Richard Raney v. Dollar Tree Stores, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-014806

**Employee:** Richard Raney

**Employer:** Dollar Tree Stores, Inc.

**Insurer:** Arch Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 12, 2018. The award and decision of Administrative Law Judge, Kevin A. Elmer, issued December 12, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 24th day of July 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No.: 17-014806

Employee: Richard Raney

Injury No. 17-014806

Dependents: N/A

Employer: Dollar Tree Stores, Inc.

Insurer: Arch Insurance Company, c/o Sedgewick Claims Management Services

Additional Party: N/A

Hearing Date: September 26, 2018

Checked by: KAE

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: February 27, 2017.
5. State location where accident occurred or occupational disease was contracted: Lawrence 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? No.
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: Employee was allegedly injured lifting and bending while stocking shelves.
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: Thoracic spine.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: $1,815.40
16. Value necessary medical aid paid to date by employer/insurer? $9,688.56
17. Value necessary medical aid not furnished by employer/insurer? 0.00
18. Employee's average weekly wages: 356.28

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No.: 17-014806

1. Weekly compensation rate: $237.52 PTD/TTD/PPD

1. Method wages computation: By stipulation of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

- Underpaid temporary total disability (by stipulation of the parties): $148.00

- 0 weeks of permanent partial disability from Employer / Insurer: $0.00

1. Second Injury Fund liability: N/A

**TOTAL:** $148.00

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Randy Alberhasky.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No.: 17-014806

**Employee:** Richard Raney

**Injury No.:** 17-014806

**Dependents:** N/A

**Employer:** Dollar Tree Stores, Inc.

**Insurer:** Arch Insurance Company, c/o Sedgwick Clams Management Services

**Additional Party:** N/A

**Hearing Date:** September 26, 2018

**Checked by:** KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on September 26, 2018. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about October 12, 2018.

The employee appeared personally and through his attorney, Randy Alberhasky. The employer and insurer appeared through their attorney, Mark Kornblum.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about 02/27/2017, Dollar Tree Stores, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Arch Insurance Company.
2. On the alleged injury date of 02/27/2017, Richard Raney was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.
3. On or about 02/27/2017, the employee sustained an accident, which arose out of and in the course of his employment with the employer.
4. The above-referenced employment and accident occurred in Lawrence County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.
5. The employee notified the employer of his injury as required by Section 287.420, RSMo.
6. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No.:17-014806

(7) At the time of the alleged accident of 02/27/2017, the employee's average weekly wage was 356.28, which is sufficient to allow a compensation rate of 237.52 for temporary total disability compensation/permanent total disability compensation, and a compensation rate of $237.52 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to the employee in the amount of $1,815.40, representing approximately 8 1/7 weeks in disability benefits, payable for the periods of March 10, 2017 through May 6, 2017.

(9) Employee is entitled to $148.00 for an underpayment of TTD benefits paid during the period between March 10, 2017 and May 6, 2017.

(10) The employer and insurer have provided medical treatment to the employee, having paid $9,688.56 in medical expenses.

The issues to be resolved by hearing include:

(1) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

(2) Whether the employee is entitled to temporary total disability compensation. (The employee seeks payment for 72.6 weeks of temporary total disability compensation, payable for the period of 05/07/2017 to June 3, 2017 and June 17, 2017 through present day.)

(3) Whether the employee sustained any permanent disability as a consequence of the alleged accident of 02/27/2017, if no treatment is ordered; and, if so, what is the nature and extent of the disability?

EVIDENCE PRESENTED

The employee testified at the hearing in support of his claim. In addition, the employee offered for admission the following exhibits:

Exhibit 1. Carr Physical Therapy, 7 pages certified 05.31.17

Exhibit 2. Chiropractic Plus, 14 pages certified 08.11.17

Exhibit 3. CoxHealth Monett, 143 pages certified 06.12.17

Exhibit 4. Dr. Montz-Goble, 6 pages certified 05.11.17

Exhibit 5. Mercy, 27 pages certified 05.22.17

Exhibit 6. Mercy, 33 pages certified 05.25.17

Exhibit 7. Mercy Occupational Medicine, 76 pages certified 05.26.17

Exhibit 8. MRI of Springfield, 6 pages certified 06.17.17

Exhibit 9. Dr. Truett Swaim IME report dated 08.07.17

a. C.V.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

Exhibit 10

Claim dated 05.03.17

Exhibit 11

Answer from Employer/Insurer 05.31.17

Exhibit 12

Report of Injury

Exhibit 13

Disclosure of Medical Records to Opposing Counsel dated 10.23.17

Exhibit 14

R.S.Mo §287.210 letter dated 05.23.18

Exhibit 15

Deposition of Richard Raney dated 09.27.17

The exhibits were received and admitted into evidence.

