Prevailing Factor Standard Not Relevant to Award of Medicare Care in Missouri

Claimant lost her balance while moving a patient and sustained a meniscal tear. The torn meniscus and degenerative changes contributed to her pain and symptoms. The doctors agreed that claimant was not a candidate for an arthroscopy because of arthritis, and only a knee replacement would resolve her symptoms. Claimant's expert concluded the accident caused the tear and aggravated this arthritis. The employer's expert concluded that the prevailing reason for the knee replacement flowed from her arthritis, and not the work injury. Claimant underwent a total knee replacement. Claimant returned to her regular job duties as a registered nurse for about 10 months after her surgery and retired.

The Commission denied compensation finding that Tillotson’s accident was not the prevailing factor in necessitating the total knee replacement. An appeal was taken.

Tillotson argued the Commission erroneously interpreted §287.140.1 of the Missouri Workers’ Compensation Act which guarantees an injured worker the right to medical treatment reasonably required to cure and relieve the effects of a work injury and does not require a finding that the work accident was the prevailing factor in necessitating the prescribed care. The employer argued that § 287.140.1 must be construed to require that the work accident be the prevailing factor in necessitating treatment. The Court agreed with Tillotson and reversed the Commission.

The court noted that §287.140.1 clearly and plainly articulates the legal standard for determining an employer’s obligation to provide medical care: whether the treatment is reasonably required to cure and relieve the effects of the injury. §287.140.1 makes no reference to the “prevailing factor” test and presumes that a compensable injury under §287.020.3(1) (which does require application of the prevailing factor test) has been established.

In this case, once the Commission found that Tillotson suffered a compensable injury -- a meniscal tear -- the Commission was compelled to award compensation for medical care reasonably required to cure and relieve the effects of the work injury, and for the disabilities and future treatment naturally flowing from the reasonably required medical care. The Commission confused the determination of whether a compensable injury has been established with the determination of what medical care and treatment an employer is obligated to provide to cure and relieve the effects of a compensable injury. The Missouri General Assembly’s sweeping changes to the Workers’ Compensation Act in 2005 generated this confusion.  Among other provisions, the 2005 amendments added the “prevailing factor” test thereby increasing the burden on an employee to establish a compensable injury.

The 2005 amendments did not however, incorporate a prevailing factor test into the determination of medical care required in treatment of a compensable injury under §287.140.1.  In fact, the 2005 amendments left §287.140.1 virtually unchanged, adding only inconsequential language unrelated to the standard to be applied when determining whether medical treatment must be provided to an injured employee:

Where a statute is amended only in part, or as respects only certain isolated and integral sections thereof and the remaining sections or parts of the statute are allowed and left to stand unamended, unchanged, and apparently unaffected by the amendatory act or acts, it is presumed that the Legislature intended the unamended and unchanged section or parts of the original statute to remain operative and effective, as before the enactment of the amendatory act…Furthermore, “in construing a statute a fundamental precept is that the legislature acted with knowledge of the subject matter and existing law. Sell v. Ozarks Med. Ctr., 333 S.W.3d 498

The Court found that in adopting the 2005 amendments to the Workers’ Compensation Act, the legislature “clearly expressed its intent to negate the effects of various cases and their progeny relevant to some of the sections and terms of the workers’ compensation chapter.” No such actions were directed toward §287.140.1. Such an omission signals an intentional acceptance of existing case law governing the unchanged portion of the section.

The existing case law at the time of the 2005 amendments provides that in determining whether medical treatment is “reasonably required” to cure and relieve the effects of a work injury it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Bowers v. Hiland Dairy Co., 188 S.W.3d 79. Rather once it is determined that there has been a compensable accident, a claimant need only show that treatment flowed as a consequence of the work injury. The fact that treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. Had the Commission applied the proper standard set forth in §287.140.1 it would have been required to find as a matter of law that the total knee replacement was reasonably required to cure and relieve Tillotson’s compensable injury. 

Because the uncontested medical evidence established that a total knee replacement was reasonably required to relieve the effects of the work injury, Tillotson was entitled to recover the cost of the total knee replacement, temporary total disability during the recuperative period, permanent partial disability resulting from the total knee replacement, and future medical expenses necessitated by the total knee replacement.