Gary Moore personally testified at the hearing on August 2, 2004. He stated that he was 58 years old with an eighth grade education and no GED. He is married to Becky Moore. She also testified at the hearing.
Mr. Moore was shown a summary of his medical treatment history up to the July 14, 1998 work accident and resulting injury. He reviewed the summary and stated that it appeared to be an accurate and complete summary concerning his medical treatment prior to the work injuries that are the subject of this hearing.
He was also shown a summary of his work history. He reviewed the exhibit and testified that the dates of the various employments were essentially correct and that in addition to the employments listed, he may have held some additional small jobs that he was unable to remember. He also stated that he was employed on two occasions with Cotton Belt Railroad and that in the mid to late 1970's he worked with Kenco Construction and BXW Construction. Outside of the mining industry, the nature of his work through the years included factory work, operating heavy-duty equipment and construction.
Mr. Moore testified that he first worked in the mines with Ozark Lead Mining beginning in 1978 until they ceased operations. He later returned to the mine work with ASARCO in 1986 until some time in 1990, building track and operating the train. He again returned to the mines with ASARCO in 1991, initially working as a powder man loading dynamite, then driving a truck and finally driving the train from 1993 to September of 1998 when he had his first neck surgery following the July 14, 1998 work accident. The employee testified that following the July 14, 1998 accident, ASARCO sold the mine to The Doe Run Company who took over operations on September 1, 1998. From the time Doe Run took over up to the date of his first neck surgery on September 10, 1998, Mr. Moore testified that he was in training classes for his new employer.
The work accidents of July 14, 1998 include the incident of the train hitting a kink in the track that caused the employee's neck to be jerked in a whiplash fashion, and the subsequent lifting of ninety pound sand bags. By agreement of the parties, these incidents of July 14, 1998, are treated as a single work accident/injury. After the work accident of July 14, 1998, the employee testified that his neck and left arm started hurting. He reported the accident and pain to his supervisor. He was sent to Rains Clinic on July 16, 1998. At that time he was given some medications and was taken off work. The employee was seen again at Rains Clinic and thereafter referred for a CT scan of his neck. The CT scan was performed July 27, 1998 at Lucy Lee Hospital and revealed a "disc herniation at C5-6 posteriorly and slightly to the left of midline."
On August 5, 1998, Mr. Moore was sent to Dr. Peter Mirkin in St. Louis. Dr. Mirkin ordered an MRI of the employee's neck. The MRI was performed at Lucy Lee Hospital on August 11, 1998. The MRI report suggested "disc osteophyte complex along the left posterior C5-6 level which results in mild left neural foraminal narrowing and mild deformity of the anterior cord." Dr. Mirkin ultimately recommended surgical intervention for Mr. Moore's neck injury.
On July 28, 1998, ASARCO entered into a sales agreement with Doe Run Company. Doe Run took over operations on September 1, 1998.
On September 10, 1998, Dr. Mirkin performed a microdissection; an anterior cervical diskectomy with decompression of the spinal cord; and an anterior interbody fusion at the C5-6 level of the employee's neck which included the application of locking hardware. Dr. Mirkin discharged the employee on September 11, 1998 with a prescription for Percocet for pain. Mr. Moore saw Dr. Mirkin in follow-up and complained of neck pain.
On November 3, 1998, Dr. Mirkin released the employee to full duty without restrictions. On December 14, 1998, Dr. Mirkin reported that Mr. Moore has reached MMI and stated he could work without restrictions. Mr. Moore
testified that he asked Dr. Mirkin not to impose restrictions because his employer would not permit him to work with any restrictions. On January 15, 1999, less than one month after Dr. Mirkin released the employee, Dr. Mirkin's records reflect a letter from Crawford \& Company indicating that Mr. Moore was having continued complaints of radiating pain following the September 10, 1998 surgery. On January 27, 1999, Dr. Mirkin again declared the employee at MMI and assessed a ten percent permanent partial disability of the body as a whole due to the work injury of July 14, 1998 and subsequent surgery.
