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Pino v. State2/17/2000
which revealed mild disc degeneration and a bulge in Pino=s spine at L-4 L-5, L-5 S-1. Dr. S. treated Pino conservatively with muscle relaxers, anti-inflammatories, and therapy for the following six months.
Pino returned to work part-time within the six month period, and he began working full time shortly thereafter. Intermittently, he had good days and bad days over the course of the next fourteen months. He suffered recurrent pain, and occasionally he experienced work- related flare-ups. He would take time off from work depending on the nature and length of the flare-up. Dr. S. articulated an opinion that the symptoms experienced by Pino related back to the initial injury in June of 1995.
In March of 1997, Pino coughed as he was getting out of the shower at home; he heard a pop; and immediately felt pain that was very like the pain he experienced when the van pinned him against the workbench in 1995. Another MRI was obtained, and it disclosed a ruptured disc in Pino=s back at the site of the bulge. Pino had experienced no trouble with his back prior to the injury in 1995, but the examination by Dr. S. following that occasion disclosed the bulge in his back and a weakening of the fibrous tissue surrounding the disc that ruptured. Dr. S., in his testimony, advanced the opinion that to a reasonable degree of medical probability, Pino=s condition was attributable to the work-related injury in June of 1995. On cross-examination, Dr. S. conceded that in the absence of any x-rays taken prior to the 1995 injury, there was no way to tell definitively whether Pino had asymptomatic bulges or not. Dr. S. was clear that a hot shower would not relax the surrounding muscles and cause the bulge. Furthermore, a cough would not result in herniation of a disc in an asymptomatic individual who did not already have some defect.
At the hearing, the Division endeavored to inject doubt with respect to the opinion of Dr. S. by questioning him about the report of the radiologist concerning the MRI that was made in 1995. The questioning suggested that a statement in the radiologist=s report reflecting that Pino=s symptoms were in the opposite, right leg, in the context of his identification of a bulge and spurring that was asymmetric in the left paracentral region at L-5 S-1, which might indicate mild disc protrusion beyond the osteophytes in that area, demonstrated that the 1995 injury was not related to the ruptured disc. The ultimate statement was that the finding, i.e., the disc bulge and spurring that are asymmetric on the left paracentral region at L-5 S-1, was of questionable clinical significance because of the symptoms in the right leg. When asked to explain that, Dr. S. pointed out that the radiologist was hedging because he did not know whether that bulge was related to Pino=s symptoms. Dr. S. pointed out that it is possible for a small fragment to bulge to the midline or even to the right that is not seen on the MRI and that the radiologist was simply saying he did not know whether that condition was present or not. Dr. S. agreed that there was no way of saying for sure because of the absence of prior objective diagnostic reports like the MRI or an x-ray, but for him it was a safe assumption that the crushing between the van and the workbench precipitated the bulge. He essentially supported that opinion by pointing out that Pino had no symptoms prior to the 1995 injury and the symptoms presented themselves following the injury.
Another expert, Dr. V., the neurosurgeon who treated Pino, testified he had reviewed the two MRI=s. According to Dr. V., although the 1995 MRI did not show an overtly herniated disc, a bulge was present which could have resulted from micro trauma over a period
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