Debbie Ferguson v. Precise Mold & Engineering

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-123961

Employee: Debbie Ferguson

Employer: Precise Mold \& Engineering

Insurer: Sentry Insurance Co.

Date of Accident: April 1, 2005

Place and County of Accident: St. Louis, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 13, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued December 13, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 12^{\text {th }}$ day of June 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: alleged to be April 1, 2005
5. State location where accident occurred or occupational disease contracted: St. Louis, Mo.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident happened or occupational disease contracted: While lifting boxes at work, Claimant alleged she injured her back.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: low back
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,935.00

Employee: Debbie Ferguson Injury No.: 05-123961 17. Value necessary medical aid not furnished by employer/insure? N/A 18. Employee's average weekly wages: Disputed 19. Weekly compensation rate: Disputed 20. Method wages computation: Disputed

1. Second Injury Fund liability: No

TOTAL:

-0-

1. Future requirements awarded: None

Each of said payments to begin and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Utica Morris

A hearing was held at the Missouri Division of Workers’ Compensation, St. Louis office, on September 11, 2006. Debbie Ferguson ("Claimant") requested additional medical treatment and temporary total disability (TTD) benefits pursuant to $\S 287.450$ RSMo. Attorney Utica Morris represented Claimant. Attorney Michael Banahan represented Precise Mold \& Engineering (Employer) and Sentry Insurance (Insurer). The Second Injury Fund was not a party to the case. Hearing venue is correct under $\S 287.640 .2$ and jurisdiction properly lies with the Missouri Division of Workers’ Compensation.

The parties have stipulated to the following:

1. Claimant was employed by Employer on April 1, 2005.
2. Employer and Claimant were operating under the provisions of Missouri Workers’ Compensation law.

Raskas. Realizing this, he could not provide a causation opinion within a reasonable degree of medical certainty, without reviewing the missing records (Ex A-28). He opined the herniated disc could have occurred before or after June 17, 2005.

1. Ms. Walls provided light duty but the Claimant testified she could not stand or sit; so she did not respond to Ms. Walls' letter to resume working. Claimant testified she stopped working in November 2005 due to the alleged April 2005 back injury while working. Claimant admitted she stopped working on her own and that Drs. Reinsel and Berkin not take her off work.
2. Claimant testified that she reported the April 1, 2005 injury to all physicians; but admitted no history of it was contained in the records of St. Anthony's, Arnold Family Medical, Dr. Aisenstat, or Dr. Reinsel.
3. She offered the following possibilities for the omissions: First, x-rays revealed arthritis. Second, St. Anthony's June $17^{\text {th }}$ records relate to a kidney infection only. Third, Claimant alleged inconsistencies in the records; for example; she denied saying she has been in pain since 1996, that she was in pain all day on April 1, 2005, that back pain started several weeks before April $1^{\text {st }}$ or that her left flank pain resolved by June 29, 2005.
4. Claimant testified that due to her back, she cannot work on a job or in the yard, and she has difficulty driving.
5. Ms. Walls has been responsible for workers' compensation claims for the past 23 years. When an injury occurs, it is her job to assess the situation, investigate, and take appropriate action.
6. The general manager called Ms. Walls during the Thanksgiving holiday and informed her Claimant said she was injured on the job.
7. Ms. Walls testified staff and supervisors informed her that November $21^{\text {st }}$ was the first time Claimant reported a work injury and requested treatment. No earlier report of injury was made by Claimant for either April $1^{\text {st }} or June 17^{\text {th }}$. There was no record of Claimant leaving work early on April 1, 2005 to seek medical care for a work injury.
8. Claimant complained about back and leg pain for some time but did not indicate it was due to an April 1, 2005 work injury. During that time, Claimant performed her work duties from April 2005 until November 2005.
9. Once notified of a work injury, Ms. Walls testified she referred Claimant to BarnesCare. Ms. Walls submitted a letter to Claimant informing her light duty was available, however, Claimant never responded.

After careful consideration of the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

Claimant asserted that she injured her back while lifting and stacking boxes at work on April 1, 2005. Section 287.020.2 RSMo. defines accident as "an unexpected or unforeseen identifiable event or series of events happening suddenly and violently with or without human fault, and producing at the time objective symptoms of an injury."

I do not find Claimant sustained a work related accident. Claimant left work early to seek treatment on her own for her back on April 1, 2005. However, she provided no history of injuring her back lifting boxes at work. It is reasonable to believe a patient would provide their own doctor with a history of injury which had occurred the same day. But nothing was contained in the St. Anthony's Medical Center records about an injury lifting boxes at work on April 1, 2005. Claimant did not provide a history of lifting at work on April $1^{\text {st }} when she treated at Arnold Family Medical Center on April 8^{\text {th }}$. A similar omission was found in the records of Dr. Aisenstat and Dr. Reinsel.

