Sydney Durr v. Americare Systems, Inc. (Clark's Mountain Nursing Center)

Employee testified that on March 5, 2015, she injured her left knee while moving back out of a narrow space between a bed and a wall and quickly turned to exit the confined space on her way out of a resident's room. Employee twisted her left knee when she pivoted on her left foot to turn and exit the narrow space. She stated that her upper leg and upper body turned but her left shoe stuck to the floor like it was glued down and she felt the twist in her knee with immediate pain and swelling. She was wearing the non-skid shoes that she purchased at the recommendation of her employer. Employee stated that she did not wear these non-skid shoes except when she was working at the nursing home.

Employee testified that she did not notice anything on the floor and was not holding anything in her hands at the time she turned and twisted her left knee at work that night. Employee was asked if her vision was impaired that evening and although she did not believe her vision was affected, she did indicate that the resident's room was dark except for light from the hallway. She also acknowledged that there were no witnesses to her turning and twisting accident or her left knee injury that evening at work. Employee asked the nurse supervisor for an ambulance, but employer did not provide or authorize any treatment for the left knee injury she sustained at work that evening.

Employee was examined multiple times in regards to her 2015 injury by Dr. August Ritter III, an orthopedic physician. Dr. Ritter diagnosed employee with a left lateral patellofemoral dislocation. Dr. Ritter released employee at maximum medical improvement (MMI) on April 4, 2016.

Ms. Ashley Toelupe is employed as a medical records clerk at employer, and was a night shift charge nurse for employer in March 2015. Her duties at that time involved supervising other employees. Ms. Toelupe testified that she was working on the night of employee's 2015 injury, and was notified of the injury at that time. She stated that every night, a certified nurse aide will take the ice bin and fill it from the ice machine and pass out ice to the residents in the rooms. The bin is placed on a cart that is rolled down the halls. The cart stays in the hallway. This cart is shared between all sections of the building. A certified nurse aide is assigned to one section at a time and the facility is divided into multiple sections. One hall has ten to twelve rooms. Ms. Toelupe testified that there is no time limit for passing ice, but it is preferred that it be done within the first two hours of the shift. Ms. Toelupe did not see or notice anything unusual about the room, such as any item or substance on the floor.

At the time of employee's incident, the floors in the patient rooms were tile, and the hallways were carpeted. Ms. Toelupe testified that she heard a loud yell, and that she was 50 to 75 feet away from where the 2015 injury occurred and that she went down to help employee get up in the hallway and helped her to the nursing office. No one else was with employee.

Ms. Toelupe's further testified that employee indicated to her that she had turned too quickly, and her knee gave out causing her to fall. Ms. Toelupe testified that employee has not worked at the facility since her 2015 injury. She also confirmed that closed-toed, non-skid shoes are recommended to workers, so they do not slip and fall.

Employee testified that Exhibit 17 accurately reflected the round-trip mileage from employer to the places she traveled for treatment related to her 2015 injury. Employee was evaluated by Drs. Dwight Woiteshek and Mahesh Bagwe for her 2015 injury. Employee agreed with Dr. Bagwe's opinion that employee was 5\% PPD at the left knee.

On June 30, 2017, employee was examined by Dr. Woiteshek, an orthopedic physician. Dr. Woiteshek opined that the 2015 injury was the prevailing factor and cause of her traumatic transient patellar dislocation with a medial patellar prominent osteochondral avulsion fragment

with large knee effusion seen on the MRI scan taken March 18, 2015 with a medial retinacular tear seen on the MRI scan performed on February 2, 2016 and the resulting disability from that work injury. Dr. Woiteshek stated in his report that the treatment employee received was reasonable and necessary to help relieve the effects of the 2015 injury, including the surgery performed by Dr. Ritter. Dr. Woiteshek also opined that employee reached MMI when she was released by Dr. Ritter on April 4, 2016 and that she was unable to work due to her 2015 injury until April 4, 2016. Dr. Woiteshek rated employee's disability from the 2015 injury at 35\% PPD at her left knee.

On June 4, 2018, employee was examined by Dr. Bagwe, of whom diagnosed employee with a left knee patellar dislocation with tear of the medial retinaculum along with avulsion of a bony fragment. He opines the left knee findings as documented by MRI are consistent with a twisting injury causing the patellar subluxation as described to Dr. Ritter on April 16, 2015. Dr. Bagwe stated in his medical report that employee would have been totally disabled in the initial few days after her knee injury but after the initial pain and swelling subsided, she could have returned to sitting work and work with modified duties with no heavy lifting and no squatting until her left knee arthroscopy was performed. Dr. Bagwe rated employee's disability at 5\% PPD at the left knee from her 2015 injury.

Section 287.020.2 RSMo, ${ }^{1}$ provides, in relevant part:

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.

Section 287.020.3 RSMo provides, in relevant part:

(1) 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.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

"An injury will not be deemed to arise out of employment if it merely happened to occur while working but work was not a prevailing factor and the risk involved ... is one to which the worker

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[^0]: ${ }^{1}$ All statutory references are to the Revised Statutes of Missouri, as amended.

would have been exposed equally in normal non-employment life."2 "For an injury to be deemed to arise out of and in the course of the employment under section 287.020.3(2)(b), the claimant employee must show a causal connection between the injury at issue and the employee's work activity."3 "[A]n injury is compensable only when the claimant demonstrates the injury has arisen out of and in the course of employment."4

We reverse the ALJ's award in its entirety. Based on the ALJ's factual findings alone, we do not believe that employee's alleged 2015 injury arose out of her employment at employer. Employee's testimony, at the very least, indicates that she may have been careless in performing her job duties at the time of her alleged 2015 injury. Employee testified that she tried to complete her job quickly. Ms. Toelupe testified that there was no time limit for passing ice, but noted that it was preferred that it be done within the first two hours of an employee's shift. Ms. Toelupe further testified that closed toed, non-skid shoes were recommended for employee's job, but were not required. Twisting and turning does not appear to be a condition of employee's employment or for the performance of her job duties, and even if they were, employee, like every other human being, would have been exposed equally in normal nonemployment life to twisting and turning during normal daily activities. We do not see a causal connection between employee's work duties, and her alleged 2015 injury. Therefore, we reverse the ALJ's award and find that employee is entitled to no compensation from employer because her March 5, 2015 accident was not a compensable injury.

We reverse the award and decision of the ALJ. We conclude that employee did not suffer a compensable injury on March 5, 2015.

Since we find that employee did not suffer a compensable injury at employer on March 5, 2015, the other issues in the ALJ's award are moot.

The award and decision of Administrative Law Judge Maureen Byrne is attached solely for reference.

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[^0]: ${ }^{2}$ Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671, 674 (Mo. Banc 2009). In Miller, the employee "experienced a "popping" of his knee, followed by pain, while walking briskly at work." Id. at 672. Strictly construing $\S 287.020$, the Court in Miller determined that the employee's injury arose during the course of employment, but did not arise out of employment. Under $\S \S 287.020 .2,287.020 .3$ and 287.020 .10 , the court found that to be insufficient to find the injury to be compensable. Id. at 674 .

