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  • Writer's pictureRick Montgomery

Employer's IME doctor found more credible by Commission in reversing award of compensation.

In a 2-1 decision with Commissioner Curls dissenting, the Missouri Labor and Industrial Commission reversed the credibility determinations and award of benefits by ALJ Joseph P. Keaveny.. The Commission found that Employer's IME doctor, Dr. Robert Bernardi, was more credible than the treating physician, Dr. R. Peter Mirkin. and Employee's IME physician, Dr. Paul Hinton. Employee underwent a prior cervical discectomy and fusion at C5-6 and C6-7 on January 30, 2017. Later that year Employee suffered the primary injury at work on December 13, 2017, 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.

Dr. Mirkin, an orthopedic surgeon, was authorized to treat Employee and found that, "The patient tells me she had no significant symptomatology prior to the December 13, 2017, 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. Dr. Paul Hinton, an internal medicine physician, diagnosed 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. Dr. Robert Bernardi, a neurosurgeon, performed an independent medical examination a the request of Employer and reviewed MRIs taken prior to and after the employee's December 13, 2017, work injury finding "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 fact0r. The prevailing factor was her pre-existing disc disease and stenosis. Without it, her work activities would not have been sufficient to produce symptoms."

The Commission discredited Dr. Mirkin's 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. The Commission reject Dr. Hinton's findings because it considers his expertise as an internal medicine physician less persuasive to the assessment of the employee's cervical spine condition that that of a spinal neurosurgeon specialist, Dr. Bernardi." The award of the administrative law judge is reversed and the Employer/Insurer is liable for no compensation related to the employee's December 13, 2017 work injury. Taylor v. Darden Restaurants, Inc. / Olive Garden, Injury No. 17-098731, decided October 24, 2022.

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