer") and its insurer Missouri United School Insurance Council were represented by Ms. Betsy Levitt. Mr. Trefts requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about March 1, 2013, Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in St. Charles County, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant was earning an average weekly wage of $\ 503.44 resulting in a rate of $\ 335.63 for Temporary Total Disability ("TTD") benefits and Permanent Partial Disability ("PPD") benefits; Employer paid no TTD benefits; and $\ 3,459.38 in medical benefits.

The issues to be resolved are medical causation with respect to Claimant's right knee, right hip, and low back; liability of Employer for past medical benefits of $\ 73,354.11; liability of Employer for past TTD benefits from September 9, 2013 to November 24, 2013, and September 30,2015 to January 15,2016 ; and what is the nature and extent of PPD sustained by Claimant with respect to her ankle, knee, low back, and right hip.

Only evidence necessary to support this award will be summarized. The exhibits are in the same condition as they were when received. No markings or highlights were placed on them by the court.

On its own, the Court takes administrative notice of the files of the Division of Workers' Compensation in Injury No. 13-012655.

Claimant is a 63-year-old woman who is employed by Employer as a custodian. She was hired in 2012. Claimant has a small stature. She is four-foot eight-inches and 115 pounds. As a custodian, Claimant's job is to clean rooms for four hours in the morning, and four hours in the evening.

On March 1, 2013, Claimant was working in the cafeteria, and was holding the left door of a two-door entry with her left hand so movers could move a set of heavy parallel bars through

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the doorway. Her left foot was positioned outside the building, and her right foot was around the corner, inside the building. She estimated the set of parallel bars weighed 300 pounds. The parallel bars were on a dolly, and as the movers rolled past her, one of the parallel bars rolled off the dolly, hit her on the back of her right calf about an inch below her knee, continued to slide down her leg, and landed on the back of her tennis shoe. Claimant's body was turned to the right, and as she fell into the door, she twisted her upper body, low back, right knee, and right hip. Claimant felt immediate pain from her toes up to her thigh.

Claimant went immediately to Mercy Corporate Health. The records indicate: "Pt reports at approximately 2 pm today she was holding the door open to the cafeteria while coworkers moved gymnastics equipment through the doorway. Equipment fell and the metal base struck pts right ankle near the Achilles tendon area. Pt unable to bear weight on right foot and cannot ambulate on right leg. Pt states pain radiates to right calf and knee. Very tender to touch anc [sic] c/o numbness in right foot, with radiation to posterior area to right lower leg." Claimant reported her pain at ten out of ten. Examination of the right knee revealed normal range of motion and stability. Movement of the right knee did not cause pain. There was bruising and swelling over the dorsum of Claimant's right foot. Movement of the ankle caused pain. X-rays of Claimant's right lower extremity were negative. Dr. Crane diagnosed right foot contusion and right ankle sprain. He indicated the problem was work related. He placed Claimant on restricted duty and prescribed crutches as needed for up to one week, ice, and medications.

Claimant returned to Mercy Corporate Health on March 4, 2013. Her pain was still at ten of ten. Claimant's primary problem was bruising and constant, severe pain located in the right foot made worse by weight bearing. It was accompanied by numbness in her toes. Upon examination, Dr. Crane noted bruising and swelling over the dorsum of the foot. Range of motion of the ankle was limited by pain. He continued her work restrictions, prescribed medication, and referred Claimant to an orthopedic specialist.