${ }^{3}$ Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 509-10 (Mo. Banc 2012). In Johme, the employee twisted her angle and fell after making coffee in the office kitchen at her employer. Citing to Miller, the court determined that the employee did not suffer a compensable injury, because there was "no evidence showed that she was not equally exposed to the cause of her injury-turning, twisting her ankle, or falling off her shoe-while in her workplace making coffee than she would have been when she was outside of her workplace in her 'normal nonemployment life." ${ }^{4}

{ }^{4}$ Annayeva v. SAB of the TSD of the City of St. Louis, No. SC98122 (Citing Miller, 287 S.W.3d 671, and Johme 366 S.W.3d 504). In Annayeva, the employee was a high school teacher. At some time during her walk into the high school, the employee slipped on the school's linoleum floor which caused her to fall forward and land on her hands and knees. Id. at 1. The court in Annayeva determined that the employee's injury was not compensable, because "[j]ust like the claimants in Miller and Johme, [the employee] failed to prove her injury arose out of and in the course of her employment because the hazard or risk involved was one [the employee] was equally exposed to in her normal, nonemployment life. Id. at 8 .

Employee: Sydney Durr

-5-

Given at Jefferson City, State of Missouri, this 16th day of June 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornéjo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I would affirm the ALJ's award finding that employee suffered a compensable injury on March 5, 2015 that arose out of her employment at employer, and that she was entitled to an award for her past medical expenses, temporary total disability, mileage reimbursement, and permanent disability.

I find employee to be a credible witness. Employee stated that on March 5, 2015, she injured her left knee while moving back out of a narrow space between the bed and the wall and quickly turning to exit the confined space on her way out of a resident's room. Employee twisted her left knee when she pivoted on her left foot to turn and exit the narrow space. Employee stated that her upper leg and upper body turned but her left shoe stuck to the floor like it was glued down and employee felt the twist in her knee, in addition to immediate pain and swelling. Employee's injury occurred while she was on employer's premises. Dr. Woiteshek also found that employee's March 5, 2015 accident was the prevailing factor in her left knee injury. Because I find that the testimony and evidence in this case support a finding that employee's 2015 injury arose out of her employment at employer, I believe that the other issues in this case should also be affirmed, for the reasons stated below:

- On the issues of employee's past medical expenses and mileage reimbursement, I believe that the ALJ's award should be affirmed. Employer was notified of employee's injury on the day it occurred, but refused to provide employee with an ambulance or any other medical treatment. Employee properly documented her past medical and mileage expenses in exhibits 6,7,8,10,14,15, and 17. All of employee's documented expenses appear to be related to her alleged 2015 injury. The ALJ's calculations for past medical expenses $(\ 22,129.11) and for mileage reimbursement $(\ 806.35) also appear to be correct, based upon the evidence presented in this case.

- There was nothing out of the ordinary with the ALJ's finding that employee was 15 % PPD at employee's left knee, based upon the medical expert testimony and evidence in this case.

- I also do not see anything out of the ordinary regarding the ALJ's finding that employee was entitled to TTD benefits from March 5, 2015 to May 26, 2015 and from February 25, 2016 to April 4, 2016, equaling 17.57 weeks $(\ 2,630.76) in TTD benefits. Dr. Ritter opined that employee was unable to work from March 5, 2015 until she reached MMI on April 4, 2016.

For these reasons, I find that the evidence supports the conclusion that employee's 2015 injury was the prevailing factor in causing her injury to her left knee, and that she is entitled to an award for her past medical expenses, temporary total disability, mileage reimbursement, and for her permanent disability. Because the majority of the Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls Member

Employee: Sydney A. Durr

Injury No. 15-013660

Dependents: N/A

Employer: Americare Systems, Inc./Clarks Mountain Nursing Center/ Americare at Clark's Mountain

Additional Party: N/A

Insurer: Safety National Casualty

Hearing Date: August 28, 2020

Checked by: $\mathrm{MB} / \mathrm{kg}$

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 5, 2015
5. State location where accident occurred or occupational disease contracted: Piedmont, Wayne 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

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was moving back out of the narrow space between the bed and the wall when she quickly turned to exit the confined space. Employee's upper leg turned but her left non-skid shoe stuck to the floor like it was glued down and caused her left knee to twist and give way.
3. Did accident or occupational disease cause death? No
4. Parts of body injured by accident or occupational disease: Left Knee
5. Nature and extent of any permanent disability: 15 % permanent partial disability of the left knee at the 160 level
6. Compensation paid to date for temporary total disability: None
7. Value necessary medical aid paid to date by employer-insurer: None
8. Value necessary medical aid not furnished by employer-insurer: $\ 22,129.11
9. Employee's average weekly wage: $\ 320.00
10. Weekly compensation rate: $\quad \ 149.73 for TTD and/or PTD

$\ 213.33 for PPD

1. Method wages computation: By agreement
2. Amount of compensation payable: See Findings
3. Second Injury Fund liability: N/A
4. Future requirements awarded: N/A

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Therese Schellhammer

On August 28, 2020, the employee, Sydney A. Durr,, appeared in person and with her attorney, Therese Schellhammer, for a hearing for a final award. The employer was represented at the hearing by its attorney, Mark Kornblum. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

Administrative notice was taken of the entire Workers' Compensation file in this case.

1. Covered Employer: On or about March 5, 2015, Americare Systems Inc./Americare at Clarks Mountain Nursing Center, LLC was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Safety National Casualty.
2. Covered Employee: On March 5, 2015, Sydney Durr was an employee of Americare Systems Inc./Americare at Clarks Mountain Nursing Center, LLC and was working under and subject to the provisions of the Workers' Compensation Act.
3. Notice: The employer had notice of the employee's accident.
4. Statute of Limitations: The employee's claim was filed within the time allowed by law.
5. Average Weekly Wage and Rate: The employee's average weekly wage was $\ 320.00. Her rate of compensation for temporary total disability and permanent total disability is $\ 149.73, and her rate of compensation for permanent partial disability benefits was $\ 213.33.
6. Medical Aid Furnished by Employer-Insurer: The employer-insurer paid $\ 0 in medical expenses.
7. Temporary Disability Paid by Employer-Insurer: The employer-insurer paid $\ 0 in temporary total disability expenses.
8. Pursuant to RSMo Section 287.140, Employee pursued treatment for her work injury.

1. Accident: On or about March 5, 2015 date, did the Employee sustained an accident arising out of and in the course of her employment?
2. Medical Causation: Whether Employee's injury was medically causally related to the accident of March 5, 2015?
3. Previously Incurred Medical Aid: Employee is making a claim for previously incurred medical aid in the total amount of $\ 22,129.11. Employer-Insurer dispute Employee's claim on the basis of authorization, necessity, reasonableness and causal relationship.
4. Claim for Mileage Reimbursement: Employee is making a claim for mileage under Section 287.140 RSMo in the total of $\ 806.35.
5. Temporary Total Disability: Employee is making a claim for temporary total disability benefits in the total amount of $\ 8,384.88 for the time period March 5, 2015 through April 4,2016 .

