Tiffany Meachum v. Dana Corporation

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 07-034564

Employee: Tiffany Meachum

Employer: Dana Corporation

Insurer: Hartford Casualty Insurance Company

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 briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties stipulated the following issues for determination by the administrative law judge: (1) accident; (2) notice; (3) whether the accident arose out of and in the course of and scope of employment; (4) medical causation; (5) past medical expenses; (6) future medical care; (7) temporary total disability; and (8) permanent disability.

The administrative law judge made the following findings: (1) employee performed her job task by reaching into a basket and pulling out parts; (2) employer had actual notice and was not prejudiced; (3) there was substantial and competent evidence that employee's job task performance while in the course and scope of her employment caused her to suffer a herniation of the L5-S1 disc; (4) employee's work injury resulted in the need for medical treatment and employer is liable for past medical expenses; (5) employee met her burden of proof that she is in need of medical treatment in the future in order to cure and relieve the effects of the injury of March 23, 2007; (6) employee is entitled to temporary total disability benefits from March 8, 2009, until April 26, 2009; and (7) employee suffered a permanent partial disability of 15 % of the body as a whole as a result of her injury of March 23, 2007.

Employer submitted a timely Application for Review with the Commission challenging the administrative law judge's findings as to each of the disputed issues.

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

On January 22, 2001, employee strained her low back while jerking a box to remove it from a basket. She received treatment at Boone Hospital for left low back pain. The treating doctor diagnosed left sacral pain/sacroilitis with a clinical history of radiculopathy, prescribed a Medrol Dosepak, and put her on light duty. Employee underwent physical therapy and attended regular evaluations with her treating physician through February 16, 2001, when she was released to full duty work.

**Injury No.: 07-034564**

**Improved Brain**

**Improved Brain**

Beginning February 7, 2005, employee again sought treatment for low back pain. Treatment notes record a history of significant intermittent low back pain with radicular symptoms every three months or so. Employee took Flexeril, limited her activities, performed home stretches and exercises, and was ultimately released to full duty work on March 16, 2005.

On May 26, 2006, employee was in a motor vehicle accident which left her with injuries to the bilateral knees and low back. Treating doctors took employee off work until June 5, 2006, and employee underwent chiropractic treatment for her low back.

Employee testified that she hurt her back at work on March 23, 2007. Employee explained the circumstances as follows. Employee was working on a station called a cross-over and was taking a partial-built axle out of a three-sided basket and placing it on another line. After performing this activity for about four hours, employee felt a sharp pain in her low back and right leg. Employee described the pain as sharp and excruciating and testified it made her stand up for a minute to get herself together.

The foregoing testimony is in stark contrast with the medical record generated in connection with treatment employee received for her low back following March 23, 2007. For example, the record from employee's visit to her personal physician on March 27, 2007, relates that employee presented with longstanding problems with her low back, that she reported low back problems before the 2006 motor vehicle accident, and that she described her back as periodically becoming extremely painful and going out on her. There is no mention of employee complaining of a work-related injury. This document is characteristic of nearly all of the treatment notes in evidence. Multiple practitioners record a history of longstanding back problems and fail to mention any work injury at all, much less the specific circumstances of the accident employee described at the hearing.

Faced with these troubling contradictions, we turn back to employee's testimony. On cross-examination, employee flatly denied any memory of the circumstances surrounding the low back pain she experienced in 2001 or 2005, including symptoms, medical treatment, or whether she missed any time from work, and even denied recalling the condition of her back "at all" between 2001 and 2005. Later in her testimony, however, employee asserted that she would characterize her back as doing "fine" up until March 23, 2007. We fail to see how employee is able to reconcile an inability to remember anything "at all" about her back before the work injury with a belief that her back was doing "fine" up until the date of the alleged accident.

But in any event, we find that employee's striking inability to remember anything at all about the condition of her low back before the work injury casts doubt on her testimony as a whole. If employee's memory is really so lacking regarding her low back that she can't remember anything about her significant history of low back pain and medical treatment predating the injury, we are reluctant to credit her testimony about the alleged accident, especially when almost every medical record generated in connection with treatment for the low back after March 23, 2007, contains no history of a low back injury on that date.

**Injury No.:** 07-034564

Ultimately, given the foregoing considerations, we find employee's testimony lacking credibility. We find that employee did not experience the onset of low back or right leg pain while performing her work duties on March 23, 2007.

It is employee's burden to prove all of the elements of her claim to a reasonable probability. Cooper v. Medical Ctr. of Independence, 955 S.W.2d 570, 575 (Mo. App. 1997). This includes the burden of establishing the threshold factual proposition that an accident occurred at work. Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 492-93 (Mo. App. 2007). Section 287.020.2 RSMo states, in pertinent part:

> The word "accident" as used in this chapter shall mean 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.

We have determined that employee's testimony regarding the March 23, 2007, incident lacks credibility. We have found that employee did not experience the onset of low back or right leg pain while performing her work duties on that date. We conclude employee failed to meet her burden of proof. We conclude employee did not suffer an accident at work on March 23, 2007.

All other issues are moot.

Based on the foregoing, the Commission concludes and determines that employee failed to demonstrate that she sustained an accident on March 23, 2007. Accordingly, employee's claim for benefits is denied.

The award and decision of Administrative Law Judge David L. Zerrer, issued November 17, 2011, is attached solely for reference.

Given at Jefferson City, State of Missouri, this **19th** day of June 2012.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Member

Attest:

Secretary

Employee: Tiffany Meachum

Injury No. 07-034564

Dependents:

Employer: Dana Corporation

Additional Party:

Insurer: Hartford Casualty Insurance Company

Hearing Date: August 15, 2011/September 9, 2011

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checking Date: August 15, 2011/September 9, 2011

Checked by: DLZ

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: March 23, 2007
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone 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? 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 occurred or occupational disease contracted: Claimant lifted product and felt pain in back
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Back; body as a whole
14. Nature and extent of any permanent disability: 15 % of the body as a whole referable to the low back
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 4,095.00

Employee: Tiffany Meachum Injury No. 07-034564

1. Value necessary medical aid not furnished by employer/insurer? \25,298.91
2. Employee's average weekly wages: \ 906.13
3. Weekly compensation rate: $\$ 604.12 / \ 376.55
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 25,298.91

7 weeks of temporary total disability (or temporary partial disability) $\ 4,228.84

60 weeks of permanent partial disability from Employer $\ 22,593.00

1. Second Injury Fund liability: Yes No X Open

TOTAL: \$52,120.75 PLUS FUTURE MEDICAL EXPENSES

1. Future requirements awarded: As set out in this award.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Christopher Schappe

Employee: Tiffany Meachum

Employee: Tiffany Meachum

Dana Corporation

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Employee: Tiffany Meachum

Injury No. 07-034564

have been paid prior to the date of this hearing; the Employer has paid medical benefits in the amount of $\ 4,095.00 prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award plus expenses; the parties have further stipulated that any medical expense paid by the Employer was not paid to the University of Missouri Medical Center or Boone Hospital Center.

Whether the Claimant sustained an accident?

Whether the Claimant gave Employer proper notice?

Whether the accident arose out of the course of and scope of employment?

Whether the accident caused the injuries and disabilities for which benefits are now being claime