Edward Burns v. Associated Electric Cooperative, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 17-091892**

**Employee:** Edward Burns

**Employer:** Associated Electric Cooperative, Inc.

**Insurer:** Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated December 9, 2019.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Maureen Tilley, issued December 9, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **27th** day of October 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Edward Burns

Injury No. 17-091892

ISSUED BY DIVISION OF WORKERS' COMPENSATION

Employee: Edward E. Burns

Injury No. 17-091892

Dependents: N/A

Employer: Associated Electric Cooperative, Inc.

Additional Party: N/A

Insurer: (Self Insured) TPA: Cannon Cochran Management Services

Hearing Date: September 9, 2019

Checked by: MT/kg

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the law? Yes

1. Date of accident or onset of occupational disease? 11-29-2017

1. State location where accident occurred or occupational disease contracted: New Madrid County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was repairing a lance which slipped off of a cart. This jerked Employee's left upper extremity. This resulted in an injury to Employee's left upper extremity, left shoulder, neck.

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Employee: Edward Burns

Injury No. 17-091892

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident or occupational disease: Left upper extremity, left shoulder, and neck.

1. Compensation paid-to date for temporary total disability: 0.00

1. Value necessary medical aid paid to date by Employer-Insurer? 12,076.20

1. Value necessary medical aid not furnished by Employer-Insurer? See findings

1. Employee's average weekly wage: 2,889.86

1. Weekly compensation rate: Temporary Total Disability: 926.01

Permanent Partial Disability: $483.48

1. Method wages computation: By agreement

1. Amount of compensation payable:

Unpaid medical expenses: N/A

Additional Medical Aid: See findings

TTD: N/A

This award is only temporary and partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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**Injury No. 17-091892**

On September 9, 2019, the employee, Edward E. Burns, appeared in person and by his attorney, Stephen L. Taylor, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Christiaan D. Horton. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the facts that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. **Covered Employer:** The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was self-insured. The third party administrator was Cannon Cochran Management Services.

1. **Covered Employee:** On or about the date of the alleged accident or occupational disease the employee was an employee of Associated Electric Cooperative, Inc. and was working under the Workers' Compensation Act.

1. **Accident:** On or about November 29, 2017, the employee had an accident or occupational disease arising out of and in the course of employment.

1. **Notice:** The employer had notice of the employee's claim.

1. **Statute of limitations:** The employee's claim was filed within the time allowed by law.

1. **Average weekly wage and rate:** The employee's average weekly wage was 2,889.86 per week. His compensation rate for temporary total disability was 926.01 per week. His compensation rate of permanent partial disability was $483.48.

1. **The employer-insurer paid $12,076.20 in medical aid.**

1. **The employer-insurer paid $0.00 in temporary total disability benefits.**

1. **Medical causation:** Whether Employee's injury was medically causally related to accident or occupational disease.

1. **Additional medical aid:** Employee is making a claim for additional medical aid.

The following exhibits were offered and admitted into evidence:

#### Employee's Exhibits:

1. **Medical Records**

- A. Dr. Mark Austin

- B. Focus Physical Therapy

- C. Dr. James Doll

- D. Dr. Daniel Phillips

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**Injury No. 17-091892**

E. Dr. Michael Smock

F. Poplar Bluff Regional Medical Center

1. Independent Medical Evaluation of Dr. David Robson dated 12/19/2018

1. IME Addendum of Dr. David Robson dated 3/19/2019

1. Deposition of Edward E. Burns

**Employer-Insurer's Exhibits:**

**A. Report of Injury**

B. Deposition of Dr. James T. Doll (page 26, line 17 through page 41 line 2, are excluded)

C. Dr. James T. Doll Addendum Report dated 8/28/2019 (not admitted)

D. Deposition of Dr. Robert Bernardi

E. Dr. Robert Bernardi, Independent Medical Evaluation Addendum dated 8/5/19 (not admitted)

F. Tests conducted on Employee by Auburn Park Imaging (MRI), Neurological Electro Diagnostic Institute, Inc. (Nerve Study), and St. Luke's CDI: Frontenac (Cervical Myelogram and CT Cervical Spine Post-Myelogram).

G. Dr. Michael Smock Records

All Exhibits of Employee were admitted without objection.

Employer's Exhibits A, D, F, and G were admitted without objection.

Employee made a "Seven-Day Rule" objection to Employer's Exhibit B, the Deposition of Dr. Doll, commencing on Page 26 of the Deposition. This objection was taken under advisement. After further reviewing the objection, page 26, line 17 through page 41 line 2, are excluded and not admitted into evidence. Employee's objection is sustained.

Employee objected to Exhibit "C", the Dr. Doll addendum, dated 8/28/2019, which was received by Employee on 8/29/2019, as it violates section 287.210 (7) RSMo. Employee was not given the report sixty (60) days before the hearing. Employee had no opportunity to cross examine the doctors. Employee objections were made on the basis of Hearsay, Improper Foundation, and being Prejudicial to Employee. This objection was taken under advisement. After further reviewing the objection, ALJ sustained Employee's objection. Therefore, the addendum to Exhibit "C" is not admitted into evidence.

Employee also objected to Exhibit "E", the Addendum Report of Dr. Bernardi dated 8/5/2019, sent to employee and received 8/13/2019. Employee's objection stated that the Addendum violated section 287.210 (7) RSMo as there was no notice of it being submitted in accordance with that section of law. Therefore, Employee objected based upon Hearsay, Improper Foundation and being Prejudicial to Employee. Employee objected stating that there was "No reasonable opportunity" given to cross examine the Doctor as Employer failed to submit the Dr. Bernardi addendum under 287.210 (7) RSMo. This objection was taken under advisement. After further reviewing the objection, ALJ sustained Employee's objection. Therefore, Exhibit "E" is not admitted into evidence.

