Tillotson v. St. Joseph Med. Ctr.

• Decision Date: 14 June 2011
• Docket Number: No. WD 72948.,WD 72948.
• Parties: Phyllis TILLOTSON, Appellant,v.ST. JOSEPH MEDICAL CENTER, Respondent.
• Court: Missouri Court of Appeals

347 S.W.3d 511

Phyllis TILLOTSON, Appellant,
v.
ST. JOSEPH MEDICAL CENTER, Respondent.

No. WD 72948.

Missouri Court of Appeals, Western District.

June 14, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 2, 2011. Application for Transfer Denied Oct. 4, 2011.

[347 S.W.3d 513]

Mark E. Kolich, Lenexa, KS, for appellant.J. Scott Gordon, Overland Park, KS, for respondent.Before Division Two: JAMES M. SMART, JR., Presiding Judge, MARK D. PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.CYNTHIA L. MARTIN, Judge.

Phyllis Tillotson (“Tillotson”) appeals from the Labor and Industrial Relations Commission's (“the Commission”) Final Award denying compensation. Tillotson contends that the Commission erred because: (1) the workers' compensation act does not require that Tillotson's otherwise compensable accident be the prevailing factor in requiring a total knee replacement; (2) the finding that Tillotson's accident was not the prevailing factor in requiring a total knee replacement was not supported by substantial competent evidence; (3) the Commission disregarded uncontradicted medical testimony that Tillotson's accident was the prevailing factor in causing her medical injury and disability; and (4) the Commission relied on the 2005 amendments to the workers' compensation act, which are unconstitutional. We reverse and remand with directions to enter an award of compensation consistent with this Opinion.

Factual and Procedural History

Tillotson is a registered nurse. In January 2006, she was employed by St. Joseph's

[347 S.W.3d 514]

Medical Center (“Employer”). On January 7, 2006, Tillotson was helping another nurse move a patient who was lying in bed when the bed began to roll causing Tillotson to lose her balance. Tillotson bounced off the wall, striking her right knee against a chair. Tillotson may also have twisted her knee.

Following the accident, Tillotson continued working for a few weeks, but experienced significant and increasing pain. Employer authorized an evaluation by Dr. Michael Perll (“Dr. Perll”) who determined via an MRI that Tillotson had torn her lateral meniscus. Dr. Perll also determined that Tillotson had some degenerative changes involving the medial meniscus related to arthritis.

Employer authorized Tillotson to be seen by an orthopedic surgeon, Dr. Gregory Van den Berghe (“Dr. Van den Berghe”). Dr. Van den Berghe confirmed Dr. Perll's diagnosis. Dr. Van den Berghe determined that an arthroscopy could benefit the torn lateral meniscus, but would not alleviate Tillotson's pain. Dr. Van den Berghe believed that both Tillotson's torn lateral meniscus and her pre-existing degenerative condition were contributing to her pain and symptoms, and that a total knee replacement would provide her with more lasting pain relief.

Employer referred Tillotson to Dr. Daniel Stechschulte (“Dr. Stechschulte”) for a second opinion. Dr. Stechschulte agreed that Tillotson had suffered a torn lateral meniscus in her right knee, and that she also suffered from a degenerative arthritic condition. He noted that a tear of the lateral meniscus would normally be repaired by arthroscopic surgery. However, arthroscopic surgery is not recommended for patients with severe arthritis. Arthroscopy to remove a torn lateral meniscus can worsen a degenerative arthritic condition. Dr. Stechschulte agreed that Tillotson's torn lateral meniscus should be repaired by a total knee replacement, but he opined that “her pre-existing arthritis is the major prevailing factor for the need for this surgery.” (Emphasis added.)

Employer does not contest that Tillotson sustained an acute lateral meniscus injury as a result of the January 7, 2006 accident. Employer paid for Tillotson's medical care following the accident in the total amount of $4,593.80. However, based on Dr. Stechschulte's evaluation, Employer refused to authorize any further medical treatment for Tillotson's torn lateral meniscus, including the total knee replacement.

Tillotson proceeded with the total knee replacement with Dr. Van den Berghe at a cost of $4,646.21. While recuperating from the total knee replacement, Tillotson was temporarily and totally disabled from June 16, 2006 through December 11, 2006. Tillotson returned to her job, full time, and without restrictions or accommodations, on December 11, 2006, and continued working until her planned retirement on October 1, 2007.

In November 2007, Tillotson filed a claim for workers' compensation. She sought recovery for the cost of the total knee replacement, for future medical treatment, for temporary total disability for the recuperative period following surgery, and for residual permanent partial disability of the right leg.