1. Permanent Partial Disability. Employee is making a claim for permanent partial disability.

The following exhibits were offered and admitted into evidence:

1. Report of Dr. Dwight Woiteshek (submitted pursuant to Section 287.210 .7 RSMo)
2. Report of Dr. Mahesh Bagwe (submitted pursuant to Section 287.210 .7 RSMo)
3. Advanced Orthopedic Specialists - Medical Records (4/16/15 to 6/25/15)
4. Advanced Orthopedic Specialists - Medical Records (4/16/15 to 4/4/16)
5. Advanced Orthopedic Specialists - Medical Records (10/19/15)
6. Advanced Orthopedic Specialists - Medical Bills (4/16/15 to 10/19/15)
7. Advanced Orthopedic Specialists - Medical Bills (1/27/16 to 4/4/16)
8. Physicians Alliance Surgery Center - Medical Records \& Bills (2/10/16 to 2/25/16)
9. Piedmont Physicians Associates - Medical Records (6/7/01 to 3/20/15)
10. Piedmont Physicians Associates - Medical Bills (3/6/15 to 3/20/15)
11. Poplar Bluff Regional Medical Center - Medical Records (3/18/15)
12. Poplar Bluff Regional Medical Center/The Parc - Medical Records (4/30/15)
13. Poplar Bluff Regional Medical Center/The Parc - Medical Records (5/1/15 to 5/22/15)
14. Poplar Bluff Regional Medical Center - Medical Bills (3/18/15 to 5/22/15)
15. Cape Radiology Group - Medical Bills (2/2/16)
16. Medical Bill Spreadsheet - By Provider and by Date of Service
17. Mileage Spreadsheet
18. Wage Statement
19. Attorney Contract

A. Deposition of Dr. Mahesh Bagwe

B. Images of Resident Room \# 1 and \#2

At the time of the hearing, Employee testified that she is 30 years of age and formerly employed by Americare Systems Inc./Clark Mountain Nursing Center from February 2015 until the date of her injury. She completed CNA training and Level 1 Med Tech training.

Employee testified that she had no physical limitations or disabilities attributable to her left knee prior to the work injury of March 5, 2015. Employee worked as a Certified Nurse Assistant on the night shift, working from 10 pm until 6 am . She provided assistance to residents of the

**Injury No. 15-013660**

nursing home with personal care, bathing, grooming, dressing, feeding and attending to incontinence issues.

As a part of her regular duties, Employee stated that during each of her work shifts she would place fresh water and ice in a container at the bedside of the nursing home residents to whom she was assigned. She testified that she tried to complete this job quickly, as the single ice cart was also used by the other nursing assistants for residents of the other halls in the facility. On cross-examination, Employee stated that she was rushed on that day because she had another set of rounds to complete after the water/ice containers were filled.

Employee testified that on the day of the accident she entered into this particular resident's room to get the resident's water/ice container which was located on an end table at the head of the resident's bed. The end table was on the side of the bed nearest the door to the room in a narrow space between the resident's bed and the wall. The space between the bed and the wall was tight—only about one foot in width. Employee moved between the wall and the bed, grabbed the container and returned to the ice cart situated in the hallway just outside the resident's room. After refilling the container with fresh ice and water, Employee again moved into the confined space between the bed and wall to return the refreshed container to its location on the bedside table near the head of the resident's bed.

Employee testified that she injured her left knee when she was moving back out of the narrow space between the bed and the wall when she quickly turned to exit the confined space on her way out of the resident's room. Employee twisted her left knee when she pivoted on her left foot to turn and exit the narrow space. She stated that her upper leg and upper body turned but her left shoe stuck to the floor like it was glued down and she felt the twist in her knee with immediate pain and swelling. She was wearing the non-skid shoes that she purchased at the recommendation of her employer. Employee stated that she did not wear these non-skid shoes except when she was working at the nursing home.

On cross-examination, Employee acknowledged that she did not notice anything on the floor and was not holding anything in her hands at the time she turned and twisted her left knee at work that night. Employee was asked if her vision was impaired that evening and although she did not believe her vision was affected, she did indicate that the resident's room was dark except for light from the hallway. She also acknowledged that there were no witnesses to her turning and twisting accident or her left knee injury that evening at work.

Employee explained that she did not reach for the water/ice container from the other side of the resident's bed because she would have had to reach over the sleeping resident and she did not want to accidentally spill water on the resident or scare him by reaching over him. She also clarified that she did not fall when she twisted her left knee but rather lowered herself to the floor because she could not stand on her left leg because of the severe pain in her knee. She would have called out for assistance from the resident's room but did not because he was sleeping.

Once she was on the floor, she scooted herself into the hallway. A co-worker helped her into a wheelchair and took her to the nurses' station where she reported her twisting accident and left

**Injury No. 15-013660**

Knee injury. Employee asked the nurse supervisor for an ambulance, but Employer did not provide or authorize any treatment for the left knee injury she sustained at work that evening.

She was seen the next day by her primary care provider, Rhonda, a nurse practitioner at Piedmont Physicians Associates. She obtained an x-ray of Employee's left knee and provided Employee with a Velcro leg brace, crutches and an ace bandage for the left knee work injury. The brace limited the movement of her left knee. She was instructed to be non-weight bearing on the left knee and to remain off work. Employee followed up a couple of times and eventually the nurse practitioner ordered an MRI. After reviewing the results of the MRI, Employee was referred to Dr. Ritter, an orthopedic physician.

Employee testified that she first saw Dr. Ritter in Cape Girardeau, Missouri in April 2015. At that time, Employee stated she was still non-weight bearing on her left leg and could not drive herself to that appointment. She stated that Dr. Ritter reviewed the MRI obtained on March 18, 2015 and found bone fragments in her left knee. He prescribed physical therapy, and after Employee completed the physical therapy, Dr. Ritter then recommended surgery for the left knee work injury.

Employee testified that surgery was scheduled in Cape Girardeau for the afternoon of June 25, 2015. She acknowledged that she was instructed not to eat or drink anything for twenty-four hours before her surgery. On the day of surgery, she and her family went to a park to pass the time until she needed to present for the surgery. It was a hot day and after being at the park with her children, she took a sip of water. When she was checking in at the hospital, she admitted to having a sip of water. When Dr. Ritter found out she had taken a sip of water he cancelled her knee surgery for that day. Employee was asked if she drank water on that day because she did not want the left knee surgery. She testified that was not correct even though that is what Dr. Ritter put in the medical records.

Employee testified that she thought Dr. Ritter was mad at her and she delayed in returning to see him because she was embarrassed and uncomfortable. She returned to see Dr. Ritter because her left knee was still painful and swollen and she knew she needed the surgery. There was no new cause for her continuing knee pain, and she had not suffered a further injury before Dr. Ritter performed the surgery on her left knee in February of 2016.