The employer and insurer presented 1 witness at the hearing of this case - Tisha Osgood. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit A

Deposition of Dr. Taylor

The exhibits were received and admitted into evidence.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

FINDINGS OF FACT

Employee Testimony

Employee, Richard Lee Raney, is 37 years old. He is divorced and has no children. Employee filed for bankruptcy at the conclusion of his divorce and receives no alimony. He attended high school through the 11th grade and did not attain a high school degree or GED; nor has he pursued any college-level credits or specialized skills training. Employee testified that he has essentially been employed since he left high school. Mr. Raney has been employed with Dollar Tree as an assistant general manager since September 16, 2016. Prior to his employment at Dollar Tree, Employee worked for 10 years as an assistant manager at a Super 8 Motel. He testified that his work at Super 8 was not physically demanding and that he simply managed people and the guests. Concurrent to his work at Super 8, Claimant performed office cleaning; this work was done part-time for a period of approximately 4-6 years. This job involved bending down, taking out the trash, and general office cleaning. Prior to this work, he worked at EFCO Corporation as a bander, and prior to that employ, Employee worked at a paintball factory.

Mr. Raney testified that he is still technically employed by Employer. Prior to his work injury, Employee worked approximately 40 hours per week. His job duties required him to do retail-type work, including managing the store, managing the freight, and delegating stock. Physically, Employee would unload pallets of freight and assign them out. The stock generally weighed between 1 pound and 50 pounds. He testified that he stocked shelves every day.

On February 27, 2017, Employee testified that he arrived at work between 5 and 6 a.m. to get the freight ready and to stock shelves. Employee was alone for approximately one hour before another employee was scheduled to arrive to assist him. While he was working alone, he reached up to put a box away and felt some discomfort in his right upper back between his shoulder blades. Mr. Raney continued putting away dried beans, the box of which weighed

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

approximately 20-35 pounds. Employee worked for approximately 10-15 minutes before he stated that he could not work anymore. On cross-examination, when asked to clarify this event, Claimant testified that he felt discomfort when he pulled the box off of the shelf and then later bent down and felt a sharp pain. Employee then texted his boss, Tisha Osgood, advising her that he thought he had "messed something up." Ms. Osgood arrived at the store at approximately 9 a.m. Upon arrival at the store, Ms. Osgood was informed by the Claimant that he thought he had pulled something and he wanted to go to the chiropractor.

Prior to February 27, 2017, Employee testified that he had no problems with his back. However, he would go to the chiropractor for full body adjustments. Prior to this accident, Employee was prescribed Klonopin and Lexapro for anxiety and depression. Employee testified that at the time of the hearing, he is no longer taking that medication or any others.

That same day, Employee presented to Dr. Montz-Goble for chiropractic treatment. Employee testified that he wrote in the case history at intake that he noticed the pain "this morning" without further clarification. As part of this medical note, the record indicates there was "no incident." When asked about this notation, Employee stated that he had no control over what another person writes in his report. When questioned again about this report under cross-examination, Employee testified that he did not mention to the provider how the injury occurred, as he didn't think "it was a big deal." When questioned why Dr. Montz-Goble would have indicated that the "patient woke up with a sharp pain in right mid back," he again indicated that he had no control over what was written in his report.

Mr. Raney returned to work after his visit with Dr. Montz-Goble. He later presented to Dr. Greenwood at Chiropractic Plus on March 6, 2017. Employee testified that he received an adjustment that day. He had a total of three visits with Dr. Greenwood. At the hearing, the claimant was shown the registration form that he completed upon presentation to Chiropractic Plus. In response, he stated that when provided the opportunity upon intake to acknowledge this injury was related to his employment, he did not do so.

Employee testified that he was directed by his employer for treatment at Mercy Clinic. Upon presentation, he noted that he was experiencing sharp pain with breathing and his pain was impacted by lifting and bending. Employee was eventually referred to Dr. Lorette at Mercy Occupational Medicine. When asked why Dr. Lorette had indicated in his report that Employee's mechanism of injury was "lifting an empty box," Employee responded that he did not tell Dr. Lorette that was how the injury occurred, but rather that is when he felt a sharp pain.

Claimant stated that currently activities of daily living are difficult and that he has trouble sleeping. He is only able to get three to four hours of sleep per night. Further, he noted that his movements are restricted, causing an inability to bend, twist, or lift. Employee identified the location of his pain as the right, upper back between his shoulder blades. He denied that he has any issues with his neck.

Mr. Raney has not worked since he was released by Dr. Lorette in April 2017. Employee felt that he could not do his job to the same extent, but noted that he would love to return to work. He has not applied for unemployment, nor has he applied for Social Security Disability. Since his divorce in the summer of 2017, he has been living with a friend who helps with his expenses. Employee testified he has not looked for work since his injury.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

The claimant is self-sufficient and is able to perform activities of personal hygiene. He is able to drive. He does not drive every day, but does pick up his friend's kids from school. Employee takes no prescriptions or over-the-counter medication for any condition. He has not received any medical treatment since his release by Dr. Lorette, noting that the only other providers he has seen were Drs. Swaim and Taylor, for them to perform independent medical evaluations.

Employee testified credibly as to his understanding of events; however, his presentation appeared inconsistent with his testimony regarding his pain complaints and ability to function. Furthermore, his testimony regarding the inconsistencies in his reports of injury does cast doubt as to his overall credibility.

