GABRIEL GILBERT v. CITY OF GRANDVIEW MO (2026)

While working as a police officer for the City of Grandview in July 2016, Gabriel Gilbert injured his right knee while chasing a suspect on foot. Gilbert filed a claim for workers’ compensation benefits. An Administrative Law Judge (“ALJ”) determined that Gilbert had suffered a compensable injury which resulted in a 30% permanent partial disability to his right knee, and which required not only that he undergo arthroscopic surgery, but also a total knee replacement. On review, the Labor and Industrial Relations Commission reversed the ALJ's decision in large part. The Commission concluded that Gilbert had sustained a permanent partial disability of only 17.5% of the right knee as a result of the July 2016 accident. The Commission also concluded that the City was not liable for the cost of Gilbert's artificial knee replacement, because that surgery was not necessary to cure or relieve the injury Gilbert sustained in July 2016. Gilbert appeals. We affirm.

Factual Background

Gabriel Gilbert has been employed by the City of Grandview as a police officer since 2002. Gilbert had compensable work-related right-knee injuries in 2012 and 2013, both of which were treated by Dr. AS. Gilbert testified that, prior to performing arthroscopic surgery to address his 2013 injury, Dr. AS “had advised that I would need at some point within the next 10 years a knee replacement.” Gilbert settled workers’ compensation claims related to his 2012 and 2013 right-knee injuries based on permanent partial disability ratings of 15.5% and 10%, respectively.

During a foot chase while working on July 31, 2016, Gilbert again injured his right knee, and was again treated by Dr. AS. Between October 2016 and June 2017, Dr. AS performed a series of treatments for Gilbert's most recent knee injury. After more conservative therapies failed to relieve Gilbert's symptoms, Dr. AS performed an arthroscopic partial medial meniscectomy on January 23, 2017, and aspirated Gilbert's knee and injected a steroid in April 2017. On June 9, 2017, Dr. AS determined that Gilbert was at maximum medical improvement and released him to return to full duty. Although Gilbert continued to have some pain and popping in his right knee, Dr. AS advised him that the continuing symptoms were caused by degenerative changes unrelated to his 2016 injury.

On June 27, 2017, Dr. AS completed a rating report which assessed that Gilbert had a 4% permanent partial disability of the right knee as a result of the July 2016 injury. Her rating report also stated that Gilbert “may need further medical care in the future for his underlying degenerative changes in his knee. These are not the result of his [2016] meniscus tear.”

Gilbert continued to experience right knee pain while running or walking, even after he was released from treatment for the 2016 injury. Gilbert returned to Dr. AS on July 25, 2018, and they discussed conservative options to manage the arthritis in his right knee, as well as the possibility of a future total knee replacement. On October 15, 2018, Dr. AS noted: “[i]t is my opinion with a degree of medical certainty that the patient's ongoing symptoms are not related to the 7/31/2016 work injury. The patient had a [knee] injury in 2012 which are [sic] likely linked to the ongoing issues, degenerative changes and future medical treatment not the 7/31/2016 injury.”

In 2019, Gilbert obtained a medical evaluation from Dr. JS. Dr. JS concluded that Gilbert had a 15% permanent partial disability of the right knee as a result of the 2016 injury. Dr. JS opined that Gilbert's three separate knee injuries constituted an occupational disease, which required additional treatment. Dr. JS reported that Gilbert would likely require a total knee replacement at some point as a result of the cumulative trauma to his right knee.

On February 19, 2021, an Administrative Law Judge held a hearing to determine whether the City was required to provide Gilbert with additional medical care for his 2016 right-knee injury. The ALJ reviewed the opinions offered by Drs. AS and JS. In a temporary award dated May 4, 2021, the ALJ held that the City was not required to provide Gilbert with additional medical care for the 2016 injury. The ALJ found Dr. AS's opinion to be more credible than Dr. JS's, based on the fact that Dr. AS had treated Gilbert over the course of multiple years and had performed three arthroscopic surgeries on his right knee. The ALJ also noted that, even if credible, Dr. JS's opinion would not support the conclusion that additional medical treatment was necessary to cure or relieve the 2016 injury, because Dr. JS found that additional treatment was necessary to address an occupational disease, not to address the July 2016 accident alone.

