At issue is whether Dr. Grivas' two-level surgical spine fusion in the Spring of 1993 is compensable. That area of plaintiff's body was injured in an auto accident in 1989, treated during a flareup in the June, 1991, and became symptomatic under compensable circumstances in August 2, 1992, when plaintiff had done some unusual moving of boxes resulting in the onset of pain that evening. The question is whether made the pre-existing condition was made temporarily symptomatic or was permanently exacerbated (e.g., aggravated, augmented, accelerated or deterioration precipitated, etc.) by this activity. If so, symptoms in the neck and shoulder should have continued until the time of the surgery, through the interval between her release from the compensable treatment on September 17, 1992 and her emergency room visit on February 5, 1993. The notes of these visits, and her first one with Dr. Moose, all suggest that she had said her symptoms from the compensable incident had resolved and that she was complained only of her hand and lower arm numbness and pain. Unfortunately, there were no spine films until shortly before the surgery. As Dr. Grivas put it, "I think it depends on whether or not you believe what the plaintiff says", and the Deputy Commissioner clearly did not. In light of the medical evidence, I do not see a basis for second-guessing her firsthand evaluation of the witness. Consequently, I respectfully DISSENT.
S/ ________________ J. RANDOLPH WARD COMMISSIONER
JRW:md 1/7/96