Jackie Hooper v. Missouri Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-004769

**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.: 15-004769

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 medial 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. 14-027947. All references to "injuries" refer to the injuries in both claims.

Injury No.: 15-004769

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: N/A

Insurer: Self Insured

Hearing Date: January 30, 2019

Injury No.: 15-004769

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: January 27, 2015

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, suffered a right knee injury when he hyperflexed his right knee while moving a heating ventilation unit at work.

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: 20% Permanent partial disability to the right knee

1. Compensation paid to-date for temporary disability: $2,928.14

1. Value necessary medical aid paid to date by employer/insurer: $24,584.29

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 15-004769

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

1. Employee's average weekly wages: 627.45

1. Weekly compensation rate: 418.30

1. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable:

32 weeks of permanent partial disability from Employer

13,385.60

1. Second Injury Fund liability: No

TOTAL:

13,385.60

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)

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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 when he hyperflexed his right knee while moving a heating ventilation unit at work. 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 lateral meniscus, and patellofemoral osteoarthritis with patellar maltracking. On May 22, 2014, Dr. King examined him, diagnosed a right knee medial meniscus tear, and recommended surgery.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 15-004769

On June 3, 2014, Dr. King performed a right knee arthroscopic partial medial meniscectomy. He examined all three compartments of the knee and performed procedures in the medial and patellofemoral compartments of the knee. Dr. King removed loose bodies and performed a chondroplasty in the patellofemoral compartment. The claimant underwent a period of light duty and physical therapy. On July 29, 2014, the claimant complained of ongoing pain in his right knee, but Dr. King released him to full duty. On August 20, 2014, Dr. King noted ongoing discomfort, but placed the claimant at maximum medical improvement with no restrictions. The claimant and his wife testified the claimant continued to have severe swelling and pain resulting in additional falls.

On November 4, 2014, Dr. Sherman examined the claimant and reported X-rays of both knees revealed, "The mechanical axis of both lower extremities is normal. Mild osteoarthritis is present in the right knee with osteophyte formation and joint space narrowing." The impression from the November 4, 2014, X-rays of both knees was, "Moderate tricompartmental osteoarthritis of both knees." The osteoarthritis and joint space narrowing in the right knee were new findings since the April 28, 2014, X-rays.

2015 Accident

On January 27, 2015, the claimant was moving a heating ventilation unit at work. When he tried to step down into a pit, his right knee gave out and he started to fall. An inmate behind him caught him so he did not fall to the floor. As he fell, he hyperflexed his right knee which caused a sudden increased pain in the right knee. On January 28, 2015, Dr. Henry examined the claimant and obtained X-rays of the right knee, which revealed no acute fracture or dislocation. On February 20, 2015, a right knee MRI revealed a tear in the posterior horn and the medial body of the medial meniscus with some degenerative changes of the menisci and cartilage. On March 20, 2015, after failed conservative treatment, Dr. King performed a right knee partial medial meniscectomy and chondroplasty after examining all three compartments of the knee. By the end of the surgery, Dr. King had removed the majority of the meniscus and performed loose body removal from the lateral compartment. During the chondroplasty, Dr. King removed loose bodies from the patellofemoral compartment. The claimant underwent a course of physical therapy. By May 7, 2015, Dr. King released the claimant to full duty. On June 11, 2015, Dr. King released the claimant with no new restrictions and placed him at maximum medical improvement.

The claimant and his wife testified the claimant continues to suffer from chronic pain, throbbing, and swelling in the right knee aggravated by activity. He uses over-the-counter pain medication several times per week. Following activity, he elevates his leg and ices his knee. He uses a TENS unit for pain relief weekly and sometimes daily. Swelling has produced stretch marks on his knee. On most evenings following work, he spends his entire evening in a recliner with his knee elevated and iced. He has difficulty getting up and down from a seated position. He uses kneepads to work on his knees. His knee gets stiff and difficult to move if he sits for too long. He is not able to walk up and down hills, stairs, or long distances without pain and swelling. He is unable to climb ladders. The residual condition from the injury interferes with both recreational and family activities.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 15-004769

David T. Volarich, D.O.

On November 3, 2015, Dr. Volarich examined the claimant and reviewed his medical records. Referable to the 2014 injury, he opined that the claimant suffered a 40% permanent partial disability of the right knee due to the torn medial meniscus and irreversible aggravation of chondromalacia which required arthroscopic partial medial meniscectomy, removal of loose body, chondroplasty of the patellofemoral joint and medial femoral condyle as well as removal of a soft tissue nodule. The rating accounts for the injury's contribution to pain, loss of motion, crepitus, and swelling in the right lower extremity. See Dr. Volarich deposition, page 28.