Throughout this period, the employee continued to have pain in his neck and left shoulder. The employee testified that the surgery performed by Dr. Mirkin provided short-term relief but overall did not help his pain. The employer then referred Mr. Moore to Dr. David S. Raskas in St. Louis for a further medical consultation. On April 23, 1999, Dr. Raskas examined the employee and after some radiologic testing, determined that he was "developing a psuedoarthrosis and nonunion of the fusion." Further surgery was recommended and performed on May 11, 1999 by Dr. Raskas with the assistance of Dr. Barry Samson at Missouri Baptist Medical Center. Dr. Samson performed a C5-6 foraminotomy and microdissection and Dr. Raskas performed a C5-6 lateral mass fixation, posterior spinal fusion and iliac crest bone graft. The bone used for the fusion was harvested from Mr. Moore's hip. On May 13, 1999, while hospitalized at Missouri Baptist Medical Center, Mr. Moore complained of left hip pain. He testified that after this second surgery he developed some back pain that he had not had before this surgery. On August 16, 1999, Dr. Raskas released the employee to full duty work without restrictions. Mr. Moore testified that he requested a "no restriction" release from Dr. Raskas so that he would be able to return to work in accordance with the "no restriction" policy of his employer. Dr. Mirkin in his deposition testimony stated that this surgery was unnecessary.
During this period, Mr. Moore continued to complain of neck and back pain. He had been prescribed Darvocet and hydrocodone for pain. After approximately one month, the employee's pain in his neck and left shoulder/arm was no better than it had been prior to this second surgery. His initial improvement had deteriorated. On September 15, 1999, Mr. Moore again saw Dr. Raskas with pain complaints. Dr. Raskas imposed work restrictions including no shoveling and no lifting over fifty pounds. The record entry of October 8, 1999 from Dr. Raskas' medical records further details the work restrictions stating "no repetitive motion of his neck in flexion and extension, or rotation of his neck as part of his regular duties . . . no overhead work." Dr. Raskas declared the employee at maximum medical improvement, recommended pain management and classified the restrictions as "permanent." No rating was provided by Dr. Raskas at that time. Dr. Raskas later testified by deposition that Mr. Moore "had a twenty percent permanent partial disability of his neck . . . ten percent was due to the fusion and ten percent due to the chronic nerve root dysfunction." Dr. Raskas could give no explanation for the employee's continued pain and recommended chronic pain management in the form of medications.
The recommended pain management was provided by Dr. Wai E. Chiu at Silver Springs Pain Management in Cape Girardeau, Missouri. In October, November and December of 1999, Mr. Moore was treated with a series of injections in an effort to relieve his ongoing neck and upper extremity pain. In mid-December, 1999, the injection therapy was discontinued and narcotic pain medications were commenced. The employee was initially prescribed methadone but an allergic reaction developed and his medication was then changed to Oxycontin. Mr. Moore was also prescribed hydrocodone (a/k/a Vicodin) for break-through pain.
On October 7, 1999, Dr. Phillips conducted an EMG that revealed bilateral carpal tunnel syndrome (CTS). On October 13, 1999, the employee filed a claim for CTS. During this period of time, Mr. Moore made continued complaints of pain and was asking for stronger or more medications. His Oxycontin prescription was increased and he remained on hydrocodone among other medications. This process was continued into the next year.
In December of 1999, the employee sought medical advice independent of that provided by his employer and scheduled an appointment with S. K. Choudhary, M.D., in Poplar Bluff, Missouri. Dr. Choudhary took a history from the employee, examined him and recommended that he see another neurosurgeon. Mr. Moore reported Dr. Choudhary's recommendation to his employer and he was then scheduled for a consultation with Dr. Scott Gibbs in Cape Girardeau, Missouri.
Mr. Moore first saw Dr. Gibbs on February 2, 2000. He testified that he told Dr. Gibbs of the severe neck and left shoulder pain he was continuing to have and that the pain was running into his arm and that both his hands were hurting. Dr. Gibbs ran some preliminary tests on the employee and then recommended further neck surgery. On April 24, 2000, Dr. Gibbs performed a bilateral removal of posterior cervical plates and a left C5-6 facetectomy, adhesiolysis and microdiskectomy at Southeast Missouri Hospital in Cape Girardeau. This is the employee's third and last neck surgery since his initial accident of July 14, 1998. Mr. Moore testified that initially he thought that this
third surgery helped with his pain, but that after a while his pain returned to the same level as before - no better, no worse. Dr. Gibbs continued the employee on oxycontin after this surgery.
The employee testified that he was off work due to this third neck surgery for a few months. On June 13, 2000, Dr. Gibbs released Mr. Moore without restrictions, to full duty work, but indicated that Mr. Moore needed to continue with physical therapy and injection therapy. Mr. Moore testified that he had again requested a release without restrictions.
