Clarence Brummett v. Dish Network Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 18-109984

Employee: Charles L. Campbell

Employer: Dish Network Corporation

Insurer: Indemnity Insurance Company of America

c/o Gallagher Bassett Services

An administrative law judge (ALJ) issued a Temporary or Partial Award in the aboveentitled workers' compensation case on May 21, 2021. The employer/insurer filed a timely application for review pursuant to $\S 287.480$ RSMo on June 7, 2021.

Commission Rule 8 CSR 20-3.040 specifies when an application to review a temporary or partial award may be filed. This rule allows a party who feels aggrieved by the issuance of a temporary or partial award by an ALJ to petition the Commission to review the evidence upon the ground that the applicant is not liable for the payment of any compensation.

The issues in dispute at the March 8, 2021, hardship hearing were limited to whether employee's injury arose out of and in the course of employment, whether employee's claimed injuries were medically and causally related to his work for employer, and whether employee was entitled to medical care related to his December 5, 2018, work injury. The nature and extent of disability and the date of maximum medical improvement were not at issue at the hardship hearing. ${ }^{1}$ Accordingly, we disregard employer/insurer's arguments on the issues of nature and extent of permanent partial disability and maximum medical improvement in our review of this claim.

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 May 21, 2021.

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

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[^0]: ${ }^{1}$ Transcript, p. 2.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued May 21, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 7th day of October, 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:

Secretary

I dissent from the majority's award affirming the award and decision of the administrative law judge (ALJ).

The ALJ erred in finding that the employee's December 5, 2018, work injury constituted the prevailing factor causing employee's need for treatment, because the evidence establishes that employee's injury merely triggered or precipitated an underlying preexisting medical condition.

There is no dispute that employee's diagnosis is C7 radiculopathy, for which cervical fusion is an appropriate remedy. Although there is some question as to why the employee underwent prior cervical diagnostic tests, the medical witnesses agreed that those films documented the presence of degenerative disc disease at multiple levels. It is further agreed employee had no symptoms of C7 radiculopathy prior to his December 5, 2018, work injury.

The major point of disagreement is whether the December 5, 2018, accident was a triggering or predicating factor. Dr. Robert Bernardi says that is the case. A fair reading of Dr. Paul Olive's testimony suggests that he agrees.

Under $\S 287.020 .2$, an injury is not compensable because work was a triggering or precipitating factor. Dr. Bernardi examined the employee and diagnosed C7 neuropathy in addition to degenerative disc disease and multilevel cervical stenosis. Dr. Bernardi reasoned that if the accident had caused new pathology-such as a disc herniation-then the claim could be compensable.

On December 30, 2019, a cervical CT scan without contrast was conducted at Dr. Bernardi's direction. Dr. Bernardi reviewed actual images of that diagnostic test, which revealed multilevel degenerative disease, in particular a bone spur on the left side that was degenerative and present prior to the work injury. Dr. Bernardi concluded that the accident was not the prevailing factor in causing the medical condition responsible for the pain, which was foraminal narrowing due to the preexisting bone spur. But for the preexisting narrowing, the December 5, 2018, incident would not have caused symptoms. The injury was a triggering event, which caused a previously asymptomatic medical condition to become symptomatic.

The ALJ described Dr. Bernardi as credible and eminently qualified to render an opinion in this case but erroneously elected to give greater credence to the employee's expert, Dr. Olive. The ALJ's conclusion does not withstand scrutiny in that Dr. Olive misunderstood and sometimes even ignored key aspects of the case.

Dr. Olive conceded the MRI studies showed degenerative changes, but he described those changes as "very common for men in [employee's] age group" and noted that employee had prior symptoms. He stated, "The incident was of such significant force and trauma that had it not been for that accident, he would not have developed

Improve: Charles L. Campbell

-2 -

radiculopathy." ${ }^{2}$ This statement by Dr. Olive, which is representative of his testimony as a whole, is flawed in two respects: first, it assumes that the preexisting degeneration in employee's cervical spine was normal for a man his age. Second, it assumes the severity of the incident (and, more specifically, Dr. Olive's misperception of the severity) somehow disqualifies the event as being a triggering factor.

