Thursday, February 12, 2015

Absence of treatment weakens knee claim

A 55 year worker alleges he is totally disabled as a result of alleged injuries to his back and his knee.  Pannell v Mo Dept of Corrections, 2015 Mo WCLR Lexis 9 (Feb. 5, 2015).  The Commission affirms an award of partial disability. 

Claimant was a corrections officer who 'did the splits' when he fell and hurt his back.  He had back surgery. At some point after the back surgery his records document knee symptoms.  His expert concluded he would need a total knee because he 'made symptomatic' an arthritic knee.  His vocational expert indicated he was unemployable in light of his prior medical conditions and what he regarded as new injuries to the back and knee.  A surgeon indicated that claimant's knee may have become more symptomatic because of immobilization during the back surgery. 

The ALJ found no evidence of a new knee injury, no new structural change, no contemporaneous treating records, and no mechanism at the time of the accident consistent with a knee injury.  A dissent found claimant PTD even without consideration of the knee as a Fund combo and indicated:  "It appears to me that the Commission majority, while sympathetic to the plight of this seriously disabled individual, is operating under the mistaken impression that expert testimony is needed to establish that employee is permanently and totally disabled even if his left knee complaints are set aside. I disagree with such a proposition because, as I have demonstrated, it finds no support in the Missouri Workers' Compensation Law."

ALJ:  Fisher
Atty:  Van Camp, Edelman, Mueller
Experts: Stuckmeyer, Marberry, Gross, England