Tommy Mittenburg v. Missouri Pressed Metals, Inc.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we affirm the award of the administrative law judge by separate opinion.

The issues stipulated at the hearing were: (1) whether employee sustained an accident or occupational disease arising out of and in the course of his employment with employer; (2) whether the notice requirement of $\S 287.420$ serves as a bar to employee's claim for compensation; (3) whether a work-related accident or occupational disease of December 16, 2009, if found to have been sustained, was the cause of any or all of the injuries and/or conditions alleged by employee; (4) employee's average weekly wage and resultant compensation rates; (5) the employer's responsibility, if any, for the payment of past medical expenses; (6) whether employer shall be ordered to provide additional medical treatment for employee pursuant to § 287.140; (7) whether employer shall be ordered to pay temporary total disability benefits and, if so, for what period or periods of time and at what rate; (8) whether notice was properly raised in the employer's answer as an affirmative defense; (9) mileage; and (10) whether the employer waived its right to direct medical treatment under $\S 287.140$.

The administrative law judge found the following: (1) employee did not sustain an accident or injury on or about December 16, 2009; (2) employee did not comply with the written notice requirement of $\S 287.420$ in regard to an alleged accident or injury to the low back on or about December 16, 2009, and employee did not prove that employer was not prejudiced by the lack of written notice; and (3) because employee did not sustain an accident and because the claim is barred for want of statutory notice, all other issues are moot.

Employee submitted a timely Application for Review with the Commission alleging a number of errors. For the reasons set forth in this award and decision, the Commission affirms the award of the administrative law judge by separate opinion.

Employee alleges that he sustained an injury to his lower back and leg as a result of moving barrels and emptying a tumbler at work on or about December 14, 15, and 16, 2009. Employee testified that he went back to work on December 14, 2009, after undergoing chiropractic treatment in connection with a prior alleged injury, and that his work duties made his back pain worse and that he was also experiencing pain going down into his leg.

Improve: Tommy Mittenburg

- 2 -

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 referred to accidents sustained on December 14, 15, and 16, 2009, and opined that these were aggravations of the November 2009 injury. Dr. Norregaard's opinion is 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, and that the accidents on December 14, 15, and 16, 2009, were aggravations of the November 2009 injury.

**Conclusions of Law**

**Medical causation**

We believe the issue of medical causation is dispositive. Employee alleges that a series of accidents or occupational exposures caused him to sustain a low back and leg injury on December 14, 15, and 16, 2009.

Section 287.020.3(1) RSMo provides, in relevant part, as follows:

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.

Section 287.067.2 RSMo provides, in relevant part, as follows:

An injury by occupational disease is compensable only if the occupational exposure 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

**Employee: Tommy Mittenburg**

We conclude that employee has failed to meet his burden on the issue of medical causation. We have found credible the testimony from employee's expert that a November 2009 accident was the prevailing factor causing employee's medical condition of lumbar sprain, strain, and a herniated disc at the L4-5 level. Dr. Norregaard did not opine that the alleged accidents or occupational exposures on December 14, 15, and 16, 2009, were the prevailing factor causing any medical condition or disability.

Dr. Norregaard did opine the accidents on December 14, 15, and 16, 2009, were "aggravations" of the November 2009 injury, but stopped short at identifying what (if any) medical conditions or disability he believed resulted from said accidents or aggravations. *Transcript*, page 449. Given the paucity of discussion in the report, and because medical causation of a herniated disc is involved, we discern no basis for a finding that the December 2009 accidents or aggravations identified by Dr. Norregaard were the prevailing factor resulting in any medical condition or disability. See *Wright v. Sports Associated*, 887 S.W.2d 596, 600 (Mo. 1994) (holding that "[m]edical causation of a herniated disc of the spine cannot be considered uncomplicated.").

Given the foregoing considerations, we conclude that the alleged accidents or occupational exposures of December 14, 15, and 16, 2009, were not the prevailing factor in causing employee to sustain any lower back or leg injury.

Based on the foregoing, the Commission concludes that employee failed to meet his burden of proof on the issue of medical causation. Employee's claim for compensation is denied. All other issues are moot.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes issued October 4, 2011, is attached solely for reference and is not incorporated by this decision.

Given at Jefferson City, State of Missouri, this _____ 26th____ day of April 2012.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., 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 December 16, 2009.
5. State location where accident occurred or occupational disease was contracted: Alleged to be Sedalia, Pettis County, Missouri.
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 occurred or occupational disease contracted: Unknown.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: N/A.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? None.

Employee: Tommy Mittenburg

1. Employee's average weekly wages: Undetermined.
2. Weekly compensation rate: Undetermined.
3. Method wages computation: Stipulation.

1. Amount of compensation payable from Employer: None. Claim against Employer denied in full.
2. Second Injury Fund liability: None. Claim against the Second Injury Fund denied in full.

Employee: Tommy Mittenburg

An evidentiary hearing was held jointly in these cases (09-109673, 09-111074, 09111075, and 10-106450) in Sedalia on July 11, 2011, on Claimant's request for a temporary or partial award. Claimant, Tommy Mittenburg, appeared personally and by counsel Rick Koenig; Employer, Missouri Pressed Metals, Inc., appeared by counsel Eric Lanham. Insurer, Missouri Employers Mutual Insurance Company, appeared by counsel Eric Lanham. The Second Injury Fund did not appear.

In Injury No. 09-109673, the evidentiary hearing was held to decide the following issues:

1. Whether Claimant sustained an accident arising out of and in the course of his employment with Employer on November 9, 2009;
2. Whether the notice requirement of $\S 287.420$, RSMo serves as a bar to Claimant