Tillotson's claim was heard by the Division of Workers' Compensation (“the Division”). The parties stipulated that Tillotson's injury date was January 7, 2006; that she notified Employer of her alleged injury and filed her workers' compensation claim timely; and that Employer provided Tillotson with medical care costing $4,593.80.

In addition to the testimony of Employer's experts, Drs. Van den Berghe and Stechschulte, outlined above, the Division

[347 S.W.3d 515]

heard the testimony of Tillotson's expert, Dr. P. Brent Koprivica (“Dr. Koprivica”). Dr. Koprivica agreed that Tillotson sustained a torn lateral meniscus as a result of the January 7, 2006 accident. He also agreed that Tillotson's pre-existing arthritis coupled with the torn lateral meniscus warranted a total knee replacement, and that the combination of the conditions rendered arthroscopy an ineffective means to address Tillotson's torn lateral meniscus. Dr. Koprivica further opined that the January 7, 2006 accident destabilized Tillotson's right knee causing an aggravation and a progression of the pre-existing degenerative arthritis. Dr. Koprivica opined that Tillotson's work injury was, therefore, the prevailing factor in causing the need for a total knee replacement. Dr. Koprivica rated Tillotson's resultant permanent partial disability of the leg at 50%. Dr. Koprivica also testified that Tillotson would require future medical care.

Following the hearing, the Division issued its Findings of Fact and Rulings of Law. The Division found that “Tillotson sustained a compensable accident that arose out of and in the course and scope of her employment on January 7, 2006 when she struck her right knee on the chair.” (Finding number 4.) The Division found that “Ms. Tillotson's January 7, 2006 accident was the prevailing factor in causing her acute lateral meniscus injury.” (Finding number 11.) This determination has not been appealed by the Employer and, thus, is not at issue in this case.

The Division found that “Ms. Tillotson's January 7, 2006 accident was not the prevailing factor causing her medial meniscus injury; this was a chronic condition unrelated to the accident.” (Finding number 12.) The Division found that “Ms. Tillotson's July 17, 2006 right total knee replacement ... would not have been performed absent symptoms (pain).” (Finding number 13.) The Division found that “Ms. Tillotson's arthritis present at the time of her accident was the prevailing factor in causing her need for her [total knee replacement].” (Finding number 14.) On this latter subject, the Division expressly found as follows with respect to the testimony of Dr. Koprivica:

While Dr. Koprivica is a well-qualified rating doctor, I find that he does not possess the expertise necessary to offer credible conclusive opinions regarding the cause of precise orthopedic conditions. When presented with the opinions of board certified and board eligible orthopedic surgeons whose practices are predominantly centered on treating patients, such as Drs. Van den Berghe and Stechschulte, I will defer—and give greater weight—to their medical causation opinions instead of Dr. Koprivica's opinions. I do not find Dr. Koprivica's opinion that Ms. Tillotson's January 7, 2006 accident was the prevailing factor in causing her need for a [total knee replacement] credible and I disbelieve this opinion.

(Finding number 17.) The Division found that “[h]ad Ms. Tillotson suffered only a meniscal tear, a [total knee replacement] would not have been required.... Ms. Tillotson required a [total knee replacement] because of her arthritis alone that existed at the time of her accident.” (Finding number 18.)

Based on these findings, the Division denied Tillotson's claim for recovery of the medical costs for the total knee replacement, for temporary total disability during the post-surgical recuperative period, and for future medical expenses, finding that these claims were not “due to her accident.” (Finding numbers 20, 21, and 23.) The Division also denied Tillotson's claim for permanent partial disability. (Finding number 19.)

[347 S.W.3d 516]

Tillotson appealed the Division's decision to the Labor and Industrial Relations Commission (“the Commission”). The Commission issued its Final Award affirming the Division's award in a two to one decision, attaching and incorporating the Division's findings and rulings as its own.¹

Tillotson filed this timely appeal.

Standard of Review

“In reviewing a workers' compensation final award, ‘we review the findings and award of the Commission rather than those of the [Division].’ ” Sell v. Ozarks Medical Center, 333 S.W.3d 498, 505 (Mo.App. S.D.2011) (citation omitted). However, where the Commission affirms and adopts the findings and conclusions of the Division, we necessarily review the Division's findings and conclusions, as adopted by the Commission. Id.; see Hawthorne v. Lester E. Cox Med. Ctrs., 165 S.W.3d 587, 592 (Mo.App. S.D.2005).

Our standard of review is controlled by section 287.495.1 ² which provides:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its...