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Employee: Edward Burns

Injury No. 17-091892

The Court also took administrative notice of the Division file in this matter.

Employee testified that he was a resident of Poplar Bluff, Missouri. He is married and is currently residing with his wife, Kim, and his 12 year-old daughter, Gracie. His testimony was that he has two emancipated children: Keith, 27; and Hunter, 21.

He graduated from Senath Hornersville High School in 1990 and that he attended two years of trade school while still in high school. He testified that he received on-the-job certifications, including one in pipe welding.

The Employee testified that he was hired by Presto Light as a general laborer to cut wires. He testified that he next worked at FARR Co. as a welder and recalls getting something in his eye while on the job there but no other injuries. He denied having any workers' compensation claims there.

Maverick Tube is the next place of employment recalled by Employee; he was in quality control where he inspected the threads on pipes. He stated that he was a welder and a pipe fitter and that the job entailed tacking and welding pipe fittings together and that he had no injuries there.

Employee said that from around 2006-2007 he worked at Mid Continent Nail for around 2-3 months where he was the "set up man", which he described involving setting up punch presses and had no injuries there.

Employee testified that he thereafter went to work from around 2007 through about 2010 at Zachary Construction as a pipe fitter. He stated that he had no injuries at this job.

Employee testified that he began working at Associated Electric (Employer) in 2010 and that he remains employed there. He stated he was hired in to be a journeyman working on high pressure welders as a mechanic. Employee testified that being a journeyman involves replacing boiler tubes, pumps and valves as well as performing other miscellaneous welding and mechanic work.

Employee testified that the Associated Electric job is physically strenuous, requiring him to descend into manholes by hanging down on one arm then twisting and turning simultaneously to perform the welding jobs required of him.

Employee said that prior to the November 29, 2017 injury at Associated Electric he had no family doctors, as he was not under a doctor's care for any condition. He said that the job for Employer was a 40 hour a week job but that in addition to those 40 hours he typically would work overtime hours. For example, Employee testified that in the week before the hearing he worked 76 hours.

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**Injury No. 17-091892**

When asked if he had had any complaints of his left upper extremity prior to November 29, 2017 he replied "no". He stated that prior to the injury that he had used his left upper extremity constantly. He was asked if he had ever seen a doctor regarding his left upper extremity, left arm or neck prior to the date of injury to which he replied "no."

Employee stated that he had seen a chiropractor, Dr. Smock, for low back and mid back pain. He said that he had seen him maybe once or twice a year for a couple of years. When asked if the employee had ever gone to see Dr. Smock specifically for treatment to his neck, left upper extremity of left shoulder pain complaints, he replied that he had not.

In regard to the work injury on November 29, 2017, Employee testified that he and his co-workers were installing a component to a boiler, a "lance", which had to be taken through a hole onto the roof. He said that the lance weighs approximately 900 pounds. He said that he had a strap over his left arm and they were resting part of the lance on a metal cart. According to Employee, this job ordinarily took five people but that on the date of the injury it was being done with only four workers.

Employee testified that as they were moving the cart with the lance on it, the cart slipped and the lance fell, jerking his arm. This occurred at about 4 a.m. When asked what sensation he felt, he said "his left wrist, arm and shoulder popped and it hurt." He swung his arm around trying to shake off the effect. Employee testified that he assisted to finish the job, working only with the right arm. Employee testified that he went to the supervisor's office to report the injury and had reported what had occurred.

He went home after his shift and his left arm and back continued to hurt in the early morning. He testified that his wife told him he should go and see his chiropractor, which he did late morning on the date of the injury. He testified that he told Dr. Smock that he needed his back adjusted. He said that he did not mention the injury to his arm or neck to Dr. Smock. Dr. Smock adjusted his back but that he did not treat his left shoulder, arm or complaints to the left side of his neck.

Employee testified that he then reported to his supervisor that he needed treatment for the injury to his left arm, shoulder and neck on November 29, 2017. Employee testified that he was sent to see Dr. Mark Austin on November 30, 2017. He advised the doctor that he had complaints of left neck, left shoulder pain down to his fingers on the left side and that he gave the history of the work injury to Dr. Mark Austin at that time, and that Dr. Austin treated him with medication and put him on a 5-pound weight limit at that time.

On December 8, 2017, the employee returned to see Dr. Austin for the same complaints and then he was sent for physical therapy in Poplar Bluff twice a week for two weeks; Dr. Austin continued him on the same medication and the same 5-pound weight restriction.

Employee testified that he returned to Dr. Austin on December 14, 2017 with the same complaints. Employee told Dr. Austin that physical therapy was of no help and that his symptoms had worsened. Dr. Austin prescribed an MRI; continued Employee on the same

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Employee: Edward Burns

Injury No. 17-091892

medication with the same 5-pound lifting restriction.

Employee testified that he had the MRI at Auburn Park Imaging which indicated he had a disc problem.

He returned to Dr. Austin on December 21, 2017 and was referred to a neurosurgeon.

Employee testified he was seen by Dr. Robert Bernardi on January 16, 2018. He advised Dr. Bernardi that he was having the same pain in his left neck, shoulder and arm down to his fingers. Dr. Bernardi examined Employee and recommended treatment, including a myelogram and an EMG/NCS of his left upper extremity.

