Charles Rothschild v. Roloff Trucking, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-112621

Employee: Charles Rothschild

Employer: Roloff Trucking, Inc.

Insurer: Continental Western Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: August 30, 1999

Place and County of Accident: Franklin County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 19, 2006. The award and decision of Administrative Law Judge Leslie E. H. Brown, issued January 19, 2006, is attached and incorporated by this reference.

Employer/insurer filed a motion to submit additional evidence in the form of a copy of a cancelled check allegedly proving payment of a bill in the amount of $\ 217.00 from West County Radiology. We deny the motion. Our role is to award the compensation set forth in Chapter 287 RSMo. The administrative law judge did so. We affirm the administrative law judge's conclusion that employee is entitled to payment of this medical expense and that employer/insurer shall make payment if the bill is unpaid (Award p. 43).

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 23^{\text {rd }} \qquad$ day of January 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: August 30, 1999
5. State location where accident occurred or occupational disease was contracted: Franklin County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Removing tree limb from truck cab shield and fell off truck
12. Did accident or occupational disease cause death? No Date of death? ---- 13. Part(s) of body injured by accident or occupational disease: right knee, left shoulder 14. Nature and extent of any permanent disability: 50% permanent partial disability referable to the right knee and 20% permanent partial disability referable to the left shoulder.
13. Compensation paid to-date for temporary disability: $\ 32,463.72
14. Value necessary medical aid paid to date by employer/insurer? $\ 54,649.82
15. Value necessary medical aid not furnished by employer/insurer? $\ 217.00
16. Employee's average weekly wages: $\ 560.84
17. Weekly compensation rate: $\$ 373.89 / \ 303.01
18. Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Future medical care (knee braces) . . . . . . . . . . . . . . . . . . . . Future medical care (knee brace) Unpaidmedicalexpenses: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

---- weeks of temporary total disability (or temporary partial disability)

50% of the right knee, 20% of the left shoulder permanent partial disability

fromEmployerpr. 38,300.46

Multiplicity. 3,830.05

---- weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning ----, for

Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

TOTAL: $42,347.51; FUTURE MEDICAL CARE

OF A KNEE BRACE.

1. Future requirements awarded: Future medical of a right knee brace

Said payments to begin as of the date of this Award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Co-counsels Ray Gerritzen, Attorney for Claimant and Allen Surinsky, Attorney for claimant; and 50\% of Attorney Allen Surinsky's attorney fee to Ron Caimi, Attorney at Law of Brown \& Crouppen

Employee: Charles Rothschild

Injury No: 99-112621

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: Roloff Trucking Inc.

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: Continental Western Insurance Company

Checked by: LEHB/bfb

This is a joint hearing involving four cases for the claimant, Charles Rothschild, who in all four cases appeared in person and by counsel, Attorney Ray Gerritzen. In all four cases, the Second Injury Fund appeared by and through Assistant Attorney General

Caroline Bean. In the first case, Injury No. 99-112621, the employer/insurer, Roloff Trucking/Continental Western Ins. Co., appeared by and through counsel, Attorney John Mohan.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this case.

On or about August 30, 1999: a. the claimant while in the employment of Roloff Trucking Incorporated sustained an injury by accident arising out of and in the course his employment occurring in Franklin County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was insured by Continental Western Insurance Company; d. the employee's average weekly wage was $\ 560.84, the rate being $\ 373.89 over $\ 303.01.

e. The employer had notice of the injury. f. A Claim for Compensation was filed within the time prescribed by law. g. Temporary total disability benefits have been paid to the claimant by the employer/insurer in the total amount of $\ 30,075.84; those payments represent $822 / 7$ weeks of benefits covering a period from August 31, 1999 through March 28, 2001. h. Medical aid has been provided in the total amount of $\ 54,649.82.

i. The claimant and the employer/insurer (Roloff Trucking/Continental Western Insurance Company) further agree and stipulate: that on or about October 16, 2003 Ray Gerritzen, Attorney for Claimant, made a demand for the difference between what claimant was paid for temporary total disability and an alleged $\ 7000.00 amount due plus interest at 10 percent per annum under 227.160 ${ }^{[1]}$ Revised Statutes of Missouri. On 11/25/03 Continental Western's group check number 0210020359, dated 11/13/03, in the amount of $\ 2,378.88 was sent to Mr. Rothschild. The check noted: TTD rate correction, 82.27 weeks, 8/31/99 through 3/28/01. But there was no payment of any interest due on the money, and the claimant asks for an interest award of 10 percent on $\ 2,378.88 from $3 / 28 / 01$.

Additional/clarifying comment by the employer/insurer (agreed to by the claimant): Roloff and it's insurer paid the amount of $\ 344.98 for TTD instead of the amount of $\ 373.89, which was found to be eventually the correct rate; and paid that amount in a timely fashion with the underpayment being the difference between $\ 373.89 and $\ 344.98. After the claimant's attorney had brought it to the attention of the employer/insurer attorney and he in turn brought it to the attention of the insurer, the insurer performed an investigation and discovered the wage rate had been incorrect, they'd been given an incorrect wage rate. We at that point issued the check in the amount of $\ 2,387.88 representing the underpayment between the dates aforesaid that have been read into the record.

1. Medical causation
2. Liability of past medical expenses
3. Future medical care
4. Nature and extent of permanent disability - whether partial or total
5. Liability of the Second Injury Fund
6. Interest (Whether or not interest is due on a late payment of temporary total disability benefits that were due on March 28, 2001; the amount in question upon which interest of 10 percent is being requested is $\ 2,378.88.)

FINDINGS OF FACTS AND RULINGS OF LAW - Injury Number 99-112621

It is agreed and stipulated to by the parties that the claimant, Charles Rothschild, sustained injury as a result of a work related accident arising out of and in the course his employment with Roloff Trucking Incorporated on or about August 30, 1999. Rothschild testified that on August 30, 1999 he was delivering rock to a construction site in a dump truck for Roloff, and as he was starting to leave the dump site after dumping the rock he noticed that one of the tree limbs had broken off in the cab shield and was hanging down over the windshield. I got out and pulled it out and that's when the accident happened, Rothschild stated. When I jerked the tree limb all of a sudden it came out and I slipped and fell off the side of the truck, about 11 or 12 feet, and landed pretty much on my feet the best I could and then rolled, primarily landing I think on the right leg then the left; and my knee immediately, and my left shoulder, was hurting pretty bad, the claimant testified. I think I twisted my knee because it was really sore and my left shoulder was too, it must of happened when I rolled on the ground on my left shoulder, he said. I experienced pain immediately in my right knee, left shoulder, and my left ankle and heel area, Rothschild stated. I then got back in the truck with a little bit of difficulty, he said, and I took the truck back to the shop.

The next day I tried to get up and I was really hurting, the claimant said, my right knee was killing me and it was so swolled up it was starting to turn colors. And my left shoulder, I could not even lift it up, Rothschild said. I knew I wasn't going to be able

to work that day so I called in and told them that I had hurt myself that night, and I had to go see the doctor, or chiropractor, or something. Agreeing that he saw Dr. Al Fischer, Rothschild stated that the boss used this doctor, Roloff used him. Dr. Fischer xrayed and checked my range of motion out on mainly my left shoulder and my right knee 'cause I was really hurting, I was having a real hard time walking, Rothschild said. Dr. Fischer started making me do these movements and exercises, and I think there was hot packs and cold packs and ultrasound on my left shoulder and I think my right knee too, he said. Then Dr. Fischer referred me to Dr. Thomas D. Matthews about a month later as he couldn't do me any good, Rothschild said, and agreed that October 20, 1999, as indicated by the records, sounded right. Dr. Matthews scheduled me for an MRI and checked my range of motion and everything, and x-rayed, the claimant said, and I don't remember exactly what, but he give me a cortisone shot after he read that MRI report. I can't remember if he was the one that give me injection into my shoulder; I definitely got one in my knee, and they suggested I had loose bodies in my knee; and he scheduled a surgery, first surgery, on my right knee, Rothschild said. He agreed that this first surgery was on January 19, 2000, and then the doctor did a second operation on June 22, 2000. From August 30, 1999 up through the second surgery I wasn't doing any work, I was off work, the claimant said, I wasn't able to work because my knee and shoulder were ruined, both of them was just hurting so bad, I could hardly walk and I could hardly lift my left arm. I went through therapy at ProRehab, and he said it was a total tear in my rotator cuff so they couldn't believe that I got it working, the claimant said. I saw Dr. Matthews until July of 2000, Rothschild agreed, and then they cut me off from Dr. Matthews completely, and Gail Hanks, a nurse from the workers' compensation insurance company, said we were going to another doctor, Dr. Haupt, that she had scheduled me with Dr. Herbert Haupt. Dr. Haupt performed a third surgery on my right knee on October 13, 2000, Rothschild said. My knee never did get fixed, the claimant said, it felt better for a while because Dr. Haupt kept putting cortisone injections in it, and then he got this unloader brace that I've got on right now. The diagnosis the doctor made with reference to my left shoulder was that I had a total tear of the rotator cuff too, Rothschild said. The doctor offered to operate on my left shoulder, but I did not let him, the claimant said, I told him that no surgery would get done on my left shoulder until my right knee was fixed.

After the three surgeries on the right knee I have had a total of maybe three or four falls, Rothschild stated, it just gives out; it's just like one minute it's there and the next minute gone, you're on the ground. Agreeing that there was one particular fall at the end of July or first of August of 2003 at home, Rothschild stated that what caused that fall was he was going down the stairs and he had just about made it down the stairs and got down to the last couple, three steps and it just folded up on me. I tried to catch myself, he said, I was half running trying to catch up with my feet and I landed on my right hand, which jammed my shoulder back up, scraped up all the skin off my hand and everything, and I couldn't hardly get off the ground. My right shoulder was like it was hanging there; I couldn't hardly move it away from my body at all, the claimant said. It was my right knee that gave way causing me to fall and injure my right shoulder, Rothschild stated. What was different about this fall compared to the other previous falls I had had on the right knee was that it's only one that happened when I was going down the stairs, the claimant said. On other previous falls on my right knee I had not injured any other part of my body, he said. As a result of this fall down the stairs my right shoulder is -- it's useless, Rothschild testified, I'm right handed and I can't do anything with it. I can't hardly even lift it up to wash my hair, brush my hair, just to get something out of the cabinets, you know, a glass, or open a door, or pulling a light switch, he said. There has been a diagnosis of a full thickness tear of the rotator cuff in the right shoulder also, the claimant agreed. The claimant was asked if the injury to the right knee at Roloff in August of 1999 work related accident was the cause, as far as he was concerned, for the fall in July, 2003. It is what caused it because my right knee gave out going down the stairs, otherwise it wouldn't have happened, Rothschild answered.

Rothschild testified that he was saying he also hurt his left ankle in the August 30, 1999 incident when he fell off the truck. The claimant stated that his left ankle first start bothering him the day he had the accident at Roloff. And after the accident it just got swollen and stiffer and sorer until I couldn't hardly put my heel on the ground, he said. Roloff agreed that the left ankle got progressively worse. I told Dr. Fischer right away, the claimant stated, but the pain in my left shoulder and my right knee was much worse than the pain in my left ankle. Rothschild stated that he was complaining to Dr. Haupt when he was treating him as well as to Dr. Matthews when he was treating him early on after the accident. Discussing the problems he was having in the left ankle, Rothschild testified - I had to stand on it all the time because I couldn't lock my right knee, and putting the weight on it all the time, carrying all that weight, my ankle was all swolled up, you couldn't even see my ankle bone; and it was hard to bend it, to walk on a grade of any kind. During cross examination by Roloff, Rothschild stated that he recalled when his first deposition was taken on January 16, 2001, and he stated that he fell 11, 12 feet, whatever high the truck was, and answered when asked how did he land -"Landed mostly on my feet and rolled.". The claimant stated that he recalled he was then asked - "And you injured which body parts in this accident?", and he answered - "Left shoulder, right knee." It was noted that Rothschild did not mention anything about his left ankle at that deposition. It wasn't as bad as the rest of it at the time, Rothschild said. It was noted that in his second deposition taken on March 16, 2004 Rothschild was again queried - "Now it's my understanding you were injured working for Roloff Trucking; is that right?" and "Okay, what areas of your body did you injure?", and he answered "My right knee and my left shoulder.". That is correct, Rothschild said. The claimant admitted that he probably didn't mention his ankle then either when the second deposition was taken more than three years later.

I was never seen by any doctor, hospital, chiropractor, nurse practitioner or anybody for complaints to my right knee prior to August 30, 1999, Rothschild said, and further stated that he did not know of one medical record that showed anything wrong with his right knee prior to August 30, 1999. I know of no medical record showing anything wrong with my left shoulder prior to August 30, 1999, the claimant said.

The claimant testified that at subsequent employments at Karst Construction, BAM Construction and Integrity Installations,

his right knee and left ankle got worse.

On cross examination by Roloff Trucking, Rothschild agreed that in March 2001 both Dr. Haupt and Dr. Yadava released him, saying he was at maximum medical improvement, and released him to full, unrestricted duty. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fireproof doors and other heavy items. Rothschild agreed that he did not lose his job at Karst because of a physical inability to work, and he did not quit working for Karst because of the injuries he suffered in the August, 1999 accident at Roloff, he I worked for Karst until Karst went out of business in October 2001. I would have continued working for Karst Construction doing carpentry work, including heavy lifting, had work been available from Karst, Rothschild agreed, further stating - "I had to".

On cross examination by Karst Construction, Rothschild agreed that after his Roloff injury, he ended up having three surgeries on his right knee all in 2000. He agreed that he was also diagnosed with rotator cuff tear in his left shoulder and was also having problems with his left ankle. Rothschild agreed that this was all prior to ever going to work for Karst Construction. During the time period after the last surgery by Dr. Haupt up to the time that I went to work for Karst Construction, my knee was giving me a lot of problems, the claimant agreed. Agreeing that he had some disagreement with Dr. Haupt as to whether he should be discontinued from medical treatment, Rothschild testified I told him my knee wasn't right, and my left ankle and my left shoulder. I said, none of it's right and you're going to send me back to work; I said we have got to do something here, the claimant stated. During this period my right knee was hurting all the time and it had actually given away on a couple of occasions, he agreed. At that time I think it was two times that I had actually fallen because of this give away situation, he said. Rothschild agreed that he had indicated that during this time, hills and stairs and anything that would cause him to have to put extra weight on the right knee would give him extra difficulties. He agreed that he was walking with a limp during that period of time because he couldn't straighten his knee out all the way, and he couldn't kneel at all on his right knee.

On cross examination by Roloff Trucking, Rothschild agreed that he had his third and last right knee surgery on October 13, 2000, and it was performed by Dr. Haupt. Then Dr. Haupt treated me after that for follow up, and sent me to Dr. Yadava, a physiatrist, and they both treated me; in March 2001; both of these doctors released me, saying I was at maximum medical improvement and released me to full, unrestricted duty, the claimant agreed. Rothschild agreed that he told Dr. Haupt he had the Karst Construction job lined up and wanted to be released on February 27, 2001. The claimant agreed that prior to this he had been placed on light duty by various treating physicians, including Dr. Matthews and Dr. Haupt, but since Roloff Trucking had no light duty work available he received workers' compensation temporary total disability benefits from Roloff Trucking. Immediately after I was placed at maximum medical improvement and returned to full unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff.

Considering the medical records, Fischer Chiropractic Center records (No. D) reflected treatment of Rothschild beginning on 8/31/99 with a history of the 8/30/99 work related accident at Roloff Trucking; Rothschild's complaints on 8/31/99 were noted as to the left shoulder and right knee, and examination and x-rays were confined to those two areas. The Fischer Chiropractic Center record included an October 20, 1999 letter by Dr. Fischer, D.C. to Dr. Thomas Matthews, M.D. in which Dr. Fischer wrote that Rothschild first presented on 09/01/99 for injuries to his left shoulder and right knee; it was noted that the diagnosis was - left rotator cuff tear, and Grade II sprain strain of the right knee with a possible loose body. Dr. Fischer wrote a request for Dr. Matthews to evaluate Rothschild and send him a report of findings. A 10/28/99 report of an MRI of the left shoulder ordered by Dr. Matthews was in the chiropractic record (See, also No. J), and reflected the following opinion: 1. Complete tear of the supraspinatus tendon at its insertion; 2. Laterally downward sloping acromion with prominent spurring. This is causing a moderate degree of impression on the supraspinatus tendon; and 3. Mild degree of osseous reactive change in the region of the insertion of the supraspinatus tendon. Treatment records of Dr. Thomas D. Matthews, M.D.'s (See Attachments, Claimant's Exhibits Nos. B and B-1) began with an October 20, 1999 evaluation report to the workers' compensation insurance company in which the doctor wrote that Rothschild had presented for evaluation of right knee and left shoulder pain he sustained when he slipped and fell out of his truck bed in late August sustaining a twisting injury to his right knee and left shoulder. Dr. Matthews noted in his October 20, 1999 report: "Radiographs of the knee show loose bodies in the intercondylar notch. Evidence of old osteochondritic dissecans lesion and degenerative changes as well". The doctor noted in an 11/3/99 entry that a complete tear of the supraspinatus at the insertion was evident on an MRI. Dr. Matthews' record reflected treatment given to Rothschild's right knee and left shoulder, including arthroscopic surgery performed on the right knee on 01/19/00 and on 06/22/00. The doctor wrote that Rothschild opted for conservative treatment for the left shoulder, though he had advised Rothschild to consider rotator cuff repair. Medical records of HealthSouth Tri-County Surgery (No. E) were surgical records of procedures performed on Rothschild's right knee by Dr. Matthews on 01/19/2000 and 06/22/00. In the 01/19/2000 surgical report, Dr. Matthews noted a history of: "This 46-year-old gentleman is taken to the operating room at this time to undergo arthroscopic evaluation for continued knee swelling. Recent radiographs confirm OCD lesion with displacement in the medial femoral condyle." On 01/19/00, the pre- and post-operative diagnosis was the same - right osteochondritic dessicans of right medial femoral condyle with potential loose bodies. The procedure performed on 01/19/00 was: Removal of OCD lesion, debridement of medial femoral condyle. In the 06/22/00 surgical report, Dr. Matthews noted a history of: "This 47-year-old gentleman is taken to the operating room at this time to undergo right knee

arthroscopy. He is 6 months post right knee arthroscopy for debridement of the medial femoral condyle, old osteochondritic dissecans lesion. He continued to have swelling and marked pain with his knee joint. He was advised arthroscopic evaluation and redebridement at this time. The risks and benefits including no guarantees for decreased pain have been explained to him, he understands this and is willing to proceed." On 06/22/00, the pre-operative diagnosis was - right knee medial femoral condyle defect; and the post-operative diagnosis was - same, chondromalacia patellofemoral joint. Post surgical follow-up for the right knee ended in July 2000; Dr. Matthews' treatment records (See Attachments, Claimant's Exhibits Nos. B and B-1) up to this point made no mention of left ankle complaints from the claimant.

Dr. Matthews' record indicated that he next saw Rothschild on 01/15/02 regarding his right knee; his other knee is bothering him as well, the doctor noted. Rothschild apparently had had an osteochondral transfer graft to the medical femoral condyle by Dr. Haupt last year, Dr. Matthews further noted. The 2002 records of Dr. Matthews' concerned treatment to the right knee.

Dr. Matthews wrote an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle:

I feel that his left (sic) knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort. This condition is usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point.

Dr. Matthews' next treatment entry was dated 08/20/03, and it was noted that Rothschild came in for evaluation of his right shoulder. Dr. Matthews further noted:

He apparently fell down some steps injuring his right shoulder about three weeks ago. He sought attention from his chiropractor, which failed to resolve his symptoms, and radiographs accompany him today. He describes having a giving way episode with his right knee, which has been chronic and landing on his right upper extremity. Since that time he has been unable to forward elevate and abduct the arm.

Dr. Matthews' impression on 08/29/03 subsequent to an MRI was that the MRI showed a complete tear of the supraspinatus tendon, and that physical therapy was being scheduled as Rothschild did not want surgery. September 2003 entries reflected treatment of the right shoulder; Dr. Matthews also wrote in a 09/24/03 entry that Rothschild had been given a parking sticker for his knee as a permanent handicap sticker. Dr. Matthews, in a September 29, 2003 letter, addressed further inquiry from the claimant's attorney in regards to the right shoulder injury:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon. Mr. Rothschild wants to pursue nonoperative treatment for this problem and has been attending outpatient physical therapy...

With regard to the hypothetical that you posed in your letter, I believe that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

The last treatment entry of 10/22/03 in Dr. Matthews' record noted that Rothschild was in for a recheck of his right shoulder, and that he was moving it much better, and that he could now do most of his therapy at home. It was indicated in a 12/03/03 entry that Rothschild had cancelled this appointment date.

Medical records of Dr. Herbert Haupt, M.D. (No. 2) concerned the treatment of Rothschild during the period of August 1, 2000 through the completion of treatment on March 20, 2001. In the initial examination report of August 1, 2000, Dr. Haupt noted that Rothschild's chief complaints were - right knee/left shoulder injury. The doctor wrote on August 1, 2000 the following about the history of present illness:

Mr. Rothschild presents today for evaluation of upper and lower extremity complaints. He drives a dump truck. On date of injury noted to be $8 / 30 / 99$, he was pulling a limb out of the cab shield on his dump truck, he lost his balance and fell about 12 feet to the ground, suffering injury to his left shoulder and right knee. He does not recall exactly how he landed, but does recall injury to these two areas.

Dr. Haupt then discussed the testing and treatment Rothschild had received, including the two arthroscopic procedures performed on 01/19/00 and 06/22/00. The patient denies any previous history of complaints regarding his right knee or left shoulder prior to the work-related injury, Dr. Haupt wrote. The doctor's written assessment on August 1, 2000 included the following:

1) Right knee discomfort that appears to be an element of a preexisting condition as noted by early closure of the medial

compartment just days following the work-related injury and evidence of an osteochondral lesion that appears to be potentially old and preexistent to the work-related injury. Certainly, that injury at work would certainly at minimum have acted a trigger to the preexisting condition. It is also possible that in fact it did knock loose that osteochondral lesion. It is very difficult to tell based just upon the information I have available today.... I am concerned about the degree of the lesion at the medial femoral condyle. The information available is just not clear enough to clearly determine how badly the medial femoral condyle may be affected by this lesion.

2) Left shoulder findings of a rotator cuff tear on the MRI scan may or may not be accurate. He certainly has significant degenerative changes noted at the AC joint as well as a Type III acromion, all considered preexisting. A full thickness rotator cuff tear has to be considered. This would be considered a direct result of the work-related injury.

In the next examination report of August 10, 2000 Dr. Haupt wrote that a left shoulder arthrogram and MRI scan had been completed, and demonstrated a complete rotator cuff tear. It was noted that a right knee MRI had been completed and demonstrated the area of the osteochondral lesion without evidence of avascular necrosis. Subsequent entries reflected that Rothschild noted a marked improvement in his shoulder function with the help of therapy, but his knee complaint was becoming more and more bothersome. The doctor wrote: "He complains of pain primarily anteriorly about that right knee. He denies any new injuries." Dr. Haupt's assessment on September 20, 2000 included the following:

1) Shoulder is actually doing quite well with conservative management in physical therapy.

2) Persistent complaints in the right knee that appear to be primarily patellofemoral in nature, but also has medial compartment discomfort in the area of the osteochondritis dessicans. Reviewing his operative notes, I note that during the first operative procedure performed in January 2000, it was noted that the "superior patellar pouch where the articular surface of the patella and corresponding femoral trochlea were found to be relatively unremarkable".

However, Dr. Haupt wrote, on the second operative procedure that was performed on June 22, 2000, it was noted that "the superior patellar pouch, the articular surface of the patella and the femoral trochalea were evaluated and found to have Grade II chondromalacia changes". This suggests that there has been interval change within the area of the patellofemoral joint and this may presumably be a sequelae to the first operative procedure that may have resulted in contractures about the patellofemoral ligaments, resulting in malalignment and the development of the chondromalacia. This area seems to be the predominant source of his discomfort at this point. Arthroscopic management for the right was one of Dr. Haupt's recommendations "to assess the degree of injury at the OCD and also at that point, debride the patellofemoral joint and potentially perform a lateral release to improve mechanics". A 10/13/2000 operative report of HealthSouth Surgery Center of West County (No. F) concerned the third right knee procedure which was performed by Dr. Herbert Haupt, M.D. The post-operative diagnosis was: right knee - posterior horn tear of medial meniscus, quarter size osteochondral defect down to subchondral bone of medial femoral condyle with a larger circumferential area about 2-3 cm diameter of the medial femoral condyle and Grade chondromalacia, evidence of partial anterior cruciate ligament tear but considered competent, marked Grade 4 chondromalacia of the femoral trochlea, and Grade 2-3 chondromalacia of the patella. Dr. Haupt wrote in his examination reports through December 5, 2000 (See Exh. No. 2) that with physical therapy Rothschild was doing well with his left shoulder -- that shoulder examination demonstrated full passive range of motion; and active abduction and external rotation strength was approaching $4 / 5$; and that his right knee demonstrated a lack of full extension by just a few degrees, swelling is markedly improved, and he was able to ambulate without the use of crutches. In the next examination report of January 2, 2001, Dr. Haupt wrote: "Mr. Rothschild was doing well until about 2 weeks ago. He then developed increasing swelling and discomfort about his knee. He is doing well with his shoulder, with no major complaint." Dr. Haupt's assessment on January 2, 2001 was:

Persistent inflammation and discomfort with evidence of medial compartment degenerative changes noted secondary to work related injuries. The patient's increased swelling is secondary to rebound after the injection has worn off.

The treatment plan included continued physical therapy, and a valgus unloading brace "to unload that medial compartment to see if that will provide some symptomatic relief and allow that medial compartment to have a better opportunity for healing", the doctor wrote. In the January 22, 2001 examination letter, it was written that Rothschild was noticing that his left shoulder was doing well with home therapy but it seemed to be getting weaker, and that the right knee was still quite uncomfortable with attempts at physical therapy which was confirmed by the therapist's notes. Physical therapy was continued for the knee and resumed for the left shoulder. The next examination report of February 12, 2001 noted that Rothschild reported the brace had really helped his right knee discomfort and without the brace he still had a fair amount of medial compartment discomfort; it was written that the left shoulder was progressing in therapy. The doctor further wrote: "Today he mentions that he is having a complaint of numbness in his right leg. He has pins and needles down the leg as he is driving for any length of time. He indicates he has had this tingling and numbness even before he had the sport brace applied. He does not recall exactly when it started but it seemed to be sometime after the most recent surgery." Dr. Haupt noted the following in his next examination report of February 27, 2001:

His major complaint at this point is numbness that occurs with prolonged sitting activities while driving or even prolonged standing activities. He complains of the whole leg becoming numb, especially distal to the knee. He has completed the work-up by Dr. Peeples which notes a normal neurologic examination on electrical studies. This rules out any significant neurologic dysfunction causing his complaints.

Examination findings on February 27, 2001 were:

The right knee has minimal to no effusion. He can actively extend the knee. He is able to ambulate but still has a mildly antalgic gait but it is improved.

Shoulder examination demonstrates a full range of motion. No dysfunction noted.

The assessment on February 27, 2001 was: "This patient overall has improved quite well regarding his knee complaints as well as the shoulder complaints." In the treatment plan section of the February 27, 2001 report, Dr. Haupt wrote that his recommendation was for Rothschild to resume full duty. "He apparently has an opportunity to pursue work activities outside of his current employment and he wants to consider that.", the doctor wrote. Physical therapy was continued, geared more to doing piriformis stretches and strengthening as well as his range of motion and strengthening, and Rothschild was to return in 3 weeks so that his overall progress could be assessed. A March 7, 2001 form completed by Dr. Haupt was in the record and indicated that Rothschild was placed on limited duty - sit down activities only; the form indicated Roloff Trucking as the employer.

Dr. Haupt prepared a March 20, 2001 examination report in which he wrote that Rothschild indicated he did see some improvement in his leg pain with the injections at trigger points performed by Dr. Yadava and with the modifications in his physical therapy program. It was written that Rothschild further indicated that his knee and shoulder were actually doing quite well though he still had the complaint of pain down that leg with prolonged sitting or driving or standing, and a tingling and numbness that occurs in the knee on down the lateral and posterior aspects of the right leg. Examination findings on March 20, 2001 were:

Examination of the right knee shows full extension and flexion. No effusion. He is stable to varus and valgus stress. Shoulder range of motion is considered full. Good active abduction and external rotation strength.

No obvious sensory deficits on today's examination. Motor, sensory, and DTR's are intact.

Dr. Haupt's assessment in the March 20, 2001 examination letter was: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt wrote that he would defer further medical management to Dr. Yadava, and that Rothschild was continued on light duty status until he saw Dr. Yadava the next week. Dr. Haupt further wrote of his recommended restrictions - "steps and stairs only to enter a truck, car or building. Limited lifting of 50 pounds and no ending or squatting activities". Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent ( 6 % ) at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent (17\%) at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

In a separate March 20, 2001 examination report, Dr. Haupt wrote that Rothschild's chief complaint was - left ankle discomfort. In the history section of the report, Dr. Haupt wrote the following:

Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed for him by me. After discontinuing the Vioxx medication within in about two days he developed the onset of soreness about the lateral aspect of the left ankle. He denies any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle.

He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of. (sic)

Examination findings on March 20, 2001 were:

Examination today demonstrates, by his own admission, a 50\% improvement in the soreness he noted over the weekend. Examination demonstrates no apparent swelling. Range of motion is considered intact and full. Stable to varus and valgus stress. He complains of soreness, however, on anterior drawer as well as with varus stress of the ankle. His anterior drawer is considered negative. He is tender to palpation at the anterior talofibular ligament. There is no swelling noted. His Achilles tendon is normal. When he weight bears his arch appears to be normal. There is no plantar aspect of pain noted.

Routine plain films are really rather unremarkable. No acute or chronic changes noted. These are rather benign appearing plain films.

Dr. Haupt's written diagnosis on March 20, 2001 was:

Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury. It is possible that he has had some inflammation about that ankle was masked with the use of the Vioxx medication and became apparent upon discontinuing the anti-inflammatory medication and is more or less a rebound effect.

Dr. Haupt wrote of his treatment recommendation in the March 20, 2001 report:

Treatment recommendations are that he can pursue appropriate strengthening on his own, and we taught him a few exercises. In addition, I recommend the use of over-the-counter anti-inflammatories in an effort to cut down on some of the inflammation about the ankle. This can be in the form of Aleve.

There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises.

Dr. Ravi Yadava, D.O.'s record (No. 3) began with a March 14, 2001 examination report in which Rothschild's chief complaint was noted as - right leg numbness and tingling. The September 30, 1999 work related accident was discussed, and Dr. Yadava wrote that Rothschild relayed that he has been in pain ever since the accident; it was noted that Rothschild stated that sitting reproduced numbness and tingling on the lateral aspect of his right leg. Dr. Yadava wrote of Rothschild's medical history, his occupational history, and wrote of his findings upon examination of Rothschild. The doctor included the following in the Summary Section of his March 14, 2001 report:

He has had a total of three arthroscopic procedures on the right knee. He has had persistent pain and impairment. He has done relatively well with his medial unloading brace. He has done relatively well with his therapeutic program. He is having some numbness and tingling. His electrodiagnostic study is unremarkable. He does not have anything on his physical exam that concerns me for radiculopathy, plexopathy or true neurogenic basis for his pain and impairment. I think his numbness, tingling and pins and needle sensation is referred pain of a myofascial etiology. The kind of modification to his rehab program we have provided today will serve him quite well and help him achieve (?hi?)s goals in a more timely and cost effective fashion. I think these trigger point injections will facilitate this and minimize the use of medications. I feel he will not require medications and/or procedures in the long term......

In his last examination report of March 28, 2001 Dr. Yadava wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. Dr. Yadava wrote the following in his Summary:

...He states he is doing better. He does have objective improvements in the previous areas of injection. The only recommendations I would have for him at this time is to continue with his VMO strengthening exercises, utilize his bracing as directed and continue with his hamstring and gastroc soleus flexibility program. There is no formal physical therapy I feel is indicated. There are no other diagnostic studies or therapeutic intervention I feel is indicated. I do not think he needs ongoing use of medications. He does tell me he is anxious to return to his full time, unrestricted capacity. I think it is safe and appropriate. I did tell him it is reasonable to expect to return to work in a comfortable fashion I think there is some deconditioning that has occurred. He may have increased soreness that should be well controlled through conservative mechanisms as outlined in detail here in the office. I think he is at maximum medical improvement from a rehabilitation perspective. There are no other diagnostic studies or therapeutic intervention I feel is indicated.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001.

Medical records of Washington Chiropractic Clinic, P.C. (No. K) concerned prior treatment of Rothschild in 1995.and in July of 1999 for cervical spine complaints.

A 12/31/01 entry noted complaints of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

Additional records from Fischer Chiropractic Center (No. D-1) concerning the treatment of Rothschild in August 2003 for right shoulder complaints. The record indicated that Rothschild was referred by his father. The initial entry of 08/04/03 noted Rothschild's complaints of soreness in the right shoulder and an inability to move it. Rothschild's history was noted as: "Says that the pn. came from a fall down the steps". The entry indicated treatment given to the right shoulder. The next and final entry of 08/05/03 noted that Rothschild still had soreness in the right shoulder and the swelling had gone down. He has a lot of swelling \& pain in the left ankle, was noted; examination findings for the right shoulder and left ankle were noted.

Medical records from Herman Area District Hospital (No. G-1) reflected treatment of Rothschild on 08/06/03 for left ankle and right shoulder complaints. Attending physician, Dr. Anjna Sethi, M.D., noted the history as: "Fell down the stairs at 4:30 a.m. and says that he has been having pain moving the right shoulder. Denies any other complaints. He does have a past medical history of rotator cuff pathology on the left shoulder and currently takes Vioxx." A 08/06/03 x-ray report noted the following findings: a. left ankle - normal left ankle; and b. right shoulder - 1. sclerotic changes along the greater tuberosity suggesting possible chronic rotator cuff pathology, 2. Moderate degenerative changes of the acromioclavicular joint, and 3. no evidence for

fracture or dislocation. Dr. Sethi's assessment was: "History of fall. Pain right shoulder and left ankle." Treatment consisted of a sling for the right shoulder and recommendation to avoid weight bearing on the left ankle, and Tylenol 650 mg ; the doctor wrote that Rothschild had been asked to follow up with his regular doctor, and that he might need further MRI studies by the regular doctor.

An August 26, 2003 MRI of the right shoulder (See, No. J) ordered by Dr. Matthews noted the following impression: 1. Complete tear of the supraspinatus tendon; 2. Acromioclavicular joint hypertrophy and narrowing of the acromiohumeral space, and 3. Large joint effusion.

The treatment records in evidence reveal sophisticated testing and/or surgery was necessary in the determination and treatment of the physical problems and injuries alleged by the claimant. A claimant must show causation between the accident and the injury. Smith v. National Lead Co., 228 S.W.2d 407, 412 (Mo.App.1955). Proof of cause of injury is sufficiently made on reasonable probability. Smith v. Terminal Transfer Company, 372 S.W.2d 659, 664(7) (Mo.App.1963). Whatever may be the quantum of proof the law imposes on a given issue in a compensation case, such proof is made only by competent substantial evidence and may not rest on surmise or speculation.

"For an injury to be compensable the evidence must establish a causal connection between the accident and the injury. The testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause and extent of the disability when the facts fall within the realm of lay understanding.

"An injury may be of such a nature [however] that expert opinion is essential to show that it was caused by the accident to which it is ascribed. (Citations omitted)" Griggs v. A. B. Chance Co., 503 S.W.2d 697, 703 and 704 (Mo.App. 1973).

"...an injury may be of such a nature that expert opinion is essential to show that it was caused by the accident to which it is ascribed. When the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific techniques for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding..." Knipp v. Nordyne, Inc. 969 S.W.2d 236, 240 (Mo.App. 1998).

"A medical expert's opinion must have in support of it reasons and facts supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence." (citations omitted) Pippin v. St. Joe Minerals Corp., 799 S.W.2d 898, 904 (Mo.App. 1990).

Medical opinions were presented in this case. Dr. Thomas Matthews, M.D. , an authorized treating doctor and testified on behalf of the claimant, stated that he is a board certified orthopedic surgeon and that he began treating Rothschild on 10/20/99. The doctor discussed the history relayed by Rothschild:

"He related a history of while at work, he sustained an injury to his right knee and left shoulder while pulling something out of a pickup truck bed, I believe. He apparently slipped and fell at that time in late August - I believe that would be 1999 - twisting his knee and injuring his left shoulder at the same time." (Matthews Dp. pg. 11)

Dr. Matthews agreed that the date of injury Rothschild relayed to him was August 30, 1999, and then discussed his examination findings on 10/20/99, stating - "His examination was primarily confined to his left shoulder and his right knee." (Matthews Dp. pg. 12)

Concerning the right knee examination, Dr. Matthews stated: "The patient's motion was good. The patient's swelling was minimal. He did lack some extension or terminal extension of his knee joint. He couldn't straighten or flatten out his knee joint all the want. (sic) X-ray examinations were obtained of his knee joint, which showed a loose fragment of cartilage and bone and evidence of an old osteochondritic desiccants lesion and some degenerative changes." (Matthews Dp. pg. 16)

Dr. Mathews stated that an MRI of the left shoulder was obtained "which showed he had a compete tear, somewhat surprising, of his supraspinatus tendon, which is the foremost rotator cuff tendon that gets ruptured usually". (Matthews Dp. pg. 16) Dr. Matthews opined: "I think (the osteochondritis desiccants in the right knee) preexisted the fall off the truck". (Matthews Dp. pg. 19) The following question and answer then occurred:

Q. (By Mr. Gerritzen) Assuming as a fact this man says he's never had any problems with his right knee prior to the fall of the truck on October 30, 1999, landed on the right knee after a 12 -foot fall, approximate 12 -foot fall, had pain ever after. In your opinion, was the osteochondritis desiccants activated or aggravated by that fall?

A. It seems like it was. (Matthews Dp. pg. 22)

Osteochondritis desiccants can be caused by trauma or can be idiopathic; "(M)ost of the time we are at a loss as to what causes it", the doctor said. (Matthews Dp. pg.19) The doctor stated that he sees people every day that have asymptomatic knees that have preexisting problems with their knees that is exacerbated and/or aggravated by recent trauma. "We can only go on what patients tell us, and if they're asymptomatic prior to presenting with a recent injury and they're not having problems, then we can only assume that they didn't have problems", the doctor said. (Matthews Dp. pg. 23)

Dr. Matthews stated that he performed arthroscopic evaluation of Rothschild's right knee joint on two different occasions, 01/19/2000 and 06/22/2000. In his discussion of the procedures, Dr. Matthews testified:

"In any event, it was found that he had, on the first surgery, the osteochondritic lesion that we're talking about, which was about the size of a nickel, was a cartilage bone fragment in a defect of the medial femoral condyle. That's where it originated from but this fragment was loose, and it could be probed and moved around that area that it was supposed to be sitting in.

In adult patients, the treatment for that entity is removal of that fragment, and that was done. So in a, more or less, piecemeal fashion, that fragment of bone and cartilage was resected behind the crater where this OCD - we'll refer to it as an OCD lesion for now - resides. That crater is exposed raw bone. It should have cartilage on the end of its. So in an effort to remedy or at least palate the problem, the crater is drilled with multiple drill holes to try to stimulate a blood supply to form near the end of this crater." (Matthews Dp. pg. 24)

Discussing the second surgery of June 22, 2000, the doctor testified:

"That was essentially a re-debridement of the medial femoral condyle defect and also a patellar chondral debridement, which again means you take a shaving instrument........and you sculpt off the sharper edges of this particular areas of his medial femoral condyle. And on the back side of his patella, he had some arthritic changes." (Matthews Dp. pg. 26)

"The reason we got to the second surgery is because of the symptoms. And in spite of conservative measures, which, I believe, I may have given him a steroid injection in the interim, and that wasn't really effective, I was going to look back in his knee and see exactly where we stood at that point.

"The patella, in particular, I felt needed to be addressed at that time." (Matthews Dp. pg. 27)

Dr. Matthews was asked his opinion of whether or not both of the surgeries were necessary as a result of the fall off the truck on August 30, 1999, and he answered:

"I feel that, again, if a patient presents that has an asymptomatic history and now is symptomatic, and he has this particular lesion, so then I do address it surgically. So I can only conclude that the fall is a concomitant factor that results in the need for the operation.

"Well, I have a - I don't know what you guys mean by substantial. But yes, I feel that it's a substantial factor in regards to the development of his symptoms." (Matthews Dp. pg. 28) (Ruling: Employer Roloff's objection on grounds of Seven Day Rule is overruled. (Matthews Dp. pg. 28)

Dr. Matthews stated he believed that the treatment was proper. The doctor discussed the follow-up treatment he gave to Rothschild: "Well, Mr. Rothschild has been seen multiple times after this second surgery, perhaps a dozen times after the second surgery. He has had, I believe, physical therapy. He has had injections of corticosteroid medication, and he's had a lot of advice given in that time also." (Matthews Dp. pp. 28-29) Dr. Matthews agreed that he knew that Rothschild had additional surgery by Dr. Haupt after he saw Rothschild for the two surgeries.

The doctor was asked if Rothschild's knee would ever be the same as it was prior to the fall of August 30, 1999. Dr. Matthews answered "No", and explained: "The sequela of the knee surgery is a progressive arthritic condition." (Matthews Dp. pg. 30)

Dr. Matthews stated that he believed the fall off of the truck on August 30, 1999 was the cause of the left rotator cuff injury Rothschild sustained. The doctor stated that at the current time he was not sure as to Rothschild's symptoms in his left shoulder, but further testified: "Most authorities would feel that or believe that an untreated rotator cuff tear will also progress to develop what's called posttraumatic or rotator cuff arthropathy, which is basically arthritis of your shoulder." (Matthews Dp. pg. 30)

Dr. Matthews stated that there was no reference to the left ankle in his record from the claimant in his October 20, 1999 notes. The doctor testified: "So that final visit or that visit as of 10/11/02 was the end of the treatment cycle for that postoperative period after the second arthroscopy. Then the patient disappeared from my practice until he revisited me on 8/20/03." (Matthews Dp pg. 38)

The doctor discussed treatment of Rothschild in 2003 referencing his treatment notes. (Ruling: Employer/Insurers' objections are overruled. Matthews Dp. pg. 38) Rothschild returned to my office on August 20, 2003 and the history at that time was regarding a recent right shoulder injury, Dr. Matthews said, Rothschild stated that he fell down some steps at home and described a giving way episode with his right knee. At that time, Dr. Matthews testified, an "MRI showed that he had a complete tear of his supraspinatus tendon of his right shoulder". (Mathews Dp. pg. 39) We talked about physical therapy and about surgery, and I believe Rothschild was sent to physical therapy, the doctor said. He was reevaluated on September 3, 2003 after attending physical therapy and was given an injection at that time; at the next appointment on September 24, 2003 his symptoms were improved and at the last appointment on October 33, 2003 he had regained his motion in his shoulder and it was recommended that he continue a home exercise program, Dr. Matthews stated. The doctor stated:

"I'll restate what I think the question is, which is, did the preexisting problem with the patient's right knee lend itself to a fall or giving way episode that injured the patient's right shoulder. According to the history, that's correct, and, yes, it's conceivable that that's what caused the right shoulder injury." (Matthews Dp. pg. 41)

Dr. Matthews noted that between the 9/24/03 and the 10/22/03 visits "there was a letter written that summarizes those visits in relationship to the right shoulder, I believe." (Matthews Dp. pp. 39-40) In a September 29, 2003 letter to the claimant's attorney (included in the medical record attached to the deposition transcript) Dr. Matthews wrote the following:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon......

With regard to the hypothetical that you posed in your letter, I believe that that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

On cross examination by Roloff Trucking (See, No. B-1), a September 1999 x-ray report of Rothschild's knee taken about eight days after the August 30, 1999 work related accident in Dr. Matthews' record was noted. Dr. Matthews agreed that the OCD condition in the knee that he found had been present in Rothschild's knee for years prior to when the September 7, 1999 had been taken. The doctor agreed that the arthritis and the OCD are progressive degenerative conditions which are not necessarily caused by trauma and can develop even in the absence of trauma. The doctor was queried, wasn't it true in his practice that people who presented to him and were found to have OCD presented without a history of any trauma. Dr. Matthews responded:

"I would say that is true that they present in the absence of trauma, and they also present in the absence of symptoms, and that the finding of OCD is usually a radiographic finding that, Oh, look what we found. So most of the people that present with OCD don't present because their knee is really bothering them that much or - they're just not symptomatic." (Matthews 11/19/04 Dp. pg. 78) (Ruling: Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 77-78)

Dr. Matthews stated that the chondromalacia found at the time of his second surgery would not have been caused by the first surgery in January 2000. Agreeing that the osteoarthritic condition and the OCD lesion were present in the knee before August 30, 1999, Dr. Matthews further testified:

"...I would just state that the progression of (the osteoarthritic condition and the OCD lesion) would aid in the progression of the chondromalacia in so far as small fragments of cartilage deteriorating from degenerative joint disease or osteoarthritic and/or the OCD essentially swim around in someone's joint and they cause abrasion to the end of the bone and/or joint." (Matthews 11/19/04 Dp. pg. 79)

Dr. Matthews stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about.

On cross examination by Karst Construction Company, Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of any objective findings intraoperatively. Dr. Matthews agreed that he had reviewed the surgical note of Dr. Haupt for the surgery performed later in 2000, and that surgical noted reflected a progression of problems in the knee from the June 2000 surgery. The doctor noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and

degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

During cross examination by Karst Construction Company, the following testimony occurred:

Q. Let me turn to the right shoulder just for a minute, doctor. It's my understanding that Mr. Rothschild gave you a history with regard to this right shoulder, and that history was in Your - it was in other records, but it 's also in your......9/29/2003 report. And you indicated that - and you recorded in that report that Mr. Rothschild had told you that his knee had give way and he had fallen at home injuring his right shoulder; is that correct?

A. If that's what the report says, yes.

Q. Doctor, anywhere in your previous encounters with Mr. Rothschild, had you recorded any incidences of instability or his knee giving way?

A. No, I don't think so.

Q. Do you recall ever putting anything like that in any of your reports as a complaint that Mr. Rothschild had about his right knee?

A. I don't recall that, no. (Matthews 11/19/04 Dp. pp. 107-108)

On cross examination by Integrity Installations, Dr. Matthews was asked to explain the surgery performed by Dr. Haupt:

"That involves either obtaining a cartilage and bone graft from the patient himself, usually from a nonweight bearing area of the same knee, and transferring that where the OCD lesion and/or a lesion on the weight bearing surface on the end of the femur would be, or in larger lesions, sometimes cadaveric specimens are used to transfer.

"You're trying to repair a defective area that doesn't have cartilage coverage, and the underlying one in this case, because of the OCD process, is also lacking...." (Matthews 11/19/04 Dp. pg. 109)

This procedure performed by Dr. Haupt can be a permanent solution to this condition, Dr. Matthews said, but it was not in Rothschild's case.

On cross examination by the Second Injury Fund, it was noted that Dr. Matthews had written to the claimant's attorney in a May 15, 2002 letter - "The patient has stated he has had no problems with his knee prior to the work injury, which is consistent with a stable OCD lesion." When asked if this was still his opinion today, Dr. Matthews answered - "Yes". (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that the conditions seen on the September 7, 1999 x-ray could have been asymptomatic. The doctor agreed that the osteochondritis desiccant can also be asymptomatic; Dr. Matthews agreed that the condition could be in the early stage and then a severe trauma is sustained and then the condition goes into level four; the doctor agreed that the OCD could trigger the exacerbation of other pathologies in the knee including the osteoarthritis.

On redirect, Dr. Mathews stated that to his knowledge he had not seen any medical record in which Rothschild had made complaints referable to the right knee prior to August 30, 1999. The doctor agreed that if the findings disclosed by the x-ray of the osteophyte, the osteoarthritis, the narrowing, the findings of the right knee were there prior to Rothschild's falling off the truck, to his knowledge there is no history that Rothschild had sought any treatment for problems with these conditions. Denying that a fall from the truck could have entirely caused the 20 percent of the medial femoral condyle that needed to be surgically treated by him, Dr. Matthews testified that "a fall from a height, as you've described, could aggravate a preexisting OCD lesion and make it symptomatic". (Matthews 11/19/04 Dp. pg. 124) The doctor was asked - even if Rothschild had the asymptomatic condition before, wasn't the fall off the truck the cause for his ongoing problems since then, including the surgeries, everything? Dr. Matthews answered:

"I would not characterize it as such. I would - -

"The fall off the truck brought to light the condition that Mr. Rothschild had in his knee. I'm not going to give a percentage on what that fall off the truck led to. I don't think I have that crystal ball to be able to do that." (Matthews 11/19/04 Dp. pp. 126-127)

The doctor was queried, if Rothschild had had those changes seen on the September 1999 x-ray and had not had the fall off of the truck in August 1999, would he have still had to have three surgeries by January of 2000. "In all likelihood he would have ended up with a surgical event", Dr. Matthews responded. (Matthews 11/19/04 Dp. pg. 127) "I can't give you a time frame", the doctor said,

but admitted that it could be a year or 20 years. (Matthews 11/19/04 Dp. pg. 127) Dr. Matthews agreed that he felt the trauma of falling off of the truck aggravated the preexisting arthritic condition in the right knee, and agreed that only after that aggravation occurred did the three surgeries occur. The doctor agreed that when he did the surgery he found loose material in the knee, and stated that that could be from the trauma to the knee.

Dr. Raymond Cohen, D.O. testified on behalf of the claimant. (No. A) Dr. Cohen's diagnosis regarding the primary workrelated injury of 8-30-99 was:

1. Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear.
2. Left shoulder rotator cuff tendon tear and impingement.
3. Due to a compensatory gait, he has left ankle instability with chronic tendonitis.
4. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition.
5. Due to the right knee giving out at home on or about July 2003, he has a right shoulder rotator cuff tear.

Dr. Cohen wrote of his conclusions:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 (sic) to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99......

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

At the level of the left ankle, it is my medical opinion that within a reasonable degree of medical certainty, he has a 30 % permanent partial disability at the level of the left ankle, of which 15 % is due to the injury on or about 8-30-99 and the remaining 15 % is due to the three overuse disorders.

He has a 35 % permanent partial disability at the right shoulder. The 35 % at the right shoulder in my medical opinion is due to all four of the claims and would be divided in the same percentages that I had previously stated referable to the right knee.

Dr. Cohen wrote of his conclusions regarding the primary work related injury, which included:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99.

After reviewing additional records consisting of Rothschild's 03/16/04 deposition and a 06/02/04 IME from Dr. Rende, Dr. Cohen's further written opinion was - "As he was favoring his right knee, he was putting increased pressure on his left foot and ankle and the pain progressively became worse. According to the patient, he had x-rays taken of the left foot and ankle by Dr. George and he was told that he had a spur. He continues to have pain in the left foot and ankle."

On cross examination by Roloff Trucking, Dr. Cohen was queried as to what was Rothschild's job at Roloff Trucking, and Dr. Cohen responded - "I believe he was a carpenter with the other employers, and I thought he was with Roloff; I'm not sure". (Cohen Dp. pg. 17) Explaining why it was important to learn about Rothschild's duties at employments subsequent to Roloff Trucking, Dr. Cohen testified:

"Because, in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." (Cohen Dp. pg. 23)

During cross examination by Roloff Trucking, Dr. Cohen stated that he had reviewed all of the medical records he had listed in his reports. The doctor was queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle. Dr. Cohen answered that he did not remember, but further testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." (Cohen Dp. pg. 31) The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. The doctor was queried if his opinion as to disability for the left ankle would be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001. Dr. Cohen answered:

"That really wouldn't change my opinion, because it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk. So if he had a serious injury to his knee from the original injury and was limping or favoring it, that would still go back to the original injury if he did not have an acute injury to the ankle at the time when he fell." (Cohen Dp. pp. 36-37) (Ruling: Claimant's objections are overruled. Cohen Dp. pp. 34-36)

Dr. Cohen was further queried if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, and the doctor responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." (Cohen Dp. pg. 37) Concerning the left ankle, Dr. Cohen stated that it was his understanding Rothschild's problems began several months after the August 1999 fall from the truck but prior to his returning to work in March 2001. Rothschild's left shoulder injury was an acute injury in August of 1999, Dr. Cohen said, the acute injury was from the fall with subsequent finding on the MRI of a rotator cuff tear. Dr. Cohen agreed that it was his opinion Rothschild sustained an acute injury to the right knee in the August 1999 fall. It was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Assuming that Dr. Matthews' note was correct that Rothschild did have a preexisting condition of osteochondritis dissecans, Dr. Cohen further stated: "...I don't feel, from a medical perspective, that he had any preexisting disability since it didn't bother him. He may or may not have had that condition, but assuming he even had it, it didn't appear to cause any dysfunction in the knee. So I don't find any disability unless he had a severe case of that, then it could have led to some preexisting disability." (Cohen Dp. pg. 48)

Dr. Phillip George, M.D. testified on behalf of Karst Construction (Karst Exh. No. 7) An orthopedic surgeon, Dr. George sated that he evaluated Rothschild on or about June 22, 2004. Dr. George testified as to his diagnoses after taking a history and complaints, a physical examination and a medical review:

"My diagnoses were: one, post-traumatic arthrosis, right knee, moderately advance; two, complete rotator cuff tear right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromioclavicular joint; three, rotator cuff tear of the left shoulder with degenerative arthritic changes at the AVC joint; four, early post-traumatic changes at the AVC joint; four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." (George Dp. pg. 8) (Ruling: Claimant's objection is overruled. George Dp. pg. 8)

The doctor gave his conclusions as to Rothschild's right knee difficulties:

The doctor was asked his conclusions as to Rothschild's right knee difficulties, and Dr. George answered:

"It was my felling that this gentleman had preexisting osteochondritis dissecans of his right knee and that it was aggravated or exacerbated by the fall of August of '99.

The subsequent surgeries were carried out in 2000. They found evidence of drastic osteochondritis dissecans, which preexisted the injury in question, but in my opinion was made worse by the injury in question. Standard arthroscopic techniques sufficed to moderate his symptoms but did not cure the problem.

It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played

a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10)

In giving his opinion on the role of the various subsequent employments, Dr. George testified:

"The condition of osteochondritis dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employment from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004.

What I mean by a minor contributory factor is that, if a gentleman has a rough spot in his knee, and he goes to work, and even walking from the parking lot into the place of employment, that might make the knee a little sore. He works a full eight-hour day - - a ten-hour day. He does what does. He goes home. It's still sore. I think his work activity had something to do with making the knee sore.

If he had gone to work with a normal knee, smooth surfaces, no osteochondritis dissecans, he might have come to work sore anyway depending upon what he does at the place of employment. If he falls off the top of a cab of a semi, he's going to be sore. That's more or less what I mean by minor contributory factor.

This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." (George Dp. pp. 10-11)

Dr. George gave his opinions in regard to the left shoulder after evaluation:

"I felt that that same injury we just discussed, the fall off the top of the cab of the tractor in '99, caused the rotator cuff tear.

The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not want surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that." (George Dp. pg. 11)

Dr. George gave his opinion on causation as to the right shoulder after evaluation:

"The right shoulder problem was clinically more severe. It had apparently resulted from a fall which had occurred some years - perhaps three to four years after the original injury of '99. The patient, indeed, told me that it occurred at home because his right knee collapsed and caused him to fall.

I simply said that I did not feel the right shoulder problems, even though they were severe, were not the result of any of the work injuries we talked about." (George Dp. pg. 12)

Dr. George gave his opinions in regard to the left ankle after evaluation:

"The diagnosis, which if offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

It was noted that Dr. George had said Rothschild had injured his left ankle in 1999, and the doctor was asked if he was able to find complaints produced in the medical records. Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, the doctor said.

On cross examination by the claimant, the doctor was queried if he was saying osteochondritis dissecans cannot be caused by trauma ever. Referring to what the doctor described as one of the two leading tests for orthopedists, Dr. George answered:

"If you read that, it says this condition is post-idiopathic, doctor talk for we don't know why. But it then proceeds to say one of the, one of the many possible etiologies might be trauma. What I'm referring to is the kind of trauma that occurs if a 14-year-old kid falls off his bicycle or twists his knee playing soccer, those kinds of thins, or a 21-year-old hits a bridge on his Harley, those kinds of things, we think, can initiate the problem.

It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have." (George Dp. pp. 16-17)

Dr. George agreed that even if you have preexisting osteochondritis dissecans, it can be asymptomatic and can be activated or aggravated by trauma. The doctor also testified: "I do think that if you have an osteochondritic knee and you fall off a trailer you can hurt it. Now, what does that mean? That means the symptoms get more severe. Did the fall cause the problem? I don't think so. (George Dp. p. 22-23)

During cross examination by the claimant, Dr. George agreed that in his report he had written the right shoulder problem is more severe and resulted from a fall which occurred three to four years after the original injury to the right knee. When queried, wasn't it correct that the fall occurred because of the right knee gave way, Dr. George responded - "That's what the patient told me." (George Dp. pg. 20) Dr. George gave further testimony:

"What I think I've been saying is that I think the gentleman had an intrinsic problem with his knee, which for convenient sake, orthopedists call osteochondritis dissecans.

It was my opinion that the work-related trauma of ' 99 was a minor contributing factor to this condition. It was my feeling that the reason he fell, assuming his report to me was the truth, in, I guess, ' 03 or whenever it was, at least three to four years after the original injury when his right knee gave way - it would be my surmise that the knee gave way because of osteochondritis dissecans, not because of any effect of an injury which occurred in '99.

Certainly the effects of that injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans. That presumably is what made his knee give way and hurt his shoulder.

So I'm not - I mean, your reading of that statement is fairly creative from your point of view. From my point of view I would tell you I think it was due to arthritis of his knee." (George Dp. pg. 21) (Ruling: All objections overruled. George Dp. pg. 20)

Dr. George admitted that he had no history of Rothschild's right knee giving way prior to the 1999 accident when he fell off the truck at Roloff Trucking, and that he had no history and saw no medical records of osteochondritis dissecans being diagnosed prior to the fall of the truck at Roloff Trucking in 1999.

On cross examination by Roloff Trucking, Dr. George stated if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". (George Dp. pg. 31( (Ruling: claimant's objection is overruled. George Dp. pg. 31) It was noted that the doctor described the left ankle as "early post-traumatic arthrosis of the left ankle", and Dr. George explained what he had meant: "That means I expect it to get worse". (George Dp. pg. 32) It was noted that he had used the term "drastic osteochondritis dissecans", and the doctor was asked if the condition was drastic back in 1999. Dr. George answered: "It was drastic in 2000 when they first started looking in there with an arthroscope? The three operative reports of the two surgeries describe changes which one would have to label drastic, i.e., advanced, long-lasting, severe." (sic) (George Dp. pg. 33) Dr. George gave the following opinion testimony in regards to the claimant's left ankle:

Q. Okay. And my understanding is, from reviewing your report, that the claimant's - when you looked at him it appears, one of the symptoms he did is he had a limp on the left, not the right. So is it a fair statement he was limping from the left ankle, not the right knee?

A. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

Q. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

A. No.

Q. Or the original accident back on August 30, 1999?

A. No.

Q. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

A. That's a fair statement.

Q. In that you say it was substantially caused by the original trauma of 1999 ?

A. That is correct. (George Dp. pp. 33-34) (Note: Ruling: Second Injury Fund and Claimant's objections are sustained. George Dp. pp. 29, 30 and 31)

On cross examination by the Second Injury Fund, Dr. George agreed that he met with Rothschild personally, and Rothschild did not relay to him any prior injuries or treatment to the right knee before the August 29, 1999 injury. The doctor was again questioned if a patient can have osteochondritis dissecans but no symptoms, and Dr. George's testimony this time was: "Once again, it depends on the degree. If you have osteochondritis dissecans and you have symptoms, you may not go to the doctor about it, but you're certainly symptomatic." (George Dp. pg. 37) (Ruling: All objections overruled. George Dp. pp. 35, 36 and 37) When further queried, don't you recall testifying earlier that a person can have the condition of osteochondritis dissecans but be asymptomatic, Dr. George responded: "I don't recall saying that. I doubt I said that. If I said that, I didn't mean it. What I meant was you can have

that condition and not go to the doctor about it." (George Dp. pg. 37) Dr. George agreed that he did not see any preexisting treatment records for the right knee or left ankle prior to the August 30, 1999 injury. Dr. George stated "(C)orrect" that it was his opinion the osteochondritis dissecans was significantly aggravated or exacerbated by the fall of August of 1999 when Rothschild fell off the trailer. (George Dp. pg. 39)

On further cross examination by the claimant, the doctor was queried if the fall of 12 feet landing on concrete such as Rothschild had could cause severe drastic changes in the kneecap which would show up as osteochondritis dissecans.

"What I'm trying to say is the findings that were reported by the arthroscopist describe a condition which I called drastic. And what I meant by that was advanced degenerative changes in the knee which had been long-lasting. What I mean by that is preexisting August of ' 99 .

If one falls off a 12 -foot truck cab onto any kind of surface, one can damage any of his joints, but that kind of injury doesn't cause what was described by the arthroscopist. What they were describing was far beyond that, something that had been ongoing for probably 20 years and could have been aggravated by the trauma of August of '99, but there would be no way to tell because of all the wreck that had been there before secondary to osteochondritis dissecans." (George Dp. pp. 4243) (Ruling: Karst and Roloff objections are overruled. George Dp. pg. 42)

Dr. George agreed that in his report he had opined - "I consider his present condition to be due to preexisting osteochondritis dissecans aggravated to a significant degree by the trauma from 1999". The doctor further testified: "I agree with that. I mean, I think that's what I've been saying all along." (George Dp. pg. 44) (Ruling: All objections are overruled. George Dp. pp. 43 and 44)

Dr. Richard Rende, M.D. testified on behalf of Integrity Installation (Integrity Installation Exh. No. 8), and stated that he is a board certified orthopedic surgeon. I evaluated Rothschild on June 2, 2004 on behalf of Integrity Installation and prepared a report, the doctor said. Dr. Rende testified as to his impressions based on the history and the records: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) The doctor was asked to explain what osteochondritis dissecans (OCD) was:

"OCD is a traumatic injury that occurs typically in people anywhere between the ages of 15 to 50 that results in a lesion that forms on the weight bearing surfaces of either the medial or lateral femoral condyle -

"-or in lay terms, the end of the femur bone. It's the part of the femur bone that bears weight. It's etiology is typically that of either idiopathic or trauma.

"Idiopathic means that there are people who have no known reason for the lesion to occur, but approximately 50 percent of these patients have a history of trauma. There's some theories that it could possibly be a vascular insult that is later dislodged by trauma, but regardless, many of them are traumatic in etiology and it basically results in complete loss of bone and cartilage from the end of the femur from one event.

"It's probably the most devastating of the injuries to the knee because in one fell swoop the patient becomes, as we would say, bone against bone." (Rende Dp. pp. 9-10)

Agreeing that there are different grades of OCD, Dr. Rende explained:

"A Grade I lesion is a lesion that occurs on the radiograph where the bone has lost its integrity but the piece actually does not break away from the end of the femur.

"That has the best prognosis. A Grade II lesion is one in which the piece breaks away partially or becomes unstable. Those can be pinned back in place with a fair prognosis, and then there's a Grade III lesion in which the piece becomes displaced completely and loses its entire blood supply, and those are the poorest prognosis, and that's the type of injury that Mr. Rothschild sustained." (Rende Dp. pg. 11)

Dr. Rende testified as to his additional impressions:

"It was my opinion that the osteoarthritis was directly a result of that particular injury. This was not a repetitive micro-trauma type of injury, and I felt that the gentleman also needed permanent work restrictions, and I went over those in my letter to you." (Rende Dp. pg. 11)

It was noted that Dr. Rende used the term "progressive generative osteoarthritis"; the doctor was asked what relationship, if any, did that have to OCD, and the following testimony occurred:

A. Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with

exposed bone and no cartilage.

Q. Okay.

A. OCD is a disease where it happens and it's done, it's there. It becomes exposed bone from one injury.

Q. And does the progressive degenerative osteoarthritis, was that the result of the OCD injury?

A. Yes. The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results.

Q. And that's the natural disease type process from this type of injury?

A. Yes. We call that the natural history of the disease.

Q. Would his condition then progress like that without regard to his activities?

A. Yes, that's correct. (Rende Dp. pp. 12-13)

Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14)

On cross examination by Roloff, Dr. Rende stated that half the people in the literature who have osteochondritis dissecans have no history of trauma. "Most of those patients are in the teen age group", the doctor added. (Rende Dp. pg. 23) The doctor stated that he has had a middle aged patient without a history of trauma and have OCD. Dr. Rende was asked what the x-rays would like in a patient without a history of trauma and relays some symptoms of OCD. The doctor answered: "Most atraumatic lesions present as Type I lesions. That means that the radiograph shows a small halo, but the piece that's avascular is still in its anatomic position." (Rende Dp. pg. 24) (Ruling: Claimant's objection is overruled. Rende Dp. pg. 23) The doctor was asked if it was possible that a trauma could convert a Type I to a type II or a Type II to a Type III. Dr. Rende answered:

"If you look at the literature, most of the Type II lesions have some traumatic history. It's the Type I lesions that typically are more likely - I shouldn't say more likely, they're equally likely to have trauma or not, but the displaced lesions, you usually have a history of trauma." (Rende Dp. pg. 25)

Dr. Rende stated that in Rothschild's case, it would not make any difference if in the August 1999 accident he landed on his feet and twisted his right knee; "(S)imilar etiology or history in treatment", the doctor further said. (Rende Dp. pg. 26) The doctor stated that if a person suffered a traumatically induced OCD he would not necessarily expect a significant amount of pain immediately, but he would expect bleeding of the bone immediately. Dr. Rende was shown x-rays in the case, and testified as to what a 9/3/99 x-ray revealed as to whether or not this was a traumatically induced OCD versus a preexisting OCD:

"Well, what this x-ray shows is it shows that the base of the lesion is very smooth and sclerotic and it suggests that there's been some separation of the normal vascular bone from the avascular bone below. This suggests that the OCD lesion was, in fact, present for some time." (Rende Dp. pg. 31)

The doctor agreed that the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999. "There's also a very small osteophyte here, but that is really a minimal degenerative change, so -". (Rende Dp. pp. 31-32) Dr. Rende agreed that after viewing the 9/3/99 x-ray, it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33) Dr. Rende was asked - is there any question, after reviewing the x-rays, that after this accident of falling off the truck, Rothschild had a Type III OCD lesion. The doctor answered: "Well let me answer this. There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." (Rende Dp. pg. 36) Dr. Rende agreed that from that point on the condition was going to progress, and that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression throughout the year 2000. On cross examination by the Second Injury Fund, Dr. Rende stated that he did not review any x-rays prior to the 1999 injury, and agreed that it would helpful in actually determining if Rothschild had Type I OCD before the 1999 traumatic injury. Dr. Rende indicated that based on the x-rays he was shown at his deposition "I see that he had OCD of some sort before the event". (Rende Dp. pp. 42-43) Dr. Rende agreed that a person can have the beginning type of OCD and be asymptomatic. On further cross examination by the claimant, Dr. Rende agreed that he had been shown x-rays that preexisted Rothschild's fall of the truck that were indicating he had OCD. The doctor was referred to the 9/3/99 x-ray, and Dr. Rende noted that it revealed a Type III OCD. The doctor was asked - you can't really say that the Type III lesion was four years old, four weeks old, four months old or four days old, can you, just from the film alone? Dr. Rende answered: "That's correct. The film doesn't tell you how long that piece has been displaced." (Rende Dp. pg. 47) The doctor was further queried - the osteochondritis dissecans displacement could have been a week old. "The displacement would probably match his symptoms", Dr. Rende responded. (Rende Dp. pg. 47) When queried, the type of displacement seen in the 9/33/99 x-ray would be consistent with pain originating from falling off the truck, Dr. Rende answered: "I would say very easily that that would be very painful and his knee wouldn't straighten all the way." (Rende Dp. pg. 48)

It is found, considering the medical opinions:

1. Left shoulder - There is no dispute among the medical evidence and medical opinions that as a result of the August 30, 1999 work related accident at Roloff Trucking the claimant sustained injury to the left shoulder of a complete tear of the supraspinatous tendon, the foremost rotator cuff tendon.
2. Right knee - There are sufficient competent and substantial medical opinions (Drs. Fischer, Berkin, Morrow, Matthews, Haupt and George) that as a result of the August 30, 1999 work related accident, a pre-existing condition in the claimant's knee of osteochondritis desiccants (OCD) was aggravated or exacerbated becoming a Grade III lesion in that a fragment of cartilage bone in a defect of the medial femoral condyle became loose or displaced completely. The competent and substantial evidence reveals no evidence of the claimant loosing time from work, altering his work duties or having treatment for this OCD condition prior to the August 30, 1999 work related injury. The opinions of Dr. Rende and Dr. Cohen are found to not be controlling for the following reasons. Dr. Rende, it is found, offered a somewhat confusing opinion in that the doctor opined that the claimant suffered traumatic OCD from the August 30, 1999 work related accident and caused a progressive degenerative osteoarthritis of the knee, but when later shown additional records admitted that the claimant had preexisting OCD and that the nature of is that it becomes progressively more severe and end stage degenerative arthritis results: Dr. Rende testified "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee". However, on cross examination by Roloff trucking, Dr. Rende agreed the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999; Dr. Rende agreed that after viewing the 9/3/99 x-ray, it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. In his discussion about "progressive generative osteoarthritis and it relationship to OCD, Dr. Rende had testified earlier: "Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with exposed bone and no cartilage."; "OCD a disease where it happens and it's done, it's there. It becomes exposed bone from one injury." Agreeing that the progressive degenerative osteoarthritis was that the result of the OCD injury, Dr. Rende further stated: "The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results." Dr. Rende stated that that was the natural history of the disease, and agreed that the claimant's condition would then progress like that without regard to his activities. Dr. Cohen offered an opinion not supported by the substantial weight of the evidence: a. in discussing why he did not assign any pre-existing disability to the right knee, Dr. Cohen stated - "Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." Dr. Cohen further stated that in regards to osteochondritis dissecans, ".....I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury".

Also at issue is whether or not the claimant's present right knee condition is a result of the August 30, 1999 work related accident at Roloff Trucking. The evidence reveals, it is found, that the claimant received treatment for symptoms resulting from the aggravation of the preexisting condition caused by the August 30, 1999 work related accident in the form of surgeries by Dr. Matthews in January and June of 2000 and by Dr. Haupt in October 2000. On March 20, 2001, Dr. Haupt wrote - "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt sent the claimant to Dr. Yadava in early March 2001 for complaints of right leg numbness and tingling; after testing and treatment, Dr. Yadava wrote on March 28, 2001: "There is no formal physical therapy I feel is indicated. There are no other diagnostic studies or therapeutic intervention I feel is indicated. I do not think he needs ongoing use of medications. He does tell me he is anxious to return to his full time, unrestricted capacity. I think it is safe and appropriate.....I think he is at maximum medical improvement from a rehabilitation perspective." In a March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava it was indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001. Dr. Matthews, a treating doctor, testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. George, who evaluated the claimant on June 22, 2004, stated - "I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99."; "The condition of osteochondritis

dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employment from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004."; "This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself."

It is found that the substantial weight of the competent medical opinions establish that the August 30, 1999 work related accident resulted in an injury of an aggravation of a pre-existing condition which reached maximum medical improvement in or about March 2001; it is found that the substantial weight of the competent medical opinions indicate that subsequent to this point (March 2001) the condition of the claimant's right knee was due to the progressive nature of the pre-existing degenerative condition of osteochondritis dissecans and/or subsequent, activities unrelated to his August 30, 1999 work related accident and injury at Roloff Trucking.

1. Left ankle - The competent and substantial medical evidence does not support the claimant's allegations that he suffered a left ankle injury or condition in the August 30, 1999 work related accident, and does not establish a causal link between the August 30, 1999 work related accident and a left ankle injury or condition. The first treatment records Fischer Chiropractic Center of August and September 1999 made no mention of a left ankle complaint or injury. Dr. Matthews' treatment records from October 1999 through October 11, 2002, as admitted by Dr. Matthews, made no mention of a left ankle complaint or injury. Dr. Matthews stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about. The first reference in the case to a left ankle problem for Rothschild was by Dr. Haupt in a March 20, 2001 examination report in which the doctor wrote: "Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed for him by me."; "He denies any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle."; "He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of." Dr. Haupt wrote that Rothschild relayed that he had had similar discomfort about the left ankle in the fall of 2000 while Dr. Haupt was treating him; the records of treatment of Dr. Haupt, which reflect treatment from August 1, 2000 through March 20, 2001, make no reference to left ankle problems by Rothschild. Dr. Haupt included in his written diagnosis in the March 20, 2001 examination report: "Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury." Dr. Matthews, who after last seeing Rothschild for right knee problems in July 2000, stated that Rothschild next presented in January of 2002 with right knee complaints; the doctor's records through October 11, 2002 reflected treatment to the right knee with no mention of a left ankle complaint or injury. On October 28, 2002, Dr. Matthews wrote an opinion response letter to the claimant's attorney which included: "I feel that his left (sic) knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort.....I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point." It is found that Dr. Matthews' opinion is not clear as to whether an aggravation to the claimant's preexisting left ankle condition of calcific tendonitis is due to the August 1999 work related right knee injury or from the progressive nature of a degenerative condition of osteochondritis dessicans of his right mediofemoral condyle. Dr. Cohen diagnosed Rothschild with Due to a compensatory gait, he has left ankle instability with chronic tendonitis, and Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, an aggravation of the left ankle condition. Dr. Cohen stated that it was his understanding Rothschild's problems with the left ankle began several months after the August 1999 fall from the truck but prior to his returning to work in March 2001. During cross examination by Roloff Trucking when queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle, Dr. Cohen answered that he did not remember. Dr. Cohen testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. Dr. Cohen further indicated that his opinion as to disability for the left ankle would not be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001., the doctor testified: "...it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk." Dr. Cohen's opinion is not found to be controlling in that the treatment records do not support the doctor's understanding that the claimant began having problems with his left ankle several months after the August 30, 1999 work related injury but before March 2001, and there is no substantial competent evidence establishing the August 30, 1999 work related accident was a substantial factor in causing

the problems in the right knee in March 2001. Dr. Phillip George testified as to his diagnoses after evaluation of Rothschild on June 22, 2004, which included: "four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." Dr. George testified:

"The diagnosis, which if offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said

that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

When queried if he had been able to find complaints of injury to the left ankle in the medical records, Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, Dr. George stated. On cross examination by Roloff Trucking, Dr. George admitted that if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". Dr. George then gave the following testimony:

Q. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

A. That's a fair statement.

Q. In that you say it was substantially caused by the original trauma of 1999 ?

A. That is correct.

It is found that Dr. George changed his opinion on the cause of the diagnosis of arthrosis of the left ankle when he gave the above testimony; it is found that Dr. George's admission that the basis of his former opinion - the left ankle complaints and condition was substantially caused by the August 1999 trauma - was vacated by the doctor. It is found that there is no competent evidence establishing a causal connection between a left ankle injury/condition and the claimant's August 30, 1999 work related accident at Roloff Trucking.

1. Right shoulder - There is no dispute in the evidence that the claimant sustained a right shoulder injury of a rotator cuff tear as a result of falling down the stairs at home in August 2003, and the claimant alleges this right shoulder injury was caused by the August 30, 1999 work related injury to his right knee which he stated gave out in the August 2003 event causing him to fall down the stairs at home. Dr. Matthews' record reflects treatment for the right shoulder injury beginning on August 20, 2003. Dr. Matthews noted at his deposition that he had addressed in a September 29, 2003 letter the inquiry from the claimant's attorney in regards to the right shoulder injury:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon......

With regard to the hypothetical that you posed in your letter, I believe that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result in injuring his right shoulder, i.e., his rotator cuff.

Dr. Cohen's stated opinion was: Due to the right knee giving out at home on or about July 2003, he has a right shoulder rotator cuff tear. Dr. George, who made a diagnosis of - complete rotator cuff tear right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromiocalvicular joint, stated his opinion on causation as to the right shoulder after evaluation:

"The right shoulder problem was clinically more severe. It had apparently resulted from a fall which had occurred some years - perhaps three to four years after the original injury of '99. The patient, indeed, told me that it occurred at home because his right knee collapsed and caused him to fall.

I simply said that I did not feel the right shoulder problems, even though they were severe, were not the result of any of the work injuries we talked about."

During cross examination by the claimant, Dr. George gave further testimony:

"What I think I've been saying is that I think the gentleman had an intrinsic problem with his knee, which for convenient sake, orthopedists call osteochondritis dissecans.

It was my opinion that the work-related trauma of ' 99 was a minor contributing factor to this condition. It was my feeling that the reason he fell, assuming his report to me was the truth, in, I guess, ' 03 or whenever it was, at least three to four years after the original injury when his right knee gave way - it would be my surmise that the knee gave way because of osteochondritis dissecans, not because of any effect of an injury which occurred in '99.

Certainly the effects of that injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans. That presumably is what made his knee give way and hurt his shoulder.

So I'm not - I mean, your reading of that statement is fairly creative from your point of view. From my point of view I would tell you I think it was due to arthritis of his knee."

It is found that there is no competent medical opinion causally relating the 2003 right shoulder injury to the right knee injury from the August 30, 1999 work related accident only. There is evidence in the medical records/reports of 2001 of the claimant making a complaint that his right knee was giving out (i.e. See Dr. Berkin's May 9, 2001 evaluation report), however, the right shoulder injury in issue occurred over two years later. The substantial weight of the competent medical opinions are that by 2003 the claimant's right knee complaints were due to the pre-existing osteochondritis dissecans condition (Dr. George), or due to the right knee condition and/or the pre-existing left ankle arthritic changes or both (Dr. Matthews), or that the right knee condition was made worse by employments subsequent to Roloff Trucking in September 2001, December 2001 and September 2002 (Dr. Cohen). While the proof of the cause of an injury is sufficiently made on reasonable probability, Griggs, 503 S.W.2d at 703, it is the claimant's burden to produce evidence from which it can reasonably found that the injury in issue resulted from the cause for which the employer would be liable.

"The rule is that the burden of proof rests on the claimant in a workmen's compensation proceeding, and it is not sufficient for recovery to show only that the injury complained of resulted either from one or the other of two causes, for one of which, but not the other, the employer would be liable. The claimant must produce evidence from which it reasonably may be found that such injury resulted from the cause for which the employer would be liable."' Griggs, 503 S.W.2d 704.

It is found that the substantial weight of the medical opinions fails to causally link the claimant's right shoulder injury to the August 30, 1999 work related accident herein.

At the beginning of the hearing, the following was agreed and stipulated to by the claimant and the employer/insurer:

Temporary total disability benefits have been paid to the claimant by the employer/insurer in the total amount of $\ 30,075.84; those payments represent $822 / 7$ weeks of benefits covering a period from August 31, 1999 through March 28, 2001.

The claimant and the employer/insurer (Roloff Trucking/Continental Western Insurance Company) further agree and stipulate: that on or about October 16, 2003 Ray Gerritzen, Attorney for Claimant, made a demand for the difference between what claimant was paid and an alleged $\ 7000.00 amount due plus interest at 10 percent per annum under

$227.160^{121}$ Revised Statutes of Missouri. On 11/25/03 Continental Western's Group check number 0210020359, dated $11 / 13 / 03, in the amount of \ 2,378.88 was sent to Mr. Rothschild. The check noted: TTD rate correction, 82.27 weeks, $8 / 31 / 99 through 3 / 28 / 01$. But there was no payment of any interest due on the money, and the claimant asks for an interest award of 10 percent on $\ 2,378.88 from $3 / 28 / 01$.

Additional/clarifying comment by the employer/insurer (agreed to by the claimant): Roloff and it's insurer paid the amount of $\ 344.98 for TTD instead of the amount of $\ 373.89, which was found to be eventually the correct rate; and paid that amount in a timely fashion with the underpayment being the difference between $\ 373.89 and $\ 344.98. After the claimant's attorney had brought it to the attention of the employer/insurer attorney and he in turn brought it to the attention of the insurer, the insurer performed an investigation and discovered the wage rate had been incorrect, they'd been given an incorrect wage rate. We at that point issued the check in the amount of $\ 2,387.88 representing the underpayment between the dates aforesaid that have been read into the record.

At the hearing, the claimant testified Dr. Haupt did his surgery, and then I was off work the whole time until Dr. Haupt released me back to work in March of 2001, I believe it is. March of 2001 when I went to work for Karst, Rothschild stated, he was gonna release me anyway, so I found a job. The claimant agreed that he was completely off of work from August of 1999 until March 2001, and agreed that this was all due to the injuries at Roloff. With regard to giving further treatment in March of 2001, Rothschild testified, I told Dr. Haupt my knee was still hurting and he sent me to all these other doctors -- Yadava and Peeples -which it didn't do a thing for me, and then he finally said, "Well, there's nothing more that we can do for you. You just need to go back to work.". So I found a job and I asked him to release me, and I went to work for Karst Construction. Rothschild agreed that he was asking to be awarded interest, 10 percent per annum, on the $\ 2,378.88 from March 28, 2001, the late TTD payment.

Section 287.160 RSMo 1999 states, in pertinent part:

1. Where weekly benefit payments that are not being contested by the employer or his insurer are due, and if such weekly benefit payments are made more than thirty days after becoming due, the weekly benefit payments that are late shall be increased by ten percent simple interest per annum. Provided, however, that if such claim for weekly compensation is contested by the employee, and the employer or his insurer have not paid the disputed weekly benefit payments or lump sum within thirty days of when the administrative law judge's order becomes final, or from the date of a decision by the

labor and industrial relations commission, or from the date of the last judicial review, whichever is later, interest on such disputed weekly benefit payments or lump sum so ordered, shall be increased by ten percent simple interest per annum beginning thirty days from the date of such order. Provided, however, that if such claims for weekly compensation are contested solely by the employer or insurer, no interest shall be payable until after thirty days after the award of the administrative law judge.....

The evidence in this case (including the stipulations), it is found, is that the employer/insurer paid temporary total disability benefits at a rate of $\ 344.98 per week during the period the claimant was unable to work as a result of the work related injuries, a period of the day after the work related accident through March 28, 2001. Over two years later, in a letter dated October 16, 2003 (No. M), the claimant contested the rate for the temporary total disability payments stating that there was an underpayment; the claimant, in the October 16, 2003 letter, calculated an underpayment amount of $\ 7,290.95 and made a demand for that amount with interest. The employer/insurer, it is found, contested the demanded underpayment amount after investigation, and tendered on 11/25/03 a check dated 11/13/03 in the amount of $\ 2,378.88 as full payment of the underpayment amount for the temporary total disability period of August 31, 1999 through March 28, 2001, which the claimant accepted. In Tidwell v. Kloster Co., 8 S.W.3d 585, 589 -590 (Mo.App. E.D.,1999), a factual situation similar to the case herein, the Missouri Court of Appeals Eastern District, held that in contested situations in regards to weekly benefit payments, interest is payable pursuant to Section 287.160 RSMo 1990 -- no interest shall be payable until after thirty days after the award of the administrative law judge:

"For his second point claimant contends that the Commission erred when it failed to award the stipulated underpayment of $\ 4,216.10 in temporary total disability (TTD) and ten percent interest on the underpayment from the time he was underpaid.

At the ALJ hearing the parties stipulated to employee's rate of pay and that employer underpaid TTD in the amount of $\ 4,216.10 as the result of an incorrect rate of pay. The Commission listed this amount as a stipulated underpayment in line 15 of its award, but omitted to include this amount in its award under "Compensation Payable." Employer does not contest on appeal that it owes this amount to claimant.

However, employer argues that it does not owe interest on this amount under Section 287.160.3 RSMo (Cum.Supp.1998) because it contested the compensation rate and thus the amount of the benefit payments. Section 287.160.3 provides that if the employer or insurer does not contest the claim, ten percent interest is due on all payments made more than thirty days after they are due. However, if solely the employer or insurer contests the claim, "no interest shall be payable until after thirty days after the award of the administrative law judge." Id. Employer argues that, even though it stipulated at the hearing that it had underpaid claimant by $\ 4,216.10 TTD benefits, this claim was contested because the parties had a legitimate dispute over the calculation of those benefits which was resolved by employer's agreement to pay them.

The provision that contested past due claims for weekly benefit payments bear interest from no earlier than the ALJ's award was added to Section 287.160 by amendment in 1990. In enacting that amendment the legislature abrogated that part of Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 112 (Mo. banc 1989) which held that an employee was entitled to interest from the date each individual installment of compensation was due. See Johnson v. St. John's Mercy Medical Center, 812 S.W.2d 845, 851-52 (Mo.App.1991). Prior to Martin, cases had indicated that, when the amount of compensation due is disputed, the time when payment is "due" for purposes of determining interest is no earlier than the date of the award. Johnson, 812 S.W.2d at 852; see Komosa v. Monsanto Chemical Co., 317 S.W.2d 396 (Mo. banc 1958). In this case, for claimant to recover an award of interest from thirty days after the weekly benefit installments were due, he should have made a record that the employer did not dispute the claim prior to the date of the stipulation and he should have submitted this issue at the hearing. The record does not reflect that he did either. The record shows only that the parties agreed that there was an underpayment for the unpaid weekly benefits. Once the parties stipulated at the hearing that the $\ 4216.10 was due, it became due under the statute and employer became obligated to pay that amount within thirty days, even though it was not formally required to do so under the "Compensation Payable" section of the award.

The Commission ordered that its award "shall bear interest as provided by law" which is interest pursuant to Section 287.160.3. Miller v. Wefelmeyer, 890 S.W.2d 372, 376-77 (Mo.App.1994). This opinion clarifies what interest is provided by law. As clarified by this opinion, the Commission's award of interest was not erroneous.

The Commission's award is amended to include $\ 4,216.10 in unpaid weekly compensation benefits. The award is affirmed as so modified."

It is found that in this case, the employer/insurer contested the compensation rate and thus also the amount of the benefit payments. It is found that the parties had a legitimate dispute over the calculation of the weekly benefits which was resolved by the employer's agreement to pay and the claimant's acceptance of $\ 2,378.88 as full payment of the underpayment amount for the temporary total disability benefit. It is found that the evidence reveals the employer/insurer paid the disputed amount within thirty days pursuant to the statute. Consequently, it is found that no interest is owed.

Offered into evidence in this case only by the claimant with no objection from Roloff Trucking was a bill addressed to Rothschild from West County Radiological Group in the amount of $\ 217.00; the bill indicated that it was for the service of an MRI of the upper extremity performed at St. John's Mercy Hospital - Washington, Missouri on 10/28/99 (No. O). Without objection

form the claimant, the employer/insurer noted at the hearing at that time was it's first knowledge that the claimant was going to put into issue a past medical expense; the employer/insurer further stated that it was possible this bill had been paid, and reserved the right to present evidence later if the bill had been paid. In it Memorandum of Law, Roloff Trucking argues (See, pp. 26-27) that this issue is moot, explaining that it sent to the claimant's attorney a copy of a canceled check from Continental Western Insurance Company, Roloff's insurer, dated December 10, 1999 in the amount of $\ 217.00 made payable to West County Radiological Group; Roloff further stated that in the cover letter it had informed claimant's counsel that unless Roloff heard from the claimant to the contrary, Roloff was "going to presume that this issue would not need to be briefed in the Memorandum of Law other than to reflect that the issue had been resolved between the parties. As of this point, counsel for claimant has not indicated or responded to Roloff's counsel's letter and, therefore, this issue is now moot". In it's Memorandum of Law, the claimant argued (See, pg. 41) on the issue of liability of past medical expenses: "In view of the fact that Claimant sought Dr. Matthews only after the Employer failed to offer treatment, I order the Employer to pay the past medical bills. See (Section)287.140.1 RSMo., Slider v. Brown Shoe Co., 308 S.W.2d 306 (Mo.App. 1958); and Hendricks v Motor Freight Corp., 570 S.W.2d 702 (MoApp. 1978)."

One medical bill, without objection, was submitted into evidence in this case - a bill West County Radiological Group in the amount of $\ 217.00 for a 10/28/99 MRI of the upper extremity apparently sent to the claimant. Dr. Thomas Matthews, M.D. testified that he began treating Rothschild on 10/20/99 for right knee and left shoulder injuries as a patient, and agreed that the date of injury Rothschild relayed to him was August 30, 1999. The doctor stated that Rothschild's "examination was primarily confined to his left shoulder and his right knee.......His range of motion of his shoulder was felt to be excellent. He was tender overlying the lateral or outside aspect of the shoulder. There was also some tenderness noted overlying the acromial clavicular joint." (Matthews Dp. pg. 12) Dr. Mathews stated that the injection was given at the office visit, and that an MRI was obtained "which showed he had a compete tear, somewhat surprising, of his supraspinatus tendon, which is the foremost rotator cuff tendon that gets ruptured usually". (Matthews Dp. pg. 16)

Considering the evidence, it is found that there is a sufficient basis upon which to award compensation for the West County Radiological Group bill of $\ 217.00 for services on 10/28/99. See, generally, Martin v. Mid-America Farm Lines, 769 S.W.2d 105 (Mo. banc 1989); and Meyer v. Superior Insulating, 882 S.W.2d 735, 738 (Mo.App. E.D. 1994). Roloff Trucking is found liable for this bill, and if unpaid shall make payment, pursuant to Section 287.140.1 RSMo which states, in pertinent part:

"In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. Where the requirements are furnished by a public hospital or other institution, payment therefore shall be made to the proper authorities."

The claimant is seeking future medical care for injuries sustained as a result of the August 30, 1999 work related injury herein while working for Roloff Trucking. It has been determined in this Award that as a result of the August 30, 1999 work related accident at Roloff Trucking, the clamant sustained the injuries of: a. left shoulder, a complete tear of the supraspinatous tendon, the foremost rotator cuff tendon; b. a pre-existing condition in the claimant's knee of osteochondritis desiccants (OCD) was aggravated or exacerbated becoming a Grade III lesion in that a fragment of cartilage bone in a defect of the medial femoral condyle became loose or displaced completely.

Testifying about the present condition of his right knee, Rothschild agreed that he is asking for an award of treatment for the right knee, including surgery on the right knee, if needed. However, when asked at a different point during his testimony if he was asking for more surgery on his right knee if deemed proper by an orthopedic surgeon, Rothschild responded - I don't want this knee replacement that they got, I want to try to do something else; that's what I was hoping for, they would come up with something better than the knee replacement; I'm scared to death of the knee replacement because nobody I know has got any good results out of it. The claimant agreed, though, that he is asking for an award of further medical treatment on his right knee.

Rothschild testified about the problems with his left shoulder. The left shoulder is just kind of sore all the time and it's weak, Rothschild said, but I just limit what I do, lifting stuff up above my head or whatever. Like putting these books on the shelves, if I move it just the right way I could put them up there; but I get to that one point where that pain is, I guess it's where that tear is in there and its never been fixed. Rothschild agreed that this has been true for the left shoulder since falling off the truck in 1999 at Roloff. I can reach the back of my neck with the fingers of my left hand, the claimant stated, it right to the point where it hurts, but I can reach it. During cross examination, Rothschild was queried - isn't it true that his left shoulder didn't get worse while working for Karst, his employer after Roloff Trucking. It did not get worse while I was working for Karst Construction, Rothschild responded, but it did get worse.

On cross examination, Rothschild agreed that when he was seeing Dr. Haupt prior to going to work for Karst, he and the doctor did have a conversation about a knee replacement. Dr. Haupt said in the future you may need a knee replacement is what he told me, Rothschild further stated. Rothschild agreed that he had indicated his knee had gotten progressively worse working for

Karst, and that this was also true for his employments with BAM and Integrity. Agreeing that he had testified earlier his left shoulder really did not get worse in his employments with Karst, BAM and Integrity, Rothschild explained that this was because he was using his right arm instead for putting a load up. I was using my right arm then to carry the load of my left; my right arm was my good arm, the claimant stated. Rothschild was asked if his left shoulder had improved since he had stopped working. No, it hasn't, Rothschild answered, now I've got trouble sleeping on it; even if I lay on that side it's real sore. My right knee has gotten worse; it has progressed since I left Integrity, Rothschild indicated. They call it degenerative, he said.

Considering the medical evidence, Dr. Thomas D. Matthews, M.D.'s treatment records (See Attachments, Claimant's Exhibits Nos. B and B-1) began with an October 20, 1999 evaluation report to the workers' compensation insurance company in which the doctor wrote that Rothschild presented for evaluation of right knee and left shoulder pain he sustained when he slipped and fell out of his truck bed in late August sustaining a twisting injury to his right knee and left shoulder. In an 11/3/99 entry, Dr. Matthews wrote that a complete tear of the supraspinatus at the insertion was evident on the MRI; the patient is advised to consider rotator cuff repair, the doctor wrote. In an 11/10/99 entry Dr. Matthews wrote that he had discussed options of treatment including outpatient physical therapy, injections, etc. "He would like to try his chiropractor for awhile", Dr. Matthews wrote, and "I told him that was ok, however if symptoms increased or got worse arthroscopic evaluation and decompression and rotator cuff repair would be recommended". In a 12/08/99 entry, it was noted that Rothschild reported that his shoulder had improved, but his right knee had increasing pain and loss of motion. Dr. Matthew's record from this point on reflected treatment to the right knee, indicating that the doctor performed on 01/19/00 right knee arthroscopy on Rothschild. Dr. Matthews saw Rothschild, post-operative the second right knee surgery on 07/12/00, and noted that Rothschild was three weeks out from his scope and second debridement of his medial femoral condyle defect. Dr. Matthews' record indicates that he next saw on 01/15/02, and the doctor wrote that Rothschild was advised to continue a range of motion program on his own level and let his knee calm down at that time; the doctor wrote that he wanted to see Rothschild back in one month for recheck.

The next entry in Dr. Matthews' record was a 01/15/02 entry in which the following was written:

He comes in today for an opinion regarding his right knee. He apparently had an osteochondral transfer graft to the medial femoral condyle by Dr. Haupt in St. Louis last year. Since that time, his knee has been bothering him somewhat with occasional swelling and stiffness and inability to squat and inability to get down on the leg. His other knee is bothering him as well.

Dr. Matthews' assessment on 01/15/02 was - Posttraumatic osteoarthritis of the right knee. The doctor wrote the following in the treatment plan section of the 01/15/02 entry:

Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee.......I believe he does have a 50-60\% disability of the knee, but my most significant concern is the problems in the future.

In a May 2002 report to the claimant's attorney, Dr. Matthews included:

Further treatment and/or therapies could include arthroscopic evaluation of the knee, partial and/or total knee replacement, in addition to, the normal and customary office visits, x-rays, physical therapy, etc. I believe that these treatments are more likely than not to occur in the future, for this gentleman suffers from a progressive degenerative problem with his knee, which undoubtedly will continue and be in need of medical attention in the future....

In the next treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit........

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote of the treatment given that day, and that Rothschild was to return in three weeks. The doctor further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr.

Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visit, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

Dr. Matthews further wrote in the 10/11/02 entry: "The patient again is advised either uni or total knee arthroplasty in the future when his insurance issue is resolved. He can return to see me back on a prn basis. If any problems develop he will let me know." Dr. Matthews prepared a September 12, 2003 opinion letter to the claimant's attorney which included the following:

As I discussed with you later employment (subsequent to the August 1999 injury) which supposedly caused Mr. Rothschild to bend, stoop, twist and run on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

Dr. Haupt, who treated the claimant for injuries sustained in the August 30, 1999 work related accident and who performed the third right knee surgery in 2000, wrote in a March 20, 2001 examination letter: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent $(6 \%)$ at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent ( 17 % at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

"He has been advised to wear the valgus unloading brace for a prolonged period of time to help symptomatic relief of his discomfort", Dr. Haupt further wrote. Dr. Haupt wrote that he would defer further medical management to Dr. Yadava. Dr. Yadava, in his last examination report of March 28, 2001, wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. Dr. Yadava wrote the following in the Summary section of his March 28, 2001 report:

...He states he is doing better. He does have objective improvements in the previous areas of injection. The only recommendations I would have for him at this time is to continue with his VMO strengthening exercises, utilize his bracing as directed and continue with his hamstring and gastroc soleus flexibility program. There is no formal physical therapy I feel is indicated. There are no other diagnostic studies or therapeutic intervention I feel is indicated. I do not think he needs ongoing use of medications. He does tell me he is anxious to return to his full time, unrestricted capacity. I think it is safe and appropriate. I did tell him it is reasonable to expect to return to work in a comfortable fashion I think there is some deconditioning that has occurred. He may have increased soreness that should be well controlled through conservative mechanisms as outlined in detail here in the office. I think he is at maximum medical improvement from a rehabilitation perspective. There are no other diagnostic studies or therapeutic intervention I feel is indicated.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001. Dr. Shawn L. Berkin, D.O., who evaluated Rothschild in May 9, 2001, for the purpose of rating injuries sustained on August 30, 1999, wrote in the conclusion section of his May 9, 2001 report: "The patient is currently employed as a trim carpenter for Karst Construction and is receiving no treatment for his injuries at this time". Dr. Berkin assessed permanent partial disability for the left shoulder and for the right knee. Dr. Berkin's treatment recommendations were:

The patient continues to have significant symptoms to his right knee and I recommend the continued use of his knee brace in order to stabilize his knee. I recommend that the patient be restricted from prolonged standing or sitting and that he be restricted from kneeling, stooping or climbing.

With respect to his left shoulder, the patient continues to remain symptomatic and indicated that he does not wish to have surgery on his shoulder because he feels that surgery has not really helped his knee. With respect to his left shoulder, I recommend the patient be restricted from lifting with his left arm no more than twenty-five pounds from the floor to the

waist and fifteen pounds from the waist to the shoulder. I recommend that the patient avoid working with his left arm above the level of his shoulder.

The patient has indicated that he is currently working as a trim carpenter but if he continues to have symptoms at his current level of activity, I recommend that he consider alternative employment that his less physically demanding. (sic)

Dr. J. W. Morrow, D.O. prepared an October 8, 2002 evaluation and rating report concerning injuries Rothschild had sustained in the August 1999 work related injury. Dr. Morrow's written recommendations were restrictions for the left shoulder; for the right knee, restrictions were made, and Dr. Morrow also wrote the following: "The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the right knee, particularly the medial knee joint space where he is approaching bone on bone".

Expert medical opinion testimony was in evidence. Dr. Matthews, when asked if Rothschild's knee would ever be the same as it was prior to the fall of August 30, 1999, answered "No", and explained: "The sequela of the knee surgery is a progressive arthritic condition." (Matthews Dp. pg. 30) Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of any objective findings intraoperatively, and also that his review of the surgical note of Dr. Haupt performed later in 2000 revealed a progression of problems in the knee from the June 2000 surgery. Dr. Matthews noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) Dr. Matthews agreed that he had talked about the possibility of future medical care, including total knee arthroplasty, in January 2002 and in his May 15, 2002 report. The doctor agreed that this future treatment would be because of the progressive nature of Rothschild's condition. When again queried if the progressive nature of the condition was going to happen without regard to activities, Dr. Matthews responded "(I)n so far as, the activity will, in my words, exacerbate and/or accelerate the condition". (Matthews 11/19/04 Dp. pg. 111) The doctor admitted that the condition was going to get worse "with just activities of daily living, getting in and out of the car, driving, walking". (Matthews 11/19/04 Dp. pg. 112) Agreeing that it was his stated belief that in someone who does moderate activity or works as a laborer the condition would progress faster, Dr. Matthews further stated - "I don't know if it would precipitate it....Progress it, yes". (Matthews 11/19/04 Dp. pg. 112) October 22, 2003 was the last time I saw Rothschild, Dr. Matthews agreed. When asked, wasn't it your opinion at that time that Rothschild eventually might need a knee replacement but he wasn't at that stage yet, Dr. Matthews answered - "That's correct.". (Matthews 11/19/04 Dp. pg. 120) Dr. Matthews stated that he believed the fall off of the truck on August 30, 1999 was the cause of the left rotator cuff injury Rothschild sustained. Dr. Matthews stated that at the current time he was not sure as to Rothschild's symptoms in his left shoulder, but further testified: "Most authorities would feel that or believe that an untreated rotator cuff tear will also progress to develop what's called posttraumatic or rotator cuff arthropathy, which is basically arthritis of your shoulder." (Matthews Dp. pg. 30) Dr. Phillip George evaluated Rothschild's in June 2004 and testified: "I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10) Dr. George agreed he stated that in regards to the surfaces of the knee, these could get sore with activity. In regards to activities such as trucking and whether or not it contributed to any additional problem, Dr. George testified: "I would suggest that those activities would not alter the natural -so-called natural history of this particular condition, which is one of progressive deterioration with advanced pain." (George Dp. pg. 15) (Ruling: Roloff Trucking's objection is overruled. George Dp. pg. 15) Dr. George opined: "Certainly the effects of (the August 1999) injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans." (George Dp. pg. 21) (Ruling: All objections are overruled. George Dp. pg. 20) In regards to the left shoulder, Dr. George stated: "The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not want surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that." (George Dp. pg. 11) Dr. Rende evaluated Rothschild on June 2, 2004 and testified: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) Dr. Rende further testified: "I felt that this gentleman would be an excellent candidate for a knee replacement or partial knee replacement." (Rende Dp. pg. 16) During cross examination by the claimant, Dr. Rende agreed that his opinion the claimant needed either a total or partial knee replacement

was attributed to the injury back in August of 1999 when Rothschild fell off the truck. During cross examination by Roloff Trucking, however, Dr. Rende admitted that after viewing the 9/3/99 x-ray, it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33) Dr. Cohen evaluated Rothschild in January 2004, and his diagnoses included the following: a. regarding the primary work-related injury of 8-30-99 --Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear, and Left shoulder rotator cuff tendon tear and impingement; and b. Due to an overuse disorder (cumulative trauma disorder) up through 9-101, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition. Dr. Cohen's conclusions included the following:

It is further my medical opinion that within a reasonable degree of medical certainty, he is going to need additional treatment in the future. He is going to need a total right knee joint replacement. Generally these last 7-15 years and more likely than not, he is going to ultimately need a second total knee replacement. Also, he needs to see an orthopedic surgeon for consideration for surgery on both of his shoulders.

During cross examination, Dr. Cohen stated that he is not an orthopedic doctor. Dr. Cohen admitted that he did not recall at that time of his deposition if in the records surgery had been recommended for the left shoulder. During his explanation as to why he did not assign any pre-existing disability to the right knee, Dr. Cohen testified:

"So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen stated that he had recommended a total knee replacement based on severe pain in the knee, the findings in the knee and the medical situation that it is a bone on bone situation. Dr. Cohen was asked when in his opinion did Rothschild become a candidate for a total knee replacement, and the doctor answered:

"That time frame would be sometime in 2002 at the point that the knee progressively became more painful and that it appeared clear that he was not going to improve regarding the condition from the knee without the knee joint replacement." (Cohen Dp. pg. 40)

Dr. Cohen agreed that in January of 2004 he made the recommendation for a total knee replacement based on x-rays taken in 2002. Dr. Cohen was asked to explain what in his opinion caused the need for the total knee replacement: "The need of the total knee joint replacement is due to the acute injury as well as the repetitive or overuse injury that he has had to his knee, all of that." (Cohen Dp. pg. 54) The doctor agreed that he thought it was due to the combination of the acute injury and the subsequent employers. (Ruling: Claimant's objection is overruled. Cohen Dp. pg. 54; Second Injury fund's objection is overruled. Cohen Dp. pg. 54) Dr. Cohen agreed that the history he received from Rothschild was that his right knee complaints got substantially worse after each of the subsequent employments. It was noted that Dr. Cohen had stated earlier that weight was a factor in degenerative changes in Rothschild's knee; when asked if he had put Rothschild's height and weight in his reports, the doctor answered - "No, I didn't." (Cohen Dp. pg. 72) Dr. Cohen stated that he did not recall Rothschild's weight or height. The doctor agreed that if the records reflected Rothschild was heavy, 260 pounds, that would also contribute to the general deterioration of the right knee. Dr. Cohen agreed that Dr. Matthews, in January 2002, noted that x-rays at that time showed good joint space, which actually means that in January 2002 Rothschild wasn't bone on bone. Later during cross examination, Dr. Cohen stated he did not believe that Rothschild was in need of a total knee replacement in January of 2002. The doctor was asked if he expected Rothschild's condition to change in the future without further medical attention. "He will, more than likely than not, have increased arthritic changes in the knee and in his shoulder and may have increased pain from that", Dr. Cohen answered. (Cohen Dp. pg. 84) The doctor agreed that this was because of the nature of arthritic changes and its progressive nature. The doctor was asked if he had stated that in a large majority of patients, a degenerative condition such as Rothschild has would probably progress anyway without regard to subsequent activities. Dr. Cohen answered: "Yes. In regards to the knee." (Cohen Dp. pg. 90) Dr. Cohen agreed that in May 2002 Rothschild suffered from a progressive degenerative condition. Dr. Cohen was queried - so without regard to any subsequent employment after May 2002, Rothschild's knee was getting worse and chances are he was going to need a total knee replacement. "That's correct", Dr. Cohen responded. (Cohen Dp. pg. 96) Dr. Cohen agreed that if subsequent activities brought on the need for further treatment or a knee replacement a little quicker or sooner than expected then those work activities merely precipitated the knee for that treatment. (Ruling: Roloff Trucking's objection is overruled. Cohen Dp. pg. 97) Dr. Cohen agreed that Rothschild's symptoms probably further degenerated since his last date of employment. Dr. Cohen agreed, during cross examination by Karst, that with regard to the left shoulder (as also with the right knee) it was his opinion the subsequent employments lumped together aggravated the left shoulder difficulties Rothschild incurred in 1999.

In Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo.App. S.D. 2001) the Court noted:

"The right to medical aid is a component of the compensation due an injured worker under §287.140.1. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App. S.D. 1996). That statute entitles the worker to medical

treatment as may be reasonably required to cure and relieve from the effects of the injury. Id. This means treatment that gives comfort or relieves even though restoration to soundness [a cure] is beyond avail. Id., Future medical care must, however, flow from the accident before the employer may be held responsible for it. Modlin v. Sun Mark, Inc., 699 S.W. 2d 5, 7 (Mo.App. E.D. 1985)." Sullivan, 35 S.W.3 ${ }^{\text {rd }}$ at 888.

"Where future medical benefits are to be awarded, the medical care must of necessity flow from the accident, via evidence of a "medical causal relationship" between the injury from the condition and the compensable injury, before the employer is to be held responsible. Modlin v. Sun Mark, Inc., 699 S.W.2d 5, 7 (Mo.App.1985). It is not necessary for a claimant seeking future medical benefits to produce conclusive evidence to support the claim, but the employee need only show a need for additional medical treatment by reason of the compensable accident as a reasonable probability. A mere possibility of a need for future medical care does not constitute substantial evidence to support an award, but if a medical expert testifies as to there being a reasonable probability (founded on reason and experience which inclines the mind to believe but leaves room for doubt) for the treatment, then it may be ordered. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App.1996)." Mickey v. City Wide Maintenance, 996 S.W.2d 144, 149 (Mo.App. W.D.,1999)

It is found, considering the evidence, that in regards to the claimant's right knee, the substantial and competent medical evidence and medical opinions establish that the claimant reached maximum medical improvement for the August 30, 1999 work related right knee injury on or about March 2001 (See, Drs. Matthews and Yadava's records), with a causal link for a need of future medical care of a knee brace, only (See, Drs. Haupt, Yadava and Berkin). It is found that there is no competent medical opinion indicating a need for future medical care of a knee replacement as a result of the August 30, 1999 work related right knee injury herein: a. Dr. Matthews' opinion is that the reason for a total right knee replacement is the progressive nature of the OCD and arthritic conditions which would happen in spite of trauma, that work would help progress the conditions, (as would just activities of daily living, getting in and out of the car, driving, walking), but would not precipitate or be the cause of the need for a total knee replacement, and that as of October 22, 2003 when he last saw Rothschild he wasn't at the stage yet where he needed a knee replacement; and b. Dr. George's stated opinion was that Rothschild was at maximum medical improvement well in the past for the August 30, 1999 right knee injury of an aggravation of preexisting osteochondritis dissecans with three surgeries, and that activities such as trucking would not alter the natural history of this particular condition which is one of progressive deterioration with advanced pain. c. Even Dr. Cohen's opinion, (which is found not to be controlling in that it is based on assumptions not supported by the substantial weight of the evidence, i.e. a belief that there was no pre-existing OCD condition), was that the future need for a total knee replacement was due to the combination of the acute injury on August 30, 1999 and the repetitive or overuse injury Rothschild had to his right knee; Dr. Cohen noted, though, that Rothschild suffered from a progressive degenerative condition which would probably progress anyway without regard to subsequent activities, and stated that after Rothschild's last date of employment his knee would get worse. d. Dr. Rende offered the only opinion that Rothschild needed either a total or partial knee replacement attributable to the injury back in August of 1999 when Rothschild fell off the truck, but Dr. Rende's opinion is found not to be controlling in that his opinions were based on a belief that Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from the August 19, 1999, injury and, after viewing a 9/3/99 x-ray, Dr. Rende admitted it was now his opinion Rothschild had preexisting osteochondritis dissecans at the time of the August 1999 accident; Dr. Rende never expressed an opinion on the need for a total or partial knee replacement based on the new information and his admission.

It is found, considering the evidence, that in regards to the claimant's left shoulder, the substantial and competent medical evidence and medical opinions establish that the claimant reached maximum medical improvement for the August 30, 1999 work related left shoulder injury

on or about March 2001; Dr. Matthews' 11/10/99 entry noted that he had discussed options of treatment including outpatient physical therapy, injections, surgery, etc. and that Rothschild stated that he wanted to try chiropractor, and in a 12/08/99 entry it was noted that Rothschild reported that his shoulder had improved, and treatment for the left shoulder was never indicated again in Dr. Matthews' record; Dr. Haupt wrote on or about March 20, 2001 that the left shoulder possible full thickness rotator cuff tear had been effectively treated with conservative management, and the doctor assessed a percentage of permanent partial disability. It is found that the medical evidence and medical opinions put into question the claimant's credibility in regards to ongoing problems or a need for future treatment for his left shoulder as a result of the August 30, 1999 work related injury. It is found that there is no substantial and competent medical evidence or medical opinion indicating a need for further medical treatment as a result of the August 30, 1999 work related left shoulder injury: a. Dr. Matthews testified that at the current time he was not sure as to Rothschild's symptoms in his left shoulder and further stated that the belief among most authorities was that an untreated rotator cuff tear would progress to develop arthritis of your shoulder, and Dr. Matthews gave no recommendations in regards to treatment for the left shoulder; and b. Dr. George acknowledged that the August 30, 1999 work related accident resulted in a left shoulder injury of a tear of the supraspinatus tendon, and Dr. George noted that Rothschild decided he did not want surgery, that Rothschild had relayed to him that he had a condition in his left shoulder he felt he could live with, and Dr. George stated that he would agree with that. c. Even Dr. Cohen's opinion of a need for consideration of surgery, (which is found not to be controlling in that the doctor stated that he s not an orthopedic doctor and he would defer to the opinion of an orthopedist), was based on an opinion that the claimant sustained an overuse disorder (cumulative trauma disorder) through 9-1-01, December 2001 and 9-1-02, and stated it was his opinion the subsequent employments lumped together aggravated the left shoulder difficulties Rothschild incurred in 1999; again,

Dr. Cohen gave no definitive opinion as to a need for surgery on the left shoulder, the doctor merely stated that Rothschild "needs to see an orthopedic surgeon for consideration for surgery on both of his shoulders"; additionally, Dr. Cohen admitted that he did not recall at that time of his deposition if in the records surgery had been recommended for the left shoulder.

In light of the above findings, it has been determined that the substantial and c0mpetent evidence establishes that as a result of the August 30, 1999 work related accident the claimant is need of future medical care of a brace for his right knee.

Rothschild, the claimant, testified that prior to August 30, 1999 I had no problems or difficulties referable to my left or right shoulder, my right knee, nor my left ankle. Rothschild testified that after the August 30, 1999 work related injuries to his left shoulder and right knee while working for Roloff Trucking and treatment which included three surgeries to the right knee, his knee was still hurting and it would be grinding, popping and swollen all of the time. The claimant testified that continuing problems from his left shoulder injury were that he had difficulty lifting his left arm, and difficulty with lifting objects with the left upper extremity due to the shoulder. Rothschild agreed that in March 2001 both treating doctors Dr. Haupt and Dr. Yadava stated that he was at maximum medical improvement for his injuries and released him to full, unrestricted duty. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed, during cross examination; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fire-proof doors and other heavy items. While working for Karst the left shoulder was probably the best thing out of everything but I had to do all this heavy carrying, Rothschild stated. My right knee were just getting worse and worse the whole time, he said, we had to keep carrying all these heavy doors and equipment. It was mainly pain in my right knee, he said, I had to take breaks and Joe Karst had the laborers do a lot of the hard lifting and carrying for me and stuff. I worked an 8 -hour day at Karst, the days we worked usually, Rothschild stated. It was a full-time job but there was days that you didn't work and there was times that there was nothing to do; something didn't come in or something like that, he said. Rothschild agreed that he had to do walking stairs, explaining that with regard to his right knee he would step up with his left foot first when he had to do that. I tried to avoid stairs, the claimant said. They had the laborers do a lot of the hard lifting and carrying, stocking the rooms with doors and things like that because I couldn't do it, the claimant said. Joe Karst worked with me getting these houses done, Rothschild stated, Joe would hold something up for me; he wasn't really a carpenter or anything, but he would help me do different things like carry something in the room. Rothschild agreed that Joe was there and had on several times told him to sit down and take a break, or something like. He saw I was hurting, Rothschild said. My work at Karst ended because Karst had some pretty bad financial troubles, Rothschild said, they actually ended up losing everything and went out of business. I then went to work for BAM Construction Company where I worked approximately from October 1, 2001 to about December 30, 2001, he said. I was a finish carpenter for BAM Construction, he said, and my work entailed my physically doing such things as hanging of doors, the vanities, doing baseboard, stocking the rooms with the trim. At BAM I worked from 6:00 a.m. to 2:00 or 2:30 p.m., or 7:00 a.m. until 3:00 p.m., Rothschild said, and pretty well five days a week. He agreed that at that time he was making $\ 30.00 an hour. At BAM you had to put the baseboard in, which required bending down, and the climbing the stairs and everything; just everything got worse, Rothschild answered. My knee got more swollen, the claimant stated. I didn't have that much trouble with my left shoulder, Rothschild said, I could use my right shoulder to pretty well take the load. I never could lift the left shoulder right all the way then, Rothschild said, I didn't have the strength in it after that accident, but I got most of it back through the therapy that I took. It never got back to the way it was before I fell off the truck at Roloff, the claimant said. The job with BAM ended when the Lenox Hotel renovation ended, which would have been the end of December, Rothschild agreed. I did not work anywhere from the end of December, 2001 till August of 2002, the claimant said, and during those roughly seven months I just did exercises at home and I tried to find some jobs. I put my name in the carpenters hall and it was 500 carpenters out and I just had to wait, and drew unemployment until they called me back, he said. Rothschild agreed that he felt he was able to work at that time. The claimant agreed that in August of 2002 he went to work for Integrity Installations. Working for Integrity mainly affected my knee, the claimant said.

During cross examination, the claimant was asked - wasn't it true that he did not work fewer hours while at Karst due to pain or problems he was having from the injuries received in the August, 1999 accident at Roloff. Well, we had shorter hours, Rothschild responded, but admitted that he didn't take fewer because he was physically unable to. I had to work, the claimant said. Rothschild agreed that he had testified earlier that after Karst Construction got into financial trouble he was the last worker out the door. Rothschild stated that his right knee did not give way while he worked for Karst Construction during those seven to nine months he was at work. In that job I did go up and down stairs, but not too much, he admitted, and I was carrying heavy objects, including heavy fire doors. Rothschild agreed that after working for Karst Construction he went to work for BAM, and that was full time, full duty at the Lenox Hotel where he was trimming hotel rooms and carrying heavy objects. He agreed that he was also going up and down stairs and stocking rooms with materials, and that whole time his right knee did not give way and cause him any injuries. It was the same type of work I did for Karst Construction; Rothschild agreed, and I earned $\ 30.00 an hour, which was approximately triple what I was earning as a truck driver for Roloff Trucking. I worked for BAM for about three months until the

job ended and I was laid off, the claimant agreed, I didn't leave BAM Construction due to the problems I was having with my injuries from the August 1999 accident at Roloff. To the best of my ability I was able to do all the work that BAM gave me, Rothschild said. I was in great pain when I was doing it but I had to do it, he said. He agreed that he would have continued working for BAM if he had not been laid off. Rothschild agreed that he had testified that after the BAM job and he was laid off, he continued to look for work but construction was slow in the St. Louis area at that time. If somebody had offered me a job doing carpentry I would have taken the job, Rothschild stated. He agreed that in July, 2002 he went to work for Integrity Installations doing carpentry type of work, and this job involved heavy lifting, and doing work with heavy equipment and with heavy display cases. Rothschild agreed that he worked for Integrity from some time in August 2002 until September 24, 2002, and that he earned $\ 30.00 an hour, triple what he made for Roloff. Rothschild agreed that when he left employment with Integrity on September 24, 2002 he again applied for unemployment compensation and received the full 17 weeks of unemployment compensation at that point. Rothschild agreed that when Dr. Haupt released him in March 2001 he did not begin to get any additional medical care until he went back to Dr. Matthews some time in 2002.

Considering the medical opinions, Dr. Haupt, who treated Rothschild for the August 30, 1999 work related injuries assessed the following permanent disability on March 20, 2001:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent ( 6 % ) at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent (17\%) at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

Dr. Berkin evaluated Rothschild on May 9, 2001 in regards tot eh August 30, 1999 work related injuries, and Dr. Berkin's assessment as to disability was:

a. A permanent partial disability of 30 % of the left upper extremity at the level of the shoulder for the rotator cuff tear of the left shoulder associated with an impingement syndrome.

b. A permanent partial disability of 55 % of the right lower extremity at the level of the knee for the right knee strain associated with tears of the medial meniscus and the anterior cruciate ligament and an osteochondral lesion involving the medial femoral condyle necessitating three surgical procedures on his right knee. I feel the patient has an additional permanent partial disability of 10 % of the right lower extremity at the level of the knee for the degenerative arthritis of the right knee that pre-existed his injury which to my knowledge, has been asymptomatic prior to his injury.

Dr. Morrow evaluated Rothschild in October 2002 and assessed the following:

Based upon this examination, there is a 40 % permanent partial disability of the left upper extremity at the level of the shoulder attributable to the injury of 8-29-99.

Based upon this examination, there is a 65 % permanent partial disability of the right lower extremity at the level of the knee. Of the 65 %, we allow 321 / 2 % preexisting with the possibility of the preexisting osteochondritis dessicans. Even though asymptomatic immediately prior to the injury in question according to the patient, and the remaining 321 / 2 % due to the aggravation of the injury in question and the necessity for the three procedures that had been performed arthroscopically, two by Dr. Matthews and one by Dr. Haupt.

Dr. Morrow wrote of his recommended restrictions, and also wrote the following:

The combination of the disability of the left shoulder and the right knee would provide a greater overall disability than their simple sum. I would defer employability to a vocational expert in that regard.

Dr. Matthews, on 01/15/02, wrote: "I believe he does have a 50-60\% disability of the knee, but my most significant concern is the problems in the future." At his deposition, Dr. Matthews was asked his opinion of whether or not he felt Rothschild was able to work or get a job, and the doctor answered:

"I'll just be completely honest about this. I told Mr. Rothschild at some time, not documented in any of my notes, but I remember the conversation. 'Charlie, you're gifted; you have carpenter skills. You shouldn't be lifting and pulling heavy objects. You probably ought to be making cabinetry and having a shop and doing that sort of work, but I don't think you ought to be framing and installing and lifting.' And that conversation took place. And, as I say, I tried to counsel him during this process of his knee, and that's where we've left it.

"I think - and this is speculative. I think a contractor that frames houses would have a hard time hiring Charlie Rothschild. However, I think a contractor that has a small cabinet shop or more precise work that is - doesn't have the

heavy labor requirements may find his skills beneficial." (Matthews Dp. pp. 47-48) (Ruling: Employer/Insurer Roloff's objection on grounds of Seven Day Rule is overruled. Matthews Dp. pg. 48)

Dr. Rende testified: "I felt he had a permanent partial disability of his right leg at the level of his right knee of 30 percent as a result of the osteoarthritis dissecans injury." (Rende Dp. pg. 15) The doctor agreed that this assessment to the right knee was for the overall condition at the time of his evaluation of Rothschild on June 2, 2004. Dr. Rende stated that he had reached an opinion on Rothschild's ability to work, and stated: "I felt that the patient was able to perform only light duty activities." (Rende Dp. pg. 13) The doctor noted that the restrictions necessary for Rothschild were that he shouldn't be allowed to kneel, squat, climb or lift repetitively over 50 pounds. Dr. Cohen wrote of his conclusions regarding the primary work related injury in the January 15, 2004 report:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99.

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

It is my further medical opinion that within a reasonable degree of medical certainty, his pre-existing conditions or disabilities combine with the primary work-related injury to create a greater overall disability than their simple sum and that due to this combination of disabilities, Mr. Rothschild is permanently and totally disabled and not capable of gainful employment. It is further my medical opinion that his pre-existing conditions or disabilities were a hindrance or obstacle to his employment or re-employment.

During cross examination, it was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "......I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Assuming that Dr. Matthews' note was correct that Rothschild did have a preexisting condition of osteochondritis dissecans, Dr. Cohen further stated: "...I don't feel, from a medical perspective, that he had any preexisting disability since it didn't bother him. He may or may not have had that condition, but assuming he even had it, it didn't appear to cause any dysfunction in the knee. So I don't find any disability unless he had a severe case of that, then it could have led to some preexisting disability." (Cohen Dp. pg. 48) The doctor was further queried if he was now testifying that there may actually be some preexisting disability to the right knee, and Dr. Cohen responded: "I would give a small percentage of disability if it is shown that he had some type of preexisting condition to his knee before that (August 1999) injury." (Cohen Dp. pg. 50) (Ruling: Second Injury Fund's objection on grounds - asked and answered - is overruled. Cohen Dp. pg 50) Dr. Cohen was asked to testify as to what his opinion of this disability would be, the doctor answered: "Approximately 2 to 3 percent." (Cohen Dp. pg. 53) (Ruling: Second Injury Fund's objection is overruled. Cohen Dp. pp. 50-51; and Claimant's objections are overruled. Cohen Dp. pp. 51-52)

The claimant is seeking permanent partial or permanent total disability benefits. Section 287.020.6 RSMo defines "total disability": "The term 'total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The Court in Carron v. Ste. Genevieve School Dist., 800 S.W.2d 64, 67 (Mo.App. E.D. 1990) noted:

The test for permanent total disability in Missouri is employee's ability to compete in the open labor market in that it measures her prospects for returning to employment. Patchin v. National Super Markets, Inc., 738 S.W.2d 166, 167[3] (Mo.App.1987). The central question is whether any employer in the usual course of business would reasonably be

expected to employ employee in her present physical condition. Crum, 769 S.W.2d at 133."

It is found that in this case, the evidence reveals that the claimant was hired by three separate employers subsequent to the work related injury herein and worked as a carpenter in each of those employments earning a larger salary than when working for the employer herein Roloff Trucking. Additionally, it is found that there is no medical opinion that the claimant is permanently and totally disabled as a result of only the August 30, 1999 work related injuries. Consequently permanent total disability as a result of the August 30, 1999 work related injuries and disabilities cannot be found.

Considering the evidence, it is found that it supports an award of permanent partial disability as a result of the August 30, 1999 work related accident and injuries as follows: 50 % of the right knee; and 20 % of the left shoulder.

It is found that there is no medical opinion that the claimant is permanently and totally disabled as a result of only a combination of the August 30, 1999 work related injuries with any preexisting disabilities. Consequently, Second Injury Fund permanent total disability liability is denied. Section 287.220 RSMo 1993.

It is found that there are medical opinions of preexisting disability to the right knee. There is, however, no evidence of treatment to the right knee prior to August 30, 1999 and no evidence of the right knee being a hindrance or obstacle to the claimant's employment prior to the August 30, 1999 work related accident. Consequently, Second Injury Fund permanent partial disability liability is denied. Section 287.220 RSMo 1993.

In light of the above findings, permanent partial disability is awarded as: [( $50 \% \times 160 weeks =80 weeks; 80 weeks x \$ 303.01 / week =\$ 24,240.80]+[(20 \% \times 232 weeks =46.4 weeks; 46.4 weeks x \$ 303.01=\$ 14,059.66]=\ 38,300.46.

There is medical opinion in this case of a synergistic effect due to the combination of the August 30, 1999 work related injuries to the right knee and the left shoulder. Dr. Morrow opined: "The combination of the disability of the left shoulder and the right knee would provide a greater overall disability than their simple sum." In Eagle v. City of St. James, 669 S.W.2d 36, 43 (Mo. App. 1984) the Court held that the language of Section 287.190.3 RSMo -- "For permanent injuries other than those specified in the schedule of losses..." -- allowed a special or additional allowance for cumulative disabilities resulting from a multiplicity of injuries. Dr. Morrow specifically noted that a multiplicity factor was due as a result of the combination of the work related injuries to the right knee and left shoulder sustained in the August 30, 1999 work related accident. Thus it is found that as to the synergistic effect due to injuries to the right knee and the left shoulder as a result of the August 30, 1999 work related accident, the claimant is entitled to additional compensation as follows: [( 80 weeks (right knee) +46.4 weeks (left shoulder) $=126.40$ weeks)] x 10 % load $=12.64 weeks; 12.64 weeks x \$ 303.01 / week =\ 3830.05.

An Attorney's Lien was filed by the claimant's former attorney, Ronald Caimi with the Division on October 11, 2002. Attorney Caimi's firm, Brown \& Crouppen, P.C. filed a request for hearing on the attorney's lien with the Division on January 12, 2005 .

On April 1, 2005 filed with the Division was a written agreement signed by the claimant's former attorney, Ron Caimi, and the claimant's current attorneys, Ray Gerritzen and Allen H. Surinsky (co-counsels): "Parties stipulate that Brown \& Crouppen lien in $\ 3500.00 to be paid from Allen Surinsky's lien of 50 % of the fees awarded or stipulated to.". (See Court Exhibit No. 1AA for all three documents). So ordered.