Following the left knee surgery, the pain decreased as did the swelling in the left knee. She stated that Dr. Ritter restricted her activities and work for about six weeks after the surgery. When Dr. Ritter released her from treatment, she still had a pinching pain in her left knee and a little bit of swelling. Dr. Ritter did not impose permanent restrictions on her as a result of her left knee work injury.

For much of the time between her work injury and release by Dr. Ritter, her left knee injury prevented her from being able to do housework, grocery shop or take care of her young children by herself. Fortunately, her mother was able to assist her with cooking, cleaning, shopping and putting the kids on the school bus. Employee stated that because of her work injury, she had difficulty with her own personal care like bathing and toileting. She was unable to run or drive a vehicle. Employee testified that she was unable to return to work until released by Dr. Ritter in

Employee: Sydney Durr

Injury No. 15-013660

2016 because she did not have any real strength in her left leg and she could not use it for lifting as a result of the left knee work injury.

The treatment she received from the medical providers was beneficial to her in that it provided some of the relief of her pain, swelling and limitations resulting from the left knee work injury. She stated that the treatment she received from the medical providers was all helpful to cure and relieve the effects of her left knee work injury.

Employee testified that Exhibits 6, 7, 8, 10, 14, and 15 are the medical bills which accurately reflect the charges she incurred for the medical services and treatment of her left knee work injury provided by Piedmont Physicians Associates, Poplar Bluff Regional Medical Center, The Parc, Advanced Orthopedic Associates and Dr. Ritter, Physicians Alliance Surgery Center, Cape Radiology Group and S&R Anesthesia Services.

At the time she received her medical treatment for her left knee work injury, Employee was covered by health insurance and that her health insurance may have paid some of the charges on the medical bills. However, she has no agreement with any of the physicians, healthcare providers or health insurance companies that her ultimate responsibility for the medical charges would be anything less than the full amount of the charges billed in the event the need for treatment for her left knee is determined to be the March 5, 2015 work injury. Employee further testified that if the medical bills reflect payments by "insurance" those payments would not have been made by the workers' compensation insurance company.

Employee testified that Exhibit 17 accurately reflects the round-trip mileage from Americare Systems Inc./Clarks Mountain Nursing Center in Piedmont, Missouri, her place of employment, to the places she traveled for treatment related to her left knee work injury. She is asking to be reimbursed for that medical mileage.

Employee was evaluated by two physicians as a result of her March 5, 2015 left knee work injury: Dr. Dwight Woiteshek and Dr. Mahesh Bagwe. She testified that both doctors performed a physical examination and questioned her about her work injury. She testified that she answered all their questions truthfully.

Employee testified that she agrees with Dr. Bagwe's expert medical opinion assessing permanent partial disability at 5% of the left knee.

Testimony of Bill Turner:

The administrator for Americare Systems Inc./Clark Mountain Nursing Center, Bill Turner, appeared and testified at the hearing as a witness for Employer-Insurer. Mr. Turner testified that he was employed by Americare Systems Inc./Clark Mountain Nursing Center at the time of Employee's work injury. He reviews nurses' reports, attends team meetings, and discusses issues with residents and staffing issues. He visits residents and does daily reports. He talks to family members of residents. He is familiar with the duties of the certified nursing assistants.

Mr. Turner testified that Exhibit B photos 1 and 2 show what a typical room looks like most of the time. He testified that some of the residents have the furniture arranged differently in some

**Injury No. 15-013660**

Of their rooms, but safety issues must be considered such that the room cannot be cluttered up. He testified that sometimes there might be a chair in the corner and there may be stuff on the walls or on the chest of drawers. He said the head housekeeper is vigilant if things are out of place and takes care of it on an ongoing basis.

Mr. Turner testified he was not present at the facility when this work injury occurred. He testified he was made aware of this incident because of the report filed by the charge nurse. He testified that this injury was investigated by the charge nurse on the floor.

Ashley Toelupe was permitted to testify as witness for Employer-Insurer by telephone. Ms. Toelupe testified that she was employed by Americare Systems Inc./Clark Mountain Nursing Center at the time of the work injury. She is currently employed as a medical records clerk and in March 2015 her position was as a night shift charge nurse. Her duties at that time involved supervising other employees. Ms. Toelupe testified that she was working on the night of the work injury.

She stated that the certified nurse aide will take the ice bin and fill it from the ice machine and pass out ice to the residents in the rooms. The bin is placed on a cart that is rolled down the halls. The cart stays in the hallway. This cart is shared between all sections of the building. This is done every night. A certified nurse aide is assigned to one section at a time and the facility is divided into multiple sections. One hall has ten to twelve rooms. Ms. Toelupe testified that there is not a time limit for passing ice, but it is preferred that it be done within the first two hours of the shift.

Toelupe did not see or notice anything unusual about the room, such as any item or substance on the floor. At the time of employee's incident, the floors in the patient rooms were tile, and the hallways were carpeted.

Ms. Toelupe testified that she heard a loud yell, like from pain. Ms. Toelupe stated that she was 50 to 75 feet away from where the work injury occurred and that she went down to help Employee get up in the hallway and helped her to the nursing office. No one else was with Employee. It was Ms. Toelupe's testimony that Employee indicated to her that she had turned too quickly, and her knee gave out causing her to fall. Ms. Toelupe stated that she had Employee elevate her leg while someone else put an ice pack on the leg.

Ms. Toelupe testified that she did not remember specifically what Employee's knee/leg looked like that evening. She does not remember whether she assessed it for bruising or swelling. She stated that she probably observed Employee's knee and probably would have seen it with the pant leg pulled up. She suspected the ice pack was requested because of swelling and pain in the left knee.

Ms. Toelupe testified that Employee has not worked at the facility since the work injury. She also confirmed that closed-toed, non-skid shoes are recommended to workers, so they do not slip and fall.

Employee was seen by her primary care provider, a nurse practitioner, on the day after her work injury. She reported twisting her knee at work and complained of knee pain and swelling. Xrays were taken and Employee was diagnosed with a knee strain. Her knee was wrapped in the office and she as instructed in the RICE (rest, ice, compression, elevation) method of care for the next several days. She was prescribed crutches and directed to take 800 mg Ibuprofen every six hours with a follow up in one week or as needed. No work until seen at next visit.

Employee returned to the clinic with minimal improvement. Examination revealed exquisite tenderness of the left knee with localized swelling and bruising. She was instructed to continue using the ace wrap and Ibuprofen and an MRI was ordered. No work until MRI results obtained.

On March 18, 2015, an MRI of the left knee was obtained. The radiologist report states findings as follows:

1. Transient patellar dislocation with medial patella prominent osteochrondal avulsion fragment displaced into the suprapatellar bursa, mild lateral patellar subluxation, lateral femoral condyle bone large contusion, medial retinaculum mild sprain, distal quadriceps mild tendinopathy, proximal patella tendinopathy/small intrasubstance tear and Hoffa's fat pad edema/inflammation.
2. Medial retinaculum mild sprains
3. Vastus medialis muscle strain
4. Large knee effusion
5. Very small Baker's cyst
6. No meniscal tear

Employee returned for a follow-up visit and her MRI was reviewed. She was diagnosed with left patellar dislocation and referred to orthopedics.

