Jacqueline Taylor v. Darden Restaurants, Inc./Olive Garden

(Reversing Temporary or Partial Award of Administrative Law Judge)

Injury No.: 17-098731

Employee: Jacqueline Taylor

Employer: Darden Restaurants, Inc./Olive Garden

Insurer: XL Insurance America, Inc., c/o Gallagher Bassett Services, Inc.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$, RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090, RSMo, the Commission reverses the administrative law judge's Temporary or Partial Award.

The parties dispute the following issues: (1) Whether the employee's cervical spine condition is medically causally related to her December 13, 2017 work injury; (2) The employer/insurer's responsibility to provide additional medical treatment.

The administrative law judge determined, based on the employee's testimony regarding the history of her injuries and her current physical and mental state, and the opinion of orthopedist Dr. Peter Mirkin that the employee's December 13, 2017 work accident was the prevailing factor in causing her cervical spine condition and need for treatment.

The employer/insurer filed a timely application for review with the Commission alleging the administrative law judge erred in finding Dr. Mirkin credible on the issue of medical causation of the employee's cervical spine condition because Dr. Mirkin's testimony impugned his credibility. The employer/insurer alleged it should be liable for the payment of no compensation for this claim based on the more credible and persuasive medical causation opinion of its expert, spinal neurosurgeon Dr. Robert Bernardi. We agree.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

On May 3, 2015, while working for an airline company in South Carolina, the employee sustained a work injury when a co-worker dropped luggage on top of her head. After steroid injections, she initially tried to live with her symptoms and avoid surgery. Because of continued complaints related to her 2015 work injury, the employee underwent an anterior cervical discectomy and fusion at C5-C6 and C6-C7 on January 30, 2017, performed by Dr. Jason Highsmith.

Dr. Bernardi's Record Review set out in his May 21, 2019 IME cited the following complaints reported by the employee after Dr. Highsmith's January 30, 2017 cervical surgery and before the employee's December 13, 2017 work injury:

03/28/2017: Ms. Taylor followed up with Dr. Highsmith. She had some residual neck pain

06/13/2017: Ms. Taylor follow up with Dr. Highsmith. She reported residual neck and shoulder pain. It was noted that to some extent this was a chronic problem along with the low back pain that radiated to the posterior aspect of her left thigh.

08/01/2017: Ms. Taylor followed up with Dr. Highsmith. She had persistent pain, numbness and weakness in her arms. She was referred to pain management. 09/05/2017: I reviewed the Physician Statement completed on this day. Ms. Taylor was assigned a permanent 10 to 15 pound lifting restriction. She was to avoid overhead lifting as well. She was referred to pain management. ${ }^{1}$

The employee settled her 2015 injury claim in South Carolina for approximately 28\% of the body as a whole referable to the neck. The employee never returned to work at the airline; however, she continued to work at Olive Garden, where she had also been employed for about four and a half years.

In December 2017, the employee transferred to an Olive Garden location in St. Louis County. On December 13, 2017, the employee sustained an injury while working at Olive Garden when she bent over to locate a lid, straightened up, and a box of commercial cellophane wrap fell from a shelf, striking her on the head.

After her December 13, 2017, work injury, the employee was initially treated at Concentra. Thereafter, Concentra referred the employee to Dr. Mirkin, an orthopedist. ${ }^{2}$ Dr. Mirkin's November 23, 2018 report to the employer's insurer stated "The patient tells me she had no significant symptomatology prior to the [December 13, 2017] incident in question and developed symptoms that correlate with her MRI findings after the incident in question; therefore, I believe that the prevailing factor in her needing treatment at this time is the [December 13, 2017] incident working at the Olive Garden" (emphasis added). ${ }^{3}$

Internal medicine physician, Dr. Paul Hinton, examined the employee on September 25, 2019, regarding her December 13, 2017, work injury. Dr. Hinton diagnosed the employee as having a "Cervical strain with exacerbation of C4-5 disc protrusion and progression of spinal cord stenosis and pre-existing multilevel bilateral foraminal stenosis resultant from the injury which occurred at work on December 13, 2017."4 Dr. Hinton found that the employee sustained 15\% of the body as a whole measured at the cervical spine related to the current injury.