Employee had an EMG/NCS on February 1, 2018. Employee also had a myelogram on February 15, 2018. Employee testified that the doctors did not tell him the results of the tests. He testified that he never returned to see Dr. Bernardi, nor did he talk to Dr. Bernardi again. He stated that he called Dr. Bernardi's office several times trying to speak with him and was told that he had only performed an IME.

Employee testified that he did not know that Dr. Bernardi had recommended a left C7 nerve root injection.

Employee testified that he was next sent to Dr. James Doll on March 1, 2018, and testified that his complaints were the same: pain in his left neck, left shoulder and left upper extremity. Employee testified that Dr. Doll reviewed medical records and examined him. Employee testified that Dr. Doll recommended treatment including physical therapy and medication, which included a Medrol Dosepak and Skelaxin. Employee testified that Dr. Doll also placed him on a 10-pound weight restriction.

Employee testified he returned to Dr. Doll on March 29, 2018. His symptoms remained the same and that he had cervical limitations. Employee further testified that the physical therapy had improved his condition "some." Employee testified that Dr. Doll recommended a left selective nerve root injection at C7. Employee testified that the injection was performed by Dr. Smith and that it did help his symptoms for a couple of weeks.

Employee testified that he returned to Dr. Doll on April 18, 2018 and that he was continuing to have the same symptoms. He testified that after the therapy and injections the symptoms had improved. Dr. Doll recommended that he continue physical therapy and ordered a second C7 nerve root block and lifted his restrictions to 25 pounds. Employee testified that the 2nd injection helped his condition.

Employee testified that he returned to Dr. Doll on May 3, 2018. He testified that his complaints were the same although he had had some improvement. Employee then returned on May 29, 2018 to see Dr. Doll and said that his symptoms were better; however, he still had left neck pain radiating into his left arm. Employee testified that Dr. Doll released him back to full duty even though he was still having continuing problems from his left neck down into the left shoulder down through the left upper extremity. Dr. Doll prescribed no further treatment.

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**Injury No. 17-091892**

Employee testified that he told Dr. Doll that he wanted further treatment because he was having the same complaints but that Dr. Doll told him "there is nothing further I can do." Employee testified that his condition did not improve thereafter.

Employee testified that he was seen by Dr. David Robson for an evaluation on December 19, 2018. He said that his complaints were interfering with his ability to do his job. He stated that Dr. Robson performed a thorough examination on him and reviewed his prior records. Employee testified that Dr. Robson recommended treatment consisting of a discectomy and fusion at C6-7 level in his neck.

Employee was asked if he had any injury to his neck, left shoulder or left arm, either at work or away from work, since November 29, 2017, to which he replied "no". Employee was asked if he was told to exercise when he was at physical therapy and he replied "yes". When asked if he had advised the therapists that he was a golfer and he said that he had, and testified that the therapists encouraged him to exercise, including playing golf.

Employee testified that he was not able to play nearly as much golf since the injury as he had enjoyed prior the date of the November 29, 2017 injury. Employee testified that he also enjoyed hunting but that he was unable to hunt nearly as much because of his pain and the restrictions that that pain caused.

Employee testified that his continued problems with his neck and left upper extremity caused him pain both at work as well as trying to do household and family activities. He indicated that he has problems playing with his child as he has in the past. He testified that the problems include: sleeping on his left side; being awakened due to pain; driving any distance due to left upper extremity numbness.

Employee testified that he was taking over-the-counter medication frequently to help with the pain and that he had taken six Ibuprofen before the hearing.

On cross examination, Employee was asked if he had seen Dr. Smock after the injury on the date of the injury. Employee testified that his low back and mid back were tight on that date because of working a lot of overtime the previous week.

Employee was asked if he had had a prior emergency room visit and he answered in the affirmative, that he had once thought he was having a heart attack and that he was kept for three days but ultimately discharged and told his heart was healthy.

Employee testified that when he plays golf he plays 18 holes and that he has been a member of a golf club for three years. He testified that he played multiple times per week before the accident and now only plays a couple of times a month. Employee also was asked if he bow hunted in 2018 and he testified that he did but only on a few occasions.

Employee was asked if the injections at C7 were helpful and he indicated that they did benefit him. There was no further testimony.

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**Injury No. 17-091892**

Employee offered numerous exhibits, which were admitted without objection. Exhibit 1 is a package of medical records, which consist of multiple sub-parts; Section A of Exhibit 1 contains the records of Dr. Mark Austin.

On November 30, 2017, Dr. Austin saw Employee for "Pain in the base of left lower neck to the upper shoulder to the left posterior part of the left upper arm, circling to the posteromedial portion of the elbow and then continuing down the medial forearm and onto the 4th and 5th fingers of the left hand." The history given in that note states, "This 46-year-old right-hand-dominant male maintenance worker who has been working in the capacity at Associated Electric for the past 7 years, presented here today, 11-30-2017, for initial evaluation and treatment of left neck, left shoulder, and left upper extremity injuries that he sustained while at work yesterday 11-29-2017. He reports that he and 3 other coworkers were moving a large metal Lance which is approximately 1000 pounds in weight. There was a strap placed under the end he was working on and the other end was supported on a cart. He reports that he had one end of the strap and another employee had the other and were lifting and attempting to guide the Lance into place but the opposite end of the heavy metal Lance fell off of the cart, jerking Mr. Burns left arm and shoulder downward causing the injury. He is currently complaining of pain at the left base of his neck radiating into left upper shoulder and down the posterior left upper arm, circling medially to the posteromedial left elbow and then down left medial or ulnar or flexor surface of the left forearm to the left 4th and 5th fingers. He is complaining of intermittent sharp pains and with certain activities some occasional numbness and tingling to the 4th and 5th digits. His current reported pain level at this moment is 4 on a 10-point scale but with activities involving the use of the left upper extremity, the pain level rises to 6 or 7/10 or even higher. He reports taking over-the-counter Ibuprofen at a dose of 4 tablets (800 mg) x 2 doses since yesterday and there has been no significant relief with this... He denies any other significant previous injuries to his neck, left shoulder or left upper extremity."

