Dawn Shelly v. Drury Inn, Inc.

Exhibit 7 corroborates employee's testimony that she left work fifteen minutes early on June 3, 2003.

Employee's hearing testimony is the only firsthand evidence of what occurred during her work shift on June 3, 2003. If her testimony is credible, she met her burden of proving she sustained an accident. Clayton v. Langco Tool \& Plastics, Inc., 221 S.W.3d 490, 492 (Mo. App. 2007). The administrative law judge did not identify any aspect of employee's presentation or demeanor at the hearing as a reason for discounting employee's testimony regarding the accident. Instead, the administrative law judge reasoned that if employee told treating doctors about a variety of incidents in which she hurt her back, she must not be credible about the lifting incident on June 3, 2003. We disagree with that reasoning. Employee testified that she did experience a number of incidents that caused her to experience low back pain. The fact that she experienced all of these incidents and reported them to different treatment providers does not logically lead to a conclusion that employee was dishonest when she testified at the hearing that she lifted a box of bananas at work and experienced low back pain on June 3, 2003. As will be seen below, we believe the issue of multiple causative incidents is more appropriately dealt with under a medical causation analysis.

In light of employee's Exhibit Y combined with employer's failure to present any firsthand testimony to rebut employee's testimony about what happened, we discern no reason to reject employee's testimony regarding the lifting incident on June 3, 2003. Instead, we find employee credible regarding the circumstances of the lifting incident. We find that on June 3, 2003, employee bent over to pick up a big box of bananas and experienced low back pain. Because these circumstances unquestionably satisfy the statutory definition, we conclude employee sustained an "accident" for purposes of $\S 287.020 .2$.

Given our findings and conclusions on the issue of accident, we do not adopt the administrative law judge's findings, analysis, or conclusions beginning under the heading "Rulings of Law" on page 16 of the award and continuing to page 18.

We have concluded employee sustained an "accident" for purposes of the Missouri Workers' Compensation Law. We turn now to the question of medical causation of employee's low back condition or disability. Section 287.020 RSMo sets forth the relevant statutory framework for our analysis, and provides, in relevant part, as follows:

1. ... An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.

In addition to the accident employee sustained on June 3, 2003, employee identified no less than five other incidents from May 2003 to February 2004 in which she suffered a traumatic event resulting in low back pain. Specifically, employee (1) lifted a box of paper at work in May 2003 that caused her to suffer low back pain similar but not as severe as she experienced on June 3, 2003; (2) stood up from a couch while at home

during the evening of June 3, 2003, and experienced pain so severe she had to go immediately to the emergency room; (3) was, at some point in June 2003, dragged to her knees when a dog jerked to the side while she was holding its collar, which made her low back pain worse; (4) was, at some point in October 2003, knocked down by her stepmother's dog, which exacerbated employee's low back pain to the extent she went to the emergency room; and (5) fell down some stairs at work on February 17, 2004, which changed her symptoms of low back pain from left sided to more right sided pain, and also caused employee to experience an electric shock sensation that goes up her leg and spine when she puts weight on her foot.

Given this history of so many different traumatic events that caused employee to experience low back pain, and in some cases changed her symptoms or made them worse, it would seem the key issue in this case is whether the medical experts who testified on employee's behalf were able to provide a convincing explanation why employee's work should be seen as a substantial factor in causing the medical condition or disability of the low back of which she now complains. Notably, however, both parties failed to brief the issue of medical causation.

Turning to the expert medical evidence of record, we discover that the treating physician Dr. Smith recorded employee's belief that lifting heavy boxes caused her pain, and when employee's counsel asked him for a causation opinion, he opined that employee's back pain "seemed to first occur after a lifting injury at work." In his letter, Dr. Smith did not specifically identify the June 2003 accident, nor did he distinguish (or even mention) the other potentially causative incidents between May 2003 and February 2004. In light of these failings, and because Dr. Smith's "seemed to" opinion does not strike us as very confident or persuasive, we find Dr. Smith's causation opinion lacking credibility.

Next, we turn to the evaluating physician Dr. Feinberg's testimony. Dr. Feinberg believes that employee's pain and need for a surgical consultation are "causally related" to the June 2003 accident, but the doctor also lumped into his causation opinion the February 2004 incident in which employee fell down some stairs, which he opined "reinjured and aggravated" employee's low back. Dr. Feinberg listed some diagnostic studies which he believed demonstrated the effects of the 2004 incident, but did not specifically identify what medical conditions or disabilities were caused by the June 2003 accident as opposed to the February 2004 incident, nor did he explain why work, as among the numerous other traumatic events employee suffered, should be deemed a substantial factor in causing such conditions. Owing to these deficiencies, we find Dr. Feinberg's causation opinion lacking credibility.