On February 27, 2017, Employee presented to Dr. Montz-Goble with complaints of sharp pain near the right shoulder when breathing. On Employee's intake, he noted the pain began that morning. As previously indicated, someone in Dr. Montz-Goble's office made a notation that "no incident" caused his complaints. When given the opportunity, Employee failed to indicate that the accident occurred as a result of strain or accident. He was diagnosed with mid-back pain on the right side. Dr. Montz-Goble performed an adjustment and noted that Employee felt immediate relief. (Exhibit 4)

Employee later presented to Dr. Greenwood at Chiropractic Plus on March 6, 2017. At that time, Employee completed a registration form which indicated that his main complaint was a "rib out" and pain. He stated his condition had a date of onset of February 27, 2017 and indicated that the pain was not getting progressively worse. When given the opportunity, Employee failed to indicate that his condition was related to his employment. Physical exam revealed positive Kemp's test of the right side. Dr. Greenwood noted a diagnostic code M99.02, indicating a somatic dysfunction of the thoracic region with rib involvement. Dr. Greenwood performed a manipulation and provided Employee with a work release, excusing him from work until March 11, 2017. (Exhibit 2)

Mr. Raney returned to Dr. Greenwood on March 8 and March 9, 2017 for additional manipulations of the thoracic spine. X-rays were taken of the thoracic spine on March 8, 2017. Dr. Greenwood indicates that the radiographs demonstrate thoracic disc involvement and rib involvement, including a disc wedge at T6-7. Radiographs also revealed lateral curvature from T3-8. Employee was given work restrictions of no twisting or lifting. (Exhibit 2)

Employee was directed to Mercy Health on March 10, 2017 for an evaluation. At such time, he complained of upper back pain on the right side. A history of Employee's illness was taken and noted that Employee was stocking and felt a pop while lifting something. Specifically, he did not have pain until he went to bend over to break down a box. Employee stated that he was told he had a rib out of place. He noted that it had been put back once before it had to be put back in place a second time. Physical exam was positive for back pain and muscle spasm. The exam was negative for any gait problem or neck pain. X-rays of the thoracic spine were taken and revealed no apparent acute osseous injury or subluxation; soft tissues, nonspecific; and well maintained disc spaces. Employee was given a Toradol injection for muscle spasms in the upper

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

back. Employee was diagnosed with upper back pain on the right side and muscle spasm of the back. He was prescribed Norco and Robaxin and was referred to Occupational Medicine. (Exhibits 5 and 6)

On April 15, 2017, Employee presented to Mercy Occupational Medicine with complaints of chest pain. It was noted that he had mid-back pain that began while lifting a heavy object at work. A chest CT was performed and revealed no evidence of pulmonary embolism or other acute chest disease. X-rays of the right ribs were taken and revealed no evidence for displaced rib fracture, but minimal blunting of the right costophrenic angle, which was noted to possibly represent a small amount of pleural-parenchymal scarring or pleural fluid. Dr. Lorette diagnosed Employee with right-sided posterior chest wall pain, pleuritic chest pain, and tachycardia. A causation assessment regarding work-relatedness was noted as "indeterminate." (Exhibit 7)

Mr. Raney returned to Mercy National the next day for follow-up with Dr. Lorette. He was diagnosed with right-sided posterior chest wall pain and muscle spasm. Regarding causation, Dr. Lorette felt that his current complaints may be due to work, but also noted that he was seen by two chiropractors with adjustments so other non-work-related factors could be involved. Dr. Lorette ordered physical therapy and placed the employee on work restrictions. Employee returned to Dr. Lorette on March 23, 2017. His condition remained mostly unchanged. However, Employee noted at intake that he had a 20 percent improvement since onset. Dr. Lorette agreed he should proceed with physical therapy. It was noted that if the employee did not improve, he would recommend an MRI of the thoracic spine to reveal any herniated disc. (Exhibit 7)

On March 24, 2017, Employee began physical therapy treatment at Carr Physical Therapy and Sports Performance. At intake, Employee noted sharp pain in his mid-back and he was diagnosed with thoracic spine pain. (Exhibit 1). Employee followed up for an additional five visits before returning to Dr. Lorette.

Employee returned to Dr. Lorette on April 6, 2017. At that visit, on his questionnaire, Employee noted a 30 percent improvement since onset. Employee was diagnosed with acute right-sided thoracic back pain allegedly "work-related and persistent." An MRI was ordered after Dr. Lorette "confirmed that he bent over to pick up an empty box when his discomfort began." (Exhibit 7).

