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On Behalf of | Aug 2, 2016 | Workers' Compensation |

Some of the more significant changes in the Missouri Workers’ Compensation Law which took place in 2005 included amendments to the statutory sections which define what constitutes an “accident” that arises out of and in the course of employment under RSMo. 287.020.2, and then the corresponding obligation by the Employer and the Insurer to provide medical treatment after the injury or disability to help relieve from the effects of the injury. 


For an injury to be compensable, the work must be the “prevailing factor” in “causing both the medical condition and disability” under Section 287.020.3.  And, the injury cannot come from a hazard or risk unrelated to the employment to which the worker would have been equally exposed outside of and unrelated to the employment in normal non-employment life. 


Since these changes, a series of Appellate Court cases have made some very favorable rulings allowing claimants to obtain treatment for injuries commonly attributed to degenerative conditions such as total and partial knee replacements and surgery on joints which otherwise have arthritis or degenerative conditions which were not significantly symptomatic before the work injury.  And, Appellate Court decisions since the 2005 statutory changes have also affected the right of claimants to obtain “open” medical treatment which is deemed to “flow from” the work injury.


Here is a summary of the more important appellate decisions which have come down in recent years, as well as subsequent clarifications of the law by the governing body directly below the Missouri Courts of Appeal, the Missouri Labor and Industrial Relations Commission.







Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511(Mo. App. W.D. 2011)


The Court of Appeals held that the nurse was entitled to workers’ compensation for total knee replacement for a compensable knee injury even if the injury was not the prevailing factor in requiring the total knee replacement. 


Tillotson was helping another nurse move a patient when the bed rolled.  Tillotson lost her balance and struck her right knee against a chair.  She may also have twisted her knee.  An MRI showed a torn lateral meniscus, as well as degenerative changes involving the medial meniscus related to arthritis.  Her surgeon determined that surgery could benefit the torn lateral meniscus, but the proper way to alleviate her pain would be for a total knee replacement.  The surgeon felt that both the torn lateral meniscus and the preexisting degenerative changes to the medial meniscus were contributing to her pain. 


The employer obtained a second surgical opinion agreeing that the lateral meniscus should be repaired by a total knee replacement, but that “preexisting arthritis is the major prevailing factor for the need for this surgery.”  Employer thereafter refused to authorize any further medical treatment, including the total knee replacement.


Tillotson’s expert, Dr. P. Brent Koprivica, agreed that a simply arthroscopy was an ineffective way to address the torn lateral meniscus.  He opined that the work accident destabilized Tillotson’s right knee, causing an aggravation and progression of the preexisting degenerative arthritis such that the work injury was the prevailing factor in causing the need for a total knee replacement.


The Division found that Tillotson’s work accident was not the prevailing factor causing the need for right total knee replacement and further found that Board Certified Orthopedic Surgeons more credibly offered conclusive opinions regarding the cause of precise orthopedic conditions than Dr. Koprivica. 



The Court of Appeals applied a two part analysis.  First, it must be determined whether an employee suffered a compensable injury “by accident arising out of and in the course of employee’s employment.”  Second, if a compensable injury has been sustained by an employee, the appropriate compensation to be furnished must be determined. 


On the first question, an “accident” is defined as “an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.”  RSMo. § 287.020.  “Injury” is defined as “compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.”  RSMo. §287.020.3(1).


Since the Commission found that a compensable injury had occurred under §287.120.1, the inquiry turned to whether the medical treatment sought by Tillotson “related directly to or flowed from” the meniscal injury.  Since a total knee replacement is not a “medical condition or disability”, but rather a form of medical treatment employed to address a medical condition or disability, the Court of Appeals found that the Commission had imposed a burden on the claimant beyond that described in §287.140.1. 


This was because the 2005 amendments to the law did not incorporate a “prevailing factor” test into the determination of medical care and treatment required to be afforded for a compensable injury.  Id. at 519.  As such, existing case law at the time the Statute was passed was instructive.  Applying the analysis from Bowers v. Highland Dairy, 188 S.W.3d 79, 83 (Mo. App. S.D. 2006)(applying the old “liberal construction” standard, past and future medical benefits ordered even though the medications relieved both a pre-existing arthritis and the work condition), once it was determined that there had been a compensable accident, the claimant need only prove that the need for treatment and medication “flow from” the work injury.  The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant.  See also Stevens v. Citizens Memorial Healthcare Foundation, 244 S.W.3d 234, 236 (Mo. App. S.D. 2008) (Claimant sustained torn cartilage at work, but also had preexisting chondromalacia, which was aggravated by the work injury.  The employer was responsible for both scope surgery and then a subsequent total knee replacement even though claimant would likely have required a total knee replacement at some point in her life anyway due to her preexisting condition.)