Dr. Bernardi's May 21, 2019, independent medical examination report included his assessment of MRIs taken before and after the employee's December 13, 2017, work injury. Dr. Bernardi found the MRIs to be essentially identical and considered any differences "likely due to the fact that [the MRIs] were obtained on different scanners and/or subtle differences in the orientation/location of the slices."5 Dr. Bernardi opined that the employee had a poor result from her January 30, 2017, surgery, and that her "current complaints most likely represent an amalgam of chronic cervical myeloradiculopathy related to her work accident in May 2015 and more acute symptoms related to an aggravation of her residual C4-5 stenosis."6 After physically examining the employee and reviewing her medical records, Dr. Bernardi concluded:

I feel confident [the employee] has a genuine problem with her neck [that] may very well require surgical intervention [and that] very well may have become more symptomatic as a consequence of the incident on 12/13/2017. However, after reviewing her pre- and post-accident MRI scans, I cannot conclude that this

[^0]

[^0]: ${ }^{1} Transcript, p. 273., emphasis added

{ }^{2} Id., p. 50.

{ }^{3} Id., p. 101.

{ }^{4} Id., p. 468.

{ }^{5} Id., p. 276.

{ }^{6} \mathrm{Id}$.

event represented the prevailing factor in producing any medical condition in her neck let alone the medical condition that is most likely responsible for her complaints. Instead, I believe it was an aggravating or triggering factor. The prevailing factor was her pre-existing disc disease and stenosis. Without it, her work activities would not have been sufficient to produce symptoms. ${ }^{7}$

Dr. Bernardi further found that the employee sustained no permanent partial disability to her cervical spine attributable to her December 13, 2017 work injury.

"Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission (citations omitted)." Van Winkle v. Lewellens Prof'l Cleaning, Inc., 258 S.W.3d 889, 897. (Mo. App. 2008).

"The claimant in a workers' compensation case has the burden to prove all essential elements of her claim, including a causal connection between the injury and the job." . . "Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission." . . "[A]n injury is not compensable merely because work was a triggering or precipitating factor." . . .

Id.

As a factual matter, and based on the expert opinion of Dr. Bernardi, we are not persuaded that the employee's December 13, 2017 work injury is the prevailing factor causing her current cervical condition and need for surgery. Consistent with Dr. Bernardi's opinion, we find that the prevailing factor causing the employee's current symptomatic condition in her cervical spine and her need for treatment is chronic cervical myeloradiculopathy related to her May 2015 work injury and aggravation of residual stenosis. We further adopt Dr. Bernardi's opinion, logically consistent with his medical causation findings, that the employee has sustained no permanent partial disability attributable to her December 13, 2017 work injury.

We discredit Dr. Mirkin's contrary opinion because it was based on his incorrect assumption that the employee had fully recovered and had no physical complaints or limitations after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. We reject Dr. Hinton's findings regarding medical causation and permanent partial disability because we consider his expertise as an internal medicine physician less persuasive to the assessment of the employee's cervical spine condition than that of spinal neurosurgeon specialist, Dr. Bernardi.

We reverse the award of the administrative law judge.

The Employer/Insurer is liable for no compensation related to the employee's December 13, 2017 work injury.

The award and decision of Administrative Law Judge Joseph P. Keaveny is attached solely for reference.

[^0]

[^0]: ${ }^{7}$ Id., p. 279.

- 4 -

Given at Jefferson City, State of Missouri, this **24th** day of October 2022.

**Redney J. Campbell**, Chairman

**Shalonn K. Curls**, Member

**Kathryn S. Curls**, Member

Attest:

**Karla A. Hope**, Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed.

The administrative law judge correctly found that the employee's December 13, 2017 work injury was the prevailing factor in causing her cervical spine condition because the employer's first chosen physician, Dr. Peter Mirkin, provided credible opinions supporting that decision.

Section 287.140.1 provides, in pertinent part:

In addition to all other compensation paid to the employee under this subsection, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability to cure and relieve the effects of the injury.

The administrative law judge found that the employee proved her condition to be work-related and that additional medical treatment was needed to cure and relieve the effects of the injury. All three medical experts agreed that a box of commercial cellophane wrap falling from six to eight feet and striking the employee on the back of her head is consistent with her having an injury to her neck. All three physicians agreed that surgery would be a reasonable consideration to cure and relieve the employee's neck and shoulder symptoms.