Referable to the January 27, 2015 injury, Dr. Volarich opined the claimant suffered an additional 30% permanent partial disability of the right knee due to the recurrent meniscal tear and irreversible aggravation of chondromalacia, which required arthroscopic partial medial meniscectomy, removal of loose body, chondroplasty of the patella, trochlear groove, medial femoral condyle and medial tibial plateau. The rating accounts for the injury's contribution to pain, loss of motion, crepitus, and swelling in the right lower extremity. See Dr. Volarich deposition, page 28.

Frank V. Thomas, M.D.

On January 17, 2017, Dr. Thomas examined the claimant and opined the claimant's work injuries and resulting surgeries had aggravated his pre-existing degenerative arthritis to the point where he would require additional treatment. He recommended injections, medication, and physical therapy. If these did not provide relief, the claimant would need a total knee revision. He opined, "[T]he injury led to the tear in the meniscus, which led to the surgery, which led to the disruption of the mechanics of the knee joint that led to the degenerative changes necessitating knee replacement." He also opined, "[T]hose injuries and the sequelae form the surgery the prevailing factor in the need for the knee replacement." See Dr. Thomas deposition dated May 22, 2018, page 17.

David J. King, M.D.

Dr. King, the treating surgeon, reviewed the reports and testimony of Dr. Thomas and Dr. Volarich. While he agreed the claimant had symptomatic arthritis, he strongly disagreed it flowed from either work injury. The pathology Dr. King had treated as a result of the work injuries was isolated to the medial compartment, and the claimant was experiencing symptoms related to degeneration in all three compartments of his knee. He opined the claimant suffers from a progressive degenerative condition, which could not have been influenced by an injury that resulted in pathology that was isolated to the medial compartment. He opined the claimant's current need for treatment did not flow from either work injury.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 15-004769

Pursuant to Section 287.140.1, an employer is required to provide care "as may be reasonably required to cure and relieve from the effects of the injury." This includes allowance for the cost of future medical treatment. *Pennewell v. Hannibal Regional Hospital*, 390 S.W.3d 919, 926 (Mo. App. E.D. 2013) citing *Poole v. City of St. Louis*, 328 S.W.3d 277, 290-91 (Mo. App. E.D. 2010). An award of future medical treatment is appropriate if an employee shows a reasonable probability that he or she is in need of additional medical treatment for the work-related injury. *Id.* Future care to relieve [an employee's] pain should not be denied simply because he may have achieved [maximum medical improvement]. *Id.* Therefore, a finding that an employee has reached maximum medical improvement is not necessarily inconsistent with the employee's need for future medical treatment. *Id.*

To receive an award of future medical benefits, a claimant need not show "conclusive evidence" of a need for future medical treatment. *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 52 (Mo.App. W.D. 2007). Instead, a claimant need only show a "reasonable probability" that, because of a work-related injury, future medical treatment will be necessary. *Id.* A claimant need not show evidence of the specific nature of the treatment required. *Aldridge v. Southern Missouri Gas Co.*, 131 S.W.3d 876, 883 (Mo.App. S.D. 2004); *Stevens v. Citizens Memorial Healthcare Foundation*, 244 S.W.3d 234, 237 (Mo.App. S.D. 2008).

In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. *Tillotson v. St. Joseph Med. Ctr.*, 347 S.W.3d 511, 519 (Mo.App. W.D 2011). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. *Id.* The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. *Id.* Application of the prevailing factor test to determine whether medical treatment is required to treat a compensable injury is reversible error. *Id.* at 521.

In this case, all of the medical evidence establishes, based upon a reasonable degree of medical certainty, the claimant is a candidate for right knee replacement. Three physicians presented varying findings relating to the etiology of this requirement. Dr. Volarich testified, based upon a reasonable degree of medical probability, the claimant requires knee replacement and the need for knee replacement is a result of the work-related injuries of April 23, 2014, and January 27, 2015. See Dr. Volarich deposition, pages 29-33. He opined,

> The need for the right knee joint replacement flows directly from these work-related injuries of 4/23/14 and 1/27/15, since he was asymptomatic in that right knee prior to 4/23/14. The work injuries of 4/23/14 and 1/27/15 are the prevailing factors necessitating the need for joint replacement in the future. The decision to perform any additional surgery should be made in conjunction with his wishes, of symptoms, and expert surgical opinion. These treatments are necessary to cure and relieve from the ill effects of his work-related injuries. See Dr. Volarich deposition, pages 31-32.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 15-004769

Dr. Thomas, an orthopedic surgeon, examined the claimant on January 17, 2017, and opined, "I think his current pain is such that he needs treatment at this time. I would first recommend cortisone, physical therapy, anti-inflammatory medications, and glucosamine/chondroitin. If he does not see relief quickly, I would recommend Visco supplementation with hyaluronic acid injections. Despite his young age, I think arthroplasty is the only option that will give him persistent pain relief. I get the impression he will elect for that in the near future. Unfortunately, we still quote 10-15 year survivorship for total knee arthroplasty. Therefore, the odds are that he will require 1-2 revisions in his lifetime. Each one carries more significant perioperative risks and likely a lesser survivorship." See Exhibit 10.