The following exhibits were admitted into evidence in all four cases (except as specifically designated):

No. A: Deposition transcript of Raymond Cohen, D.O. taken on behalf of the claimant on July 14, 2004; with the attached exhibits thereto of Dr. Cohen's reports of 1/15/04 and 6/22/04, the Claim for Compensation, the 5/3/01 report of Shawn Berkin, D.O., the 10/8/02 report of J. W. Morrow, Jr., D.O. as well as the office notes of Dr. Matthews. (Second Injury Fund -- admitted subject to the objections therein)

No. B: Deposition transcript of Thomas D. Matthews, M.D. taken on behalf of the employee on October 1, 2004 with attached exhibits

No. B-1: Deposition transcript of Thomas D. Matthews, M.D. taken on behalf of the employee on November 19, 2004 (continued

No. 1AA: Attorney lien documents and agreement (Admitted into evidence in 99-112621, only)

Charles Gordon Rothschild, Jr., the claimant, testified that he was born on April 29, 1953. I graduated from high school, Washington High School, in 1971, Rothschild said. I entered the United States Air Force in 1971 and was in for three years, or until 1974 when I was honorably discharged, he stated. In the Air Force I did primarily refrigeration and air conditioning, the claimant stated. I used the GI Bill to attend East Central Junior College in Union, Missouri where I took a course in auto mechanics and machinist for just a few months. I then got jobs in air conditioning and refrigeration, Rothschild agreed, and then in 1975 I changed fields and started working in various factories. This did not work out, the claimant said, and in approximately 1977 and 1978 I worked a few months for Shell Oil Company driving trucks from St. Louis to Rolla, Missouri and then drove trucks a few months for Food Service Systems, and then drove trucks for Southern Products Company as well as several other ones such as Chromalloy. I did not do any carpentry work for any of these companies, the claimant said. I was driving mainly 18-wheelers, he said, but I also drove dump trucks and 14-wheelers. Rothschild agreed that he did interchange driving trucks with doing carpentry work, doing one or the other. I did not do refrigeration work after the 1970s, he said.

I first went to work for Roloff in, I believe, it was early 1990, Rothschild testified, and worked approximately nine years for Roloff before the first accident happened. During this time frame for Roloff I just drove a dump truck and whatever came with that, he said.

Prior to August 30, 1999 I had no problems or difficulties referable to my left or right shoulder, my right knee, nor my left ankle, Rothschild said.

On August 30, 1999 I was delivering rock to a construction site in a dump truck for Roloff, Rothschild stated, and as I was starting to leave the dump site after dumping the rock I noticed that one of the tree limbs had broken off in the cab shield and was hanging down over the windshield. I got out and pulled it out and that's when the accident happened, Rothschild said, I slipped and fell off the side of the truck, about 11, 12 feet, and landed best I could, which wasn't very good. Asked to give the details of what happened, the claimant testified: I saw the tree limb; I pulled over to the side of the road to get it out of there, it was in the way or would fall off in traffic. So I pulled it out, and when I pulled it out I climbed up the side of the truck and it was 11, 12 foot up. I jerked it out and it didn't come; I jerked some more and all of a sudden it came and I flew off the side of the truck and landed the best I could on the ground, and I tore up everything. I landed pretty much on my feet the best I could and then rolled, primarily landing I think on the right leg then the left; and my knee immediately, and my left shoulder, was hurting pretty bad, the claimant said. I think I twisted my knee because it was really sore and my left shoulder was too, it must of happened when I rolled on the ground on my left shoulder. I experienced pain immediately in my right knee, left shoulder, and my left ankle and heel area. I then got back in the truck with a little bit of difficulty, he said, and I took the truck back to the shop.

The next day I tried to get up and I was really hurting, the claimant said, my right knee was killing me, it was so swolled up it was starting to turn colors. And my left shoulder, I could not even lift it up, Rothschild said, in fact I had a real trouble getting out of bed, and I knew I wasn't going to be able to work that day. So I called in and told them that I had hurt myself that night, and I had to go see the doctor, or chiropractor, or something. Agreeing that he saw Dr. Al Fischer, Rothschild stated that the boss used this doctor, Roloff used him. Rothschild was asked if Mr. Roloff ever concurred in his going to Dr. Fischer. Well, I told him I was going, Rothschild answered, I don't know if - he didn't disagree with it; I mean, I told him who I was going to see. Mr. Roloff, my boss, didn't tell me yes and didn't tell me no when I was going to Dr. Fischer, but he knew I was going to Dr. Fischer, Rothschild stated.

Dr. Fischer x-rayed and checked my range of motion out on mainly my left shoulder and my right knee 'cause I was really hurting, I was having a real hard time walking, Rothschild said.

Dr. Fischer started making me do these movements and exercises, and I think there was hot packs and cold packs and ultrasound on my left shoulder and I think my right knee too, he said. Then Dr. Fischer referred me to Dr. Thomas D. Matthews about a month later as he couldn't do me any good, Rothschild said. He agreed that October 20, 1999, as indicated by the records, sounded right. Dr. Matthews scheduled me for an MRI and checked my range of motion and everything, and x-rayed, the claimant said, and I don't remember exactly what, but he give me a cortisone shot after he read that MRI report. I can't remember if he was the one that give me injection into my shoulder; I definitely got one in my knee, and they suggested I had loose bodies in my knee; and he scheduled a surgery, first surgery, on my right knee, Rothschild said. He agreed that this first surgery was on January 19, 2000, and then the doctor did a second operation on June 22, 2000. I was still hurting pretty bad and he had give me several injections, Rothschild stated, and I went through therapy and everything trying to get my strength back, and he did another surgery.

From August 30, 1999 up through the second surgery I wasn't doing any work, I was off work, the claimant said, I wasn't able to work because my knee and shoulder were ruined, both of them was just hurting so bad. It helped a little bit what he did, but it was just real bad, Rothschild said, I could hardly walk and I could hardly lift my left arm. I went through therapy at ProRehab,

and he said it was a total tear in my rotator cuff so they couldn't believe that I got it working, the claimant said. He agreed that he had physical therapy in this time frame. Rothschild agreed that the workers' comp insurance company for Roloff had a nurse from the insurance company go to Dr. Matthews' office with him, a Gail Hanks (phonetically) from England and Company.

I saw Dr. Matthews until July of 2000, Rothschild agreed, and then they cut me off from Dr. Matthews completely, and Gail Hanks said we were going to another doctor, Dr. Haupt, that she had scheduled me with Dr. Herbert Haupt. With Dr. Haupt I believe I got an arthrogram on my left shoulder, and I can't remember but I think he did the MRI, too on my right knee. I don't know when it was but he told me he I needed surgery on my right knee. Rothschild agreed that Dr. Haupt then performed a third surgery on his right knee. After this surgery compared to the other previous two surgeries by Dr. Matthews, I was horrible, the claimant said, he had cut some tendons and ligaments in there and my knee was just a rainbow, it was so swolled up I couldn't even move; it was all wrapped up in bandages, it was soaked with blood; I was screaming in agony, Rothschild said. This was immediately after the surgery, he said, it was the first time in my life I've ever had morphine, which was for the pain in the whole right leg after surgery. My knee never did get fixed, the claimant said, it felt better for a while because he kept putting cortisone injections in it, and then he got this unloader brace that I've got on right now. The diagnosis the doctor made with reference to my left shoulder was that I had a total tear of the rotator cuff too, Rothschild said. The doctor offered to operate on my left shoulder, but I did not let him, the claimant said, I told him that no surgery would get done on my left shoulder until my right knee was fixed. I told him, you're gonna make a total invalid out of me, which I almost was already, the claimant said. Rothschild was asked if he was asking for surgery on the left shoulder now at this point. It's starting to get bad again, but I don't know if I want it; I guess I do; it needs to be fixed; I can't go on like this, the claimant answered. He agreed that it was part of the future medical treatment he was asking to be awarded, treatment of the left shoulder including surgery if it's deemed proper by a physician.

My right knee now, Rothschild stated, I bare all my weight on it and I just can't do the things I ever wanted to do. I can't work, I can't stand long, I can't lay long, I can't sit long, Rothschild testified, I can't do anything. I have to keep moving positions; I just cannot stay in the same position; I haven't slept in a bed since this happened, he said. I sleep on the couch every night and I have to throw my leg over the back of the couch to get in a position with pillows; some times I wake up in the middle of the night, it just hurts, the claimant said. Rothschild agreed that he is asking for an award of treatment for the right knee, including surgery on the right knee, if needed.

After the three surgeries on the right knee I have had a total of maybe three or four falls, Rothschild stated. It just gives out; it's just like one minute it's there and the next minute gone, you're on the ground. Agreeing that there was one particular fall at the end of July or first of August of 2003 at home, Rothschild stated that what caused that fall was he was going down the stairs and he had just about made it down the stairs and got down to the last couple, three steps and it just folded up on me. I tried to catch myself, he said, I was half running trying to catch up with my feet and I landed on my right hand, which jammed my shoulder back up, scraped up all the skin off my hand and everything, and I couldn't hardly get off the ground. My right shoulder was like it was hanging there; I couldn't hardly move it away from my body at all, the claimant said. It was my right knee that gave way causing me to fall and injure my right shoulder, Rothschild said. What was different about this fall compared to the other previous falls I had on the right knee was that it's only one that happened when I was going down the stairs, the claimant said. On other previous falls on my right knee I had not injured any other part of my body, he said. As a result of this fall down the stairs my right shoulder is -- it's useless, Rothschild testified, I'm right handed and I can't do anything with it. I can't hardly even lift it up to wash my hair, brush my hair, just to get something out of the cabinets, you know, a glass, or open a door, or pulling a light switch, he said. There has been a diagnosis of a full thickness tear of the rotator cuff in the right shoulder also, the claimant agreed. Rothschild stated that he is asking for an award of treatment of the right shoulder, including surgery. The claimant was asked if the injury to the knee at Roloff in August of 1999 was the cause, as far as he was concerned, for the fall in July, 2003. It is what caused it because my right knee gave out going down the stairs, otherwise it wouldn't have happened, Rothschild answered. He agreed that the right knee was the same knee that was injured in the fall from the truck.

Dr. Haupt did his surgery, and then I was off work the whole time until Dr. Haupt released me back to work in March of 2001, I believe it is. March of 2001 when I went to work for Karst, Rothschild stated, he was gonna release me anyway, so I found a job. The claimant agreed that he was completely off of work from August of 1999 until March 2001, and agreed that this was all due to the injuries at Roloff. With regard to giving further treatment in March of 2001, Rothschild testified, I told Dr. Haupt my knee was still hurting and he sent me to all these other doctors -- Yadava and Peeples -- which it didn't do a thing for me, and then he finally said, "Well, there's nothing more that we can do for you. You just need to go back to work.". So I found a job and I asked him to release me, and I went to work for Karst Construction. Rothschild agreed that he was asking to be awarded interest, 10 percent per annum, on the $\ 2,378.88 from March 28, 2001, the late TTD payment.

Rothschild stated that his brother and a friend of his had both worked for Mr. and Mrs. Karst, and they had been trying to get him to come to work there. I started with Karst on March 30, 2001, I believe, he said, right after Haupt released me. I worked there until late September or early October of 2001, he agreed. When I went to work for Karst my right knee, left shoulder, and left ankle -- well, nothing was really fixed, the claimant said. The left shoulder was probably the best thing out of everything but I had to do all this heavy carrying, Rothschild stated. My left ankle and my right knee were just getting worse and worse the whole time, he said, we had to keep carrying all these heavy doors and equipment. And these fire doors were very heavy, they were solid-core particle board, he stated. My job when I worked for Karst was trim out of St. Louis Housing Authority houses. We had to move the cabinets in and install them, and all the doors were fire doors and we had to load them on trucks, and take them out of the trailer to

the houses and carry them in the house, and install them, he said. The doors were so heavy, they were pre-hung with the trim on them, he said, and when you lifted them up the trim would just disintegrate if we didn't lift them up just right. Rothschild agreed that he was doing these things constantly while working at Karst. He was asked what, if any, affect did this have on his right knee, left shoulder, and left ankle. Well, everything I did just kept getting worse, the claimant answered. It was mainly pain in my right knee and my left ankle that was giving me the fits there, he said, I had to take breaks and Joe had the laborers do a lot of the hard lifting and carrying for me and stuff. I worked an 8-hour day at Karst, the days we worked usually, Rothschild stated. It was a fulltime job but there was days that you didn't work and there was times that there was nothing to do; something didn't come in or something like that, he said. Rothschild agreed that he had to do walking stairs, explaining that with regard to his right knee he would step up with his left foot first when he had to do that. I tried to avoid stairs, the claimant said. My right knee it was definitely worse than anything because it would just be grinding and gritting and popping and completely swollen all the time, he said, and this brace when you sweat - it's supposed to be made for sweating - the more you sweat, and it was very hot out there as it was in the summer time, this brace slipped down on my leg and actually eaten holes, and the bleeding where the pads ate into my leg, Rothschild testified. And when the thing slips down it's putting pressure on the wrong spots and it gets lots worse, the claimant stated. He stated that he wore a brace on his right knee then that was given to him by Dr. Haupt. I made complaints to Joe Karst and P. J., his wife, about the brace rubbing and showed it to them, Rothschild said, they saw it many times. They had the laborers do a lot of the hard lifting and carrying, stocking the rooms with doors and things like that because I couldn't do it, the claimant said. Joe Karst worked with me getting these houses done, Rothschild stated, Joe would hold something up for me; he wasn't really a carpenter or anything, but he would help me do different things like carry something in the room. Rothschild agreed that Joe was there and had on several times told him to sit down and take a break, or something like. He saw I was hurting, Rothschild said.

Rothschild was shown Claimant's Exhibits P- 1, 2, 3, and 4 and identified them as pictures of the knee surgery by Dr. Haupt a few days afterwards. These pictures were taken in October of 2000, the claimant said, a friend of mine took the pictures. These pictures correctly portray the way my knee looked at that time after I pulled the bandages off, he said.

My work at Karst ended because Karst had some pretty bad financial troubles, Rothschild said, they actually ended up losing everything and went out of business.

When I stopped working for Karst I then went to work for BAM Construction Company. I worked to BAM Construction approximately from October 1, 2001 to about December 30, 2001, he said. At BAM Construction Company I strictly worked on the Lenox Hotel, Downtown St. Louis and trimmed quite a few of the hotel rooms out. I was a finish carpenter for BAM Construction, he said. My work entailed my physically doing such things as hanging of doors, the vanities, doing baseboard, stocking the rooms with the trim. They had one elevator, which we mostly used, but if you couldn't get a elevator a lot of times you had to use the stairs carrying your tools, and sometimes you had to go lug a trim from a different floor, he stated. We were lifting the doors that were all stacked in the room usually one wall, Rothschild said, and you had to move them into the correct rooms and openings. And then you had to get the baseboard up there, set up your saws and move the baseboard, and just everything to do with trimming that room out for a finish, so it's ready for the painter, he said. I was lifting and carrying tools, doors, big baseboards, and stocking the rooms, Rothschild said. It was a wide baseboard, the claimant said, about 9 or 10 inches wide and sometimes 16 to 20 -foot long. I usually did not carry the baseboards with someone else, he stated, sometimes if you needed help you could get one of the other guys, but they had their responsibilities. At BAM I worked from 6:00 a.m. to 2:00 or 2:30 p.m., or 7:00 a.m. until 3:00 p.m., Rothschild said, and pretty well five days a week. He agreed that at that time he was making $\ 30.00 an hour. At BAM I had to do more stairs than while working for Karst because I couldn't get a elevator most of the time, Rothschild said.

Rothschild agreed that he worked at BAM for approximately three months in the end of 2001. He was asked what affect, if any, did working there have on any part of his body. Well, you had to put the baseboard in, which required bending down, and the climbing the stairs and everything; just everything got worse, Rothschild answered. My knee got more swollen, the claimant stated, it was always hot in there and I was always sweating, and my brace would fell down and get in the wrong location and eat my leg up, and in the wrong location it put the pressure on the wrong point. I didn't have that much trouble with my left shoulder, Rothschild said, I could use my right shoulder to pretty well take the load. Rothschild agreed that this was before he had the rotator cuff tear on the right shoulder. I never could lift the left shoulder right all the way then, Rothschild said, I didn't have the strength in it after that accident, but I got most of it back through the therapy that I took. It never got back to the way it was before I fell off the truck at Roloff, the claimant said. He was asked if working at BAM aggravated or made the left shoulder worse. It really didn't, the claimant answered, it didn't make it any worse. The left ankle it definitely did make worse because -- well, my right knee was hurting so bad I had to bare all the weight on my left, Rothschild stated.

The job with BAM ended when the Lenox Hotel renovation ended, which would have been the end of December, Rothschild agreed. I did not work anywhere from the end of December, 2001 till August of 2002, the claimant said. During those roughly seven months I just did exercises at home and I tried to find some jobs, Rothschild said, but when you're in the union you get fined pretty heavy if you go somewhere else and work. So I put my name in the carpenters hall and it was 500 carpenters out, so they couldn't do anything about it, so I just had to wait and drew unemployment until they called me back, he said. Rothschild agreed that he felt he was able to work at that time. He was asked why did he tell unemployment that he could work. I was supposed to look for work and I was looking for work, he answered, I called different places up that I could do some jobs at the house or anything like that, I tried calling different carpenters up.

The claimant agreed that in August 2002 he went to work for Integrity Installations. He stated that he worked for Integrity 29 actual working days but it was over approximately a three-month period, it wasn't just one month because it went on through August through September. My job at Integrity was we put together these Estee Lauder display cases, and there was makeup and display cases for jewelry and everything you see in Lord \& Taylor, Rothschild said, they are those big displays that are real heavy, like at Frontenac and Tiffany's. Lord \& Taylor was the job site and Estee Lauder was the display case, he explained. We had to unload the semis of all these display cases that were already built in Florida and shipped up here in a semi and bring them into the buildings and set them up, he said. The display cases were gigantic and very, very heavy, some of these items were like a ton a piece, they was all particle board and glass, Rothschild said, and it was four of us that would pretty well empty the truck out and set up these things. He agreed that he did both carpentry work and erection of the display cases here. Working for Integrity mainly affected my knee and ankle, the claimant stated, this brace -- we were sweating so bad in there, it was really hot out and this brace kept eating into my leg, and my knee was all swollen up, and then trying to keep the weight off my right leg I put it on my left and my left ankle was just swolled up. You couldn't even see the ankle bone; it was really hurting, Rothschild said.

The claimant was asked what difference, if any, was there in his right knee and left ankle between the time that he was off work from January 2002 until August of 2002, compared to when he was working for Integrity for the 29 days in August and September 2002. Well, my knee never was right or my ankle, Rothschild answered, but it definitely got worse when I went back to work because I had put all this weight on it, you know, up steps and what have you.

Agreeing that he actually quit work at Integrity, Rothschild explained that Kirby Moreland, the job steward, knew he was having trouble. I'd sit down once in a while with him, Rothschild stated. I told Moreland my knee was in bad shape and I think I showed it to him, the claimant said, I think I even showed him the pictures of it. Moreland saw me working, Rothschild said, he was present all the time when I was working. I told Moreland - I can't even stand up anymore, Rothschild stated, I told him I had to go to home and had to go to the doctor. He knew I'd been having trouble with it, real bad several days before that, and I told him I would stay there as long as I could, the claimant stated. Agreeing that he told Moreland that he could not work anymore, Rothschild stated that he told Moreland - I have to leave. I couldn't work anymore because my knee and ankle were hurting so bad, the claimant said, I couldn't even stand. I didn't know if I was gonna make it back to my truck, and I told Moreland that, Rothschild said. At the end when I was working there I could not go up and down steps regularly, he said. At the time I quit I could not lift anything heavy, I could not squat at all because my knee was so swollen and sore. I have not worked at all since that last day at Integrity in September of 2002, Rothschild said. I have not been able to work since then because my knee is shot, my left ankle is just about shot, and both of my shoulders are total rotator cuff tears, the claimant stated, and I just can't do any of the things that I do and work. My job requires me to squat down, and climb, and lift; and there's just no way I can do it, he said.

Rothschild agreed that he worked as long as he could at Integrity. I told Kirby that I couldn't even stand another minute; a few days later he called me back and said he needed me, and I told him, Kirby, I don't know if I can, if I'd be any help to you at all; I said, "I'm really hurting.". Kirby then said he just needed me for a little bit, I was the only one he could trust to do this, and I came back in and I helped him, and I helped him as long as I could, Rothschild testified. Then I told him I told him I couldn't stay any longer, and he said - That's okay, go home. Rothschild agreed that this was after the last day he had left; it was several days afterwards he had quit. I don't know long I worked when I went back after I had quit, five hours maybe just that one day, he said. Rothschild agreed that that was it, he hasn't been able to work since. He agreed that Kirby was there with him on his day of working five hours. Rothschild agreed that his normal work time was eight hours.

Rothschild explained his physical problems. My right shoulder is all but useless, he said, lifting anything, just as much as trying to brush my hair or wash my head or reaching up in a cabinet; it's just no weight whatsoever can I put on it. If it's down low I can carry; if it's anywhere lifting it up I can't, I can't get it up there. I have to move the right shoulder just right, he said, 'cause even to get it back around sometimes I have to take my elbow and grab it like this (demonstrating) to even get it up to the back of my head; I also can use the wall if I'm close to the wall sometimes. And it comes out of the socket and sometimes I have to move it back around to get it back and you feel it pop back in. The claimant demonstrated the limitation of motion in the right shoulder. Rothschild agreed that he uses his left hand to push the right arm up sometimes because he can't lift the right shoulder by itself. The left shoulder is just kind of sore all the time and it's weak, Rothschild said, but I just limit what I do, lifting stuff up above my head or whatever. Like putting these books on the shelves, if I move it just the right way I could put them up there; but I get to that one point where that pain is, I guess it's where that tear is in there and its never been fixed. Rothschild agreed that this has been true for the left shoulder since falling off the truck in 1999 at Roloff. I can reach the back of my neck with the fingers of my left hand, the claimant stated, it right to the point where it hurts, but I can reach it. The left ankle, Rothschild testified, it's like it's always swollen; I bare weight on it all the time because I cannot lock my right knee. My right knee has never locked since the accident and it's swollen right now, and I just bare all the weight on the left ankle all the time when I'm standing, he said. If I step on a rock or something, it will throw my ankle out, the claimant stated, and agreed that he has difficulty walking on uneven surfaces. I try to avoid them, he said. I get no warning when my right knee gives out, Rothschild testified, that's why I try not to put all the weight on it and use my left. I do not wear the brace around the house because the doctor told me not to, and the more you wear it the more it rubs and it just it gets sore, the claimant stated. If I got to do something, anything at all, when I'm out then I wear the brace, he said. Rothschild agreed that he had worn the brace to the hearing. You can see through the pants, a big old bulky thing, he said. It's light but it's big bulky, he testified, it's a unloader brace, it's supposed to put pressure where it's bone on bone and bring that away to the other side where there's a little cartilage left. One side has cartilage and the other side don't, the claimant said, and when it rubs bone on bone that's when it gets a real bad pain. That one spot when you bend it, there's a spot right there, Rothschild said,

it's like a creeky door hinge, one spot it squeaks and the other it don't. You can tell right now when it hits the bone; that's when the thing gives out; it's just a pain like knives going in there; it just drops out from under you and you don't have a warning of it or anything. You can try to avoid the position but if it happens it's too late, he said.

The claimant was asked to discuss how his life is different now than before August 30, 1999. My whole life has been ruined, Rothschild said. I can't work; I can't do any things that I want to do; I have to watch everything I do, he said. I'm in debt up to my neck, and I can't do anything, the claimant stated, I'm pretty well 90 percent useless. What I do on a daily basis, Rothschild testified, is I cook, do my bills, and try to do a couple exercises. The claimant (hesitantly) testified that he gets food stamps to get food. I can't set there all the time, he said, so I try to walk or I even use the stairs to try to get up and down them, but usually I try to use my left foot first to get up the step, and that's how I get up and down the steps pretty well. He was asked if he could drive a truck as a business man, and the claimant answered - No. It's all I could do to drive down here to the hearing. He agreed driving a truck was what he did before when he was a carpenter. I can't drive a truck because I can't sit in that position and it requires you to use a clutch, and I can't move around in the truck, he explained. I cannot work as a carpenter now, Rothschild stated, I give it my best shot and I'm worse now than I ever was. All the combination of everything that's wrong with me, there's nobody that'd hire me, he said.

Rothschild was asked if he was asking for more surgery on his right knee if deemed proper by an orthopedic surgeon. I don't want this knee replacement that they got, I want to try to do something else; that's what I was hoping for, they would come up with something better than the knee replacement; I'm scared to death of the knee replacement because nobody I know has got any good results out of it. The claimant agreed, though, that he is asking for an award of further medical treatment on his right knee.

Rothschild stated that he is able to go to the store, and that he has to drive his pickup truck. It's just a few miles and I make it. I use my right leg on the accelerator as long as I can, he said, in short trips like that it's not too bad. But when I drive down here I have to throw it offer the hump; by the time I get here it was an hour and 15 minutes, and it just gives out on -- it just goes numb, and it starts hurting, the claimant said, so I use my left foot on the accelerator and the brake. I use the brace when I shop, Rothschild stated, and I use the cart to lean on when I go through the mall. If I have to lift up and get something off a high shelf I just get somebody to grab something off the top shelf or whatever it is for me; if there's nobody there to do it for me I just got to do it, he said.

I can't do it because my shoulders are shot, he said, I just can't -- lifting it up there is one thing but trying to lift anything, if any weight of anything, I don't care if it's five pounds, I just can't even get it up there; there's no way I can do it.

Rothschild was queried, the days he worked at these other places after Roloff how did that factor into his right knee and his left ankle and his left shoulder, did working at those place make these worse (it was noted that the right shoulder was the fall at home). Agreeing that there was not a difference in any of them, they all just add a little more each time, Rothschild further stated Everything just added up until I'm where I'm at right now. I can't do any of my activities; I can't run, I can't play ball anymore; I can't work. I can do a very little fishing, the claimant said, but I've hardly done any of that. The only hunting I can do is dear hunting because I can set there on my four wheeler, which I cut my grass with, or I got a deer stand that's right there in my yard and I get my deer right there, Rothschild testified. And I don't have to do any lifting, he said, I've got the wenches set up for the animals and everything else, and the trailer to pull them up there. There's nothing hard to it, I can sit down when I want, the claimant stated, that's the only kind of hunting I can do. As far as walking through the brush, that's out, Rothschild said, I cannot do any of that stuff anymore; quail hunting, none of it. I use to do all of these things before this happened.

On cross examination by Roloff Trucking, Rothschild agreed that he had his third and last right knee surgery on October 13, 2000, and that was performed by Dr. Haupt. Then Dr. Haupt treated me after that for follow up, and sent me to Dr. Yadava, a physiatrist, and they both treated me; in March 2001; both of these doctors released me, saying I was at maximum medical improvement and released me to full, unrestricted duty, the claimant agreed. Rothschild agreed that he told Dr. Haupt he had the Karst Construction job lined up and wanted to be released on February 27, 2001. The claimant agreed that prior to this he had been placed on light duty by various treating physicians, including Dr. Matthews and Dr. Haupt, but since Roloff Trucking had no light duty work available he received workers' compensation temporary total disability benefits from Roloff Trucking. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fireproof doors and other heavy items. I told Dr. Cohen when he examined me, the claimant agreed, that I nearly constantly had to carry heavy materials and had to do a significant amount of bending, lifting, and squatting. I worked from the end of March 2001 until October 2001 for Karst when Karst went out of business, Rothschild said.. He agreed he did not lose his job at Karst because of a physical inability to work, and he did not quit working for Karst because of the injuries he suffered in the August, 1999 accident at Roloff. I would have continued working for Karst Construction doing carpentry work, including heavy lifting, had work been available from Karst, Rothschild agreed, further stating - "I had to".

During cross examination by Roloff Trucking, Rothschild was queried - isn't it true that his left shoulder didn't get worse while working for Karst. It did not get worse while I was working for Karst Construction, Rothschild responded, but it did get worse. The claimant was asked - wasn't it true that he did not work fewer hours while at Karst due to pain or problems he was

having from the injuries received in the August, 1999 accident at Roloff. Well, we had shorter hours, Rothschild responded, but admitted that he didn't take fewer because he was physically unable to. I had to work, the claimant said. Rothschild agreed that he had testified earlier that after Karst Construction got into financial trouble he was the last worker out the door. Rothschild stated that his right knee did not give way while he worked for Karst Construction during those seven to nine months he was at work. In that job I did go up and down stairs, but not too much, he admitted, and I was carrying heavy objects, including heavy fire doors. Rothschild agreed that after working for Karst Construction he went to work for BAM, and that was full time, full duty at the Lenox Hotel where he was trimming hotel rooms and carrying heavy objects. He agreed that he was also going up and down stairs and stocking rooms with materials, and that whole time his right knee did not give way and cause him any injuries. It was the same type of work I did for Karst Construction; Rothschild agreed, and I earned $\ 30.00 an hour, which was approximately triple what I was earning as a truck driver for Roloff Trucking. I worked for BAM for about three months until the job ended and I was laid off, the claimant agreed, I didn't leave BAM Construction due to the problems I was having with my injuries from the August 1999 accident at Roloff. To the best of my ability I was able to do all the work that BAM gave me, Rothschild said. I was in great pain when I was doing it but I had to do it, he said. He agreed that he would have continued working for BAM if he had not been laid off. Rothschild agreed that he had testified that after the BAM job and he was laid off, he continued to look for work but construction was slow in the St. Louis area at that time. If somebody had offered me a job doing carpentry I would have taken the job, Rothschild stated. He agreed that in July, 2002 he went to work for Integrity Installations doing carpentry type of work, and this job involved heavy lifting and doing work with heavy equipment, and with heavy display cases. Rothschild stated that he would say he was involved in lifting items with other people that weighed all the way up to a ton

I testified previously, Rothschild agreed during cross examination by Roloff, that during the time I was looking for work, my left shoulder stayed about the same as it had been since I had completed physical therapy. He agreed that this was after Roloff but before the Karst job that he completed physical therapy. Rothschild stated that his left shoulder stayed about the same after this through all three other jobs, including Karst, BAM and Integrity. But I carried it with my right, Rothschild added.

During cross examination by Roloff, Rothschild agreed that he worked for Integrity from some time in August 2002 until September 24, 2002, and that he earned $\ 30.00 an hour, triple what he made for Roloff. Rothschild agreed that when he left employment with Integrity on September 24, 2002 he again applied for unemployment compensation and received the full 17 weeks of unemployment compensation at that point.

During cross examination by Roloff, Rothschild agreed that he filed his Claim for Compensation against Karst Construction and Integrity Installations on October 17, 2002, and alleged a permanent total disability with a date of onset of September 1, 2001 against Karst and September 1, 2002 against Integrity; the claimant agreed that he filed a Claim for Compensation against BAM alleging on September 17, 2003 he was permanently and totally disabled with a date of onset of October 1, 2001 and December 1, 2001. Concerning his fall at home, Rothschild stated that he fell in July 2003, then treated with a chiropractor first, and then went to Herman Area Hospital on or about August 6, 2003. The claimant was asked if he had said anything to the nurses or the doctors at Herman Area Hospital about the fall being caused by his right knee giving away. Yes, I did, Rothschild answered. He was asked if he had ever told any of his employers at Karst, BAM, or Integrity that he had any work restrictions. No, I didn't, he stated. I did ask them to limit my work somewhat, he said. If they had aides and/or helpers, and they would let me sit down a little bit; all that kind of stuff to help me out and carry stuff, Rothschild explained, they helped me, they worked with me. The claimant agreed that he has continued to deer hunt since his last employment, and that he has to climb rungs similar to a ladder to get to his deer stand. Rothschild was asked how much he weighs now. Two hundred and eighty (280) pounds, he answered. He stated that he does not take much medication now since the Vioxx trouble; he agreed that as of March of 2005 he didn't take much medication. When I did take some medication it was over-the-counter Tylenol and some Advil; that's all I had left, Rothschild stated. I don't like to take any drugs, the claimant stated.

Rothschild stated, during cross examination by Roloff, that he was saying that he hurt his left ankle in the original incident when he fell off the truck. I told Dr. Fischer right away, the claimant stated, but the pain in my left shoulder and my right knee was much worse than the pain in my left ankle. Rothschild stated that he was complaining to Dr. Haupt when he was treating him as well as to Dr. Matthews when he was treating him early on after the accident. Rothschild agreed that he recalled seeing Dr. Shawn Berkin on May 3, 2001 by his own attorney, and at that time he was employed by Karst Construction. I believe I recall seeing Dr. Morrow for a rating evaluation on my own behalf on October 8, 2002, and at that time I had just left the employment of Integrity Installations, the claimant stated. When queried if he had told Dr. Morrow at that time that he hadn't worked since he last saw Dr. Matthews on January 15, 2002, Rothschild responded - I don't remember. The doctor could have got it mixed up; I wouldn't have lied to him, Rothschild said.

Rothschild stated, during cross examination by Roloff, that he does his own yard and lawn work, and he lives on about three and a half acres. The claimant was asked - since your accident at home where you fell down the stairs in July of 2003, have you ever injured yourself in any way as a result of your right knee giving out? No, Rothschild answered, I fell three times and I didn't hurt myself any of those times. He stated that his right knee was giving out a lot while he was being treated by Dr. Matthews and Dr. Haupt, and he told Dr. Haupt and Dr. Matthews several times about it. I don't know why their records don't mention this or my ankle either, Rothschild said, I don't know why they did that. I never told Dr. Matthews at the first visit on October 20, 1999 that I had had off and on problems in the past with my right knee, Rothschild said, and agreed that within the last year or two he sent a note or something of that effect to Dr. Matthews requesting that he change something in his record about that.

Rothschild stated that he recalled when his first deposition was taken on January 16, 2001, and during cross examination by Roloff he stated that he fell 11, 12 feet, whatever high the truck was, and answered when asked how did he land -- "Landed mostly on my feet and rolled.". The claimant stated that he recalled he was then asked - "And you injured which body parts in this accident?", and he answered - "Left shoulder, right knee." It was noted that Rothschild did not mention anything about his left ankle at that deposition. It wasn't as bad as the rest of it at the time, Rothschild said. It was noted that in his second deposition taken on March 16, 2004 Rothschild was again queried - "Now it's my understanding you were injured working for Roloff Trucking; is that right?" and "Okay, what areas of your body did you injure?", and he answered "My right knee and my left shoulder.". That is correct, Rothschild said. The claimant admitted that he probably didn't mention his ankle then either when that second deposition was taken more than three years later.

On cross examination by Karst Construction, Rothschild agreed that after his Roloff injury, he ended up having three surgeries on his right knee all in 2000. He agreed that he was also diagnosed with rotator cuff tear in his left shoulder and was also having problems with his left ankle. Rothschild agreed that this was all prior to ever going to work for Karst Construction. During the time period after the last surgery by Dr. Haupt up to the time that I went to work for Karst Construction, my knee was giving me a lot of problems, the claimant agreed. Agreeing that he had some disagreement with Dr. Haupt as to whether he should be discontinued from medical treatment, Rothschild testified I told him my knee wasn't right, and my left ankle and my left shoulder. I said, none of it's right and you're going to send me back to work; I said we have got to do something here, the claimant stated. During this period my right knee was hurting all the time and it had actually given away on a couple of occasions, he agreed. At that time I think it was two times that I had actually fallen because of this give away situation, he said. Rothschild agreed that he had indicated that during this time, hills and stairs and anything that would cause him to have to put extra weight on the right knee would give him extra difficulties. He agreed that he was walking with a limp during that period of time because he couldn't straighten his knee out all the way, and he couldn't kneel at all on his right knee. During this period of time, between Dr. Haupt's surgery and going to work for Karst, it hurt to raise my left shoulder up, and he was also having difficulty getting his left shoulder and his left hand even away from his body because of the problems in his left shoulder. With therapy we got it working again, Rothschild added. It was noted that at some point his ankle began hurting and was swelling, and Rothschild stated that this was before his employment with Karst Construction.

I went to work for Karst Construction in the Spring of 2001, and this was right after Dr. Haupt released me from care, Rothschild agreed during cross examination by Karst Construction. He agreed that when he went to work for Karst Construction he was a union carpenter making union scale. I was on my way for qualifying for Union benefits, Rothschild said. During the time I worked for Karst Construction, Spring of 2001 through September 11, 2001, I worked full time getting substantial hours but I wasn't getting a full 40 hours, Rothschild agreed, and I was actually working as a trim carpenter which is different than a standard carpenter. I guess you could consider this as a lighter job, but not really, the claimant said. He agreed that the Karsts became friends of his during the period of his employment and they worked with him to make sure that he didn't get too sore. I didn't miss any time from work because of my left shoulder, right knee, or left ankle when I was working at Karst, he said, they worked with me. They let me work at my own pace, he agreed, they got me laborers when that was necessary, things like that. I couldn't have done the job without it, Rothschild said. He agreed that while working at Karst he didn't have any specific accidents that caused damage to those body parts, and that he never received any medical treatment of any kind for these body parts while he was working for Karst. Rothschild agreed that when Dr. Haupt released him he didn't begin to get additional medical care until he went back to Dr. Matthews some time in 2002.

Agreeing, during cross examination by Karst Construction, that when the Karst's business started folding up he was pretty much the last guy out the door, Rothschild further stated - When work ran out there I even did work in their own home. He agreed that he didn't leave for any medical reason. After working for Karst I went to work for BAM Construction, and that was pretty quick, Rothschild testified, Joe Karst was friends with the owner of BAM Construction, Brian Murphy, and he got me in there on a high recommendation. He agreed that he worked for BAM for a period of up through December of 2001. I left BAM for nonmedical reasons as well, Rothschild agreed, explaining - I was laid off. At that point I applied for and obtained unemployment compensation and began looking for work in the carpentry field, he agreed. The claimant agreed that he was also looking for work in other fields. Rothschild was queried - wasn't it not until after the employment with Integrity that he started saying to himself, you know, I just can't do this work any more? It was right there on the job, Rothschild answered, I stood up as long as I could, and did the job as long as I could, until my leg -- it just gave out totally; I could not do it.

During cross examination by Karst Construction, Rothschild agreed that his first Claim for Compensation against Karst Construction was filed in October of 2002, and this was actually over a year after he'd quit working for Karst.

On cross examination by BAM Construction, Rothschild was asked if he remember when he started working for Bam after leaving Karst. No, I don't, he answered. I believe October of 2001 was pretty close, the claimant said. At BAM I was a finish carpenter at the Lenox Hotel. It was noted that he had worked as a trim carpenter at Karst, and Rothschild said that that was the same thing as a finish carpenter. He agreed that he worked at the Lenox Hotel as a trim carpenter/finish carpenter for BAM until the job was finished and then he was laid off on about December 17, 2001. I didn't have any specific accidents on the job while I was working at BAM, the claimant said. He agreed that he filed for unemployment when he was laid off at BAM, and then he was looking for work. Rothschild agreed that his claim against BAM was filed in October of 2003, not quite two years after he'd worked

for BAM. I did not miss any time from work during the time I worked at BAM as a result of anything, Rothschild said. Agreeing that he did have discussions with someone at BAM, Rothschild said it was not about being hurt on the job. It was with Dave Iden; he knew it, because he let me off with a couple things here and there and stuff like that; getting somebody to bring the trim up or help me get it, Rothschild stated.

On cross examination by Integrity Installations, Rothschild was asked further about the condition of his knee after Dr. Haupt's treatment but before you went to work for Karst. Rothschild agreed that he had stated his knee was ruined; he agreed that this was at the time frame before Karst. Rothschild agreed that he had said before he went back to Karst nothing was ever fixed, and he was talking about the knee, the ankle and the shoulder. The claimant was asked how would he describe his pain level in his knee back between October of 2000 and March of 2001 before he went to Karst. Well, I was wearing this brace and they gave me Vioxx and I took all that; I needed to do the job and stuff and I was hurting but I was able to get through it, he answered. Until the knee brace started slipping down when I started sweating, he said. I had pain in my knee all the time before working at Karst, the claimant said, and problems with stairs and with lifting with the shoulder.

During cross examination by Integrity Installations, Rothschild agreed that Dr. Matthews talked to him about a knee replacement as early as possibly 2000. He agreed that Dr. Matthews advised him that the more he might use his knee the quicker it was going to wear out. In May of 2001 I recall seeing Dr. Berkin at the request of my attorney, Rothschild agreed, and Dr. Berkin gave me restrictions on my activities of no kneeling, stooping, or climbing, and restricted my lifting, standing and sitting. Rothschild agreed that he continued to do some of those activities, though. I had to; I had to work, he explained. I really didn't pay much attention to Dr. Berkin's recommendations because he really wasn't my doctor, the claimant stated. He agreed that Dr. Berkin had also specifically said he should consider alternative employment, but he kept doing the same work.

Rothschild agreed, during cross examination by Integrity Installations, that he had testified about how his activities at Karst, BAM and Integrity made his knee and ankle a little worse, more painful and swollen. At the various jobs everybody pretty well helped me because they knew I couldn't do the job, the claimant said. Rothschild admitted, though, that he would agree that at the time he was working for Karst, BAM and Integrity and doing those specific job activities and developed more pain and swelling, he knew in his own mind at that time that those job activities were making his knee and ankle a little worse.

The claimant agreed, during cross examination by Integrity Installations, that he worked for Integrity Installation for 29 days during the period of from July 22nd through September $24^{\text {th }}$. I never had any slip, trip or falls on the job while I worked for Integrity, Rothschild said. He agreed that at Integrity he worked under a gentleman named Kirby Moreland who was the steward for the job and the one he reported to. I wore a knee breeze from day one on the Integrity job, the claimant agreed, only a couple days that I didn't because it rubbed a hole in my leg. When asked if he had been experiencing some additional problems with his knee shortly before he started with Integrity, Rothschild responded - I've always had trouble with it ever since --. I told Kirby I had these previous problems with the knee, Rothschild said, but I don't know when I told him; it was not before I started or on the first day. Rothschild state that he would not agree that his job at Integrity was a little lighter than the jobs he did for Karst and BAM. I'd say it was heavier; those pieces was lots heavier, he testified. I might have told Dr. Cohen that the job at Integrity was not as heavy labor as the jobs at Karst and BAM, Rothschild admitted. The claimant agreed that he had stated the job at Integrity is when he unloaded display cases used for jewelry and make-up counters and set them up in West County Mall and Frontenac; he agreed that he had earlier described this work for Integrity as very heavy work. He stated that he and three other people would have to lift up the partially assembled cases and then put them on dollies and then roll them in on planks to the ground and then inside; he stated that at Lord \& Taylor he would have somebody putting the display cases on to the dollies and rolling them right in from the truck into the facility. Rothschild agreed that to get the display case on to the dolly somebody could tilt up one side and slide the dolly under, so he wasn't actually having to lift the entire display case at any time, he would simply angle one side and slide in the dollies. He agreed that there were four of them generally on that job - a couple of people on the truck and a couple of people rolling the stuff in; the claimant agreed that he was mostly rolling the things in with Mr. Moreland. Rothschild was queried - wasn't it correct that he had stated he had quit the job voluntarily at Integrity because the pain got too bad and he just couldn't do the work anymore? I didn't actually quit on the spot, no; I had to get out of there and get some help from a doctor, and that's when I went back to see -- made an appointment with Dr. Matthews immediately, Rothschild responded. He admitted that he walked off the job because he couldn't do it anymore. I had to get some help and I went to the doctor, the claimant said. I did go back to the job after this, Rothschild stated, and agreed this was when Kirby brought him back. Rothschild stated when he couldn't stand it any longer and went to the doctor, he thought he went to see Dr. Matthews on September 6, 2002, which would have been within the period of employment at Integrity. I made an appointment as soon as I could, Rothschild stated, I couldn't get in to see the doctor, he was all, backed up, so I called him at his house and he boosted me up the line to get me in. It was noted that work records showed that Rothschild worked two more days, two 10-hour days, the week after Dr. Matthews took him off work; it was noted that Dr. Matthews' record indicated that on 9/6/02 says he was taking Rothschild off work as of that day. I don't remember, the claimant responded, but further stated that he had no reason to dispute the work records. Rothschild admitted that if it's true that Dr. Matthews took him off work per his records as of 9/6/02, he didn't follow the doctor's recommendation and kept working. I needed the money, Rothschild further stated. The claimant was queried - isn't it true that you did continue working at Integrity until the job completion and you were laid off with everyone else? No, Rothschild answered, everybody was there and I was the only one that left. The day I walked off the job I only worked a few hours after that a few days later, he said, that's all I remember there, I don't remember working two days after I saw Dr. Matthews. Rothschild stated that it sounded correct that the day he saw Dr. Matthews

after walking off the job was on September 6, 2002. It was noted that in that record of Dr. Matthews it said the doctor was taking Rothschild off work until seen again, the claimant responded - The doctor did take me off work but I can't recall what date it was. I did go back to the job site for Integrity after that visit with Dr. Matthews on September 6, 2002 for a few hours, Rothschild stated. He agreed that when he had testified earlier that the pain got so bad at Integrity he had to quit work and go to the doctor and couldn't go back to work, that was not entirely true, he did go back to Integrity. It was noted that the Integrity work records actually showed Rothschild worked two additional 10-hour work days in between, and, also, Rothschild was queried - isn't it accurate then that he did keep working at Integrity until completion of the job. Rothschild answered that he did not recall working for Integrity those additional days. That was the end of the job when Kirby called me back because he had to set these glass cases, the claimant further stated, so, yes, it was the end of the job. He agreed that the last day he went back there he did work up until the end of the job. Rothschild agreed that he had testified earlier that Kirby had no one else to help him and that's why he was brought back Kirby was the last one on the job site doing punch-out work, Rothschild agreed. Explaining what "punch out" is, the claimant testified - Chips, and nicks, and knobs, and things that were missing off the cabinets; just little bitty things like that; replace glass that didn't come in or was broken; replacing parts that were broken, or mismeasured, or whatever have you. When Kirby brought me back that last day at the end of the job, the best I remember, we had to pull these jewelry display cases apart by heating them up and pulling the glass out that was actually melted into place; and it took two people because we had to use these special suction cups to lift them out of their locations. It was noted that the time records showed Rothschild worked eight hours that day. Kirby said he would pay me for eight hours, I did not work eight hours that day like the time records show, the claimant responded, I worked five hours. Rothschild agreed that after he last worked for Integrity with Kirby Moreland on that final day he filed for and received unemployment again. The claimant was queried - you were out actively looking for employment. I was trying to do something, he responded, I had no money coming in, I had to have some money coming in. Rothschild agreed that he had to report to the State that he was ready and able to work. He agreed that, as indicated in the unemployment records from the State, the last day he worked for Integrity was September 24, 2002.

During cross examination by Integrity Installations, Rothschild stated that he told Dr. Matthews about the increased problems he says he was experiencing while working for Karst, BAM and Integrity. He agreed that he remembered seeing Dr. Morrow on October 8, 2002, which was right after the job with Integrity ended on 9/24/02; Rothschild stated that he told Dr. Morrow about how the jobs with Karst, BAM and Integrity were making his knee and ankle much worse. It was noted that Dr. Morrow's report indicated Rothschild told the doctor that he didn't work anywhere after January 2002 when he saw Dr. Matthews, and Rothschild was asked if he had told Dr. Morrow this. These dates I just -- they get all mixed up after a while; I can't remember what dates are what; I don't remember, the claimant answered. September 24, 2002 was the last time I remember working, the claimant further stated.

On cross examination by the Second Injury Fund, Rothschild agreed that he was a member of Carpenters 1839, and stated that P.J. Karst wrote the letter for him. I was in it earlier in 1987, but I had to be reinstated and had to have a letter for someone to hire me, the claimant stated. He agreed that before he worked for Roloff he had some union jobs as a carpenter. I left carpentry work for Roloff because of a lack of work, the claimant said, wintertime there's always lack of work, most everybody gets laid off.

Rothschild stated, on cross examination by the Second Injury Fund, that during the time he worked at Karst, BAM and Integrity his knee brace bothered him, and that he told Mike Farris at ProRehab about the problems with the brace slipping, and that the Karsts knew it. Everybody that pretty well knew me knew about it, he said. I did not seek medical help for it or rehab help for it while I was at Karst, BAM or Integrity, the claimant said. The claimant was queried - wasn't it correct that he didn't seek any medical treatment at all until he went to see Dr. Matthews in September, 2002? I tried to one time and they told me that I wouldn't be covered because this was a workers' comp accident, Rothschild answered. They wouldn't do anything for me related to this knee and shoulder, because it was a preexisting condition; I believe this was the Carpenters Union, he stated. When I went to see Dr. Matthews my carpenters insurance paid for that and I paid the co-pay, he said. The Union sends you a letter telling you when you're reinstated in the carpenters' hall, when you have enough hours to get your insurance, Rothschild explained. He agreed that this was before he started at Integrity, and had to be while he was working for Karst.

During cross examination by the Second Injury Fund, Rothschild stated that when he left the job at Integrity for good there were no more jobs to be had at Integrity, the job was over, and he applied for unemployment and went out and looked for other jobs. I had to put my name on the list at the carpenters hall so I could be recalled, Rothschild testified, I was one of the 500 carpenters that was laid off at the time and work was really bad at that time. He was queried - isn't it correct that he never got recalled because it was wintertime? Basically; yes, he answered. The drought of work lasted until they called me back to work when Integrity called the carpenters hall, Rothschild stated. After I left Integrity I applied for unemployment again but I did not put my name at carpenters hall, Rothschild said. Explaining where he looked for work, the claimant testified - "I looked for work in different -- something I could do at home." Something where I could maybe send letters out or post cards or something; that, most of it all entailed the computer and I don't know anything about it; different things on that order, the claimant stated. He was asked if he had sought any jobs through the Missouri Division of Employment or Vocational Rehab. I went down there to see a Veterans Administration guy one time, Rothschild answered, and he took me over to a computer and told me that he couldn't help me operate the computer, he could set there and tell me what to do, and I never touched a computer in my life, so I had no idea; I didn't go back. Rothschild stated that he lives in a town named Berger which is 20 -some miles west of Washington, Missouri. Agreeing that he still has access to transportation, Rothschild stated that he has a full-size Dodge pickup. I think I looked around the Washington area and my town for employment a little bit but there was nobody gonna hire me in my condition, he stated, I couldn't do anything

that I knew how to do. I was looking for other things that I could do, other than the carpentry, truck driving, which I definitely couldn't do anymore, he said. Rothschild was asked if he had actually filled out any applications for work anywhere. No, I didn't, he answered.

Rothschild stated, during cross examination by the Second Injury Fund, that other than chiropractor adjustment, before the August 30, 1999 injury at Roloff trucking he hadn't really been to a doctor since 1993. Agreeing that had characterized himself as a very active person, Rothschild stated that in addition to working full time driving the dump truck his other activities were fishing, hunting, running with his dog, swimming and skiing, and doing gardening. Rothschild stated that for the past eight years he has been living on a little better than three aches of land. I bought a piece of property and it was just like abandoned junk and I fixed it all up, the claimant testified, it was a real mess, there was only one little building there that was left when I bought it and I redid it. After the August 30, 1999 injury I worked on my property and my house very little, Rothschild stated, it's maintenance free basically, I don't have to do much to it.

Rothschild was asked to describe what a typical day would be for him now, during cross examination by the Second Injury Fund. A typical day is just doing bills, phone calls, taking walks, doing a little exercise, laundry, dishes, he answered. Rothschild stated that he lives alone, and he doesn't have to do much to clean his house but vacuum or dust. I do my own grocery shopping, he stated, I have to drive 22-25 miles into town. Explaining how far he walks when he takes walks, Rothschild testified - My land attaches to the State gravel pit and they have got most of the gravel taken off of it and I walk up there; it's nice and flat; I don't go very far, it's probably 400-500 yards long. Rothschild agreed that he still does deer hunting once a year. When asked if he rode a four wheeler out into the woods, Rothschild responded that he doesn't have the go in the woods very far, he live right there. It's what I cut my grass with and everything, he further stated. Rothschild noted that his brother is with the Sheriff's Department and sometimes he goes over there, and goes to his house. He's got a bunch of dogs and we let the dogs swim; we barbecue and stuff like that, the claimant said. Rothschild was asked if he had made any inquiries at the Sheriff's Department whether he could work as a dispatcher or in any capacity where he wouldn't have to do a lot of walking around or heavy lifting. No, the claimant answered, I don't know if anybody would hire me because I can't sit there, you just have to sit there for hours.

During cross examination by the Second Injury Fund, Rothschild was queried - wasn't it correct that he had stated earlier that he never called in sick when he worked the jobs at Karst, and BAM. I was sick one time at the end of the job at BAM, I had a really bad sinus infection; that was the only time, the claimant responded. He was queried - wasn't it correct that it would not be unusual for a carpenter to have assistance in carrying doors that he had described weighed about 200 pounds, and in holding the prehung doors? No, Rothschild answered, there was only one carpenter usually on the job and that was your job to put it in there or hang the door yourself. The laborers weren't supposed to touch it or anything, but they knew I couldn't do it by myself and they all went out of their way to help me, he said.

On redirect examination, Rothschild stated that sometimes there were other carpenters that worked with him at Karst. When asked if he was able to do the same work they did, Rothschild stated that they would help him. Everybody would help me, Rothschild said, they let me off on a bunch of stuff because I couldn't do the job. He stated that at all three places - Karst, and Integrity, and BAM - he was given different work than the other carpenters who had no injury, and these employers lighten his work because of his injuries. Rothschild stated that his right knee and his ankle got worse when working at all three of these places. I did things at work to keep it from being in pain, like stepping up with my left leg first, the claimant stated, whatever I could do. Explaining why he went to work in that condition, Rothschild testified that he had to work, he had to have money. I had just bought my new home and everything and I was gonna lose everything, he stated, whatever it took to get money coming in. He agreed that that was the reason he applied twice for unemployment compensation; he agreed that he did this on the telephone. Testifying more about how the other workers helped him out, Rothschild stated that the laborers was not supposed to touch anything for the carpenters, he could be fined for it or thrown off the job. But they risked it and they helped me hang the doors, carry the trim in; they weren't supposed to use their vehicles to bring the material to me and they brought but a lot of it to me and helped me whenever they could; Joe Karst himself, the owner, came in and helped me on the job; they all went out of their way to help me otherwise I could not have done the job, Rothschild stated.

Rothschild testified, during redirect examination, about how his deer hunting changed after August 30, 1999 when he had the work related accident at Roloff. Well, if it got tough hunting I used to go stalk the deer and find them, but after that I just had to set there and wait for them to come to me, he answered.

Concerning Dr. Matthews and what he put in his records and whether or not he had put in his records Rothschild's complaints of his knee gave way, Rothschild stated he made many specific complaints to Dr. Matthews that the doctor didn't actually write down. When I saw Dr. Haupt I told him my knee was giving way and the doctor responded that I had had two previous surgeries on my knee, the claimant agreed. I was never seen by any doctor, hospital, chiropractor, nurse practitioner or anybody for complaints to my right knee prior to August 30, 1999, Rothschild said, and further stated that he did not know of one medical record that showed anything wrong with his right knee prior to August 30, 1999. I know of no medical record showing anything wrong with my left shoulder or my left ankle prior to August 30, 1999, the claimant said. I never had torn cartilage in my right shoulder prior to the fall at home in 2003, Rothschild said. The claimant stated that he consented to three different surgeries on his right knee because he couldn't even walk at all. I was really in pain, he said, I thought that was gonna help me.

During redirect examination, Rothschild was asked if he thought he could graduate from high school today. I've seen what kids are doing now days and it's nothing what I went through and I don't think I could; it's a lot worse than when I went to school, Rothschild responded. Rothschild was asked if he knew of any alternative employment he could do, and he answered -. No, I don't.

When I went to worked for Karst the condition of my left shoulder was that it was sore and it wasn't right, Rothschild testified during redirect examination, I couldn't do the heavy lifting so I carried it with my right shoulder because my right shoulder was real good. (Ruling: Roloff Trucking's objection to Claimant's offer of proof is sustained.) The claimant was asked when did his left ankle first start bothering him. The day I had the accident at Roloff, he answered, and after the accident it just got swollen and stiffer and sorer until I couldn't hardly put my heel on the ground. He agreed that the left ankle got progressively worse. Discussing the problems he was having in the left ankle, Rothschild testified - I had to stand on it all the time because I couldn't lock my right knee, and putting the weight on it all the time, carrying all that weight, my ankle was all swolled up, you couldn't even see my ankle bone; and it was hard to bend it, to walk on a grade of any kind.

During redirect examination, Rothschild stated that he noticed his right knee getting worse while working for Karst Construction from all the use - the heavy load-bearing, the carrying stairs and doors. He was asked to explain how it was worse, and Rothschild responded - I think I got injections all the way through this whole thing until a few months ago; it was all swollen up and it was grinding and popping; it was like gravel inside of my knee all the time. And I never could lock it; keeping your knee bent all the time you know what that is, your muscle, the claimant stated. Stating that the pain was worse in his right knee when he was working at Karst, Rothschild explained that it got sharper.

During redirect examination, Rothschild stated I never told anybody at Karst, BAM or Integrity that I had problems with my left shoulder, right knee or my left ankle, and nobody asked. Joe Karst knew but I don't know what date they knew it, he said. Rothschild stated that he had trouble getting up and down steps all the time. I had to stand up and bend over while putting on baseboard, which is not the way a finish carpenter puts on baseboard, everybody kneels, the claimant said, and I couldn't squat. Rothschild stated that he did tell Kirby -- "I cannot work anymore"? I told him this in September of 2002, he said. This was the same day when I could hardly get to my truck and make an appointment to see Dr. Matthews, Rothschild said.

The claimant was asked, during redirect examination, what if anything was different today between his typical day than what it was prior to August 30, 1999. My whole life has been a wreck, I can't do anything that I used to do, Rothschild answered, I haven't worked for a couple years now and I just can't do anything, I'm just like helpless. With the walks I take, before the fall at Roloff I would run, now I gotta hobble and watch where I step, and go short; I could just take off and do whatever I wanted, I wouldn't stay on the trial I'd go through the woods, Rothschild testified. With doing the dishes at home, it's not the same, he stated, I can't even stand there long. I have to go sit back down, and cooking supper's the same way, he said, 'cause my leg just gives out on me. Explaining why he slept on the sofa after August 30, 1999, Rothschild that it's the only place he can get his leg in a position to be out of pain; he agreed that this was true before any of the three surgeries on the knee. The three surgeries on my knee did not enable me to go back and sleep in my bed, he said.

During redirect examination, Rothschild was asked if he could work now, and he answered - No. I can't do any of the things that I know how to do; I can't stand there, I can't lift, reach, he explained. There's nobody that would hire me in the condition I'm in to do any job, the claimant stated. Rothschild stated that he would love to have his knee made better, and also both of his shoulders ad his left ankle. He was asked if he would like to go back to work. I would love to, he responded, I wish this never happened. Rothschild stated he would go to a doctor for treatment if it was awarded. I'd like to get this knee evaluated, that's my worst thing, the claimant stated, my shoulder is useless but I need to walk before I need to do anything with my shoulder.

On further cross examination by Karst Construction, Rothschild agreed that when he was seeing Dr. Haupt prior to going to work for Karst, he and the doctor did have a conversation about a knee replacement. Dr. Haupt said in the future you may need a knee replacement is what he told me, Rothschild further stated. The claimant agreed that he had testified that during his employment with Karst he was getting help from laborers and from Joe Karst in order to do his job, and this was happening basically from the beginning of his employment all the way through. Rothschild agreed that he had indicated his knee had gotten progressively worse working for Karst, and that this was also true for his employments with BAM and Integrity. Agreeing that he had testified earlier his left shoulder really did not get worse in his employments with Karst, BAM and Integrity, Rothschild explained that this was because he was using his right arm instead for putting a load up. I was using my right arm then to carry the load of my left; my right arm was my good arm, the claimant stated. Rothschild agreed that the complaints he listed in regards to his left ankle, all those symptoms occurred prior to his being released by Dr. Haupt to go back to work.

On further cross examination by the Second Injury Fund, Rothschild was asked if his left shoulder had improved since he had stopped working. No, it hasn't, Rothschild answered, now I've got trouble sleeping on it; even if I lay on that side it's real sore. With regards to my heel, Rothschild stated, it's swollen all the time. They said they couldn't do anything for it, he further stated. The heel has stayed pretty well the same since I'm not working because I keep the weight off of it now lots more; it's more swollen, it's still swollen, he said. My right knee has gotten worse; it has progressed since I left Integrity, Rothschild indicated. They call it degenerative, he said.

Kirby L. Moreland testified on behalf of Integrity Installation Incorporated. Moreland stated that he had received a subpoena by mail, but the he had relayed that he was going to come voluntarily anyway. I am not currently employed, Moreland said, I was last employed about three years ago for Integrity. I am retired now, he stated, it was indirectly a voluntary requirement. Moreland explained that the union hall took in southern part of Illinois which added 11,000 men to our already 11,000 , so it flooded our market. I have learned from one individual that insurance companies are wanting people in their 40's and younger for employment, to insure the contractors, and the ones over 40 are just plain out; so I just decided to take early requirement and go with it.

Moreland agreed that he worked for Integrity in 2002. I was the steward on jobs at both West County Mall and Plaza Frontenac Plaza, he said, and after layoff I stayed at Tiffany job and did all the punch-out work for Integrity. Moreland agreed that he knows Charles Rothschild. I met him when we started working together on the Lord Taylor (sic) store, he said, we had Clinique, and the men's fragrance, and Lancome cosmetic display units. I met him because I was the steward, Moreland stated. Explaining what they were doing through Integrity at these two mall jobs, Moreland stated that we started out with unloading the trucks, with usually Wally, a superintendent, and Michael, the foreman, doing most of the loading of the dollies. We would transport the display cases on the dollies back into where we had to install them, and then we would sort them out and set them in their close proximities, Moreland stated, and once we did that then we would come back and assemble - put glass shelves in, caulking, sometimes a piece of trim here and there, whatever had to be done. The part of the delivery process I was primarily involved in was wheeling the dollies that were loaded with the display cases into the dock, Moreland stated. Charlie and I usually were teamed up together, and usually one would be behind and one in front.

It took several trips back and forth rolling the items into the building because you got a whole semi load, Moreland stated. To get the cases off the dollies, one of us would have to lift on the end and get the other one out, and the other one pulled the dolly. Then Wally and Michael would come in and they would assign us whatever projects they wanted us to work on such as putting on the shelves or whatever. It didn't require anymore lifting at that point, Moreland said, we did have to put the units in their exact location, and then from that point on is when they were divided up, just about singled out. They were taller, about six and a half to seven feet tall and about three and a half feet square, roughly, and all those units had to go together to make a long display. I never weighed these individual units but I would guess when we would lift on them it would be somewhere around a hundred fifty to 200 pounds. I tried to lift one alone once and I could do it, Moreland said, but after that I said, we're going to get two guys on them and lift them.

Later after, when we was on the next job, I learned that he had a problem with his leg and I made sure to do all the lifting I could and he'd just pull the dollies, Moreland stated. There was very little to some lifting on the job; we might have to move the cabinet in place then work on it for a while before we could do the next one, he said. Explaining what was involved when you would butt up the cases or get them in place, Moreland stated we would shove them and butt them against each other until we was on the line, and then it was just a matter of fastening the units with bolts. We would put the shelves in later, he said. The only lifting in this part of the job was just lifting the glass shelves which weigh 15 pounds maybe, Moreland said.

When I and Charlie Rothschild first started working together for Integrity I was not aware of any type of problem with his knee, shoulder, or ankle, Moreland said. We were on the Tiffany job, that last one together, about one-fourth to one-third of the way through the job that I was made aware that Rothschild had a problem with his knee, ankle, or shoulder, Moreland stated. I was putting the mark on the floor so we could snap a line, and when Rothschild did he kept the one leg straight and the other one was bent. I thought, well, what in the world is going on with him? About a day or two later he came to me and said: "Can I talk to you in confidence?" And I said: "Sure. What's the problem?" And he said: "I've got problems with my right knee." And he said: "I just can't do some of that bending." I told him: "Well, I have told you I can keep this in confidence." But I said: "What I want you to do is go to the foreman and tell him so's that he'll know what to do and he can assign you things that will work for you." It was about a day or two later Charlie came back and says, "I took your advice and I told him." Moreland agreed that it was just the right knee that Rothschild told him about. He was asked if Rothschild had ever told him anything about his left shoulder or left ankle, and Moreland answered - Not that I can remember, he might have later on but definitely not at that time. The day that Rothschild told me about the problems with his knee he just mentioned being on it made it hurt, just his own body weight; that's what I remember, Moreland said. Agreeing that there was a point toward the end of the job that required them to do some base work around the display cases, Moreland that when they first started Charlie came over and said he couldn't get down there to do the work, it hurt too much to do that. I told him to go tell Perry, the foreman, and Perry would put him own something else. Charlie Rothschild was on the job with Integrity, to the best of my recollection, roughly five weeks, Moreland said.

When asked if Rothschild worked to the end of the second job at Tiffany, Moreland answered - What I remember at the end of the job we were getting down to where we had probably a half a day for all four of us. Either that or possibly one day earl, he said, I don't really remember real close on that. Anyway, Charlie wanted to go home early seeing's how it was only going to be part of a day, Moreland added, and that did let the rest of us get around six hours. It was gonna be the last day on the project for everybody but myself, Moreland said, I stayed on to do the punch-out work. Moreland stated that he remember a time before this where Rothschild left telling him something about going to the doctor. He said he had a doctor's appointment and needed to take off work, so he did, Moreland said. He was asked if Rothschild had told him that he was leaving the job site that day because his knee was too painful from standing that he couldn't do it anymore and he had to go to the doctor. I know his seeing the doctor was because of the leg, but he didn't put it that way; "I got a doctor's appointment to attend to the leg" was the idea, Moreland stated. Rothschild came back to work for Integrity after that day that he left to go to the doctor's appointment, he said. Agreeing that

Rothschild had come back and assisted him when he was doing the punch out, Moreland stated that there was one day that he needed a second hand to lift a counter top off. When I figured out I was going to need a hand, I was looking for his phone number and the phone rang and when I answered it, it was Charlie, so I didn't have to finish finding the number, Moreland said. I asked him how he was doing and Rothschild said he wasn't feeling chipper because he had no way to earn money, no food and so on, Moreland stated, and I told him, what I was gonna call you for, we have got about a half a day of work, that would get some grocery money for you. I told him that it was changing a glass top, and if he thought he could do it then he should decide what he wanted to do, Moreland said. Rothschild said he could do that, and he came in. It was probably around 10:00 before we was allowed to get to it; I did all the preliminaries I could, I told Charlie - "Sit down. Take it easy.". When we got the top done I added, probably paid him for six hours or eight hours, Moreland said. We only had about four hours of work, and he needed money for groceries so I added some in then I turned around and worked that many hours that I added so's I did not charge the company, Moreland said. Explaining what he had Rothschild assist him with, Moreland stated it was a counter top and he had Charlie on one end and he I took the other end, and before they did any lifting he worked it lose and had Rothschild shove a shim in it so's that we'd have a place to get our fingers under without any problem and made it twice as easy to lift. Once we got it shimmed up then I said - Let's just try lifting and load ourselves and see what it's gonna do, and if you feel anything at all you let me know, we'll stop. Moreland stated that he meant Rothschild's knee or anywhere. So anyway, we got it ready; I had Charlie stand right by the end of the panel that we were lifting and I placed the horses that we had to lay it on after we got it off. When we got it up where we could move away I walked around with it, Moreland said, and all Charlie had to do was stand there braced against the top and lift and set it there. When we got done I asked him how did he feel, and Rothschild answered - Didn't hurt a bit; I used my other leg. Then we changed the glass top and we set it back on the same way, he said. It took about 45 seconds to lift it the first time and about the same amount setting it back on, Moreland said. Rothschild did not do any other physical labor that day, Moreland said, I just told him to take it easy 'cause all we needed was that.

Moreland was asked if at any time on the job with Integrity did he see Rothschild do anything to his leg or knee that looked like he suffered an injury. There was no injury on the job whatsoever from any of the trades, anyone, anywhere, Moreland answered. He was asked if Rothschild had ever told him during this time at all that the job activities at Integrity were making his knee condition worse. Not like that he didn't, Moreland answered, he told me a time or two that it was hurting, but I didn't consider that to be related to the job because it was already damaged. He was asked if Rothschild had ever told him it was those job duties at Integrity that were causing him the problem that he was having with his knee. No, Moreland answered.

On cross examination by the claimant, it was noted that Rothschild had testified that he had Moreland - "I've got to leave, I can't work anymore." I don't remember that being said like that at all, Moreland responded. He was asked if he knew Rothschild wore a brace on his right knee. After he told me in confidence what was going on then I knew it was a brace on there, Moreland answered. He agreed that as the steward, if anyone complained to him about anything he had a duty to report it to the company, and that would've jeopardized Rothschild's job. That was Rothschild's concern, Moreland responded, that he would be laid off if it was told. Moreland agreed that if Rothschild had told him of problems he was having with his left shoulder, his right knee and his left ankle, he would have had to report Rothschild and jeopardize Rothschild's job. Later on I found out that Rothschild had fallen off a truck in 1999 and had fallen 12 feet to the ground, Moreland said. It was close to the end of the job that Charlie relay this to me, Moreland said, but there was nothing associated with it being a real problem at that time. Agreeing that Rothschild just happened to tell him about falling off a truck, Moreland further stated that Rothschild said that he was trying to get settlement on it and that they were fighting him on it. Moreland stated that Rothschild never told him that he had a torn rotator cuff in his left shoulder. He was asked if he had known whether Rothschild was using his right shoulder and right arm much more than he was using his left shoulder or left arm when Rothschild was working with him. When we were working together I didn't notice any abnormality at all, Moreland answered. No, I didn't notice anything that would have indicated a torn rotator cuff of the left shoulder, or would have indicated a sprained ankle, Moreland said. He was asked if it was a surprise to learn that Rothschild had had those maladies. I don't know that he does have them, Moreland responded.

Moreland stated, during cross examination by the claimant, that he had retired from work about three years earlier and has been living on, his retirement from his carpenter's pension. He stated that his education is 12th grade, high school.

During cross examination by the claimant, Moreland stated that it did not seem strange to him when Charlie told him he could not get down to do the baseboard. He'd already told me that earlier that he had trouble with his leg, Moreland testified, and that's when I told him, go and see Perry, the foreman, and have him put you on something you can do.

On cross examination by Roloff trucking, Moreland agreed that he also worked on a day-to-day basis with Rothschild on the first job which was the Lord \& Taylor West County Mall job. Moreland stated that it was correct that on that first job he had no indication in any way that Rothschild had any physical ailments or physical problems based on how he did his work. No problems that was visible that I could tell anything about, Moreland testified. Moreland agreed Rothschild lifted things, and he stooped, squatted and things like that on the job. We worked eight hours a day, sometimes ten, Moreland stated. He was asked how many days of those eight to ten hours days did he work with Rothschild on the West County Mall Lord \& Taylor job. That was sporadic, Moreland answered, sometimes might be together a day or two and might be pulled off for a few hours, then we might be back again. That's hard to answer and be very accurate, he added. At the Tiffany job at Frontenac, the second job we worked together everyday, Moreland testified. But at Lord \& Taylor we were divided up several times and would go a single operation on things; probably 15-20 percent at the very most we would be teamed up, Moreland stated. The job at the West County Mall, Lord \&

Taylor, took about 14 days, he said. In those 14 days whenever I worked with Rothschild he never appeared to me to have any kind of physical ailments at all, Moreland said. As far as I was concerned, Moreland agreed, Rothschild was doing the job as well physically as I or the other men were on the job. He was queried - wasn't it correct that it wasn't until near the end of the second job at Tiffany's at Frontenac that he first learned, by looking at Rothschild's leg being straight, that Rothschild had a physical problem? Not at the end; it was about one-fourth to one-third of the way through the job, Moreland testified, that's the first incident that I had any kind of question. And then he verified the next day that he had a sore leg out of it, Moreland stated.

On cross examination by Karst Construction, Moreland agreed that once he did find out that Rothschild had a problem with his knee he helped Rothschild out whenever possible. Moreland agreed that he did the bulk of the lifting after that and things like that. He could lift some if he wanted to or decided to, Moreland added. I explained to Rothschild that he was not to do anything that would cause him any pain or discomfort at all, Moreland testified, I said, if it's gonna, you say so and we won't do it.

On redirect examination by Integrity, Moreland said that when Rothschild first came to him and told him he had a knee problem and had a brace, Rothschild told him in confidence. In confidence meant not tell anyone else, Moreland stated. I didn't relate it to him trying to hide, it was basically he was afraid of getting laid off if someone else found out, Moreland said. He was asked - Rothschild hadn't told anybody, to your knowledge, that he had this problem? I was the first one as far as I know, Moreland responded.

On further cross examination by the claimant, Moreland agreed that he had stated earlier that when he saw Rothschild in the beginning he hadn't noticed any problems. Moreland was queried - but you did notice problems at Tiffany's in Plaza Frontenac. Not until the day I saw him bend over funny to mark the floor, Moreland responded. Rothschild had been working probably a month and a half to two months, he answered. Moreland was asked - you're saying in the beginning you didn't notice anything but after Rothschild had been working a month or two you noticed without him telling you anything that he was having difficulty with his right knee? Because it was a very unprofessional stance and I wondered about it, and I still didn't know at that time, Moreland answered, and it was the next day or two when he came and voluntarily informed me that he did have a problem.

Medical records of Fischer Chiropractic Center (No. D) reflected treatment of Rothschild during the period of 8/31/99 through 11/23/99. The record began with a Workmen's Compensation Questionnaire in which Rothschild wrote of an 8/30/99 work injury at Roloff Trucking - "Climbed upon truck to pull off limb broken off in tarp shield as I was jerking on limb it suddenly broke free \& lost my balance \& jumped clear to avoid falling landed wrong \& twisted knee" . Rothschild wrote that his problems were "Lifting \& left arm \& right knee is pain full when bending or trying to stand straight". Rothschild indicated on the questionnaire that he reported the accident to "Ralph/Ramona/Dr. Fischer"; he wrote that he was referred to Dr. Fischer by "Dan Scego". In the second form in the record, in the Symptoms/History section, it was noted that this injury had occurred on 8/30/99, and Rothschild had noticed symptoms the morning of 8/31/99. September 7, 1999 x-ray reports in the record noted the following findings: a. left shoulder - no acute fracture, no acute pathology; and b. right knee - osteophyte from the superior pole of the patella, also some calcification seen at the attachment of the muscle at the patella region, two small calcific densities noted on the tunnel view in the tunnel itself, narrowing of the medial femoral-tibial joint space. The written impression concerning the right knee in the 9/7/99 xray was: 1. no evidence of fracture; 2. osteoarthritis of the femoral patellar and medial femoral-tibial joint space; and 3. Possible joint mice in the tunnel of the knee.

A Lumbar -- Orthopedic/Neurological Exam form dated 8/30/99 noted among the findings for the right knee: 5 degrees loss of extension, valgus stress - medial knee pain. A cervical --Neurological/Orthopedic Exam form dated 8/30/99 noted among findings for the left shoulder. An 8/30/99 Consultation Record - Fischer Chiropractic Center reflected an assessment of: a. Left rotator cuff injury, possible tear; and b. right knee Grade 1 Grade 2 sprain, possible meniscus injury; the form indicated treatment was given to the left shoulder and right knee. Subsequent entries were handwritten notes, i.e. 9/10/99 - Rothschild's complaint that the right knee felt very unstable when he walked on uneven ground, pain with walking, and left shoulder is sore and achy too; 10/07/99 - shoulder continues to bother \& knee has increased swelling; 11/2/99 - got a cortisone shot, still limping, and shoulder and knee still have pain; 11/23/99, the last treatment entry indicated continuing problems; a 1/17/2000 note stated - Knee surgery.

The record included an October 20, 1999 letter by Dr. Fischer, D.C. to Dr. Thomas Matthews, M.D.. Dr. Fischer wrote that Rothschild first presented on 09/01/99 for injuries to his left shoulder and right knee; it was noted that the diagnosis was - left rotator cuff tear, and Grade II sprain strain of the right knee with a possible loose body. Dr. Fischer wrote a request for Dr. Matthews to evaluate Rothschild and send him a report of findings; Dr. Fischer further wrote that he would continue to treat unless Dr. Matthews felt another course of treatment was needed. A 10/28/99 report of an MRI of the left shoulder ordered by Dr. Matthews was in the record (See, also No. J), and reflected the following opinion: 1. Complete tear of the supraspinatus tendon at its insertion; 2. Laterally downward sloping acromion with prominent spurring. This is causing a moderate degree of impression on the supraspinatus tendon; and 3. Mild degree of osseous reactive change in the region of the insertion of the supraspinatus tendon.

Dr. Thomas D. Matthews, M.D.'s treatment records (See Attachments, Claimant's Exhibits Nos. B and B-1) began with an October 20, 1999 evaluation report to the workers' compensation insurance company. The doctor wrote that Rothschild presented for evaluation of right knee and left shoulder pain he sustained when he slipped and fell out of his truck bed in late August sustaining a twisting injury to his right knee and left shoulder. Dr. Matthews noted in his October 20, 1999 report: "Radiographs of

the knee show loose bodies in the intercondylar notch. Evidence of old osteochondritic dissecans lesion and degenerative changes as well". The doctor further wrote that radiographs of the shoulder were unremarkable. Rothschild is advised to undergo an corticosteroid injection in the right knee and an MRI of the left shoulder to rule out rotator cuff tear, Dr. Matthews wrote. In an 11/3/99 entry, Dr. Matthews wrote that a complete tear of the supraspinatus at the insertion was evident on the MRI. The patient is advised to consider rotator cuff repair, the doctor wrote. In an 11/10/99 entry Dr. Matthews wrote that he had discussed options of treatment including outpatient physical therapy, injections, etc. "He would like to try his chiropractor for awhile", Dr. Matthews wrote, and "I told him that was ok, however if symptoms increased or got worse arthroscopic evaluation and decompression and rotator cuff repair would be recommended". In a 12/08/99 entry, it was noted that Rothschild reported that his shoulder had improved, but his right knee had increasing pain and loss of motion. Dr. Matthew's record indicates that he performed on 01/19/00 right knee arthroscopy on Rothschild. After post-operative treatment including medication, physical therapy and injections with some improvement, it was noted in a 03/28/00 entry that Rothschild continued to complain of pain; arthrocopic evaluation of the knee again for debridement was mentioned in the next entry of 04/19/00. In May 2000 Dr. Matthews wrote that if Rothschild wanted to return to work his climbing in and out of a truck was his main restriction and he did not think that was feasible for Rothschild at that time; in a 06/07/00 entry it was written that Rothschild was off work until surgery. A 06/22/00 entry stated right knee arthroscopy debridement. In the next entry of 06/29/00, Dr. Matthews wrote the following:

He comes in today one week after debridement of his knee joint. Again, his osteochondral defect is pretty significant. The margins were debrided. Some loose bodies were removed. Other than that, nothing else can be done arthroscopically.

In the next entry of 07/12/00, Dr. Matthews wrote that Rothschild was three weeks out from his scope and second debridement of his medial femoral condyle defect. The doctor further wrote that Rothschild was advised to continue a range of motion program on his own level and let his knee calm down at that time; the doctor wrote that he wanted to see Rothschild back in one month for recheck.

The next entry in Dr. Matthews' record was a 01/15/02 entry in which the following was written:

He comes in today for an opinion regarding his right knee. He apparently had an osteochondral transfer graft to the medial femoral condyle by Dr. Haupt in St. Louis last year. Since that time, his knee has been bothering him somewhat with occasional swelling and stiffness and inability to squat and inability to get down on the leg. His other knee is bothering him as well.

Dr. Matthews noted that radiographs were obtained and showed "sclerosis of the medial compartment, but good joint space is maintained. There is some patellofemoral narrowing, as well. There is a flat spot on the lateral of the medial femoral condyle that is notable". Dr. Matthews' assessment on 01/15/02 was - Posttraumatic osteoarthritis of the right knee. The doctor wrote the following in the treatment plan section of the 01/15/02 entry:

Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee.......I believe he does have a 50-60\% disability of the knee, but my most significant concern is the problems in the future.

Dr. Matthews prepared a May 2002 report to the claimant's attorney in which he wrote the following:

I have reviewed Mr. Rothschild's chart. As you know, this gentleman claims injury to his right knee while at work prior to an office visit he had on 10/20/99. The evaluation of the left knee at that time showed x-ray evidence of an old osteochondritic dessicans lesion of the medial femoral condyle. In spite of conservative measures which failed, knee arthroscopy was recommended. At the time he was noted to have an old osteochondritic lesion which was debrided. Temporally the lesion that he had in the knee at the time of the arthroscopic evaluation could not have specifically been caused by his work related injury, however, the development of subsequent symptomatology, swelling and pain, could have been brought on by that particular injury and thus necessitating the subsequent surgeries that this gentleman has had. The patient has stated that he had no problem with his knee prior to the work injury, which is consistent with a stable OCD lesion. The twisting and/or wrenching of his knee at the time of injury could have fractured and/or dislodged the lesion to the point that he became symptomatic. So in essence, the patient did have a pre-existing lesion which was essentially asymptomatic and/or subclinical and the work related injury aggravated this condition to the point that it became clinically symptomatic in need of treatment.

Further treatment and/or therapies could include arthroscopic evaluation of the knee, partial and/or total knee replacement, in addition to, the normal and customary office visits, x-rays, physical therapy, etc. I believe that these treatments are more likely than not to occur in the future, for this gentleman suffers from a progressive degenerative problem with his knee, which undoubtedly will continue and be in need of medical attention in the future....

In the next treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit........

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote of the treatment given that day, and that Rothschild was to return in three weeks. The doctor further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr. Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visit, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

A 09/20/02 treatment entry in the record indicated that on that date Rothschild returned for reevaluation of his knee. The doctor further wrote: "His knee symptoms have not significantly abated. He has developed some mild sciatica on the right side." After discussing examination findings, Dr. Matthews wrote that he thought this was more inflammatory process than a disc or any other problem. A Medrol Dose Pak was recommended, and it was written that Rothschild was to return in about three weeks, and was to be off work until seen back. In the next entry of 10/11/02, it was written that Rothschild was in "mostly for all of his social issues in regards to lack of workmens comp coverage"; it was noted that he continued to complain of medial pain. Dr. Matthews further wrote in the 10/11/02 entry: "The patient again is advised either uni or total knee arthroplasty in the future when his insurance issue is resolved. He can return to see me back on a prn basis. If any problems develop he will let me know."

Dr. Matthews wrote an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle:

I feel that his left knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort. This condition is usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point.

The next treatment entry was dated 08/20/03, and it was noted that Rothschild came in for evaluation of his right shoulder. Dr. Matthews further noted:

He apparently fell down some steps injuring his right shoulder about three weeks ago. He sought attention from his chiropractor, which failed to resolve his symptoms, and radiographs accompany him today. He describes having a giving way episode with his right knee, which has been chronic and landing on his right upper extremity. Since that time he has been unable to forward elevate and abduct the arm.

The doctor's impression on 08/20/03 was - rotator cuff tear right shoulder, traumatic and acute. An MRI was scheduled to verify. An 08/29/03 entry stated that the MRI showed a complete tear of the supraspinatus tendon, and that physical therapy was being scheduled as Rothschild did not want surgery, and an injection might by then administered if symptoms continued. The next entry of 09/03/03 noted that Rothschild was in for reevaluation of his right shoulder; it was written that an injection had been administered and physical therapy was continuing. The next entry of 09/24/03 noted that Rothschild was in for reevaluation of his shoulder, and that he had been attending outpatient physical therapy and his passive range of motion had improved. He was given a parking sticker for his knee as a permanent handicap sticker, Dr. Matthews further wrote in the 09/24/03 entry. The last treatment entry of 10/22/03 noted that Rothschild was in for a recheck of his right shoulder, and that he was moving it much better, and that he could now do most of his therapy at home. It was indicated in a 12/03/03 entry that Rothschild had cancelled this appointment

Dr. Matthews prepared a September 12, 2003 opinion letter to the claimant's attorney which included the following:

As I discussed with you later employment (subsequent to the August 1999 injury) which supposedly caused Mr. Rothschild to bend, stoop, twist and run on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. ...

Dr. Matthews, in a September 29, 2003 letter, addressed further inquiry from the claimant's attorney in regards to the right shoulder injury:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon. Mr. Rothschild wants to pursue nonoperative treatment for this problem and has been attending outpatient physical therapy...

With regard to the hypothetical that you posed in your letter, I believe that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

I am anticipating some improvement with continued physical therapy and conservative management. I think the end-result is unclear to me at this point, how much function Mr. Rothschild will gain from this conservative management. Mr. Rothschild may need surgical intervention with the shoulder.....

Medical records of HealthSouth Tri-County Surgery (No. E) were surgical records of procedures performed on Rothschild's right knee by Dr. Matthews on 01/19/2000 and 06/22/00. In the 01/19/2000 surgical report, Dr. Matthews noted a history of: "This 46-year-old gentleman is taken to the operating room at this time to undergo arthroscopic evaluation for continued knee swelling. Recent radiographs confirm OCD lesion with displacement in the medial femoral condyle." On 01/19/00, the preand post-operative diagnosis was the same - right osteochondritic dessicans of right medial femoral condyle with potential loose bodies. The procedure performed on 01/19/00 was: Removal of OCD lesion, debridement of medial femoral condyle.

In the 06/22/00 surgical report, Dr. Matthews noted a history of: "This 47-year-old gentleman is taken to the operating room at this time to undergo right knee arthroscopy. He is 6 months post right knee arthroscopy for debridement of the medial femoral condyle, old osteochondritic dissecans lesion. He continued to have swelling and marked pain with his knee joint. He was advised arthroscopic evaluation and re-debridement at this time. The risks and benefits including no guarantees for decreased pain have been explained to him, he understands this and is willing to proceed." On 06/22/00, the pre-operative diagnosis was - right knee medial femoral condyle defect; and the post-operative diagnosis was - same, chondromalacia patellofemoral joint.

Medical records of the Herman Area District Hospital (No. G) were records of physical therapy to the right knee by referral of Dr. Matthews after the 01/19/00 right knee arthroscopy. A Plan of Care/Referral form, dated 1/19/00, listed goals of increased range of motion, increase mobility, patient education and home program. The physical therapy record indicated that Rothschild was seen for the first time on 01/25/00; initial notations included - pain seems now as before surgery, and using ice a lot seems to decrease swelling. A $1 / 28 / 00$ entry included Rothschild's comments - "it feels like there s something right under my knee cap", and that he reported the knee was still tight and sore. The final physical therapy treatment entry, dated 2/01/00, noted Rothschild's comments that his pain remained the same, and there was a lot of "clicking" in his knee, and his knee "gives out". The 2/04/00 entry indicated that Rothschild canceled due to a death in the family; the 2/08/00 entry stated that Rothschild was a no show/no call' the final entry of 2/11/00 stated that Rothschild was contacted and he stated that the doctor had discontinued therapy at that time. Further written in the 2/11/00 entry was that Rothschild felt there was something still wrong with his knee, and the doctor wanted him to rest it.; it was noted that Rothschild was discharged at that time, goals were unable to be met.

Medical records of Dr. Herbert Haupt, M.D. (No. 2) concerned the treatment of Rothschild during the period of August 1, 2000 through the completion of treatment on March 20, 2001. In the initial examination report of August 1, 2000, Dr. Haupt noted that Rothschild's chief complaints were - right knee/left shoulder injury. The doctor wrote the following about the history of present illness:

Mr. Rothschild presents today for evaluation of upper and lower extremity complaints. He drives a dump truck. On date of

injury noted to be $8 / 30 / 99$, he was pulling a limb out of the cab shield on his dump truck, he lost his balance and fell about 12 feet to the ground, suffering injury to his left shoulder and right knee. He does not recall exactly how he landed, but does recall injury to these two areas.

Dr. Haupt then discussed the testing and treatment Rothschild had received, including the results of an MRI scan of the left shoulder and what was demonstrated upon two arthroscopic procedures performed on 01/19/00 and 06/22/00. The patient denies any previous history of complaints regarding his right knee or left shoulder prior to the work-related injury, Dr. Haupt wrote. The doctor's written assessment on August 1, 2000 included the following:

1) Right knee discomfort that appears to be an element of a preexisting condition as noted by early closure of the medial compartment just days following the work-related injury and evidence of an osteochondral lesion that appears to be potentially old and preexistent to the work-related injury. Certainly, that injury at work would certainly at minimum have acted a trigger to the preexisting condition. It is also possible that in fact it did knock loose that osteochondral lesion. It is very difficult to tell based just upon the information I have available today.... I am concerned about the degree of the lesion at the medial femoral condyle. The information available is just not clear enough to clearly determine how badly the medial femoral condyle may be affected by this lesion.

2) Left shoulder findings of a rotator cuff tear on the MRI scan may or may not be accurate. He certainly has significant degenerative changes noted at the AC joint as well as a Type III acromion, all considered preexisting. A full thickness rotator cuff tear has to be considered. This would be considered a direct result of the work-related injury.

An August 4, 2000 MRI (No. H) of the right knee performed at Missouri Baptist Medical Center at the request of Dr. Haupt noted the following clinical history: "Right knee pain increasing in severity over the last two weeks. The patient has had two prior knee surgeries." The second page of the August 4, 2000 right knee MRI, apparently containing the impression, was missing from this exhibit.

An August 4, 2000 left shoulder arthrogram (No. H-1) performed at Missouri Baptist Medical Center at the request of Dr. Haupt noted the following clinical history: "patient sustained an injury on 08-30-99 and has had shoulder pain since that time. Clinical concern is for rotator cuff tear. The written impression was - Complete rotator cuff tear; it was instructed to refer to the discussion above, which included - findings suggesting an old left clavicular fracture are identified.

In the next examination report of August 10, 2000 (See Exh. No. 2), Dr. Haupt wrote that an arthrogram and MRI scan had been completed, and demonstrated a complete rotator cuff tear. It was noted that a knee MRI had been completed and demonstrated the area of the osteochondral lesion without evidence of avascular necrosis. In the September 20, 2000 examination report, Dr. Haupt wrote the following: "Mr. Rothschild notes a marked improvement in his shoulder function with the help of therapy, but his knee complaint is becoming more and more bothersome. He complains of pain primarily anteriorly about that right knee. He denies any new injuries." Dr. Haupt's assessment on September 20, 2000 included the following:

1) Shoulder is actually doing quite well with conservative management in physical therapy.

2) Persistent complaints in the right knee that appear to be primarily patellofemoral in nature, but also has medial compartment discomfort in the area of the osteochondritis dessicans. Reviewing his operative notes, I note that during the first operative procedure performed in January 2000, it was noted that the "superior patellar pouch where the articular surface of the patella and corresponding femoral trochlea were found to be relatively unremarkable".

However, on the second operative procedure that was performed on June 22, 2000, it was noted that "the superior patellar pouch, the articular surface of the patella and the femoral trochalea were evaluated and found to have Grade II chondromalacia changes".. This suggests that there has been interval change within the area of the patellofemoral joint and this may presumably be a sequelae to the first operative procedure that may have resulted in contractures about the patellofemoral ligaments, resulting in malalignment and the development of the chondromalacia. This area seems to be the predominant source of his discomfort at this point. Treatment recommendations at this point by Dr. Haupt were:

Regarding his shoulder, he is doing well with the conservative management and it is appropriate to continue that effort. Regarding the patient's knee, with the persistent complaints in the area of the patellofemoral joint, I have given him two options for care and treatment. These include a corticosteroid injection with further efforts at therapy to see if we can break through his complaint or to proceed with arthroscopic management to assess the degree of injury at the OCD and also at that point, debride the patellofemoral joint and potentially perform a lateral release to improve mechanics.

A 10/13/2000 operative report of HealthSouth Surgery Center of West County (No. F) concerned the third right knee procedure which was performed by Dr. Herbert Haupt, M.D. The pre-operative diagnosis was: right knee - osteochondral defect, medial femoral condyle, patellofemoral joint chondromalacia. The post-operative diagnosis was: right knee - posterior horn tear of medial meniscus, quarter size osteochondral defect down to subchondral bone of medial femoral condyle with a larger circumferential area about 2-3 cm diameter of the medial femoral condyle and Grade chondromalacia, evidence of partial anterior cruciate ligament tear but considered competent, marked Grade 4 chondromalacia of the femoral trochlea, and Grade 2-3 chondromalacia of the patella.

In the November 21, 2000 examination report (See Exh. No. 2), Dr. Haupt wrote that Rothschild was doing well with his left shoulder, that he had no major complaints., and that the therapist noted he was progressing quite well with therapy. Dr. Haupt further wrote: "His right knee, however continues to be a complaint. He still ambulates with crutches and has a fair amount of swelling primarily posteriorly about the hamstrings." The doctor wrote that the knee was aspirated of serous fluid, and then was injected with medication; physical therapy was continued. Dr. Haupt wrote in the next examination report of December 5, 2000 that Rothschild was doing much better with his knee, that he had seen some improvement in soreness and swelling with the aspiration and the injection. Examination findings on December 5, 2000 were:

Examination today demonstrates he lacks full extension by just a few degrees. At this point his swelling is markedly improved. He is able to ambulate without the use of crutches.

Shoulder examination demonstrates passive range of motion is full. His active abduction and external rotation strength is approaching $4 / 5$.

Dr. Haupt wrote that physical therapy would continue for three more weeks and Rothschild would continued with the medication Ultram for discomfort. In the next examination report of January 2, 2001, Dr. Haupt wrote the following: "Mr. Rothschild was doing well until about 2 weeks ago. He then developed increasing swelling and discomfort about his knee. He is doing well with his shoulder, with no major complaint." Dr. Haupt's assessment on January 2, 2001 was:

Persistent inflammation and discomfort with evidence of medial compartment degenerative changes noted secondary to work related injuries. The patient's increased swelling is secondary to rebound after the injection has worn off.

The treatment plan included continued physical therapy, and a valgus unloading brace "to unload that medial compartment to see if that will provide some symptomatic relief and allow that medial compartment to have a better opportunity for healing", the doctor wrote. In the January 22, 2001 examination letter, it was written that Rothschild was noticing that his left shoulder was doing well with home therapy but it seemed to be getting weaker, and that the right knee was still quite uncomfortable with attempts at physical therapy which was confirmed by the therapist's notes. Physical therapy was continued for the knee and resumed for the left shoulder. The next examination report of February 12, 2001 noted that Rothschild reported the brace had really helped his right knee discomfort and without the brace he still had a fair amount of medial compartment discomfort; it was written that the left shoulder was progressing in therapy. The doctor further wrote: "Today he mentions that he is having a complaint of numbness in his right leg. He has pins and needles down the leg as he is driving for any length of time. He indicates he has had this tingling and numbness even before he had the sport brace applied. He does not recall exactly when it started but it seemed that to be sometime after the most recent surgery." Dr. Haupt noted the following in his next examination report of February 27, 2001:

His major complaint at this point is numbness that occurs with prolonged sitting activities while driving or even prolonged standing activities. He complains of the whole leg becoming nub, especially distal to the knee. He has completed the workup by Dr. Peeples which notes a normal neurologic examination on electrical studies. This rules out any significant neurologic dysfunction causing his complaints.

Examination findings on February 27, 2001 were:

The right knee has minimal to no effusion. He can actively extend the knee. He is able to ambulate but still has a mildly antalgic gait but it is improved.

Shoulder examination demonstrates a full range of motion. No dysfunction noted.

The assessment on February 27, 2001 was: "This patient overall has improved quite well regarding his knee complaints as well as the shoulder complaints." In the treatment plan section of the February 27, 2001 report, Dr. Haupt wrote that his recommendation was for Rothschild to resume full duty. "He apparently has an opportunity to pursue work activities outside of his current employment and he wants to consider that.", the doctor wrote. Physical therapy was continued, geared more to doing piriformis stretches and strengthening as well as hi range of motion and strengthening, and Rothschild was to return in 3 weeks so that his overall progress could be assessed. A March 7, 2001 form completed by Dr. Haupt was in the record and indicated that Rothschild was placed on limited duty - sit down activities only; the form indicated Roloff Trucking as the employer.

Dr. Haupt prepared a March 20, 2001 examination report in which he wrote that Rothschild indicated he did see some improvement in his leg pain with the injections at trigger points performed by Dr. Yadava and with the modifications in his physical therapy program. It was written that Rothschild further indicated that his knee and shoulder were actually doing quite well though he still has the complaint of pain down that leg with prolonged sitting or driving or standing, and a tingling and numbness that occurs in the knee on down the lateral and posterior aspects of the right leg. Examination findings on March 20, 2001 were:

Examination of the right knee shows full extension and flexion. No effusion. He is stable to varus and valgus stress. Shoulder range of motion is considered full. Good active abduction and external rotation strength.

No obvious sensory deficits on today's examination. Motor, sensory, and DTR's are intact.

Dr. Haupt's assessment in the March 20, 2001 examination letter was: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt wrote that he would defer further medical management to Dr. Yadava. Rothschild is continued on light duty status until he sees Dr. Yadava next week, Dr. Haupt further wrote, and the written restrictions were - "steps and stairs only to enter a truck, car or building. Limited lifting of 50 pounds and no ending or squatting activities". Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent ( 6 % ) at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent (17\%) at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

"He has been advised to wear the valgus unloading brace for a prolonged period of time to help symptomatic relief of his discomfort", Dr. Haupt further wrote.

In a separate March 20, 2001 examination report, Dr. Haupt wrote that Rothschild's chief complaint was - left ankle discomfort. In the history section of the report, Dr. Haupt wrote the following:

Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed or him by me. After discontinuing the Vioxx medication within in about two days he developed the onset of soreness about the lateral aspect of the left ankle. He denies any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle.

He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of. (sic)

Examination findings on March 20, 2001 were:

Examination today demonstrates, by his own admission, a 50 % improvement in the soreness he noted over the weekend. Examination demonstrates no apparent swelling. Range of motion is considered intact and full. Stable to varus and valgus stress. He complains of soreness, however, on anterior drawer as well as with varus stress of the ankle. His anterior drawer is considered negative. He is tender to palpation at the anterior talofibular ligament. There is no swelling noted. His Achilles tendon is normal. When he weight bears his arch appears to be normal. There is no plantar aspect of pain noted.

Routine plain films are really rather unremarkable. No acute or chronic changes noted. These are rather benign appearing plain films.

Dr. Haupt's written diagnosis on March 20, 2001 was:

Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury. It is possible that he has had some inflammation about that ankle was masked with the use of the Vioxx medication and became apparent upon discontinuing the anti-inflammatory medication and is more or less a rebound effect.

Dr. Haupt wrote of his treatment recommendation in the March 20, 2001 report:

Treatment recommendations are that he can pursue appropriate strengthening on his own, and we taught him a few exercises. In addition, I recommend the use of over-the-counter anti-inflammatories in an effort to cut down on some of the inflammation about the ankle. This can be in the form of Aleve.

There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises.

Dr. Ravi Yadava, D.O. record (No. 3) began with a March 14, 2001 examination report in which Rothschild's chief complaint was noted as - right leg numbness and tingling. The August 30, 1999 work related accident was discussed, and Dr. Yadava wrote that Rothschild relayed that he has been in pain ever since the accident; it was noted that stated that sitting reproduced numbness and tingling on the lateral aspect of his right leg. Dr. Yadava wrote of Rothschild's medical history, his occupational history, and of his examination findings.

The doctor included the following in the Summary Section of his March 14, 2001 report:

He has had a total of three arthroscopic procedures on the right knee. He has had persistent pain and impairment. He has

done relatively well with his medial unloading brace. He has done relatively well with his therapeutic program. He is having some numbness and tingling. His electrodiagnostic study is unremarkable. He does not have anything on his physical exam that concerns me for radiculopathy, plexopathy or true neurogenic basis for his pain and impairment. I think his numbness, tingling and pins and needle sensation is referred pain of a myofascial etiology. The kind of modification to his rehab program we have provided today will serve him quite well and help him achieve (?hi?)s goals in a more timely and cost effective fashion. I think these trigger point injections will facilitate this and minimize the use of medications. I feel he will not require medications and/or procedures in the long term......

In his last examination report of March 28, 2001, Dr. Yadava wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. The doctor wrote of his findings upon examination of Rothschild which were:

In the seated position, he has remarkable improvement in his soft tissue evaluation along the peroneus musculature. Previous area of trigger point injection have resolved. He has some nodularity, but no taut bands or trigger points. There is no vasomotor instability or signs consistent with RSD. Dorsal and pedal pulses are symmetrical. His neurologic evaluation is stable and unchanged. His DTR's are symmetrical. His hamstring flexibility is unchanged. He measures 75 degrees bilaterally. His quadriceps mechanism still shows evidence of disuse atrophy. His knee examination is unimpressive. He does not have any acute features. He does not have any swelling, effusion of synovitis.

Dr. Yadava wrote the following in the Summary section of his March 28, 2001 report:

...He states he is doing better. He does have objective improvements in the previous areas of injection. The only recommendations I would have for him at this time is to continue with his VMO strengthening exercises, utilize his bracing as directed and continue with his hamstring and gastroc soleus flexibility program. There is no formal physical therapy I feel is indicated. There are no other diagnostic studies or therapeutic intervention I feel is indicated. I do not think he needs ongoing use of medications. He does tell me he is anxious to return to his full time, unrestricted capacity. I think it is safe and appropriate. I did tell him it is reasonable to expect to return to work in a comfortable fashion I think there is some deconditioning that has occurred. He may have increased soreness that should be well controlled through conservative mechanisms as outlined in detail here in the office. I think he is at maximum medical improvement from a rehabilitation perspective. There are no other diagnostic studies or therapeutic intervention I feel is indicated.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001.

Dr. Shawn L. Berkin, D.O. prepared a report, dated May 9, 2001, after performing an evaluation of Rothschild for the purpose of a rating as it related to the work related injury occurring on August 30, 1999. (See Exh. A, Attachment Roloff Dp. Exh. No. 2) The doctor discussed the August 30, 1999 work related injury while in the employ of Roloff Trucking. Subsequent treatment was discussed by Dr. Berkin through what he termed a re-evaluation by Dr. Haupt on 01/22/01 at which time Rothschild was continued on physical therapy for his right knee and left shoulder and was continued on working with limited duty restrictions. "The patient stated that he never returned to work for Roloff Trucking following his treatment and is currently employed as a trim carpenter for the Carst (sic) Construction Company", Dr. Berkin wrote. The doctor noted that Rothschild had worked for Roloff Trucking for ten years. Present complaints of Rothschild noted by Dr. Berkin in his May 9, 2001 report were - pain and tenderness to the right knee, swelling to the knee and the knee gives out; stiffness to the right knee and symptoms worse with weather changes; Rothschild reported limited motion of the knee and his knee symptoms are aggravated by kneeling and squatting; he had complaints of weakness to his left arm and his shoulder symptoms were aggravated by lifting. Dr. Berkin discussed his examination findings of May 3, 2001 which included: a. height - 73", weight - 268 pounds; b. left arm - no swelling or deformity, shoulders level in sitting position, upon palpation tenderness over the anterolateral surface involving that acromioclavicular joint extending into the left upper arm, stressing left shoulder failed to demonstrate any joint instability but a prominent clunk was present on passive circumduction of left shoulder, it was indicated that range of motion of left shoulder was decreased in all planes, muscle strength testing showed weakness of left arm on flexion and extension against resistance; c. right shoulder - range of motion was normal; d. right leg wearing brace furnished at time of treatment, upon removal of brace generalized swelling without obvious joint effusion, walked in a normal gait without evidence of a limp, generalized weakness localized over the anteromedial surface, stressing knee failed to demonstrate any joint instability but patient complained of pain to his knee on valus and varus stressing, it was indicated that flexion and extension range of motion was decreased, weakness of left leg on extension of the left knee against resistance, able to stand on toes and heels without difficulty but unable to squat because of complaints of pain in his right knee; e. left knee - normal range of motion. Dr. Berkin's final impressions were: 1. Rotator cuff tear of the left shoulder; 2. Impingement syndrome of the left shoulder; 3. Right knee strain; 4. Tear of the medical meniscus of the right knee; 5. Tear of the anterior cruciate ligament of the right knee; 6. Osteochondritis dissecans of the right knee; 7. Status-post arthroscopy of the right knee with debridement of the medial femoral condyle and removal of osteochondral lesion 01/19/00; and removal of osteochondral lesion 01/19/00; 8. Status-post arthroscopy of the right knee with arthroscopic debridement 06/22/00; 9. Status-post arthroscopy of the right knee with medial meniscectomy, Debridement of the anterior cruciate ligament, shaving, debridement and chondroplasty of the medial femoral condyle and femoral trochlea and lateral retinacular release.

In the conclusion section of his May 9, 2001, Dr. Berkin discussed the treatment Rothschild had received finally writing that following the October 2000 surgery by Dr. Haupt Rothschild was treated by Dr. Haupt including attending physical therapy through January of 2001. "The patient is currently employed as a trim carpenter for Carst Construction and is receiving no treatment for his injuries at this time", Dr. Berkin wrote.

Dr. Berkin wrote of his assessment as to disability:

c. A permanent partial disability of 30 % of the left upper extremity at the level of the shoulder for the rotator cuff tear of the left shoulder associated with an impingement syndrome.

d. A permanent partial disability of 55 % of the right lower extremity at the level of the knee for the right knee strain associated with tears of the medial meniscus and the anterior cruciate ligament and an osteochondral lesion involving the medial femoral condyle necessitating three surgical procedures on his right knee. I feel the patient has an additional permanent partial disability of 10 % of the right lower extremity at the level of the knee for the degenerative arthritis of the right knee that pre-existed his injury which to my knowledge, has been asymptomatic prior to his injury.

Dr. Berkin's treatment recommendations were:

The patient continues to have significant symptoms to his right knee and I recommend the continued use of his knee brace in order to stabilize his knee. I recommend that the patient be restricted from prolonged standing or sitting and that he be restricted from kneeling, stooping or climbing.

With respect to his left shoulder, the patient continues to remain symptomatic and indicated that he does not wish to have surgery on his shoulder because he feels that surgery has not really helped his knee. With respect to his left shoulder, I recommend the patient be restricted from lifting with his left arm no more than twenty-five pounds from the floor to the waist and fifteen pounds from the waist to the shoulder. I recommend that the patient avoid working with his left arm above the level of his shoulder.

The patient has indicated that he is currently working as a trim carpenter but if he continues to have symptoms at his current level of activity, I recommend that he consider alternative employment that his less physically demanding. (sic)

Medical records of Washington Chiropractic Clinic, P.C. (No. K) concerned prior treatment of Rothschild in 1995.and in July of 1999 for cervical spine complaints.

A 12/31/01 entry noted complaints of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

Dr. J. W. Morrow, D.O. prepared an October 8, 2002 evaluation report (See No. A, Attachment No. 3); the doctor wrote that he was seeing Rothschild for injuries sustained in the August 1999 work related injury. It was noted that the claimant relayed that he had been pain free in his right knee and his left shoulder prior to the August 1999 work related injury. Dr. Morrow discussed Rothschild's present complaints on involving the left shoulder and the right knee:

He relates if he attempts to move the left arm in lifting activities above the shoulder level this causes pain in the shoulder joint. Sudden movements of the arm at the shoulder tend to cause pain. Since he is not working for a period of time, the pain occurs about two of three times a week in the left shoulder with such movement.

He relates standing, walking, squatting, going up and down steps, lifting, pushing and pulling activities all tend to cause the severe pain in the right knee, and he attempts to avoid these activities since he is not working at this time.

Dr. Morrow's diagnoses concerning the August 1999 work related accident were: a. traumatically induced sprain of the left shoulder, and an MRI study showed a complete tear of the supraspinatus of the rotator cuff; and b. traumatically induced sprain of the right knee, Dr. Matthews noted that upon the 10/20/99 surgery by Dr. Matthews there was evidence of old osteochondritis dessicans and degenerative changes about the knee joint. Dr. Matthews noted the osteochondral defect was pretty significant. Dr. Morrow noted additional subsequent treatment, including the subsequent two surgeries; Dr. Haupt took x-rays on January 15, 2002, Dr. Morrow wrote, "showing stenosis of the medial compartment and some patellofemoral narrowing with a flat spot on the lateral medial femoral condyle and being diagnosed as posttraumatic osteoarthritis of the right knee, at which time the doctor notes the patient may require surgery in the future, including a possible total knee arthroplasty procedure. ". Dr. Morrow wrote his recommended restrictions for the left shoulder and right knee; concerning the right knee, Dr. Morrow further wrote: "The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the right knee, particularly the medial knee joint space where he is approaching bone on bone". Dr. Morrow assessed permanent partial disability on October 8, 2002:

Based upon this examination, there is a 40 % permanent partial disability of the left upper extremity at the level of the shoulder attributable to the injury of 8-29-99.

Based upon this examination, there is a 65 % permanent partial disability of the right lower extremity at the level of the knee. Of the 65 %, we allow 32 % preexisting with the possibility of the preexisting osteochondritis dessiccans. Even though asymptomatic immediately prior to the injury in question according to the patient, and the remaining 321 / 2 % due to the aggravation of the injury in question and the necessity for the three procedures that had been performed arthroscopically, two by Dr. Matthews and one by Dr. Haupt.

Dr. Morrow wrote of his recommended restrictions, and finally wrote:

The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the tight knee, particularly the medial knee joint space where he approaching bone on bone.

The combination of the disability of the left shoulder and the right knee would provide a greater overall disability than their simple sum. I would defer employability to a vocational expert in that regard.

Additional treatment records from Fischer Chiropractic Center (No. D-1) concerning the treatment of Rothschild in August 2003 for right shoulder complaints. The record indicated that Rothschild was referred by his father. The initial entry of 08/04/03 noted Rothschild's complaints of soreness in the right shoulder and an inability to move it. Rothschild's history was noted as: "Says that the pn. came from a fall down the steps". The entry indicated treatment given to the right shoulder. The next and final entry of 08/05/03 noted that Rothschild still had soreness in the right shoulder and the swelling had gone down. He has a lot of swelling \& pain in the left ankle, was noted; examination findings for the right shoulder and left ankle were noted.

Medical records from Herman Area District Hospital (No. G-1) reflected treatment of Rothschild on 08/06/03 for left ankle and right shoulder complaints. Attending physician, Dr. Anjna Sethi, M.D., noted the history as: "Fell down the stairs at 4:30 a.m. and says that he has been having pain moving the right shoulder. Denies any other complaints. He does have a past medical history of rotator cuff pathology on the left shoulder and currently takes Vioxx." A 08/06/03 x-ray report noted the following findings: a. left ankle - normal left ankle; and b. right shoulder - 1. sclerotic changes along the greater tuberosity suggesting possible chronic rotator cuff pathology, 2. Moderate degenerative changes of the acromioclavicular joint, and 3. no evidence for fracture or dislocation. Dr. Sethi's assessment was: "History of fall. Pain right shoulder and left ankle." Treatment consisted of a sling for the right shoulder and recommendation to avoid weight bearing on the left ankle, and Tylenol 650 mg ; the doctor wrote that Rothschild had been asked to follow up with his regular doctor, and that he might need further MRI studies by the regular doctor.

An August 26, 2003 MRI of the right shoulder (See, No. J) ordered by Dr. Matthews noted the following impression: 1. Complete tear of the supraspinatous tendon; 2. Acromioclavicular joint hypertrophy and narrowing of the acromiohumeral space, and 3. Large joint effusion.

Dr. Thomas Matthews, M.D. testified by deposition on behalf of the employee. (No. B) A board certified orthopedic surgeon, Dr. Matthews stated that he first saw Rothschild as a patient on 10/20/99. The doctor discussed the history relayed by Rothschild:

"He related a history of while at work, he sustained an injury to his right knee and left shoulder while pulling something out of a pickup truck bed, I believe. He apparently slipped and fell at that time in late August - I believe that would be 1999 - twisting his knee and injuring his left shoulder at the same time." (Matthews Dp. pg. 11)

Dr. Matthews agreed that the date of injury Rothschild relayed to him was August 30, 1999, and then discussed his examination findings:

"His examination was primarily confined to his left shoulder and his right knee. His left shoulder was found to have a normal neurologic and vascular or blood vessel status.

His range of motion of his shoulder was felt to be excellent. He was tender overlying the lateral or outside aspect of the shoulder. There was also some tenderness noted overlying the acromial clavicular joint. That's the intersection of the clavicle and the point of the shoulder." (Matthews Dp. pg. 12)

"I hadn’t gotten to the right knee, but instead of paraphrasing, I will try to summarize the right knee examination.

The patient's motion was good. The patient's swelling was minimal. He did lack some extension or terminal extension of his knee joint. He couldn't straighten or flatten out his knee joint all the want. (sic) X-ray examinations were obtained of his knee joint, which showed a loose fragment of cartilage and bone and evidence of an old osteochondritic dessicants lesion and some degenerative changes. And the patient was advised a corticosteroid or 'Cortisone,' quote/unquote, shot into the right knee, and he was also advised to obtain an MRI of his left shoulder to evaluate his rotator cuff." (Matthews Dp. pg. 16)

Dr. Mathews stated that the injection was given at the office visit, and that an MRI was obtained "which showed he had a compete tear, somewhat surprising, of his supraspinatus tendon, which is the foremost rotator cuff tendon that gets ruptured usually". (Matthews Dp. pg. 16) The doctor explained the function of the supraspinatus tendon: "Its function is to elevate and flex your shoulder and arm above the level of your shoulder." (Matthews Dp. pg. 17) Dr. Matthews opined: "I think (the osteochondritis dessicants in the right knee) preexisted the fall off the truck". (Matthews Dp. pg. 19) The following question and answer then occurred:

Q. (By Mr. Gerritzen) Assuming as a fact this man says he's never had any problems with his right knee prior to the fall of the truck on October 30, 1999, landed on the right knee after a 12 -foot fall, approximate 12-foot fall, had pain ever after. In your opinion, was the osteochondritis dessicants activated or aggravated by that fall?

A. It seems like it was. (Matthews Dp. pg. 22)

Osteochondritis dessicants can be caused by trauma or can be idiopathic; "(M)ost of the time we are at a loss as to what causes it", the doctor said. (Matthews Dp. pg.19) The doctor stated that he sees people every day that have asymptomatic knees that have preexisting problems with their knees that is exacerbated and/or aggravated by recent trauma. "We can only go on what patients tell us, and if they're asymptomatic prior to presenting with a recent injury and they're not having problems, then we can only assume that they didn't have problems", the doctor said. (Matthews Dp. pg. 23)

Dr. Matthews stated that he performed arthroscopic evaluation of Rothschild's right knee joint on two different occasions, 01/19/2000 and 06/22/2000. In his discussion of the procedures, Dr. Matthews testified:

"In any event, it was found that he had, on the first surgery, the osteochondritic lesion that we're talking about, which was about the size of a nickel, was a cartilage bone fragment in a defect of the medial femoral condyle. That's where it originated from but this fragment was loose, and it could be probed and moved around that area that it was supposed to be sitting in.

In adult patients, the treatment for that entity is removal of that fragment, and that was done. So in a, more or less, piecemeal fashion, that fragment of bone and cartilage was resected behind the crater where this OCD - we'll refer to it as an OCD lesion for now - resides. That crater is exposed raw bone. It should have cartilage on the end of its. So in an effort to remedy or at least palate the problem, the crater is drilled with multiple drill holes to try to stimulate a blood supply to form near the end of this crater." (Matthews Dp. pg. 24)

Dr. Matthews stated that he removed probably about one-fifth of the extent of the articular surface of the condyle with the removal of the fragment; the doctor stated that the condyle articulates with the tibia bone and agreed that it is necessary for movement of the knee. Discussing the second surgery of June 22, 2000, the doctor testified:

"That was essentially a re-debridement of the medial femoral condyle defect and also a patellar chondral debridement, which again means you take a shaving instrument........and you sculpt off the sharper edges of this particular areas of his medial femoral condyle. And on the back side of his patella, he had some arthritic changes." (Matthews Dp. pg. 26)

"The reason we got to the second surgery is because of the symptoms. And in spite of conservative measures, which, I believe, I may have given him a steroid injection in the interim, and that wasn't really effective, I was going to look back in his knee and see exactly where we stood at that point.

"The patella, in particular, I felt needed to be addressed at that time." (Matthews Dp. pg. 27)

Dr. Matthews was asked his opinion of whether or not both of the surgeries were necessary as a result of the fall off the truck on August 30, 1999, and he answered:

"I feel that, again, if a patient presents that has an asymptomatic history and now is symptomatic, and he has this particular lesion, so then I do address it surgically. So I can only conclude that the fall is a concomitant factor that results in the need for the operation.

"Well, I have a - I don't know what you guys mean by substantial. But yes, I feel that it's a substantial factor in regards to the development of his symptoms." (Matthews Dp. pg. 28) (Ruling: Employer Roloff's objection on grounds of Seven Day Rule is overruled. (Matthews Dp. pg. 28)

Dr. Matthews stated he believed that the treatment was proper. The doctor discussed the follow-up treatment he gave to Rothschild: "Well, Mr. Rothschild has been seen multiple times after this second surgery, perhaps a dozen times after the second surgery. He has had, I believe, physical therapy. He has had injections of corticosteroid medication, and he's had a lot of advice given in that time also." (Matthews Dp. pp. 28-29) Dr. Matthews agreed that he knew that Rothschild had additional surgery by Dr. Haupt after he saw Rothschild for the two surgeries.

The doctor was asked if Rothschild's knee would ever be the same as it was prior to the fall of August 30, 1999. Dr.

Matthews answered "No", and explained: "The sequela of the knee surgery is a progressive arthritic condition." (Matthews Dp. pg. 30)

Dr. Matthews stated that he believed the fall off of the truck on August 30, 1999 was the cause of the left rotator cuff injury Rothschild sustained. The doctor stated that at the current time he was not sure as to Rothschild's symptoms in his left shoulder, but further testified: "Most authorities would feel that or believe that an untreated rotator cuff tear will also progress to develop what's called posttraumatic or rotator cuff arthropathy, which is basically arthritis of your shoulder." (Matthews Dp. pg. 30)

Dr. Matthews stated that there was no reference to the left ankle in his record from the claimant in his October 20, 1999 notes. The doctor testified: "So that final visit or that visit as of 10/11/02 was the end of the treatment cycle for that postoperative period after the second arthroscopy. Then the patient disappeared from my practice until he revisited me on 8/20/03." (Matthews Dp pg. 38)

The doctor discussed treatment of Rothschild in 2003 referencing his treatment notes. (Ruling: Employer/Insurers' objections are overruled. Matthews Dp. pg. 38) Rothschild returned to my office on August 20, 2003 and the history at that time was regarding a recent right shoulder injury, Dr. Matthews said, Rothschild stated that he fell down some steps at home and described a giving way episode with his right knee. His examination at that time was that he had torn his rotator cuff of his right shoulder, the doctor said. An MRI was recommended , Dr. Matthews testified, "and his MRI showed that he had a complete tear of his supraspinatus tendon of his right shoulder". (Mathews Dp. pg. 39) We talked about physical therapy and about surgery, and I believe Rothschild was sent to physical therapy, the doctor said. He was reevaluated on September 3, 2003 after attending physical therapy and was given an injection at that time; at the next appointment on September 24, 2003 his symptoms were improved and at the last appointment on October 33, 2003 he had regained his motion in his shoulder and it was recommended that he continue a home exercise program, Dr. Matthews stated. The doctor stated:

"I'll restate what I think the question is, which is, did the preexisting problem with the patient's right knee lend itself to a fall or giving way episode that injured the patient's right shoulder. According to the history, that's correct, and, yes, it's conceivable that that's what caused the right shoulder injury." (Matthews Dp. pg. 41)

Dr. Matthews noted that between the 9/24/03 and the 10/22/03 visits "there was a letter written that summarizes those visits in relationship to the right shoulder, I believe." (Matthews Dp. pp. 39-40) In a September 29, 2003 letter to the claimant's attorney (included in the medical record attached to the deposition transcript) Dr. Matthews wrote the following:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon......

With regard to the hypothetical that you posed in your letter, I believe that that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

The doctor was asked at the deposition if he had made reference in his September 29, 2003 letter that Rothschild may need surgical intervention; Dr. Matthews wrote in his letter:

I am anticipating some improvement with continued physical therapy and conservative management. I think the end-result is unclear to me at this point, how much function Mr. Rothschild will gain from this conservative management. Mr. Rothschild may need surgical intervention with the shoulder....

Dr. Matthews was asked his opinion of what effect, if any, would subsequent employments in carpentry have on Rothschild's right knee and shoulder. The doctor answered:

"Mr. Rothschild is a laborer. I believe he's a carpenter?

"Which requires stooping, bending, squatting. So his occupation plays a role in the amount of time that he's up on his knee, and the physicalness of his job adds to the stress that his knee sees. So, consequently, those particular type jobs will promote or progress his degenerative change in his knee joint." (Matthews Dp. pg. 44)

"...in general, I think it would be agreed upon, with medical certainty, that laboring type jobs such as his would aggravate and exacerbate and progress his particular condition, whether it be one job or 17 different jobs." (Matthews Dp. pg. 46) (Ruling: Employer/Insurers' objection on grounds of Seven Day Rule is overruled. Matthews Dp. pp. 44 and 45 and 47 )

In Dr. Matthews' treatment record attached to the deposition transcript was a September 12, 2003 letter by the doctor to the

claimant's attorney in which Dr. Matthews wrote the following:

As I stated in that meeting I believe that Mr. Rothschild had a condition of his knee, namely osteochondritis dissecans that was exacerbated and/or aggravated by a work injury. This necessitated an arthroscopic evaluation of his knee by myself and an additional orthopedic procedure at a later date. This individual subsequently has sustained permanent partial impairment of his knee which from time to time with activity causes him symptoms which include swelling and pain. These symptoms are aggravated and exacerbated by the chronic and progressive nature of his condition.

As I discussed with you later employment which supposedly caused Mr. Rothschild to bend, stoop, twist and turn on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. (sic)

Dr. Matthews was asked at his deposition his opinion of whether or not he felt Rothschild was able to work or get a job, and the doctor answered:

"I'll just be completely honest about this. I told Mr. Rothschild at some time, not documented in any of my notes, but I remember the conversation. 'Charlie, you're gifted; you have carpenter skills. You shouldn't be lifting and pulling heavy objects. You probably ought to be making cabinetry and having a shop and doing that sort of work, but I don't think you ought to be framing and installing and lifting.' And that conversation took place. And, as I say, I tried to counsel him during this process of his knee, and that's where we've left it.

"I think - and this is speculative. I think a contractor that frames houses would have a hard time hiring Charlie Rothschild. However, I think a contractor that has a small cabinet shop or more precise work that is - doesn't have the heavy labor requirements may find his skills beneficial." (Matthews Dp. pp. 47-48) (Ruling: Employer/Insurer Roloff's objection on grounds of Seven Day Rule is overruled. Matthews Dp. pg. 48)

Dr. Matthews was asked what physical limitations, in his judgment, did Rothschild have, and the doctor answered:

"Based objectively on Mr. Rothschild's orthopedic pathologies, which includes two rotator cuff tears - -

"- - right and left rotator cuff tears, and the right knee post osteochondritic dessicant lesion, debridement/degenerative disease - - ....

"His restriction would include moderation of overhead activity. I can't quantify what that means. Less than normal overhead activity because of the rotator cuff disease on the right and left shoulder. Moderation of squatting, stooping, bending, pivoting, and turning on his knee joint. If he does too much activity with any one of those joints, he will become more symptomatic and he will progress his disease." (Matthews Dp. pp. 52 and 52)

On cross examination by Roloff Trucking (See, No. B-1), a September 1999 x-ray report of Rothschild's knee taken about eight days after the August 30, 1999 work related accident in Dr. Matthews' record was noted; Dr. Matthews stated that findings on this x-ray of -- an osteophyte from the superior pole of the patella, some calcification seen at the attachment of the muscle at the patellar region and narrowing of the medial femoral/tibial joint space were all preexisting conditions that could cause pain or other symptoms; the doctor stated that in regards to two small calcific densities on the tunnel view and the tunnel itself seen on the x-ray, no one knew if this was a preexisting condition, but further stated that it could cause pain or discomfort. Dr. Matthews agreed that the radiologist's conclusions on the September 1999 x-ray report -- that Rothschild had osteoarthritis of the femoral patellar and medial femoral/tibial joint space -- were pre-existing conditions. Dr. Matthews agreed that the OCD condition in the knee that he found had been present in Rothschild's knee for years prior to when the September 7, 1999 had been taken. The doctor agreed that the arthritis and the OCD are progressive degenerative conditions which are not necessarily caused by trauma and can develop even in the absence of trauma. Dr. Matthews was queried - would he have expected there to be any significant difference in the x-ray appearance if an x-ray had been taken the day before the August 30, 1999 accident as opposed to this x-ray that was taken on September 7, 1999. "I would not expect there would be any difference, Dr. Matthews answered. (Matthews 11/19/04 Dp. pg. 75) (Ruling: Second Injury Fund's objection is overruled. Matthews 11/19/04 Dp. pg. 75) The doctor was queried, wasn't it true in his practice that people who presented to him and were found to have OCD presented without a history of any trauma. Dr. Matthews responded:

"I would say that is true that they present in the absence of trauma, and they also present in the absence of symptoms,

and that the finding of OCD is usually a radiographic finding that, Oh, look what we found. So most of the people that present with OCD don't present because their knee is really bothering them that much or - they're just not symptomatic." (Matthews 11/19/04 Dp. pg. 78) (Ruling: Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 77-78)

Dr. Matthews stated that the chondromalacia found at the time of his second surgery would not have been caused by the first surgery in January 2000. Agreeing that the osteoarthritic condition and the OCD lesion were present in the knee before August 30, 1999, Dr. Matthews further testified:

"...I would just state that the progression of (the osteoarthritic condition and the OCD lesion) would aid in the progression of the chondromalacia in so far as small fragments of cartilage deteriorating from degenerative joint disease or

osteoarthritic and/or the OCD essentially swim around in someone's joint and they cause abrasion to the end of the bone and/or joint." (Matthews 11/19/04 Dp. pg. 79)

The doctor was asked if the OCD condition in Rothschild's knee would have continued to progress in the absence of an accident on August 30, 1999. "The condition would progress in absence of trauma", Dr. Matthews answered. (Matthews 11/19/04 Dp. pg. 80) Dr. Matthews stated that he would not classify the OCD in Rothschild's knee as severe. "I think the severity, in my mind, would be based on sort of the end stage aspect of that disease process, and I don't think Mr. Rothschild's disease in his knee is end stage." (Matthews 11/19/04 Dp. pg. 82) (Ruling: Second Injury Fund's and Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 81-82)

During cross examination by Roloff Trucking, Dr. Matthews agreed that he changed his 10/22/99 office note concerning Rothschild's right knee that "He has had off and on problems in the past" in October 2002 to "He has never had problem in the past"; when asked if he was saying

Rothschild had never made this statement in October 1999, Dr. Matthews responded - "No. I am telling the world that Mr. Rothschild believes that the way the history was recorded was incorrect in regards to him having problems on and off in the past." (Matthews 11/19/04 Dp. pg. 89) Dr. Matthews stated that he tries to be careful when he takes a history from a patient, "but I get bits and pieces of patients' histories incorrect all the time, and I write notes to myself, but things get dictated incorrectly". (Matthews 11/19/04 Dp. pg. 89) The doctor admitted - "I think it would be unusual" - to get something like this incorrect. (Matthews 11/19/04 Dp. pg. 89) Dr. Matthews stated that if Rothschild had complained of the history within a month of his interaction with Rothschild and he had remembered the office visit and the specifics that were gone over, and it contradicted what he remembered Rothschild telling him, he would not have changed it. "However, this has been now three years later, and I can't remember the interaction", the doctor said. (Matthews 11/19/04 Dp. pg. 92)

Dr. Matthews stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about.

