After arriving home, Employee's wife took Employee to the Family Medical Walk-in Clinic, where the staff took x-rays that suggested a right femoral neck fracture. An ambulance then took Employee from the clinic to the Cox emergency department. A subsequent MRI scan revealed a non-displaced fracture through the femoral neck intertrochanteric location, as well as severe arthritic changes, avascular necrosis, and a gluteal muscle tear and hematoma. The hospital held Employee overnight and discharged him to see Dr. David Hicks, an orthopedic surgeon.
Dr. Hicks first saw Employee on August 13, 2015. He recommended waiting upon surgery for approximately six to eight weeks to allow bony damage to heal. He recommended Employee remain non-weight bearing. When Employee returned to Dr. Hicks on September 3, 2015, the surgeon recommended a right hip arthroplasty within two weeks.
Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION
Employee: Frank Starks
Injury No.: 15-063148
The surgery was scheduled for September 23, 2015. Employee initially did not intend to claim workers' compensation, but was going to use his group health insurance to pay for the surgery. He then learned that his health insurance had been canceled. The hospital then canceled the surgery given that Employee had no means to pay for the treatment. The treatment had not yet been authorized through workers' compensation. In an October 8, 2015 letter to Employee, Dr. Hick's nurse wrote:
Dear FRANKIE STARKS
PT arrived to Dr. Hicks' office today for a pre-scheduled 2 week post-surgery (right hip) appointment. However, Mr. Starks' surgery that was scheduled for 09/23/15 was canceled due to injury being taken over by work comp. Because we do not yet have authorization we were unfortunately unable to see Mr. Starks today. Patient was advised to contact work comp representative, receive proper authorization and follow-up with our office at that time to schedule the proper appointment.
Thank you.
Elizabeth England, GPN
Nursing Staff for David Hicks, MD
On February 11, 2016, Employee saw Dr. Ted Lennard at Employer/Insurer's referral. Dr. Lennard diagnosed avascular necrosis in the bilateral hip joints, status post-right femoral head collapse, chronic severe right hip degenerative joint disease, a right non-displaced intertrochanteric hip fracture, and a gluteal maximus partial tear. Although Dr. Lennard stated that Employee's right hip problems could have resulted from radicular symptoms starting from the low back and extending into the right hip, he opined that the acute need for a right hip joint replacement flowed from the work accident. He stated the work accident was the prevailing factor in the onset of the hip fracture. He recommended the total hip arthroplasty, routine follow-up care, and physical therapy.
Employee went to the Cox emergency department via ambulance on February 26, 2016, due to progressive pain. He had repeat x-rays of the right hip and pelvis.
When Employee next saw Dr. Hicks for his pre-operative exam on March 24, 2016, the physician noted Claimant's frail state. Dr. Hicks observed that Employee was in his wheelchair, exhibited pain, was thin and frail, and his right leg was "considerably shorter" than the left. Dr. Hicks said Employee would have more trouble recovering from the arthroplasty due to being wheelchair bound for many months:
Mr. Starks says that he has finally gotten authorization to have his hip replaced. I had a long discussion with him regarding the post-operative course. I do think that he will have a little bit more trouble recovering from this than most because he has essentially been wheelchair confined for the last nine months and there is no doubt that he has developed significant atrophy around his hip and thigh.
I would like to check his liver function tests as Mr. Starks does have a history of chronic alcohol use although he says he has not had anything to drink for a number of months now.
(Ex. 3, p. 44).
Dr. Hicks performed a total right hip arthroplasty on April 11, 2016. Dr. Hicks discharged Employee with Eliquis, oxycodone, OxyContin, Docusate, and home medications. At a follow-up visit on April 26,
Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION
Employee: Frank Starks
Injury No.: 15-063148
2016, Employee specifically inquired about physical therapy. Dr. Hicks declined to order physical therapy, noting Employee's frail state.
On a May 24, 2016 visit, Dr. Hicks agreed that Employee would benefit from some reconditioning since "he is so frail," but he did not want a therapist performing a "lot of exercises" on Employee. On the May 24, 2016 visit, Dr. Hicks restricted Employee to seated work, but said he did not want him moving around in a garage or a shop-type environment. Employee was to return in six weeks.
Oddly, in a letter dated May 12, 2016, Janet Garrels offered Mr. Starks full-time work "within the restrictions for your effective 4-26-2016 per work status of Dr. Hicks." (Ex. B). Clearly there was no authorized return to work by Dr. Hicks in his April 26, 2016 medical record. Following the May 24, 2016 medical appointment, while Dr. Hicks indicated that Employee could perform some seated work, he specifically restricted Employee from performing any work in a garage or shop-type environment. Without question, Employee was in no physical position to perform the work offered from Employer.