All experts agreed that Tillotson suffered an acute injury following her workplace accident (torn lateral meniscus); that Tillotson suffered from a preexisting degenerative arthritic condition which made her ineligible for the normally performed scope surgery; that Tillotson’s torn lateral meniscus should be treated by a total knee replacement.  So, all medical experts agreed that a total knee replacement was reasonably required to cure and relieve the effects of Tillotson’s torn lateral meniscus.  Id. at 520. 


Tillotson was further entitled to future medical expenses even though Dr. Koprivica testified that Tillotson would only surely require testing for deep venous thrombosis relating to the total knee replacement and that there was “a risk” that the knee replacement would have to be revised.


In 2005, the legislature negated various case interpretations of the Law, but no such actions were directed toward the provisions relating to medical aid, presumably reflecting its acceptance of existing case law regarding the provision of medical aid.  So, the Court presumed that the legislature acted with knowledge of the subject matter and the existing law when it made its statutory changes.


Thus, the question of whether an employee may have needed future treatment even if the work-related injury had never occurred is irrelevant to the analysis of whether the employer will be required to provide future medical care.  The employee must simply prove that the treatment “flows from” the injury that actually occurred.  And, it is no longer a valid reason for an Employer to deny a claim for medical treatment on the basis that the work accident is not the prevailing factor in causing the need for particular medical treatment.


Armstrong v. Tetra Pak, Inc., 391 SW3d 466 (Mo. App. S.D. 2012)


The claimant reached overhead for cardboard and felt deep pain in his shoulder.  The initial diagnosis was bursitis.  X-Rays showed degenerative arthritis.  An MRI showed no acute tears but revealed severe degenerative arthritis.  An orthopedic surgeon testified that this pathology was chronic and pre-existing. 


The decision does not establish what, if any, medical treatment claimant was seeking.  Rather, claimant argued that Tillotson stood for the proposition that once there was a work accident the employer was responsible for all injuries and disabilities that “flow from” the accident.  This position was rejected.


The Court distinguished Tillotson on the basis that here there was no proof that the work injury caused any pathology that did not otherwise previously exist.  Therefore, the claimant did not meet the first element of the test, namely, that there had first been a compensable work injury, because he did not prove that the work incident was “the prevailing factor” in causing any medical conditions.


Citing Jordan v. USF Holland Motor Freight, Inc., 383 S.W.3d 93, 95(Mo. App. 2012), the Court noted that there is a material distinction between whether a compensable injury has occurred(for which the prevailing factor standard must be met) and what medical treatment is required to treat a compensable injury(for which the “flows from” standard is sufficient).  Id. at 472-73.



Hornbeck v. Spectra Painting, Inc., 370 S.W. 3d 624 (Mo. 2012)


The Missouri Supreme Court stated that the “prevailing factor” standard still applies to the determination of whether a compensable injury has occurred.  Once that element is established the need for treatment need only “flow from” the work-related accident.  The Court noted that Tillotson did not really make new law but rather articulated the statutory requirements already in place. Id. at 635.







In Holeman v. Hussman Corp., 2013 W.L. 3388009 (decided July 3, 2013), the Labor and Industrial Relations Commission reversed the award and decision of Administrative Law Judge Karla Boresi finding the claim non-compensable.


Claimant had a preexisting cervical spine injury in 1996, requiring cervical fusion at C4-5.  Claimant was released to return to work.  The undisputed evidence was that from 1997 to August, 2009, the employee never missed any work due to neck or radicular pain.  He was able to hunt, cut the grass, go to drag races and help his wife around the home while adhering to his permanent restrictions.  Nevertheless, the employer did ask, and the employee did comply, for the performance of ongoing work duties which violated his permanent work restrictions against lifting overhead. 


Claimant required prescription pain and muscle relaxing medication in order to function prior to the work injury, with indications that he took several narcotic pain medications daily.  There were additional indications that the claimant required regular primary care prior to the 2009 injury with complaints of decreased strength in his right arm.  It was determined that this preexisting cervical spine condition amounted to a 15% permanent partial disability of the body as a whole.