Dr. Austin noted that Employee denied having any other extra jobs or farm activities. Dr. Austin noted that Employee admitted to playing golf, with last time being November 27, 2017. Dr. Austin also noted that Employee hunts, but has not hunted in recent weeks. Dr. Austin notes that Employee specifically denies any other activities or strenuous hobbies which could have precipitated or contributed to this current injury. On the physical examination component on the review systems Employee was complaining of pain and spasm to the muscular element of his left lower neck and into his left upper shoulder and indicated he was having a pulling discomfort and limit of range of motion with his neck, but denies any swelling in his neck. During physical examination component of this exam, it was noted that he had an increase in subjective "pulling pain" extending into left upper extremity with extremes of flexion, full hyper extension and with right side bending of the neck at the extreme. During the examination component of the left shoulder, Dr. Austin noted, "He does demonstrate tenderness to lateral trapezius muscles with some spasm and this extends somewhat down the medial border of the left scapula in the distribution of the inferior trapezius." Dr. Austin noted that he had left elbow tenderness at the lower triceps muscle tendon area and in the posteromedial left elbow cubital tunnel area without limit range of motion in the elbow, at that time. In regard to the physical examination of Employee's left forearm and left wrist, it was described as having "much tenderness and some spasm noted to the forearm flexor muscles." There were pain responses noted and difficulty with lifting, and inability to grasp and perform a curl exercise with left hand alone was also noted.

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**Injury No. 17-091892**

Employee was diagnosed with "acute strains, pains to 1. Left lower neck and left upper and posterior shoulder parascapular trapezius musculature; 2. Left upper arm triceps muscle strain/distal triceps tendon sprain; 3. Left forearm flexor muscles strains and 4. Left elbow post strain ulnar neuritis." Dr. Austin gave him a Medrol Dosepak, Flexeril, instructed to decrease his use of Ibuprofen, instructed him on intermittent use of ice pack and limited him to 5 pounds maximum with left hand and left arm alone and only up to shoulder level on an occasional basis.

When Employee returned to Dr. Austin on December 8, 2017, he was continuing to have pain in his neck and shoulder region and traveling to left arm "making finger tingle and numb." It was reported that he was still having sharp pain radiating down his left upper extremity to the 3rd and 4th fingers with flexion and extension only of the neck but not with other motions of head and neck. Similar sharp and radiculopathic symptoms into the left upper extremity with internal and external rotation of the left arm at the shoulder. Dr. Austin noted that Employee's symptoms were temporarily relieved by the muscle relaxant but it is very sedating, even at the half dose which was prescribed. Dr. Austin also noted that Employee has not taken any of the Ibuprofen since starting or finishing the Medrol Dosepak. During the physical examination, Dr. Austin noted that "chin to chest flexion and with hyper-extension at the extremes, he reportedly experiences numbness and tingling sensations down his left arm into the 3rd and 4th fingers of the left hand." When Dr. Austin examined Employee's left upper back/left parascapular area he noted, "some residual tenderness and definite spasm noted to the left upper thoracic paravertebral muscles levels T1-T4 and to the left levator scapula muscle. Applying palpatory pressure to these areas reproduces sensations of numbness and tingling in the left upper arm." Dr. Austin noted, "Persistent tenderness and spasm noted to the musculature of the left posterior shoulder glenohumeral area and definitely extending into the left triceps area. Any forceful palpatory pressure to the left triceps reproduces sensations of numbness and tingling extending down his posterior left upper arm and around the medial left arm into 3rd, 4th, and 5th fingers. Still has much spasm and tenderness, throughout the forearm flexor muscles, palpatory pressure elicits numbness and tingling into the left forearm. And down into the left palm of the hand and into some fingers on the left." Dr. Austin diagnosed Employee with strains and pains to "left low neck, left upper and posterior shoulder parascapular muscles, left upper arm triceps muscle/tendons, left forearm flexor muscle", "left upper arm triceps muscle/tendons", "left forearm flexor muscle", "left elbow post strain ulnar neuritis", and "newly developing signs and symptoms of a left wrist carpal tunnel syndrome median neuropathy."

Employee underwent an MRI at Auburn Park Imaging December 18, 2017. This diagnostic study has the following impression:

1. Broad based posterior and right paracentral herniation of C5-6 disc, with superior migration up to the middle third of C5 vertebral body, causing mild narrowing of the central canal and neural foramina, bilaterally. The herniation measures 9mm in size.

1. Small broad-based posterior herniation of C6-7 disc, causing mild narrowing of the central canal and neural foramina, bilaterally. The herniation measures 4mm in size.

1. Diffuse posterior and left foraminal bulge of C3-4 disc, causing mild narrowing of the central canal and left neural foramen. The bulge measures approximately 3 mm in size.

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Employee: Edward Burns

Injury No. 17-091892

mm in size.

1. Diffuse bulge of C4-5 disc, causing mild narrowing of the central canal and neural foramina, bilaterally. The bulge measures approximately 3 mm in size.

