Tommy Mittenburg v. Missouri Pressed Metals, Inc.

Employee alleges that he sustained an injury to his lower back as a result of moving a barrel on or about September 24, 2009. Employee testified that he was emptying a tumbler at work and twisting a barrel over, and when he was almost to the place where he was supposed to put the barrel, the barrel went back. Employee testified he caught the barrel so it wouldn't spill on the floor and that he felt a pull and pain in his back below the belt-line from his waist to his tailbone.

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 noted that employee gave a history of an industrial accident occurring on September 24, 2009, but failed to further discuss the alleged accident, and ultimately offered no indication whether he believed the alleged accident resulted in injury to employee. Dr. Norregaard's testimony 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.

We believe the issue of medical causation is dispositive. Employee alleges that an accident caused him to sustain a lower back injury on September 24, 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.

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 identified the alleged accident of September 24, 2009, but did not discuss it further and did not opine that it was the prevailing factor causing any medical condition or disability.

Because Dr. Norregaard failed to offer testimony that would allow us to determine what (if any) lower back injury he believes employee sustained as a result of the alleged accident on September 24, 2009, we discern no basis for a finding that an accident on that date was the prevailing factor resulting in any medical condition or disability, especially where medical causation of a herniated disc is involved. 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 accident of September 24, 2009, was not the prevailing factor in causing employee to sustain any lower back injury for purposes of $\S 287.020 .3(1)$.

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 $\qquad 26^{\text {th }} \qquad$ day of April 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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 September 24, 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: Alleged to be catching a barrel of chemicals which was falling off of the rollers.
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

Injury No: 09-111075

Employer: Missouri Pressed Metals, Inc.

Insurer: Missouri Employers Mutual Insurance Co.

Address: 09-111075

Address: 09-111075

Missouri Employers Mutual Insurance Co.

Address: 09-111075

Address: 09-111075

Address: 09-109673, 09-111075, and 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106450, 10-106