Alan Rogers v. Marion C. Early R V School District

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-093845

**Employee:** Alan Rogers

**Employer:** Marion C. Early R V School District

**Insurer:** Missouri United School Insurance Co.

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 May 3, 2021. The award and decision of Administrative Law Judge Kevin A. Elmer, issued May 3, 2021, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 _22nd_ day of October 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

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 Worker's Compensation Law, I believe the decision of the administrative law judge should be modified.

For an employer to be responsible for future medical benefits, such care must flow from the accident, via evidence of a medical causal relationship between the condition and the compensable injury. . While an employer may not be ordered to provide future medical treatment for non-work related injuries, an employer may be ordered to provide for future medical care that will provide treatment for non-work related injuries if evidence establishes to a reasonable degree of medical certainty that the need for treatment is caused by the work injury.

Stevens v. Citizens Mem'l Healthcare Found. 244 S.W.3d 234, 238 (Mo. App. 2008) (inner citations omitted).

I am not persuaded that employee met his burden that the need for his total knee replacement actually flowed from the work injury. Employer/insurer approved and paid for two meniscectomies to repair two tears in the meniscus of employee's left knee caused by the work injury. According to Dr. William Goodman, the two meniscectomies were successful in treating employee's work injury. Dr. Goodman noted that the torn sections of cartilage were removed without complications. Dr. Robert Mahnken also noted in his March 21, 2017 visit that employee healed "satisfactorily" from the two meniscectomies. Accordingly, I disagree with the administrative law judge's finding that the meniscectomies were unsuccessful.

It was Dr. Mahnken's subsequent opinion that the need for the total knee replacement was due to employee's "[p]rimary osteoarthritis [in the] left knee." Tr., p. 623. ${ }^{1}$ As the two meniscectomies satisfactorily cured the work injury, then the need for the total knee replacement did not flow from the work injury. Rather, the need for the total knee replacement was only due to the primary osteoarthritis in employee's left knee. Accordingly, employer/insurer should not be liable for the past medical amount of $\ 31,996.07 or temporary total disability for the eight weeks after the knee replacement surgery. Furthermore, there was no need for any future medical benefits after the successful meniscectomies.

I find persuasive Dr. Goodman's assessment of employee's knee rating the work injury at 10 % permanent partial disability at the 160 -week level. Similarly, Dr. Nathan Mall

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[^0]: ${ }^{1}$ We note that there are two page numbers in the transcript. The references in this decision refer to the page numbers in the bottom right of each page.

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rated the work injury at 15% permanent partial disability. As employer/insurer appear to accept the 15% rating, I concur with this assessment.

**Conclusion**

I vote to modify the administrative law judge's award allowing permanent partial disability benefits at a level of a 15% permanent partial disability, at the 160-week level regarding the left knee. I also vote to deny awarding past medical in the amount of $31,996.07; eight weeks of temporary total disability, and future medical benefits. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Alan C. Rogers

Injury No. 15-093845

Dependents: N/A

Employer: Marion C. Early R V School District

Insurer: Missouri United School Insurance Co.

c/o Gallagher Bassett Services Inc.

Additional Party: N/A

Hearing Date: January 25, 2021

Checked by: KAE

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: November 19, 2015.
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was running across a grass covered area to answer a fire alarm when he stepped in a hole, twisting and injuring his left knee with immediate onset of pain.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left Knee.
14. Nature and extent of any permanent disability: 60 % of the Left Knee.
15. Compensation paid to-date for temporary disability: $\ 8,954.28.
16. Value necessary medical aid paid to date by employer/insurer? $\ 42,574.94
17. Value necessary medical aid not furnished by employer/insurer? $\ 31,966.07

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Alan C. Rogers

Injury No. 15-093845

1. Employee's average weekly wages: 1,175.19

1. Weekly compensation rate: 783.50 TTD, $464.58 PPD

1. Method wages computation: Stipulation of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

96 weeks of permanent partial disability from Employer / Insurer: 44,599.68

8 weeks of temporary total disability: 6,268.00

Unpaid medical expenses: $31,966.07

1. Future requirements awarded: The Employer and Insurer are ordered to provide medical treatment in the future according to Section 287.140 RSMo 2016.

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: Thomas P. Carlton, Esq.

Page 2

Employee: Alan C. Rogers

Injury No. 15-093845

Dependents: N/A

Employer: Marion C. Early R V School District

Insurer: Missouri United School Insurance Co. c/o Gallagher Bassett Services Inc.

Additional Party: N/A

Hearing Date: January 25, 2021

Checked by: KAE

This claim was the subject of a hearing held on Monday, January 25, 2021, for the purpose of entering a Final Award under Section 287.460 RSMo 2016. The Employee Alan C. Rogers appeared and with his counsel Thomas P. Carlton. The Employer and Insurer appeared by their counsel William Lemp. The parties requested the opportunity to submit briefs on or before March 9,2021 , resulting in the final submission of arguments being presented to the undersigned on said date.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about November 19, 2015, Marion C. Early R-V School District was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri United School Insurance Co.

(2) On the alleged injury date of November 19, 2015, Alan Rogers was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about November 19, 2015, Alan Rogers, the employee, sustained an accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced employment and accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section, 287.420, RSMo.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Alan C. Rogers

Injury No. 15-093845

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of November 19, 2015, the employee's average weekly wage was $\ 1,175.19, which is sufficient to allow a compensation rate of $\ 783.50 for temporary total disability compensation / permanent total disability compensation, and a compensation rate of $\ 464.58 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to the employee in the amount of $\ 8,954.28, representing $113 / 7$ weeks in disability benefits.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 42,574.94 medical expenses.

The parties further agreed that should the undersigned Administrative Law Judge find that on November 19, 2015 the employee sustained an accident, and that the accident caused the injuries and disabilities, including the left total knee replacement, for which benefits are now being sought, they would make the following additional stipulations:

(10) The employee is entitled to past medical expenses in the amount of $\ 31,966.07 to be paid directly to the employee.

(11) The employee is entitled to unpaid temporary total disability compensation in the amount of 8 weeks or $\ 6,268.00.

The issues to be resolved by hearing include:

(1) Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed, and the need for the past total knee replacement?

(2) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\ 31,966.07 ?

(3) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(4) Whether the employee is entitled to temporary total disability compensation? (The employee seeks payment for 8 weeks of temporary total disability compensation, payable in the amount of $\ 6,268.00.)

(5) Whether the employee sustained any permanent disability as a consequence of the alleged accident of November 19, 2015; and, if so, what is the nature and extent of the disability?

The employee testified at the hearing in support of his claim. In addition, the employee offered for admission the following exhibits:

Exhibit 1

Dr. Stuckmeyer Report and documents relied upon

Exhibit 2

Total of unpaid TTD claimed owed

Exhibit 3

Medical bills and expenses

The exhibits were received and admitted into evidence.

The employer and insurer did not present witnesses at the hearing of this case. However, the employer and insurer offered for admission the following exhibits:

Exhibit A Treatment Records

Exhibit B Dr. Ga