Tommy Mittenburg v. Missouri Pressed Metals, Inc.

Improve: Tommy Mittenburg

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accident; and (3) because employee's claim is barred by failure to provide notice to employer.

Employee filed a Motion to Dismiss employer's Application for Review for failing to comply with the specificity requirement set forth in 8 CSR 20-3.030(3)(A). On November 10, 2011, we issued an order denying employee's Motion to Dismiss employer's Application for Review, based on our finding that the employer's allegations were minimally sufficient to overcome employee's challenge.

For the reasons set forth in this award and decision, we reverse the award of the administrative law judge.

**Findings of Fact**

Employee alleges that he sustained an injury to his lower back and leg as a result of moving a barrel at work on September 3, 2010. Employee testified that he experienced very bad pain in his back and leg when he was emptying the tumbler at work and trying to catch a barrel that was falling.

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 an accident sustained on September 3, 2010, and opined that this event aggravated 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 accident of September 3, 2010, was an aggravation of the November 2009 injury.

**Conclusions of Law**

**Medical causation**

We believe the issue of medical causation is dispositive. Employee alleges an accident on September 3, 2010, caused him to sustain lower back and leg injury. Section 287.020.3(1) RSMo provides, in relevant part, as follows:

Injury No.: 10-106450

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 did not opine that the alleged accident on September 3, 2010, was the prevailing factor causing any medical condition or disability.

Dr. Norregaard did opine the accident on September 3, 2010, was an "aggravation" of the November 2009 injury, but stopped short at identifying what (if any) medical conditions or disability he believed resulted from this aggravation. *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 September 3, 2010, aggravation identified by Dr. Norregaard was 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 accident of September 3, 2010, was 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

Employee: Tommy Mittenburg

Imjury No. 10-106450

Dependents:

Before the

DIVISION OF WORKERS'

Employer: Missouri Pressed Metals, Inc.

Additional Party: Second Injury Fund

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Missouri Employers Mutual Insurance Co.

Hearing Date: July 11, 2011

Checked by: RJD/cs

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: September 3, 2010.
5. State location where accident occurred or occupational disease contracted: Sedalia, Pettis County, 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? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
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: Claimant was lifting a large barrel of chemicals into the hopper when he injured his low 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. Compensation paid to-date for temporary disability: None.
15. Value necessary medical aid paid to date by employer/insurer? None.
16. Value necessary medical aid not furnished by employer/insurer? \3,572.94.

1. Employee's average weekly wages: \ 477.64.
2. Weekly compensation rate: $\ 318.43.
3. Method wages computation: Section 287.250.1(4).

1. Amount of compensation payable:

Unpaid medical expense: $\ 3,572.94.

Mileage for medical treatment: $\ 345.00

Temporary total disability benefits of $\ 318.43 per week beginning September 4, 2010.

Medical treatment as set forth more fully herein.

Each of said payments to begin immediately 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 l