Claimant first saw Dr. John Krause, an orthopedic surgeon specializing in the foot and ankle on March 6, 2013. Claimant was not asked to complete a pain diagram at her initial visit. Dr. Krause diagnosed right leg contusion and right forefoot sprain, recommended a cam walker, and placed Claimant on work restrictions. On March 15, 2013, Dr. Krause continued Claimant's work restrictions and prescribed physical therapy. Claimant underwent an MRI of the right ankle on March 15 that showed an extensor halluces longus tenosynovitis/tendonitis without tendon tear. Claimant's pain diagram completed on March 15, showed she was complaining of pain of eight on a scale of ten for her right thigh, knee, calf, and ankle/foot. On March 29, 2013, on the pain diagram, Claimant continued to complain of pain in the right thigh, knee, calf, and ankle/foot. She indicated her pain was at a five out of ten. Dr. Krause diagnosed right ankle sprain, resolving, and continued her work restrictions. On April 9, 2013, Claimant indicated on her pain chart that her right thigh, knee, calf, and ankle/foot were areas that were bothering her or limiting her function. Dr. Krause indicated Claimant's therapist said she was making progress and giving good effort. Upon examination, Claimant had excellent ankle and hind foot motion. There was no significant tissue swelling. She had some magnified tenderness diffusely around her leg and up by her knee. Dr. Krause diagnosed right ankle sprain with nonanatomic findings. He recommended a functional capacity evaluation.

On April 10, 2013, Claimant underwent a functional capacity evaluation. The therapist noted: "While the worker appears to have some true dysfunction, the presence of self-limiting

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behavior due to high subjective pain reports have made it difficult for this therapist to accurately identify her current abilities and limitations at this time. The functional abilities displayed on this date are more likely a reflection of the effort the worker was willing to provide, as opposed to her true work capacity. Those behaviors have likely contributed to current levels of deconditioning and current functional status." The therapist found Claimant displayed the ability to function within the light work demand level, which did not meet all of the worker reported job demands for the position she held at the time of injury.

On April 15, 2013, after reviewing the functional capacity examination, Dr. Krause stated: "Based on my exam of the patient, her MRI, and her functional capacity evaluation, I see no reason the patient cannot be working full duty without restrictions. She is at maximum medical improvement." On May 14, 2013, Dr. Krause stated Claimant sustained 0% permanent disability as a result of her right ankle sprain that resolved uneventfully. He did not anticipate she would need any future treatment or medications regarding this injury.

Dr. Volarich saw Claimant on May 10, 2013, prepared a report, and testified on behalf of Claimant. Claimant gave a history of her March 1, 2013 injury. Dr. Volarich stated: "On 3/1/13 Ms. DeNomy [sic] was holding a [sic] the left door of a two-door entry way with her left lower extremity so movers could move a set of heavy parallel bars through the doorway. She explained her left foot was positioned outside the building, and her right foot was positioned around the corner inside the building. She estimated the set of parallel bars weighed about 300 pounds, as the movers rolled it past her on a dolly, one of the parallel bars rolled off the dolly and struck the posterolateral aspect of her right calf which caused her to twist her knee and right hip at an awkward angle. The bar then slid down her calf to her posterolateral heel." Among Claimant's complaints she reported to Dr. Volarich was pain in her right knee along with loss of motion and popping that extended to her right thigh, and associated cramping in her thigh and calf, and a shooting pain in her right hip. Dr. Volarich's examination of Claimant's right knee revealed minor discomfort when palpating the medial tibial plateau region. The Drawer, Lachman's, pivot shift, and McMurray's test were all negative, as was the patellar grind test. There was no mistracking, swelling, or hyperemia. When evaluating the lower extremities neurologically, Dr. Volarich found Claimant was able to straight leg raise to 90 degrees on the left but only 70 degrees on the right. She complained of some back discomfort on the right side. The deep tendon reflexes were 3/4 and symmetric, but when tapping the right Achilles tendon she complained of severe pain. Sensory examination showed some minor patchy pinprick loss in the right lower extremity, including the posterior and medial portion of the calf, and slightly on the lateral surface of the right foot.

