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Markovich v. Helmsman Management Services1/31/2003
(IME) of the claimant at the request of Liberty.
In his testimony, Dr. Moseley described claimant's disk protrusion as "a very large disk protrusion." (Moseley Dep. at 9.) He further testified that claimant's stenosis, as imaged in the December 1999 MRI, is probably congenital but that his "predominant problem" is the "disk herniation." (Id. at 11.) Most importantly, he testified that the "disk herniation is traumatically induced" and that the inducing trauma was the claimant's September 22, 1999 industrial accident. (Id. at 11, 19.)
In reaching his opinions, Dr. Moseley took into consideration the claimant's history of low-back complaints to medical providers. He noted that claimant's neck pain could have masked low-back pain. He also testified that the initial injury could have caused "a small rupture that gradually gets worse with activity, with exercise, with therapy, with work." (Id. at 16.) Finally, he noted that a herniated disk "can migrate out slowly, and sometimes in the early stages they won't have a lot of discomfort or it will be back pain and not necessarily leg symptoms." (Id.)
Dr. Moseley also addressed the mechanism of injury , testifying that the herniated disk could have been caused by either the blow to claimant's head being transmitted down the spine or the unexpected flexion of the spine following the blow. (Id. at 15.)
While acknowledging that it was "possible" that the claimant's industrial accident caused claimant's low-back problems (Sukin Dep. at 30), Dr. Sukin opined that the claimant's low-back condition is unrelated to his industrial accident. (Id. at 12.) However, he also testified that if the claimant's condition was due to trauma he
would expect to see a high likelihood of a tear in the annulus, which is the O-ring of the disk, as well as seeing disk material, with minimal to no degenerative changes in the disk or degenerative changes in the surrounding elements around the spine, such as the posterior elements.
If, however, this was a degenerative process, I would expect to see more of those degenerative changes, i.e., bone spurs, osteophytes, dehydration of the disk, things such as that. (Id. at 32-33.)
When questioned about claimant's low-back condition, particularly as evidenced by the MRI, Dr. Sukin acknowledged that the MRI showed a "disk fragment" and an "annular tear and disk protrusion." (Id. at 33.) He further acknowledged that the degenerative changes described in the MRI report were "mild." (Id. at 34.) Finally, and most importantly, he was asked,
f in fact there are no other lifting incidents or traumatic incidents, would you agree with Dr. Goodman that his low back pain may be related to the accident? (Id. at 46, emphasis added.)
He replied:
A. I can't disagree with that statement, no. (Id.)
There is no evidence of any other trauma or lifting which would explain claimant's symptoms or his herniated disk.
I find Dr. Moseley's opinions more persuasive for two reasons. First, his opinion that claimant's herniated disk most likely has a traumatic origin is supported by Dr. Sukin's testimony, thus I conclude that trauma produced the herniation. The only trauma in evidence which could have caused the herniation was the industrial accident.
Second, under the treating physician rule, the opinion of the treating physician must be given deference, all other things being equal. In other words, unless there is a good reason to prefer the opinions of a non-treating physician, the treating physician's opinion is controlling. In this case, I find no reason to prefer Dr. Sukin's opinions. Both h
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