Tommy Mittenburg v. Missouri Pressed Metals, Inc.

Employee testified that he told Robert Meenen, employee's safety director, that he hurt his neck and back either that same day or the next day. Mr. Meenen testified and acknowledged employee reported an injury to him, and that he even took employee twice to the chiropractor and that employer paid for these visits, but urged that employee only reported a neck injury to him. Mr. Meenen also testified that employee told him on several occasions both before and after November 9, 2009, that he was having back problems, but always made clear they were not related to his work.

We find employee more credible than Mr. Meenen as to this fact issue. The evidence shows employee suffers from borderline mental retardation, took special education classes from the second grade on, is functionally illiterate, and his thought processes are comparable to those of a child. We find it difficult to imagine this employee volunteering the multiple relatively sophisticated and unequivocal disclaimers regarding his back problems described by Mr. Meenen. We also find it difficult to believe that Mr. Meenen would tell employee he could get treatment for the low back during the first authorized visit to the chiropractor if he believed it wasn't a work injury, not to mention take employee back again and pay for even more treatment to the low back. Finally, we note that Mr. Meenen admits he failed to report the neck injury he avers employee reported to him on or about November 9, 2009, even though he also testified he believed it was his responsibility to report any injury that required medical treatment.

We find that on or about November 9, 2009, employee told Mr. Meenen that he hurt his neck and back while manipulating a heavy barrel at work on that date.

Employee presented the medical expert testimony of Dr. Thorkild Norregaard. Dr. Norregaard opined that an accident sustained by employee on November 9, 2009, was the prevailing factor in causing a lumbar sprain, strain, and disc herniation at L4-5. Dr. Norregaard also opined that the accident of November 9, 2009, with the resulting chiropractic treatment, was the prevailing factor causing employee to require medical treatment to the low back, including past treatments and future medical care. Finally, Dr. Norregaard opined employee has been totally disabled since September 3, 2010, and that the accident of November 9, 2009, is the prevailing factor in the cause of employee's total disability. Dr. Norregaard's opinions are offered in a two-page report that provides little analysis or explanation. Employer did not cross-examine Dr. Norregaard.

Employer presented the medical expert testimony of Dr. Adrian Jackson. Dr. Jackson agreed that employee has a herniated disc at L4-5 but declined to offer any medical opinion as to what factors may have caused it. Instead, Dr. Jackson opined that: "This patient underwent numerous treatments from September 2009 into 2010 without any documentation of a specific work related incident reported through workers' compensation. Irregardless of Mr. Mittenburg's work obligations and job duties, without this documentation, I do not feel his work is a prevailing factor in his current clinical condition." Transcript, page 706. In other words, Dr. Jackson opined that no matter what occurred at work, he can't find a prevailing factor because of what he perceives as a lack of documentation or reporting through workers' compensation.

We are tasked with determining which of these doctors provides the more credible expert medical testimony. Dr. Norregaard's opinion is somewhat conclusory and provides little explanation. But Dr. Jackson has not provided a competing medical opinion as to what caused employee to sustain a herniated disc at L4-5, instead advancing his own legal conclusion or credibility determination as to the merits of employee's claim. As a result, it appears to us that Dr. Norregaard's opinion stands essentially unrebutted. Given the circumstances, we find Dr. Norregaard more credible than Dr. Jackson.

We credit Dr. Norregaard's testimony that the November 9, 2009, accident was the prevailing factor causing a lumbar sprain, strain, and disc herniation at L4-5. We further credit Dr. Norregaard's opinions as to the issues of employee's need for past and future medical treatment and temporary total disability. We also find credible employee's own testimony that he believes he has been unable to work since September 3, 2010.

Employee provided a Wage Statement setting forth his wages in the thirteen weeks preceding the date of November 9, 2009. Employee and his wife testified that they went through all of the medical bills admitted into evidence and that they represent employee's medical expenses for the work injury. Employee's wife testified employee remains liable on the bills and that bill collectors are calling her. Finally, employee submitted an exhibit showing his mileage incurred in driving from his home in Sedalia, Missouri, to Columbia, Missouri, to get medical treatment following the work injury. Employer did not present any evidence to rebut the amounts reflected in employee's evidence as to his wages, medical expenses, or mileage. We find employee's evidence of his wages, medical bills, and mileage expenses to be credible.

We have resolved the disputed fact issues and now proceed to the legal questions presented by the parties. First, however, we wish to point out that certain of the issues stipulated by the parties appear to have been imprecisely stated and perhaps have not heretofore been appropriately framed. Some discussion is in order so that further confusion is avoided.

The parties asked the administrative law judge to resolve the issue whether employee "sustained an accident arising out of and in the course of his employment." But § 287.020.3(2) RSMo does not require an employee to prove an "accident" arising out of and in the course of employment, but rather an "injury" arising out of and in the course of employment. The distinction is not merely academic where both "accident" and "injury" have specific definitions for purposes of Chapter 287, and where we are required to strictly construe the provisions of the Missouri Workers' Compensation Law. See § 287.800.1 RSMo. The difficulty with the way in which the parties have stated the issue is that it raises the question whether, by stipulating as a single issue "whether employee sustained an accident arising out of and in the course of his employment," the parties really mean to stipulate two issues, i.e., (1) whether employee sustained an "accident" as that term is defined in § 287.020.2 RSMo, and (2) whether the injuries allegedly resulting from that accident "arose out of and in the course of employment" for purposes of $\S 287.020 .3(2)$ RSMo. Because we are duty-bound to resolve no more and no less than the particular factual and legal issues the parties stipulate as in dispute, the importance of precisely stating those issues on the record can easily be seen.

Although the parties do not explicitly discuss in their briefs the issue whether employee's alleged injuries "arose out of and in the course of his employment," in an effort to give full effect to the stipulations of the parties, we will resolve both the issues of (1) whether employee sustained an "accident," and (2) whether employee's alleged injuries arose out of and in the course of his employment.

We conclude that employee met his burden of demonstrating he sustained an accident for purposes of the Missouri Workers' Compensation Law. Section 287.020.2 RSMo defines "accident" as:

[A]n 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.

We have found that employee was working for employer on November 9, 2009, performing a task that involved manipulation of a very heavy barrel, when he felt immediate pain in his back and neck. Employee's credible testimony unquestionably establishes that this was a traumatic event, that it was identifiable by time and place, and that it produced objective symptoms of an injury caused by a specific event during a single work shift.

We conclude, therefore, that the November 9, 2009, event meets all of the statutory criteria and constitutes an "accident" for purposes of $\S 287.020 .2$.

We have credited Dr. Norregaard's testimony that the November 9, 2009, accident was the prevailing factor causing a lumbar sprain, strain, and disc herniation at L4-5. We conclude that the accident of November 9, 2009, is the prevailing factor causing employee's resulting medical condition and disability. We con