Employee was examined by Dr. August Ritter III. His treatment note stated that Employee was standing with her left foot planted and turned suddenly to her right with immediate onset of pain in the left knee (Exh. 3, p. 3). Dr. Ritter diagnosed a left lateral patellofemoral dislocation. He prescribed physical therapy and continued the use of her patellofemoral brace. Employee was directed to follow up in three weeks (Exh. 3, p. 3) Dr. Ritter stated that Employee was totally incapacitated at that time and would be reevaluated on $5 / 7 / 15$.

Employee attended physical therapy to strengthen her left knee from April 30, 2015 through May 22, 2015 .

Employee followed up with Dr. Ritter. She complained of lateral parapatellar pain with certain activities. Continued physical therapy was recommended.

Employee was seen by Dr. Ritter with continued complaints of left knee pain and difficulty rising from a seated position. Additional x-rays were taken and reviewed by Dr. Ritter. Dr. Ritter's diagnosis was "persistently symptomatic patellofemoral instability left knee." A left knee arthroscopic lateral release surgery was planned for June 25, 2015.

Because she drank the sip of water, her surgery was cancelled.

Employee returned to Dr. Ritter. She reported almost no discomfort in her knee and pain only when she overexerted herself.

Employee was seen again by Dr. Ritter. She complained of left knee pain radiating to the dorsum of the left foot. A new MRI was ordered and reviewed by Dr. Ritter. The MRI confirmed a medial retinacular tear with chondrosis over the chondral surface of the patella and multiple intra-articular loose bodies.

On February 25, 2016, Dr. Ritter performed a left knee arthroscopic lateral release and removal of intraarticular loose bodies.

Employee was released at MMI by Dr. Ritter on April 4, 2016.

Employee was evaluated by two medical professionals - Dr. Mahesh Bagwe at the request of the Employer-Insurer and Dr. Dwight Woiteshek at the request of the Employee. The complete medical report of Dr. Woiteshek and the complete medical report and deposition testimony of Dr. Mahesh Bagwe have been admitted into evidence at this hearing.

On June 30, 2017, Employee was examined by Dr. Dwight Woiteshek, an orthopedic physician. Employee gave a history of her left knee work injury that occurred on March 5, 2015 while working for Americare Systems Inc./Clarks Mountain Nursing Center. Employee testified that when she saw Dr. Woiteshek she answered the doctor's questions truthfully.

**Injury No. 15-013660**

In his report, Dr. Woiteshek recounted the event on March 5, 2015 wherein Employee was performing rounds at work when she turned quickly and awkwardly in a patient's room and felt pain and discomfort in her left knee area. It was Dr. Woiteshek's expert medical opinion that Employee had a work-related injury on March 5, 2015 that was the prevailing factor in the cause of her traumatic transient patellar dislocation with a medial patellar prominent osteochondral avulsion fragment with large knee effusion seen on the MRI scan taken March 18, 2015 with a medial retinacular tear seen on the MRI scan performed on February 2, 2016 and the resulting disability from that work injury.

Dr. Woiteshek's complete medical report contains a summary of the medical treatment received by Employee consistent with the exhibits in evidence. Dr. Woiteshek stated in his report that the treatment which Employee received was reasonable and necessary to help relieve the effects of the work-related injury which occurred on March 5, 2015, including the surgery performed by Dr. Ritter.

It was Dr. Woiteshek's opinion that Employee reached maximum medical improvement when she was released by Dr. Ritter on April 4, 2016 and that she was unable to work due to her condition from her work-related injury on March 5, 2015 until she was released by Dr. Ritter on April 4, 2016. Dr. Woiteshek rated Employee's disability resulting from the March 5, 2015 work injury at 35% permanent partial disability of the left knee (160 level).

On June 4, 2018, Employee was examined by Dr. Bagwe. Employee described the work injury that occurred on March 5, 2015 while working as a CNA for Americare Systems Inc./Clarks Mountain Nursing Center. Dr. Bagwe recounts the event on March 5, 2015 where Employee was maneuvering in a narrow space between a bed, a wall and a wheelchair. With her left foot planted, she turned and twisted her left knee and felt it give out. She immediately had difficulty walking and needed help to get up into a wheelchair. Dr. Bagwe's medical report contains a summary of the medical treatment received by Employee consistent with the exhibits in evidence.

Dr. Bagwe diagnoses a left knee patellar dislocation with tear of the medial retinaculum along with avulsion of a bony fragment. He opines the left knee findings as documented by MRI are consistent with a twisting injury causing the patellar subluxation as described to Dr. Ritter on April 16, 2015. In his deposition, Dr. Bagwe testified that Employee tore some of the medial ligaments of her knee which hold the kneecap centralized and which pulled off little pieces of bone. He states this was an acute injury as there was still bruising and inflammation around the sites on the first MRI. Dr. Bagwe opined that the physical therapy, MRIs and left knee arthroscopic surgery were reasonable and necessary to treat and relieve the effects of her injury. Dr. Bagwe stated in his medical report that Employee would have been totally disabled in the initial few days after her knee injury but after the initial pain and swelling subsided, she could have returned to sitting work and work with modified duties with no heavy lifting and no squatting until her left knee arthroscopy was performed. In his deposition, Dr. Bagwe states that following the ligamentous injury she would have had significant pain and swelling for the first few weeks which would have significantly limited her ability to work. And then, after she was

improved, she could have slowly increased her activity level. But then once again, once she had surgery that also temporarily keeps you from doing physical activities until the surgical healing is completed.

Dr. Bagwe rated Employee's disability as a result of the March 5, 2015 work injury as 5\% permanent partial disability of the left knee ( 160 level). He further stated her disability would not have been any different if she would have had surgery earlier or later.

A determination of these issues is guided by the following statutes governing workers' compensation in Missouri.

"Accident" shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. Section 287.020.2 RSMo.

"Injury" under the law is an injury which has arisen out of and in the course of employment and is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Section 287.020.3(1) RSMo.

An "injury" shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) The injury does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. Section 287.020.3(2) RSMo.

At the hearing Employee testified that prior to her employment with the employer, she had no physical disability or limitations from any injury or condition involving her left lower extremity.

She testified that as a part of her regular duties and during each of her work shifts, she would place fresh water and ice in a container at the bedside of the nursing home residents to whom she was assigned. She testified that she tried to complete this job quickly, as the single cart was also used by the other nursing assistants for residents of the other halls in the facility. She specifically stated that on the day of her injury she was rushed because she had another set of rounds to complete after the water/ice containers were filled.