On July 5, 2016, Dr. Hicks noted that Employee was doing really well. The leg lengths appeared to be equal. He was ambulating with a wheeled walker. Dr. Hicks agreed to refill his pain medication one last time. Employee thereafter had a setback. When he returned to Dr. Hicks on August 9, 2016, he complained of having pulled something while trying to swim. On examination, however, the prosthesis was stable. Dr. Hicks offered one more prescription of oxycodone and said he would see him again the following April. He informed Employee that his primary care physician should prescribe any needed medications.
On February 2, 2017, Employee again saw Dr. Hicks complaining of ongoing pain and a lump in the mid portion over the scar located over the greater trochanter. Dr. Hicks believed Employee exhibited a slightly antalgic gait when not using an assistive device. Employee was not happy with the care that he received from Dr. Hicks. Dr. Hicks thought Employee could have a detachment of the abductor tendon, but given Employee's displeasure with Dr. Hicks, the physician recommended that Employee see a different health care provider.
Dr. Boyd Crockett
Employer/Insurer next referred Employee to Dr. Boyd Crockett, who examined Employee on April 14, 2017. Dr. Crockett found Employee to have an antalgic gait. The lumbar spine revealed no pain with flexion or extension. There was pain with movement of the right hip with palpable lateral tenderness. Fortin's sign was negative with what Dr. Crockett called a normal bilateral upper and lower extremity exam. His diagnosis was status post-right hip arthroplasty, right hip pain, and antalgic gait. He rated the permanent disability at 40 percent of the 207-week level. He failed to address any restrictions.
Dr. Scott Wingerter
Employer/Insurer sought the opinion of Scott Wingerter, M.D., PhD, of Kansas City. He did not examine Employee until December 12, 2017, and then recommended an MRI. After receiving the MRI, he issued his report on March 22, 2018. Dr. Wingerter found that Employee was status post-right total hip arthroplasty with abductor tendinitis. He found no evidence of a hardware failure and had no need for surgery. He specifically recommended, however, physical therapy focused on abductor tendinitis treatment and pelvic stabilization strengthening. He concluded that his findings were "directly related to [Employee's] original accident on August 5, 2015 and the subsequent total hip arthroplasty." Despite a
Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION
Employee: Frank Starks
Injury No.: 15-063148
recommendation for physical therapy by Dr. Wingerter, Employee received no such treatment until four months later.
Dr. Jeff Woodward
Dr. Woodward first saw Employee on July 19, 2018, and directed the physical therapy. Employee attended 19 physical therapy sessions at Advantage Physical Therapy from July 24, 2018 to September 10, 2018. Employee missed no appointments, and there is no evidence that he gave less than full effort. The September 10, 2018 note of Advantage Physical Therapy, stated that Employee still could not walk with a normal gait without assistance. He could not walk without pain. He could not stand or walk up to 30 minutes without pain. Although the physical therapist had recommended four additional weeks of physical therapy to improve strength, range of motion, and improve the patient's symptoms and functional integrity, Dr. Woodward did not authorize the additional treatment. On September 12, 2018, Dr. Woodward released Employee from care and recorded that the power scooter and oral narcotic pain medication was not medically necessary. He deferred other opinions to Dr. Lennard.
Dr. Ted Lennard
As noted above, Dr. Ted Lennard was the examining physician who saw Employee on February 11, 2016, and reported that the accident was the prevailing factor causing the hip fracture and leading to the need of a hip joint replacement. He believed the hematoma was evidence of trauma and confirmed the gluteus maximus tear. He also examined Employee on November 9, 2016, and June 24, 2019, at the request of Employer/Insurer. Dr. Lennard is a specialist in physical medicine and rehabilitation. He is affiliated with Cox Neurosurgery. In addition to his practice, he has spent a portion of his professional time in the publication and editing of medical textbooks. His deposition was admitted into evidence as Exhibit A.
Dr. Lennard opined that the lump found on Employee's right hip was an abductor tear, which included the gluteus tendon. These tears can be part of the original injury or a complication following the joint replacement. It could also be scar tissue. Treatment can either include anti-inflammatory medication, injections, or letting the lump "scar down".