As a result of the injury of March 1, 2013, Dr. Volarich diagnosed severe right calf contusion with residual moderately severe myofascial pain; mild right ankle Achilles tendonitis; mild right forefoot strain; and right sacroiliac joint pain secondary to abnormal weight bearing. Dr. Volarich found the accident of March 1, 2013, was the prevailing or primary factor causing the injuries he diagnosed; and was also the prevailing factor causing her symptoms, need for treatment, and resulting disabilities. He found based on the treatment provided up to May 10, 2013, Claimant was not at maximum medical improvement. He did not recommend surgery, but recommended Claimant be evaluated at a pain clinic to treat her myofascial pain in the right lower extremity. He thought nerve root blocks and similar treatments were indicated. He also thought a TENS unit might be of benefit. At the time of his evaluation, Dr. Volarich reviewed an MRI of Claimant's right ankle, and X-rays of Claimant's right foot and ankle.

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Assuming no additional care was provided for Claimant's pain syndrome, Dr. Volarich found PPD of 35% of the right lower extremity rated at the knee due to her severe calf contusion and moderately severe myofascial pain. The rating accounted for difficulties with weight bearing and some pain residuals from her mild Achilles tendonitis and forefoot strain. He also found she had 5% PPD of the body as a whole due to right sacroiliac pain secondary to abnormal weight bearing.

Claimant testified while she was treating with Dr. Krause she complained about her knee, thigh, and calf, but he didn't treat her for that. After she was released from treatment by Dr. Krause, Claimant saw a nurse practitioner at the office of Dr. Peter, her primary care physician, on June 14, 2013. Under history of present injury, Claimant presented with pain to the right posterior knee with radiating stabbing pain to the right medial ankle and posterior ankle. She also complained of right lateral shin pain and occasional swelling after periods of standing. Her right knee examination was abnormal with lateral rotation. She had a negative Drawer test, internal rotation, flexion, and extension. The assessment was right knee pain and tingling of the right lower extremity - stabbing pain. She was prescribed gabapentin. Claimant saw Dr. Peter on June 28, 2013. Dr. Peter's notes indicate Claimant returned for a follow-up for an injury to her leg and ankle that happened at work on March 1. She complained of stabbing pains in her knee and calf area, constant pain in her ankle, and tingling that occurred off and on in her right foot. She reported also getting stabbing pains in her lower right back side that also began after her injury at work. His notes also state: "twisting type injury of the knee." Upon examination Claimant was tender over the right medial joint line of the knee. Dr. Peter's impression was probable torn medial meniscus and a questionable peroneal nerve injury.

Claimant returned to Dr. Peter's office on July 9, 2013. She reported a lot of pain around her knee, calf, and foot. She stated she could barely walk. Claimant underwent an MRI of her right knee, and an EMG/NCV on July 10, 2013. The impression on the MRI was a possible undersurface tear of the body and posterior horn of the medial meniscus, and mild chondromalacia patella. The EMG/NCV was normal with no evidence of right lower extremity neuropathy.

On July 15, 2013, Claimant saw Dr. Quigley, an orthopedic surgeon. After examining Claimant, and reviewing the MRI of Claimant's knee, Dr. Quigley opined Claimant's pain was likely related to a soft tissue injury. He did not see any evidence of a meniscus tear on the MRI. He saw some mild pinning of the undersurface of the patella on the MRI. He did not see any structural damage to the knee, tibia, or ankle on the X-ray. He noted she had a mild amount of inflammation and tenderness within the mid-tibial region, which would represent a bone bruise. Dr. Quigley did not recommend surgery, but prescribed conservative treatment including physical therapy and anti-inflammatories. On September 9, 2013, when Claimant's knee pain had not improved, Dr. Quigley injected Claimant's knee, and indicated if Claimant did not improve in the next week or so, he would consider surgery. Claimant returned to Dr. Quigley's office the next day and was seen by someone else in the office. Claimant was given an off work slip for 6 weeks, and was told an arthroscopy would be scheduled.

On September 20, 2013, Dr. Quigley performed a right knee arthroscopy, partial medial meniscectomy, chondroplasty of the medial femoral condyle, and chrondroplasty of the undersurface of the patella. The post-operative diagnoses were right knee medial meniscus tear,

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chondromalacia of the medial femoral condyle, and chondromalacia of the patella. Claimant was off work for her knee surgery from September 9, 2013, until November 24, 2013.