1. Mild generalized facetal and uncovertebral arthropathy.

Employee returned to see Dr. Austin December 21, 2017, for follow-up and he was reporting no significant improvement. He had "intermittently great range of motion and strength and then he twists and turns his head and neck a certain way and then fills the shooting pain burning numbness and tingling down his left upper extremity the way to the fingers. He states this sometimes happens with movement of the arm at the shoulder." Dr. Austin continued his diagnosis and work status essentially the same and at that time referred him to a neurosurgeon for further evaluation.

The physical therapy notes are found in Section B of Exhibit 1. These reflect that at the initial visit on December 14, 2017, there were objective finding in the cervical region, left upper trapezius and shoulders. These reflect that on the final visit date, March 23, 2018, Employee's pain was a 3 out of 10, but his overall condition was improving, but that his pain symptoms continued to be more intense with left cervical extension and rotation and bilateral shoulder abduction.

The report of Dr. Daniel Phillips dated February 1, 2018, is located in Section D of Exhibit 1. This reflects that Dr. Phillips performed Electrodiagnostic Studies of the neck and left upper extremity. His impression was that "the left upper extremity nerves and muscles studied fall within the range of normal. Specifically, the study is not impressive for an ulnar neuropathy across the elbow for an active cervical radiculopathy. If there is any nerve root irritation it is insufficient to be reflected in the electrical diagnostics studies performed."

Dr. James Doll saw Employee March 1, 2018 for evaluation and treatment. He gave the history of the injury and reported at that time he had had an improvement in his symptoms and his pain levels were lower. He was stating at that time that he still had pain in his left neck and arm when he first woke up in the morning. He reported to Dr. Doll that there were specific maneuvers with his neck that would increase the pain and he had been restricting his activities as well as taking Flexeril, Motrin, and Advil. Employee reported to Dr. Doll on this date that he was restricting his activities; specifically, he was not lifting over 5 pounds and doing no overhead lifting and he reported to Dr. Doll that he never had any problems with this prior to the date of injury November 29, 2017. Dr. Doll concluded that Employee had left cervical/parascapular strain/radiculopathy, as well as multilevel cervical spondylosis and recommended physical therapy three times a week for the next three week and increase his lifting restriction to lifting more than 10 pounds.

At the physical therapy visit on March 9, 2018, Employee's pain complaints were a 6 out of 10 at the worst and he was complaining of being stiff and sore; therapy objective examinations reference the cervical region and the trapezius.

When Dr. Doll saw Employee on March 29, 2018, he was reporting: "that no significant improvement has occurred with the additional physical therapy. He reports he experiences

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Employee: Edward Burns

Injury No. 17-091892

temporary relief during cervical traction performed manually by the physical therapist. He notes his symptoms as severe as they were during the first month or two following the injury. His symptoms begin the left side of his neck and extend down to about the elbow. They have extended all the way to his hand and were of a greater intensity initially. He denies any new injury and new symptoms. He did not experience a significant benefit from the Medrol Dosepak. He finds the Skelaxin to be helpful; however, the sedation causes him to typically use it only on the weekend.

At the March 29, 2018 visit with Dr. Doll, it was noted that he had "limited cervical range of motion in left rotation and extension."

Dr. Doll diagnosed Employee with "left cervical/parascapular strain/radiculopathy- acute on 11/29/2017 and multilevel cervical spondylosis." Dr. Doll recommended that he continue with his activities being restricted, suggested a home traction unit might be beneficial and prescribed C7 selective nerve root block, in addition to the muscle relaxant medication.

Dr. Gregory Smith reported in his narrative note to Dr. Doll that he had performed a left C7 selective nerve root injection using a transforaminal approach on April 2, 2018.

Physical therapy notes from April 4, 2018, reflect that Employee was continuing to have "symptoms consistent with referring diagnosis" and he had increased pain with "arms on the table and head flexed." As well as "looking up and over the left shoulder." (Exhibit 1, Section C at page 54). The therapy notes reflect that the therapy was focused on the cervical region and upper trapezius.

When Dr. Doll saw Employee on April 18, 2018, he was reporting "considerable improvement in his condition after the cervical injection. He states his pain levels have decreased significantly. He still feels a pinch when he looks all the way toward his left but he is now able to extend his neck without symptoms. He reports that the pain down to his left elbow has been occurring less often and with less intensity. He has not required any ongoing medication. He finds that physical therapy is helpful while he is there. He also finds the home traction unit to be helpful." Dr. Doll recommended a repeat injection and increased his restrictions. On April 18, 2018, Dr. Gregory H. Smith administered the second left C6/7 selective nerve root injection.

When Dr. Doll saw Employee on May 29, 2018, Dr. Doll noted that Employee had "some stiffness and soreness with occasional left-side neck pain radiating to the left arm. He states that these episodes are brief as he only has to change positions and the symptoms are gone. He reports that these episodes are occurring less often. He also notes that they may occur just with the change in weather. He has not required any ongoing oral medications. He reports compliance with the exercises that he learned in physical therapy. He is pleased with his overall improvement in his condition and is not interested in any other injections or other treatments." Dr. Doll released Employee at maximum medical improvement. Dr. Doll stated that Employee may continue to work in his full capacity without restrictions as he has been doing.

Section F of Exhibit 1 contain medical records from Poplar Bluff Regional Medical

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Center. These records pre-date this injury and make no reference to the neck or left upper extremity.