Dr. R. Peter Mirkin, the employer's treating physician, opined that the December 13, 2017 work event was the prevailing factor in the disc protrusion at C4-C5 and her need for surgery. Dr. Mirkin's opinion is consistent with all of the evidence in the case. The employee credibly testified that she was functioning reasonably well before the December 13, 2017 incident and had a significant increase and change in her symptoms following. While Dr. Jason Highsmith did place permanent restrictions on the employee, as Dr. Mirkin pointed out in his deposition testimony some doctors impose restrictions "prophylactically or for subjective symptoms."1 There is no evidence as to why Dr. Highsmith placed restrictions on the employee.

The employer/insurer tried to discredit Dr. Mirkin during his deposition by claiming his opinion was based on an erroneous belief that the employee had no symptoms before her December 13, 2017 work injury. Even if that was initially true, it is clear that the employer provided on not one but two occasions, lengthy letters outlining medical records and providing information regarding their position that the employee was having symptoms before her work injury. Dr. Mirkin reviewed and took all of this information into account when he prepared his reports of November 23, 2018 and January 10, 2019. In both reports, he concluded that the employee's December 13, 2018 work injury was the prevailing factor in her need for surgery. Further, the employer/insurer repeatedly asked Dr. Mirkin about the employee's prior symptoms during his deposition. In addition to the employee's history regarding her complaints, Dr. Mirkin testified

[^0]

[^0]: ${ }^{1}$ Transcript, p. 83.

that he saw a significant change in the findings at C4-C5 on her MRI films. It is clear that by the time of his deposition testimony, Dr. Mirkin was well aware of residual problems and permanent restrictions that surgeon Dr. Highsmith placed on the employee. Yet it remained Dr. Mirkin's opinion that the incident of December 13, 2017, was the prevailing factor in his recommendation for surgery at the C4-C5 level.

Unhappy with its designated treating doctor's opinion, and after two failed attempts to get Dr. Mirkin to change his opinion, the employer/insurer sent the employee to Dr. Bernardi. Dr. Bernardi's opinions are inconsistent. He testified that the employee reported to him that she was doing better postoperatively and that he had no reason to doubt her, but in the next line he goes on to say why he doesn't believe her. Specifically, Dr. Bernardi states, "she reported to me that she felt better post-op, and I had no reason to doubt her. But the fact is from looking at her record she did not do very well (emphasis added)." Further, Dr. Bernardi stated that the C4-C5 level looks the same to him on all of the MRI films but then explains that it actually looks better on a more recent film and that the use of different machines can explain the differences.

Lastly, Dr. Bernardi offers in his deposition that one may argue that the C4-C5 level should have been repaired in the employee's January 2017 surgery. The employee's surgeon, Dr. Jason Highsmith, obviously did not feel that surgery was appropriate at the C4-C5 level before December 13, 2017. Dr. Highsmith performed surgery at two levels below C4-C5, followed up with the employee postoperatively for eight months, felt she was at maximum medical improvement, and released her from his case in August 2017. Further, the evidence demonstrates that while Dr. Highsmith recommended evaluation by a pain management specialist, the employee did not feel that her symptoms were severe enough to seek that or any other additional medical care until after December 13, 2017.

Based on the above evidence, the employee's December 13, 2017 work injury was the prevailing factor in causing the changes found by Dr. Mirkin and the changes in symptoms credibly testified to by the employee. The employee has not reached maximum medical improvement and, therefore, the employer is responsible for the additional medical care recommended by Dr. Mirkin and any temporary total disability that occurs for lost time from treatment.

The administrative law judge's temporary or partial award should be affirmed. Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{2}$ Transcript, p. 293.

Employee: Jacqueline Taylor

Injury No.: 17-098731

Dependents: N/A

Employer: Darden Restaurants, Inc./Olive Garden

Additional Party: N/A

Insurer: XL Insurance America, Inc., c/o Gallagher

Bassett Services, Inc.

Hearing Date: April 12, 2022

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: December 13, 2017.
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: A box of plastic wrap fell from a shelf and struck employee on top of her head.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Cervical spine.
14. Nature and extent of any permanent disability: N/A.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 392.63.
3. Weekly compensation rate: $\ 261.75 TTD/ $\ 261.75 PPD.
4. Method wages computation: Stipulation.