Claimant returned to Dr. Peter's office on December 19, 2013. Dr. Peter's records state:

"New concerns include ...lower back pain that started earlier this year after an injury at work."

Claimant reported she had recently returned to work and since returning she was hurting from head to toe, she had a headache, pain in her right elbow, pain in her lower back that is shooting into her groin area and down both of her legs all the way to her feet, among other complaints. Dr. Peter's impression was questionable fibromyalgia, and planned to check her lab results and refer her to a rheumatologist.

Dr. Krause examined Claimant on December 23, 2013, prepared a report, and testified on behalf of Employer. In his report Dr. Krause stated Claimant's chief complaint was of right foot pain. Claimant completed a new patient information form at Dr. Kraus's office. On her pain diagram dated December 21, 2013, Claimant indicated she had a level of pain of seven on her right neck, shoulder area, forearm, hand, hip, thigh, knee area, calf area, ankle, and foot. The chief complaint she listed was "injury of knee, calf, ankle, foot, toes, thigh, back, and radiates to shoulder, neck, arm and fingers." Claimant reported she was working full duty, but after four hours of work her leg felt like there was a clamp on it. Claimant's main complaint was right buttock pain that radiated down her leg into her foot. She indicated she was unable to kneel or walk up hills. She also reported numbness in her right index finger and thumb, and forearm pain. She had pain in the anterior aspect of her ankle and posterior aspect of her leg. Dr. Kraus diagnosed right leg contusion and ankle sprain, resolved; history of right medial meniscal tear, status post partial meniscectomy; and low back pain with upper and lower extremity symptoms.

Dr. Krause stated: "the reexamination of the patient and the medical records from Dr. Quigley do not change my opinions outlined in the office notes or the record review dated 11/3/13. It is my opinion to a reasonable degree of medical certainty that the injury dated 3/1/13 is the prevailing factor in the patient's right leg contusion and ankle sprain. Given her ankle MRI was essentially normal and she has a normal exam, and given the fact that she had multiple visits of magnified symptoms in my office and her lack of effort during the functional capacity evaluation, I do not recommend ongoing treatment for the right leg contusion and ankle sprain."

Dr. Krause opined Claimant has what sounds like a small tear of the anterior horn of the medial meniscus which was treated with partial meniscectomy. Dr. Krause stated Claimant did not have meniscal symptoms when he examined her, or when Dr. Crane or Dr. Volarich examined her. She did not have medial or lateral joint line tenderness when Dr. Quigley first examined her.

Dr. Kraus testified the March 1, 2013 accident was not the prevailing factor causing the torn meniscus of Claimant's right knee. Dr. Kraus testified none of the doctors who examined Claimant found evidence of meniscal pathology, and if she developed a meniscal tear, it was after she was seen by him or Dr. Volarich. He testified Claimant did not have any meniscal symptoms before seeing Dr. Quigley, and if she had a meniscal tear, it clearly happened after her visit with Dr. Volarich, and after her visits with him and other doctors. Dr. Kraus testified Claimant did not need any further treatment for her right knee, and she sustained no PPD to the right knee as a result of the injury. Dr. Kraus further testified the March 1, 2013 accident was not

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the prevailing factor in causing low back complaints, and she did not need any treatment to her low back, and sustained no PPD to the low back.

Dr. Kraus felt it was not unreasonable for Claimant to see a pain management specialist but indicated it was not related to her injury of March 1, 2013. He felt there was no reason for Claimant to be on work restrictions, felt she could work full duty, was at maximum medical improvement for her March 1, 2013, injury, and sustained 0% PPD related to her injury. He opined any PPD in her sacroiliac joint or spinal column was unrelated to her injury of March 1, 2013.

Dr. Kraus testified a twisting injury to the knee could cause a meniscal tear. He also testified the first time he saw Claimant she had difficulty bearing weight on her leg and if someone had a meniscal tear it could be difficult for them to bear weight on the leg.

