A claimant cannot 'waive' her right for the employer to pay medical services for a work related condition until she knows the condition is work related. Dierks v Kraft Foods, WD 77893 (Mo App. 2015) (July 14, 2015).
The case involves a common scenario. Claimant is 68-years old. She has bilateral knee arthritis and asserts the left knee became symptomatic after the work injury. An expert indicated her meniscus tear arose from arthritis and not from trauma. The Commission rejected the defense. It found claimant had a new condition based on the opinion of her surgeon and her own testimony.
As a result, the Commission awarded the medical benefits, future medical for a TKR, and disability benefits.
"When Dierks sought to get her knee surgically repaired by Dr. Buchert, she had no reason to believe that employer should be responsible for providing that medical treatment. It was only while performing the surgery that Dr. Buchert saw evidence of an acute injury to the knee and was able to determine that the meniscus tear had been caused by her work injury. "
The court rejects the employer's appeal noting "well-settled principle" that it defers to the Commission to make determinations regarding credibility. It notes the employer "expresses a belief" that this deference does not apply in cases in which testimony is submitted by deposition. It relied upon Dr. Koprivica's opinion that the accident accelerated the arthritis and need for surgery and escalated the condition to the point of a disability. The Commission could reasonably rely upon expert testimony that osteoarthritis had progressed even in the absence of current x-rays to verify any progression.
The Commission affirmed an award of PTD against the Second Injury Fund in part due to a prior right knee condition which had severe arthritis and required repair of a torn meniscus with no history of trauma. The SIF disputed liability and asserted claimant was able to work 12 hour shifts and had no disabling symptoms. The court noted that the SIF may have over-relied on statements from the claimant that her right knee was asymptomatic before the new left knee injury and construed the statement to only mean the time period "right before the accident."
"The fact that a person has managed to perform various work duties does not preclude the fact that they have a permanent partial disability. Frequently, restrictions placed upon workers by doctors are not measures of what an individual has the physical ability to do but are, rather, directions designed to keep the worker from engaging in behavior likely to worsen their condition, cause pain, or lead to future injury."
J. Ellis
Experts: Koprivica, Cohen, Main
Treater: Buchert