Employee testified that on the day of the accident she entered into this particular resident's room to get the resident's water/ice container which was located on an end table at the head of the resident's bed. The end table was on the side of the bed in a narrow space between the resident's bed and the wall. The space between the bed and the wall was tight - only about one foot in width. Employee moved into the space between the wall and the bed, grabbed the container and returned to the ice cart situated in the hallway just outside the resident's room. After refilling the container with fresh ice and water, Employee again moved into the confined space between the bed and the wall to return the refreshed container to its location on the bedside table near the head of the resident's bed.

Employee testified that she was getting back out of the narrow space between the bed and the wall when she quickly turned to exit the confined space on her way out of the resident's room. Employee twisted her left knee when she pivoted on her left foot to turn and exit the narrow space. She stated that her upper leg and upper body turned but her left shoe stuck to the floor like it was glued down and she felt the twist in her knee with immediate pain and swelling. She was wearing the non-skid shoes she purchased at the recommendation of her employer. Employee stated that she did not wear these non-skid shoes except when she was working at the nursing home.

In Wilkins v. Piramal Glass USA, Inc., 540 SW3d. 891(Mo. App. E.D. 2018), the claimant was in an awkward position at the time of his injury. He was not lifting, pulling, pushing or carrying any object at the time of the injury. The Commission's finding that the risk source of the injury came from the action of rising from an awkward squatting position upon a catwalk was affirmed by the Court. The Court noted that Dr. Burns who examined the claimant at the request of the Employer opined that the source of the claimant's injury was related to the claimant getting up from a squatting position, and that the claimant had been in an awkward position and he had a muscular strain phenomenon with that event.

In Pope v. Gateway to West Harley Davidson, 404 SW3d. 315 (Mo. App. E.D. 2012), the Court affirmed the Commission's award of benefits when the claimant fell down stairs carrying a motorcycle helmet he was required to wear by his employer. The Court reasoned that although the claimant wore motorcycle helmets and used stairs in his normal nonemployment life, there was no substantial evidence in the record to support that the claimant normally carried his helmet while descending stairs outside of work. The evidence demonstrated that the claimant was injured because he was at work performing his required activities.

In McDowell v. St. Luke's Hospital of Kansas City, 572 SW3d. 127 (Mo. App. W.D. 2019), the employer asserted that there was no causal connection between the employee's injury and her work. In that case, the employee was pushing a cart which got caught in a congested doorway causing the employee to fall. The employer did not contest that the fall was the prevailing factor causing the employee's wrist injury, but instead employer stated that because the employee's use of the cart was not work related, employee was merely injured while at work, rather than because of her work. The Court held that the proper inquiry is whether the injury is deemed to arise out of employment - whether the injury results from a hazard or risk to which the employee would not be equally exposed in normal nonemployment life. The focus should be whether the employee's injury had a causal connection to her work activity or some condition of

her employment. The Court found that pushing the cart through a congested doorway was the risk that caused the work injury and that risk was the causal connection between the injury and the employee's work.

In Stricker v. Children's Mercy Hospital, 304 SW3d. 189 (Mo. App. W.D. 2009), the Court affirmed an award of compensation where the employee fell when dress code compliant shoes were deemed the risk source of the employee's injury. In this case using strict interpretation of the current version of section 287.020.3(2)(b), the Court found no legal basis to support the employer's argument that the employee was walking when she fell and the walking is not work related. The employer contented that the employee "just fell" absent any defect in the employer's parking lot. Rather, the Court held that the employee's shoes, which were work related, caused the accident. The shoes worn by the employee were work shoes, based upon the employee's testimony and that of her supervisor. The Court held that the fall was not unexplained nor "idiopathic" but was caused by the work shoes which were a condition of her employment. Thus, the injury came from a hazard or risk related to the work - wearing her work shoes. The Court accepted the testimony that the employee did not wear the work shoes outside of her employment.

In this case, Employer-Insurer have denied that Employee sustained an accident on March 5, 2015 arising out of and in the course of her employment with the employer.

Employee's testimony was that while performing her work during a scheduled shift for Employer on March 5, 2015, she injured her left knee. Employee testified that she was moving back out of the narrow space between the bed and the wall when she quickly turned pivoting on her left foot to exit the narrow space. She stated that her upper leg and upper body turned but her left shoe stuck to the floor like it was glued down and she felt the twist in her knee with immediate pain and swelling.

Employee testified she was wearing non-skid shoes at the time of her injury and that this type of shoe was recommended to be worn in her employment with the employer. She testified as did Employer's witness, Ms. Toelupe, that the non-skid shoe was recommended by Employer to prevent slipping on the job. Employee indicated that she did not wear these non-skid shoes outside of work. She only wore the non-skid shoes when she was working at the nursing home.

Employee's workplace setting (traversing a narrow space while wearing non-skid shoes) and the work activity being performed (hurriedly passing out ice) caused Employee to quickly turn and twist her left knee. The cause of Employee's injury was predicated on the risk inherent to the Employer's workplace - a narrow space to navigate between the resident's bed and the wall approximately one foot in width together with her wearing of the non-skid shoes.

Based on all of the evidence presented, including Employee's credible testimony, I find that on March 5, 2015, the Employee sustained an accident. Employee sustained 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.

Employee: Sydney Durr

Injury No. 15-013660

Employer-Insurer have also denied that Employee's injury to her left knee was medically causally related to the work accident of March 5, 2015.

Employee's testimony and her medical records in evidence document the work-related injury she sustained to her left knee on March 5, 2015. Both Dr. Woiteshek, the medical expert who examined Employee at her attorney's request, and Dr. Bagwe, a medical expert who examined Employee at Employer's request, stated their medical opinions that Employee suffered a traumatic patellar dislocation with a tear of the medial retinaculum along with avulsion fragments as a result of the work accident.

Dr. Bagwe recounted in his deposition that Employee "was maneuvering in a ...narrow space between a wall, a bed and a wheelchair...[S]he had to kind of turn and twist through that space, and she felt her left knee buckle and give out". Dr. Bagwe noted that the left knee injury and physical findings were consistent with the injury that was described to Dr. Ritter by Employee.

Also, Dr. Woiteshek noted that Employee "was performing rounds at work when she turned quickly and awkwardly in a patient's room. Suddenly, she felt pain and discomfort in her left knee area". Dr. Woiteshek opined that this work injury by accident on March 5, 2015 was the prevailing factor in the cause of her traumatic patellar dislocation with a medial patellar prominent osteochondral avulsion fragment with a large knee effusion seen on the MRI scan taken on March 18, 2015 with a medial retinacular tear seen on the MRI scan taken February 2, 2016. Dr. Woiteshek stated in his report that the work-related injury of March 5, 2015 was the prevailing factor in the cause of the disability to the left knee and the subsequent need for the treatment she received for the left knee injury.

The work activity described by Employee to each of her medical providers and both evaluating medical experts, was the risk which exposed her to the hazard of twisting and injuring her left knee. This risk is unrelated to any exposure outside of her employment in normal nonemployment life. I find that the injury to Employee's left knee did not come from a hazard or risk unrelated to her employment to which she would have been equally exposed outside of and unrelated to the employment in her normal nonemployment life.