Dr. Bernardi testified that the degenerative changes in employee's neck are more extensive than would be expected, particularly looking at the earlier scan when he had two-level disc disease at only twenty-seven years old. By age forty, about fifty percent of adults have at least one degenerative disc in their neck, and this figure approaches 100 % by age fifty. In his most recent scan, the employee had four segments in his neck, which is more than one would expect for a forty-one-year-old.

Dr. Olive essentially agreed with Dr. Bernardi, admitting that the employee's degenerative changes are greater than would be expected in a man his age. Dr. Olive conceded that a 2005 MRI, taken when employee was twenty-seven years old, reflected more advanced degeneration than would be expected in a man that age.

Thus, although one of the bases for Dr. Olive's opinion that the event is not a triggering factor is that employee's preexisting degenerative changes are normal, he actually agreed with Dr. Bernardi that this employee's level of degeneration was more advanced than normal.

Dr. Olive also opined that the work event could not be a triggering factor because of its severity. However, he misunderstood not only the actual severity of the accident, but also the relevance of severity.

Dr. Bernardi explained why Dr. Olive erred in his assertion that the severity of the accident is a relevant factor. He noted that he sees a great many people with radiculopathy, and, in his experience, the severity of the trauma has not correlated with the onset of complaints. Of people who herniate a disc, for example, most are completely unable to identify what they did to cause it. Of the people who do, the event is usually trivial.

Even if one were to assume that severity was a relevant factor, Dr. Olive misunderstood the very nature of the accident itself, and assumed an event of greater severity than is supported by the evidence. Dr. Olive expressed his understanding that the employee suffered the injury when the ladder on his shoulder pivoted from side to side, and that employee stumbled during the event when he was carrying the ladder. In fact, the employee testified that the ladder did not move from side to side, and that he did not stumble. Thus, even though it was established by Dr. Bernardi that the severity of the event is irrelevant, Dr. Olive thought the accident was more severe than it actually was.

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[^0]: ${ }^{2}$ Transcript, 153.

**Injury No. 18-109984**

**Employee:** Charles L. Campbell

On cross-examination, Dr. Olive stated that the symptoms were not severe when the accident happened, but became more severe over time. This concession not only cut against his mistaken assertion that the accident could not constitute an aggravation because of the severe onset, but is also the exact opposite of the employee's testimony that his complaints were worse initially, but eventually the muscular complaints abated.

Finally, Dr. Olive's misapprehension of the severity of the accident is belied by the fact that employee did not even seek medical treatment until more than three months after the incident occurred, during which he worked full time and without restriction.

The ALJ, in finding Dr. Olive's opinions to be more persuasive than those of Dr. Bernardi, assumed as true both of these disproven facts: the award makes specific reference to the degeneration in employee's neck being normal for a man his age, and specifically references the severity of the event.

Dr. Bernardi testified clearly and convincingly that the December 5, 2018, event was a triggering factor. It resulted in no change in employee's anatomy—the accident served only to aggravate a preexisting degenerative condition. The opposing opinion from Dr. Olive is inherently flawed by his failure to understand and appreciate the actual mechanism of injury and his reliance on (and misunderstanding of) the severity of the event.

The ALJ further erred in finding a medical causal link between the accident and employee's need for treatment in that the employee failed to meet his burden of proving that the accident caused both the resulting medical condition and the disability.

Section 287.020.3(1) provides that an accident must cause both the resulting medical condition and disability. Employee bears the burden of satisfying both elements of that provision.

The ALJ's award relies on Dr. Olive's opinion that the accident was the prevailing factor in the development of the cervical radiculopathy. Thus, the ALJ's award, and the opinion of Dr. Olive on which it is based, considers only the disability (C7 radiculopathy and the pain associated with that diagnosis) while not referring to the condition causing the disability.

