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Dierks v. Kraft Foods

Court of Appeals of Missouri, Western District, Fourth Division

July 14, 2015

KATY DIERKS, Respondent,

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[Copyrighted Material Omitted]

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Joshua P. Perkins, for Respondent.

Maggie M. Ahrens, for Appellant.

Richard L. Montgomery, Co-counsel for Appellant.

Before Division Four: Alok Ahuja, Chief Judge, Presiding, Joseph M. Ellis, Judge and Marco A. Roldan, Special Judge. All concur.


Joseph M. Ellis, Judge.

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Kraft Foods (" Employer" ) and the Second Injury Fund (" the Fund" ) separately appeal an award of the Labor and Industrial Relations Commission awarding benefits to Katy Dierks. The Commission's award ordered Employer to pay past medical, future medical, and permanent partial disability benefits to Dierks, and it found the Fund liable for permanent total disability benefits. For the following reasons, the Commission's decision is affirmed.

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Dierks was employed for over a decade as a laborer at Employer's Adair Foods factory in Kirksville, Missouri. Her job duties included loading meat onto pallets, running a meat slicer, checking and weighing boxes, and using pallet jacks to move pallets of meat.

On January 17, 2009, Dierks tripped on an air hose that had been left on the floor and landed on her hands and knees on the concrete floor. She immediately experienced sharp pain in her left knee. An injury report was filed by her supervisor, and Dierks later filed a timely claim for workers' compensation.

Dierks received conservative treatment from Dr. Robert Sparks at the employee clinic. On June 2, 2009, an MRI revealed a tear in Dierks's medial meniscus along with significant arthritis. Dr. Sparks referred Dierks to an orthopedic surgeon for further treatment.

Employer arranged for Dierks to be seen by Dr. Christopher Main on June 8, 2009. Dr. Main diagnosed Dierks with a work-related left knee contusion but opined that the torn meniscus and arthritis in her knee were not work-related. He recommended surgery to repair the torn meniscus and offered to perform that surgery under Dierks's private health insurance.

Dierks then decided to seek treatment from her own orthopedic surgeon, Dr. Peter Buchert, who had performed arthroscopic surgery on her right knee in 2006. Dr. Buchert eventually performed arthroscopic surgery on Dierks's left knee on August 28, 2009. Based upon what he observed during surgery, Dr. Buchert determined that Dierks's torn meniscus had been caused by her work injury. Following surgery, Dierks continued to have significant pain and problems with her left knee and has been forced to walk with a cane. Eventually, Dr. Buchert released Dierks to return to work but permanently restricted her to sedentary work. Employer was not able to accommodate those restrictions.

On May 26, 2010, Dierks filed a claim for compensation with the Division of Workers' Compensation. Dierks's claim was heard by an administrative law judge on October 8, 2013. The ALJ subsequently entered her Findings of Fact and Rulings of Law finding that Dierks's January 17, 2009 fall was the prevailing factor in causing the torn meniscus in Dierks's knee and concluding that she, therefore, sustained a compensable, work-related injury. The ALJ found that Dierks had sustained permanent partial disability of 25% to her left lower extremity at the 160 week level. The ALJ also ordered Employer to pay $12,800 in medical bills incurred by Dierks and ordered Employer to provide future medical treatment for the left knee. The ALJ further found that Dierks was permanently and totally disabled as a result of the disability caused by her work-related injury when combined with the preexisting arthritic condition of her right knee and her " overall level of functioning." Accordingly, the ALJ concluded that the Fund was liable for permanent total disability benefits.

Both Employer and the Fund applied for review by the Commission. The Commission ultimately affirmed the ALJ's award and adopted it as its own. Employer and the Fund separately appeal.

Pursuant to § 287.495.1, this Court may only reverse an award issued by the Commission where the Commission acted without or in excess of its authority, the award was procured by fraud, the facts found by the Commission do not support the award, or the record does not contain sufficient competent and substantial evidence to support the award. " On appeal, 'no additional

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evidence shall be heard and, in the absence of fraud, the findings of fact made by the Commission within its powers shall be conclusive and binding.'" Null v. New Haven Care Ctr., Inc., 425 S.W.3d 172, 177 (Mo. App. E.D. 2014) (quoting § 287.495.1). On the other hand, " [w]e do not defer to the Commission's conclusions of law or its application of the law to the facts." Sheridan v. Div. of Emp't Sec., 425 S.W.3d 193, 198 (Mo. App. W.D. 2014) (internal quotation omitted).

In its first point, Employer contends that the Commission erred in finding that Dierks's work accident was the prevailing cause of Dierks's meniscus tear and any disability resulting therefrom because such a determination is not supported by substantial and competent evidence. It argues that the evidence overwhelmingly established that Dierks's meniscus tear and other problems with her left knee were caused by pre-existing arthritis and degenerative changes in that knee and were not caused by her fall at work.

" To determine whether the award is supported by competent and substantial evidence, we examine the evidence in the context of the whole record." Cardwell v. Treasurer of Missouri, 249 S.W.3d 902, 906 (Mo. App. E.D. 2008). " An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Id. " In reviewing the Commission's decision, we view the evidence objectively and not in the light most favorable to the decision of the Commission." Poarch v. Treasurer of Missouri-Custodian of the Second Injury Fund, 365 S.W.3d 638, 642 (Mo. App. W.D. 2012). " However, we defer to the Commission on issues involving the credibility of witnesses and the weight given to their testimony." Id.

Section 287.020.3(1), RSMo Cum. Supp. 2008 provides: " '[a]n 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.'" Claspill v. Fed Ex Freight East, Inc., 360 S.W.3d 894, 903 (Mo. App. S.D. 2012).

In this case, all parties concede, and the medical evidence uniformly supports, that Dierks, who was 68-years-old at the time of the hearing, had pre-existing degenerative arthritis in both her knees. Dierks testified, however, that she was asymptomatic in her left knee prior to falling at work on January 17, 2009, and nothing in the record indicates problems with the use of her left knee prior to the fall. She most certainly was able to perform all of her work duties up until that time. Dierks further testified that after the accident she had problems with her left knee that never fully went away.

Dierks's orthopedic surgeon, Dr. Buchert, testified that Dierks's fall at work was the prevailing factor in causing her torn meniscus and her need for arthroscopic surgery. He based that opinion on Dierks's history and what he saw of the tearing of the meniscus when he was performing the surgery. Similarly, Dr. Koprivica, who performed an independent medical evaluation of Dierks, testified that the meniscus tear was a new structural injury caused by Dierks's fall at work and that her fall was the prevailing factor in causing her need for arthroscopic surgery and permanent injury to her knee. He based his opinion as to causation on Dierks's history, the MRI of Dierks's knee, and Dr. Buchert's findings during surgery. The expert opinions of Drs. Buchert and Koprivica constitute substantial and competent

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evidence supportive of the Commission's finding that the fall at work caused the meniscus tear in Dierks's left knee, the need for arthroscopic surgery, and permanent disability to that knee.

In arguing that the Commission's finding regarding causation is against the overwhelming weight of the evidence, Employer points to testimony from various other doctors who opined that the meniscus tear was degenerative in nature and was not caused by Dierks's fall at work. Those doctors posited that Dierks sustained a bruised knee in the fall but that that injury fully healed. Employer argues that we should find the opinions of these experts more credible and entitled to more weight than the opinions of Dr. Buchert and Dr. Koprivica. Employer asks this Court ...

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