I find there is a sufficient causal nexus between Employee's work activity and her resulting left knee injury. Passing out ice required Employee to move about in a tight, narrow space between the resident's bed and the wall to deliver fresh water and ice to his bedside table. Wearing the recommended non-skid shoes while navigating the tight, narrow space to deliver ice to the bedside and quickly turning to exit the confined space when her left non-skid shoe stuck to the floor caused the resulting twisting injury to her left knee. I find that the work accident of March 5, 2015 was the prevailing factor in causing Employee's left knee injury.

I find that the work accident and resulting injury of March 5, 2015 to Employee's left knee arose out of and in the course of Employee's employment with the employer and the March 5, 2015 accident was the prevailing factor causing both Employee's medical condition and disability to her left knee.

15

The Missouri workers' compensation law was created to "provide a simple and nontechnical method of compensation for injuries sustained by employees through accidents arising out of and in the course of employment and to place the burden of such losses on industry." Bethel v. Sunlight Janitor Serv., 551 S.W.2d 616, 618 (Mo. banc 1977). This purpose is effectuated in part by requiring the employer "to provide medical care to the injured employee for the treatment of his or her injury or occupational disease." Farmer-Cummings v. Future Foam, Inc., 44 S.W.3d 830, 836 (Mo. App. W.D. 2001).

Under Section 287.140.1 RSMo:

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 right to medical aid is a mandatory component of the compensation due an injured worker. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 888 (Mo. App. S.D. 2001).

Generally, under Section 287.140.10 RSMo, the employer is given the right to select Employee's authorized treating physician. The employer, however, may waive the right to select the treating physician by failing or neglecting to provide necessary medical aid. Herring v. Yellow Freight System, Inc., 914 S.W.2d 816, 822 (Mo. App. W.D. 1995) (citing Emert v. Ford Motor Co., 863 S.W.2d 629 (Mo. App. E.D. 1993) and Shores v. General Motors Corp., 842 S.W.2d 929 (Mo. App. E.D. 1992)). If the employer is on notice that the employee needs treatment and the employer fails or refuses to provide it, the employee may select her own provider and hold the employer liable for the costs thereof. Martin v. Town and Country Supermarket, 220 S.W.3d. 836, 844 (Mo. App. S.D. 2007).

In this case, Employer-Insurer failed to provide medical treatment to Employee after her March 5, 2015 work injury. Employee testified that on March 5, 2015, she reported the injury to her supervisor. Ms. Toelupe, who was Employee's nurse supervisor, was at work on the evening of the work injury and helped Employee to the nurse station. Ms. Toelupe testified that she was aware of Employee's injury on that night. Mr. Turner, the administrator for Employer's facility, testified that he was made aware of the work injury. Employee testified that although she asked for an ambulance, no treatment was ever authorized or provide by Employer for this work injury.

Employee did not seek medical treatment until after she notified Employer-Insurer of her need for medical treatment and after Employer-Insurer failed to provide Employee with reasonable and necessary medical treatment. Upon this failure to provide medical treatment by EmployerInsurer, Employee was permitted to select her own health care providers and the EmployerInsurer is still otherwise obligated. Schuster v. State Div. of Employment Sec., 972 S.W.2d. 377 (Mo. App. ED 1998).

After Employer declined to provide medical treatment for the work injury, Employee sought treatment on her own. The medical treatment Employee sought from Piedmont Physicians Associates, Dr. Ritter/Advanced Orthopedic Specialists, Poplar Bluff Regional Medical Center, The Parc, Cape Radiology Group, Physicians Alliance Surgery Center, and S&R Anesthesia Services, Inc. was related to and the product of her work-related accident and injuries to her left knee sustained on March 5, 2015.

The evidence documents that Employee incurred medical bills as a result of the work injury of March 5, 2015 that have not been paid or reimbursed by Employer-Insurer. The medical bills incurred by Employee and the associated medical treatment records have been admitted into evidence at the final hearing. Employee testified at trial that the treatment provided and prescribed by Piedmont Physicians Associates, Dr. Ritter/Advanced Orthopedic Specialists, Poplar Bluff Regional Medical Center, The Parc, Cape Radiology Group, Physicians Alliance Surgery Center, and S&R Anesthesia Services, Inc. resulted from the work injury sustained on March 5, 2015 to her left knee. Employee testified that the medical bills of those providers result from the visits for medical treatment related to and the product of her work-related accident and injuries. When the itemized charges for the medical services are compared with the corresponding treatment records, a sufficient factual basis is established to justify an award of compensation to Employee for the payment of these medical expenses which total $22,129.11. *Martin v. Mid America Farm Lines, Inc.*, 769 S.W.2d. 105 (Mo. banc. 1989).

The medical expenses for which Employee is seeking reimbursement are as follows:

Dr. Woiteshek and Dr. Bagwe both support a finding that the medical treatment obtained by Employee for her March 5, 2015 work injury to her left knee was reasonable and necessary to cure and relieve her from the effects of that work injury. Employee has presented sufficient evidence to support an award of previously incurred medical expenses.

Employer-Insurer also disputed Employee's claim for previously incurred medical aid on the basis of authorization. I find that Employer-Insurer failed to provide Employee with reasonable and necessary medical aid following her March 5, 2015 work accident and resulting left knee injury. I find that as a result of this denial, Employer-Insurer waived the right to select Employee's treating medical providers. Employee, therefore, sought the necessary treatment on her own.

Employee: Sydney Durr

Injury No. 15-013660

I find that the medical treatment obtained by Employee from Piedmont Physicians Associates (Wayne County Medical Center), Poplar Bluff Regional Medical Center, The Parc, Advanced Orthopedic Specialists, Cape Radiology Group, Physicians Alliance Surgery Center and S&R Anesthesia Services was reasonable and necessary to cure and relieve Employee from the effects of her March 5, 2015 work accident and resulting injury.

I find the Employer-Insurer responsible for the payment of $22,129.11 to Employee for reimbursement of medical expenses previously incurred for necessary treatment reasonably required to cure and relieve the effects of Employee's March 5, 2015 work injury.

Employer-Insurer is ordered to pay Employee the sum of $22,129.11 for reimbursement of previously incurred medical aid.

Issue 4. Mileage: Employee is making a claim for mileage under Section 287.140 RSMo in the total of $806.35.

Section 287.140(1) RSMo. provides for other compensation paid to the employee:

When an employee is required to submit to medical examinations or necessary medical treatment at a place outside of the local or metropolitan area from the employee's principal place of employment, the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses.

Employee incurred expenses related to travel for medical treatment of her work injury that have not been reimbursed. Employee has requested an order requiring Employer-Insurer to reimburse Employee's mileage when seeking medical treatment of her work-related injuries. Employee prepared an itemized list of her trips for medical travel related to her work injuries. That itemized list was admitted into evidence as Exhibit 17. The associated medical treatment records have been admitted into evidence at this hearing.