An MRI of the thoracic spine was performed on April 17, 2017. The MRI revealed mild degenerative spondylosis in the thoracic spine with mild right lateral recess stenosis at T2-T3 level. No focal enlargement of the visualized portions of the thoracic cord or cord signal abnormality was seen. (Exhibit 8)

Upon follow-up with Dr. Lorette on April 24, 2017, Employee's diagnosis was changed to include degenerative thoracic spondylosis. After reviewing the MRI films, Dr. Lorette opined that the mechanism of injury of picking up an empty cardboard box does not fit with a significant thoracic spine injury. Additionally, he felt any injury to the thoracic region could be due to his chiropractic treatment. Finally, he noted that the MRI of the thoracic spine revealed degenerative spondylosis with no compression fractures, and there was mild right lateral recess stenosis at the T2-T3 level. There were marginal osteophytes seen in the thoracic spine. It was noted that there was pre-existing mild intervertebral disc space narrowing in the mid and upper thoracic regions.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

For those reasons, Dr. Lorette opined with a reasonable degree of medical certainty that Employee's current complaints were not directly related to any prevailing factor associated with work or the work environment. Dr. Lorette noted that he could provide referral to neurosurgery if warranted, but noted that next steps should be determined in pursuing further care or dismissal. Dr. Lorette felt the employee was able to work with restrictions at that time. (Exhibit 7)

Employee has received no other treatment, authorized or unauthorized, since April 24, 2017.

Expert Opinions

Dr. Truett Swaim

According to Dr. Swaim's curriculum vitae, he is experienced as an orthopedic surgeon for approximately 15 years. He is board certified in orthopedic surgery and has been certified by the American Board of Independent Medical Examiners and is a Fellow of the American Academy of Disability Evaluating Physicians. Dr. Swaim does not specialize in any specific practice area. His curriculum vitae does not indicate any experience in neurosurgery or spinal surgery. (Exhibit 9a.)

On August 27, 2017, Employee was directed by his attorney to Dr. Truett Swaim for an independent medical examination. At that time, Dr. Swaim reviewed the history of Employee's treatment records and diagnostic films to date. He noted that Employee sustained an occupational injury on "February 17, 2017," when Employee developed pain in the periscapular region while stocking various items, weighing up to 40 pounds, onto shelves. (Exhibit 9)

At the time of Employee's evaluation, he noted constant discomfort in the periscapular region, noting the discomfort was generally aching and throbbing with occasional sharp pain with deep breath and certain movements. It was noted that his discomfort would improve with stretching. Employee had no radicular pain or extremity weakness. His pain was noted to be on average 9/10 on the pain scale. Functionally, Employee was noted to have difficulties and increased pain with occupational type activities, household chores, prolonged driving, lifting, et cetera. Employee was unaware of any permanent work restrictions. (Exhibit 9)

On the Oswestry Function Test, Employee noted that with regard to personal care, Employee stated it was painful to look after his own self and that he was slow and careful in doing so. Claimant stated that he could only lift very light objects and that pain prevented him from walking more than 1/2 mile. Pain prevented him from sitting for more than one-half hour and standing for more than one hour. He noted that even with medication, he sleeps less than four hours. As well, Employee's sex life is severely restricted by pain, and his social life is restricted, as he does not go out as often. Employee admitted he could travel anywhere, but that it gives him extra pain. (Exhibit 9)

Dr. Swaim's physical exam revealed tenderness in the periscapular area and significant tenderness of the inter-spinous region at T5-T6-T7. There was muscle guarding and spasm in the periscapular region and right trapezius area, posteriorly adjacent to the scapula. Range of motion of the thoracic spine revealed flexion at 12 degrees, right rotational motion was 24 degrees, and left rotational motion was 26 degrees. Physical exam of the neck revealed decreased range of motion. Examination of the upper extremities revealed loss of grip strength in the right hand as opposed to the left; no numbness or tingling sensations were recorded. (Exhibit 9)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

Dr. Swaim diagnosed Employee with thoracic pain with muscular spasm and disc herniation at T2-T3 level: space occupying abnormality versus anomaly within the spinal canal, posterior to the spinal cord at T2-T7 level. Dr. Swaim felt that "the occupational injury of February 27, 2017 sustained working for Dollar Tree, caused or was the prevailing factor to cause him to develop chronic thoracic pain and muscle spasm and disc herniation at the T2-T3 level." He felt that Employee would have ongoing back pain and muscle spasms in the right thoracic paraspinous region unless there was improvement with additional treatment, opining that Employee had not achieved maximum medical improvement. Dr. Swaim recommended he undergo consultation by a neurosurgeon and that his condition should be reevaluated by a thoracic myelogram and post-myelogram MRI scan. Further recommendations would be dependent on those studies. If Employee was not found to be a surgical candidate, Dr. Swaim felt that he should be evaluated by a pain management specialist and that at the conclusion of his treatment, he should undergo a functional capacity evaluation. (Exhibit 9)

Based on Employee's presentation, Dr. Swaim felt that Employee had suffered a 20 percent permanent partial disability to the body as a whole due to his thoracic spine condition. Dr. Swaim indicates that Employee should restrict occupational stresses to a light-to-medium work level. Additionally, he should avoid repetitive bending, stooping, twisting, climbing, or crawling, and should avoid use of vibrating or jarring equipment or tools. (Exhibit 9)

Dr. Brett Taylor

Dr. Brett Taylor is an orthopedic spine surgeon whose practice is a 100 percent elective spine practice. Dr. Taylor is board certified in orthopedic spine surgery. His clinical practice consists of treating adult individuals with degenerative and/or traumatic spine problems. As part of his practice, he performs surgical procedures, including decompressive surgeries, fusion surgeries, disc replacement and combinations of fusion and disc replacement. He also provides guidance regarding non-operative treatment; however, he is a surgical specialist whose focus is surgical intervention. (Exhibit A, Pages 9-10)

According to Dr. Taylor's Curriculum Vitae, he graduated from Harvard Medical School in 1992 before completing his residency at Massachusetts General Hospital and his Fellowship in Spine Surgery at Thomas Jefferson University. Dr. Taylor has been an adult spine specialist for 16 years. Early in his career, he served as a Major and Chief of Spine Surgery for the United States Air Force Medical Corps. at Wilford Medical Center. For the past 15 years, Dr. Taylor has been involved in over 25 medical research studies pertaining to adult spine. He has contributed to numerous peer-edited manuscripts, publications, abstracts, and chapters pertaining to the spine. (Exhibit A1) Dr. Taylor testified that only 1.5 percent of his practice is medical-legal work and noted that 56 percent of his opinions have been for the claimant and 44 percent have been for the defendant. (Exhibit A, 37:3-10)

Dr. Brett Taylor performed an independent medical evaluation on August 17, 2018. As part of his evaluation, Dr. Taylor took a history from Employee, reviewed various imaging studies, including the MRI films of the thoracic spine; he ordered radiographs of the thoracic and cervical spine, as well as a cervical MRI. He also performed a physical examination of Employee. In discussing Employee's subjective complaints, Dr. Taylor noted that Employee

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Issued by DIVISION OF WORKERS' COMPENSATION

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Injury No. 17-014806

described 100 percent back pain, made worse with sitting, standing, and walking. As it relates to quality, context, and associated symptoms, his pain scale is a 9. As well, it was noted that Employee's neck Disability Index was 52. Dr. Taylor testified that a neck Disability Index over 30 is considered symptomatic over a certain threshold, noting that 52 is a very high score of reported subjective complaints. (Exhibit A, Page 13, Lines 7-25) Subjectively, Employee also described numbness in the thumb, index, long, and ring finger with tingling in the right arm. (Exhibit A, Deposition Exhibit 2, Page 2) Dr. Taylor testified that the T2-3 dermatomal pattern would not cause complaints of numbness and tingling in Employee's right arm. (Exhibit A, Page 53, Lines 15-21) Rather, Dr. Taylor testifies that the dermatomal patterns in the cervical spine would travel down into and through the arms. (Exhibit A, Page 54, Lines 1-5)

Upon physical examination of Employee, he noted that he had a normal gait and was able to heal-toe gait without difficulty. Range of motion examination revealed somewhat decreased motion. However, Dr. Taylor noted that during other parts of the encounter, Employee displayed a wider range of lumbar thoracic motion. (Exhibit A, Deposition Exhibit 2, Pages 2-3) Cervical range of motion was notable for markedly-limited forward flexion, Employee extended slightly beyond neutral with reported pain (Exhibit A, Depositions Exhibit 2, Page 3), which Dr. Taylor stated in his deposition testimony that this was also markedly limited. (Exhibit A, Page 16, Lines 7-13) Examination of the thoracic spine was notable for mild thoracic scoliosis. His volitional forward flexion did not allow adequate assessment of a rib bump. Various physical testing proved unremarkable and negative except for Waddell's testing. (Exhibit A, Deposition Exhibit 2, Page 3)

Dr. Taylor explained in his deposition testimony the significance of Waddell's testing:

Q: (by Attorney Kornblum) And did you do any Waddell's testing?

A: (by Dr. Taylor) Yes.

Q: And how did he score on that, or what was your indication?

A: His Waddell's were 5/5 positive.

Q: What does that mean, 5/5 positive?

A: That is demonstratively positive. 3/5, anything greater than 3/5 is considered positive. 5/5 is markedly, demonstratively positive.

Q: How do you conduct Waddell's testing?

A: It's a series of physical tests, such as axial compression of the head, rotating pelvis, light touch, straight leg seated versus supine position. These tests are all done to determine if there is subjective report of non-organic provocation of symptoms. In other words the things I am doing physically don't really affect your spine, but if the person reports that that causes them pain, it simply indicates that a component of their subjective report is not explainable by our knowledge of pathophysiology. (Exhibit A, Page 17, Line 7 through Page 18, Line 8)

Dr. Taylor testified that he also performed a number of screening tools, such as the DRAM, fear avoidance, perceived injustice, to assess whether there is evidence of non-physiological complaints unrelated to intrinsic spine pathology. (Exhibit A, Page 32, Lines 9-14) The results of these tests were noted in his report, specifically, DRAM is positive for distressed

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Injury No. 17-014806

depressive, fear avoidance is elevated, pain catastrophizing is elevated, and perceived injustice is elevated. (Exhibit A, Deposition Exhibit 2, Page 2)