1. Amount of compensation payable: See award.
2. Second Injury Fund liability: N/A

N/A

TOTAL:

N/A

1. Future requirements awarded: See award.

Each of said payments to begin and be subject to modification and review as provided by law. This award is only temporary or 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.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Jacqueline Taylor

Injury No.: 17-098731

Dependents: N/A

Employer: Darden Restaurants Inc.,/Olive Garden

Additional Party: N/A

Insurer: XL Insurance America, Inc., c/o Gallagher

Bassett Services, Inc.

Hearing Date: April 12, 2022

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JPK

On April 12, 2022, the parties appeared for a hearing. Jacqueline Taylor ("Employee") appeared in person and with counsel, Robert Butler. Darden Restaurants, Inc.,/Olive Garden ("Employer"), and XL Insurance America, Inc., c/o Gallagher Bassett Services, Inc., ("Insurer") were represented by Christian Friedman. The Second Injury Fund was previously dismissed from this claim. The proceedings were transcribed by Court Reporter Lori Sanders.

1) Employee was operating under and subject to the provisions of the Missouri Workers' Compensation Act.

2) On or about the date of the alleged accident, Employee was employed by Darden Restaurants, Inc.,/Olive Garden and was working under the Missouri Workers' Compensation Act.

3) On or about December 13, 2017, Employee sustained an accident as defined in RSMo. 287.020.2.

4) Employer had notice of Employee's accident.

5) Employee's claim was filed within the time allowed by law within the statute of limitations.

6) Employee's average weekly wage was $\ 392.63.

7) Applicable rates of compensation are $\ 261.75 for TTD and $\ 261.75 for PPD.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) Deposition of R. Peter Mirkin, M.D., dated September 28, 2020.

2) Medical records of Concentra Medical Centers (MO).

The Employer and Insurer introduced, and had admitted into evidence, the following Exhibits:

A) Deposition of Jacqueline Taylor, taken on August 1, 2018.

B) Medical Records of Dr. Don Stovall, Jr., and Dr. Shailesh Patel.

C) Medical Records of South Carolina Diagnostic Imaging.

D) Medical Records of Dr. Jason Highsmith.

E) Medical Records of Mid America Imaging.

F) Report of Dr. Robert Bernardi.

G) Deposition of Dr. Robert Bernardi, taken on April 16, 2021.

H) Report of Dr. Paul Hinton.

1) Employer and Insurer's responsibility to provide additional medical treatment.

2) Medical Causation.

3) Permanent disability.

Employee was 60 years old at the time of the hearing. She was born on November 20, 1961.

On December 13, 2017, Employee injured her neck while at work. She bent over to locate a lid, straightened up, and a box of commercial cellophane wrap fell from a shelf, striking her on the head. She reported pain and mild tingling that, she assumed, would improve with rest. At the time of the incident, she was working under permanent light-duty restrictions as a result of having a cervical fusion in January 2017.

She was examined for the first time by Concentra on December 18, 2017, and by Dr. Katherine Mulherin. She reported that her symptoms had mildly improved since the injury. She rated the neck, upper back pain, at a $7 / 10$ and paresthesia left greater than right. The pain was worse with bending the elbow, lifting, and movement, and the pain was referred to the arms. She had a constant headache and occasional mild dizziness. X-rays were taken, which did not show any fractures, and the fusion was intact. Her diagnoses was a cervical strain, head contusion, and headache. Physical therapy was ordered, and she was placed on restricted duty of lifting no greater than 5 pounds constantly, pushing or pulling up to 10 pounds, bending occasionally, and no reaching above the shoulders with affected extremity.

Employee was re-examined at Concentra on December 21, 2017, by Dr. Emilio Bianchi. She reported that her symptoms were unchanged. Her pain was located in her right shoulder. The symptoms occurred frequently. She described the pain as sharp; the severity of the pain is mild. Pain radiates to the left arm, neck bilaterally, and scapulae bilaterally. Associated symptoms included a decreased range of motion, stiffness, neck pain, and numbness in the arm. Exacerbating factors include shoulder movement and relieving factors include rest. Light-duty restrictions were continued, and she was referred to see an orthopedic specialist, Dr. Peter Mirkin.

Before seeing Dr. Mirkin, Employee underwent physical therapy for six visits at Concentra from December 26, 2017 through January 15, 2018.

On May 3, 2015, Employee was working in South Carolina, for ENVOY, transporting luggage. While working, a co-employee dropped luggage on top of her head. She incurred neck pain with bilateral radiculopathy.