Mr. Moore testified that after this second surgery, wherein a bone graft was removed from his hip, he developed back/hip pain that he had not had before this surgery. The medical records from Missouri Baptist Medical Center reflect the complaints of hip pain immediately following the surgery of Dr. Raskas. Beginning with Mr. Moore's initial evaluation by Dr. Gibbs on February 2, 2000 and thereafter, Mr. Moore reported pain and aching in his back and lower extremities. Due to these continuing problems, in April of 2000, Dr. Gibbs diagnosed "back and left leg pain that seems to follow an L5 or S1 dermatomal pattern." In May of 2000, the employee discussed his continuing back/hip pain with Dr. Gibbs. He noted that he had no history of leg pain until his last neck surgery on May 11, 1999. He indicated that since the time of the bone graft he feels that the back and leg pain have been associated with that. He denies any back or leg pain prior to the May 11, 1999 surgery. Mr. Moore reported this same history to Dr. Raskas in August of 2003 at the time of his evaluation. It was during this period that Dr. Gibbs prescribed a tens unit for the employee's pain and continued him on narcotic medications.
The employee had an MRI of his lumbar spine performed at Saint Francis Medical Center on June 13, 2000. The report states "[t]he MRI examination demonstrates evidence of abnormally increased signal in the posterolateral disc margin on the left at L4-5 approximately at the level of the lateral recess and adjacent to the traversing L5 nerve root. If the patient's clinical symptoms relate to this nerve root distribution, this is the probable cause." The corresponding June 13, 2000 neurological evaluation record of Dr. Gibbs notes that Mr. Moore "continues to have some aching and burning pain in the left side of his low back that radiates to his posterior thigh, calf and lateral foot. He notes that this came on about three or four weeks after his 'bone graft harvest.' He does not recall any other precipitating event." Dr. Gibbs' report goes on to discuss his findings after considering that June 13, 2000 MRI scan and finds "no evidence of a lumbar disc herniation or any other apparent causefor his leg discomfort."
Following this third neck surgery, the employee was referred by Dr. Gibbs to Dr. Chiu at Silver Springs Pain Management for treatment of his low back and left hip pain. This was done in June of 2000. Mr. Moore testified that he was given some injections. At some point after these injections the employer refused to authorize further treatment of the employee's low back. The employee still made complaints of pain and still was being prescribed narcotic medications.
On July 25, 2000, Mr. Moore saw Dr. Gibbs and asked that he be continued on Oxycontin as the lesser medications were not working. The employee reported that he did not feel he could do his job as it was to hard on him. The employee reported that after he had returned to work for several weeks after the Gibbs surgery, he had lost all he had gained. The employee also reported to Dr. Gibbs that he felt his CTS problems were due to operating the train for fifteen years. Dr. Gibbs reported that the employee was a candidate for left CTS surgery. On August 11, 2000 Mr. Moore asked Dr. Gibbs for a release. Dr. Gibbs reported that the employee is limited by his pain and recommended chronic pain management. Dr. Gibbs indicated that the employee should be mindful of aggravating factors and should adjust his activities.
Following the release by Dr. Gibbs, Mr. Moore was continuing to have pain in his neck, left shoulder and low back. He was referred to Dr. John Graham for management of his continuing pain. Mr. Moore first saw Dr. Graham on August 21, 2000. Dr. Graham discontinued the employee's narcotic therapy and prescribed the following substitute medications: Neurontin, Ultram, Remeron, Elavil and Celebrex. Mr. Moore testified that he asked Dr. Graham to put him back on the Oxycontin but that he refused. The employee stated that he went back to Dr. Choudhary on his own who did return his prescription for the hydrocodone.
Mr. Moore testified that his regular job was running the train. He stated that ordinarily it takes two people to do the two "jobs" necessary to run the train and that he worked the train together with Eugene. He and Eugene would share the jobs so that for half of each day, one would "load the cars" while the other would "run the train" and they would switch jobs for the other half day. Loading the cars was the easier of the two jobs which consisted of pulling
a few levers every 15-20 minutes with the time in between to sit, rest and wait for the train to return. Running the cars included driving the train and necessarily required riding on the rough train track in and out of the mine. After the July 14, 1998 injury, Mr. Moore indicated that riding the train jarred him around and caused him a significant amount of neck and back pain.
Mr. Moore said that to drive or "run" the train, you use your hands constantly to release the brakes and to use the drive control. He described the drive control as requiring a constant pull against pressure to make the train move. If there is no pulling on the control, the train does not go. The employee said that the driver's seat spins around so that he faces in the direction of travel whether going in or out of the mine. He said that he would typically use his right hand driving into the mine and would use his left hand when exiting the mine.