Dr. Taylor opined that Employee presented with signs and symptoms inconsistent with pain behavior, finding that a component of his presentation is consistent with nonorganic findings and symptom magnification. He went on to note that the nonspecific physical findings of an individual who has a long-standing history of complaints, is a sign of psychosocial distress and unnecessary treatment dependency. (Exhibit A, Deposition Exhibit 2, Page 6)

As part of Dr. Taylor's evaluation, he ordered radiographs of the cervical and thoracic spine. X-rays of the cervical spine revealed hypermobility at the C4-5 and C5-6 level. This is based on both angular change as well as interspinous motion. Sagittal alignment was maintained and an anterior bone spur was noted at C4-5. (Exhibit A, Deposition Exhibit 2, Page 5) In his deposition testimony, Dr. Taylor explained that hypermobility at C4-5 and C5-6 meant that Employee had increased motion, but not pathologic. As well, that the anterior bones spur at C4-5 "is simply a sign of arthritis, where the bone is remodeled due to increased stress related to disc arthritis and the discs no longer being competent to support or shield the bone from said stress." (Exhibit A, Page 19, Lines 1-15)

X-rays of the thoracic spine revealed a 16-degree curve. As well, degenerative changes were seen throughout the thoracic spine with decreased disc height noted at multiple levels; no fractures were identified. Dr. Taylor also reviewed the images from the April 17, 2017, MRI of the thoracic spine. He noted there were multiple degenerative changes present at T2-3 with mild right lateral recess stenosis. (Exhibit A, Deposition Exhibit 2, Page 5)

An MRI of the cervical spine was ordered and performed on August 30, 2018. The radiology report revealed C2-3 left subarticular disc protrusion with spurring, resulting in mild left foraminal stenosis, C3-4 and C4-5 broad-based disc bulges with uncinate spurring, C5-6 right greater than left spurring with moderate right and mild left foraminal stenosis, and C6-7 left disc bulge with left greater than right spurring resulting in moderate left greater than right foraminal stenosis. (Exhibit A, Deposition Exhibit 2, Pages 5-6) Dr. Taylor explained that stenosis is a statement that describes decreased space available for the neural element." (Exhibit A, Page 44, Lines 22-24) Dr. Taylor testified that upon his review of the MRI films his impression was that "there were discs spur complexes from C2 to C7, the greatest at C5-6 and C6-7 with no acute disc herniation." (Exhibit A, Page 24, Lines 14-16)

In discussing the potential effects of the pathology noted on the MRI of the thoracic spine, Dr. Taylor notes the distribution of Employee's pain complaints and refers to a dermatomal map which illustrates the dermatomal pattern associated with T2-T3 radiculopathic pain from a thoracic process. (Exhibit A, Deposition Exhibit 5) He explained that the dermatome travels circumferentially from the mid-posterior, or middle of the back, around the armpit and across the chest above the nipple. (Exhibit A, Page 47, Lines 10-18) Dr. Taylor states that what Employee is describing is nothing like the dermatomal pattern for radiculopathic thoracic disc pathology. (Exhibit A, Page 48, Lines 11-15)

On cross-examination Dr. Taylor was asked to specifically address the findings made by Dr. Swaim in his report of August 7, 2017.

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

Q: (by Attorney Alberhasky) And you disagree with Dr. Swaim that there is a disc herniation there, correct?

A: (by Dr. Taylor) I disagree that there is a clinically significant disc process in the thoracic spine causally connected to the work exposure...

Q: ... So do you not think there is a disc herniation at T2-3?

A: ... [referring to the MRI thoracic spine images] there are minimal degenerative changes present at 2-3, mild right laterally recessed stenosis.

Q: Is that a yes or a no? You think there is a disc herniation there, or not?

A: There is not a disc herniation there. There are degenerative changes. (Exhibit A, Page 41, Line 13 through Page 44, Line 18)

Ultimately, Dr. Taylor opines that there was no trauma related to thoracic pathology and that there was no structural injury to the thoracic spine. Instead, he notes that Employee's symptoms are consistent with cervical degenerative disc disease and facet mediated arthritic pain. Included in his report for reference is Figure 70.1, which notes the cervical pain patterns consistent with Employee's complaints. (Exhibit A, Deposition Exhibit 2, Page 6)

In addressing Employee's condition with respect to the February 27, 2017 work injury, he opined that there was no traumatic injury related to Employee's work exposure. He went on to note that his thoracic spine revealed evidence of arthritis and scoliosis, further noting that the scoliosis would have developed during his adolescence. He opined that "the history of minimal trauma as described during his work exposure is purely coincidental and his reported event at work had no causative injurious effect on the structure of the thoracic spine..." noting that he did have evidence of non-work-related degenerative arthritis. (Exhibit A, Deposition Exhibit 2, Pages 6-7) At most, Dr. Taylor felt Employee's work exposure caused an exacerbation of pre-existing cervical arthritis. Dr. Taylor opined that the work exposure was not the prevailing factor in causing his cervical arthritis. (Exhibit A, Deposition Exhibit 2, Page 7)

Dr. Taylor testified regarding these findings, stating,

"At most the work exposure caused a temporary exacerbation of pre-existing cervical arthritis. No permanency is assigned to results of the work exposure related to the cervical and thoracic spine. The work exposure is not caused permanent structural injury or permanent aggravation to the spine, cervical or thoracic." (Exhibit A, Page 28, Line 17 through Page 29, Line 1)

Dr. Taylor testified regarding the objective explanation for Employee's complaints.