Claimant's testimony is not credible that she told the doctors about the April $1^{\text {st }}$ accident. I find Claimant provided a different history of accident to different doctors. It was not until she learned she had a herniated disc in November that she reported she injured her back lifting boxes on April 1, 2005. Claimant's own medical expert was not provided with records containing notes about: 'the 1996 boating accident followed by constant pain, worse on April $1^{\text {st }}, awaking with pain on April 1^{\text {st }}$ without acute injury and low back pain for two days radiating into left leg,.' Dr. Berkin was provided with the x-ray and MRI reports from those doctors. If the diagnostic results could be provided to Dr. Berkin, the remainder of the records should have been provided as well.

For these reasons, I find Claimant has not met her burden to show she sustained a work related accident on April 1, 2005.

A claimant must prove that his or her injuries resulted from an accident "arising out of and in the course of his employment". Section 287.120.1 Mo. Rev. Stat. (2000). Section 287.020.3(2) provides that:

an injury arises out of and in the course of the employment "only if (a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury, and; (b) It can be seen to have followed as a natural incident of the work; and (c) It can be fairly traced to the employment as a proximate cause; and (d) 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 nonemployment life."

The standard of proof is reasonable probability. Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 199 (Mo. App. 1990). "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986).

For an injury to arise "in the course of employment", it must occur "within the period of employment at a place where the employee may reasonably be, while engaged in the furtherance of the employer's business" or while the employee is "doing an act reasonably incidental to the performance of his duties of which his employer might reasonably have knowledge or reasonably anticipate." Mann v. City of Pacific, 850 S.W.2d 12, 15 (Mo. App. 1993). For an injury to arise "out of employment", there must be "a causal connection between the nature of the employee's duties or the conditions under which he is required to perform them and the resulting injury." Mann at 16-17. The tests are separate and both must be met before an employee is entitled to compensation. Abel v. Mike Russell's Standard Service, 924 S.W.2d 502, (Mo. banc 1996).

I do not find Claimant has met her burden to show the back injury arose out of and in the course of employment. As stated above, no history was given of an April $1^{\text {st }}$ injury lifting boxes when Claimant sought treatment. Claimant only provided a history of a 1996 injury which still caused pain, worse on April $1^{\text {st }}$. Claimant also reported lumbar pain radiating to the left leg since March 30, 2005, waking her on April $1^{\text {st }}$. This history cannot be traced to employment. I find the injury was not sustained in the performance of Claimant's duties. Claimant was diagnosed with a sprain/strain on April 1, 2005; however, I do not find a causal connection between Claimants' working conditions and the resulting injury.

Claimant bears the burden of proving an accident occurred and it resulted in injury. Dolen v. Bandera's Cafe \& Bar, 800 S.W.2d 163, 164 (Mo.App.1990). For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 704 (Mo.App.1973). Silman v. William Montgomery \& Associates 891 S.W.2d 173, 175 (Mo.App. E.D. 1995). Where the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding nor-in the absence of expert opinion-is the finding of causation within the competency of the administrative tribunal. Id. The subject of a herniated disc and its diagnosis, causation, and cure has been held to be "the realm of highly scientific techniques where expert opinion is essential." Id at 175 -176.

I find Claimant failed to show an accident occurred on April 1, 2005 or that it resulted in injury to her back. Dr. Berkin opined Claimant sustained a work injury based upon incomplete medical records. He was unaware of a 1996 boating accident which requiring stitches or constant pain since that time. Dr. Berkin did not know that by April 1, 2005, Claimant had experienced pain for two days, and was awaken with increased pain on April $1^{\text {st }}$. During deposition, Dr. Berkin testified on cross-examination that he was not aware of this history when he provided his causation opinion. Therefore, he would need more information before he could render an opinion within a reasonable degree of medical certainty.

Dr. Berkin's causation opinion addressed an accident date of June 17, 2005 but Claimant testified she was injured April $1^{\text {st }} not June 17^{\text {th }}. The Claim for Compensation was amended to reflect an injury date of April 1^{\text {st }}, however, Dr. Berkin was did not address causation for the April 1^{\text {st }}$ date of injury. Causation for a herniated disc requires expert opinion which expert did not provide.

Dr. Reinsel revised his causation opinion once he learned about the injury and complaints leading up to April 1, 2005. Dr. Reinsel concluded:

"After reviewing the notes that you have enclosed, however it seems that her complaints were related to a prior injury and were not related to any work injury. I think that she may have sustained a lumbar strain on 4-1-05 but her symptoms when I saw here were not related to this lumbar strain."

Both Dr. Berkin and Dr. Reinsel opined that herniated disc problems can wax and wane. However, the history related to them should not. A clear dichotomy existed between the history Claimant provided to her personal physicians and the history provided to workers' compensation physicians. For these reasons, I find Claimant did not meet her burden to show a causal connection between an alleged accident and a work related injury.

Claimant failed to show that she sustained an accident which arose out of and in the course of her employment. The claim for benefits is denied. All other issues are moot.

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation