On December 1, 2008, employee was moving a pallet by hand when he twisted improperly and felt a sudden pain in his lower back. Employee reported this incident to his supervisor, George Schneller. Mr. Schneller asked employee if he wanted to go to a doctor, but employee did not think he needed to go and returned to work. Employer filed a report of injury regarding this incident.
Employee had a history of low back problems prior to the December 2008 incident. Employee had injured his back while pole-vaulting in high school and had seven prior workers' compensation claims relating to his back. In 1999 or 2000 employee underwent an L4-L5 spinal fusion. Employee testified that this relieved his low back pain until the December 2008 work injury. However, after the fusion in 1999 or 2000, employee did have some right leg problems, including twitching and a little weakness.
Following employee's December 2008 work injury, employee did not seek medical care for his lower back until June 11, 2009, when he consulted his nurse practitioner of 20 years, Carol Thomas, and Dr. Cater. Dr. Cater's records indicate that employee injured his back approximately 2-3 weeks prior to June 11, 2009, when he was "lifting some heavy objects with bending and twisting a lot and began having increased pain." Employee was prescribed anti-inflammatories and muscle relaxers. Neither Ms. Thomas's nor Dr. Cater's records make any mention of a December 2008 incident and/or ongoing low back problems therefrom.
Employee returned to work following the May/June 2009 lifting incident, but experienced problems. Employee told Mr. Schneller his back was "killing him." Employer did not offer treatment. September 17, 2009, was the last day employee worked for employer.
Employee followed up with Ms. Thomas and Dr. Cater on September 3, 2009, and complained of severe pains down his left leg. Ms. Thomas scheduled an MRI for employee and referred him to Dr. Montone.
Employee saw Dr. Montone on September 23, 2009, and complained of a gradual increase in pain over the previous 6-8 months. Dr. Montone performed surgery on employee's back on September 30, 2009, and discovered a large disc herniation on the left side of L5-S1. Dr. Montone also observed some calcification scarring in that disc that extended towards the midline and traveled up towards the L4-L5 disc space. There was also scarring of the L5 nerve root. Dr. Montone testified that he believes that the aforementioned observations can indicate that the disc herniation was there for some time.
On February 15, 2010, Dr. Montone prepared a report regarding employee's condition. Dr. Montone stated in said report that it is his opinion that employee's condition "was
Enployee: David Johnson
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caused by his work injury originating on December 8, 2008, through his frequent need to perform repetitive bending, heavy lifting and twisting as well as bending, lifting and twisting with a weight in the hand." Dr. Montone went on to state that he believes "this was the prevailing factor for his condition and was ultimately responsible for his need for medical treatment and eventually his surgery, as well as his current level of pain and disability."
Dr. Montone testified during his deposition that employee's injury to his lower back "was caused by the incident on December 8, 2008, in which he went to lift an object and felt back pain." On cross-examination, Dr. Montone revealed that during his initial visit with employee on September 23, 2009, employee did not mention a December 2008 work injury. In fact, employee did not discuss his work activities with Dr. Montone, nor was Dr. Montone aware of a December 2008 incident, until after his surgery. None of Dr. Montone's treatment records show that employee told him about any incidents at work in 2008 or 2009 that caused or increased his symptoms. During the initial visit on September 23, 2009, however, employee did discuss with Dr. Montone his prior back injury/surgeries in 1999 or 2000.
Dr. Montone testified that he never questioned employee about Dr. Cater's records showing that employee's symptoms started following a lifting injury 2-3 weeks prior to June 11, 2009. Dr. Montone conceded that he could not rule out the May 2009 event as the cause of employee's herniated L5-S1 disc.
Dr. Amundson saw employee on August 4, 2010, for the purpose of performing an independent medical evaluation. Dr. Amundson testified that employee related to him during the medical evaluation that on December 1, 2008, he was moving a pallet with freight that weighed approximately 100 lbs. when he felt a pull and strain in his back. Employee told Dr. Amundson that he waited several months before seeing his personal physician because he did not wish to provide an additional expense to his employer.
Dr. Amundson noted that employee had no treatment for his back from 2000 until June 2009. With regard to Dr. Cater's June 11, 2009, note, Dr. Amundson found it significant that Dr. Cater stated that employee was moving in somewhat of a guarded fashion and that he was having "pain in his left low back with straight leg raise and slightly worse on the left than the right."
Dr. Amundson noted that employee's first indication of radiculopathy in the left leg was in Dr. Cater's September 3, 2009, note. However, Dr. Amundson testified that employee told him during his evaluation of employee that the left leg radiculopathy all started on December 1, 2008. Dr. Amundson testified that employee did not tell him about the May/June 2009 lifting incident.
Dr. Amundson stated in his report that "the medical records do not support a December 2008 injury whatsoever." Dr. Amundson stated that he had a lot of trouble making a disposition of medical causation because of the discrepancies in the record. Dr. Amundson noted that employee was very clear in his history about a specific injury, date of injury, and progression of symptoms from that date of injury, and that he had no preexisting problems
Injury No.: 08-107387
Employee: David Johnson
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prior to that date of injury. However, after going through employee's medical records, Dr. Amundson observed that employee had at least 20 years of preexisting back problems. In addition, none of employee's medical records supported his December 2008 injury until the fall of 2009, including his most proximate visit with his primary care physician on June 11, 2009. Dr. Amundson ultimately concluded that while he could not definitively state what the medical causation was, he could state that the December 2008 injury was not the prevailing factor in causing employee's low back condition.
**Conclusions of Law**
First, it is important to note that employee is alleging that his accidental injury occurred in December 2008. Therefore, this case falls under the purview of the 2005 amendments to Missouri Workers' Compensation Law.
Section 287.120 RSMo "requires employers to furnish compensation according to the provisions of the Workers' Compensation Law for personal injuries of employees caused by accidents arising out of and in the course of the employee's employment." *Gordon v. City of Ellisville*, 268 S.W.3d 454, 458-59 (Mo. App. 2008).
Section 287.020.2 RSMo defines "accident" as: "An unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."
Pursuant to § 287.020.3 RSMo, an "injury" is defined to be "an injury which has arisen out of and in the course of employment." Section 287.020.3 RSMo further states that:
"An 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."
The primary issue concerning this case is medical causation. In determining medical causation, the Court in *Bond v. Site Line Surveying*, 322 S.W.3d 165 (Mo. App. 2010) held, as follows:
'The claimant in a worker's compensation case has the burden to prove all essential elements of her claim including a causal connection between the injury and the job.' *Royal v. Advantica Rest. Group, Inc.*, 194 S.W.3d 371, 376 (Mo. App. W.D. 2006) (internal quotation marks and citations omitted).
'Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause.' *Lingo v. Midwest Block & Brick, Inc.*, 307 S.W.3d 233, 236 (Mo. App. W.D. 2010) (quoting *Gordon*, 268 S.W.3d at 461). The weight afforded a medical expert's opinion is exclusively within the discretion of the Commission. *Sartor v. Medicap Pharmacy*, 181 S.W.3d 627, 630 (Mo. App. W.D. 2006). Furthermore, where the right to compensation depends on which of two medical theories should be accepted, 'the issue is peculiarly for the
Improvee: David