Dr. Bernardi's testimony clearly and convincingly demonstrates how the facts of this case apply to the law: his diagnosis of C7 radiculopathy (which Dr. Olive agrees) is the disability. The medical condition causing the disability is the underlying (and previously asymptomatic) degenerative disc disease in the employee's cervical spine, as evidenced by the broad-based bone spur at C6-7 and foraminal narrowing identified by Dr. Bernardi in his analysis of the December 30, 2019, CT scan.

Dr. Olive disagreed with Dr. Bernardi, stating that preexisting degenerative disease cannot be considered a diagnosis or a condition. Thus, he identified the condition as

Improvee: Charles L. Campbell

- 4 -

the C7 radiculopathy. However, if that is the case, what then is the disability?

Dr. Olive's testimony does not answer that question, and therefore does not satisfy the

requirements of § 287.020.2(1). Dr. Olive's opinion, and the ALJ's award based upon

that opinion, hinge on the untenable assertion that the condition and the disability are

the same thing: C7 radiculopathy. This reading would render § 287.020.3(1), which

specifically refers to the medical condition and the disability as two separate entities,

meaningless.

Parenthetically, it must be noted that Dr. Olive declined even to review the

December 30, 2019, CT scan which is arguably the key piece of medical evidence in

this matter. On cross-examination, Dr. Olive stated that he did not review that film

because it would not have changed his opinion and he felt he did not need to. This

explanation is frankly implausible. At the time of Dr. Olive's deposition, he had

reviewed only radiology reports and not actual films of the various MRI and CT

evaluations. Employee then brought Dr. Olive in to testify at trial. In preparation for his

trial testimony, he reviewed the films of every MRI and CT scan except the

December 30, 2019, MRI. There is no rational explanation for his failure to review a

key piece of evidence. A plausible explanation is Dr. Olive perceived he would be

forced to agree with Dr. Bernardi if he acknowledged that evidence. This omission, of

which the ALJ made no mention, inherently weakens Dr. Olive's credibility.

The only medical evidence that satisfies the provision of § 287.020.3(1) is that of

Dr. Bernardi. Dr. Olive's opinion does not satisfy the clearly stated requirements of that

provisions. The ALJ's award, which relied on Dr. Olive's flawed opinion, is contrary to

the evidence and cannot stand.

In conclusion, the employee sustained a compensable accident on December 5, 2018.

He testified that soft-tissue symptoms of neck, back, and shoulder pain after that event

abated. The employee continues to experience symptoms of the C7 radiculopathy

triggered by his underlying medical condition, foraminal stenosis and a broad based

spur at the C6-7 level, which is not compensable under the Missouri Workers'

Compensation Law.

The Commission should find that the employee is at maximum medical improvement

with regard to compensable aspects of his December 5, 2018, accident. The record is

sufficiently developed for the issuance of a final award. However, the Commission

should remand this matter to the Division of Workers' Compensation for a final

determination of permanent partial disability (PPD) because PPD was not identified as

an issue by the ALJ at the hardship hearing.

Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Member

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 526-8983 FAX: (573) 751-2012

www.labor.mo.gov/DWC

MAY 21, 2021

18-109984

Scan Copy

*Employee : CHARLES L CAMPBELL 13317648 2 11214 LAWRENCE 2160 11214 LAWRENCE 2160 MOUNT VERNON, MO 65712-6318 *Employee : DISH NETWORK CORP 13317649 9 9951 W 190TH ST STE I & J MORENA, IL 60448 *Insurer : INDEMNITY INS CO OF NO AMERICA 13317651 2 c/o GALLAGHER BASSETT SERVICES INC PO BOX 2934 CLINTON, IA 52733-2934 *Insurer Attorney : PAUL D LARIMORE 101 S HANLEY STE 1450 ST LOUIS, MO 63105 *Employee Attorney: BRANDON C POTTER 3271 E BATTLEFIELD STE 350 SPRINGFIELD, MO 65804-4196 *Employer : DISH NETWORK CORPORATION 13317650 5 9601 S MERIDIAN BLVD ENGLEWOOD, CO 80112 *Insurer : INDEMNITY INS CO OF NO AMERICA 13317652 9 c/o GALLAGHER BASSETT SERVICES PO BOX 2934 CLINTON, IA 52733-2934

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

AWARD ON HEARING NLP

Please visit our website at www.labor.mo.gov/DWC

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**MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS**

Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

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WC-142 (06-15)

AWARD OF HEARING

NLP

Relay Missouri: 800-735-2966

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Charles L. Campbell

Injury No.: 18-109984

TEMPORARY OR PARTIAL AWARD

Claimant: Charles L. Campbell

Injury No. 18-109984

Dependents: Not Applicable

Employer: Dish Network Corporation

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: Not applicable

Insurer: Indemnity Insurance Co. of North American

c/o Gallagher Bassett Services (TPA)

Hearing Date: March 8 2021

Checked by: VRM/bh

FINDINGS OF FACT AND RULINGS OF LAW

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: December 5, 2018.

1. State location where accident occurred or occupational disease was contracted: Everton,

Missouri / Dade County.

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 the time required by law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease

contracted: Employee was lifting a 28 foot ladder over his shoulder when the weight of the

ladder was uneven, causing Employee to strain and flex his spine resulting in a C7 nerve

root radiculopathy.

1

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Charles L. Campbell

Injury No.: 18-109984

1. Did accident or occupational disease cause death? No. Date of death? Not Applicable.

1. Part(s) of body injured by accident or occupational disease: Neck, left upper extremity, C7 nerve root.

1. Nature and extent of any permanent disability: Not Applicable.

1. Compensation paid to-date for temporary disability: $15,296.05.

1. Value necessary medical aid paid to date by employer/insurer? $12,668.49.

1. Value necessary medical aid not paid by employer/insurer? Not Applicable.

1. Employee's average weekly wages? 1,546.25.

1. Weekly compensation rate: 947.64 (Temporary Total Disability).

1. Method of computation: Provided by Employer.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: Not Applicable.

1. Second Injury Fund liability: None.

1. Temporary Award Requirements:

Employer/Insurer shall provide additional medical treatment to cure or relieve the effects of the work accident, including but not limited to a single or double level fusion in the neck, consistent with the opinion of Dr. Paul Olive, as discussed in the award.

This Award is subject to review and modification as provided by law. Interest shall be paid as prescribed by law. Any compensation awarded to Employee shall be subject to a lien of 25 percent of all payments in favor of the following attorney for necessary legal services rendered to Employee/Claimant: Brandon Potter.

Claimant: Charles L. Campbell

Injury No. 18-109984

Dependents: Not Applicable

Employer: Dish Network Corporation

Additional Party: Not applicable

Insurer: Indemnity Insurance Co. of North American c/o Gallagher Bassett Services (TPA)

Hearing Date: March 8, 2021

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: VRM/bh

The undersigned administrative law judge conducted a hardship hearing in Springfield, Missouri. Employee and Claimant, Charles Campbell, appeared in person and by his attorney of record, Brandon Potter. Paul Larimore appeared on behalf of Dish Network Corporation, its insurer, Indemnity Insurance Company of North America, and the third part administrator, Gallagher Bassett Services (hereinafter referenced collectively as Employer). The parties reached stipulations and narrowed the issues, as follows:

1. On or about December 5, 2018, Charles L. Campbell sustained an accident as a result of moving a ladder. On that date, he was an employee of Employer.
2. On the date of injury, Dish Network Corporation, was an employer operating in the State of Missouri and was fully insured by Indemnity Insurance Company of North America.
3. Claimant was covered by, and Employer was subject to, the Missouri Workers' compensation Act on the date of the accident.
4. The accident occurred in Dade County, Missouri and the parties have agreed to venue in Greene County, Missouri.
5. Claimant's average weekly wage on the date of the accident was $\ 1,546.25, yielding a compensation rate of $\ 947.64 for temporary total disability.
6. There is no dispute as to jurisdiction, notice, or statute of limitations.
7. Employer paid $\ 15,296.05 in temporary disability benefits and $\ 12,668.49 in medical benefits.

1. Did the medical condition for which Employee seeks treatment arise out of and in the course of his employment with Employer?
2. Is Employee in need of additional medical treatment?
3. Is Employer liable for additional medical treatment to cure or relieve the effects of the work injury?

The following exhibits were offered. Each was admitted, unless noted otherwise:

Exhibit A Deposition - Dr. Robert Bernardi, MD

Deposition Exhibits 1 through 5

Exhibit 1 Claim for Compensation dated 10/10/2019

Exhibit 2 Answer dated 10/25/2019

Exhibit 3 DWC file

Exhibit 4 Deposition - Charles Campbell

Exhibit 5 Deposition - Dr. Olive

Deposition Exhibits (5.1)

Exhibit 6 Deposition - Dr. Bernardi

Deposition Exhibits (6.1 - 6.5)

Exhibit 7 Records - Mercy Occupational Medicine

Exhibit 8 Records - SNSI - Dr. Woodward

Exhibit 9 MRI Report 4/9/2019

Exhibit 10 MRI Report 12/20/2019

Exhibit 11 Records - SERC Physical Therapy

Exhibit 12 IME Report - Dr. Bernardi

Exhibit 13 Addendum Report - Dr. Bernardi

Exhibit 14 IME Report - Dr. Olive

Exhibit 15 First Supplemental Report - Dr. Olive ${ }^{1}$

Exhibit 16 Second Supplemental Report - Dr. Olive

Exhibit 17 Third Supplemental Report - Dr. Olive

Exhibit 18 Records - Mercy Family Clinic. Mt. Vernon

Exhibit 19 Midwest Imaging MRI Disc - 4/9/2019

Exhibit 20 Midwest Imaging MRI Disc - 12/20/2019

Exhibit 21 Disc of Diagnostics from Dr. Bernardi

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[^0]: ${ }^{1}$ Any medical articles included in Dr. Olive's supplemental report(s) will not be considered as substantive evidence.

Employee Charles Campbell was born on December 6, 1977. He currently resides in Mt. Vernon, Missouri with his wife of 12 years. He has one minor child. At the time of the hearing, he was working as a supervisor for DISH Network. Before his promotion, he had worked about 10 years for DISH Network as a service technician. That job required him to drive a truck to residential locations to service and install satellite dishes. It was a physical job that he performed at least 40 hours a week.

On December 5, 2018, Employee had been installing satellite service at a residence. The job duties required that he use a 28 -foot ladder up against the client' house. DISH provided the ladder which was kept on his work vehicle. When Employee completed his installation, he released the ladder from its extended height and began to lift the ladder and place it over his shoulder to remove it from the side of the home. As he placed the ladder over his shoulder the ladder's weight was unevenly distributed and it began to fall back toward the home. He had to use all of his strength in the front, including his neck and both shoulders, to keep the ladder from falling. Employee immediately felt pain in both shoulders and down his left arm.

Employee immediately informed his supervisor, Tanner Bean, of the incident. The following morning, Employee filed an accident report. Initially, he reported to his supervisor that he was not seeking treatment because he thought he would give it a chance to get better on its own. The shoulder did get better, but the weakness, numbness and pain in his left arm did not. So, in March of 2019, he reported to his supervisor that he needed to be treated.

Employee had had no neck symptoms before the injury on December 5, 2018, although he had undergone two separate diagnostic studies for his neck. The first took place in 2005, after Employee had complained of tension headaches from the stress he experienced as a supervisor for a different business. An MRI was performed to find a cause for the headaches. Employee's complaints subsided once he changed jobs; and, he never received any treatment for his neck. The second diagnostic test occurred in about 2008 when he worked for a moving company. He was moving a safe with a dolly when it fell backwards, causing him to hit his head. Again, there was no injury, and no treatment was required for his neck at this time.

Dr. Paul Olive is a board-certified orthopedic surgeon who discontinued performing surgery in 2018 due to health reasons. He now conducts Independent Medical Evaluations and prepares Life Care Plans. Dr. Olive's medical training was focused on the spine with an emphasis on the cervical spine. He interviewed Employee on April 15, 2020, reviewed all relevant records and diagnostic studies, and drafted a report on May 3, 2020. He drafted an addendum report dated October 23, 2020. Dr. Olive testified by deposition on July 16, 2020, and also testified live at the hearing.

Dr. Olive opined that the ladder incident on December 5, 2018, as described by Employee, was the prevailing factor in causing Employee to suffer C7 radiculopathy. He said the load of the ladder sifting was an appropriate mechanism to create a load on the neck to cause a stretching or a pinching of the C7 nerve root. He opined that the C7 radiculopathy was the resulting medical condition suffered by Employee as a result of the ladder lifting accident.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Charles L. Campbell

Injury No.: 18-109984

Dr. Olive observed that Employee had normal age-related degenerative changes in the cervical spine, but this is not recognized as a "medical condition." By contrast, a sudden C7 radiculopathy is a medical condition, that is not commonly experienced, especially in individuals who are 40 years of age. He explained that people who experience significant degenerative changes of the neck do not necessarily develop a radiculopathy. This is because the body slowly is able to adjust to degenerative changes. Those people (a small percentage) who do suffer from radiculopathy as a result of degenerative changes often recover with conservative treatment. Dr. Olive believed that in Employee's case, however, he suffered an acute insult to the C7 nerve root. Dr. Olive clearly opined it was the sudden shifting of the ladder that caused the injury to the C7 nerve root resulting in the medical condition of C7 radiculopathy. Dr. Olive said this medical condition will not resolve on its own and can only be treated at this point by a one or two-level fusion surgery.

Dr. Robert Bernardi

Dr. Bernardi is a board certified neurosurgeon who examined Charles Campbell on December 3, 2019, and drafted an initial report and two additional reports. Dr. Bernardi testified by deposition on August 28, 2020.

Dr. Bernardi is in agreement with Dr. Olive that Employee needs a fusion surgery of his spine at the level of C6-C7. Specifically, he testified that because the C7 radiculopathy has not improved, if Employee wants to eliminate his pain, a fusion surgery is the remaining option. Dr. Bernardi explained that surgery at C6-7 would stabilize the segment, allowing the nerve to stay still so that it can heal.

In his first report, Dr. Bernardi outlined his review of diagnostic studies dated February 10, 2005, November 19, 2008, and April 9, 2019. He diagnosed Employee with multilevel degenerative disc disease, multilevel foraminal stenosis and left C7 radiculopathy. Dr. Bernardi said only the C6-C7 level is at issue. It is at that level from which the C7 nerve root exits the spine and was causing Employee's complaints. According to Dr. Bernardi's report and his testimony, there were no findings of significance at C6-C7 on prior diagnostic studies of the cervical spine, such as the February 10, 2005 MRI or the November 19, 2008 CT scan. Based on his review of the April 9, 2019 MRI, Dr. Bernardi concluded:

At C6-7, there is a small central protrusion. This is superimposed upon a broad-based disc/osteophyte complex. There is mild central stenosis. The right C7 foramen has adequate caliber. There is significant narrowing along the entire length of the left C7 foramen.

Dr. Bernardi described Employee's diagnosis of a C7 radiculopathy as follows:

Employee has a left C7 radiculopathy. He has very little midline neck discomfort. His pain is concentrated around his left shoulder blade. It radiates down his left arm following a C7 dermatomal distribution. He has weakness in the muscles innervated by this nerve root. His left triceps reflex, mediated by C7, is reduced compared to the right. Finally, he appears to have positive nerve root tension signs. I am confident his complaints are the manifestation of C7 root irritation.

In reaching his opinion as to the work relatedness of Employee's injury, in Dr. Bernardi's first report,

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Charles L. Campbell

Injury No.: 18-109984

he stated the following:

Employee told me that he had never experienced a significant bout of neck discomfort prior to December 5, 2018. The imaging studies forwarded to me would appear to belie that history. He had both an MRI and CT of his cervical spine previously. Surely these were done to evaluate some type of symptom involving his neck. Regardless, the MRI was done more than 14 years ago, and the CT was done more than 11 years ago. I do not have any medical records that would suggest was experiencing more recent issues with this part of his body. He describes a mechanism of injury that could conceivably produce periscapular and radiating arm pain. Taken as a whole, his work incident would appear to be the prevailing factor responsible for his radicular pain/disability.

Even though Dr. Bernardi believed Employee's work incident was the prevailing factor responsible for his radicular pain, he did not believe that the work incident was the prevailing factor responsible for the underlying medical condition. He explained, as follows:

At issue is whether Employee's work accident was the prevailing factor responsible for the underlying medical condition that is producing his radiculopathy. I must say that I do not think it was. His MRI appears to reveal a very broad-based disc bulge at C6-7 that is lateralized to the left. This results in stenosis along the entire length of the left C7 foramen. This finding is more suggestive of degenerative disc disease than an acute protrusion. However, I would like additional imaging before making a final determination on this matter. It can be difficult to differentiate between an acute protrusion, a degenerative bulge and a degenerative osteophyte on MRI. CT is much more accurate at making this distinction. I would recommend a non-contrast CT of the cervical spine.

If a non-contrast CT shows that this gentleman's foraminal narrowing is degenerative, then the incident on December 5, 2018 will not represent the prevailing factor responsible for the symptomatic medical condition in his cervical spine. In that scenario, he will be at maximum medical improvement from this perspective of his injury. If, on the other hand, the CT shows that his foraminal stenosis is due to a disc protrusion, this his injury will represent the prevailing factor responsible for both his pain/disability and his underlying medical condition.

On March 18, 2020, Dr. Bernardi drafted an addendum, following a CT scan done on December 30, 2019. His review determined that at C6-7, "there was a broad-based spur that was lateralized to the left and that it produced significant narrowing along the entire edge of the foramen." Dr. Bernardi then reached the following opinion in that March 18, 2020 addendum:

Employee's December 5, 2018 work accident was a triggering event. There is no medical condition on his imaging studies that can be attributed to it. It aggravated his pre-existing but previously asymptomatic foraminal stenosis. Without that degenerative foraminal narrowing, his occupational incident would not have been sufficient to produce symptoms.

In deposition, Dr. Bernardi conceded that Employee had no comorbidities that would affect his neck such as high blood pressure or smoking. He had no evidence that prior to December 5, 2018 Employee had suffered from a C7 radiculopathy and radicular pain. He conceded there was no finding of a bone spur at the C6-7 level on either of the prior scans from 2005 or 2008. Dr. Bernardi acknowledged that Employee's description of the ladder incident could cause an injury to the C7 nerve root. In relation to "aggravating" the pre-existing stenosis, Dr. Bernardi explained in his

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Charles L. Campbell

Injury No.: 18-109984

opinion, the role that the ladder played:

I think there are two ways you can imagine it. Extending your neck, so bending your neck backwards and looking overhead narrows the foramen; and so if he suddenly hyperextended his neck trying to balance the ladder, that could have aggravated the stenosis or if his neck if he is straining very hard and straining his neck muscles and he compressed down on his neck just enough to squeeze or narrow the foramen slightly, in either case, that trauma, if you want to call it trauma, the event that narrowed the foramen, enough extra narrowing to squeeze the nerve and cause to become inflamed.

Dr. Bernardi did not believe the films following the injury showed a nerve was being compressed acutely.

Credibility Findings

I find Claimant credible.

Both physicians are credible and are eminently qualified to render opinions in this case. Given a review of all of the evidence, however, I find the causation opinion of Dr. Olive more persuasive than that of Dr. Bernardi in this case.

CONCLUSIONS OF LAW

Employee bears the burden of proving the essential elements of his claim by producing evidence from which it may reasonably be found that an injury resulted from a cause from which Employee would be liable. *Griggs v. A.B. Chance Company*, 503 S.W. 2d 697 (Mo. App. W.D. 1973). In this case, the parties agree that Employee suffered an accident in the course and scope of his employment at the time of the alleged injury. At issue is whether that accident caused Employee to suffer an injury within the meaning of the Missouri Workers' Compensation Law. Pursuant to § 287.020.2 RSMo, an injury is not compensable if the work accident was merely triggering or was a precipitating factor.

If the work is the primary factor in causing the injury, § 287.140 RSMo, requires Employer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003).

Employee is now in a supervisory role for DISH. Prior to being promoted to supervisor he worked for at least 10 years installing satellite dish systems for customers. There are no records indicating that he suffered any type of injury to his cervical spine during that time. The records that do exist in this case detail him having an injury that by all accounts is consistent with his first report of his injury. All medical records are consistent with Employee's testimony at the hearing. Although Employee had prior diagnostic studies in 2005 and 2008, nothing in the medical records suggests that Employee had relevant preexisting neck complaints or any ongoing pain.

There is no dispute that Employee now suffers from a C7 radiculopathy. That condition/injury, according to the medical experts in this case, involves a nerve root at the C6-C7 vertebrae of Employee's neck. The two prior diagnostic studies focused on degenerative changes at other levels

and played no role in the cause of this injury. The diagnostic studies in 2005 and 2008 have no bearing in this case.

There is no dispute between the experts in this case that the ladder caused an injury to Employee's spine. Both experts agree that when Employee was lifting the ladder over his shoulder, that load was the appropriate mechanism to cause an injury to the C7 nerve root. It seems that Dr. Bernardi's opinion and Employer's defense is that the accident was merely a triggering or precipitating factor in Employee's current medical problem.

Dr. Olive, however, convincingly explained that the condition of Employee's neck prior to the work accident had been normal for a person of his age. Further, people do not typically develop C7 radiculopathy on their own due to degenerative changes because the body adapts to any advancing changes. If one does develop an age or degenerative related C7 radiculopathy, it usually resolves with conservative treatment. Essentially, Dr. Olive concludes that the ladder accident was so severe that it caused a man with normal, degenerative changes to suffer a rare C7 radiculopathy that has not responded to conservative measures and now requires surgery. Dr. Olive unequivocally said that the ladder incident and injury occurring on December 5, 2018, was the prevailing factor in the development of the cervical radiculopathy involving Employee's left upper extremity.

This case resembles the facts in Randolph County v. Moore-Ransdell, 446 S.W.3d 699, 706 (Mo. App. W.D. 2014), in which a 50-year-old office worker had pre-existing degenerative disc disease. She claimed an injury when she had to squat down and twist to remove a file from a cabinet. She then experienced severe pain, followed by numbness in her entire left leg. She was determined to have a compression on the nerves at L3-4. The injured worker's doctor opined that that the lumbar strain was the primary factor in causing her condition which necessitated a fusion surgery. The ALJ noted that the worker had been asymptomatic prior to the incident at work, and there was credible expert testimony that the back strain disturbed the degenerative disc disease, resulting in the need for a lumbar fusion. The Court of Appeals affirmed an Award in the worker's favor.

In this case, both experts agree that Employee requires a fusion of the cervical spine to relieve pain at the C7 nerve root. Dr. Olive believes there may be a need for a two level fusion. Dr. Olive made the case, within a reasonable degree of medical certainty, as to why the treatment is needed and how it is related to the work injury. He clearly said the lifting of the ladder over Employee's right shoulder was the prevailing factor in the development of the cervical radiculopathy at C7 involving the left upper extremity. Having found Dr. Olive's opinion credible and more persuasive than the competing expert opinion, I further find and conclude that Employee sustained his burden of proof as required by the Missouri Worker' Compensation Law.

Employer shall provide future medical treatment to cure and relieve the effects of the work injury of December 5, 2018, consistent the opinion of Dr. Olive, including the recommended fusion surgery at one or more levels.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Charles L. Campbell

I certify that on 5-21-21, 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 __________________________


Made by: __________________________

Victorine R. Mahon

Chief Administrative Law Judge

Missouri Division of Workers' Compensation