Jackie Hooper v. Missouri Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 14-027947

**Employee:** Jackie W. Hooper

**Employer:** Missouri Department of Corrections

**Insurer:** Self Insured

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 5, 2019. The award and decision of Administrative Law Judge Edwin J. Kohner, issued April 5, 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 14th day of January 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 14-027947

Employee: Jackie W. Hooper

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 modified.

I primarily disagree with the concept that once an employee has a compensable injury, then any subsequent medical treatment to that body part becomes the responsibility of employer. The statutes require that future medical treatment is in order to cure and relieve the effects of the injury, not to cure and relieve any injury or condition in the affected area.

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. An injury is not compensable because work was a triggering or precipitating factor.

In this chapter the term **"injury"** is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. **"The prevailing factor"** is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Employee's work-related injuries¹, or medical conditions prevailingly caused by the two work-related accidents at issue in these matters, consisted of two tears to the medical meniscus. Both tears were successfully treated by means of arthroscopic surgeries and were later deemed to be at maximum medical improvement. At the time of maximum medical improvement, there was no further reasonably required treatment to cure and relieve the effects of the two compensable injuries.

¹ This matter was heard with Injury No. 15-004769. All references to "injuries" refer to the injuries in both claims.

Injury No.: 14-027947

Employee: Jackie W. Hooper

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However, employee's degenerative condition in his knee requires a total knee replacement. Employee's degenerative condition may have been triggered or precipitated by his working conditions, but the degenerative condition was not a compensable injury. Because a total knee replacement is not reasonably required to cure and relieve the compensable injuries, but only to treat a non-compensable degenerative condition, employer should not need to pay for a total knee replacement surgery.

I understand that where experts agree to the treatment reasonably required to cure and relieve the effects of a compensable injury, such treatment is compensable even though it also treats non-compensable injuries. *Tillotson v. St. Joseph Med. Ctr.*, 347 S.W.3d 511, 518 (Mo. App. 2011). In *Tillotson*, the employee had a total knee replacement because it was the medical treatment required to cure and relieve the effects of a compensable torn lateral meniscus in light of employee's other non-compensable conditions; anything short of a total knee replacement was insufficient. The facts in this matter differ from those in *Tillotson* because the medical experts did not agree that the total knee replacement is the treatment reasonably required to cure and relieve the effects of the compensable injuries.

I find persuasive the opinion of Dr. David King that a total knee replacement is not reasonably necessary to cure and relieve the effects of the compensable injuries, but to degenerative changes in employee's knee. The degenerative changes in employee's knee were not related to the work injuries. Dr. King visually inspected employee's knee twice and noted that the changes were not caused by an acute injury, but by degenerative changes over time. There were "no characteristics of an acute sheer injury to the cartilage." *Tr.*, p. 703.

Dr. King further testified in his deposition that issues dealing with an acute meniscus tear heal within weeks of surgical treatment. However, employee's knee continued to worsen due to his degenerative condition. Dr. King opined that employee's worsening condition was a natural progression of degeneration. Any ongoing problems would relate to the degeneration and not to the acute compensable injuries. Therefore, as Dr. King opined, employee did not require any future medical treatment to cure and relieve the effects of the two compensable injuries.

Accordingly, I would modify the administrative law judge's award allowing benefits and not award future medical benefits. I would also reduce the permanent partial disability ratings to more accurately reflect the medical conditions caused by the two compensable injuries. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Jackie W. Hooper

Dependents: N/A

Employer: Missouri Department of Corrections

Additional Party: Second Injury Fund (Voluntarily Dismissed)

Insurer: Self Insured

Hearing Date: January 30, 2019

Injury No.: 14-027947

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

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: April 23, 2014

1. State location where accident occurred or occupational disease was contracted: Pike 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? 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: The employee, a maintenance supervisor, suffered a right knee injury while descending a flight of steps while carrying sack lunches to a continuing education meeting.

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: Right knee

1. Nature and extent of any permanent disability: 25% Permanent partial disability to the right knee

1. Compensation paid to-date for temporary disability: $295.80

1. Value necessary medical aid paid to date by employer/insurer: $22,488.73

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 14-027947

1. Value necessary medical aid not furnished by employer/insurer? None to date

1. Employee's average weekly wages: 621.23

1. Weekly compensation rate: 414.15

1. Method wages computation: By agreement

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

40 weeks of permanent partial disability from Employer

$16,566.00

1. Second Injury Fund liability: No

**TOTAL:**

$16,566.00

1. Future requirements awarded: The claimant is awarded medical care as may be reasonably required to cure and relieve from the effects of the injury.

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: Branson L. Wood III

WC-32-R1 (6-81)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

This Workers' Compensation case raises several issues arising out of a work-related injury in which the claimant, a maintenance supervisor, suffered a right knee injury while descending a flight of steps while carrying sack lunches to a continuing education meeting. The issues for determination are: (1) Future medical care and (2) Permanent disability. The claimant dismissed the Second Injury Fund Claim prior to presentation of evidence. The evidence compels an award for the claimant for future medical care and permanent partial disability benefits.

At the hearing, the claimant testified in person and offered depositions, medical reports and curriculum vitae of David T. Volarich, D.O. and Frank V. Thomas, M.D., a list of current complaints, a photograph of the claimant's right knee, and voluminous medical records. The defense offered a deposition of David J. King, M.D.

All objections not previously sustained are overruled. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri. All parties waived venue. Any markings on the exhibits were present when offered into evidence.

On April 23, 2014, the claimant was walking down a flight of steps carrying lunches on his way to a meeting. He turned to answer his supervisor and pivoted on his right leg. His right foot caught on a rough, non-slip surface, on the metal staircase and did not turn which caused a twisting injury to his right knee. He felt and heard a loud pop and had immediate pain in his right knee.

On April 28, 2014, Dr. Henry examined the claimant and took an X-ray of the right knee revealing no fracture or dislocation and well preserved joint spaces. On May 14, 2014, an MRI of the right knee revealed a complex degenerative tear of the medial meniscus with partial meniscal extrusion, a small free edge radial tear of the la