Exhibit 2 is the report of Dr. David Robson. In his report, Dr. Robson took a history from Employee, who reported a date of injury of November 29, 2017. Employee reported he was installing a pipe that weighed approximately 800-900 pounds. While trying to maneuver the pipe a cart flipped over with the pipe on it jerking his left arm, shoulder and neck area causing it to pop. Employee reported immediate neck, shoulder and arm pain. Employee reported several visits of physical therapy, to selective nerve root blocks at the level of C7 providing significant symptomatic relief. Employee stated there are elements of his job that cause him to have increased neck and arm pain and although symptoms are better he has residual left arm and neck complaints. Employee reported that prior to the injury he had no regular treatment with regard to his neck. Employee stated he did visit a chiropractor on occasion but did not have regular treatment nor did he receive any medication for ongoing neck pain prior to the date of injury. Employee also reported no prior problems with pain radiating into his left arm.

Dr. Robson performed a physical examination of Employee and found the patient had associated neck pain with mild tenderness to palpation to the cervical spine. Dr. Robson's examination revealed restrictions in cervical range of motion with ten degrees of extension, 80 degrees of flexion, 80 degrees of rotation to the right and 80 degrees of rotation to the left. Dr. Robson also recorded Employee had a pain score of "3" on a 1-10 pain scale.

Dr. Robson concluded that the November 29, 2017 injury is the prevailing factor in the development of Employee's cervical spine and left arm complaints. Dr. Robson stated prior to this injury, the patient was not reporting any problems with regard to his left neck or arm. Dr. Robson recommended further treatment, including an anterior cervical discectomy and fusion at the level of C6-7 and the need for the further treatment is related to the date of injury.

Dr. Robson found the patient is not at maximum medical improvement; that all treatment has been reasonable and necessary and it relates to the date of injury and that patient can continue to work in his current capacity.

Dr. Robson concluded that Employee's injury on November 29, 2017, was the prevailing factor in development of his cervical spine and left arm complaints and that at that time recommended an anterior cervical discectomy and fusion at the level of C6-7. Dr. Robson states the need for further treatment was indeed related to the November 29, 2017 work injury.

Exhibit A was admitted into evidence and purports to be the initial report of injury from Associated Electric Cooperative, Inc. This document states that the incident was reported as "holding or carrying," a "strain" of the "multiple upper extremities." The summary portion states "while attempting to reposition the cart, the cart tipped over causing the lance to fall off the cart. This pulled the left arm of the employee." The accident description states "strained left shoulder and tricep." The date of loss is shown on Page 1 as November 29, 2017 and the second page of the document indicates the initial report of injury was generated on December 1, 2017.

Employer offered Exhibit B, the deposition testimony of Dr. James Doll. Dr. Doll

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Employee: Edward Burns

Injury No. 17-091892

testified that he first saw Employee on March 1, 2018 for an evaluation. Dr. Doll testified that he took a history of Employee and examined him. Dr. Doll testified he reviewed an MRI of Employee that showed a broad based disc herniation at C6-7 with mild narrowing of the neuroforamina, described as severe neuroforaminal stenosis bilaterally, greater on the left side. Dr. Doll assessed Employee with left cervical/parascapular strain/radiculopathy and assessed that as acutely occurring on November 29, 2017. Dr. Doll testified that he treated Employee with medication and physical therapy. Dr. Doll testified Employee's symptoms would come and go and he prescribed a left C-7 selective nerve root injection. Dr. Doll testified he prescribed more physical therapy and a second C-7 injection. Dr. Doll testified Employee's diagnoses remained the same and upon his last visit his symptoms were occurring less often and Employee was released at MMI on May 29, 2018. Dr. Doll testified he did a rating report for Employer on September 7, 2018 and opined that Employee had not sustained any permanent partial disability attributable to the occupational injury that he reportedly experienced on November 29, 2017 and no further treatment was indicated.

The deposition of Dr. Robert Bernardi from June 14, 2019 was marked Exhibit D and admitted into evidence without objection. In his deposition, Dr. Robert J. Bernardi states at the time that he saw Mr. Burns he reported to him that "He was changing what's called a lance at this power plant he worked at, and this lance is apparently like a very long piece of metal, around 32 foot long about four and a half inches in diameter, and he said it weighed about 600 or 700 pounds, and that he and three coworkers were changing it, and to do that they had to sort of back it out of a wall, a small hole in the wall of the power plant and they got it out on the roof and then they would turn the whole thing around and then bring in through another door... The cart flipped over, they dropped the lance, and he was jerked forward by his left arm and he said experienced immediate pain along the left side of his neck and in his left elbow."

Dr. Bernardi was asked if Employee had indicated to him that he had any prior chiropractic treatment of "these areas of these complaints" to which Dr. Bernardi replied, "He said he had not." Dr. Bernardi said he looked at the December 18, 2017 cervical MRI and that it "showed multilevel degenerative disc disease, and it was most pronounced at the C4-5, C5-6 and C-6, C-7 where there was some more prominent bulging. He had a disc herniation at C5-6 that was lateralized to the right, there was some mild foraminal stenosis at C5-6, which means the foramina is the way through which the nerves exit the spine, there was more prominent foraminal stenosis at C-6, C-7, and then at the very bottom level of the neck between C-7 and T-1 there was some asymmetry in the foramina, and I couldn't really tell whether that was due to the way this gentleman had been positioned in the MRI scanner, or whether there might be some pathology in the left foramen, I just couldn't tell from this scan."

Dr. Bernardi went on to say that Employee had a disc herniation at C5-6 but stated "that clearly it's asymptomatic since his pain is all on the left and that disc herniation is completely to the right." Dr. Bernardi stated that his opinion after reviewing imaging studies, physical examination, taking the history would be that, "Well based on the information available to me, and my impressions of this man, I thought that his symptoms were related to the incident that he reported. I wasn't sure whether - - I wasn't entirely certain as to the etiology of pain, there were aspects of his presentation that suggested several different potential diagnoses, I thought he needed additional workup to try to sort that out."