Prior to the injury, a myelogram showed disk bulging at C5-6 with degeneration at both levels and osteophytes causing foraminal encroachment. 


On the date of the work injury, the claimant felt a sudden and sharp pain in his neck while lifting coils weighing between 10 and 20 lbs.  He immediately reported the injury and was sent to the company nurse the next day, who told the employee he would need to see his own doctor.  Ongoing medical care thereafter was not authorized by the employer.


The employee received conservative treatments with several doctors and ultimately underwent a cervical fusion surgery at three levels on February 4, 2010.


Dr. Kennedy opined that the August, 2009 accident caused a new injury at C5-6 and C6-7 with the acute onset of radicular arm pain and tremors in the right hand.  He described the new pathology as nerve root compression caused the August, 2009 incident. 


The employer presented expert medical testimony of Dr. Daniel Kitchens who testified that the work incident of August, 2009 caused only a temporary aggravation of preexisting cervical issues, but did not constitute the prevailing factor in causing the employee’s current cervical spine condition.  He disagreed that there was any evidence of an acute disk herniation at the cervical spine and blamed gradual worsening of the employee’s cervical spine as the prevailing factor giving rise to the need for additional medical treatment. 


The Labor & Industrial Relations Commission disagreed, finding persuasive the testimony of Dr. Kennedy that the 2009 accident was the prevailing factor causing a nerve root compression at C5-6 and C6-7.  Of interest, the Commission further found that the sudden and dramatic increase in the employee’s subjective symptoms were further evidence of a change in pathology of the employee’s cervical spine.


Applying the Tillotson decision, the Commission determined that there had been a compensable accident due to what Dr. Kennedy deemed to be objective evidence of a new injury on post-accident MRI, as well as the post-accident increase in the claimant’s subjective complaints.  The Employer/Insurer was, therefore, held responsible for $160,000 in past medical expenses that was reasonably required to cure and relieve from the effects of the cervical spine work injury. 


Additionally, the Commission adopted Dr. Kennedy’s opinion that the employer was further obligated to provide future medical treatments reasonably required to cure and relieve from the effect of the employee’s injuries.


Violet Lawrence v. Modean Manufacturing, 2012 W.L. 106 1075


Judge Hannelore Fischer awarded benefits to the claimant and was confirmed on appeal to the Commission.  Ms. Lawrence was employed on March 27, 2008, when she injured her low back while trying to maneuver a 200 lb. cart full of tubes.   This caused radicular pain into her right leg shortly after the accident.  Ms. Lawrence reported her injury and was seen by Dr. Jordan on one occasion.  He determined that she was suffering from arthritis and did not have a work-related injury.  Thereafter, the Employer offered no additional medical treatment for her back. 



Nevertheless, Ms. Lawrence sought continuing medical care from her own doctors, who ultimately performed three back surgeries on her.


Prior to the work incident, Ms. Lawrence had low back complaints with occasional radiation of pain into the right leg dating back to 1998.  She would regularly take prescription medication for her back and her back bothered her and had also missed time from work due to back pain.  She had specific instances when her back flared up in 1998, 2004, and 2006, all prior to the work injury.


The claimant’s expert, Dr. Volarich, compared two MRI’s predating the work injury with an MRI after the work injury and interpreted all MRI’s to be the same.  Dr. Fred McQueary agreed on behalf of the employer/insurer, but admitted during cross-examination that Ms. Lawrence did experience a structural change in her back on March 27, 2008 “most likely an annular tear in the disk” that caused Ms. Lawrence to have back pain which led to the surgeries ultimately performed on her. 


Dr. McQueary testified that, in his opinion, the need for surgery was caused by both the preexisting back condition and the March 27, 2008, accident equally.


Applying Tillotson, Judge Fischer found that there was proof of an “injury” as a result of the incident on March 27, 2008, based upon the following conditions:


-Onset of back and right leg pain with this back and right leg pain changing in symptomatology from sporadic to persistent.


-Dr. McQueary testified to a change in pathology, a tear in the annulus, as attributable to the March 27, 2008, accident and not preexisting.  Dr. McQueary’s interpretation of the prevailing factor test for medical treatment was deemed misplaced and his conclusions discarded.