Claimant saw Dr. Shelton, a pain management specialist on December 26, 2013. Claimant complained of lower back pain and difficulty walking since the accident and pain in her right groin radiating down into her leg. Dr. Shelton diagnosed her with sacroilitis. He ordered an MRI of her low back which revealed small disc bulges throughout the lumbar spine and the radiologist's impression was multilevel degenerative changes. On January 23, 2014, Dr. Shelton again diagnosed her with sacroilitis and opined the sacroiliac joint was the main pain generator as opposed to radiculitis. He performed an epidural steroid injection.

Claimant continued having pain and sought chiropractic care with Dr. Anthony Miller from October 10, 2014 until August 17, 2015. A right hip arthrogram performed on July 28, 2015 demonstrated a tear of the anteriosuperior labrum and mild to moderate right hip degenerative changes.

Claimant first saw Dr. King on August 19, 2015. Under history of present illness Claimant gave a history of right hip pain since May 1, 2013. Dr. King diagnosed her with right hip pain secondary to labral tear and Cam impingement. He recommended an injection to prove that her symptoms were actually coming from her labral pathology. On September 28, 2015, Dr. King stated Claimant failed conservative treatment and recommended surgery. Claimant underwent a right hip arthroscopic labral repair and arthroscopic osteochondroplasty on September 30, 2015. The post-operative diagnoses were right hip traumatic labral tear and right hip primary Cam femoroacetabular impingement. Claimant was off work because of her hip surgery from September 30, 2015 until January 15, 2016. After her surgery she continued to follow up with Dr. King, until he released her from treatment without restrictions on June 1, 2016.

Dr. Frisella examined Claimant on June 20, 2017, prepared a report, and testified on behalf of Employer. Dr. Frisella examined Claimant's hip, but not her knee or ankle. Dr. Frisella diagnosed Cam impingement in the right hip, osteoarthritis in the right hip, and a labral tear in the right hip. Dr. Frisella testified the work injury of March 1, 2103, was not the prevailing factor in causing the labral tear, Cam impingement, or osteoarthritis he diagnosed. Dr. Frisella testified there were multiple medical records between the time Claimant was injured and the time the right hip was mentioned, and if her hip was injured on March 1, 2103, she would have likely complained of hip or groin pain prior to July 1, 2015. Dr. Frisella was under the impression that

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the first time in any medical records Claimant complained about hip pain was July 1, 2015, in a note from Dr. Miller.

Dr. Frisella testified the prevailing factor causing the impingement was Claimant's bony anatomy which she was born with. He testified patients develop impingement as a result of the congenital abnormality, and the labral tear flows from the impingement. Dr. Frisella found Claimant at MMI and gave her a disability rating of 5% PPD. Regardless of causation, Dr. Frisella believed the hip surgery was necessary to correct the labral tear. In response to a hypothetical question Dr. Frisella testified that a mechanism of injury could cause a labral tear if the evidence at trial suggests that her body twisted at the hips when she was struck by the parallel bars.

Dr. Woiteshek, a board certified orthopedic surgeon, examined Claimant on October 6, 2016, and prepared a report. Dr. Woiteshek opined that the work accident of March 1, 2013, was the prevailing factor in causing her labral hip tear and the meniscal tear in her knee which required surgery. He also opined the work accident caused traumatic internal derangement of the right ankle seen on the MRI of March 15, 2013. He opined the conditions were causally related to the work accident because the accident caused her knee to buckle and her upper body to twist when the parallel bars fell on her leg. He found the medical treatment provided was reasonable and necessary to cure and relieve her from the effects of the work accident.

Dr. Woiteshek rated Claimant's disability at 35% PPD of the right hip, 35% PPD of the right knee and 20% PPD of the right ankle.

Claimant's medical bills for her hip and knee care totaled 73,193.78. Claimant also incurred 160.33 in out-of-pocket expenses.