Following the temporary award, Gilbert sought medical treatment for his right knee through his health insurance. As part of that treatment, Dr. MR performed a total right knee replacement on July 28, 2022. Dr. MR's postoperative report diagnosed Gilbert with degenerative joint disease and osteoarthritis of the right knee.

On December 13, 2023, Gilbert saw Dr. AR for a medical evaluation. Dr. AR concluded that Gilbert's right knee condition was a result of the 2016 injury, and that the treatment he had received, including the total knee replacement, had been “reasonable, appropriate, and directly necessary to cure and relieve the effects of his injury.” Dr. AR opined that Gilbert suffered a 39.5% permanent partial disability of his right knee due to the 2016 injury, and faced the possible need for future medical care to revise or remove the knee prosthesis installed by Dr. MR.

The ALJ held a final hearing on October 28, 2024, and issued a final award on December 19, 2024. The ALJ found that Dr. AR's opinions constituted “additional significant evidence” justifying modification of the May 2021 temporary award. The ALJ found Dr. AR's opinions more credible than those of Dr. AS. Based on Dr. AR's opinions, the ALJ concluded that the City was required to reimburse Gilbert for past medical expenses totaling $72,159.13, and out-of-pocket expenses totaling $5,193.19, which included the cost of the total knee replacement surgery. In addition, the ALJ ruled that the City must provide future medical treatment associated with the total knee replacement. The ALJ found that Gilbert has a 30% permanent partial disability to his right knee as a result of the 2016 injury.

The City applied for review of the ALJ's final award by the Labor and Industrial Relations Commission. The Commission issued its own final award on September 19, 2025. By a two-to-one vote, the Commission reversed the ALJ's final decision in significant part. The Commission concluded that Dr. AR's new opinions did not constitute “ ‘additional significant evidence’ ․ sufficient to modify the temporary award,” because Dr. AR had seen Gilbert only once, seven years after his injury, and had not “provided long-term treatment of [Gilbert's] knee” (unlike Drs. AS and MR). The Commission's final award expressly found that the opinions of Gilbert's original medical provider, Dr. AS, were more credible than those of Dr. AR.

The Commission also found that, “[e]ven if ․ Dr. [AR's] opinion could potentially suffice as ‘additional significant evidence,’ ” Gilbert had failed to prove that his total knee replacement was necessary to cure or relieve the effects of his July 2016 injury. The Commission based this conclusion on the opinion of Dr. AS, and the assessment of Gilbert's condition by Dr. MR; both Drs. AS and MR had concluded that Gilbert's total knee replacement was necessary to address a degenerative condition, not the July 2016 injury. Accordingly, the Commission reversed the ALJ's award of past medical and out-of-pocket expenses, as well as the ALJ's award of future medical treatment costs. The Commission also rejected the ALJ's finding that Gilbert had suffered a 30% permanent partial disability of his right knee as a result of the July 2016 injury; instead, it found that he had suffered a 17.5% permanent partial disability to his right knee.

Gilbert appeals.

Standard of Review

The Missouri Constitution, Article V, § 18, provides for judicial review of the commission's award to determine whether the award is “supported by competent and substantial evidence upon the whole record.”

Section 287.495.1 of the Missouri statutes further indicates that a “court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.”

․ Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.

Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. 2003). “Only in rare cases will we find an award by the Commission to be contrary to the overwhelming weight of the evidence.” Martin v. Town & Country Supermarkets, 220 S.W.3d 836, 844 (Mo. App. S.D. 2007).

Discussion

I.

In Gilbert's first Point, he argues that the Commission erred in finding that he did not present “additional significant evidence” to justify modification of the ALJ's May 2021 temporary award. Gilbert argues that Dr. AR's new opinions, based on her examination of Gilbert following his total knee replacement surgery, constituted the “additional significant evidence” necessary to support modification of the temporary award.

In this case, we are reviewing a final award of the Labor and Industrial Relations Commission which rejected, in large part, a final award issued by an Administrative Law Judge in the Division of Workers’ Compensation. We must determine whether the final award rendered by the Commission – not the ALJ – is supported by substantial and competent evidence. As we explained in Molder v. Missouri State Treasurer, 342 S.W.3d 406 (Mo. App. W.D. 2011),

[t]he Labor and Industrial Relations Commission does not owe any deference to the decisions of its ALJs. To the contrary, § 287.480.1, RSMo 2000 gives the Commission plenary authority to make an award in any case properly brought before it. It specifies:

If an application for review is made to the commission within twenty days from the date of the award, the full commission, if the first hearing was not held before the full commission, shall review the evidence, or, if considered advisable, as soon as practicable hear the parties at issue, their representatives and witnesses and shall make an award and file it in like manner as specified in section 287.470.