Finally, we observe that Dr. Raskas evaluated employee on November 7, 2008, recorded employee's history of lifting things in 2003 and falling down stairs in 2004, and offered the opinion that employee is totally disabled and needs surgery. But Dr. Raskas did not provide a causation opinion of any kind.

Meanwhile, employer advances testimony from Drs. Rende, Cantrell, and Chabot, each of whom agree that work was not a substantial factor in causing employee's low back

complaints, citing the vague history, lack of documentation, and numerous intervening events and injuries.

Given the state of the expert medical evidence as described above, we ultimately find the testimony from Drs. Rende, Cantrell, and Chabot more credible than the testimony from Drs. Smith, Feinberg, and Raskas. We are persuaded that employee has failed to meet her burden of proving medical causation. We conclude that employee did not sustain a compensable injury because work was not a substantial factor in the cause of employee's low back condition or disability.

The parties, in their briefs, have identified some factual errors in the administrative law judge's award. We have reviewed the record and determined that certain of the administrative law judge's findings are indeed somewhat inaccurate. We hereby correct the administrative law judge's errors as follows.

On page 7 of her award, the administrative law judge states: "The records of Three Rivers Healthcare (Exhibit A), dated 06-06-03, show a history on page three stating that Employee stood up and had sudden pain, causing tingling in her toes." The administrative law judge incorrectly recited the date of the record from Three Rivers Healthcare. The correct date is June 3, 2003, not June 6, 2003.

On page 8 of her award, the administrative law judge states: "Employee testified that she received a pain injection, and that it seemed to work, but not for long. Dr. Soeter's records from Employee's 07-10-03 visit state that Employee's low back pain was basically resolved. Employee's testimony was to the contrary." This finding provides an incomplete version of Dr. Soeter's note and identifies a contradiction with employee's testimony where it is not clear that one exists. Dr. Soeter's treatment note from July 10, 2003, indicates:

The patient returns to clinic today reporting good pain relief, but it was short lived. She reports the pain is basically resolved on her low back, but she still has some pain on her right hip and right behind her right hip area. Otherwise, patient reports no new pain. The character of the pain has been the same.

Transcript, page 221.

The treatment note is confusing in that it indicates employee said her low back pain was "basically resolved" but at the same time she still had pain "right behind her right hip area" and that "the character of the pain has been the same." But the treatment note does at least partially comport with employee's testimony that she experienced pain relief from the injection, and that it didn't last very long. Given these circumstances, we disclaim the administrative law judge's finding as quoted above identifying a contradiction between employee's testimony and Dr. Soeter's July 10, 2003, treatment note.

On page 10 of her award, the administrative law judge states: "Dr. Neighmond's handwritten office notes from 08-21-03 show a complaint of back pain. They also

Injury No.: 03-145260

Employee: Dawn Shelly

-5 -

include the following: 'Last week - Drury Inn - light duty - transferred-w/o restrictions. May 03 bent down to pick up purse.'" The parties dispute whether this handwritten treatment note from an unknown person in Dr. Neighmond's office really says that employee picked up a "purse" or, as employee argues, "paper." We are unable to read this handwriting sufficiently to discern either "purse" or "paper," and, because we do not deem a stray handwritten comment in the treatment record to be particularly persuasive evidence concerning the issue of accident in this case, we wholly disclaim the abovequoted finding from the administrative law judge.

Finally, on page 13 of her award, the administrative law judge states: "Jefferson County Hospital had reported a bulging disc in September of 2003." This finding is inaccurate. It appears the administrative law judge was referring to a Jefferson Memorial Hospital intake form dated October 9, 2003, whereon an unidentified person wrote "bulging disc."

The Commission affirms and adopts the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with this supplemental opinion. We deny employee's claim because she failed to meet her burden of proof as to the issue of medical causation.

All other issues are moot.

The award and decision of Administrative Law Judge Maureen Tilley, issued August 7, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $6^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

change in pathology as between a June 2003 and June 2004 MRI. In fact, none of these doctors so opined.

Dr. Smith did not even mention the 2004 accident, Dr. Raskas took a history of it but offered no causation opinion, and Dr. Feinberg merely offered the vague testimony that employee's 2004 accident "re-injured and aggravated" an earlier condition of employee's low back. Dr. Feinberg listed some diagnostic studies which he believed demonstrated a change in pathology, but he did not identify what medical conditions or disabilities were preexisting as opposed to those that were caused by the "re-injury and aggravation," nor did he explain why work, as among the numerous other traumatic events employee suffered, should be deemed a substantial factor in causing such conditions.