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Employee: Edward Burns

Injury No. 17-091892

Dr. Bernardi went on to say that he thought possible diagnoses existed, including "he has multilevel degenerative disc disease, he has a right-sided C5-6 disc herniation, he has left neck and arm pain, who's etiology I thought was uncertain. He has possible left C-7 or C-8 radiculopathy, that means that signs and symptoms associated with irritation of either C-7 or C-8 nerve roots, and I thought he might have a left cubital tunnel syndrome and that refers to the compression or irritation of the ulnar nerve at the elbow." Dr. Bernardi stated he felt the workplace incident was not the prevailing factor producing the degenerative disc disease and he recommended an EMG and a nerve conduction study to measure how the muscles and nerves were behaving.

Dr. Bernardi said that he then recommended a myelogram. After Dr. Bernardi looked at the myelogram, he believed it showed "foraminal stenosis at C-6, C-7 is degenerative, its due to his arthritic disc disease, it's not due to any acute pathology." Dr. Bernardi stated that after the EMG and the cervical myelogram that, as expressed in his addendum report of March 28, his opinion was "most likely that his symptoms are due to irritation to his C-7 nerve root." Dr. Bernardi went on to say that "time is the great healer," that "there is really very little evidence that any of the treatments we do alter the natural history of this problem short of surgery," that all of the kind of nonoperative treatment that people have for the condition this gentleman has, aren't going to change whether he gets better or not, and if they make him feel better while mother nature is doing her stuff, that's fine. Dr. Bernardi went on to say that "If this man hurts bad enough that he feels a series of injections to try to calm things down and make him feel better while time works her magic, that would be a reasonable approach, so would using a home cervical traction unit. Is surgery an inevitability for this problem, no, it is actually far from it, about 90 percent of people if they can live with it long enough, their symptoms do ultimately simmer down on their own." Dr. Bernardi said that he had seen Mr. Burns six weeks after the accident, so it was hard for him to say whether his pain level was such that surgery was going to be seriously explored as an option. When asked if the Employee had any "special risk" for surgical evaluation, he replied, "Not really." Dr. Bernardi said that "some people would offer him a disc replacement or fusion, the outcome from the two operations are pretty much equivalent. So yeah, that's what he'd be looking at."

The records from Michael Smock, chiropractor, were marked Exhibit G and admitted into evidence without objection. Employee had seen Dr. Smock for treatment on March 24, 2016; March 31, 2016; August 4, 2016; October 14, 2016; October 19, 2016; December 9, 2016; November 29, 2017; November 15, 2018.

When Dr. Smock saw Employee on March 24, 2016, he was complaining of "an acute lower thoracic, mid-thoracic, and lumbar complaint of unknown origin for over a year." On March 31, 2016, Dr. Smock noted that Employee had not noticed much of a difference after the last adjustment. He says he is still having a lot of trouble sleeping.

Dr. Smock's records from August 4, 2016 state that Employee, "states his back is just a little tight this week and he just needs an adjustment." When Employee saw Dr. Smock on October 14, 2016, the subjective complaints were "Ed states his upper middle back is hurting today and he is having some pain radiating into his right arm area. His pain level is 4/10 today."

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**Injury No. 17-091892**

On October 19, 2016, Dr. Smock noted, "Ed states his back is feeling a lot better today. His pain level is 3/10." When Employee saw Dr. Smock on December 9, 2016, the encounter notes states, "continue treatment for maintenance/wellness care" and the complaint states, "Ed states his lower back and middle back is tight today."

On November 29, 2017, Dr. Smock saw Employee and in the history portion it states, "Ed Burns, an existing patient, returned today with consent for evaluation and possible treatment for a new injury and new condition. He was under maintenance care in this office prior to this new episode of care." He was complaining of his lower back and middle back was "tight today." And the note goes on to state: "Ed states he has been working a lot the past week and his middle and lower back have just gotten really stiff and it is hard to turn, twist, and bend. He denies any trauma since his last visit. His pain level is a 3/10 today. He reports it has made it harder to work due to the discomfort."

Under Section 287.020.3(1) & (2) RSMo, an injury has to arise out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the 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. An injury shall be deemed to arise out of and in the course of the employment only if it is reasonably apparent upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury.

The employee has the burden of proving both: that there was an accident and that there is a medical causal relationship between the accident, the injuries, and the medical treatment for which he is seeking compensation. See Dolan v. Banderas! Café and Barr 800 S.W.2d 163 (Mo. App. 1990). It has long been accepted that there is a distinction between an accident and an injury. The employee must prove that he had an injury and that the injury was caused by an accident which arose out of and in the course of his employment. Thus, the "accident" is the cause and the "injury" is the result. See Errante v. Fisher Body Div., General Motors, Corp., 374 S.W.2d (Mo. App. 1964).

In order to prove a medical causal relationship between the accident and the medical conditions, the employee and cases such as this one involving any significant involving any medical complexity must offer competent medical testimony to satisfy his burden of proof. See Brundidge v. Boehringer Ingelheim, 812 S.W.2d 200 (Mo. App. 1991) and Downs v. V.A.C. Industries, Inc., 460 S.W.2d 293 (Mo. App. 1973).

The employee has the burden of proof that he suffered an accidental work-related injury.

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Employee: Edward Burns

Injury No. 17-091892

and that the accident was the prevailing factor in causing both the resulting medical condition and disability. See Armstrong v. TetraPak, Inc., 391 S.W.3d (Mo. App. 2012) and Bond v. Site Line Surveying, 322 S.W.3d 165 (Mo. App. 2010). A work injury is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. See Gordon v. City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008).