Thus, where the Commission reviews an ALJ's decision, it essentially considers the issues de novo. Reviewing courts have emphasized that the Commission is not bound to follow the ALJ's decision, even concerning the assessment of witness credibility, but is entitled to reach its own conclusions․

Because the Labor and Industrial Relations Commission is the ultimate decision-maker in workers’ compensation cases, it is black-letter law that, on judicial review, we review the findings of the Commission and not those of the ALJ. Thus, whether there was substantial evidence supporting the ALJ's decision is not the relevant question – we must instead determine if there was substantial evidence supporting the decision reached by the Commission, even if the evidence would have also supported the opposite result.

Id. at 410–11 (cleaned up).

Thus, we are reviewing the Commission's final award “in the context of the whole record,” Hampton, 121 S.W.3d at 223, and that decision must stand or fall on its own merits, irrespective of what came before, including the ALJ's final award entered on December 19, 2024, and the ALJ's temporary award entered May 4, 2021. Given the scope and focus of our review, it is not relevant whether “additional significant evidence” was presented after the ALJ's temporary award.

Temporary workers’ compensation awards are authorized by § 287.510,¹ which provides:

Temporary or partial awards may be made. — In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

(Second emphasis added.) This statute merely provides that a temporary award “may be modified ․ to meet the needs of the case,” and that a temporary award (as originally entered or as modified) “may be kept open until a final award can be made.” A plain reading of § 287.510 differentiates between a temporary award and a final award. Under § 287.510, a final award entered by either an ALJ or by the Commission is not properly viewed as a “modifi[cation]” of a temporary award.

In any event, the requirement that “additional significant evidence” be presented to justify modification of a temporary award finds no support in the text of the Workers’ Compensation Law. Nothing in § 287.510 requires “additional significant evidence” before a temporary workers’ compensation award can be modified.

Neither this Court, nor the Commission, can add additional evidentiary requirements for modification of a temporary workers’ compensation award, beyond those stated in § 287.510. The General Assembly made significant amendments to the Workers’ Compensation Law in 2005. Among other things, it modified § 287.800.1 to specify that “[a]dministrative law judges, ․ the labor and industrial relations commission, the division of workers’ compensation, and any reviewing courts shall construe the provisions of this chapter strictly.”

Strict construction means that a statute can be given no broader application than is warranted by its plain and unambiguous terms. The operation of the statute must be confined to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. A strict construction of a statute presumes nothing that is not expressed.

Treasurer of State v. Penney, 710 S.W.3d 498, 500–01 (Mo. 2025) (quoting Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App. W.D. 2010)).

In light of the strict construction mandate, this Court has refused to follow certain legal rules which Missouri courts had previously adopted to further the underlying policies and purposes of the Workers’ Compensation Law, because those judicially created legal rules had no basis in the Law's express language. See, e.g., Robinson, 323 S.W.3d at 424-25 (holding that fellow employees of an injured worker were no longer entitled to immunity from civil actions for workplace accidents, since they did not fall within the definition of an “employer” granted immunity in § 287.120.1);² Norman v. Phelps Cnty. Reg'l Med. Ctr., 256 S.W.3d 202, 204-05 (Mo. App. S.D. 2008) (holding that a judge-made rule permitting employers to appeal temporary workers’ compensation awards on certain grounds could no longer be followed, since § 287.495 only authorizes an appeal from “[t]he final award of the commission”).

Given the strict construction we are required to apply to the Workers’ Compensation Law, we cannot impose a requirement that modification of temporary awards requires “additional significant evidence,” when no such requirement appears in the statute itself.

The “additional significant evidence” requirement also has a questionable provenance. The requirement first appeared in Jennings v. Station Casino St. Charles, 196 S.W.3d 552 (Mo. App. E.D. 2006), which held that “to modify a temporary award, the ALJ in the final award must find there was ‘additional significant evidence’ not before the ALJ at the temporary award.” Id. at 558. We applied Jennings in Jefferson City Country Club v. Pace, 500 S.W.3d 305, 320-21 (Mo. App. W.D. 2016), although we had no reason to question the “additional significant evidence” standard itself, since we affirmed the Commission's conclusion that “additional significant evidence” supported modification of a temporary award.