The employee's October 13, 1999 claim for compensation was for the occupational injury of bilateral carpal tunnel that resulted from the repetitive pushing, pulling, gripping and holding required to run and drive the train at work.
Dr. Mark A. Lichtenfeld rated Mr. Moore's injury to both upper extremities in his report of December 9, 2002 as a thirty percent permanent partial disability (PPD) to the left wrist and twenty-five percent PPD of the right wrist. Dr. Lichtenfeld further recommended that the employee needed additional medical that included medications and possible right CTS surgery.
Although the authorized treating physicians diagnosed Mr. Moore's bilateral carpal tunnel syndrome, neither ASARCO nor Doe Run authorized treatment. Therefore Mr. Moore sought treatment on his own. Dr. Bret Barnes performed a left carpal tunnel release on July 25, 2002. Mr. Moore testified that the results of the surgery on his left wrist had provided him only minimal relief and that he was not continuing to wear the braces previously provided. He indicated that now his right hand is worse than the left and that when he uses his hands too much he has pain in both hands. He felt like the left carpal tunnel release stopped the tingling in the fingers but stated that he still has pain in the ball of his left thumb with some pain and numbness in his left elbow. At night he has numbness in both hands. Overall the right hand is now worse than the left.. However, despite these problems, Mr. Moore testified that he was not interested in further CTS surgery.
After the third neck surgery, Mr. Moore again returned to work and although he was released without restrictions, he was unable to perform the duties of his work without the benefit of the extraordinary accommodations and assistance from his co-worker, Eugene, and later from his supervisor. When the employee first returned to work following the third surgery, he said, they let me run the crusher and work in supplies. The "crusher" job was significantly easier than either of the jobs on the train. It amounted to pushing a button every one-half hour or so with no particular force required for the button.
Eventually he was put back on the train but when he started hurting too bad, he was permitted to lie down. He said that pretty regularly Eugene, his co-worker, would run the train all-day and let Mr. Moore do the loading (the easier of the two) all day. Other times Eugene would do both jobs - run the train and load the cars - leaving Mr. Moore in the "load" area to sit or stand or whatever because of his pain. After the May 21, 2001 work accident/injury, Mr. Moore's supervisor would accommodate his problems by allowing him to sit in the office when he was really hurting, which would leave Eugene to do both jobs on the train.
Mr. Moore stated that after the July 14, 1998 work injury, he would lie down at work on a picnic table during the morning and afternoon breaks and for at least thirty minutes during the lunch hour. Even with the extraordinary accommodations and his co-worker's assistance, the employee had great difficulty. Since the July 14,1998 work accident, Mr. Moore testified that by the end of the work day he would be in severe pain and would go home, take his pain medication and lie down.
On May 21, 2001, Mr. Moore suffered another injury while working. He again injured his neck. On this occasion he was prying a boulder loose that was stuck in a crusher. No surgery resulted from this last accident. Mr. Moore testified that he had an immediate onset of pain, but his pain went back to pre-injury levels. He testified that he is not any worse as a result of this accident.
He stated that in the last couple of months before the May 21, 2001 work accident he felt drained and it seemed that he had to always lie down and rest. He testified that he continued to try to work for a couple of months after the May 21, 2001 work accident/injury and that his last day at work was July 27, 2001.
Mr. Moore settled his CTS case with Doe Run for 15\% PPD of the left wrist and 712\% PPD of the right wrist. He settled his May 21, 2001 case for 161 / 2 % PPD of his neck. The issue of future medical care was left open in both cases.
On November 19, 2002, Mr. Moore was interviewed and examined by Dr. Mark A. Lichtenfeld at the request of his attorney, Ronald L. Little. On December 9, 2002, Dr. Lichtenfeld produced a written report of his evaluation. Dr. Lichtenfeld's provided an extensive list of his conclusions concerning the employee's injuries and disabilities that he said were a direct result of the injuries that occurred at work on July 14, 1998 or from complications resulting from his surgeries. Those findings among other things documents problems with the neck, back and hip.