Q: (by Attorney Kornblum)... Is there any objective explanation for all these complaints that he has, in your opinion?

A: (by Dr. Taylor) No.

Q: Is there any objective explanation for any of the complaints that he has?

A: Yes. The pre-existing cervical arthritis can cause periscapular pain if it is exacerbated, and that is well documented and his imaging tests show clear evidence of pre-existing cervical arthritis.

Q: And is that complaint that you just discussed, would that be something which is medically and causally related to his work injury?

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

A: The exacerbation would be a temporary process that would cause no structural damage, no permanence, and no need for treatment would be caused by the work exposure related to the cervical spine. (Exhibit A, Page 52, Line 20 through Page 53, Line 14)

Specifically addressing Employee's treatment needs as they relate to the work injury of February 27, 2017, Dr. Taylor opined that spine treatment (cervical or thoracic) is not required to cure and relieve the effects of his work exposure. He noted that the etiology of his periscapular discomfort is his pre-existing cervical spine arthritis, noting he has hypermobility at C4-5 and C5-6. When asked about the post-myelogram MRI of the thoracic spine, as was recommended by Dr. Swaim, Dr. Taylor indicated that the person would not get a post-myelogram MRI, but rather a post-myelogram CT. (Exhibit A, Page 39, Lines 8-15)

In discussing a potential surgery for thoracic disc herniations, as suggested by Dr. Swaim, Dr. Taylor explained that disc herniations at the thoracic level are 1 percent of the reason why the surgeon would operate on the spine. Furthermore, he noted that only 1 percent of those surgeries occur at the T2-3 level. Accordingly, surgeries at that level only occur at 1 percent of 1 percent of the time. (Exhibit A, Page 57, Lines 15-25)

Dr. Taylor provided additional commentary regarding his recommendations for treatment regardless of causation.

Q: (by Attorney Alberhasky) Doctor, are you recommending any treatment for Mr. Raney regardless of the cause for his neck or thoracic spine?

A: (by Dr. Taylor) I am not recommending any treatment. (Exhibit A, Page 31, Lines 4-8)

Dr. Taylor addresses Employee's work restrictions in his report of August 17, 2018. Dr. Taylor indicated that Employee should be assessed for aggressive work hardening and vocational rehab to return to work. He indicated that there are no limitations assigned to him based on his work exposure. (Exhibit A, Deposition Exhibit 2, Page 8) Dr. Taylor opines that the need for aggressive work hardening and/or vocational rehab was not causally related to the work accident. (Exhibit A, Page 29, Lines 18-21) Dr. Taylor indicated that Employee was able to work full duty. (Exhibit A, Page 29, Line 22 through Page 30, Line 4)

Based on a reasonable degree of medical certainty, Dr. Taylor opines that related to the cervical or thoracic spine, Employee sustained no permanency as a result of the work exposure. Dr. Taylor opines that the work exposure has not caused a permanent structural injury or permanent aggravation to his spine, cervical or thoracic. He went on to note that the work exposure had no more effect on his person and his activities of daily living. Rather, Dr. Taylor opines that Employee's presentation was most consistent with an exaggerated pain or illness behavior. (Exhibit A, Deposition Exhibit 2, Page 7)

RULINGS OF LAW

Section 287.808, provides "the burden of proving an entitlement to compensation under this chapter is on the employee or dependent." In order to meet this burden and have a

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

compensable injury, Employee must show he was injured as a result of an injury which arose out of and in the course of the employment, establishing essential elements including causal connection between the accident and injury. *Johnson v. City of Kirksville*, 855 S.W.2d 396 (Mo.App. 1993).

An "injury" is defined as one "which has arisen out of and in the course of employment" Section 287.020.3(1) RSMo. "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability" *Id.* The "prevailing factor" is defined to be "the primary factor, in relation to any other factor causing both the resulting medical condition and disability" *Id.*

Furthermore, "medical causation, not within the common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause". *Brundige v. Boehriner Ingelheim*, 812 S.W.2d 200, 202 (Mo.App.1994). The development of spinal pathology is a medical condition not within common knowledge, but which is practiced by physicians specializing in the treatment of the spine. Employee must present credible medical evidence to support a finding that Employee's spinal pathology arose out of his employment and that his work accident was the prevailing factor in causing both the resulting medical condition and disability. Employee relies on the written report of Dr. Truett Swaim.