Employee testified that the treatment corresponding to each date of travel identified in Exhibit 17 resulted from the injuries she sustained at work on March 5, 2015 and that the amounts requested for travel reimbursement result from those visits for necessary medical treatment related to and the product of her work injuries. When the specifics for each trip are compared with the corresponding treatment records, a sufficient factual basis is established to justify an award of compensation to Employee for reimbursement of her medical travel expenses.

Employer has denied responsibility for this medical travel reimbursement based upon lack of authorization. This argument fails. Failure to authorize reasonable and necessary medical treatment precludes a successful defense of "no authorization".

The employer will be liable for medical expenses incurred by the employee when the employer has unsuccessfully denied compensability of the claim. Denial of compensability is tantamount to a denial of liability for necessary and reasonable medical treatment. An Award can be entered for medical expenses of an employee through the selection of her own medical provider. Beatty

18

v. Chandeysson Elec. Co. 190 S.W.2d. 648 (Mo. App. E.D. 1945). At trial, Employer denied compensability of Employee's injuries from March 5, 2015 through the date of last treatment.

The evidence clearly reveals that Employee did not seek the services of Piedmont Physicians Associates (Wayne County Medical Center), Poplar Bluff Regional Medical Center, Advanced Orthopedic Specialists, Cape Radiology Group, Physicians Alliance Surgery Center and S\&R Anesthesia Services until after Employer refused or denied Employee medical treatment for the work injury. Upon this refusal or denial by Employer, Employee was permitted to select a health care provider and the Employer-Insurer is still otherwise obligated. Schuster, 972 S.W.2d. at 337 .

I find that the medical treatment corresponding to each date of travel identified in Exhibit 17 was reasonable and necessary and resulted from the injuries Employee sustained at work on March 5, 2015 and that Employee is entitled to an award against Employer-Insurer for her medical miles traveled seeking necessary medical treatment related to and the product of her work injuries.

I find that Employer -Insurer is responsible for and is directed to pay to Employee the sum of $\ 806.35 as reimbursement for Employee's medical miles traveled as identified in Exhibit 17.

Employee is requesting an award for temporary total disability benefits from March 5, 2015 through April 4, 2016.

Employee testified that following the work injury to her left knee the doctor at the clinic in Piedmont told her not to work. The medical record of treatment from Piedmont Physician Associates documents that when seen on March 6, 2015 the medical provider stated that Employee should be off work for one week. When seen on March 11, 2015, that same provider states that Employee should perform no work until MRI results are obtained. Employee testified she did not return to work as she was not able to lift up on anyone as required in her job and she would not have the strength to do the job with just use of one leg.

The medical record of Dr. Ritter, the treating orthopedic surgeon, dated April 16, 2015, stated Employee's work status as "totally incapacitated" at this time. He stated further that she will be off work at the present but can return to work as soon as her comfort and strength are adequate. On May 26, 2015, Dr. Ritter examined Employee and noted she still has symptoms of pain with certain activities. He reported that she has a good gait without assistive device. On June 17, 2015, Dr. Ritter found that Employee is being treated with physical therapy, patellofemoral bracing and activity modification and has continuing episodes of sensation of instability. He noted upon examination that she had some difficulty coming from sitting to standing. His assessment was persistent patellofemoral instability of the left knee. Surgery was discussed and scheduled. When seen on October 19, 2015, Dr. Ritter reported that Employee said her knee bothered her when she overexerted a great deal. Dr. Ritter noted that she will continue activity as tolerated and will follow up as needed. In January 2016 Employee returned to see Dr. Ritter. Dr. Ritter found upon examination that Employee had hypersensitivity at the anterolateral joint line and had continued patellofemoral crepitus with range of motion. She was nontender with

Employee: Sydney Durr

Injury No. 15-013660

function against resistance and the knee was without erythema, warmth, fluctuance, or joint effusion. An MRI was obtained on February 2, 2016 and the radiologist's impression was:

small left knee effusion. 12 mm loose bodies. One within the small posterior joint extension/popliteal cyst. Another along the popliteus tendon sheath. Mild popliteus muscle strain. 14 mm filling defect along the lateral patellar recess of the joint line. This may reflect loose body as well and/or nodular synovitis. Adjacent Hoffitis. Patella seated. Chronic strain/partial tearing of the medial patellar retinaculum/medial patellofemoral ligament along the patellar attachment. Large 19 mm area of residual chondrosis with partial thickness cartilage loss as well as chondral flap over the median ridge (Exh.4, p. 5-6).

Dr. Ritter noted on February 10, 2016 that Employee suffers from persistent instability of the left patellofemoral joint. She has worsening of her symptoms since early January 2016. She has no new injury or initiating event. Surgery was performed on February 25, 2016 which involved a left knee arthroscopic lateral release and removal of intraarticular loose bodies. The postoperative diagnosis was intraarticular loose bodies and patellofemoral instability, left knee. Employee followed up postoperatively with Dr. Ritter and was released from care on April 4, 2016. On that date she reported that she was back to most of her activity without restriction, just occasional soreness if she overdoes her activity. She was using occasional Aleve for pain.

In his deposition, Dr. Bagwe stated that following the ligamentous injury Employee would have had significant pain and swelling for the first few weeks which would have significantly limited her ability to work. He stated that after she was improved, she could have slowly increased her activity level. He stated that once she had surgery, she would be temporarily kept from doing physical activities until the surgical healing is completed. Dr. Bagwe stated in his medical report that after the initial pain and swelling subsided, Employee could have returned to sitting work and work with modified duties with no heavy lifting and no squatting until her left knee arthroscopy was performed.

Dr. Woiteshek stated in his complete medical report dated June 30, 2017 that Employee was unable to work due to the work-related knee injury from the date of injury on March 5, 2015 until released by Dr. Ritter at MMI on April 4, 2016.

Although Employee was not employable in the open labor market during the time period of March 5, 2015 through April 4, 2016, because of the injury she sustained at work, it is undisputed that employee was unable to undergo surgery on June 25, 2015, due to her not following pre-surgery instructions, and her act of drinking water immediately before appearing for surgery. Therefore, Employee may only recover temporary total disability benefits during the periods from March 5, 2015 to May 26, 2015 and from February 25, 2016 to April 4, 2016. This equals a total of 17.57 weeks. Employee's rate for temporary total disability is 149.73. Therefore, Employer-Insurer is directed to pay Employee 2,630.76 in temporary total disability benefits.

Based on the testimony of Employee and the medical evidence admitted, I find that the Employee, as a direct result of her March 5, 2015 accident, has suffered a 15 % permanent partial disability to her left knee at the 160 -week level.

Employer is therefore directed to pay to Employee the sum of $\ 213.33 per week for 24 weeks for a total award of permanent partial disability equal to $\ 5,119.92.

Therese Shellhammer, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

I certify that on $\qquad 11-18-20$

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.


Made by:

Maureen

Byrne

Digitally signed by Maureen

Byme

Date: 2020.11.12 15:53:40

$-0600^{\prime}$

Maureen Byrne

Administrative Law Judge

Division of Workers' Compensation