On cross examination by Karst Construction Company, Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of any objective findings intraoperatively. Dr. Matthews agreed that he had reviewed the surgical note of Dr. Haupt for the surgery performed later in 2000, and that surgical noted reflected a progression of problems in the knee from the June 2000 surgery. The doctor noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) The following testimony then occurred:

Q. Now, Dr. Matthews, in later reports, you used words such as aggravated, exacerbated, and accelerated to describe the connection between Mr. Rothschild's subsequent employments, after Roloff Trucking, to the progression of his disease, the progression of his OCD, and the problems in his knee. Okay. By aggravating, exacerbating, accelerating, do you mean that

these particular physical activities caused him to be symptomatic, or do you mean that there was a particular objective change that was directly caused by these particular activities in the knee?

Or both?

A. I would state both.

Q. Could you point at anywhere in your record to places that would show us, okay, where a subsequent employment can be directly related to any objective findings in the knee?

A. Probably not. (Matthews 11/19/04 Dp. pp. 105 and 106)

During cross examination by Karst Construction Company, the following testimony occurred:

Q. Let me turn to the right shoulder just for a minute, doctor. It's my understanding that Mr. Rothschild gave you a history with regard to this right shoulder, and that history was in your - it was in other records, but it 's also in your......9/29/2003 report. And you indicated that - and you recorded in that report that Mr. Rothschild had told you that his knee had given way and he had fallen at home injuring his right shoulder; is that correct?

A. If that's what the report says, yes.

Q. Doctor, anywhere in your previous encounters with Mr. Rothschild, had you recorded any incidences of instability or his knee giving way?

A. No, I don't think so.

Q. Do you recall ever putting anything like that in any of your reports as a complaint that Mr. Rothschild had about his right knee?

A. I don't recall that, no. (Matthews 11/19/04 Dp. pp. 107-108)

On cross examination by Integrity Installations, Dr. Matthews was asked to explain the surgery performed by Dr. Haupt:

"That involves either obtaining a cartilage and bone graft from the patient himself, usually from a nonweight bearing area of the same knee, and transferring that where the OCD lesion and/or a lesion on the weight bearing surface on the end of the femur would be, or in larger lesions, sometimes cadaveric specimens are used to transfer.

"You're trying to repair a defective area that doesn't have cartilage coverage, and the underlying one in this case, because of the OCD process, is also lacking...." (Matthews 11/19/04 Dp. pg. 109)

This procedure performed by Dr. Haupt can be a permanent solution to this condition, Dr. Matthews said, but it was not in Rothschild's case. Dr. Matthews stated that this procedure by Dr. Haupt before January 2002 "could explain some, yes," of the difference seen in the knee between the January and September 2002 visits. (Matthews 11/19/04 Dp. pg. 110) Dr. Matthews was queried as to what problems was he referring to in his January 15, 2002 letter in which he had written the possibility for future treatment, and he had specifically mentioned that Rothschild might require a total knee replacement. The doctor explained:

"Well, I probably was referring to the fact that the progressive nature of the disease, future office visits, future injection therapy, conservative management, the use of anti-inflammatory medications and/or surgical events that will, you know, undoubtedly more than likely happen.....Including total knee arthroplasty." (Matthews 11/19/04 Dp. pg. 111)

The doctor agreed that this future treatment would be because of the progressive nature of Rothschild's condition. When again queried if the progressive nature of the condition was going to happen without regard to activities, Dr. Matthews responded - "(I)n so far as, the activity will, in my words, exacerbate and/or accelerate the condition". (Matthews 11/19/04 Dp. pg. 111) The doctor admitted that the condition was going to get worse "with just activities of daily living, getting in and out of the car, driving, walking". (Matthews 11/19/04 Dp. pg. 112) Agreeing that it was his stated belief that in someone who does moderate activity or works as a laborer the condition would progress faster, Dr. Matthews further stated - "I don't know if it would precipitate it....Progress it, yes". (Matthews 11/19/04 Dp. pg. 112) The doctor agreed that the work as a laborer would cause this progression to come about sooner than expected. Dr. Matthews agreed that in his May 15, 2002 report he again talked of the possibility for a total knee replacement and that again he had mentioned a progressive, degenerative problem with the knee. It was noted that in a September 17, 2002 report to the claimant's attorney, Dr. Matthews had discussed the work injury of August of 1999 which exacerbated the allegedly preexisting condition the OCD lesion and that he stated that now in September 2002 Rothschild was still dealing with the same condition and the sequela of that diagnosis; Dr. Matthews was asked to explain what he meant by this, and the following testimony occurred:

A. That means that, given this man's preexisting OCD lesion and factoring in his activities had, again, I'll use this word, the totality of his employment and these different traumas that he's had, he's still dealing with the aftermath of having this condition.

Q. Okay. Now, you are referring to the August of 1999 injury, and now you are using the word traumas plural. Did the patient ever tell you that he had more than one direct trauma?.....To the knee.

A. I guess I would use the trauma in the cumulative sense. One specific trauma, the truck injury and fall, I guess that's what I was referring to.

Q. To paraphrase your statement here, this is still one condition. And when you say he's still dealing with the sequela of that original diagnosis or condition - -

A. Yes.

Q. - - are you saying it's an ongoing thing dating back to the first time that condition was either noted or diagnosed?

A. Correct.

Q. Do you have anywhere in your records where Mr. Rothschild ever told you that any of the subsequent employments, specifically any activities, specific activities at those jobs, were causing a further problem to his knee?

A. Not specifically, no, I don't believe.

Q. Is there anywhere in your records during your, I guess, three years or so treatment of this gentleman, that he even told you anything about who - - who he worked for or what he did?

A. No.

Q. Over the three years, did he ever tell you about any of the subsequent employments, again after the August of 1999 injury?

A. I vaguely remember some discussion about him being a trim carpenter, but not employers and/or employment and/or where, no.

Q. Never identified the employers?

A. No. (Matthews 11/19/04 Dp. pp. 113-115)

Dr. Matthews further stated that Rothschild never specifically told him what he did as a trim carpenter for any of these employers.

On cross examination by BAM Construction, Dr. Matthews stated that there are different grades of OCD. "I would classify them in four stages, and (when I first saw Rothschild) he had a grade four", the doctor stated. (Matthews 11/19/04 Dp. pg. 116) Indicating that Rothschild's OCD was not as bad as it could be, Dr. Mathews explained: "The worst grade would be if the lesion has come out of the pocket or the area where it - - if it had broken off and was swimming around the joint and then the hole was left empty". (Matthews 11/19/04 Dp. pg. 116) Rothschild's was, though, "an end stage type lesion, yes", the doctor said. (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that in his experience, people's memories change over time, so their histories can change as time goes by.

On cross examination by the Second Injury Fund, it was noted that Dr. Matthews had written to the claimant's attorney in a May 15, 2002 letter - "The patient has stated he has had no problems with his knee prior to the work injury, which is consistent with a stable OCD lesion." When asked if this was still his opinion today, Dr. Matthews answered - "Yes". (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that the conditions seen on the September 7, 1999 x-ray could have been asymptomatic. The doctor agreed that the osteochondritis dessicant can also be asymptomatic; Dr. Matthews agreed that the condition could be in the early stage and then a severe trauma is sustained and then the condition goes into level four; the doctor agreed that the OCD could trigger the exacerbation of other pathologies in the knee including the osteoarthritis. October 22, 2003 was the last time I saw Rothschild, Dr. Matthews agreed. When asked, wasn't it your opinion at that time that Rothschild eventually might need a knee replacement but he wasn't at that stage yet, Dr. Matthews answered - "That's correct.". (Matthews 11/19/04 Dp. pg. 120)

On redirect, Dr. Mathews stated that to his knowledge he had not seen any medical record in which Rothschild had made complaints referable to the right knee prior to August 30, 1999. The doctor agreed that if the findings disclosed by the x-ray of the osteophyte, the osteoarthritis, the narrowing, the findings of the right knee were there prior to Rothschild's falling off the truck, to his knowledge there is no history that Rothschild had sought any treatment for problems with these conditions. Denying that a fall from the truck could have entirely caused the 20 percent of the medial femoral condyle that needed to be surgically treated by him, Dr. Matthews testified that "a fall from a height, as you've described, could aggravate a preexisting OCD lesion and make it symptomatic". (Matthews 11/19/04 Dp. pg. 124) The doctor was asked - even if Rothschild had the asymptomatic condition before, wasn't the fall off the truck the cause for his ongoing problems since then, including the surgeries, everything? Dr. Matthews answered:

"I would not characterize it as such. I would - -

"The fall off the truck brought to light the condition that Mr. Rothschild had in his knee. I'm not going to give a percentage on what that fall off the truck led to. I don't think I have that crystal ball to be able to do that." (Matthews 11/19/04 Dp. pp. 126-127)

The doctor was queried, if Rothschild had had those changes seen on the September 1999 x-ray and had not had the fall off of the truck in August 1999, would he have still had to have three surgeries by January of 2000. "In all likelihood he would have ended up with a surgical event", Dr. Matthews responded. (Matthews 11/19/04 Dp. pg. 127) "I can't give you a time frame", the doctor said, but admitted that it could be a year or 20 years. (Matthews 11/19/04 Dp. pg. 127) Dr. Matthews agreed that he felt the trauma of falling off of the truck aggravated the preexisting arthritic condition in the right knee, and agreed that only after that aggravation occurred did the three surgeries occur. The doctor agreed that when he did the surgery he found loose material in the knee, and

stated that that could be from the trauma to the knee.

During redirect, Dr. Matthews was asked his opinion of whether or not Rothschild could work based on his medical history, and the doctor responded: "It is asking me to render a vocational opinion, which I do not have the expertise to do. I don't know if he's employable or not." (Matthews 11/19/04 Dp. pg. 134)

Dr. Raymond Cohen, D.O. testified by deposition on behalf of the claimant. (No. A) The doctor agreed that he reviewed medical records and independent medical evaluation reports, and reviewed the 03/16/04 deposition of Rothschild as part of his evaluation of Rothschild.

It was agreed and stipulated to by the parties at the deposition, that Dr. Cohen would testify in accordance with his curriculum vitae and his two reports dated January 15, 2004 and (June) ${ }^{[3]} 22,2004$ and the doctor's reports were admitted into evidence. (See, Cohen Dp. pp. 6-7) In his January 15, 2004 report, Dr. Cohen wrote of Rothschild's August 30, 1999 work related injury to the right knee and left shoulder upon falling approximately 12 feet off of a truck while working at Roloff Trucking. Subsequent treatment Rothschild received was discussed by Dr. Cohen, including that Rothschild had two surgeries to the right knee in early 2000 by Dr. Matthews and a third surgery to the right knee by Dr. Haupt in October 2000. "Dr. Haupt released him and in March, 2001 he returned to work", Dr. Cohen wrote. Rothschild's subsequent employments as a carpenter at Karst Construction, BAM Construction and Integrity Installations were briefly discussed by Dr. Cohen; Dr Cohen noted Rothschild's comments that several months after falling off of the truck he began to have pain in the left ankle from favoring the right knee; the doctor noted Rothschild's comments that the pain and symptoms in the right knee, left shoulder and left ankle increased from the labor work at each of the subsequent employers. Dr. Cohen noted Rothschild's history that "(I)n July 2003, while at home his right knee gave out on him and he fell and injured the right shoulder". Dr. Cohen's physical and neurological exam findings on January 15, 2004 included the following:

The gait was slow and the patient favored the right knee and left ankle when he ambulated....The left knee was unremarkable. The right knee revealed marked crepitus with range of motion testing. He was diffusely tender to palpation over the knee. A mild effusion was noted. Extension was to -5 and flexion was to 120. Anterior drawer was 1+ positive. McMurray's revealed increased joint pain medially and laterally. The quadriceps were weak at $4 / 5$. The left shoulder revealed a positive impingement sign. Abduction was reduced approximately 30 % of expected normal. The rotator cuff muscles were weak at $4+/ 5$. The right shoulder revealed a positive impingement sign. Abduction was reduced approximately 40 % of expected normal. The rotator cuff muscles were weak at $4 / 5$. The right ankle was unremarkable. The left ankle had a mild effusion. He had a loss of motion of the left ankle of approximately 10-15 degrees in all directions....

Dr. Cohen wrote the following in his January 15, 2004 report as the diagnosis regarding the primary work-related injury of 8-30-99:

1. Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear.
2. Left shoulder rotator cuff tendon tear and impingement.
3. Due to a compensatory gait, he has left ankle instability with chronic tendonitis.
4. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition.
5. Due to the right knee giving out at home on or about July 2003, he has a right shoulder rotator cuff tear.

Dr. Cohen wrote of his conclusions regarding the primary work related injury in the January 15, 2004 report:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99.

It is further my medical opinion that within a reasonable degree of medical certainty, he is going to need additional treatment in the future. He is going to need a total right knee joint replacement. Generally these last 7-15 years and more likely than not, he is going to ultimately need a second total knee replacement. Also, he needs to see an orthopedic surgeon for consideration for surgery on both of his shoulders.

It is my medical opinion that within a reasonable degree of medical certainty, he was temporarily totally disabled from December 2001 through August 2002 due to the significant pain that he was having in the above noted areas of his body.

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

At the level of the left ankle, it is my medical opinion that within a reasonable degree of medical certainty, he has a 30 % permanent partial disability at the level of the left ankle, of which 15 % is due to the injury on or about 8-30-99 and the remaining 15 % is due to the three overuse disorders.

He has a 35 % permanent partial disability at the right shoulder. The 35 % at the right shoulder in my medical opinion is due to all four of the claims and would be divided in the same percentages that I had previously stated referable to the right knee.

It is my further medical opinion that within a reasonable degree of medical certainty, his pre-existing conditions or disabilities combine with the primary work-related injury to create a greater overall disability than their simple sum and that due to this combination of disabilities, Mr. Rothschild is permanently and totally disabled and not capable of gainful employment. It is further my medical opinion that his pre-existing conditions or disabilities were a hindrance or obstacle to his employment or re-employment.

In a Supplemental Rating Report, dated June 22, 2004, Dr. Cohen wrote that he had had an opportunity to review additional records consisting of Rothschild's deposition taken on 03/16/04, and a 06/02/04 IME from Dr. Rende. Dr. Cohen noted Rothschild relayed that in regard to the 8-30-99 injury he also injured his left foot; Dr. Cohen further wrote - "As he was favoring his right knee, he was putting increased pressure on his left foot and ankle and the pain progressively became worse. According to the patient, he had x-rays taken of the left foot and ankle by Dr. George and he was told that he had a spur. He continues to have pain in the left foot and ankle." Dr. Cohen noted Rothschild's relayed history in regards to his subsequent employment after Roloff Trucking and his symptoms:

He states that prior to his employment at Karst which began in March 2001, his symptoms were pain in the right knee and left shoulder. He was receiving physical therapy for his shoulder at the time of his employment at Karst. He states that the right knee was giving out on him. He had a sharp ongoing pain in the right knee. He had fallen several times from the knee giving out on him.

He states that he began his employment at BAM Construction in October 2001 and worked through December 2001. He states that subsequent to December 2001, he was off work for a few months due to a lack of available work for him.

He believes his employment at Integrity Installations began around May through July 2002. Please note in my report of 1-15-04, it states that his employment was through July 2003. This should be July 2002. He believes that he was at Integrity less than three months as far as he can recall.

His was last employed in September 2002. He has been unemployed since.

In his June 22, 2004 supplemental report, Dr. Cohen discussed Rothschild's complaints and noted that a repeat exam revealed no changes. My medical opinions on Mr. Rothschild remain as is per the report of 1-15-04, Dr. Cohen wrote.

At his deposition, Dr. Cohen was asked if it was his opinion that Rothschild is permanently and totally disabled, and the doctor answered - "Yes". (Cohen Dp. pg. 7) (Ruling: Employer/Insurers' and Second injury Fund's objections are overruled. Cohen Dp. pg. 7)

On cross examination by Roloff Trucking, Dr. Cohen stated that he met with Rothschild initially on January 15, 2004 and requested a second time on June 22, 2004 for a second evaluation. Explaining the purpose of the second evaluation, Dr. Cohen stated that as best he could recall he "was uncomfortable with the dates of all of the various employers after 8/30/99", and Rothschild "came back for me to see if I could figure out the dates of those employers". (Cohen Dp. pg. 10) During redirect examination, Dr. Cohen stated - "That's correct" - that he was the one who wanted the subsequent June 2004 exam of Rothschild after having canceled an earlier deposition, the claimant's attorney had nothing to do with him doing a second exam of Rothschild. (Cohen Dp. pg. 132) The histories as to the employments were basically the same, the doctor said. Dr. Cohen further explained the reason for the second evaluation was this "is a more difficult situation because of the large number of claims or employers and claims". (Cohen Dp. pg. 13) The doctor was queried as to what was Rothschild's job at Roloff Trucking, and Dr. Cohen responded - "I believe he was a carpenter with the other employers, and I thought he was with Roloff; I'm not sure". (Cohen Dp. pg. 17) The doctor stated that for determining medical causation between an accident or an occupational disease it would make a difference with respect to the job duties "(I)f it's an occupational disease, then that would be, of course, important, yes". (Cohen Dp. pg. 17) Agreeing that a person's job duties have a significance in determining whether an employee is permanently and totally disabled, Dr.

Cohen testified as to the result of Rothschild being permanently and totally disabled: "In his case, it's a result of the pain and dysfunction he has in his shoulders as well as his right knee and the left ankle and due to the chronic pain that he has in those joints, all of that." (Cohen Dp. pg. 18) Dr. Cohen agreed that he is not a vocational specialist. When asked from what jobs was Rothschild permanently and totally disabled, Dr. Cohen answered: "When I put in my report, from a medical perspective, a permanent total, that means I do not feel he could do any type of job, including sedentary or any other - any type of 32-hour-a-week job." (Cohen Dp. pg. 20) Stating that he did not believe Rothschild could do sedentary work, light labor, moderate or heavy labor work or any type of work, Dr. Cohen further said - "So I believe that whatever he's doing at Roloff that had to have him up on the truck where he fell is beyond sedentary work". (Cohen Dp. pg. 22)

During cross examination by Roloff Trucking, Dr. Cohen testified about his understanding of Rothschild's duties at Karst: "He stated that he had to nearly constantly carry heavy materials and that he did a significant amount of bending, lifting, and squatting." (Cohen Dp. pg. 22) Explaining why it was important to learn about Rothschild's duties at Karst, Dr. Cohen testified:

"Because, in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." (Cohen Dp. pg. 23)

Dr. Cohen noted Rothschild's duties at B.A.M.: "He stated he had to do a lot of lifting of cabinets and doors and various types of equipment, and, I believe, in one of the depositions, he also went into a little bit more detail about that job. "(Cohen Dp. pg. 25) Dr. Cohen stated that some of Rothschild's job duties at Karst were heavy labor job duties, and at B.A.M. were heavy labor duties. The doctor discussed his understanding of Rothschild's job duties at Integrity Installations: "He stated he worked there as a carpenter and that he did a lot of repetitive work. And, I believe, also, that's described in his last deposition. My understanding, though, was, that was not a heavy labor work, as best I can recall." (Cohen Dp. pg. 26) Dr. Cohen was shown the First Amended Claim for Compensation against Integrity Installations filed by the claimant with the Division on September 13, 2003, and it was noted that the Claim stated the following description of what Rothschild was doing when the injury occurred - "Doing repetitive carpentry work and erection of display cases, attempting to carry heavy objects, including cabinets, carpentry equipment, and display case...". Dr. Cohen stated that he had seen this Claim form; when asked if this was consistent with what Rothschild had told him about his job duties at Integrity Installations, Dr. Cohen answered: "As far as the carrying heavy objects, that is different than what I understood from him when I saw him.". (Cohen Dp. pg. 27) The doctor agreed that assuming the statements in the First Amended Claim were correct, he would consider Rothschild's duties at Integrity Installations heavy labor type work. The doctor was asked if this changed any of his opinions, and Dr. Cohen answered: "I believe the last three employers were a repetitive type trauma, so whether it was heavy or not, all of those can contribute to an overuse disorder, so it really wouldn't change my opinions." (Cohen Dp. pg. 28)

During cross examination by Roloff Trucking, Dr. Cohen stated that he had reviewed all of the medical records he had listed in his reports. The doctor was queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle. Dr. Cohen answered that he did not remember, but further testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." (Cohen Dp. pg. 31) The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. The doctor was queried if his opinion as to disability for the left ankle would be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001. Dr. Cohen answered:

"That really wouldn't change my opinion, because it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk. So if he had a serious injury to his knee from the original injury and was limping or favoring it, that would still go back to the original injury if he did not have an acute injury to the ankle at the time when he fell." (Cohen Dp. pp. 36-37) (Ruling: Claimant's objections are overruled. Cohen Dp. pp. 34-36)

Dr. Cohen was further queried if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, and the doctor responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." (Cohen Dp. pg. 37)

Rothschild's left shoulder injury was an acute injury in August of 1999, Dr. Cohen said, the acute injury was from the fall with subsequent finding on the MRI of a rotator cuff tear. Dr. Cohen stated that he did not recall at that time of his deposition if in the records surgery had been recommended for the left shoulder. The doctor stated that he had recommended surgery in his report, and it was his opinion the surgery would probably improve the condition of Rothschild's left shoulder. Dr. Cohen agreed that it was his opinion Rothschild sustained an acute injury to the right knee in the August 1999 fall. Agreeing that he has recommended a total knee replacement to the right knee, Dr. Cohen stated that this was based on severe pain in the knee, the findings in the knee and the medical situation that it is a bone on bone situation. The doctor was asked when in his opinion did Rothschild become a candidate for a total knee replacement, and Dr Cohen answered:

"That time frame would be sometime in 2002 at the point that the knee progressively became more painful and that it appeared clear that he was not going to improve regarding the condition from the knee without the knee joint replacement." (Cohen Dp. pg. 40)

It was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "......I didn’t really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Assuming that Dr. Matthews’ note was correct that Rothschild did have a preexisting condition of osteochondritis dissecans, Dr. Cohen further stated: "...I don’t feel, from a medical perspective, that he had any preexisting disability since it didn’t bother him. He may or may not have had that condition, but assuming he even had it, it didn’t appear to cause any dysfunction in the knee. So I don’t find any disability unless he had a severe case of that, then it could have led to some preexisting disability." (Cohen Dp. pg. 48) The doctor was asked if he was now testifying that there may actually be some preexisting disability to the right knee, and Dr. Cohen responded: "I would give a small percentage of disability if it is shown that he had some type of preexisting condition to his knee before that (August 1999) injury." (Cohen Dp. pg. 50) (Ruling: Second Injury Fund’s objection on grounds - asked and answered - is overruled. Cohen Dp. pg 50) Dr. Cohen was asked to testify as to what his opinion of this disability would be, the doctor answered: "Approximately 2 to 3 percent." (Cohen Dp. pg. 53) (Ruling: Second Injury Fund’s objection is overruled. Cohen Dp. pp. 50-51; and Claimant’s objections are overruled. Cohen Dp. pp. 51-52) Dr. Cohen was asked to explain what in his opinion caused the need for the total knee replacement: "The need of the total knee joint replacement is due to the acute injury as well as the repetitive or overuse injury that he has had to his knee, all of that." (Cohen Dp. pg. 54) The doctor agreed that he thought it was due to the combination of the acute injury and the subsequent employers. (Ruling: Claimant’s objection is overruled. Cohen Dp. pg. 54; Second Injury fund’s objection is overruled. Cohen Dp. pg. 54)

On cross examination by Karst, Dr. Cohen agreed he was aware that after working for Karst Construction, Rothschild went immediately to work fro BAM Construction, there was no separation between these two employments. Dr. Cohen agreed that there was a clarification in his June 2004 report that in his opinion he no longer believed that Rothschild was temporarily disabled between December of 2001 and when he went to work for Integrity in August 2002 because during this time period Rothschild was off work due to lack of available work. The doctor further agreed that when reading Rothschild's deposition, he saw where Rothschild had said during this period of December 2001 through when he went to work for Integrity in August 2002 he had been exercising and looking for work, and thus more proof that Rothschild was not temporarily totally disabled during this period.

Dr. Cohen agreed, during cross examination by Karst, that he has no training and no experience in vocational rehabilitation. The doctor stated that as a neurologist he did testing of Rothschild's mental abilities and his mental abilities were normal; Dr. Cohen agreed that based on his assessment he did not see any obstacle or impediment to employment or vocational training in regards to his mental abilities.

During cross examination by Karst, Dr. Cohen agreed that in January of 2004 he made the recommendation for a total knee replacement based on x-rays taken in 2002. Stating that he was not in the practice of recommending such significant surgery without performing more recent radiographic studies, Dr. Cohen explained his decision in this case in the following testimony:

A. He already had severe joint space narrowing at the time I saw him, and it was clear that any x-rays taken at that time would show advanced osteoarthritis of the knee. It wouldn’t show an improvement. It would only show either what he already had before or a deterioration.

Q. And, most likely, a progression of symptomatology; is that correct?

A. Yes.

Q. In fact, when you take a look at the three surgeries that were done on the employee's knee in 2000, the first two by Dr. Matthews and the third by Dr. Haupt, those three reports actually show a significant progression of degenerative problems in his knee, don't they?

A. Yes.

Q. Would there be any reason to believe that that degenerative condition wouldn't continue to progress in that right knee?

A. It would progress.

Q. It would progress pretty much no matter what the employee was doing; is that correct?

A. More likely than not, it would have. (Cohen Dp. pp. 65-66)

Dr. Cohen further stated, though:

"In a repetitive trauma type case or overuse type case to the joint, the overactivity or overuse or stressing of the joint

leads to increased deterioration of the joint, and that is included in my thoughts when I assess a part of the body that, from the continued stress or damage to the joint, that it is a progressive condition." (Cohen Dp. pp. 68-69) (Ruling: Claimant's objections are overruled. Cohen Dp. pp 67-68)

The doctor was queried, wasn't it impossible to determine how much of the continued problems in the claimant's right knee, after the original accident, were the result of a natural progression of degenerative changes, activity, work, recreation, etc? Dr. Cohen answered:

"Well, it is quite possible to define his situation, based on the fact that he did have significant problems after the first injury, but by his history and doing this type of physical work, the condition increased. So talking about him alone, the medical course of this is that it progressed from the type of work that he was doing superimposed upon a bad injury." (Cohen Dp. pg. 70)

Dr. Cohen agreed that the history he received from Rothschild was that his right knee complaints got substantially worse after each of the subsequent employments. It was noted that Dr. Cohen had stated earlier that weight was a factor in degenerative changes in Rothschild's knee; when asked if he had put Rothschild's height and weight in his reports, the doctor answered - "No, I didn't." (Cohen Dp. pg. 72) Dr. Cohen stated that he did not recall Rothschild's weight or height. The doctor agreed that if the records reflected Rothschild was heavy, 260 pounds, that would also contribute to the general deterioration of the right knee. Dr. Cohen agreed that Dr. Matthews, in January 2002, noted that x-rays at that time showed good joint space, which actually means that in January 2002 Rothschild wasn't bone on bone.

Concerning the left ankle, Dr. Cohen stated that it was his understanding Rothschild's problems began several months after the Augusts 1999 fall from the truck but prior to his returning to work in March 2001.

Dr. Cohen agreed, during cross examination by Karst, that with regard to the left shoulder (as also with the right knee) it was his opinion the subsequent employments lumped together aggravated the left shoulder difficulties Rothschild incurred in 1999.

During cross examination by Karst, Dr. Cohen agreed that he did not have any treatment records for Rothschild during his employment with Karst from March to September, 2001, only an evaluation by Dr. Berkin performed in May of 2001. Dr. Cohen stated that he was not aware of Rothschild losing any time from work as a result of his knee, ankle or shoulder or anything else while working for Karst. Rothschild did not quit working for Karst, Dr. Cohen said, "I recall something in the deposition that they went out of business or closed". (Cohen Dp. pg. 78) The doctor agreed that he was not aware that Rothschild quit working for Karst due to any medical problems or concerns. Dr. Cohen agreed that Rothschild actually went straight to work for B.A.M. after Karst Construction, and after B.A.M. Rothschild was actually available to work all the way up until the Integrity Construction job.

Dr. Cohen stated, during cross examination by Karst, that he did not believe that Rothschild was in need of a total knee replacement in January of 2002. January 2002 was after the Karst employment, the doctor agreed. Dr. Cohen was queried - isn't it correct that the reason for the total knee replacement is the acute injury, the repetitive overuse and the progression of degenerative problems. "That's correct", Dr. Cohen answered. (Cohen Dp. pg. 81)

On cross examination by BAM Construction, Dr. Cohen agreed that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002. Therefore, the doctor agreed, during this period there was no medical taking Rothschild off work for any reason. Dr. Cohen agreed that there was no medical records indicating that Rothschild could not work during the period subsequent to January of 2002 until Rothschild went to work at Integrity in August of 2002.

It was noted, during cross examination by BAM Construction, that in regards to his opinion of permanent total disability for Rothschild as of January 2004, the doctor did not put any restrictions on Rothschild. Explaining why this was, Dr. Cohen stated: "If a patient is medically unemployable, I didn't see any need to put the restrictions in there." (Cohen Dp. pg. 83) Dr. Cohen agreed that there are things Rothschild could do from a physical standpoint, Rothschild is not bedridden. The doctor was asked if he expected Rothschild's condition to change in the future without further medical attention. "He will, more than likely than not, have increased arthritic changes in the knee and in his shoulder and may have increased pain from that", Dr. Cohen answered. (Cohen Dp. pg. 84) The doctor agreed that this was because of the nature of arthritic changes and its progressive nature.

On cross examination by Integrity Installations, Dr. Cohen agreed that Rothschild relayed to him that in regards to the job at Integrity he put up display cases and did a lot of repetitive work.

Dr. Cohen stated, during cross examination Integrity Installations, that he is not an orthopedic doctor. I did have a year internship in which included four months through orthopedics and the rest of the year assisting with orthopedics; this was in 1980 and 1981, the doctor said. I have not had any orthopedic training since then. I am not a surgeon the doctor said.

Rothschild "had significant problems in his knee at the time he began his employment (at Integrity)", Dr. Cohen stated during cross examination by Integrity Installations. (Cohen Dp. pg. 89) The doctor agreed that Rothschild had a significant

degenerative condition prior to working for Integrity, and that he would have had a lot of pain, discomfort and difficulty performing activities. Rothschild had evidence of this chronic condition before he came to work for Integrity, Dr. Cohen said. The doctor was asked if he had stated that in a large majority of patients, a degenerative condition such as Rothschild has would probably progress anyway without regard to subsequent activities. Dr. Cohen answered: "Yes. In regard to the knee." (Cohen Dp. pg. 90)

It was noted, during cross examination by Integrity Installations, that at one point in his report Dr. Cohen had indicated that Rothschild had worked for Integrity for approximately 11 months for August 2002 through July 2003, and that at another point in his report he had written it was through September of 2002. "I really don't know" the length of Rothschild's employment at Integrity at the time I issued my report, Dr. Cohen admitted. (Cohen Dp. pg. 92) "I hope I was thinking correctly at that time, based on the claim forms that I had an other records, but I can't remember what I was thinking at that time", the doctor said. (Cohen Dp. pg. 92) The doctor agreed that in his second report he had stated Rothschild worked at Integrity from May of 2002 through July of 2002. When queried, if Rothschild testified that his employment dates were approximately July of 2002 through September of 2002 and that he worked only 29 days during that time, would he have any reason to dispute this. "No", Dr. Cohen answered. (Cohen Dp. pg. 93) The doctor stated that he would have no reason to dispute the employment records if they indicated that Rothschild beginning date at Integrity was July of 2002 rather than May of 2002.

Dr. Cohen agreed, during cross examination by Integrity, that Dr. Matthews in his January 15, 2002 had found that Rothschild had a fairly significant disability to the right knee and said it was 50 to 60 percent; Dr. Cohen agreed that Dr. Matthews' rating in January 2002 was pretty close to what he had found overall in January 2004. It was noted that Dr. Matthews, in his May 2002 report, stated that Rothschild might need a total knee replacement, and this was before Rothschild worked for Integrity; Dr. Cohen agreed that in May 2002 Rothschild suffered from a progressive degenerative condition. Dr. Cohen was queried - so without regard to any subsequent employment after May 2002, Rothschild's knee was getting worse and chances are he was going to need a total knee replacement. "That's correct", Dr. Cohen responded. (Cohen Dp. pg. 96) Dr. Cohen agreed that if subsequent activities brought on the need for further treatment or a knee replacement a little quicker or sooner than expected then those work activities merely precipitated the knee for that treatment. (Ruling: Roloff Trucking's objection is overruled. Cohen Dp. pg. 97) The subsequent work activities of that time, after May 2002, would have been Integrity Installations only, the doctor agreed. Dr. Cohen agreed that he had testified that it was his understanding when he initially met with Rothschild the job at Integrity was not as heavy labor as the jobs at Karst and BAM. Despite this, Dr. Cohen admitted, he provided an opinion on disability with regard to the three subsequent employments the remaining disability from these three employments was equally divided. "(The job at Karst) (r)egarding the duration or time" Rothschild worked for Integrity was less than at Roloff Trucking, Dr. Cohen stated. (Cohen Dp. pg. 99) "I was assuming that he was working (at Integrity) full-time", the doctor said. (Cohen Dp. pg. 100) Dr. Cohen stated that he had no reason to disagree if the employment records showed that Rothschild worked at Integrity four days some weeks, or one or two days another week. Dr. Cohen testified:

"From my talking to him on two occasions was that they were all about equal as how they affected him. The jobs may have been somewhat different, but they were difficult jobs that caused increased aggravation on this type of joint injury. And the duration there may have been less in time, but as far as the type of work he did as a carpenter, I thought they all were about the same as far as difficult type of work on a joint that is already significantly involved." (Cohen Dp. pg. 108)

Dr. Cohen agreed that he found disability on the original August 1999 injury, and then he found one lump sum additional for the other three employers, he did not separate out that additional disability as to the subsequent three employers. The doctor was asked if he had one incident that he would attribute most of Rothschild's problems to, and Dr. Cohen answered - "The (8)/30/99 injury". (Cohen Dp. pg. 110) (Ruling: Roloff Trucking and Karst Construction objections are overruled. Cohen Dp. pg. 110) (Ruling: Roloff Trucking's objections are sustained, Cohen Dp. pg. 111)

On cross examination by the Second Injury Fund, Dr. Cohen was queried - wasn't it correct that in his review of the medical records he saw no particular injuries while Rothschild was employed at Karst, BAM or Integrity. "Acute injuries, that's correct", the doctor said. (Cohen Dp. pg. 114) Dr. Cohen agreed that Rothschild's symptoms probably further degenerated since his last date of employment. Dr. Cohen agreed that it was his opinion Rothschild would benefit from surgery to the left shoulder. The doctor was asked if he would defer as to whether or not there were any jobs suitable for Rothschild in his condition to a vocational expert, and Dr. Cohen answered - "Yes". (Cohen Dp. pg. 120)

On redirect examination, Dr. Cohen was asked what injury Rothschild had sustained to the left shoulder as a result of the August 1999 fall. "He has an impingement to the left shoulder and a tear of the rotator cuff in the left shoulder", the doctor responded. (Cohen Dp. pg. 125) The doctor was asked if the degenerative changes seen in Rothschild's knee were due to the injuries that he had as opposed to the natural aging process. Dr. Cohen answered:

"The degenerative changes, in Mr. Rothschild's case, are due primarily to the original trauma to those joints and also due to the repetitive work he did, and to a lesser degree to the fact that he's of this particular age group, you could see some. And he is overweight, and that can also cause some of those findings as well." (Cohen Dp. pp. 133) (Ruling: Roloff Trucking objections are overruled. Cohen Dp. pg. 133)

Dr. Phillip George, M.D. testified by deposition on behalf of Karst Construction (Karst Exh. No. 7) Dr. George stated that he is an orthopedic surgeon. It was agreed and stipulated to by the parties that Dr. George would testify in accordance with his June 22, 2004 report. (See, George Dp. pp. 6-7)

Dr. George testified as to his diagnoses after taking a history and complaints, a physical examination and a medical review:

"My diagnoses were: one, post-traumatic arthrosis, right knee, moderately advance; two, complete rotator cuff tear right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromiocalvicular joint; three, rotator cuff tear of the left shoulder with degenerative arthritic changes at the AVC joint; four, early post-traumatic changes at the AVC joint; four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." (George Dp. pg. 8) (Ruling: Claimant's objection is overruled. George Dp. pg. 8)

The doctor was asked his conclusions as to Rothschild's right knee difficulties, and Dr. George answered:

"It was my felling that this gentleman had preexisting osteochondritis dissecans of his right knee and that it was aggravated or exacerbated by the fall of August of '99.

The subsequent surgeries were carried out in 2000. They found evidence of drastic osteochondritis dissecans, which preexisted the injury in question, but in my opinion was made worse by the injury in question. Standard arthroscopic techniques sufficed to moderate his symptoms but did not cure the problem.

It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10)

Dr. George was asked to testify as to his opinions regarding the role of the various subsequent employments:

"The condition of osteochondritis dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employments from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004.

What I mean by a minor contributory factor is that, if a gentleman has a rough spot in his knee, and he goes to work, and even walking from the parking lot into the place of employment, that might make the knee a little sore. He works a full eight-hour day - - a ten-hour day. He does what does. He goes home. It's still sore. I think his work activity had something to do with making the knee sore.

If he had gone to work with a normal knee, smooth surfaces, no osteochondritis dissecans, he might have come to work sore anyway depending upon what he does at the place of employment. If he falls off the top of a cab of a semi, he's going to be sore. That's more or less what I mean by minor contributory factor.

This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." (George Dp. pp. 10-11)

The doctor was asked to state his opinions in regard to the left shoulder, based on his evaluation:

"I felt that that same injury we just discussed, the fall off the top of the cab of the tractor in '99, caused the rotator cuff tear.

The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not want surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that." (George Dp. pg. 11)

Dr. George gave his opinion on causation as to the right shoulder:

"The right shoulder problem was clinically more severe. It had apparently resulted from a fall which had occurred some years - perhaps three to four years after the original injury of '99. The patient, indeed, told me that it occurred at home because his right knee collapsed and caused him to fall.

I simply said that I did not feel the right shoulder problems, even though they were severe, were not the result of any of the work injuries we talked about." (George Dp. pg. 12)

Dr. George gave his opinions in regard to the left ankle after evaluation:

"The diagnosis, which I offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said

that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

It was noted that Dr. George had said Rothschild had injured his left ankle in 1999, and the doctor was asked if he was able to find complaints produced in the medical records. Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, the doctor said. Dr. George agreed that his opinion was the same in regards to the left ankle as with the right knee in regards to subsequent employment, that the subsequent employment play only a minor contributory role in the problem. Dr. George was asked to compare the problems in Rothschild's left ankle to his right knee:

"The nature of the difficulty in his joints is, in my view, the result of a systemic problem. Osteochondritis dissecans is a bona fide orthopedic diagnosis. It has a chapter in any orthopedic text. And what it says is we don't know why people get this, but it's very classic and well-described. And this gentleman fits the diagnosis to a tee.

There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle.

What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab." (George Dp. pg. 14)

Dr. George agreed that he has stated that in regards to the surfaces of the ankle and the knee, these could get sore with activity. In regards to activities such as trucking and whether or not it contributed to any additional problem, Dr. George testified: "I would suggest that those activities would not alter the natural - so-called natural history of this particular condition, which is one of progressive deterioration with advanced pain." (George Dp. pg. 15) (Ruling: Roloff Trucking objection is overruled. George Dp. pg. 15) Dr. George agreed that in his review of the medical records he did not see any significant alteration with the symptoms.

On cross examination by the claimant, the doctor was queried if he was saying osteochondritis dissecans cannot be caused by trauma ever. Referring to what the doctor described as one of the two leading texts for orthopedists, Dr. George answered:

"If you read that, it says this condition is post-idiopathic, doctor talk for we don't know why. But it then proceeds to say one of the, one of the many possible etiologies might be trauma. What I'm referring to is the kind of trauma that occurs if a 14-year-old kid falls off his bicycle or twists his knee playing soccer, those kinds of thins, or a 21-year-old hits a bridge on his Harley, those kinds of things, we think, can initiate the problem.

It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have." (George Dp. pp. 16-17)

Dr. George agreed that even if you have preexisting osteochondritis dissecans, it can be asymptomatic and can be activated or aggravated by trauma. The doctor also testified: "I do think that if you have an osteochondritic knee and you fall off a trailer you can hurt it. Now, what does that mean? That means the symptoms get more severe. Did the fall cause the problem? I don't think so. (George Dp. p. 22-23)

During cross examination by the claimant, Dr. George agreed that in his report he had written the right shoulder problem is more severe and resulted from a fall which occurred three to four years after the original injury to the right knee. When queried, wasn't it correct that the fall occurred because of the right knee gave way, Dr. George responded - "That's what the patient told me." (George Dp. pg. 20) Dr. George gave further testimony:

"What I think I've been saying is that I think the gentleman had an intrinsic problem with his knee, which for convenient sake, orthopedists call osteochondritis dissecans.

It was my opinion that the work-related trauma of ' 99 was a minor contributing factor to this condition. It was my feeling that eh reason he fell, assuming his report to me was the truth, in, I guess, ' 03 or whenever it was, at least three to four years after the original injury when his right knee gave way - it would be my surmise that the knee gave way because of osteochondritis dissecans, not because of any effect of an injury which occurred in '99.

Certainly the effects of that injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans. That presumably is what made his knee give way and hurt his shoulder.

So I'm not - I mean, your reading of that statement is fairly creative from your point of view. From my point of view I would tell you I think it was due to arthritis of his knee." (George Dp. pg. 21) (Ruling: All objections overruled. George Dp. pg. 20)

Dr. George admitted that he had no history of Rothschild's right knee giving way prior to the 1999 accident when he fell off the truck at Roloff Trucking, and that he had no history and saw no medical records of osteochondritis dissecans being diagnosed prior to the fall of the truck at Roloff Trucking in 1999.

On cross examination by Integrity Installations, Dr. George agreed that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current conditions. (Ruling: Roloff Trucking's objection is overruled. George Dp. pg. 28) Dr. George stated that he did not think he saw the report of Dr. Richard Rende.

On cross examination by Roloff Trucking, Dr. George stated if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". (George Dp. pg. 31( (Ruling: claimant's objection is overruled. George Dp. pg. 31) It was noted that the doctor described the left ankle as "early post-traumatic arthrosis of the left ankle", and Dr. George explained what he had meant: "That means I expect it to get worse". (George Dp. pg. 32) It was noted that he had used the term "drastic osteochondritis dissecans", and the doctor was asked if the condition was drastic back in 1999. Dr. George answered: "It was drastic in 2000 when they first started looking in there with an arthroscope? The three operative reports of the two surgeries describe changes which one would have to label drastic, i.e., advanced, long-lasting, severe." (sic) (George Dp. pg. 33) Dr. George gave the following opinion testimony in regards to the claimant's left ankle:

Q. Okay. And my understanding is, from reviewing your report, that the claimant's - when you looked at him it appears, one of the symptoms he did is he had a limp on the left, not the right. So is it a fair statement he was limping from the left ankle, not the right knee?

A. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

Q. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

A. No.

Q. Or the original accident back on August 30, 1999?

A. No.

Q. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

A. That's a fair statement.

Q. In that you say it was substantially caused by the original trauma of 1999 ?

A. That is correct. (George Dp. pp. 33-34) (Note: Ruling: Second Injury Fund and Claimant's objections are sustained. George Dp. pp. 29, 30 and 31)

On cross examination by the Second Injury Fund, Dr. George agreed that he met with Rothschild personally, and Rothschild did not relay to him any prior injuries or treatment to the right knee before the August 29, 1999 injury. The doctor was again questioned if a patient can have osteochondritis dissecans but no symptoms, and Dr. George's testimony this time was: "Once again, it depends on the degree. If you have osteochondritis dissecans and you have symptoms, you may not go to the doctor about it, but you're certainly symptomatic." (George Dp. pg. 37) (Ruling: All objections overruled. George Dp. pp. 35, 36 and 37) When further queried, don't you recall testifying earlier that a person can have the condition of osteochondritis dissecans but be asymptomatic, Dr. George responded: "I don't recall saying that. I doubt I said that. If I said that, I didn't mean it. What I meant was you can have that condition and not go to the doctor about it." (George Dp. pg. 37) Dr. George agreed that he did not see any preexisting treatment records for the right knee or left ankle prior to the August 30, 1999 injury. Dr. George agreed that he examined Rothschild's left shoulder, and it was his opinion the August 1999 injury caused the left shoulder rotator cuff tear. "As far as I know", the doctor said, Rothschild was pain free in the left shoulder before August of 1999. (George Dp. pg. 38) The doctor agreed that Rothschild told him he had injured his right shoulder at home and not at work. Dr. George agreed that Rothschild did not relay to him any medical history, and he did not obtain any medical history of any problems before August of 1999 to the left ankle; the doctor agreed that Rothschild relayed to him that he had no prior injury or treatment to the right knee before the injury of August 29, 1999. Dr. George stated "(C)orrect" that it was his opinion the osteochondritis dissecans was significantly aggravated or exacerbated by the fall of August of 1999 when Rothschild fell off the trailer. (George Dp. pg. 39)

On further cross examination by the claimant, the doctor was queried if the fall of 12 feet landing on concrete such as Rothschild had could cause severe drastic changes in the kneecap which would show up as osteochondritis dissecans.

"What I'm trying to say is the findings that were reported by the arthroscopist describe a condition which I called drastic. And what I meant by that was advanced degenerative changes in the knee which had been long-lasting. What I mean by that is preexisting August of ' 99 .

If one falls off a 12 -foot truck cab onto any kind of surface, one can damage any of his joints, but that kind of injury

doesn't cause what was described by the arthroscopist. What they were describing was far beyond that, something that had been ongoing for probably 20 years and could have been aggravated by the trauma of August of '99, but there would be no way to tell because of all the wreck that had been there before secondary to osteochondritis dissecans." (George Dp. pp. 4243) (Ruling: Karst and Roloff objections are overruled. George Dp. pg. 42)

Dr. George agreed that in his report he had opined - "I consider his present condition to be due to preexisting osteochondritis dissecans aggravated to a significant degree by the trauma from 1999". The doctor further testified: "I agree with that. I mean, I think that's what I've been saying all along," (George Dp. pg. 44) (Ruling: All objections are overruled. George Dp. pp. 43 and 44)

Dr. Richard Rende, M.D. testified by deposition on behalf of Integrity Installation. (Integrity Installation Exh. No. 8) Dr. Rende stated that he is a board certified orthopedic surgeon. The doctor agreed that he evaluated Rothschild on June 2, 2004 on behalf of Integrity Installation and prepared a report. A history was taken from Rothschild which included any injuries and/or treatment, an employment history, the doctor agreed. I was provided various records for review, the doctor stated. Dr. Rende stated that he performed a physical examination of Rothschild. The doctor stated that he would testify in accordance with his report as to this information as well as his findings upon examination. Dr. Rende testified as to his impressions based on the history and the records: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) The doctor was asked to explain what osteochondritis dissecans (OCD) was:

"OCD is a traumatic injury that occurs typically in people anywhere between the ages of 15 to 50 that results in a lesion that forms on the weight bearing surfaces of either the medial or lateral femoral condyle -

"-or in lay terms, the end of the femur bone. It's the part of the femur bone that bears weight. It's etiology is typically that of either idiopathic or trauma.

"Idiopathic means that there are people who have no known reason for the lesion to occur, but approximately 50 percent of these patients have a history of trauma. There's some theories that it could possibly be a vascular insult that is later dislodged by trauma, but regardless, many of them are traumatic in etiology and it basically results in complete loss of bone and cartilage from the end of the femur from one event.

"It's probably the most devastating of the injuries to the knee because in one fell swoop the patient becomes, as we would say, bone against bone." (Rende Dp. pp. 9-10)

Agreeing that there are different grades of OCD, Dr. Rende explained:

"A Grade I lesion is a lesion that occurs on the radiograph where the bone has lost its integrity but the piece actually does not break away from the end of the femur.

"That has the best prognosis. A Grade II lesion is one in which the piece breaks away partially or becomes unstable. Those can be pinned back in place with a fair prognosis, and then there's a Grade III lesion in which the piece becomes displaced completely and loses its entire blood supply, and those are the poorest prognosis, and that's the type of injury that Mr. Rothschild sustained." (Rende Dp. pg. 11)

Dr. Rende testified as to his additional impressions:

"It was my opinion that the osteoarthritis was directly a result of that particular injury. This was not a repetitive micro-trauma type of injury, and I felt that the gentleman also needed permanent work restrictions, and I went over those in my letter to you." (Rende Dp. pg. 11)

It was noted that Dr. Rende used the term "progressive generative osteoarthritis"; the doctor was asked what relationship, if any, did that have to OCD, and the following testimony occurred:

A. Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with exposed bone and no cartilage.

Q. Okay.

A. OCD is a disease where it happens and it's done, it's there. It becomes exposed bone from one injury.

Q. And does the progressive degenerative osteoarthritis, was that the result of the OCD injury?

A. Yes. The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results.

Q. And that's the natural disease type process from this type of injury?

A. Yes. We call that the natural history of the disease.

Q. Would his condition then progress like that without regard to his activities?

A. Yes, that's correct. (Rende Dp. pp. 12-13)

Dr. Rende agreed that he had reached an opinion on Rothschild's ability to work, and stated: "I felt that the patient was able to perform only light duty activities." (Rende Dp. pg. 13) The doctor noted that the restrictions necessary for Rothschild were that he shouldn't be allowed to kneel, squat, climb or lift repetitively over 50 pounds.

Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14) Dr. Rende agreed that he indicated the OCD would have progressed without regard to whatever activities Rothschild was doing. (Ruling: Claimant's objection is overruled. Rende Dp. pg. 14) It was noted that Rothschild was also alleging consequence injuries as a result of the right knee problem to the left ankle and also to the right shoulder from a fall at home at a later time. "I don't believe it had anything to do with his 29 days of employment (at Integrity) that late after his injury", Dr. Rende answered, and agreed that he meant this also as to the left ankle as well.

Agreeing that he felt Rothschild had permanent partial disability to the right knee, Dr. Rende testified: "I felt he had a permanent partial disability of his right leg at the level of his right knee of 30 percent as a result of the osteoarthritis dissecans injury." (Rende Dp. pg. 15) The doctor agreed that this assessment to the right knee was for the overall condition at the time of his evaluation of Rothschild on June 2, 2004. I did not find any disability with regard to the left ankle, the doctor said. Dr. Rende stated that he did not evaluate the right shoulder, noted from the fall at home.

Dr. Rende testified as to his opinion of whether or not Rothschild needed any further treatment: "I felt that this gentleman would be an excellent candidate for a knee replacement or partial knee replacement." (Rende Dp. pg. 16)

On cross examination by the claimant, the doctor was asked if his recommended restrictions for the right knee was because he thought it would hurt the knee. "Yes, it would make it worse and it would produce significant symptomatology to him", Dr. Rende answered. (Rende Dp. pg. 18) The doctor was then queried - so any kneeling, squatting climbing, or lifting repetitively over 50 pounds would make the knee worse? Dr. Rende responded: "I'm talking about his symptoms when -- when you come to a physician, we're human beings, we don't want to inflict pain on someone. And that's the reason I said that." (Rende Dp. pg. 18)

During cross examination by the claimant, Dr. Rende agreed that his opinion the claimant needed either a total or partial knee replacement was attributed to the injury back in August of 1999 when Rothschild fell off the truck.

Dr. Rende stated, during cross examination by the claimant, that osteoarthritis dissecans and avascular necrosis have different etiologies, and explained:

"Avascular necrosis implies more of a vascular damage and it usually is a little more extensive. Osteochondritis dissecans is more of a focal area of loss of blood supply.

"Avascular necrosis is a slightly different disease, it manifests itself similar but it looks different radiographically, it behaves a little bit differently." (Rende Dp. pp. 20-21)

Avascular necrosis does not develop from osteoarthritis dissecans, Dr. Rende said. "The osteochondritis dissecans lesion frequently loses its blood supply but it's a traumatic loss of blood supply because of the loss of the integrity of the subchondral bone", the doctor further stated. (Rende Dp. pg. 21)

On cross examination by Roloff, Dr. Rende stated that half the people in the literature who have osteochondritis dissecans have no history of trauma. "Most of those patients are in the teen age group", the doctor added. (Rende Dp. pg. 23) The doctor stated that he has had a middle aged patient without a history of trauma and have OCD. Dr. Rende was asked what the x-rays would like in a patient without a history of trauma and relays some symptoms of OCD. The doctor answered: "Most atraumatic lesions present as Type I lesions. That means that the radiograph shows a small halo, but the piece that's avascular is still in its anatomic position." (Rende Dp. pg. 24) (Ruling: Claimant's objection is overruled. Rende Dp. pg. 23) The doctor was asked what an x-ray would like in a patient who had preexisting, diagnosed OCD and is subsequently seen with a history that the day before he had an accident; Dr. Rende responded - "It depends on whether the trauma converted it to a Type II or Type III." (Rende Dp. pg. 25) The doctor was asked if it was possible that a trauma could convert a Type I to a type II or a Type II to a Type III. Dr. Rende answered:

"If you look at the literature, most of the Type II lesions have some traumatic history. It's the Type I lesions that

typically are more likely - I shouldn't say more likely, they're equally likely to have trauma or not, but the displaced lesions, you usually have a history of trauma." (Rende Dp. pg. 25)

Dr. Rende stated that in Rothschild's case, it would not make any difference if in the August 1999 accident he landed on his feet and twisted his right knee; "(S)imilar etiology or history in treatment", the doctor further said. (Rende Dp. pg. 26) The doctor stated that if a person suffered a traumatically induced OCD he would not necessarily expect a significant amount of pain immediately, but he would expect bleeding of the bone immediately. The doctor was queried if he had also said that OCD even in patient of middle age could be a degenerative type condition. "I wouldn't call it degenerative, I would call it a dysvascular condition", Dr. Rende responded, and explained that "(T)hat means it's an area because of trauma has lost its blood supply". (Rende Dp. pg. 26) (Note: Ruling: Claimant's and Second Injury Fund's objections are sustained. Rende Dp. pp. 27, 28 and 29) Dr. Rende was shown x-rays in the case, and testified as to what a $9 / 3 / 99$ x-ray revealed as to whether or not this was a traumatically induced OCD versus a preexisting OCD:

"Well, what this x-ray shows is it shows that the base of the lesion is very smooth and sclerotic and it suggests that there's been some separation of the normal vascular bone from the avascular bone below. This suggests that the OCD lesion was, in fact, present for some time." (Rende Dp. pg. 31)

The doctor agreed that the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999. "There's also a very small osteophyte here, but that is really a minimal degenerative change, so -". (Rende Dp. pp. 31-32) The medial joint space looked normal on the 9/3/99 x-ray, Dr. Rende said. The doctor commented on the differences seen on the next x-ray taken on 2/9/00:

"The difference here is that now the loose fragment has been removed and there appears to be significant narrowing in the medial joint space, at least 30 percent loss of height of the medial joint space, relative to the films that were taken

preciously." (Rende Dp. pg. 32)

The next x-ray taken on $8 / 1 / 00$ is essentially the same, Dr. Rende said, "(T)he difference in the two films, the osteophyte that was located in the medial joint space in the prior film, which was two millimeters, is now probably three millimeters." (Rende Dp. pg. 32) Concerning the last x-ray taken on 1/2/01, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." (Rende Dp. pg. 33) Dr. Rende agreed that after viewing the 9/3/99 x-ray , it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33)

On cross examination by Karst, Dr. Rende explained that OCD involves the cartilage that basically forms the end of the femur bone "(A)nd its underlying support structure, a small fragment of bone". (Rende Dp. pg. 34) "You seldom see just the cartilage peeled away, it's usually a little piece of the bone as well as the cartilage that breaks off", the doctor further explained. (Rende Dp. pg. 34) The theory is that "it's actually the bone that's traumatized and it gets loose. The support of the cartilage, which is the bone, comes off with it", the doctor said. (Rende Dp. pg. 34) "The theory is these are traumas, but 50 percent of these don't have a specific history of that", Dr. Rende said. (Rende Dp. pg. 35) The doctor was queried, was it correct that the condition becomes a progressive condition because of the devascularization of the fragment. Dr. Rende answered: "Once the fragment is displaced it loses any little bit of blood supply that it may have had and has to be removed surgically, because it becomes a mechanical blockade to the knee." (Rende Dp. pg. 35) Dr. Rende was asked - is there any question, after reviewing the x-rays, that after this accident of falling off the truck, Rothschild had a Type III OCD lesion. The doctor answered: "Well let me answer this. There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." (Rende Dp. pg. 36) Dr. Rende agreed that from that point on the condition was going to progress, and that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression throughout the year 2000.

During cross examination by Karst, it was noted that Dr. Rende had testified earlier that Rothschild's was not a repetitive micro-injury situation; Dr. Rende was asked to explain what he meant by that and the following testimony occurred:

A. Well the question that was brought to me by the letter that I received is could this have anything to do with his subsequent jobs, and my answer was no. This occurred as an injury and the subsequent jobs didn't have anything to do with it.

Q. So subsequently activity - I think you testified to it on direct - can produce some symptoms for Mr. Rothschild, is that correct?

A. Once you've got this you're going to have symptoms and they're not going to go away.

Q. But the underlying progress of this disease got set in stone when Rothschild fell off the truck?

A. It got set in stone when that piece broke loose, became a Type III lesion.

Q. Okay. And nothing really that he did after that could significantly accelerate or aggravate the underlying condition of OCD?

A. It could have, but it didn't in this case, and the reason it didn't is because of his age. (Rende Dp. pp. 37-38)

Noting the OCD is normally recognized at an earlier time and treated, that most patients he sees are referred to him by pediatricians, Dr. Rende further stated that younger people have a better prognosis than 51 year olds, and 51 is probably the oldest you'll see this. "Most of the Type 3s are break loose as a result of trauma"; "It doesn't have to be a significantly huge trauma to break loose"; "With a Type III, oh yeah, everybody that has a Type III is going to have pain because they lock the knee joint", Dr. Rende testified. (Rende Dp. pp. 38 and 39) Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende explained why: "...because they've got bone on bone, and bone on bone is what happens. It's one of the few conditions in the human body where one day you don't have arthritis and the next day you've got bone on bone." (Rende Dp. pg. 39) The doctor was asked - these activities that cause Rothschild to be symptomatic, they're not changing the underlying nature of his OCD disease are they? "They are not", Dr. Rende answered. (Rende Dp. pg. 39)

On cross examination by the Second Injury Fund, Dr. Rende stated that he did not review any x-rays prior to the 1999 injury, and agreed that it would helpful in actually determining if Rothschild had Type I OCD before the 1999 traumatic injury. Dr. Rende indicated that based on the x-rays he was shown at his deposition "I see that he had OCD of some sort before the event". (Rende Dp. pp. 42-43) Dr. Rende agreed that a person can have the beginning type of OCD and be asymptomatic.

On further cross examination by the claimant, Dr. Rende agreed that he had been shown x-rays that preexisted Rothschild's fall of the truck that was indicating he had OCD. The doctor was referred to the 9/3/99 x-ray, and Dr. Rende noted that it revealed a Type III OCD. The doctor was asked - you can't really say that the Type III lesion was four years old, four weeks old, four months old or four days old, can you, just from the film alone? Dr. Rende answered: "That's correct. The film doesn't tell you how long that piece has been displaced." (Rende Dp. pg. 47) The doctor was further queried - the osteochondritis dissecans displacement could have been a week old. "The displacement would probably match his symptoms", Dr. Rende responded. (Rende Dp. pg. 47) When queried, the type of displacement seen in the 9/33/99 x-ray would be consistent with pain originating from falling off the truck, Dr. Rende answered: "I would say very easily that that would be very painful and his knee wouldn't straighten all the way." (Rende Dp. pg. 48)

During further cross examination by the claimant, Dr. Rende stated that Rothschild needs knee replacement now, and agreed that the need for the treatment is because of the injury in 1999.

On further cross examination by Karst Construction, it was noted that Dr. Rende had testified earlier that after Rothschild fell off the truck, on a scale of 1 to 10 he was a 10 , he was already as bad as he was going to get; the doctor was asked - with regard to subsequent activities, did they aggravate his pain or do they aggravate his underlying condition? "It aggravates his pain and it puts other parts of his body at risk", Dr. Rende answered. (Rende Dp. pg. 55) Agreeing that he meant other parts of his body outside of his knee; "(H)is knee is already as bad as it's going to get", the doctor further said. (Rende Dp. pg. 55) Dr. Rende added:

"Working for 29 days for this guy or 6 months for that guy didn't make this guy's knee suddenly need to be replaced. It was the lesion that occurred at his age that resulted in bone on bone, with a snap of the fingers." (Rende Dp. pg. 55)

James E. Israel, vocational rehabilitation counselor, testified at the hearing on behalf of the claimant. I saw Charles Rothschild at my office on July 27, 2004 on behalf of the claimant, Israel said, and the Vocational Rehabilitation Evaluation report was completed on October 14, 2004.

Prior to interviewing and evaluating Rothschild I reviewed medical records and reports, Israel said. Those records, which I certainly will need to refer to my report, include: Orthopedic Associates, Ravi Yadava, D.O., August 3, 1999; HealthSouth TriCounty Surgery, Thomas Matthew, M.D., January 19, 2000 to June 22, 2000; HealthSouth Surgery Center of West County, Herbert Haupt, M.D., January 25, 2000 to January 26, 2000; Missouri Baptist Medical Center, August 4, 2000; Orthopedic Associates, Herbert A. Haupt, M.D., August 1, 2000 to March 20, 2001; ProRehab, P.C., August 3, 2000 to March 7, 2001; England \& Company Case Management Incorporated, July 18, 2000 through May 4, 2001; Neurological and Electrodiagnostic Institute, David M. Peeples, M.D., February 20, 2001; Shawn L. Berkin, D.O., May 9, 2001; Fischer Chiropractic Center, Alfred Fischer, D.C., September 12, 2002; Herman Area District Hospital, October 4, 2002; J. H. Morrow, Jr., D.O., October 8, 2002; Washington Chiropractic Clinic, September 7, 1995 through October 25, 2002; Patients First Healthcare, LLC, Thomas Matthews, M.D., October 20, 1999 to October 28, 2003; St. John's Mercy Hospital-Washington, October 28, 1999 to August 26, 2003; the Division of Workers' Compensation records, September 17, 2003; the deposition of Charles Rothschild, and that includes January 16, 2001 and March 16, 2004; Raymond F. Cohen, D.O., January 15, 2004 to June 22, 2004. Israel noted that subsequent to meeting with Rothschild, two documents became available -- the deposition of Dr. Raymond Cohen taken on July 14, 2004; and also England \& Company Rehabilitation Services, James England report of August 12, 2004.

The evaluation of Rothschild on July 27, 2004 included an interview and there was vocational testing, Israel stated. I interviewed him about his work history, educational background, Israel said, and later on, I looked at the issue of his transferable skills. I administered two tests, the Wide Range Achievement Test and the Purdue Peg Board Test, Israel said.

I was asked to assess Rothschild's ability to compete in the open labor market; what factors in time impacted him adversely as to whether he could work or not, that is work as a truck driver or as a carpenter, and in what time line did these factors have an

impact; and essentially how was he vocationally affected as a result of the combination of his condition, Israel testified.

In his October 14, 2004 vocational rehabilitation evaluation report (No. C), Dr. Israel included the following in the Employability Section:

Occupations within these initial guidelines could be found in a limited ranged of sedentary and light strength classification of employment as defined by the U.S. Department of Labor. However, these overall restrictions or guidelines now provide for an excessively narrow range of work capacity within both sedentary and light ranges. Considering these restrictions, Mr. Rothschild is clearly unable to return to his past occupations as a truck driver or carpenter.

The vocational assessment found Charles to have a $12^{\text {th }} grade formal education with current academic skills ranging from the 6^{\text {th }} percentile through the 12^{\text {th }}$ grade levels. His manual dexterity speed when compared to others in the sample population was deficient. He would be a viable candidate for selected alternative vocational education or advanced training options when these specific profile factors are considered, independently of his current overall functional status.

The Employment Statistics Quarterly, Third Quarter 2004, shows the existence of significant numbers of unskilled or semiskilled sedentary or light jobs (e.g. assemblers, order clerks, handpackers, cashiers, etc.) in the local labor market. While Mr. Rothschild's earlier medical guidelines do not categorically preclude all sedentary and light tasks, he is not at an insurmountable disadvantage in seeking and securing those lesser skilled jobs that exist in the local economy. At 51 years old, Charles has not worked in an alternative capacity. He could not apply any of his past background as a truck driver or carpenter. He has now has poor capacity to adapt to work that he has been previously unaccustomed to performing. The types of unskilled or semi-skilled sedentary or light tasks that meet the medical guidelines generally do not afford the degree of latitude and work site accommodations that Charles's physical disabilities would now necessitate.

Therefore, when considering his age of 51, education current skills, overall physical limitations and pain combined with the job opportunities within his remaining work specifications, he is insurmountable disadvantaged. Charles, without medically determined improvement followed by extensive work adjustment training to rebuild his work stamina and pace, would not have favorable prospects at keeping any job within these medical guidelines. Employers in the usual course of selecting job applicants would avoid hiring an individual with Mr. Rothschild's overall profile in favor of individuals who are more work ready and able. His current overall limitations, pain, educational and work background factors, and required work site accommodations have certainly rendered Mr. Rothschild unable to compete in the pen labor market.

Dr. Israel included the following in the Conclusion Section of his October 14, 2004 report:

Mr. Rothschild had sustained right knee, left shoulder, and left ankle injuries in an accident on August 30, 1999. Following the accident, Charles resumed significant work activity with other employers as noted above until pain forced him to cease all duties in September, 2002

Charles is an older worker (age 51) with a completed high school education. Vocational testing indicated that his academic skills at present are both below and equal to his achieved schooling level several years ago. His manual dexterity speed was deemed to be deficient. Charles is clearly unable to return to his past occupation as a truck driver or carpenter. He does not have vocational skills transferable to other occupations within his current physical capacity. Charles would not currently be able to sustain gainful work within any exertion classification as defined by the U.S. Department of Labor.

Charles Rothschild is disabled from his usual occupation as a truck driver and carpenter as well as from related occupations for which he would be qualified by education and experience as a direct or proximal result of the industrial injury sustained on August 30, 1999. Successive work injuries accrued from ongoing carpentry duties from 2000 to 2002 (as noted in the medical records). Hence, Charles inability to resume substantial gainful activity is the result of medically determined limitations from both primary and pre-existing industrial injuries or conditions.

The work injuries of August 30, 1999 was the beginning of Charles's work impeding disabilities. The further re-injuries occurred in successive employment as a carpenter from 2000 to 2002, had considerably exacerbated his disabilities (as he performed heavy, repetitive tasks). His right knee injury in September, 2002 continued the cycle of general decline of his vocational potential. As several of his carpentry jobs from 2000 to 2002 were of short duration (less than one year), precise discernment of vocational loss is each instance is untenable. However, overall, Mr. Rothschild is indeed disabled by the series of work events as described form 1999 to 2002. Hence, Charles inability to resume substantial gainful activity is the result of medically determined limitations from all related industrial injuries or conditions.

Mr. Rothschild's diminished endurance capability makes it quite unlikely he could sustain any substantial gainful or fulltime job. The cumulative effects of his physical condition, age of 51, education work background and the special work site accommodations required of prospective employers have placed him at an insurmountable disadvantage. Employers in the usual course of selecting job applicants would avoid hiring an individual with Mr. Rothschild's overall profile in favor of

individuals who are more work ready and able. His efforts to locate, apply for, obtain, adapt to, and maintain a suitable job would be replete with obstacles. Under these combined present circumstances, Charles Rothschild certainly cannot compete in the open labor market. (sic)

Israel noted for the record at the hearing that he was referring to and planned on continuously referring to as a source his report and the notes throughout his testimony at the hearing. Agreeing that he had taken data regarding Rothschild's age, Israel stated that he had Rothschild as 51 years old.

Eluding to and relying upon my report at this time, Israel said, Rothschild arrived on time for his scheduled evaluation having driven from his home in Herman, Missouri. Rothschild was referred for evaluation following an injury to his right knee, left shoulder, left ankle, and work-related accident on August 30, 1999, Israel said. He is six feet one inch tall and reported a current weight of 272 pounds, varying between 260 and 304 pounds due to giving up cigarette smoking. Rothschild is right hand dominant, Israel said. He has difficulty with his ability to participate in any enduring activity; he related to the examiner in a cooperative manner; he appeared to put forth good effort during the vocational assessment, Israel testified. He noted Rothschild's primary complaints as indicated in his report, as well as Rothschild's relayed functional limitations. Rothschild's ability to communicate with the interviewer was adequate, Israel noted. Rothschild appeared to be in notable discomfort throughout the course of the evaluation, Israel said. A break was taken after one hour with Rothschild reporting the presence of pain in his right knee; he was able to complete the Wide Range Achievement Test 3, known as the WRAT3 and the Purdue Pegboard Test.

Israel was voir dired on any independent recall he might have of the interview and information regarding Rothschild. Israel admitted that to the last three or four questions he had referred entirely to his report, and had actually read portions of page 2 and Page 3 of the report. Israel noted the things he recalled about Rothschild such as Rothschild standing, and how uncomfortable he was during the interview. But in terms of much of the time line, the kind of jobs he held, who he worked for, I don't recall; I must rely on the records as there's many, many facts in this report. So I am relying heavily on my notes, but I do recall Rothschild, Israel said, and as I see him today at the hearing I certainly remember that interview. Israel testified the questions can cover a very wide spectrum of work history, education, the sequence of events and medical procedures, and the complexity really does require that I make some reference and would need to rely on these notes as I normally do. It was ultimately agreed and stipulated by the parties that Israel would testify in complete conformity with his report dated October 14, 2004.

Israel discussed Rothschild's background, noting that Rothschild reported his general health to have been good prior to August 30, 1999, the date of his initial work injury; Rothschild did not have any preexisting condition that imposed any discernable work limitation. Charles' present work-impeding difficulties began on August 30, 1999 while in the course of employment with Roloff Trucking, Israel said, and then discussed the work related accident and subsequent treatment. Israel noted Rothschild's subsequent employments as a carpenter and duties in those employments.

Israel noted that Rothschild's Wide Range Achievement Test was below and equal to his achieved education several years ago, it refers to his twelfth grade high school diploma, in 1971, several years ago. Arithmetic at the end of the sixth grade; spelling in the middle of the eighth, but would be the middle of the twelfth grade, there about, his high school education; so that is the point of explanation of below and equal to his prior education.

Israel was asked on what did he base his statement that Rothschild is clearly unable to return to his past occupation as a truck driver or carpenter. I based that on very consistent functional limitations as it relates to both upper and lower extremities, Israel answered, what he can use from his upper extremities, i.e. lifting restrictions, and current limitations affecting both the upper and lower extremities, i.e. the limitations on standing and walking, on pushing and pulling of the upper extremities; these are so severely limiting to what a carpenter would do and a truck driver would do. These limitations easily and singularly eliminate both of those prior physically demanding occupations, Israel said.

Israel was asked why he had said Rothschild does not have the vocational skills transferable to other occupations within his current physical capacity. He has transferable skills by virtue of being a truck driver and a carpenter, but not when he's limited to seven pounds, as an example, with his left hand, and not with the push and pull limitations; not with the type of standing and walking restriction, the various functional limitations, Israel answered. These limitations are very prohibitive, not only on the jobs of a carpenter and a truck driver, but any kind of skill and knowledge that he accrued over the years; he cannot use that within the residual capacity remaining after all these limitations are duly considered, Israel further testified.

On cross examination by Roloff Trucking, Israel agreed that he had found that Roloff had a middle of the twelfth grade reading level which was pretty good. It should be no barrier to many types of jobs as long as you consider the overall profile; yes, it's a constructive score, Israel said. With his eighth grade spelling, it would depends on the job, Israel testified, some jobs require no spelling in which case it's not an issue at all but some jobs require spelling. What I mean is there's many variables, and middle eighth grade spelling is a weak spelling score, but often you could work around it. My conclusion here notes that these overall scores are adequate for some of the entry level, unskilled positions out there, quite a number, Israel stated. He agreed that the same thing would be true even of sixth grade math skills. In fact Rothschild had worked with those scores as a carpenter, as a truck driver, and many others, Israel noted.

Israel agreed, during cross examination by Roloff Trucking, that after Rothschild was placed at maximum medical improvement by Dr. Haupt for the August 30, 1999 injury Rothschild subsequently went to work as a carpenter at a number of much heavier duty jobs than he had while working at Roloff Trucking. Israel agreed that being a carpenter is a much more physically demanding job than truck driving. He agreed that based on his history over a year and a half after being released by Dr. Yadava and Dr. Haupt from the August 30, 1999 injury, and after leaving the employment of Roloff Trucking, Rothschild was able to perform all of those jobs and do the work for those time periods. But also the issue ultimately of his sustainability, does this person last at that job, to constitute gainful employment; so, yes, performance, but sustainability seems to come into the issue here, Israel added. Agreeing that the claimant was employable in the open labor market on the day he left the employment of Roloff, and on the day he began working for Karst Construction Company, Israel further stated as he was working, or as he was making an attempt to go back to work, yes. When further queried if he would also then agree that Rothschild was employable in the open labor market on the day he left Karst Construction Company and the day he began working for BAM Construction Company, Israel responded - I can say this; I was asked to look at his employability at the time I saw him as opposed to those other times. Clearly he went from Karst to yet another one or two jobs actually. So that transfer spoke for itself; that he was working and worked until completion of that time period at each of those respective carpentry jobs, Israel testified. As he worked for the time period that he did, yes, Israel stated, the same statement would be true with respect to when Rothschild left the employment of BAM and began the employment of Integrity - he was employable in the open labor market.

Concerning restrictions he considered, Israel stated during cross examination by Roloff Trucking, I looked at all of the medical records with an emphasis on the most recent records in the past year particularly, or even a year or two that noted what would most directly relate to what limits him. The most recent report was also weighed heavily, and that was Dr. Cohen's of 6/22/04, Israel said. He agreed, though, that at looking at the restrictions in his report they appear to be mainly a combination of Dr. Morrow's and Dr. Cohen's restrictions. Israel was queried as to the reason he disregarded Dr. Matthews', one of the treating surgeons, conclusions that the claimant was capable of working. The latest record of Thomas Matthews is October 28, 2003, and I was referring to the datedness of that 2002 report, that was prior to evaluation or comprehensive assessment of Dr. Cohen in 2004; I didn't have anything later than October 28, 2003 from Dr. Matthews, the most recent was Dr. Cohen, Israel answered. Israel stated that he had no knowledge of Dr. Matthews' testimony that the claimant should be working -- doing carpentry and perhaps even at his own carpentry shop. I have no knowledge of that, Israel responded. When asked if this would change his opinion at all, Israel responded that he would have to see what Dr. Matthews said and what the limitations are, and what context before he could judge by that.

On cross examination by Karst Construction, Israel was queried about his statement in his report - based on Dr. Cohen's statement that Rothschild is "incapable of gainful employment in the market place", he wrote his opinion - "Well, I based my opinion that he's incapable of employment in the market place on Dr. Cohen's conclusion that he was incapable of employment in the market place." Stating that it wasn't that simple, Israel explained that the vocational assessment takes in many elements that any medical assessment can't. I look at the age, the education, the work experience, the employment, the vocational rehab training possibilities, he said. All of these are factors are what plays into whether or not a transition can be made to alternative employment or not, Israel stated. I defer to the physician to make the medical call, then I make the employment corollary as well from all of the medical records, he said. I looked at all of the records that are outlined, Israel testified, the limitations that were also eluded to by other physicians in earlier time periods; I'm looking at the competing issues of upper and lower extremity, that has a time line as well, I'm looking at the time of carpentry and truck driving duties, the test scores, the educational background, and the potential for readapting to alternative employment. Dr. Cohen is merely the latest, the most recent, Israel said. But just as my report noted earlier physicians and their limitations, for example in 2002 or 2001, these are all part of what are factors in the time line.

During cross examination by Karst Construction, Israel stated that he was not given a copy of Dr. Rende's report or his deposition. Israel admitted that he was not aware that Dr. Rende had evaluated Rothschild as late as June of 2004. Israel stated that he was not aware that Dr. George evaluated Rothschild again in June of 2004, concurrently with Dr. Cohen, and that he was not given any of that information. I was not given transcripts of the two days of Dr. Matthews' deposition to review, Israel stated. Only through October of 2003 is the latest records for Dr. Matthews is what I have, Israel said. I did request an updated medical records, Israel noted, which is why the report came October 14, 2004, having seen Rothschild on July 27th. I needed more records. Israel agreed that the only things he received in response was the deposition of Dr. Cohen and the report of Mr. England. He was queried whether or not it was odd that he did not see any employers' evaluations. I don't look at who had been on the defense or the plaintiff, Israel responded, I look at the issue of a medical person who is a physician, who makes a diagnosis of functional limitations and I don't attempt to get out of that domain and figure whose representing what.

On cross examination by B.A.M. Construction, Israel agreed that in the section of his report entitled "Functional Capacity" there was no reference to anything Dr. Matthews, Dr. Haupt or Dr. Peeples may have said. There certainly was a reading of Dr. Matthews' extensive treatment records up through October of 2003; Israel added. When queried if through some process he picked and chose which of the physicians he was going to use to include their information in the Functional Capacity portion of his report, Israel answered - No, is isn't like a process of picking and choosing; it's all part of the record; there is a timeline. Look at what the limitations are, Israel added, all of them are considered. If I were to quote every doctor that is listed on page 1, it would be a very, very long report, he said, and the point is that all of these were reviewed and considered. What I did was highlight what were the most current limitations that I had, Israel stated.

The emphasis that had the most weight was the June of 2004 current statement regardless of who that source was; it happened to be

Dr. Cohen who did that evaluation; if there were other records that are relevant in 2004 then they ought to be considered as well, Israel testified. Israel admitted the fact that Dr. Haupt and Dr. Yadava released Rothschild to return to work without restrictions wasn't noted in the Functional Capacity portion of his report. That's not repeated, he added. The information in the section entitled "Education and Training" was a result of my interview with Rothschild and any other references that may have eluded to it, but, yes, it was primarily Rothschild's assertions about how far he went in school. Israel said. The information in the section of my report entitled "Work experience" came from Rothschild and if there was any reference or information in a report that added light to it, but primarily Rothschild explained pretty clearly what he did, Israel said. Israel was queried if it was correct that his conclusion in his report was that there are occupations within the physical range of skills possessed by Rothschild. Yes, he certainly has transferable skills, there are occupations that a person can do whose been a carpenter and whose been a truck driver though not within his current capacity, Israel answered. It was noted that in his report Israel wrote - "Occupations within those initial guidelines can be found in a limited range of sedentary and light strength classification of employment as defined by the you U.S. Department of Labor." Initial guidelines of doctors did allow for some capacity of work within a sedentary to light range, Israel responded. This was before Dr. Cohen's determination that Rothschild was totally disabled, Israel agreed.

On cross examination by Integrity Installations, Israel agreed that the most current report was what he put more emphasis on, and that he put the most emphasis on Dr. Cohen's June 2004 report. Israel agreed that he was aware that's Dr. Cohen's primary evaluation occurred on January 15, 2004 and Dr. Cohen's June, 2004 report said it was for a supplemental medical rating. He agreed that he had concluded that all of Dr, Cohen's opinions remained the same from January, 2004. Israel agreed that he was unaware of and didn't have the report of Dr. Rende or Dr. George, and it was noted that both of these were orthopedic doctors who saw Rothschild in June of 2004. Israel was shown Dr. Cohen's second report from June of 2004 (marked as Employee's Exhibit C from Dr. Cohen's deposition) and asked to read the second sentence on the first page - "Additional records were reviewed as they include an IME of 6/2/04 from Dr. Rende.". When asked if he had ever asked for Dr. Rende's report after reviewing Dr. Cohen's June 2004 report, Israel stated that he believed that there were more records that he needed to see and he made that request, but, no, he didn't say - I want this doctor or that. I didn't ask for specific doctors, I wanted them all, Israel said.

When I received the updated records I believed that I got all the relevant records.

On cross examination by the Second Injury Fund, Israel agreed that Rothschild told him that he had no preexisting injuries before the August 1999 injury, and the medical records did not contradict that fact. Israel stated that the claimant told him that he had driven to Israel's office from Herman, Missouri, and that is a distance of a little more than an hour; he agreed that as far as he knew Rothschild was driving himself home. When Rothschild ambulated into my office he had a knee brace, I believe, Israel said. He agreed that he asked Rothschild about the August 1999 work injury, and that Rothschild told him he had worked for a short period at three subsequent car[entry jobs. Israel was queried - isn't it correct you're not aware that there were any work injuries at any of the subsequent jobs. As I understood it, Israel answered, what he had told me is that the demands of the carpentry were hard for him, and in that sense became more difficult. I would just say the records speak of the injuries that occurred, Israel testified, I defer to the records that talk about the 1999 injury and all the other particular events leading up to 2002 -- the 9/1/01, the 9/1/02. There were other events since 1999 as he tried to do his carpentry job, Israel stated. Israel stated that he was not aware of any medical records for treatment for any specific work injuries during the three subsequent jobs. Israel said the he believed there was some statement or some reference, though he didn't have independent recall, that the claimant after he left the last job at Integrity applied for unemployment compensation. I do believe that Integrity was Rothschild's last job and that after that he was not able to keep any employment or find any employment at all, Israel said.

Israel agreed, during cross examination by the Second Injury Fund, that Rothschild has a high school education plus some college classes at East Central College. Israel stated that writing and reading would not be barriers for Rothschild; no, academics is not his barrier in that regard. I believed I asked him if he had any computer skills and he does not have any current computer skills with a PC, he said. I asked him if he handled his own finances and I believe that he handles his finances or handles daily living functions, Israel said. Rothschild as a truck driver or a carpenter I think had delegated tasks to people, but, he was not a supervisor and was not a foreman as I understand it, he said. Israel was queried, wasn't it correct that Rothschild's assertions of physically being able to lift 150 pounds, to sit for 90 minutes and to stand for 60 minutes, these three items themselves would not restrict Rothschild from seeking a sedentary or light position. What I observed of him was a person who was restless, who stood up, who appeared very uncomfortable, Israel responded, so what I observed seemed at variance with what his assertions were. But based on those assertions, if it was as he said, yes, there would be a whole different profile, Israel said.

During cross examination by the Second Injury Fund, Israel was asked wasn't it correct that when he came to his conclusion that he didn't think Rothschild could seek employment, among the factors he took into consideration physically were his right knee, his left shoulder, and his right shoulder. The opinion certainly did take in all of those records and his overall condition, Israel answered. He was asked, when you did an Oasis Test did you take all the data of Rothschild's past experience in heating and cooling as well as his experience as a truck driver and as a carpenter. I enter the job information of the past 15 years, and referred to his past relevant experience; in this instance his extensive experience as a truck driver and his background as a carpenter was in the past 15 years; I believe these were the jobs that were in the past 15 years. Heating and ventilation, air conditioning goes back to the early '70s in the Air Force, I believe, and some work since, but as past relevant work, no; it was centered really in two areas, carpentry and truck driving.

On redirect examination, Israel testified based on my evaluation, my interview, the testing, the review of the records noted in

my report, and the subsequent records; based on the factors of age, education, work experience of carpentry and truck driving background, the residual capacity of the upper and lower extremity, I believe at this time Rothschild is not able to compete because of these combined factors.

James M. England, Jr. testified by deposition on behalf of Roloff Trucking. (No. 1) A rehabilitation counselor. England stated that he is a rehabilitation counselor, and that he reviewed medical records and reports and two depositions of the claimant, and prepared a report dated 8/12/04. England agreed that the claimant provided a complete family, educational and vocational background in his deposition. England was asked to testify as to what he had determined about Rothschild's vocational history:

"Well. The first nine years - well, he had worked for about nine years for Roloff Trucking. He said he worked about fifty hours a week and made about ten0fifty per hour. After that he had worked for Karst.....Construction, from March of 2001 to November of 2001. He said that he had worked full-time but it was on a sporadic basis, just when the work was available. He thought he made twenty-five to twenty-six an hour when he was working there. He had worked for BAM Construction earning about thirty per hour. He said he thought he worked there about three months. He left there because of a lack of work, and he did indicate that if he had not been laid off he would have stayed working for that company.

He said he started working for Integrity Construction in July of 2002. That he was there through September of that year. He explained that on that particular job he would assemble and install retail jewelry and cosmetic cases at department stores, and he said he left there in September of 2002 because his pain had worsened and he just didn't feel he could handle that type of physical activity any longer. He indicated that he drew unemployment for about sixteen weeks or so after that and indicated that the did complete the paperwork indicating that he was ready, willing and able to work and that he was, in fact, looking for all alternate employment.

He was also asked about what he had done before he went to work for Roloff Trucking. He said he had worked for several years on his own operating his own business doing home remodeling, finishing basements, things of that nature. He had also driven some other trucks in the past. That included anything from dump trucks to eighteen wheelers. I felt his primary skill and knowledge would be that in truck driving and carpentry. And it appeared to me that it did not appear that he could go directly back to these forms of work based on the medical evidence, but I felt his knowledge of trucking would certainly give him an edge in applying for something like dispatching and at the same time his knowledge of carpentry I think would be idea for Allied Construction positions, such as sales of construction materials, working at an answer desk, dealing with customers who need knowledge about what kind of building materials to buy for a particular project, that type of thing." (sic) (England Dp. pp. 11-13)

England testified as to his conclusions after his evaluation (at the deposition it was agreed and stipulated to by the parties that England would testify in accordance to his August 12, 2004 vocational rehabilitation evaluation report):

There is obviously a variance of opinion with regard to this man's physical capability. Based on Dr. Rende's findings Mr. Rothschild would not be able to go back to his previous work as a carpenter but he would certainly be able to perform a variety of work at the light to medium levels of exertion.

Utilizing his past acquired knowledge, it would appear that he would be an ideal person to train as a dispatcher or that he could use his construction knowledge in sales positions and customer service positions. He could obviously also acquire additional skills at no cost through the Missouri Division of Vocational Rehabilitation which would help him with tuition, books, transportation money, etc.

Only if one accepts Dr Cohen's opinion that the man cannot sustain even sedentary work could one conclude that this man in unemployable. If Dr. Cohen is right then Mr. Rothschild's lack of employability would be due to a combination of a number of different impairments rather than simply one injury that has occurred.

Dr. Cohen added in his deposition that it was possible, in his opinion, that with additional treatment Mr. Rothschild might improve physically and might then not be permanently and totally disabled.

He also admitted that he would defer to a vocational expert as to whether or not there might be suitable jobs for the claimant with his medical conditions. (Ruling: All objections are overruled. England Dp. pp. 14, 15 and 16)

On cross examination by Karst Construction, England was asked about his statement - a combination of injuries - was he talking about a combination of the shoulders and the knee? England responded: "...I'm not saying that's right or wrong, I'm just saying that's what Dr. Cohen indicated, that it was the man's combination of impairments and my understanding the combination would be that he's he had problems with both shoulders and his knee". (England Dp. pp. 19-20) England was further queried - o you're not actually rendering an opinion here today whether this man is permanently and totally disabled, if he is, as a result of a combination or as a result of one injury or anything like that, you're just simply giving us what Dr. Cohen said. England answered:

"What I'm saying is vocationally the only opinion that I can see in here from a medical standpoint - as a vocational person I can't put restrictions on somebody.

"One set of restrictions I think there are plenty of things he can do. The other doctor doesn't list restrictions but just says I don't think he can even do sedentary work. But that some doctor also says the reason I don't think he can do sedentary work is due to a combination of these medical problems. And so I'm saying if he can't work then, based on what that doctor indicated, his lack of ability to work would be based on a combination of problems rather than just one injury." (England Dp. pg. 21)

On cross examination by Second Injury Fund, England was asked if there was any indication that before the date of injuries Rothschild was not able to do his job at Roloff.

Date: January 19, 2006

Made by: /s/ LESLIE E. H. BROWN

LESLIE E. H. BROWN

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

/s/ PATRICIA "PAT" SECREST

PATRICIA "PAT" SECREST

Director

Division of Workers' Compensation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-166378

Employee: Charles Rothschild

Employer: Karst Construction Services, Inc.

Insurer: AMCO Insurance Company

c/o Allied Insurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: Alleged September 1, 2001

Place and County of Accident: Franklin County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 19, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Leslie E. H. Brown, issued January 19, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 23^{\text {rd }} \qquad$ day of January 2007.

Attest:

Employee: Charles Rothschild

Injury No. 01-166378

Dependents: $\quad--$

Employer: Karst Construction Services Inc.

Address: 12000 W. 1st Street, New York 11, N.Y. 10027

Department of Labor and Industrial

Injury Number: 01-166378

Insurer: AMCO Insurance Company c/o Allied Insurance

Hearing Date: $\quad 1 / 12 / 05,1 / 13 / 05$ (finally submitted 4/1/05)

Jefferson City, Missouri

Checked by: LEHB/bfb

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: alleged 9/1/01
5. State location where accident occurred or occupational disease was contracted: Franklin County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? ---
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Carpentry
12. Did accident or occupational disease cause death? ---- Date of death? ----

1. Part(s) of body injured by accident or occupational disease: ----
2. Nature and extent of any permanent disability: ----
3. Compensation paid to-date for temporary disability: ----
4. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
5. Value necessary medical aid not furnished by employer/insurer? ----
6. Employee's average weekly wages: Maximum
7. Weekly compensation rate: $\$ 628.90 / \ 329.42
8. Method wages computation: by agreement of the parties

1. Amount of compensation payable: ----

Unpaid medical expenses: ----

---- weeks of temporary total disability (or temporary partial disability)

---- weeks of permanent partial disability from Employer

---- weeks of disfigurement from Employer

---- Permanent total disability benefits from Employer beginning ----, for

Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

1. Future requirements awarded: ----

Said payments to begin ---- and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 0 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Ray Gerritzen, Attorney for Claimant

Employee: Charles Rothschild

Injury No: 01-166378

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad-$

Employer: Karst Construction Services Inc.

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: AMCO Insurance Company c/o Allied Insurance

Checked by: LEHB/bfb

This is a joint hearing involving four cases for the claimant, Charles Rothschild, who in all four cases appeared in person and by counsel, Attorney Ray Gerritzen. In all four cases, the Second Injury Fund appeared by and through Assistant attorney General Caroline Bean. In the second case, Injury No. 01-166378, the employer/insurer, Karst Construction Services Inc.//AMCO Ins.. Co./Allied Insurance, appeared by and through counsel, Attorney John Zimmerman.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this case.

On or about October 1, 2001: a. the claimant was in the employment of Karst Construction Services Incorporated in St. Louis County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was insured by AMCO Insurance Company/Allied Insurance; d. the employee's average weekly wage was at the max, the rate being $\ 628.90 over $\ 329.42.

e. A Claim for Compensation was filed within the time prescribed by law. f. No temporary total disability has been paid. g. No medical aid has been provided.

1. Whether or not the claimant suffered an occupational disease arising out of and in the course of his employment
2. Medical causation
3. Liability of past medical expenses
4. Future medical care
5. Nature and extent of temporary total disability
6. Nature and extent of permanent disability - whether partial or total
7. Liability of the Second Injury Fund
8. Last exposure

FINDINGS OF FACTS AND RULINGS OF LAW - Injury Number 01-166378

ISSUES - Injury Number 01-166378 - Whether or not the claimant suffered occupational disease arising out of and in the course of his employment with Karst Construction Services, Inc.; Medical causation

In regards to his prior employment with Roloff Trucking, Inc., it was agreed and stipulated to by the parties that the claimant, Charles Rothschild, sustained injury as a result of a work related accident arising out of and in the course his employment with Roloff Trucking Incorporated on or about August 30, 1999. The claimant alleged injuries to his right knee, left shoulder, and his left ankle and heel area as a result of the prior August 30, 1999 work related accident, and Rothschild further alleges a worsening

of the conditions in some or all of these body parts as a result of subsequent employments at Karst Construction (the employer herein) and then at BAM Construction and then at Integrity Installations Incorporated. At each of these three subsequent employments I worked as a carpenter, and at Karst Construction, the claimant alleges, my right knee and my left ankle conditions worsened due to overuse in performing my work duties; at each of these three subsequent employments I sustained occupational disease as a repetitive trauma from my work activities, Rothschild alleges.

The claimant testified that after the third surgery by Dr. Haupt he was then off work the whole time until Dr. Haupt released him back to work in, he believed, March of 2001. March of 2001 is when I went to work for Karst Construction; the doctor was gonna release me anyway, so I found a job, Rothschild stated. The claimant agreed that he was completely off of work from August of 1999 until March 2001, and agreed that this was all due to the injuries at Roloff. In March of 2001, Rothschild testified, I told Dr. Haupt my knee was still hurting and he sent me to all these other doctors -- Yadava and Peeples -- which it didn't do a thing for me, and then he finally said, "Well, there's nothing more that we can do for you. You just need to go back to work.". So I found a job and I asked him to release me, and I went to work for Karst Construction, he said.

Rothschild stated that his brother and a friend of his had both worked for Mr. and Mrs. Karst, and they had been trying to get him to come to work there. I started with Karst on March 30, 2001, I believe, he said, right after Haupt released me. I worked there until late September or early October of 2001, he agreed. When I went to work for Karst my right knee, left shoulder, and left ankle -- well, nothing was really fixed, the claimant said. The left shoulder was probably the best thing out of everything but I had to do all this heavy carrying, Rothschild stated. My left ankle and my right knee were just getting worse and worse the whole time, he said, we had to keep carrying all these heavy doors and equipment. And these fire doors were very heavy, they were solid-core particle board, he stated. My job when I worked for Karst was trim out of St. Louis Housing Authority houses. We had to move the cabinets in and install them, and all the doors were fire doors and we had to load them on trucks, and take them out of the trailer to the houses and carry them in the house, and install them, he said. The doors were so heavy, they were pre-hung with the trim on them, he said, and when you lifted them up the trim would just disintegrate if we didn't lift them up just right. Rothschild agreed that he was doing these things constantly while working at Karst. He was asked what, if any, affect did this have on his right knee, left shoulder, and left ankle. Well, everything I did just kept getting worse, the claimant answered. It was mainly pain in my right knee and my left ankle that was giving me the fits there, he said, I had to take breaks and Joe had the laborers do a lot of the hard lifting and carrying for me and stuff. I worked an 8-hour day at Karst, the days we worked usually, Rothschild stated. It was a fulltime job but there was days that you didn't work and there was times that there was nothing to do; something didn't come in or something like that, he said. Rothschild agreed that he had to do walking stairs, explaining that with regard to his right knee he would step up with his left foot first when he had to do that. I tried to avoid stairs, the claimant said. My right knee it was definitely worse than anything because it would just be grinding and gritting and popping and completely swollen all the time, he said, and this brace when you sweat - it's supposed to be made for sweating - the more you sweat, and it was very hot out there as it was in the summer time, this brace slipped down on my leg and actually eaten holes, and the bleeding where the pads ate into my leg, Rothschild testified. And when the thing slips down it's putting pressure on the wrong spots and it gets lots worse, the claimant stated. He stated that he wore a brace on his right knee then that was given to him by Dr. Haupt. I made complaints to Joe Karst and P. J., his wife, about the brace rubbing and showed it to them, Rothschild said, they saw it many times. They had the laborers do a lot of the hard lifting and carrying, stocking the rooms with doors and things like that because I couldn't do it, the claimant said. Joe Karst worked with me getting these houses done, Rothschild stated, Joe would hold something up for me; he wasn't really a carpenter or anything, but he would help me do different things like carry something in the room. Rothschild agreed that Joe was there and had on several times told him to sit down and take a break, or something like. He saw I was hurting, Rothschild said.

My work at Karst ended because Karst had some pretty bad financial troubles, Rothschild testified, they actually ended up losing everything and went out of business.

When I stopped working for Karst I then went to work for BAM Construction Company, Rothschild testified, I worked for BAM Construction approximately from October 1, 2001 to about December 30, 2001, he said. At BAM Construction Company I was a finish carpenter, he said, and I strictly worked on the Lenox Hotel, Downtown St. Louis and trimmed quite a few of the hotel rooms out. for BAM Construction. My work entailed my physically doing such things as hanging of doors, the vanities, doing baseboard, stocking the rooms with the trim and then doing just everything to do with trimming that room out for a finish, so it's ready for the painter, he said. I was lifting and carrying tools, doors, big baseboards, and stocking the rooms, Rothschild stated. At BAM I worked from 6:00 a.m. to 2:00 or 2:30 p.m., or 7:00 a.m. until 3:00 p.m., Rothschild said, and pretty well five days a week. He agreed that at that time he was making $\ 30.00 an hour.

Rothschild stated that while working at BAM for the approximately three months in the end of 2001 just everything got worse. My knee got more swollen, the claimant stated, it was always hot in there and I was always sweating, and my brace would fall down and get in the wrong location and eat my leg up, and in the wrong location it put the pressure on the wrong point. I didn't have that much trouble with my left shoulder, Rothschild said, I could use my right shoulder to pretty well take the load. I never could lift the left shoulder right all the way then, Rothschild said, I didn't have the strength in it after that accident, but I got most of it back through the therapy that I took. It never got back to the way it was before I fell off the truck at Roloff, the claimant said. Working at BAM really didn't aggravate or make the left shoulder worse, Rothschild said. The left ankle it definitely did make worse because -- well, my right knee was hurting so bad I had to bare all the weight on my left, Rothschild stated. The job with BAM ended when the Lenox Hotel renovation ended, which would have been the end of December, Rothschild agreed. I did

not work anywhere from the end of December, 2001 till August of 2002, the claimant said. During those roughly seven months I just did exercises at home and I tried to find some jobs, Rothschild said, but when you're in the union you get fined pretty heavy if you go somewhere else and work. So I put my name in the carpenters hall and it was 500 carpenters out, so they couldn't do anything about it, so I just had to wait, and drew unemployment until they called me back, he said.

On cross examination by Roloff Trucking, Rothschild agreed that in March 2001 both Dr. Haupt and Dr. Yadava released him, saying he was at maximum medical improvement, and released him to full, unrestricted duty. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fireproof doors and other heavy items. Rothschild agreed that he did not lose his job at Karst because of a physical inability to work, and he did not quit working for Karst because of the injuries he suffered in the August, 1999 accident at Roloff, he I worked for Karst until Karst went out of business in October 2001. I would have continued working for Karst Construction doing carpentry work, including heavy lifting, had work been available from Karst, Rothschild agreed, further stating - "I had to".

Rothschild stated that his left shoulder didn't get worse while working for Karst, but it did get worse. He agreed that his left shoulder has stayed about the same as it had been since he had completed physical therapy before the Karst job, and has stayed about the same after this through all three other jobs, including Karst, BAM and Integrity. But I carried it with my right, Rothschild added.

During cross examination by Roloff, Rothschild agreed that he filed his Claim for Compensation against Karst Construction and Integrity Installations on October 17, 2002, and alleged a permanent total disability with a date of onset of September 1, 2001 against Karst and September 1, 2002 against Integrity. Rothschild agreed that he recalled seeing Dr. Shawn Berkin on May 3, 2001 by his own attorney, and at that time he was employed by Karst Construction.

On cross examination by Karst Construction, Rothschild agreed that during the time period after the last surgery by Dr. Haupt up to the time that he went to work for Karst Construction, his knee was giving him a lot of problems. During this period my right knee was hurting all the time and it had actually given away on a couple of occasions, he agreed. At that time I think it was two times that I had actually fallen because of this give away situation, he said.

I went to work for Karst Construction in the Spring of 2001, and this was right after Dr. Haupt released me from care, Rothschild agreed during cross examination by Karst Construction. He agreed that when he went to work for Karst Construction he was a union carpenter making union scale. I was on my way for qualifying for Union benefits, Rothschild said. During the time I worked for Karst Construction, Spring of 2001 through September 11, 2001, I worked full time getting substantial hours but I wasn't getting a full 40 hours, Rothschild agreed, and I was actually working as a trim carpenter which is different than a standard carpenter. I guess you could consider this as a lighter job, but not really, the claimant said. He agreed that the Karsts became friends of his during the period of his employment and they worked with him to make sure that he didn't get too sore. I didn't miss any time from work because of my left shoulder, right knee, or left ankle when I was working at Karst, he said, they worked with me. They let me work at my own pace, he agreed, they got me laborers when that was necessary, things like that. I couldn't have done the job without it, Rothschild said. He agreed that while working at Karst he didn't have any specific accidents that caused damage to those body parts, and that he never received any medical treatment of any kind for these body parts while he was working for Karst. Rothschild agreed that after Dr. Haupt released him in March 2001 he didn't begin to get additional medical care until he went back to Dr. Matthews some time in 2002. Rothschild agreed that when he was seeing Dr. Haupt prior to going to work for Karst, he and the doctor did have a conversation about a knee replacement. Dr. Haupt said in the future you may need a knee replacement is what he told me, Rothschild stated.

Agreeing, during cross examination by Karst Construction, that when the Karst's business started folding up he was pretty much the last guy out the door, Rothschild further stated - When work ran out there I even did work in their own home. He agreed that he didn't leave employment with Karst Construction for any medical reason. After working for Karst I went to work for BAM Construction, and that was pretty quick, Rothschild testified, Joe Karst was friends with the owner of BAM Construction, Brian Murphy, and he got me in there on a high recommendation. He agreed that he worked for BAM for a period of up through December of 2001. Rothschild agreed that his first Claim for Compensation against Karst Construction was filed in October of 2002, and this was actually over a year after he'd quit working for Karst.

Rothschild stated, on cross examination by the Second Injury Fund, that during the time he worked at Karst, BAM and Integrity his knee brace bothered him, and that he told Mike Farris at ProRehab about the problems with the brace slipping, and that the Karsts knew it. Everybody that pretty well knew me knew about it, he said. I did not seek medical help for it or rehab help for it while I was at Karst, BAM or Integrity, the claimant said. The claimant was queried - wasn't it correct that he didn't seek any medical treatment at all until he went to see Dr. Matthews in September, 2002? I tried to one time and they told me that I wouldn't be covered because this was a workers' comp accident, Rothschild answered. They wouldn't do anything for me related to this knee and shoulder, because it was a preexisting condition; I believe this was the Carpenters Union, he stated. When I went to see Dr. Matthews my carpenters insurance paid for that and I paid the co-pay, he said. The Union sends you a letter telling you when you're

reinstated in the carpenters' hall, when you have enough hours to get your insurance, Rothschild explained. He agreed that this was before he started at Integrity, and had to be while he was working for Karst.

On redirect examination, Rothschild stated that he noticed his right knee getting worse while working for Karst Construction from all the use - the heavy load-bearing, the carrying stairs and doors. Explaining how it was worse, Rothschild stated - I think I got injections all the way through this whole thing until a few months ago; it was all swollen up and it was grinding and popping; it was like gravel inside of my knee all the time. And I never could lock it; keeping your knee bent all the time you know what that is, your muscle, the claimant stated. Stating that the pain was worse in his right knee when he was working at Karst, Rothschild explained that it got sharper.

I never told anybody at Karst, BAM or Integrity that I had problems with my left shoulder, right knee or my left ankle, and nobody asked, Rothschild stated. Joe Karst knew but I don't know what date they knew it, he said.

Considering the medical treatment records, it is found that there are no records indicating treatment of the claimant at or near the time of the alleged 09/01/01 work related occupational disease at Karst Construction. Dr. Herbert Haupt, M.D., the doctor who performed Rothschild's third right knee surgery in 2000 prepared a March 20, 2001 post-operative examination report (See, No. 2) in which he wrote that Rothschild indicated he did see some improvement in his leg pain with the injections at trigger points performed by Dr. Yadava and with the modifications in his physical therapy program. It was written that Rothschild further indicated that his knee and shoulder were actually doing quite well though he still had the complaint of pain down that leg with prolonged sitting or driving or standing, and a tingling and numbness that occurs in the knee on down the lateral and posterior aspects of the right leg. Examination findings on March 20, 2001 were:

Examination of the right knee shows full extension and flexion. No effusion. He is stable to varus and valgus stress. Shoulder range of motion is considered full. Good active abduction and external rotation strength.

No obvious sensory deficits on today's examination. Motor, sensory, and DTR's are intact.

Dr. Haupt's assessment in the March 20, 2001 examination letter was: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt wrote that he would defer further medical management to Dr. Yadava. Rothschild is continued on light duty status until he sees Dr. Yadava next week, Dr. Haupt further wrote, and the written restrictions were - "steps and stairs only to enter a truck, car or building. Limited lifting of 50 pounds and no bending or squatting activities". Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent ( 6 % ) at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent ( 17 % at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

"He has been advised to wear the valgus unloading brace for a prolonged period of time to help symptomatic relief of his discomfort", Dr. Haupt further wrote.

In a separate March 20, 2001 examination report, Dr. Haupt wrote that Rothschild's chief complaint was - left ankle discomfort. In the history section of the report, Dr. Haupt wrote the following:

Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed or him by me. After discontinuing the Vioxx medication within in about two days he developed the onset of soreness about the lateral aspect of the left ankle. He denies any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle.

He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of. (sic)

Examination findings on March 20, 2001 were:

Examination today demonstrates, by his own admission, a 50 % improvement in the soreness he noted over the weekend. Examination demonstrates no apparent swelling. Range of motion is considered intact and full. Stable to varus and valgus stress. He complains of soreness, however, on anterior drawer as well as with varus stress of the ankle. His anterior drawer is considered negative. He is tender to palpation at the anterior talofibular ligament. There is no swelling noted. His Achilles tendon is normal. When he weight bears his arch appears to be normal. There is no plantar aspect of pain noted.

Routine plain films are really rather unremarkable. No acute or chronic changes noted. These are rather benign appearing

plain films.

Dr. Haupt's written diagnosis on March 20, 2001 was:

Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury. It is possible that he has had some inflammation about that ankle was masked with the use of the Vioxx medication and became apparent upon discontinuing the anti-inflammatory medication and is more or less a rebound effect.

Dr. Haupt wrote of his treatment recommendation in the March 20, 2001 report:

Treatment recommendations are that he can pursue appropriate strengthening on his own, and we taught him a few exercises. In addition, I recommend the use of over-the-counter anti-inflammatories in an effort to cut down on some of the inflammation about the ankle. This can be in the form of Aleve.

There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises.

The last treatment record before the alleged September 1, 2001 work related repetitive trauma injury was the March 28, 2001 record of Dr. Yadava (No. 3) In his last examination report of March 28, 2001 Dr. Yadava wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. The doctor wrote of his findings upon examination of Rothschild which were:

In the seated position, he has remarkable improvement in his soft tissue evaluation along the peroneus musculature. Previous area of trigger point injection have resolved. He has some nodularity, but no taut bands or trigger points. There is no vasomotor instability or signs consistent with RSD. Dorsal and pedal pulses are symmetrical. His neurologic evaluation is stable and unchanged. His DTR's are symmetrical. His hamstring flexibility is unchanged. He measures 75 degrees bilaterally. His quadriceps mechanism still shows evidence of disuse atrophy. His knee examination is unimpressive. He does not have any acute features. He does not have any swelling, effusion of synovitis.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001. The next treatment record in the case was a 12/31/01 entry in the medical records of Washington Chiropractic Clinic, P.C. (No. K); the 12/31/01 entry noted complaints from Rothschild of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

The claimant is alleging his right knee and his left ankle conditions worsened due to overuse/repetitive trauma exposure in performing his work duties as a carpenter at Karst Construction from approximately the end of March 2001 through approximately September 11, 2001; the claimant is alleging that he sustained occupational diseases.

Occupational disease is defined in Section 287.067.1 RSMo 1993, which states:

In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

In Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W.3d 43 (1999), 47 -49 (Mo.App. E.D.,1999) the Missouri Court of Appeals, Eastern District stated the following:

Section 287.067.1 RSMo 1994 defines occupational disease as:

an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section.

Section 287.067.1 RSMo 1994. In 1993, this statute was amended, incorporated in section 287.067.2 RSMo 1994, to provide that an occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided by subsections 2 and 3 of section 687.020. An occupational disease is not compensable merely because work was a triggering or precipitating factor.

Section 287.067.2 RSMo 1994. Subsection 2 of section 287.020 defines an injury as clearly work related "if work was a substantial factor in the cause of the resulting medical condition or disability." Section 287.020.2 RSMo 1994.

In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. Hayes v. Hudson Foods,

Inc., 818 S.W.2d 296, 299-300 (Mo.App.1991). The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Polavarapu v. General Motors Corp., 897 S.W.2d 63, 65 (Mo.App. E.D.1995); Dawson v. Associated Electric, 885 S.W.2d 712, 716 (Mo.App. W.D.1994); Hayes, 818 S.W.2d at 300; Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 415 (Mo.App.1988); Jackson v. Risby Pallet and Lumber Co., 736 S.W.2d 575, 578 (Mo.App.1987).

Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Dawson, 885 S.W.2d at 716; Selby v. Trans World Airlines, Inc., 831 S.W.2d 221, 223 (Mo.App. W.D.1992); Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo.App.1991). Claimant must prove 'direct causal connection between the conditions under which the work is performed and the occupational disease.' Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo.App.1992); Sellers, 752 S.W.2d at 416; Estes v. Noranda Aluminum, Inc., 574 S.W.2d 34, 38 (Mo.App.1978). However, such conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. Hayes, 818 S.W.2d at 299; Sheehan v. Springfield Seed \& Floral, 733 S.W.2d 795, 797-8 (Mo.App.1987). A single medical opinion will support a finding of compensability even where the causes of the disease are indeterminate. Dawson, 885 S.W.2d at 716; Sellers, 776 S.W.2d at 504; Sheehan, 733 S.W.2d at 797. The opinion may be based on a doctor's written report alone. Prater v. Thorngate, Ltd., 761 S.W.2d 226, 230 (Mo.App.1988). Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo.App.1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. George v. Shop 'N Save Warehouse Foods, Inc., 855 S.W.2d 460, 462 (Mo.App. E.D.1993); Webber, 826 S.W.2d at 54; Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 163 (Mo.App.1986)...

Aggravation of a preexisting disease or infirmity caused by nonaccidental conditions of employment is compensable as either an accident or as an occupational disease. Smith v. Climate Engineering, 939 S.W.2d 429, 436 (Mo.App. E.D.1996). Aggravation of a preexisting disease or infirmity caused by repetitive trauma is compensable as either an accident or as an occupational disease. See Id. at 433-35."

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"...an injury may be of such a nature that expert opinion is essential to show that it was caused by the accident to which it is ascribed. When the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific techniques for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding..." Knipp v. Nordyne, Inc. 969 S.W.2d 236, 240 (Mo.App. 1998).

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"Medical causation not within common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. Selby v. Trans World Airlines, Inc., 831 S.W.2d 221, 222 (Mo.App. 1992)

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"A medical expert's opinion must have in support of it reasons and facts supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence." (citations omitted) Pippin v. St. Joe Minerals Corp., 799 S.W.2d 898, 904 (Mo.App. 1990).

Medical opinions were presented in this case. Dr. Shawn L. Berkin, D.O. prepared a May 9, 2001 evaluation report, (See Exh. A, Attachment Roloff Dp. Exh. No. 2), after evaluating Rothschild for purposes of rating in regards to the August 30, 1999 work related injury at Roloff Trucking. The doctor discussed the August 30, 1999 work related injury while in the employ of Roloff Trucking; the doctor noted that Rothschild had worked for Roloff Trucking for ten years. "The patient stated that he never returned to work for Roloff Trucking following his treatment and is currently employed as a trim carpenter for the Carst (sic) Construction Company", Dr. Berkin wrote. Present complaints of Rothschild noted by Dr. Berkin in his May 9, 2001 report were - pain and tenderness to the right knee, swelling to the knee and the knee gives out; stiffness to the right knee and symptoms worse with weather changes; Rothschild reported limited motion of the knee and his knee symptoms are aggravated by kneeling and squatting; he had complaints of weakness to his left arm and his shoulder symptoms were aggravated by lifting. Dr. Berkin discussed his examination findings of May 3, 2001 which included: a. height - 73", weight - 268 pounds; b. left arm - no swelling or deformity, shoulders level in sitting position, upon palpation tenderness over the anterolateral surface involving that acromioclavicular joint extending into the left upper arm, stressing left shoulder failed to demonstrate any joint instability but a prominent clunk was present on passive circumduction of left shoulder, it was indicated that range of motion of left shoulder was decreased in all planes, muscle strength testing showed weakness of left arm on flexion and extension against resistance; c. right leg - wearing brace furnished at time of treatment, upon removal of brace generalized swelling without obvious joint effusion, walked in a normal gait without

evidence of a limp, generalized weakness localized over the anteromedial surface, stressing knee failed to demonstrate any joint instability but patient complained of pain to his knee on valus and varus stressing, it was indicated that flexion and extension range of motion was decreased; d. weakness of left leg on extension of the left knee against resistance; e. able to stand on toes and heels without difficulty but unable to squat because of complaints of pain in his right knee; f. left knee - normal range of motion. Dr. Berkin's final impressions were: 1. Rotator cuff tear of the left shoulder; 2. Impingement syndrome of the left shoulder; 3. Right knee strain; 4. Tear of the medical meniscus of the right knee; 5. Tear of the anterior cruciate ligament of the right knee; 6. Osteochondritis dissecans of the right knee; 7. Status-post arthroscopy of the right knee with debridement of the medial femoral condyle and removal of osteochondral lesion 01/19/00; and removal of osteochondral lesion 01/19/00; 8. Status-post arthroscopy of the right knee with arthroscopic debridement 06/22/00; 9. Status-post arthroscopy of the right knee with medial meniscectomy, Debridement of the anterior cruciate ligament, shaving, debridement and chondroplasty of the medial femoral condyle and femoral trochlea and lateral retinacular release. "The patient is currently employed as a trim carpenter for Carst Construction and is receiving no treatment for his injuries at this time", Dr. Berkin wrote. Dr. Berkin wrote of his assessment as to disability in regards to the August 30, 1999 work related accident in his May 9, 2001 report:

1. A permanent partial disability of 30 % of the left upper extremity at the level of the shoulder for the rotator cuff tear of the left shoulder associated with an impingement syndrome.
2. A permanent partial disability of 55 % of the right lower extremity at the level of the knee for the right knee strain associated with tears of the medial meniscus and the anterior cruciate ligament and an osteochondral lesion involving the medial femoral condyle necessitating three surgical procedures on his right knee. I feel the patient has an additional permanent partial disability of 10 % of the right lower extremity at the level of the knee for the degenerative arthritis of the right knee that pre-existed his injury which to my knowledge, has been asymptomatic prior to his injury.

In the Treatment Recommendations section of his May 9, 2001 evaluation report, Dr. Berkin wrote:

The patient continues to have significant symptoms to his right knee and I recommend the continued use of his knee brace in order to stabilize his knee. I recommend that the patient be restricted from prolonged standing or sitting and that he be restricted from kneeling, stooping or climbing.

With respect to his left shoulder, the patient continues to remain symptomatic and indicated that he does not wish to have surgery on his shoulder because he fees that surgery has not really helped his knee. With respect to his left shoulder, I recommend the patient be restricted from lifting with his left arm no more than twenty-five pounds from the floor to the waist and fifteen pounds from the waist to the shoulder. I recommend that the patient avoid working with his left arm above the level of his shoulder.

The patient has indicated that he is currently working as a trim carpenter but if he continues to have symptoms at his current level of activity, I recommend that he consider alternative employment that his less physically demanding. (sic)

Dr. Thomas Matthews, M.D., an authorized treating doctor and testified on behalf of the claimant (No. B), stated that he is a board certified orthopedic surgeon and that he began treating Rothschild on 10/20/99, and stated that his examination was primarily confined to the left shoulder and right knee. Dr. Matthews performed arthroscopic surgery on Rothschild's knee on January 19, 2000 and again on June 22, 2000. It was Dr. Matthews' opinion that the August 30, 1999 work related accident at Roloff Trucking was the substantial cause of the injury of an aggravation of a pre-existing condition in the claimant's knee of osteochondritis dessicans which required the two surgeries he performed, and that the August 30, 1999 work related injury was the substantial cause of a left shoulder rotator cuff tear. In the June 29, 2000 post-operative treatment note, Dr. Mathews wrote the following:

He comes in today one week after debridement of his knee joint. Again, his osteochondral defect is pretty significant. The margins were debrided. Some loose bodies were removed. Other than that, nothing else can be done arthroscopically.

In the next entry of 07/12/00, Dr. Matthews wrote that Rothschild was three weeks out from his scope and second debridement of his medial femoral condyle defect. The doctor further wrote that Rothschild was advised to continue a range of motion program on his own level and let his knee calm down at that time; the doctor wrote that he wanted to see Rothschild back in one month for recheck. The next entry in Dr. Matthews' record was a 01/15/02 entry in which the following was written:

He comes in today for an opinion regarding his right knee. He apparently had an osteochondral transfer graft to the medial femoral condyle by Dr. Haupt in St. Louis last year. Since that time, his knee has been bothering him somewhat with occasional swelling and stiffness and inability to squat and inability to get down on the leg. His other knee is bothering him as well.

Dr. Matthews noted that radiographs were obtained and showed "sclerosis of the medial compartment, but good joint space is maintained. There is some patellofemoral narrowing, as well. There is a flat spot on the lateral of the medial femoral condyle that is notable". Dr. Matthews' assessment on 01/15/02 was - Posttraumatic osteoarthritis of the right knee. The doctor wrote the following in the treatment plan section of the 01/15/02 entry:

Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee.......I believe he does have a 50-60 % disability of the knee, but my most significant concern is the problems in the future.

In a treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit........

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote of the treatment given that day, and that Rothschild was to return in three weeks. The doctor further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr. Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visit, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

Dr. Matthews' post surgical follow-up treatment record for the right knee through July 2000 made no mention of left ankle complaints from the claimant. Dr. Matthews' record indicated that he next saw Rothschild on 01/15/02 regarding his right knee; the 2002 records of Dr. Matthews' concerned treatment to the right knee.

Dr. Matthews wrote an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle:

I feel that his left (sic) knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort. This condition is usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point.

In Dr. Matthews' treatment record was a September 12, 2003 letter by the doctor to the claimant's attorney in which Dr. Matthews wrote the following:

As I stated in that meeting I believe that Mr. Rothschild had a condition of his knee, namely osteochondritis dissecans that was exacerbated and/or aggravated by a work injury. This necessitated an arthroscopic evaluation of his knee by myself and an additional orthopedic procedure at a later date. This individual subsequently has sustained permanent partial impairment of his knee which from time to time with activity causes him symptoms which include swelling and pain. These symptoms are aggravated and exacerbated by the chronic and progressive nature of his condition.

As I discussed with you later employment which supposedly caused Mr. Rothschild to bend, stoop, twist and turn on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

At his deposition, Dr. Matthews testified: "So that final visit or that visit as of 10/11/02 was the end of the treatment cycle for

that postoperative period after the second arthroscopy. Then the patient disappeared from my practice until he revisited me on 8/20/03." (Matthews Dp pg. 38) The doctor noted that treatment of Rothschild in 2003, beginning with an August 20, 2003 office visit, was regarding a recent right shoulder injury, the last appointment was on October 30, 2003. Dr. Matthews was asked his opinion of what effect, if any, did subsequent employments in carpentry have on Rothschild's right knee and shoulder. The doctor answered:

"Mr. Rothschild is a laborer. I believe he's a carpenter?

"Which requires stooping, bending, squatting. So his occupation plays a role in the amount of time that he's up on his knee, and the physicalness of his job adds to the stress that his knee sees. So, consequently, those particular type jobs will promote or progress his degenerative change in his knee joint." (Matthews Dp. pg. 44)

"...in general, I think it would be agreed upon, with medical certainty, that laboring type jobs such as his would aggravate and exacerbate and progress his particular condition, whether it be one job or 17 different jobs." (Matthews Dp. pg. 46) (Ruling: Employer/Insurers' objection on grounds of Seven Day Rule is overruled. Matthews Dp. pp. 44 and 45 and 47 )

On cross examination, Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of any objective findings intraoperatively. Dr. Matthews agreed that he had reviewed the surgical note of Dr. Haupt for the surgery performed later in 2000, and that surgical noted reflected a progression of problems in the knee from the June 2000 surgery. The doctor noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) The following testimony then occurred:

Q. Now, Dr. Matthews, in later reports, you used words such as aggravated, exacerbated, and accelerated to describe the connection between Mr. Rothschild's subsequent employments, after Roloff Trucking, to the progression of his disease, the progression of his OCD, and the problems in his knee. Okay. By aggravating, exacerbating, accelerating, do you mean that these particular physical activities caused him to be symptomatic, or do you mean that there was a particular objective change that was directly caused by these particular activities in the knee?

Or both?

A. I would state both.

Q. Could you point at anywhere in your record to places that would show us, okay, where a subsequent employment can be directly related to an objective findings in the knee?

A. Probably not. (Matthews 11/19/04 Dp. pp. 105 and 106)

Agreeing that it was his stated belief that in someone who does moderate activity or works as a laborer the condition would progress faster, Dr. Matthews further stated - "I don't know if it would precipitate it....Progress it, yes". (Matthews 11/19/04 Dp. pg. 112) The doctor agreed that the work as a laborer would cause this progression to come about sooner than expected. It was noted that in a September 17, 2002 report to the claimant's attorney, Dr. Matthews had discussed the work injury of August of 1999 which exacerbated the allegedly preexisting condition the OCD lesion and that he stated that now in September 2002 Rothschild was still dealing with the same condition and the sequela of that diagnosis; Dr. Matthews was asked to explain what he meant by this, and the following testimony occurred:

A. That means that, given this man's preexisting OCD lesion and factoring in his activities had, again, I'll use this word, the totality of his employment and these different traumas that he's had, he's still dealing with the aftermath of having this condition.

Q. Okay. Now, you are referring to the August of 1999 injury, and now you are using the word traumas plural. Did the patient ever tell you that he had more than one direct trauma?.....To the knee.

A. I guess I would use the trauma in the cumulative sense. One specific trauma, the truck injury and fall, I guess that's what I was referring to.

Q. To paraphrase your statement here, this is still one condition. And when you say he's still dealing with the sequela of that original diagnosis or condition - -

A. Yes.

Q. - - are you saying it's an ongoing thing dating back to the first time that condition was either noted or diagnosed?

A. Correct.

Q. Do you have anywhere in your records where Mr. Rothschild ever told you that any of the subsequent employments, specifically any activities, specific activities at those jobs, were causing a further problem to his knee?

A. Not specifically, no, I don't believe.

Q. Is there anywhere in your records during your, I guess, three years or so treatment of this gentleman, that he even told you anything about who - - who he worked for or what he did?

A. No.

Q. Over the three years, did he ever tell you about any of the subsequent employments, again after the August of 1999 injury?

A. I vaguely remember some discussion about him being a trim carpenter, but not employers and/or employment and/or where, no.

Q. Never identified the employers?

A. No. (Matthews 11/19/04 Dp. pp. 113-115)

Dr. Matthews further stated that Rothschild never specifically told him what he did as a trim carpenter for any of these employers.

Dr. Matthews stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about.

Dr. Raymond Cohen, D.O. testified on behalf of the claimant (No. A) after evaluation of Rothschild on the claimant's behalf in January 2004. Dr. Cohen's diagnosis regarding the work-related injury of 8-30-99 included the following:

1. Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear.
2. Left shoulder rotator cuff tendon tear and impingement.
3. Due to a compensatory gait, he has left ankle instability with chronic tendonitis.
4. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition.

Dr. Cohen wrote of his conclusions:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 (sic) to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99......

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

At the level of the left ankle, it is my medical opinion that within a reasonable degree of medical certainty, he has a 30 % permanent partial disability at the level of the left ankle, of which 15 % is due to the injury on or about 8-30-99 and the remaining 15 % is due to the three overuse disorders.

Dr. Cohen agreed, during cross examination, that he found disability on the original August 1999 injury, and then he found one lump sum additional disability for the other three employers, he did not separate out that additional disability as to the

subsequent three employers.

On cross examination, Dr. Cohen stated that he is a neurologist. Dr. Cohen stated that he is not an orthopedic doctor. I did have a year internship in which included four months through orthopedics and the rest of the year assisting with orthopedics; this was in 1980 and 1981, the doctor said. I have not had any orthopedic training since then. I am not a surgeon the doctor said.