Claimant denied any pre-existing injuries or problems with her right hip, knee, or ankle. She testified she was in pain throughout her treatment. Since Claimant completed treatment, she gets an occasional stabbing pain in her thigh. She is more hesitant when she descends steps because she is afraid of losing her balance. Claimant told Dr. Woiteshek she is having problems with lifting, twisting, kneeling, squatting, climbing, reaching, bending, and carrying.

FINDINGS OF FACT AND RULINGS OF LAW

Based upon a comprehensive review of the evidence, my observations of Claimant at hearing, and the application of Missouri law, I find:

MEDICAL CAUSATION

Claimant met her burden of proving her work accident of March 1, 2013, was the prevailing factor causing her right hip and knee injury, but not her low back condition. I find the opinion of Dr. Woiteshek the most persuasive medical opinion.

Claimant twisted her upper body and lower back when she was injured. When she saw Dr. Volarich on May 10, 2013, only two months after the injury, she described a mechanism of injury of twisting her knee and hip at an awkward angle. Dr. Peter's records also document Claimant sustained a twisting-type injury to the knee. Both Drs. Krause and Frisella testified a

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mechanism of injury that involved a body twisting at the time of the accident could cause a knee and hip condition.

In the various medical records following the injury, Claimant repeatedly complained of pain in her knee. On the very day she was injured she told Mercy Corporate Health she had pain that radiated to her right calf and knee. On March 15, 2013, when Claimant saw Dr. Krause she complained of right knee pain. She complained of right knee pain again to Dr. Krause on March 29 and April 9. She told Dr. Volarich on May 10 she had pain in her right knee along with a loss of motion and popping. On June 28, 2013, Dr. Peter's impression was probable torn meniscus.

Dr. Kraus's opinion with respect to medical causation regarding Claimant's knee is not persuasive. The decision of Dr. Kraus to release Claimant from treatment was based heavily upon the functional capacity evaluation. In that FCE, the therapist felt Claimant was self-limiting her effort, and had a high number of subjective complaints. It is clear Dr. Kraus felt Claimant lacked credibility regarding her pain complaints. In hindsight, it is reasonable to infer Claimant's so called subjective complaints of pain were actually related to the fact she was suffering from a torn meniscus and a labral tear. There is no evidence Claimant sustained any subsequent accidents or injuries, and had no pre-existing symptoms or treatment in her right knee or hip.

Dr. Frisella was under the mistaken impression Claimant did not complain about hip pain until July 2015. This impression is clearly refuted by the medical evidence. Claimant consistently complained of hip pain after the injury. On May 10, 2013, approximately two months after the work injury, Claimant told Dr. Volarich she had a shooting pain in her right hip. On December 19, 2013, she told Dr. Peter she had pain in her low back that was shooting down to her groin area. Dr. Frisella based his opinion on the mistaken fact that Claimant did not have hip or groin pain prior to July 1, 2015. Thus, Dr. Frisella's opinion that her labral tear in her hip was not causally related carries no weight because it lacks a factual foundation. Claimant met her burden of proving the work accident of March 1, 2013, was the prevailing factor causing her right hip and right knee injury. Claimant's testimony, the medical records, and Dr. Woiteshek's opinion support this conclusion.

Dr. Woiteshek did not diagnose any low back injury or disability resulting from the March 1, 2013 work accident. Although Dr. Volarich diagnosed a low back injury resulting from Claimant's accident, Dr. Woiteshek's opinion is more persuasive because he examined Claimant on October 6, 2016, and had the benefit of considering all of her subsequent treatment after she saw Dr. Volarich in May 2013. Claimant did not meet her burden of proving the accident of March 1, 2013, caused any injury or disability to her low back.

NATURE AND EXTENT OF PPD

Claimant is back to work at her job without restrictions. She is more careful now when she works. Claimant has problems with lifting, twisting, kneeling, squatting, climbing, reaching, bending, and carrying. I find Claimant sustained 20% PPD of her right hip, 25% PPD of her right knee, and 10% PPD of her right ankle.