Dr. Thomas testified the claimant needs a knee replacement. See Dr. Thomas deposition dated May 3, 2017, pages 11-15. He currently has bone-on-bone arthritis in the right knee, which will ultimately require a knee replacement. See Dr. Thomas deposition dated May 3, 2017, page 12. He testified that the work-related injuries and the treatment that the claimant received as a result of those work-related injuries are the primary causes of the bone-on-bone arthritic condition and the need for the knee replacement. See Dr. Thomas deposition dated May 3, 2017, page 15.

On March 9, 2018, Dr. Thomas reported about the change in mechanics of the operation of the knee as a result of partial removal of the medial meniscus. See Exhibit 12. He opined, "It is my opinion that the injury lead to the tear in the meniscus which led to surgery. In the claimant, this changed the mechanics of the knee that lead to rapid acceleration of the degenerative process that he likely has in the contralateral side. He now has advanced degenerative changes that he would not have had at this point in his life without the injury. Simply put, the injury lead to the surgery which lead to his current condition of having advanced degenerative changes." See Exhibit 12.

On May 22, 2018, Dr. Thomas testified about the manner in which the injury and surgeries caused the current need for a knee replacement. He noted the degenerative conditions in the right and left knees were virtually identical at the time of the first injury. See Dr. Thomas deposition dated May 22, 2018, page 8. The only difference between the right knee and the left knee was the injury and the subsequent tri-compartmental procedures in the right knee. The majority of the medial meniscus had been removed in the two surgeries. See Dr. Thomas deposition dated May 22, 2018, page 9. The impact of this changed the mechanics in the right knee, increased the loading, and had an impact on the entire knee because it affected stability and redistributed the forces, changing stresses throughout the entire knee joint. He opined that the two separate injuries and surgeries changed the mechanics in the knee resulting in an inflammatory response, which caused severe destruction of the knee joint. See Dr. Thomas deposition dated May 22, 2018, page 10. He opined, "My opinion is that the injury led to the tear in the meniscus, which led to the surgery, which led to the disruption to the mechanics of the knee joint that led to the degenerative changes necessitating knee replacement." See Dr. Thomas deposition dated May 22, 2018, page 17. He opined that these were the prevailing factors in the need for knee replacement. See Dr. Thomas deposition dated May 22, 2018, pages 17, 24.

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 15-004769

Dr. King also opined the claimant will require a knee replacement when he can no longer tolerate the pain in his right knee. However, he also opined, "his degeneration was significant at the time of his first injury and the expected progression was progression of his degeneration and his symptoms over time, which is the natural history of that condition." See Dr. King deposition, page 24. "In this case, genetics is the biggest factor." See Dr. King deposition, page 24. Thus, he concluded the need for a knee replacement is a result of pre-existing degenerative changes and the injuries and subsequent treatment did not change the mechanics of the knee or cause the need for a knee replacement. See Dr. King deposition, pages 24-31.

Dr. King also testified the claimant had no history of complaints or symptoms in the right knee prior to April 23, 2014. See Dr. King deposition, page 32. People have degenerative changes in their knees without there being symptoms or clinical problems. See Dr. King deposition, page 33. The pre-existing degenerative disease did not mean that the claimant would require either arthroscopies or surgical procedures in this case. See Dr. King deposition, page 34. The April 28, 2014, X-rays showed the medial and lateral joint space compartments were well maintained which is an indication there had not been substantial damage to cartilage in those compartments at the time of the initial injury in this case. See Dr. King deposition, page 34. Dr. King testified he performed procedures in the patellofemoral compartment and the medial compartment in his first surgery and it was not a very successful surgery. See Dr. King deposition, page 37. He testified there was an oblique tear in the medial meniscus, which he did not surgically remove at the time of his first surgery. See Dr. King deposition, pages 38-39. He testified when you remove a part of the meniscus the tissue is no longer there to work as a shock absorber or to cushion. This increases the load on the medial compartment. See Dr. King deposition, page 41. He testified X-rays performed at the University of Missouri on November 4, 2014, showed moderate tri-compartmental osteoarthritis in both knees. See Dr. King deposition, page 43. He testified degenerative conditions in both knees did not require surgery but they imposed an increased risk for surgery. See Dr. King deposition, page 44. He testified injuries do or can be responsible for accelerating degeneration of pre-existing conditions. See Dr. King deposition, page 45. When asked about whether surgery can accelerate the degenerative process, he testified:

Q. Well, that's what I am saying, doctor, is that that meniscus still has a function right?

A. Correct.

Q. And when you begin removing parts of it and when it's been damaged, that is one of the things that can accelerate the continued degeneration of that meniscus, isn't it?

