The Board denies the claimant’s DACD petition by accepting the medical opinion of the employer’s expert in concluding that the claimant’s latest cervical spine surgery was not compensable.

This case presented an interesting medical causation issue on a spinal surgery involving the adjacent segment disease phenomenon in which the employer was represented by this writer. The claimant had a compensable work injury on August 12, 2015, which was initially accepted only as a cervical sprain with right arm radicular complaints. She later had a cervical spine surgery on March 20, 2018, involving a discectomy at the C3-C4 level with fusion, which was accepted as compensable. After a period of temporary total disability, the claimant returned to work for the employer as an outside sales consultant. Later, in April 2019, the claimant developed right-sided neck pain for which she again saw Dr. Eskander, who had done the initial surgery. Dr. Eskander performed a second cervical spine surgery on August 28, 2019, involving a discectomy with fusion at the C6-C7 level. This resulted in a closed period of temporary total disability. After the employer disputed the compensability of the 2019 surgery, the claimant filed a DACD petition that led to a hearing with the Board.

The issue before the Board was whether the claimant’s C6-C7 surgery in August 2019 was causally related to the work injury and the initial surgery at the C3-C4 level. Dr. Eskander testified that the C6-C7 level on the cervical spine is the one that is most likely to herniate and this was more likely to occur here since the claimant had already undergone the initial surgery three levels away. Dr. Eskander referred to this as “noncontiguous adjacent segment disease” and explained that, because it happened just over a year after the initial cervical spine surgery, it was causally related to it.

The employer’s medical expert, Dr. Fedder, testified that the disc problem and the surgery at the C6-C7 level were unrelated to the work injury and the prior surgery. Dr. Fedder explained that in his opinion the claimant had developed a C7 radiculopathy of a compressive nature in April of 2019, which was the reason for the August 2019 second surgery.

The Board’s decision discusses in detail prior decisions it had issued on the spinal surgery issue of adjacent segment syndrome, some of which found for the claimant and some for the employer. However, the Board stated that this is not an issue to be decided based on legal precedent; rather, it depends on the facts in the particular case.

Importantly, the Board agreed with the employer that Dr. Eskander’s causation theory was very questionable since, by using the term “noncontiguous adjacent segment disease,” he was in essence treating the word “adjacent” as if it does not mean adjacent, which is a synonym for contiguous. Instead, the Board accepted the reasoning of Dr. Fedder, who testified that the medical literature discusses this issue and that none of the studies support the theory that adjacent segment disease can skip over a level to affect a disc further along the spine. Therefore, the Board concluded that the claimant had not shown that it was more likely than not that the C6-C7 level herniation was causally related to the prior cervical fusion at the C3-C4 level or the work injury. Quite simply, the Board stated that scientific literature does not establish that the adjacent segment disease phenomenon can skip over intervening levels, leaving them unaffected and yet affect a level even further away. This was at best a mere possibility and insufficient to establish the requisite legal causation. Accordingly, the claimant’s petition was denied.

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