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Pino v. State2/17/2000
nk he caused the bulge of the disc in June of >>95. It weakened the disc and predisposed him to have the ruptured disc.
Q. Do you feel you hold that opinion as speculative or is that opinion held to a reasonable degree of medical probability.
A. I think that=s reasonable.
(Emphasis added.)
The Supreme Court of Utah dealt with a remarkably similar situation in Perchelli v. Utah State Indus. Commission, 25 Utah.2d 58, 475 P.2d 835 (1970). The claimant in that case had suffered a compensable back injury in 1966. Two years later, he sneezed and the disc herniated. Id. at 836. The agency in that case considered the sneeze to be an independent cause of Perchelli=s disability, and compensation was denied. Id. at 837. The decision was reversed on appeal, and benefits were awarded. The court in that case said that if Perchelli had not sneezed, Asome other episode would have triggered the actual disc herniation, requiring surgery.@ Id. The cough that triggered the herniation in Pino=s back cannot be meaningfully distinguished from Perchelli=s sneeze.
The Division contends that the disc bulge could have antedated the injury in 1995, focusing on the inability of the doctors to Atell for sure@ whether the 1995 accident initiated the bulge that resulted in the herniation in 1997. The Division contends that the subsequent injury bore only Aa speculative relationship to the 1995 accident at work.@ This argument inverts the application of the requirement of substantial evidence to sustain the burden of proof. In effect, the Division seeks to compare speculation to the testimony of the treating physicians. We are satisfied that Pino met his burden not only of establishing the 1995 injury and the absence of a pre-existing bulge in his spinal column, but also the second compensable injury resulting from the injury at work.
We note the additional testimony of Dr. S.:
Q. So, if we don=t know when the bulge occurred, but the bulge, in your opinion, contributed to the coughing incident precipitating the herniated disc in 1997, if we don=t know when that bulge occurred, there=s no way to say with any level of certainty that the June, 1995 accident is the cause of that herniated disc almost two years later, correct?
A. I think we=re looking at this, since he had no symptoms, since he had never had trouble with his back, no previous history of injury that I know, there=s no way of saying that he didn=t have the problems, but because he=s saying he had no symptoms I think we have to assume, unless we=d had an MRI before he started working [at his place of employment], I think we have to assume that he had no trouble. This was a pretty severe injury that he had, and I think you must assume that crushing between a bench and a car certainly could have precipitated this, but I have no way of telling for sure. (Emphasis added.) Dr. V. also testified:
Q. And can you say with any certainty what caused Mr. Pino=s disc bulge that was observed on the 7/19/95 MRI?
A. You can not say with certainty, but he was asymptomatic in 1995 and symptomatic thereafter.
We conclude that the hearing examiner failed to recognize that the issue before the agency was one of a second subsequent injury rather than simply one of proximate causation. Like a trial judge instructing a jury, the Office of Administrative Hearings has an obligation to invoke and apply the rules of law that support a claimant=s theory of the case. It may be that this Court has explained the case in more detail and with more specificity than did Pino, but the fact remains that his theory of the case encompassed a second compensable injury. The h
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