Jennings cited solely to Dilallo v. City of Maryland Heights, 996 S.W.2d 675, 676 (Mo. App. E.D. 1999), to support the “additional significant evidence” requirement. But Dilallo did not announce a rule of law that “additional significant evidence” was required to justify the modification of a temporary award. On the contrary, Dilallo merely noted – as a factual matter – that the ALJ in that case had found that “additional significant evidence on causation was presented” at final hearing, which the ALJ concluded justified modification of a temporary award. Id. Dilallo did not suggest that “additional significant evidence” was necessary to support modification of a temporary award.

The fact that temporary awards are just that – temporary – also argues against imposing evidentiary barriers to modification of a temporary award. Dilallo explained that “[t]emporary or partial awards are not subject to the principles of either claim or issue preclusion. They are not final judgments on the merits but are subject to modification.” 996 S.W.2d at 677. The case Dilallo cited for this proposition, Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395 (Mo. App. E.D. 1996), characterized temporary workers’ compensation awards as “tentative, provisional, contingent[, and] subject to recall, revision or reconsideration by the issuing agency.” Id. at 398 (citation omitted). Notably, Jennings itself recognized that “findings and conclusions made by an ALJ in a temporary award are not binding on any subsequent proceeding.” 196 S.W.3d at 558 (citing Dilallo, 996 S.W.2d at 676). If temporary awards have no preclusive effect, and are “not binding” in subsequent proceedings, it would be inconsistent to hold that a temporary award is modifiable only on a showing of “additional significant evidence” not presented at the original hearing.

Finally, it is significant that temporary awards are subject to only limited review by the Labor and Industrial Relations Commission. The Commission's rules provide:

(1) Whenever an administrative law judge issues a temporary or partial award under section 287.510, RSMo, the same shall not be considered to be a final award from which an application for review ․ may be made. The time for making an application for review shall not commence until a final award is issued by the administrative law judge in cases where a temporary or partial award has been issued.

(2) Any party who feels aggrieved by the issuance of a temporary or partial award by any administrative law judge may petition the commission to review the evidence upon the ground that the applicant is not liable for the payment of any compensation and especially setting forth the grounds for the basis of that contention and where the evidence fails to support findings of the administrative law judge as to liability for the payment of compensation. The commission will not consider applications or petitions for the review of temporary or partial awards where the only contention is as to the extent or duration of the disability of the employee for the reason that the administrative law judge has not made a final award and determination of the extent or duration of disability.

8 C.S.R. § 20-3.040. “Thus, an application seeking Commission review of a temporary or partial award entered by an ALJ is only permitted to challenge the foundational issue of liability, and not the extent or duration of disability.” Fernandez v. Smithfield Foods, Inc., 689 S.W.3d 499, 508 (Mo. App. W.D. 2024).

In this case, the City has not disputed the temporary award's finding that Gilbert suffered a compensable injury in July 2016. The only disputed issue is whether the City is liable to provide Gilbert with additional medical treatment to cure and relieve that injury, following Dr. Strong's conclusion that Gilbert had reached maximum medical improvement in June 2017. The extent of the medical treatment necessary to cure and relieve Gilbert's injury is not an issue on which an application for review is authorized by 8 C.S.R. § 20-3.040. Indeed, it is not clear that the rule authorizes a claimant to file an application for review of a temporary award at all.

Therefore, the first occasion on which the Commission had the opportunity to decide the scope of Gilbert's necessary medical treatment was after the entry of the ALJ's final award. The Commission's review could not be limited to deciding only whether “additional significant evidence” justified a departure from the ALJ's temporary award. The “additional significant evidence” requirement would constrain the Commission's ability to reach a decision contrary to an ALJ's temporary award, and thus would require the Commission to give a degree of deference to that temporary award. Such a notion is contrary to the Commission's role as “the ultimate decision-maker in workers’ compensation cases.” Molder, 342 S.W.3d at 410. Cases announcing and applying an “additional significant evidence” test should no longer be followed on that point.³

The Commission's final award cannot be sustained on the basis that Gilbert failed to present “additional significant evidence” to justify departure from the ALJ's temporary award. That was not the sole basis of the Commission's decision, however. The Commission's final award also held, in the alternative, that even if reconsideration of the temporary award was warranted, Gilbert had failed to prove that his total knee replacement was necessary to cure and relieve the workplace injury he suffered in July 2016. We conclude in § II below that the Commission's decision must be affirmed based on this alternative holding.