A. If you remove more than -- if you tear and subsequently have to remove more than fifty percent, then yes.

Q. Okay. You did a second surgery on Mr. Hooper on March the 20th of 2015, is that correct?

A. That's correct.

Q. By the end of that surgery the majority of the meniscus had been removed, hadn't it?

A. That's correct. See Dr. King deposition, page 46.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 15-004769

Dr. King testified by the end of the second surgery the biomechanics of the knee had changed. See Dr. King deposition, page 47. By the end of the second arthroscopic surgery, Dr. King examined all three compartments of the knee and had performed surgical procedures in all three compartments. See Dr. King deposition, pages 48-50.

Dr. King testified the claimant had moderate tri-compartmental degeneration in both knees at the beginning. See Dr. King deposition, page 59. While the right knee had been twice injured resulting in two surgeries involving all three compartments, the left knee remained non-symptomatic. See Dr. King deposition, page 59. Dr. King testified he was unaware of any difference between the right knee, which requires replacement, and the left knee that did not, except the two injuries and the arthroscopic procedures on the right knee, because he did not have enough information about the condition of the claimant's left knee. See Dr. King deposition, pages 59-61.

Based on the weight of the evidence, the need for future medical care to the claimant's right knee flows from the claimant's work-related injuries and he is awarded medical care as may be reasonably required to cure and relieve from the effects of the injury.

PERMANENT DISABILITY

Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures. Section 287.190.6(2), RSMo 2016.

Workers' Compensation awards for permanent partial disability are authorized pursuant to Section 287.190. "The reason for [an] award of permanent partial disability benefits is to compensate an injured party for lost earnings." *Rana v. Landstar TLC*, 46 S.W.3d 614, 626 (Mo. App. W.D. 2001). The amount of compensation to be awarded for a PPD is determined pursuant to the "SCHEDULE OF LOSSES" found in Section 287.190.1. "Permanent partial disability" is defined in Section 287.190.6 as being permanent in nature and partial in degree. Further, "[a]n actual loss of earnings is not an essential element of a claim for permanent partial disability." *Id.* A permanent partial disability can be awarded notwithstanding the fact the claimant returns to work, if the claimant's injury impairs his efficiency in the ordinary pursuits of life. *Id.* "[T]he Labor and Industrial Relations Commission has discretion as to the amount of the award and how it is to be calculated." *Id.* "It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered." *Id.* In a workers' compensation case in which an employee is seeking benefits for PPD, the employee has the burden of not only proving a work-related injury, but that the injury resulted in the disability claimed. *Id.*

WC-32-R1 (6/81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie W. Hooper

Injury No.: 15-004769

In this case, Dr. Volarich evaluated the claimant's condition to determine whether the claimant suffered any permanent disability to his right knee due to the work-related injury. The claimant and his wife testified the claimant suffers from significant limitations to his activities due to the reduction in claimant's right knee. They testified the claimant suffers from severe swelling and chronic pain aggravated by activities and he spends most evenings sitting in a recliner, icing his knee, using a TENS unit, and taking over-the-counter medications. He testified he has limitations at work that also interfere with recreational and family activities.

On November 3, 2015, Dr. Volarich examined the claimant and reviewed his medical records. Referable to the January 27, 2015 injury, Dr. Volarich opined the claimant suffered an additional 30% permanent partial disability of the right knee due to the recurrent meniscal tear and irreversible aggravation of chondromalacia, which required arthroscopic partial medial meniscectomy, removal of loose body, chondroplasty of the patella, trochlear groove, medial femoral condyle and medial tibial plateau. The rating accounts for the injury's contribution to pain, loss of motion, crepitus, and swelling in the right lower extremity. See Dr. Volarich deposition, page 28.

Based on the weight of the evidence, the claimant suffered a 20% permanent partial disability to his right knee due to the 2015 work-related injury.

I certify that on 4-5-19

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.

By __________________________

Made by __________________________

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-01)

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