During cross examination, Dr. Cohen was queried as to what was Rothschild's job at Roloff Trucking, and Dr. Cohen responded - "I believe he was a carpenter with the other employers, and I thought he was with Roloff; I'm not sure". (Cohen Dp. pg. 17) Dr. Cohen testified about his understanding of Rothschild's duties at Karst: "He stated that he had to nearly constantly carry heavy materials and that he did a significant amount of bending, lifting, and squatting." (Cohen Dp. pg. 22) Explaining why it was important to learn about Rothschild's duties at employments subsequent to Roloff Trucking, Dr. Cohen testified:

"Because, in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." (Cohen Dp. pg. 23)

Dr. Cohen noted Rothschild's duties at B.A.M.: "He stated he had to do a lot of lifting of cabinets and doors and various types of equipment, and, I believe, in one of the depositions, he also went into a little bit more detail about that job. "(Cohen Dp. pg. 25) Dr. Cohen stated that some of Rothschild's job duties at Karst were heavy labor job duties, and at B.A.M. were heavy labor duties. The doctor discussed his understanding of Rothschild's job duties at Integrity Installations: "He stated he worked there as a carpenter and that he did a lot of repetitive work. And, I believe, also, that's described in his last deposition. My understanding, though, was, that was not a heavy labor work, as best I can recall." (Cohen Dp. pg. 26) Dr. Cohen was shown the First Amended Claim for Compensation against Integrity Installations filed by the claimant with the Division on September 13, 2003, and it was noted that the Claim stated the following description of what Rothschild was doing when the injury occurred - "Doing repetitive carpentry work and erection of display cases, attempting to carry heavy objects, including cabinets, carpentry equipment, and display case...". Dr. Cohen stated that he had seen this Claim form; when asked if this was consistent with what Rothschild had told him about his job duties at Integrity Installations, Dr. Cohen answered: "As far as the carrying heavy objects, that is different than what I understood from him when I saw him.". (Cohen Dp. pg. 27) The doctor agreed that assuming the statements in the First Amended Claim were correct, he would consider Rothschild's duties at Integrity Installations heavy labor type work. The doctor was asked if this changed any of his opinions, and Dr. Cohen answered: "I believe the last three employers were a repetitive type trauma, so whether it was heavy or not, all of those can contribute to an overuse disorder, so it really wouldn't change my opinions." (Cohen Dp. pg. 28)

It was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "......I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Dr. Cohen agreed he was aware that after working for Karst Construction, Rothschild went immediately to work for BAM Construction, there was no separation between these two employments. Dr. Cohen agreed that there was a clarification in his June 2004 report that in his opinion he no longer believed that Rothschild was temporarily disabled between December of 2001 and when he went to work for Integrity in August 2002 because during this time period Rothschild was off work due to lack of available work. The doctor further agreed that when reading Rothschild's deposition, he saw where Rothschild had said during this period of December 2001 through when he went to work for Integrity in August 2002 he had been exercising and looking for work, and thus more proof that Rothschild was not temporarily totally disabled during this period. Agreeing that in January of 2004 he made the recommendation for a total knee replacement based on x-rays taken in 2002, Dr. Cohen gave the following testimony in his explanation of this decision:

A. He already had severe joint space narrowing at the time I saw him, and it was clear that any x-rays taken at that time would show advanced osteoarthritis of the knee. It wouldn't show an improvement. It would only show either what he already had before or a deterioration.

Q. And, most likely, a progression of symptomatology; is that correct?

A. Yes.

Q. In fact, when you take a look at the three surgeries that were done on the employee's knee in 2000, the first two by Dr. Matthews and the third by Dr. Haupt, those three reports actually show a significant progression of degenerative problems in his knee, don't they?

A. Yes.

Q. Would there be any reason to believe that that degenerative condition wouldn't continue to progress in that right knee?

A. It would progress.

Q. It would progress pretty much no matter what the employee was doing; is that correct?

A. More likely than not, it would have. (Cohen Dp. pp. 65-66)

Dr. Cohen further stated, though:

"In a repetitive trauma type case or overuse type case to the joint, the overactivity or overuse or stressing of the joint leads to increased deterioration of the joint, and that is included in my thoughts when I assess a part of the body that, from the continued stress or damage to the joint, that it is a progressive condition." (Cohen Dp. pp. 68-69) (Ruling: Claimant's objections are overruled. Cohen Dp. pp 67-68)

Dr. Cohen agreed that Dr. Matthews, in January 2002, noted that x-rays at that time showed good joint space, which actually means that in January 2002 Rothschild wasn't bone on bone. The doctor was queried, wasn't it impossible to determine how much of the continued problems in the claimant's right knee, after the original accident, were the result of a natural progression of degenerative changes, activity, work, recreation, etc? Dr. Cohen answered:

"Well, it is quite possible to define his situation, based on the fact that he did have significant problems after the first injury, but by his history and doing this type of physical work, the condition increased. So talking about him alone, the medical course of this is that it progressed from the type of work that he was doing superimposed upon a bad injury." (Cohen Dp. pg. 70)

Dr. Cohen agreed that the history he received from Rothschild was that his right knee complaints got substantially worse after each of the subsequent employments. It was noted that Dr. Cohen had stated earlier that weight was a factor in degenerative changes in Rothschild's knee; when asked if he had put Rothschild's height and weight in his reports, the doctor answered - "No, I didn't." (Cohen Dp. pg. 72) Dr. Cohen stated that he did not recall Rothschild's weight or height. The doctor agreed that if the records reflected Rothschild was heavy, 260 pounds, that would also contribute to the general deterioration of the right knee.

Dr. Cohen agreed, during cross examination, that with regard to the left shoulder (as also with the right knee) it was his opinion the subsequent employments lumped together aggravated the left shoulder difficulties Rothschild incurred in 1999.

During cross examination by Roloff Trucking, Dr. Cohen stated that he had reviewed all of the medical records he had listed in his reports. The doctor was queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle. Dr. Cohen answered that he did not remember, but further testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." (Cohen Dp. pg. 31) The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. The doctor was queried if his opinion as to disability for the left ankle would be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001. Dr. Cohen answered:

"That really wouldn't change my opinion, because it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk. So if he had a serious injury to his knee from the original injury and was limping or favoring it, that would still go back to the original injury if he did not have an acute injury to the ankle at the time when he fell." (Cohen Dp. pp. 36-37) (Ruling: Claimant's objections are overruled. Cohen Dp. pp. 34-36)

Dr. Cohen was further queried if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, and the doctor responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." (Cohen Dp. pg. 37) Concerning the left ankle, Dr. Cohen stated that it was his understanding Rothschild's problems began several months after the August 1999 fall from the truck but prior to his returning to work in March 2001.

During cross examination, Dr. Cohen agreed that he did not have any treatment records for Rothschild during his employment with Karst from March to September, 2001, only an evaluation by Dr. Berkin performed in May of 2001. Dr. Cohen stated that he was not aware of Rothschild losing any time from work as a result of his knee or shoulder or anything else while working for Karst. Rothschild did not quit working for Karst, Dr. Cohen said, "I recall something in the deposition that they went out of business or closed". (Cohen Dp. pg. 78) The doctor agreed that he was not aware that Rothschild quit working for Karst due to any medical problems or concerns. Dr. Cohen agreed that Rothschild actually went straight to work for B.A.M. after Karst Construction, and after B.A.M. Rothschild was actually available to work all the way up until the Integrity Construction job.

Dr. Cohen stated, during cross examination by Karst, that he did not believe that Rothschild was in need of a total knee replacement in January of 2002. January 2002 was after the Karst employment, the doctor agreed. Dr. Cohen was queried - isn't it correct that the reason for the total knee replacement is the acute injury, the repetitive overuse and the progression of degenerative

problems. "That's correct", Dr. Cohen answered. (Cohen Dp. pg. 81)

On cross examination by BAM Construction, Dr. Cohen agreed that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002. Therefore, the doctor agreed, during this period there was no medical taking Rothschild off work for any reason. Dr. Cohen agreed that there was no medical records indicating that Rothschild could not work during the period subsequent to January of 2002 until Rothschild went to work at Integrity in August of 2002.

On cross examination, Dr. Cohen was queried - wasn't it correct that in his review of the medical records he saw no particular injuries while Rothschild was employed at Karst, BAM or Integrity. "Acute injuries, that's correct", the doctor said. (Cohen Dp. pg. 114) Dr. Cohen agreed that Rothschild's symptoms probably further degenerated since his last date of employment.

Dr. Phillip George, M.D., an orthopedic surgeon who evaluated Rothschild and testified by deposition on behalf of Karst Construction (Karst Exh. No. 7), testified as to his diagnoses:

"My diagnoses were: one, post-traumatic arthrosis, right knee, moderately advance; two, complete rotator cuff tear right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromiocalvicular joint; three, rotator cuff tear of the left shoulder with degenerative arthritic changes at the AVC joint; four, early post-traumatic changes at the AVC joint; four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." (George Dp. pg. 8) (Ruling: Claimant's objection is overruled. George Dp. pg. 8)

Testifying about his conclusions Dr. George included:

"It was my felling that this gentleman had preexisting osteochondritis dissecans of his right knee and that it was aggravated or exacerbated by the fall of August of '99 (in the course of employment with Roloff Trucking).....(and).....The subsequent surgeries were carried out in 2000......

It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10)

Dr. George testified as to his opinions regarding the role of the various subsequent employments after Roloff Trucking:

"The condition of osteochondritis dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employments from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004......

This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." (George Dp. pp. 10-11)

Concerning the left shoulder, Dr. George's stated opinion was:

"I felt that that same injury we just discussed, the fall off the top of the cab of the tractor in '99, caused the rotator cuff tear.

The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not wasn't surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that." (George Dp. pg. 11)

Dr. George gave his opinions in regard to the left ankle after evaluation:

"The diagnosis, which I offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

It was noted that Dr. George had said Rothschild had injured his left ankle in 1999, and the doctor was asked if he was able to find complaints produced in the medical records. Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004,

the doctor said. Dr. George agreed that his opinion was the same in regards to the left ankle as with the right knee in regards to subsequent employment, that the subsequent employment played only a minor contributory role in the problem. Dr. George was asked to compare the problems in Rothschild's left ankle to his right knee:

"The nature of the difficulty in his joints is, in my view, the result of a systemic problem. Osteochondritis dissecans is a bona fide orthopedic diagnosis. It has a chapter in any orthopedic text. And what it says is we don't know why people get this, but it's very classic and well-described. And this gentleman fits the diagnosis to a tee.

There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle.

What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab." (George Dp. pg. 14)

Dr. George agreed that he has stated that in regards to the surfaces of the ankle and the knee, these could get sore with activity. In regards to activities such as trucking and whether or not it contributed to any additional problem, Dr. George testified: "I would suggest that those activities would not alter the natural - so-called natural history of this particular condition, which is one of progressive deterioration with advanced pain." (George Dp. pg. 15) (Ruling: Roloff Trucking objection is overruled. George Dp. pg. 15) Dr. George agreed that in his review of the medical records he did not see any significant alteration with the symptoms.

On cross examination, Dr. George gave further testimony about the condition of osteochondritis dissecans and his reference to the two leading texts for orthopedists:

"If you read that, it says this condition is post-idiopathic, doctor talk for we don't know why. But it then proceeds to say one of the, one of the many possible etiologies might be trauma. What I'm referring to is the kind of trauma that occurs if a 14-year-old kid falls off his bicycle or twists his knee playing soccer, those kinds of thins, or a 21-year-old hits a bridge on his Harley, those kinds of things, we think, can initiate the problem.

It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have." (George Dp. pp. 16-17)

Dr. George gave further testimony:

"Certainly the effects of that (1999 work related traumatic) injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans........" (George Dp. pg. 21) (Ruling: All objections overruled. George Dp. pg. 20)

Dr. George agreed, during cross examination, that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current conditions. (Ruling: Roloff Trucking's objection is overruled. George Dp. pg. 28)

On cross examination, Dr. George stated if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". (George Dp. pg. 31( (Ruling: claimant's objection is overruled. George Dp. pg. 31) It was noted that the doctor described the left ankle as "early post-traumatic arthrosis of the left ankle", and Dr. George explained what he had meant: "That means I expect it to get worse". (George Dp. pg. 32) It was also noted that he had used the term "drastic osteochondritis dissecans", and the doctor was asked if the condition was drastic back in 1999. Dr. George answered: "It was drastic in 2000 when they first started looking in there with an arthroscope? The three operative reports of the two surgeries describe changes which one would have to label drastic, i.e., advanced, long-lasting, severe." (sic) (George Dp. pg. 33) Dr. George gave the following opinion testimony in regards to the claimant's left ankle:

Q. Okay. And my understanding is, from reviewing your report, that the claimant's - when you looked at him it appears, one of the symptoms he did is he had a limp on the left, not the right. So is it a fair statement he was limping from the left ankle, not the right knee?

A. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

Q. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

A. No.

Q. Or the original accident back on August 30, 1999?

A. No.

Q. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

A. That's a fair statement.

Q. In that you say it was substantially caused by the original trauma of 1999 ?

A. That is correct. (George Dp. pp. 33-34) (Note: Ruling: Second Injury Fund and Claimant's objections are sustained. George Dp. pp. 29, 30 and 31 )

Dr. Richard Rende, M.D., who evaluated Rothschild on June 2, 2004 on behalf of Integrity Installation and testified by deposition on behalf of Integrity Installation (Integrity Installation Exh. No. 8), testified as to his impressions: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) The doctor explained what osteochondritis dissecans (OCD) was:

"OCD is a traumatic injury that occurs typically in people anywhere between the ages of 15 to 50 that results in a lesion that forms on the weight bearing surfaces of either the medial or lateral femoral condyle -

"-or in lay terms, the end of the femur bone. It's the part of the femur bone that bears weight. It's etiology is typically that of either idiopathic or trauma.

"Idiopathic means that there are people who have no known reason for the lesion to occur, but approximately 50 percent of these patients have a history of trauma. There's some theories that it could possibly be a vascular insult that is later dislodged by trauma, but regardless, many of them are traumatic in etiology and it basically results in complete loss of bone and cartilage from the end of the femur from one event.

"It's probably the most devastating of the injuries to the knee because in one fell swoop the patient becomes, as we would say, bone against bone." (Rende Dp. pp. 9-10)

Dr. Rende testified as to his additional impressions:

"It was my opinion that the osteoarthritis was directly a result of that particular injury. This was not a repetitive micro-trauma type of injury, and I felt that the gentleman also needed permanent work restrictions, and I went over those in my letter to you." (Rende Dp. pg. 11)

It was noted that Dr. Rende used the term "progressive degenerative osteoarthritis"; the doctor was asked what relationship, if any, did that have to OCD, and the following testimony occurred:

B. Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with exposed bone and no cartilage.

R. Okay.

B. OCD is a disease where it happens and it's done, it's there. It becomes exposed bone from one injury.

R. And does the progressive degenerative osteoarthritis, was that the result of the OCD injury?

B. Yes. The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results.

R. And that's the natural disease type process from this type of injury?

B. Yes. We call that the natural history of the disease.

R. Would his condition then progress like that without regard to his activities?

B. Yes, that's correct. (Rende Dp. pp. 12-13)

Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14) Dr. Rende agreed that he indicated the OCD would have progressed without regard to whatever activities Rothschild was doing. (Ruling: Claimant's objection is overruled. Rende Dp. pg. 14) Agreeing that he felt Rothschild had permanent partial disability to the right knee, Dr. Rende testified: "I felt he had a permanent partial disability of his right leg at the level of his right knee of 30 percent as a result of the osteoarthritis dissecans injury." (Rende Dp. pg. 15) The doctor agreed that this assessment to the right knee was for the overall condition at the time of his evaluation of Rothschild on June 2, 2004. I did not find any disability with

regard to the left ankle, the doctor said.

On cross examination by the claimant, the doctor was asked if his recommended restrictions for the right knee was because he thought it would hurt the knee. "Yes, it would make it worse and it would produce significant symptomatology to him", Dr. Rende answered. (Rende Dp. pg. 18) The doctor was then queried - so any kneeling, squatting climbing, or lifting repetitively over 50 pounds would make the knee worse? Dr. Rende responded: "I'm talking about his symptoms when -- when you come to a physician, we're human beings, we don't want to inflict pain on someone. And that's the reason I said that." (Rende Dp. pg. 18)

Dr. Rende, during cross examination, was shown x-rays in the case, and testified as to what a 9/3/99 x-ray revealed as to whether or not this was a traumatically induced OCD versus a preexisting OCD:

"Well, what this x-ray shows is it shows that the base of the lesion is very smooth and sclerotic and it suggests that there's been some separation of the normal vascular bone from the avascular bone below. This suggests that the OCD lesion was, in fact, present for some time." (Rende Dp. pg. 31)

The doctor agreed that the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999. "There's also a very small osteophyte here, but that is really a minimal degenerative change, so -". (Rende Dp. pp. 31-32) The medial joint space looked normal on the 9/3/99 x-ray, Dr. Rende said. The doctor commented on the differences seen on the next x-ray taken on 2/9/00:

"The difference here is that now the loose fragment has been removed and there appears to be significant narrowing in the medial joint space, at least 30 percent loss of height of the medial joint space, relative to the films that were taken preciously." (Rende Dp. pg. 32)

The next x-ray taken on $8 / 1 / 00$ is essentially the same, Dr. Rende said, "(T)he difference in the two films, the osteophyte that was located in the medial joint space in the prior film, which was two millimeters, is now probably three millimeters." (Rende Dp. pg. 32) Concerning the last x-ray taken on 1/2/01, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." (Rende Dp. pg. 33) Dr. Rende agreed that after viewing the 9/3/99 x-ray, it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33) Dr. Rende was asked - is there any question, after reviewing the x-rays, that after this accident of falling off the truck, Rothschild had a Type III OCD lesion. The doctor answered: "Well let me answer this. There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." (Rende Dp. pg. 36) Dr. Rende agreed that from that point on the condition was going to progress, and that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression throughout the year 2000.

During cross examination, it was noted that Dr. Rende had testified earlier that Rothschild's was not a repetitive microinjury situation; Dr. Rende was asked to explain what he meant by that and the following testimony occurred:

A. Well the question that was brought to me by the letter that I received is could this have anything to do with his subsequent jobs, and my answer was no. This occurred as an injury and the subsequent jobs didn't have anything to do with it.

Q. So subsequently activity - I think you testified to it on direct - can produce some symptoms for Mr. Rothschild, is that correct?

A. Once you've got this you're going to have symptoms and they're not going to go away.

Q. But the underlying progress of this disease got set in stone when Rothschild fell off the truck?

A. It got set in stone when that piece broke loose, became a Type III lesion.

Q. Okay. And nothing really that he did after that could significantly accelerate or aggravate the underlying condition of OCD?

A. It could have, but it didn't in this case, and the reason it didn't is because of his age. (Rende Dp. pp. 37-38)

Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende explained why: "...because they've got bone on bone, and bone on bone is what happens. It's one of the few conditions in the human body where one day you don't have arthritis and the next day you've got bone on bone." (Rende Dp. pg. 39) The doctor was asked these activities that cause Rothschild to be symptomatic, they're not changing the underlying nature of his OCD disease are they? "They are not", Dr. Rende answered. (Rende Dp. pg. 39) It was noted that Dr. Rende had testified earlier that after Rothschild fell off the truck, on a scale of 1 to 10 he was a 10 , he was already as bad as he was going to get; the doctor was asked - with regard to subsequent activities, did they aggravate his pain or do they aggravate his underlying condition? "It aggravates his pain and it puts other parts of his body at risk", Dr. Rende answered. (Rende Dp. pg. 55) Agreeing that he meant other parts of his body outside of his knee; "(H)is knee is already as bad as it's going to get", the doctor further said. (Rende Dp. pg. 55) Dr. Rende added:

"Working for 29 days for this guy or 6 months for that guy didn’t make this guy’s knee suddenly need to be replaced. It

was the lesion that occurred at his age that resulted in bone on bone, with a snap of the fingers." (Rende Dp. pg. 55)

It is found, considering the evidence, that the competent and substantial evidence establishes that the condition in Rothschild's right knee is osteochondritis dessicans (OCD) and progressive degenerative osteoarthritis; the competent and substantial evidence reveals that the claimant had this condition prior to working for Karst Construction.

It is found that there is no competent and substantial evidence establishing that the claimant's performance of his work duties at Karst from approximately the end of March 2001 through September 11, 2001 aggravated this preexisting OCD condition in the claimant's right knee. There is no dispute in the evidence that Rothschild received no treatment during the time of his employment with Karst Construction. Dr. Matthews' treatment records indicate that he did not see the claimant between the time period of July 12, 2000 and January 15, 2002; Dr. Matthews noted seeing a progression in the claimant's right knee condition between the time of the January 2000 surgery and the June 2000 surgery, and between the surgery later performed by Dr. Haupt in 2000; the doctor acknowledged that a comparison of radiographs from January 2002 and September 2002 showed that Rothschild had had a significant progression of the knee condition. When queried during cross examination if he could point at anywhere in his record to places that would show us where a subsequent employment can be directly related to any objective findings in the knee, Dr. Matthews answered - "Probably not." Dr. Rende stated that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression of the right knee condition throughout the year 2000; upon comparing a x-ray taken on $8 / 1 / 00 and the last x-ray taken on 1 / 2 / 01$, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." It was Dr. Rende's stated opinion that the condition in the right knee was not a repetitive micro-injury situation and had nothing to do with Rothschild's jobs subsequent to Roloff Trucking, and further testified - "This occurred as an injury and the subsequent jobs didn't have anything to do with it. This occurred as an injury and the subsequent jobs didn't have anything to do with it." Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende further said that these activities that cause Rothschild to be symptomatic are not changing the underlying nature of his OCD disease; with regard to subsequent activities it aggravates his pain but does not aggravate his underlying condition, "(H)is knee is already as bad as it's going to get". Dr. George specifically stated that Rothschild's further employment after the episode of August of '99 at Roloff Trucking did not play a major role in exacerbating the preexisting problem in the right knee, that any employment subsequent to his work with Roloff Trucking played a minor role in his present right knee condition; Dr. George agreed that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current right knee conditions. Testifying that the condition of osteochondritis dissecans had been preexisting and was ongoing at the time of all employments from Roloff down the road, Dr George further testified: a. "This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since ' 99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself."; b. The nature of the difficulty in Rothschild's joints is the result of a systemic problem and in the right knee it is a diagnosis of osteochondritis dissecans, and it "causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab"; c. Subsequent to the 1999 work related trauma, "(H)is ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans". Dr. Cohen offered the opinion that Rothschild's performance of his work duties at Karst was a type of repetitive or overuse or occupational problem causing the increase in the condition in his right knee. Dr. Cohen, though, admitted that there were no records of treatment during the period of Rothschild's employment at Karst; that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002; he noted that he had only an evaluation by Dr. Berkin. Dr. Berkin performed an evaluation of Rothschild on May 9, 2001, which was during Rothschild's employment at Karst; Dr. Berkin noted that the evaluation was in regards to the August 30, 1999 work related injuries, and also noted that Rothschild was working for Karst at the time of his evaluation. Dr. Berkin wrote in the May 9, 2001 report that Rothschild was continuing to have significant symptoms to his right knee, and that Rothschild was currently working as a trim carpenter but if he continued to have symptoms at his current level of activity, he recommended that Rothschild consider alternative employment that was less physically demanding. Dr. Berkin's May 9, 2001 evaluation report, however, does not state or show evidence of a worsening of the underlying condition in the claimant's right knee at that time; there were no x-rays performed by Dr. Berkin to determine the extent or change in the right knee condition, and Dr. Berkin assessed disability for the August 30, 1999 injury and preexisting disability and made no comment or assessment of an increase in disability due to Rothschild's work activities at Karst. It is found that there is no evidence of progression of the condition in the right knee during the time period of Rothschild's employment with Karst Construction, thus it is not possible to make a finding that the conditions under which the claimant worked at Karst Construction caused an aggravation of the OCD condition in the claimant's right knee.

It is found, considering the evidence, that the competent and substantial evidence establishes that the condition in Rothschild's left ankle is chronic calcific tendonitis/plantar fasciitis/arthritis. There is no dispute in the evidence that during the time of his employment with Karst Construction (end of March 2001 through September 11, 2001), Rothschild received no treatment. The record of Dr. Haupt reflects that earlier in March 2001, on March 20, 2001, Rothschild's main complaint was left ankle discomfort; Dr. Haupt's diagnosis after examination was - "Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury." The claimant testified that he was completely off of work from August of 1999 until March 2001 due to the injuries at Roloff. In March of 2001 Dr. Haupt was gonna release me anyway, so I found a job, Rothschild stated. I asked him to release me, and I went to work for Karst Construction, the claimant said. Dr. Haupt's treatment recommendations on March 20, 2001 were that Rothschild could pursue strengthening exercises on his own and Rothschild was

taught a few exercises, and over-the-counter anti-inflammatories could be used. Dr. Haupt finally wrote in the March 21, 2001 examination report: "There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises." The next reference to the claimant's left ankle in the medical records was by Dr. Matthews in an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle. Dr. Matthews had treated the claimant for his right knee problems from 10/20/99 through July 2000 and made no mention of left ankle complaints from the claimant; Dr. Matthews' again began treating Rothschild on 01/15/02 regarding his right knee, and the 2002 records made no mention of the left ankle until the October 28, 2002 opinion letter; in the October 28, 2002 letter, Dr. Matthews wrote that he felt the right knee injury had aggravated the pre-existing condition of calcific tendonitis of the Achilles tendon and subsequently caused increasing ankle and heel discomfort. Dr. Matthews' explanation was the fact that Rothschild had shifted his weight to the left lower extremity to protect and/or lessen the trauma to the right knee was a significant causative factor adding to the symptoms of the left ankle at that point; the doctor noted that this condition was usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. Dr. Matthews testified during cross examination that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about. Dr. George testified as to his diagnoses after evaluation of Rothschild on June 22, 2004, which included: "four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." This diagnosis of post-traumatic arthrosis, the doctor said, is fancy talk for degenerative arthritis. Dr. George noted that Rothschild had relayed to him that he had injured the ankle when he fell off the top of the truck in August of '99 but the ankle had not been addressed because his knee and shoulder problems were worse. "Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99", Dr. George testified. When queried if he had been able to find complaints of injury to the left ankle in the medical records, Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, Dr. George stated. On cross examination, Dr. George admitted that if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". Dr. George, it is found, changed his opinion on the cause of the diagnosis of arthrosis of the left ankle when he gave the following testimony:

A. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

Q. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

A. No.

Q. Or the original accident back on August 30, 1999?

A. No.

Q. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

A. That's a fair statement.

Q. In that you say it was substantially caused by the original trauma of 1999 ?

A. That is correct.

It is found that Dr. George's admission that the basis of his former opinion - the left ankle complaints and condition was substantially caused by the August 1999 trauma - was vacated by the doctor. Dr. George gave further testimony as to his opinion on the cause of the claimant's left ankle problems: "The nature of the difficulty in his joints is, in my view, the result of a systemic problem"; "There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle."; "What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab.". Dr. George gave the following testimony when expressing his opinion of the role of the various subsequent employments: "This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since ' 99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." Dr. George agreed, during cross examination, that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current conditions. Dr. Cohen's diagnoses after evaluation of Rothschild in January 2004 included: 1. Due to a compensatory gait, he has left ankle instability with chronic tendonitis; and 2. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition. Dr. Cohen testified:

"It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 (sic) to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has

had up to this point was medically necessary and was reasonable."

Dr. Cohen further testified: "....in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." Dr. Cohen agreed, during cross examination, that he found disability on the original August 1999 injury, and then he found one lump sum additional disability for the other three employers, he did not separate out that additional disability as to the subsequent three employers. Dr. Cohen admitted, during cross examination, that there were no records of treatment of any kind during the period of Rothschild's employment at Karst, that there was no indication of any medical treatment from September/October of 2001 until January 2002; he noted that he had only an evaluation by Dr. Berkin. Dr. Berkin's evaluation report of May 9, 2001 indicated that Rothschild was being seen for purposes of rating in regards to the August 30, 1999 work related injury; in the May 9, 2001 report, there was no mention of a left ankle complaint, no diagnosis in regards to the left ankle, and Dr. Berkin made no mention of the left ankle in his assessment of disability. It is found, considering the evidence, that the competent and substantial does not support Dr. Cohen's opinion of a development of or an increase in the conditions in the claimant's left knee as a result of performing his work duties at Karst Construction: a. there are no treatment records during the time of the claimant's employment at Karst Construction, thus no objective evidence of a development or an increase in the conditions in the left knee; Dr. Matthews stated the left knee problems were due to a compensatory gait, but made no specific reference to the claimant's work duties at Karst Construction; and Dr. George specifically opined that none of the claimant's subsequent employments after Roloff Trucking were a substantial factor in the development of the conditions in the claimant's left knee. It is found that the competent and substantial evidence fails to establish a direct causal connection between the claimant's work duties at Karst Construction and the claimant's left knee conditions.

As no occupational diseases have been established as a result of the claimant's employment at Karst Construction, compensation is denied. All remaining issues are therefore moot.

The following exhibits were admitted into evidence in all four cases (except as specifically designated):

No. A: Deposition transcript of Raymond Cohen, D.O. taken on behalf of the claimant on July 14, 2004; with the attached exhibits thereto of Dr. Cohen's reports of 1/15/04 and 6/22/04, the Claim for Compensation, the 5/3/01 report of Shawn Berkin, D.O., the 10/8/02 report of J. W. Morrow, Jr., D.O. as well as the office notes of Dr. Matthews. (Second Injury Fund -- admitted subject to the objections therein)

No. B: Deposition transcript of Thomas D. Matthews, M.D. taken on behalf of the employee on October 1, 2004 with attached exhibits

No. B-1: Deposition transcript of Thomas D. Matthews, M.D. taken on behalf of the employee on November 19, 2004 (continued deposition of Dr. Thomas D. Matthews, M.D.) with attached exhibits

No. C: October 14, 2000 report of James Israel (Ruling: Second Injury Fund's objections on probative value grounds of - lacking foundation, and based on hearsay, and based on some medical records or lack thereof - are overruled.)

No. C-1: Curriculum Vitae of James Israel

No. D: Certified medical records of Fischer Chiropractic Center, certified 9/17/02 (26 pages)

No. D-1: Certified medical records of Fischer Chiropractic Center, certified 10/14/04 (4 pages)

No. E: Certified medical records of HealthSouth Tri-County Surgery, certified 9/30/02 (15 pages)

No. F: 10/13/2000 operative report of HealthSouth Surgery Center of West County concerning the right knee procedure performed by Dr. Herbert Haupt, M.D.

No. G: Certified medical records of the Herman Area District Hospital, certified 10/4/02 (12 pages)

No. G-1: Certified medical records of the Herman Area District Hospital, certified 10/13/04 (6 pages)

No. H: August 4, 2000 MRI of the right knee performed at Missouri Baptist Medical Center

No. H-1: August 4, 2000 left shoulder arthrogram performed at Missouri Baptist Medical Center

No. I: Certified medical records of ProRehab, P.C., certified 11/17/04 (16 pages)

No. J: Certified medical records of St. John's Mercy Hospital - Washington, Missouri, certified October 9, 2003 (3 pages)

No. K: Certified medical records of Washington Chiropractic Clinic, P.C., certified 10/25/02 (36 pages)

No. L: WITHDRAWN

No. M: 10/16/03 letter of Ray Gerritzen demanding back Temporary total disability benefits of \$2,378.88 plus interest (Admitted into evidence in one case, only - Injury Number 99-11262)

No. M-1: WITHDRAWN

No. N: Report of Injury of Roloff Trucking for the 8/30/99 accident (Admitted into evidence in one case, only - Injury Number 99-11262)

No. O: West County Radiological Group invoice for $\ 217.00 for the MRI of the upper extremity performed at St. John's Hospital -

Washington, Missouri on 10/28/99 (Admitted into evidence in one case, only - Injury Number 99-112621) (Employer/Insurer Attorney Mohan: I don't have an objection to the invoice. But because today is my first knowledge of the fact that Attorney Gerritzen intended to try and get a past medical expense that wasn't paid, it's entirely possible that my client also paid this invoice and I don't know that at this time. So I would reserve the right, if in fact I find that out that its been paid or maybe double paid by us and him that I could present evidence of that later.)

No. P: Photo

No. P-1: Photo

No. P-2: Photo

No. P-3: Photo

No. P-4: Photo

Employer/Insurer's Exhibits:

No. 1: Deposition transcript of James England, Jr. Taken on behalf of Roloff Trucking on October 14, 2004, with attached exhibits (Admitted subject to the objections therein)

No. 2: Medical records of Dr. Herbert Haupt, M.D. from August 1, 2000 through completion of treatment, which is March 20, 2001

No. 3: Medical records of Dr. Yadava, D.O. dated between March 14, 2001 and March 28, 2001

No. 4: Radiology report of Radiology Consultants Midwest, dated September 7, 1999

No. 5: Medical records of Dr. David Peeples, dated February 20, 2001

No. 6: WITHDRAWN

No. 7: Deposition transcript of Dr. Phillip George, M.D. taken on behalf of employer, Karst Construction on August 9, 2004

None.

No. 8: Deposition transcript of Dr. Richard Rende, M.D. taken on behalf of Integrity Installations on October 6, 2004

No. 9: Certified employment records from Integrity Installations.

Roman Numeral I: Self-authenticating certificated records from the Missouri Division of Employment Security concerning the claimant, Charles Rothschild, Jr.

No. 1AA: Attorney lien documents and agreement (Admitted into evidence in 99-112621, only)

Charles Gordon Rothschild, Jr., the claimant, testified that he was born on April 29, 1953. I graduated from high school, Washington High School, in 1971, Rothschild said. I entered the United States Air Force in 1971 and was in for three years, or until 1974 when I was honorably discharged, he stated. In the Air Force I did primarily refrigeration and air conditioning, the claimant stated. I used the GI Bill to attend East Central Junior College in Union, Missouri where I took a course in auto mechanics and machinist for just a few months. I then got jobs in air conditioning and refrigeration, Rothschild agreed, and then in 1975 I changed fields and started working in various factories. This did not work out, the claimant said, and in approximately 1977 and 1978 I worked a few months for Shell Oil Company driving trucks from St. Louis to Rolla, Missouri and then drove trucks a few months for Food Service Systems, and then drove trucks for Southern Products Company as well as several other ones such as Chromalloy. I did not do any carpentry work for any of these companies, the claimant said. I was driving mainly 18-wheelers, he said, but I also drove dump trucks and 14-wheelers. Rothschild agreed that he did interchange driving trucks with doing carpentry work, doing one or the other. I did not do refrigeration work after the 1970s, he said.

I first went to work for Roloff in, I believe, it was early 1990, Rothschild testified, and worked approximately nine years for Roloff before the first accident happened. During this time frame for Roloff I just drove a dump truck and whatever came with that, he said.

Prior to August 30, 1999 I had no problems or difficulties referable to my left or right shoulder, my right knee, nor my left ankle, Rothschild said.

On August 30, 1999 I was delivering rock to a construction site in a dump truck for Roloff, Rothschild stated, and as I was starting to leave the dump site after dumping the rock I noticed that one of the tree limbs had broken off in the cab shield and was hanging down over the windshield. I got out and pulled it out and that's when the accident happened, Rothschild said, I slipped and fell off the side of the truck, about 11, 12 feet, and landed best I could, which wasn't very good. Asked to give the details of what happened, the claimant testified: I saw the tree limb; I pulled over to the side of the road to get it out of there, it was in the way or would fall off in traffic. So I pulled it out, and when I pulled it out I climbed up the side of the truck and it was 11, 12 foot up. I jerked it out and it didn't come; I jerked some more and all of a sudden it came and I flew off the side of the truck and landed the best I could on the ground, and I tore up everything. I landed pretty much on my feet the best I could and then rolled, primarily landing I think on the right leg then the left; and my knee immediately, and my left shoulder, was hurting pretty bad, the claimant said. I think I twisted my knee because it was really sore and my left shoulder was too, it must of happened when I rolled on the ground on my left shoulder. I experienced pain immediately in my right knee, left shoulder, and my left ankle and heel area. I then got back in the truck with a little bit of difficulty, he said, and I took the truck back to the shop.

The next day I tried to get up and I was really hurting, the claimant said, my right knee was killing me, it was so swolled up it was starting to turn colors. And my left shoulder, I could not even lift it up, Rothschild said, in fact I had a real trouble getting out of bed, and I knew I wasn't going to be able to work that day. So I called in and told them that I had hurt myself that night, and I had to go see the doctor, or chiropractor, or something. Agreeing that he saw Dr. Al Fischer, Rothschild stated that the boss used this doctor, Roloff used him. Rothschild was asked if Mr. Roloff ever concurred in his going to Dr. Fischer. Well, I told him I was going, Rothschild answered, I don't know if - he didn't disagree with it; I mean, I told him who I was going to see. Mr. Roloff, my boss, didn't tell me yes and didn't tell me no when I was going to Dr. Fischer, but he knew I was going to Dr. Fischer, Rothschild stated.

Dr. Fischer x-rayed and checked my range of motion out on mainly my left shoulder and my right knee 'cause I was really hurting, I was having a real hard time walking, Rothschild said.

Dr. Fischer started making me do these movements and exercises, and I think there was hot packs and cold packs and ultrasound on my left shoulder and I think my right knee too, he said. Then Dr. Fischer referred me to Dr. Thomas D. Matthews about a month later as he couldn't do me any good, Rothschild said. He agreed that October 20, 1999, as indicated by the records, sounded right. Dr. Matthews scheduled me for an MRI and checked my range of motion and everything, and x-rayed, the claimant said, and I don't remember exactly what, but he give me a cortisone shot after he read that MRI report. I can't remember if he was the one that give me injection into my shoulder; I definitely got one in my knee, and they suggested I had loose bodies in my knee; and he scheduled a surgery, first surgery, on my right knee, Rothschild said. He agreed that this first surgery was on January 19, 2000, and then the doctor did a second operation on June 22, 2000. I was still hurting pretty bad and he had give me several injections, Rothschild stated, and I went through therapy and everything trying to get my strength back, and he did another surgery.

From August 30, 1999 up through the second surgery I wasn't doing any work, I was off work, the claimant said, I wasn't able to work because my knee and shoulder were ruined, both of them was just hurting so bad. It helped a little bit what he did, but it was just real bad, Rothschild said, I could hardly walk and I could hardly lift my left arm. I went through therapy at ProRehab, and he said it was a total tear in my rotator cuff so they couldn't believe that I got it working, the claimant said. He agreed that he had physical therapy in this time frame. Rothschild agreed that the workers' comp insurance company for Roloff had a nurse from the insurance company go to Dr. Matthews' office with him, a Gail Hanks (phonetically) from England and Company.

I saw Dr. Matthews until July of 2000, Rothschild agreed, and then they cut me off from Dr. Matthews completely, and Gail Hanks said we were going to another doctor, Dr. Haupt, that she had scheduled me with Dr. Herbert Haupt. With Dr. Haupt I believe I got an arthrogram on my left shoulder, and I can't remember but I think he did the MRI, too on my right knee. I don't know when it was but he told me he I needed surgery on my right knee. Rothschild agreed that Dr. Haupt then performed a third surgery on his right knee. After this surgery compared to the other previous two surgeries by Dr. Matthews, I was horrible, the claimant said, he had cut some tendons and ligaments in there and my knee was just a rainbow, it was so swolled up I couldn't even move; it was all wrapped up in bandages, it was soaked with blood; I was screaming in agony, Rothschild said. This was immediately after the surgery, he said, it was the first time in my life I've ever had morphine, which was for the pain in the whole right leg after surgery. My knee never did get fixed, the claimant said, it felt better for a while because he kept putting cortisone injections in it, and then he got this unloader brace that I've got on right now. The diagnosis the doctor made with reference to my left shoulder was that I had a total tear of the rotator cuff too, Rothschild said. The doctor offered to operate on my left shoulder, but I did not let him, the claimant said, I told him that no surgery would get done on my left shoulder until my right knee was fixed. I told him, you're gonna make a total invalid out of me, which I almost was already, the claimant said. Rothschild was asked if he was asking for surgery on the left shoulder now at this point. It's starting to get bad again, but I don't know if I want it; I guess I do; it needs to be fixed; I can't go on like this, the claimant answered. He agreed that it was part of the future medical treatment he was asking to be awarded, treatment of the left shoulder including surgery if it's deemed proper by a physician.

My right knee now, Rothschild stated, I bare all my weight on it and I just can't do the things I ever wanted to do. I can't work, I can't stand long, I can't lay long, I can't sit long, Rothschild testified, I can't do anything. I have to keep moving positions; I

just cannot stay in the same position; I haven't slept in a bed since this happened, he said. I sleep on the couch every night and I have to throw my leg over the back of the couch to get in a position with pillows; some times I wake up in the middle of the night, it just hurts, the claimant said. Rothschild agreed that he is asking for an award of treatment for the right knee, including surgery on the right knee, if needed.

After the three surgeries on the right knee I have had a total of maybe three or four falls, Rothschild stated. It just gives out; it's just like one minute it's there and the next minute gone, you're on the ground. Agreeing that there was one particular fall at the end of July or first of August of 2003 at home, Rothschild stated that what caused that fall was he was going down the stairs and he had just about made it down the stairs and got down to the last couple, three steps and it just folded up on me. I tried to catch myself, he said, I was half running trying to catch up with my feet and I landed on my right hand, which jammed my shoulder back up, scraped up all the skin off my hand and everything, and I couldn't hardly get off the ground. My right shoulder was like it was hanging there; I couldn't hardly move it away from my body at all, the claimant said. It was my right knee that gave way causing me to fall and injure my right shoulder, Rothschild said. What was different about this fall compared to the other previous falls I had on the right knee was that it's only one that happened when I was going down the stairs, the claimant said. On other previous falls on my right knee I had not injured any other part of my body, he said. As a result of this fall down the stairs my right shoulder is -- it's useless, Rothschild testified, I'm right handed and I can't do anything with it. I can't hardly even lift it up to wash my hair, brush my hair, just to get something out of the cabinets, you know, a glass, or open a door, or pulling a light switch, he said. There has been a diagnosis of a full thickness tear of the rotator cuff in the right shoulder also, the claimant agreed. Rothschild stated that he is asking for an award of treatment of the right shoulder, including surgery. The claimant was asked if the injury to the knee at Roloff in August of 1999 was the cause, as far as he was concerned, for the fall in July, 2003. It is what caused it because my right knee gave out going down the stairs, otherwise it wouldn't have happened, Rothschild answered. He agreed that the right knee was the same knee that was injured in the fall from the truck.

Dr. Haupt did his surgery, and then I was off work the whole time until Dr. Haupt released me back to work in March of 2001, I believe it is. March of 2001 when I went to work for Karst, Rothschild stated, he was gonna release me anyway, so I found a job. The claimant agreed that he was completely off of work from August of 1999 until March 2001, and agreed that this was all due to the injuries at Roloff. With regard to giving further treatment in March of 2001, Rothschild testified, I told Dr. Haupt my knee was still hurting and he sent me to all these other doctors -- Yadava and Peeples -- which it didn't do a thing for me, and then he finally said, "Well, there's nothing more that we can do for you. You just need to go back to work.". So I found a job and I asked him to release me, and I went to work for Karst Construction. Rothschild agreed that he was asking to be awarded interest, 10 percent per annum, on the $\ 2,378.88 from March 28, 2001, the late TTD payment.

Rothschild stated that his brother and a friend of his had both worked for Mr. and Mrs. Karst, and they had been trying to get him to come to work there. I started with Karst on March 30, 2001, I believe, he said, right after Haupt released me. I worked there until late September or early October of 2001, he agreed. When I went to work for Karst my right knee, left shoulder, and left ankle -- well, nothing was really fixed, the claimant said. The left shoulder was probably the best thing out of everything but I had to do all this heavy carrying, Rothschild stated. My left ankle and my right knee were just getting worse and worse the whole time, he said, we had to keep carrying all these heavy doors and equipment. And these fire doors were very heavy, they were solid-core particle board, he stated. My job when I worked for Karst was trim out of St. Louis Housing Authority houses. We had to move the cabinets in and install them, and all the doors were fire doors and we had to load them on trucks, and take them out of the trailer to the houses and carry them in the house, and install them, he said. The doors were so heavy, they were pre-hung with the trim on them, he said, and when you lifted them up the trim would just disintegrate if we didn't lift them up just right. Rothschild agreed that he was doing these things constantly while working at Karst. He was asked what, if any, affect did this have on his right knee, left shoulder, and left ankle. Well, everything I did just kept getting worse, the claimant answered. It was mainly pain in my right knee and my left ankle that was giving me the fits there, he said, I had to take breaks and Joe had the laborers do a lot of the hard lifting and carrying for me and stuff. I worked an 8 -hour day at Karst, the days we worked usually, Rothschild stated. It was a fulltime job but there was days that you didn't work and there was times that there was nothing to do; something didn't come in or something like that, he said. Rothschild agreed that he had to do walking stairs, explaining that with regard to his right knee he would step up with his left foot first when he had to do that. I tried to avoid stairs, the claimant said. My right knee it was definitely worse than anything because it would just be grinding and gritting and popping and completely swollen all the time, he said, and this brace when you sweat - it's supposed to be made for sweating - the more you sweat, and it was very hot out there as it was in the summer time, this brace slipped down on my leg and actually eaten holes, and the bleeding where the pads ate into my leg, Rothschild testified. And when the thing slips down it's putting pressure on the wrong spots and it gets lots worse, the claimant stated. He stated that he wore a brace on his right knee then that was given to him by Dr. Haupt. I made complaints to Joe Karst and P. J., his wife, about the brace rubbing and showed it to them, Rothschild said, they saw it many times. They had the laborers do a lot of the hard lifting and carrying, stocking the rooms with doors and things like that because I couldn't do it, the claimant said. Joe Karst worked with me getting these houses done, Rothschild stated, Joe would hold something up for me; he wasn't really a carpenter or anything, but he would help me do different things like carry something in the room. Rothschild agreed that Joe was there and had on several times told him to sit down and take a break, or something like. He saw I was hurting, Rothschild said.

Rothschild was shown Claimant's Exhibits P- 1, 2, 3, and 4 and identified them as pictures of the knee surgery by Dr. Haupt a few days afterwards. These pictures were taken in October of 2000, the claimant said, a friend of mine took the pictures. These pictures correctly portray the way my knee looked at that time after I pulled the bandages off, he said.

My work at Karst ended because Karst had some pretty bad financial troubles, Rothschild said, they actually ended up losing everything and went out of business.

When I stopped working for Karst I then went to work for BAM Construction Company. I worked to BAM Construction approximately from October 1, 2001 to about December 30, 2001, he said. At BAM Construction Company I strictly worked on the Lenox Hotel, Downtown St. Louis and trimmed quite a few of the hotel rooms out. I was a finish carpenter for BAM Construction, he said. My work entailed my physically doing such things as hanging of doors, the vanities, doing baseboard, stocking the rooms with the trim. They had one elevator, which we mostly used, but if you couldn't get a elevator a lot of times you had to use the stairs carrying your tools, and sometimes you had to go lug a trim from a different floor, he stated. We were lifting the doors that were all stacked in the room usually one wall, Rothschild said, and you had to move them into the correct rooms and openings. And then you had to get the baseboard up there, set up your saws and move the baseboard, and just everything to do with trimming that room out for a finish, so it's ready for the painter, he said. I was lifting and carrying tools, doors, big baseboards, and stocking the rooms, Rothschild said. It was a wide baseboard, the claimant said, about 9 or 10 inches wide and sometimes 16 to 20 -foot long. I usually did not carry the baseboards with someone else, he stated, sometimes if you needed help you could get one of the other guys, but they had their responsibilities. At BAM I worked from 6:00 a.m. to 2:00 or 2:30 p.m., or 7:00 a.m. until 3:00 p.m., Rothschild said, and pretty well five days a week. He agreed that at that time he was making $\ 30.00 an hour. At BAM I had to do more stairs than while working for Karst because I couldn't get a elevator most of the time, Rothschild said.

Rothschild agreed that he worked at BAM for approximately three months in the end of 2001. He was asked what affect, if any, did working there have on any part of his body. Well, you had to put the baseboard in, which required bending down, and the climbing the stairs and everything; just everything got worse, Rothschild answered. My knee got more swollen, the claimant stated, it was always hot in there and I was always sweating, and my brace would fell down and get in the wrong location and eat my leg up, and in the wrong location it put the pressure on the wrong point. I didn't have that much trouble with my left shoulder, Rothschild said, I could use my right shoulder to pretty well take the load. Rothschild agreed that this was before he had the rotator cuff tear on the right shoulder. I never could lift the left shoulder right all the way then, Rothschild said, I didn't have the strength in it after that accident, but I got most of it back through the therapy that I took. It never got back to the way it was before I fell off the truck at Roloff, the claimant said. He was asked if working at BAM aggravated or made the left shoulder worse. It really didn't, the claimant answered, it didn't make it any worse. The left ankle it definitely did make worse because -- well, my right knee was hurting so bad I had to bare all the weight on my left, Rothschild stated.

The job with BAM ended when the Lenox Hotel renovation ended, which would have been the end of December, Rothschild agreed. I did not work anywhere from the end of December, 2001 till August of 2002, the claimant said. During those roughly seven months I just did exercises at home and I tried to find some jobs, Rothschild said, but when you're in the union you get fined pretty heavy if you go somewhere else and work. So I put my name in the carpenters hall and it was 500 carpenters out, so they couldn't do anything about it, so I just had to wait and drew unemployment until they called me back, he said. Rothschild agreed that he felt he was able to work at that time. He was asked why did he tell unemployment that he could work. I was supposed to look for work and I was looking for work, he answered, I called different places up that I could do some jobs at the house or anything like that, I tried calling different carpenters up.

The claimant agreed that in August 2002 he went to work for Integrity Installations. He stated that he worked for Integrity 29 actual working days but it was over approximately a three-month period, it wasn't just one month because it went on through August through September. My job at Integrity was we put together these Estee Lauder display cases, and there was makeup and display cases for jewelry and everything you see in Lord \& Taylor, Rothschild said, they are those big displays that are real heavy, like at Frontenac and Tiffany's. Lord \& Taylor was the job site and Estee Lauder was the display case, he explained. We had to unload the semis of all these display cases that were already built in Florida and shipped up here in a semi and bring them into the buildings and set them up, he said. The display cases were gigantic and very, very heavy, some of these items were like a ton a piece, they was all particle board and glass, Rothschild said, and it was four of us that would pretty well empty the truck out and set up these things. He agreed that he did both carpentry work and erection of the display cases here. Working for Integrity mainly affected my knee and ankle, the claimant stated, this brace -- we were sweating so bad in there, it was really hot out and this brace kept eating into my leg, and my knee was all swollen up, and then trying to keep the weight off my right leg I put it on my left and my left ankle was just swolled up. You couldn't even see the ankle bone; it was really hurting, Rothschild said.

The claimant was asked what difference, if any, was there in his right knee and left ankle between the time that he was off work from January 2002 until August of 2002, compared to when he was working for Integrity for the 29 days in August and September 2002. Well, my knee never was right or my ankle, Rothschild answered, but it definitely got worse when I went back to work because I had put all this weight on it, you know, up steps and what have you.

Agreeing that he actually quit work at Integrity, Rothschild explained that Kirby Moreland, the job steward, knew he was having trouble. I'd sit down once in a while with him, Rothschild stated. I told Moreland my knee was in bad shape and I think I showed it to him, the claimant said, I think I even showed him the pictures of it. Moreland saw me working, Rothschild said, he was present all the time when I was working. I told Moreland - I can't even stand up anymore, Rothschild stated, I told him I had to go to home and had to go to the doctor. He knew I'd been having trouble with it, real bad several days before that, and I told him I

would stay there as long as I could, the claimant stated. Agreeing that he told Moreland that he could not work anymore, Rothschild stated that he told Moreland - I have to leave. I couldn't work anymore because my knee and ankle were hurting so bad, the claimant said, I couldn't even stand. I didn't know if I was gonna make it back to my truck, and I told Moreland that, Rothschild said. At the end when I was working there I could not go up and down steps regularly, he said. At the time I quit I could not lift anything heavy, I could not squat at all because my knee was so swollen and sore. I have not worked at all since that last day at Integrity in September of 2002, Rothschild said. I have not been able to work since then because my knee is shot, my left ankle is just about shot, and both of my shoulders are total rotator cuff tears, the claimant stated, and I just can't do any of the things that I do and work. My job requires me to squat down, and climb, and lift; and there's just no way I can do it, he said.

Rothschild agreed that he worked as long as he could at Integrity. I told Kirby that I couldn't even stand another minute; a few days later he called me back and said he needed me, and I told him, Kirby, I don't know if I can, if I'd be any help to you at all; I said, "I'm really hurting.". Kirby then said he just needed me for a little bit, I was the only one he could trust to do this, and I came back in and I helped him, and I helped him as long as I could, Rothschild testified. Then I told him I told him I couldn't stay any longer, and he said - That's okay, go home. Rothschild agreed that this was after the last day he had left; it was several days afterwards he had quit. I don't know long I worked when I went back after I had quit, five hours maybe just that one day, he said. Rothschild agreed that that was it, he hasn't been able to work since. He agreed that Kirby was there with him on his day of working five hours. Rothschild agreed that his normal work time was eight hours.

Rothschild explained his physical problems. My right shoulder is all but useless, he said, lifting anything, just as much as trying to brush my hair or wash my head or reaching up in a cabinet; it's just no weight whatsoever can I put on it. If it's down low I can carry; if it's anywhere lifting it up I can't, I can't get it up there. I have to move the right shoulder just right, he said, 'cause even to get it back around sometimes I have to take my elbow and grab it like this (demonstrating) to even get it up to the back of my head; I also can use the wall if I'm close to the wall sometimes. And it comes out of the socket and sometimes I have to move it back around to get it back and you feel it pop back in. The claimant demonstrated the limitation of motion in the right shoulder. Rothschild agreed that he uses his left hand to push the right arm up sometimes because he can't lift the right shoulder by itself. The left shoulder is just kind of sore all the time and it's weak, Rothschild said, but I just limit what I do, lifting stuff up above my head or whatever. Like putting these books on the shelves, if I move it just the right way I could put them up there; but I get to that one point where that pain is, I guess it's where that tear is in there and its never been fixed. Rothschild agreed that this has been true for the left shoulder since falling off the truck in 1999 at Roloff. I can reach the back of my neck with the fingers of my left hand, the claimant stated, it right to the point where it hurts, but I can reach it. The left ankle, Rothschild testified, it's like it's always swollen; I bare weight on it all the time because I cannot lock my right knee. My right knee has never locked since the accident and it's swollen right now, and I just bare all the weight on the left ankle all the time when I'm standing, he said. If I step on a rock or something, it will throw my ankle out, the claimant stated, and agreed that he has difficulty walking on uneven surfaces. I try to avoid them, he said. I get no warning when my right knee gives out, Rothschild testified, that's why I try not to put all the weight on it and use my left. I do not wear the brace around the house because the doctor told me not to, and the more you wear it the more it rubs and it just it gets sore, the claimant stated. If I got to do something, anything at all, when I'm out then I wear the brace, he said. Rothschild agreed that he had worn the brace to the hearing. You can see through the pants, a big old bulky thing, he said. It's light but it's big bulky, he testified, it's a unloader brace, it's supposed to put pressure where it's bone on bone and bring that away to the other side where there's a little cartilage left. One side has cartilage and the other side don't, the claimant said, and when it rubs bone on bone that's when it gets a real bad pain. That one spot when you bend it, there's a spot right there, Rothschild said, it's like a creeky door hinge, one spot it squeaks and the other it don't. You can tell right now when it hits the bone; that's when the thing gives out; it's just a pain like knives going in there; it just drops out from under you and you don't have a warning of it or anything. You can try to avoid the position but if it happens it's too late, he said.

The claimant was asked to discuss how his life is different now than before August 30, 1999. My whole life has been ruined, Rothschild said. I can't work; I can't do any things that I want to do; I have to watch everything I do, he said. I'm in debt up to my neck, and I can't do anything, the claimant stated, I'm pretty well 90 percent useless. What I do on a daily basis, Rothschild testified, is I cook, do my bills, and try to do a couple exercises. The claimant (hesitantly) testified that he gets food stamps to get food. I can't set there all the time, he said, so I try to walk or I even use the stairs to try to get up and down them, but usually I try to use my left foot first to get up the step, and that's how I get up and down the steps pretty well. He was asked if he could drive a truck as a business man, and the claimant answered - No. It's all I could do to drive down here to the hearing. He agreed driving a truck was what he did before when he was a carpenter. I can't drive a truck because I can't sit in that position and it requires you to use a clutch, and I can't move around in the truck, he explained. I cannot work as a carpenter now, Rothschild stated, I give it my best shot and I'm worse now than I ever was. All the combination of everything that's wrong with me, there's nobody that'd hire me, he said.

Rothschild was asked if he was asking for more surgery on his right knee if deemed proper by an orthopedic surgeon. I don't want this knee replacement that they got, I want to try to do something else; that's what I was hoping for, they would come up with something better than the knee replacement; I'm scared to death of the knee replacement because nobody I know has got any good results out of it. The claimant agreed, though, that he is asking for an award of further medical treatment on his right knee.

Rothschild stated that he is able to go to the store, and that he has to drive his pickup truck. It's just a few miles and I make it. I use my right leg on the accelerator as long as I can, he said, in short trips like that it's not too bad. But when I drive down here

I have to throw it offer the hump; by the time I get here it was an hour and 15 minutes, and it just gives out on -- it just goes numb, and it starts hurting, the claimant said, so I use my left foot on the accelerator and the brake. I use the brace when I shop, Rothschild stated, and I use the cart to lean on when I go through the mall. If I have to lift up and get something off a high shelf I just get somebody to grab something off the top shelf or whatever it is for me; if there's nobody there to do it for me I just got to do it, he said.

I can't do it because my shoulders are shot, he said, I just can't -- lifting it up there is one thing but trying to lift anything, if any weight of anything, I don't care if it's five pounds, I just can't even get it up there; there's no way I can do it.

Rothschild was queried, the days he worked at these other places after Roloff how did that factor into his right knee and his left ankle and his left shoulder, did working at those place make these worse (it was noted that the right shoulder was the fall at home). Agreeing that there was not a difference in any of them, they all just add a little more each time, Rothschild further stated Everything just added up until I'm where I'm at right now. I can't do any of my activities; I can't run, I can't play ball anymore; I can't work. I can do a very little fishing, the claimant said, but I've hardly done any of that. The only hunting I can do is dear hunting because I can set there on my four wheeler, which I cut my grass with, or I got a deer stand that's right there in my yard and I get my deer right there, Rothschild testified. And I don't have to do any lifting, he said, I've got the wenches set up for the animals and everything else, and the trailer to pull them up there. There's nothing hard to it, I can sit down when I want, the claimant stated, that's the only kind of hunting I can do. As far as walking through the brush, that's out, Rothschild said, I cannot do any of that stuff anymore; quail hunting, none of it. I use to do all of these things before this happened.

On cross examination by Roloff Trucking, Rothschild agreed that he had his third and last right knee surgery on October 13, 2000, and that was performed by Dr. Haupt. Then Dr. Haupt treated me after that for follow up, and sent me to Dr. Yadava, a physiatrist, and they both treated me; in March 2001; both of these doctors released me, saying I was at maximum medical improvement and released me to full, unrestricted duty, the claimant agreed. Rothschild agreed that he told Dr. Haupt he had the Karst Construction job lined up and wanted to be released on February 27, 2001. The claimant agreed that prior to this he had been placed on light duty by various treating physicians, including Dr. Matthews and Dr. Haupt, but since Roloff Trucking had no light duty work available he received workers' compensation temporary total disability benefits from Roloff Trucking. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fireproof doors and other heavy items. I told Dr. Cohen when he examined me, the claimant agreed, that I nearly constantly had to carry heavy materials and had to do a significant amount of bending, lifting, and squatting. I worked from the end of March 2001 until October 2001 for Karst when Karst went out of business, Rothschild said.. He agreed he did not lose his job at Karst because of a physical inability to work, and he did not quit working for Karst because of the injuries he suffered in the August, 1999 accident at Roloff. I would have continued working for Karst Construction doing carpentry work, including heavy lifting, had work been available from Karst, Rothschild agreed, further stating - "I had to".

During cross examination by Roloff Trucking, Rothschild was queried - isn't it true that his left shoulder didn't get worse while working for Karst. It did not get worse while I was working for Karst Construction, Rothschild responded, but it did get worse. The claimant was asked - wasn't it true that he did not work fewer hours while at Karst due to pain or problems he was having from the injuries received in the August, 1999 accident at Roloff. Well, we had shorter hours, Rothschild responded, but admitted that he didn't take fewer because he was physically unable to. I had to work, the claimant said. Rothschild agreed that he had testified earlier that after Karst Construction got into financial trouble he was the last worker out the door. Rothschild stated that his right knee did not give way while he worked for Karst Construction during those seven to nine months he was at work. In that job I did go up and down stairs, but not too much, he admitted, and I was carrying heavy objects, including heavy fire doors. Rothschild agreed that after working for Karst Construction he went to work for BAM, and that was full time, full duty at the Lenox Hotel where he was trimming hotel rooms and carrying heavy objects. He agreed that he was also going up and down stairs and stocking rooms with materials, and that whole time his right knee did not give way and cause him any injuries. It was the same type of work I did for Karst Construction; Rothschild agreed, and I earned $\ 30.00 an hour, which was approximately triple what I was earning as a truck driver for Roloff Trucking. I worked for BAM for about three months until the job ended and I was laid off, the claimant agreed, I didn't leave BAM Construction due to the problems I was having with my injuries from the August 1999 accident at Roloff. To the best of my ability I was able to do all the work that BAM gave me, Rothschild said. I was in great pain when I was doing it but I had to do it, he said. He agreed that he would have continued working for BAM if he had not been laid off. Rothschild agreed that he had testified that after the BAM job and he was laid off, he continued to look for work but construction was slow in the St. Louis area at that time. If somebody had offered me a job doing carpentry I would have taken the job, Rothschild stated. He agreed that in July, 2002 he went to work for Integrity Installations doing carpentry type of work, and this job involved heavy lifting and doing work with heavy equipment, and with heavy display cases. Rothschild stated that he would say he was involved in lifting items with other people that weighed all the way up to a ton

I testified previously, Rothschild agreed during cross examination by Roloff, that during the time I was looking for work, my left shoulder stayed about the same as it had been since I had completed physical therapy. He agreed that this was after Roloff but before the Karst job that he completed physical therapy. Rothschild stated that his left shoulder stayed about the same after this through all three other jobs, including Karst, BAM and Integrity. But I carried it with my right, Rothschild added.

During cross examination by Roloff, Rothschild agreed that he worked for Integrity from some time in August 2002 until September 24, 2002, and that he earned $\ 30.00 an hour, triple what he made for Roloff. Rothschild agreed that when he left employment with Integrity on September 24, 2002 he again applied for unemployment compensation and received the full 17 weeks of unemployment compensation at that point.

During cross examination by Roloff, Rothschild agreed that he filed his Claim for Compensation against Karst Construction and Integrity Installations on October 17, 2002, and alleged a permanent total disability with a date of onset of September 1, 2001 against Karst and September 1, 2002 against Integrity; the claimant agreed that he filed a Claim for Compensation against BAM alleging on September 17, 2003 he was permanently and totally disabled with a date of onset of October 1, 2001 and December 1, 2001. Concerning his fall at home, Rothschild stated that he fell in July 2003, then treated with a chiropractor first, and then went to Herman Area Hospital on or about August 6, 2003. The claimant was asked if he had said anything to the nurses or the doctors at Herman Area Hospital about the fall being caused by his right knee giving away. Yes, I did, Rothschild answered. He was asked if he had ever told any of his employers at Karst, BAM, or Integrity that he had any work restrictions. No, I didn't, he stated. I did ask them to limit my work somewhat, he said. If they had aides and/or helpers, and they would let me sit down a little bit; all that kind of stuff to help me out and carry stuff, Rothschild explained, they helped me, they worked with me. The claimant agreed that he has continued to deer hunt since his last employment, and that he has to climb rungs similar to a ladder to get to his deer stand. Rothschild was asked how much he weighs now. Two hundred and eighty (280) pounds, he answered. He stated that he does not take much medication now since the Vioxx trouble; he agreed that as of March of 2005 he didn't take much medication. When I did take some medication it was over-the-counter Tylenol and some Advil; that's all I had left, Rothschild stated. I don't like to take any drugs, the claimant stated.

Rothschild stated, during cross examination by Roloff, that he was saying that he hurt his left ankle in the original incident when he fell off the truck. I told Dr. Fischer right away, the claimant stated, but the pain in my left shoulder and my right knee was much worse than the pain in my left ankle. Rothschild stated that he was complaining to Dr. Haupt when he was treating him as well as to Dr. Matthews when he was treating him early on after the accident. Rothschild agreed that he recalled seeing Dr. Shawn Berkin on May 3, 2001 by his own attorney, and at that time he was employed by Karst Construction. I believe I recall seeing Dr. Morrow for a rating evaluation on my own behalf on October 8, 2002, and at that time I had just left the employment of Integrity Installations, the claimant stated. When queried if he had told Dr. Morrow at that time that he hadn't worked since he last saw Dr. Matthews on January 15, 2002, Rothschild responded - I don't remember. The doctor could have got it mixed up; I wouldn't have lied to him, Rothschild said.

Rothschild stated, during cross examination by Roloff, that he does his own yard and lawn work, and he lives on about three and a half acres. The claimant was asked - since your accident at home where you fell down the stairs in July of 2003, have you ever injured yourself in any way as a result of your right knee giving out? No, Rothschild answered, I fell three times and I didn't hurt myself any of those times. He stated that his right knee was giving out a lot while he was being treated by Dr. Matthews and Dr. Haupt, and he told Dr. Haupt and Dr. Matthews several times about it. I don't know why their records don't mention this or my ankle either, Rothschild said, I don't know why they did that. I never told Dr. Matthews at the first visit on October 20, 1999 that I had had off and on problems in the past with my right knee, Rothschild said, and agreed that within the last year or two he sent a note or something of that effect to Dr. Matthews requesting that he change something in his record about that.

Rothschild stated that he recalled when his first deposition was taken on January 16, 2001, and during cross examination by Roloff he stated that he fell 11, 12 feet, whatever high the truck was, and answered when asked how did he land -- "Landed mostly on my feet and rolled.". The claimant stated that he recalled he was then asked - "And you injured which body parts in this accident?", and he answered - "Left shoulder, right knee." It was noted that Rothschild did not mention anything about his left ankle at that deposition. It wasn't as bad as the rest of it at the time, Rothschild said. It was noted that in his second deposition taken on March 16, 2004 Rothschild was again queried - "Now it's my understanding you were injured working for Roloff Trucking; is that right?" and "Okay, what areas of your body did you injure?", and he answered "My right knee and my left shoulder.". That is correct, Rothschild said. The claimant admitted that he probably didn't mention his ankle then either when that second deposition was taken more than three years later.

On cross examination by Karst Construction, Rothschild agreed that after his Roloff injury, he ended up having three surgeries on his right knee all in 2000. He agreed that he was also diagnosed with rotator cuff tear in his left shoulder and was also having problems with his left ankle. Rothschild agreed that this was all prior to ever going to work for Karst Construction. During the time period after the last surgery by Dr. Haupt up to the time that I went to work for Karst Construction, my knee was giving me a lot of problems, the claimant agreed. Agreeing that he had some disagreement with Dr. Haupt as to whether he should be discontinued from medical treatment, Rothschild testified I told him my knee wasn't right, and my left ankle and my left shoulder. I said, none of it's right and you're going to send me back to work; I said we have got to do something here, the claimant stated. During this period my right knee was hurting all the time and it had actually given away on a couple of occasions, he agreed. At that time I think it was two times that I had actually fallen because of this give away situation, he said. Rothschild agreed that he had indicated that during this time, hills and stairs and anything that would cause him to have to put extra weight on the right knee would give him extra difficulties. He agreed that he was walking with a limp during that period of time because he couldn't straighten his knee out all the way, and he couldn't kneel at all on his right knee. During this period of time, between Dr. Haupt's

surgery and going to work for Karst, it hurt to raise my left shoulder up, and he was also having difficulty getting his left shoulder and his left hand even away from his body because of the problems in his left shoulder. With therapy we got it working again, Rothschild added. It was noted that at some point his ankle began hurting and was swelling, and Rothschild stated that this was before his employment with Karst Construction.

I went to work for Karst Construction in the Spring of 2001, and this was right after Dr. Haupt released me from care, Rothschild agreed during cross examination by Karst Construction. He agreed that when he went to work for Karst Construction he was a union carpenter making union scale. I was on my way for qualifying for Union benefits, Rothschild said. During the time I worked for Karst Construction, Spring of 2001 through September 11, 2001, I worked full time getting substantial hours but I wasn't getting a full 40 hours, Rothschild agreed, and I was actually working as a trim carpenter which is different than a standard carpenter. I guess you could consider this as a lighter job, but not really, the claimant said. He agreed that the Karsts became friends of his during the period of his employment and they worked with him to make sure that he didn't get too sore. I didn't miss any time from work because of my left shoulder, right knee, or left ankle when I was working at Karst, he said, they worked with me. They let me work at my own pace, he agreed, they got me laborers when that was necessary, things like that. I couldn't have done the job without it, Rothschild said. He agreed that while working at Karst he didn't have any specific accidents that caused damage to those body parts, and that he never received any medical treatment of any kind for these body parts while he was working for Karst. Rothschild agreed that when Dr. Haupt released him he didn't begin to get additional medical care until he went back to Dr. Matthews some time in 2002.

Agreeing, during cross examination by Karst Construction, that when the Karst's business started folding up he was pretty much the last guy out the door, Rothschild further stated - When work ran out there I even did work in their own home. He agreed that he didn't leave for any medical reason. After working for Karst I went to work for BAM Construction, and that was pretty quick, Rothschild testified, Joe Karst was friends with the owner of BAM Construction, Brian Murphy, and he got me in there on a high recommendation. He agreed that he worked for BAM for a period of up through December of 2001. I left BAM for nonmedical reasons as well, Rothschild agreed, explaining - I was laid off. At that point I applied for and obtained unemployment compensation and began looking for work in the carpentry field, he agreed. The claimant agreed that he was also looking for work in other fields. Rothschild was queried - wasn't it not until after the employment with Integrity that he started saying to himself, you know, I just can't do this work any more? It was right there on the job, Rothschild answered, I stood up as long as I could, and did the job as long as I could, until my leg -- it just gave out totally; I could not do it.

During cross examination by Karst Construction, Rothschild agreed that his first Claim for Compensation against Karst Construction was filed in October of 2002, and this was actually over a year after he'd quit working for Karst.

On cross examination by BAM Construction, Rothschild was asked if he remember when he started working for Bam after leaving Karst. No, I don't, he answered. I believe October of 2001 was pretty close, the claimant said. At BAM I was a finish carpenter at the Lenox Hotel. It was noted that he had worked as a trim carpenter at Karst, and Rothschild said that that was the same thing as a finish carpenter. He agreed that he worked at the Lenox Hotel as a trim carpenter/finish carpenter for BAM until the job was finished and then he was laid off on about December 17, 2001. I didn't have any specific accidents on the job while I was working at BAM, the claimant said. He agreed that he filed for unemployment when he was laid off at BAM, and then he was looking for work. Rothschild agreed that his claim against BAM was filed in October of 2003, not quite two years after he'd worked for BAM. I did not miss any time from work during the time I worked at BAM as a result of anything, Rothschild said. Agreeing that he did have discussions with someone at BAM, Rothschild said it was not about being hurt on the job. It was with Dave Iden; he knew it, because he let me off with a couple things here and there and stuff like that; getting somebody to bring the trim up or help me get it, Rothschild stated.

On cross examination by Integrity Installations, Rothschild was asked further about the condition of his knee after Dr. Haupt's treatment but before you went to work for Karst. Rothschild agreed that he had stated his knee was ruined; he agreed that this was at the time frame before Karst. Rothschild agreed that he had said before he went back to Karst nothing was ever fixed, and he was talking about the knee, the ankle and the shoulder. The claimant was asked how would he describe his pain level in his knee back between October of 2000 and March of 2001 before he went to Karst. Well, I was wearing this brace and they gave me Vioxx and I took all that; I needed to do the job and stuff and I was hurting but I was able to get through it, he answered. Until the knee brace started slipping down when I started sweating, he said. I had pain in my knee all the time before working at Karst, the claimant said, and problems with stairs and with lifting with the shoulder.

During cross examination by Integrity Installations, Rothschild agreed that Dr. Matthews talked to him about a knee replacement as early as possibly 2000. He agreed that Dr. Matthews advised him that the more he might use his knee the quicker it was going to wear out. In May of 2001 I recall seeing Dr. Berkin at the request of my attorney, Rothschild agreed, and Dr. Berkin gave me restrictions on my activities of no kneeling, stooping, or climbing, and restricted my lifting, standing and sitting. Rothschild agreed that he continued to do some of those activities, though. I had to; I had to work, he explained. I really didn't pay much attention to Dr. Berkin's recommendations because he really wasn't my doctor, the claimant stated. He agreed that Dr. Berkin had also specifically said he should consider alternative employment, but he kept doing the same work.

Rothschild agreed, during cross examination by Integrity Installations, that he had testified about how his activities at Karst,

BAM and Integrity made his knee and ankle a little worse, more painful and swollen. At the various jobs everybody pretty well helped me because they knew I couldn't do the job, the claimant said. Rothschild admitted, though, that he would agree that at the time he was working for Karst, BAM and Integrity and doing those specific job activities and developed more pain and swelling, he knew in his own mind at that time that those job activities were making his knee and ankle a little worse.

The claimant agreed, during cross examination by Integrity Installations, that he worked for Integrity Installation for 29 days during the period of from July 22nd through September $24^{\text {th }}$. I never had any slip, trip or falls on the job while I worked for Integrity, Rothschild said. He agreed that at Integrity he worked under a gentleman named Kirby Moreland who was the steward for the job and the one he reported to. I wore a knee breeze from day one on the Integrity job, the claimant agreed, only a couple days that I didn't because it rubbed a hole in my leg. When asked if he had been experiencing some additional problems with his knee shortly before he started with Integrity, Rothschild responded - I've always had trouble with it ever since --. I told Kirby I had these previous problems with the knee, Rothschild said, but I don't know when I told him; it was not before I started or on the first day. Rothschild state that he would not agree that his job at Integrity was a little lighter than the jobs he did for Karst and BAM. I'd say it was heavier; those pieces was lots heavier, he testified. I might have told Dr. Cohen that the job at Integrity was not as heavy labor as the jobs at Karst and BAM, Rothschild admitted. The claimant agreed that he had stated the job at Integrity is when he unloaded display cases used for jewelry and make-up counters and set them up in West County Mall and Frontenac; he agreed that he had earlier described this work for Integrity as very heavy work. He stated that he and three other people would have to lift up the partially assembled cases and then put them on dollies and then roll them in on planks to the ground and then inside; he stated that at Lord \& Taylor he would have somebody putting the display cases on to the dollies and rolling them right in from the truck into the facility. Rothschild agreed that to get the display case on to the dolly somebody could tilt up one side and slide the dolly under, so he wasn't actually having to lift the entire display case at any time, he would simply angle one side and slide in the dollies. He agreed that there were four of them generally on that job - a couple of people on the truck and a couple of people rolling the stuff in; the claimant agreed that he was mostly rolling the things in with Mr. Moreland. Rothschild was queried - wasn't it correct that he had stated he had quit the job voluntarily at Integrity because the pain got too bad and he just couldn't do the work anymore? I didn't actually quit on the spot, no; I had to get out of there and get some help from a doctor, and that's when I went back to see -- made an appointment with Dr. Matthews immediately, Rothschild responded. He admitted that he walked off the job because he couldn't do it anymore. I had to get some help and I went to the doctor, the claimant said. I did go back to the job after this, Rothschild stated, and agreed this was when Kirby brought him back. Rothschild stated when he couldn't stand it any longer and went to the doctor, he thought he went to see Dr. Matthews on September 6, 2002, which would have been within the period of employment at Integrity. I made an appointment as soon as I could, Rothschild stated, I couldn't get in to see the doctor, he was all, backed up, so I called him at his house and he boosted me up the line to get me in. It was noted that work records showed that Rothschild worked two more days, two 10-hour days, the week after Dr. Matthews took him off work; it was noted that Dr. Matthews' record indicated that on 9/6/02 says he was taking Rothschild off work as of that day. I don't remember, the claimant responded, but further stated that he had no reason to dispute the work records. Rothschild admitted that if it's true that Dr. Matthews took him off work per his records as of 9/6/02, he didn't follow the doctor's recommendation and kept working. I needed the money, Rothschild further stated. The claimant was queried - isn't it true that you did continue working at Integrity until the job completion and you were laid off with everyone else? No, Rothschild answered, everybody was there and I was the only one that left. The day I walked off the job I only worked a few hours after that a few days later, he said, that's all I remember there, I don't remember working two days after I saw Dr. Matthews. Rothschild stated that it sounded correct that the day he saw Dr. Matthews after walking off the job was on September 6, 2002. It was noted that in that record of Dr. Matthews it said the doctor was taking Rothschild off work until seen again, the claimant responded - The doctor did take me off work but I can't recall what date it was. I did go back to the job site for Integrity after that visit with Dr. Matthews on September 6, 2002 for a few hours, Rothschild stated. He agreed that when he had testified earlier that the pain got so bad at Integrity he had to quit work and go to the doctor and couldn't go back to work, that was not entirely true, he did go back to Integrity. It was noted that the Integrity work records actually showed Rothschild worked two additional 10-hour work days in between, and, also, Rothschild was queried - isn't it accurate then that he did keep working at Integrity until completion of the job. Rothschild answered that he did not recall working for Integrity those additional days. That was the end of the job when Kirby called me back because he had to set these glass cases, the claimant further stated, so, yes, it was the end of the job. He agreed that the last day he went back there he did work up until the end of the job. Rothschild agreed that he had testified earlier that Kirby had no one else to help him and that's why he was brought back Kirby was the last one on the job site doing punch-out work, Rothschild agreed. Explaining what "punch out" is, the claimant testified - Chips, and nicks, and knobs, and things that were missing off the cabinets; just little bitty things like that; replace glass that didn't come in or was broken; replacing parts that were broken, or mismeasured, or whatever have you. When Kirby brought me back that last day at the end of the job, the best I remember, we had to pull these jewelry display cases apart by heating them up and pulling the glass out that was actually melted into place; and it took two people because we had to use these special suction cups to lift them out of their locations. It was noted that the time records showed Rothschild worked eight hours that day. Kirby said he would pay me for eight hours, I did not work eight hours that day like the time records show, the claimant responded, I worked five hours. Rothschild agreed that after he last worked for Integrity with Kirby Moreland on that final day he filed for and received unemployment again. The claimant was queried - you were out actively looking for employment. I was trying to do something, he responded, I had no money coming in, I had to have some money coming in. Rothschild agreed that he had to report to the State that he was ready and able to work. He agreed that, as indicated in the unemployment records from the State, the last day he worked for Integrity was September 24, 2002.

During cross examination by Integrity Installations, Rothschild stated that he told Dr. Matthews about the increased problems he says he was experiencing while working for Karst, BAM and Integrity. He agreed that he remembered seeing Dr. Morrow on October 8, 2002, which was right after the job with Integrity ended on 9/24/02; Rothschild stated that he told Dr. Morrow about how the jobs with Karst, BAM and Integrity were making his knee and ankle much worse. It was noted that Dr. Morrow's report indicated Rothschild told the doctor that he didn't work anywhere after January 2002 when he saw Dr. Matthews, and Rothschild was asked if he had told Dr. Morrow this. These dates I just -- they get all mixed up after a while; I can't remember what dates are what; I don't remember, the claimant answered. September 24, 2002 was the last time I remember working, the claimant further stated.

On cross examination by the Second Injury Fund, Rothschild agreed that he was a member of Carpenters 1839, and stated that P.J. Karst wrote the letter for him. I was in it earlier in 1987, but I had to be reinstated and had to have a letter for someone to hire me, the claimant stated. He agreed that before he worked for Roloff he had some union jobs as a carpenter. I left carpentry work for Roloff because of a lack of work, the claimant said, wintertime there's always lack of work, most everybody gets laid off.

Rothschild stated, on cross examination by the Second Injury Fund, that during the time he worked at Karst, BAM and Integrity his knee brace bothered him, and that he told Mike Farris at ProRehab about the problems with the brace slipping, and that the Karsts knew it. Everybody that pretty well knew me knew about it, he said. I did not seek medical help for it or rehab help for it while I was at Karst, BAM or Integrity, the claimant said. The claimant was queried - wasn't it correct that he didn't seek any medical treatment at all until he went to see Dr. Matthews in September, 2002? I tried to one time and they told me that I wouldn't be covered because this was a workers' comp accident, Rothschild answered. They wouldn't do anything for me related to this knee and shoulder, because it was a preexisting condition; I believe this was the Carpenters Union, he stated. When I went to see Dr. Matthews my carpenters insurance paid for that and I paid the co-pay, he said. The Union sends you a letter telling you when you're reinstated in the carpenters' hall, when you have enough hours to get your insurance, Rothschild explained. He agreed that this was before he started at Integrity, and had to be while he was working for Karst.

During cross examination by the Second Injury Fund, Rothschild stated that when he left the job at Integrity for good there were no more jobs to be had at Integrity, the job was over, and he applied for unemployment and went out and looked for other jobs. I had to put my name on the list at the carpenters hall so I could be recalled, Rothschild testified, I was one of the 500 carpenters that was laid off at the time and work was really bad at that time. He was queried - isn't it correct that he never got recalled because it was wintertime? Basically; yes, he answered. The drought of work lasted until they called me back to work when Integrity called the carpenters hall, Rothschild stated. After I left Integrity I applied for unemployment again but I did not put my name at carpenters hall, Rothschild said. Explaining where he looked for work, the claimant testified - "I looked for work in different -- something I could do at home." Something where I could maybe send letters out or post cards or something; that, most of it all entailed the computer and I don't know anything about it; different things on that order, the claimant stated. He was asked if he had sought any jobs through the Missouri Division of Employment or Vocational Rehab. I went down there to see a Veterans Administration guy one time, Rothschild answered, and he took me over to a computer and told me that he couldn't help me operate the computer, he could set there and tell me what to do, and I never touched a computer in my life, so I had no idea; I didn't go back. Rothschild stated that he lives in a town named Berger which is 20 -some miles west of Washington, Missouri. Agreeing that he still has access to transportation, Rothschild stated that he has a full-size Dodge pickup. I think I looked around the Washington area and my town for employment a little bit but there was nobody gonna hire me in my condition, he stated, I couldn't do anything that I knew how to do. I was looking for other things that I could do, other than the carpentry, truck driving, which I definitely couldn't do anymore, he said. Rothschild was asked if he had actually filled out any applications for work anywhere. No, I didn't, he answered.

Rothschild stated, during cross examination by the Second Injury Fund, that other than chiropractor adjustment, before the August 30, 1999 injury at Roloff trucking he hadn't really been to a doctor since 1993. Agreeing that had characterized himself as a very active person, Rothschild stated that in addition to working full time driving the dump truck his other activities were fishing, hunting, running with his dog, swimming and skiing, and doing gardening. Rothschild stated that for the past eight years he has been living on a little better than three aches of land. I bought a piece of property and it was just like abandoned junk and I fixed it all up, the claimant testified, it was a real mess, there was only one little building there that was left when I bought it and I redid it. After the August 30, 1999 injury I worked on my property and my house very little, Rothschild stated, it's maintenance free basically, I don't have to do much to it.

Rothschild was asked to describe what a typical day would be for him now, during cross examination by the Second Injury Fund. A typical day is just doing bills, phone calls, taking walks, doing a little exercise, laundry, dishes, he answered. Rothschild stated that he lives alone, and he doesn't have to do much to clean his house but vacuum or dust. I do my own grocery shopping, he stated, I have to drive 22-25 miles into town. Explaining how far he walks when he takes walks, Rothschild testified - My land attaches to the State gravel pit and they have got most of the gravel taken off of it and I walk up there; it's nice and flat; I don't go very far, it's probably 400-500 yards long. Rothschild agreed that he still does deer hunting once a year. When asked if he rode a four wheeler out into the woods, Rothschild responded that he doesn't have the go in the woods very far, he live right there. It's what I cut my grass with and everything, he further stated. Rothschild noted that his brother is with the Sheriff's Department and sometimes he goes over there, and goes to his house. He's got a bunch of dogs and we let the dogs swim; we barbecue and stuff like that, the claimant said. Rothschild was asked if he had made any inquiries at the Sheriff's Department whether he could work

as a dispatcher or in any capacity where he wouldn't have to do a lot of walking around or heavy lifting. No, the claimant answered, I don't know if anybody would hire me because I can't sit there, you just have to sit there for hours.

During cross examination by the Second Injury Fund, Rothschild was queried - wasn't it correct that he had stated earlier that he never called in sick when he worked the jobs at Karst, and BAM. I was sick one time at the end of the job at BAM, I had a really bad sinus infection; that was the only time, the claimant responded. He was queried - wasn't it correct that it would not be unusual for a carpenter to have assistance in carrying doors that he had described weighed about 200 pounds, and in holding the prehung doors? No, Rothschild answered, there was only one carpenter usually on the job and that was your job to put it in there or hang the door yourself. The laborers weren't supposed to touch it or anything, but they knew I couldn't do it by myself and they all went out of their way to help me, he said.

On redirect examination, Rothschild stated that sometimes there were other carpenters that worked with him at Karst. When asked if he was able to do the same work they did, Rothschild stated that they would help him. Everybody would help me, Rothschild said, they let me off on a bunch of stuff because I couldn't do the job. He stated that at all three places - Karst, and Integrity, and BAM - he was given different work than the other carpenters who had no injury, and these employers lighten his work because of his injuries. Rothschild stated that his right knee and his ankle got worse when working at all three of these places. I did things at work to keep it from being in pain, like stepping up with my left leg first, the claimant stated, whatever I could do. Explaining why he went to work in that condition, Rothschild testified that he had to work, he had to have money. I had just bought my new home and everything and I was gonna lose everything, he stated, whatever it took to get money coming in. He agreed that that was the reason he applied twice for unemployment compensation; he agreed that he did this on the telephone. Testifying more about how the other workers helped him out, Rothschild stated that the laborers was not supposed to touch anything for the carpenters, he could be fined for it or thrown off the job. But they risked it and they helped me hang the doors, carry the trim in; they weren't supposed to use their vehicles to bring the material to me and they brought but a lot of it to me and helped me whenever they could; Joe Karst himself, the owner, came in and helped me on the job; they all went out of their way to help me otherwise I could not have done the job, Rothschild stated.

Rothschild testified, during redirect examination, about how his deer hunting changed after August 30, 1999 when he had the work related accident at Roloff. Well, if it got tough hunting I used to go stalk the deer and find them, but after that I just had to set there and wait for them to come to me, he answered.

Concerning Dr. Matthews and what he put in his records and whether or not he had put in his records Rothschild's complaints of his knee gave way, Rothschild stated he made many specific complaints to Dr. Matthews that the doctor didn't actually write down. When I saw Dr. Haupt I told him my knee was giving way and the doctor responded that I had had two previous surgeries on my knee, the claimant agreed. I was never seen by any doctor, hospital, chiropractor, nurse practitioner or anybody for complaints to my right knee prior to August 30, 1999, Rothschild said, and further stated that he did not know of one medical record that showed anything wrong with his right knee prior to August 30, 1999. I know of no medical record showing anything wrong with my left shoulder or my left ankle prior to August 30, 1999, the claimant said. I never had torn cartilage in my right shoulder prior to the fall at home in 2003, Rothschild said. The claimant stated that he consented to three different surgeries on his right knee because he couldn't even walk at all. I was really in pain, he said, I thought that was gonna help me.

During redirect examination, Rothschild was asked if he thought he could graduate from high school today. I've seen what kids are doing now days and it's nothing what I went through and I don't think I could; it's a lot worse than when I went to school, Rothschild responded. Rothschild was asked if he knew of any alternative employment he could do, and he answered -. No, I don't.

When I went to worked for Karst the condition of my left shoulder was that it was sore and it wasn't right, Rothschild testified during redirect examination, I couldn't do the heavy lifting so I carried it with my right shoulder because my right shoulder was real good. (Ruling: Roloff Trucking's objection to Claimant's offer of proof is sustained.) The claimant was asked when did his left ankle first start bothering him. The day I had the accident at Roloff, he answered, and after the accident it just got swollen and stiffer and sorer until I couldn't hardly put my heel on the ground. He agreed that the left ankle got progressively worse. Discussing the problems he was having in the left ankle, Rothschild testified - I had to stand on it all the time because I couldn't lock my right knee, and putting the weight on it all the time, carrying all that weight, my ankle was all swolled up, you couldn't even see my ankle bone; and it was hard to bend it, to walk on a grade of any kind.

During redirect examination, Rothschild stated that he noticed his right knee getting worse while working for Karst Construction from all the use - the heavy load-bearing, the carrying stairs and doors. He was asked to explain how it was worse, and Rothschild responded - I think I got injections all the way through this whole thing until a few months ago; it was all swollen up and it was grinding and popping; it was like gravel inside of my knee all the time. And I never could lock it; keeping your knee bent all the time you know what that is, your muscle, the claimant stated. Stating that the pain was worse in his right knee when he was working at Karst, Rothschild explained that it got sharper.

During redirect examination, Rothschild stated I never told anybody at Karst, BAM or Integrity that I had problems with my left shoulder, right knee or my left ankle, and nobody asked. Joe Karst knew but I don't know what date they knew it, he said.

Rothschild stated that he had trouble getting up and down steps all the time. I had to stand up and bend over while putting on baseboard, which is not the way a finish carpenter puts on baseboard, everybody kneels, the claimant said, and I couldn't squat. Rothschild stated that he did tell Kirby -- "I cannot work anymore"? I told him this in September of 2002, he said. This was the same day when I could hardly get to my truck and make an appointment to see Dr. Matthews, Rothschild said.

The claimant was asked, during redirect examination, what if anything was different today between his typical day than what it was prior to August 30, 1999. My whole life has been a wreck, I can't do anything that I used to do, Rothschild answered, I haven't worked for a couple years now and I just can't do anything, I'm just like helpless. With the walks I take, before the fall at Roloff I would run, now I gotta hobble and watch where I step, and go short; I could just take off and do whatever I wanted, I wouldn't stay on the trial I'd go through the woods, Rothschild testified. With doing the dishes at home, it's not the same, he stated, I can't even stand there long. I have to go sit back down, and cooking supper's the same way, he said, 'cause my leg just gives out on me. Explaining why he slept on the sofa after August 30, 1999, Rothschild that it's the only place he can get his leg in a position to be out of pain; he agreed that this was true before any of the three surgeries on the knee. The three surgeries on my knee did not enable me to go back and sleep in my bed, he said.

During redirect examination, Rothschild was asked if he could work now, and he answered - No. I can't do any of the things that I know how to do; I can't stand there, I can't lift, reach, he explained. There's nobody that would hire me in the condition I'm in to do any job, the claimant stated. Rothschild stated that he would love to have his knee made better, and also both of his shoulders ad his left ankle. He was asked if he would like to go back to work. I would love to, he responded, I wish this never happened. Rothschild stated he would go to a doctor for treatment if it was awarded. I'd like to get this knee evaluated, that's my worst thing, the claimant stated, my shoulder is useless but I need to walk before I need to do anything with my shoulder.

On further cross examination by Karst Construction, Rothschild agreed that when he was seeing Dr. Haupt prior to going to work for Karst, he and the doctor did have a conversation about a knee replacement. Dr. Haupt said in the future you may need a knee replacement is what he told me, Rothschild further stated. The claimant agreed that he had testified that during his employment with Karst he was getting help from laborers and from Joe Karst in order to do his job, and this was happening basically from the beginning of his employment all the way through. Rothschild agreed that he had indicated his knee had gotten progressively worse working for Karst, and that this was also true for his employments with BAM and Integrity. Agreeing that he had testified earlier his left shoulder really did not get worse in his employments with Karst, BAM and Integrity, Rothschild explained that this was because he was using his right arm instead for putting a load up. I was using my right arm then to carry the load of my left; my right arm was my good arm, the claimant stated. Rothschild agreed that the complaints he listed in regards to his left ankle, all those symptoms occurred prior to his being released by Dr. Haupt to go back to work.

On further cross examination by the Second Injury Fund, Rothschild was asked if his left shoulder had improved since he had stopped working. No, it hasn't, Rothschild answered, now I've got trouble sleeping on it; even if I lay on that side it's real sore. With regards to my heel, Rothschild stated, it's swollen all the time. They said they couldn't do anything for it, he further stated. The heel has stayed pretty well the same since I'm not working because I keep the weight off of it now lots more; it's more swollen, it's still swollen, he said. My right knee has gotten worse; it has progressed since I left Integrity, Rothschild indicated. They call it degenerative, he said.

Kirby L. Moreland testified on behalf of Integrity Installation Incorporated. Moreland stated that he had received a subpoena by mail, but the he had relayed that he was going to come voluntarily anyway. I am not currently employed, Moreland said, I was last employed about three years ago for Integrity. I am retired now, he stated, it was indirectly a voluntary requirement. Moreland explained that the union hall took in southern part of Illinois which added 11,000 men to our already 11,000, so it flooded our market. I have learned from one individual that insurance companies are wanting people in their 40's and younger for employment, to insure the contractors, and the ones over 40 are just plain out; so I just decided to take early requirement and go with it.

Moreland agreed that he worked for Integrity in 2002. I was the steward on jobs at both West County Mall and Plaza Frontenac Plaza, he said, and after layoff I stayed at Tiffany job and did all the punch-out work for Integrity. Moreland agreed that he knows Charles Rothschild. I met him when we started working together on the Lord Taylor (sic) store, he said, we had Clinique, and the men's fragrance, and Lancome cosmetic display units. I met him because I was the steward, Moreland stated. Explaining what they were doing through Integrity at these two mall jobs, Moreland stated that we started out with unloading the trucks, with usually Wally, a superintendent, and Michael, the foreman, doing most of the loading of the dollies. We would transport the display cases on the dollies back into where we had to install them, and then we would sort them out and set them in their close proximities, Moreland stated, and once we did that then we would come back and assemble - put glass shelves in, caulking, sometimes a piece of trim here and there, whatever had to be done. The part of the delivery process I was primarily involved in was wheeling the dollies that were loaded with the display cases into the dock, Moreland stated. Charlie and I usually were teamed up together, and usually one would be behind and one in front.

It took several trips back and forth rolling the items into the building because you got a whole semi load, Moreland stated. To get the cases off the dollies, one of us would have to lift on the end and get the other one out, and the other one pulled the dolly. Then Wally and Michael would come in and they would assign us whatever projects they wanted us to work on such as putting on the shelves or whatever. It didn't require anymore lifting at that point, Moreland said, we did have to put the units in their exact

location, and then from that point on is when they were divided up, just about singled out. They were taller, about six and a half to seven feet tall and about three and a half feet square, roughly, and all those units had to go together to make a long display. I never weighed these individual units but I would guess when we would lift on them it would be somewhere around a hundred fifty to 200 pounds. I tried to lift one alone once and I could do it, Moreland said, but after that I said, we're going to get two guys on them and lift them.

Later after, when we was on the next job, I learned that he had a problem with his leg and I made sure to do all the lifting I could and he'd just pull the dollies, Moreland stated. There was very little to some lifting on the job; we might have to move the cabinet in place then work on it for a while before we could do the next one, he said. Explaining what was involved when you would butt up the cases or get them in place, Moreland stated we would shove them and butt them against each other until we was on the line, and then it was just a matter of fastening the units with bolts. We would put the shelves in later, he said. The only lifting in this part of the job was just lifting the glass shelves which weigh 15 pounds maybe, Moreland said.

When I and Charlie Rothschild first started working together for Integrity I was not aware of any type of problem with his knee, shoulder, or ankle, Moreland said. We were on the Tiffany job, that last one together, about one-fourth to one-third of the way through the job that I was made aware that Rothschild had a problem with his knee, ankle, or shoulder, Moreland stated. I was putting the mark on the floor so we could snap a line, and when Rothschild did he kept the one leg straight and the other one was bent. I thought, well, what in the world is going on with him? About a day or two later he came to me and said: "Can I talk to you in confidence?" And I said: "Sure. What's the problem?" And he said: "I've got problems with my right knee." And he said: "I just can't do some of that bending." I told him: "Well, I have told you I can keep this in confidence." But I said: "What I want you to do is go to the foreman and tell him so's that he'll know what to do and he can assign you things that will work for you." It was about a day or two later Charlie came back and says, "I took your advice and I told him." Moreland agreed that it was just the right knee that Rothschild told him about. He was asked if Rothschild had ever told him anything about his left shoulder or left ankle, and Moreland answered - Not that I can remember, he might have later on but definitely not at that time. The day that Rothschild told me about the problems with his knee he just mentioned being on it made it hurt, just his own body weight; that's what I remember, Moreland said. Agreeing that there was a point toward the end of the job that required them to do some base work around the display cases, Moreland that when they first started Charlie came over and said he couldn't get down there to do the work, it hurt too much to do that. I told him to go tell Perry, the foreman, and Perry would put him own something else. Charlie Rothschild was on the job with Integrity, to the best of my recollection, roughly five weeks, Moreland said.

When asked if Rothschild worked to the end of the second job at Tiffany, Moreland answered - What I remember at the end of the job we were getting down to where we had probably a half a day for all four of us. Either that or possibly one day earl, he said, I don't really remember real close on that. Anyway, Charlie wanted to go home early seeing's how it was only going to be part of a day, Moreland added, and that did let the rest of us get around six hours. It was gonna be the last day on the project for everybody but myself, Moreland said, I stayed on to do the punch-out work. Moreland stated that he remember a time before this where Rothschild left telling him something about going to the doctor. He said he had a doctor's appointment and needed to take off work, so he did, Moreland said. He was asked if Rothschild had told him that he was leaving the job site that day because his knee was too painful from standing that he couldn't do it anymore and he had to go to the doctor. I know his seeing the doctor was because of the leg, but he didn't put it that way; "I got a doctor's appointment to attend to the leg" was the idea, Moreland stated. Rothschild came back to work for Integrity after that day that he left to go to the doctor's appointment, he said. Agreeing that Rothschild had come back and assisted him when he was doing the punch out, Moreland stated that there was one day that he needed a second hand to lift a counter top off. When I figured out I was going to need a hand, I was looking for his phone number and the phone rang and when I answered it, it was Charlie, so I didn't have to finish finding the number, Moreland said. I asked him how he was doing and Rothschild said he wasn't feeling chipper because he had no way to earn money, no food and so on, Moreland stated, and I told him, what I was gonna call you for, we have got about a half a day of work, that would get some grocery money for you. I told him that it was changing a glass top, and if he thought he could do it then he should decide what he wanted to do, Moreland said. Rothschild said he could do that, and he came in. It was probably around 10:00 before we was allowed to get to it; I did all the preliminaries I could, I told Charlie - "Sit down. Take it easy.". When we got the top done I added, probably paid him for six hours or eight hours, Moreland said. We only had about four hours of work, and he needed money for groceries so I added some in then I turned around and worked that many hours that I added so's I did not charge the company, Moreland said. Explaining what he had Rothschild assist him with, Moreland stated it was a counter top and he had Charlie on one end and he I took the other end, and before they did any lifting he worked it lose and had Rothschild shove a shim in it so's that we'd have a place to get our fingers under without any problem and made it twice as easy to lift. Once we got it shimmed up then I said - Let's just try lifting and load ourselves and see what it's gonna do, and if you feel anything at all you let me know, we'll stop. Moreland stated that he meant Rothschild's knee or anywhere. So anyway, we got it ready; I had Charlie stand right by the end of the panel that we were lifting and I placed the horses that we had to lay it on after we got it off. When we got it up where we could move away I walked around with it, Moreland said, and all Charlie had to do was stand there braced against the top and lift and set it there. When we got done I asked him how did he feel, and Rothschild answered - Didn't hurt a bit; I used my other leg. Then we changed the glass top and we set it back on the same way, he said. It took about 45 seconds to lift it the first time and about the same amount setting it back on, Moreland said. Rothschild did not do any other physical labor that day, Moreland said, I just told him to take it easy 'cause all we needed was that.

Moreland was asked if at any time on the job with Integrity did he see Rothschild do anything to his leg or knee that looked

like he suffered an injury. There was no injury on the job whatsoever from any of the trades, anyone, anywhere, Moreland answered. He was asked if Rothschild had ever told him during this time at all that the job activities at Integrity were making his knee condition worse. Not like that he didn't, Moreland answered, he told me a time or two that it was hurting, but I didn't consider that to be related to the job because it was already damaged. He was asked if Rothschild had ever told him it was those job duties at Integrity that were causing him the problem that he was having with his knee. No, Moreland answered.

On cross examination by the claimant, it was noted that Rothschild had testified that he had Moreland - "I've got to leave, I can't work anymore." I don't remember that being said like that at all, Moreland responded. He was asked if he knew Rothschild wore a brace on his right knee. After he told me in confidence what was going on then I knew it was a brace on there, Moreland answered. He agreed that as the steward, if anyone complained to him about anything he had a duty to report it to the company, and that would've jeopardized Rothschild's job. That was Rothschild's concern, Moreland responded, that he would be laid off if it was told. Moreland agreed that if Rothschild had told him of problems he was having with his left shoulder, his right knee and his left ankle, he would have had to report Rothschild and jeopardize Rothschild's job. Later on I found out that Rothschild had fallen off a truck in 1999 and had fallen 12 feet to the ground, Moreland said. It was close to the end of the job that Charlie relay this to me, Moreland said, but there was nothing associated with it being a real problem at that time. Agreeing that Rothschild just happened to tell him about falling off a truck, Moreland further stated that Rothschild said that he was trying to get settlement on it and that they were fighting him on it. Moreland stated that Rothschild never told him that he had a torn rotator cuff in his left shoulder. He was asked if he had known whether Rothschild was using his right shoulder and right arm much more than he was using his left shoulder or left arm when Rothschild was working with him. When we were working together I didn't notice any abnormality at all, Moreland answered. No, I didn't notice anything that would have indicated a torn rotator cuff of the left shoulder, or would have indicated a sprained ankle, Moreland said. He was asked if it was a surprise to learn that Rothschild had had those maladies. I don't know that he does have them, Moreland responded.

Moreland stated, during cross examination by the claimant, that he had retired from work about three years earlier and has been living on, his retirement from his carpenter's pension. He stated that his education is 12th grade, high school.

During cross examination by the claimant, Moreland stated that it did not seem strange to him when Charlie told him he could not get down to do the baseboard. He'd already told me that earlier that he had trouble with his leg, Moreland testified, and that's when I told him, go and see Perry, the foreman, and have him put you on something you can do.

On cross examination by Roloff trucking, Moreland agreed that he also worked on a day-to-day basis with Rothschild on the first job which was the Lord \& Taylor West County Mall job. Moreland stated that it was correct that on that first job he had no indication in any way that Rothschild had any physical ailments or physical problems based on how he did his work. No problems that was visible that I could tell anything about, Moreland testified. Moreland agreed Rothschild lifted things, and he stooped, squatted and things like that on the job. We worked eight hours a day, sometimes ten, Moreland stated. He was asked how many days of those eight to ten hours days did he work with Rothschild on the West County Mall Lord \& Taylor job. That was sporadic, Moreland answered, sometimes might be together a day or two and might be pulled off for a few hours, then we might be back again. That's hard to answer and be very accurate, he added. At the Tiffany job at Frontenac, the second job we worked together everyday, Moreland testified. But at Lord \& Taylor we were divided up several times and would go a single operation on things; probably 15-20 percent at the very most we would be teamed up, Moreland stated. The job at the West County Mall, Lord \& Taylor, took about 14 days, he said. In those 14 days whenever I worked with Rothschild he never appeared to me to have any kind of physical ailments at all, Moreland said. As far as I was concerned, Moreland agreed, Rothschild was doing the job as well physically as I or the other men were on the job. He was queried - wasn't it correct that it wasn't until near the end of the second job at Tiffany's at Frontenac that he first learned, by looking at Rothschild's leg being straight, that Rothschild had a physical problem? Not at the end; it was about one-fourth to one-third of the way through the job, Moreland testified, that's the first incident that I had any kind of question. And then he verified the next day that he had a sore leg out of it, Moreland stated.

On cross examination by Karst Construction, Moreland agreed that once he did find out that Rothschild had a problem with his knee he helped Rothschild out whenever possible. Moreland agreed that he did the bulk of the lifting after that and things like that. He could lift some if he wanted to or decided to, Moreland added. I explained to Rothschild that he was not to do anything that would cause him any pain or discomfort at all, Moreland testified, I said, if it's gonna, you say so and we won't do it.

On redirect examination by Integrity, Moreland said that when Rothschild first came to him and told him he had a knee problem and had a brace, Rothschild told him in confidence. In confidence meant not tell anyone else, Moreland stated. I didn't relate it to him trying to hide, it was basically he was afraid of getting laid off if someone else found out, Moreland said. He was asked - Rothschild hadn't told anybody, to your knowledge, that he had this problem? I was the first one as far as I know, Moreland responded.

On further cross examination by the claimant, Moreland agreed that he had stated earlier that when he saw Rothschild in the beginning he hadn't noticed any problems. Moreland was queried - but you did notice problems at Tiffany's in Plaza Frontenac. Not until the day I saw him bend over funny to mark the floor, Moreland responded. Rothschild had been working probably a month and a half to two months, he answered. Moreland was asked - you're saying in the beginning you didn't notice anything but after Rothschild had been working a month or two you noticed without him telling you anything that he was having difficulty with

his right knee? Because it was a very unprofessional stance and I wondered about it, and I still didn't know at that time, Moreland answered, and it was the next day or two when he came and voluntarily informed me that he did have a problem.

Medical records in evidence included the following:

Medical records of Fischer Chiropractic Center (No. D) reflected treatment of Rothschild during the period of 8/31/99 through 11/23/99. The record began with a Workmen's Compensation Questionnaire in which Rothschild wrote of an 8/30/99 work injury at Roloff Trucking - "Climbed upon truck to pull off limb broken off in tarp shield as I was jerking on limb it suddenly broke free \& lost my balance \& jumped clear to avoid falling landed wrong \& twisted knee" . Rothschild wrote that his problems were "Lifting \& left arm \& right knee is pain full when bending or trying to stand straight". Rothschild indicated on the questionnaire that he reported the accident to "Ralph/Ramona/Dr. Fischer"; he wrote that he was referred to Dr. Fischer by "Dan Scego". In the second form in the record, in the Symptoms/History section, it was noted that this injury had occurred on 8/30/99, and Rothschild had noticed symptoms the morning of 8/31/99. September 7, 1999 x-ray reports in the record noted the following findings: a. left shoulder - no acute fracture, no acute pathology; and b. right knee - osteophyte from the superior pole of the patella, also some calcification seen at the attachment of the muscle at the patella region, two small calcific densities noted on the tunnel view in the tunnel itself, narrowing of the medial femoral-tibial joint space. The written impression concerning the right knee in the 9/7/99 xray was: 1. no evidence of fracture; 2. osteoarthritis of the femoral patellar and medial femoral-tibial joint space; and 3. Possible joint mice in the tunnel of the knee.

A Lumbar -- Orthopedic/Neurological Exam form dated 8/30/99 noted among the findings for the right knee: 5 degrees loss of extension, valgus stress - medial knee pain. A cervical --Neurological/Orthopedic Exam form dated 8/30/99 noted among findings for the left shoulder. An 8/30/99 Consultation Record - Fischer Chiropractic Center reflected an assessment of: a. Left rotator cuff injury, possible tear; and b. right knee Grade 1 Grade 2 sprain, possible meniscus injury; the form indicated treatment was given to the left shoulder and right knee. Subsequent entries were handwritten notes, i.e. 9/10/99 - Rothschild's complaint that the right knee felt very unstable when he walked on uneven ground, pain with walking, and left shoulder is sore and achy too; 10/07/99 - shoulder continues to bother \& knee has increased swelling; 11/2/99 - got a cortisone shot, still limping, and shoulder and knee still have pain; 11/23/99, the last treatment entry indicated continuing problems; a 1/17/2000 note stated - Knee surgery.

The record included an October 20, 1999 letter by Dr. Fischer, D.C. to Dr. Thomas Matthews, M.D.. Dr. Fischer wrote that Rothschild first presented on 09/01/99 for injuries to his left shoulder and right knee; it was noted that the diagnosis was - left rotator cuff tear, and Grade II sprain strain of the right knee with a possible loose body. Dr. Fischer wrote a request for Dr. Matthews to evaluate Rothschild and send him a report of findings; Dr. Fischer further wrote that he would continue to treat unless Dr. Matthews felt another course of treatment was needed. A 10/28/99 report of an MRI of the left shoulder ordered by Dr. Matthews was in the record (See, also No. J), and reflected the following opinion: 1. Complete tear of the supraspinatus tendon at its insertion; 2. Laterally downward sloping acromion with prominent spurring. This is causing a moderate degree of impression on the supraspinatus tendon; and 3. Mild degree of osseous reactive change in the region of the insertion of the supraspinatus tendon.

Dr. Thomas D. Matthews, M.D.'s treatment records (See Attachments, Claimant's Exhibits Nos. B and B-1) began with an October 20, 1999 evaluation report to the workers' compensation insurance company. The doctor wrote that Rothschild presented for evaluation of right knee and left shoulder pain he sustained when he slipped and fell out of his truck bed in late August sustaining a twisting injury to his right knee and left shoulder. Dr. Matthews noted in his October 20, 1999 report: "Radiographs of the knee show loose bodies in the intercondylar notch. Evidence of old osteochondritic dissecans lesion and degenerative changes as well". The doctor further wrote that radiographs of the shoulder were unremarkable. Rothschild is advised to undergo an corticosteroid injection in the right knee and an MRI of the left shoulder to rule out rotator cuff tear, Dr. Matthews wrote. In an 11/3/99 entry, Dr. Matthews wrote that a complete tear of the supraspinatus at the insertion was evident on the MRI. The patient is advised to consider rotator cuff repair, the doctor wrote. In an 11/10/99 entry Dr. Matthews wrote that he had discussed options of treatment including outpatient physical therapy, injections, etc. "He would like to try his chiropractor for awhile", Dr. Matthews wrote, and "I told him that was ok, however if symptoms increased or got worse arthroscopic evaluation and decompression and rotator cuff repair would be recommended". In a 12/08/99 entry, it was noted that Rothschild reported that his shoulder had improved, but his right knee had increasing pain and loss of motion. Dr. Matthew's record indicates that he performed on 01/19/00 right knee arthroscopy on Rothschild. After post-operative treatment including medication, physical therapy and injections with some improvement, it was noted in a 03/28/00 entry that Rothschild continued to complain of pain; arthrocopic evaluation of the knee again for debridement was mentioned in the next entry of 04/19/00. In May 2000 Dr. Matthews wrote that if Rothschild wanted to return to work his climbing in and out of a truck was his main restriction and he did not think that was feasible for Rothschild at that time; in a 06/07/00 entry it was written that Rothschild was off work until surgery. A 06/22/00 entry stated right knee arthroscopy debridement. In the next entry of 06/29/00, Dr. Matthews wrote the following:

He comes in today one week after debridement of his knee joint. Again, his osteochondral defect is pretty significant. The margins were debrided. Some loose bodies were removed. Other than that, nothing else can be done arthroscopically.

In the next entry of 07/12/00, Dr. Matthews wrote that Rothschild was three weeks out from his scope and second debridement of his medial femoral condyle defect. The doctor further wrote that Rothschild was advised to continue a range of motion program on his own level and let his knee calm down at that time; the doctor wrote that he wanted to see Rothschild back in one month for recheck.

The next entry in Dr. Matthews’ record was a 01/15/02 entry in which the following was written:

He comes in today for an opinion regarding his right knee. He apparently had an osteochondral transfer graft to the medial femoral condyle by Dr. Haupt in St. Louis last year. Since that time, his knee has been bothering him somewhat with occasional swelling and stiffness and inability to squat and inability to get down on the leg. His other knee is bothering him as well.

Dr. Matthews noted that radiographs were obtained and showed "sclerosis of the medial compartment, but good joint space is maintained. There is some patellofemoral narrowing, as well. There is a flat spot on the lateral of the medial femoral condyle that is notable". Dr. Matthews’ assessment on 01/15/02 was - Posttraumatic osteoarthritis of the right knee. The doctor wrote the following in the treatment plan section of the 01/15/02 entry:

Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee.......I believe he does have a 50-60\% disability of the knee, but my most significant concern is the problems in the future.

Dr. Matthews prepared a May 2002 report to the claimant's attorney in which he wrote the following:

I have reviewed Mr. Rothschild's chart. As you know, this gentleman claims injury to his right knee while at work prior to an office visit he had on 10/20/99. The evaluation of the left knee at that time showed x-ray evidence of an old osteochondritic dessicans lesion of the medial femoral condyle. In spite of conservative measures which failed, knee arthroscopy was recommended. At the time he was noted to have an old osteochondritic lesion which was debrided. Temporally the lesion that he had in the knee at the time of the arthroscopic evaluation could not have specifically been caused by his work related injury, however, the development of subsequent symptomatology, swelling and pain, could have been brought on by that particular injury and thus necessitating the subsequent surgeries that this gentleman has had. The patient has stated that he had no problem with his knee prior to the work injury, which is consistent with a stable OCD lesion. The twisting and/or wrenching of his knee at the time of injury could have fractured and/or dislodged the lesion to the point that he became symptomatic. So in essence, the patient did have a pre-existing lesion which was essentially asymptomatic and/or subclinical and the work related injury aggravated this condition to the point that it became clinically symptomatic in need of treatment.

Further treatment and/or therapies could include arthroscopic evaluation of the knee, partial and/or total knee replacement, in addition to, the normal and customary office visits, x-rays, physical therapy, etc. I believe that these treatments are more likely than not to occur in the future, for this gentleman suffers from a progressive degenerative problem with his knee, which undoubtedly will continue and be in need of medical attention in the future....

In the next treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit........

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote of the treatment given that day, and that Rothschild was to return in three weeks. The doctor further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr. Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee

procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visit, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

A 09/20/02 treatment entry in the record indicated that on that date Rothschild returned for reevaluation of his knee. The doctor further wrote: "His knee symptoms have not significantly abated. He has developed some mild sciatica on the right side." After discussing examination findings, Dr. Matthews wrote that he thought this was more inflammatory process than a disc or any other problem. A Medrol Dose Pak was recommended, and it was written that Rothschild was to return in about three weeks, and was to be off work until seen back. In the next entry of 10/11/02, it was written that Rothschild was in "mostly for all of his social issues in regards to lack of workmens comp coverage"; it was noted that he continued to complain of medial pain. Dr. Matthews further wrote in the 10/11/02 entry: "The patient again is advised either uni or total knee arthroplasty in the future when his insurance issue is resolved. He can return to see me back on a prn basis. If any problems develop he will let me know."

Dr. Matthews wrote an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle:

I feel that his left knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort. This condition is usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point.

The next treatment entry was dated 08/20/03, and it was noted that Rothschild came in for evaluation of his right shoulder. Dr. Matthews further noted:

He apparently fell down some steps injuring his right shoulder about three weeks ago. He sought attention from his chiropractor, which failed to resolve his symptoms, and radiographs accompany him today. He describes having a giving way episode with his right knee, which has been chronic and landing on his right upper extremity. Since that time he has been unable to forward elevate and abduct the arm.

The doctor's impression on 08/20/03 was - rotator cuff tear right shoulder, traumatic and acute. An MRI was scheduled to verify. An 08/29/03 entry stated that the MRI showed a complete tear of the supraspinatus tendon, and that physical therapy was being scheduled as Rothschild did not want surgery, and an injection might by then administered if symptoms continued. The next entry of 09/03/03 noted that Rothschild was in for reevaluation of his right shoulder; it was written that an injection had been administered and physical therapy was continuing. The next entry of 09/24/03 noted that Rothschild was in for reevaluation of his shoulder, and that he had been attending outpatient physical therapy and his passive range of motion had improved. He was given a parking sticker for his knee as a permanent handicap sticker, Dr. Matthews further wrote in the 09/24/03 entry. The last treatment entry of 10/22/03 noted that Rothschild was in for a recheck of his right shoulder, and that he was moving it much better, and that he could now do most of his therapy at home. It was indicated in a 12/03/03 entry that Rothschild had cancelled this appointment date.

Dr. Matthews prepared a September 12, 2003 opinion letter to the claimant's attorney which included the following:

As I discussed with you later employment (subsequent to the August 1999 injury) which supposedly caused Mr. Rothschild to bend, stoop, twist and run on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. ...

Dr. Matthews, in a September 29, 2003 letter, addressed further inquiry from the claimant's attorney in regards to the right shoulder injury:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon. Mr. Rothschild wants to pursue nonoperative treatment for this problem and has been attending outpatient physical therapy...

With regard to the hypothetical that you posed in your letter, I believe that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

I am anticipating some improvement with continued physical therapy and conservative management. I think the end-result is unclear to me at this point, how much function Mr. Rothschild will gain from this conservative management. Mr. Rothschild may need surgical intervention with the shoulder.....

Medical records of HealthSouth Tri-County Surgery (No. E) were surgical records of procedures performed on Rothschild's right knee by Dr. Matthews on 01/19/2000 and 06/22/00. In the 01/19/2000 surgical report, Dr. Matthews noted a history of: "This 46-year-old gentleman is taken to the operating room at this time to undergo arthroscopic evaluation for continued knee swelling. Recent radiographs confirm OCD lesion with displacement in the medial femoral condyle." On 01/19/00, the preand post-operative diagnosis was the same - right osteochondritic dessicans of right medial femoral condyle with potential loose bodies. The procedure performed on 01/19/00 was: Removal of OCD lesion, debridement of medial femoral condyle.

In the 06/22/00 surgical report, Dr. Matthews noted a history of: "This 47-year-old gentleman is taken to the operating room at this time to undergo right knee arthroscopy. He is 6 months post right knee arthroscopy for debridement of the medial femoral condyle, old osteochondritic dissecans lesion. He continued to have swelling and marked pain with his knee joint. He was advised arthroscopic evaluation and re-debridement at this time. The risks and benefits including no guarantees for decreased pain have been explained to him, he understands this and is willing to proceed." On 06/22/00, the pre-operative diagnosis was - right knee medial femoral condyle defect; and the post-operative diagnosis was - same, chondromalacia patellofemoral joint.

Medical records of the Herman Area District Hospital (No. G) were records of physical therapy to the right knee by referral of Dr. Matthews after the 01/19/00 right knee arthroscopy. A Plan of Care/Referral form, dated 1/19/00, listed goals of increased range of motion, increase mobility, patient education and home program. The physical therapy record indicated that Rothschild was seen for the first time on 01/25/00; initial notations included - pain seems now as before surgery, and using ice a lot seems to decrease swelling. A 1/28/00 entry included Rothschild's comments - "it feels like there s something right under my knee cap", and that he reported the knee was still tight and sore. The final physical therapy treatment entry, dated 2/01/00, noted Rothschild's comments that his pain remained the same, and there was a lot of "clicking" in his knee, and his knee "gives out". The 2/04/00 entry indicated that Rothschild canceled due to a death in the family; the 2/08/00 entry stated that Rothschild was a no show/no call' the final entry of 2/11/00 stated that Rothschild was contacted and he stated that the doctor had discontinued therapy at that time. Further written in the 2/11/00 entry was that Rothschild felt there was something still wrong with his knee, and the doctor wanted him to rest it.; it was noted that Rothschild was discharged at that time, goals were unable to be met.

Medical records of Dr. Herbert Haupt, M.D. (No. 2) concerned the treatment of Rothschild during the period of August 1, 2000 through the completion of treatment on March 20, 2001. In the initial examination report of August 1, 2000, Dr. Haupt noted that Rothschild's chief complaints were - right knee/left shoulder injury. The doctor wrote the following about the history of present illness:

Mr. Rothschild presents today for evaluation of upper and lower extremity complaints. He drives a dump truck. On date of injury noted to be $8 / 30 / 99$, he was pulling a limb out of the cab shield on his dump truck, he lost his balance and fell about 12 feet to the ground, suffering injury to his left shoulder and right knee. He does not recall exactly how he landed, but does recall injury to these two areas.

Dr. Haupt then discussed the testing and treatment Rothschild had received, including the results of an MRI scan of the left shoulder and what was demonstrated upon two arthroscopic procedures performed on 01/19/00 and 06/22/00. The patient denies any previous history of complaints regarding his right knee or left shoulder prior to the work-related injury, Dr. Haupt wrote. The doctor's written assessment on August 1, 2000 included the following:

1) Right knee discomfort that appears to be an element of a preexisting condition as noted by early closure of the medial compartment just days following the work-related injury and evidence of an osteochondral lesion that appears to be potentially old and preexistent to the work-related injury. Certainly, that injury at work would certainly at minimum have acted a trigger to the preexisting condition. It is also possible that in fact it did knock loose that osteochondral lesion. It is very difficult to tell based just upon the information I have available today.... I am concerned about the degree of the lesion at the medial femoral condyle. The information available is just not clear enough to clearly determine how badly the medial femoral condyle may be affected by this lesion.

2) Left shoulder findings of a rotator cuff tear on the MRI scan may or may not be accurate. He certainly has significant degenerative changes noted at the AC joint as well as a Type III acromion, all considered preexisting. A full thickness rotator cuff tear has to be considered. This would be considered a direct result of the work-related injury.

An August 4, 2000 MRI (No. H) of the right knee performed at Missouri Baptist Medical Center at the request of Dr. Haupt noted the following clinical history: "Right knee pain increasing in severity over the last two weeks. The patient has had two prior knee surgeries." The second page of the August 4, 2000 right knee MRI, apparently containing the impression, was missing from

this exhibit.

An August 4, 2000 left shoulder arthrogram (No. H-1) performed at Missouri Baptist Medical Center at the request of Dr. Haupt noted the following clinical history: "patient sustained an injury on 08-30-99 and has had shoulder pain since that time. Clinical concern is for rotator cuff tear. The written impression was - Complete rotator cuff tear; it was instructed to refer to the discussion above, which included - findings suggesting an old left clavicular fracture are identified.

In the next examination report of August 10, 2000 (See Exh. No. 2), Dr. Haupt wrote that an arthrogram and MRI scan had been completed, and demonstrated a complete rotator cuff tear. It was noted that a knee MRI had been completed and demonstrated the area of the osteochondral lesion without evidence of avascular necrosis. In the September 20, 2000 examination report, Dr. Haupt wrote the following: "Mr. Rothschild notes a marked improvement in his shoulder function with the help of therapy, but his knee complaint is becoming more and more bothersome. He complains of pain primarily anteriorly about that right knee. He denies any new injuries." Dr. Haupt's assessment on September 20, 2000 included the following:

1) Shoulder is actually doing quite well with conservative management in physical therapy.

2) Persistent complaints in the right knee that appear to be primarily patellofemoral in nature, but also has medial compartment discomfort in the area of the osteochondritis dessicans. Reviewing his operative notes, I note that during the first operative procedure performed in January 2000, it was noted that the "superior patellar pouch where the articular surface of the patella and corresponding femoral trochlea were found to be relatively unremarkable".

However, on the second operative procedure that was performed on June 22, 2000, it was noted that "the superior patellar pouch, the articular surface of the patella and the femoral trochalea were evaluated and found to have Grade II chondromalacia changes".. This suggests that there has been interval change within the area of the patellofemoral joint and this may presumably be a sequelae to the first operative procedure that may have resulted in contractures about the patellofemoral ligaments, resulting in malalignment and the development of the chondromalacia. This area seems to be the predominant source of his discomfort at this point. Treatment recommendations at this point by Dr. Haupt were:

Regarding his shoulder, he is doing well with the conservative management and it is appropriate to continue that effort. Regarding the patient's knee, with the persistent complaints in the area of the patellofemoral joint, I have given him two options for care and treatment. These include a corticosteroid injection with further efforts at therapy to see if we can break through his complaint or to proceed with arthroscopic management to assess the degree of injury at the OCD and also at that point, debride the patellofemoral joint and potentially perform a lateral release to improve mechanics.

A 10/13/2000 operative report of HealthSouth Surgery Center of West County (No. F) concerned the third right knee procedure which was performed by Dr. Herbert Haupt, M.D. The pre-operative diagnosis was: right knee - osteochondral defect, medial femoral condyle, patellofemoral joint chondromalacia. The post-operative diagnosis was: right knee - posterior horn tear of medial meniscus, quarter size osteochondral defect down to subchondral bone of medial femoral condyle with a larger circumferential area about 2-3 cm diameter of the medial femoral condyle and Grade chondromalacia, evidence of partial anterior cruciate ligament tear but considered competent, marked Grade 4 chondromalacia of the femoral trochlea, and Grade 2-3 chondromalacia of the patella.

In the November 21, 2000 examination report (See Exh. No. 2), Dr. Haupt wrote that Rothschild was doing well with his left shoulder, that he had no major complaints., and that the therapist noted he was progressing quite well with therapy. Dr. Haupt further wrote: "His right knee, however continues to be a complaint. He still ambulates with crutches and has a fair amount of swelling primarily posteriorly about the hamstrings." The doctor wrote that the knee was aspirated of serous fluid, and then was injected with medication; physical therapy was continued. Dr. Haupt wrote in the next examination report of December 5, 2000 that Rothschild was doing much better with his knee, that he had seen some improvement in soreness and swelling with the aspiration and the injection. Examination findings on December 5, 2000 were:

Examination today demonstrates he lacks full extension by just a few degrees. At this point his swelling is markedly improved. He is able to ambulate without the use of crutches.

Shoulder examination demonstrates passive range of motion is full. His active abduction and external rotation strength is approaching $4 / 5$.

Dr. Haupt wrote that physical therapy would continue for three more weeks and Rothschild would continued with the medication Ultram for discomfort. In the next examination report of January 2, 2001, Dr. Haupt wrote the following: "Mr. Rothschild was doing well until about 2 weeks ago. He then developed increasing swelling and discomfort about his knee. He is doing well with his shoulder, with no major complaint." Dr. Haupt's assessment on January 2, 2001 was:

Persistent inflammation and discomfort with evidence of medial compartment degenerative changes noted secondary to work related injuries. The patient's increased swelling is secondary to rebound after the injection has worn off.

The treatment plan included continued physical therapy, and a valgus unloading brace "to unload that medial compartment to see if

that will provide some symptomatic relief and allow that medial compartment to have a better opportunity for healing", the doctor wrote. In the January 22, 2001 examination letter, it was written that Rothschild was noticing that his left shoulder was doing well with home therapy but it seemed to be getting weaker, and that the right knee was still quite uncomfortable with attempts at physical therapy which was confirmed by the therapist's notes. Physical therapy was continued for the knee and resumed for the left shoulder. The next examination report of February 12, 2001 noted that Rothschild reported the brace had really helped his right knee discomfort and without the brace he still had a fair amount of medial compartment discomfort; it was written that the left shoulder was progressing in therapy. The doctor further wrote: "Today he mentions that he is having a complaint of numbness in his right leg. He has pins and needles down the leg as he is driving for any length of time. He indicates he has had this tingling and numbness even before he had the sport brace applied. He does not recall exactly when it started but it seemed that to be sometime after the most recent surgery." Dr. Haupt noted the following in his next examination report of February 27, 2001:

His major complaint at this point is numbness that occurs with prolonged sitting activities while driving or even prolonged standing activities. He complains of the whole leg becoming nub, especially distal to the knee. He has completed the workup by Dr. Peeples which notes a normal neurologic examination on electrical studies. This rules out any significant neurologic dysfunction causing his complaints.

Examination findings on February 27, 2001 were:

The right knee has minimal to no effusion. He can actively extend the knee. He is able to ambulate but still has a mildly antalgic gait but it is improved.

Shoulder examination demonstrates a full range of motion. No dysfunction noted.