Dr. Lennard knew of no objective limitation given or provided Employee concerning his hips before the fall. Although Employee had preexisting bilateral avascular necrosis, there was no record of previous treatment to either hip before the fall. Rather, there was only a reference to hip pain during treatment for the low back. Dr. Lennard noted that avascular necrosis can be a long-standing asymptomatic condition and a traumatic event, such as Employee's fall at work, can trigger the need for medical treatment that otherwise would not have been necessary.
Dr. Lennard agreed that after the accident, but prior to the surgery, with the femur pressed in the hip socket, Employee would have had chronic pain and the inability to ambulate. Dr. Lennard said this led to a wasting of the muscle, loss of strength, and a delay in the prospect for effective rehabilitation. Dr. Lennard agreed that Employee was deconditioned because of his lack of activity and reliance on a wheelchair between the date of the accident and the hip surgery.
Dr. Lennard said following surgery he would have recommended progressive activity and lower extremity strengthening in order to eliminate the need for any type of assistive or mobility device. When Dr. Lennard saw Employee after surgery in 2016, Employee was ambulatory in the room, but was moving with a moderate limp. When Dr. Lennard last saw Employee in 2019, however, Employee could stand, "but was reluctant to -- to do much walking in the exam room. Had moderate pain with range of motion
Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION
Employee: Frank Starks
Injury No.: 15-063148
of the hip." (Ex. A, p. 17). Asked whether he would have continued Employee's physical therapy for four more weeks after September 10, 2018, Dr. Lennard replied, "Certainly would depend on factors of a patient's motivation and desire to continue and whether or not he is performing home exercises independently of the therapist time." (Ex. A, p. 45). Dr. Lennard indicated that "the decision to continue therapy is often made on the basis of the patient independently performing exercises along with attendant physical therapy appointments." (Ex. A, p. 46).4
Dr. Lennard rated Employee's permanent disability as 30 percent to the right hip at the 207-week level, with 20 percent of that amount being attributable to the work-related injury and the remaining 10 percent to his preexisting non-work-related degenerative changes and necrosis. Dr. Lennard also found that the employee would have a 10 to 15 percent permanent partial disability to the preexisting low back.
Dr. Lennard believed Employee could work, but only within the restrictions of no squatting or lifting in excess of 25 pounds. He provided no restrictions on sitting, standing, or walking. He strongly encouraged Employee to exercise daily, including walking, and participating in a progressive strength training program "in a very serious manner." (Ex. A, p. 56). He said Employee needed to progressively ambulate from assistive devices as he progressively walks. He advised that Employee should discontinue smoking and narcotics. He said the better practice medically is to wean the patient from narcotics "while adding either anti-inflammatories or anticonvulsants, antidepressants, types of medication, or reducing to a lesser-strength opiate medicine." (Ex. A, p. 55). He said Employee may want to consult his primary care physician for treatment of depression and anxiety.
Dr. Steven Charapata
Dr. Steven Charapata was the examining physician retained by Employee's counsel. He issued reports dated September 13, 2017 and October 10, 2018. Dr. Charapata is an interventional anesthesiologist who recently retired from active practice. He previously spent a portion of his professional time conducting clinical research trials to assess different pain treatment protocols. Those included medication, therapies, and interventional procedures. He now consults on litigation and workers' compensation claims.
He diagnosed the following conditions to result from the accident: the right trochanteric hip fracture, the femoral head collapse, the chronic right hip pain, the tear to the gluteus maximus, and the possible abductor avulsion to the right hip. When Dr. Charapata first examined Employee, he found him to have a permanent disability of 50 percent without treatment as a direct and prevailing result of the accident. He did not believe Employee had realized a good outcome from the hip joint replacement, and Employee had not had any treatment for either the gluteus maximus tear or addressing the possible abductor tendon avulsion. Dr. Charapata had recommended an MRI scan of the right hip, rehabilitation due to Employee's deconditioning from his lengthy wheelchair dependence, and injections. On his second examination, Dr. Charapata increased his permanency rating to 60 percent of the right hip, opining that Employee's condition had regressed due to the termination of a physical therapy program. Also in his report of October 10, 2018, Dr. Charapata opined that Employee was permanently and totally disabled.
Dr. Charapata testified that since Employee had been immobilized for nine months before surgery, it could potentially take him that long to complete a therapy and strengthening program after surgery. Dr. Charapata used the September 10, 2018, note of Advantage Therapy as a reference. He testified that the plan in that report was "pretty routine" with physical therapists to assess patients and ask for four to six
4 Employee's spouse testified at the hearing that Employee tried to comply with physical therapy by continuing the exercises at home. While he did not do well, he did not stop trying.