Avery v. City of Columbia

• Decision Date: 17 March 1998
• Docket Number: No. WD,WD
• Citation: 966 S.W.2d 315
• Parties: Donald L. AVERY, Respondent, v. CITY OF COLUMBIA, Appellant, Second Injury Fund, Respondent. 53939.
• Court: Missouri Court of Appeals

Page 315

966 S.W.2d 315

Donald L. AVERY, Respondent, v. CITY OF COLUMBIA, Appellant Second Injury Fund, Respondent.

No. WD 53939.

Missouri Court of Appeals Western District.

March 17, 1998.

Daniel K. Atwill, Susan Ford Robertson, Knight, Ford, Wright, Atwill, Parshall & Baker, Columbia, for appellant.

David B. Rogers, John W. Rogers, Columbia, for respondent.

Before HOWARD, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

The City of Columbia appeals from a decision of the Labor and Industrial Relations Commission awarding workers' compensation benefits in the form of total knee replacement surgery and future temporary total disability benefits to its employee, Donald Avery, for knee injuries he sustained while driving a bus for the City. The City contends that the Commission erred in its award because there was not sufficient competent evidence that Mr. Avery suffered a compensable injury or that a causal connection exists between that injury and knee treatments he might require in the future. Because Mr. Avery satisfied his burden of proving he sustained an injury as a result of an accident in the course of employment, the decision of the Commission is affirmed.

Factual and Procedural Background

Mr. Avery was employed by the City of Columbia as a bus driver at the time of his injury November of 1992. As Mr. Avery was driving the bus through the intersection of Rollins and College in Columbia, the bus would not gain speed and started to slow down, forcing Mr. Avery to pull it onto the side of the street. Upon examining the bus, Mr. Avery discovered that the bus had lost fluid. He immediately called his supervisor, who sent a mechanic onto the scene to diagnose the problem. The mechanic checked the bus and indicated that the bus had lost all its transmission fluid and the transmission was not functioning.

The mechanic called the supervisor, who told him to push the bus back in with his truck while Mr. Avery guided it at the steering wheel. Mr. Avery objected to this plan, informing the mechanic that it was "unsafe" and "unethical" to push the bus "clear across the city of Columbia with a pickup truck." Mr. Avery contacted the supervisor himself and was told that this was normal city policy and that if he did not comply he would be written up for insubordination and could be fired. Mr. Avery determined that he had no choice and sat behind the steering wheel in the bus to guide it while the mechanic pushed it from behind with his pickup truck.

The bus and truck proceeded in this fashion for about a mile without incident. Near the intersection of Providence Road and the Business Loop, the truck accelerated to prod the bus over the crest of a hill. However, after the bus began heading downhill, the light at the fast-approaching intersection turned red. Mr. Avery was unable to stop the bus and ran the red light, causing a "chain reaction" wreck in which the bus collided with several cars and trucks. As a result of the crash, Mr. Avery's knees struck the dashboard and windshield and he fell out of his seat onto the floor, breaking his eyeglasses in the process. Mr. Avery immediately felt pain in his knees and was otherwise stiff and sore. He was taken to the emergency room for observation and released shortly thereafter. Mr. Avery had two arthroscopic surgeries on his left knee prior to this accident but he had never before experienced trouble with his right knee. At the time of the accident, he had no problems with either of his knees as a result of his preexisting injuries.

The City originally referred Mr. Avery to Dr. Cooper, and then, approximately seven weeks later, to Dr. William Quinn, an orthopedic surgeon. Dr. Quinn diagnosed bilateral knee contusions with aggravation of the articular surfaces on both knees. Dr. Quinn performed arthroscopic surgery on Mr. Avery's left knee on February 10, 1993 and on his right knee on March 2, 1993. These surgeries did not alleviate Mr. Avery's pain. However, Dr. Quinn released him from his care on March 29, 1993. On October 7, 1993, Mr. Avery returned to Dr. Quinn, complaining of increased knee pain and "mild catching" in the knee. After diagnosing traumatic arthritis ¹ in both of Mr. Avery's knees, Dr. Quinn prescribed physical therapy and a weight reduction program, since he considered Mr. Avery's weight problematic. Mr. Avery received physical therapy two or three times a week for six months but he still suffered significant pain and was unable to walk without a cane or walk any significant distance.