The assessment on February 27, 2001 was: "This patient overall has improved quite well regarding his knee complaints as well as the shoulder complaints." In the treatment plan section of the February 27, 2001 report, Dr. Haupt wrote that his recommendation was for Rothschild to resume full duty. "He apparently has an opportunity to pursue work activities outside of his current employment and he wants to consider that.", the doctor wrote. Physical therapy was continued, geared more to doing piriformis stretches and strengthening as well as hi range of motion and strengthening, and Rothschild was to return in 3 weeks so that his overall progress could be assessed. A March 7, 2001 form completed by Dr. Haupt was in the record and indicated that Rothschild was placed on limited duty - sit down activities only; the form indicated Roloff Trucking as the employer.

Dr. Haupt prepared a March 20, 2001 examination report in which he wrote that Rothschild indicated he did see some improvement in his leg pain with the injections at trigger points performed by Dr. Yadava and with the modifications in his physical therapy program. It was written that Rothschild further indicated that his knee and shoulder were actually doing quite well though he still has the complaint of pain down that leg with prolonged sitting or driving or standing, and a tingling and numbness that occurs in the knee on down the lateral and posterior aspects of the right leg. Examination findings on March 20, 2001 were:

Examination of the right knee shows full extension and flexion. No effusion. He is stable to varus and valgus stress. Shoulder range of motion is considered full. Good active abduction and external rotation strength.

No obvious sensory deficits on today's examination. Motor, sensory, and DTR's are intact.

Dr. Haupt's assessment in the March 20, 2001 examination letter was: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt wrote that he would defer further medical management to Dr. Yadava. Rothschild is continued on light duty status until he sees Dr. Yadava next week, Dr. Haupt further wrote, and the written restrictions were - "steps and stairs only to enter a truck, car or building. Limited lifting of 50 pounds and no ending or squatting activities". Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent ( 6 % ) at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent (17\%) at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

"He has been advised to wear the valgus unloading brace for a prolonged period of time to help symptomatic relief of his discomfort", Dr. Haupt further wrote.

In a separate March 20, 2001 examination report, Dr. Haupt wrote that Rothschild's chief complaint was - left ankle discomfort. In the history section of the report, Dr. Haupt wrote the following:

Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed or him by me. After discontinuing the Vioxx medication within in about two days he developed the onset of soreness about the lateral aspect of the left ankle. He denies

any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle.

He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of. (sic)

Examination findings on March 20, 2001 were:

Examination today demonstrates, by his own admission, a 50 % improvement in the soreness he noted over the weekend. Examination demonstrates no apparent swelling. Range of motion is considered intact and full. Stable to varus and valgus stress. He complains of soreness, however, on anterior drawer as well as with varus stress of the ankle. His anterior drawer is considered negative. He is tender to palpation at the anterior talofibular ligament. There is no swelling noted. His Achilles tendon is normal. When he weight bears his arch appears to be normal. There is no plantar aspect of pain noted.

Routine plain films are really rather unremarkable. No acute or chronic changes noted. These are rather benign appearing plain films.

Dr. Haupt's written diagnosis on March 20, 2001 was:

Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury. It is possible that he has had some inflammation about that ankle was masked with the use of the Vioxx medication and became apparent upon discontinuing the anti-inflammatory medication and is more or less a rebound effect.

Dr. Haupt wrote of his treatment recommendation in the March 20, 2001 report:

Treatment recommendations are that he can pursue appropriate strengthening on his own, and we taught him a few exercises. In addition, I recommend the use of over-the-counter anti-inflammatories in an effort to cut down on some of the inflammation about the ankle. This can be in the form of Aleve.

There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises.

Dr. Ravi Yadava, D.O. record (No. 3) began with a March 14, 2001 examination report in which Rothschild's chief complaint was noted as - right leg numbness and tingling. The August 30, 1999 work related accident was discussed, and Dr. Yadava wrote that Rothschild relayed that he has been in pain ever since the accident; it was noted that stated that sitting reproduced numbness and tingling on the lateral aspect of his right leg. Dr. Yadava wrote of Rothschild's medical history, his occupational history, and of his examination findings.

The doctor included the following in the Summary Section of his March 14, 2001 report:

He has had a total of three arthroscopic procedures on the right knee. He has had persistent pain and impairment. He has done relatively well with his medial unloading brace. He has done relatively well with his therapeutic program. He is having some numbness and tingling. His electrodiagnostic study is unremarkable. He does not have anything on his physical exam that concerns me for radiculopathy, plexopathy or true neurogenic basis for his pain and impairment. I think his numbness, tingling and pins and needle sensation is referred pain of a myofascial etiology. The kind of modification to his rehab program we have provided today will serve him quite well and help him achieve (?hi?)s goals in a more timely and cost effective fashion. I think these trigger point injections will facilitate this and minimize the use of medications. I feel he will not require medications and/or procedures in the long term......

In his last examination report of March 28, 2001, Dr. Yadava wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. The doctor wrote of his findings upon examination of Rothschild which were:

In the seated position, he has remarkable improvement in his soft tissue evaluation along the peroneus musculature. Previous area of trigger point injection have resolved. He has some nodularity, but no taut bands or trigger points. There is no vasomotor instability or signs consistent with RSD. Dorsal and pedal pulses are symmetrical. His neurologic evaluation is stable and unchanged. His DTR's are symmetrical. His hamstring flexibility is unchanged. He measures 75 degrees bilaterally. His quadriceps mechanism still shows evidence of disuse atrophy. His knee examination is unimpressive. He does not have any acute features. He does not have any swelling, effusion of synovitis.

Dr. Yadava wrote the following in the Summary section of his March 28, 2001 report:

...He states he is doing better. He does have objective improvements in the previous areas of injection. The only recommendations I would have for him at this time is to continue with his VMO strengthening exercises, utilize his bracing

as directed and continue with his hamstring and gastroc soleus flexibility program. There is no formal physical therapy I feel is indicated. There are no other diagnostic studies or therapeutic intervention I feel is indicated. I do not think he needs ongoing use of medications. He does tell me he is anxious to return to his full time, unrestricted capacity. I think it is safe and appropriate. I did tell him it is reasonable to expect to return to work in a comfortable fashion I think there is some deconditioning that has occurred. He may have increased soreness that should be well controlled through conservative mechanisms as outlined in detail here in the office. I think he is at maximum medical improvement from a rehabilitation perspective. There are no other diagnostic studies or therapeutic intervention I feel is indicated.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001.

Dr. Shawn L. Berkin, D.O. prepared a report, dated May 9, 2001, after performing an evaluation of Rothschild for the purpose of a rating as it related to the work related injury occurring on August 30, 1999. (See Exh. A, Attachment Roloff Dp. Exh. No. 2) The doctor discussed the August 30, 1999 work related injury while in the employ of Roloff Trucking. Subsequent treatment was discussed by Dr. Berkin through what he termed a re-evaluation by Dr. Haupt on 01/22/01 at which time Rothschild was continued on physical therapy for his right knee and left shoulder and was continued on working with limited duty restrictions. "The patient stated that he never returned to work for Roloff Trucking following his treatment and is currently employed as a trim carpenter for the Carst (sic) Construction Company", Dr. Berkin wrote. The doctor noted that Rothschild had worked for Roloff Trucking for ten years. Present complaints of Rothschild noted by Dr. Berkin in his May 9, 2001 report were - pain and tenderness to the right knee, swelling to the knee and the knee gives out; stiffness to the right knee and symptoms worse with weather changes; Rothschild reported limited motion of the knee and his knee symptoms are aggravated by kneeling and squatting; he had complaints of weakness to his left arm and his shoulder symptoms were aggravated by lifting. Dr. Berkin discussed his examination findings of May 3, 2001 which included: a. height - 73", weight - 268 pounds; b. left arm - no swelling or deformity, shoulders level in sitting position, upon palpation tenderness over the anterolateral surface involving that acromioclavicular joint extending into the left upper arm, stressing left shoulder failed to demonstrate any joint instability but a prominent clunk was present on passive circumduction of left shoulder, it was indicated that range of motion of left shoulder was decreased in all planes, muscle strength testing showed weakness of left arm on flexion and extension against resistance; c. right shoulder - range of motion was normal; d. right leg wearing brace furnished at time of treatment, upon removal of brace generalized swelling without obvious joint effusion, walked in a normal gait without evidence of a limp, generalized weakness localized over the anteromedial surface, stressing knee failed to demonstrate any joint instability but patient complained of pain to his knee on valus and varus stressing, it was indicated that flexion and extension range of motion was decreased, weakness of left leg on extension of the left knee against resistance, able to stand on toes and heels without difficulty but unable to squat because of complaints of pain in his right knee; e. left knee - normal range of motion. Dr. Berkin's final impressions were: 1. Rotator cuff tear of the left shoulder; 2. Impingement syndrome of the left shoulder; 3. Right knee strain; 4. Tear of the medical meniscus of the right knee; 5. Tear of the anterior cruciate ligament of the right knee; 6. Osteochondritis dissecans of the right knee; 7. Status-post arthroscopy of the right knee with debridement of the medial femoral condyle and removal of osteochondral lesion 01/19/00; and removal of osteochondral lesion 01/19/00; 8. Status-post arthroscopy of the right knee with arthroscopic debridement 06/22/00; 9. Status-post arthroscopy of the right knee with medial meniscectomy, Debridement of the anterior cruciate ligament, shaving, debridement and chondroplasty of the medial femoral condyle and femoral trochlea and lateral retinacular release.

In the conclusion section of his May 9, 2001, Dr. Berkin discussed the treatment Rothschild had received finally writing that following the October 2000 surgery by Dr. Haupt Rothschild was treated by Dr. Haupt including attending physical therapy through January of 2001. "The patient is currently employed as a trim carpenter for Carst Construction and is receiving no treatment for his injuries at this time", Dr. Berkin wrote.

Dr. Berkin wrote of his assessment as to disability:

e. A permanent partial disability of 30 % of the left upper extremity at the level of the shoulder for the rotator cuff tear of the left shoulder associated with an impingement syndrome.

f. A permanent partial disability of 55 % of the right lower extremity at the level of the knee for the right knee strain associated with tears of the medial meniscus and the anterior cruciate ligament and an osteochondral lesion involving the medial femoral condyle necessitating three surgical procedures on his right knee. I feel the patient has an additional permanent partial disability of 10 % of the right lower extremity at the level of the knee for the degenerative arthritis of the right knee that pre-existed his injury which to my knowledge, has been asymptomatic prior to his injury.

Dr. Berkin's treatment recommendations were:

The patient continues to have significant symptoms to his right knee and I recommend the continued use of his knee brace in order to stabilize his knee. I recommend that the patient be restricted from prolonged standing or sitting and that he be restricted from kneeling, stooping or climbing.

With respect to his left shoulder, the patient continues to remain symptomatic and indicated that he does not wish to have

surgery on his shoulder because he feels that surgery has not really helped his knee. With respect to his left shoulder, I recommend the patient be restricted from lifting with his left arm no more than twenty-five pounds from the floor to the waist and fifteen pounds from the waist to the shoulder. I recommend that the patient avoid working with his left arm above the level of his shoulder.

The patient has indicated that he is currently working as a trim carpenter but if he continues to have symptoms at his current level of activity, I recommend that he consider alternative employment that his less physically demanding. (sic)

Medical records of Washington Chiropractic Clinic, P.C. (No. K) concerned prior treatment of Rothschild in 1995.and in July of 1999 for cervical spine complaints.

A 12/31/01 entry noted complaints of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

Dr. J. W. Morrow, D.O. prepared an October 8, 2002 evaluation report (See No. A, Attachment No. 3); the doctor wrote that he was seeing Rothschild for injuries sustained in the August 1999 work related injury. It was noted that the claimant relayed that he had been pain free in his right knee and his left shoulder prior to the August 1999 work related injury. Dr. Morrow discussed Rothschild's present complaints on involving the left shoulder and the right knee:

He relates if he attempts to move the left arm in lifting activities above the shoulder level this causes pain in the shoulder joint. Sudden movements of the arm at the shoulder tend to cause pain. Since he is not working for a period of time, the pain occurs about two of three times a week in the left shoulder with such movement.

He relates standing, walking, squatting, going up and down steps, lifting, pushing and pulling activities all tend to cause the severe pain in the right knee, and he attempts to avoid these activities since he is not working at this time.

Dr. Morrow's diagnoses concerning the August 1999 work related accident were: a. traumatically induced sprain of the left shoulder, and an MRI study showed a complete tear of the supraspinatus of the rotator cuff; and b. traumatically induced sprain of the right knee, Dr. Matthews noted that upon the 10/20/99 surgery by Dr. Matthews there was evidence of old osteochondritis dessicans and degenerative changes about the knee joint. Dr. Matthews noted the osteochondral defect was pretty significant. Dr. Morrow noted additional subsequent treatment, including the subsequent two surgeries; Dr. Haupt took x-rays on January 15, 2002, Dr. Morrow wrote, "showing stenosis of the medial compartment and some patellofemoral narrowing with a flat spot on the lateral medial femoral condyle and being diagnosed as posttraumatic osteoarthritis of the right knee, at which time the doctor notes the patient may require surgery in the future, including a possible total knee arthroplasty procedure. ". Dr. Morrow wrote his recommended restrictions for the left shoulder and right knee; concerning the right knee, Dr. Morrow further wrote: "The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the right knee, particularly the medial knee joint space where he is approaching bone on bone". Dr. Morrow assessed permanent partial disability on October 8, 2002:

Based upon this examination, there is a 40 % permanent partial disability of the left upper extremity at the level of the shoulder attributable to the injury of 8-29-99.

Based upon this examination, there is a 65 % permanent partial disability of the right lower extremity at the level of the knee. Of the 65 %, we allow 32 % preexisting with the possibility of the preexisting osteochondritis dessiccans. Even though asymptomatic immediately prior to the injury in question according to the patient, and the remaining 321 / 2 % due to the aggravation of the injury in question and the necessity for the three procedures that had been performed arthroscopically, two by Dr. Matthews and one by Dr. Haupt.

Dr. Morrow wrote of his recommended restrictions, and finally wrote:

The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the tight knee, particularly the medial knee joint space where he approaching bone on bone.

The combination of the disability of the left shoulder and the right knee would provide a greater overall disability than their simple sum. I would defer employability to a vocational expert in that regard.

Additional treatment records from Fischer Chiropractic Center (No. D-1) concerning the treatment of Rothschild in August 2003 for right shoulder complaints. The record indicated that Rothschild was referred by his father. The initial entry of 08/04/03 noted Rothschild's complaints of soreness in the right shoulder and an inability to move it. Rothschild's history was noted as: "Says that the pn. came from a fall down the steps". The entry indicated treatment given to the right shoulder. The next and final entry of 08/05/03 noted that Rothschild still had soreness in the right shoulder and the swelling had gone down. He has a lot of swelling \& pain in the left ankle, was noted; examination findings for the right shoulder and left ankle were noted.

Medical records from Herman Area District Hospital (No. G-1) reflected treatment of Rothschild on 08/06/03 for left ankle and right shoulder complaints. Attending physician, Dr. Anjna Sethi, M.D., noted the history as: "Fell down the stairs at 4:30 a.m. and says that he has been having pain moving the right shoulder. Denies any other complaints. He does have a past medical history of rotator cuff pathology on the left shoulder and currently takes Vioxx." A 08/06/03 x-ray report noted the following findings: a. left ankle - normal left ankle; and b. right shoulder - 1. sclerotic changes along the greater tuberosity suggesting possible chronic rotator cuff pathology, 2. Moderate degenerative changes of the acromioclavicular joint, and 3. no evidence for fracture or dislocation. Dr. Sethi's assessment was: "History of fall. Pain right shoulder and left ankle." Treatment consisted of a sling for the right shoulder and recommendation to avoid weight bearing on the left ankle, and Tylenol 650 mg ; the doctor wrote that Rothschild had been asked to follow up with his regular doctor, and that he might need further MRI studies by the regular doctor.

An August 26, 2003 MRI of the right shoulder (See, No. J) ordered by Dr. Matthews noted the following impression: 1. Complete tear of the supraspinatous tendon; 2. Acromioclavicular joint hypertrophy and narrowing of the acromiohumeral space, and 3. Large joint effusion.

Dr. Thomas Matthews, M.D. testified by deposition on behalf of the employee. (No. B) A board certified orthopedic surgeon, Dr. Matthews stated that he first saw Rothschild as a patient on 10/20/99. The doctor discussed the history relayed by Rothschild:

"He related a history of while at work, he sustained an injury to his right knee and left shoulder while pulling something out of a pickup truck bed, I believe. He apparently slipped and fell at that time in late August - I believe that would be 1999 - twisting his knee and injuring his left shoulder at the same time." (Matthews Dp. pg. 11)

Dr. Matthews agreed that the date of injury Rothschild relayed to him was August 30, 1999, and then discussed his examination findings:

"His examination was primarily confined to his left shoulder and his right knee. His left shoulder was found to have a normal neurologic and vascular or blood vessel status.

His range of motion of his shoulder was felt to be excellent. He was tender overlying the lateral or outside aspect of the shoulder. There was also some tenderness noted overlying the acromial clavicular joint. That's the intersection of the clavicle and the point of the shoulder." (Matthews Dp. pg. 12)

"I hadn't gotten to the right knee, but instead of paraphrasing, I will try to summarize the right knee examination.

The patient's motion was good. The patient's swelling was minimal. He did lack some extension or terminal extension of his knee joint. He couldn't straighten or flatten out his knee joint all the want. (sic) X-ray examinations were obtained of his knee joint, which showed a loose fragment of cartilage and bone and evidence of an old osteochondritic dessicants lesion and some degenerative changes. And the patient was advised a corticosteroid or 'Cortisone,' quote/unquote, shot into the right knee, and he was also advised to obtain an MRI of his left shoulder to evaluate his rotator cuff." (Matthews Dp. pg. 16)

Dr. Mathews stated that the injection was given at the office visit, and that an MRI was obtained "which showed he had a compete tear, somewhat surprising, of his supraspinatus tendon, which is the foremost rotator cuff tendon that gets ruptured usually". (Matthews Dp. pg. 16) The doctor explained the function of the supraspinatus tendon: "Its function is to elevate and flex your shoulder and arm above the level of your shoulder." (Matthews Dp. pg. 17) Dr. Matthews opined: "I think (the osteochondritis dessicants in the right knee) preexisted the fall off the truck". (Matthews Dp. pg. 19) The following question and answer then occurred:

Q. (By Mr. Gerritzen) Assuming as a fact this man says he's never had any problems with his right knee prior to the fall of the truck on October 30, 1999, landed on the right knee after a 12-foot fall, approximate 12-foot fall, had pain ever after. In your opinion, was the osteochondritis dessicants activated or aggravated by that fall?

A. It seems like it was. (Matthews Dp. pg. 22)

Osteochondritis dessicants can be caused by trauma or can be idiopathic; "(M)ost of the time we are at a loss as to what causes it", the doctor said. (Matthews Dp. pg.19) The doctor stated that he sees people every day that have asymptomatic knees that have preexisting problems with their knees that is exacerbated and/or aggravated by recent trauma. "We can only go on what patients tell us, and if they're asymptomatic prior to presenting with a recent injury and they're not having problems, then we can only assume that they didn't have problems", the doctor said. (Matthews Dp. pg. 23)

Dr. Matthews stated that he performed arthroscopic evaluation of Rothschild's right knee joint on two different occasions, 01/19/2000 and 06/22/2000. In his discussion of the procedures, Dr. Matthews testified:

"In any event, it was found that he had, on the first surgery, the osteochondritic lesion that we're talking about, which was about the size of a nickel, was a cartilage bone fragment in a defect of the medial femoral condyle. That's where it

originated from but this fragment was loose, and it could be probed and moved around that area that it was supposed to be sitting in.

In adult patients, the treatment for that entity is removal of that fragment, and that was done. So in a, more or less, piecemeal fashion, that fragment of bone and cartilage was resected behind the crater where this OCD - we'll refer to it as an OCD lesion for now - resides. That crater is exposed raw bone. It should have cartilage on the end of its. So in an effort to remedy or at least palate the problem, the crater is drilled with multiple drill holes to try to stimulate a blood supply to form near the end of this crater." (Matthews Dp. pg. 24)

Dr. Matthews stated that he removed probably about one-fifth of the extent of the articular surface of the condyle with the removal of the fragment; the doctor stated that the condyle articulates with the tibia bone and agreed that it is necessary for movement of the knee. Discussing the second surgery of June 22, 2000, the doctor testified:

"That was essentially a re-debridement of the medial femoral condyle defect and also a patellar chondral debridement, which again means you take a shaving instrument........and you sculpt off the sharper edges of this particular areas of his medial femoral condyle. And on the back side of his patella, he had some arthritic changes." (Matthews Dp. pg. 26)

"The reason we got to the second surgery is because of the symptoms. And in spite of conservative measures, which, I believe, I may have given him a steroid injection in the interim, and that wasn't really effective, I was going to look back in his knee and see exactly where we stood at that point.

"The patella, in particular, I felt needed to be addressed at that time." (Matthews Dp. pg. 27)

Dr. Matthews was asked his opinion of whether or not both of the surgeries were necessary as a result of the fall off the truck on August 30, 1999, and he answered:

"I feel that, again, if a patient presents that has an asymptomatic history and now is symptomatic, and he has this particular lesion, so then I do address it surgically. So I can only conclude that the fall is a concomitant factor that results in the need for the operation.

"Well, I have a - I don't know what you guys mean by substantial. But yes, I feel that it's a substantial factor in regards to the development of his symptoms." (Matthews Dp. pg. 28) (Ruling: Employer Roloff's objection on grounds of Seven Day Rule is overruled. (Matthews Dp. pg. 28)

Dr. Matthews stated he believed that the treatment was proper. The doctor discussed the follow-up treatment he gave to Rothschild: "Well, Mr. Rothschild has been seen multiple times after this second surgery, perhaps a dozen times after the second surgery. He has had, I believe, physical therapy. He has had injections of corticosteroid medication, and he's had a lot of advice given in that time also." (Matthews Dp. pp. 28-29) Dr. Matthews agreed that he knew that Rothschild had additional surgery by Dr. Haupt after he saw Rothschild for the two surgeries.

The doctor was asked if Rothschild's knee would ever be the same as it was prior to the fall of August 30, 1999. Dr. Matthews answered "No", and explained: "The sequela of the knee surgery is a progressive arthritic condition." (Matthews Dp. pg. 30)

Dr. Matthews stated that he believed the fall off of the truck on August 30, 1999 was the cause of the left rotator cuff injury Rothschild sustained. The doctor stated that at the current time he was not sure as to Rothschild's symptoms in his left shoulder, but further testified: "Most authorities would feel that or believe that an untreated rotator cuff tear will also progress to develop what's called posttraumatic or rotator cuff arthropathy, which is basically arthritis of your shoulder." (Matthews Dp. pg. 30)

Dr. Matthews stated that there was no reference to the left ankle in his record from the claimant in his October 20, 1999 notes. The doctor testified: "So that final visit or that visit as of 10/11/02 was the end of the treatment cycle for that postoperative period after the second arthroscopy. Then the patient disappeared from my practice until he revisited me on 8/20/03." (Matthews Dp pg. 38)

The doctor discussed treatment of Rothschild in 2003 referencing his treatment notes. (Ruling: Employer/Insurers' objections are overruled. Matthews Dp. pg. 38) Rothschild returned to my office on August 20, 2003 and the history at that time was regarding a recent right shoulder injury, Dr. Matthews said, Rothschild stated that he fell down some steps at home and described a giving way episode with his right knee. His examination at that time was that he had torn his rotator cuff of his right shoulder, the doctor said. An MRI was recommended, Dr. Matthews testified, "and his MRI showed that he had a complete tear of his supraspinatus tendon of his right shoulder". (Mathews Dp. pg. 39) We talked about physical therapy and about surgery, and I believe Rothschild was sent to physical therapy, the doctor said. He was reevaluated on September 3, 2003 after attending physical therapy and was given an injection at that time; at the next appointment on September 24, 2003 his symptoms were improved and at the last appointment on October 33, 2003 he had regained his motion in his shoulder and it was recommended that he continue a home exercise program, Dr. Matthews stated. The doctor stated:

"I'll restate what I think the question is, which is, did the preexisting problem with the patient's right knee lend itself to a fall or giving way episode that injured the patient's right shoulder. According to the history, that's correct, and, yes, it's conceivable that that's what caused the right shoulder injury." (Matthews Dp. pg. 41)

Dr. Matthews noted that between the 9/24/03 and the 10/22/03 visits "there was a letter written that summarizes those visits in relationship to the right shoulder, I believe." (Matthews Dp. pp. 39-40) In a September 29, 2003 letter to the claimant's attorney (included in the medical record attached to the deposition transcript) Dr. Matthews wrote the following:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon......

With regard to the hypothetical that you posed in your letter, I believe that that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

The doctor was asked at the deposition if he had made reference in his September 29, 2003 letter that Rothschild may need surgical intervention; Dr. Matthews wrote in his letter:

I am anticipating some improvement with continued physical therapy and conservative management. I think the end-result is unclear to me at this point, how much function Mr. Rothschild will gain from this conservative management. Mr. Rothschild may need surgical intervention with the shoulder....

Dr. Matthews was asked his opinion of what effect, if any, would subsequent employments in carpentry have on Rothschild's right knee and shoulder. The doctor answered:

"Mr. Rothschild is a laborer. I believe he's a carpenter?

"Which requires stooping, bending, squatting. So his occupation plays a role in the amount of time that he's up on his knee, and the physicalness of his job adds to the stress that his knee sees. So, consequently, those particular type jobs will promote or progress his degenerative change in his knee joint." (Matthews Dp. pg. 44)

"...in general, I think it would be agreed upon, with medical certainty, that laboring type jobs such as his would aggravate and exacerbate and progress his particular condition, whether it be one job or 17 different jobs." (Matthews Dp. pg. 46) (Ruling: Employer/Insurers' objection on grounds of Seven Day Rule is overruled. Matthews Dp. pp. 44 and 45 and 47 )

In Dr. Matthews' treatment record attached to the deposition transcript was a September 12, 2003 letter by the doctor to the claimant's attorney in which Dr. Matthews wrote the following:

As I stated in that meeting I believe that Mr. Rothschild had a condition of his knee, namely osteochondritis dissecans that was exacerbated and/or aggravated by a work injury. This necessitated an arthroscopic evaluation of his knee by myself and an additional orthopedic procedure at a later date. This individual subsequently has sustained permanent partial impairment of his knee which from time to time with activity causes him symptoms which include swelling and pain. These symptoms are aggravated and exacerbated by the chronic and progressive nature of his condition.

As I discussed with you later employment which supposedly caused Mr. Rothschild to bend, stoop, twist and turn on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. (sic)

Dr. Matthews was asked at his deposition his opinion of whether or not he felt Rothschild was able to work or get a job, and the doctor answered:

"I'll just be completely honest about this. I told Mr. Rothschild at some time, not documented in any of my notes, but I

remember the conversation. 'Charlie, you're gifted; you have carpenter skills. You shouldn't be lifting and pulling heavy objects. You probably ought to be making cabinetry and having a shop and doing that sort of work, but I don't think you ought to be framing and installing and lifting.' And that conversation took place. And, as I say, I tried to counsel him during this process of his knee, and that's where we've left it.

"I think - and this is speculative. I think a contractor that frames houses would have a hard time hiring Charlie Rothschild. However, I think a contractor that has a small cabinet shop or more precise work that is - doesn't have the heavy labor requirements may find his skills beneficial." (Matthews Dp. pp. 47-48) (Ruling: Employer/Insurer Roloff's objection on grounds of Seven Day Rule is overruled. Matthews Dp. pg. 48)

Dr. Matthews was asked what physical limitations, in his judgment, did Rothschild have, and the doctor answered:

"Based objectively on Mr. Rothschild's orthopedic pathologies, which includes two rotator cuff tears - -

"- - right and left rotator cuff tears, and the right knee post osteochondritic dessicant lesion, debridement/degenerative disease - - ....

"His restriction would include moderation of overhead activity. I can't quantify what that means. Less than normal overhead activity because of the rotator cuff disease on the right and left shoulder. Moderation of squatting, stooping, bending, pivoting, and turning on his knee joint. If he does too much activity with any one of those joints, he will become more symptomatic and he will progress his disease." (Matthews Dp. pp. 52 and 52)

On cross examination by Roloff Trucking (See, No. B-1), a September 1999 x-ray report of Rothschild's knee taken about eight days after the August 30, 1999 work related accident in Dr. Matthews' record was noted; Dr. Matthews stated that findings on this x-ray of -- an osteophyte from the superior pole of the patella, some calcification seen at the attachment of the muscle at the patellar region and narrowing of the medial femoral/tibial joint space were all preexisting conditions that could cause pain or other symptoms; the doctor stated that in regards to two small calcific densities on the tunnel view and the tunnel itself seen on the x-ray, no one knew if this was a preexisting condition, but further stated that it could cause pain or discomfort. Dr. Matthews agreed that the radiologist's conclusions on the September 1999 x-ray report -- that Rothschild had osteoarthritis of the femoral patellar and medial femoral/tibial joint space -- were pre-existing conditions. Dr. Matthews agreed that the OCD condition in the knee that he found had been present in Rothschild's knee for years prior to when the September 7, 1999 had been taken. The doctor agreed that the arthritis and the OCD are progressive degenerative conditions which are not necessarily caused by trauma and can develop even in the absence of trauma. Dr. Matthews was queried - would he have expected there to be any significant difference in the x-ray appearance if an x-ray had been taken the day before the August 30, 1999 accident as opposed to this x-ray that was taken on September 7, 1999. "I would not expect there would be any difference, Dr. Matthews answered. (Matthews 11/19/04 Dp. pg. 75) (Ruling: Second Injury Fund's objection is overruled. Matthews 11/19/04 Dp. pg. 75) The doctor was queried, wasn't it true in his practice that people who presented to him and were found to have OCD presented without a history of any trauma. Dr. Matthews responded:

"I would say that is true that they present in the absence of trauma, and they also present in the absence of symptoms, and that the finding of OCD is usually a radiographic finding that, Oh, look what we found. So most of the people that present with OCD don't present because their knee is really bothering them that much or - they're just not symptomatic." (Matthews 11/19/04 Dp. pg. 78) (Ruling: Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 77-78)

Dr. Matthews stated that the chondromalacia found at the time of his second surgery would not have been caused by the first surgery in January 2000. Agreeing that the osteoarthritic condition and the OCD lesion were present in the knee before August 30, 1999, Dr. Matthews further testified:

"...I would just state that the progression of (the osteoarthritic condition and the OCD lesion) would aid in the progression of the chondromalacia in so far as small fragments of cartilage deteriorating from degenerative joint disease or osteoarthritic and/or the OCD essentially swim around in someone's joint and they cause abrasion to the end of the bone and/or joint." (Matthews 11/19/04 Dp. pg. 79)

The doctor was asked if the OCD condition in Rothschild's knee would have continued to progress in the absence of an accident on August 30, 1999. "The condition would progress in absence of trauma", Dr. Matthews answered. (Matthews 11/19/04 Dp. pg. 80) Dr. Matthews stated that he would not classify the OCD in Rothschild's knee as severe. "I think the severity, in my mind, would be based on sort of the end stage aspect of that disease process, and I don't think Mr. Rothschild's disease in his knee is end stage." (Matthews 11/19/04 Dp. pg. 82) (Ruling: Second Injury Fund's and Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 81-82)

During cross examination by Roloff Trucking, Dr. Matthews agreed that he changed his 10/22/99 office note concerning Rothschild's right knee that "He has had off and on problems in the past" in October 2002 to "He has never had problem in the past"; when asked if he was saying

Rothschild had never made this statement in October 1999, Dr. Matthews responded - "No. I am telling the world that Mr. Rothschild believes that the way the history was recorded was incorrect in regards to him having problems on and off in the past." (Matthews 11/19/04 Dp. pg. 89) Dr. Matthews stated that he tries to be careful when he takes a history from a patient, "but I get bits and pieces of patients' histories incorrect all the time, and I write notes to myself, but things get dictated incorrectly". (Matthews 11/19/04 Dp. pg. 89) The doctor admitted - "I think it would be unusual" - to get something like this incorrect. (Matthews 11/19/04 Dp. pg. 89) Dr. Matthews stated that if Rothschild had complained of the history within a month of his interaction with Rothschild and he had remembered the office visit and the specifics that were gone over, and it contradicted what he remembered Rothschild telling him, he would not have changed it. "However, this has been now three years later, and I can't remember the interaction", the doctor said. (Matthews 11/19/04 Dp. pg. 92)

Dr. Matthews stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about.

On cross examination by Karst Construction Company, Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of any objective findings intraoperatively. Dr. Matthews agreed that he had reviewed the surgical note of Dr. Haupt for the surgery performed later in 2000, and that surgical noted reflected a progression of problems in the knee from the June 2000 surgery. The doctor noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) The following testimony then occurred:

Q. Now, Dr. Matthews, in later reports, you used words such as aggravated, exacerbated, and accelerated to describe the connection between Mr. Rothschild's subsequent employments, after Roloff Trucking, to the progression of his disease, the progression of his OCD, and the problems in his knee. Okay. By aggravating, exacerbating, accelerating, do you mean that these particular physical activities caused him to be symptomatic, or do you mean that there was a particular objective change that was directly caused by these particular activities in the knee?

Or both?

A. I would state both.

Q. Could you point at anywhere in your record to places that would show us, okay, where a subsequent employment can be directly related to any objective findings in the knee?

A. Probably not. (Matthews 11/19/04 Dp. pp. 105 and 106)

During cross examination by Karst Construction Company, the following testimony occurred:

Q. Let me turn to the right shoulder just for a minute, doctor. It's my understanding that Mr. Rothschild gave you a history with regard to this right shoulder, and that history was in your - it was in other records, but it 's also in your......9/29/2003 report. And you indicated that - and you recorded in that report that Mr. Rothschild had told you that his knee had given way and he had fallen at home injuring his right shoulder; is that correct?

B. If that's what the report says, yes.

R. Doctor, anywhere in your previous encounters with Mr. Rothschild, had you recorded any incidences of instability or his knee giving way?

B. No, I don't think so.

R. Do you recall ever putting anything like that in any of your reports as a complaint that Mr. Rothschild had about his right knee?

On cross examination by Integrity Installations, Dr. Matthews was asked to explain the surgery performed by Dr. Haupt:

"That involves either obtaining a cartilage and bone graft from the patient himself, usually from a nonweight bearing area of the same knee, and transferring that where the OCD lesion and/or a lesion on the weight bearing surface on the end of the femur would be, or in larger lesions, sometimes cadaveric specimens are used to transfer.

"You're trying to repair a defective area that doesn't have cartilage coverage, and the underlying one in this case, because of the OCD process, is also lacking...." (Matthews 11/19/04 Dp. pg. 109)

This procedure performed by Dr. Haupt can be a permanent solution to this condition, Dr. Matthews said, but it was not in Rothschild's case. Dr. Matthews stated that this procedure by Dr. Haupt before January 2002 "could explain some, yes," of the difference seen in the knee between the January and September 2002 visits. (Matthews 11/19/04 Dp. pg. 110) Dr. Matthews was queried as to what problems was he referring to in his January 15, 2002 letter in which he had written the possibility for future treatment, and he had specifically mentioned that Rothschild might require a total knee replacement. The doctor explained:

"Well, I probably was referring to the fact that the progressive nature of the disease, future office visits, future injection therapy, conservative management, the use of anti-inflammatory medications and/or surgical events that will, you know, undoubtedly more than likely happen.....Including total knee arthroplasty." (Matthews 11/19/04 Dp. pg. 111)

The doctor agreed that this future treatment would be because of the progressive nature of Rothschild's condition. When again queried if the progressive nature of the condition was going to happen without regard to activities, Dr. Matthews responded - "(I)n so far as, the activity will, in my words, exacerbate and/or accelerate the condition". (Matthews 11/19/04 Dp. pg. 111) The doctor admitted that the condition was going to get worse "with just activities of daily living, getting in and out of the car, driving, walking". (Matthews 11/19/04 Dp. pg. 112) Agreeing that it was his stated belief that in someone who does moderate activity or works as a laborer the condition would progress faster, Dr. Matthews further stated - "I don't know if it would precipitate it....Progress it, yes". (Matthews 11/19/04 Dp. pg. 112) The doctor agreed that the work as a laborer would cause this progression to come about sooner than expected. Dr. Matthews agreed that in his May 15, 2002 report he again talked of the possibility for a total knee replacement and that again he had mentioned a progressive, degenerative problem with the knee. It was noted that in a September 17, 2002 report to the claimant's attorney, Dr. Matthews had discussed the work injury of August of 1999 which exacerbated the allegedly preexisting condition the OCD lesion and that he stated that now in September 2002 Rothschild was still dealing with the same condition and the sequela of that diagnosis; Dr. Matthews was asked to explain what he meant by this, and the following testimony occurred:

B. That means that, given this man's preexisting OCD lesion and factoring in his activities had, again, I'll use this word, the totality of his employment and these different traumas that he's had, he's still dealing with the aftermath of having this condition.

R. Okay. Now, you are referring to the August of 1999 injury, and now you are using the word traumas plural. Did the patient ever tell you that he had more than one direct trauma?.....To the knee.

B. I guess I would use the trauma in the cumulative sense. One specific trauma, the truck injury and fall, I guess that's what I was referring to.

R. To paraphrase your statement here, this is still one condition. And when you say he's still dealing with the sequela of that original diagnosis or condition - -

B. Yes.

R. - - are you saying it's an ongoing thing dating back to the first time that condition was either noted or diagnosed?

B. Correct.

R. Do you have anywhere in your records where Mr. Rothschild ever told you that any of the subsequent employments, specifically any activities, specific activities at those jobs, were causing a further problem to his knee?

B. Not specifically, no, I don't believe.

R. Is there anywhere in your records during your, I guess, three years or so treatment of this gentleman, that he even told you anything about who - - who he worked for or what he did?

B. No.

R. Over the three years, did he ever tell you about any of the subsequent employments, again after the August of 1999 injury?

B. I vaguely remember some discussion about him being a trim carpenter, but not employers and/or employment and/or where, no.

R. Never identified the employers?

A. No. (Matthews 11/19/04 Dp. pp. 113-115)

Dr. Matthews further stated that Rothschild never specifically told him what he did as a trim carpenter for any of these employers.

On cross examination by BAM Construction, Dr. Matthews stated that there are different grades of OCD. "I would classify them in four stages, and (when I first saw Rothschild) he had a grade four", the doctor stated. (Matthews 11/19/04 Dp. pg. 116) Indicating that Rothschild's OCD was not as bad as it could be, Dr. Mathews explained: "The worst grade would be if the lesion has come out of the pocket or the area where it - - if it had broken off and was swimming around the joint and then the hole was left empty". (Matthews 11/19/04 Dp. pg. 116) Rothschild's was, though, "an end stage type lesion, yes", the doctor said. (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that in his experience, people's memories change over time, so their histories can change as time goes by.

On cross examination by the Second Injury Fund, it was noted that Dr. Matthews had written to the claimant's attorney in a May 15, 2002 letter - "The patient has stated he has had no problems with his knee prior to the work injury, which is consistent with a stable OCD lesion." When asked if this was still his opinion today, Dr. Matthews answered - "Yes". (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that the conditions seen on the September 7, 1999 x-ray could have been asymptomatic. The doctor agreed that the osteochondritis dessicant can also be asymptomatic; Dr. Matthews agreed that the condition could be in the early stage and then a severe trauma is sustained and then the condition goes into level four; the doctor agreed that the OCD could trigger the exacerbation of other pathologies in the knee including the osteoarthritis. October 22, 2003 was the last time I saw Rothschild, Dr. Matthews agreed. When asked, wasn't it your opinion at that time that Rothschild eventually might need a knee replacement but he wasn't at that stage yet, Dr. Matthews answered - "That's correct.". (Matthews 11/19/04 Dp. pg. 120)

On redirect, Dr. Mathews stated that to his knowledge he had not seen any medical record in which Rothschild had made complaints referable to the right knee prior to August 30, 1999. The doctor agreed that if the findings disclosed by the x-ray of the osteophyte, the osteoarthritis, the narrowing, the findings of the right knee were there prior to Rothschild's falling off the truck, to his knowledge there is no history that Rothschild had sought any treatment for problems with these conditions. Denying that a fall from the truck could have entirely caused the 20 percent of the medial femoral condyle that needed to be surgically treated by him, Dr. Matthews testified that "a fall from a height, as you've described, could aggravate a preexisting OCD lesion and make it symptomatic". (Matthews 11/19/04 Dp. pg. 124) The doctor was asked - even if Rothschild had the asymptomatic condition before, wasn't the fall off the truck the cause for his ongoing problems since then, including the surgeries, everything? Dr. Matthews answered:

"I would not characterize it as such. I would - -

"The fall off the truck brought to light the condition that Mr. Rothschild had in his knee. I'm not going to give a percentage on what that fall off the truck led to. I don't think I have that crystal ball to be able to do that." (Matthews 11/19/04 Dp. pp. 126-127)

The doctor was queried, if Rothschild had had those changes seen on the September 1999 x-ray and had not had the fall off of the truck in August 1999, would he have still had to have three surgeries by January of 2000. "In all likelihood he would have ended up with a surgical event", Dr. Matthews responded. (Matthews 11/19/04 Dp. pg. 127) "I can't give you a time frame", the doctor said, but admitted that it could be a year or 20 years. (Matthews 11/19/04 Dp. pg. 127) Dr. Matthews agreed that he felt the trauma of falling off of the truck aggravated the preexisting arthritic condition in the right knee, and agreed that only after that aggravation occurred did the three surgeries occur. The doctor agreed that when he did the surgery he found loose material in the knee, and stated that that could be from the trauma to the knee.

During redirect, Dr. Matthews was asked his opinion of whether or not Rothschild could work based on his medical history, and the doctor responded: "It is asking me to render a vocational opinion, which I do not have the expertise to do. I don't know if he's employable or not." (Matthews 11/19/04 Dp. pg. 134)

Dr. Raymond Cohen, D.O. testified by deposition on behalf of the claimant. (No. A) The doctor agreed that he reviewed medical records and independent medical evaluation reports, and reviewed the 03/16/04 deposition of Rothschild as part of his evaluation of Rothschild.

It was agreed and stipulated to by the parties at the deposition, that Dr. Cohen would testify in accordance with his curriculum vitae and his two reports dated January 15, 2004 and (June) $\underline{[4]} 22,2004$ and the doctor's reports were admitted into evidence. (See, Cohen Dp. pp. 6-7) In his January 15, 2004 report, Dr. Cohen wrote of Rothschild's August 30, 1999 work related injury to the right knee and left shoulder upon falling approximately 12 feet off of a truck while working at Roloff Trucking. Subsequent treatment Rothschild received was discussed by Dr. Cohen, including that Rothschild had two surgeries to the right knee in early 2000 by Dr. Matthews and a third surgery to the right knee by Dr. Haupt in October 2000. "Dr. Haupt released him and in March, 2001 he returned to work", Dr. Cohen wrote. Rothschild's subsequent employments as a carpenter at Karst Construction, BAM Construction and Integrity Installations were briefly discussed by Dr. Cohen; Dr Cohen noted Rothschild's comments that several months after falling off of the truck he began to have pain in the left ankle from favoring the right knee; the doctor noted Rothschild's comments that the pain and symptoms in the right knee, left shoulder and left ankle increased from the labor work at each of the subsequent employers. Dr. Cohen noted Rothschild's history that "(I)n July 2003, while at home his right knee gave out on him and he fell and injured the right shoulder". Dr. Cohen's physical and neurological exam findings on January 15, 2004

The gait was slow and the patient favored the right knee and left ankle when he ambulated....The left knee was unremarkable. The right knee revealed marked crepitus with range of motion testing. He was diffusely tender to palpation over the knee. A mild effusion was noted. Extension was to -5 and flexion was to 120. Anterior drawer was 1+ positive. McMurray's revealed increased joint pain medially and laterally. The quadriceps were weak at 4/5. The left shoulder revealed a positive impingement sign. Abduction was reduced approximately 30 % of expected normal. The rotator cuff muscles were weak at $4+/ 5$. The right shoulder revealed a positive impingement sign. Abduction was reduced approximately 40 % of expected normal. The rotator cuff muscles were weak at $4 / 5$. The right ankle was unremarkable. The left ankle had a mild effusion. He had a loss of motion of the left ankle of approximately 10-15 degrees in all directions....

Dr. Cohen wrote the following in his January 15, 2004 report as the diagnosis regarding the primary work-related injury of 8-30-99:

1. Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear.
2. Left shoulder rotator cuff tendon tear and impingement.
3. Due to a compensatory gait, he has left ankle instability with chronic tendonitis.
4. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition.
5. Due to the right knee giving out at home on or about July 2003, he has a right shoulder rotator cuff tear.

Dr. Cohen wrote of his conclusions regarding the primary work related injury in the January 15, 2004 report:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99.

It is further my medical opinion that within a reasonable degree of medical certainty, he is going to need additional treatment in the future. He is going to need a total right knee joint replacement. Generally these last 7-15 years and more likely than not, he is going to ultimately need a second total knee replacement. Also, he needs to see an orthopedic surgeon for consideration for surgery on both of his shoulders.

It is my medical opinion that within a reasonable degree of medical certainty, he was temporarily totally disabled from December 2001 through August 2002 due to the significant pain that he was having in the above noted areas of his body.

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

At the level of the left ankle, it is my medical opinion that within a reasonable degree of medical certainty, he has a 30 % permanent partial disability at the level of the left ankle, of which 15 % is due to the injury on or about 8-30-99 and the remaining 15 % is due to the three overuse disorders.

He has a 35 % permanent partial disability at the right shoulder. The 35 % at the right shoulder in my medical opinion is due to all four of the claims and would be divided in the same percentages that I had previously stated referable to the right knee.

It is my further medical opinion that within a reasonable degree of medical certainty, his pre-existing conditions or disabilities combine with the primary work-related injury to create a greater overall disability than their simple sum and that due to this combination of disabilities, Mr. Rothschild is permanently and totally disabled and not capable of gainful employment. It is further my medical opinion that his pre-existing conditions or disabilities were a hindrance or obstacle to his employment or re-employment.

In a Supplemental Rating Report, dated June 22, 2004, Dr. Cohen wrote that he had had an opportunity to review additional records consisting of Rothschild's deposition taken on 03/16/04, and a 06/02/04 IME from Dr. Rende. Dr. Cohen noted Rothschild

relayed that in regard to the 8-30-99 injury he also injured his left foot; Dr. Cohen further wrote - "As he was favoring his right knee, he was putting increased pressure on his left foot and ankle and the pain progressively became worse. According to the patient, he had x-rays taken of the left foot and ankle by Dr. George and he was told that he had a spur. He continues to have pain in the left foot and ankle." Dr. Cohen noted Rothschild's relayed history in regards to his subsequent employment after Roloff Trucking and his symptoms:

He states that prior to his employment at Karst which began in March 2001, his symptoms were pain in the right knee and left shoulder. He was receiving physical therapy for his shoulder at the time of his employment at Karst. He states that the right knee was giving out on him. He had a sharp ongoing pain in the right knee. He had fallen several times from the knee giving out on him.

He states that he began his employment at BAM Construction in October 2001 and worked through December 2001. He states that subsequent to December 2001, he was off work for a few months due to a lack of available work for him.

He believes his employment at Integrity Installations began around May through July 2002. Please note in my report of 1-15-04, it states that his employment was through July 2003. This should be July 2002. He believes that he was at Integrity less than three months as far as he can recall.

His was last employed in September 2002. He has been unemployed since.

In his June 22, 2004 supplemental report, Dr. Cohen discussed Rothschild's complaints and noted that a repeat exam revealed no changes. My medical opinions on Mr. Rothschild remain as is per the report of 1-15-04, Dr. Cohen wrote.

At his deposition, Dr. Cohen was asked if it was his opinion that Rothschild is permanently and totally disabled, and the doctor answered - "Yes". (Cohen Dp. pg. 7) (Ruling: Employer/Insurers' and Second injury Fund's objections are overruled. Cohen Dp. pg. 7)

On cross examination by Roloff Trucking, Dr. Cohen stated that he met with Rothschild initially on January 15, 2004 and requested a second time on June 22, 2004 for a second evaluation. Explaining the purpose of the second evaluation, Dr. Cohen stated that as best he could recall he "was uncomfortable with the dates of all of the various employers after 8/30/99", and Rothschild "came back for me to see if I could figure out the dates of those employers". (Cohen Dp. pg. 10) During redirect examination, Dr. Cohen stated - "That's correct" - that he was the one who wanted the subsequent June 2004 exam of Rothschild after having canceled an earlier deposition, the claimant's attorney had nothing to do with him doing a second exam of Rothschild. (Cohen Dp. pg. 132) The histories as to the employments were basically the same, the doctor said. Dr. Cohen further explained the reason for the second evaluation was this "is a more difficult situation because of the large number of claims or employers and claims". (Cohen Dp. pg. 13) The doctor was queried as to what was Rothschild's job at Roloff Trucking, and Dr. Cohen responded - "I believe he was a carpenter with the other employers, and I thought he was with Roloff; I'm not sure". (Cohen Dp. pg. 17) The doctor stated that for determining medical causation between an accident or an occupational disease it would make a difference with respect to the job duties "(I)f it's an occupational disease, then that would be, of course, important, yes". (Cohen Dp. pg. 17) Agreeing that a person's job duties have a significance in determining whether an employee is permanently and totally disabled, Dr. Cohen testified as to the result of Rothschild being permanently and totally disabled: "In his case, it's a result of the pain and dysfunction he has in his shoulders as well as his right knee and the left ankle and due to the chronic pain that he has in those joints, all of that." (Cohen Dp. pg. 18) Dr. Cohen agreed that he is not a vocational specialist. When asked from what jobs was Rothschild permanently and totally disabled, Dr. Cohen answered: "When I put in my report, from a medical perspective, a permanent total, that means I do not feel he could do any type of job, including sedentary or any other - any type of 32-hour-a-week job." (Cohen Dp. pg. 20) Stating that he did not believe Rothschild could do sedentary work, light labor, moderate or heavy labor work or any type of work, Dr. Cohen further said - "So I believe that whatever he's doing at Roloff that had to have him up on the truck where he fell is beyond sedentary work". (Cohen Dp. pg. 22)

During cross examination by Roloff Trucking, Dr. Cohen testified about his understanding of Rothschild's duties at Karst: "He stated that he had to nearly constantly carry heavy materials and that he did a significant amount of bending, lifting, and squatting." (Cohen Dp. pg. 22) Explaining why it was important to learn about Rothschild's duties at Karst, Dr. Cohen testified:

"Because, in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." (Cohen Dp. pg. 23)

Dr. Cohen noted Rothschild's duties at B.A.M.: "He stated he had to do a lot of lifting of cabinets and doors and various types of equipment, and, I believe, in one of the depositions, he also went into a little bit more detail about that job. "(Cohen Dp. pg. 25) Dr. Cohen stated that some of Rothschild's job duties at Karst were heavy labor job duties, and at B.A.M. were heavy labor duties. The doctor discussed his understanding of Rothschild's job duties at Integrity Installations: "He stated he worked there as a carpenter and that he did a lot of repetitive work. And, I believe, also, that's described in his last deposition. My understanding, though, was, that was not a heavy labor work, as best I can recall." (Cohen Dp. pg. 26) Dr. Cohen was shown the First Amended Claim for

Compensation against Integrity Installations filed by the claimant with the Division on September 13, 2003, and it was noted that the Claim stated the following description of what Rothschild was doing when the injury occurred - "Doing repetitive carpentry work and erection of display cases, attempting to carry heavy objects, including cabinets, carpentry equipment, and display case...". Dr. Cohen stated that he had seen this Claim form; when asked if this was consistent with what Rothschild had told him about his job duties at Integrity Installations, Dr. Cohen answered: "As far as the carrying heavy objects, that is different than what I understood from him when I saw him.". (Cohen Dp. pg. 27) The doctor agreed that assuming the statements in the First Amended Claim were correct, he would consider Rothschild's duties at Integrity Installations heavy labor type work. The doctor was asked if this changed any of his opinions, and Dr. Cohen answered: "I believe the last three employers were a repetitive type trauma, so whether it was heavy or not, all of those can contribute to an overuse disorder, so it really wouldn't change my opinions." (Cohen Dp. pg. 28)

During cross examination by Roloff Trucking, Dr. Cohen stated that he had reviewed all of the medical records he had listed in his reports. The doctor was queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle. Dr. Cohen answered that he did not remember, but further testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." (Cohen Dp. pg. 31) The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. The doctor was queried if his opinion as to disability for the left ankle would be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001. Dr. Cohen answered:

"That really wouldn't change my opinion, because it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk. So if he had a serious injury to his knee from the original injury and was limping or favoring it, that would still go back to the original injury if he did not have an acute injury to the ankle at the time when he fell." (Cohen Dp. pp. 36-37) (Ruling: Claimant's objections are overruled. Cohen Dp. pp. 34-36)

Dr. Cohen was further queried if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, and the doctor responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." (Cohen Dp. pg. 37)

Rothschild's left shoulder injury was an acute injury in August of 1999, Dr. Cohen said, the acute injury was from the fall with subsequent finding on the MRI of a rotator cuff tear. Dr. Cohen stated that he did not recall at that time of his deposition if in the records surgery had been recommended for the left shoulder. The doctor stated that he had recommended surgery in his report, and it was his opinion the surgery would probably improve the condition of Rothschild's left shoulder. Dr. Cohen agreed that it was his opinion Rothschild sustained an acute injury to the right knee in the August 1999 fall. Agreeing that he has recommended a total knee replacement to the right knee, Dr. Cohen stated that this was based on severe pain in the knee, the findings in the knee and the medical situation that it is a bone on bone situation. The doctor was asked when in his opinion did Rothschild become a candidate for a total knee replacement, and Dr Cohen answered:

"That time frame would be sometime in 2002 at the point that the knee progressively became more painful and that it appeared clear that he was not going to improve regarding the condition from the knee without the knee joint replacement." (Cohen Dp. pg. 40)

It was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "......I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Assuming that Dr. Matthews' note was correct that Rothschild did have a preexisting condition of osteochondritis dissecans, Dr. Cohen further stated: "...I don't feel, from a medical perspective, that he had any preexisting disability since it didn't bother him. He may or may not have had that condition, but assuming he even had it, it didn't appear to cause any dysfunction in the knee. So I don't find any disability unless he had a severe case of that, then it could have led to some preexisting disability." (Cohen Dp. pg. 48) The doctor was asked if he was now testifying that there may actually be some preexisting disability to the right knee, and Dr. Cohen responded: "I would give a small percentage of disability if it is shown that he had some type of preexisting condition to his knee before that (August 1999) injury." (Cohen Dp. pg. 50) (Ruling: Second Injury Fund's objection on grounds - asked and answered - is overruled. Cohen Dp. pg 50) Dr. Cohen was asked to testify as to what his opinion of this disability would be, the doctor answered: "Approximately 2 to 3 percent." (Cohen Dp. pg. 53) (Ruling: Second Injury Fund's objection is overruled. Cohen Dp. pp. 50-51; and Claimant's objections are overruled. Cohen Dp. pp. 51-52)

Dr. Cohen was asked to explain what in his opinion caused the need for the total knee replacement: "The need of the total knee joint replacement is due to the acute injury as well as the repetitive or overuse injury that he has had to his knee, all of that." (Cohen Dp. pg. 54) The doctor agreed that he thought it was due to the combination of the acute injury and the subsequent employers. (Ruling: Claimant's objection is overruled. Cohen Dp. pg. 54; Second Injury fund's objection is overruled. Cohen Dp. pg. 54)

On cross examination by Karst, Dr. Cohen agreed he was aware that after working for Karst Construction, Rothschild went immediately to work fro BAM Construction, there was no separation between these two employments. Dr. Cohen agreed that there was a clarification in his June 2004 report that in his opinion he no longer believed that Rothschild was temporarily disabled between December of 2001 and when he went to work for Integrity in August 2002 because during this time period Rothschild was off work due to lack of available work. The doctor further agreed that when reading Rothschild's deposition, he saw where Rothschild had said during this period of December 2001 through when he went to work for Integrity in August 2002 he had been exercising and looking for work, and thus more proof that Rothschild was not temporarily totally disabled during this period.

Dr. Cohen agreed, during cross examination by Karst, that he has no training and no experience in vocational rehabilitation. The doctor stated that as a neurologist he did testing of Rothschild's mental abilities and his mental abilities were normal; Dr. Cohen agreed that based on his assessment he did not see any obstacle or impediment to employment or vocational training in regards to his mental abilities.

During cross examination by Karst, Dr. Cohen agreed that in January of 2004 he made the recommendation for a total knee replacement based on x-rays taken in 2002. Stating that he was not in the practice of recommending such significant surgery without performing more recent radiographic studies, Dr. Cohen explained his decision in this case in the following testimony:

B. He already had severe joint space narrowing at the time I saw him, and it was clear that any x-rays taken at that time would show advanced osteoarthritis of the knee. It wouldn't show an improvement. It would only show either what he already had before or a deterioration.

R. And, most likely, a progression of symptomatology; is that correct?

B. Yes.

R. In fact, when you take a look at the three surgeries that were done on the employee's knee in 2000, the first two by Dr. Matthews and the third by Dr. Haupt, those three reports actually show a significant progression of degenerative problems in his knee, don't they?

B. Yes.

R. Would there be any reason to believe that that degenerative condition wouldn't continue to progress in that right knee?

B. It would progress.

R. It would progress pretty much no matter what the employee was doing; is that correct?

B. More likely than not, it would have. (Cohen Dp. pp. 65-66)

Dr. Cohen further stated, though:

"In a repetitive trauma type case or overuse type case to the joint, the overactivity or overuse or stressing of the joint leads to increased deterioration of the joint, and that is included in my thoughts when I assess a part of the body that, from the continued stress or damage to the joint, that it is a progressive condition." (Cohen Dp. pp. 68-69) (Ruling: Claimant's objections are overruled. Cohen Dp. pp 67-68)

The doctor was queried, wasn't it impossible to determine how much of the continued problems in the claimant's right knee, after the original accident, were the result of a natural progression of degenerative changes, activity, work, recreation, etc? Dr. Cohen answered:

"Well, it is quite possible to define his situation, based on the fact that he did have significant problems after the first injury, but by his history and doing this type of physical work, the condition increased. So talking about him alone, the medical course of this is that it progressed from the type of work that he was doing superimposed upon a bad injury." (Cohen Dp. pg. 70)

Dr. Cohen agreed that the history he received from Rothschild was that his right knee complaints got substantially worse after each of the subsequent employments. It was noted that Dr. Cohen had stated earlier that weight was a factor in degenerative changes in Rothschild's knee; when asked if he had put Rothschild's height and weight in his reports, the doctor answered - "No, I didn't." (Cohen Dp. pg. 72) Dr. Cohen stated that he did not recall Rothschild's weight or height. The doctor agreed that if the records reflected Rothschild was heavy, 260 pounds, that would also contribute to the general deterioration of the right knee. Dr. Cohen agreed that Dr. Matthews, in January 2002, noted that x-rays at that time showed good joint space, which actually means that in January 2002 Rothschild wasn't bone on bone.

Concerning the left ankle, Dr. Cohen stated that it was his understanding Rothschild's problems began several months after the Augusts 1999 fall from the truck but prior to his returning to work in March 2001.

Dr. Cohen agreed, during cross examination by Karst, that with regard to the left shoulder (as also with the right knee) it was his opinion the subsequent employments lumped together aggravated the left shoulder difficulties Rothschild incurred in 1999.

During cross examination by Karst, Dr. Cohen agreed that he did not have any treatment records for Rothschild during his employment with Karst from March to September, 2001, only an evaluation by Dr. Berkin performed in May of 2001. Dr. Cohen stated that he was not aware of Rothschild losing any time from work as a result of his knee, ankle or shoulder or anything else while working for Karst. Rothschild did not quit working for Karst, Dr. Cohen said, "I recall something in the deposition that they went out of business or closed". (Cohen Dp. pg. 78) The doctor agreed that he was not aware that Rothschild quit working for Karst due to any medical problems or concerns. Dr. Cohen agreed that Rothschild actually went straight to work for B.A.M. after Karst Construction, and after B.A.M. Rothschild was actually available to work all the way up until the Integrity Construction job.

Dr. Cohen stated, during cross examination by Karst, that he did not believe that Rothschild was in need of a total knee replacement in January of 2002. January 2002 was after the Karst employment, the doctor agreed. Dr. Cohen was queried - isn't it correct that the reason for the total knee replacement is the acute injury, the repetitive overuse and the progression of degenerative problems. "That's correct", Dr. Cohen answered. (Cohen Dp. pg. 81)

On cross examination by BAM Construction, Dr. Cohen agreed that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002. Therefore, the doctor agreed, during this period there was no medical taking Rothschild off work for any reason. Dr. Cohen agreed that there was no medical records indicating that Rothschild could not work during the period subsequent to January of 2002 until Rothschild went to work at Integrity in August of 2002.

It was noted, during cross examination by BAM Construction, that in regards to his opinion of permanent total disability for Rothschild as of January 2004, the doctor did not put any restrictions on Rothschild. Explaining why this was, Dr. Cohen stated: "If a patient is medically unemployable, I didn't see any need to put the restrictions in there." (Cohen Dp. pg. 83) Dr. Cohen agreed that there are things Rothschild could do from a physical standpoint, Rothschild is not bedridden. The doctor was asked if he expected Rothschild's condition to change in the future without further medical attention. "He will, more than likely than not, have increased arthritic changes in the knee and in his shoulder and may have increased pain from that", Dr. Cohen answered. (Cohen Dp. pg. 84) The doctor agreed that this was because of the nature of arthritic changes and its progressive nature.

On cross examination by Integrity Installations, Dr. Cohen agreed that Rothschild relayed to him that in regards to the job at Integrity he put up display cases and did a lot of repetitive work.

Dr. Cohen stated, during cross examination Integrity Installations, that he is not an orthopedic doctor. I did have a year internship in which included four months through orthopedics and the rest of the year assisting with orthopedics; this was in 1980 and 1981, the doctor said. I have not had any orthopedic training since then. I am not a surgeon the doctor said.

Rothschild "had significant problems in his knee at the time he began his employment (at Integrity)", Dr. Cohen stated during cross examination by Integrity Installations. (Cohen Dp. pg. 89) The doctor agreed that Rothschild had a significant degenerative condition prior to working for Integrity, and that he would have had a lot of pain, discomfort and difficulty performing activities. Rothschild had evidence of this chronic condition before he came to work for Integrity, Dr. Cohen said. The doctor was asked if he had stated that in a large majority of patients, a degenerative condition such as Rothschild has would probably progress anyway without regard to subsequent activities. Dr. Cohen answered: "Yes. In regard to the knee." (Cohen Dp. pg. 90)

It was noted, during cross examination by Integrity Installations, that at one point in his report Dr. Cohen had indicated that Rothschild had worked for Integrity for approximately 11 months for August 2002 through July 2003, and that at another point in his report he had written it was through September of 2002. "I really don't know" the length of Rothschild's employment at Integrity at the time I issued my report, Dr. Cohen admitted. (Cohen Dp. pg. 92) "I hope I was thinking correctly at that time, based on the claim forms that I had an other records, but I can't remember what I was thinking at that time", the doctor said. (Cohen Dp. pg. 92) The doctor agreed that in his second report he had stated Rothschild worked at Integrity from May of 2002 through July of 2002. When queried, if Rothschild testified that his employment dates were approximately July of 2002 through September of 2002 and that he worked only 29 days during that time, would he have any reason to dispute this. "No", Dr. Cohen answered. (Cohen Dp. pg. 93) The doctor stated that he would have no reason to dispute the employment records if they indicated that Rothschild beginning date at Integrity was July of 2002 rather than May of 2002.

Dr. Cohen agreed, during cross examination by Integrity, that Dr. Matthews in his January 15, 2002 had found that Rothschild had a fairly significant disability to the right knee and said it was 50 to 60 percent; Dr. Cohen agreed that Dr. Matthews' rating in January 2002 was pretty close to what he had found overall in January 2004. It was noted that Dr. Matthews, in his May 2002 report, stated that Rothschild might need a total knee replacement, and this was before Rothschild worked for Integrity; Dr. Cohen agreed that in May 2002 Rothschild suffered from a progressive degenerative condition. Dr. Cohen was queried - so without regard to any subsequent employment after May 2002, Rothschild's knee was getting worse and chances are he was going to need a total knee replacement. "That's correct", Dr. Cohen responded. (Cohen Dp. pg. 96) Dr. Cohen agreed that if subsequent activities

brought on the need for further treatment or a knee replacement a little quicker or sooner than expected then those work activities merely precipitated the knee for that treatment. (Ruling: Roloff Trucking's objection is overruled. Cohen Dp. pg. 97) The subsequent work activities of that time, after May 2002, would have been Integrity Installations only, the doctor agreed. Dr. Cohen agreed that he had testified that it was his understanding when he initially met with Rothschild the job at Integrity was not as heavy labor as the jobs at Karst and BAM. Despite this, Dr. Cohen admitted, he provided an opinion on disability with regard to the three subsequent employments the remaining disability from these three employments was equally divided. "(The job at Karst) (r)egarding the duration or time" Rothschild worked for Integrity was less than at Roloff Trucking, Dr. Cohen stated. (Cohen Dp. pg. 99) "I was assuming that he was working (at Integrity) full-time", the doctor said. (Cohen Dp. pg. 100) Dr. Cohen stated that he had no reason to disagree if the employment records showed that Rothschild worked at Integrity four days some weeks, or one or two days another week. Dr. Cohen testified:

"From my talking to him on two occasions was that they were all about equal as how they affected him. The jobs may have been somewhat different, but they were difficult jobs that caused increased aggravation on this type of joint injury. And the duration there may have been less in time, but as far as the type of work he did as a carpenter, I thought they all were about the same as far as difficult type of work on a joint that is already significantly involved." (Cohen Dp.pg. 108)

Dr. Cohen agreed that he found disability on the original August 1999 injury, and then he found one lump sum additional for the other three employers, he did not separate out that additional disability as to the subsequent three employers. The doctor was asked if he had one incident that he would attribute most of Rothschild's problems to, and Dr. Cohen answered - "The (8)/30/99 injury". (Cohen Dp. pg. 110) (Ruling: Roloff Trucking and Karst Construction objections are overruled. Cohen Dp. pg. 110) (Ruling: Roloff Trucking's objections are sustained, Cohen Dp. pg. 111)

On cross examination by the Second Injury Fund, Dr. Cohen was queried - wasn't it correct that in his review of the medical records he saw no particular injuries while Rothschild was employed at Karst, BAM or Integrity. "Acute injuries, that's correct", the doctor said. (Cohen Dp. pg. 114) Dr. Cohen agreed that Rothschild's symptoms probably further degenerated since his last date of employment. Dr. Cohen agreed that it was his opinion Rothschild would benefit from surgery to the left shoulder. The doctor was asked if he would defer as to whether or not there were any jobs suitable for Rothschild in his condition to a vocational expert, and Dr. Cohen answered - "Yes". (Cohen Dp. pg. 120)

On redirect examination, Dr. Cohen was asked what injury Rothschild had sustained to the left shoulder as a result of the August 1999 fall. "He has an impingement to the left shoulder and a tear of the rotator cuff in the left shoulder", the doctor responded. (Cohen Dp. pg. 125) The doctor was asked if the degenerative changes seen in Rothschild's knee were due to the injuries that he had as opposed to the natural aging process. Dr. Cohen answered:

"The degenerative changes, in Mr. Rothschild's case, are due primarily to the original trauma to those joints and also due to the repetitive work he did, and to a lesser degree to the fact that he's of this particular age group, you could see some. And he is overweight, and that can also cause some of those findings as well." (Cohen Dp. pp. 133) (Ruling: Roloff Trucking objections are overruled. Cohen Dp. pg. 133)

Dr. Phillip George, M.D. testified by deposition on behalf of Karst Construction (Karst Exh. No. 7) Dr. George stated that he is an orthopedic surgeon. It was agreed and stipulated to by the parties that Dr. George would testify in accordance with his June 22, 2004 report. (See, George Dp. pp. 6-7)

Dr. George testified as to his diagnoses after taking a history and complaints, a physical examination and a medical review:

"My diagnoses were: one, post-traumatic arthrosis, right knee, moderately advance; two, complete rotator cuff tear right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromiocalvicular joint; three, rotator cuff tear of the left shoulder with degenerative arthritic changes at the AVC joint; four, early post-traumatic changes at the AVC joint; four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." (George Dp. pg. 8) (Ruling: Claimant's objection is overruled. George Dp. pg. 8)

The doctor was asked his conclusions as to Rothschild's right knee difficulties, and Dr. George answered:

"It was my felling that this gentleman had preexisting osteochondritis dissecans of his right knee and that it was aggravated or exacerbated by the fall of August of '99.

The subsequent surgeries were carried out in 2000. They found evidence of drastic osteochondritis dissecans, which preexisted the injury in question, but in my opinion was made worse by the injury in question. Standard arthroscopic techniques sufficed to moderate his symptoms but did not cure the problem.

It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10)

Dr. George was asked to testify as to his opinions regarding the role of the various subsequent employments:

"The condition of osteochondritis dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employments from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004.

What I mean by a minor contributory factor is that, if a gentleman has a rough spot in his knee, and he goes to work, and even walking from the parking lot into the place of employment, that might make the knee a little sore. He works a full eight-hour day - - a ten-hour day. He does what does. He goes home. It's still sore. I think his work activity had something to do with making the knee sore.

If he had gone to work with a normal knee, smooth surfaces, no osteochondritis dissecans, he might have come to work sore anyway depending upon what he does at the place of employment. If he falls off the top of a cab of a semi, he's going to be sore. That's more or less what I mean by minor contributory factor.

This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." (George Dp. pp. 10-11)

The doctor was asked to state his opinions in regard to the left shoulder, based on his evaluation:

"I felt that that same injury we just discussed, the fall off the top of the cab of the tractor in '99, caused the rotator cuff tear.

The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not want surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that." (George Dp. pg. 11)

Dr. George gave his opinion on causation as to the right shoulder:

"The right shoulder problem was clinically more severe. It had apparently resulted from a fall which had occurred some years - perhaps three to four years after the original injury of '99. The patient, indeed, told me that it occurred at home because his right knee collapsed and caused him to fall.

I simply said that I did not feel the right shoulder problems, even though they were severe, were not the result of any of the work injuries we talked about." (George Dp. pg. 12)

Dr. George gave his opinions in regard to the left ankle after evaluation:

"The diagnosis, which I offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

It was noted that Dr. George had said Rothschild had injured his left ankle in 1999, and the doctor was asked if he was able to find complaints produced in the medical records. Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, the doctor said. Dr. George agreed that his opinion was the same in regards to the left ankle as with the right knee in regards to subsequent employment, that the subsequent employment play only a minor contributory role in the problem. Dr. George was asked to compare the problems in Rothschild's left ankle to his right knee:

"The nature of the difficulty in his joints is, in my view, the result of a systemic problem. Osteochondritis dissecans is a bona fide orthopedic diagnosis. It has a chapter in any orthopedic text. And what it says is we don't know why people get this, but it's very classic and well-described. And this gentleman fits the diagnosis to a tee.

There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle.

What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab." (George Dp. pg. 14)

Dr. George agreed that he has stated that in regards to the surfaces of the ankle and the knee, these could get sore with activity. In

regards to activities such as trucking and whether or not it contributed to any additional problem, Dr. George testified: "I would suggest that those activities would not alter the natural - so-called natural history of this particular condition, which is one of progressive deterioration with advanced pain." (George Dp. pg. 15) (Ruling: Roloff Trucking objection is overruled. George Dp. pg. 15) Dr. George agreed that in his review of the medical records he did not see any significant alteration with the symptoms.

On cross examination by the claimant, the doctor was queried if he was saying osteochondritis dissecans cannot be caused by trauma ever. Referring to what the doctor described as one of the two leading texts for orthopedists, Dr. George answered:

"If you read that, it says this condition is post-idiopathic, doctor talk for we don't know why. But it then proceeds to say one of the, one of the many possible etiologies might be trauma. What I'm referring to is the kind of trauma that occurs if a 14-year-old kid falls off his bicycle or twists his knee playing soccer, those kinds of thins, or a 21-year-old hits a bridge on his Harley, those kinds of things, we think, can initiate the problem.

It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have." (George Dp. pp. 16-17)

Dr. George agreed that even if you have preexisting osteochondritis dissecans, it can be asymptomatic and can be activated or aggravated by trauma. The doctor also testified: "I do think that if you have an osteochondritic knee and you fall off a trailer you can hurt it. Now, what does that mean? That means the symptoms get more severe. Did the fall cause the problem? I don't think so. (George Dp. p. 22-23)

During cross examination by the claimant, Dr. George agreed that in his report he had written the right shoulder problem is more severe and resulted from a fall which occurred three to four years after the original injury to the right knee. When queried, wasn't it correct that the fall occurred because of the right knee gave way, Dr. George responded - "That's what the patient told me." (George Dp. pg. 20) Dr. George gave further testimony:

"What I think I've been saying is that I think the gentleman had an intrinsic problem with his knee, which for convenient sake, orthopedists call osteochondritis dissecans.

It was my opinion that the work-related trauma of ' 99 was a minor contributing factor to this condition. It was my feeling that eh reason he fell, assuming his report to me was the truth, in, I guess, ' 03 or whenever it was, at least three to four years after the original injury when his right knee gave way - it would be my surmise that the knee gave way because of osteochondritis dissecans, not because of any effect of an injury which occurred in '99.

Certainly the effects of that injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans. That presumably is what made his knee give way and hurt his shoulder.

So I'm not - I mean, your reading of that statement is fairly creative from your point of view. From my point of view I would tell you I think it was due to arthritis of his knee." (George Dp. pg. 21) (Ruling: All objections overruled. George Dp. pg. 20)

Dr. George admitted that he had no history of Rothschild's right knee giving way prior to the 1999 accident when he fell off the truck at Roloff Trucking, and that he had no history and saw no medical records of osteochondritis dissecans being diagnosed prior to the fall of the truck at Roloff Trucking in 1999.

On cross examination by Integrity Installations, Dr. George agreed that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current conditions. (Ruling: Roloff Trucking's objection is overruled. George Dp. pg. 28) Dr. George stated that he did not think he saw the report of Dr. Richard Rende.

On cross examination by Roloff Trucking, Dr. George stated if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". (George Dp. pg. 31( (Ruling: claimant's objection is overruled. George Dp. pg. 31) It was noted that the doctor described the left ankle as "early post-traumatic arthrosis of the left ankle", and Dr. George explained what he had meant: "That means I expect it to get worse". (George Dp. pg. 32) It was noted that he had used the term "drastic osteochondritis dissecans", and the doctor was asked if the condition was drastic back in 1999. Dr. George answered: "It was drastic in 2000 when they first started looking in there with an arthroscope? The three operative reports of the two surgeries describe changes which one would have to label drastic, i.e., advanced, long-lasting, severe." (sic) (George Dp. pg. 33) Dr. George gave the following opinion testimony in regards to the claimant's left ankle:

R. Okay. And my understanding is, from reviewing your report, that the claimant's - when you looked at him it appears, one of the symptoms he did is he had a limp on the left, not the right. So is it a fair statement he was limping from the left ankle, not the right knee?

B. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

R. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

B. No.

R. Or the original accident back on August 30, 1999?

B. No.

R. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

B. That's a fair statement.

R. In that you say it was substantially caused by the original trauma of 1999 ?

B. That is correct. (George Dp. pp. 33-34) (Note: Ruling: Second Injury Fund and Claimant's objections are sustained. George Dp. pp. 29, 30 and 31)

On cross examination by the Second Injury Fund, Dr. George agreed that he met with Rothschild personally, and Rothschild did not relay to him any prior injuries or treatment to the right knee before the August 29, 1999 injury. The doctor was again questioned if a patient can have osteochondritis dissecans but no symptoms, and Dr. George's testimony this time was: "Once again, it depends on the degree. If you have osteochondritis dissecans and you have symptoms, you may not go to the doctor about it, but you're certainly symptomatic." (George Dp. pg. 37) (Ruling: All objections overruled. George Dp. pp. 35, 36 and 37) When further queried, don't you recall testifying earlier that a person can have the condition of osteochondritis dissecans but be asymptomatic, Dr. George responded: "I don't recall saying that. I doubt I said that. If I said that, I didn't mean it. What I meant was you can have that condition and not go to the doctor about it." (George Dp. pg. 37) Dr. George agreed that he did not see any preexisting treatment records for the right knee or left ankle prior to the August 30, 1999 injury. Dr. George agreed that he examined Rothschild's left shoulder, and it was his opinion the August 1999 injury caused the left shoulder rotator cuff tear. "As far as I know", the doctor said, Rothschild was pain free in the left shoulder before August of 1999. (George Dp. pg. 38) The doctor agreed that Rothschild told him he had injured his right shoulder at home and not at work. Dr. George agreed that Rothschild did not relay to him any medical history, and he did not obtain any medical history of any problems before August of 1999 to the left ankle; the doctor agreed that Rothschild relayed to him that he had no prior injury or treatment to the right knee before the injury of August 29, 1999. Dr. George stated "(C)orrect" that it was his opinion the osteochondritis dissecans was significantly aggravated or exacerbated by the fall of August of 1999 when Rothschild fell off the trailer. (George Dp. pg. 39)

On further cross examination by the claimant, the doctor was queried if the fall of 12 feet landing on concrete such as Rothschild had could cause severe drastic changes in the kneecap which would show up as osteochondritis dissecans.

"What I'm trying to say is the findings that were reported by the arthroscopist describe a condition which I called drastic. And what I meant by that was advanced degenerative changes in the knee which had been long-lasting. What I mean by that is preexisting August of ' 99 .

If one falls off a 12 -foot truck cab onto any kind of surface, one can damage any of his joints, but that kind of injury doesn't cause what was described by the arthroscopist. What they were describing was far beyond that, something that had been ongoing for probably 20 years and could have been aggravated by the trauma of August of '99, but there would be no way to tell because of all the wreck that had been there before secondary to osteochondritis dissecans." (George Dp. pp. 4243) (Ruling: Karst and Roloff objections are overruled. George Dp. pg. 42)

Dr. George agreed that in his report he had opined - "I consider his present condition to be due to preexisting osteochondritis dissecans aggravated to a significant degree by the trauma from 1999". The doctor further testified: "I agree with that. I mean, I think that's what I've been saying all along," (George Dp. pg. 44) (Ruling: All objections are overruled. George Dp. pp. 43 and 44)

Dr. Richard Rende, M.D. testified by deposition on behalf of Integrity Installation. (Integrity Installation Exh. No. 8) Dr. Rende stated that he is a board certified orthopedic surgeon. The doctor agreed that he evaluated Rothschild on June 2, 2004 on behalf of Integrity Installation and prepared a report. A history was taken from Rothschild which included any injuries and/or treatment, an employment history, the doctor agreed. I was provided various records for review, the doctor stated. Dr. Rende stated that he performed a physical examination of Rothschild. The doctor stated that he would testify in accordance with his report as to this information as well as his findings upon examination. Dr. Rende testified as to his impressions based on the history and the records: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) The doctor was asked to explain what osteochondritis dissecans (OCD) was:

"OCD is a traumatic injury that occurs typically in people anywhere between the ages of 15 to 50 that results in a lesion that forms on the weight bearing surfaces of either the medial or lateral femoral condyle -

"-or in lay terms, the end of the femur bone. It's the part of the femur bone that bears weight. It's etiology is

typically that of either idiopathic or trauma.

"Idiopathic means that there are people who have no known reason for the lesion to occur, but approximately 50 percent of these patients have a history of trauma. There's some theories that it could possibly be a vascular insult that is later dislodged by trauma, but regardless, many of them are traumatic in etiology and it basically results in complete loss of bone and cartilage from the end of the femur from one event.

"It's probably the most devastating of the injuries to the knee because in one fell swoop the patient becomes, as we would say, bone against bone." (Rende Dp. pp. 9-10)

Agreeing that there are different grades of OCD, Dr. Rende explained:

"A Grade I lesion is a lesion that occurs on the radiograph where the bone has lost its integrity but the piece actually does not break away from the end of the femur.

"That has the best prognosis. A Grade II lesion is one in which the piece breaks away partially or becomes unstable. Those can be pinned back in place with a fair prognosis, and then there's a Grade III lesion in which the piece becomes displaced completely and loses its entire blood supply, and those are the poorest prognosis, and that's the type of injury that Mr. Rothschild sustained." (Rende Dp. pg. 11)

Dr. Rende testified as to his additional impressions:

"It was my opinion that the osteoarthritis was directly a result of that particular injury. This was not a repetitive micro-trauma type of injury, and I felt that the gentleman also needed permanent work restrictions, and I went over those in my letter to you." (Rende Dp. pg. 11)

It was noted that Dr. Rende used the term "progressive generative osteoarthritis"; the doctor was asked what relationship, if any, did that have to OCD, and the following testimony occurred:

C. Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with exposed bone and no cartilage.

S. Okay.

C. OCD is a disease where it happens and it's done, it's there. It becomes exposed bone from one injury.

S. And does the progressive degenerative osteoarthritis, was that the result of the OCD injury?

C. Yes. The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results.

S. And that's the natural disease type process from this type of injury?

C. Yes. We call that the natural history of the disease.

S. Would his condition then progress like that without regard to his activities?

C. Yes, that's correct. (Rende Dp. pp. 12-13)

Dr. Rende agreed that he had reached an opinion on Rothschild's ability to work, and stated: "I felt that the patient was able to perform only light duty activities." (Rende Dp. pg. 13) The doctor noted that the restrictions necessary for Rothschild were that he shouldn't be allowed to kneel, squat, climb or lift repetitively over 50 pounds.

Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14) Dr. Rende agreed that he indicated the OCD would have progressed without regard to whatever activities Rothschild was doing. (Ruling: Claimant's objection is overruled. Rende Dp. pg. 14) It was noted that Rothschild was also alleging consequence injuries as a result of the right knee problem to the left ankle and also to the right shoulder from a fall at home at a later time. "I don't believe it had anything to do with his 29 days of employment (at Integrity) that late after his injury", Dr. Rende answered, and agreed that he meant this also as to the left ankle as well.

Agreeing that he felt Rothschild had permanent partial disability to the right knee, Dr. Rende testified: "I felt he had a permanent partial disability of his right leg at the level of his right knee of 30 percent as a result of the osteoarthritis dissecans injury." (Rende Dp. pg. 15) The doctor agreed that this assessment to the right knee was for the overall condition at the time of his evaluation of Rothschild on June 2, 2004. I did not find any disability with regard to the left ankle, the doctor said. Dr. Rende

stated that he did not evaluate the right shoulder, noted from the fall at home.

Dr. Rende testified as to his opinion of whether or not Rothschild needed any further treatment: "I felt that this gentleman would be an excellent candidate for a knee replacement or partial knee replacement." (Rende Dp. pg. 16)

On cross examination by the claimant, the doctor was asked if his recommended restrictions for the right knee was because he thought it would hurt the knee. "Yes, it would make it worse and it would produce significant symptomatology to him", Dr. Rende answered. (Rende Dp. pg. 18) The doctor was then queried - so any kneeling, squatting climbing, or lifting repetitively over 50 pounds would make the knee worse? Dr. Rende responded: "I'm talking about his symptoms when - when you come to a physician, we're human beings, we don't want to inflict pain on someone. And that's the reason I said that." (Rende Dp. pg. 18)

During cross examination by the claimant, Dr. Rende agreed that his opinion the claimant needed either a total or partial knee replacement was attributed to the injury back in August of 1999 when Rothschild fell off the truck.

Dr. Rende stated, during cross examination by the claimant, that osteoarthritis dissecans and avascular necrosis have different etiologies, and explained:

"Avascular necrosis implies more of a vascular damage and it usually is a little more extensive. Osteochondritis dissecans is more of a focal area of loss of blood supply.

"Avascular necrosis is a slightly different disease, it manifests itself similar but it looks different radiographically, it behaves a little bit differently." (Rende Dp. pp. 20-21)

Avascular necrosis does not develop from osteoarthritis dissecans, Dr. Rende said. "The osteochondritis dissecans lesion frequently loses its blood supply but it's a traumatic loss of blood supply because of the loss of the integrity of the subchondral bone", the doctor further stated. (Rende Dp. pg. 21)

On cross examination by Roloff, Dr. Rende stated that half the people in the literature who have osteochondritis dissecans have no history of trauma. "Most of those patients are in the teen age group", the doctor added. (Rende Dp. pg. 23) The doctor stated that he has had a middle aged patient without a history of trauma and have OCD. Dr. Rende was asked what the x-rays would like in a patient without a history of trauma and relays some symptoms of OCD. The doctor answered: "Most atraumatic lesions present as Type I lesions. That means that the radiograph shows a small halo, but the piece that's avascular is still in its anatomic position." (Rende Dp. pg. 24) (Ruling: Claimant's objection is overruled. Rende Dp. pg. 23) The doctor was asked what an x-ray would like in a patient who had preexisting, diagnosed OCD and is subsequently seen with a history that the day before he had an accident; Dr. Rende responded - "It depends on whether the trauma converted it to a Type II or Type III." (Rende Dp. pg. 25) The doctor was asked if it was possible that a trauma could convert a Type I to a type II or a Type II to a Type III. Dr. Rende answered:

"If you look at the literature, most of the Type II lesions have some traumatic history. It's the Type I lesions that typically are more likely - I shouldn't say more likely, they're equally likely to have trauma or not, but the displaced lesions, you usually have a history of trauma." (Rende Dp. pg. 25)

Dr. Rende stated that in Rothschild's case, it would not make any difference if in the August 1999 accident he landed on his feet and twisted his right knee; "(S)imilar etiology or history in treatment", the doctor further said. (Rende Dp. pg. 26) The doctor stated that if a person suffered a traumatically induced OCD he would not necessarily expect a significant amount of pain immediately, but he would expect bleeding of the bone immediately. The doctor was queried if he had also said that OCD even in patient of middle age could be a degenerative type condition. "I wouldn't call it degenerative, I would call it a dysvascular condition", Dr. Rende responded, and explained that "(T)hat means it's an area because of trauma has lost its blood supply". (Rende Dp. pg. 26) (Note: Ruling: Claimant's and Second Injury Fund's objections are sustained. Rende Dp. pp. 27, 28 and 29) Dr. Rende was shown x-rays in the case, and testified as to what a 9/3/99 x-ray revealed as to whether or not this was a traumatically induced OCD versus a preexisting OCD:

"Well, what this x-ray shows is it shows that the base of the lesion is very smooth and sclerotic and it suggests that there's been some separation of the normal vascular bone from the avascular bone below. This suggests that the OCD lesion was, in fact, present for some time." (Rende Dp. pg. 31)

The doctor agreed that the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999. "There's also a very small osteophyte here, but that is really a minimal degenerative change, so -". (Rende Dp. pp. 31-32) The medial joint space looked normal on the 9/3/99 x-ray, Dr. Rende said. The doctor commented on the differences seen on the next x-ray taken on 2/9/00:

"The difference here is that now the loose fragment has been removed and there appears to be significant narrowing in the medial joint space, at least 30 percent loss of height of the medial joint space, relative to the films that were taken preciously." (Rende Dp. pg. 32)

The next x-ray taken on 8/1/00 is essentially the same, Dr. Rende said, "(T)he difference in the two films, the osteophyte that was located in the medial joint space in the prior film, which was two millimeters, is now probably three millimeters." (Rende Dp. pg. 32) Concerning the last x-ray taken on 1/2/01, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." (Rende Dp. pg. 33) Dr. Rende agreed that after viewing the 9/3/99 x-ray , it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33)

On cross examination by Karst, Dr. Rende explained that OCD involves the cartilage that basically forms the end of the femur bone "(A)nd its underlying support structure, a small fragment of bone". (Rende Dp. pg. 34) "You seldom see just the cartilage peeled away, it's usually a little piece of the bone as well as the cartilage that breaks off", the doctor further explained. (Rende Dp. pg. 34) The theory is that "it's actually the bone that's traumatized and it gets loose. The support of the cartilage, which is the bone, comes off with it", the doctor said. (Rende Dp. pg. 34) "The theory is these are traumas, but 50 percent of these don't have a specific history of that", Dr. Rende said. (Rende Dp. pg. 35) The doctor was queried, was it correct that the condition becomes a progressive condition because of the devascularization of the fragment. Dr. Rende answered: "Once the fragment is displaced it loses any little bit of blood supply that it may have had and has to be removed surgically, because it becomes a mechanical blockade to the knee." (Rende Dp. pg. 35) Dr. Rende was asked - is there any question, after reviewing the x-rays, that after this accident of falling off the truck, Rothschild had a Type III OCD lesion. The doctor answered: "Well let me answer this. There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." (Rende Dp. pg. 36) Dr. Rende agreed that from that point on the condition was going to progress, and that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression throughout the year 2000.

During cross examination by Karst, it was noted that Dr. Rende had testified earlier that Rothschild's was not a repetitive micro-injury situation; Dr. Rende was asked to explain what he meant by that and the following testimony occurred:

B. Well the question that was brought to me by the letter that I received is could this have anything to do with his subsequent jobs, and my answer was no. This occurred as an injury and the subsequent jobs didn't have anything to do with it.

R. So subsequently activity - I think you testified to it on direct - can produce some symptoms for Mr. Rothschild, is that correct?

B. Once you've got this you're going to have symptoms and they're not going to go away.

R. But the underlying progress of this disease got set in stone when Rothschild fell off the truck?

B. It got set in stone when that piece broke loose, became a Type III lesion.

R. Okay. And nothing really that he did after that could significantly accelerate or aggravate the underlying condition of OCD?

B. It could have, but it didn't in this case, and the reason it didn't is because of his age. (Rende Dp. pp. 37-38)

Noting the OCD is normally recognized at an earlier time and treated, that most patients he sees are referred to him by pediatricians, Dr. Rende further stated that younger people have a better prognosis than 51 year olds, and 51 is probably the oldest you'll see this. "Most of the Type 3s are break loose as a result of trauma"; "It doesn't have to be a significantly huge trauma to break loose"; "With a Type III, oh yeah, everybody that has a Type III is going to have pain because they lock the knee joint", Dr. Rende testified. (Rende Dp. pp. 38 and 39) Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende explained why: "...because they've got bone on bone, and bone on bone is what happens. It's one of the few conditions in the human body where one day you don't have arthritis and the next day you've got bone on bone." (Rende Dp. pg. 39) The doctor was asked - these activities that cause Rothschild to be symptomatic, they're not changing the underlying nature of his OCD disease are they? "They are not", Dr. Rende answered. (Rende Dp. pg. 39)

On cross examination by the Second Injury Fund, Dr. Rende stated that he did not review any x-rays prior to the 1999 injury, and agreed that it would helpful in actually determining if Rothschild had Type I OCD before the 1999 traumatic injury. Dr. Rende indicated that based on the x-rays he was shown at his deposition "I see that he had OCD of some sort before the event". (Rende Dp. pp. 42-43) Dr. Rende agreed that a person can have the beginning type of OCD and be asymptomatic.

On further cross examination by the claimant, Dr. Rende agreed that he had been shown x-rays that preexisted Rothschild's fall of the truck that was indicating he had OCD. The doctor was referred to the 9/3/99 x-ray, and Dr. Rende noted that it revealed a Type III OCD. The doctor was asked - you can't really say that the Type III lesion was four years old, four weeks old, four months old or four days old, can you, just from the film alone? Dr. Rende answered: "That's correct. The film doesn't tell you how long that piece has been displaced." (Rende Dp. pg. 47) The doctor was further queried - the osteochondritis dissecans displacement could have been a week old. "The displacement would probably match his symptoms", Dr. Rende responded. (Rende Dp. pg. 47) When queried, the type of displacement seen in the 9/33/99 x-ray would be consistent with pain originating from falling off the truck, Dr. Rende answered: "I would say very easily that that would be very painful and his knee wouldn't straighten all the way." (Rende Dp. pg. 48)

During further cross examination by the claimant, Dr. Rende stated that Rothschild needs knee replacement now, and agreed that the need for the treatment is because of the injury in 1999.

On further cross examination by Karst Construction, it was noted that Dr. Rende had testified earlier that after Rothschild fell off the truck, on a scale of 1 to 10 he was a 10 , he was already as bad as he was going to get; the doctor was asked - with regard to subsequent activities, did they aggravate his pain or do they aggravate his underlying condition? "It aggravates his pain and it puts other parts of his body at risk", Dr. Rende answered. (Rende Dp. pg. 55) Agreeing that he meant other parts of his body outside of his knee; "(H)is knee is already as bad as it's going to get", the doctor further said. (Rende Dp. pg. 55) Dr. Rende added:

"Working for 29 days for this guy or 6 months for that guy didn’t make this guy’s knee suddenly need to be replaced. It was the lesion that occurred at his age that resulted in bone on bone, with a snap of the fingers." (Rende Dp. pg. 55)

James E. Israel, vocational rehabilitation counselor, testified at the hearing on behalf of the claimant. I saw Charles Rothschild at my office on July 27, 2004 on behalf of the claimant, Israel said, and the Vocational Rehabilitation Evaluation report was completed on October 14, 2004.

Prior to interviewing and evaluating Rothschild I reviewed medical records and reports, Israel said. Those records, which I certainly will need to refer to my report, include: Orthopedic Associates, Ravi Yadava, D.O., August 3, 1999; HealthSouth TriCounty Surgery, Thomas Matthew, M.D., January 19, 2000 to June 22, 2000; HealthSouth Surgery Center of West County, Herbert Haupt, M.D., January 25, 2000 to January 26, 2000; Missouri Baptist Medical Center, August 4, 2000; Orthopedic Associates, Herbert A. Haupt, M.D., August 1, 2000 to March 20, 2001; ProRehab, P.C., August 3, 2000 to March 7, 2001; England \& Company Case Management Incorporated, July 18, 2000 through May 4, 2001; Neurological and Electrodiagnostic Institute, David M. Peeples, M.D., February 20, 2001; Shawn L. Berkin, D.O., May 9, 2001; Fischer Chiropractic Center, Alfred Fischer, D.C., September 12, 2002; Herman Area District Hospital, October 4, 2002; J. H. Morrow, Jr., D.O., October 8, 2002; Washington Chiropractic Clinic, September 7, 1995 through October 25, 2002; Patients First Healthcare, LLC, Thomas Matthews, M.D., October 20, 1999 to October 28, 2003; St. John's Mercy Hospital-Washington, October 28, 1999 to August 26, 2003; the Division of Workers' Compensation records, September 17, 2003; the deposition of Charles Rothschild, and that includes January 16, 2001 and March 16, 2004; Raymond F. Cohen, D.O., January 15, 2004 to June 22, 2004. Israel noted that subsequent to meeting with Rothschild, two documents became available -- the deposition of Dr. Raymond Cohen taken on July 14, 2004; and also England \& Company Rehabilitation Services, James England report of August 12, 2004.

The evaluation of Rothschild on July 27, 2004 included an interview and there was vocational testing, Israel stated. I interviewed him about his work history, educational background, Israel said, and later on, I looked at the issue of his transferable skills. I administered two tests, the Wide Range Achievement Test and the Purdue Peg Board Test, Israel said.

I was asked to assess Rothschild's ability to compete in the open labor market; what factors in time impacted him adversely as to whether he could work or not, that is work as a truck driver or as a carpenter, and in what time line did these factors have an impact; and essentially how was he vocationally affected as a result of the combination of his condition, Israel testified.

In his October 14, 2004 vocational rehabilitation evaluation report (No. C), Dr. Israel included the following in the Employability Section:

Occupations within these initial guidelines could be found in a limited ranged of sedentary and light strength classification of employment as defined by the U.S. Department of Labor. However, these overall restrictions or guidelines now provide for an excessively narrow range of work capacity within both sedentary and light ranges. Considering these restrictions, Mr. Rothschild is clearly unable to return to his past occupations as a truck driver or carpenter.

The vocational assessment found Charles to have a $12^{\text {th }} grade formal education with current academic skills ranging from the 6^{\text {th }} percentile through the 12^{\text {th }}$ grade levels. His manual dexterity speed when compared to others in the sample population was deficient. He would be a viable candidate for selected alternative vocational education or advanced training options when these specific profile factors are considered, independently of his current overall functional status.

The Employment Statistics Quarterly, Third Quarter 2004, shows the existence of significant numbers of unskilled or semiskilled sedentary or light jobs (e.g. assemblers, order clerks, handpackers, cashiers, etc.) in the local labor market. While Mr. Rothschild's earlier medical guidelines do not categorically preclude all sedentary and light tasks, he is not at an insurmountable disadvantage in seeking and securing those lesser skilled jobs that exist in the local economy. At 51 years old, Charles has not worked in an alternative capacity. He could not apply any of his past background as a truck driver or carpenter. He has now has poor capacity to adapt to work that he has been previously unaccustomed to performing. The types of unskilled or semi-skilled sedentary or light tasks that meet the medical guidelines generally do not afford the degree of latitude and work site accommodations that Charles's physical disabilities would now necessitate.

Therefore, when considering his age of 51 , education current skills, overall physical limitations and pain combined with the job opportunities within his remaining work specifications, he is insurmountable disadvantaged. Charles, without medically determined improvement followed by extensive work adjustment training to rebuild his work stamina and pace, would not have favorable prospects at keeping any job within these medical guidelines. Employers in the usual course of selecting job applicants would avoid hiring an individual with Mr. Rothschild's overall profile in favor of individuals who are more work ready and able. His current overall limitations, pain, educational and work background factors, and required work site accommodations have certainly rendered Mr. Rothschild unable to compete in the pen labor market.

Dr. Israel included the following in the Conclusion Section of his October 14, 2004 report:

Mr. Rothschild had sustained right knee, left shoulder, and left ankle injuries in an accident on August 30, 1999. Following the accident, Charles resumed significant work activity with other employers as noted above until pain forced him to cease all duties in September, 2002

Charles is an older worker (age 51) with a completed high school education. Vocational testing indicated that his academic skills at present are both below and equal to his achieved schooling level several years ago. His manual dexterity speed was deemed to be deficient. Charles is clearly unable to return to his past occupation as a truck driver or carpenter. He does not have vocational skills transferable to other occupations within his current physical capacity. Charles would not currently be able to sustain gainful work within any exertion classification as defined by the U.S. Department of Labor.

Charles Rothschild is disabled from his usual occupation as a truck driver and carpenter as well as from related occupations for which he would be qualified by education and experience as a direct or proximal result of the industrial injury sustained on August 30, 1999. Successive work injuries accrued from ongoing carpentry duties from 2000 to 2002 (as noted in the medical records). Hence, Charles inability to resume substantial gainful activity is the result of medically determined limitations from both primary and pre-existing industrial injuries or conditions.

The work injuries of August 30, 1999 was the beginning of Charles's work impeding disabilities. The further re-injuries occurred in successive employment as a carpenter from 2000 to 2002, had considerably exacerbated his disabilities (as he performed heavy, repetitive tasks). His right knee injury in September, 2002 continued the cycle of general decline of his vocational potential. As several of his carpentry jobs from 2000 to 2002 were of short duration (less than one year), precise discernment of vocational loss is each instance is untenable. However, overall, Mr. Rothschild is indeed disabled by the series of work events as described form 1999 to 2002. Hence, Charles inability to resume substantial gainful activity is the result of medically determined limitations from all related industrial injuries or conditions.

Mr. Rothschild's diminished endurance capability makes it quite unlikely he could sustain any substantial gainful or fulltime job. The cumulative effects of his physical condition, age of 51 , education work background and the special work site accommodations required of prospective employers have placed him at an insurmountable disadvantage. Employers in the usual course of selecting job applicants would avoid hiring an individual with Mr. Rothschild's overall profile in favor of individuals who are more work ready and able. His efforts to locate, apply for, obtain, adapt to, and maintain a suitable job would be replete with obstacles. Under these combined present circumstances, Charles Rothschild certainly cannot compete in the open labor market. (sic)

Israel noted for the record at the hearing that he was referring to and planned on continuously referring to as a source his report and the notes throughout his testimony at the hearing. Agreeing that he had taken data regarding Rothschild's age, Israel stated that he had Rothschild as 51 years old.

Eluding to and relying upon my report at this time, Israel said, Rothschild arrived on time for his scheduled evaluation having driven from his home in Herman, Missouri. Rothschild was referred for evaluation following an injury to his right knee, left shoulder, left ankle, and work-related accident on August 30, 1999, Israel said. He is six feet one inch tall and reported a current weight of 272 pounds, varying between 260 and 304 pounds due to giving up cigarette smoking. Rothschild is right hand dominant, Israel said. He has difficulty with his ability to participate in any enduring activity; he related to the examiner in a cooperative manner; he appeared to put forth good effort during the vocational assessment, Israel testified. He noted Rothschild's primary complaints as indicated in his report, as well as Rothschild's relayed functional limitations. Rothschild's ability to communicate with the interviewer was adequate, Israel noted. Rothschild appeared to be in notable discomfort throughout the course of the evaluation, Israel said. A break was taken after one hour with Rothschild reporting the presence of pain in his right knee; he was able to complete the Wide Range Achievement Test 3, known as the WRAT3 and the Purdue Pegboard Test.

Israel was voir dired on any independent recall he might have of the interview and information regarding Rothschild. Israel admitted that to the last three or four questions he had referred entirely to his report, and had actually read portions of page 2 and Page 3 of the report. Israel noted the things he recalled about Rothschild such as Rothschild standing, and how uncomfortable he was during the interview. But in terms of much of the time line, the kind of jobs he held, who he worked for, I don't recall; I must rely on the records as there's many, many facts in this report. So I am relying heavily on my notes, but I do recall Rothschild, Israel said, and as I see him today at the hearing I certainly remember that interview. Israel testified the questions can cover a very wide

spectrum of work history, education, the sequence of events and medical procedures, and the complexity really does require that I make some reference and would need to rely on these notes as I normally do. It was ultimately agreed and stipulated by the parties that Israel would testify in complete conformity with his report dated October 14, 2004.

Israel discussed Rothschild's background, noting that Rothschild reported his general health to have been good prior to August 30, 1999, the date of his initial work injury; Rothschild did not have any preexisting condition that imposed any discernable work limitation. Charles' present work-impeding difficulties began on August 30, 1999 while in the course of employment with Roloff Trucking, Israel said, and then discussed the work related accident and subsequent treatment. Israel noted Rothschild's subsequent employments as a carpenter and duties in those employments.

Israel noted that Rothschild's Wide Range Achievement Test was below and equal to his achieved education several years ago, it refers to his twelfth grade high school diploma, in 1971, several years ago. Arithmetic at the end of the sixth grade; spelling in the middle of the eighth, but would be the middle of the twelfth grade, there about, his high school education; so that is the point of explanation of below and equal to his prior education.

Israel was asked on what did he base his statement that Rothschild is clearly unable to return to his past occupation as a truck driver or carpenter. I based that on very consistent functional limitations as it relates to both upper and lower extremities, Israel answered, what he can use from his upper extremities, i.e. lifting restrictions, and current limitations affecting both the upper and lower extremities, i.e. the limitations on standing and walking, on pushing and pulling of the upper extremities; these are so severely limiting to what a carpenter would do and a truck driver would do. These limitations easily and singularly eliminate both of those prior physically demanding occupations, Israel said.

Israel was asked why he had said Rothschild does not have the vocational skills transferable to other occupations within his current physical capacity. He has transferable skills by virtue of being a truck driver and a carpenter, but not when he's limited to seven pounds, as an example, with his left hand, and not with the push and pull limitations; not with the type of standing and walking restriction, the various functional limitations, Israel answered. These limitations are very prohibitive, not only on the jobs of a carpenter and a truck driver, but any kind of skill and knowledge that he accrued over the years; he cannot use that within the residual capacity remaining after all these limitations are duly considered, Israel further testified.

On cross examination by Roloff Trucking, Israel agreed that he had found that Roloff had a middle of the twelfth grade reading level which was pretty good. It should be no barrier to many types of jobs as long as you consider the overall profile; yes, it's a constructive score, Israel said. With his eighth grade spelling, it would depends on the job, Israel testified, some jobs require no spelling in which case it's not an issue at all but some jobs require spelling. What I mean is there's many variables, and middle eighth grade spelling is a weak spelling score, but often you could work around it. My conclusion here notes that these overall scores are adequate for some of the entry level, unskilled positions out there, quite a number, Israel stated. He agreed that the same thing would be true even of sixth grade math skills. In fact Rothschild had worked with those scores as a carpenter, as a truck driver, and many others, Israel noted.

Israel agreed, during cross examination by Roloff Trucking, that after Rothschild was placed at maximum medical improvement by Dr. Haupt for the August 30, 1999 injury Rothschild subsequently went to work as a carpenter at a number of much heavier duty jobs than he had while working at Roloff Trucking. Israel agreed that being a carpenter is a much more physically demanding job than truck driving. He agreed that based on his history over a year and a half after being released by Dr. Yadava and Dr. Haupt from the August 30, 1999 injury, and after leaving the employment of Roloff Trucking, Rothschild was able to perform all of those jobs and do the work for those time periods. But also the issue ultimately of his sustainability, does this person last at that job, to constitute gainful employment; so, yes, performance, but sustainability seems to come into the issue here, Israel added. Agreeing that the claimant was employable in the open labor market on the day he left the employment of Roloff, and on the day he began working for Karst Construction Company, Israel further stated as he was working, or as he was making an attempt to go back to work, yes. When further queried if he would also then agree that Rothschild was employable in the open labor market on the day he left Karst Construction Company and the day he began working for BAM Construction Company, Israel responded - I can say this; I was asked to look at his employability at the time I saw him as opposed to those other times. Clearly he went from Karst to yet another one or two jobs actually. So that transfer spoke for itself; that he was working and worked until completion of that time period at each of those respective carpentry jobs, Israel testified. As he worked for the time period that he did, yes, Israel stated, the same statement would be true with respect to when Rothschild left the employment of BAM and began the employment of Integrity - he was employable in the open labor market.

Concerning restrictions he considered, Israel stated during cross examination by Roloff Trucking, I looked at all of the medical records with an emphasis on the most recent records in the past year particularly, or even a year or two that noted what would most directly relate to what limits him. The most recent report was also weighed heavily, and that was Dr. Cohen's of 6/22/04, Israel said. He agreed, though, that at looking at the restrictions in his report they appear to be mainly a combination of Dr. Morrow's and Dr. Cohen's restrictions. Israel was queried as to the reason he disregarded Dr. Matthews', one of the treating surgeons, conclusions that the claimant was capable of working. The latest record of Thomas Matthews is October 28, 2003, and I was referring to the datedness of that 2002 report, that was prior to evaluation or comprehensive assessment of Dr. Cohen in 2004; I didn't have anything later than October 28, 2003 from Dr. Matthews, the most recent was Dr. Cohen, Israel answered. Israel stated

that he had no knowledge of Dr. Matthews' testimony that the claimant should be working -- doing carpentry and perhaps even at his own carpentry shop. I have no knowledge of that, Israel responded. When asked if this would change his opinion at all, Israel responded that he would have to see what Dr. Matthews said and what the limitations are, and what context before he could judge by that.

On cross examination by Karst Construction, Israel was queried about his statement in his report - based on Dr. Cohen's statement that Rothschild is "incapable of gainful employment in the market place", he wrote his opinion - "Well, I based my opinion that he's incapable of employment in the market place on Dr. Cohen's conclusion that he was incapable of employment in the market place." Stating that it wasn't that simple, Israel explained that the vocational assessment takes in many elements that any medical assessment can't. I look at the age, the education, the work experience, the employment, the vocational rehab training possibilities, he said. All of these are factors are what plays into whether or not a transition can be made to alternative employment or not, Israel stated. I defer to the physician to make the medical call, then I make the employment corollary as well from all of the medical records, he said. I looked at all of the records that are outlined, Israel testified, the limitations that were also eluded to by other physicians in earlier time periods; I'm looking at the competing issues of upper and lower extremity, that has a time line as well, I'm looking at the time of carpentry and truck driving duties, the test scores, the educational background, and the potential for readapting to alternative employment. Dr. Cohen is merely the latest, the most recent, Israel said. But just as my report noted earlier physicians and their limitations, for example in 2002 or 2001, these are all part of what are factors in the time line.

During cross examination by Karst Construction, Israel stated that he was not given a copy of Dr. Rende's report or his deposition. Israel admitted that he was not aware that Dr. Rende had evaluated Rothschild as late as June of 2004. Israel stated that he was not aware that Dr. George evaluated Rothschild again in June of 2004, concurrently with Dr. Cohen, and that he was not given any of that information. I was not given transcripts of the two days of Dr. Matthews' deposition to review, Israel stated. Only through October of 2003 is the latest records for Dr. Matthews is what I have, Israel said. I did request an updated medical records, Israel noted, which is why the report came October 14, 2004, having seen Rothschild on July 27th. I needed more records. Israel agreed that the only things he received in response was the deposition of Dr. Cohen and the report of Mr. England. He was queried whether or not it was odd that he did not see any employers' evaluations. I don't look at who had been on the defense or the plaintiff, Israel responded, I look at the issue of a medical person who is a physician, who makes a diagnosis of functional limitations and I don't attempt to get out of that domain and figure whose representing what.

On cross examination by B.A.M. Construction, Israel agreed that in the section of his report entitled "Functional Capacity" there was no reference to anything Dr. Matthews, Dr. Haupt or Dr. Peeples may have said. There certainly was a reading of Dr. Matthews' extensive treatment records up through October of 2003; Israel added. When queried if through some process he picked and chose which of the physicians he was going to use to include their information in the Functional Capacity portion of his report, Israel answered - No, is isn't like a process of picking and choosing; it's all part of the record; there is a timeline. Look at what the limitations are, Israel added, all of them are considered. If I were to quote every doctor that is listed on page 1, it would be a very, very long report, he said, and the point is that all of these were reviewed and considered. What I did was highlight what were the most current limitations that I had, Israel stated.

The emphasis that had the most weight was the June of 2004 current statement regardless of who that source was; it happened to be Dr. Cohen who did that evaluation; if there were other records that are relevant in 2004 then they ought to be considered as well, Israel testified. Israel admitted the fact that Dr. Haupt and Dr. Yadava released Rothschild to return to work without restrictions wasn't noted in the Functional Capacity portion of his report. That's not repeated, he added. The information in the section entitled "Education and Training" was a result of my interview with Rothschild and any other references that may have eluded to it, but, yes, it was primarily Rothschild's assertions about how far he went in school. Israel said. The information in the section of my report entitled "Work experience" came from Rothschild and if there was any reference or information in a report that added light to it, but primarily Rothschild explained pretty clearly what he did, Israel said. Israel was queried if it was correct that his conclusion in his report was that there are occupations within the physical range of skills possessed by Rothschild. Yes, he certainly has transferable skills, there are occupations that a person can do whose been a carpenter and whose been a truck driver though not within his current capacity, Israel answered. It was noted that in his report Israel wrote - "Occupations within those initial guidelines can be found in a limited range of sedentary and light strength classification of employment as defined by the you U.S. Department of Labor." Initial guidelines of doctors did allow for some capacity of work within a sedentary to light range, Israel responded. This was before Dr. Cohen's determination that Rothschild was totally disabled, Israel agreed.

On cross examination by Integrity Installations, Israel agreed that the most current report was what he put more emphasis on, and that he put the most emphasis on Dr. Cohen's June 2004 report. Israel agreed that he was aware that's Dr. Cohen's primary evaluation occurred on January 15, 2004 and Dr. Cohen's June, 2004 report said it was for a supplemental medical rating. He agreed that he had concluded that all of Dr, Cohen's opinions remained the same from January, 2004. Israel agreed that he was unaware of and didn't have the report of Dr. Rende or Dr. George, and it was noted that both of these were orthopedic doctors who saw Rothschild in June of 2004. Israel was shown Dr. Cohen's second report from June of 2004 (marked as Employee's Exhibit C from Dr. Cohen's deposition) and asked to read the second sentence on the first page - "Additional records were reviewed as they include an IME of 6/2/04 from Dr. Rende.". When asked if he had ever asked for Dr. Rende's report after reviewing Dr. Cohen's June 2004 report, Israel stated that he believed that there were more records that he needed to see and he made that request, but, no, he didn't say - I want this doctor or that. I didn't ask for specific doctors, I wanted them all, Israel said.

When I received the updated records I believed that I got all the relevant records.

On cross examination by the Second Injury Fund, Israel agreed that Rothschild told him that he had no preexisting injuries before the August 1999 injury, and the medical records did not contradict that fact. Israel stated that the claimant told him that he had driven to Israel's office from Herman, Missouri, and that is a distance of a little more than an hour; he agreed that as far as he knew Rothschild was driving himself home. When Rothschild ambulated into my office he had a knee brace, I believe, Israel said. He agreed that he asked Rothschild about the August 1999 work injury, and that Rothschild told him he had worked for a short period at three subsequent car[entry jobs. Israel was queried - isn't it correct you're not aware that there were any work injuries at any of the subsequent jobs. As I understood it, Israel answered, what he had told me is that the demands of the carpentry were hard for him, and in that sense became more difficult. I would just say the records speak of the injuries that occurred, Israel testified, I defer to the records that talk about the 1999 injury and all the other particular events leading up to 2002 - the 9/1/01, the 9/1/02. There were other events since 1999 as he tried to do his carpentry job, Israel stated. Israel stated that he was not aware of any medical records for treatment for any specific work injuries during the three subsequent jobs. Israel said the he believed there was some statement or some reference, though he didn't have independent recall, that the claimant after he left the last job at Integrity applied for unemployment compensation. I do believe that Integrity was Rothschild's last job and that after that he was not able to keep any employment or find any employment at all, Israel said.

Israel agreed, during cross examination by the Second Injury Fund, that Rothschild has a high school education plus some college classes at East Central College. Israel stated that writing and reading would not be barriers for Rothschild; no, academics is not his barrier in that regard. I believed I asked him if he had any computer skills and he does not have any current computer skills with a PC, he said. I asked him if he handled his own finances and I believe that he handles his finances or handles daily living functions, Israel said. Rothschild as a truck driver or a carpenter I think had delegated tasks to people, but, he was not a supervisor and was not a foreman as I understand it, he said. Israel was queried, wasn't it correct that Rothschild's assertions of physically being able to lift 150 pounds, to sit for 90 minutes and to stand for 60 minutes, these three items themselves would not restrict Rothschild from seeking a sedentary or light position. What I observed of him was a person who was restless, who stood up, who appeared very uncomfortable, Israel responded, so what I observed seemed at variance with what his assertions were. But based on those assertions, if it was as he said, yes, there would be a whole different profile, Israel said.

During cross examination by the Second Injury Fund, Israel was asked wasn't it correct that when he came to his conclusion that he didn't think Rothschild could seek employment, among the factors he took into consideration physically were his right knee, his left shoulder, and his right shoulder. The opinion certainly did take in all of those records and his overall condition, Israel answered. He was asked, when you did an Oasis Test did you take all the data of Rothschild's past experience in heating and cooling as well as his experience as a truck driver and as a carpenter. I enter the job information of the past 15 years, and referred to his past relevant experience; in this instance his extensive experience as a truck driver and his background as a carpenter was in the past 15 years; I believe these were the jobs that were in the past 15 years. Heating and ventilation, air conditioning goes back to the early '70s in the Air Force, I believe, and some work since, but as past relevant work, no; it was centered really in two areas, carpentry and truck driving.

On redirect examination, Israel testified based on my evaluation, my interview, the testing, the review of the records noted in my report, and the subsequent records; based on the factors of age, education, work experience of carpentry and truck driving background, the residual capacity of the upper and lower extremity, I believe at this time Rothschild is not able to compete because of these combined factors.

James M. England, Jr. testified by deposition on behalf of Roloff Trucking. (No. 1) A rehabilitation counselor. England stated that he is a rehabilitation counselor, and that he reviewed medical records and reports and two depositions of the claimant, and prepared a report dated 8/12/04. England agreed that the claimant provided a complete family, educational and vocational background in his deposition. England was asked to testify as to what he had determined about Rothschild's vocational history:

"Well. The first nine years - well, he had worked for about nine years for Roloff Trucking. He said he worked about fifty hours a week and made about ten0fifty per hour. After that he had worked for Karst.....Construction, from March of 2001 to November of 2001. He said that he had worked full-time but it was on a sporadic basis, just when the work was available. He thought he made twenty-five to twenty-six an hour when he was working there. He had worked for BAM Construction earning about thirty per hour. He said he thought he worked there about three months. He left there because of a lack of work, and he did indicate that if he had not been laid off he would have stayed working for that company.

He said he started working for Integrity Construction in July of 2002. That he was there through September of that year. He explained that on that particular job he would assemble and install retail jewelry and cosmetic cases at department stores, and he said he left there in September of 2002 because his pain had worsened and he just didn't feel he could handle that type of physical activity any longer. He indicated that he drew unemployment for about sixteen weeks or so after that and indicated that the did complete the paperwork indicating that he was ready, willing and able to work and that he was, in fact, looking for all alternate employment.

He was also asked about what he had done before he went to work for Roloff Trucking. He said he had worked for several years on his own operating his own business doing home remodeling, finishing basements, things of that nature. He had also driven some other trucks in the past. That included anything from dump trucks to eighteen wheelers. I felt his

primary skill and knowledge would be that in truck driving and carpentry. And it appeared to me that it did not appear that he could go directly back to these forms of work based on the medical evidence, but I felt his knowledge of trucking would certainly give him an edge in applying for something like dispatching and at the same time his knowledge of carpentry I think would be idea for Allied Construction positions, such as sales of construction materials, working at an answer desk, dealing with customers who need knowledge about what kind of building materials to buy for a particular project, that type of thing." (sic) (England Dp. pp. 11-13)

England testified as to his conclusions after his evaluation (at the deposition it was agreed and stipulated to by the parties that England would testify in accordance to his August 12, 2004 vocational rehabilitation evaluation report):

There is obviously a variance of opinion with regard to this man's physical capability. Based on Dr. Rende's findings Mr. Rothschild would not be able to go back to his previous work as a carpenter but he would certainly be able to perform a variety of work at the light to medium levels of exertion.

Utilizing his past acquired knowledge, it would appear that he would be an ideal person to train as a dispatcher or that he could use his construction knowledge in sales positions and customer service positions. He could obviously also acquire additional skills at no cost through the Missouri Division of Vocational Rehabilitation which would help him with tuition, books, transportation money, etc.

Only if one accepts Dr Cohen's opinion that the man cannot sustain even sedentary work could one conclude that this man in unemployable. If Dr. Cohen is right then Mr. Rothschild's lack of employability would be due to a combination of a number of different impairments rather than simply one injury that has occurred.

Dr. Cohen added in his deposition that it was possible, in his opinion, that with additional treatment Mr. Rothschild might improve physically and might then not be permanently and totally disabled.

He also admitted that he would defer to a vocational expert as to whether or not there might be suitable jobs for the claimant with his medical conditions. (Ruling: All objections are overruled. England Dp. pp. 14, 15 and 16)

On cross examination by Karst Construction, England was asked about his statement - a combination of injuries - was he talking about a combination of the shoulders and the knee? England responded: "...I'm not saying that's right or wrong, I'm just saying that's what Dr. Cohen indicated, that it was the man's combination of impairments and my understanding the combination would be that he's he had problems with both shoulders and his knee". (England Dp. pp. 19-20) England was further queried - o you're not actually rendering an opinion here today whether this man is permanently and totally disabled, if he is, as a result of a combination or as a result of one injury or anything like that, you're just simply giving us what Dr. Cohen said. England answered:

"What I'm saying is vocationally the only opinion that I can see in here from a medical standpoint - as a vocational person I can't put restrictions on somebody.

"One set of restrictions I think there are plenty of things he can do. The other doctor doesn't list restrictions but just says I don't think he can even do sedentary work. But that some doctor also says the reason I don't think he can do sedentary work is due to a combination of these medical problems. And so I'm saying if he can't work then, based on what that doctor indicated, his lack of ability to work would be based on a combination of problems rather than just one injury." (England Dp. pg. 21)

On cross examination by Second Injury Fund, England was asked if there was any indication that before the date of injuries Rothschild was not able to do his job at Roloff.

A true copy: Attest:

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: alleged 12/31/01
5. State location where accident occurred or occupational disease was contracted: Franklin County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? ---- 8. Did accident or occupational disease arise out of and in the course of the employment? No
8. Was claim for compensation filed within time required by Law? Yes
9. Was employer insured by above insurer? Yes
10. Describe work employee was doing and how accident occurred or occupational disease contracted: Carpentry
11. Did accident or occupational disease cause death? ---- Date of death? ---- 13. Part(s) of body injured by accident or occupational disease: ---- 14. Nature and extent of any permanent disability: ---- 15. Compensation paid to-date for temporary disability: ---- 16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
12. Value necessary medical aid not furnished by employer/insurer? ---- 18. Employee's average weekly wages: Maximum 19. Weekly compensation rate: $\$ 628.90 / \ 329.42
13. Method wages computation: by agreement of the parties

1. Amount of compensation payable: ----

Unpaid medical expenses: ----

---- weeks of temporary total disability (or temporary partial disability)

---- weeks of permanent partial disability from Employer

---- weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning ----, for

Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential () payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

TOTAL: DENIED CASE

1. Future requirements awarded: ----

Said payments to begin ---- and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 0 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Ray Gerritzen, Attorney for Claimant

Employee: Charles Rothschild

Injury No: 01-169236

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ----

Employer: BAM Construction

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: Central Casualty Company of Wisconsin

This is a joint hearing involving four cases for the claimant, Charles Rothschild, who in all four cases appeared in person and by counsel, Attorney Ray Gerritzen. In all four cases, the Second Injury Fund appeared by and through Assistant attorney General Caroline Bean. In the third case, Injury No. 01-169236, the employer/insurer, BAM Construction/General Casualty Company of Wisconsin, appeared by and through counsel, Attorney Tom Kuergeleis.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this case.

On or about December 31, 2001: a. the claimant was in the employment of BAM Construction in St. Louis County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was insured by General Casualty Company of Wisconsin; d. the employee's average weekly wage was at the max, the rate being $\ 628.90 over $\ 329.42.

e. A Claim for Compensation was filed within the time prescribed by law. f. No temporary total disability has been paid. g. No medical aid has been provided.

1. Whether or not the claimant suffered occupational disease arising out of and in the course of his employment
2. Medical causation
3. Liability of past medical expenses
4. Future medical care
5. Nature and extent of temporary total disability
6. Nature and extent of permanent disability - whether partial or total
7. Liability of the Second Injury Fund
8. Last exposure

In regards to his prior employment with Roloff Trucking, Inc., it was agreed and stipulated to by the parties that the claimant, Charles Rothschild, sustained injury as a result of a work related accident arising out of and in the course his employment with Roloff Trucking Incorporated on or about August 30, 1999. The claimant alleged injuries to his right knee, left shoulder, and his left ankle and heel area as a result of the prior August 30, 1999 work related accident, and Rothschild further alleges a worsening of the conditions in these body parts as a result of subsequent employments at Karst Construction and then at BAM Construction (the employer herein) and then at Integrity Installations Incorporated. At each of these three subsequent employments I worked as a carpenter, and at BAM Construction, the claimant alleges, my right knee, left shoulder and my left ankle conditions worsened due to overuse in performing my work duties; at each of these three subsequent employments I sustained repetitive trauma injuries, Rothschild alleges.

The claimant testified that after the third surgery by Dr. Haupt he was then off work the whole time until Dr. Haupt released him back to work in, he believed, March of 2001. March of 2001 is when I went to work for Karst Construction; the doctor was gonna release me anyway, so I found a job, Rothschild stated. The claimant agreed that he was completely off of work from August of 1999 until March 2001, and agreed that this was all due to the injuries at Roloff. In March of 2001, Rothschild testified, I told Dr. Haupt my knee was still hurting and he sent me to all these other doctors -- Yadava and Peeples -- which it didn't do a thing for me, and then he finally said, "Well, there's nothing more that we can do for you. You just need to go back to work.". So I found a job and I asked him to release me, and I went to work for Karst Construction, he said.

Rothschild stated that his brother and a friend of his had both worked for Mr. and Mrs. Karst, and they had been trying to get him to come to work there. I started with Karst on March 30, 2001, I believe, he said, right after Haupt released me. I worked there until late September or early October of 2001, he agreed. When I went to work for Karst my right knee, left shoulder, and left ankle -- well, nothing was really fixed, the claimant said. The left shoulder was probably the best thing out of everything but I had to do all this heavy carrying, Rothschild stated. My left ankle and my right knee were just getting worse and worse the whole time, he said, we had to keep carrying all these heavy doors and equipment. And these fire doors were very heavy, they were solid-core particle board, he stated. My job when I worked for Karst was trim out of St. Louis Housing Authority houses. We had to move the cabinets in and install them, and all the doors were fire doors and we had to load them on trucks, and take them out of the trailer to the houses and carry them in the house, and install them, he said. The doors were so heavy, they were pre-hung with the trim on

them, he said, and when you lifted them up the trim would just disintegrate if we didn't lift them up just right. Rothschild agreed that he was doing these things constantly while working at Karst. He was asked what, if any, affect did this have on his right knee, left shoulder, and left ankle. Well, everything I did just kept getting worse, the claimant answered. It was mainly pain in my right knee and my left ankle that was giving me the fits there, he said, I had to take breaks and Joe had the laborers do a lot of the hard lifting and carrying for me and stuff. I worked an 8-hour day at Karst, the days we worked usually, Rothschild stated. It was a fulltime job but there was days that you didn't work and there was times that there was nothing to do; something didn't come in or something like that, he said. Rothschild agreed that he had to do walking stairs, explaining that with regard to his right knee he would step up with his left foot first when he had to do that. I tried to avoid stairs, the claimant said. My right knee it was definitely worse than anything because it would just be grinding and gritting and popping and completely swollen all the time, he said, and this brace when you sweat - it's supposed to be made for sweating - the more you sweat, and it was very hot out there as it was in the summer time, this brace slipped down on my leg and actually eaten holes, and the bleeding where the pads ate into my leg, Rothschild testified. And when the thing slips down it's putting pressure on the wrong spots and it gets lots worse, the claimant stated. He stated that he wore a brace on his right knee then that was given to him by Dr. Haupt. I made complaints to Joe Karst and P. J., his wife, about the brace rubbing and showed it to them, Rothschild said, they saw it many times. They had the laborers do a lot of the hard lifting and carrying, stocking the rooms with doors and things like that because I couldn't do it, the claimant said. Joe Karst worked with me getting these houses done, Rothschild stated, Joe would hold something up for me; he wasn't really a carpenter or anything, but he would help me do different things like carry something in the room. Rothschild agreed that Joe was there and had on several times told him to sit down and take a break, or something like. He saw I was hurting, Rothschild said.

My work at Karst ended because Karst had some pretty bad financial troubles, Rothschild testified, they actually ended up losing everything and went out of business.

