Donald Fairley v. Embarq/Century Link

both the cervical and lumbar conditions. If employee is determined not to be a surgical candidate, Dr. Cohen recommends medications, injections, and pain management consultation. Dr. Cohen also recommended that employee see a headache specialist, receive appropriate medications, and undergo a neuropsychological assessment for memory problems.

Dr. Robson believes that the June 2010 accident is the prevailing factor causing employee to develop symptomatic cervical and lumbar spondylosis. With regard to the cervical spine, Dr. Robson explained that the accident caused a bulge or herniation at C5-6 with impingement, and a mild flattening of the anterior aspect of the spinal cord with moderate central canal narrowing. Dr. Robson disagreed with Dr. Lange's diagnosis (described below) of a "chronic cervical strain." Dr. Robson does not believe that such a condition exists, because a strain implies a muscular injury which should resolve over time, while employee continues to be symptomatic.

Dr. Robson also believes that the June 2010 accident caused employee to develop a condition he described as pre-myelopathy. Dr. Robson pointed to a positive Hoffman's sign, a test performed on physical examination wherein the doctor flicked employee's middle finger and observed employee's thumb flexing in response. Dr. Robson explained that a positive Hoffman's sign indicates spinal cord injury or impingement. Dr. Robson also pointed to brisk reflexes on exam, employee's recent history of dropping things, and the mild spinal cord flattening indicated on the July 6, 2010, MRI as pre-myelopathic signs.

Dr. Robson recommends a cervical discectomy and fusion at C5-6 to address the spinal cord flattening and impingement. Dr. Robson explained that this procedure will alleviate employee's symptoms by addressing the impingement of the nerves in employee's cervical spine, relieving the pain employee has from the bone spurs at C5-6, and stopping the progressive deterioration of employee's cervical spine, which could lead to the serious condition of myelopathy. Dr. Robson also recommends continued observation and treatment of the lumbar spine, to include physical therapy and, if needed, injections.

Finally, Dr. Robson opined that he would be happy to evaluate employee again, in light of the fact he was the only doctor to find a positive Hoffman's sign on examination. Dr. Robson agreed, on cross-examination, that his finding that employee shows signs of a pre-myelopathic condition may have been a mere "variant." Dr. Robson opined that a follow-up exam may be indicated to be absolutely certain of the urgency of the surgical procedure he recommends. In light of this testimony, it appears that Dr. Robson's belief that employee is pre-myelopathic forms the basis for Dr. Robson's opinion that surgery is urgent and should not be postponed in favor of more conservative treatment. Dr. Robson has not seen employee since June 23, 2011.

Dr. Wayne, on the other hand, believes employee's complaints are caused by a preexisting cervical spondylosis at C5-6. Dr. Wayne believes the June 2010 accident caused a cervical strain which was temporary and lasted only 6-8 weeks, and opined that the accident was not the prevailing factor causing employee's ongoing symptoms.

Dr. Wayne believes there is no evidence of a superimposed lesion, such as a disc herniation, related to the June 2010 accident; Dr. Wayne reasoned that if the June 2010 accident did cause a significant disruption of employee's preexisting degenerative condition, that employee would have experienced more severe symptoms. On examination, Dr. Wayne noted that employee complained of dropping things and having trouble with manual dexterity.

As to employee's low back complaints, Dr. Wayne opined employee suffers from significant L5-S1 spondylolisthesis with advanced degenerative disc disease and foraminal narrowing; Dr. Wayne believes this condition also preexisted the June 2010 accident. Dr. Wayne opined that it is highly unlikely that employee's low back was asymptomatic prior to the June 2010 accident considering the extent of the disease.

Dr. Wayne provided a supplemental report wherein he agreed that employee should be reevaluated in light of Dr. Robson's findings pertinent to pre-myelopathy. Dr. Wayne maintained that surgical intervention should not be considered until conservative measures have been exhausted. Dr. Wayne also reiterated his belief that any problems employee currently has with respect to his cervical or lumbar spine (including the possibly pre-myelopathic findings) are caused by preexisting degenerative conditions rather than the June 2010 accident.

In his relatively brief report, the neurologist Dr. Hogan registered his belief that the June 2010 accident is the prevailing factor in causing a lumbar strain which would have lasted 2-3 weeks, but that the accident does not have any relationship to the spondylolysis or spondylolisthesis in the low back or the cervical spondylosis at C5-6. Dr. Hogan noted employee did not complain of any pain radiating from his neck or paresthesias in his arms. Dr. Hogan does not believe employee has any need for further treatment to cure and relieve the effects of the June 2010 accident.

We turn finally to the opinions of employer's expert Dr. Lange, who disagrees with both Dr. Hogan and Dr. Wayne, in that he believes the June 2010 accident is the prevailing factor in causing employee's current complaints. Dr. Lange opined that the accident caused post-traumatic headaches (which the doctor found to have resolved at the time of his examination), an aggravation of a preexisting degenerative disc at C5-6, and a herniation at T12-L1 and associated lumbar discomfort. Dr. Lange was unable to point to any specific anatomic pathology of employee's cervical spine resulting from the June 2010 accident, but instead described employee's condition as a chronic strain of the cervical spine.

With respect to cervical spine surgery, Dr. Lange opined that employee's symptoms did not warrant surgical intervention. Dr. Lange believes that radicular pain (which employee does not have) is the primary reason to consider cervical spine surgery, followed by (in order of importance) motor weakness, incapacitating dysesthesia, and neck pain. Dr. Lange took issue with Dr. Robson's description of employee's condition as "premyelopathic." Dr. Lange opined that there is no such concept in spinal surgery. Dr. Lange

found no significant spinal cord compression, did not find a positive Hoffman's sign, and opined that the other indicators of myelopathy were normal on examination.

With respect to the need for additional medical treatment, Dr. Lange opined that there is no treatment that will alleviate employee's neck pain because too much time has passed since the injury. Dr. Lange opined that there is no good treatment for neck pain, but that treatment may include physical therapy, traction, over-the-counter medications, and nonsteroidal anti-inflammatory agents.

We are tasked with resolving the conflicting testimony from these experts. After careful consideration, we find Drs. Robson, Lange, and Cohen more credible than Drs. Wayne and Hogan on the question whether the June 2010 accident is the prevailing factor in causing employee's current symptoms and complaints. We further find Dr. Robson more credible than Dr. Lange on the question of the specific diagnoses or pathology of the cervical spine.

Having rendered the foregoing credibility determinations, we proceed to analyze the issue under the appropriate statutory provision. Section 287.020.3(1) RSMo sets forth the standard for medical causation applicable to this claim and 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 have credited the testimony from Drs. Robson, Cohen, and Lange over that offered by Drs. Wayne and Hogan on the issue whether the June 2010 accident is the prevailing factor causing employee's current complaints and symptoms. We have further credited Dr. Robson over Dr. Lange as to the particular diagnoses or pathology suffered by employee with respect to his cervical spine.

Accordingly, we conclude that the June 2010 accident is the prevailing factor causing employee's headaches and symptomatic cervical and lumbar conditions. Specifically, with respect to the cervical spine, we conclude that the June 2010 accident is the prevailing factor causing the resulting medical conditions of a bulge or herniation at C5-6 with impingement, mild flattening of the anterior aspect of the spinal cord with moderate central canal narrowing, and the pre-myelopathic findings Dr. Robson noted on exam. With respect to the lumbar spine, we conclud