In December of 1993, while he was still receiving physical therapy, Mr. Avery went to see Dr. Paul Lux for a second opinion in accordance with Dr. Quinn's instructions and the recommendation of Helen Gray, the administrator of the workers' compensation office for the City. Dr. Lux advised Mr. Avery that he had lost the articular surfaces of his knees and that his difficulties could be remedied by bilateral knee replacement surgery. Dr. Lux advised Mr. Avery that neither his obesity nor his relatively young age of 48 years would operate as impediments to the surgery. However, Dr. Lux advised Mr. Avery to "wait as long as possible" before having the surgery and ordered him to make a return visit in six months.

Approximately seven months later, Mr. Avery presented himself to Dr. Quinn again. Although he had lost approximately thirty-five pounds during physical therapy, he was still extremely obese. Dr. Quinn informed Mr. Avery that he probably would benefit from knee replacement surgery but that he could not recommend it immediately because of two factors. First, Dr. Quinn believed that Mr. Avery, being 48 years old, was too young for the surgery because total knee replacements have a life expectancy and with each replacement the bone stock it sits on is lessened and subsequent replacements are harder and harder until eventually they are unsuccessful. Second, Dr. Quinn believed Mr. Avery would benefit from further weight loss not only to improve the life expectancy of the replacement knees but to increase his chances of successfully going through surgery and recuperation since obesity frequently impedes anesthetic procedures and recovery. Almost two years later, Mr. Avery returned to see Dr. Lux, who at that time advised Mr. Avery to have the bilateral knee replacement surgery immediately. Subsequently, Mr. Avery filed a claim for workers' compensation benefits.

At the hearing before an administrative law judge of the Division of Workers' Compensation on Mr. Avery's claim, the parties stipulated that the Division had jurisdiction over the case and that the provisions of the workers' compensation law apply. The evidence presented at the hearing included Mr. Avery's testimony as well as the deposition testimony of both Dr. Lux and Dr. Quinn. In his deposition testimony, Dr. Lux testified that, although Mr. Avery had a preexisting arthritic condition in his knees, he had severe arthritis in both of his knees as a result of the bus accident. Dr. Lux stated to a reasonable degree of medical certainty that the accident was the most significant contributing factor to the need for total knee replacement surgery. Dr. Lux recommended total knee replacements for Mr. Avery immediately. Dr. Quinn, on the other hand, testified that he did not recommend the surgery for Mr. Avery immediately, because Mr. Avery needed to lose weight, but he believed that Mr. Avery would require the surgery in the future. Both doctors testified that the accident aggravated Mr. Avery's preexisting arthritic condition and hastened the time when he would need the total knee replacements. Dr. Quinn testified that had the accident not occurred, Mr. Avery would have needed total knee replacement surgery when he was in his 60's.

The administrative law judge found in favor of Mr. Avery and ordered the City to provide him with bilateral total knee replacement surgery plus all related medical care. In addition, the administrative law judge ordered the City to pay for any future temporary total disability benefits necessitated by the surgery and treatment. In his findings, the administrative law judge found that both doctors' depositions were very similar. They both agreed that Mr. Avery suffered from an arthritic condition which was aggravated by the accident and that he needed total knee replacement but Dr. Quinn felt this was necessary at some indefinite point in the future while Dr. Lux testified it was necessary immediately. The administrative law judge found Dr. Lux's testimony more persuasive and determined that bilateral total knee replacements were reasonably required to cure and relieve Mr. Avery from the effects of the injuries he sustained in the bus accident.

Therefore, the administrative law judge ordered the City to pay for the surgery and for any future temporary total disability benefits resulting from the surgery. The administrative law judge indicated that the award was temporary or partial and nature and subject to further order. Furthermore, he kept it open until a final award could be made. The City appealed this decision to the Labor and Industrial Relations Commission. The Commission adopted the ALJ's decision granting Mr. Avery benefits. This appeal ensued.

Standard of Review

The issue is whether the Commission erred in finding that Mr. Avery was entitled to compensation for knee replacement surgery as a result of the bus accident. In deciding an appeal of a workers' compensation claim, this court engages in a two-step review process In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it...