When I stopped working for Karst I then went to work for BAM Construction Company, Rothschild testified, I worked for BAM Construction approximately from October 1, 2001 to about December 30, 2001, he said. At BAM Construction Company I was a finish carpenter, he said, and I strictly worked on the Lenox Hotel, Downtown St. Louis and trimmed quite a few of the hotel rooms out. for BAM Construction. My work entailed my physically doing such things as hanging of doors, the vanities, doing baseboard, stocking the rooms with the trim and then doing just everything to do with trimming that room out for a finish, so it's ready for the painter, he said. I was lifting and carrying tools, doors, big baseboards, and stocking the rooms, Rothschild stated. At BAM I worked from 6:00 a.m. to 2:00 or 2:30 p.m., or 7:00 a.m. until 3:00 p.m., Rothschild said, and pretty well five days a week. He agreed that at that time he was making $\ 30.00 an hour.

Rothschild stated that while working at BAM for the approximately three months in the end of 2001 just everything got worse. My knee got more swollen, the claimant stated, it was always hot in there and I was always sweating, and my brace would fall down and get in the wrong location and eat my leg up, and in the wrong location it put the pressure on the wrong point. I didn't have that much trouble with my left shoulder, Rothschild said, I could use my right shoulder to pretty well take the load. I never could lift the left shoulder right all the way then, Rothschild said, I didn't have the strength in it after that accident, but I got most of it back through the therapy that I took. It never got back to the way it was before I fell off the truck at Roloff, the claimant said. Working at BAM really didn't aggravate or make the left shoulder worse, Rothschild said. The left ankle it definitely did make worse because -- well, my right knee was hurting so bad I had to bare all the weight on my left, Rothschild stated. The job with BAM ended when the Lenox Hotel renovation ended, which would have been the end of December, Rothschild agreed. I did not work anywhere from the end of December, 2001 till August of 2002, the claimant said. During those roughly seven months I just did exercises at home and I tried to find some jobs, Rothschild said, but when you're in the union you get fined pretty heavy if you go somewhere else and work. So I put my name in the carpenters hall and it was 500 carpenters out, so they couldn't do anything about it, so I just had to wait, and drew unemployment until they called me back, he said.

On cross examination by Roloff Trucking, Rothschild agreed that in March 2001 both Dr. Haupt and Dr. Yadava released him, saying he was at maximum medical improvement, and released him to full, unrestricted duty. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fireproof doors and other heavy items. Rothschild agreed that he did not lose his job at Karst because of a physical inability to work, and he did not quit working for Karst because of the injuries he suffered in the August, 1999 accident at Roloff, he I worked for Karst until Karst went out of business in October 2001. I would have continued working for Karst Construction doing carpentry work, including heavy lifting, had work been available from Karst, Rothschild agreed, further stating - "I had to".

Rothschild stated that his left shoulder didn't get worse while working for Karst, but it did get worse. He agreed that his left shoulder has stayed about the same as it had been since he had completed physical therapy before the Karst job, and has stayed about the same after this through all three other jobs - Karst, BAM and Integrity. But I carried it with my right, Rothschild added.

During cross examination by Roloff, Rothschild agreed that he filed his Claim for Compensation against Karst Construction and Integrity Installations on October 17, 2002, and alleged a permanent total disability with a date of onset of September 1, 2001 against Karst and September 1, 2002 against Integrity. Rothschild agreed that he recalled seeing Dr. Shawn Berkin on May 3, 2001

by his own attorney, and at that time he was employed by Karst Construction.

On cross examination by Karst Construction, Rothschild agreed that during the time period after the last surgery by Dr. Haupt up to the time that he went to work for Karst Construction, his knee was giving him a lot of problems. During this period my right knee was hurting all the time and it had actually given away on a couple of occasions, he agreed. At that time I think it was two times that I had actually fallen because of this give away situation, he said.

I went to work for Karst Construction in the Spring of 2001, and this was right after Dr. Haupt released me from care, Rothschild agreed during cross examination by Karst Construction. He agreed that when he went to work for Karst Construction he was a union carpenter making union scale. I was on my way for qualifying for Union benefits, Rothschild said. During the time I worked for Karst Construction, Spring of 2001 through September 11, 2001, I worked full time getting substantial hours but I wasn't getting a full 40 hours, Rothschild agreed, and I was actually working as a trim carpenter which is different than a standard carpenter. I guess you could consider this as a lighter job, but not really, the claimant said. He agreed that the Karsts became friends of his during the period of his employment and they worked with him to make sure that he didn't get too sore. I didn't miss any time from work because of my left shoulder, right knee, or left ankle when I was working at Karst, he said, they worked with me. They let me work at my own pace, he agreed, they got me laborers when that was necessary, things like that. I couldn't have done the job without it, Rothschild said. He agreed that while working at Karst he didn't have any specific accidents that caused damage to those body parts, and that he never received any medical treatment of any kind for these body parts while he was working for Karst. Rothschild agreed that after Dr. Haupt released him in March 2001 he didn't begin to get additional medical care until he went back to Dr. Matthews some time in 2002. Rothschild agreed that when he was seeing Dr. Haupt prior to going to work for Karst, he and the doctor did have a conversation about a knee replacement. Dr. Haupt said in the future you may need a knee replacement is what he told me, Rothschild stated.

Agreeing, during cross examination by Karst Construction, that when the Karst's business started folding up he was pretty much the last guy out the door, Rothschild further stated - When work ran out there I even did work in their own home. He agreed that he didn't leave employment with Karst Construction for any medical reason. After working for Karst I went to work for BAM Construction, and that was pretty quick, Rothschild testified, Joe Karst was friends with the owner of BAM Construction, Brian Murphy, and he got me in there on a high recommendation. He agreed that he worked for BAM for a period of up through December of 2001. Rothschild agreed that his first Claim for Compensation against Karst Construction was filed in October of 2002, and this was actually over a year after he'd quit working for Karst.

Rothschild stated, on cross examination by the Second Injury Fund, that during the time he worked at Karst, BAM and Integrity his knee brace bothered him, and that he told Mike Farris at ProRehab about the problems with the brace slipping, and that the Karsts knew it. Everybody that pretty well knew me knew about it, he said. I did not seek medical help for it or rehab help for it while I was at Karst, BAM or Integrity, the claimant said. The claimant was queried - wasn't it correct that he didn't seek any medical treatment at all until he went to see Dr. Matthews in September, 2002? I tried to one time and they told me that I wouldn't be covered because this was a workers' comp accident, Rothschild answered. They wouldn't do anything for me related to this knee and shoulder, because it was a preexisting condition; I believe this was the Carpenters Union, he stated. When I went to see Dr. Matthews my carpenters insurance paid for that and I paid the co-pay, he said. The Union sends you a letter telling you when you're reinstated in the carpenters' hall, when you have enough hours to get your insurance, Rothschild explained. He agreed that this was before he started at Integrity, and had to be while he was working for Karst.

On redirect examination, Rothschild stated that he noticed his right knee getting worse while working for Karst Construction from all the use - the heavy load-bearing, the carrying stairs and doors. Explaining how it was worse, Rothschild stated - I think I got injections all the way through this whole thing until a few months ago; it was all swollen up and it was grinding and popping; it was like gravel inside of my knee all the time. And I never could lock it; keeping your knee bent all the time you know what that is, your muscle, the claimant stated. Stating that the pain was worse in his right knee when he was working at Karst, Rothschild explained that it got sharper.

I never told anybody at Karst, BAM or Integrity that I had problems with my left shoulder, right knee or my left ankle, and nobody asked, Rothschild stated. Joe Karst knew but I don't know what date they knew it, he said.

Considering the medical treatment records, it is found that there are no records indicating treatment of the claimant at or near the time of the alleged 09/01/01 work related occupational disease at BAM Construction. The treatment record before the alleged September 2001 work related occupational disease were the March 28, 2001 records of Dr. Yadava (No. 3) who wrote that he felt Rothschild was at maximum medical improvement from a rehabilitation perspective and could return to work without restriction for usual job duties in regards to his September 30, 1999 work related injury. The next treatment record in the case was a 12/31/01 entry in the medical records of Washington Chiropractic Clinic, P.C. (No. K); the 12/31/01 entry noted complaints from Rothschild of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

Considering the medical treatment records, it is found that there are no records indicating treatment of the claimant at or near the time of the alleged 09/01/01 work related occupational disease at Karst Construction. Dr. Herbert Haupt, M.D., the doctor who performed Rothschild's third right knee surgery in 2000 prepared a March 20, 2001 post-operative examination report (See, No.

2) in which he wrote that Rothschild indicated he did see some improvement in his leg pain with the injections at trigger points performed by Dr. Yadava and with the modifications in his physical therapy program. It was written that Rothschild further indicated that his knee and shoulder were actually doing quite well though he still had the complaint of pain down that leg with prolonged sitting or driving or standing, and a tingling and numbness that occurs in the knee on down the lateral and posterior aspects of the right leg. Examination findings on March 20, 2001 were:

Examination of the right knee shows full extension and flexion. No effusion. He is stable to varus and valgus stress. Shoulder range of motion is considered full. Good active abduction and external rotation strength.

No obvious sensory deficits on today's examination. Motor, sensory, and DTR's are intact.

Dr. Haupt's assessment in the March 20, 2001 examination letter was: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt wrote that he would defer further medical management to Dr. Yadava. Rothschild is continued on light duty status until he sees Dr. Yadava next week, Dr. Haupt further wrote, and the written restrictions were - "steps and stairs only to enter a truck, car or building. Limited lifting of 50 pounds and no bending or squatting activities". Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent ( 6 % ) at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent ( 17 % at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

"He has been advised to wear the valgus unloading brace for a prolonged period of time to help symptomatic relief of his discomfort", Dr. Haupt further wrote.

In a separate March 20, 2001 examination report, Dr. Haupt wrote that Rothschild's chief complaint was - left ankle discomfort. In the history section of the report, Dr. Haupt wrote the following:

Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed or him by me. After discontinuing the Vioxx medication within in about two days he developed the onset of soreness about the lateral aspect of the left ankle. He denies any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle.

He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of. (sic)

Examination findings on March 20, 2001 were:

Examination today demonstrates, by his own admission, a 50 % improvement in the soreness he noted over the weekend. Examination demonstrates no apparent swelling. Range of motion is considered intact and full. Stable to varus and valgus stress. He complains of soreness, however, on anterior drawer as well as with varus stress of the ankle. His anterior drawer is considered negative. He is tender to palpation at the anterior talofibular ligament. There is no swelling noted. His Achilles tendon is normal. When he weight bears his arch appears to be normal. There is no plantar aspect of pain noted.

Routine plain films are really rather unremarkable. No acute or chronic changes noted. These are rather benign appearing plain films.

Dr. Haupt's written diagnosis on March 20, 2001 was:

Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury. It is possible that he has had some inflammation about that ankle was masked with the use of the Vioxx medication and became apparent upon discontinuing the anti-inflammatory medication and is more or less a rebound effect.

Dr. Haupt wrote of his treatment recommendation in the March 20, 2001 report:

Treatment recommendations are that he can pursue appropriate strengthening on his own, and we taught him a few exercises. In addition, I recommend the use of over-the-counter anti-inflammatories in an effort to cut down on some of the inflammation about the ankle. This can be in the form of Aleve.

There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises.

The last treatment record before the alleged September 1, 2001 work related repetitive trauma injury was the March 28, 2001 record of Dr. Yadava (No. 3) In his last examination report of March 28, 2001 Dr. Yadava wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. The doctor wrote of his findings upon examination of Rothschild which were:

In the seated position, he has remarkable improvement in his soft tissue evaluation along the peroneus musculature. Previous area of trigger point injection have resolved. He has some nodularity, but no taut bands or trigger points. There is no vasomotor instability or signs consistent with RSD. Dorsal and pedal pulses are symmetrical. His neurologic evaluation is stable and unchanged. His DTR's are symmetrical. His hamstring flexibility is unchanged. He measures 75 degrees bilaterally. His quadriceps mechanism still shows evidence of disuse atrophy. His knee examination is unimpressive. He does not have any acute features. He does not have any swelling, effusion of synovitis.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001. The next treatment record in the case was a 12/31/01 entry in the medical records of Washington Chiropractic Clinic, P.C. (No. K); the 12/31/01 entry noted complaints from Rothschild of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

The claimant is alleging his right knee, left shoulder and his left ankle conditions worsened due to overuse/repetitive trauma exposure in performing his work duties as a carpenter at BAM Construction from approximately October 1, 2001 through approximately December 30, 2001; the claimant is alleging that he sustained occupational diseases.

Occupational disease is defined in Section 287.067.1 RSMo 1993, which states:

In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

In Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W.3d 43 (1999), 47 -49 (Mo.App. E.D.,1999) the Missouri Court of Appeals, Eastern District stated the following:

Section 287.067.1 RSMo 1994 defines occupational disease as:

an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section.

Section 287.067.1 RSMo 1994. In 1993, this statute was amended, incorporated in section 287.067.2 RSMo 1994, to provide that an occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided by subsections 2 and 3 of section 687.020. An occupational disease is not compensable merely because work was a triggering or precipitating factor.

Section 287.067.2 RSMo 1994. Subsection 2 of section 287.020 defines an injury as clearly work related "if work was a substantial factor in the cause of the resulting medical condition or disability." Section 287.020.2 RSMo 1994.

In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. Hayes v. Hudson Foods, Inc., 818 S.W.2d 296, 299-300 (Mo.App.1991). The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Polavarapu v. General Motors Corp., 897 S.W.2d 63, 65 (Mo.App. E.D.1995); Dawson v. Associated Electric, 885 S.W.2d 712, 716 (Mo.App. W.D.1994); Hayes, 818 S.W.2d at 300; Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 415 (Mo.App.1988); Jackson v. Risby Pallet and Lumber Co., 736 S.W.2d 575, 578 (Mo.App.1987).

Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Dawson, 885 S.W.2d at 716; Selby v. Trans World Airlines, Inc., 831 S.W.2d 221, 223 (Mo.App. W.D.1992); Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo.App.1991). Claimant must prove 'direct causal connection between the conditions under which the work is performed and the occupational disease.' Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo.App.1992); Sellers, 752 S.W.2d at 416; Estes v. Noranda Aluminum, Inc., 574 S.W.2d 34, 38 (Mo.App.1978). However, such conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. Hayes, 818 S.W.2d at 299; Sheehan v. Springfield Seed \& Floral, 733 S.W.2d 795, 797-8 (Mo.App.1987). A single medical opinion will support a finding of compensability even

where the causes of the disease are indeterminate. Dawson, 885 S.W.2d at 716; Sellers, 776 S.W.2d at 504; Sheehan, 733 S.W.2d at 797. The opinion may be based on a doctor's written report alone. Prater v. Thorngate, Ltd., 761 S.W.2d 226, 230 (Mo.App.1988). Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo.App.1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. George v. Shop 'N Save Warehouse Foods, Inc., 855 S.W.2d 460, 462 (Mo.App. E.D.1993); Webber, 826 S.W.2d at 54; Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 163 (Mo.App.1986)...

Aggravation of a preexisting disease or infirmity caused by nonaccidental conditions of employment is compensable as either an accident or as an occupational disease. Smith v. Climate Engineering, 939 S.W.2d 429, 436 (Mo.App. E.D.1996). Aggravation of a preexisting disease or infirmity caused by repetitive trauma is compensable as either an accident or as an occupational disease. See Id. at 433-35."

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"...an injury may be of such a nature that expert opinion is essential to show that it was caused by the accident to which it is ascribed. When the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific techniques for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding..." Knipp v. Nordyne, Inc. 969 S.W.2d 236, 240 (Mo.App. 1998).

"Medical causation not within common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. Selby v. Trans World Airlines, Inc., 831 S.W.2d 221, 222 (Mo.App. 1992)

"A medical expert's opinion must have in support of it reasons and facts supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence." (citations omitted) Pippin v. St. Joe Minerals Corp., 799 S.W.2d 898, 904 (Mo.App. 1990).

Medical opinions were presented in this case. Dr. Shawn L. Berkin, D.O. prepared a May 9, 2001 evaluation report, (See Exh. A, Attachment Roloff Dp. Exh. No. 2), after evaluating Rothschild for purposes of rating in regards to the August 30, 1999 work related injury at Roloff Trucking. The doctor discussed the August 30, 1999 work related injury while in the employ of Roloff Trucking; the doctor noted that Rothschild had worked for Roloff Trucking for ten years. "The patient stated that he never returned to work for Roloff Trucking following his treatment and is currently employed as a trim carpenter for the Carst (sic) Construction Company", Dr. Berkin wrote. Present complaints of Rothschild noted by Dr. Berkin in his May 9, 2001 report were - pain and tenderness to the right knee, swelling to the knee and the knee gives out; stiffness to the right knee and symptoms worse with weather changes; Rothschild reported limited motion of the knee and his knee symptoms are aggravated by kneeling and squatting; he had complaints of weakness to his left arm and his shoulder symptoms were aggravated by lifting. Dr. Berkin discussed his examination findings of May 3, 2001 which included: a. height - 73", weight - 268 pounds; b. left arm - no swelling or deformity, shoulders level in sitting position, upon palpation tenderness over the anterolateral surface involving that acromioclavicular joint extending into the left upper arm, stressing left shoulder failed to demonstrate any joint instability but a prominent clunk was present on passive circumduction of left shoulder, it was indicated that range of motion of left shoulder was decreased in all planes, muscle strength testing showed weakness of left arm on flexion and extension against resistance; c. right leg - wearing brace furnished at time of treatment, upon removal of brace generalized swelling without obvious joint effusion, walked in a normal gait without evidence of a limp, generalized weakness localized over the anteromedial surface, stressing knee failed to demonstrate any joint instability but patient complained of pain to his knee on valus and varus stressing, it was indicated that flexion and extension range of motion was decreased; d. weakness of left leg on extension of the left knee against resistance; e. able to stand on toes and heels without difficulty but unable to squat because of complaints of pain in his right knee; f. left knee - normal range of motion. Dr. Berkin's final impressions were: 1. Rotator cuff tear of the left shoulder; 2. Impingement syndrome of the left shoulder; 3. Right knee strain; 4. Tear of the medical meniscus of the right knee; 5. Tear of the anterior cruciate ligament of the right knee; 6. Osteochondritis dissecans of the right knee; 7. Status-post arthroscopy of the right knee with debridement of the medial femoral condyle and removal of osteochondral lesion 01/19/00; and removal of osteochondral lesion 01/19/00; 8. Status-post arthroscopy of the right knee with arthroscopic debridement 06/22/00; 9. Status-post arthroscopy of the right knee with medial meniscectomy, Debridement of the anterior cruciate ligament, shaving, debridement and chondroplasty of the medial femoral condyle and femoral trochlea and lateral retinacular release. "The patient is currently employed as a trim carpenter for Carst Construction and is receiving no treatment for his injuries at this time", Dr. Berkin wrote. Dr. Berkin wrote of his assessment as to disability in regards to the August 30, 1999 work related accident in his May 9, 2001 report:

1. A permanent partial disability of 30 % of the left upper extremity at the level of the shoulder for the rotator cuff tear of the left shoulder associated with an impingement syndrome.
2. A permanent partial disability of 55 % of the right lower extremity at the level of the knee for the right knee strain associated with tears of the medial meniscus and the anterior cruciate ligament and an osteochondral lesion involving the medial femoral condyle necessitating three surgical procedures on his right knee. I feel the patient has an additional permanent partial disability of 10 % of the right lower extremity at the level of the knee for the degenerative arthritis of the right knee that pre-existed his injury which to my knowledge, has been asymptomatic prior to his injury.

In the Treatment Recommendations section of his May 9, 2001 evaluation report, Dr. Berkin wrote:

The patient continues to have significant symptoms to his right knee and I recommend the continued use of his knee brace in order to stabilize his knee. I recommend that the patient be restricted from prolonged standing or sitting and that he be restricted from kneeling, stooping or climbing.

With respect to his left shoulder, the patient continues to remain symptomatic and indicated that he does not wish to have surgery on his shoulder because he feels that surgery has not really helped his knee. With respect to his left shoulder, I recommend the patient be restricted from lifting with his left arm no more than twenty-five pounds from the floor to the waist and fifteen pounds from the waist to the shoulder. I recommend that the patient avoid working with his left arm above the level of his shoulder.

The patient has indicated that he is currently working as a trim carpenter but if he continues to have symptoms at his current level of activity, I recommend that he consider alternative employment that his less physically demanding. (sic)

Dr. J. W. Morrow, D.O. prepared an October 8, 2002 evaluation report (See No. A, Attachment No. 3); the doctor wrote that he was seeing Rothschild for injuries sustained in the August 1999 work related injury. It was noted that the claimant relayed that he had been pain free in his right knee and his left shoulder prior to the August 1999 work related injury. Dr. Morrow discussed Rothschild's present complaints on involving the left shoulder and the right knee:

He relates if he attempts to move the left arm in lifting activities above the shoulder level this causes pain in the shoulder joint. Sudden movements of the arm at the shoulder tend to cause pain. Since he is not working for a period of time, the pain occurs about two or three times a week in the left shoulder with such movement.

He relates standing, walking, squatting, going up and down steps, lifting, pushing and pulling activities all tend to cause the severe pain in the right knee, and he attempts to avoid these activities since he is not working at this time.

Dr. Morrow's diagnoses concerning the August 1999 work related accident were: a. traumatically induced sprain of the left shoulder, and an MRI study showed a complete tear of the supraspinatus of the rotator cuff; and b. traumatically induced sprain of the right knee, Dr. Matthews noted that upon the 10/20/99 surgery by Dr. Matthews there was evidence of old osteochondritis dessicans and degenerative changes about the knee joint. Dr. Matthews noted the osteochondral defect was pretty significant. Dr. Morrow noted additional subsequent treatment, including the subsequent two surgeries; Dr. Haupt took x-rays on January 15, 2002, Dr. Morrow wrote, "showing stenosis of the medial compartment and some patellofemoral narrowing with a flat spot on the lateral medial femoral condyle and being diagnosed as posttraumatic osteoarthritis of the right knee, at which time the doctor notes the patient may require surgery in the future, including a possible total knee arthroplasty procedure. ". Dr. Morrow wrote his recommended restrictions for the left shoulder and right knee; concerning the right knee, Dr. Morrow further wrote: "The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the right knee, particularly the medial knee joint space where he is approaching bone on bone". Dr. Morrow assessed permanent partial disability on October 8, 2002:

Based upon this examination, there is a 40 % permanent partial disability of the left upper extremity at the level of the shoulder attributable to the injury of 8-29-99.

Based upon this examination, there is a 65 % permanent partial disability of the right lower extremity at the level of the knee. Of the 65 %, we allow 32 % preexisting with the possibility of the preexisting osteochondritis dessiccans. Even though asymptomatic immediately prior to the injury in question according to the patient, and the remaining 321 / 2 % due to the aggravation of the injury in question and the necessity for the three procedures that had been performed arthroscopically, two by Dr. Matthews and one by Dr. Haupt.

Dr. Thomas Matthews, M.D., an authorized treating doctor and testified on behalf of the claimant (No. B), stated that he is a board certified orthopedic surgeon and that he began treating Rothschild on 10/20/99, and stated that his examination was primarily confined to the left shoulder and right knee. Dr. Matthews performed arthroscopic surgery on Rothschild's knee on January 19, 2000 and again on June 22, 2000. It was Dr. Matthews' opinion that the August 30, 1999 work related accident at Roloff Trucking was the substantial cause of the injury of an aggravation of a pre-existing condition in the claimant's knee of osteochondritis

dessicans which required the two surgeries he performed, and that the August 30, 1999 work related injury was the substantial cause of a left shoulder rotator cuff tear. In the June 29, 2000 post-operative treatment note, Dr. Mathews wrote the following:

He comes in today one week after debridement of his knee joint. Again, his osteochondral defect is pretty significant. The margins were debrided. Some loose bodies were removed. Other than that, nothing else can be done arthroscopically.

In the next entry of 07/12/00, Dr. Matthews wrote that Rothschild was three weeks out from his scope and second debridement of his medial femoral condyle defect. The doctor further wrote that Rothschild was advised to continue a range of motion program on his own level and let his knee calm down at that time; the doctor wrote that he wanted to see Rothschild back in one month for recheck. The next entry in Dr. Matthews' record was a 01/15/02 entry, and stated the following:

He comes in today for an opinion regarding his right knee. He apparently had an osteochondral transfer graft to the medial femoral condyle by Dr. Haupt in St. Louis last year. Since that time, his knee has been bothering him somewhat with occasional swelling and stiffness and inability to squat and inability to get down on the leg. His other knee is bothering him as well. He apparently is having a workmen's compensation hearing in March, and wants to understand the exact problems. I have no records of his operative treatment from Dr. Haupt at this point.

Dr. Matthews noted that radiographs were obtained and showed "sclerosis of the medial compartment, but good joint space is maintained. There is some patellofemoral narrowing, as well. There is a flat spot on the lateral of the medial femoral condyle that is notable". Dr. Matthews' assessment on 01/15/02 was - Posttraumatic osteoarthritis of the right knee. The doctor wrote the following in the treatment plan section of the $01 / 15 / 02$ entry:

Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee.......I believe he does have a 50-60\% disability of the knee, but my most significant concern is the problems in the future.

Dr. Matthews prepared a May 15, 2002 report to the claimant's attorney in which he wrote the following:

I have reviewed Mr. Rothschild's chart. As you know, this gentleman claims injury to his right knee while at work prior to an office visit he had on 10/20/99. The evaluation of the left knee at that time showed x-ray evidence of an old osteochondritic dessicans lesion of the medial femoral condyle. In spite of conservative measures which failed, knee arthroscopy was recommended. At the time he was noted to have an old osteochondritic lesion which was debrided. Temporally the lesion that he had in the knee at the time of the arthroscopic evaluation could not have specifically been caused by his work related injury, however, the development of subsequent symptomatology, swelling and pain, could have been brought on by that particular injury and thus necessitating the subsequent surgeries that this gentleman has had. The patient has stated that he had no problem with his knee prior to the work injury, which is consistent with a stable OCD lesion. The twisting and/or wrenching of his knee at the time of injury could have fractured and/or dislodged the lesion to the point that he became symptomatic. So in essence, the patient did have a pre-existing lesion which was essentially asymptomatic and/or subclinical and the work related injury aggravated this condition to the point that it became clinically symptomatic in need of treatment.

Further treatment and/or therapies could include arthroscopic evaluation of the knee, partial and/or total knee replacement, in addition to, the normal and customary office visits, x-rays, physical therapy, etc. I believe that these treatments are more likely than not to occur in the future, for this gentleman suffers from a progressive degenerative problem with his knee, which undoubtedly will continue and be in need of medical attention in the future....

In the next treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit........

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote of the treatment given that day, and that Rothschild was to return in three weeks. The doctor further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same

condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr. Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visits, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

Dr. Matthews' post surgical follow-up treatment record for the right knee through July 2000 made no mention of left ankle complaints from the claimant. Dr. Matthews' record indicated that he next saw Rothschild on 01/15/02 regarding his right knee; the 2002 records of Dr. Matthews' concerned treatment to the right knee.

Dr. Matthews wrote an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle:

I feel that his left (sic) knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort. This condition is usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point.

In Dr. Matthews' treatment record was a September 12, 2003 letter by the doctor to the claimant's attorney in which Dr. Matthews wrote the following:

As I stated in that meeting I believe that Mr. Rothschild had a condition of his knee, namely osteochondritis dissecans that was exacerbated and/or aggravated by a work injury. This necessitated an arthroscopic evaluation of his knee by myself and an additional orthopedic procedure at a later date. This individual subsequently has sustained permanent partial impairment of his knee which from time to time with activity causes him symptoms which include swelling and pain. These symptoms are aggravated and exacerbated by the chronic and progressive nature of his condition.

As I discussed with you later employment which supposedly caused Mr. Rothschild to bend, stoop, twist and turn on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

At his deposition, Dr. Matthews testified: "So that final visit or that visit as of 10/11/02 was the end of the treatment cycle for that postoperative period after the second arthroscopy. Then the patient disappeared from my practice until he revisited me on 8/20/03." (Matthews Dp pg. 38) The doctor noted that treatment of Rothschild in 2003, beginning with an August 20, 2003 office visit, was regarding a recent right shoulder injury, the last appointment was on October 30, 2003. Dr. Matthews was asked his opinion of what effect, if any, did subsequent employments in carpentry have on Rothschild's right knee and left shoulder. The doctor answered:

"Mr. Rothschild is a laborer. I believe he's a carpenter?

"Which requires stooping, bending, squatting. So his occupation plays a role in the amount of time that he's up on his knee, and the physicalness of his job adds to the stress that his knee sees. So, consequently, those particular type jobs will promote or progress his degenerative change in his knee joint." (Matthews Dp. pg. 44)

"...in general, I think it would be agreed upon, with medical certainty, that laboring type jobs such as his would aggravate and exacerbate and progress his particular condition, whether it be one job or 17 different jobs." (Matthews Dp. pg. 46) (Ruling: Employer/Insurers' objection on grounds of Seven Day Rule is overruled. Matthews Dp. pp. 44 and 45 and 47 )

Dr. Matthews stated that he believed the fall off of the truck on August 30, 1999 was the cause of the left rotator cuff injury Rothschild sustained. The doctor testified that at the current time he was not sure as to Rothschild's symptoms in his left shoulder, but further testified: "Most authorities would feel that or believe that an untreated rotator cuff tear will also progress to develop what's called posttraumatic or rotator cuff arthropathy, which is basically arthritis of your shoulder." (Matthews Dp. pg. 30)

On cross examination, Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of any objective findings intraoperatively. Dr. Matthews agreed that he had reviewed the surgical note of Dr. Haupt for the surgery performed later in 2000, and that surgical noted reflected a progression of problems in the knee from the June 2000 surgery. The doctor noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) The following testimony then occurred:

Q. Now, Dr. Matthews, in later reports, you used words such as aggravated, exacerbated, and accelerated to describe the connection between Mr. Rothschild's subsequent employments, after Roloff Trucking, to the progression of his disease, the progression of his OCD, and the problems in his knee. Okay. By aggravating, exacerbating, accelerating, do you mean that these particular physical activities caused him to be symptomatic, or do you mean that there was a particular objective change that was directly caused by these particular activities in the knee?

Or both?

A. I would state both.

Q. Could you point at anywhere in your record to places that would show us, okay, where a subsequent employment can be directly related to an objective findings in the knee?

A. Probably not. (Matthews 11/19/04 Dp. pp. 105 and 106)

Agreeing that it was his stated belief that in someone who does moderate activity or works as a laborer the condition would progress faster, Dr. Matthews further stated - "I don't know if it would precipitate it....Progress it, yes". (Matthews 11/19/04 Dp. pg. 112) The doctor agreed that the work as a laborer would cause this progression to come about sooner than expected. It was noted that in a September 17, 2002 report to the claimant's attorney, Dr. Matthews had discussed the work injury of August of 1999 which exacerbated the allegedly preexisting condition the OCD lesion and that he stated that now in September 2002 Rothschild was still dealing with the same condition and the sequela of that diagnosis; Dr. Matthews was asked to explain what he meant by this, and the following testimony occurred:

A. That means that, given this man's preexisting OCD lesion and factoring in his activities had, again, I'll use this word, the totality of his employment and these different traumas that he's had, he's still dealing with the aftermath of having this condition.

Q. Okay. Now, you are referring to the August of 1999 injury, and now you are using the word traumas plural. Did the patient ever tell you that he had more than one direct trauma?.....To the knee.

A. I guess I would use the trauma in the cumulative sense. One specific trauma, the truck injury and fall, I guess that's what I was referring to.

Q. To paraphrase your statement here, this is still one condition. And when you say he's still dealing with the sequela of that original diagnosis or condition - -

A. Yes.

Q. - - are you saying it's an ongoing thing dating back to the first time that condition was either noted or diagnosed?

A. Correct.

Q. Do you have anywhere in your records where Mr. Rothschild ever told you that any of the subsequent employments, specifically any activities, specific activities at those jobs, were causing a further problem to his knee?

A. Not specifically, no, I don't believe.

Q. Is there anywhere in your records during your, I guess, three years or so treatment of this gentleman, that he even told you anything about who - - who he worked for or what he did?

A. No.

Q. Over the three years, did he ever tell you about any of the subsequent employments, again after the August of 1999 injury?

A. I vaguely remember some discussion about him being a trim carpenter, but not employers and/or employment and/or where, no.

Q. Never identified the employers?

A. No. (Matthews 11/19/04 Dp. pp. 113-115)

Dr. Matthews further stated that Rothschild never specifically told him what he did as a trim carpenter for any of these employers.

Dr. Matthews stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about.

Dr. Raymond Cohen, D.O. testified on behalf of the claimant (No. A) after evaluation of Rothschild on the claimant's behalf in January 2004. Dr. Cohen's diagnosis regarding the work-related injury of 8-30-99 included the following:

1. Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear.
2. Left shoulder rotator cuff tendon tear and impingement.
3. Due to a compensatory gait, he has left ankle instability with chronic tendonitis.
4. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition.

Dr. Cohen wrote of his conclusions:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 (sic) to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99......

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

At the level of the left ankle, it is my medical opinion that within a reasonable degree of medical certainty, he has a 30 % permanent partial disability at the level of the left ankle, of which 15 % is due to the injury on or about 8-30-99 and the remaining 15 % is due to the three overuse disorders.

Dr. Cohen agreed, during cross examination, that he found disability on the original August 1999 injury, and then he found one lump sum additional disability for the other three employers, he did not separate out that additional disability as to the subsequent three employers.

On cross examination, Dr. Cohen stated that he is a neurologist. Dr. Cohen stated that he is not an orthopedic doctor. I did have a year internship in which included four months through orthopedics and the rest of the year assisting with orthopedics; this was in 1980 and 1981, the doctor said. I have not had any orthopedic training since then. I am not a surgeon the doctor said.

During cross examination, Dr. Cohen was queried as to what was Rothschild's job at Roloff Trucking, and Dr. Cohen responded - "I believe he was a carpenter with the other employers, and I thought he was with Roloff; I'm not sure". (Cohen Dp. pg. 17) Dr. Cohen testified about his understanding of Rothschild's duties at Karst: "He stated that he had to nearly constantly carry heavy materials and that he did a significant amount of bending, lifting, and squatting." (Cohen Dp. pg. 22) Explaining why it was important to learn about Rothschild's duties at employments subsequent to Roloff Trucking, Dr. Cohen testified:

"Because, in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." (Cohen Dp. pg. 23)

Dr. Cohen noted Rothschild's duties at B.A.M.: "He stated he had to do a lot of lifting of cabinets and doors and various types of equipment, and, I believe, in one of the depositions, he also went into a little bit more detail about that job. "(Cohen Dp. pg. 25) Dr. Cohen stated that some of Rothschild's job duties at Karst were heavy labor job duties, and at B.A.M. were heavy labor duties. The doctor discussed his understanding of Rothschild's job duties at Integrity Installations: "He stated he worked there as a carpenter and that he did a lot of repetitive work. And, I believe, also, that's described in his last deposition. My understanding, though, was, that was not a heavy labor work, as best I can recall." (Cohen Dp. pg. 26) Dr. Cohen was shown the First Amended Claim for Compensation against Integrity Installations filed by the claimant with the Division on September 13, 2003, and it was noted that the Claim stated the following description of what Rothschild was doing when the injury occurred - "Doing repetitive carpentry work and erection of display cases, attempting to carry heavy objects, including cabinets, carpentry equipment, and display case...". Dr. Cohen stated that he had seen this Claim form; when asked if this was consistent with what Rothschild had told him about his job duties at Integrity Installations, Dr. Cohen answered: "As far as the carrying heavy objects, that is different than what I understood from him when I saw him.". (Cohen Dp. pg. 27) The doctor agreed that assuming the statements in the First Amended Claim were correct, he would consider Rothschild's duties at Integrity Installations heavy labor type work. The doctor was asked if this changed any of his opinions, and Dr. Cohen answered: "I believe the last three employers were a repetitive type trauma, so whether it was heavy or not, all of those can contribute to an overuse disorder, so it really wouldn't change my opinions." (Cohen Dp. pg. 28)

It was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "......I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Dr. Cohen agreed he was aware that after working for Karst Construction, Rothschild went immediately to work for BAM Construction, there was no separation between these two employments. Dr. Cohen agreed that there was a clarification in his June 2004 report that in his opinion he no longer believed that Rothschild was temporarily disabled between December of 2001 and when he went to work for Integrity in August 2002 because during this time period Rothschild was off work due to lack of available work. The doctor further agreed that when reading Rothschild's deposition, he saw where Rothschild had said during this period of December 2001 through when he went to work for Integrity in August 2002 he had been exercising and looking for work, and thus more proof that Rothschild was not temporarily totally disabled during this period. Agreeing that in January of 2004 he made the recommendation for a total knee replacement based on x-rays taken in 2002, Dr. Cohen gave the following testimony in his explanation of this decision:

A. He already had severe joint space narrowing at the time I saw him, and it was clear that any x-rays taken at that time would show advanced osteoarthritis of the knee. It wouldn't show an improvement. It would only show either what he already had before or a deterioration.

Q. And, most likely, a progression of symptomatology; is that correct?

A. Yes.

Q. In fact, when you take a look at the three surgeries that were done on the employee's knee in 2000, the first two by Dr. Matthews and the third by Dr. Haupt, those three reports actually show a significant progression of degenerative problems in his knee, don't they?

A. Yes.

Q. Would there be any reason to believe that that degenerative condition wouldn't continue to progress in that right knee?

A. It would progress.

Q. It would progress pretty much no matter what the employee was doing; is that correct?

A. More likely than not, it would have. (Cohen Dp. pp. 65-66)

Dr. Cohen further stated, though:

"In a repetitive trauma type case or overuse type case to the joint, the overactivity or overuse or stressing of the joint leads to increased deterioration of the joint, and that is included in my thoughts when I assess a part of the body that, from the continued stress or damage to the joint, that it is a progressive condition." (Cohen Dp. pp. 68-69) (Ruling: Claimant's objections are overruled. Cohen Dp. pp 67-68)

Dr. Cohen agreed that Dr. Matthews, in January 2002, noted that x-rays at that time showed good joint space, which actually means that in January 2002 Rothschild wasn't bone on bone. The doctor was queried, wasn't it impossible to determine how much of the continued problems in the claimant's right knee, after the original accident, were the result of a natural progression of degenerative changes, activity, work, recreation, etc? Dr. Cohen answered:

"Well, it is quite possible to define his situation, based on the fact that he did have significant problems after the first

injury, but by his history and doing this type of physical work, the condition increased. So talking about him alone, the medical course of this is that it progressed from the type of work that he was doing superimposed upon a bad injury." (Cohen Dp. pg. 70)

Dr. Cohen agreed that the history he received from Rothschild was that his right knee complaints got substantially worse after each of the subsequent employments. It was noted that Dr. Cohen had stated earlier that weight was a factor in degenerative changes in Rothschild's knee; when asked if he had put Rothschild's height and weight in his reports, the doctor answered - "No, I didn't." (Cohen Dp. pg. 72) Dr. Cohen stated that he did not recall Rothschild's weight or height. The doctor agreed that if the records reflected Rothschild was heavy, 260 pounds, that would also contribute to the general deterioration of the right knee.

Dr. Cohen agreed, during cross examination, that with regard to the left shoulder (as also with the right knee) it was his opinion the subsequent employments lumped together aggravated the left shoulder difficulties Rothschild incurred in 1999.

During cross examination by Roloff Trucking, Dr. Cohen stated that he had reviewed all of the medical records he had listed in his reports. The doctor was queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle. Dr. Cohen answered that he did not remember, but further testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." (Cohen Dp. pg. 31) The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. The doctor was queried if his opinion as to disability for the left ankle would be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001. Dr. Cohen answered:

"That really wouldn't change my opinion, because it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk. So if he had a serious injury to his knee from the original injury and was limping or favoring it, that would still go back to the original injury if he did not have an acute injury to the ankle at the time when he fell." (Cohen Dp. pp. 36-37) (Ruling: Claimant's objections are overruled. Cohen Dp. pp. 34-36)

Dr. Cohen was further queried if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, and the doctor responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." (Cohen Dp. pg. 37) Concerning the left ankle, Dr. Cohen stated that it was his understanding Rothschild's problems began several months after the August 1999 fall from the truck but prior to his returning to work in March 2001.

During cross examination, Dr. Cohen agreed that he did not have any treatment records for Rothschild during his employment with Karst from March to September, 2001, only an evaluation by Dr. Berkin performed in May of 2001. Dr. Cohen stated that he was not aware of Rothschild losing any time from work as a result of his knee or shoulder or anything else while working for Karst. Rothschild did not quit working for Karst, Dr. Cohen said, "I recall something in the deposition that they went out of business or closed". (Cohen Dp. pg. 78) The doctor agreed that he was not aware that Rothschild quit working for Karst due to any medical problems or concerns. Dr. Cohen agreed that Rothschild actually went straight to work for B.A.M. after Karst Construction, and after B.A.M. Rothschild was actually available to work all the way up until the Integrity Construction job.

Dr. Cohen stated, during cross examination by Karst, that he did not believe that Rothschild was in need of a total knee replacement in January of 2002. January 2002 was after the Karst employment, the doctor agreed. Dr. Cohen was queried - isn't it correct that the reason for the total knee replacement is the acute injury, the repetitive overuse and the progression of degenerative problems. "That's correct", Dr. Cohen answered. (Cohen Dp. pg. 81)

On cross examination by BAM Construction, Dr. Cohen agreed that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002. Therefore, the doctor agreed, during this period there was no medical taking Rothschild off work for any reason. Dr. Cohen agreed that there was no medical records indicating that Rothschild could not work during the period subsequent to January of 2002 until Rothschild went to work at Integrity in August of 2002.

On cross examination, Dr. Cohen was queried - wasn't it correct that in his review of the medical records he saw no particular injuries while Rothschild was employed at Karst, BAM or Integrity. "Acute injuries, that's correct", the doctor said. (Cohen Dp. pg. 114) Dr. Cohen agreed that Rothschild's symptoms probably further degenerated since his last date of employment.

Dr. Phillip George, M.D., an orthopedic surgeon who evaluated Rothschild on about June 22, 2004 and testified by deposition on behalf of Karst Construction (Karst Exh. No. 7), testified as to his diagnoses:

"My diagnoses were: one, post-traumatic arthrosis, right knee, moderately advance; two, complete rotator cuff tear

right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromiocalvicular joint; three, rotator cuff tear of the left shoulder with degenerative arthritic changes at the AVC joint; four, early post-traumatic changes at the AVC joint; four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." (George Dp. pg. 8) (Ruling: Claimant's objection is overruled. George Dp. pg. 8)

Testifying about his conclusions Dr. George included:

"It was my felling that this gentleman had preexisting osteochondritis dissecans of his right knee and that it was aggravated or exacerbated by the fall of August of '99 (in the course of employment with Roloff Trucking).....(and).....The subsequent surgeries were carried out in 2000......

It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10)

Dr. George testified as to his opinions regarding the role of the various subsequent employments after Roloff Trucking:

"The condition of osteochondritis dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employments from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004......

This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." (George Dp. pp. 10-11)

Concerning the left shoulder, Dr. George's stated opinion was:

"I felt that that same injury we just discussed, the fall off the top of the cab of the tractor in '99, caused the rotator cuff tear.

The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not want surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that." (George Dp. pg. 11)

Dr. George gave his opinions in regard to the left ankle after evaluation:

"The diagnosis, which I offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

It was noted that Dr. George had said Rothschild had injured his left ankle in 1999, and the doctor was asked if he was able to find complaints produced in the medical records. Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, the doctor said. Dr. George agreed that his opinion was the same in regards to the left ankle as with the right knee in regards to subsequent employment, that the subsequent employment played only a minor contributory role in the problem. Dr. George was asked to compare the problems in Rothschild's left ankle to his right knee:

"The nature of the difficulty in his joints is, in my view, the result of a systemic problem. Osteochondritis dissecans is a bona fide orthopedic diagnosis. It has a chapter in any orthopedic text. And what it says is we don't know why people get this, but it's very classic and well-described. And this gentleman fits the diagnosis to a tee.

There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle.

What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab." (George Dp. pg. 14)

Dr. George agreed that he has stated that in regards to the surfaces of the ankle and the knee, these could get sore with activity. In regards to activities such as trucking and whether or not it contributed to any additional problem, Dr. George testified: "I would suggest that those activities would not alter the natural - so-called natural history of this particular condition, which is one of

progressive deterioration with advanced pain." (George Dp. pg. 15) (Ruling: Roloff Trucking objection is overruled. George Dp. pg. 15) Dr. George agreed that in his review of the medical records he did not see any significant alteration with the symptoms.

On cross examination, Dr. George gave further testimony about the condition of osteochondritis dissecans and his reference to the two leading texts for orthopedists:

"If you read that, it says this condition is post-idiopathic, doctor talk for we don't know why. But it then proceeds to say one of the, one of the many possible etiologies might be trauma. What I'm referring to is the kind of trauma that occurs if a 14-year-old kid falls off his bicycle or twists his knee playing soccer, those kinds of thins, or a 21-year-old hits a bridge on his Harley, those kinds of things, we think, can initiate the problem.

It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have." (George Dp. pp. 16-17)

Dr. George gave further testimony:

"Certainly the effects of that (1999 work related traumatic) injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans........" (George Dp. pg. 21) (Ruling: All objections overruled. George Dp. pg. 20)

Dr. George agreed, during cross examination, that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current conditions. (Ruling: Roloff Trucking's objection is overruled. George Dp. pg. 28)

On cross examination, Dr. George stated if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". (George Dp. pg. 31( (Ruling: claimant's objection is overruled. George Dp. pg. 31) It was noted that the doctor described the left ankle as "early post-traumatic arthrosis of the left ankle", and Dr. George explained what he had meant: "That means I expect it to get worse". (George Dp. pg. 32) It was also noted that he had used the term "drastic osteochondritis dissecans", and the doctor was asked if the condition was drastic back in 1999. Dr. George answered: "It was drastic in 2000 when they first started looking in there with an arthroscope? The three operative reports of the two surgeries describe changes which one would have to label drastic, i.e., advanced, long-lasting, severe." (sic) (George Dp. pg. 33) Dr. George gave the following opinion testimony in regards to the claimant's left ankle:

Q. Okay. And my understanding is, from reviewing your report, that the claimant's - when you looked at him it appears, one of the symptoms he did is he had a limp on the left, not the right. So is it a fair statement he was limping from the left ankle, not the right knee?

A. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

Q. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

A. No.

Q. Or the original accident back on August 30, 1999?

A. No.

Q. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

A. That's a fair statement.

Q. In that you say it was substantially caused by the original trauma of 1999 ?

A. That is correct. (George Dp. pp. 33-34) (Note: Ruling: Second Injury Fund and Claimant's objections are sustained. George Dp. pp. 29, 30 and 31)

Dr. Richard Rende, M.D., who evaluated Rothschild on June 2, 2004 on behalf of Integrity Installation and testified by deposition on behalf of Integrity Installation (Integrity Installation Exh. No. 8), testified as to his impressions: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) The doctor explained what osteochondritis dissecans (OCD) was:

"OCD is a traumatic injury that occurs typically in people anywhere between the ages of 15 to 50 that results in a lesion that forms on the weight bearing surfaces of either the medial or lateral femoral condyle -

"-or in lay terms, the end of the femur bone. It's the part of the femur bone that bears weight. It's etiology is typically that of either idiopathic or trauma.

"Idiopathic means that there are people who have no known reason for the lesion to occur, but approximately 50 percent of these patients have a history of trauma. There's some theories that it could possibly be a vascular insult that is later dislodged by trauma, but regardless, many of them are traumatic in etiology and it basically results in complete loss of bone and cartilage from the end of the femur from one event.

"It's probably the most devastating of the injuries to the knee because in one fell swoop the patient becomes, as we would say, bone against bone." (Rende Dp. pp. 9-10)

Dr. Rende testified as to his additional impressions:

"It was my opinion that the osteoarthritis was directly a result of that particular injury. This was not a repetitive micro-trauma type of injury, and I felt that the gentleman also needed permanent work restrictions, and I went over those in my letter to you." (Rende Dp. pg. 11)

It was noted that Dr. Rende used the term "progressive degenerative osteoarthritis"; the doctor was asked what relationship, if any, did that have to OCD, and the following testimony occurred:

A. Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with exposed bone and no cartilage.

Q. Okay.

A. OCD is a disease where it happens and it's done, it's there. It becomes exposed bone from one injury.

Q. And does the progressive degenerative osteoarthritis, was that the result of the OCD injury?

A. Yes. The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results.

Q. And that's the natural disease type process from this type of injury?

A. Yes. We call that the natural history of the disease.

Q. Would his condition then progress like that without regard to his activities?

A. Yes, that's correct. (Rende Dp. pp. 12-13)

Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14) Dr. Rende agreed that he indicated the OCD would have progressed without regard to whatever activities Rothschild was doing. (Ruling: Claimant's objection is overruled. Rende Dp. pg. 14) Agreeing that he felt Rothschild had permanent partial disability to the right knee, Dr. Rende testified: "I felt he had a permanent partial disability of his right leg at the level of his right knee of 30 percent as a result of the osteoarthritis dissecans injury." (Rende Dp. pg. 15) The doctor agreed that this assessment to the right knee was for the overall condition at the time of his evaluation of Rothschild on June 2, 2004. I did not find any disability with regard to the left ankle, the doctor said.

On cross examination by the claimant, the doctor was asked if his recommended restrictions for the right knee was because he thought it would hurt the knee. "Yes, it would make it worse and it would produce significant symptomatology to him", Dr. Rende answered. (Rende Dp. pg. 18) The doctor was then queried - so any kneeling, squatting climbing, or lifting repetitively over 50 pounds would make the knee worse? Dr. Rende responded: "I'm talking about his symptoms when -- when you come to a physician, we're human beings, we don't want to inflict pain on someone. And that's the reason I said that." (Rende Dp. pg. 18)

Dr. Rende, during cross examination, was shown x-rays in the case, and testified as to what a 9/3/99 x-ray revealed as to whether or not this was a traumatically induced OCD versus a preexisting OCD:

"Well, what this x-ray shows is it shows that the base of the lesion is very smooth and sclerotic and it suggests that there's been some separation of the normal vascular bone from the avascular bone below. This suggests that the OCD lesion was, in fact, present for some time." (Rende Dp. pg. 31)

The doctor agreed that the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999. "There's also a very small osteophyte here, but that is really a minimal degenerative change, so -". (Rende Dp. pp. 31-32) The medial joint space looked

normal on the 9/3/99 x-ray, Dr. Rende said. The doctor commented on the differences seen on the next x-ray taken on 2/9/00:

"The difference here is that now the loose fragment has been removed and there appears to be significant narrowing in the medial joint space, at least 30 percent loss of height of the medial joint space, relative to the films that were taken preciously." (Rende Dp. pg. 32)

The next x-ray taken on $8 / 1 / 00$ is essentially the same, Dr. Rende said, "(T)he difference in the two films, the osteophyte that was located in the medial joint space in the prior film, which was two millimeters, is now probably three millimeters." (Rende Dp. pg. 32) Concerning the last x-ray taken on 1/2/01, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." (Rende Dp. pg. 33) Dr. Rende agreed that after viewing the 9/3/99 x-ray, it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33) Dr. Rende was asked - is there any question, after reviewing the x-rays, that after this accident of falling off the truck, Rothschild had a Type III OCD lesion. The doctor answered: "Well let me answer this. There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." (Rende Dp. pg. 36) Dr. Rende agreed that from that point on the condition was going to progress, and that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression throughout the year 2000 .

During cross examination, it was noted that Dr. Rende had testified earlier that Rothschild's was not a repetitive microinjury situation; Dr. Rende was asked to explain what he meant by that and the following testimony occurred:

A. Well the question that was brought to me by the letter that I received is could this have anything to do with his subsequent jobs, and my answer was no. This occurred as an injury and the subsequent jobs didn't have anything to do with it.

Q. So subsequently activity - I think you testified to it on direct - can produce some symptoms for Mr. Rothschild, is that correct?

A. Once you've got this you're going to have symptoms and they're not going to go away.

Q. But the underlying progress of this disease got set in stone when Rothschild fell off the truck?

A. It got set in stone when that piece broke loose, became a Type III lesion.

Q. Okay. And nothing really that he did after that could significantly accelerate or aggravate the underlying condition of OCD?

A. It could have, but it didn't in this case, and the reason it didn't is because of his age. (Rende Dp. pp. 37-38)

Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende explained why: "...because they've got bone on bone, and bone on bone is what happens. It's one of the few conditions in the human body where one day you don't have arthritis and the next day you've got bone on bone." (Rende Dp. pg. 39) The doctor was asked these activities that cause Rothschild to be symptomatic, they're not changing the underlying nature of his OCD disease are they? "They are not", Dr. Rende answered. (Rende Dp. pg. 39) It was noted that Dr. Rende had testified earlier that after Rothschild fell off the truck, on a scale of 1 to 10 he was a 10 , he was already as bad as he was going to get; the doctor was asked - with regard to subsequent activities, did they aggravate his pain or do they aggravate his underlying condition? "It aggravates his pain and it puts other parts of his body at risk", Dr. Rende answered. (Rende Dp. pg. 55) Agreeing that he meant other parts of his body outside of his knee; "(H)is knee is already as bad as it's going to get", the doctor further said. (Rende Dp. pg. 55) Dr. Rende added:

"Working for 29 days for this guy or 6 months for that guy didn't make this guy's knee suddenly need to be replaced. It was the lesion that occurred at his age that resulted in bone on bone, with a snap of the fingers." (Rende Dp. pg. 55)

It is found, firstly, considering the evidence, that the competent and substantial evidence establishes that the condition in Rothschild's right knee is osteochondritis dessicans (OCD) and progressive degenerative osteoarthritis; the competent and substantial evidence reveals that the claimant had this condition prior to working for BAM Construction. It is found that there is no competent and substantial evidence establishing that the claimant's performance of his work duties at BAM Construction approximately from October 1, 2001 to about December 30, 2001 aggravated this preexisting OCD condition in the claimant's right knee. There is no dispute in the evidence that Rothschild received no treatment during the time of his employment with BAM Construction. Dr. Matthews' treatment records indicate that he did not see the claimant between the time period of July 12, 2000 and January 15, 2002; Dr. Matthews testified to seeing a progression in the claimant's right knee condition only between the time of the January 2000 surgery and the June 2000 surgery, and between the surgery performed by Dr. Haupt later in 2000, and upon a comparison of radiographs from January 2002 and September 2002 which showed that Rothschild had had a significant progression of the knee condition. Dr. Matthews’ January 15, 2002 treatment entry concerned examination of the right knee. The January 15, 2002 entry did not note any complaints or history from Rothschild in regards to his employment with BAM Construction; it was written that Rothschild had apparently had surgery perform by Dr. Haupt and since that time his knee had been him somewhat with occasional problems such as swelling, stiffness, inability to get down on the leg. Dr. Matthews next wrote a May 15, 2002 report to the claimant's attorney in which the doctor noted that he had reviewed Rothschild's file, and discussed the August 30, 1999 injury, the

treatment he had provided, problems in the knee that preexisted the August 30, 1999 injury, and possible future treatment, noting: "I believe that these treatments are more likely than not to occur in the future, for this gentleman suffers from a progressive degenerative problem with his knee, which undoubtedly will continue and be in need of medical attention in the future....". Dr. Matthews was queried during cross examination - Could you point at anywhere in your record to places that would show us, okay, where a subsequent employment can be directly related to any objective findings in the knee?; the doctor's answer was - "Probably not." Dr. Rende stated that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression of the right knee condition throughout the year 2000; upon comparing a x-ray taken on 8/1/00 and the last x-ray taken on 1/2/01, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." It was Dr. Rende's stated opinion that the condition in the right knee was not a repetitive micro-injury situation and had nothing to do with Rothschild's jobs subsequent to Roloff Trucking, and further testified - "This occurred as an injury and the subsequent jobs didn't have anything to do with it. This occurred as an injury and the subsequent jobs didn't have anything to do with it." Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende further said that these activities that cause Rothschild to be symptomatic are not changing the underlying nature of his OCD disease; with regard to subsequent activities it aggravates his pain but does not aggravate his underlying condition, "(H)is knee is already as bad as it's going to get". Dr. George specifically stated that Rothschild's further employment after the episode of August of '99 at Roloff Trucking did not play a major role in exacerbating the preexisting problem in the right knee, that any employment subsequent to his work with Roloff Trucking played a minor role in his present right knee condition; Dr. George agreed that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current right knee conditions. Testifying that the condition of osteochondritis dissecans had been preexisting and was ongoing at the time of all employments from Roloff down the road, Dr George further testified: a. "This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself."; b. The nature of the difficulty in Rothschild's joints is the result of a systemic problem and in the right knee it is a diagnosis of osteochondritis dissecans, and it "causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab"; c. Subsequent to the 1999 work related trauma, "(H)is ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans". Dr. Cohen offered the opinion that Rothschild's performance of his work duties at Bam Construction was a type of repetitive or overuse or occupational problem causing the increase in the condition in the right knee. Dr. Cohen, though, admitted that there were no records of treatment during the period of Rothschild's employment at BAM Construction; that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002; he noted that he had only an evaluation by Dr. Berkin. Dr. Berkin performed an evaluation of Rothschild on May 9, 2001, which was during Rothschild's employment at Karst; Dr. Berkin noted that the evaluation was in regards to the August 30, 1999 work related injuries, and also noted that Rothschild was working for Karst at the time of his evaluation. Dr. Berkin wrote in the May 9, 2001 report that Rothschild was continuing to have significant symptoms to his right knee, and that Rothschild was currently working as a trim carpenter but if he continued to have symptoms at his current level of activity, he recommended that Rothschild consider alternative employment that was less physically demanding. Dr. Berkin's May 9, 2001 evaluation report, however, does not state or show evidence of a worsening of the underlying condition in the claimant's right knee at that time; there were no x-rays performed by Dr. Berkin to determine the extent or change in the right knee condition, and Dr. Berkin assessed disability for the August 30, 1999 injury and preexisting disability and made no comment or assessment of additional disability from employment subsequent to the Roloff Trucking injury. It is found that there is no evidence indicating a progression of the condition in the right knee during the time period of Rothschild's employment with Bam Construction, thus it is not possible to make a finding that the conditions under which the claimant worked at Bam Construction caused an aggravation of the OCD condition in the claimant's right knee.

It is found,, firstly, considering the evidence, that the competent and substantial evidence establishes that the condition in Rothschild's left ankle is chronic calcific tendonitis/plantar fasciitis/arthritis. There is no dispute in the evidence that during the time of his employment with BAM Construction (approximately from October 1, 2001 to about December 30, 2001), Rothschild received no treatment. The record of Dr. Haupt is the first to reflect left ankle complaints from the claimant in a March 20, 2001 examination report; the doctor noted that on that date, Rothschild's main complaint was left ankle discomfort; Dr. Haupt's diagnosis after examination was - "Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury." Dr. Haupt's treatment recommendations on March 20, 2001 were that Rothschild could pursue strengthening exercises on his own and Rothschild was taught a few exercises, and over-the-counter anti-inflammatories could be used. Dr. Haupt finally wrote in the March 21, 2001 examination report: "There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises." The next reference to the claimant's left ankle in the medical records was by Dr. Matthews in an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle. Dr. Matthews had treated the claimant for his right knee problems from 10/20/99 through July 2000 and made no mention of left ankle complaints from the claimant; Dr. Matthews' again began treating Rothschild on 01/15/02 regarding his right knee, and the 2002 records made no mention of the left ankle until the October 28, 2002 opinion letter; in the October 28, 2002 letter, Dr. Matthews wrote that he felt the right knee injury had aggravated the pre-existing condition of calcific tendonitis of the Achilles tendon and subsequently caused increasing ankle and heel discomfort. Dr. Matthews' explanation in the October 28, 2002 letter was the fact that Rothschild had shifted his weight to the left lower extremity to protect and/or lessen the trauma to the right knee was a significant causative factor adding to the symptoms of the left ankle at that point; the doctor noted that this condition was usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents

and rest. Dr. Matthews testified during cross examination that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about. Dr. George testified as to his diagnoses after evaluation of Rothschild on June 22, 2004, which included: "four, early posttraumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." This diagnosis of post-traumatic arthrosis, the doctor said, is fancy talk for degenerative arthritis. Dr. George noted that Rothschild had relayed to him that he had injured the ankle when he fell off the top of the truck in August of '99 but the ankle had not been addressed because his knee and shoulder problems were worse. "Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99", Dr. George testified. When queried if he had been able to find complaints of injury to the left ankle in the medical records, Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, Dr. George stated. On cross examination, Dr. George admitted that if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(t)he next day". Dr. George, it is found, changed his opinion on the cause of the diagnosis of arthrosis of the left ankle giving this additional testimony:

A. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

Q. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

A. No.

Q. Or the original accident back on August 30, 1999?

A. No.

Q. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

A. That's a fair statement.

Q. In that you say it was substantially caused by the original trauma of 1999 ?

B. That is correct.

It is found that Dr. George's admission that the basis of his former opinion - the left ankle complaints and condition was substantially caused by the August 1999 trauma - was vacated by the doctor. Dr. George gave further testimony as to his opinion on the cause of the claimant's left ankle problems: "The nature of the difficulty in his joints is, in my view, the result of a systemic problem"; "There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle."; "What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab.". Dr. George gave the following testimony when expressing his opinion of the role of the various subsequent employments: "This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." Dr. George agreed, during cross examination, that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current conditions. Dr. Cohen's diagnoses after evaluation of Rothschild in January 2004 included: 1. Due to a compensatory gait, he has left ankle instability with chronic tendonitis; and 2. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition. Dr. Cohen testified:

"It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 (sic) to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable."

Dr. Cohen further testified: "....in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." Dr. Cohen agreed, during cross examination, that he found disability on the original August 1999 injury, and then he found one lump sum additional disability for the other three employers, he did not separate out that additional disability as to the subsequent three employers. Dr. Cohen admitted, during cross examination, that there were no records of treatment of any kind during the period of Rothschild's employment at BAM Construction, that there was no indication of any medical treatment from September/October of 2001 until January 2002; he noted that he had only an evaluation by Dr. Berkin. Dr. Berkin's evaluation report of May 9, 2001 indicated that Rothschild was being seen for purposes of rating in regards to the August 30, 1999 work related injury; in the May 9, 2001 report, there was no mention of a left ankle complaint, no diagnosis in regards to the left ankle, and Dr. Berkin made no mention of the left

ankle in his assessment of disability. It is found, considering the evidence, that the competent and substantial evidence does not support Dr. Cohen's opinion of a development of or an increase in the conditions in the claimant's left ankle as a result of performing his work duties at BAM Construction: a. there are no treatment records during the time of the claimant's employment at BAM Construction, thus no objective evidence of a development or an increase in the conditions in the left ankle at that time; b. Dr. Matthews stated the left knee problems were due to a compensatory gait, but made no specific reference to the claimant's work duties at BAM Construction or any employment or any employment duties; and c. Dr. George specifically opined that none of the claimant's subsequent employments after Roloff Trucking were a substantial factor in the development of the conditions in the claimant's left ankle. It is found that the competent and substantial evidence fails to establish a direct causal connection between the claimant's work duties at BAM Construction and the claimant's left knee conditions.

It is found, firstly, considering the evidence, that the competent and substantial evidence establishes that prior to employment with BAM Construction Rothschild had a condition in his left shoulder of a complete tear of the supraspinatous tendon, the foremost rotator cuff tendon. There is no dispute in the evidence that during the time of his employment with BAM Construction (approximately from October 1, 2001 to about December 30, 2001), Rothschild received no treatment. Rothschild testified that working at BAM really didn't aggravate or make the left shoulder worse. Dr. Haupt wrote in March 20, 2001 examination report that Rothschild indicated that his left shoulder was doing quite well; the doctor wrote that Rothschild had reached maximum medical improvement regarding is left shoulder, and gave a rating in reference to a August 30, 1999 work related injury. Dr. Berkin evaluated Rothschild on May 9, 2001, while Rothschild was working for Karst Construction, in regards to the August 30, 1999 work related injuries; the doctor noted that Rothschild had complaints of weakness to his left arm and shoulder symptoms were aggravated by lifting; Dr. Berkin wrote that Rothschild remained symptomatic in his left shoulder, and the doctor gave restrictions. Dr. Morrow evaluated Rothschild on October 8, 2002 in regards to injuries Rothschild had sustained in the August 1999 accident; the doctor noted Rothschild's complaints of pain in the left shoulder upon some lifting and movements, and that since Rothschild was not working, the pain occurred about two or three times a week. Dr. Matthews testified at his October 1, 2004 deposition that at the current time he was not sure as to Rothschild's symptoms in his left shoulder, but further testified: "Most authorities would feel that or believe that an untreated rotator cuff tear will also progress to develop what's called posttraumatic or rotator cuff arthropathy, which is basically arthritis of your shoulder." When asked what effect, if any, would employments in carpentry subsequent to Roloff Trucking have on Rothschild's right knee and left shoulder, Dr. Matthews stated an opinion about the right knee, only. Dr. George's only testimony in regards to the left shoulder was:

"I felt that that same injury we just discussed, the fall off the top of the cab of the tractor in '99, caused the rotator cuff tear.

The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not want surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that."

Dr. Cohen diagnosis in regards to the left shoulder was: in regards the work-related injury of 8-30-99 - Left shoulder rotator cuff tendon tear and impingement. Dr. Cohen's conclusion were:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 (sic) to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99......

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty......(a)t the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

On cross examination, Dr. Cohen agreed that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002. Dr. Cohen was queried - wasn't it correct that in his review of the medical records he saw no particular injuries while Rothschild was employed at Karst, BAM or Integrity. "Acute injuries, that's correct", the doctor said. (Cohen Dp. pg. 114) The doctor was asked if he expected Rothschild's condition to change in the future without further medical attention. "He will, more than likely than not, have increased arthritic changes in the knee and in his shoulder and may have increased pain from that", Dr. Cohen answered. (Cohen Dp. pg. 84) The doctor agreed that this was because of the nature of arthritic changes and its progressive nature. It is found, considering the evidence, that the competent and substantial evidence does not support Dr. Cohen's opinion of a development of or an increase in the conditions in the claimant's left shoulder as a result of performing his work duties at BAM Construction, thus Dr. Cohen's opinion is not probative on the issue. The substantial weight of the medical evidence and opinions, it is found, acknowledge that the nature of the condition in the left shoulder is that it is a progressive condition.

As no occupational diseases have been established as a result of the claimant's employment at BAM Construction, compensation is denied. All remaining issues are therefore moot.

The following exhibits were admitted into evidence in all four cases (except as specifically designated):

No. A: Deposition transcript of Raymond Cohen, D.O. taken on behalf of the claimant on July 14, 2004; with the attached exhibits thereto of Dr. Cohen's reports of 1/15/04 and 6/22/04, the Claim for Compensation, the 5/3/01 report of Shawn Berkin, D.O., the 10/8/02 report of J. W. Morrow, Jr., D.O. as well as the office notes of Dr. Matthews. (Second Injury Fund -- admitted subject to the objections therein)

No. B: Deposition transcript of Thomas D. Matthews, M.D. taken on behalf of the employee on October 1, 2004 with attached exhibits

No. B-1: Deposition transcript of Thomas D. Matthews, M.D. taken on behalf of the employee on November 19, 2004 (continued deposition of Dr. Thomas D. Matthews, M.D.) with attached exhibits

No. C: October 14, 2000 report of James Israel (Ruling: Second Injury Fund's objections on probative value grounds of - lacking foundation, and based on hearsay, and based on some medical records or lack thereof - are overruled.)

No. C-1: Curriculum Vitae of James Israel

No. D: Certified medical records of Fischer Chiropractic Center, certified 9/17/02 (26 pages)

No. D-1: Certified medical records of Fischer Chiropractic Center, certified 10/14/04 (4 pages)

No. E: Certified medical records of HealthSouth Tri-County Surgery, certified 9/30/02 (15 pages)

No. F: 10/13/2000 operative report of HealthSouth Surgery Center of West County concerning the right knee procedure performed by Dr. Herbert Haupt, M.D.

No. G: Certified medical records of the Herman Area District Hospital, certified 10/4/02 (12 pages)

No. G-1: Certified medical records of the Herman Area District Hospital, certified 10/13/04 (6 pages)

No. H: August 4, 2000 MRI of the right knee performed at Missouri Baptist Medical Center

No. H-1: August 4, 2000 left shoulder arthrogram performed at Missouri Baptist Medical Center

No. I: Certified medical records of ProRehab, P.C., certified 11/17/04 (16 pages)

No. J: Certified medical records of St. John's Mercy Hospital - Washington, Missouri, certified October 9, 2003 (3 pages)

No. K: Certified medical records of Washington Chiropractic Clinic, P.C., certified 10/25/02 (36 pages)

No. L: WITHDRAWN

No. M: 10/16/03 letter of Ray Gerritzen demanding back Temporary total disability benefits of \$2,378.88 plus interest (Admitted into evidence in one case, only - Injury Number 99-11262)

No. M-1: WITHDRAWN

No. N: Report of Injury of Roloff Trucking for the 8/30/99 accident (Admitted into evidence in one case, only - Injury Number 99-11262)

No. O: West County Radiological Group invoice for $\ 217.00 for the MRI of the upper extremity performed at St. John's Hospital Washington, Missouri on 10/28/99 (Admitted into evidence in one case, only - Injury Number 99-112621) (Employer/Insurer Attorney Mohan: I don't have an objection to the invoice. But because today is my first knowledge of the fact that Attorney Gerritzen intended to try and get a past medical expense that wasn't paid, it's entirely possible that my client also paid this invoice and I don't know that at this time. So I would reserve the right, if in fact I find that out that its been paid or maybe double paid by us and him that I could present evidence of that later.)

No. P: Photo

No. P-1: Photo

No. P-2: Photo

No. P-3: Photo

No. P-4: Photo

Employer/Insurer's Exhibits:

No. 1: Deposition transcript of James England, Jr. Taken on behalf of Roloff Trucking on October 14, 2004, with attached exhibits (Admitted subject to the objections therein)

No. 2: Medical records of Dr. Herbert Haupt, M.D. from August 1, 2000 through completion of treatment, which is March 20, 2001

No. 3: Medical records of Dr. Yadava, D.O. dated between March 14, 2001 and March 28, 2001

No. 4: Radiology report of Radiology Consultants Midwest, dated September 7, 1999

No. 5: Medical records of Dr. David Peeples, dated February 20, 2001

No. 6: WITHDRAWN

No. 7: Deposition transcript of Dr. Phillip George, M.D. taken on behalf of employer, Karst Construction on August 9, 2004

None.

No. 8: Deposition transcript of Dr. Richard Rende, M.D. taken on behalf of Integrity Installations on October 6, 2004

No. 9: Certified employment records from Integrity Installations.

Roman Numeral I: Self-authenticating certificated records from the Missouri Division of Employment Security concerning the claimant, Charles Rothschild, Jr.

No. 1AA: Attorney lien documents and agreement (Admitted into evidence in 99-112621, only)

Charles Gordon Rothschild, Jr., the claimant, testified that he was born on April 29, 1953. I graduated from high school, Washington High School, in 1971, Rothschild said. I entered the United States Air Force in 1971 and was in for three years, or until 1974 when I was honorably discharged, he stated. In the Air Force I did primarily refrigeration and air conditioning, the claimant stated. I used the GI Bill to attend East Central Junior College in Union, Missouri where I took a course in auto mechanics and machinist for just a few months. I then got jobs in air conditioning and refrigeration, Rothschild agreed, and then in 1975 I changed fields and started working in various factories. This did not work out, the claimant said, and in approximately 1977 and 1978 I worked a few months for Shell Oil Company driving trucks from St. Louis to Rolla, Missouri and then drove trucks a few months for Food Service Systems, and then drove trucks for Southern Products Company as well as several other ones such as Chromalloy. I did not do any carpentry work for any of these companies, the claimant said. I was driving mainly 18-wheelers, he said, but I also drove dump trucks and 14-wheelers. Rothschild agreed that he did interchange driving trucks with doing carpentry work, doing one or the other. I did not do refrigeration work after the 1970s, he said.

I first went to work for Roloff in, I believe, it was early 1990, Rothschild testified, and worked approximately nine years for Roloff before the first accident happened. During this time frame for Roloff I just drove a dump truck and whatever came with that, he said.

Prior to August 30, 1999 I had no problems or difficulties referable to my left or right shoulder, my right knee, nor my left ankle, Rothschild said.

On August 30, 1999 I was delivering rock to a construction site in a dump truck for Roloff, Rothschild stated, and as I was starting to leave the dump site after dumping the rock I noticed that one of the tree limbs had broken off in the cab shield and was hanging down over the windshield. I got out and pulled it out and that's when the accident happened, Rothschild said, I slipped and fell off the side of the truck, about 11, 12 feet, and landed best I could, which wasn't very good. Asked to give the details of what happened, the claimant testified: I saw the tree limb; I pulled over to the side of the road to get it out of there, it was in the way or would fall off in traffic. So I pulled it out, and when I pulled it out I climbed up the side of the truck and it was 11, 12 foot up. I jerked it out and it didn't come; I jerked some more and all of a sudden it came and I flew off the side of the truck and landed the best I could on the ground, and I tore up everything. I landed pretty much on my feet the best I could and then rolled, primarily landing I think on the right leg then the left; and my knee immediately, and my left shoulder, was hurting pretty bad, the claimant said. I think I twisted my knee because it was really sore and my left shoulder was too, it must of happened when I rolled on the ground on my left shoulder. I experienced pain immediately in my right knee, left shoulder, and my left ankle and heel area. I then got back in the truck with a little bit of difficulty, he said, and I took the truck back to the shop.

The next day I tried to get up and I was really hurting, the claimant said, my right knee was killing me, it was so swolled up it was starting to turn colors. And my left shoulder, I could not even lift it up, Rothschild said, in fact I had a real trouble getting out of bed, and I knew I wasn't going to be able to work that day. So I called in and told them that I had hurt myself that night, and I had to go see the doctor, or chiropractor, or something. Agreeing that he saw Dr. Al Fischer, Rothschild stated that the boss used this doctor, Roloff used him. Rothschild was asked if Mr. Roloff ever concurred in his going to Dr. Fischer. Well, I told him I was

going, Rothschild answered, I don't know if - he didn't disagree with it; I mean, I told him who I was going to see. Mr. Roloff, my boss, didn't tell me yes and didn't tell me no when I was going to Dr. Fischer, but he knew I was going to Dr. Fischer, Rothschild stated.

Dr. Fischer x-rayed and checked my range of motion out on mainly my left shoulder and my right knee 'cause I was really hurting, I was having a real hard time walking, Rothschild said.

Dr. Fischer started making me do these movements and exercises, and I think there was hot packs and cold packs and ultrasound on my left shoulder and I think my right knee too, he said. Then Dr. Fischer referred me to Dr. Thomas D. Matthews about a month later as he couldn't do me any good, Rothschild said. He agreed that October 20, 1999, as indicated by the records, sounded right. Dr. Matthews scheduled me for an MRI and checked my range of motion and everything, and x-rayed, the claimant said, and I don't remember exactly what, but he give me a cortisone shot after he read that MRI report. I can't remember if he was the one that give me injection into my shoulder; I definitely got one in my knee, and they suggested I had loose bodies in my knee; and he scheduled a surgery, first surgery, on my right knee, Rothschild said. He agreed that this first surgery was on January 19, 2000, and then the doctor did a second operation on June 22, 2000. I was still hurting pretty bad and he had give me several injections, Rothschild stated, and I went through therapy and everything trying to get my strength back, and he did another surgery.

From August 30, 1999 up through the second surgery I wasn't doing any work, I was off work, the claimant said, I wasn't able to work because my knee and shoulder were ruined, both of them was just hurting so bad. It helped a little bit what he did, but it was just real bad, Rothschild said, I could hardly walk and I could hardly lift my left arm. I went through therapy at ProRehab, and he said it was a total tear in my rotator cuff so they couldn't believe that I got it working, the claimant said. He agreed that he had physical therapy in this time frame. Rothschild agreed that the workers' comp insurance company for Roloff had a nurse from the insurance company go to Dr. Matthews' office with him, a Gail Hanks (phonetically) from England and Company.

I saw Dr. Matthews until July of 2000, Rothschild agreed, and then they cut me off from Dr. Matthews completely, and Gail Hanks said we were going to another doctor, Dr. Haupt, that she had scheduled me with Dr. Herbert Haupt. With Dr. Haupt I believe I got an arthrogram on my left shoulder, and I can't remember but I think he did the MRI, too on my right knee. I don't know when it was but he told me he I needed surgery on my right knee. Rothschild agreed that Dr. Haupt then performed a third surgery on his right knee. After this surgery compared to the other previous two surgeries by Dr. Matthews, I was horrible, the claimant said, he had cut some tendons and ligaments in there and my knee was just a rainbow, it was so swolled up I couldn't even move; it was all wrapped up in bandages, it was soaked with blood; I was screaming in agony, Rothschild said. This was immediately after the surgery, he said, it was the first time in my life I've ever had morphine, which was for the pain in the whole right leg after surgery. My knee never did get fixed, the claimant said, it felt better for a while because he kept putting cortisone injections in it, and then he got this unloader brace that I've got on right now. The diagnosis the doctor made with reference to my left shoulder was that I had a total tear of the rotator cuff too, Rothschild said. The doctor offered to operate on my left shoulder, but I did not let him, the claimant said, I told him that no surgery would get done on my left shoulder until my right knee was fixed. I told him, you're gonna make a total invalid out of me, which I almost was already, the claimant said. Rothschild was asked if he was asking for surgery on the left shoulder now at this point. It's starting to get bad again, but I don't know if I want it; I guess I do; it needs to be fixed; I can't go on like this, the claimant answered. He agreed that it was part of the future medical treatment he was asking to be awarded, treatment of the left shoulder including surgery if it's deemed proper by a physician.

My right knee now, Rothschild stated, I bare all my weight on it and I just can't do the things I ever wanted to do. I can't work, I can't stand long, I can't lay long, I can't sit long, Rothschild testified, I can't do anything. I have to keep moving positions; I just cannot stay in the same position; I haven't slept in a bed since this happened, he said. I sleep on the couch every night and I have to throw my leg over the back of the couch to get in a position with pillows; some times I wake up in the middle of the night, it just hurts, the claimant said. Rothschild agreed that he is asking for an award of treatment for the right knee, including surgery on the right knee, if needed.

After the three surgeries on the right knee I have had a total of maybe three or four falls, Rothschild stated. It just gives out; it's just like one minute it's there and the next minute gone, you're on the ground. Agreeing that there was one particular fall at the end of July or first of August of 2003 at home, Rothschild stated that what caused that fall was he was going down the stairs and he had just about made it down the stairs and got down to the last couple, three steps and it just folded up on me. I tried to catch myself, he said, I was half running trying to catch up with my feet and I landed on my right hand, which jammed my shoulder back up, scraped up all the skin off my hand and everything, and I couldn't hardly get off the ground. My right shoulder was like it was hanging there; I couldn't hardly move it away from my body at all, the claimant said. It was my right knee that gave way causing me to fall and injure my right shoulder, Rothschild said. What was different about this fall compared to the other previous falls I had on the right knee was that it's only one that happened when I was going down the stairs, the claimant said. On other previous falls on my right knee I had not injured any other part of my body, he said. As a result of this fall down the stairs my right shoulder is -- it's useless, Rothschild testified, I'm right handed and I can't do anything with it. I can't hardly even lift it up to wash my hair, brush my hair, just to get something out of the cabinets, you know, a glass, or open a door, or pulling a light switch, he said. There has been a diagnosis of a full thickness tear of the rotator cuff in the right shoulder also, the claimant agreed. Rothschild stated that he is asking for an award of treatment of the right shoulder, including surgery. The claimant was asked if the injury to the knee at Roloff in August of 1999 was the cause, as far as he was concerned, for the fall in July, 2003. It is what caused it because my right knee gave out going down the stairs, otherwise it wouldn't have happened, Rothschild answered. He

agreed that the right knee was the same knee that was injured in the fall from the truck.

Dr. Haupt did his surgery, and then I was off work the whole time until Dr. Haupt released me back to work in March of 2001, I believe it is. March of 2001 when I went to work for Karst, Rothschild stated, he was gonna release me anyway, so I found a job. The claimant agreed that he was completely off of work from August of 1999 until March 2001, and agreed that this was all due to the injuries at Roloff. With regard to giving further treatment in March of 2001, Rothschild testified, I told Dr. Haupt my knee was still hurting and he sent me to all these other doctors -- Yadava and Peeples -- which it didn't do a thing for me, and then he finally said, "Well, there's nothing more that we can do for you. You just need to go back to work.". So I found a job and I asked him to release me, and I went to work for Karst Construction. Rothschild agreed that he was asking to be awarded interest, 10 percent per annum, on the $\ 2,378.88 from March 28, 2001, the late TTD payment.

Rothschild stated that his brother and a friend of his had both worked for Mr. and Mrs. Karst, and they had been trying to get him to come to work there. I started with Karst on March 30, 2001, I believe, he said, right after Haupt released me. I worked there until late September or early October of 2001, he agreed. When I went to work for Karst my right knee, left shoulder, and left ankle -- well, nothing was really fixed, the claimant said. The left shoulder was probably the best thing out of everything but I had to do all this heavy carrying, Rothschild stated. My left ankle and my right knee were just getting worse and worse the whole time, he said, we had to keep carrying all these heavy doors and equipment. And these fire doors were very heavy, they were solid-core particle board, he stated. My job when I worked for Karst was trim out of St. Louis Housing Authority houses. We had to move the cabinets in and install them, and all the doors were fire doors and we had to load them on trucks, and take them out of the trailer to the houses and carry them in the house, and install them, he said. The doors were so heavy, they were pre-hung with the trim on them, he said, and when you lifted them up the trim would just disintegrate if we didn't lift them up just right. Rothschild agreed that he was doing these things constantly while working at Karst. He was asked what, if any, affect did this have on his right knee, left shoulder, and left ankle. Well, everything I did just kept getting worse, the claimant answered. It was mainly pain in my right knee and my left ankle that was giving me the fits there, he said, I had to take breaks and Joe had the laborers do a lot of the hard lifting and carrying for me and stuff. I worked an 8 -hour day at Karst, the days we worked usually, Rothschild stated. It was a fulltime job but there was days that you didn't work and there was times that there was nothing to do; something didn't come in or something like that, he said. Rothschild agreed that he had to do walking stairs, explaining that with regard to his right knee he would step up with his left foot first when he had to do that. I tried to avoid stairs, the claimant said. My right knee it was definitely worse than anything because it would just be grinding and gritting and popping and completely swollen all the time, he said, and this brace when you sweat - it's supposed to be made for sweating - the more you sweat, and it was very hot out there as it was in the summer time, this brace slipped down on my leg and actually eaten holes, and the bleeding where the pads ate into my leg, Rothschild testified. And when the thing slips down it's putting pressure on the wrong spots and it gets lots worse, the claimant stated. He stated that he wore a brace on his right knee then that was given to him by Dr. Haupt. I made complaints to Joe Karst and P. J., his wife, about the brace rubbing and showed it to them, Rothschild said, they saw it many times. They had the laborers do a lot of the hard lifting and carrying, stocking the rooms with doors and things like that because I couldn't do it, the claimant said. Joe Karst worked with me getting these houses done, Rothschild stated, Joe would hold something up for me; he wasn't really a carpenter or anything, but he would help me do different things like carry something in the room. Rothschild agreed that Joe was there and had on several times told him to sit down and take a break, or something like. He saw I was hurting, Rothschild said.

Rothschild was shown Claimant's Exhibits P- 1, 2, 3, and 4 and identified them as pictures of the knee surgery by Dr. Haupt a few days afterwards. These pictures were taken in October of 2000, the claimant said, a friend of mine took the pictures. These pictures correctly portray the way my knee looked at that time after I pulled the bandages off, he said.

My work at Karst ended because Karst had some pretty bad financial troubles, Rothschild said, they actually ended up losing everything and went out of business.

When I stopped working for Karst I then went to work for BAM Construction Company. I worked to BAM Construction approximately from October 1, 2001 to about December 30, 2001, he said. At BAM Construction Company I strictly worked on the Lenox Hotel, Downtown St. Louis and trimmed quite a few of the hotel rooms out. I was a finish carpenter for BAM Construction, he said. My work entailed my physically doing such things as hanging of doors, the vanities, doing baseboard, stocking the rooms with the trim. They had one elevator, which we mostly used, but if you couldn't get a elevator a lot of times you had to use the stairs carrying your tools, and sometimes you had to go lug a trim from a different floor, he stated. We were lifting the doors that were all stacked in the room usually one wall, Rothschild said, and you had to move them into the correct rooms and openings. And then you had to get the baseboard up there, set up your saws and move the baseboard, and just everything to do with trimming that room out for a finish, so it's ready for the painter, he said. I was lifting and carrying tools, doors, big baseboards, and stocking the rooms, Rothschild said. It was a wide baseboard, the claimant said, about 9 or 10 inches wide and sometimes 16 to 20 -foot long. I usually did not carry the baseboards with someone else, he stated, sometimes if you needed help you could get one of the other guys, but they had their responsibilities. At BAM I worked from 6:00 a.m. to 2:00 or 2:30 p.m., or 7:00 a.m. until 3:00 p.m., Rothschild said, and pretty well five days a week. He agreed that at that time he was making $\ 30.00 an hour. At BAM I had to do more stairs than while working for Karst because I couldn't get a elevator most of the time, Rothschild said.

Rothschild agreed that he worked at BAM for approximately three months in the end of 2001. He was asked what affect, if any, did working there have on any part of his body. Well, you had to put the baseboard in, which required bending down, and the

climbing the stairs and everything; just everything got worse, Rothschild answered. My knee got more swollen, the claimant stated, it was always hot in there and I was always sweating, and my brace would fell down and get in the wrong location and eat my leg up, and in the wrong location it put the pressure on the wrong point. I didn't have that much trouble with my left shoulder, Rothschild said, I could use my right shoulder to pretty well take the load. Rothschild agreed that this was before he had the rotator cuff tear on the right shoulder. I never could lift the left shoulder right all the way then, Rothschild said, I didn't have the strength in it after that accident, but I got most of it back through the therapy that I took. It never got back to the way it was before I fell off the truck at Roloff, the claimant said. He was asked if working at BAM aggravated or made the left shoulder worse. It really didn't, the claimant answered, it didn't make it any worse. The left ankle it definitely did make worse because -- well, my right knee was hurting so bad I had to bare all the weight on my left, Rothschild stated.

The job with BAM ended when the Lenox Hotel renovation ended, which would have been the end of December, Rothschild agreed. I did not work anywhere from the end of December, 2001 till August of 2002, the claimant said. During those roughly seven months I just did exercises at home and I tried to find some jobs, Rothschild said, but when you're in the union you get fined pretty heavy if you go somewhere else and work. So I put my name in the carpenters hall and it was 500 carpenters out, so they couldn't do anything about it, so I just had to wait and drew unemployment until they called me back, he said. Rothschild agreed that he felt he was able to work at that time. He was asked why did he tell unemployment that he could work. I was supposed to look for work and I was looking for work, he answered, I called different places up that I could do some jobs at the house or anything like that, I tried calling different carpenters up.

The claimant agreed that in August 2002 he went to work for Integrity Installations. He stated that he worked for Integrity 29 actual working days but it was over approximately a three-month period, it wasn't just one month because it went on through August through September. My job at Integrity was we put together these Estee Lauder display cases, and there was makeup and display cases for jewelry and everything you see in Lord \& Taylor, Rothschild said, they are those big displays that are real heavy, like at Frontenac and Tiffany's. Lord \& Taylor was the job site and Estee Lauder was the display case, he explained. We had to unload the semis of all these display cases that were already built in Florida and shipped up here in a semi and bring them into the buildings and set them up, he said. The display cases were gigantic and very, very heavy, some of these items were like a ton a piece, they was all particle board and glass, Rothschild said, and it was four of us that would pretty well empty the truck out and set up these things. He agreed that he did both carpentry work and erection of the display cases here. Working for Integrity mainly affected my knee and ankle, the claimant stated, this brace -- we were sweating so bad in there, it was really hot out and this brace kept eating into my leg, and my knee was all swollen up, and then trying to keep the weight off my right leg I put it on my left and my left ankle was just swolled up. You couldn't even see the ankle bone; it was really hurting, Rothschild said.

The claimant was asked what difference, if any, was there in his right knee and left ankle between the time that he was off work from January 2002 until August of 2002, compared to when he was working for Integrity for the 29 days in August and September 2002. Well, my knee never was right or my ankle, Rothschild answered, but it definitely got worse when I went back to work because I had put all this weight on it, you know, up steps and what have you.

Agreeing that he actually quit work at Integrity, Rothschild explained that Kirby Moreland, the job steward, knew he was having trouble. I'd sit down once in a while with him, Rothschild stated. I told Moreland my knee was in bad shape and I think I showed it to him, the claimant said, I think I even showed him the pictures of it. Moreland saw me working, Rothschild said, he was present all the time when I was working. I told Moreland - I can't even stand up anymore, Rothschild stated, I told him I had to go to home and had to go to the doctor. He knew I'd been having trouble with it, real bad several days before that, and I told him I would stay there as long as I could, the claimant stated. Agreeing that he told Moreland that he could not work anymore, Rothschild stated that he told Moreland - I have to leave. I couldn't work anymore because my knee and ankle were hurting so bad, the claimant said, I couldn't even stand. I didn't know if I was gonna make it back to my truck, and I told Moreland that, Rothschild said. At the end when I was working there I could not go up and down steps regularly, he said. At the time I quit I could not lift anything heavy, I could not squat at all because my knee was so swollen and sore. I have not worked at all since that last day at Integrity in September of 2002, Rothschild said. I have not been able to work since then because my knee is shot, my left ankle is just about shot, and both of my shoulders are total rotator cuff tears, the claimant stated, and I just can't do any of the things that I do and work. My job requires me to squat down, and climb, and lift; and there's just no way I can do it, he said.

Rothschild agreed that he worked as long as he could at Integrity. I told Kirby that I couldn't even stand another minute; a few days later he called me back and said he needed me, and I told him, Kirby, I don't know if I can, if I'd be any help to you at all; I said, "I'm really hurting.". Kirby then said he just needed me for a little bit, I was the only one he could trust to do this, and I came back in and I helped him, and I helped him as long as I could, Rothschild testified. Then I told him I told him I couldn't stay any longer, and he said - That's okay, go home. Rothschild agreed that this was after the last day he had left; it was several days afterwards he had quit. I don't know long I worked when I went back after I had quit, five hours maybe just that one day, he said. Rothschild agreed that that was it, he hasn't been able to work since. He agreed that Kirby was there with him on his day of working five hours. Rothschild agreed that his normal work time was eight hours.

Rothschild explained his physical problems. My right shoulder is all but useless, he said, lifting anything, just as much as trying to brush my hair or wash my head or reaching up in a cabinet; it's just no weight whatsoever can I put on it. If it's down low I can carry; if it's anywhere lifting it up I can't, I can't get it up there. I have to move the right shoulder just right, he said, 'cause even

to get it back around sometimes I have to take my elbow and grab it like this (demonstrating) to even get it up to the back of my head; I also can use the wall if I'm close to the wall sometimes. And it comes out of the socket and sometimes I have to move it back around to get it back and you feel it pop back in. The claimant demonstrated the limitation of motion in the right shoulder. Rothschild agreed that he uses his left hand to push the right arm up sometimes because he can't lift the right shoulder by itself. The left shoulder is just kind of sore all the time and it's weak, Rothschild said, but I just limit what I do, lifting stuff up above my head or whatever. Like putting these books on the shelves, if I move it just the right way I could put them up there; but I get to that one point where that pain is, I guess it's where that tear is in there and its never been fixed. Rothschild agreed that this has been true for the left shoulder since falling off the truck in 1999 at Roloff. I can reach the back of my neck with the fingers of my left hand, the claimant stated, it right to the point where it hurts, but I can reach it. The left ankle, Rothschild testified, it's like it's always swollen; I bare weight on it all the time because I cannot lock my right knee. My right knee has never locked since the accident and it's swollen right now, and I just bare all the weight on the left ankle all the time when I'm standing, he said. If I step on a rock or something, it will throw my ankle out, the claimant stated, and agreed that he has difficulty walking on uneven surfaces. I try to avoid them, he said. I get no warning when my right knee gives out, Rothschild testified, that's why I try not to put all the weight on it and use my left. I do not wear the brace around the house because the doctor told me not to, and the more you wear it the more it rubs and it just it gets sore, the claimant stated. If I got to do something, anything at all, when I'm out then I wear the brace, he said. Rothschild agreed that he had worn the brace to the hearing. You can see through the pants, a big old bulky thing, he said. It's light but it's big bulky, he testified, it's a unloader brace, it's supposed to put pressure where it's bone on bone and bring that away to the other side where there's a little cartilage left. One side has cartilage and the other side don't, the claimant said, and when it rubs bone on bone that's when it gets a real bad pain. That one spot when you bend it, there's a spot right there, Rothschild said, it's like a creeky door hinge, one spot it squeaks and the other it don't. You can tell right now when it hits the bone; that's when the thing gives out; it's just a pain like knives going in there; it just drops out from under you and you don't have a warning of it or anything. You can try to avoid the position but if it happens it's too late, he said.

The claimant was asked to discuss how his life is different now than before August 30, 1999. My whole life has been ruined, Rothschild said. I can't work; I can't do any things that I want to do; I have to watch everything I do, he said. I'm in debt up to my neck, and I can't do anything, the claimant stated, I'm pretty well 90 percent useless. What I do on a daily basis, Rothschild testified, is I cook, do my bills, and try to do a couple exercises. The claimant (hesitantly) testified that he gets food stamps to get food. I can't set there all the time, he said, so I try to walk or I even use the stairs to try to get up and down them, but usually I try to use my left foot first to get up the step, and that's how I get up and down the steps pretty well. He was asked if he could drive a truck as a business man, and the claimant answered - No. It's all I could do to drive down here to the hearing. He agreed driving a truck was what he did before when he was a carpenter. I can't drive a truck because I can't sit in that position and it requires you to use a clutch, and I can't move around in the truck, he explained. I cannot work as a carpenter now, Rothschild stated, I give it my best shot and I'm worse now than I ever was. All the combination of everything that's wrong with me, there's nobody that'd hire me, he said.

Rothschild was asked if he was asking for more surgery on his right knee if deemed proper by an orthopedic surgeon. I don't want this knee replacement that they got, I want to try to do something else; that's what I was hoping for, they would come up with something better than the knee replacement; I'm scared to death of the knee replacement because nobody I know has got any good results out of it. The claimant agreed, though, that he is asking for an award of further medical treatment on his right knee.

Rothschild stated that he is able to go to the store, and that he has to drive his pickup truck. It's just a few miles and I make it. I use my right leg on the accelerator as long as I can, he said, in short trips like that it's not too bad. But when I drive down here I have to throw it offer the hump; by the time I get here it was an hour and 15 minutes, and it just gives out on -- it just goes numb, and it starts hurting, the claimant said, so I use my left foot on the accelerator and the brake. I use the brace when I shop, Rothschild stated, and I use the cart to lean on when I go through the mall. If I have to lift up and get something off a high shelf I just get somebody to grab something off the top shelf or whatever it is for me; if there's nobody there to do it for me I just got to do it, he said.

I can't do it because my shoulders are shot, he said, I just can't -- lifting it up there is one thing but trying to lift anything, if any weight of anything, I don't care if it's five pounds, I just can't even get it up there; there's no way I can do it.

Rothschild was queried, the days he worked at these other places after Roloff how did that factor into his right knee and his left ankle and his left shoulder, did working at those place make these worse (it was noted that the right shoulder was the fall at home). Agreeing that there was not a difference in any of them, they all just add a little more each time, Rothschild further stated Everything just added up until I'm where I'm at right now. I can't do any of my activities; I can't run, I can't play ball anymore; I can't work. I can do a very little fishing, the claimant said, but I've hardly done any of that. The only hunting I can do is dear hunting because I can set there on my four wheeler, which I cut my grass with, or I got a deer stand that's right there in my yard and I get my deer right there, Rothschild testified. And I don't have to do any lifting, he said, I've got the wenches set up for the animals and everything else, and the trailer to pull them up there. There's nothing hard to it, I can sit down when I want, the claimant stated, that's the only kind of hunting I can do. As far as walking through the brush, that's out, Rothschild said, I cannot do any of that stuff anymore; quail hunting, none of it. I use to do all of these things before this happened.

On cross examination by Roloff Trucking, Rothschild agreed that he had his third and last right knee surgery on October 13, 2000, and that was performed by Dr. Haupt. Then Dr. Haupt treated me after that for follow up, and sent me to Dr. Yadava, a

physiatrist, and they both treated me; in March 2001; both of these doctors released me, saying I was at maximum medical improvement and released me to full, unrestricted duty, the claimant agreed. Rothschild agreed that he told Dr. Haupt he had the Karst Construction job lined up and wanted to be released on February 27, 2001. The claimant agreed that prior to this he had been placed on light duty by various treating physicians, including Dr. Matthews and Dr. Haupt, but since Roloff Trucking had no light duty work available he received workers' compensation temporary total disability benefits from Roloff Trucking. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fireproof doors and other heavy items. I told Dr. Cohen when he examined me, the claimant agreed, that I nearly constantly had to carry heavy materials and had to do a significant amount of bending, lifting, and squatting. I worked from the end of March 2001 until October 2001 for Karst when Karst went out of business, Rothschild said.. He agreed he did not lose his job at Karst because of a physical inability to work, and he did not quit working for Karst because of the injuries he suffered in the August, 1999 accident at Roloff. I would have continued working for Karst Construction doing carpentry work, including heavy lifting, had work been available from Karst, Rothschild agreed, further stating - "I had to".

During cross examination by Roloff Trucking, Rothschild was queried - isn't it true that his left shoulder didn't get worse while working for Karst. It did not get worse while I was working for Karst Construction, Rothschild responded, but it did get worse. The claimant was asked - wasn't it true that he did not work fewer hours while at Karst due to pain or problems he was having from the injuries received in the August, 1999 accident at Roloff. Well, we had shorter hours, Rothschild responded, but admitted that he didn't take fewer because he was physically unable to. I had to work, the claimant said. Rothschild agreed that he had testified earlier that after Karst Construction got into financial trouble he was the last worker out the door. Rothschild stated that his right knee did not give way while he worked for Karst Construction during those seven to nine months he was at work. In that job I did go up and down stairs, but not too much, he admitted, and I was carrying heavy objects, including heavy fire doors. Rothschild agreed that after working for Karst Construction he went to work for BAM, and that was full time, full duty at the Lenox Hotel where he was trimming hotel rooms and carrying heavy objects. He agreed that he was also going up and down stairs and stocking rooms with materials, and that whole time his right knee did not give way and cause him any injuries. It was the same type of work I did for Karst Construction; Rothschild agreed, and I earned $\ 30.00 an hour, which was approximately triple what I was earning as a truck driver for Roloff Trucking. I worked for BAM for about three months until the job ended and I was laid off, the claimant agreed, I didn't leave BAM Construction due to the problems I was having with my injuries from the August 1999 accident at Roloff. To the best of my ability I was able to do all the work that BAM gave me, Rothschild said. I was in great pain when I was doing it but I had to do it, he said. He agreed that he would have continued working for BAM if he had not been laid off. Rothschild agreed that he had testified that after the BAM job and he was laid off, he continued to look for work but construction was slow in the St. Louis area at that time. If somebody had offered me a job doing carpentry I would have taken the job, Rothschild stated. He agreed that in July, 2002 he went to work for Integrity Installations doing carpentry type of work, and this job involved heavy lifting and doing work with heavy equipment, and with heavy display cases. Rothschild stated that he would say he was involved in lifting items with other people that weighed all the way up to a ton

I testified previously, Rothschild agreed during cross examination by Roloff, that during the time I was looking for work, my left shoulder stayed about the same as it had been since I had completed physical therapy. He agreed that this was after Roloff but before the Karst job that he completed physical therapy. Rothschild stated that his left shoulder stayed about the same after this through all three other jobs, including Karst, BAM and Integrity. But I carried it with my right, Rothschild added.

During cross examination by Roloff, Rothschild agreed that he worked for Integrity from some time in August 2002 until September 24, 2002, and that he earned $\ 30.00 an hour, triple what he made for Roloff. Rothschild agreed that when he left employment with Integrity on September 24, 2002 he again applied for unemployment compensation and received the full 17 weeks of unemployment compensation at that point.

During cross examination by Roloff, Rothschild agreed that he filed his Claim for Compensation against Karst Construction and Integrity Installations on October 17, 2002, and alleged a permanent total disability with a date of onset of September 1, 2001 against Karst and September 1, 2002 against Integrity; the claimant agreed that he filed a Claim for Compensation against BAM alleging on September 17, 2003 he was permanently and totally disabled with a date of onset of October 1, 2001 and December 1, 2001. Concerning his fall at home, Rothschild stated that he fell in July 2003, then treated with a chiropractor first, and then went to Herman Area Hospital on or about August 6, 2003. The claimant was asked if he had said anything to the nurses or the doctors at Herman Area Hospital about the fall being caused by his right knee giving away. Yes, I did, Rothschild answered. He was asked if he had ever told any of his employers at Karst, BAM, or Integrity that he had any work restrictions. No, I didn't, he stated. I did ask them to limit my work somewhat, he said. If they had aides and/or helpers, and they would let me sit down a little bit; all that kind of stuff to help me out and carry stuff, Rothschild explained, they helped me, they worked with me. The claimant agreed that he has continued to deer hunt since his last employment, and that he has to climb rungs similar to a ladder to get to his deer stand. Rothschild was asked how much he weighs now. Two hundred and eighty (280) pounds, he answered. He stated that he does not take much medication now since the Vioxx trouble; he agreed that as of March of 2005 he didn't take much medication. When I did take some medication it was over-the-counter Tylenol and some Advil; that's all I had left, Rothschild stated. I don't like to take any drugs, the claimant stated.

Rothschild stated, during cross examination by Roloff, that he was saying that he hurt his left ankle in the original incident when he fell off the truck. I told Dr. Fischer right away, the claimant stated, but the pain in my left shoulder and my right knee was much worse than the pain in my left ankle. Rothschild stated that he was complaining to Dr. Haupt when he was treating him as well as to Dr. Matthews when he was treating him early on after the accident. Rothschild agreed that he recalled seeing Dr. Shawn Berkin on May 3, 2001 by his own attorney, and at that time he was employed by Karst Construction. I believe I recall seeing Dr. Morrow for a rating evaluation on my own behalf on October 8, 2002, and at that time I had just left the employment of Integrity Installations, the claimant stated. When queried if he had told Dr. Morrow at that time that he hadn't worked since he last saw Dr. Matthews on January 15, 2002, Rothschild responded - I don't remember. The doctor could have got it mixed up; I wouldn't have lied to him, Rothschild said.

Rothschild stated, during cross examination by Roloff, that he does his own yard and lawn work, and he lives on about three and a half acres. The claimant was asked - since your accident at home where you fell down the stairs in July of 2003, have you ever injured yourself in any way as a result of your right knee giving out? No, Rothschild answered, I fell three times and I didn't hurt myself any of those times. He stated that his right knee was giving out a lot while he was being treated by Dr. Matthews and Dr. Haupt, and he told Dr. Haupt and Dr. Matthews several times about it. I don't know why their records don't mention this or my ankle either, Rothschild said, I don't know why they did that. I never told Dr. Matthews at the first visit on October 20, 1999 that I had had off and on problems in the past with my right knee, Rothschild said, and agreed that within the last year or two he sent a note or something of that effect to Dr. Matthews requesting that he change something in his record about that.

Rothschild stated that he recalled when his first deposition was taken on January 16, 2001, and during cross examination by Roloff he stated that he fell 11, 12 feet, whatever high the truck was, and answered when asked how did he land -- "Landed mostly on my feet and rolled.". The claimant stated that he recalled he was then asked - "And you injured which body parts in this accident?", and he answered - "Left shoulder, right knee." It was noted that Rothschild did not mention anything about his left ankle at that deposition. It wasn't as bad as the rest of it at the time, Rothschild said. It was noted that in his second deposition taken on March 16, 2004 Rothschild was again queried - "Now it's my understanding you were injured working for Roloff Trucking; is that right?" and "Okay, what areas of your body did you injure?", and he answered "My right knee and my left shoulder.". That is correct, Rothschild said. The claimant admitted that he probably didn't mention his ankle then either when that second deposition was taken more than three years later.

On cross examination by Karst Construction, Rothschild agreed that after his Roloff injury, he ended up having three surgeries on his right knee all in 2000. He agreed that he was also diagnosed with rotator cuff tear in his left shoulder and was also having problems with his left ankle. Rothschild agreed that this was all prior to ever going to work for Karst Construction. During the time period after the last surgery by Dr. Haupt up to the time that I went to work for Karst Construction, my knee was giving me a lot of problems, the claimant agreed. Agreeing that he had some disagreement with Dr. Haupt as to whether he should be discontinued from medical treatment, Rothschild testified I told him my knee wasn't right, and my left ankle and my left shoulder. I said, none of it's right and you're going to send me back to work; I said we have got to do something here, the claimant stated. During this period my right knee was hurting all the time and it had actually given away on a couple of occasions, he agreed. At that time I think it was two times that I had actually fallen because of this give away situation, he said. Rothschild agreed that he had indicated that during this time, hills and stairs and anything that would cause him to have to put extra weight on the right knee would give him extra difficulties. He agreed that he was walking with a limp during that period of time because he couldn't straighten his knee out all the way, and he couldn't kneel at all on his right knee. During this period of time, between Dr. Haupt's surgery and going to work for Karst, it hurt to raise my left shoulder up, and he was also having difficulty getting his left shoulder and his left hand even away from his body because of the problems in his left shoulder. With therapy we got it working again, Rothschild added. It was noted that at some point his ankle began hurting and was swelling, and Rothschild stated that this was before his employment with Karst Construction.

I went to work for Karst Construction in the Spring of 2001, and this was right after Dr. Haupt released me from care, Rothschild agreed during cross examination by Karst Construction. He agreed that when he went to work for Karst Construction he was a union carpenter making union scale. I was on my way for qualifying for Union benefits, Rothschild said. During the time I worked for Karst Construction, Spring of 2001 through September 11, 2001, I worked full time getting substantial hours but I wasn't getting a full 40 hours, Rothschild agreed, and I was actually working as a trim carpenter which is different than a standard carpenter. I guess you could consider this as a lighter job, but not really, the claimant said. He agreed that the Karsts became friends of his during the period of his employment and they worked with him to make sure that he didn't get too sore. I didn't miss any time from work because of my left shoulder, right knee, or left ankle when I was working at Karst, he said, they worked with me. They let me work at my own pace, he agreed, they got me laborers when that was necessary, things like that. I couldn't have done the job without it, Rothschild said. He agreed that while working at Karst he didn't have any specific accidents that caused damage to those body parts, and that he never received any medical treatment of any kind for these body parts while he was working for Karst. Rothschild agreed that when Dr. Haupt released him he didn't begin to get additional medical care until he went back to Dr. Matthews some time in 2002.

Agreeing, during cross examination by Karst Construction, that when the Karst's business started folding up he was pretty much the last guy out the door, Rothschild further stated - When work ran out there I even did work in their own home. He agreed

that he didn't leave for any medical reason. After working for Karst I went to work for BAM Construction, and that was pretty quick, Rothschild testified, Joe Karst was friends with the owner of BAM Construction, Brian Murphy, and he got me in there on a high recommendation. He agreed that he worked for BAM for a period of up through December of 2001. I left BAM for nonmedical reasons as well, Rothschild agreed, explaining - I was laid off. At that point I applied for and obtained unemployment compensation and began looking for work in the carpentry field, he agreed. The claimant agreed that he was also looking for work in other fields. Rothschild was queried - wasn't it not until after the employment with Integrity that he started saying to himself, you know, I just can't do this work any more? It was right there on the job, Rothschild answered, I stood up as long as I could, and did the job as long as I could, until my leg -- it just gave out totally; I could not do it.

During cross examination by Karst Construction, Rothschild agreed that his first Claim for Compensation against Karst Construction was filed in October of 2002, and this was actually over a year after he'd quit working for Karst.

On cross examination by BAM Construction, Rothschild was asked if he remember when he started working for Bam after leaving Karst. No, I don't, he answered. I believe October of 2001 was pretty close, the claimant said. At BAM I was a finish carpenter at the Lenox Hotel. It was noted that he had worked as a trim carpenter at Karst, and Rothschild said that that was the same thing as a finish carpenter. He agreed that he worked at the Lenox Hotel as a trim carpenter/finish carpenter for BAM until the job was finished and then he was laid off on about December 17, 2001. I didn't have any specific accidents on the job while I was working at BAM, the claimant said. He agreed that he filed for unemployment when he was laid off at BAM, and then he was looking for work. Rothschild agreed that his claim against BAM was filed in October of 2003, not quite two years after he'd worked for BAM. I did not miss any time from work during the time I worked at BAM as a result of anything, Rothschild said. Agreeing that he did have discussions with someone at BAM, Rothschild said it was not about being hurt on the job. It was with Dave Iden; he knew it, because he let me off with a couple things here and there and stuff like that; getting somebody to bring the trim up or help me get it, Rothschild stated.

On cross examination by Integrity Installations, Rothschild was asked further about the condition of his knee after Dr. Haupt's treatment but before you went to work for Karst. Rothschild agreed that he had stated his knee was ruined; he agreed that this was at the time frame before Karst. Rothschild agreed that he had said before he went back to Karst nothing was ever fixed, and he was talking about the knee, the ankle and the shoulder. The claimant was asked how would he describe his pain level in his knee back between October of 2000 and March of 2001 before he went to Karst. Well, I was wearing this brace and they gave me Vioxx and I took all that; I needed to do the job and stuff and I was hurting but I was able to get through it, he answered. Until the knee brace started slipping down when I started sweating, he said. I had pain in my knee all the time before working at Karst, the claimant said, and problems with stairs and with lifting with the shoulder.

During cross examination by Integrity Installations, Rothschild agreed that Dr. Matthews talked to him about a knee replacement as early as possibly 2000. He agreed that Dr. Matthews advised him that the more he might use his knee the quicker it was going to wear out. In May of 2001 I recall seeing Dr. Berkin at the request of my attorney, Rothschild agreed, and Dr. Berkin gave me restrictions on my activities of no kneeling, stooping, or climbing, and restricted my lifting, standing and sitting. Rothschild agreed that he continued to do some of those activities, though. I had to; I had to work, he explained. I really didn't pay much attention to Dr. Berkin's recommendations because he really wasn't my doctor, the claimant stated. He agreed that Dr. Berkin had also specifically said he should consider alternative employment, but he kept doing the same work.

Rothschild agreed, during cross examination by Integrity Installations, that he had testified about how his activities at Karst, BAM and Integrity made his knee and ankle a little worse, more painful and swollen. At the various jobs everybody pretty well helped me because they knew I couldn't do the job, the claimant said. Rothschild admitted, though, that he would agree that at the time he was working for Karst, BAM and Integrity and doing those specific job activities and developed more pain and swelling, he knew in his own mind at that time that those job activities were making his knee and ankle a little worse.

The claimant agreed, during cross examination by Integrity Installations, that he worked for Integrity Installation for 29 days during the period of from July 22nd through September $24^{\text {th }}$. I never had any slip, trip or falls on the job while I worked for Integrity, Rothschild said. He agreed that at Integrity he worked under a gentleman named Kirby Moreland who was the steward for the job and the one he reported to. I wore a knee breeze from day one on the Integrity job, the claimant agreed, only a couple days that I didn't because it rubbed a hole in my leg. When asked if he had been experiencing some additional problems with his knee shortly before he started with Integrity, Rothschild responded - I've always had trouble with it ever since --. I told Kirby I had these previous problems with the knee, Rothschild said, but I don't know when I told him; it was not before I started or on the first day. Rothschild state that he would not agree that his job at Integrity was a little lighter than the jobs he did for Karst and BAM. I'd say it was heavier; those pieces was lots heavier, he testified. I might have told Dr. Cohen that the job at Integrity was not as heavy labor as the jobs at Karst and BAM, Rothschild admitted. The claimant agreed that he had stated the job at Integrity is when he unloaded display cases used for jewelry and make-up counters and set them up in West County Mall and Frontenac; he agreed that he had earlier described this work for Integrity as very heavy work. He stated that he and three other people would have to lift up the partially assembled cases and then put them on dollies and then roll them in on planks to the ground and then inside; he stated that at Lord \& Taylor he would have somebody putting the display cases on to the dollies and rolling them right in from the truck into the facility. Rothschild agreed that to get the display case on to the dolly somebody could tilt up one side and slide the dolly

under, so he wasn't actually having to lift the entire display case at any time, he would simply angle one side and slide in the dollies. He agreed that there were four of them generally on that job - a couple of people on the truck and a couple of people rolling the stuff in; the claimant agreed that he was mostly rolling the things in with Mr. Moreland. Rothschild was queried - wasn't it correct that he had stated he had quit the job voluntarily at Integrity because the pain got too bad and he just couldn't do the work anymore? I didn't actually quit on the spot, no; I had to get out of there and get some help from a doctor, and that's when I went back to see -- made an appointment with Dr. Matthews immediately, Rothschild responded. He admitted that he walked off the job because he couldn't do it anymore. I had to get some help and I went to the doctor, the claimant said. I did go back to the job after this, Rothschild stated, and agreed this was when Kirby brought him back. Rothschild stated when he couldn't stand it any longer and went to the doctor, he thought he went to see Dr. Matthews on September 6, 2002, which would have been within the period of employment at Integrity. I made an appointment as soon as I could, Rothschild stated, I couldn't get in to see the doctor, he was all, backed up, so I called him at his house and he boosted me up the line to get me in. It was noted that work records showed that Rothschild worked two more days, two 10-hour days, the week after Dr. Matthews took him off work; it was noted that Dr. Matthews' record indicated that on 9/6/02 says he was taking Rothschild off work as of that day. I don't remember, the claimant responded, but further stated that he had no reason to dispute the work records. Rothschild admitted that if it's true that Dr. Matthews took him off work per his records as of 9/6/02, he didn't follow the doctor's recommendation and kept working. I needed the money, Rothschild further stated. The claimant was queried - isn't it true that you did continue working at Integrity until the job completion and you were laid off with everyone else? No, Rothschild answered, everybody was there and I was the only one that left. The day I walked off the job I only worked a few hours after that a few days later, he said, that's all I remember there, I don't remember working two days after I saw Dr. Matthews. Rothschild stated that it sounded correct that the day he saw Dr. Matthews after walking off the job was on September 6, 2002. It was noted that in that record of Dr. Matthews it said the doctor was taking Rothschild off work until seen again, the claimant responded - The doctor did take me off work but I can't recall what date it was. I did go back to the job site for Integrity after that visit with Dr. Matthews on September 6, 2002 for a few hours, Rothschild stated. He agreed that when he had testified earlier that the pain got so bad at Integrity he had to quit work and go to the doctor and couldn't go back to work, that was not entirely true, he did go back to Integrity. It was noted that the Integrity work records actually showed Rothschild worked two additional 10-hour work days in between, and, also, Rothschild was queried - isn't it accurate then that he did keep working at Integrity until completion of the job. Rothschild answered that he did not recall working for Integrity those additional days. That was the end of the job when Kirby called me back because he had to set these glass cases, the claimant further stated, so, yes, it was the end of the job. He agreed that the last day he went back there he did work up until the end of the job. Rothschild agreed that he had testified earlier that Kirby had no one else to help him and that's why he was brought back Kirby was the last one on the job site doing punch-out work, Rothschild agreed. Explaining what "punch out" is, the claimant testified - Chips, and nicks, and knobs, and things that were missing off the cabinets; just little bitty things like that; replace glass that didn't come in or was broken; replacing parts that were broken, or mismeasured, or whatever have you. When Kirby brought me back that last day at the end of the job, the best I remember, we had to pull these jewelry display cases apart by heating them up and pulling the glass out that was actually melted into place; and it took two people because we had to use these special suction cups to lift them out of their locations. It was noted that the time records showed Rothschild worked eight hours that day. Kirby said he would pay me for eight hours, I did not work eight hours that day like the time records show, the claimant responded, I worked five hours. Rothschild agreed that after he last worked for Integrity with Kirby Moreland on that final day he filed for and received unemployment again. The claimant was queried - you were out actively looking for employment. I was trying to do something, he responded, I had no money coming in, I had to have some money coming in. Rothschild agreed that he had to report to the State that he was ready and able to work. He agreed that, as indicated in the unemployment records from the State, the last day he worked for Integrity was September 24, 2002.

During cross examination by Integrity Installations, Rothschild stated that he told Dr. Matthews about the increased problems he says he was experiencing while working for Karst, BAM and Integrity. He agreed that he remembered seeing Dr. Morrow on October 8, 2002, which was right after the job with Integrity ended on 9/24/02; Rothschild stated that he told Dr. Morrow about how the jobs with Karst, BAM and Integrity were making his knee and ankle much worse. It was noted that Dr. Morrow's report indicated Rothschild told the doctor that he didn't work anywhere after January 2002 when he saw Dr. Matthews, and Rothschild was asked if he had told Dr. Morrow this. These dates I just -- they get all mixed up after a while; I can't remember what dates are what; I don't remember, the claimant answered. September 24, 2002 was the last time I remember working, the claimant further stated.

On cross examination by the Second Injury Fund, Rothschild agreed that he was a member of Carpenters 1839, and stated that P.J. Karst wrote the letter for him. I was in it earlier in 1987, but I had to be reinstated and had to have a letter for someone to hire me, the claimant stated. He agreed that before he worked for Roloff he had some union jobs as a carpenter. I left carpentry work for Roloff because of a lack of work, the claimant said, wintertime there's always lack of work, most everybody gets laid off.

Rothschild stated, on cross examination by the Second Injury Fund, that during the time he worked at Karst, BAM and Integrity his knee brace bothered him, and that he told Mike Farris at ProRehab about the problems with the brace slipping, and that the Karsts knew it. Everybody that pretty well knew me knew about it, he said. I did not seek medical help for it or rehab help for it while I was at Karst, BAM or Integrity, the claimant said. The claimant was queried - wasn't it correct that he didn't seek any medical treatment at all until he went to see Dr. Matthews in September, 2002? I tried to one time and they told me that I wouldn't be covered because this was a workers' comp accident, Rothschild answered. They wouldn't do anything for me related to this knee and shoulder, because it was a preexisting condition; I believe this was the Carpenters Union, he stated. When I went to see Dr.

Matthews my carpenters insurance paid for that and I paid the co-pay, he said. The Union sends you a letter telling you when you're reinstated in the carpenters' hall, when you have enough hours to get your insurance, Rothschild explained. He agreed that this was before he started at Integrity, and had to be while he was working for Karst.

During cross examination by the Second Injury Fund, Rothschild stated that when he left the job at Integrity for good there were no more jobs to be had at Integrity, the job was over, and he applied for unemployment and went out and looked for other jobs. I had to put my name on the list at the carpenters hall so I could be recalled, Rothschild testified, I was one of the 500 carpenters that was laid off at the time and work was really bad at that time. He was queried - isn't it correct that he never got recalled because it was wintertime? Basically; yes, he answered. The drought of work lasted until they called me back to work when Integrity called the carpenters hall, Rothschild stated. After I left Integrity I applied for unemployment again but I did not put my name at carpenters hall, Rothschild said. Explaining where he looked for work, the claimant testified - "I looked for work in different -- something I could do at home." Something where I could maybe send letters out or post cards or something; that, most of it all entailed the computer and I don't know anything about it; different things on that order, the claimant stated. He was asked if he had sought any jobs through the Missouri Division of Employment or Vocational Rehab. I went down there to see a Veterans Administration guy one time, Rothschild answered, and he took me over to a computer and told me that he couldn't help me operate the computer, he could set there and tell me what to do, and I never touched a computer in my life, so I had no idea; I didn't go back. Rothschild stated that he lives in a town named Berger which is 20 -some miles west of Washington, Missouri. Agreeing that he still has access to transportation, Rothschild stated that he has a full-size Dodge pickup. I think I looked around the Washington area and my town for employment a little bit but there was nobody gonna hire me in my condition, he stated, I couldn't do anything that I knew how to do. I was looking for other things that I could do, other than the carpentry, truck driving, which I definitely couldn't do anymore, he said. Rothschild was asked if he had actually filled out any applications for work anywhere. No, I didn't, he answered.

Rothschild stated, during cross examination by the Second Injury Fund, that other than chiropractor adjustment, before the August 30, 1999 injury at Roloff trucking he hadn't really been to a doctor since 1993. Agreeing that had characterized himself as a very active person, Rothschild stated that in addition to working full time driving the dump truck his other activities were fishing, hunting, running with his dog, swimming and skiing, and doing gardening. Rothschild stated that for the past eight years he has been living on a little better than three aches of land. I bought a piece of property and it was just like abandoned junk and I fixed it all up, the claimant testified, it was a real mess, there was only one little building there that was left when I bought it and I redid it. After the August 30, 1999 injury I worked on my property and my house very little, Rothschild stated, it's maintenance free basically, I don't have to do much to it.

Rothschild was asked to describe what a typical day would be for him now, during cross examination by the Second Injury Fund. A typical day is just doing bills, phone calls, taking walks, doing a little exercise, laundry, dishes, he answered. Rothschild stated that he lives alone, and he doesn't have to do much to clean his house but vacuum or dust. I do my own grocery shopping, he stated, I have to drive 22-25 miles into town. Explaining how far he walks when he takes walks, Rothschild testified - My land attaches to the State gravel pit and they have got most of the gravel taken off of it and I walk up there; it's nice and flat; I don't go very far, it's probably 400-500 yards long. Rothschild agreed that he still does deer hunting once a year. When asked if he rode a four wheeler out into the woods, Rothschild responded that he doesn't have the go in the woods very far, he live right there. It's what I cut my grass with and everything, he further stated. Rothschild noted that his brother is with the Sheriff's Department and sometimes he goes over there, and goes to his house. He's got a bunch of dogs and we let the dogs swim; we barbecue and stuff like that, the claimant said. Rothschild was asked if he had made any inquiries at the Sheriff's Department whether he could work as a dispatcher or in any capacity where he wouldn't have to do a lot of walking around or heavy lifting. No, the claimant answered, I don't know if anybody would hire me because I can't sit there, you just have to sit there for hours.

During cross examination by the Second Injury Fund, Rothschild was queried - wasn't it correct that he had stated earlier that he never called in sick when he worked the jobs at Karst, and BAM. I was sick one time at the end of the job at BAM, I had a really bad sinus infection; that was the only time, the claimant responded. He was queried - wasn't it correct that it would not be unusual for a carpenter to have assistance in carrying doors that he had described weighed about 200 pounds, and in holding the prehung doors? No, Rothschild answered, there was only one carpenter usually on the job and that was your job to put it in there or hang the door yourself. The laborers weren't supposed to touch it or anything, but they knew I couldn't do it by myself and they all went out of their way to help me, he said.

On redirect examination, Rothschild stated that sometimes there were other carpenters that worked with him at Karst. When asked if he was able to do the same work they did, Rothschild stated that they would help him. Everybody would help me, Rothschild said, they let me off on a bunch of stuff because I couldn't do the job. He stated that at all three places - Karst, and Integrity, and BAM - he was given different work than the other carpenters who had no injury, and these employers lighten his work because of his injuries. Rothschild stated that his right knee and his ankle got worse when working at all three of these places. I did things at work to keep it from being in pain, like stepping up with my left leg first, the claimant stated, whatever I could do. Explaining why he went to work in that condition, Rothschild testified that he had to work, he had to have money. I had just bought my new home and everything and I was gonna lose everything, he stated, whatever it took to get money coming in. He agreed that that was the reason he applied twice for unemployment compensation; he agreed that he did this on the telephone. Testifying more about how the other workers helped him out, Rothschild stated that the laborers was not supposed to touch anything for the

carpenters, he could be fined for it or thrown off the job. But they risked it and they helped me hang the doors, carry the trim in; they weren't supposed to use their vehicles to bring the material to me and they brought but a lot of it to me and helped me whenever they could; Joe Karst himself, the owner, came in and helped me on the job; they all went out of their way to help me otherwise I could not have done the job, Rothschild stated.

Rothschild testified, during redirect examination, about how his deer hunting changed after August 30, 1999 when he had the work related accident at Roloff. Well, if it got tough hunting I used to go stalk the deer and find them, but after that I just had to set there and wait for them to come to me, he answered.

Concerning Dr. Matthews and what he put in his records and whether or not he had put in his records Rothschild's complaints of his knee gave way, Rothschild stated he made many specific complaints to Dr. Matthews that the doctor didn't actually write down. When I saw Dr. Haupt I told him my knee was giving way and the doctor responded that I had had two previous surgeries on my knee, the claimant agreed. I was never seen by any doctor, hospital, chiropractor, nurse practitioner or anybody for complaints to my right knee prior to August 30, 1999, Rothschild said, and further stated that he did not know of one medical record that showed anything wrong with his right knee prior to August 30, 1999. I know of no medical record showing anything wrong with my left shoulder or my left ankle prior to August 30, 1999, the claimant said. I never had torn cartilage in my right shoulder prior to the fall at home in 2003, Rothschild said. The claimant stated that he consented to three different surgeries on his right knee because he couldn't even walk at all. I was really in pain, he said, I thought that was gonna help me.

During redirect examination, Rothschild was asked if he thought he could graduate from high school today. I've seen what kids are doing now days and it's nothing what I went through and I don't think I could; it's a lot worse than when I went to school, Rothschild responded. Rothschild was asked if he knew of any alternative employment he could do, and he answered -. No, I don't.

When I went to worked for Karst the condition of my left shoulder was that it was sore and it wasn't right, Rothschild testified during redirect examination, I couldn't do the heavy lifting so I carried it with my right shoulder because my right shoulder was real good. (Ruling: Roloff Trucking's objection to Claimant's offer of proof is sustained.) The claimant was asked when did his left ankle first start bothering him. The day I had the accident at Roloff, he answered, and after the accident it just got swollen and stiffer and sorer until I couldn't hardly put my heel on the ground. He agreed that the left ankle got progressively worse. Discussing the problems he was having in the left ankle, Rothschild testified - I had to stand on it all the time because I couldn't lock my right knee, and putting the weight on it all the time, carrying all that weight, my ankle was all swolled up, you couldn't even see my ankle bone; and it was hard to bend it, to walk on a grade of any kind.

During redirect examination, Rothschild stated that he noticed his right knee getting worse while working for Karst Construction from all the use - the heavy load-bearing, the carrying stairs and doors. He was asked to explain how it was worse, and Rothschild responded - I think I got injections all the way through this whole thing until a few months ago; it was all swollen up and it was grinding and popping; it was like gravel inside of my knee all the time. And I never could lock it; keeping your knee bent all the time you know what that is, your muscle, the claimant stated. Stating that the pain was worse in his right knee when he was working at Karst, Rothschild explained that it got sharper.