II.

In order to establish a right to workers’ compensation benefits, a claimant must establish that they suffered a compensable injury, and the extent of the compensation to which they are entitled. Under § 287.120.1, covered employers are responsible for compensating their employees, “irrespective of negligence,” “for personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment.” Section 287.020.3(1) specifies that “[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.”

In this case, the Commission adopted the ALJ's finding (which was based on the parties’ stipulation) that Gilbert sustained an injury by accident in the course and scope of his employment, and thus had suffered a compensable injury. Although Gilbert's second Point argues that the Commission erroneously determined that Gilbert's “right knee injury did not arise out of and in the course and scope of his employment,” the Commission found nothing of the sort.

Rather than the existence of a compensable injury, the primary disputed issue before the Commission was the extent of the medical care necessary to treat Gilbert's compensable injury. This issue is addressed by § 287.140.1, which provides that, “[i]n 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, ․ as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.”

As we explained in Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. App. W.D. 2011), “[s]ection 287.140.1 makes no reference to a ‘prevailing factor’ test and ․ presumes of necessity that the presence of a compensable injury under section 287.020.3(1) (which does require application of the prevailing factor test) has already been demonstrated.” Id. at 518.

[I]n determining whether medical treatment is “reasonably required” to cure or relieve a compensable 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. Rather, once it is determined that there has been a compensable accident, a 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.

Id. at 519 (citations omitted). “To receive an award of future medical benefits, ․ a claimant need only show a reasonable probability that, because of her work-related injury, future medical treatment will be necessary.” Id. at 524-25 (cleaned up).

Applying the standard specified in § 287.140.1, the Commission's final award refused to find that Gilbert's “total knee replacement was reasonably required to cure and relieve the effects of the July 31, 2016 work injury.” Gilbert's second Point argues that the Commission's conclusion is unsupported by substantial competent evidence. In his third Point, he argues that the Commission erred in denying future medical treatment related to his total knee replacement.

We reject Gilbert's challenges to the sufficiency of the evidence supporting the Commission's decision. The Commission had substantial evidence from which it could determine that Gilbert had failed to establish that further treatment – including his total knee replacement – was necessary to cure and relieve the July 2016 injury, after Dr. AS determined that he had reached maximum medical improvement in June 2017.

The Commission's decision is supported by the opinions of both of the physicians who actually treated Gilbert's right knee following his July 2016 accident. Dr. AS had treated Gilbert for several years, and had performed arthroscopic surgery on his right knee on three separate occasions. In June 2017, she concluded that she had provided Gilbert with all of the medical treatment which was available to address the injury he suffered in July 2016, and that he had reached maximum medical improvement in connection with that injury. Dr. AS opined that the ongoing symptoms Gilbert experienced after being released from treatment for the 2016 injury were related to ongoing degenerative joint disease, not the 2016 injury. It is significant that Dr. AS had advised Gilbert in 2013 that he was likely to require a total knee replacement within the next ten years. This prescient warning was obviously completely unrelated to the injury Gilbert suffered three years later.

Dr. AS's conclusion that Gilbert's need for a total knee replacement was unrelated to the July 2016 injury is supported by the pre- and post-operative reports prepared by Dr. MR, who actually performed Gilbert's artificial knee replacement. Dr. MR's pre-operative assessment of Gilbert stated “[r]ight knee osteoarthritis medial.” His post-operative diagnosis – following direct observation of Gilbert’ knee joint – was “Right DJD [i.e., degenerative joint disease] – Osteoarthritis.”

We recognize that Dr. AR offered a different assessment of Gilbert's condition. But there was substantial evidence supporting the Commission's conclusion that Dr. AS's opinions were more credible than Dr. AR's. Dr. AR examined Gilbert – once – more than seven years after the July 2016 injury. Dr. AR had not personally treated or performed surgery on Gilbert's right knee.

“Whether to accept conflicting medical opinions is a fact issue for the Commission, and this Court defers to the Commission's decisions relating to the credibility of witnesses and the weight given to testimony.” Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 632 (Mo. 2012).