Dr. Truett Swaim fails to establish the cause-and-effect relationship between the complained of condition and the asserted cause. He simply states that "the occupational injury of February 27, 2017 sustained working for Dollar Tree, caused or was the prevailing factor to cause him to develop chronic thoracic pain and muscle spasm and disc herniation at the T2-T3 level." Dr. Swaim provides no reasoning or explanation as to how he arrived at this conclusion. While his report indicates that he completed a record review and physical exam, in his final report he does not adequately explain how the Employee's mechanism of injury could have caused the conditions for which he asserts are work-related. As well, while he holds himself out as an orthopedic surgeon, his curriculum vitae offers no indication that he is experienced in matters of the spine. Finally, Dr. Swaim was never deposed and was not given an opportunity to provide such reasoning or explanation as to his findings. Accordingly, this Court is left to rely on his report alone.

Dr. Taylor, expert for the Employer/Insurer, is an adult spine specialist experienced in the various treatments of the spine, including conservative care and surgical interventions. It is evident by Dr. Taylor's extensive curriculum vitae that he is up to date and current on medical advances relating to spine treatment. Furthermore, Dr. Taylor's opinion adequately establishes the cause-and-effect relationship between the complained of condition and the determined cause. For these reasons, I find Dr. Brett Taylor's expert opinion is more persuasive.

This Court is satisfied and persuaded by Dr. Taylor's explanation and conclusion as it relates to the issue of causation. Dr. Taylor opined that there was no traumatic, structural injury to the thoracic spine related to the February 27, 2017 work exposure. He explains that Employee's history of minimal trauma as described during his work exposure is purely coincidental and that the reported event at work had no causative, injurious effect on the structure of his thoracic spine. Moreover, he opines that the work exposure had no more effect on his person than his activities of daily living.

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Injury No. 17-014806

Rather, he notes that Employee does have evidence of non-work-related degenerative arthritis in the thoracic spine. Dr. Taylor explains that the thoracic spine reveals evidence of arthritis and scoliosis, explaining that the degenerative arthritis in the thoracic spine is not work related and that scoliosis is a condition which developed during Employee's adolescence and is not of a traumatic etiology.

Dr. Swaim, in his discussion and conclusions, fails to address the presence and effects of Employee's arthritic condition, as well as the presence of scoliosis on his physical exam, despite acknowledging the finding of scoliosis in his review of March 10, 2017, x-rays of the thoracic spine. However, Dr. Swaim does conclude that Employee has suffered a disc herniation at the T2-T3 level and narrowing the right lateral recess.

Dr. Taylor, a spinal surgeon, experienced in matters of the spine, opined that there was not a disc herniation at that level; rather, there were degenerative changes. He explained further that Employee did not have pain complaints in the distribution one would see with compression at the T2-T3 level. In fact, Dr. Taylor noted that, "what the employee was describing is nothing like that dermatomal pattern for radiculopathic thoracic disc pathology."

Instead, Dr. Taylor explains that Employee's pain complaints are consistent with the pain patterns associated with cervical degenerative disc disease and facet mediated arthritic pain. Figure 70.1, as attached in his report, illustrates the objective findings on the cervical MRI, which revealed disc spur complexes from C2 to C7, the greatest at C5-6 and C6-7 with no acute disc herniation. Dr. Taylor opines that the work exposure is not the prevailing factor in causing this condition.

Objectively, Dr. Taylor indicates that the arthritic changes with disc/spur complexes and facet arthropathy were the cause of his periscapular pain. This is supported by the radiographs which revealed cervical hypermobility. Dr. Taylor opines that work was not the prevailing factor in causing this condition; that at most, his work condition could have caused an exacerbation of the pre-existing condition. However, as he noted in his report and throughout his testimony, this exacerbation did not result in any permanent, structural damage to the spine, thoracic or cervical.

Dr. Swaim did not order a cervical MRI, nor did he review the cervical spine MRI films or reports. Accordingly, his opinions lack credibility, as he did not have all the information necessary to address potential pathology present in Employee's cervical spine. It is unknown whether Dr. Swaim's opinion with regard to causation might be changed upon review of the cervical spine MRI films. At the very least, he does not consider the possibility of pathology at the cervical level. As he fails to address all factors, it is impossible for Dr. Swaim to accurately and expertly comment on the prevailing factor causing Employee's complaints.

Coupled with Employee's presentation at hearing, along with his testimony regarding his complaints and inability to function, this Court is persuaded by the objective findings which not only indicate a lack of structural injury to the spine, but instead suggest nonorganic findings and symptom magnification as contributing factors to Employee's condition.

Employee failed to meet his burden of proof that he sustained a compensable injury under the Workers' Compensation Act. For these reasons, and those noted above, this Claim is denied.

Page 16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Raney

Employee has failed to meet his burden to prove causation under the Act. All other issues are moot. The Claim is denied.

As stipulated, Employer has agreed that Employee is entitled to $\ 148.00 in TTD underpayments during the period of time in which Employee was placed on restricted duty and Employer was unable to accommodate those restrictions. In accordance with this stipulation, Employee is awarded $\ 148.00.

Although this case was heard as a temporary hearing, the award is final.

I certify that on 12-12-18

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

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