The employee, the husband of the employee, and two co-employees, testified at the hearing. The remaining evidence consisted of exhibits from the parties comprised of medical records, medical reports, deposition of Dr. Koprivica and both the transcribed deposition of Dr. Coyle as well as the videotape deposition of Dr. Coyle.
In summary fashion, employee testified she was born September 23, 1954; she admittedly experienced back problems prior to September 11, 2002; she underwent back surgery under the auspices of Dr. Backer on June 21, 1999; due to a disc herniation at the L-5 transitional level on the right side Dr. Backer performed a discectomy directly removing the disc and also performed a medial and lateral facetectomy. Employee followed up postoperatively with Dr. Backer undergoing a postoperative MRI on August 3, 1999; employee's symptoms partially resolved over the next few months and employee's last consultation/visit with Dr. Backer postoperatively was October 26, 1999.
In April 2001, employee experienced recurrent back pain and lower extremity pain for which she consulted her primary physician, Dr. Osborn, with complaints of bi-lateral leg and back pain for the past few weeks which had progressively worsened. These complaints and symptomotology were not associated with any specific accident.
Employee became employed with employer in July 2002 and on September 11, 2002, employee sustained an injury due to an accident arising out of and in the course of her employment; i.e., a cabinet fell forward knocking employee to the floor. Her principal treatment on account of this injury was rendered under the auspices of Dr. Coyle, a board certified orthopedist. Dr. Coyle treated employee between November 13, 2002 and January 8, 2003.
Dr. Coyle rendered the following medical opinions:
To summarize my earlier conclusions, it can be stated with a reasonable degree of medical certainty that Dr. Backer performed reasonable and appropriate surgery in June of 1999 for a foraminal disc herniation. This provided relief at that time, however, Robin Mahoney has experienced progressive degenerative collapse of the L5 transitional segment on the right side, secondary to degenerative problems, prior surgery and scoliosis. There is no evidence that she sustained a recurrent disc herniation or a traumatic injury to the lumbar spine necessitating surgery as a consequence of the 9/11/02 work incident. There is no objective radiographic evidence that Robin Mahoney's work activities of 9/11/02 caused a change in pathology necessitating surgery. I do agree that she does need a lumbar fusion, however, this is directly attributable to her history of scoliosis, degenerative changes and a prior facetectomy at L5 transitional level on the right and progressive collapse at that level.
These medical opinions were expressed by Dr. Coyle in a report authored by him on November 4, 2004.
Dr. Coyle also testified via videotape deposition. Due to the medical complexity of this particular injury and residuals medically causally related to this injury, the Commission sets out verbatim salient videotape testimony of Dr. Coyle as follows:
Q: What is that opinion?
A: No. 1 she has scoliosis with a concavity on the right side of her lumbar spine. There are some other details as to the nature of the scoliosis. No. 2, she had surgery in 1999 to address nerve root impingement at what is referred to as L4 - 5, in some cases L5-S1, it's the same level in both places. She had a radiculopathy at the time of surgery, a protracted course following the surgery with problems sufficient to warrant postoperative evaluation with an MRI. When she saw me she had an MRI showing almost complete absence of the facet at L4-5 on the right side coupled with concavity of the spine at that level. What she did not have was any evidence of an acute injury at that level. We have films from prior to her surgery, within two months of her surgery in 1999, an MRI from 2002, there's no significant difference in pathology on any of those studies. We have a CT myelogram which I obtained in November of 2002 and that shows no evidence of a recurrent disc herniation. It does show postoperative sequela specifically at the site of the facetectomy and
scoliosis. So based on reviewing those studies, I could conclude with a reasonable degree of medical certainty that the proximate cause of her radiculopathy was compression of the nerves on the right side due to scoliosis and instability with a history of prior discectomy and absence of the facet.
Q: Okay. So I'm repeating what you just said, but these conditions that you diagnosed, is that what you attribute the limitations and complaints to?
A: Yes.
Q: And then do you have an opinion based on a reasonable degree of medical certainty whether the incident that Ms. Mahoney described having occurred at Bath \& Body Works on September 11th, 2002 was a substantial factor in causing any of the conditions diagnosed and previously discussed? A: It is my impression within a reasonable degree of medical certainty that that incident did not cause the pathology in the spine which is causing the sciatica in the right lower extremity and back pain and necessitating a lumbar fusion for scoliosis.
Q: Do you have an opinion as to whether the condition that you diagnosed and discussed a minute ago as a source of her complaints and limitations preexisted and was unrelated to the September 11, 2002 accident?
A: Yes.
Q: What is that opinion?
A: My opinion is that it is related to scoliosis and history of prior surgery, progressive degeneration at the affected level.
Q: And do you have an opinion whether her work at Bath \& Body Works and specifically this accident of September 11, 2002 caused or could have caused a change in pathology or change in the preexisting condition of her lumbar spine?
A: Yes. My opinion is that if one looks at the radiographic studies, there's no evidence of an acute injury, there's no evidence of a change other than progressive degeneration at that level secondary to scoliosis.
Q: Do you have an opinion as to whether the accident of September 11, 2002 was a substantial factor in causing any kind of a new injury or condition to the lumbar spine?
A: Yes, it's my impression to a reasonable degree of medical certainty that she sustained a lumbar sprain at that time.
Q: Do you have an opinion as to whether any of the conditions that may have preexisted this incident that you previously described, in which you indicated would be unrelated, were such that they would constitute a hindrance or obstacle to employment or re - employment prior to the accident?
A: Are you talking about the conditions of her spine prior to the accident?
Q: Right.
A: Yes, I think they would have.
Q: Okay. Do you have an opinion of whether the medical treatment Ms. Mahoney received following her September 11, 2002 accident with regards to her lumbar spine was reasonably required to cure and relieve her from the effects of a work-related injury?
A: Yes, I do. I think it was reasonably required to relieve her of the effects of the injury. Having said that, she has a very complex spinal disorder and so the work-up that she had, which was reasonable and appropriate, was more extensive than it would need to have been for someone who did not have preexisting scoliosis and prior spine surgery, specifically the CT myelogram would not have been necessary, the diagnostic injections and all that would not have been necessary.
Q: You indicated that she may have suffered a lumbar sprain or strain as a result of this accident?
A: Yes.
Q: Do you have an opinion whether she requires any additional treatment as a result of that?
A: It's my impression that the symptoms that are perpetuated are due to the scoliosis and instability and not to the accident.
Q: Do you have an opinion as to whether she would require future medical treatment with regard to her lumbar spine?
A: Yes.
Q: What is that opinion?
A: Well it's based on when I last examined her, so I can't say as to how she's doing now, but based on when Ilast examined her, reasonable appropriate treatment would include a lumbar fusion.
Q: Do you have an opinion then whether this treatment would have been necessary even had the accident of September 11, 2002 never occurred?
A: Yes.
Q: What is that opinion?
A: My opinion is that she has a progressive degenerative and congenital problem at her lumbar spine and will require ongoing treatment for that.
Q: And do you have an opinion whet