SEQUEL YOUTH & FAMILY SERVICES LLC and TRAVELERS INDEMNITY CO. OF AMERICA, Petitioners,
MARCELLA AYISI and THE OKLAHOMA WORKERS' COMPENSATION COMMISSION, Respondents.
Mandate Issued: 01/31/2018
TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION
COMMISSION HONORABLE MICHAEL T. EGAN, ADMINISTRATIVE LAW
Rops, DAVID KLOSTERBOER & ASSOCIATES, Oklahoma City,
Oklahoma, for Petitioners
Burke, Oklahoma City, Oklahoma, and Jeffrey M. Cooper,
Oklahoma City, Oklahoma, for Respondent
DEBORAH B. BARNES, PRESIDING JUDGE.
Petitioners (collectively, Employer) seek review of an order
of the Workers' Compensation Commission affirming the
order of the Administrative Law Judge (ALJ) who found
Marcella Ayisi (Claimant) sustained compensable injuries to
both of her knees arising out of the course and scope of her
employment. Based on our review, we vacate and remand for
Claimant filed a Form 3 alleging she sustained injuries to
both knees as a result of an accident that occurred while
working as a residential counselor for Employer. She alleged
she fell while assisting a resident on August 26, 2015,
landing directly on both knees. At trial, Claimant testified
she worked with special needs children for Employer and that
the fall occurred when she tripped over a child's foot
and onto "a concrete floor with ceramic tile on top of
it." She testified "[t]he total impact was on my
knees, " and testified she heard and felt a
"snap." Claimant's fall was witnessed by her
supervisor who helped Claimant afterward.
Claimant testified she was not having any problems with her
knees prior to the accident, though she testified she had
knee surgery performed on her right knee -- a "right
knee arthroscopic procedure" -- in the year 2000.
Claimant testified she was released "full duty"
soon after that surgery, and she testified she had been
working for sixteen years prior to the fall and had never
been placed on any form of restrictions for her right knee.
She further testified she had not been prescribed any
medication or therapy for either knee prior to the fall, and
she testified that, regarding her left knee, she had never
received any prior treatment.
Claimant testified that now, i.e., following the August 26,
2015 incident, she has "excruciating pain all the
time" in addition to "swelling." She testified
she has had to "compensate with [her] left knee, "
but that her "left knee is almost as bad as the right
knee[.]" She testified she is "limited in so much
of [her] mobility" and has not been able to return to
work in any capacity.
Employer stated at trial that it "specifically denies
that [Claimant] sustained any compensable injury under the
[Administrative Workers' Compensation Act (AWCA)]."
Employer explained: "More specifically, we are denying
that [Claimant] has an injury that was solely caused by her
accident." Employer stated: "we are alleging that
[Claimant's] current condition... not only wasn't
caused by her accident, but is specifically excluded under
Section 2(9)(b)(5)" of the AWCA because "[t]he only
diagnosis in any medical record is osteoarthritis."
Employer asserted osteoarthritis is "excluded as a
compensable injury under 2(9)(b)(5)." Employer also
asserted, in the alternative, that there is no
"objective medical evidence that [Claimant] has a
compensable injury" as "defined by 2(31)(a)"
of the AWCA; tha`t the accident is not the major cause of
Claimant's injuries; and that "at least with
regard to the right knee, [Claimant] has a preexisting
condition. She had a prior surgery. [But]... there is no
evidence at all to support a significant or identifiable
aggravation of that right knee condition."
In the order filed in December 2016, the ALJ found Claimant
sustained compensable injuries to both of her knees arising
out of the course and scope of her employment, and ordered
Employer to provide Claimant with reasonable and necessary
medical treatment. The ALJ's order notes that in the
January 2016 medical report of Dr. Kevin Hargrove, he
as having osteoarthritis in both knees but also said that
there had been an exacerbation as a result of the fall. He
also stated: "These knees are advancing gradually toward
the need for arthroplasty. However, this patient has been
informed that her problem is currently an exacerbation of her
The ALJ's order further notes that an independent medical
examiner -- Dr. Paul Maitino -- was appointed by the
to address several issues, including the specific diagnosis
of the Claimant's current condition and whether it was
caused by Claimant's work related accident and whether
Claimant has a significant and identifiable aggravation of a
Dr. Maitino's report... gave a very clear diagnosis:
significant and identifiable aggravation of preexisting
osteoarthritis in both knees with valgus deformity.... [In
his deposition he] testified that the preexisting condition
was Grade IV arthritis. On cross examination, he said that
her meniscal tear was due to her arthritic condition. Later
he said that none of the findings were based on an acute
injury. When asked to identify what the aggravation of her
right knee was, he stated that her pain was the only
ALJ's order also notes that there "is a dispute as
to whether [Claimant] had complaints about her knees before
the fall. She denied any such complaints but Dr.
Hargrove's records indicate that she had popping in both
knees with squatting and climbing stairs before she sustained
The ALJ's order states that "[o]ne way for the
Claimant to recover benefits is found in 85A [O.S.] §
2(9)(b)(6) which allows an exception when the Claimant can
show an identifiable and significant aggravation of a
'pre-existing condition.'" The order notes that
"[t]he consensus of all the doctors involved is that the
Claimant has a significant pre-existing condition
(osteoarthritis)." However, the ALJ determined that,
regarding Claimant's right knee, Claimant "has shown
an identifiable and significant aggravation of that
condition" as a result of the fall. In addition to the
evidence discussed earlier in the ALJ's order, the ALJ
pointed out that the medical notes of the physician's
assistant at the clinic Claimant visited on the date of the
fall state that Claimant "had ...