Dr. Donald Stovall examined her on August 6, 2015. He recommended an MRI of the neck for indications of radiculopathy. He diagnosed cervicalgia and cervical radiculopathy.

An MRI conducted at Tri-County Radiology West Ashley and interpreted by South Carolina Diagnostic Imaging on August 17, 2015 found:

- C4-C5, there is a small central disc protrusion. Minimal inferior extrusion. Moderate flattening of the spinal cord and moderate central canal stenosis. The neural foramina are patent.

- C5-C6, there is a broad-based disc-osteophyte complex greater asymmetric to the left producing severe central canal stenosis. Moderate flattening of the spinal cord which is mildly compressed asymmetric to the left and there is severe left neural stenosis. The right neural foramen is minimally narrowed.

- C6-C7, there is a moderate central disc-osteophyte complex producing severe central canal stenosis with moderate flattening and mild compression of the spinal cord. Severe right and at least moderate left neural foraminal stenosis.

The radiologist's impressions were as follows:

1. Moderate to severe DDD at C5-C6 and C6-C7 with severe central canal stenosis at both levels. There is evidence of spinal cord compression at both levels.
2. Small central disc protrusion/extrusion at C4-C5 with moderate central canal stenosis.
3. Minimal right central disc protrusion at C7-Tl.
4. Severe left C6 and bilateral C7 neural foraminal stenosis.
5. Incidental demonstration of a 22 mm ovoid mass medial to the right carotid bifurcation. Recommend dedicated MRI of the soft tissue neck with and without IV contrast.

She returned to Dr. Stovall on August 27, 2015. He reports that the MRI scan "reveals disc space narrowing at C5-6 and C6-7 with disc bulging and spinal stenosis greater on the right. Mild central bulge at C4-5." He opined that her options were either injections or surgical intervention if she continued to have radiculopathy.

She was referred to Dr. Shailesh M. Patel. He performed cervical translaminar epidural steroid injections on September 9, 2015 and October 21, 2015.

Employee returned to Dr. Stovall on November 4, 2015. She complained of neck pain with radiation into bilateral arms, left greater than right, with associated numbness and tingling since May 3, 2015. She had undergone two injections with minimal improvement. He discussed treatment options with her of either living with the current symptoms or considering surgical intervention. If she chose surgery, he stated that a C5-C7 ACDF procedure for cervical radiculopathy would be required. She decided to try to live with the symptoms at that time. Dr. Stovall placed her at maximum medical improvement. He placed her on restrictions that would include limited overhead activity and lifting no more than 40 pounds occasionally and 20 pounds frequently.

Dr. Stovall last saw Employee on May 12, 2016. He felt that she was at maximum medical improvement. He diagnosed cervicalgia, degeneration of the cervical intervertebral disc, and cervical radiculopathy. He thought that she was not an ideal candidate for surgery based on the MRI findings, EMG results, and the results of the previous injections that provided no relief. However, he states that if she has any worsening or change of condition, it would be reasonable for her to elect surgery.

Dr. Jason M. Highsmith examined Employee on July 12, 2016. He reviewed the cervical spine MRI of August 17, 2015 from Tri-County Radiology. He interpreted it as follows:

"It shows loss of cervical lordosis consistent with muscle spasm. There is no gross bony mal-alignment. There is a loss of disc height at C5-6 and C6-7. There are cervical disc disruptions throughout the entire cervical spine, most notable at C4-5 with central extrusion, flattening of the spinal cord, and moderate central stenosis. C5-6 demonstrates severe central stenosis with left paracentral disc herniation and neurologic impingement. There are similar findings at C6-7 with severe bilateral neural foraminal narrowing neurologic impingement, as well. There are no spinal cord parenchymal changes."

His diagnosis was axial neck pain with bilateral upper extremity radiculopathy; cervical disc disruptions throughout the cervical spine, most notably at C4-5, C5-6, and C6-7, with severe neurologic impingement at the C5-C6 and C6-C7 levels. He recommended she have weight restrictions: Lifting no greater than 40 pounds, no overhead lifting, and lifting no more than 20 pounds frequently. He recommended an anterior cervical discectomy and fusion at C5-C6 and C6-C7.