Acceptance or rejection of medical evidence is for the Commission to determine. When competing medical causation testimony is presented, it is generally the Commission's prerogative to choose which testimony to believe. The Commission is free to believe whatever expert it chooses as long as that expert's opinion is based on substantial and competent evidence. We will affirm the decision of the Commission to accept one of two conflicting medical opinions if that decision is supported by substantial and competent evidence.

Comparato v. Lyn Flex West, 611 S.W.3d 913, 921 (Mo. App. E.D. 2020) (cleaned up).

In Dierks v. Kraft Foods, 471 S.W.3d 726 (Mo. App. W.D. 2015), we deferred to the Commission's choice among competing medical opinions in a case involving the identical issue presented here: whether a worker's knee injury could be fully treated by arthroscopic surgery, or instead required a total knee replacement. In Dierks, as here, the employer argued that the injured employee's “meniscus tear was appropriately and effectively treated by the arthroscopic surgery and that the overwhelming weight of the medical evidence showed that any need for knee replacement surgery was solely due to [the employee's] preexisting arthritic condition.” Id. at 733-34. This Court noted that the Commission was faced with competing opinions from multiple physicians as to whether the total knee replacement was necessary to treat the claimant's primary injury. Id. at 734. The Court then deferred to the Commission's conclusion that the claimant's need for a knee replacement flowed from the primary injury:

Employer ignores this Court's standard of review. This Court must defer to the Commission on questions of credibility and the weight to be given to the evidence. “Where the right to compensation depends upon which of two conflicting medical theories should be accepted, the issue is peculiarly for the Commission's determination,” and this Court “is bound by the Commission decision as to which of the various medical experts to believe.

Id. at 734-35 (citations omitted).

As in Dierks, we defer to the Commission's decision to credit the medical opinions offered by Gilbert's treating physicians, over the contrary opinions offered by a non-treating physician who examined Gilbert years after his primary injury. Points II and III are denied.

III.

In his fourth Point, Gilbert argues that the Commission erred in finding he had 17.5% permanent partial disability in his right knee. Gilbert asks this Court to adopt the finding of 30% permanent partial disability from the ALJ's final award.

“The Commission is not bound by the experts’ exact percentages of disability and is free to find a disability rating higher or lower than that expressed in medical testimony. This is because a claimant's degree of disability is not solely a medical question.” Tillotson, 347 S.W.3d at 523 (cleaned up). “[T]he determination of the specific percentage of disability is a finding of fact within the special province of the commission.” Id. at 524 (citation omitted).

Drs. AS, JS, and AR agreed that Gilbert has some degree of permanent partial disability in his right knee, rating him at 4%, 15%, and 39.5%, respectively. The Commission's award of 17.5% permanent partial disability is within the range established by the reports of all three medical doctors, and is greater than the disability rating provided by one of Gilbert's own experts. Moreover, the Commission could properly discount Dr. AR's disability rating, because that rating took account of Gilbert's condition, and symptoms, following his total knee replacement surgery. While an injured worker “is entitled to compensation for disability arising out of medical treatment reasonably required by section 287.140.1 to treat a compensable injury,” Tillotson, 347 S.W.3d at 523 (citation omitted), in this case the Commission found that Gilbert's total knee replacement was not reasonably required to treat the primary injury. Therefore, any limitations or symptoms Gilbert experienced as a result of the total knee replacement surgery could not properly be considered in determining Gilbert's level of disability.

Substantial competent evidence supported the Commission's finding that Gilbert had 17.5% permanent partial disability of the right knee as a result of his July 2016 injury.

Point IV is denied.

Conclusion

The decision of the Labor and Industrial Relations Commission is affirmed.

FOOTNOTES

1.   Statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated by the 2025 Cumulative Supplement.

2.   Following Robinson, the legislature amended § 287.120.1 in 2012 to restore immunity from lawsuits for co-employees of an injured worker, except in circumstances where the co-employee “engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” See H.B. 1540, 96th Gen. Assembly, 2d Reg. Session, 2012 MO. LAWS 445, 445.

3.   Because this opinion refuses to follow certain aspects of Jennings v. Station Casino St. Charles, 196 S.W.3d 552 (Mo. App. E.D. 2006), and Jefferson City Country Club v. Pace, 500 S.W.3d 305 (Mo. App. W.D. 2016), the opinion has been reviewed and approved by order of the Court en banc. See S. Ct. Operating Rule 22.01; W.D. Special Rule 31.

Alok Ahuja, Judge

All concur.