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS'

COMPENSATION

Injury No. 13-012655

Pursuant to Section 287.140 of the Act, an employer is obligated to authorize and provide an employee with such care "as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." § 287.140.1; *Maness v. City of De Soto*, 421 S.W.3d 532, 544 (Mo. App. 2014). A claimant seeking past medical expenses must prove "that the need for treatment and medication flow[s] from the work injury." *Tillotson v. St. Joseph Med. Ctr.*, 347 S.W.3d 511, 519 (Mo.App.W.D.2011); *Maness v. City of De Soto*, 421 S.W.3d 532, 544 (Mo. Ct. App. 2014). "The employer, of course, may challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question." *Id.*

An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. *Blackwell v. Puritan-Bennett Corp.*, 901 S.W.2d 81, 85 (Mo. Ct. App. 1995). It is only when the employer fails to do so that the employee is free to pick his own provider and assess those costs against his employer. *Id.* Therefore, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment. *Id.*, citing *Hawkins v. Emerson Electric Co.*, 676 S.W.2d 872, 880 (Mo.App.1984); *see also, Poole v. City of St. Louis*, 328 S.W.3d 277, 291 (Mo. Ct. App. 2010). The "real question here is whether Employer had notice of the need for additional treatment and failed to provide it." *See, Banks v. Springfield Park Care Ctr.*, 981 S.W.2d 161, 165 (Mo. Ct. App. 1998).

Claimant submitted her unpaid medical bills into evidence. The medical bills are for treatment for her knee and hip condition. Employer disputed these bills and did not pay them. Claimant seeks payment of these bills in the amount of $73,354.11, which also includes her out-of-pocket medical expenses. Because Claimant's hip and knee conditions for which she had surgery are related to and flow from the accident, and are reasonable and necessary to cure and relieve the effects of those injuries, Claimant is entitled to unpaid medical bills in the amount of $73,354.11.

Although no evidence was presented that Claimant made a specific demand for additional treatment, under *Banks v. Springfield Park Care Ctr. Id.*, Employer had notice of Claimant's need for additional treatment and failed to provide it. On May 10, 2013, Claimant had an opinion from Dr. Volarich that she was not yet at MMI, and needed additional treatment. Employer declined to provide additional treatment, and thus Claimant was free to procure her own treatment. The minute entries contained in the files of the Division of Workers' Compensation demonstrate Employer was on notice as early as July 2013 that Claimant was requesting additional treatment. On September 4, 2013, the parties indicated the request for treatment had been resolved. Employer cannot now complain it did not know Claimant was seeking additional treatment. All of the subsequent treatment flowed from the original injury, and was reasonable and necessary to cure and relieve Claimant from the effects of her work injury.

WC-32-R1 (6-81)

Page 11

Issued by DIVISION OF WORKERS'

COMPENSATION

Claimant was off-work for a total of 26-2/7 weeks as a result of her surgeries. For her knee surgery Claimant was off-work from September 9, 2013 through November 24, 2013. For her hip surgery, Claimant was off-work from September 30, 2015 until January 15, 2016. Because I find her hip and knee injury compensable Claimant is entitled to TTD for the time she missed from work recuperating from the surgeries, a total of 26-2/7 weeks.

Claimant sustained 20% PPD of her right hip, 25% PPD of her right knee, and 10% PPD of her right ankle. Claimant is entitled to 26-2/7 weeks of disability at the rate of $335.63 equaling 8,822.27. Claimant is entitled to unpaid medical bills and out-of-pocket expenses in the amount of 73,354.11. Claimant is entitled to 96.9 weeks of PPD at the rate of 335.63 equaling $32,522.55.

This award is subject to an attorney's lien of 25% in favor of Claimant's attorney, Mr. Steve Trefts.

I certify that on 4-3-19 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.

Date: 4-3-19

Made by: **MARGARET D. LANDOLT**

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-87)