He recommended a second MRI conducted on January 24, 2017, at Tri-County Radiology North Charleston and interpreted by South Carolina Diagnostic Imaging. The findings of that MRI are reported as follows:

- C4-C5 disc bulge, paracentral left broad-based protrusion. Contact and slight indentation of the ventral cord. Moderate central narrowing. No cord edema.

- C5-C6 broad-based disc osteophyte, paracentral left broad-based disc extrusion extends slightly above the superior endplate of C6 and posteriorly 2.4 mm . Contact and slight indentation of the left ventral hemicord. No cord edema. Severe central stenosis, the central canal measures $5.5 \times 18 \mathrm{~mm}$. No cord compression. A small amount of CSF signal remains at this level. Moderate to severe left and mild right exit narrowing.

Contact, slight deflection, and possible effect at the left ventral nerve rootlet and left neural foramen.

- C6-C7 grade I degenerative retrolisthesis of C6 on C7. Broad-based disc osteophyte contact and slight indentation of the ventral cord. Severe central stenosis, with contact and indentation of the ventral cord, central canal measures roughly $5.9 \times 16 \mathrm{~mm}$. No cord edema. A small amount of CSF signal remains at this level. Moderate to severe right and moderate left exit narrowing. Contact, slight deflection, and possible effect at the right neural foramen.

The radiologist's impressions were:

1) Moderate to severe degenerative disc disease C5-C6 and C6-C7, with severe central stenosis of both of these levels. No cord edema. Slight progression of the degenerative changes as expected over the interval.

2) There is also contact of the ventral cord at $\mathrm{C} 4-\mathrm{C} 5 and contact of the ventral cord at \mathrm{C} 6-$ C7 without severe stenosis at these remaining sites.

Dr. Jason Highsmith performed surgery on January 30, 2017. The postoperative diagnosis was cervical radiculopathy with disc herniation, C5-C6 and C6-C7. He described the procedures as anterior cervical discectomy and fusion at C5-C6 and C6-C7 with interbody cage times two, anterior instrumentation, and local autograft.

Employee followed up with Dr. Highsmith postoperatively until August 1, 2017. He noted that she had been very compliant with all treatment regimens on the last visit, including quitting smoking to recover from her surgery. She complained of residual numbness and pain in the arms and intermittent weakness. On physical examination, he noted that she was having some residual deficits and residual pain. He recommended evaluation with Dr. Patel and pain management. He found her at maximum medical improvement. He noted she had residual grip weakness which is intermittent in nature and diminished range of motion of the neck secondary to pain. He found paraspinous tenderness, but, otherwise, good strength and sensation.

Employee ultimately settled her Workers' Compensation claim, in South Carolina, for approximately 28 % of the body as a whole referral to the neck.

Employee never returned to work at ENVOY. However, she had also been working at Olive Garden for a couple of years. She transferred from the Olive Garden in South Carolina to move back to Illinois with her daughter and son-in-law. She transferred in December 2017 to the Olive Garden in Missouri, where the present injury occurred.

Dr. Mirkin examined Employee on February 7, 2018. She was referred to him by the occupational medical staff of physicians at Concentra. Her chief complaint was pain in her neck and down her left arm. She told Dr. Mirkin that she had prior neck surgery and that the

symptoms improved entirely after surgery. He diagnosed a neck strain with radicular complaints and recommended an MRI.

The MRI was conducted on February 21, 2018. The radiologist's findings were:

"C4-C5 disc desiccation. Tiny anterior and posterior annular fissures. There is a prominent midline posterior disc osteophyte complex which effaces the anterior thecal sac and minimally indents the anterior surface of the cervical cord. This results in severe spinal canal stenosis. There is minimal bilateral uncovertebral hypertrophy with no significant foraminal stenosis on either side."

His impressions were:

1) Post-surgical changes of anterior C5-6-7 fusion with cervical vertebral body heights and alignment.

2) Posterior disc protrusion at C4-C5 indents anterior cervical cord minimally with no convincing cord signal abnormality. This results in severe spinal canal stenosis.

3) Degenerative disc disease at C4-C5 with anterior and posterior annular fissures.

Dr. Mirkin personally reviewed the film and found her to have a disc protrusion above her fusion with significant stenosis at C4-C5. He recommended that she consider cervical decompression and fusion. Employee wanted to consider her options and discuss them with her family. He returned her to work under her previous restrictions.

Employee saw Dr. Mirkin on May 2, 2018. She reported severe neck pain and had pain down her arms. Dr. Mirkin noted, "Her range of motion was getting worse. It was less than it was the time I'd seen her before. She had a positive Spurling's sign, which was a sign of spinal cord compression. She had decreased sensation in the C5 dermatome. So, I thought she was objectively getting a little bit worse."

Employee wanted to proceed with surgery.

When Dr. Mirkin compared the MRI dated January 24, 2017 of the cervical spine with the MRI dated February 21, 2018, he noted the MRI of January 24, 2017 "reveals very severe stenosis at C5/6 and C6/7 and mild stenosis at C4/5 with a bulging disc. The more recent MRI dated $2 / 21 / 2018 of the cervical spine revealed signs of decompression and fusion at \mathrm{C} 5, \mathrm{C} 6 and C 7 with a much larger disc herniation at \mathrm{C} 4 / 5$."

Further, Dr. Mirkin stated, "I do agree that both MRIs show disease at C4/5, however the more recent MRI reveals a disc protrusion which is quite a bit larger at C4/5. The patient tells me she had no significant symptomatology prior to the incident in question and develop symptoms that correlate with her MRI findings after the incident in question; therefore, I believe that the prevailing factor in her needing treatment at this time is the incident working at Olive Garden. I believe the fusion that I recommended is required to relieve and cure her of the effects of the work-related condition."

Dr. Robert Bernardi examined Employee on May 21, 2019. After reviewing the imaging studies, he stated:

1) He reviewed the cervical MRI dated August 17, 2015. On the sagittal images, there is multilevel degenerative disc disease. It is most pronounced at C5-C6 and C6-C7. At these segments there is loss of height and hydration. There is a posterior osteophyte formation. The findings at C4-C5 are intermediate. There is a loss of hydration. Height is maintained. There looks to be slight anterior subluxation of C4 relative to C5. There is disc bulging. On the axial images, there is a shallow central protrusion at C4-C5. This may be slightly lateralized to the left. There is near complete obliteration of the subarachnoid space associated with cord flattening and moderate central stenosis. The foraminal dimensions are well-maintained.

2) He reviewed the repeat MRI dated January 24, 2017. He did not believe it was done on the same unit as the original scan. With this in mind, he did not observe any definite new findings.

3) He reviewed the cervical MRI dated February 21, 2018. He compared it directly to the earlier two studies. There were new postoperative changes at both C5-C6 and C6-C7. The stenosis of both segments was improved. There was no change of appearance at any other level.

Dr. Bernardi opined:

"I have no doubt that Ms. Taylor feels better since the surgery performed by Dr. Highsmith on 1/30/2017. However, I am hard-pressed to say that she did exceptionally well following that procedure. Post-operatively, she reported persistent neck pain along with residual upper extremity weakness and numbness. This was bothersome enough that she was ultimately referred to a pain management physician for additional treatment on 8/1/2017. Most individuals undergoing a two level cervical fusion are told to avoid contact sports in high impact exercises. No additional activity restrictions are generally required. Yet, on 9/5/2017 this lady was assigned a 10 to 15 pound permanent lifting restriction. As she freely attests, she was never well following her first surgery. She was having ongoing issues prior to 12/13/2017."

Dr. Bernardi felt that whether the December 13, 2017 accident was responsible for Employee's symptoms is a "matter of speculation. She was having similar ones prior to that date. Whether they are worse or not is something only she can know." He stated that he was "confident her imaging studies do not reveal any new pathology that can be linked to her more recent accident." After reviewing Employee's cervical MRIs, he thought the C4-C5 segment was identical on all of them.

Further, he states:

"Ms. Taylor struck me as a very credible historian. I feel confident she has a genuine problem with her neck. It very well may require surgical intervention. It very well may have become more symptomatic as a consequence of the incident on 12/13/2017. However, after reviewing her pre- and post-accident MRI scans, I cannot conclude that this event represented the prevailing factor in producing any medical condition in her neck let alone the medical

condition that is most likely responsible for her complaints. Instead, I believe it was an aggravating or triggering factor. The prevailing factor was her pre-existing disc disease and stenosis. Without it, her work activities would not have been sufficient to produce symptoms."

Paul Hinton, M.D., FAAP, FACP

Dr. Paul Hinton issued a rating report dated October 10, 2019. He evaluated Employee on September 25, 2019. Dr. Hinton is Board Certified in Internal Medicine but is not a surgeon. He diagnosed Employee with "cervical strain with exacerbation of C4-5 disc protrusion and progression of spinal cord stenosis and pre-existing multilevel bilateral foraminal stenosis resultant from the injury which occurred at work on December 13, 2017." Dr. Hinton rated Employee at a 15 % permanent partial disability to the body as a whole as measured at the cervical spine directly resultant from the December 13, 2017 work related injury.

Claimant credibly testified and presented substantial probative evidence about the history of her injuries and her current physical and mental state.

RSMo. 287.140 provides, in part:

1. In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.
2. If it be shown to the division or the commission that the requirements are being furnished in such manner that there is reasonable ground for believing that the life, health, or recovery of the employee is endangered thereby, the division or the commission may order a change in the physician, surgeon, hospital or other requirement.

[In] determining the extent of disability, the commission may reject the uncontradicted opinion of a vocational expert. Additionally, while it is true that the commission may not reject uncontradicted medical testimony in favor of the ALJ's opinion on the issue of medical causation, the extent of an employee's disability, and thus employability, is not an issue of medical causation, nor does it exclusively require medical testimony. The extent and percentage of disability is a finding of fact within the special province of the industrial commission. As a result, in determining the degree of a claimant's disability, the commission may consider all the evidence and the reasonable inferences drawn from that evidence.

Palmentere Bros. Cartage Serv. v. Wright, 410 S.W.3d 685, 692 (Mo. App. 2013).

I find the testimony and report of Dr. Mirkin more persuasive than the reports of Drs. Bernardi and Hinton. Dr. Mirkin identified a disc herniation and described, in detail in his deposition (p 21), the difference between each of the images. He stated, "Well the first thing, if you look at I wrote 4 and 5, and the disc between them is now protruding towards the spinal cord and actually puts a dent into the spinal cord, which I didn't see on the earlier MRI."

Dr. Mirkin opined, further, that the incident that occurred on December 13, 2017, was the prevailing factor in her condition and need for treatment. He stated, "This was a very nice lady who was working at a restaurant. She had had a fusion at C5-6 and C6-7, was doing well. Gets hit in the head, has new onset of symptoms that I see no indication she had as a result of C4-5 prior to that incident. And then she has physical exam findings, radiographic studies that all confirm significant protrusion and stenosis at C4-5. I acknowledge there is some mild degenerative disease at C4-5 on the MRI that she had in South Carolina, but in my opinion, it was significantly worse after the getting-hit-in-the-head incident. And her symptoms, most importantly, from what I know, were not present prior to the point she got hit in the head." (Dep p 14-15)

Dr. Bernardi, on the contrary, reviewed all three MRIs and found no change in the pathology at C4-5. He believed Employee's current complaints represent an amalgam of chronic cervical myeloradiculopathy related to her work accident in May 2015 and more acute symptoms related to an aggravation of her C4-5 stenosis. He explained away the difference in the MRIs as being from different equipment.

In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required due to the complication of pre-existing conditions, or that treatment may have benefited both the compensable injury and a pre-existing condition. Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511, 519 (Mo. App. 2011). Once it is determined that an accident is compensable, a claimant need only prove a need for treatment. It is immaterial whether that treatment also addresses a pre-existing condition.

"It is not necessary for a claimant to provide conclusive evidence as to what future medical treatment will be needed." Jefferson City Country Club v. Pace, 500 S.W.3d 305, 317 (Mo. App. 2016). The Claimant must demonstrate a "reasonable probability" that future medical treatment will be necessary due to the work-related injury. Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 270 (Mo. App. 2004). Here, Claimant met that burden.

Accordingly, on the basis of substantial and competent evidence contained in the whole record, I find, the work accident of December 13, 2017, is the prevailing factor in causing Claimant's condition of an irreversible aggravation of Claimant's cervical spine at C4-5. Therefore, Employer/Insurer is ordered to provide additional medical care, by a qualified medical professional, for orthopedic evaluation of C4-5.

I certify that on Jul 112022

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: $\frac{\text { Jomil Darson }}{\text { P. 14 }}$


Made by:

Joseph P. Keaveny

Administrative Law Judge

Division of Workers' Compensation

Keaveny

Digitally signed by Joseph P Keaveny Date: 2022.07.04 09:39:44-05'00'