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 outlini