During redirect examination, Rothschild stated I never told anybody at Karst, BAM or Integrity that I had problems with my left shoulder, right knee or my left ankle, and nobody asked. Joe Karst knew but I don't know what date they knew it, he said. Rothschild stated that he had trouble getting up and down steps all the time. I had to stand up and bend over while putting on baseboard, which is not the way a finish carpenter puts on baseboard, everybody kneels, the claimant said, and I couldn't squat. Rothschild stated that he did tell Kirby -- "I cannot work anymore"? I told him this in September of 2002, he said. This was the same day when I could hardly get to my truck and make an appointment to see Dr. Matthews, Rothschild said.

The claimant was asked, during redirect examination, what if anything was different today between his typical day than what it was prior to August 30, 1999. My whole life has been a wreck, I can't do anything that I used to do, Rothschild answered, I haven't worked for a couple years now and I just can't do anything, I'm just like helpless. With the walks I take, before the fall at Roloff I would run, now I gotta hobble and watch where I step, and go short; I could just take off and do whatever I wanted, I wouldn't stay on the trial I'd go through the woods, Rothschild testified. With doing the dishes at home, it's not the same, he stated, I can't even stand there long. I have to go sit back down, and cooking supper's the same way, he said, 'cause my leg just gives out on me. Explaining why he slept on the sofa after August 30, 1999, Rothschild that it's the only place he can get his leg in a position to be out of pain; he agreed that this was true before any of the three surgeries on the knee. The three surgeries on my knee did not enable me to go back and sleep in my bed, he said.

During redirect examination, Rothschild was asked if he could work now, and he answered - No. I can't do any of the things that I know how to do; I can't stand there, I can't lift, reach, he explained. There's nobody that would hire me in the condition I'm in to do any job, the claimant stated. Rothschild stated that he would love to have his knee made better, and also both of his shoulders ad his left ankle. He was asked if he would like to go back to work. I would love to, he responded, I wish this never happened. Rothschild stated he would go to a doctor for treatment if it was awarded. I'd like to get this knee evaluated, that's my worst thing, the claimant stated, my shoulder is useless but I need to walk before I need to do anything with my shoulder.

On further cross examination by Karst Construction, Rothschild agreed that when he was seeing Dr. Haupt prior to going to work for Karst, he and the doctor did have a conversation about a knee replacement. Dr. Haupt said in the future you may need a knee replacement is what he told me, Rothschild further stated. The claimant agreed that he had testified that during his employment with Karst he was getting help from laborers and from Joe Karst in order to do his job, and this was happening basically from the beginning of his employment all the way through. Rothschild agreed that he had indicated his knee had gotten progressively worse working for Karst, and that this was also true for his employments with BAM and Integrity. Agreeing that he had testified earlier his left shoulder really did not get worse in his employments with Karst, BAM and Integrity, Rothschild explained that this was because he was using his right arm instead for putting a load up. I was using my right arm then to carry the load of my left; my right arm was my good arm, the claimant stated. Rothschild agreed that the complaints he listed in regards to his left ankle, all those symptoms occurred prior to his being released by Dr. Haupt to go back to work.

On further cross examination by the Second Injury Fund, Rothschild was asked if his left shoulder had improved since he had stopped working. No, it hasn't, Rothschild answered, now I've got trouble sleeping on it; even if I lay on that side it's real sore. With regards to my heel, Rothschild stated, it's swollen all the time. They said they couldn't do anything for it, he further stated. The heel has stayed pretty well the same since I'm not working because I keep the weight off of it now lots more; it's more swollen, it's still swollen, he said. My right knee has gotten worse; it has progressed since I left Integrity, Rothschild indicated. They call it degenerative, he said.

Kirby L. Moreland testified on behalf of Integrity Installation Incorporated. Moreland stated that he had received a subpoena by mail, but the he had relayed that he was going to come voluntarily anyway. I am not currently employed, Moreland said, I was last employed about three years ago for Integrity. I am retired now, he stated, it was indirectly a voluntary requirement. Moreland explained that the union hall took in southern part of Illinois which added 11,000 men to our already 11,000 , so it flooded our market. I have learned from one individual that insurance companies are wanting people in their 40's and younger for employment, to insure the contractors, and the ones over 40 are just plain out; so I just decided to take early requirement and go with it.

Moreland agreed that he worked for Integrity in 2002. I was the steward on jobs at both West County Mall and Plaza Frontenac Plaza, he said, and after layoff I stayed at Tiffany job and did all the punch-out work for Integrity. Moreland agreed that he knows Charles Rothschild. I met him when we started working together on the Lord Taylor (sic) store, he said, we had Clinique, and the men's fragrance, and Lancome cosmetic display units. I met him because I was the steward, Moreland stated. Explaining what they were doing through Integrity at these two mall jobs, Moreland stated that we started out with unloading the trucks, with usually Wally, a superintendent, and Michael, the foreman, doing most of the loading of the dollies. We would transport the display cases on the dollies back into where we had to install them, and then we would sort them out and set them in their close proximities, Moreland stated, and once we did that then we would come back and assemble - put glass shelves in, caulking, sometimes a piece of trim here and there, whatever had to be done. The part of the delivery process I was primarily involved in was wheeling the dollies that were loaded with the display cases into the dock, Moreland stated. Charlie and I usually were teamed up together, and usually one would be behind and one in front.

It took several trips back and forth rolling the items into the building because you got a whole semi load, Moreland stated. To get the cases off the dollies, one of us would have to lift on the end and get the other one out, and the other one pulled the dolly. Then Wally and Michael would come in and they would assign us whatever projects they wanted us to work on such as putting on the shelves or whatever. It didn't require anymore lifting at that point, Moreland said, we did have to put the units in their exact location, and then from that point on is when they were divided up, just about singled out. They were taller, about six and a half to seven feet tall and about three and a half feet square, roughly, and all those units had to go together to make a long display. I never weighed these individual units but I would guess when we would lift on them it would be somewhere around a hundred fifty to 200 pounds. I tried to lift one alone once and I could do it, Moreland said, but after that I said, we're going to get two guys on them and lift them.

Later after, when we was on the next job, I learned that he had a problem with his leg and I made sure to do all the lifting I could and he'd just pull the dollies, Moreland stated. There was very little to some lifting on the job; we might have to move the cabinet in place then work on it for a while before we could do the next one, he said. Explaining what was involved when you would butt up the cases or get them in place, Moreland stated we would shove them and butt them against each other until we was on the line, and then it was just a matter of fastening the units with bolts. We would put the shelves in later, he said. The only lifting in this part of the job was just lifting the glass shelves which weigh 15 pounds maybe, Moreland said.

When I and Charlie Rothschild first started working together for Integrity I was not aware of any type of problem with his knee, shoulder, or ankle, Moreland said. We were on the Tiffany job, that last one together, about one-fourth to one-third of the way through the job that I was made aware that Rothschild had a problem with his knee, ankle, or shoulder, Moreland stated. I was putting the mark on the floor so we could snap a line, and when Rothschild did he kept the one leg straight and the other one was bent. I thought, well, what in the world is going on with him? About a day or two later he came to me and said: "Can I talk to you in confidence?" And I said: "Sure. What's the problem?" And he said: "I've got problems with my right knee." And he said: "I just can't do some of that bending." I told him: "Well, I have told you I can keep this in confidence." But I said: "What I want you to do is go to the foreman and tell him so's that he'll know what to do and he can assign you things that will work for you." It was

about a day or two later Charlie came back and says, "I took your advice and I told him." Moreland agreed that it was just the right knee that Rothschild told him about. He was asked if Rothschild had ever told him anything about his left shoulder or left ankle, and Moreland answered - Not that I can remember, he might have later on but definitely not at that time. The day that Rothschild told me about the problems with his knee he just mentioned being on it made it hurt, just his own body weight; that's what I remember, Moreland said. Agreeing that there was a point toward the end of the job that required them to do some base work around the display cases, Moreland that when they first started Charlie came over and said he couldn't get down there to do the work, it hurt too much to do that. I told him to go tell Perry, the foreman, and Perry would put him own something else. Charlie Rothschild was on the job with Integrity, to the best of my recollection, roughly five weeks, Moreland said.

When asked if Rothschild worked to the end of the second job at Tiffany, Moreland answered - What I remember at the end of the job we were getting down to where we had probably a half a day for all four of us. Either that or possibly one day earl, he said, I don't really remember real close on that. Anyway, Charlie wanted to go home early seeing's how it was only going to be part of a day, Moreland added, and that did let the rest of us get around six hours. It was gonna be the last day on the project for everybody but myself, Moreland said, I stayed on to do the punch-out work. Moreland stated that he remember a time before this where Rothschild left telling him something about going to the doctor. He said he had a doctor's appointment and needed to take off work, so he did, Moreland said. He was asked if Rothschild had told him that he was leaving the job site that day because his knee was too painful from standing that he couldn't do it anymore and he had to go to the doctor. I know his seeing the doctor was because of the leg, but he didn't put it that way; "I got a doctor's appointment to attend to the leg" was the idea, Moreland stated. Rothschild came back to work for Integrity after that day that he left to go to the doctor's appointment, he said. Agreeing that Rothschild had come back and assisted him when he was doing the punch out, Moreland stated that there was one day that he needed a second hand to lift a counter top off. When I figured out I was going to need a hand, I was looking for his phone number and the phone rang and when I answered it, it was Charlie, so I didn't have to finish finding the number, Moreland said. I asked him how he was doing and Rothschild said he wasn't feeling chipper because he had no way to earn money, no food and so on, Moreland stated, and I told him, what I was gonna call you for, we have got about a half a day of work, that would get some grocery money for you. I told him that it was changing a glass top, and if he thought he could do it then he should decide what he wanted to do, Moreland said. Rothschild said he could do that, and he came in. It was probably around 10:00 before we was allowed to get to it; I did all the preliminaries I could, I told Charlie - "Sit down. Take it easy.". When we got the top done I added, probably paid him for six hours or eight hours, Moreland said. We only had about four hours of work, and he needed money for groceries so I added some in then I turned around and worked that many hours that I added so's I did not charge the company, Moreland said. Explaining what he had Rothschild assist him with, Moreland stated it was a counter top and he had Charlie on one end and he I took the other end, and before they did any lifting he worked it lose and had Rothschild shove a shim in it so's that we'd have a place to get our fingers under without any problem and made it twice as easy to lift. Once we got it shimmed up then I said - Let's just try lifting and load ourselves and see what it's gonna do, and if you feel anything at all you let me know, we'll stop. Moreland stated that he meant Rothschild's knee or anywhere. So anyway, we got it ready; I had Charlie stand right by the end of the panel that we were lifting and I placed the horses that we had to lay it on after we got it off. When we got it up where we could move away I walked around with it, Moreland said, and all Charlie had to do was stand there braced against the top and lift and set it there. When we got done I asked him how did he feel, and Rothschild answered - Didn't hurt a bit; I used my other leg. Then we changed the glass top and we set it back on the same way, he said. It took about 45 seconds to lift it the first time and about the same amount setting it back on, Moreland said. Rothschild did not do any other physical labor that day, Moreland said, I just told him to take it easy 'cause all we needed was that.

Moreland was asked if at any time on the job with Integrity did he see Rothschild do anything to his leg or knee that looked like he suffered an injury. There was no injury on the job whatsoever from any of the trades, anyone, anywhere, Moreland answered. He was asked if Rothschild had ever told him during this time at all that the job activities at Integrity were making his knee condition worse. Not like that he didn't, Moreland answered, he told me a time or two that it was hurting, but I didn't consider that to be related to the job because it was already damaged. He was asked if Rothschild had ever told him it was those job duties at Integrity that were causing him the problem that he was having with his knee. No, Moreland answered.

On cross examination by the claimant, it was noted that Rothschild had testified that he had Moreland - "I've got to leave, I can't work anymore." I don't remember that being said like that at all, Moreland responded. He was asked if he knew Rothschild wore a brace on his right knee. After he told me in confidence what was going on then I knew it was a brace on there, Moreland answered. He agreed that as the steward, if anyone complained to him about anything he had a duty to report it to the company, and that would've jeopardized Rothschild's job. That was Rothschild's concern, Moreland responded, that he would be laid off if it was told. Moreland agreed that if Rothschild had told him of problems he was having with his left shoulder, his right knee and his left ankle, he would have had to report Rothschild and jeopardize Rothschild's job. Later on I found out that Rothschild had fallen off a truck in 1999 and had fallen 12 feet to the ground, Moreland said. It was close to the end of the job that Charlie relay this to me, Moreland said, but there was nothing associated with it being a real problem at that time. Agreeing that Rothschild just happened to tell him about falling off a truck, Moreland further stated that Rothschild said that he was trying to get settlement on it and that they were fighting him on it. Moreland stated that Rothschild never told him that he had a torn rotator cuff in his left shoulder. He was asked if he had known whether Rothschild was using his right shoulder and right arm much more than he was using his left shoulder or left arm when Rothschild was working with him. When we were working together I didn't notice any abnormality at all, Moreland answered. No, I didn't notice anything that would have indicated a torn rotator cuff of the left shoulder, or would have indicated a sprained ankle, Moreland said. He was asked if it was a surprise to learn that Rothschild had had those maladies. I don't

Moreland stated, during cross examination by the claimant, that he had retired from work about three years earlier and has been living on, his retirement from his carpenter's pension. He stated that his education is 12th grade, high school.

During cross examination by the claimant, Moreland stated that it did not seem strange to him when Charlie told him he could not get down to do the baseboard. He'd already told me that earlier that he had trouble with his leg, Moreland testified, and that's when I told him, go and see Perry, the foreman, and have him put you on something you can do.

On cross examination by Roloff trucking, Moreland agreed that he also worked on a day-to-day basis with Rothschild on the first job which was the Lord \& Taylor West County Mall job. Moreland stated that it was correct that on that first job he had no indication in any way that Rothschild had any physical ailments or physical problems based on how he did his work. No problems that was visible that I could tell anything about, Moreland testified. Moreland agreed Rothschild lifted things, and he stooped, squatted and things like that on the job. We worked eight hours a day, sometimes ten, Moreland stated. He was asked how many days of those eight to ten hours days did he work with Rothschild on the West County Mall Lord \& Taylor job. That was sporadic, Moreland answered, sometimes might be together a day or two and might be pulled off for a few hours, then we might be back again. That's hard to answer and be very accurate, he added. At the Tiffany job at Frontenac, the second job we worked together everyday, Moreland testified. But at Lord \& Taylor we were divided up several times and would go a single operation on things; probably 15-20 percent at the very most we would be teamed up, Moreland stated. The job at the West County Mall, Lord \& Taylor, took about 14 days, he said. In those 14 days whenever I worked with Rothschild he never appeared to me to have any kind of physical ailments at all, Moreland said. As far as I was concerned, Moreland agreed, Rothschild was doing the job as well physically as I or the other men were on the job. He was queried - wasn't it correct that it wasn't until near the end of the second job at Tiffany's at Frontenac that he first learned, by looking at Rothschild's leg being straight, that Rothschild had a physical problem? Not at the end; it was about one-fourth to one-third of the way through the job, Moreland testified, that's the first incident that I had any kind of question. And then he verified the next day that he had a sore leg out of it, Moreland stated.

On cross examination by Karst Construction, Moreland agreed that once he did find out that Rothschild had a problem with his knee he helped Rothschild out whenever possible. Moreland agreed that he did the bulk of the lifting after that and things like that. He could lift some if he wanted to or decided to, Moreland added. I explained to Rothschild that he was not to do anything that would cause him any pain or discomfort at all, Moreland testified, I said, if it's gonna, you say so and we won't do it.

On redirect examination by Integrity, Moreland said that when Rothschild first came to him and told him he had a knee problem and had a brace, Rothschild told him in confidence. In confidence meant not tell anyone else, Moreland stated. I didn't relate it to him trying to hide, it was basically he was afraid of getting laid off if someone else found out, Moreland said. He was asked - Rothschild hadn't told anybody, to your knowledge, that he had this problem? I was the first one as far as I know, Moreland responded.

On further cross examination by the claimant, Moreland agreed that he had stated earlier that when he saw Rothschild in the beginning he hadn't noticed any problems. Moreland was queried - but you did notice problems at Tiffany's in Plaza Frontenac. Not until the day I saw him bend over funny to mark the floor, Moreland responded. Rothschild had been working probably a month and a half to two months, he answered. Moreland was asked - you're saying in the beginning you didn't notice anything but after Rothschild had been working a month or two you noticed without him telling you anything that he was having difficulty with his right knee? Because it was a very unprofessional stance and I wondered about it, and I still didn't know at that time, Moreland answered, and it was the next day or two when he came and voluntarily informed me that he did have a problem.

Medical records of Fischer Chiropractic Center (No. D) reflected treatment of Rothschild during the period of 8/31/99 through 11/23/99. The record began with a Workmen's Compensation Questionnaire in which Rothschild wrote of an 8/30/99 work injury at Roloff Trucking - "Climbed upon truck to pull off limb broken off in tarp shield as I was jerking on limb it suddenly broke free \& lost my balance \& jumped clear to avoid falling landed wrong \& twisted knee" . Rothschild wrote that his problems were "Lifting \& left arm \& right knee is pain full when bending or trying to stand straight". Rothschild indicated on the questionnaire that he reported the accident to "Ralph/Ramona/Dr. Fischer"; he wrote that he was referred to Dr. Fischer by "Dan Scego". In the second form in the record, in the Symptoms/History section, it was noted that this injury had occurred on 8/30/99, and Rothschild had noticed symptoms the morning of 8/31/99. September 7, 1999 x-ray reports in the record noted the following findings: a. left shoulder - no acute fracture, no acute pathology; and b. right knee - osteophyte from the superior pole of the patella, also some calcification seen at the attachment of the muscle at the patella region, two small calcific densities noted on the tunnel view in the tunnel itself, narrowing of the medial femoral-tibial joint space. The written impression concerning the right knee in the 9/7/99 xray was: 1. no evidence of fracture; 2. osteoarthritis of the femoral patellar and medial femoral-tibial joint space; and 3. Possible joint mice in the tunnel of the knee.

A Lumbar -- Orthopedic/Neurological Exam form dated 8/30/99 noted among the findings for the right knee: 5 degrees loss of extension, valgus stress - medial knee pain. A cervical --Neurological/Orthopedic Exam form dated 8/30/99 noted among

findings for the left shoulder. An 8/30/99 Consultation Record - Fischer Chiropractic Center reflected an assessment of: a. Left rotator cuff injury, possible tear; and b. right knee Grade 1 Grade 2 sprain, possible meniscus injury; the form indicated treatment was given to the left shoulder and right knee. Subsequent entries were handwritten notes, i.e. 9/10/99 - Rothschild's complaint that the right knee felt very unstable when he walked on uneven ground, pain with walking, and left shoulder is sore and achy too; 10/07/99 - shoulder continues to bother \& knee has increased swelling; 11/2/99 - got a cortisone shot, still limping, and shoulder and knee still have pain; 11/23/99, the last treatment entry indicated continuing problems; a 1/17/2000 note stated - Knee surgery.

The record included an October 20, 1999 letter by Dr. Fischer, D.C. to Dr. Thomas Matthews, M.D.. Dr. Fischer wrote that Rothschild first presented on 09/01/99 for injuries to his left shoulder and right knee; it was noted that the diagnosis was - left rotator cuff tear, and Grade II sprain strain of the right knee with a possible loose body. Dr. Fischer wrote a request for Dr. Matthews to evaluate Rothschild and send him a report of findings; Dr. Fischer further wrote that he would continue to treat unless Dr. Matthews felt another course of treatment was needed. A 10/28/99 report of an MRI of the left shoulder ordered by Dr. Matthews was in the record (See, also No. J), and reflected the following opinion: 1. Complete tear of the supraspinatus tendon at its insertion; 2. Laterally downward sloping acromion with prominent spurring. This is causing a moderate degree of impression on the supraspinatus tendon; and 3. Mild degree of osseous reactive change in the region of the insertion of the supraspinatus tendon.

Dr. Thomas D. Matthews, M.D.'s treatment records (See Attachments, Claimant's Exhibits Nos. B and B-1) began with an October 20, 1999 evaluation report to the workers' compensation insurance company. The doctor wrote that Rothschild presented for evaluation of right knee and left shoulder pain he sustained when he slipped and fell out of his truck bed in late August sustaining a twisting injury to his right knee and left shoulder. Dr. Matthews noted in his October 20, 1999 report: "Radiographs of the knee show loose bodies in the intercondylar notch. Evidence of old osteochondritic dissecans lesion and degenerative changes as well". The doctor further wrote that radiographs of the shoulder were unremarkable. Rothschild is advised to undergo an corticosteroid injection in the right knee and an MRI of the left shoulder to rule out rotator cuff tear, Dr. Matthews wrote. In an 11/3/99 entry, Dr. Matthews wrote that a complete tear of the supraspinatus at the insertion was evident on the MRI. The patient is advised to consider rotator cuff repair, the doctor wrote. In an 11/10/99 entry Dr. Matthews wrote that he had discussed options of treatment including outpatient physical therapy, injections, etc. "He would like to try his chiropractor for awhile", Dr. Matthews wrote, and "I told him that was ok, however if symptoms increased or got worse arthroscopic evaluation and decompression and rotator cuff repair would be recommended". In a 12/08/99 entry, it was noted that Rothschild reported that his shoulder had improved, but his right knee had increasing pain and loss of motion. Dr. Matthew's record indicates that he performed on 01/19/00 right knee arthroscopy on Rothschild. After post-operative treatment including medication, physical therapy and injections with some improvement, it was noted in a 03/28/00 entry that Rothschild continued to complain of pain; arthrocopic evaluation of the knee again for debridement was mentioned in the next entry of 04/19/00. In May 2000 Dr. Matthews wrote that if Rothschild wanted to return to work his climbing in and out of a truck was his main restriction and he did not think that was feasible for Rothschild at that time; in a 06/07/00 entry it was written that Rothschild was off work until surgery. A 06/22/00 entry stated right knee arthroscopy debridement. In the next entry of 06/29/00, Dr. Matthews wrote the following:

He comes in today one week after debridement of his knee joint. Again, his osteochondral defect is pretty significant. The margins were debrided. Some loose bodies were removed. Other than that, nothing else can be done arthroscopically.

In the next entry of 07/12/00, Dr. Matthews wrote that Rothschild was three weeks out from his scope and second debridement of his medial femoral condyle defect. The doctor further wrote that Rothschild was advised to continue a range of motion program on his own level and let his knee calm down at that time; the doctor wrote that he wanted to see Rothschild back in one month for recheck.

The next entry in Dr. Matthews' record was a 01/15/02 entry in which the following was written:

He comes in today for an opinion regarding his right knee. He apparently had an osteochondral transfer graft to the medial femoral condyle by Dr. Haupt in St. Louis last year. Since that time, his knee has been bothering him somewhat with occasional swelling and stiffness and inability to squat and inability to get down on the leg. His other knee is bothering him as well.

Dr. Matthews noted that radiographs were obtained and showed "sclerosis of the medial compartment, but good joint space is maintained. There is some patellofemoral narrowing, as well. There is a flat spot on the lateral of the medial femoral condyle that is notable". Dr. Matthews' assessment on 01/15/02 was - Posttraumatic osteoarthritis of the right knee. The doctor wrote the following in the treatment plan section of the 01/15/02 entry:

Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee.......I believe he does have a 50-60\% disability of the knee, but my most significant concern is the problems in the future.

Dr. Matthews prepared a May 2002 report to the claimant's attorney in which he wrote the following:

I have reviewed Mr. Rothschild's chart. As you know, this gentleman claims injury to his right knee while at work prior to

an office visit he had on 10/20/99. The evaluation of the left knee at that time showed x-ray evidence of an old osteochondritic dessicans lesion of the medial femoral condyle. In spite of conservative measures which failed, knee arthroscopy was recommended. At the time he was noted to have an old osteochondritic lesion which was debrided. Temporally the lesion that he had in the knee at the time of the arthroscopic evaluation could not have specifically been caused by his work related injury, however, the development of subsequent symptomatology, swelling and pain, could have been brought on by that particular injury and thus necessitating the subsequent surgeries that this gentleman has had. The patient has stated that he had no problem with his knee prior to the work injury, which is consistent with a stable OCD lesion. The twisting and/or wrenching of his knee at the time of injury could have fractured and/or dislodged the lesion to the point that he became symptomatic. So in essence, the patient did have a pre-existing lesion which was essentially asymptomatic and/or subclinical and the work related injury aggravated this condition to the point that it became clinically symptomatic in need of treatment.

Further treatment and/or therapies could include arthroscopic evaluation of the knee, partial and/or total knee replacement, in addition to, the normal and customary office visits, x-rays, physical therapy, etc. I believe that these treatments are more likely than not to occur in the future, for this gentleman suffers from a progressive degenerative problem with his knee, which undoubtedly will continue and be in need of medical attention in the future....

In the next treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit........

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote of the treatment given that day, and that Rothschild was to return in three weeks. The doctor further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr. Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visit, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

A 09/20/02 treatment entry in the record indicated that on that date Rothschild returned for reevaluation of his knee. The doctor further wrote: "His knee symptoms have not significantly abated. He has developed some mild sciatica on the right side." After discussing examination findings, Dr. Matthews wrote that he thought this was more inflammatory process than a disc or any other problem. A Medrol Dose Pak was recommended, and it was written that Rothschild was to return in about three weeks, and was to be off work until seen back. In the next entry of 10/11/02, it was written that Rothschild was in "mostly for all of his social issues in regards to lack of workmens comp coverage"; it was noted that he continued to complain of medial pain. Dr. Matthews further wrote in the 10/11/02 entry: "The patient again is advised either uni or total knee arthroplasty in the future when his insurance issue is resolved. He can return to see me back on a prn basis. If any problems develop he will let me know."

Dr. Matthews wrote an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle:

I feel that his left knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort. This condition is usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor

adding to the symptoms of the left ankle at this point.

The next treatment entry was dated 08/20/03, and it was noted that Rothschild came in for evaluation of his right shoulder. Dr. Matthews further noted:

He apparently fell down some steps injuring his right shoulder about three weeks ago. He sought attention from his chiropractor, which failed to resolve his symptoms, and radiographs accompany him today. He describes having a giving way episode with his right knee, which has been chronic and landing on his right upper extremity. Since that time he has been unable to forward elevate and abduct the arm.

The doctor's impression on 08/20/03 was - rotator cuff tear right shoulder, traumatic and acute. An MRI was scheduled to verify. An 08/29/03 entry stated that the MRI showed a complete tear of the supraspinatus tendon, and that physical therapy was being scheduled as Rothschild did not want surgery, and an injection might by then administered if symptoms continued. The next entry of 09/03/03 noted that Rothschild was in for reevaluation of his right shoulder; it was written that an injection had been administered and physical therapy was continuing. The next entry of 09/24/03 noted that Rothschild was in for reevaluation of his shoulder, and that he had been attending outpatient physical therapy and his passive range of motion had improved. He was given a parking sticker for his knee as a permanent handicap sticker, Dr. Matthews further wrote in the 09/24/03 entry. The last treatment entry of 10/22/03 noted that Rothschild was in for a recheck of his right shoulder, and that he was moving it much better, and that he could now do most of his therapy at home. It was indicated in a 12/03/03 entry that Rothschild had cancelled this appointment date.

Dr. Matthews prepared a September 12, 2003 opinion letter to the claimant's attorney which included the following:

As I discussed with you later employment (subsequent to the August 1999 injury) which supposedly caused Mr. Rothschild to bend, stoop, twist and run on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. ...

Dr. Matthews, in a September 29, 2003 letter, addressed further inquiry from the claimant's attorney in regards to the right shoulder injury:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon. Mr. Rothschild wants to pursue nonoperative treatment for this problem and has been attending outpatient physical therapy...

With regard to the hypothetical that you posed in your letter, I believe that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

I am anticipating some improvement with continued physical therapy and conservative management. I think the end-result is unclear to me at this point, how much function Mr. Rothschild will gain from this conservative management. Mr. Rothschild may need surgical intervention with the shoulder.....

Medical records of HealthSouth Tri-County Surgery (No. E) were surgical records of procedures performed on Rothschild's right knee by Dr. Matthews on 01/19/2000 and 06/22/00. In the 01/19/2000 surgical report, Dr. Matthews noted a history of: "This 46-year-old gentleman is taken to the operating room at this time to undergo arthroscopic evaluation for continued knee swelling. Recent radiographs confirm OCD lesion with displacement in the medial femoral condyle." On 01/19/00, the preand post-operative diagnosis was the same - right osteochondritic dessicans of right medial femoral condyle with potential loose bodies. The procedure performed on 01/19/00 was: Removal of OCD lesion, debridement of medial femoral condyle.

In the 06/22/00 surgical report, Dr. Matthews noted a history of: "This 47-year-old gentleman is taken to the operating room at this time to undergo right knee arthroscopy. He is 6 months post right knee arthroscopy for debridement of the medial femoral condyle, old osteochondritic dissecans lesion. He continued to have swelling and marked pain with his knee joint. He was advised arthroscopic evaluation and re-debridement at this time. The risks and benefits including no guarantees for decreased pain have been explained to him, he understands this and is willing to proceed." On 06/22/00, the pre-operative diagnosis was - right knee medial femoral condyle defect; and the post-operative diagnosis was - same, chondromalacia patellofemoral joint.

Medical records of the Herman Area District Hospital (No. G) were records of physical therapy to the right knee by referral of Dr. Matthews after the 01/19/00 right knee arthroscopy. A Plan of Care/Referral form, dated 1/19/00, listed goals of increased range of motion, increase mobility, patient education and home program. The physical therapy record indicated that Rothschild was seen for the first time on 01/25/00; initial notations included - pain seems now as before surgery, and using ice a lot seems to decrease swelling. A $1 / 28 / 00$ entry included Rothschild's comments - "it feels like there s something right under my knee cap", and that he reported the knee was still tight and sore. The final physical therapy treatment entry, dated 2/01/00, noted Rothschild's comments that his pain remained the same, and there was a lot of "clicking" in his knee, and his knee "gives out". The 2/04/00 entry indicated that Rothschild canceled due to a death in the family; the 2/08/00 entry stated that Rothschild was a no show/no call' the final entry of 2/11/00 stated that Rothschild was contacted and he stated that the doctor had discontinued therapy at that time. Further written in the 2/11/00 entry was that Rothschild felt there was something still wrong with his knee, and the doctor wanted him to rest it.; it was noted that Rothschild was discharged at that time, goals were unable to be met.

Medical records of Dr. Herbert Haupt, M.D. (No. 2) concerned the treatment of Rothschild during the period of August 1, 2000 through the completion of treatment on March 20, 2001. In the initial examination report of August 1, 2000, Dr. Haupt noted that Rothschild's chief complaints were - right knee/left shoulder injury. The doctor wrote the following about the history of present illness:

Mr. Rothschild presents today for evaluation of upper and lower extremity complaints. He drives a dump truck. On date of injury noted to be $8 / 30 / 99$, he was pulling a limb out of the cab shield on his dump truck, he lost his balance and fell about 12 feet to the ground, suffering injury to his left shoulder and right knee. He does not recall exactly how he landed, but does recall injury to these two areas.

Dr. Haupt then discussed the testing and treatment Rothschild had received, including the results of an MRI scan of the left shoulder and what was demonstrated upon two arthroscopic procedures performed on 01/19/00 and 06/22/00. The patient denies any previous history of complaints regarding his right knee or left shoulder prior to the work-related injury, Dr. Haupt wrote. The doctor's written assessment on August 1, 2000 included the following:

1) Right knee discomfort that appears to be an element of a preexisting condition as noted by early closure of the medial compartment just days following the work-related injury and evidence of an osteochondral lesion that appears to be potentially old and preexistent to the work-related injury. Certainly, that injury at work would certainly at minimum have acted a trigger to the preexisting condition. It is also possible that in fact it did knock loose that osteochondral lesion. It is very difficult to tell based just upon the information I have available today.... I am concerned about the degree of the lesion at the medial femoral condyle. The information available is just not clear enough to clearly determine how badly the medial femoral condyle may be affected by this lesion.

2) Left shoulder findings of a rotator cuff tear on the MRI scan may or may not be accurate. He certainly has significant degenerative changes noted at the AC joint as well as a Type III acromion, all considered preexisting. A full thickness rotator cuff tear has to be considered. This would be considered a direct result of the work-related injury.

An August 4, 2000 MRI (No. H) of the right knee performed at Missouri Baptist Medical Center at the request of Dr. Haupt noted the following clinical history: "Right knee pain increasing in severity over the last two weeks. The patient has had two prior knee surgeries." The second page of the August 4, 2000 right knee MRI, apparently containing the impression, was missing from this exhibit.

An August 4, 2000 left shoulder arthrogram (No. H-1) performed at Missouri Baptist Medical Center at the request of Dr. Haupt noted the following clinical history: "patient sustained an injury on 08-30-99 and has had shoulder pain since that time. Clinical concern is for rotator cuff tear. The written impression was - Complete rotator cuff tear; it was instructed to refer to the discussion above, which included - findings suggesting an old left clavicular fracture are identified.

In the next examination report of August 10, 2000 (See Exh. No. 2), Dr. Haupt wrote that an arthrogram and MRI scan had been completed, and demonstrated a complete rotator cuff tear. It was noted that a knee MRI had been completed and demonstrated the area of the osteochondral lesion without evidence of avascular necrosis. In the September 20, 2000 examination report, Dr. Haupt wrote the following: "Mr. Rothschild notes a marked improvement in his shoulder function with the help of therapy, but his knee complaint is becoming more and more bothersome. He complains of pain primarily anteriorly about that right knee. He denies any new injuries." Dr. Haupt's assessment on September 20, 2000 included the following:

1) Shoulder is actually doing quite well with conservative management in physical therapy.

2) Persistent complaints in the right knee that appear to be primarily patellofemoral in nature, but also has medial compartment discomfort in the area of the osteochondritis dessicans. Reviewing his operative notes, I note that during the first operative procedure performed in January 2000, it was noted that the "superior patellar pouch where the articular surface of the patella and corresponding femoral trochlea were found to be relatively unremarkable".

However, on the second operative procedure that was performed on June 22, 2000, it was noted that "the superior patellar

pouch, the articular surface of the patella and the femoral trochalea were evaluated and found to have Grade II chondromalacia changes". This suggests that there has been interval change within the area of the patellofemoral joint and this may presumably be a sequelae to the first operative procedure that may have resulted in contractures about the patellofemoral ligaments, resulting in malalignment and the development of the chondromalacia. This area seems to be the predominant source of his discomfort at this point. Treatment recommendations at this point by Dr. Haupt were:

Regarding his shoulder, he is doing well with the conservative management and it is appropriate to continue that effort. Regarding the patient's knee, with the persistent complaints in the area of the patellofemoral joint, I have given him two options for care and treatment. These include a corticosteroid injection with further efforts at therapy to see if we can break through his complaint or to proceed with arthroscopic management to assess the degree of injury at the OCD and also at that point, debride the patellofemoral joint and potentially perform a lateral release to improve mechanics.

A 10/13/2000 operative report of HealthSouth Surgery Center of West County (No. F) concerned the third right knee procedure which was performed by Dr. Herbert Haupt, M.D. The pre-operative diagnosis was: right knee - osteochondral defect, medial femoral condyle, patellofemoral joint chondromalacia. The post-operative diagnosis was: right knee - posterior horn tear of medial meniscus, quarter size osteochondral defect down to subchondral bone of medial femoral condyle with a larger circumferential area about 2-3 cm diameter of the medial femoral condyle and Grade chondromalacia, evidence of partial anterior cruciate ligament tear but considered competent, marked Grade 4 chondromalacia of the femoral trochlea, and Grade 2-3 chondromalacia of the patella.

In the November 21, 2000 examination report (See Exh. No. 2), Dr. Haupt wrote that Rothschild was doing well with his left shoulder, that he had no major complaints., and that the therapist noted he was progressing quite well with therapy. Dr. Haupt further wrote: "His right knee, however continues to be a complaint. He still ambulates with crutches and has a fair amount of swelling primarily posteriorly about the hamstrings." The doctor wrote that the knee was aspirated of serous fluid, and then was injected with medication; physical therapy was continued. Dr. Haupt wrote in the next examination report of December 5, 2000 that Rothschild was doing much better with his knee, that he had seen some improvement in soreness and swelling with the aspiration and the injection. Examination findings on December 5, 2000 were:

Examination today demonstrates he lacks full extension by just a few degrees. At this point his swelling is markedly improved. He is able to ambulate without the use of crutches.

Shoulder examination demonstrates passive range of motion is full. His active abduction and external rotation strength is approaching $4 / 5$.

Dr. Haupt wrote that physical therapy would continue for three more weeks and Rothschild would continued with the medication Ultram for discomfort. In the next examination report of January 2, 2001, Dr. Haupt wrote the following: "Mr. Rothschild was doing well until about 2 weeks ago. He then developed increasing swelling and discomfort about his knee. He is doing well with his shoulder, with no major complaint." Dr. Haupt's assessment on January 2, 2001 was:

Persistent inflammation and discomfort with evidence of medial compartment degenerative changes noted secondary to work related injuries. The patient's increased swelling is secondary to rebound after the injection has worn off.

The treatment plan included continued physical therapy, and a valgus unloading brace "to unload that medial compartment to see if that will provide some symptomatic relief and allow that medial compartment to have a better opportunity for healing", the doctor wrote. In the January 22, 2001 examination letter, it was written that Rothschild was noticing that his left shoulder was doing well with home therapy but it seemed to be getting weaker, and that the right knee was still quite uncomfortable with attempts at physical therapy which was confirmed by the therapist's notes. Physical therapy was continued for the knee and resumed for the left shoulder. The next examination report of February 12, 2001 noted that Rothschild reported the brace had really helped his right knee discomfort and without the brace he still had a fair amount of medial compartment discomfort; it was written that the left shoulder was progressing in therapy. The doctor further wrote: "Today he mentions that he is having a complaint of numbness in his right leg. He has pins and needles down the leg as he is driving for any length of time. He indicates he has had this tingling and numbness even before he had the sport brace applied. He does not recall exactly when it started but it seemed that to be sometime after the most recent surgery." Dr. Haupt noted the following in his next examination report of February 27, 2001:

His major complaint at this point is numbness that occurs with prolonged sitting activities while driving or even prolonged standing activities. He complains of the whole leg becoming nub, especially distal to the knee. He has completed the workup by Dr. Peeples which notes a normal neurologic examination on electrical studies. This rules out any significant neurologic dysfunction causing his complaints.

Examination findings on February 27, 2001 were:

The right knee has minimal to no effusion. He can actively extend the knee. He is able to ambulate but still has a mildly antalgic gait but it is improved.

Shoulder examination demonstrates a full range of motion. No dysfunction noted.

The assessment on February 27, 2001 was: "This patient overall has improved quite well regarding his knee complaints as well as the shoulder complaints." In the treatment plan section of the February 27, 2001 report, Dr. Haupt wrote that his recommendation was for Rothschild to resume full duty. "He apparently has an opportunity to pursue work activities outside of his current employment and he wants to consider that.", the doctor wrote. Physical therapy was continued, geared more to doing piriformis stretches and strengthening as well as hi range of motion and strengthening, and Rothschild was to return in 3 weeks so that his overall progress could be assessed. A March 7, 2001 form completed by Dr. Haupt was in the record and indicated that Rothschild was placed on limited duty - sit down activities only; the form indicated Roloff Trucking as the employer.

Dr. Haupt prepared a March 20, 2001 examination report in which he wrote that Rothschild indicated he did see some improvement in his leg pain with the injections at trigger points performed by Dr. Yadava and with the modifications in his physical therapy program. It was written that Rothschild further indicated that his knee and shoulder were actually doing quite well though he still has the complaint of pain down that leg with prolonged sitting or driving or standing, and a tingling and numbness that occurs in the knee on down the lateral and posterior aspects of the right leg. Examination findings on March 20, 2001 were:

Examination of the right knee shows full extension and flexion. No effusion. He is stable to varus and valgus stress. Shoulder range of motion is considered full. Good active abduction and external rotation strength.

No obvious sensory deficits on today's examination. Motor, sensory, and DTR's are intact.

Dr. Haupt's assessment in the March 20, 2001 examination letter was: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt wrote that he would defer further medical management to Dr. Yadava. Rothschild is continued on light duty status until he sees Dr. Yadava next week, Dr. Haupt further wrote, and the written restrictions were - "steps and stairs only to enter a truck, car or building. Limited lifting of 50 pounds and no ending or squatting activities". Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent $(6 \%)$ at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent (17\%) at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

"He has been advised to wear the valgus unloading brace for a prolonged period of time to help symptomatic relief of his discomfort", Dr. Haupt further wrote.

In a separate March 20, 2001 examination report, Dr. Haupt wrote that Rothschild's chief complaint was - left ankle discomfort. In the history section of the report, Dr. Haupt wrote the following:

Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed or him by me. After discontinuing the Vioxx medication within in about two days he developed the onset of soreness about the lateral aspect of the left ankle. He denies any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle.

He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of. (sic)

Examination findings on March 20, 2001 were:

Examination today demonstrates, by his own admission, a 50 % improvement in the soreness he noted over the weekend. Examination demonstrates no apparent swelling. Range of motion is considered intact and full. Stable to varus and valgus stress. He complains of soreness, however, on anterior drawer as well as with varus stress of the ankle. His anterior drawer is considered negative. He is tender to palpation at the anterior talofibular ligament. There is no swelling noted. His Achilles tendon is normal. When he weight bears his arch appears to be normal. There is no plantar aspect of pain noted.

Routine plain films are really rather unremarkable. No acute or chronic changes noted. These are rather benign appearing plain films.

Dr. Haupt's written diagnosis on March 20, 2001 was:

Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury. It is possible that he has had some inflammation about that ankle was masked with the use of the Vioxx medication and

became apparent upon discontinuing the anti-inflammatory medication and is more or less a rebound effect.

Dr. Haupt wrote of his treatment recommendation in the March 20, 2001 report:

Treatment recommendations are that he can pursue appropriate strengthening on his own, and we taught him a few exercises. In addition, I recommend the use of over-the-counter anti-inflammatories in an effort to cut down on some of the inflammation about the ankle. This can be in the form of Aleve.

There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises.

Dr. Ravi Yadava, D.O. record (No. 3) began with a March 14, 2001 examination report in which Rothschild's chief complaint was noted as - right leg numbness and tingling. The August 30, 1999 work related accident was discussed, and Dr. Yadava wrote that Rothschild relayed that he has been in pain ever since the accident; it was noted that stated that sitting reproduced numbness and tingling on the lateral aspect of his right leg. Dr. Yadava wrote of Rothschild's medical history, his occupational history, and of his examination findings.

The doctor included the following in the Summary Section of his March 14, 2001 report:

He has had a total of three arthroscopic procedures on the right knee. He has had persistent pain and impairment. He has done relatively well with his medial unloading brace. He has done relatively well with his therapeutic program. He is having some numbness and tingling. His electrodiagnostic study is unremarkable. He does not have anything on his physical exam that concerns me for radiculopathy, plexopathy or true neurogenic basis for his pain and impairment. I think his numbness, tingling and pins and needle sensation is referred pain of a myofascial etiology. The kind of modification to his rehab program we have provided today will serve him quite well and help him achieve (?hi?)s goals in a more timely and cost effective fashion. I think these trigger point injections will facilitate this and minimize the use of medications. I feel he will not require medications and/or procedures in the long term......

In his last examination report of March 28, 2001, Dr. Yadava wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. The doctor wrote of his findings upon examination of Rothschild which were:

In the seated position, he has remarkable improvement in his soft tissue evaluation along the peroneus musculature. Previous area of trigger point injection have resolved. He has some nodularity, but no taut bands or trigger points. There is no vasomotor instability or signs consistent with RSD. Dorsal and pedal pulses are symmetrical. His neurologic evaluation is stable and unchanged. His DTR's are symmetrical. His hamstring flexibility is unchanged. He measures 75 degrees bilaterally. His quadriceps mechanism still shows evidence of disuse atrophy. His knee examination is unimpressive. He does not have any acute features. He does not have any swelling, effusion of synovitis.

Dr. Yadava wrote the following in the Summary section of his March 28, 2001 report:

...He states he is doing better. He does have objective improvements in the previous areas of injection. The only recommendations I would have for him at this time is to continue with his VMO strengthening exercises, utilize his bracing as directed and continue with his hamstring and gastroc soleus flexibility program. There is no formal physical therapy I feel is indicated. There are no other diagnostic studies or therapeutic intervention I feel is indicated. I do not think he needs ongoing use of medications. He does tell me he is anxious to return to his full time, unrestricted capacity. I think it is safe and appropriate. I did tell him it is reasonable to expect to return to work in a comfortable fashion I think there is some deconditioning that has occurred. He may have increased soreness that should be well controlled through conservative mechanisms as outlined in detail here in the office. I think he is at maximum medical improvement from a rehabilitation perspective. There are no other diagnostic studies or therapeutic intervention I feel is indicated.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001.

Dr. Shawn L. Berkin, D.O. prepared a report, dated May 9, 2001, after performing an evaluation of Rothschild for the purpose of a rating as it related to the work related injury occurring on August 30, 1999. (See Exh. A, Attachment Roloff Dp. Exh. No. 2) The doctor discussed the August 30, 1999 work related injury while in the employ of Roloff Trucking. Subsequent treatment was discussed by Dr. Berkin through what he termed a re-evaluation by Dr. Haupt on 01/22/01 at which time Rothschild was continued on physical therapy for his right knee and left shoulder and was continued on working with limited duty restrictions. "The patient stated that he never returned to work for Roloff Trucking following his treatment and is currently employed as a trim carpenter for the Carst (sic) Construction Company", Dr. Berkin wrote. The doctor noted that Rothschild had worked for Roloff Trucking for ten years. Present complaints of Rothschild noted by Dr. Berkin in his May 9, 2001 report were - pain and tenderness to the right knee, swelling to the knee and the knee gives out; stiffness to the right knee and symptoms worse with weather changes; Rothschild reported limited motion of the knee and his knee symptoms are aggravated by kneeling and squatting; he had complaints

of weakness to his left arm and his shoulder symptoms were aggravated by lifting. Dr. Berkin discussed his examination findings of May 3, 2001 which included: a. height - 73", weight - 268 pounds; b. left arm - no swelling or deformity, shoulders level in sitting position, upon palpation tenderness over the anterolateral surface involving that acromioclavicular joint extending into the left upper arm, stressing left shoulder failed to demonstrate any joint instability but a prominent clunk was present on passive circumduction of left shoulder, it was indicated that range of motion of left shoulder was decreased in all planes, muscle strength testing showed weakness of left arm on flexion and extension against resistance; c. right shoulder - range of motion was normal; d. right leg wearing brace furnished at time of treatment, upon removal of brace generalized swelling without obvious joint effusion, walked in a normal gait without evidence of a limp, generalized weakness localized over the anteromedial surface, stressing knee failed to demonstrate any joint instability but patient complained of pain to his knee on valus and varus stressing, it was indicated that flexion and extension range of motion was decreased, weakness of left leg on extension of the left knee against resistance, able to stand on toes and heels without difficulty but unable to squat because of complaints of pain in his right knee; e. left knee - normal range of motion. Dr. Berkin's final impressions were: 1. Rotator cuff tear of the left shoulder; 2. Impingement syndrome of the left shoulder; 3. Right knee strain; 4. Tear of the medical meniscus of the right knee; 5. Tear of the anterior cruciate ligament of the right knee; 6. Osteochondritis dissecans of the right knee; 7. Status-post arthroscopy of the right knee with debridement of the medial femoral condyle and removal of osteochondral lesion 01/19/00; and removal of osteochondral lesion 01/19/00; 8. Status-post arthroscopy of the right knee with arthroscopic debridement 06/22/00; 9. Status-post arthroscopy of the right knee with medial meniscectomy, Debridement of the anterior cruciate ligament, shaving, debridement and chondroplasty of the medial femoral condyle and femoral trochlea and lateral retinacular release.

In the conclusion section of his May 9, 2001, Dr. Berkin discussed the treatment Rothschild had received finally writing that following the October 2000 surgery by Dr. Haupt Rothschild was treated by Dr. Haupt including attending physical therapy through January of 2001. "The patient is currently employed as a trim carpenter for Carst Construction and is receiving no treatment for his injuries at this time", Dr. Berkin wrote.

Dr. Berkin wrote of his assessment as to disability:

a. A permanent partial disability of 30 % of the left upper extremity at the level of the shoulder for the rotator cuff tear of the left shoulder associated with an impingement syndrome.

b. A permanent partial disability of 55 % of the right lower extremity at the level of the knee for the right knee strain associated with tears of the medial meniscus and the anterior cruciate ligament and an osteochondral lesion involving the medial femoral condyle necessitating three surgical procedures on his right knee. I feel the patient has an additional permanent partial disability of 10 % of the right lower extremity at the level of the knee for the degenerative arthritis of the right knee that pre-existed his injury which to my knowledge, has been asymptomatic prior to his injury.

Dr. Berkin's treatment recommendations were:

The patient continues to have significant symptoms to his right knee and I recommend the continued use of his knee brace in order to stabilize his knee. I recommend that the patient be restricted from prolonged standing or sitting and that he be restricted from kneeling, stooping or climbing.

With respect to his left shoulder, the patient continues to remain symptomatic and indicated that he does not wish to have surgery on his shoulder because he feels that surgery has not really helped his knee. With respect to his left shoulder, I recommend the patient be restricted from lifting with his left arm no more than twenty-five pounds from the floor to the waist and fifteen pounds from the waist to the shoulder. I recommend that the patient avoid working with his left arm above the level of his shoulder.

The patient has indicated that he is currently working as a trim carpenter but if he continues to have symptoms at his current level of activity, I recommend that he consider alternative employment that his less physically demanding. (sic)

Medical records of Washington Chiropractic Clinic, P.C. (No. K) concerned prior treatment of Rothschild in 1995.and in July of 1999 for cervical spine complaints.

A 12/31/01 entry noted complaints of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

Dr. J. W. Morrow, D.O. prepared an October 8, 2002 evaluation report (See No. A, Attachment No. 3); the doctor wrote that he was seeing Rothschild for injuries sustained in the August 1999 work related injury. It was noted that the claimant relayed that he had been pain free in his right knee and his left shoulder prior to the August 1999 work related injury. Dr. Morrow discussed Rothschild's present complaints on involving the left shoulder and the right knee:

He relates if he attempts to move the left arm in lifting activities above the shoulder level this causes pain in the shoulder joint. Sudden movements of the arm at the shoulder tend to cause pain. Since he is not working for a period of time, the pain occurs about two of three times a week in the left shoulder with such movement.

He relates standing, walking, squatting, going up and down steps, lifting, pushing and pulling activities all tend to cause the severe pain in the right knee, and he attempts to avoid these activities since he is not working at this time.

Dr. Morrow's diagnoses concerning the August 1999 work related accident were: a. traumatically induced sprain of the left shoulder, and an MRI study showed a complete tear of the supraspinatus of the rotator cuff; and b. traumatically induced sprain of the right knee, Dr. Matthews noted that upon the 10/20/99 surgery by Dr. Matthews there was evidence of old osteochondritis dessicans and degenerative changes about the knee joint. Dr. Matthews noted the osteochondral defect was pretty significant. Dr. Morrow noted additional subsequent treatment, including the subsequent two surgeries; Dr. Haupt took x-rays on January 15, 2002, Dr. Morrow wrote, "showing stenosis of the medial compartment and some patellofemoral narrowing with a flat spot on the lateral medial femoral condyle and being diagnosed as posttraumatic osteoarthritis of the right knee, at which time the doctor notes the patient may require surgery in the future, including a possible total knee arthroplasty procedure. ". Dr. Morrow wrote his recommended restrictions for the left shoulder and right knee; concerning the right knee, Dr. Morrow further wrote: "The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the right knee, particularly the medial knee joint space where he is approaching bone on bone". Dr. Morrow assessed permanent partial disability on October 8, 2002:

Based upon this examination, there is a 40 % permanent partial disability of the left upper extremity at the level of the shoulder attributable to the injury of 8-29-99.

Based upon this examination, there is a 65 % permanent partial disability of the right lower extremity at the level of the knee. Of the 65 %, we allow 32 % preexisting with the possibility of the preexisting osteochondritis dessiccans. Even though asymptomatic immediately prior to the injury in question according to the patient, and the remaining 321 / 2 % due to the aggravation of the injury in question and the necessity for the three procedures that had been performed arthroscopically, two by Dr. Matthews and one by Dr. Haupt.

Dr. Morrow wrote of his recommended restrictions, and finally wrote:

The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the tight knee, particularly the medial knee joint space where he approaching bone on bone.

The combination of the disability of the left shoulder and the right knee would provide a greater overall disability than their simple sum. I would defer employability to a vocational expert in that regard.

Additional treatment records from Fischer Chiropractic Center (No. D-1) concerning the treatment of Rothschild in August 2003 for right shoulder complaints. The record indicated that Rothschild was referred by his father. The initial entry of 08/04/03 noted Rothschild's complaints of soreness in the right shoulder and an inability to move it. Rothschild's history was noted as: "Says that the pn. came from a fall down the steps". The entry indicated treatment given to the right shoulder. The next and final entry of 08/05/03 noted that Rothschild still had soreness in the right shoulder and the swelling had gone down. He has a lot of swelling \& pain in the left ankle, was noted; examination findings for the right shoulder and left ankle were noted.

Medical records from Herman Area District Hospital (No. G-1) reflected treatment of Rothschild on 08/06/03 for left ankle and right shoulder complaints. Attending physician, Dr. Anjna Sethi, M.D., noted the history as: "Fell down the stairs at 4:30 a.m. and says that he has been having pain moving the right shoulder. Denies any other complaints. He does have a past medical history of rotator cuff pathology on the left shoulder and currently takes Vioxx." A 08/06/03 x-ray report noted the following findings: a. left ankle - normal left ankle; and b. right shoulder - 1. sclerotic changes along the greater tuberosity suggesting possible chronic rotator cuff pathology, 2. Moderate degenerative changes of the acromioclavicular joint, and 3. no evidence for fracture or dislocation. Dr. Sethi's assessment was: "History of fall. Pain right shoulder and left ankle." Treatment consisted of a sling for the right shoulder and recommendation to avoid weight bearing on the left ankle, and Tylenol 650 mg ; the doctor wrote that Rothschild had been asked to follow up with his regular doctor, and that he might need further MRI studies by the regular doctor.

An August 26, 2003 MRI of the right shoulder (See, No. J) ordered by Dr. Matthews noted the following impression: 1. Complete tear of the supraspinatous tendon; 2. Acromioclavicular joint hypertrophy and narrowing of the acromiohumeral space, and 3. Large joint effusion.

Dr. Thomas Matthews, M.D. testified by deposition on behalf of the employee. (No. B) A board certified orthopedic surgeon, Dr. Matthews stated that he first saw Rothschild as a patient on 10/20/99. The doctor discussed the history relayed by Rothschild:

"He related a history of while at work, he sustained an injury to his right knee and left shoulder while pulling something out of a pickup truck bed, I believe. He apparently slipped and fell at that time in late August - I believe that would be

1999 - twisting his knee and injuring his left shoulder at the same time." (Matthews Dp. pg. 11)

Dr. Matthews agreed that the date of injury Rothschild relayed to him was August 30, 1999, and then discussed his examination findings:

"His examination was primarily confined to his left shoulder and his right knee. His left shoulder was found to have a normal neurologic and vascular or blood vessel status.

His range of motion of his shoulder was felt to be excellent. He was tender overlying the lateral or outside aspect of the shoulder. There was also some tenderness noted overlying the acromial clavicular joint. That's the intersection of the clavicle and the point of the shoulder." (Matthews Dp. pg. 12)

"I hadn't gotten to the right knee, but instead of paraphrasing, I will try to summarize the right knee examination.

The patient's motion was good. The patient's swelling was minimal. He did lack some extension or terminal extension of his knee joint. He couldn't straighten or flatten out his knee joint all the want. (sic) X-ray examinations were obtained of his knee joint, which showed a loose fragment of cartilage and bone and evidence of an old osteochondritic dessicants lesion and some degenerative changes. And the patient was advised a corticosteroid or 'Cortisone,' quote/unquote, shot into the right knee, and he was also advised to obtain an MRI of his left shoulder to evaluate his rotator cuff." (Matthews Dp. pg. 16)

Dr. Mathews stated that the injection was given at the office visit, and that an MRI was obtained "which showed he had a compete tear, somewhat surprising, of his supraspinatus tendon, which is the foremost rotator cuff tendon that gets ruptured usually". (Matthews Dp. pg. 16) The doctor explained the function of the supraspinatus tendon: "Its function is to elevate and flex your shoulder and arm above the level of your shoulder." (Matthews Dp. pg. 17) Dr. Matthews opined: "I think (the osteochondritis dessicants in the right knee) preexisted the fall off the truck". (Matthews Dp. pg. 19) The following question and answer then occurred:

Q. (By Mr. Gerritzen) Assuming as a fact this man says he's never had any problems with his right knee prior to the fall of the truck on October 30, 1999, landed on the right knee after a 12-foot fall, approximate 12-foot fall, had pain ever after. In your opinion, was the osteochondritis dessicants activated or aggravated by that fall?

A. It seems like it was. (Matthews Dp. pg. 22)

Osteochondritis dessicants can be caused by trauma or can be idiopathic; "(M)ost of the time we are at a loss as to what causes it", the doctor said. (Matthews Dp. pg.19) The doctor stated that he sees people every day that have asymptomatic knees that have preexisting problems with their knees that is exacerbated and/or aggravated by recent trauma. "We can only go on what patients tell us, and if they're asymptomatic prior to presenting with a recent injury and they're not having problems, then we can only assume that they didn't have problems", the doctor said. (Matthews Dp. pg. 23)

Dr. Matthews stated that he performed arthroscopic evaluation of Rothschild's right knee joint on two different occasions, 01/19/2000 and 06/22/2000. In his discussion of the procedures, Dr. Matthews testified:

"In any event, it was found that he had, on the first surgery, the osteochondritic lesion that we're talking about, which was about the size of a nickel, was a cartilage bone fragment in a defect of the medial femoral condyle. That's where it originated from but this fragment was loose, and it could be probed and moved around that area that it was supposed to be sitting in.

In adult patients, the treatment for that entity is removal of that fragment, and that was done. So in a, more or less, piecemeal fashion, that fragment of bone and cartilage was resected behind the crater where this OCD - we'll refer to it as an OCD lesion for now - resides. That crater is exposed raw bone. It should have cartilage on the end of its. So in an effort to remedy or at least palate the problem, the crater is drilled with multiple drill holes to try to stimulate a blood supply to form near the end of this crater." (Matthews Dp. pg. 24)

Dr. Matthews stated that he removed probably about one-fifth of the extent of the articular surface of the condyle with the removal of the fragment; the doctor stated that the condyle articulates with the tibia bone and agreed that it is necessary for movement of the knee. Discussing the second surgery of June 22, 2000, the doctor testified:

"That was essentially a re-debridement of the medial femoral condyle defect and also a patellar chondral debridement, which again means you take a shaving instrument........and you sculpt off the sharper edges of this particular areas of his medial femoral condyle. And on the back side of his patella, he had some arthritic changes." (Matthews Dp. pg. 26)

"The reason we got to the second surgery is because of the symptoms. And in spite of conservative measures, which, I believe, I may have given him a steroid injection in the interim, and that wasn't really effective, I was going to look back in his knee and see exactly where we stood at that point.

"The patella, in particular, I felt needed to be addressed at that time." (Matthews Dp. pg. 27)

Dr. Matthews was asked his opinion of whether or not both of the surgeries were necessary as a result of the fall off the truck on August 30, 1999, and he answered:

"I feel that, again, if a patient presents that has an asymptomatic history and now is symptomatic, and he has this particular lesion, so then I do address it surgically. So I can only conclude that the fall is a concomitant factor that results in the need for the operation.

"Well, I have a - I don’t know what you guys mean by substantial. But yes, I feel that it’s a substantial factor in regards to the development of his symptoms." (Matthews Dp. pg. 28) (Ruling: Employer Roloff's objection on grounds of Seven Day Rule is overruled. (Matthews Dp. pg. 28)

Dr. Matthews stated he believed that the treatment was proper. The doctor discussed the follow-up treatment he gave to Rothschild: "Well, Mr. Rothschild has been seen multiple times after this second surgery, perhaps a dozen times after the second surgery. He has had, I believe, physical therapy. He has had injections of corticosteroid medication, and he's had a lot of advice given in that time also." (Matthews Dp. pp. 28-29) Dr. Matthews agreed that he knew that Rothschild had additional surgery by Dr. Haupt after he saw Rothschild for the two surgeries.

The doctor was asked if Rothschild's knee would ever be the same as it was prior to the fall of August 30, 1999. Dr. Matthews answered "No", and explained: "The sequela of the knee surgery is a progressive arthritic condition." (Matthews Dp. pg. 30)

Dr. Matthews stated that he believed the fall off of the truck on August 30, 1999 was the cause of the left rotator cuff injury Rothschild sustained. The doctor stated that at the current time he was not sure as to Rothschild's symptoms in his left shoulder, but further testified: "Most authorities would feel that or believe that an untreated rotator cuff tear will also progress to develop what's called posttraumatic or rotator cuff arthropathy, which is basically arthritis of your shoulder." (Matthews Dp. pg. 30)

Dr. Matthews stated that there was no reference to the left ankle in his record from the claimant in his October 20, 1999 notes. The doctor testified: "So that final visit or that visit as of 10/11/02 was the end of the treatment cycle for that postoperative period after the second arthroscopy. Then the patient disappeared from my practice until he revisited me on 8/20/03." (Matthews Dp pg. 38)

The doctor discussed treatment of Rothschild in 2003 referencing his treatment notes. (Ruling: Employer/Insurers' objections are overruled. Matthews Dp. pg. 38) Rothschild returned to my office on August 20, 2003 and the history at that time was regarding a recent right shoulder injury, Dr. Matthews said, Rothschild stated that he fell down some steps at home and described a giving way episode with his right knee. His examination at that time was that he had torn his rotator cuff of his right shoulder, the doctor said. An MRI was recommended , Dr. Matthews testified, "and his MRI showed that he had a complete tear of his supraspinatus tendon of his right shoulder". (Mathews Dp. pg. 39) We talked about physical therapy and about surgery, and I believe Rothschild was sent to physical therapy, the doctor said. He was reevaluated on September 3, 2003 after attending physical therapy and was given an injection at that time; at the next appointment on September 24, 2003 his symptoms were improved and at the last appointment on October 33, 2003 he had regained his motion in his shoulder and it was recommended that he continue a home exercise program, Dr. Matthews stated. The doctor stated:

"I'll restate what I think the question is, which is, did the preexisting problem with the patient's right knee lend itself to a fall or giving way episode that injured the patient's right shoulder. According to the history, that's correct, and, yes, it's conceivable that that's what caused the right shoulder injury." (Matthews Dp. pg. 41)

Dr. Matthews noted that between the 9/24/03 and the 10/22/03 visits "there was a letter written that summarizes those visits in relationship to the right shoulder, I believe." (Matthews Dp. pp. 39-40) In a September 29, 2003 letter to the claimant's attorney (included in the medical record attached to the deposition transcript) Dr. Matthews wrote the following:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon......

With regard to the hypothetical that you posed in your letter, I believe that that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

The doctor was asked at the deposition if he had made reference in his September 29, 2003 letter that Rothschild may need surgical intervention; Dr. Matthews wrote in his letter:

I am anticipating some improvement with continued physical therapy and conservative management. I think the end-result is unclear to me at this point, how much function Mr. Rothschild will gain from this conservative management. Mr. Rothschild may need surgical intervention with the shoulder....

Dr. Matthews was asked his opinion of what effect, if any, would subsequent employments in carpentry have on Rothschild's right knee and shoulder. The doctor answered:

"Mr. Rothschild is a laborer. I believe he's a carpenter?

"Which requires stooping, bending, squatting. So his occupation plays a role in the amount of time that he's up on his knee, and the physicalness of his job adds to the stress that his knee sees. So, consequently, those particular type jobs will promote or progress his degenerative change in his knee joint." (Matthews Dp. pg. 44)

"...in general, I think it would be agreed upon, with medical certainty, that laboring type jobs such as his would aggravate and exacerbate and progress his particular condition, whether it be one job or 17 different jobs." (Matthews Dp. pg. 46) (Ruling: Employer/Insurers' objection on grounds of Seven Day Rule is overruled. Matthews Dp. pp. 44 and 45 and 47 )

In Dr. Matthews' treatment record attached to the deposition transcript was a September 12, 2003 letter by the doctor to the claimant's attorney in which Dr. Matthews wrote the following:

As I stated in that meeting I believe that Mr. Rothschild had a condition of his knee, namely osteochondritis dissecans that was exacerbated and/or aggravated by a work injury. This necessitated an arthroscopic evaluation of his knee by myself and an additional orthopedic procedure at a later date. This individual subsequently has sustained permanent partial impairment of his knee which from time to time with activity causes him symptoms which include swelling and pain. These symptoms are aggravated and exacerbated by the chronic and progressive nature of his condition.

As I discussed with you later employment which supposedly caused Mr. Rothschild to bend, stoop, twist and turn on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. (sic)

Dr. Matthews was asked at his deposition his opinion of whether or not he felt Rothschild was able to work or get a job, and the doctor answered:

"I'll just be completely honest about this. I told Mr. Rothschild at some time, not documented in any of my notes, but I remember the conversation. 'Charlie, you're gifted; you have carpenter skills. You shouldn't be lifting and pulling heavy objects. You probably ought to be making cabinetry and having a shop and doing that sort of work, but I don't think you ought to be framing and installing and lifting.' And that conversation took place. And, as I say, I tried to counsel him during this process of his knee, and that's where we've left it.

"I think - and this is speculative. I think a contractor that frames houses would have a hard time hiring Charlie Rothschild. However, I think a contractor that has a small cabinet shop or more precise work that is - doesn't have the heavy labor requirements may find his skills beneficial." (Matthews Dp. pp. 47-48) (Ruling: Employer/Insurer Roloff's objection on grounds of Seven Day Rule is overruled. Matthews Dp. pg. 48)

Dr. Matthews was asked what physical limitations, in his judgment, did Rothschild have, and the doctor answered:

"Based objectively on Mr. Rothschild's orthopedic pathologies, which includes two rotator cuff tears - -

"- - right and left rotator cuff tears, and the right knee post osteochondritic dessicant lesion, debridement/degenerative disease - - ....

"His restriction would include moderation of overhead activity. I can't quantify what that means. Less than normal overhead activity because of the rotator cuff disease on the right and left shoulder. Moderation of squatting, stooping, bending, pivoting, and turning on his knee joint. If he does too much activity with any one of those joints, he will become more symptomatic and he will progress his disease." (Matthews Dp. pp. 52 and 52)

On cross examination by Roloff Trucking (See, No. B-1), a September 1999 x-ray report of Rothschild's knee taken about eight days after the August 30, 1999 work related accident in Dr. Matthews' record was noted; Dr. Matthews stated that findings on this x-ray of -- an osteophyte from the superior pole of the patella, some calcification seen at the attachment of the muscle at the patellar region and narrowing of the medial femoral/tibial joint space were all preexisting conditions that could cause pain or other symptoms; the doctor stated that in regards to two small calcific densities on the tunnel view and the tunnel itself seen on the x-ray, no one knew if this was a preexisting condition, but further stated that it could cause pain or discomfort. Dr. Matthews agreed that the radiologist's conclusions on the September 1999 x-ray report -- that Rothschild had osteoarthritis of the femoral patellar and medial femoral/tibial joint space -- were pre-existing conditions. Dr. Matthews agreed that the OCD condition in the knee that he found had been present in Rothschild's knee for years prior to when the September 7, 1999 had been taken. The doctor agreed that the arthritis and the OCD are progressive degenerative conditions which are not necessarily caused by trauma and can develop even in the absence of trauma. Dr. Matthews was queried - would he have expected there to be any significant difference in the x-ray appearance if an x-ray had been taken the day before the August 30, 1999 accident as opposed to this x-ray that was taken on September 7, 1999. "I would not expect there would be any difference, Dr. Matthews answered. (Matthews 11/19/04 Dp. pg. 75) (Ruling: Second Injury Fund's objection is overruled. Matthews 11/19/04 Dp. pg. 75) The doctor was queried, wasn't it true in his practice that people who presented to him and were found to have OCD presented without a history of any trauma. Dr. Matthews responded:

"I would say that is true that they present in the absence of trauma, and they also present in the absence of symptoms, and that the finding of OCD is usually a radiographic finding that, Oh, look what we found. So most of the people that present with OCD don't present because their knee is really bothering them that much or - they're just not symptomatic." (Matthews 11/19/04 Dp. pg. 78) (Ruling: Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 77-78)

Dr. Matthews stated that the chondromalacia found at the time of his second surgery would not have been caused by the first surgery in January 2000. Agreeing that the osteoarthritic condition and the OCD lesion were present in the knee before August 30, 1999, Dr. Matthews further testified:

"...I would just state that the progression of (the osteoarthritic condition and the OCD lesion) would aid in the progression of the chondromalacia in so far as small fragments of cartilage deteriorating from degenerative joint disease or osteoarthritic and/or the OCD essentially swim around in someone's joint and they cause abrasion to the end of the bone and/or joint." (Matthews 11/19/04 Dp. pg. 79)

The doctor was asked if the OCD condition in Rothschild's knee would have continued to progress in the absence of an accident on August 30, 1999. "The condition would progress in absence of trauma", Dr. Matthews answered. (Matthews 11/19/04 Dp. pg. 80) Dr. Matthews stated that he would not classify the OCD in Rothschild's knee as severe. "I think the severity, in my mind, would be based on sort of the end stage aspect of that disease process, and I don't think Mr. Rothschild's disease in his knee is end stage." (Matthews 11/19/04 Dp. pg. 82) (Ruling: Second Injury Fund's and Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 81-82)

During cross examination by Roloff Trucking, Dr. Matthews agreed that he changed his 10/22/99 office note concerning Rothschild's right knee that "He has had off and on problems in the past" in October 2002 to "He has never had problem in the past"; when asked if he was saying

Rothschild had never made this statement in October 1999, Dr. Matthews responded - "No. I am telling the world that Mr. Rothschild believes that the way the history was recorded was incorrect in regards to him having problems on and off in the past." (Matthews 11/19/04 Dp. pg. 89) Dr. Matthews stated that he tries to be careful when he takes a history from a patient, "but I get bits and pieces of patients' histories incorrect all the time, and I write notes to myself, but things get dictated incorrectly". (Matthews 11/19/04 Dp. pg. 89) The doctor admitted - "I think it would be unusual" - to get something like this incorrect. (Matthews 11/19/04 Dp. pg. 89) Dr. Matthews stated that if Rothschild had complained of the history within a month of his interaction with Rothschild and he had remembered the office visit and the specifics that were gone over, and it contradicted what he remembered Rothschild telling him, he would not have changed it. "However, this has been now three years later, and I can't remember the interaction", the doctor said. (Matthews 11/19/04 Dp. pg. 92)

Dr. Matthews stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about.

On cross examination by Karst Construction Company, Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of any objective findings intraoperatively. Dr. Matthews agreed that he had reviewed the surgical note of Dr. Haupt for the surgery performed later in 2000, and that surgical noted reflected a progression of problems in the knee from the June 2000 surgery. The doctor noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) The following testimony then occurred:

Q. Now, Dr. Matthews, in later reports, you used words such as aggravated, exacerbated, and accelerated to describe the connection between Mr. Rothschild's subsequent employments, after Roloff Trucking, to the progression of his disease, the progression of his OCD, and the problems in his knee. Okay. By aggravating, exacerbating, accelerating, do you mean that these particular physical activities caused him to be symptomatic, or do you mean that there was a particular objective change that was directly caused by these particular activities in the knee?

Or both?

A. I would state both.

Q. Could you point at anywhere in your record to places that would show us, okay, where a subsequent employment can be directly related to any objective findings in the knee?

A. Probably not. (Matthews 11/19/04 Dp. pp. 105 and 106)

During cross examination by Karst Construction Company, the following testimony occurred:

Q. Let me turn to the right shoulder just for a minute, doctor. It's my understanding that Mr. Rothschild gave you a history with regard to this right shoulder, and that history was in your - it was in other records, but it 's also in your......9/29/2003 report. And you indicated that - and you recorded in that report that Mr. Rothschild had told you that his knee had given way and he had fallen at home injuring his right shoulder; is that correct?

C. If that's what the report says, yes.

S. Doctor, anywhere in your previous encounters with Mr. Rothschild, had you recorded any incidences of instability or his knee giving way?

C. No, I don't think so.

S. Do you recall ever putting anything like that in any of your reports as a complaint that Mr. Rothschild had about his right knee?

A. I don't recall that, no. (Matthews 11/19/04 Dp. pp. 107-108)

On cross examination by Integrity Installations, Dr. Matthews was asked to explain the surgery performed by Dr. Haupt:

"That involves either obtaining a cartilage and bone graft from the patient himself, usually from a nonweight bearing area of the same knee, and transferring that where the OCD lesion and/or a lesion on the weight bearing surface on the end of the femur would be, or in larger lesions, sometimes cadaveric specimens are used to transfer.

"You're trying to repair a defective area that doesn't have cartilage coverage, and the underlying one in this case, because of the OCD process, is also lacking...." (Matthews 11/19/04 Dp. pg. 109)

This procedure performed by Dr. Haupt can be a permanent solution to this condition, Dr. Matthews said, but it was not in Rothschild's case. Dr. Matthews stated that this procedure by Dr. Haupt before January 2002 "could explain some, yes," of the difference seen in the knee between the January and September 2002 visits. (Matthews 11/19/04 Dp. pg. 110) Dr. Matthews was queried as to what problems was he referring to in his January 15, 2002 letter in which he had written the possibility for future treatment, and he had specifically mentioned that Rothschild might require a total knee replacement. The doctor explained:

"Well, I probably was referring to the fact that the progressive nature of the disease, future office visits, future injection therapy, conservative management, the use of anti-inflammatory medications and/or surgical events that will, you know, undoubtedly more than likely happen.....Including total knee arthroplasty." (Matthews 11/19/04 Dp. pg. 111)

The doctor agreed that this future treatment would be because of the progressive nature of Rothschild's condition. When again queried if the progressive nature of the condition was going to happen without regard to activities, Dr. Matthews responded - "(I)n so far as, the activity will, in my words, exacerbate and/or accelerate the condition". (Matthews 11/19/04 Dp. pg. 111) The doctor admitted that the condition was going to get worse "with just activities of daily living, getting in and out of the car, driving, walking". (Matthews 11/19/04 Dp. pg. 112) Agreeing that it was his stated belief that in someone who does moderate activity or works as a laborer the condition would progress faster, Dr. Matthews further stated - "I don't know if it would precipitate it....Progress it, yes". (Matthews 11/19/04 Dp. pg. 112) The doctor agreed that the work as a laborer would cause this progression to come about sooner than expected. Dr. Matthews agreed that in his May 15, 2002 report he again talked of the possibility for a total knee replacement and that again he had mentioned a progressive, degenerative problem with the knee. It was noted that in a September 17, 2002 report to the claimant's attorney, Dr. Matthews had discussed the work injury of August of 1999 which exacerbated the allegedly preexisting condition the OCD lesion and that he stated that now in September 2002 Rothschild was still dealing with the same condition and the sequela of that diagnosis; Dr. Matthews was asked to explain what he meant by this, and the following testimony occurred:

C. That means that, given this man's preexisting OCD lesion and factoring in his activities had, again, I'll use this word, the totality of his employment and these different traumas that he's had, he's still dealing with the aftermath of having this condition.

S. Okay. Now, you are referring to the August of 1999 injury, and now you are using the word traumas plural. Did the patient ever tell you that he had more than one direct trauma?.....To the knee.

C. I guess I would use the trauma in the cumulative sense. One specific trauma, the truck injury and fall, I guess that's what I was referring to.

S. To paraphrase your statement here, this is still one condition. And when you say he's still dealing with the sequela of that original diagnosis or condition - -

C. Yes.

S. - - are you saying it's an ongoing thing dating back to the first time that condition was either noted or diagnosed?

C. Correct.

S. Do you have anywhere in your records where Mr. Rothschild ever told you that any of the subsequent employments, specifically any activities, specific activities at those jobs, were causing a further problem to his knee?

C. Not specifically, no, I don't believe.

S. Is there anywhere in your records during your, I guess, three years or so treatment of this gentleman, that he even told you anything about who - - who he worked for or what he did?

C. No.

S. Over the three years, did he ever tell you about any of the subsequent employments, again after the August of 1999 injury?

C. I vaguely remember some discussion about him being a trim carpenter, but not employers and/or employment and/or where, no.

S. Never identified the employers?

A. No. (Matthews 11/19/04 Dp. pp. 113-115)

Dr. Matthews further stated that Rothschild never specifically told him what he did as a trim carpenter for any of these employers.

On cross examination by BAM Construction, Dr. Matthews stated that there are different grades of OCD. "I would classify them in four stages, and (when I first saw Rothschild) he had a grade four", the doctor stated. (Matthews 11/19/04 Dp. pg. 116) Indicating that Rothschild's OCD was not as bad as it could be, Dr. Mathews explained: "The worst grade would be if the lesion has come out of the pocket or the area where it - - if it had broken off and was swimming around the joint and then the hole was left empty". (Matthews 11/19/04 Dp. pg. 116) Rothschild's was, though, "an end stage type lesion, yes", the doctor said. (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that in his experience, people's memories change over time, so their histories can change as time goes by.

On cross examination by the Second Injury Fund, it was noted that Dr. Matthews had written to the claimant's attorney in a May 15, 2002 letter - "The patient has stated he has had no problems with his knee prior to the work injury, which is consistent with a stable OCD lesion." When asked if this was still his opinion today, Dr. Matthews answered - "Yes". (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that the conditions seen on the September 7, 1999 x-ray could have been asymptomatic. The doctor agreed that the osteochondritis dessicant can also be asymptomatic; Dr. Matthews agreed that the condition could be in the early stage and then a severe trauma is sustained and then the condition goes into level four; the doctor agreed that the OCD could trigger the exacerbation of other pathologies in the knee including the osteoarthritis. October 22, 2003 was the last time I saw Rothschild, Dr. Matthews agreed. When asked, wasn't it your opinion at that time that Rothschild eventually might need a knee replacement but he wasn't at that stage yet, Dr. Matthews answered - "That's correct.". (Matthews 11/19/04 Dp. pg. 120)

On redirect, Dr. Mathews stated that to his knowledge he had not seen any medical record in which Rothschild had made complaints referable to the right knee prior to August 30, 1999. The doctor agreed that if the findings disclosed by the x-ray of the osteophyte, the osteoarthritis, the narrowing, the findings of the right knee were there prior to Rothschild's falling off the truck, to

his knowledge there is no history that Rothschild had sought any treatment for problems with these conditions. Denying that a fall from the truck could have entirely caused the 20 percent of the medial femoral condyle that needed to be surgically treated by him, Dr. Matthews testified that "a fall from a height, as you've described, could aggravate a preexisting OCD lesion and make it symptomatic". (Matthews 11/19/04 Dp. pg. 124) The doctor was asked - even if Rothschild had the asymptomatic condition before, wasn't the fall off the truck the cause for his ongoing problems since then, including the surgeries, everything? Dr. Matthews answered:

"I would not characterize it as such. I would - -

"The fall off the truck brought to light the condition that Mr. Rothschild had in his knee. I'm not going to give a percentage on what that fall off the truck led to. I don't think I have that crystal ball to be able to do that." (Matthews 11/19/04 Dp. pp. 126-127)

The doctor was queried, if Rothschild had had those changes seen on the September 1999 x-ray and had not had the fall off of the truck in August 1999, would he have still had to have three surgeries by January of 2000. "In all likelihood he would have ended up with a surgical event", Dr. Matthews responded. (Matthews 11/19/04 Dp. pg. 127) "I can't give you a time frame", the doctor said, but admitted that it could be a year or 20 years. (Matthews 11/19/04 Dp. pg. 127) Dr. Matthews agreed that he felt the trauma of falling off of the truck aggravated the preexisting arthritic condition in the right knee, and agreed that only after that aggravation occurred did the three surgeries occur. The doctor agreed that when he did the surgery he found loose material in the knee, and stated that that could be from the trauma to the knee.

During redirect, Dr. Matthews was asked his opinion of whether or not Rothschild could work based on his medical history, and the doctor responded: "It is asking me to render a vocational opinion, which I do not have the expertise to do. I don't know if he's employable or not." (Matthews 11/19/04 Dp. pg. 134)

Dr. Raymond Cohen, D.O. testified by deposition on behalf of the claimant. (No. A) The doctor agreed that he reviewed medical records and independent medical evaluation reports, and reviewed the 03/16/04 deposition of Rothschild as part of his evaluation of Rothschild.

It was agreed and stipulated to by the parties at the deposition, that Dr. Cohen would testify in accordance with his curriculum vitae and his two reports dated January 15, 2004 and (June) ${ }^{[5]} 22,2004$ and the doctor's reports were admitted into evidence. (See, Cohen Dp. pp. 6-7) In his January 15, 2004 report, Dr. Cohen wrote of Rothschild's August 30, 1999 work related injury to the right knee and left shoulder upon falling approximately 12 feet off of a truck while working at Roloff Trucking. Subsequent treatment Rothschild received was discussed by Dr. Cohen, including that Rothschild had two surgeries to the right knee in early 2000 by Dr. Matthews and a third surgery to the right knee by Dr. Haupt in October 2000. "Dr. Haupt released him and in March, 2001 he returned to work", Dr. Cohen wrote. Rothschild's subsequent employments as a carpenter at Karst Construction, BAM Construction and Integrity Installations were briefly discussed by Dr. Cohen; Dr Cohen noted Rothschild's comments that several months after falling off of the truck he began to have pain in the left ankle from favoring the right knee; the doctor noted Rothschild's comments that the pain and symptoms in the right knee, left shoulder and left ankle increased from the labor work at each of the subsequent employers. Dr. Cohen noted Rothschild's history that "(I)n July 2003, while at home his right knee gave out on him and he fell and injured the right shoulder". Dr. Cohen's physical and neurological exam findings on January 15, 2004 included the following:

The gait was slow and the patient favored the right knee and left ankle when he ambulated....The left knee was unremarkable. The right knee revealed marked crepitus with range of motion testing. He was diffusely tender to palpation over the knee. A mild effusion was noted. Extension was to -5 and flexion was to 120 . Anterior drawer was $1+$ positive. McMurray's revealed increased joint pain medially and laterally. The quadriceps were weak at $4 / 5$. The left shoulder revealed a positive impingement sign. Abduction was reduced approximately 30 % of expected normal. The rotator cuff muscles were weak at $4+/ 5$. The right shoulder revealed a positive impingement sign. Abduction was reduced approximately 40 % of expected normal. The rotator cuff muscles were weak at $4 / 5$. The right ankle was unremarkable. The left ankle had a mild effusion. He had a loss of motion of the left ankle of approximately 10-15 degrees in all directions....

Dr. Cohen wrote the following in his January 15, 2004 report as the diagnosis regarding the primary work-related injury of 8-30-99:

1. Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear.
2. Left shoulder rotator cuff tendon tear and impingement.
3. Due to a compensatory gait, he has left ankle instability with chronic tendonitis.
4. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition.
5. Due to the right knee giving out at home on or about July 2003, he has a right shoulder rotator cuff tear.

Dr. Cohen wrote of his conclusions regarding the primary work related injury in the January 15, 2004 report:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99.

It is further my medical opinion that within a reasonable degree of medical certainty, he is going to need additional treatment in the future. He is going to need a total right knee joint replacement. Generally these last 7-15 years and more likely than not, he is going to ultimately need a second total knee replacement. Also, he needs to see an orthopedic surgeon for consideration for surgery on both of his shoulders.

It is my medical opinion that within a reasonable degree of medical certainty, he was temporarily totally disabled from December 2001 through August 2002 due to the significant pain that he was having in the above noted areas of his body.

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

At the level of the left ankle, it is my medical opinion that within a reasonable degree of medical certainty, he has a 30 % permanent partial disability at the level of the left ankle, of which 15 % is due to the injury on or about 8-30-99 and the remaining 15 % is due to the three overuse disorders.

He has a 35 % permanent partial disability at the right shoulder. The 35 % at the right shoulder in my medical opinion is due to all four of the claims and would be divided in the same percentages that I had previously stated referable to the right knee.

It is my further medical opinion that within a reasonable degree of medical certainty, his pre-existing conditions or disabilities combine with the primary work-related injury to create a greater overall disability than their simple sum and that due to this combination of disabilities, Mr. Rothschild is permanently and totally disabled and not capable of gainful employment. It is further my medical opinion that his pre-existing conditions or disabilities were a hindrance or obstacle to his employment or re-employment.

In a Supplemental Rating Report, dated June 22, 2004, Dr. Cohen wrote that he had had an opportunity to review additional records consisting of Rothschild's deposition taken on 03/16/04, and a 06/02/04 IME from Dr. Rende. Dr. Cohen noted Rothschild relayed that in regard to the 8-30-99 injury he also injured his left foot; Dr. Cohen further wrote - "As he was favoring his right knee, he was putting increased pressure on his left foot and ankle and the pain progressively became worse. According to the patient, he had x-rays taken of the left foot and ankle by Dr. George and he was told that he had a spur. He continues to have pain in the left foot and ankle." Dr. Cohen noted Rothschild's relayed history in regards to his subsequent employment after Roloff Trucking and his symptoms:

He states that prior to his employment at Karst which began in March 2001, his symptoms were pain in the right knee and left shoulder. He was receiving physical therapy for his shoulder at the time of his employment at Karst. He states that the right knee was giving out on him. He had a sharp ongoing pain in the right knee. He had fallen several times from the knee giving out on him.

He states that he began his employment at BAM Construction in October 2001 and worked through December 2001. He states that subsequent to December 2001, he was off work for a few months due to a lack of available work for him.

He believes his employment at Integrity Installations began around May through July 2002. Please note in my report of 1-15-04, it states that his employment was through July 2003. This should be July 2002. He believes that he was at Integrity less than three months as far as he can recall.

His was last employed in September 2002. He has been unemployed since.

In his June 22, 2004 supplemental report, Dr. Cohen discussed Rothschild's complaints and noted that a repeat exam revealed no

changes. My medical opinions on Mr. Rothschild remain as is per the report of 1-15-04, Dr. Cohen wrote.

At his deposition, Dr. Cohen was asked if it was his opinion that Rothschild is permanently and totally disabled, and the doctor answered - "Yes". (Cohen Dp. pg. 7) (Ruling: Employer/Insurers' and Second injury Fund's objections are overruled. Cohen Dp. pg. 7)

On cross examination by Roloff Trucking, Dr. Cohen stated that he met with Rothschild initially on January 15, 2004 and requested a second time on June 22, 2004 for a second evaluation. Explaining the purpose of the second evaluation, Dr. Cohen stated that as best he could recall he "was uncomfortable with the dates of all of the various employers after 8/30/99", and Rothschild "came back for me to see if I could figure out the dates of those employers". (Cohen Dp. pg. 10) During redirect examination, Dr. Cohen stated - "That's correct" - that he was the one who wanted the subsequent June 2004 exam of Rothschild after having canceled an earlier deposition, the claimant's attorney had nothing to do with him doing a second exam of Rothschild. (Cohen Dp. pg. 132) The histories as to the employments were basically the same, the doctor said. Dr. Cohen further explained the reason for the second evaluation was this "is a more difficult situation because of the large number of claims or employers and claims". (Cohen Dp. pg. 13) The doctor was queried as to what was Rothschild's job at Roloff Trucking, and Dr. Cohen responded - "I believe he was a carpenter with the other employers, and I thought he was with Roloff; I'm not sure". (Cohen Dp. pg. 17) The doctor stated that for determining medical causation between an accident or an occupational disease it would make a difference with respect to the job duties "(I)f it's an occupational disease, then that would be, of course, important, yes". (Cohen Dp. pg. 17) Agreeing that a person's job duties have a significance in determining whether an employee is permanently and totally disabled, Dr. Cohen testified as to the result of Rothschild being permanently and totally disabled: "In his case, it's a result of the pain and dysfunction he has in his shoulders as well as his right knee and the left ankle and due to the chronic pain that he has in those joints, all of that." (Cohen Dp. pg. 18) Dr. Cohen agreed that he is not a vocational specialist. When asked from what jobs was Rothschild permanently and totally disabled, Dr. Cohen answered: "When I put in my report, from a medical perspective, a permanent total, that means I do not feel he could do any type of job, including sedentary or any other - any type of 32-hour-a-week job." (Cohen Dp. pg. 20) Stating that he did not believe Rothschild could do sedentary work, light labor, moderate or heavy labor work or any type of work, Dr. Cohen further said - "So I believe that whatever he's doing at Roloff that had to have him up on the truck where he fell is beyond sedentary work". (Cohen Dp. pg. 22)

During cross examination by Roloff Trucking, Dr. Cohen testified about his understanding of Rothschild's duties at Karst: "He stated that he had to nearly constantly carry heavy materials and that he did a significant amount of bending, lifting, and squatting." (Cohen Dp. pg. 22) Explaining why it was important to learn about Rothschild's duties at Karst, Dr. Cohen testified:

"Because, in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." (Cohen Dp. pg. 23)

Dr. Cohen noted Rothschild's duties at B.A.M.: "He stated he had to do a lot of lifting of cabinets and doors and various types of equipment, and, I believe, in one of the depositions, he also went into a little bit more detail about that job. "(Cohen Dp. pg. 25) Dr. Cohen stated that some of Rothschild's job duties at Karst were heavy labor job duties, and at B.A.M. were heavy labor duties. The doctor discussed his understanding of Rothschild's job duties at Integrity Installations: "He stated he worked there as a carpenter and that he did a lot of repetitive work. And, I believe, also, that's described in his last deposition. My understanding, though, was, that was not a heavy labor work, as best I can recall." (Cohen Dp. pg. 26) Dr. Cohen was shown the First Amended Claim for Compensation against Integrity Installations filed by the claimant with the Division on September 13, 2003, and it was noted that the Claim stated the following description of what Rothschild was doing when the injury occurred - "Doing repetitive carpentry work and erection of display cases, attempting to carry heavy objects, including cabinets, carpentry equipment, and display case...". Dr. Cohen stated that he had seen this Claim form; when asked if this was consistent with what Rothschild had told him about his job duties at Integrity Installations, Dr. Cohen answered: "As far as the carrying heavy objects, that is different than what I understood from him when I saw him.". (Cohen Dp. pg. 27) The doctor agreed that assuming the statements in the First Amended Claim were correct, he would consider Rothschild's duties at Integrity Installations heavy labor type work. The doctor was asked if this changed any of his opinions, and Dr. Cohen answered: "I believe the last three employers were a repetitive type trauma, so whether it was heavy or not, all of those can contribute to an overuse disorder, so it really wouldn't change my opinions." (Cohen Dp. pg. 28)

During cross examination by Roloff Trucking, Dr. Cohen stated that he had reviewed all of the medical records he had listed in his reports. The doctor was queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle. Dr. Cohen answered that he did not remember, but further testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." (Cohen Dp. pg. 31) The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. The doctor was queried if his opinion as to disability for the left ankle would be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001. Dr. Cohen answered:

"That really wouldn't change my opinion, because it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a

serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk. So if he had a serious injury to his knee from the original injury and was limping or favoring it, that would still go back to the original injury if he did not have an acute injury to the ankle at the time when he fell." (Cohen Dp. pp. 36-37) (Ruling: Claimant's objections are overruled. Cohen Dp. pp. 34-36)

Dr. Cohen was further queried if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, and the doctor responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." (Cohen Dp. pg. 37)

Rothschild's left shoulder injury was an acute injury in August of 1999, Dr. Cohen said, the acute injury was from the fall with subsequent finding on the MRI of a rotator cuff tear. Dr. Cohen stated that he did not recall at that time of his deposition if in the records surgery had been recommended for the left shoulder. The doctor stated that he had recommended surgery in his report, and it was his opinion the surgery would probably improve the condition of Rothschild's left shoulder. Dr. Cohen agreed that it was his opinion Rothschild sustained an acute injury to the right knee in the August 1999 fall. Agreeing that he has recommended a total knee replacement to the right knee, Dr. Cohen stated that this was based on severe pain in the knee, the findings in the knee and the medical situation that it is a bone on bone situation. The doctor was asked when in his opinion did Rothschild become a candidate for a total knee replacement, and Dr Cohen answered:

"That time frame would be sometime in 2002 at the point that the knee progressively became more painful and that it appeared clear that he was not going to improve regarding the condition from the knee without the knee joint replacement." (Cohen Dp. pg. 40)

It was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "......I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Assuming that Dr. Matthews' note was correct that Rothschild did have a preexisting condition of osteochondritis dissecans, Dr. Cohen further stated: "...I don't feel, from a medical perspective, that he had any preexisting disability since it didn't bother him. He may or may not have had that condition, but assuming he even had it, it didn't appear to cause any dysfunction in the knee. So I don't find any disability unless he had a severe case of that, then it could have led to some preexisting disability." (Cohen Dp. pg. 48) The doctor was asked if he was now testifying that there may actually be some preexisting disability to the right knee, and Dr. Cohen responded: "I would give a small percentage of disability if it is shown that he had some type of preexisting condition to his knee before that (August 1999) injury." (Cohen Dp. pg. 50) (Ruling: Second Injury Fund's objection on grounds - asked and answered - is overruled. Cohen Dp. pg 50) Dr. Cohen was asked to testify as to what his opinion of this disability would be, the doctor answered: "Approximately 2 to 3 percent." (Cohen Dp. pg. 53) (Ruling: Second Injury Fund's objection is overruled. Cohen Dp. pp. 50-51; and Claimant's objections are overruled. Cohen Dp. pp. 51-52) Dr. Cohen was asked to explain what in his opinion caused the need for the total knee replacement: "The need of the total knee joint replacement is due to the acute injury as well as the repetitive or overuse injury that he has had to his knee, all of that." (Cohen Dp. pg. 54) The doctor agreed that he thought it was due to the combination of the acute injury and the subsequent employers. (Ruling: Claimant's objection is overruled. Cohen Dp. pg. 54; Second Injury fund's objection is overruled. Cohen Dp. pg. 54)

On cross examination by Karst, Dr. Cohen agreed he was aware that after working for Karst Construction, Rothschild went immediately to work fro BAM Construction, there was no separation between these two employments. Dr. Cohen agreed that there was a clarification in his June 2004 report that in his opinion he no longer believed that Rothschild was temporarily disabled between December of 2001 and when he went to work for Integrity in August 2002 because during this time period Rothschild was off work due to lack of available work. The doctor further agreed that when reading Rothschild's deposition, he saw where Rothschild had said during this period of December 2001 through when he went to work for Integrity in August 2002 he had been exercising and looking for work, and thus more proof that Rothschild was not temporarily totally disabled during this period.

Dr. Cohen agreed, during cross examination by Karst, that he has no training and no experience in vocational rehabilitation. The doctor stated that as a neurologist he did testing of Rothschild's mental abilities and his mental abilities were normal; Dr. Cohen agreed that based on his assessment he did not see any obstacle or impediment to employment or vocational training in regards to his mental abilities.

During cross examination by Karst, Dr. Cohen agreed that in January of 2004 he made the recommendation for a total knee replacement based on x-rays taken in 2002. Stating that he was not in the practice of recommending such significant surgery without performing more recent radiographic studies, Dr. Cohen explained his decision in this case in the following testimony:

C. He already had severe joint space narrowing at the time I saw him, and it was clear that any x-rays taken at that time would show advanced osteoarthritis of the knee. It wouldn't show an improvement. It would only show either what he already had before or a deterioration.

S. And, most likely, a progression of symptomatology; is that correct?

C. Yes.

S. In fact, when you take a look at the three surgeries that were done on the employee's knee in 2000, the first two by Dr. Matthews and the third by Dr. Haupt, those three reports actually show a significant progression of degenerative problems in his knee, don't they?

C. Yes.

S. Would there be any reason to believe that that degenerative condition wouldn't continue to progress in that right knee?

C. It would progress.

S. It would progress pretty much no matter what the employee was doing; is that correct?

C. More likely than not, it would have. (Cohen Dp. pp. 65-66)

Dr. Cohen further stated, though:

"In a repetitive trauma type case or overuse type case to the joint, the overactivity or overuse or stressing of the joint leads to increased deterioration of the joint, and that is included in my thoughts when I assess a part of the body that, from the continued stress or damage to the joint, that it is a progressive condition." (Cohen Dp. pp. 68-69) (Ruling: Claimant's objections are overruled. Cohen Dp. pp 67-68)

The doctor was queried, wasn't it impossible to determine how much of the continued problems in the claimant's right knee, after the original accident, were the result of a natural progression of degenerative changes, activity, work, recreation, etc? Dr. Cohen answered:

"Well, it is quite possible to define his situation, based on the fact that he did have significant problems after the first injury, but by his history and doing this type of physical work, the condition increased. So talking about him alone, the medical course of this is that it progressed from the type of work that he was doing superimposed upon a bad injury." (Cohen Dp. pg. 70)

Dr. Cohen agreed that the history he received from Rothschild was that his right knee complaints got substantially worse after each of the subsequent employments. It was noted that Dr. Cohen had stated earlier that weight was a factor in degenerative changes in Rothschild's knee; when asked if he had put Rothschild's height and weight in his reports, the doctor answered - "No, I didn't." (Cohen Dp. pg. 72) Dr. Cohen stated that he did not recall Rothschild's weight or height. The doctor agreed that if the records reflected Rothschild was heavy, 260 pounds, that would also contribute to the general deterioration of the right knee. Dr. Cohen agreed that Dr. Matthews, in January 2002, noted that x-rays at that time showed good joint space, which actually means that in January 2002 Rothschild wasn't bone on bone.

Concerning the left ankle, Dr. Cohen stated that it was his understanding Rothschild's problems began several months after the Augusts 1999 fall from the truck but prior to his returning to work in March 2001.

Dr. Cohen agreed, during cross examination by Karst, that with regard to the left shoulder (as also with the right knee) it was his opinion the subsequent employments lumped together aggravated the left shoulder difficulties Rothschild incurred in 1999.

During cross examination by Karst, Dr. Cohen agreed that he did not have any treatment records for Rothschild during his employment with Karst from March to September, 2001, only an evaluation by Dr. Berkin performed in May of 2001. Dr. Cohen stated that he was not aware of Rothschild losing any time from work as a result of his knee, ankle or shoulder or anything else while working for Karst. Rothschild did not quit working for Karst, Dr. Cohen said, "I recall something in the deposition that they went out of business or closed". (Cohen Dp. pg. 78) The doctor agreed that he was not aware that Rothschild quit working for Karst due to any medical problems or concerns. Dr. Cohen agreed that Rothschild actually went straight to work for B.A.M. after Karst Construction, and after B.A.M. Rothschild was actually available to work all the way up until the Integrity Construction job.

Dr. Cohen stated, during cross examination by Karst, that he did not believe that Rothschild was in need of a total knee replacement in January of 2002. January 2002 was after the Karst employment, the doctor agreed. Dr. Cohen was queried - isn't it correct that the reason for the total knee replacement is the acute injury, the repetitive overuse and the progression of degenerative problems. "That's correct", Dr. Cohen answered. (Cohen Dp. pg. 81)

On cross examination by BAM Construction, Dr. Cohen agreed that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002. Therefore, the doctor agreed, during this period there was no medical taking Rothschild off work for any reason. Dr. Cohen agreed that there was no medical records indicating that Rothschild could not work during the period subsequent to January of 2002 until Rothschild went to work at Integrity

It was noted, during cross examination by BAM Construction, that in regards to his opinion of permanent total disability for Rothschild as of January 2004, the doctor did not put any restrictions on Rothschild. Explaining why this was, Dr. Cohen stated: "If a patient is medically unemployable, I didn't see any need to put the restrictions in there." (Cohen Dp. pg. 83) Dr. Cohen agreed that there are things Rothschild could do from a physical standpoint, Rothschild is not bedridden. The doctor was asked if he expected Rothschild's condition to change in the future without further medical attention. "He will, more than likely than not, have increased arthritic changes in the knee and in his shoulder and may have increased pain from that", Dr. Cohen answered. (Cohen Dp. pg. 84) The doctor agreed that this was because of the nature of arthritic changes and its progressive nature.

On cross examination by Integrity Installations, Dr. Cohen agreed that Rothschild relayed to him that in regards to the job at Integrity he put up display cases and did a lot of repetitive work.

Dr. Cohen stated, during cross examination Integrity Installations, that he is not an orthopedic doctor. I did have a year internship in which included four months through orthopedics and the rest of the year assisting with orthopedics; this was in 1980 and 1981, the doctor said. I have not had any orthopedic training since then. I am not a surgeon the doctor said.

Rothschild "had significant problems in his knee at the time he began his employment (at Integrity)", Dr. Cohen stated during cross examination by Integrity Installations. (Cohen Dp. pg. 89) The doctor agreed that Rothschild had a significant degenerative condition prior to working for Integrity, and that he would have had a lot of pain, discomfort and difficulty performing activities. Rothschild had evidence of this chronic condition before he came to work for Integrity, Dr. Cohen said. The doctor was asked if he had stated that in a large majority of patients, a degenerative condition such as Rothschild has would probably progress anyway without regard to subsequent activities. Dr. Cohen answered: "Yes. In regard to the knee." (Cohen Dp. pg. 90)

It was noted, during cross examination by Integrity Installations, that at one point in his report Dr. Cohen had indicated that Rothschild had worked for Integrity for approximately 11 months for August 2002 through July 2003, and that at another point in his report he had written it was through September of 2002. "I really don't know" the length of Rothschild's employment at Integrity at the time I issued my report, Dr. Cohen admitted. (Cohen Dp. pg. 92) "I hope I was thinking correctly at that time, based on the claim forms that I had an other records, but I can't remember what I was thinking at that time", the doctor said. (Cohen Dp. pg. 92) The doctor agreed that in his second report he had stated Rothschild worked at Integrity from May of 2002 through July of 2002. When queried, if Rothschild testified that his employment dates were approximately July of 2002 through September of 2002 and that he worked only 29 days during that time, would he have any reason to dispute this. "No", Dr. Cohen answered. (Cohen Dp. pg. 93) The doctor stated that he would have no reason to dispute the employment records if they indicated that Rothschild beginning date at Integrity was July of 2002 rather than May of 2002.

Dr. Cohen agreed, during cross examination by Integrity, that Dr. Matthews in his January 15, 2002 had found that Rothschild had a fairly significant disability to the right knee and said it was 50 to 60 percent; Dr. Cohen agreed that Dr. Matthews' rating in January 2002 was pretty close to what he had found overall in January 2004. It was noted that Dr. Matthews, in his May 2002 report, stated that Rothschild might need a total knee replacement, and this was before Rothschild worked for Integrity; Dr. Cohen agreed that in May 2002 Rothschild suffered from a progressive degenerative condition. Dr. Cohen was queried - so without regard to any subsequent employment after May 2002, Rothschild's knee was getting worse and chances are he was going to need a total knee replacement. "That's correct", Dr. Cohen responded. (Cohen Dp. pg. 96) Dr. Cohen agreed that if subsequent activities brought on the need for further treatment or a knee replacement a little quicker or sooner than expected then those work activities merely precipitated the knee for that treatment. (Ruling: Roloff Trucking's objection is overruled. Cohen Dp. pg. 97) The subsequent work activities of that time, after May 2002, would have been Integrity Installations only, the doctor agreed. Dr. Cohen agreed that he had testified that it was his understanding when he initially met with Rothschild the job at Integrity was not as heavy labor as the jobs at Karst and BAM. Despite this, Dr. Cohen admitted, he provided an opinion on disability with regard to the three subsequent employments the remaining disability from these three employments was equally divided. "(The job at Karst) (r)egarding the duration or time" Rothschild worked for Integrity was less than at Roloff Trucking, Dr. Cohen stated. (Cohen Dp. pg. 99) "I was assuming that he was working (at Integrity) full-time", the doctor said. (Cohen Dp. pg. 100) Dr. Cohen stated that he had no reason to disagree if the employment records showed that Rothschild worked at Integrity four days some weeks, or one or two days another week. Dr. Cohen testified:

"From my talking to him on two occasions was that they were all about equal as how they affected him. The jobs may have been somewhat different, but they were difficult jobs that caused increased aggravation on this type of joint injury. And the duration there may have been less in time, but as far as the type of work he did as a carpenter, I thought they all were about the same as far as difficult type of work on a joint that is already significantly involved." (Cohen Dp. pg. 108)

Dr. Cohen agreed that he found disability on the original August 1999 injury, and then he found one lump sum additional for the other three employers, he did not separate out that additional disability as to the subsequent three employers. The doctor was asked if he had one incident that he would attribute most of Rothschild's problems to, and Dr. Cohen answered - "The (8)/30/99 injury". (Cohen Dp. pg. 110) (Ruling: Roloff Trucking and Karst Construction objections are overruled. Cohen Dp. pg. 110) (Ruling:

On cross examination by the Second Injury Fund, Dr. Cohen was queried - wasn't it correct that in his review of the medical records he saw no particular injuries while Rothschild was employed at Karst, BAM or Integrity. "Acute injuries, that's correct", the doctor said. (Cohen Dp. pg. 114) Dr. Cohen agreed that Rothschild's symptoms probably further degenerated since his last date of employment. Dr. Cohen agreed that it was his opinion Rothschild would benefit from surgery to the left shoulder. The doctor was asked if he would defer as to whether or not there were any jobs suitable for Rothschild in his condition to a vocational expert, and Dr. Cohen answered - "Yes". (Cohen Dp. pg. 120)

On redirect examination, Dr. Cohen was asked what injury Rothschild had sustained to the left shoulder as a result of the August 1999 fall. "He has an impingement to the left shoulder and a tear of the rotator cuff in the left shoulder", the doctor responded. (Cohen Dp. pg. 125) The doctor was asked if the degenerative changes seen in Rothschild's knee were due to the injuries that he had as opposed to the natural aging process. Dr. Cohen answered:

"The degenerative changes, in Mr. Rothschild's case, are due primarily to the original trauma to those joints and also due to the repetitive work he did, and to a lesser degree to the fact that he's of this particular age group, you could see some. And he is overweight, and that can also cause some of those findings as well." (Cohen Dp. pp. 133) (Ruling: Roloff Trucking objections are overruled. Cohen Dp. pg. 133)

Dr. Phillip George, M.D. testified by deposition on behalf of Karst Construction (Karst Exh. No. 7) Dr. George stated that he is an orthopedic surgeon. It was agreed and stipulated to by the parties that Dr. George would testify in accordance with his June 22, 2004 report. (See, George Dp. pp. 6-7)

Dr. George testified as to his diagnoses after taking a history and complaints, a physical examination and a medical review:

"My diagnoses were: one, post-traumatic arthrosis, right knee, moderately advance; two, complete rotator cuff tear right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromiocalvicular joint; three, rotator cuff tear of the left shoulder with degenerative arthritic changes at the AVC joint; four, early post-traumatic changes at the AVC joint; four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." (George Dp. pg. 8) (Ruling: Claimant's objection is overruled. George Dp. pg. 8)

The doctor was asked his conclusions as to Rothschild's right knee difficulties, and Dr. George answered:

"It was my felling that this gentleman had preexisting osteochondritis dissecans of his right knee and that it was aggravated or exacerbated by the fall of August of '99.

The subsequent surgeries were carried out in 2000. They found evidence of drastic osteochondritis dissecans, which preexisted the injury in question, but in my opinion was made worse by the injury in question. Standard arthroscopic techniques sufficed to moderate his symptoms but did not cure the problem.

It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10)

Dr. George was asked to testify as to his opinions regarding the role of the various subsequent employments:

"The condition of osteochondritis dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employments from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004.

What I mean by a minor contributory factor is that, if a gentleman has a rough spot in his knee, and he goes to work, and even walking from the parking lot into the place of employment, that might make the knee a little sore. He works a full eight-hour day - - a ten-hour day. He does what does. He goes home. It's still sore. I think his work activity had something to do with making the knee sore.

If he had gone to work with a normal knee, smooth surfaces, no osteochondritis dissecans, he might have come to work sore anyway depending upon what he does at the place of employment. If he falls off the top of a cab of a semi, he's going to be sore. That's more or less what I mean by minor contributory factor.

This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." (George Dp. pp. 10-11)

The doctor was asked to state his opinions in regard to the left shoulder, based on his evaluation:

"I felt that that same injury we just discussed, the fall off the top of the cab of the tractor in '99, caused the rotator cuff tear.

The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not want surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that." (George Dp. pg. 11)

Dr. George gave his opinion on causation as to the right shoulder:

"The right shoulder problem was clinically more severe. It had apparently resulted from a fall which had occurred some years - perhaps three to four years after the original injury of '99. The patient, indeed, told me that it occurred at home because his right knee collapsed and caused him to fall.

I simply said that I did not feel the right shoulder problems, even though they were severe, were not the result of any of the work injuries we talked about." (George Dp. pg. 12)

Dr. George gave his opinions in regard to the left ankle after evaluation:

"The diagnosis, which I offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

It was noted that Dr. George had said Rothschild had injured his left ankle in 1999, and the doctor was asked if he was able to find complaints produced in the medical records. Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, the doctor said. Dr. George agreed that his opinion was the same in regards to the left ankle as with the right knee in regards to subsequent employment, that the subsequent employment play only a minor contributory role in the problem. Dr. George was asked to compare the problems in Rothschild's left ankle to his right knee:

"The nature of the difficulty in his joints is, in my view, the result of a systemic problem. Osteochondritis dissecans is a bona fide orthopedic diagnosis. It has a chapter in any orthopedic text. And what it says is we don't know why people get this, but it's very classic and well-described. And this gentleman fits the diagnosis to a tee.

There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle.

What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab." (George Dp. pg. 14)

Dr. George agreed that he has stated that in regards to the surfaces of the ankle and the knee, these could get sore with activity. In regards to activities such as trucking and whether or not it contributed to any additional problem, Dr. George testified: "I would suggest that those activities would not alter the natural - so-called natural history of this particular condition, which is one of progressive deterioration with advanced pain." (George Dp. pg. 15) (Ruling: Roloff Trucking objection is overruled. George Dp. pg. 15) Dr. George agreed that in his review of the medical records he did not see any significant alteration with the symptoms.

On cross examination by the claimant, the doctor was queried if he was saying osteochondritis dissecans cannot be caused by trauma ever. Referring to what the doctor described as one of the two leading texts for orthopedists, Dr. George answered:

"If you read that, it says this condition is post-idiopathic, doctor talk for we don't know why. But it then proceeds to say one of the, one of the many possible etiologies might be trauma. What I'm referring to is the kind of trauma that occurs if a 14-year-old kid falls off his bicycle or twists his knee playing soccer, those kinds of thins, or a 21-year-old hits a bridge on his Harley, those kinds of things, we think, can initiate the problem.

It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have." (George Dp. pp. 16-17)

Dr. George agreed that even if you have preexisting osteochondritis dissecans, it can be asymptomatic and can be activated or aggravated by trauma. The doctor also testified: "I do think that if you have an osteochondritic knee and you fall off a trailer you can hurt it. Now, what does that mean? That means the symptoms get more severe. Did the fall cause the problem? I don't think so. (George Dp. p. 22-23)

During cross examination by the claimant, Dr. George agreed that in his report he had written the right shoulder problem is more severe and resulted from a fall which occurred three to four years after the original injury to the right knee. When queried, wasn't it correct that the fall occurred because of the right knee gave way, Dr. George responded - "That's what the patient told me." (George Dp. pg. 20) Dr. George gave further testimony:

"What I think I've been saying is that I think the gentleman had an intrinsic problem with his knee, which for convenient sake, orthopedists call osteochondritis dissecans.

It was my opinion that the work-related trauma of ' 99 was a minor contributing factor to this condition. It was my feeling that eh reason he fell, assuming his report to me was the truth, in, I guess, ' 03 or whenever it was, at least three to four years after the original injury when his right knee gave way - it would be my surmise that the knee gave way because of osteochondritis dissecans, not because of any effect of an injury which occurred in '99.

Certainly the effects of that injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans. That presumably is what made his knee give way and hurt his shoulder.

So I'm not - I mean, your reading of that statement is fairly creative from your point of view. From my point of view I would tell you I think it was due to arthritis of his knee." (George Dp. pg. 21) (Ruling: All objections overruled. George Dp. pg. 20)

Dr. George admitted that he had no history of Rothschild's right knee giving way prior to the 1999 accident when he fell off the truck at Roloff Trucking, and that he had no history and saw no medical records of osteochondritis dissecans being diagnosed prior to the fall of the truck at Roloff Trucking in 1999.

On cross examination by Integrity Installations, Dr. George agreed that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current conditions. (Ruling: Roloff Trucking's objection is overruled. George Dp. pg. 28) Dr. George stated that he did not think he saw the report of Dr. Richard Rende.

On cross examination by Roloff Trucking, Dr. George stated if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". (George Dp. pg. 31( (Ruling: claimant's objection is overruled. George Dp. pg. 31) It was noted that the doctor described the left ankle as "early post-traumatic arthrosis of the left ankle", and Dr. George explained what he had meant: "That means I expect it to get worse". (George Dp. pg. 32) It was noted that he had used the term "drastic osteochondritis dissecans", and the doctor was asked if the condition was drastic back in 1999. Dr. George answered: "It was drastic in 2000 when they first started looking in there with an arthroscope? The three operative reports of the two surgeries describe changes which one would have to label drastic, i.e., advanced, long-lasting, severe." (sic) (George Dp. pg. 33) Dr. George gave the following opinion testimony in regards to the claimant's left ankle:

S. Okay. And my understanding is, from reviewing your report, that the claimant's - when you looked at him it appears, one of the symptoms he did is he had a limp on the left, not the right. So is it a fair statement he was limping from the left ankle, not the right knee?

C. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

S. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

C. No.

S. Or the original accident back on August 30, 1999?

C. No.

S. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

C. That's a fair statement.

S. In that you say it was substantially caused by the original trauma of 1999 ?

C. That is correct. (George Dp. pp. 33-34) (Note: Ruling: Second Injury Fund and Claimant's objections are sustained. George Dp. pp. 29, 30 and 31)

On cross examination by the Second Injury Fund, Dr. George agreed that he met with Rothschild personally, and Rothschild did not relay to him any prior injuries or treatment to the right knee before the August 29, 1999 injury. The doctor was again questioned if a patient can have osteochondritis dissecans but no symptoms, and Dr. George's testimony this time was: "Once again, it depends on the degree. If you have osteochondritis dissecans and you have symptoms, you may not go to the doctor about it, but you're certainly symptomatic." (George Dp. pg. 37) (Ruling: All objections overruled. George Dp. pp. 35, 36 and 37) When further

queried, don't you recall testifying earlier that a person can have the condition of osteochondritis dissecans but be asymptomatic, Dr. George responded: "I don't recall saying that. I doubt I said that. If I said that, I didn't mean it. What I meant was you can have that condition and not go to the doctor about it." (George Dp. pg. 37) Dr. George agreed that he did not see any preexisting treatment records for the right knee or left ankle prior to the August 30, 1999 injury. Dr. George agreed that he examined Rothschild's left shoulder, and it was his opinion the August 1999 injury caused the left shoulder rotator cuff tear. "As far as I know", the doctor said, Rothschild was pain free in the left shoulder before August of 1999. (George Dp. pg. 38) The doctor agreed that Rothschild told him he had injured his right shoulder at home and not at work. Dr. George agreed that Rothschild did not relay to him any medical history, and he did not obtain any medical history of any problems before August of 1999 to the left ankle; the doctor agreed that Rothschild relayed to him that he had no prior injury or treatment to the right knee before the injury of August 29, 1999. Dr. George stated "(C)orrect" that it was his opinion the osteochondritis dissecans was significantly aggravated or exacerbated by the fall of August of 1999 when Rothschild fell off the trailer. (George Dp. pg. 39)

On further cross examination by the claimant, the doctor was queried if the fall of 12 feet landing on concrete such as Rothschild had could cause severe drastic changes in the kneecap which would show up as osteochondritis dissecans.

"What I'm trying to say is the findings that were reported by the arthroscopist describe a condition which I called drastic. And what I meant by that was advanced degenerative changes in the knee which had been long-lasting. What I mean by that is preexisting August of ' 99 .

If one falls off a 12 -foot truck cab onto any kind of surface, one can damage any of his joints, but that kind of injury doesn't cause what was described by the arthroscopist. What they were describing was far beyond that, something that had been ongoing for probably 20 years and could have been aggravated by the trauma of August of '99, but there would be no way to tell because of all the wreck that had been there before secondary to osteochondritis dissecans." (George Dp. pp. 4243) (Ruling: Karst and Roloff objections are overruled. George Dp. pg. 42)

Dr. George agreed that in his report he had opined - "I consider his present condition to be due to preexisting osteochondritis dissecans aggravated to a significant degree by the trauma from 1999". The doctor further testified: "I agree with that. I mean, I think that's what I've been saying all along," (George Dp. pg. 44) (Ruling: All objections are overruled. George Dp. pp. 43 and 44)

Dr. Richard Rende, M.D. testified by deposition on behalf of Integrity Installation. (Integrity Installation Exh. No. 8) Dr. Rende stated that he is a board certified orthopedic surgeon. The doctor agreed that he evaluated Rothschild on June 2, 2004 on behalf of Integrity Installation and prepared a report. A history was taken from Rothschild which included any injuries and/or treatment, an employment history, the doctor agreed. I was provided various records for review, the doctor stated. Dr. Rende stated that he performed a physical examination of Rothschild. The doctor stated that he would testify in accordance with his report as to this information as well as his findings upon examination. Dr. Rende testified as to his impressions based on the history and the records: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) The doctor was asked to explain what osteochondritis dissecans (OCD) was:

"OCD is a traumatic injury that occurs typically in people anywhere between the ages of 15 to 50 that results in a lesion that forms on the weight bearing surfaces of either the medial or lateral femoral condyle -

"-or in lay terms, the end of the femur bone. It's the part of the femur bone that bears weight. It's etiology is typically that of either idiopathic or trauma.

"Idiopathic means that there are people who have no known reason for the lesion to occur, but approximately 50 percent of these patients have a history of trauma. There's some theories that it could possibly be a vascular insult that is later dislodged by trauma, but regardless, many of them are traumatic in etiology and it basically results in complete loss of bone and cartilage from the end of the femur from one event.

"It's probably the most devastating of the injuries to the knee because in one fell swoop the patient becomes, as we would say, bone against bone." (Rende Dp. pp. 9-10)

Agreeing that there are different grades of OCD, Dr. Rende explained:

"A Grade I lesion is a lesion that occurs on the radiograph where the bone has lost its integrity but the piece actually does not break away from the end of the femur.

"That has the best prognosis. A Grade II lesion is one in which the piece breaks away partially or becomes unstable. Those can be pinned back in place with a fair prognosis, and then there's a Grade III lesion in which the piece becomes displaced completely and loses its entire blood supply, and those are the poorest prognosis, and that's the type of injury that Mr. Rothschild sustained." (Rende Dp. pg. 11)

Dr. Rende testified as to his additional impressions:

"It was my opinion that the osteoarthritis was directly a result of that particular injury. This was not a repetitive micro-trauma type of injury, and I felt that the gentleman also needed permanent work restrictions, and I went over those in my letter to you." (Rende Dp. pg. 11)

It was noted that Dr. Rende used the term "progressive generative osteoarthritis"; the doctor was asked what relationship, if any, did that have to OCD, and the following testimony occurred:

D. Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with exposed bone and no cartilage.

T. Okay.

D. OCD is a disease where it happens and it's done, it's there. It becomes exposed bone from one injury.

T. And does the progressive degenerative osteoarthritis, was that the result of the OCD injury?

D. Yes. The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results.

T. And that's the natural disease type process from this type of injury?

D. Yes. We call that the natural history of the disease.

T. Would his condition then progress like that without regard to his activities?

D. Yes, that's correct. (Rende Dp. pp. 12-13)

Dr. Rende agreed that he had reached an opinion on Rothschild's ability to work, and stated: "I felt that the patient was able to perform only light duty activities." (Rende Dp. pg. 13) The doctor noted that the restrictions necessary for Rothschild were that he shouldn't be allowed to kneel, squat, climb or lift repetitively over 50 pounds.

Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14) Dr. Rende agreed that he indicated the OCD would have progressed without regard to whatever activities Rothschild was doing. (Ruling: Claimant's objection is overruled. Rende Dp. pg. 14) It was noted that Rothschild was also alleging consequence injuries as a result of the right knee problem to the left ankle and also to the right shoulder from a fall at home at a later time. "I don't believe it had anything to do with his 29 days of employment (at Integrity) that late after his injury", Dr. Rende answered, and agreed that he meant this also as to the left ankle as well.

Agreeing that he felt Rothschild had permanent partial disability to the right knee, Dr. Rende testified: "I felt he had a permanent partial disability of his right leg at the level of his right knee of 30 percent as a result of the osteoarthritis dissecans injury." (Rende Dp. pg. 15) The doctor agreed that this assessment to the right knee was for the overall condition at the time of his evaluation of Rothschild on June 2, 2004. I did not find any disability with regard to the left ankle, the doctor said. Dr. Rende stated that he did not evaluate the right shoulder, noted from the fall at home.

Dr. Rende testified as to his opinion of whether or not Rothschild needed any further treatment: "I felt that this gentleman would be an excellent candidate for a knee replacement or partial knee replacement." (Rende Dp. pg. 16)

On cross examination by the claimant, the doctor was asked if his recommended restrictions for the right knee was because he thought it would hurt the knee. "Yes, it would make it worse and it would produce significant symptomatology to him", Dr. Rende answered. (Rende Dp. pg. 18) The doctor was then queried - so any kneeling, squatting climbing, or lifting repetitively over 50 pounds would make the knee worse? Dr. Rende responded: "I'm talking about his symptoms when -- when you come to a physician, we're human beings, we don't want to inflict pain on someone. And that's the reason I said that." (Rende Dp. pg. 18)

During cross examination by the claimant, Dr. Rende agreed that his opinion the claimant needed either a total or partial knee replacement was attributed to the injury back in August of 1999 when Rothschild fell off the truck.

Dr. Rende stated, during cross examination by the claimant, that osteoarthritis dissecans and avascular necrosis have different etiologies, and explained:

"Avascular necrosis implies more of a vascular damage and it usually is a little more extensive. Osteochondritis dissecans is more of a focal area of loss of blood supply.

"Avascular necrosis is a slightly different disease, it manifests itself similar but it looks different radiographically, it behaves a little bit differently." (Rende Dp. pp. 20-21)

Avascular necrosis does not develop from osteoarthritis dissecans, Dr. Rende said. "The osteochondritis dissecans lesion frequently loses its blood supply but it's a traumatic loss of blood supply because of the loss of the integrity of the subchondral bone", the doctor further stated. (Rende Dp. pg. 21)

On cross examination by Roloff, Dr. Rende stated that half the people in the literature who have osteochondritis dissecans have no history of trauma. "Most of those patients are in the teen age group", the doctor added. (Rende Dp. pg. 23) The doctor stated that he has had a middle aged patient without a history of trauma and have OCD. Dr. Rende was asked what the x-rays would like in a patient without a history of trauma and relays some symptoms of OCD. The doctor answered: "Most atraumatic lesions present as Type I lesions. That means that the radiograph shows a small halo, but the piece that's avascular is still in its anatomic position." (Rende Dp. pg. 24) (Ruling: Claimant's objection is overruled. Rende Dp. pg. 23) The doctor was asked what an x-ray would like in a patient who had preexisting, diagnosed OCD and is subsequently seen with a history that the day before he had an accident; Dr. Rende responded - "It depends on whether the trauma converted it to a Type II or Type III." (Rende Dp. pg. 25) The doctor was asked if it was possible that a trauma could convert a Type I to a type II or a Type II to a Type III. Dr. Rende answered:

"If you look at the literature, most of the Type II lesions have some traumatic history. It's the Type I lesions that typically are more likely - I shouldn't say more likely, they're equally likely to have trauma or not, but the displaced lesions, you usually have a history of trauma." (Rende Dp. pg. 25)

Dr. Rende stated that in Rothschild's case, it would not make any difference if in the August 1999 accident he landed on his feet and twisted his right knee; "(S)imilar etiology or history in treatment", the doctor further said. (Rende Dp. pg. 26) The doctor stated that if a person suffered a traumatically induced OCD he would not necessarily expect a significant amount of pain immediately, but he would expect bleeding of the bone immediately. The doctor was queried if he had also said that OCD even in patient of middle age could be a degenerative type condition. "I wouldn't call it degenerative, I would call it a dysvascular condition", Dr. Rende responded, and explained that "(T)hat means it's an area because of trauma has lost its blood supply". (Rende Dp. pg. 26) (Note: Ruling: Claimant's and Second Injury Fund's objections are sustained. Rende Dp. pp. 27, 28 and 29) Dr. Rende was shown x-rays in the case, and testified as to what a 9/3/99 x-ray revealed as to whether or not this was a traumatically induced OCD versus a preexisting OCD:

"Well, what this x-ray shows is it shows that the base of the lesion is very smooth and sclerotic and it suggests that there's been some separation of the normal vascular bone from the avascular bone below. This suggests that the OCD lesion was, in fact, present for some time." (Rende Dp. pg. 31)

The doctor agreed that the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999. "There's also a very small osteophyte here, but that is really a minimal degenerative change, so -". (Rende Dp. pp. 31-32) The medial joint space looked normal on the 9/3/99 x-ray, Dr. Rende said. The doctor commented on the differences seen on the next x-ray taken on 2/9/00:

"The difference here is that now the loose fragment has been removed and there appears to be significant narrowing in the medial joint space, at least 30 percent loss of height of the medial joint space, relative to the films that were taken preciously." (Rende Dp. pg. 32)

The next x-ray taken on 8/1/00 is essentially the same, Dr. Rende said, "(T)he difference in the two films, the osteophyte that was located in the medial joint space in the prior film, which was two millimeters, is now probably three millimeters." (Rende Dp. pg. 32) Concerning the last x-ray taken on 1/2/01, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." (Rende Dp. pg. 33) Dr. Rende agreed that after viewing the 9/3/99 x-ray , it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33)

On cross examination by Karst, Dr. Rende explained that OCD involves the cartilage that basically forms the end of the femur bone "(A)nd its underlying support structure, a small fragment of bone". (Rende Dp. pg. 34) "You seldom see just the cartilage peeled away, it's usually a little piece of the bone as well as the cartilage that breaks off", the doctor further explained. (Rende Dp. pg. 34) The theory is that "it's actually the bone that's traumatized and it gets loose. The support of the cartilage, which is the bone, comes off with it", the doctor said. (Rende Dp. pg. 34) "The theory is these are traumas, but 50 percent of these don't have a specific history of that", Dr. Rende said. (Rende Dp. pg. 35) The doctor was queried, was it correct that the condition becomes a progressive condition because of the devascularization of the fragment. Dr. Rende answered: "Once the fragment is displaced it loses any little bit of blood supply that it may have had and has to be removed surgically, because it becomes a mechanical blockade to the knee." (Rende Dp. pg. 35) Dr. Rende was asked - is there any question, after reviewing the x-rays, that after this accident of falling off the truck, Rothschild had a Type III OCD lesion. The doctor answered: "Well let me answer this. There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." (Rende Dp. pg. 36) Dr. Rende agreed that from

that point on the condition was going to progress, and that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression throughout the year 2000.