Meanwhile, employer advances testimony from Drs. Rende, Cantrell, and Chabot, each of whom agree that work was not a substantial factor in causing employee's low back complaints, citing the vague history, lack of documentation, and numerous intervening events and injuries.

We ultimately find employee's experts Drs. Smith, Feinberg, and Raskas lacking credibility on the question whether work was a substantial factor in causing her low back pain. We are persuaded that employee has failed to meet her burden of proving medical causation. We conclude that employee did not sustain a compensable injury because work was not a substantial factor in the cause of employee's low back condition or disability.

The parties, in their briefs, have identified some factual errors in the administrative law judge's award. We have reviewed the record and determined that certain of the administrative law judge's findings are indeed somewhat inaccurate. We hereby correct the administrative law judge's errors as follows.

On page 7 of her award, the administrative law judge states: "The records of Three Rivers Healthcare (Exhibit A), dated 06-06-03, show a history on page three stating that Employee stood up and had sudden pain, causing tingling in her toes." The administrative law judge incorrectly recited the date of the record from Three Rivers Healthcare. The correct date is June 3, 2003, not June 6, 2003.

On page 8 of her award, the administrative law judge states: "Employee testified that she received a pain injection, and that it seemed to work, but not for long. Dr. Soeter's records from Employee's 07-10-03 visit state that Employee's low back pain was basically resolved. Employee's testimony was to the contrary." This finding provides an incomplete version of Dr. Soeter's note and identifies a contradiction with employee's testimony where it is not clear that one exists. Dr. Soeter's treatment note from July 10, 2003, indicates:

The patient returns to clinic today reporting good pain relief, but it was short lived. She reports the pain is basically resolved on her low back, but she still has some pain on her right hip and right behind her right hip area.

-3 -

Otherwise, patient reports no new pain. The character of the pain has been the same.

Transcript, page 221.

The treatment note is confusing in that it indicates employee said her low back pain was "basically resolved" but at the same time she still had pain "right behind her right hip area" and that "the character of the pain has been the same." But the treatment note does at least partially comport with employee's testimony that she experienced pain relief from the injection, and that it didn't last very long. Given these circumstances, we disclaim the administrative law judge's finding as quoted above identifying a contradiction between employee's testimony and Dr. Soeter's July 10, 2003, treatment note.

On page 10 of her award, the administrative law judge states: "Dr. Neighmond's handwritten office notes from 08-21-03 show a complaint of back pain. They also include the following: 'Last week - Drury Inn - light duty - transferred-w/o restrictions. May 03 bent down to pick up purse.'" The parties dispute whether this handwritten treatment note from an unknown person in Dr. Neighmond's office really says that employee picked up a "purse" or, as employee argues, "paper." We are unable to read this handwriting sufficiently to discern either "purse" or "paper," and, because we do not deem a stray handwritten comment in the treatment record to be particularly persuasive evidence concerning the issues involved in this case, we wholly disclaim the above-quoted finding from the administrative law judge.

On page 13 of her award, the administrative law judge states: "Jefferson County Hospital had reported a bulging disc in September of 2003." This finding is inaccurate. It appears the administrative law judge was referring to a Jefferson Memorial Hospital intake form dated October 9, 2003, whereon an unidentified person wrote "bulging disc."

Finally, we note that the administrative law judge's award contains what appears to be a formatting error in that the text that appears at the end of page 18 does not logically or grammatically correspond to that which appears at the beginning of page 19. It appears that a recitation of the findings of Drs. Smith and Raskas have been omitted from the award as a result of this error. But the findings of these doctors are recounted elsewhere in the award that we have adopted, and because we have rendered our own findings and analysis herein as to the credibility of these doctors, there is no need for us to amend the award by filling in the (apparent) blanks in the administrative law judge's analysis. Instead, we specifically disclaim the administrative law judge's analysis beginning on page 18 with a bullet point and the words "On 11-18-08, Dr. Raskus (sic)..." and continuing to page 19 through the sentence that concludes "...is not the case in this patient's case."

The Commission affirms and adopts the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with this supplemental opinion. We deny employee's claim because she failed to meet her burden of proof as to the issue of medical causation.

All other issues are moot.

The award and decision of Administrative Law Judge Maureen Tilley, issued August 7, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $6^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary