Charles Campbell 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

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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

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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