Under Section 287.140 RSMo, the employee is entitled to receive all medical treatment that is reasonably required to cure and relieve him from the effects of the work-related injury. In Landers v. Crysler Corp., 963 S.W.2d 275 (Mo. App. 1997), the Court held that it is sufficient to award medical benefits if the employee shows by "reasonable probability" that he is in need of additional medical treatment by reason of his work related accident. Section 287.140 RSMo. It does not require that the medical evidence identify specific procedures in the future. See Talley v. Ronney Mead Estates, Ltd., 831 S.W.2nd 692, 695 (Mo. App. 1992).

Employees must establish through competent medical evidence that the medical care requested "flows from the accident" before the employer is responsible. See Landers. (Supra). Future medical care must flow from the accident before the employer may be held responsible for it. See Sullivan v. Masters Jackson Paving Company, 35 S.W.3d 879, 888 (Mo. App. 2001).

Employee treated with Dr. Mark Austin on November 30, 2017. Employee treated conservatively with medication and a 5-pound work restriction and returned to Dr. Austin on December 8, 2017, with the same complaints and was sent for physical therapy in Poplar Bluff twice a week for two weeks and continued on the same medication and weight restriction. Employee returned to see Dr. Austin on December 14, 2017, with the same complaints advising that the physical therapy was no help and his symptoms had worsened. Dr. Austin prescribed an MRI, continued Employee with the same medication on the same restrictions. Employee had an MRI at Auburn Park Imaging which indicated that he had a disc problem and when he returned to Dr. Austin on December 21, 2017 and was referred to a neurosurgeon.

Employee was seen by Dr. Robert Bernardi on January 16, 2018 with the same pain complaints in his left neck, shoulder and arm down to his fingers. Dr. Bernardi prescribed treatment including a myelogram and an EMG/NCS of his left upper extremity. An EMG/NCS was performed on February 1, 2018 and a myelogram was performed on February 15, 2018. After review of the diagnostic studies Dr. Bernardi recommended a left C7 nerve root injection.

Employee was sent to Dr. James Doll on March 1, 2018 with complaints of pain in his left neck, left shoulder and left upper extremity. Dr. Doll recommended treatment including physical therapy, a Medrol Dosepak, Skelaxin and placed Employee on a 10-pound weight restriction.

Dr. Doll treated Employee on March 29, 2018 with reports of symptoms remaining the same and additionally reports of cervical limitations. Dr. Doll's records reflect that Employee reported physical therapy had improved his condition "some". Dr. Doll recommended a left selective nerve root injection at C7 which was performed by Dr. Smith. Dr. Doll saw Employee next on April 18, 2018 with reports that the injection helped for a couple of weeks but that the same symptoms continued. Dr. Doll's report indicates that after therapy the symptoms had

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Employee: Edward Burns

Injury No. 17-091892

improved. Dr. Doll prescribed continued physical therapy and a second nerve root injection but lifted lifting restrictions to 25 pounds. Employee returned on May 3, 2018 and reported the second injection helped his condition "some". Employee reported his complaints remained the same even though he had some improvement. Dr. Doll last saw Employee on May 29, 2018 reporting his symptoms were better but he still had left neck pain radiating into his left arm. On May 29, 2018, Dr. Doll released Employee back to full duty and prescribed no further treatment.

Employee was sent for an Independent Medical Evaluation to Dr. David Robson, an orthopedic surgeon, on December 19, 2018. Employee reported that his injury occurred while at work on November 29, 2017, and that his continuing complaints were interfering with his ability to do his job. Dr. Robson reviewed the records of the treating doctors and performed an examination of Employee. Employee reported that he had no prior history of left neck, left shoulder, left arm or hand complaints. Dr. Robson opined that he believes the November 29, 2017 injury is the prevailing factor in the development of Employee's injury development of his cervical and left arm complaints. "As prior to this injury, the patient was not reporting any problems with regard to his neck or left arm pain." Dr. Robson felt further treatment is necessary and the recommended treatment would be an anterior cervical discectomy and fusion at the level of C6-7.

Dr. Robson submitted a follow-up report on March 19, 2019 and opined that Employee was functioning reasonably well and having intermittent chiropractic treatments pre-dating the accident, most of which were focused on the middle and low back. Dr. Robson opined that his review of these records does not change his prior opinion.

Based on all of the evidence presented, including Employee's credible testimony, I find the opinion of Dr. Robson is more persuasive than the opinions of Dr. Bernardi and Dr. Doll on the issues of medical causation and additional medical treatment to the neck, left shoulder and left upper extremity of Employee. I find that Employee has sustained the burden of proof that his current neck, left shoulder and left upper extremity symptoms is medically, causally related to the accident that occurred on November 29, 2017. Furthermore, I find that Employee's accident on November 29, 2017 was the prevailing factor in causing Employee's current neck, left shoulder and left upper extremity condition. I find Employee needs additional medical care and treatment that flows from the accident. I find that Employee is in need of additional medical care and treatment to the neck, left shoulder and left upper extremity to relieve him from the effects of the November 29, 2017 work accident and injury.

Employer-Insurer is ordered to provide Employee with all of the medical care that is reasonable and necessary to cure and relieve him from his work-related injuries to his neck, left shoulder and left upper extremity pursuant to section 287.140 RSMo including, but not limited to, treatment as recommended by Dr. Robson.

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Stephen L. Taylor, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

As previously indicated this is a temporary or partial award. The award is therefore subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

I certify that on 12-9-19 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. By $\qquad age \qquad$


Made by:


Administrative Law Judge

Division of Workers' Compensation