Milton Young v. Boone Electric Coop., 2013 W.L. 2303945, the Labor and Industrial Relations Commission affirmed a final award allowing compensation.  The claimant was getting materials for the job when he stepped on a frozen dirt clod and his left knee buckled and popped causing him to fall down.  Members of his crew confirmed that when they were helping him to his feet, he experienced another pop in his left knee.


The employer presented medical testimony that the claimant had preexisting degenerative chondromalacia in the left knee and the accident didn’t cause any of the degeneration in the left knee.  Rather, the accident was deemed to have caused a sprain.  The expert further pointed out that the surgeon didn’t find a meniscal injury during the surgery and there was no internal derangement or pathology to the left knee found during the surgery.  The employer’s expert seemed to stumble over the meaning of “triggering” for purposes of the Missouri Workers’ Compensation Law and after generous prompting from employer’s counsel, the employer’s expert changed his opinion that the accident caused the preexisting degenerative condition of the knee to become symptomatic. 


The employee presented medical testimony agreeing that the chondromalacia was preexisting, but explaining that the twisting mechanism of the accident is a classic cause of chondral injury to the patella femoral joint.  The Commission affirmed the reliance on the expert testimony on behalf of the claimant because the employer’s experts “appear (not) to have considered the possibility that the accident caused the preexisting degenerative condition in employee’s knee to become symptomatic.” 


The Commission focused on the employee’s argument that the issue is whether the knee surgery was reasonably required to cure and relieve the effects of the employee’s work injury, rather than whether there was proof that the accident was the prevailing factor in the need for the surgery.  The fact that the surgery may have benefitted preexisting degenerative conditions of employee’s left knee is irrelevant under Tillotson. 


James Ryan v. Murphy Co., 2013 W.L. 3790476, the Commission applied Tillotson and denied coverage for a left shoulder surgery.  The claimant had no preexisting left shoulder surgery, but there was evidence that his shoulders hurt for years on the job despite the claimant’s testimony that he had no left shoulder pain for 16 years prior to the work injury. 


At the time of the work injury, the claimant pulled a lift tray out and felt a pop in his left shoulder.  He was fired a month later and no medical treatment was authorized.  The diagnosis was a sprain/strain and impingement.  An early MRI shortly after the injury showed only tendonitis.  By the time of the surgery, the surgeon found a significant labral tear, repairing a type II SLAP tear.  The claimant’s expert’s testimony linking causation did not explain why there was no SLAP tear on the MRI immediately after the work injury, but there was a SLAP tear present at the time of the surgery three months later. 


Jackie Maize v. Preferred Family Healthcare/Mo. Employers Mutual Ins. Co., 2013 W.L. 597180 was a temporary award requiring the employer/insurer to cover the claimant’s total knee replacement. 


The claimant had three prior knee surgeries, but credibly testified that although he continued to have symptoms in his right knee, he was able to return to his regular work duties without any physical restrictions after he was released from medical care.  The medical records confirm that following release from care at the time of an April, 2003 surgery, claimant never sought or received any medical care or treatment for his right knee prior to the January, 2011 work injury. 


Claimant’s medical expert testified that the claimant’s description of stepping on a rock and his foot slipping out from underneath him causing his leg to go forward and back, with a pop in his knee at the time of the work injury was a classic description of a mechanism for which you would expect an ACL injury. 


Following the work injury, an MRI identified severe chondromalacia and severe joint space narrowing, but also a “high grade” ACL tear.


The claimant’s expert explained that the findings on the MRI after the work injury were a distinct change from the observations at the time of the 2003 surgery.  The employer’s expert testified that the claimant merely suffered a right knee strain with degenerative disease and that the MRI was not suggestive of a new ACL tear.  He agreed that a knee replacement would appear reasonable, but that the treatment would be designed to resolve symptoms of preexisting arthritis.  All medical testimony was by Board Certified Orthopedic Surgeons. 






RSMo 287.020

            2. The word “accident” as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

3.         (1) In this chapter the term “injury” is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. “The prevailing factor” is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

                        (2) An injury shall be deemed to arise out of and in the course of the employment                          only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.



RSMo 287.120.1

“[e]very employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of employee’s employment.



RSMo 287.140

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.



RSMo 287.800 

For all claims arising after August 27, 2005, the provisions in the Workers’ Compensation Law are to be strictly construed. 


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