On August 28, 2003, Mr. Moore was interviewed and evaluated by James M. England, Jr., vocational rehabilitation counselor at the request of his attorney. On September 16, 2003, Mr. England produced a written report of his evaluation. In his deposition testimony taken on
September 25, 2003, Mr. England testified that after Mr. Moore's original accident in July 1998 to approximately July 23, 2001, Mr. Moore "would go back to work off and on; he would go back and then would end up back out and then he would go back; that he kept trying to do that until he told me he couldn't take the pain anymore." Mr. England testified that due to his problems, Mr. Moore is permanently and totally disabled. He could not go out and get a job or perform any job and sustain it on a constant basis. Mr. England's opinion was that no employer would hire him. In response to questioning, Mr. England stated "all I can say...is that unlike a lot of people...he just didn't get hurt and give up. He did keep trying to go back over and over and over again. It looked to me like...he wanted to say there as long as he could."
As a result of the neck, left upper extremity and low back injury he sustained at work on July 14, 1998, the employee stated that he is currently taking Oxycontin, hydrocodone, and amytryptaline (for pain, break-through pain, and depression/sleep respectively). Mr. Moore is also taking other medications. He indicated that he was first prescribed hydrocodone after the first surgery by Dr. Mirkin. The medical records in evidence show that his authorized treating physicians for the July 14, 1998 work injuries, Dr. Raskas, Dr. Gibbs and Dr. Chiu all prescribed hydrocodone for pain. The medical records also reveal that Mr. Moore was first prescribed Oxycontin by Dr. Chiu in December 1999 following the Raskas neck surgery. In 2000, before and after the third neck surgery, Dr. Gibbs also prescribed Oxycontin for the employee's continued neck and back pain.
The employee stated that before the May 21, 2001 work accident/injury, his medications were essentially the same as they are now except that when he returned to work following the third surgery, he was taken off the Oxycontin because his employer had a drug use policy that prohibited him from working and taking it. Mr. Moore also stated that he has also had problems sleeping since the July 14, 1998 work accident and that his sleep problems are because of his constant neck pain. Before May 21, 2001 he had been prescribed Ambien to help with his sleep problems and that he now takes amytryptaline. Mr. Moore stated that his neck pain is the primary reason he takes pain medication but acknowledged that it also helps to relieve his left hip/low back pain.
Mr. Moore testified that since the July 1998 work injuries, his neck pain has never completely gone away and that he still has the same pain as before the first surgery. He would get some initial success after the surgeries but always regressed. He indicated that over the period of the surgeries, his symptoms were essentially the same: neck and shoulder pain with pain and stinging in his left arm. Currently he does not want any further surgery on his neck and that in retrospect he wished he had not had the three surgeries that were performed since he says they have really not provided him any relief. He characterized his current neck pain as essentially the same as before the May 21, 2001 work injury, stating at different times that it was "pretty much the same" or "about the same" or "still the same." Mr. Moore testified that the only medicine he's been given that ever helped with his pain was the Oxycontin and he was asking to have that continued.
Mr. Moore also testified that he continues to use the TENS unit prescribed by Dr. Gibbs following the third neck surgery. He stated that he typically uses the unit two or three times each week for a couple of hours to help reduce his neck pain. During a break in his testimony at the hearing, he put his TENS unit on for the remainder of the day. Mr. Moore appeared to be uncomfortable and in pain during his trial.
As for his current activities, the employee stated that he no longer works on his automobiles, hunts or fishes; that he has not gone fishing in over two years; and that the reason he has quit these activities is because of his pain, neck more than back pain. He stated that he can mow a portion of his property he referred to as the "ditch line."
He described this area to be approximately 40 feet by 300 feet and indicated that he mows this particular area because it is smooth and flat and gives him something to do. He stated that he walks every day whether he hurts or feels pretty good; that he tries to stay awake most of every day even though he does have to lie down in the afternoons for a couple of hours to get some relief. He stated that he is no longer able to stay up all day, primarily because of his neck. He stated that he could probably sit for most of a day, but not without significant pain.
Mr. Moore's wife, Becky, testified that she and Garry were married at the time of his July 14, 1998 injury and that before that injury he was able to perform all the duties of his job. Ms. Moore stated that presently Garry still drives "some" and that he will mow the "ditchline" maybe once a week. She testified that she went with him to all of the doctor appointments over the years. She stated that after each of the neck surgeries he went back to work. She testified that after the July 14, 1998 work accident, her husband was never pain free; that after the last surgery he thought he was better but then his pain returned to how it was before. Ms. Moore testified that when Garry returned to work following the third neck surgery, she would be home when he came in from work and she could see that he was always in a great deal of pain, sometimes even with tears. She said he would immediately take his pain medication and just try to relax.
Mr. Moore has continued to take narcotics and other medications up to the trial date of August 2, 2004. Dr. Steele is currently prescribing maintenance medications for Mr. Moore.