During cross examination by Karst, it was noted that Dr. Rende had testified earlier that Rothschild's was not a repetitive micro-injury situation; Dr. Rende was asked to explain what he meant by that and the following testimony occurred:

C. Well the question that was brought to me by the letter that I received is could this have anything to do with his subsequent jobs, and my answer was no. This occurred as an injury and the subsequent jobs didn't have anything to do with it.

S. So subsequently activity - I think you testified to it on direct - can produce some symptoms for Mr. Rothschild, is that correct?

C. Once you've got this you're going to have symptoms and they're not going to go away.

S. But the underlying progress of this disease got set in stone when Rothschild fell off the truck?

C. It got set in stone when that piece broke loose, became a Type III lesion.

S. Okay. And nothing really that he did after that could significantly accelerate or aggravate the underlying condition of OCD?

C. It could have, but it didn't in this case, and the reason it didn't is because of his age. (Rende Dp. pp. 37-38)

Noting the OCD is normally recognized at an earlier time and treated, that most patients he sees are referred to him by pediatricians, Dr. Rende further stated that younger people have a better prognosis than 51 year olds, and 51 is probably the oldest you'll see this. "Most of the Type 3s are break loose as a result of trauma"; "It doesn't have to be a significantly huge trauma to break loose"; "With a Type III, oh yeah, everybody that has a Type III is going to have pain because they lock the knee joint", Dr. Rende testified. (Rende Dp. pp. 38 and 39) Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende explained why: "...because they've got bone on bone, and bone on bone is what happens. It's one of the few conditions in the human body where one day you don't have arthritis and the next day you've got bone on bone." (Rende Dp. pg. 39) The doctor was asked - these activities that cause Rothschild to be symptomatic, they're not changing the underlying nature of his OCD disease are they? "They are not", Dr. Rende answered. (Rende Dp. pg. 39)

On cross examination by the Second Injury Fund, Dr. Rende stated that he did not review any x-rays prior to the 1999 injury, and agreed that it would helpful in actually determining if Rothschild had Type I OCD before the 1999 traumatic injury. Dr. Rende indicated that based on the x-rays he was shown at his deposition "I see that he had OCD of some sort before the event". (Rende Dp. pp. 42-43) Dr. Rende agreed that a person can have the beginning type of OCD and be asymptomatic.

On further cross examination by the claimant, Dr. Rende agreed that he had been shown x-rays that preexisted Rothschild's fall of the truck that was indicating he had OCD. The doctor was referred to the 9/3/99 x-ray, and Dr. Rende noted that it revealed a Type III OCD. The doctor was asked - you can't really say that the Type III lesion was four years old, four weeks old, four months old or four days old, can you, just from the film alone? Dr. Rende answered: "That's correct. The film doesn't tell you how long that piece has been displaced." (Rende Dp. pg. 47) The doctor was further queried - the osteochondritis dissecans displacement could have been a week old. "The displacement would probably match his symptoms", Dr. Rende responded. (Rende Dp. pg. 47) When queried, the type of displacement seen in the 9/33/99 x-ray would be consistent with pain originating from falling off the truck, Dr. Rende answered: "I would say very easily that that would be very painful and his knee wouldn't straighten all the way." (Rende Dp. pg. 48)

During further cross examination by the claimant, Dr. Rende stated that Rothschild needs knee replacement now, and agreed that the need for the treatment is because of the injury in 1999.

On further cross examination by Karst Construction, it was noted that Dr. Rende had testified earlier that after Rothschild fell off the truck, on a scale of 1 to 10 he was a 10 , he was already as bad as he was going to get; the doctor was asked - with regard to subsequent activities, did they aggravate his pain or do they aggravate his underlying condition? "It aggravates his pain and it puts other parts of his body at risk", Dr. Rende answered. (Rende Dp. pg. 55) Agreeing that he meant other parts of his body outside of his knee; "(H)is knee is already as bad as it's going to get", the doctor further said. (Rende Dp. pg. 55) Dr. Rende added:

"Working for 29 days for this guy or 6 months for that guy didn't make this guy's knee suddenly need to be replaced. It was the lesion that occurred at his age that resulted in bone on bone, with a snap of the fingers." (Rende Dp. pg. 55)

James E. Israel, vocational rehabilitation counselor, testified at the hearing on behalf of the claimant. I saw Charles Rothschild at my office on July 27, 2004 on behalf of the claimant, Israel said, and the Vocational Rehabilitation Evaluation report was completed on October 14, 2004.

Prior to interviewing and evaluating Rothschild I reviewed medical records and reports, Israel said. Those records, which I certainly will need to refer to my report, include: Orthopedic Associates, Ravi Yadava, D.O., August 3, 1999; HealthSouth Tri-

County Surgery, Thomas Matthew, M.D., January 19, 2000 to June 22, 2000; HealthSouth Surgery Center of West County, Herbert Haupt, M.D., January 25, 2000 to January 26, 2000; Missouri Baptist Medical Center, August 4, 2000; Orthopedic Associates, Herbert A. Haupt, M.D., August 1, 2000 to March 20, 2001; ProRehab, P.C., August 3, 2000 to March 7, 2001; England \& Company Case Management Incorporated, July 18, 2000 through May 4, 2001; Neurological and Electrodiagnostic Institute, David M. Peeples, M.D., February 20, 2001; Shawn L. Berkin, D.O., May 9, 2001; Fischer Chiropractic Center, Alfred Fischer, D.C., September 12, 2002; Herman Area District Hospital, October 4, 2002; J. H. Morrow, Jr., D.O., October 8, 2002; Washington Chiropractic Clinic, September 7, 1995 through October 25, 2002; Patients First Healthcare, LLC, Thomas Matthews, M.D., October 20, 1999 to October 28, 2003; St. John's Mercy Hospital-Washington, October 28, 1999 to August 26, 2003; the Division of Workers' Compensation records, September 17, 2003; the deposition of Charles Rothschild, and that includes January 16, 2001 and March 16, 2004; Raymond F. Cohen, D.O., January 15, 2004 to June 22, 2004. Israel noted that subsequent to meeting with Rothschild, two documents became available - the deposition of Dr. Raymond Cohen taken on July 14, 2004; and also England \& Company Rehabilitation Services, James England report of August 12, 2004.

The evaluation of Rothschild on July 27, 2004 included an interview and there was vocational testing, Israel stated. I interviewed him about his work history, educational background, Israel said, and later on, I looked at the issue of his transferable skills. I administered two tests, the Wide Range Achievement Test and the Purdue Peg Board Test, Israel said.

I was asked to assess Rothschild's ability to compete in the open labor market; what factors in time impacted him adversely as to whether he could work or not, that is work as a truck driver or as a carpenter, and in what time line did these factors have an impact; and essentially how was he vocationally affected as a result of the combination of his condition, Israel testified.

In his October 14, 2004 vocational rehabilitation evaluation report (No. C), Dr. Israel included the following in the Employability Section:

Occupations within these initial guidelines could be found in a limited ranged of sedentary and light strength classification of employment as defined by the U.S. Department of Labor. However, these overall restrictions or guidelines now provide for an excessively narrow range of work capacity within both sedentary and light ranges. Considering these restrictions, Mr. Rothschild is clearly unable to return to his past occupations as a truck driver or carpenter.

The vocational assessment found Charles to have a $12^{\text {th }} grade formal education with current academic skills ranging from the 6^{\text {th }} percentile through the 12^{\text {th }}$ grade levels. His manual dexterity speed when compared to others in the sample population was deficient. He would be a viable candidate for selected alternative vocational education or advanced training options when these specific profile factors are considered, independently of his current overall functional status.

The Employment Statistics Quarterly, Third Quarter 2004, shows the existence of significant numbers of unskilled or semiskilled sedentary or light jobs (e.g. assemblers, order clerks, handpackers, cashiers, etc.) in the local labor market. While Mr. Rothschild's earlier medical guidelines do not categorically preclude all sedentary and light tasks, he is not at an insurmountable disadvantage in seeking and securing those lesser skilled jobs that exist in the local economy. At 51 years old, Charles has not worked in an alternative capacity. He could not apply any of his past background as a truck driver or carpenter. He has now has poor capacity to adapt to work that he has been previously unaccustomed to performing. The types of unskilled or semi-skilled sedentary or light tasks that meet the medical guidelines generally do not afford the degree of latitude and work site accommodations that Charles's physical disabilities would now necessitate.

Therefore, when considering his age of 51, education current skills, overall physical limitations and pain combined with the job opportunities within his remaining work specifications, he is insurmountable disadvantaged. Charles, without medically determined improvement followed by extensive work adjustment training to rebuild his work stamina and pace, would not have favorable prospects at keeping any job within these medical guidelines. Employers in the usual course of selecting job applicants would avoid hiring an individual with Mr. Rothschild's overall profile in favor of individuals who are more work ready and able. His current overall limitations, pain, educational and work background factors, and required work site accommodations have certainly rendered Mr. Rothschild unable to compete in the pen labor market.

Dr. Israel included the following in the Conclusion Section of his October 14, 2004 report:

Mr. Rothschild had sustained right knee, left shoulder, and left ankle injuries in an accident on August 30, 1999. Following the accident, Charles resumed significant work activity with other employers as noted above until pain forced him to cease all duties in September, 2002

Charles is an older worker (age 51) with a completed high school education. Vocational testing indicated that his academic skills at present are both below and equal to his achieved schooling level several years ago. His manual dexterity speed was deemed to be deficient. Charles is clearly unable to return to his past occupation as a truck driver or carpenter. He does not have vocational skills transferable to other occupations within his current physical capacity. Charles would not currently be able to sustain gainful work within any exertion classification as defined by the U.S. Department of Labor.

Charles Rothschild is disabled from his usual occupation as a truck driver and carpenter as well as from related occupations for which he would be qualified by education and experience as a direct or proximal result of the industrial injury sustained on August 30, 1999. Successive work injuries accrued from ongoing carpentry duties from 2000 to 2002 (as noted in the medical records). Hence, Charles inability to resume substantial gainful activity is the result of medically determined limitations from both primary and pre-existing industrial injuries or conditions.

The work injuries of August 30, 1999 was the beginning of Charles's work impeding disabilities. The further re-injuries occurred in successive employment as a carpenter from 2000 to 2002, had considerably exacerbated his disabilities (as he performed heavy, repetitive tasks). His right knee injury in September, 2002 continued the cycle of general decline of his vocational potential. As several of his carpentry jobs from 2000 to 2002 were of short duration (less than one year), precise discernment of vocational loss is each instance is untenable. However, overall, Mr. Rothschild is indeed disabled by the series of work events as described form 1999 to 2002. Hence, Charles inability to resume substantial gainful activity is the result of medically determined limitations from all related industrial injuries or conditions.

Mr. Rothschild's diminished endurance capability makes it quite unlikely he could sustain any substantial gainful or fulltime job. The cumulative effects of his physical condition, age of 51, education work background and the special work site accommodations required of prospective employers have placed him at an insurmountable disadvantage. Employers in the usual course of selecting job applicants would avoid hiring an individual with Mr. Rothschild's overall profile in favor of individuals who are more work ready and able. His efforts to locate, apply for, obtain, adapt to, and maintain a suitable job would be replete with obstacles. Under these combined present circumstances, Charles Rothschild certainly cannot compete in the open labor market. (sic)

Israel noted for the record at the hearing that he was referring to and planned on continuously referring to as a source his report and the notes throughout his testimony at the hearing. Agreeing that he had taken data regarding Rothschild's age, Israel stated that he had Rothschild as 51 years old.

Eluding to and relying upon my report at this time, Israel said, Rothschild arrived on time for his scheduled evaluation having driven from his home in Herman, Missouri. Rothschild was referred for evaluation following an injury to his right knee, left shoulder, left ankle, and work-related accident on August 30, 1999, Israel said. He is six feet one inch tall and reported a current weight of 272 pounds, varying between 260 and 304 pounds due to giving up cigarette smoking. Rothschild is right hand dominant, Israel said. He has difficulty with his ability to participate in any enduring activity; he related to the examiner in a cooperative manner; he appeared to put forth good effort during the vocational assessment, Israel testified. He noted Rothschild's primary complaints as indicated in his report, as well as Rothschild's relayed functional limitations. Rothschild's ability to communicate with the interviewer was adequate, Israel noted. Rothschild appeared to be in notable discomfort throughout the course of the evaluation, Israel said. A break was taken after one hour with Rothschild reporting the presence of pain in his right knee; he was able to complete the Wide Range Achievement Test 3, known as the WRAT3 and the Purdue Pegboard Test.

Israel was voir dired on any independent recall he might have of the interview and information regarding Rothschild. Israel admitted that to the last three or four questions he had referred entirely to his report, and had actually read portions of page 2 and Page 3 of the report. Israel noted the things he recalled about Rothschild such as Rothschild standing, and how uncomfortable he was during the interview. But in terms of much of the time line, the kind of jobs he held, who he worked for, I don't recall; I must rely on the records as there's many, many facts in this report. So I am relying heavily on my notes, but I do recall Rothschild, Israel said, and as I see him today at the hearing I certainly remember that interview. Israel testified the questions can cover a very wide spectrum of work history, education, the sequence of events and medical procedures, and the complexity really does require that I make some reference and would need to rely on these notes as I normally do. It was ultimately agreed and stipulated by the parties that Israel would testify in complete conformity with his report dated October 14, 2004.

Israel discussed Rothschild's background, noting that Rothschild reported his general health to have been good prior to August 30, 1999, the date of his initial work injury; Rothschild did not have any preexisting condition that imposed any discernable work limitation. Charles' present work-impeding difficulties began on August 30, 1999 while in the course of employment with Roloff Trucking, Israel said, and then discussed the work related accident and subsequent treatment. Israel noted Rothschild's subsequent employments as a carpenter and duties in those employments.

Israel noted that Rothschild's Wide Range Achievement Test was below and equal to his achieved education several years ago, it refers to his twelfth grade high school diploma, in 1971, several years ago. Arithmetic at the end of the sixth grade; spelling in the middle of the eighth, but would be the middle of the twelfth grade, there about, his high school education; so that is the point of explanation of below and equal to his prior education.

Israel was asked on what did he base his statement that Rothschild is clearly unable to return to his past occupation as a truck driver or carpenter. I based that on very consistent functional limitations as it relates to both upper and lower extremities, Israel answered, what he can use from his upper extremities, i.e. lifting restrictions, and current limitations affecting both the upper and lower extremities, i.e. the limitations on standing and walking, on pushing and pulling of the upper extremities; these are so

severely limiting to what a carpenter would do and a truck driver would do. These limitations easily and singularly eliminate both of those prior physically demanding occupations, Israel said.

Israel was asked why he had said Rothschild does not have the vocational skills transferable to other occupations within his current physical capacity. He has transferable skills by virtue of being a truck driver and a carpenter, but not when he's limited to seven pounds, as an example, with his left hand, and not with the push and pull limitations; not with the type of standing and walking restriction, the various functional limitations, Israel answered. These limitations are very prohibitive, not only on the jobs of a carpenter and a truck driver, but any kind of skill and knowledge that he accrued over the years; he cannot use that within the residual capacity remaining after all these limitations are duly considered, Israel further testified.

On cross examination by Roloff Trucking, Israel agreed that he had found that Roloff had a middle of the twelfth grade reading level which was pretty good. It should be no barrier to many types of jobs as long as you consider the overall profile; yes, it's a constructive score, Israel said. With his eighth grade spelling, it would depends on the job, Israel testified, some jobs require no spelling in which case it's not an issue at all but some jobs require spelling. What I mean is there's many variables, and middle eighth grade spelling is a weak spelling score, but often you could work around it. My conclusion here notes that these overall scores are adequate for some of the entry level, unskilled positions out there, quite a number, Israel stated. He agreed that the same thing would be true even of sixth grade math skills. In fact Rothschild had worked with those scores as a carpenter, as a truck driver, and many others, Israel noted.

Israel agreed, during cross examination by Roloff Trucking, that after Rothschild was placed at maximum medical improvement by Dr. Haupt for the August 30, 1999 injury Rothschild subsequently went to work as a carpenter at a number of much heavier duty jobs than he had while working at Roloff Trucking. Israel agreed that being a carpenter is a much more physically demanding job than truck driving. He agreed that based on his history over a year and a half after being released by Dr. Yadava and Dr. Haupt from the August 30, 1999 injury, and after leaving the employment of Roloff Trucking, Rothschild was able to perform all of those jobs and do the work for those time periods. But also the issue ultimately of his sustainability, does this person last at that job, to constitute gainful employment; so, yes, performance, but sustainability seems to come into the issue here, Israel added. Agreeing that the claimant was employable in the open labor market on the day he left the employment of Roloff, and on the day he began working for Karst Construction Company, Israel further stated as he was working, or as he was making an attempt to go back to work, yes. When further queried if he would also then agree that Rothschild was employable in the open labor market on the day he left Karst Construction Company and the day he began working for BAM Construction Company, Israel responded - I can say this; I was asked to look at his employability at the time I saw him as opposed to those other times. Clearly he went from Karst to yet another one or two jobs actually. So that transfer spoke for itself; that he was working and worked until completion of that time period at each of those respective carpentry jobs, Israel testified. As he worked for the time period that he did, yes, Israel stated, the same statement would be true with respect to when Rothschild left the employment of BAM and began the employment of Integrity - he was employable in the open labor market.

Concerning restrictions he considered, Israel stated during cross examination by Roloff Trucking, I looked at all of the medical records with an emphasis on the most recent records in the past year particularly, or even a year or two that noted what would most directly relate to what limits him. The most recent report was also weighed heavily, and that was Dr. Cohen's of 6/22/04, Israel said. He agreed, though, that at looking at the restrictions in his report they appear to be mainly a combination of Dr. Morrow's and Dr. Cohen's restrictions. Israel was queried as to the reason he disregarded Dr. Matthews', one of the treating surgeons, conclusions that the claimant was capable of working. The latest record of Thomas Matthews is October 28, 2003, and I was referring to the datedness of that 2002 report, that was prior to evaluation or comprehensive assessment of Dr. Cohen in 2004; I didn't have anything later than October 28, 2003 from Dr. Matthews, the most recent was Dr. Cohen, Israel answered. Israel stated that he had no knowledge of Dr. Matthews' testimony that the claimant should be working -- doing carpentry and perhaps even at his own carpentry shop. I have no knowledge of that, Israel responded. When asked if this would change his opinion at all, Israel responded that he would have to see what Dr. Matthews said and what the limitations are, and what context before he could judge by that.

On cross examination by Karst Construction, Israel was queried about his statement in his report - based on Dr. Cohen's statement that Rothschild is "incapable of gainful employment in the market place", he wrote his opinion - "Well, I based my opinion that he's incapable of employment in the market place on Dr. Cohen's conclusion that he was incapable of employment in the market place." Stating that it wasn't that simple, Israel explained that the vocational assessment takes in many elements that any medical assessment can't. I look at the age, the education, the work experience, the employment, the vocational rehab training possibilities, he said. All of these are factors are what plays into whether or not a transition can be made to alternative employment or not, Israel stated. I defer to the physician to make the medical call, then I make the employment corollary as well from all of the medical records, he said. I looked at all of the records that are outlined, Israel testified, the limitations that were also eluded to by other physicians in earlier time periods; I'm looking at the competing issues of upper and lower extremity, that has a time line as well, I'm looking at the time of carpentry and truck driving duties, the test scores, the educational background, and the potential for readapting to alternative employment. Dr. Cohen is merely the latest, the most recent, Israel said. But just as my report noted earlier physicians and their limitations, for example in 2002 or 2001, these are all part of what are factors in the time line.

During cross examination by Karst Construction, Israel stated that he was not given a copy of Dr. Rende's report or his

deposition. Israel admitted that he was not aware that Dr. Rende had evaluated Rothschild as late as June of 2004. Israel stated that he was not aware that Dr. George evaluated Rothschild again in June of 2004, concurrently with Dr. Cohen, and that he was not given any of that information. I was not given transcripts of the two days of Dr. Matthews' deposition to review, Israel stated. Only through October of 2003 is the latest records for Dr. Matthews is what I have, Israel said. I did request an updated medical records, Israel noted, which is why the report came October 14, 2004, having seen Rothschild on July 27th. I needed more records. Israel agreed that the only things he received in response was the deposition of Dr. Cohen and the report of Mr. England. He was queried whether or not it was odd that he did not see any employers' evaluations. I don't look at who had been on the defense or the plaintiff, Israel responded, I look at the issue of a medical person who is a physician, who makes a diagnosis of functional limitations and I don't attempt to get out of that domain and figure whose representing what.

On cross examination by B.A.M. Construction, Israel agreed that in the section of his report entitled "Functional Capacity" there was no reference to anything Dr. Matthews, Dr. Haupt or Dr. Peeples may have said. There certainly was a reading of Dr. Matthews' extensive treatment records up through October of 2003; Israel added. When queried if through some process he picked and chose which of the physicians he was going to use to include their information in the Functional Capacity portion of his report, Israel answered - No, is isn't like a process of picking and choosing; it's all part of the record; there is a timeline. Look at what the limitations are, Israel added, all of them are considered. If I were to quote every doctor that is listed on page 1, it would be a very, very long report, he said, and the point is that all of these were reviewed and considered. What I did was highlight what were the most current limitations that I had, Israel stated.

The emphasis that had the most weight was the June of 2004 current statement regardless of who that source was; it happened to be Dr. Cohen who did that evaluation; if there were other records that are relevant in 2004 then they ought to be considered as well, Israel testified. Israel admitted the fact that Dr. Haupt and Dr. Yadava released Rothschild to return to work without restrictions wasn't noted in the Functional Capacity portion of his report. That's not repeated, he added. The information in the section entitled "Education and Training" was a result of my interview with Rothschild and any other references that may have eluded to it, but, yes, it was primarily Rothschild's assertions about how far he went in school. Israel said. The information in the section of my report entitled "Work experience" came from Rothschild and if there was any reference or information in a report that added light to it, but primarily Rothschild explained pretty clearly what he did, Israel said. Israel was queried if it was correct that his conclusion in his report was that there are occupations within the physical range of skills possessed by Rothschild. Yes, he certainly has transferable skills, there are occupations that a person can do whose been a carpenter and whose been a truck driver though not within his current capacity, Israel answered. It was noted that in his report Israel wrote - "Occupations within those initial guidelines can be found in a limited range of sedentary and light strength classification of employment as defined by the you U.S. Department of Labor." Initial guidelines of doctors did allow for some capacity of work within a sedentary to light range, Israel responded. This was before Dr. Cohen's determination that Rothschild was totally disabled, Israel agreed.

On cross examination by Integrity Installations, Israel agreed that the most current report was what he put more emphasis on, and that he put the most emphasis on Dr. Cohen's June 2004 report. Israel agreed that he was aware that's Dr. Cohen's primary evaluation occurred on January 15, 2004 and Dr. Cohen's June, 2004 report said it was for a supplemental medical rating. He agreed that he had concluded that all of Dr, Cohen's opinions remained the same from January, 2004. Israel agreed that he was unaware of and didn't have the report of Dr. Rende or Dr. George, and it was noted that both of these were orthopedic doctors who saw Rothschild in June of 2004. Israel was shown Dr. Cohen's second report from June of 2004 (marked as Employee's Exhibit C from Dr. Cohen's deposition) and asked to read the second sentence on the first page - "Additional records were reviewed as they include an IME of 6/2/04 from Dr. Rende.". When asked if he had ever asked for Dr. Rende's report after reviewing Dr. Cohen's June 2004 report, Israel stated that he believed that there were more records that he needed to see and he made that request, but, no, he didn't say - I want this doctor or that. I didn't ask for specific doctors, I wanted them all, Israel said.

When I received the updated records I believed that I got all the relevant records.

On cross examination by the Second Injury Fund, Israel agreed that Rothschild told him that he had no preexisting injuries before the August 1999 injury, and the medical records did not contradict that fact. Israel stated that the claimant told him that he had driven to Israel's office from Herman, Missouri, and that is a distance of a little more than an hour; he agreed that as far as he knew Rothschild was driving himself home. When Rothschild ambulated into my office he had a knee brace, I believe, Israel said. He agreed that he asked Rothschild about the August 1999 work injury, and that Rothschild told him he had worked for a short period at three subsequent car[entry jobs. Israel was queried - isn't it correct you're not aware that there were any work injuries at any of the subsequent jobs. As I understood it, Israel answered, what he had told me is that the demands of the carpentry were hard for him, and in that sense became more difficult. I would just say the records speak of the injuries that occurred, Israel testified, I defer to the records that talk about the 1999 injury and all the other particular events leading up to 2002 -- the 9/1/01, the 9/1/02. There were other events since 1999 as he tried to do his carpentry job, Israel stated. Israel stated that he was not aware of any medical records for treatment for any specific work injuries during the three subsequent jobs. Israel said the he believed there was some statement or some reference, though he didn't have independent recall, that the claimant after he left the last job at Integrity applied for unemployment compensation. I do believe that Integrity was Rothschild's last job and that after that he was not able to keep any employment or find any employment at all, Israel said.

Israel agreed, during cross examination by the Second Injury Fund, that Rothschild has a high school education plus some college classes at East Central College. Israel stated that writing and reading would not be barriers for Rothschild; no, academics is not his barrier in that regard. I believed I asked him if he had any computer skills and he does not have any current computer skills

with a PC, he said. I asked him if he handled his own finances and I believe that he handles his finances or handles daily living functions, Israel said. Rothschild as a truck driver or a carpenter I think had delegated tasks to people, but, he was not a supervisor and was not a foreman as I understand it, he said. Israel was queried, wasn't it correct that Rothschild's assertions of physically being able to lift 150 pounds, to sit for 90 minutes and to stand for 60 minutes, these three items themselves would not restrict Rothschild from seeking a sedentary or light position. What I observed of him was a person who was restless, who stood up, who appeared very uncomfortable, Israel responded, so what I observed seemed at variance with what his assertions were. But based on those assertions, if it was as he said, yes, there would be a whole different profile, Israel said.

During cross examination by the Second Injury Fund, Israel was asked wasn't it correct that when he came to his conclusion that he didn't think Rothschild could seek employment, among the factors he took into consideration physically were his right knee, his left shoulder, and his right shoulder. The opinion certainly did take in all of those records and his overall condition, Israel answered. He was asked, when you did an Oasis Test did you take all the data of Rothschild's past experience in heating and cooling as well as his experience as a truck driver and as a carpenter. I enter the job information of the past 15 years, and referred to his past relevant experience; in this instance his extensive experience as a truck driver and his background as a carpenter was in the past 15 years; I believe these were the jobs that were in the past 15 years. Heating and ventilation, air conditioning goes back to the early '70s in the Air Force, I believe, and some work since, but as past relevant work, no; it was centered really in two areas, carpentry and truck driving.

On redirect examination, Israel testified based on my evaluation, my interview, the testing, the review of the records noted in my report, and the subsequent records; based on the factors of age, education, work experience of carpentry and truck driving background, the residual capacity of the upper and lower extremity, I believe at this time Rothschild is not able to compete because of these combined factors.

James M. England, Jr. testified by deposition on behalf of Roloff Trucking. (No. 1) A rehabilitation counselor. England stated that he is a rehabilitation counselor, and that he reviewed medical records and reports and two depositions of the claimant, and prepared a report dated 8/12/04. England agreed that the claimant provided a complete family, educational and vocational background in his deposition. England was asked to testify as to what he had determined about Rothschild's vocational history:

"Well. The first nine years - well, he had worked for about nine years for Roloff Trucking. He said he worked about fifty hours a week and made about ten0fifty per hour. After that he had worked for Karst.....Construction, from March of 2001 to November of 2001. He said that he had worked full-time but it was on a sporadic basis, just when the work was available. He thought he made twenty-five to twenty-six an hour when he was working there. He had worked for BAM Construction earning about thirty per hour. He said he thought he worked there about three months. He left there because of a lack of work, and he did indicate that if he had not been laid off he would have stayed working for that company.

He said he started working for Integrity Construction in July of 2002. That he was there through September of that year. He explained that on that particular job he would assemble and install retail jewelry and cosmetic cases at department stores, and he said he left there in September of 2002 because his pain had worsened and he just didn't feel he could handle that type of physical activity any longer. He indicated that he drew unemployment for about sixteen weeks or so after that and indicated that the did complete the paperwork indicating that he was ready, willing and able to work and that he was, in fact, looking for all alternate employment.

He was also asked about what he had done before he went to work for Roloff Trucking. He said he had worked for several years on his own operating his own business doing home remodeling, finishing basements, things of that nature. He had also driven some other trucks in the past. That included anything from dump trucks to eighteen wheelers. I felt his primary skill and knowledge would be that in truck driving and carpentry. And it appeared to me that it did not appear that he could go directly back to these forms of work based on the medical evidence, but I felt his knowledge of trucking would certainly give him an edge in applying for something like dispatching and at the same time his knowledge of carpentry I think would be idea for Allied Construction positions, such as sales of construction materials, working at an answer desk, dealing with customers who need knowledge about what kind of building materials to buy for a particular project, that type of thing." (sic) (England Dp. pp. 11-13)

England testified as to his conclusions after his evaluation (at the deposition it was agreed and stipulated to by the parties that England would testify in accordance to his August 12, 2004 vocational rehabilitation evaluation report):

There is obviously a variance of opinion with regard to this man's physical capability. Based on Dr. Rende's findings Mr. Rothschild would not be able to go back to his previous work as a carpenter but he would certainly be able to perform a variety of work at the light to medium levels of exertion.

Utilizing his past acquired knowledge, it would appear that he would be an ideal person to train as a dispatcher or that he could use his construction knowledge in sales positions and customer service positions. He could obviously also acquire additional skills at no cost through the Missouri Division of Vocational Rehabilitation which would help him with tuition, books, transportation money, etc.

Only if one accepts Dr Cohen's opinion that the man cannot sustain even sedentary work could one conclude that this man in unemployable. If Dr. Cohen is right then Mr. Rothschild's lack of employability would be due to a combination of a number of different impairments rather than simply one injury that has occurred.

Dr. Cohen added in his deposition that it was possible, in his opinion, that with additional treatment Mr. Rothschild might improve physically and might then not be permanently and totally disabled.

He also admitted that he would defer to a vocational expert as to whether or not there might be suitable jobs for the claimant with his medical conditions. (Ruling: All objections are overruled. England Dp. pp. 14, 15 and 16)

On cross examination by Karst Construction, England was asked about his statement - a combination of injuries - was he talking about a combination of the shoulders and the knee? England responded: "...I'm not saying that's right or wrong, I'm just saying that's what Dr. Cohen indicated, that it was the man's combination of impairments and my understanding the combination would be that he's he had problems with both shoulders and his knee". (England Dp. pp. 19-20) England was further queried - o you're not actually rendering an opinion here today whether this man is permanently and totally disabled, if he is, as a result of a combination or as a result of one injury or anything like that, you're just simply giving us what Dr. Cohen said. England answered:

"What I'm saying is vocationally the only opinion that I can see in here from a medical standpoint - as a vocational person I can't put restrictions on somebody.

"One set of restrictions I think there are plenty of things he can do. The other doctor doesn't list restrictions but just says I don't think he can even do sedentary work. But that some doctor also says the reason I don't think he can do sedentary work is due to a combination of these medical problems. And so I'm saying if he can't work then, based on what that doctor indicated, his lack of ability to work would be based on a combination of problems rather than just one injury." (England Dp. pg. 21)

On cross examination by Second Injury Fund, England was asked if there was any indication that before the date of injuries Rothschild was not able to do his job at Roloff.

Date: January 19, 2006

Made by: /s/ LESLIE E. H. BROWN

LESLIE E. H. BROWN

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

/s/ PATRICIA "PAT" SECREST

PATRICIA "PAT" SECREST

Director

Division of Workers' Compensation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Injury No.: 02-113468

Employee: Charles Rothschild

Employer: Integrity Installation, Inc.

Insurer: Travelers Company

now known as St. Paul Travelers

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 19, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Leslie E. H. Brown, issued January 19, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 23^{\text {rd }} \qquad$ day of January 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No
2. Was there an accident or incident of occupational disease under the Law? No
3. Date of accident or onset of occupational disease: September 1, 2002
4. State location where accident occurred or occupational disease was contracted: Franklin County, Missouri
5. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
6. Did employer receive proper notice? ----
7. Did accident or occupational disease arise out of and in the course of the employment? No
8. Was claim for compensation filed within time required by Law? Yes
9. Was employer insured by above insurer? Yes
10. Describe work employee was doing and how accident occurred or occupational disease contracted: Carpentry
11. Did accident or occupational disease cause death? No Date of death? ---
12. Part(s) of body injured by accident or occupational disease: ----
13. Nature and extent of any permanent disability: ----
14. Compensation paid to-date for temporary disability: ----
15. Value necessary medical aid paid to date by employer/insurer? ----
16. Value necessary medical aid not furnished by employer/insurer? ----
17. Employee's average weekly wages: maximum
18. Weekly compensation rate: $\$ 649.32 / \ 340.12
19. Method wages computation: by agreement of the parties

1. Second Injury Fund liability: Yes No X Open

TOTAL: ----

1. Future requirements awarded: ----

Said payments to begin ---- and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of ---- of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Charles Rothschild

Injury No: 02-113468

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad-$

Employer: Integrity Installation, Inc.

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: Travelers Company, now known as St. Paul Travelers

Checked by: LEHB/bfb

This is a joint hearing involving four cases for the claimant, Charles Rothschild, who in all four cases appeared in person and by counsel, Attorney Ray Gerritzen. In all four cases, the Second Injury Fund appeared by and through Assistant attorney General Caroline Bean. In the fourth case, Injury No. 02-113468, the employer/insurer, Integrity Installations Incorporated/ Travelers Company, now known as St. Paul Travelers, appeared by and through counsel, Attorney Steve Larson.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this case.

On or about September 1, 2002: a. the claimant was in the employment of Integrity Installations Incorporated in St. Louis County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was insured by Travelers Company, now known as St. Paul Travelers; d. the employee's average weekly wage was at the maximum, the rate being $\ 649.32 over $\ 340.12.

e. A Claim for Compensation was filed within the time prescribed by law. f. No temporary total disability has been paid. g. No medical aid has been provided.

1. Whether or not the claimant suffered an occupational disease arising out of and in the course of his employment
2. Medical causation

1. Liability of past medical expenses
2. Future medical care
3. Nature and extent of temporary total disability
4. Nature and extent of permanent disability - whether partial or total
5. Liability of the Second Injury Fund
6. Last exposure

In regards to his prior employment with Roloff Trucking, Inc., it was agreed and stipulated to by the parties that the claimant, Charles Rothschild, sustained injury as a result of a work related accident arising out of and in the course his employment with Roloff Trucking Incorporated on or about August 30, 1999. The claimant alleged injuries to his right knee, left shoulder, and his left ankle and heel area as a result of the prior August 30, 1999 work related accident, and Rothschild further alleges a worsening of the conditions in these body parts as a result of subsequent employments at Karst Construction and then at BAM Construction and then at Integrity Installations Incorporated (the employer herein). At each of these three subsequent employments I worked as a carpenter, and at Integrity Installations Incorporated, the claimant alleges, my right knee and my left ankle conditions worsened due to overuse in performing my work duties; at each of these three subsequent employments I sustained repetitive trauma injuries, Rothschild alleges.

The claimant testified that after the third surgery by Dr. Haupt in 2000 he was then off work the whole time until Dr. Haupt released him back to work in, he believed, March of 2001. March of 2001 is when I went to work for Karst Construction; the doctor was gonna release me anyway, so I found a job, Rothschild stated. The claimant agreed that he was completely off of work from August of 1999 until March 2001, and agreed that this was all due to the injuries at Roloff. In March of 2001, Rothschild testified, I told Dr. Haupt my knee was still hurting and he sent me to all these other doctors -- Yadava and Peeples -- which it didn't do a thing for me, and then he finally said, "Well, there's nothing more that we can do for you. You just need to go back to work.". So I found a job and I asked him to release me, and I went to work for Karst Construction, he said.

Rothschild stated that his brother and a friend of his had both worked for Mr. and Mrs. Karst, and they had been trying to get him to come to work there. I started with Karst on March 30, 2001, I believe, he said, right after Haupt released me. I worked there until late September or early October of 2001, he agreed. When I went to work for Karst my right knee, left shoulder, and left ankle -- well, nothing was really fixed, the claimant said. The left shoulder was probably the best thing out of everything but I had to do all this heavy carrying, Rothschild stated. My left ankle and my right knee were just getting worse and worse the whole time, he said, we had to keep carrying all these heavy doors and equipment. And these fire doors were very heavy, they were solid-core particle board, he stated. My job when I worked for Karst was trim out of St. Louis Housing Authority houses. We had to move the cabinets in and install them, and all the doors were fire doors and we had to load them on trucks, and take them out of the trailer to the houses and carry them in the house, and install them, he said. The doors were so heavy, they were pre-hung with the trim on them, he said, and when you lifted them up the trim would just disintegrate if we didn't lift them up just right. Rothschild agreed that he was doing these things constantly while working at Karst. He was asked what, if any, affect did this have on his right knee, left shoulder, and left ankle. Well, everything I did just kept getting worse, the claimant answered. It was mainly pain in my right knee and my left ankle that was giving me the fits there, he said, I had to take breaks and Joe had the laborers do a lot of the hard lifting and carrying for me and stuff. I worked an 8 -hour day at Karst, the days we worked usually, Rothschild stated. It was a fulltime job but there was days that you didn't work and there was times that there was nothing to do; something didn't come in or something like that, he said. Rothschild agreed that he had to do walking stairs, explaining that with regard to his right knee he would step up with his left foot first when he had to do that. I tried to avoid stairs, the claimant said. My right knee it was definitely worse than anything because it would just be grinding and gritting and popping and completely swollen all the time, he said, and this brace when you sweat - it's supposed to be made for sweating - the more you sweat, and it was very hot out there as it was in the summer time, this brace slipped down on my leg and actually eaten holes, and the bleeding where the pads ate into my leg, Rothschild testified. And when the thing slips down it's putting pressure on the wrong spots and it gets lots worse, the claimant stated. He stated that he wore a brace on his right knee then that was given to him by Dr. Haupt. I made complaints to Joe Karst and P. J., his wife, about the brace rubbing and showed it to them, Rothschild said, they saw it many times. They had the laborers do a lot of the hard lifting and carrying, stocking the rooms with doors and things like that because I couldn't do it, the claimant said. Joe Karst worked with me getting these houses done, Rothschild stated, Joe would hold something up for me; he wasn't really a carpenter or anything, but he would help me do different things like carry something in the room. Rothschild agreed that Joe was there and had on several times told him to sit down and take a break, or something like. He saw I was hurting, Rothschild said.

My work at Karst ended because Karst had some pretty bad financial troubles, Rothschild testified, they actually ended up losing everything and went out of business.

When I stopped working for Karst I then went to work for BAM Construction Company, Rothschild testified, I worked for BAM Construction approximately from October 1, 2001 to about December 30, 2001, he said. At BAM Construction Company I was a finish carpenter, he said, and I strictly worked on the Lenox Hotel, Downtown St. Louis and trimmed quite a few of the hotel rooms out. for BAM Construction. My work entailed my physically doing such things as hanging of doors, the vanities, doing baseboard, stocking the rooms with the trim and then doing just everything to do with trimming that room out for a finish, so it's ready for the painter, he said. I was lifting and carrying tools, doors, big baseboards, and stocking the rooms, Rothschild stated. At BAM I worked from 6:00 a.m. to 2:00 or 2:30 p.m., or 7:00 a.m. until 3:00 p.m., Rothschild said, and pretty well five days a week. He agreed that at that time he was making $\ 30.00 an hour.

Rothschild stated that while working at BAM for the approximately three months in the end of 2001 just everything got worse. My knee got more swollen, the claimant stated, it was always hot in there and I was always sweating, and my brace would fall down and get in the wrong location and eat my leg up, and in the wrong location it put the pressure on the wrong point. I didn't have that much trouble with my left shoulder, Rothschild said, I could use my right shoulder to pretty well take the load. I never could lift the left shoulder right all the way then, Rothschild said, I didn't have the strength in it after that accident, but I got most of it back through the therapy that I took. It never got back to the way it was before I fell off the truck at Roloff, the claimant said. Working at BAM really didn't aggravate or make the left shoulder worse, Rothschild said. The left ankle it definitely did make worse because -- well, my right knee was hurting so bad I had to bare all the weight on my left, Rothschild stated.

The job with BAM ended when the Lenox Hotel renovation ended, which would have been the end of December, Rothschild agreed. I did not work anywhere from the end of December, 2001 till August of 2002, the claimant said. During those roughly seven months I just did exercises at home and I tried to find some jobs, Rothschild said, but when you're in the union you get fined pretty heavy if you go somewhere else and work. So I put my name in the carpenters hall and it was 500 carpenters out, so they couldn't do anything about it, so I just had to wait, and drew unemployment until they called me back, he said.

The claimant agreed that in August 2002 he went to work for Integrity Installations. He stated that he worked for Integrity 29 actual working days but it was over approximately a three-month period, it wasn't just one month because it went on through August through September. My job at Integrity was we put together these Estee Lauder display cases, and there was makeup and display cases for jewelry and everything you see in Lord \& Taylor, Rothschild said, they are those big displays that are real heavy, like at Frontenac and Tiffany's. Lord \& Taylor was the job site and Estee Lauder was the display case, he explained. We had to unload the semis of all these display cases that were already built in Florida and shipped up here in a semi and bring them into the buildings and set them up, he said. The display cases were gigantic and very, very heavy, some of these items were like a ton a piece, they was all particle board and glass, Rothschild said, and it was four of us that would pretty well empty the truck out and set up these things. He agreed that he did both carpentry work and erection of the display cases here. Working for Integrity mainly affected my knee and ankle, the claimant stated, this brace -- we were sweating so bad in there, it was really hot out and this brace kept eating into my leg, and my knee was all swollen up, and then trying to keep the weight off my right leg I put it on my left and my left ankle was just swolled up. You couldn't even see the ankle bone; it was really hurting, Rothschild said.

The claimant was asked what difference, if any, was there in his right knee and left ankle between the time that he was off work from January 2002 until August of 2002, compared to when he was working for Integrity for the 29 days in August and September 2002. Well, my knee never was right or my ankle, Rothschild answered, but it definitely got worse when I went back to work because I had put all this weight on it, you know, up steps and what have you.

Agreeing that he actually quit work at Integrity, Rothschild explained that Kirby Moreland, the job steward, knew he was having trouble. I'd sit down once in a while with him, Rothschild stated. I told Moreland my knee was in bad shape and I think I showed it to him, the claimant said, I think I even showed him the pictures of it. Moreland saw me working, Rothschild said, he was present all the time when I was working. I told Moreland - I can't even stand up anymore, Rothschild stated, I told him I had to go to home and had to go to the doctor. He knew I'd been having trouble with it, real bad several days before that, and I told him I would stay there as long as I could, the claimant stated. Agreeing that he told Moreland that he could not work anymore, Rothschild stated that he told Moreland - I have to leave. I couldn't work anymore because my knee and ankle were hurting so bad, the claimant said, I couldn't even stand. I didn't know if I was gonna make it back to my truck, and I told Moreland that, Rothschild said. At the end when I was working there I could not go up and down steps regularly, he said. At the time I quit I could not lift anything heavy, I could not squat at all because my knee was so swollen and sore. I have not worked at all since that last day at Integrity in September of 2002, Rothschild said. I have not been able to work since then because my knee is shot, my left ankle is just about shot, and both of my shoulders are total rotator cuff tears, the claimant stated, and I just can't do any of the things that I do and work. My job requires me to squat down, and climb, and lift; and there's just no way I can do it, he said.

Rothschild agreed that he worked as long as he could at Integrity. I told Kirby that I couldn't even stand another minute; a few days later he called me back and said he needed me, and I told him, Kirby, I don't know if I can, if I'd be any help to you at all; I said, "I'm really hurting.". Kirby then said he just needed me for a little bit, I was the only one he could trust to do this, and I came back in and I helped him, and I helped him as long as I could, Rothschild testified. Then I told him I told him I couldn't stay any longer, and he said - That's okay, go home. Rothschild agreed that this was after the last day he had left; it was several days afterwards he had quit. I don't know long I worked when I went back after I had quit, five hours maybe just that one day, he said. Rothschild agreed that that was it, he hasn't been able to work since. He agreed that Kirby was there with him on his day of

working five hours. Rothschild agreed that his normal work time was eight hours.

Rothschild explained his physical problems. My right shoulder is all but useless, he said, lifting anything, just as much as trying to brush my hair or wash my head or reaching up in a cabinet; it's just no weight whatsoever can I put on it. If it's down low I can carry; if it's anywhere lifting it up I can't, I can't get it up there. I have to move the right shoulder just right, he said, 'cause even to get it back around sometimes I have to take my elbow and grab it like this (demonstrating) to even get it up to the back of my head; I also can use the wall if I'm close to the wall sometimes. And it comes out of the socket and sometimes I have to move it back around to get it back and you feel it pop back in. The claimant demonstrated the limitation of motion in the right shoulder. Rothschild agreed that he uses his left hand to push the right arm up sometimes because he can't lift the right shoulder by itself. The left shoulder is just kind of sore all the time and it's weak, Rothschild said, but I just limit what I do, lifting stuff up above my head or whatever. Like putting these books on the shelves, if I move it just the right way I could put them up there; but I get to that one point where that pain is, I guess it's where that tear is in there and its never been fixed. Rothschild agreed that this has been true for the left shoulder since falling off the truck in 1999 at Roloff. I can reach the back of my neck with the fingers of my left hand, the claimant stated, it right to the point where it hurts, but I can reach it. The left ankle, Rothschild testified, it's like it's always swollen; I bare weight on it all the time because I cannot lock my right knee. My right knee has never locked since the accident and it's swollen right now, and I just bare all the weight on the left ankle all the time when I'm standing, he said. If I step on a rock or something, it will throw my ankle out, the claimant stated, and agreed that he has difficulty walking on uneven surfaces. I try to avoid them, he said. I get no warning when my right knee gives out, Rothschild testified, that's why I try not to put all the weight on it and use my left. I do not wear the brace around the house because the doctor told me not to, and the more you wear it the more it rubs and it just it gets sore, the claimant stated. If I got to do something, anything at all, when I'm out then I wear the brace, he said. Rothschild agreed that he had worn the brace to the hearing. You can see through the pants, a big old bulky thing, he said. It's light but it's big bulky, he testified, it's a unloader brace, it's supposed to put pressure where it's bone on bone and bring that away to the other side where there's a little cartilage left. One side has cartilage and the other side don't, the claimant said, and when it rubs bone on bone that's when it gets a real bad pain. That one spot when you bend it, there's a spot right there, Rothschild said, it's like a creeky door hinge, one spot it squeaks and the other it don't. You can tell right now when it hits the bone; that's when the thing gives out; it's just a pain like knives going in there; it just drops out from under you and you don't have a warning of it or anything. You can try to avoid the position but if it happens it's too late, he said.

The claimant was asked to discuss how his life is different now than before August 30, 1999. My whole life has been ruined, Rothschild said. I can't work; I can't do any things that I want to do; I have to watch everything I do, he said. I'm in debt up to my neck, and I can't do anything, the claimant stated, I'm pretty well 90 percent useless. What I do on a daily basis, Rothschild testified, is I cook, do my bills, and try to do a couple exercises. The claimant (hesitantly) testified that he gets food stamps to get food. I can't set there all the time, he said, so I try to walk or I even use the stairs to try to get up and down them, but usually I try to use my left foot first to get up the step, and that's how I get up and down the steps pretty well. He was asked if he could drive a truck as a business man, and the claimant answered - No. It's all I could do to drive down here to the hearing. He agreed driving a truck was what he did before when he was a carpenter. I can't drive a truck because I can't sit in that position and it requires you to use a clutch, and I can't move around in the truck, he explained. I cannot work as a carpenter now, Rothschild stated, I give it my best shot and I'm worse now than I ever was. All the combination of everything that's wrong with me, there's nobody that'd hire me, he said.

Rothschild was asked if he was asking for more surgery on his right knee if deemed proper by an orthopedic surgeon. I don't want this knee replacement that they got, I want to try to do something else; that's what I was hoping for, they would come up with something better than the knee replacement; I'm scared to death of the knee replacement because nobody I know has got any good results out of it. The claimant agreed, though, that he is asking for an award of further medical treatment on his right knee.

On cross examination by Roloff Trucking, Rothschild agreed that in March 2001 both Dr. Haupt and Dr. Yadava released him, saying he was at maximum medical improvement, and released him to full, unrestricted duty. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fireproof doors and other heavy items. Rothschild agreed that he did not lose his job at Karst because of a physical inability to work, and he did not quit working for Karst because of the injuries he suffered in the August, 1999 accident at Roloff, he worked for Karst until Karst went out of business in October 2001. I would have continued working for Karst Construction doing carpentry work, including heavy lifting, had work been available from Karst, Rothschild agreed, further stating - "I had to".

During cross examination by Roloff, Rothschild agreed that he filed his Claim for Compensation against Karst Construction and Integrity Installations on October 17, 2002, and alleged a permanent total disability with a date of onset of September 1, 2001 against Karst and September 1, 2002 against Integrity; the claimant agreed that he filed a Claim for Compensation against BAM alleging on September 17, 2003 he was permanently and totally disabled with a date of onset of October 1, 2001 and December 1, 2001. Concerning his fall at home, Rothschild stated that he fell in July 2003, then treated with a chiropractor first, and then went to Herman Area Hospital on or about August 6, 2003. The claimant was asked if he had said anything to the nurses or the doctors at Herman Area Hospital about the fall being caused by his right knee giving away. Yes, I did, Rothschild answered. He was asked if

he had ever told any of his employers at Karst, BAM, or Integrity that he had any work restrictions. No, I didn't, he stated. I did ask them to limit my work somewhat, he said. If they had aides and/or helpers, and they would let me sit down a little bit; all that kind of stuff to help me out and carry stuff, Rothschild explained, they helped me, they worked with me. The claimant agreed that he has continued to deer hunt since his last employment, and that he has to climb rungs similar to a ladder to get to his deer stand. Rothschild was asked how much he weighs now. Two hundred and eighty (280) pounds, he answered. He stated that he does not take much medication now since the Vioxx trouble; he agreed that as of March of 2005 he didn't take much medication. When I did take some medication it was over-the-counter Tylenol and some Advil; that's all I had left, Rothschild stated. I don't like to take any drugs, the claimant stated.

Rothschild stated, during cross examination by Roloff, that he was saying that he hurt his left ankle in the original incident when he fell off the truck. I told Dr. Fischer right away, the claimant stated, but the pain in my left shoulder and my right knee was much worse than the pain in my left ankle. Rothschild stated that he was complaining to Dr. Haupt when he was treating him as well as to Dr. Matthews when he was treating him early on after the accident. Rothschild agreed that he recalled seeing Dr. Shawn Berkin on May 3, 2001 by his own attorney, and at that time he was employed by Karst Construction. I believe I recall seeing Dr. Morrow for a rating evaluation on my own behalf on October 8, 2002, and at that time I had just left the employment of Integrity Installations, the claimant stated. When queried if he had told Dr. Morrow at that time that he hadn't worked since he last saw Dr. Matthews on January 15, 2002, Rothschild responded - I don't remember. The doctor could have got it mixed up; I wouldn't have lied to him, Rothschild said.

Rothschild stated, during cross examination by Roloff, that he does his own yard and lawn work, and he lives on about three and a half acres. The claimant was asked - since your accident at home where you fell down the stairs in July of 2003, have you ever injured yourself in any way as a result of your right knee giving out? No, Rothschild answered, I fell three times and I didn't hurt myself any of those times. He stated that his right knee was giving out a lot while he was being treated by Dr. Matthews and Dr. Haupt, and he told Dr. Haupt and Dr. Matthews several times about it. I don't know why their records don't mention this or my ankle either, Rothschild said, I don't know why they did that. I never told Dr. Matthews at the first visit on October 20, 1999 that I had had off and on problems in the past with my right knee, Rothschild said, and agreed that within the last year or two he sent a note or something of that effect to Dr. Matthews requesting that he change something in his record about that.

On cross examination by Karst Construction, Rothschild agreed that after his Roloff injury, he ended up having three surgeries on his right knee all in 2000. He agreed that he was also diagnosed with rotator cuff tear in his left shoulder and was also having problems with his left ankle. Rothschild agreed that this was all prior to ever going to work for Karst Construction. During this period my right knee was hurting all the time and it had actually given away on a couple of occasions, he agreed. At that time I think it was two times that I had actually fallen because of this give away situation, he said.

When I went to work for Karst Construction right after Dr. Haupt released me from care I was a union carpenter maing union scale, Rothschild agreed during cross examination by Karst Construction. I was on my way for qualifying for Union benefits, Rothschild said. During the time I worked for Karst Construction, Spring of 2001 through September 11, 2001, I worked full time getting substantial hours but I wasn't getting a full 40 hours, Rothschild agreed, and I was actually working as a trim carpenter which is different than a standard carpenter. I guess you could consider this as a lighter job, but not really, the claimant said. He agreed that the Karsts became friends of his during the period of his employment and they worked with him to make sure that he didn't get too sore. I didn't miss any time from work because of my left shoulder, right knee, or left ankle when I was working at Karst, he said, they worked with me. They let me work at my own pace, he agreed, they got me laborers when that was necessary, things like that. I couldn't have done the job without it, Rothschild said. He agreed that while working at Karst he didn't have any specific accidents that caused damage to those body parts, and that he never received any medical treatment of any kind for these body parts while he was working for Karst. Rothschild agreed that after Dr. Haupt released him in March 2001 he didn't begin to get additional medical care until he went back to Dr. Matthews some time in 2002. Rothschild agreed that when he was seeing Dr. Haupt prior to going to work for Karst, he and the doctor did have a conversation about a knee replacement. Dr. Haupt said in the future you may need a knee replacement is what he told me, Rothschild stated.

Agreeing, during cross examination by Karst Construction, that when the Karst's business started folding up he was pretty much the last guy out the door, Rothschild further stated - When work ran out there I even did work in their own home. He agreed that he didn't leave employment with Karst Construction for any medical reason. After working for Karst I went to work for BAM Construction, and that was pretty quick, Rothschild testified, Joe Karst was friends with the owner of BAM Construction, Brian Murphy, and he got me in there on a high recommendation. He agreed that he worked for BAM through December of 2001. I left BAM for non-medical reasons as well, Rothschild agreed, explaining - I was laid off. At that point I applied for and obtained unemployment compensation and began looking for work in the carpentry field, he agreed. The claimant agreed that he was also looking for work in other fields. Rothschild was queried - wasn't it not until after the employment with Integrity that he started saying to himself, you know, I just can't do this work any more? It was right there on the job, Rothschild answered, I stood up as long as I could, and did the job as long as I could, until my leg -- it just gave out totally; I could not do it.

On cross examination by BAM Construction, Rothschild was asked if he remembered when he started working for Bam after leaving Karst. No, I don't, he answered. I believe October of 2001 was pretty close, the claimant said. At BAM I was a finish carpenter at the Lenox Hotel. It was noted that he had worked as a trim carpenter at Karst, and Rothschild said that that was the

same thing as a finish carpenter. He agreed that he worked at the Lenox Hotel as a trim carpenter/finish carpenter for BAM until the job was finished and then he was laid off on about December 17, 2001. I didn't have any specific accidents on the job while I was working at BAM, the claimant said. He agreed that he filed for unemployment when he was laid off at BAM, and then he was looking for work. Rothschild agreed that his claim against BAM was filed in October of 2003, not quite two years after he'd worked for BAM. I did not miss any time from work during the time I worked at BAM as a result of anything, Rothschild said. Agreeing that he did have discussions with someone at BAM, Rothschild said it was not about being hurt on the job. It was with Dave Iden; he knew it, because he let me off with a couple things here and there and stuff like that; getting somebody to bring the trim up or help me get it, Rothschild stated.

On cross examination by Integrity Installations, Rothschild was asked further about the condition of his knee after Dr. Haupt's treatment but before he went to work for Karst. Rothschild agreed that he had stated his knee was ruined; he agreed that this was at the time frame before Karst. Rothschild agreed that he had said before he went back to Karst nothing was ever fixed, and he was talking about the knee, the ankle and the shoulder. The claimant was asked how would he describe his pain level in his knee back between October of 2000 and March of 2001 before he went to Karst. Well, I was wearing this brace and they gave me Vioxx and I took all that; I needed to do the job and stuff and I was hurting but I was able to get through it, he answered. Until the knee brace started slipping down when I started sweating, he said. I had pain in my knee all the time before working at Karst, the claimant said, and problems with stairs and with lifting with the shoulder.

During cross examination by Integrity Installations, Rothschild agreed that Dr. Matthews talked to him about a knee replacement as early as possibly 2000. He agreed that Dr. Matthews advised him that the more he might use his knee the quicker it was going to wear out. In May of 2001 I recall seeing Dr. Berkin at the request of my attorney, Rothschild agreed, and Dr. Berkin gave me restrictions on my activities of no kneeling, stooping, or climbing, and restricted my lifting, standing and sitting. Rothschild agreed that he continued to do some of those activities, though. I had to; I had to work, he explained. I really didn't pay much attention to Dr. Berkin's recommendations because he really wasn't my doctor, the claimant stated. He agreed that Dr. Berkin had also specifically said he should consider alternative employment, but he kept doing the same work.

Rothschild agreed, during cross examination by Integrity Installations, that he had testified about how his activities at Karst, BAM and Integrity made his knee and ankle a little worse, more painful and swollen. At the various jobs everybody pretty well helped me because they knew I couldn't do the job, the claimant said. Rothschild admitted, though, that he would agree that at the time he was working for Karst, BAM and Integrity and doing those specific job activities and developed more pain and swelling, he knew in his own mind at that time that those job activities were making his knee and ankle a little worse.

The claimant agreed, during cross examination by Integrity Installations, that he worked for Integrity Installation for 29 days during the period of from July 22nd through September $24^{\text {th }}$. I never had any slip, trip or falls on the job while I worked for Integrity, Rothschild said. He agreed that at Integrity he worked under a gentleman named Kirby Moreland who was the steward for the job and the one he reported to. I wore a knee brace from day one on the Integrity job, the claimant agreed, only a couple days that I didn't because it rubbed a hole in my leg. When asked if he had been experiencing some additional problems with his knee shortly before he started with Integrity, Rothschild responded - I've always had trouble with it ever since --. I told Kirby I had these previous problems with the knee, Rothschild said, but I don't know when I told him; it was not before I started or on the first day. Rothschild stated that he would not agree that his job at Integrity was a little lighter than the jobs he did for Karst and BAM. I'd say it was heavier; those pieces was lots heavier, he testified. I might have told Dr. Cohen that the job at Integrity was not as heavy labor as the jobs at Karst and BAM, Rothschild admitted. The claimant agreed that he had stated the job at Integrity is when he unloaded display cases used for jewelry and make-up counters and set them up in West County Mall and Frontenac; he agreed that he had earlier described this work for Integrity as very heavy work. He stated that he and three other people would have to lift up the partially assembled cases and then put them on dollies and then roll them in on planks to the ground and then inside; he stated that at Lord \& Taylor he would have somebody putting the display cases on to the dollies and rolling them right in from the truck into the facility. Rothschild agreed that to get the display case on to the dolly somebody could tilt up one side and slide the dolly under, so he wasn't actually having to lift the entire display case at any time, he would simply angle one side and slide in the dollies. He agreed that there were four of them generally on that job - a couple of people on the truck and a couple of people rolling the stuff in; the claimant agreed that he was mostly rolling the things in with Mr. Moreland. Rothschild was queried - wasn't it correct that he had stated he had quit the job voluntarily at Integrity because the pain got too bad and he just couldn't do the work anymore? I didn't actually quit on the spot, no; I had to get out of there and get some help from a doctor, and that's when I went back to see -- made an appointment with Dr. Matthews immediately, Rothschild responded. He admitted that he walked off the job because he couldn't do it anymore. I had to get some help and I went to the doctor, the claimant said. I did go back to the job after this, Rothschild stated, and agreed this was when Kirby brought him back. Rothschild stated when he couldn't stand it any longer and went to the doctor, he thought he went to see Dr. Matthews on September 6, 2002, which would have been within the period of employment at Integrity. I made an appointment as soon as I could, Rothschild stated, I couldn't get in to see the doctor, he was all backed up, so I called him at his house and he boosted me up the line to get me in. It was noted that work records showed that Rothschild worked two more days, two 10-hour days, the week after Dr. Matthews took him off work; it was noted that Dr. Matthews' record indicated that on 9/6/02 he was taking Rothschild off work as of that day. I don't remember, the claimant responded, but further stated that he had no reason to dispute the work records. Rothschild admitted that if it's true that Dr. Matthews took him off work per his records as of 9/6/02, he didn't follow the doctor's recommendation and kept working. I needed

the money, Rothschild further stated. The claimant was queried - isn't it true that you did continue working at Integrity until the job completion and you were laid off with everyone else? No, Rothschild answered, everybody was there and I was the only one that left. The day I walked off the job I only worked a few hours after that a few days later, he said, that's all I remember there, I don't remember working two days after I saw Dr. Matthews. Rothschild stated that it sounded correct that the day he saw Dr. Matthews after walking off the job was on September 6, 2002. I did go back to the job site for Integrity after that visit with Dr. Matthews on September 6, 2002 for a few hours, Rothschild later stated. He agreed that when he had testified earlier that the pain got so bad at Integrity he had to quit work and go to the doctor and couldn't go back to work, that was not entirely true, he did go back to Integrity. It was noted that the Integrity work records actually showed Rothschild worked two additional 10-hour work days in between, and, also, Rothschild was queried - isn't it accurate then that he did keep working at Integrity until completion of the job. Rothschild answered that he did not recall working for Integrity those additional days. That was the end of the job when Kirby called me back because he had to set these glass cases, the claimant further stated, so, yes, it was the end of the job. He agreed that the last day he went back there he did work up until the end of the job. Rothschild agreed that he had testified earlier that Kirby had no one else to help him and that's why he was brought back Kirby was the last one on the job site doing punch-out work, Rothschild agreed. Explaining what "punch out" is, the claimant testified - Chips, and nicks, and knobs, and things that were missing off the cabinets; just little bitty things like that; replace glass that didn't come in or was broken; replacing parts that were broken, or mismeasured, or whatever have you. When Kirby brought me back that last day at the end of the job, the best I remember, we had to pull these jewelry display cases apart by heating them up and pulling the glass out that was actually melted into place; and it took two people because we had to use these special suction cups to lift them out of their locations. It was noted that the time records showed Rothschild worked eight hours that day. Kirby said he would pay me for eight hours, I did not work eight hours that day like the time records show, the claimant responded, I worked five hours. Rothschild agreed that after he last worked for Integrity with Kirby Moreland on that final day he filed for and received unemployment again. The claimant was queried - you were out actively looking for employment. I was trying to do something, he responded, I had no money coming in, I had to have some money coming in. Rothschild agreed that he had to report to the State that he was ready and able to work. He agreed that, as indicated in the unemployment records from the State, the last day he worked for Integrity was September 24, 2002.

During cross examination by Integrity Installations, Rothschild stated that he told Dr. Matthews about the increased problems he says he was experiencing while working for Karst, BAM and Integrity. He agreed that he remembered seeing Dr. Morrow on October 8, 2002, which was right after the job with Integrity ended on 9/24/02; Rothschild stated that he told Dr. Morrow about how the jobs with Karst, BAM and Integrity were making his knee and ankle much worse. It was noted that Dr. Morrow's report indicated Rothschild told the doctor that he didn't work anywhere after January 2002 when he saw Dr. Matthews, and Rothschild was asked if he had told Dr. Morrow this. These dates I just -- they get all mixed up after a while; I can't remember what dates are what; I don't remember, the claimant answered. September 24, 2002 was the last time I remember working, the claimant further stated.

On cross examination by the Second Injury Fund, Rothschild agreed that he was a member of Carpenters 1839, and stated that P.J. Karst wrote the letter for him. I was in it earlier in 1987, but I had to be reinstated and had to have a letter for someone to hire me, the claimant stated. He agreed that before he worked for Roloff he had some union jobs as a carpenter. I left carpentry work for Roloff because of a lack of work, the claimant said, wintertime there's always lack of work, most everybody gets laid off.

Rothschild stated, on cross examination by the Second Injury Fund, that during the time he worked at Karst, BAM and Integrity his knee brace bothered him, and that he told Mike Farris at ProRehab about the problems with the brace slipping, and that the Karsts knew it. Everybody that pretty well knew me knew about it, he said. I did not seek medical help for it or rehab help for it while I was at Karst, BAM or Integrity, the claimant said. The claimant was queried - wasn't it correct that he didn't seek any medical treatment at all until he went to see Dr. Matthews in September, 2002? I tried to one time and they told me that I wouldn't be covered because this was a workers' comp accident, Rothschild answered. They wouldn't do anything for me related to this knee and shoulder, because it was a preexisting condition; I believe this was the Carpenters Union, he stated. When I went to see Dr. Matthews my carpenters insurance paid for that and I paid the co-pay, he said. The Union sends you a letter telling you when you're reinstated in the carpenters' hall, when you have enough hours to get your insurance, Rothschild explained. He agreed that this was before he started at Integrity, and had to be while he was working for Karst.

During cross examination by the Second Injury Fund, Rothschild stated that when he left the job at Integrity for good there were no more jobs to be had at Integrity, the job was over, and he applied for unemployment and went out and looked for other jobs. I had to put my name on the list at the carpenters hall so I could be recalled, Rothschild testified, I was one of the 500 carpenters that was laid off at the time and work was really bad at that time. He was queried - isn't it correct that he never got recalled because it was wintertime? Basically; yes, he answered. The drought of work lasted until they called me back to work when Integrity called the carpenters hall, Rothschild stated. After I left Integrity I applied for unemployment again but I did not put my name at carpenters hall, Rothschild said. Explaining where he looked for work, the claimant testified - "I looked for work in different -- something I could do at home." Something where I could maybe send letters out or post cards or something; that, most of it all entailed the computer and I don't know anything about it; different things on that order, the claimant stated. He was asked if he had sought any jobs through the Missouri Division of Employment or Vocational Rehab. I went down there to see a Veterans Administration guy one time, Rothschild answered, and he took me over to a computer and told me that he couldn't help me operate the computer, he could set there and tell me what to do, and I never touched a computer in my life, so I had no idea; I didn't go back. Rothschild stated that he lives in a town named Berger which is 20 -some miles west of Washington, Missouri. Agreeing that

he still has access to transportation, Rothschild stated that he has a full-size Dodge pickup. I think I looked around the Washington area and my town for employment a little bit but there was nobody gonna hire me in my condition, he stated, I couldn't do anything that I knew how to do. I was looking for other things that I could do, other than the carpentry, truck driving, which I definitely couldn't do anymore, he said. Rothschild was asked if he had actually filled out any applications for work anywhere. No, I didn't, he answered.

Rothschild stated, during cross examination by the Second Injury Fund, that other than chiropractor adjustment, before the August 30, 1999 injury at Roloff trucking he hadn't really been to a doctor since 1993. Agreeing that had characterized himself as a very active person, Rothschild stated that in addition to working full time driving the dump truck his other activities were fishing, hunting, running with his dog, swimming and skiing, and doing gardening. Rothschild stated that for the past eight years he has been living on a little better than three aches of land. I bought a piece of property and it was just like abandoned junk and I fixed it all up, the claimant testified, it was a real mess, there was only one little building there that was left when I bought it and I redid it. After the August 30, 1999 injury I worked on my property and my house very little, Rothschild stated, it's maintenance free basically, I don't have to do much to it.

Rothschild was asked to describe what a typical day would be for him now, during cross examination by the Second Injury Fund. A typical day is just doing bills, phone calls, taking walks, doing a little exercise, laundry, dishes, he answered. Rothschild stated that he lives alone, and he doesn't have to do much to clean his house but vacuum or dust. I do my own grocery shopping, he stated, I have to drive 22-25 miles into town. Explaining how far he walks when he takes walks, Rothschild testified - My land attaches to the State gravel pit and they have got most of the gravel taken off of it and I walk up there; it's nice and flat; I don't go very far, it's probably 400-500 yards long. Rothschild agreed that he still does deer hunting once a year. When asked if he rode a four wheeler out into the woods, Rothschild responded that he doesn't have the go in the woods very far, he live right there. It's what I cut my grass with and everything, he further stated. Rothschild noted that his brother is with the Sheriff's Department and sometimes he goes over there, and goes to his house. He's got a bunch of dogs and we let the dogs swim; we barbecue and stuff like that, the claimant said. Rothschild was asked if he had made any inquiries at the Sheriff's Department whether he could work as a dispatcher or in any capacity where he wouldn't have to do a lot of walking around or heavy lifting. No, the claimant answered, I don't know if anybody would hire me because I can't sit there, you just have to sit there for hours.

On redirect examination, Rothschild stated that sometimes there were other carpenters that worked with him at Karst. When asked if he was able to do the same work they did, Rothschild stated that they would help him. Everybody would help me, Rothschild said, they let me off on a bunch of stuff because I couldn't do the job. He stated that at all three places - Karst, and Integrity, and BAM - he was given different work than the other carpenters who had no injury, and these employers lighten his work because of his injuries. Rothschild stated that his right knee and his ankle got worse when working at all three of these places. I did things at work to keep it from being in pain, like stepping up with my left leg first, the claimant stated, whatever I could do. Explaining why he went to work in that condition, Rothschild testified that he had to work, he had to have money. I had just bought my new home and everything and I was gonna lose everything, he stated, whatever it took to get money coming in. He agreed that that was the reason he applied twice for unemployment compensation; he agreed that he did this on the telephone. Testifying more about how the other workers helped him out, Rothschild stated that the laborers was not supposed to touch anything for the carpenters, he could be fined for it or thrown off the job. But they risked it and they helped me hang the doors, carry the trim in; they weren't supposed to use their vehicles to bring the material to me and they brought but a lot of it to me and helped me whenever they could; Joe Karst himself, the owner, came in and helped me on the job; they all went out of their way to help me otherwise I could not have done the job, Rothschild stated.

Rothschild testified, during redirect examination, about how his deer hunting changed after August 30, 1999 when he had the work related accident at Roloff. Well, if it got tough hunting I used to go stalk the deer and find them, but after that I just had to set there and wait for them to come to me, he answered.

Concerning Dr. Matthews and whether or not he had put in his records Rothschild's complaints of his knee gave way, Rothschild stated he made many specific complaints to Dr. Matthews that the doctor didn't actually write down. When I saw Dr. Haupt I told him my knee was giving way and the doctor responded that I had had two previous surgeries on my knee, the claimant agreed. I was never seen by any doctor, hospital, chiropractor, nurse practitioner or anybody for complaints to my right knee prior to August 30, 1999, Rothschild said, and further stated that he did not know of one medical record that showed anything wrong with his right knee prior to August 30, 1999. I know of no medical record showing anything wrong with my left shoulder or my left ankle prior to August 30, 1999, the claimant said. I never had torn cartilage in my right shoulder prior to the fall at home in 2003, Rothschild said. The claimant stated that he consented to three different surgeries on his right knee because he couldn't even walk at all. I was really in pain, he said, I thought that was gonna help me.

During redirect examination, Rothschild was asked if he thought he could graduate from high school today. I've seen what kids are doing now days and it's nothing what I went through and I don't think I could; it's a lot worse than when I went to school, Rothschild responded. Rothschild was asked if he knew of any alternative employment he could do, and he answered -. No, I don't.

The claimant was asked when did his left ankle first start bothering him. The day I had the accident at Roloff, he answered,

and after the accident it just got swollen and stiffer and sorer until I couldn't hardly put my heel on the ground. He agreed that the left ankle got progressively worse. Discussing the problems he was having in the left ankle, Rothschild testified - I had to stand on it all the time because I couldn't lock my right knee, and putting the weight on it all the time, carrying all that weight, my ankle was all swolled up, you couldn't even see my ankle bone; and it was hard to bend it, to walk on a grade of any kind.

During redirect examination, Rothschild stated I never told anybody at Karst, BAM or Integrity that I had problems with my left shoulder, right knee or my left ankle, and nobody asked. Joe Karst knew but I don't know what date they knew it, he said. Rothschild stated that he had trouble getting up and down steps all the time. I had to stand up and bend over while putting on baseboard, which is not the way a finish carpenter puts on baseboard, everybody kneels, the claimant said, and I couldn't squat. Rothschild stated that he did tell Kirby -- "I cannot work anymore"? I told him this in September of 2002, he said. This was the same day when I could hardly get to my truck and make an appointment to see Dr. Matthews, Rothschild said.

The claimant was asked, during redirect examination, what if anything was different today between his typical day than what it was prior to August 30, 1999. My whole life has been a wreck, I can't do anything that I used to do, Rothschild answered, I haven't worked for a couple years now and I just can't do anything, I'm just like helpless. With the walks I take, before the fall at Roloff I would run, now I gotta hobble and watch where I step, and go short; I could just take off and do whatever I wanted, I wouldn't stay on the trial I'd go through the woods, Rothschild testified. With doing the dishes at home, it's not the same, he stated, I can't even stand there long. I have to go sit back down, and cooking supper's the same way, he said, 'cause my leg just gives out on me. Explaining why he slept on the sofa after August 30, 1999, Rothschild that it's the only place he can get his leg in a position to be out of pain; he agreed that this was true before any of the three surgeries on the knee. The three surgeries on my knee did not enable me to go back and sleep in my bed, he said.

During redirect examination, Rothschild was asked if he could work now, and he answered - No. I can't do any of the things that I know how to do; I can't stand there, I can't lift, reach, he explained. There's nobody that would hire me in the condition I'm in to do any job, the claimant stated. Rothschild stated that he would love to have his knee made better, and also both of his shoulders ad his left ankle. He was asked if he would like to go back to work. I would love to, he responded, I wish this never happened. Rothschild stated he would go to a doctor for treatment if it was awarded. I'd like to get this knee evaluated, that's my worst thing, the claimant stated, my shoulder is useless but I need to walk before I need to do anything with my shoulder.

On further cross examinatio, Rothschild agreed that he had indicated his knee had gotten progressively worse working for Karst, and that this was also true for his employments with BAM and Integrity. Rothschild agreed that the complaints he listed in regards to his left ankle, all those symptoms occurred prior to his being released by Dr. Haupt to go back to work.

On further cross examination by the Second Injury Fund, Rothschild was asked if his left shoulder had improved since he had stopped working. No, it hasn't, Rothschild answered, now I've got trouble sleeping on it; even if I lay on that side it's real sore. With regards to my heel, Rothschild stated, it's swollen all the time. They said they couldn't do anything for it, he further stated. The heel has stayed pretty well the same since I'm not working because I keep the weight off of it now lots more; it's more swollen, it's still swollen, he said. My right knee has gotten worse; it has progressed since I left Integrity, Rothschild indicated. They call it degenerative, he said.

Kirby L. Moreland testified on behalf of Integrity Installation Incorporated. Moreland stated that he had received a subpoena by mail, but the he had relayed that he was going to come voluntarily anyway. I am not currently employed, Moreland said, I was last employed about three years ago for Integrity. I am retired now, he stated, it was indirectly a voluntary requirement. Moreland explained that the union hall took in southern part of Illinois which added 11,000 men to our already 11,000, so it flooded our market. I have learned from one individual that insurance companies are wanting people in their 40's and younger for employment, to insure the contractors, and the ones over 40 are just plain out; so I just decided to take early requirement and go with it.

Moreland agreed that he worked for Integrity in 2002. I was the steward on jobs at both West County Mall and Plaza Frontenac Plaza, he said, and after layoff I stayed at Tiffany job and did all the punch-out work for Integrity. Moreland agreed that he knows Charles Rothschild. I met him when we started working together on the Lord Taylor (sic) store, he said, we had Clinique, and the men's fragrance, and Lancome cosmetic display units. I met him because I was the steward, Moreland stated. Explaining what they were doing through Integrity at these two mall jobs, Moreland stated that we started out with unloading the trucks, with usually Wally, a superintendent, and Michael, the foreman, doing most of the loading of the dollies. We would transport the display cases on the dollies back into where we had to install them, and then we would sort them out and set them in their close proximities, Moreland stated, and once we did that then we would come back and assemble - put glass shelves in, caulking, sometimes a piece of trim here and there, whatever had to be done. The part of the delivery process I was primarily involved in was wheeling the dollies that were loaded with the display cases into the dock, Moreland stated. Charlie and I usually were teamed up together, and usually one would be behind and one in front.

It took several trips back and forth rolling the items into the building because you got a whole semi load, Moreland stated. To get the cases off the dollies, one of us would have to lift on the end and get the other one out, and the other one pulled the dolly. Then Wally and Michael would come in and they would assign us whatever projects they wanted us to work on such as putting on the shelves or whatever. It didn't require anymore lifting at that point, Moreland said, we did have to put the units in their exact

location, and then from that point on is when they were divided up, just about singled out. They were taller, about six and a half to seven feet tall and about three and a half feet square, roughly, and all those units had to go together to make a long display. I never weighed these individual units but I would guess when we would lift on them it would be somewhere around a hundred fifty to 200 pounds. I tried to lift one alone once and I could do it, Moreland said, but after that I said, we're going to get two guys on them and lift them.

Later after, when we was on the next job, I learned that he had a problem with his leg and I made sure to do all the lifting I could and he'd just pull the dollies, Moreland stated. There was very little to some lifting on the job; we might have to move the cabinet in place then work on it for a while before we could do the next one, he said. Explaining what was involved when you would butt up the cases or get them in place, Moreland stated we would shove them and butt them against each other until we was on the line, and then it was just a matter of fastening the units with bolts. We would put the shelves in later, he said. The only lifting in this part of the job was just lifting the glass shelves which weigh 15 pounds maybe, Moreland said.

When I and Charlie Rothschild first started working together for Integrity I was not aware of any type of problem with his knee, shoulder, or ankle, Moreland said. We were on the Tiffany job, that last one together, about one-fourth to one-third of the way through the job that I was made aware that Rothschild had a problem with his knee, ankle, or shoulder, Moreland stated. I was putting the mark on the floor so we could snap a line, and when Rothschild did he kept the one leg straight and the other one was bent. I thought, well, what in the world is going on with him? About a day or two later he came to me and said: "Can I talk to you in confidence?" And I said: "Sure. What's the problem?" And he said: "I've got problems with my right knee." And he said: "I just can't do some of that bending." I told him: "Well, I have told you I can keep this in confidence." But I said: "What I want you to do is go to the foreman and tell him so's that he'll know what to do and he can assign you things that will work for you." It was about a day or two later Charlie came back and says, "I took your advice and I told him." Moreland agreed that it was just the right knee that Rothschild told him about. He was asked if Rothschild had ever told him anything about his left shoulder or left ankle, and Moreland answered - Not that I can remember, he might have later on but definitely not at that time. The day that Rothschild told me about the problems with his knee he just mentioned being on it made it hurt, just his own body weight; that's what I remember, Moreland said. Agreeing that there was a point toward the end of the job that required them to do some base work around the display cases, Moreland that when they first started Charlie came over and said he couldn't get down there to do the work, it hurt too much to do that. I told him to go tell Perry, the foreman, and Perry would put him own something else. Charlie Rothschild was on the job with Integrity, to the best of my recollection, roughly five weeks, Moreland said.

When asked if Rothschild worked to the end of the second job at Tiffany, Moreland answered - What I remember at the end of the job we were getting down to where we had probably a half a day for all four of us. Either that or possibly one day earl, he said, I don't really remember real close on that. Anyway, Charlie wanted to go home early seeing's how it was only going to be part of a day, Moreland added, and that did let the rest of us get around six hours. It was gonna be the last day on the project for everybody but myself, Moreland said, I stayed on to do the punch-out work. Moreland stated that he remember a time before this where Rothschild left telling him something about going to the doctor. He said he had a doctor's appointment and needed to take off work, so he did, Moreland said. He was asked if Rothschild had told him that he was leaving the job site that day because his knee was too painful from standing that he couldn't do it anymore and he had to go to the doctor. I know his seeing the doctor was because of the leg, but he didn't put it that way; "I got a doctor's appointment to attend to the leg" was the idea, Moreland stated. Rothschild came back to work for Integrity after that day that he left to go to the doctor's appointment, he said. Agreeing that Rothschild had come back and assisted him when he was doing the punch out, Moreland stated that there was one day that he needed a second hand to lift a counter top off. When I figured out I was going to need a hand, I was looking for his phone number and the phone rang and when I answered it, it was Charlie, so I didn't have to finish finding the number, Moreland said. I asked him how he was doing and Rothschild said he wasn't feeling chipper because he had no way to earn money, no food and so on, Moreland stated, and I told him, what I was gonna call you for, we have got about a half a day of work, that would get some grocery money for you. I told him that it was changing a glass top, and if he thought he could do it then he should decide what he wanted to do, Moreland said. Rothschild said he could do that, and he came in. It was probably around 10:00 before we was allowed to get to it; I did all the preliminaries I could, I told Charlie - "Sit down. Take it easy.". When we got the top done I added, probably paid him for six hours or eight hours, Moreland said. We only had about four hours of work, and he needed money for groceries so I added some in then I turned around and worked that many hours that I added so's I did not charge the company, Moreland said. Explaining what he had Rothschild assist him with, Moreland stated it was a counter top and he had Charlie on one end and he I took the other end, and before they did any lifting he worked it lose and had Rothschild shove a shim in it so's that we'd have a place to get our fingers under without any problem and made it twice as easy to lift. Once we got it shimmed up then I said - Let's just try lifting and load ourselves and see what it's gonna do, and if you feel anything at all you let me know, we'll stop. Moreland stated that he meant Rothschild's knee or anywhere. So anyway, we got it ready; I had Charlie stand right by the end of the panel that we were lifting and I placed the horses that we had to lay it on after we got it off. When we got it up where we could move away I walked around with it, Moreland said, and all Charlie had to do was stand there braced against the top and lift and set it there. When we got done I asked him how did he feel, and Rothschild answered - Didn't hurt a bit; I used my other leg. Then we changed the glass top and we set it back on the same way, he said. It took about 45 seconds to lift it the first time and about the same amount setting it back on, Moreland said. Rothschild did not do any other physical labor that day, Moreland said, I just told him to take it easy 'cause all we needed was that.

Moreland was asked if at any time on the job with Integrity did he see Rothschild do anything to his leg or knee that looked

like he suffered an injury. There was no injury on the job whatsoever from any of the trades, anyone, anywhere, Moreland answered. He was asked if Rothschild had ever told him during this time at all that the job activities at Integrity were making his knee condition worse. Not like that he didn't, Moreland answered, he told me a time or two that it was hurting, but I didn't consider that to be related to the job because it was already damaged. He was asked if Rothschild had ever told him it was those job duties at Integrity that were causing him the problem that he was having with his knee. No, Moreland answered.

On cross examination by the claimant, it was noted that Rothschild had testified that he had Moreland - "I've got to leave, I can't work anymore." I don't remember that being said like that at all, Moreland responded. He was asked if he knew Rothschild wore a brace on his right knee. After he told me in confidence what was going on then I knew it was a brace on there, Moreland answered. He agreed that as the steward, if anyone complained to him about anything he had a duty to report it to the company, and that would've jeopardized Rothschild's job. That was Rothschild's concern, Moreland responded, that he would be laid off if it was told. Moreland agreed that if Rothschild had told him of problems he was having with his left shoulder, his right knee and his left ankle, he would have had to report Rothschild and jeopardize Rothschild's job. Later on I found out that Rothschild had fallen off a truck in 1999 and had fallen 12 feet to the ground, Moreland said. It was close to the end of the job that Charlie relay this to me, Moreland said, but there was nothing associated with it being a real problem at that time. Agreeing that Rothschild just happened to tell him about falling off a truck, Moreland further stated that Rothschild said that he was trying to get settlement on it and that they were fighting him on it. Moreland stated that Rothschild never told him that he had a torn rotator cuff in his left shoulder. He was asked if he had known whether Rothschild was using his right shoulder and right arm much more than he was using his left shoulder or left arm when Rothschild was working with him. When we were working together I didn't notice any abnormality at all, Moreland answered. No, I didn't notice anything that would have indicated a torn rotator cuff of the left shoulder, or would have indicated a sprained ankle, Moreland said. He was asked if it was a surprise to learn that Rothschild had had those maladies. I don't know that he does have them, Moreland responded.

Moreland stated, during cross examination by the claimant, that he had retired from work about three years earlier and has been living on, his retirement from his carpenter's pension. He stated that his education is 12th grade, high school.

During cross examination by the claimant, Moreland stated that it did not seem strange to him when Charlie told him he could not get down to do the baseboard. He'd already told me that earlier that he had trouble with his leg, Moreland testified, and that's when I told him, go and see Perry, the foreman, and have him put you on something you can do.

On cross examination by Roloff trucking, Moreland agreed that he also worked on a day-to-day basis with Rothschild on the first job which was the Lord \& Taylor West County Mall job. Moreland stated that it was correct that on that first job he had no indication in any way that Rothschild had any physical ailments or physical problems based on how he did his work. No problems that was visible that I could tell anything about, Moreland testified. Moreland agreed Rothschild lifted things, and he stooped, squatted and things like that on the job. We worked eight hours a day, sometimes ten, Moreland stated. He was asked how many days of those eight to ten hours days did he work with Rothschild on the West County Mall Lord \& Taylor job. That was sporadic, Moreland answered, sometimes might be together a day or two and might be pulled off for a few hours, then we might be back again. That's hard to answer and be very accurate, he added. At the Tiffany job at Frontenac, the second job we worked together everyday, Moreland testified. But at Lord \& Taylor we were divided up several times and would go a single operation on things; probably 15-20 percent at the very most we would be teamed up, Moreland stated. The job at the West County Mall, Lord \& Taylor, took about 14 days, he said. In those 14 days whenever I worked with Rothschild he never appeared to me to have any kind of physical ailments at all, Moreland said. As far as I was concerned, Moreland agreed, Rothschild was doing the job as well physically as I or the other men were on the job. He was queried - wasn't it correct that it wasn't until near the end of the second job at Tiffany's at Frontenac that he first learned, by looking at Rothschild's leg being straight, that Rothschild had a physical problem? Not at the end; it was about one-fourth to one-third of the way through the job, Moreland testified, that's the first incident that I had any kind of question. And then he verified the next day that he had a sore leg out of it, Moreland stated.

On cross examination by Karst Construction, Moreland agreed that once he did find out that Rothschild had a problem with his knee he helped Rothschild out whenever possible. Moreland agreed that he did the bulk of the lifting after that and things like that. He could lift some if he wanted to or decided to, Moreland added. I explained to Rothschild that he was not to do anything that would cause him any pain or discomfort at all, Moreland testified, I said, if it's gonna, you say so and we won't do it.

On redirect examination by Integrity, Moreland said that when Rothschild first came to him and told him he had a knee problem and had a brace, Rothschild told him in confidence. In confidence meant not tell anyone else, Moreland stated. I didn't relate it to him trying to hide, it was basically he was afraid of getting laid off if someone else found out, Moreland said. He was asked - Rothschild hadn't told anybody, to your knowledge, that he had this problem? I was the first one as far as I know, Moreland responded.

On further cross examination by the claimant, Moreland agreed that he had stated earlier that when he saw Rothschild in the beginning he hadn't noticed any problems. Moreland was queried - but you did notice problems at Tiffany's in Plaza Frontenac. Not until the day I saw him bend over funny to mark the floor, Moreland responded. Rothschild had been working probably a month and a half to two months, he answered. Moreland was asked - you're saying in the beginning you didn't notice anything but after Rothschild had been working a month or two you noticed without him telling you anything that he was having difficulty with

his right knee? Because it was a very unprofessional stance and I wondered about it, and I still didn't know at that time, Moreland answered, and it was the next day or two when he came and voluntarily informed me that he did have a problem.

Considering the medical treatment records, records of Dr. Thomas D. Matthews, M.D.'s treatment records (See Attachments, Claimant's Exhibits Nos. B and B-1) began with an October 20, 1999 evaluation report to the Roloff Trucking Inc. workers' compensation insurance company. The doctor wrote that Rothschild presented for evaluation of right knee and left shoulder pain he sustained when he slipped and fell out of his truck bed in late August 1999 sustaining a twisting injury to his right knee and left shoulder. Dr. Matthews proceeded with obtaining radiographic studies, and medical records of HealthSouth TriCounty Surgery (No. E) were surgical records of procedures performed on Rothschild's right knee by Dr. Matthews on 01/19/2000 and 06/22/00. In the 01/19/2000 surgical report, Dr. Matthews noted a history of: "This 46-year-old gentleman is taken to the operating room at this time to undergo arthroscopic evaluation for continued knee swelling. Recent radiographs confirm OCD lesion with displacement in the medial femoral condyle." On 01/19/00, the pre- and post-operative diagnosis was the same - right osteochondritic dessicans of right medial femoral condyle with potential loose bodies. The procedure performed on 01/19/00 was: Removal of OCD lesion, debridement of medial femoral condyle. In the 06/22/00 surgical report, Dr. Matthews noted a history of: "This 47-year-old gentleman is taken to the operating room at this time to undergo right knee arthroscopy. He is 6 months post right knee arthroscopy for debridement of the medial femoral condyle, old osteochondritic dissecans lesion. He continued to have swelling and marked pain with his knee joint. He was advised arthroscopic evaluation and re-debridement at this time. The risks and benefits including no guarantees for decreased pain have been explained to him, he understands this and is willing to proceed." On 06/22/00, the pre-operative diagnosis was - right knee medial femoral condyle defect; and the post-operative diagnosis was - same, chondromalacia patellofemoral joint.

After post-operative treatment including medication, physical therapy and injections with some improvement, it was noted in a 03/28/00 entry that Rothschild continued to complain of pain; arthrocopic evaluation of the knee again for debridement was mentioned in the next entry of 04/19/00. In May 2000 Dr. Matthews wrote that if Rothschild wanted to return to work his climbing in and out of a truck was his main restriction and he did not think that was feasible for Rothschild at that time; in a 06/07/00 entry it was written that Rothschild was off work until surgery. A 06/22/00 entry stated - right knee arthroscopy debridement. In the next entry of 06/29/00, Dr. Matthews wrote the following:

He comes in today one week after debridement of his knee joint. Again, his osteochondral defect is pretty significant. The margins were debrided. Some loose bodies were removed. Other than that, nothing else can be done arthroscopically.

In the next entry of 07/12/00, Dr. Matthews wrote that Rothschild was three weeks out from his scope and second debridement of his medial femoral condyle defect. The doctor further wrote that Rothschild was advised to continue a range of motion program on his own level and let his knee calm down at that time; the doctor wrote that he wanted to see Rothschild back in one month for recheck. The next entry in Dr. Matthews' record was a 01/15/02 entry in which the following was written:

He comes in today for an opinion regarding his right knee. He apparently had an osteochondral transfer graft to the medial femoral condyle by Dr. Haupt in St. Louis last year. Since that time, his knee has been bothering him somewhat with occasional swelling and stiffness and inability to squat and inability to get down on the leg. His other knee is bothering him as well.

Dr. Matthews noted that radiographs were obtained and showed "sclerosis of the medial compartment, but good joint space is maintained. There is some patellofemoral narrowing, as well. There is a flat spot on the lateral of the medial femoral condyle that is notable". Dr. Matthews' assessment on 01/15/02 was - Posttraumatic osteoarthritis of the right knee. The doctor wrote the following in the treatment plan section of the 01/15/02 entry:

Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee.......I believe he does have a 50-60\% disability of the knee, but my most significant concern is the problems in the future.

Dr. Matthews prepared a May 2002 report to the claimant's attorney in which he wrote the following:

I have reviewed Mr. Rothschild's chart. As you know, this gentleman claims injury to his right knee while at work prior to an office visit he had on 10/20/99. The evaluation of the left knee at that time showed x-ray evidence of an old osteochondritic dessicans lesion of the medial femoral condyle. In spite of conservative measures which failed, knee arthroscopy was recommended. At the time he was noted to have an old osteochondritic lesion which was debrided. Temporally the lesion that he had in the knee at the time of the arthroscopic evaluation could not have specifically been caused by his work related injury, however, the development of subsequent symptomatology, swelling and pain, could have been brought on by that particular injury and thus necessitating the subsequent surgeries that this gentleman has had. The patient has stated that he had no problem with his knee prior to the work injury, which is consistent with a stable OCD lesion. The twisting and/or wrenching of his knee at the time of injury could have fractured and/or dislodged the lesion to

the point that he became symptomatic. So in essence, the patient did have a pre-existing lesion which was essentially asymptomatic and/or subclinical and the work related injury aggravated this condition to the point that it became clinically symptomatic in need of treatment.

Further treatment and/or therapies could include arthroscopic evaluation of the knee, partial and/or total knee replacement, in addition to, the normal and customary office visits, x-rays, physical therapy, etc. I believe that these treatments are more likely than not to occur in the future, for this gentleman suffers from a progressive degenerative problem with his knee, which undoubtedly will continue and be in need of medical attention in the future....

In the next treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit.......

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote of the treatment given that day, and that Rothschild was to return in three weeks. The doctor further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

I am in receipt of your letter dated September 11, 2002. I have reviewed Mr. Rothschild's chart and I would make the following comments based on knowledge of his record and his current complaints of knee symptoms. I feel that Mr. Rothschild has currently sustained an exacerbation of his pre-existing degenerative knee condition. This subsequent exacerbation will resolve leaving him with more symptoms than prior to the recent exacerbation.

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr. Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visit, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

A 09/20/02 treatment entry in the record indicated that on that date Rothschild returned for reevaluation of his knee. The doctor further wrote: "His knee symptoms have not significantly abated. He has developed some mild sciatica on the right side." After discussing examination findings, Dr. Matthews wrote that he thought this was more inflammatory process than a disc or any other problem. A Medrol Dose Pak was recommended, and it was written that Rothschild was to return in about three weeks, and was to be off work until seen back. In the next entry of 10/11/02, it was written that Rothschild was in "mostly for all of his social issues in regards to lack of workmens comp coverage"; it was noted that he continued to complain of medial pain. Dr. Matthews further wrote in the 10/11/02 entry: "The patient again is advised either uni or total knee arthroplasty in the future when his insurance issue is resolved. He can return to see me back on a prn basis. If any problems develop he will let me know."

Dr. Matthews wrote an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle:

I feel that his left knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort. This condition is usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point.

The next treatment entry, dated 08/20/03, concerned evaluation of Rothschild's right shoulder after a fall down some steps

about three weeks earlier. Dr. Matthews' impression on 08/20/03 was - rotator cuff tear right shoulder, traumatic and acute. An MRI was scheduled to verify. An 08/29/03 entry stated that the MRI showed a complete tear of the supraspinatus tendon, and that physical therapy was being scheduled as Rothschild did not want surgery, and an injection might by then administered if symptoms continued. In a 09/24/03 entry concerning treatment of the right shoulder, Dr. Matthews noted that Rothschild was given a parking sticker for his knee as a permanent handicap sticker. It was indicated in a 12/03/03 entry that Rothschild had cancelled this appointment date.

Dr. Matthews prepared a September 12, 2003 opinion letter to the claimant's attorney which included the following:

As I discussed with you later employment (subsequent to the August 1999 injury) which supposedly caused Mr. Rothschild to bend, stoop, twist and run on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. ...

Medical records of Dr. Herbert Haupt, M.D. (No. 2) concerned the treatment of Rothschild during the period of August 1, 2000 through March 20, 2001. In the initial examination report of August 1, 2000, Dr. Haupt noted that Rothschild's chief complaints were - right knee/left shoulder injury. The doctor noted the August 30, 1999 work related accident as the date of injury. Radiographic studies were ordered by Dr. Haupt. In the next examination report of August 10, 2000 (See Exh. No. 2), Dr. Haupt wrote that an arthrogram and MRI scan had been completed, and demonstrated a complete rotator cuff tear. It was noted that a knee MRI had been completed and demonstrated the area of the osteochondral lesion without evidence of avascular necrosis. In the September 20, 2000 examination report, Dr. Haupt wrote the following: "Mr. Rothschild notes a marked improvement in his shoulder function with the help of therapy, but his knee complaint is becoming more and more bothersome. He complains of pain primarily anteriorly about that right knee. He denies any new injuries."

On September 20, 2000 Dr. Haupt wrote, in reviewing Dr. Matthews's operative notes, I note that during the first operative procedure performed in January 2000, it was noted that the "superior patellar pouch where the articular surface of the patella and corresponding femoral trochlea were found to be relatively unremarkable". However, on the second operative procedure that was performed on June 22, 2000, it was noted that "the superior patellar pouch, the articular surface of the patella and the femoral trochalea were evaluated and found to have Grade II chondromalacia changes".. This suggests that there has been interval change within the area of the patellofemoral joint and this may presumably be a sequelae to the first operative procedure that may have resulted in contractures about the patellofemoral ligaments, resulting in malalignment and the development of the chondromalacia. This area seems to be the predominant source of his discomfort at this point. Treatment recommendations at this point by Dr. Haupt were conservative management or to proceed with arthroscopic management to assess the degree of injury at the OCD and also at that point, debride the patellofemoral joint and potentially perform a lateral release to improve mechanics. A 10/13/2000 operative report of HealthSouth Surgery Center of West County (No. F) concerned the third right knee procedure which was performed by Dr. Herbert Haupt, M.D. The pre-operative diagnosis was: right knee - osteochondral defect, medial femoral condyle, patellofemoral joint chondromalacia. The post-operative diagnosis was: right knee - posterior horn tear of medial meniscus, quarter size osteochondral defect down to subchondral bone of medial femoral condyle with a larger circumferential area about 2-3 cm diameter of the medial femoral condyle and Grade chondromalacia, evidence of partial anterior cruciate ligament tear but considered competent, marked Grade 4 chondromalacia of the femoral trochlea, and Grade 2-3 chondromalacia of the patella.

After continuing treatment, which included physical therapy, Dr. Haupt wrote of his examination findings on February 27, 2001:

The right knee has minimal to no effusion. He can actively extend the knee. He is able to ambulate but still has a mildly antalgic gait but it is improved.

Shoulder examination demonstrates a full range of motion. No dysfunction noted.

The assessment on February 27, 2001 was: "This patient overall has improved quite well regarding his knee complaints as well as the shoulder complaints." In the treatment plan section of the February 27, 2001 report, Dr. Haupt wrote that his recommendation was for Rothschild to resume full duty. "He apparently has an opportunity to pursue work activities outside of his current employment and he wants to consider that.", the doctor wrote. Physical therapy was continued, geared more to doing piriformis stretches and strengthening as well as hi range of motion and strengthening, and Rothschild was to return in 3 weeks so that his overall progress could be assessed. A March 7, 2001 form completed by Dr. Haupt was in the record and indicated that Rothschild was placed on limited duty - sit down activities only; the form indicated Roloff Trucking as the employer.

Dr. Haupt prepared a March 20, 2001 examination report in which he wrote that Rothschild indicated he did see some improvement in his leg pain with the injections at trigger points performed by Dr. Yadava and with the modifications in his physical therapy program. It was written that Rothschild further indicated that his knee and shoulder were actually doing quite well though he still has the complaint of pain down that leg with prolonged sitting or driving or standing, and a tingling and numbness that occurs in the knee on down the lateral and posterior aspects of the right leg. Dr. Haupt's assessment after examination on March 20, 2001 was: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt wrote that he would defer further medical management to Dr. Yadava. Rothschild is continued on light duty status until he sees Dr. Yadava next week, Dr. Haupt further wrote, and the written restrictions were - "steps and stairs only to enter a truck, car or building. Limited lifting of 50 pounds and no ending or squatting activities". Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent ( 6 % ) at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent (17\%) at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

"He has been advised to wear the valgus unloading brace for a prolonged period of time to help symptomatic relief of his discomfort", Dr. Haupt further wrote.

In a separate March 20, 2001 examination report, Dr. Haupt wrote that Rothschild's chief complaint was - left ankle discomfort. In the history section of the report, Dr. Haupt wrote the following:

Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed or him by me. After discontinuing the Vioxx medication within in about two days he developed the onset of soreness about the lateral aspect of the left ankle. He denies any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle.

He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of. (sic)

Examination findings on March 20, 2001 were:

Examination today demonstrates, by his own admission, a 50\% improvement in the soreness he noted over the weekend. Examination demonstrates no apparent swelling. Range of motion is considered intact and full. Stable to varus and valgus stress. He complains of soreness, however, on anterior drawer as well as with varus stress of the ankle. His anterior drawer is considered negative. He is tender to palpation at the anterior talofibular ligament. There is no swelling noted. His Achilles tendon is normal. When he weight bears his arch appears to be normal. There is no plantar aspect of pain noted.

Routine plain films are really rather unremarkable. No acute or chronic changes noted. These are rather benign appearing plain films.

Dr. Haupt's written diagnosis on March 20, 2001 was:

Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury. It is possible that he has had some inflammation about that ankle was masked with the use of the Vioxx medication and became apparent upon discontinuing the anti-inflammatory medication and is more or less a rebound effect.

Dr. Haupt wrote of his treatment recommendation in the March 20, 2001 report:

Treatment recommendations are that he can pursue appropriate strengthening on his own, and we taught him a few exercises. In addition, I recommend the use of over-the-counter anti-inflammatories in an effort to cut down on some of the inflammation about the ankle. This can be in the form of Aleve.

There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises.

Dr. Ravi Yadava, D.O.'s record (No. 3) indicated that he treated Rothschild for right knee complaints March 14-28, 2001. In his last examination report of March 28, 2001, Dr. Yadava wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. Dr. Yadava wrote the following in the Summary section of his March 28, 2001 examination report:

...He states he is doing better. He does have objective improvements in the previous areas of injection. The only recommendations I would have for him at this time is to continue with his VMO strengthening exercises, utilize his bracing as directed and continue with his hamstring and gastroc soleus flexibility program. There is no formal physical therapy I feel is indicated. There are no other diagnostic studies or therapeutic intervention I feel is indicated. I do not think he needs ongoing use of medications. He does tell me he is anxious to return to his full time, unrestricted capacity. I think it is safe and appropriate. I did tell him it is reasonable to expect to return to work in a comfortable fashion I think there is some deconditioning that has occurred. He may have increased soreness that should be well controlled through conservative mechanisms as outlined in detail here in the office. I think he is at maximum medical improvement from a rehabilitation perspective. There are no other diagnostic studies or therapeutic intervention I feel is indicated.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001. The next treatment record in the case was a 12/31/01 entry in the medical records of Washington Chiropractic Clinic, P.C. (No. K); the 12/31/01 entry noted complaints from Rothschild of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

In this case, the claimant is alleging his right knee and his left ankle conditions worsened due to overuse/repetitive trauma exposure in performing his work duties as a carpenter at Integrity Installations for a total of 29 days during the period of July 2002 through September 24, 2002; the claimant is alleging that he sustained occupational diseases. The substantial weight of the evidence reveals, it is found, that the claimant's employment dates with Integrity Installation were 29 days during the period of July 22, 2002 through September 24, 2002, and the claimant alleges exposure to occupational diseases performing carpentry work duties for prior employers BAM Construction and prior to that Karst Construction, and prior to that an acute injury at Roloff Trucking while working as a trucker which initiated the conditions in his right knee and left ankle. There is extensive evidence of medical treatment, testing and evaluations concerning these conditions, and thus medical expert opinion is essential on the issue of causation of occupational disease, if any.

In a case involving exposure to repetitive motion with multiple employers (Brown for $31 / 2$ years and then Arlee with diagnosis within three months of this employment), the Court in Mayfield v. Brown Shoe Co., 941 S.W.2d 31 (1997), 34 35 (Mo.App. S.D.,1997) stated:

"In pertinent part, the last exposure provisions of the Workers' Compensation Act, § 287.063.1 and .2, read:

'1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject only to the provisions $\cdots$ set forth in [§ 287.067.7].'

'2. The employer liable for the compensation in this section shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease for which claim is made regardless of the length of time of such last exposure.'

The three-month exception to the last exposure rule found in $\S 287.067 .7$ reads:

'With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with a prior employer was the substantial contributing factor to the injury, the prior employer shall be liable for such occupational disease.'.....

In developing its primary argument, Brown asserts $\S 287.067 .7$ cannot be used to shift liability from the last exposure employer to a prior employer unless there is before the Commission an expert medical opinion that establishes "the substantial contributing factor" requirement of the statute. We agree. In Missouri, expert medical testimony is mandatory in a workers' compensation case where a specific medical conclusion is not clear, simple, or well recognized by lay persons and is not a matter within the expertise of the ALJ. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600[10] (Mo.banc 1994). 'As a general rule, a claimant's medical expert in an occupational disease case must establish the probability that the disease was caused by conditions in the work place.' Hayes v. Hudson Foods, Inc., 818 S.W.2d 296, 299[1] (Mo.App.1991). From these rules it logically follows that a party who seeks to invoke § 287.067 .7 must adduce evidence via a medical expert to demonstrate 'that the exposure to the repetitive motion with a prior employer was the substantial contributing factor to the injury. ${ }^{\text {, }}$ [6]

Medical opinions were presented in this case. Dr. Shawn L. Berkin, D.O. prepared a May 9, 2001 evaluation report, (See Exh. A, Attachment Roloff Dp. Exh. No. 2), after evaluating Rothschild for purposes of rating in regards to the August 30, 1999 work related injury at Roloff Trucking. The doctor discussed the August 30, 1999 work related injury while in the employ of Roloff Trucking; the doctor noted that Rothschild had worked for Roloff Trucking for ten years. "The patient stated that he never returned to work for Roloff Trucking following his treatment and is currently employed as a trim carpenter for the Carst (sic) Construction Company", Dr. Berkin wrote. Present complaints of Rothschild noted by Dr. Berkin in his May 9, 2001 report were - pain and tenderness to the right knee, swelling to the knee and the knee gives out; stiffness to the right knee and symptoms worse with weather changes; Rothschild reported limited motion of the knee and his knee symptoms are aggravated by kneeling and squatting; he had complaints of weakness to his left arm and his shoulder symptoms were aggravated by lifting. Dr. Berkin discussed his

examination findings of May 3, 2001 which included: a. height - 73", weight - 268 pounds; b. left arm - no swelling or deformity, shoulders level in sitting position, upon palpation tenderness over the anterolateral surface involving that acromioclavicular joint extending into the left upper arm, stressing left shoulder failed to demonstrate any joint instability but a prominent clunk was present on passive circumduction of left shoulder, it was indicated that range of motion of left shoulder was decreased in all planes, muscle strength testing showed weakness of left arm on flexion and extension against resistance; c. right leg - wearing brace furnished at time of treatment, upon removal of brace generalized swelling without obvious joint effusion, walked in a normal gait without evidence of a limp, generalized weakness localized over the anteromedial surface, stressing knee failed to demonstrate any joint instability but patient complained of pain to his knee on valus and varus stressing, it was indicated that flexion and extension range of motion was decreased; d. weakness of left leg on extension of the left knee against resistance; e. able to stand on toes and heels without difficulty but unable to squat because of complaints of pain in his right knee; f. left knee - normal range of motion. Dr. Berkin's final impressions were: 1. Rotator cuff tear of the left shoulder; 2. Impingement syndrome of the left shoulder; 3. Right knee strain; 4. Tear of the medical meniscus of the right knee; 5. Tear of the anterior cruciate ligament of the right knee; 6. Osteochondritis dissecans of the right knee; 7. Status-post arthroscopy of the right knee with debridement of the medial femoral condyle and removal of osteochondral lesion 01/19/00; and removal of osteochondral lesion 01/19/00; 8. Status-post arthroscopy of the right knee with arthroscopic debridement 06/22/00; 9. Status-post arthroscopy of the right knee with medial meniscectomy, Debridement of the anterior cruciate ligament, shaving, debridement and chondroplasty of the medial femoral condyle and femoral trochlea and lateral retinacular release. "The patient is currently employed as a trim carpenter for Carst Construction and is receiving no treatment for his injuries at this time", Dr. Berkin wrote. Dr. Berkin wrote of his assessment as to disability in regards to the August 30, 1999 work related accident in his May 9, 2001 report:

1. A permanent partial disability of 30 % of the left upper extremity at the level of the shoulder for the rotator cuff tear of the left shoulder associated with an impingement syndrome.
2. A permanent partial disability of 55 % of the right lower extremity at the level of the knee for the right knee strain associated with tears of the medial meniscus and the anterior cruciate ligament and an osteochondral lesion involving the medial femoral condyle necessitating three surgical procedures on his right knee. I feel the patient has an additional permanent partial disability of 10 % of the right lower extremity at the level of the knee for the degenerative arthritis of the right knee that pre-existed his injury which to my knowledge, has been asymptomatic prior to his injury.

In the Treatment Recommendations section of his May 9, 2001 evaluation report, Dr. Berkin included the following:

The patient continues to have significant symptoms to his right knee and I recommend the continued use of his knee brace in order to stabilize his knee. I recommend that the patient be restricted from prolonged standing or sitting and that he be restricted from kneeling, stooping or climbing.

With respect to his left shoulder, the patient continues to remain symptomatic and indicated that he does not wish to have surgery on his shoulder because he fees that surgery has not really helped his knee. With respect to his left shoulder, I recommend the patient be restricted from lifting with his left arm no more than twenty-five pounds from the floor to the waist and fifteen pounds from the waist to the shoulder. I recommend that the patient avoid working with his left arm above the level of his shoulder.

The patient has indicated that he is currently working as a trim carpenter but if he continues to have symptoms at his current level of activity, I recommend that he consider alternative employment that his less physically demanding. (sic)

Dr. J. W. Morrow, D.O. prepared an October 8, 2002 evaluation report (See No. A, Attachment No. 3); the doctor wrote that he was seeing Rothschild for injuries sustained in the August 1999 work related injury. It was noted that the claimant relayed that he had been pain free in his right knee and his left shoulder prior to the August 1999 work related injury. After being released by Dr. Haupt in March 2001 and went back to work, Dr. Morrow wrote, "(t)he patient then worked as a carpenter because he couldn't climb up and sit in the truck for any period of time, and he continued to work as a carpenter subsequent to that". Dr. Morrow discussed Rothschild's present complaints on October 8, 2002 which were about his left shoulder and right knee:

He relates if he attempts to move the left arm in lifting activities above the shoulder level this causes pain in the shoulder joint. Sudden movements of the arm at the shoulder tend to cause pain. Since he is not working for a period of time, the pain occurs about two of three times a week in the left shoulder with such movement.

He relates standing, walking, squatting, going up and down steps, lifting, pushing and pulling activities all tend to cause the severe pain in the right knee, and he attempts to avoid these activities since he is not working at this time.

Dr. Morrow's diagnoses concerning the August 1999 work related accident were: a. traumatically induced sprain of the left shoulder, and an MRI study showed a complete tear of the supraspinatus of the rotator cuff; and b. traumatically induced sprain of the right knee, Dr. Matthews noted that upon the 10/20/99 surgery by Dr. Matthews there was evidence of old osteochondritis dessicans and degenerative changes about the knee joint. Dr. Matthews noted the osteochondral defect was pretty significant. Dr. Morrow noted additional subsequent treatment, including the subsequent two surgeries; Dr. Haupt took x-rays on January 15, 2002,

Dr. Morrow wrote, "showing stenosis of the medial compartment and some patellofemoral narrowing with a flat spot on the lateral medial femoral condyle and being diagnosed as posttraumatic osteoarthritis of the right knee, at which time the doctor notes the patient may require surgery in the future, including a possible total knee arthroplasty procedure. ". Dr. Morrow wrote his recommended restrictions for the left shoulder and right knee; concerning the right knee, Dr. Morrow further wrote: "The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the right knee, particularly the medial knee joint space where he is approaching bone on bone". Dr. Morrow assessed permanent partial disability on October 8, 2002:

Based upon this examination, there is a 40 % permanent partial disability of the left upper extremity at the level of the shoulder attributable to the injury of 8-29-99.

Based upon this examination, there is a 65 % permanent partial disability of the right lower extremity at the level of the knee. Of the 65 %, we allow 32 % preexisting with the possibility of the preexisting osteochondritis dessiccans. Even though asymptomatic immediately prior to the injury in question according to the patient, and the remaining 321 / 2 % due to the aggravation of the injury in question and the necessity for the three procedures that had been performed arthroscopically, two by Dr. Matthews and one by Dr. Haupt.

Dr. Morrow wrote of his recommended restrictions, and finally wrote:

The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the tight knee, particularly the medial knee joint space where he approaching bone on bone.

The combination of the disability of the left shoulder and the right knee would provide a greater overall disability than their simple sum. I would defer employability to a vocational expert in that regard.

Dr. Thomas Matthews, M.D., an authorized treating doctor and testified on behalf of the claimant (No. B), stated that he is a board certified orthopedic surgeon and that he began treating Rothschild on 10/20/99, and stated that his examination was primarily confined to the left shoulder and right knee. Dr. Matthews performed arthroscopic surgery on Rothschild's knee on January 19, 2000 and again on June 22, 2000. It was Dr. Matthews' opinion that the August 30, 1999 work related accident at Roloff Trucking was the substantial cause of the injury of an aggravation of a pre-existing condition in the claimant's right knee of osteochondritis dessicans which required the two surgeries he performed, and that the August 30, 1999 work related injury was the substantial cause of a left shoulder rotator cuff tear. The doctor was asked if Rothschild's knee would ever be the same as it was prior to the fall of August 30, 1999. Dr. Matthews answered "No", and explained: "The sequela of the knee surgery is a progressive arthritic condition." (Matthews Dp. pg. 30)

Dr. Matthews stated that there was no reference to the left ankle in his record from the claimant in his October 20, 1999 notes. The doctor stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about.

The doctor testified: "So that final visit or that visit as of 10/11/02 was the end of the treatment cycle for that postoperative period after the second arthroscopy. Then the patient disappeared from my practice until he revisited me on 8/20/03." (Matthews Dp pg. 38) The doctor discussed treatment of Rothschild in 2003 stating that Rothschild had returned to his office on August 20, 2003 and the history at that time was regarding a recent right shoulder injury; Rothschild stated that he fell down some steps at home and described a giving way episode with his right knee. An MRI showed that Rothschild had a complete tear of his supraspinatus tendon of his right shoulder, Dr. Matthews noted. The last appointment was on October 30, 2003, the doctor said.

Dr. Matthews was asked his opinion of what effect, if any, did subsequent employments in carpentry have on Rothschild's right knee and left shoulder. The doctor answered:

"Mr. Rothschild is a laborer. I believe he's a carpenter?

"Which requires stooping, bending, squatting. So his occupation plays a role in the amount of time that he's up on his knee, and the physicalness of his job adds to the stress that his knee sees. So, consequently, those particular type jobs will promote or progress his degenerative change in his knee joint." (Matthews Dp. pg. 44)

"...in general, I think it would be agreed upon, with medical certainty, that laboring type jobs such as his would aggravate and exacerbate and progress his particular condition, whether it be one job or 17 different jobs." (Matthews Dp. pg. 46) (Ruling: Employer/Insurers' objection on grounds of Seven Day Rule is overruled. Matthews Dp. pp. 44 and 45 and 47 )

Dr. Matthews was asked his opinion of whether or not he felt Rothschild was able to work or get a job, and the doctor answered:

"I'll just be completely honest about this. I told Mr. Rothschild at some time, not documented in any of my notes, but I remember the conversation. 'Charlie, you're gifted; you have carpenter skills. You shouldn't be lifting and pulling heavy objects. You probably ought to be making cabinetry and having a shop and doing that sort of work, but I don't think you ought to be framing and installing and lifting.' And that conversation took place. And, as I say, I tried to counsel him during this process of his knee, and that's where we've left it.

"I think - and this is speculative. I think a contractor that frames houses would have a hard time hiring Charlie Rothschild. However, I think a contractor that has a small cabinet shop or more precise work that is - doesn't have the heavy labor requirements may find his skills beneficial." (Matthews Dp. pp. 47-48) (Ruling: Employer/Insurer Roloff's objection on grounds of Seven Day Rule is overruled. Matthews Dp. pg. 48)

Dr. Matthews was asked what physical limitations, in his judgment, did Rothschild have, and the doctor answered:

"Based objectively on Mr. Rothschild's orthopedic pathologies, which includes two rotator cuff tears - -

"- - right and left rotator cuff tears, and the right knee post osteochondritic dessicant lesion, debridement/degenerative disease - - ....

"His restriction would include moderation of overhead activity. I can't quantify what that means. Less than normal overhead activity because of the rotator cuff disease on the right and left shoulder. Moderation of squatting, stooping, bending, pivoting, and turning on his knee joint. If he does too much activity with any one of those joints, he will become more symptomatic and he will progress his disease." (Matthews Dp. pp. 52 and 52)

On cross examination, Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of objective findings intraoperatively. Dr. Matthews agreed that he had reviewed the surgical note of Dr. Haupt for the surgery performed later in 2000, and that surgical noted reflected a progression of problems in the right knee from the June 2000 surgery. The doctor noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) The following testimony then occurred:

Q. Now, Dr. Matthews, in later reports, you used words such as aggravated, exacerbated, and accelerated to describe the connection between Mr. Rothschild's subsequent employments, after Roloff Trucking, to the progression of his disease, the progression of his OCD, and the problems in his knee. Okay. By aggravating, exacerbating, accelerating, do you mean that these particular physical activities caused him to be symptomatic, or do you mean that there was a particular objective change that was directly caused by these particular activities in the knee?

Or both?

A. I would state both.

Q. Could you point at anywhere in your record to places that would show us, okay, where a subsequent employment can be directly related to an objective findings in the knee?

A. Probably not. (Matthews 11/19/04 Dp. pp. 105 and 106)

Dr. Matthews was queried as to what problems was he referring to in his January 15, 2002 letter in which he had written the possibility for future treatment and had specifically mentioned that Rothschild might require a total knee replacement. The doctor explained:

"Well, I probably was referring to the fact that the progressive nature of the disease, future office visits, future injection therapy, conservative management, the use of anti-inflammatory medications and/or surgical events that will, you know, undoubtedly more than likely happen.....Including total knee arthroplasty." (Matthews 11/19/04 Dp. pg. 111)

The doctor agreed that this future treatment would be because of the progressive nature of Rothschild's condition. When again queried if the progressive nature of the condition was going to happen without regard to activities, Dr. Matthews responded - "(I)n so far as, the activity will, in my words, exacerbate and/or accelerate the condition". (Matthews 11/19/04 Dp. pg. 111) The doctor admitted that the condition was going to get worse "with just activities of daily living, getting in and out of the car, driving, walking". (Matthews 11/19/04 Dp. pg. 112) Agreeing that it was his stated belief that in someone who does moderate activity or works as a laborer the condition would progress faster, Dr. Matthews further stated - "I don't know if it would precipitate it....Progress it, yes". (Matthews 11/19/04 Dp. pg. 112) The doctor agreed that the work as a laborer would cause this progression to come about sooner than expected. It was noted that in a September 17, 2002 report to the claimant's attorney, Dr. Matthews had discussed the work injury of August of 1999 which exacerbated the allegedly preexisting condition the OCD lesion and that he stated that now in September 2002 Rothschild was still dealing with the same condition and the sequela of that diagnosis; Dr. Matthews was asked to explain what he meant by this, and the following testimony occurred:

B. That means that, given this man's preexisting OCD lesion and factoring in his activities had, again, I'll use this word, the totality of his employment and these different traumas that he's had, he's still dealing with the aftermath of having this condition.

R. Okay. Now, you are referring to the August of 1999 injury, and now you are using the word traumas plural. Did the patient ever tell you that he had more than one direct trauma?.....To the knee.

B. I guess I would use the trauma in the cumulative sense. One specific trauma, the truck injury and fall, I guess that's what I was referring to.

R. To paraphrase your statement here, this is still one condition. And when you say he's still dealing with the sequela of that original diagnosis or condition - -

B. Yes.

R. - - are you saying it's an ongoing thing dating back to the first time that condition was either noted or diagnosed?

B. Correct.

R. Do you have anywhere in your records where Mr. Rothschild ever told you that any of the subsequent employments, specifically any activities, specific activities at those jobs, were causing a further problem to his knee?

B. Not specifically, no, I don't believe.

R. Is there anywhere in your records during your, I guess, three years or so treatment of this gentleman, that he even told you anything about who - - who he worked for or what he did?

B. No.

R. Over the three years, did he ever tell you about any of the subsequent employments, again after the August of 1999 injury?

B. I vaguely remember some discussion about him being a trim carpenter, but not employers and/or employment and/or where, no.

R. Never identified the employers?

A. No. (Matthews 11/19/04 Dp. pp. 113-115)

Dr. Matthews further stated that Rothschild never specifically told him what he did as a trim carpenter for any of these employers.

On cross examination by the Second Injury Fund, it was noted that Dr. Matthews had written to the claimant's attorney in a May 15, 2002 letter - "The patient has stated he has had no problems with his knee prior to the work injury, which is consistent with a stable OCD lesion." When asked if this was still his opinion today, Dr. Matthews answered - "Yes". (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that the conditions seen on the September 7, 1999 x-ray could have been asymptomatic. The doctor agreed that the osteochondritis dessicant can also be asymptomatic; Dr. Matthews agreed that the condition could be in the early stage and then a severe trauma is sustained and then the condition goes into level four; the doctor agreed that the OCD could trigger the exacerbation of other pathologies in the knee including the osteoarthritis. October 22, 2003 was the last time I saw Rothschild, Dr. Matthews agreed. When asked, wasn't it your opinion at that time that Rothschild eventually might need a knee replacement but he wasn't at that stage yet, Dr. Matthews answered - "That's correct.". (Matthews 11/19/04 Dp. pg. 120)

On redirect, Dr. Mathews was asked - even if Rothschild had the asymptomatic condition before, wasn't the fall off the truck the cause for his ongoing problems since then, including the surgeries, everything? Dr. Matthews answered:

"I would not characterize it as such. I would - -

"The fall off the truck brought to light the condition that Mr. Rothschild had in his knee. I'm not going to give a percentage on what that fall off the truck led to. I don't think I have that crystal ball to be able to do that." (Matthews 11/19/04 Dp. pp. 126-127)

During redirect, Dr. Matthews was asked his opinion of whether or not Rothschild could work based on his medical history, and the doctor responded: "It is asking me to render a vocational opinion, which I do not have the expertise to do. I don't know if he's employable or not." (Matthews 11/19/04 Dp. pg. 134)

Dr. Raymond Cohen, D.O. testified on behalf of the claimant (No. A) after evaluation of Rothschild on the claimant's behalf in January 2004. Dr. Cohen's diagnosis regarding the work-related injury of 8-30-99 included the following:

1. Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear.
2. Left shoulder rotator cuff tendon tear and impingement.
3. Due to a compensatory gait, he has left ankle instability with chronic tendonitis.
4. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition.

Dr. Cohen wrote of his conclusions:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 (sic) to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to this point was medically necessary and was reasonable....

It is my medical opinion that within a reasonable degree of medical certainty, he was temporarily totally disabled from December 2001 through August 2002 due to the significant pain that he was having in the above noted areas of his body.

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

At the level of the left ankle, it is my medical opinion that within a reasonable degree of medical certainty, he has a 30 % permanent partial disability at the level of the left ankle, of which 15 % is due to the injury on or about 8-30-99 and the remaining 15 % is due to the three overuse disorders.

He has a 35 % permanent partial disability at the right shoulder. The 35 % at the right shoulder in my medical opinion is due to all four of the claims and would be divided in the same percentages that I had previously stated referable to the right knee.

It is my further medical opinion that within a reasonable degree of medical certainty, his pre-existing conditions or disabilities combine with the primary work-related injury to create a greater overall disability than their simple sum and that due to this combination of disabilities, Mr. Rothschild is permanently and totally disabled and not capable of gainful employment. It is further my medical opinion that his pre-existing conditions or disabilities were a hindrance or obstacle to his employment or re-employment.

Dr. Cohen agreed, during cross examination, that he found disability on the original August 1999 injury, and then he found one lump sum additional disability for the other three employers, he did not separate out that additional disability as to the subsequent three employers.

In a Supplemental Rating Report, dated June 22, 2004, Dr. Cohen wrote that he had had an opportunity to review additional records consisting of Rothschild's deposition taken on 03/16/04, and a 06/02/04 IME from Dr. Rende. Dr. Cohen stated that he had requested a second visit with the claimant so that he could figure out the dates of the employers. Dr. Cohen further explained the reason for the second evaluation was this "is a more difficult situation because of the large number of claims or employers and claims". (Cohen Dp. pg. 13) Dr. Cohen noted Rothschild relayed that in regard to the 8-30-99 injury he also injured his left foot; Dr. Cohen further wrote - "As he was favoring his right knee, he was putting increased pressure on his left foot and ankle and the pain progressively became worse. According to the patient, he had x-rays taken of the left foot and ankle by Dr. George and he was told that he had a spur. He continues to have pain in the left foot and ankle." Dr. Cohen noted Rothschild's relayed history in regards to his subsequent employment after Roloff Trucking and his symptoms:

He states that prior to his employment at Karst which began in March 2001, his symptoms were pain in the right knee and left shoulder. He was receiving physical therapy for his shoulder at the time of his employment at Karst. He states that the right knee was giving out on him. He had a sharp ongoing pain in the right knee. He had fallen several times from the

knee giving out on him.

He states that he began his employment at BAM Construction in October 2001 and worked through December 2001. He states that subsequent to December 2001, he was off work for a few months due to a lack of available work for him.

He believes his employment at Integrity Installations began around May through July 2002. Please note in my report of 1-15-04, it states that his employment was through July 2003. This should be July 2002. He believes that he was at Integrity less than three months as far as he can recall.

His was last employed in September 2002. He has been unemployed since.

In his June 22, 2004 supplemental report, Dr. Cohen discussed Rothschild's complaints and noted that a repeat exam revealed no changes. My medical opinions on Mr. Rothschild remain as is per the report of 1-15-04, Dr. Cohen wrote.

During cross examination at his deposition, Dr. Cohen was queried as to what was Rothschild's job at Roloff Trucking, and Dr. Cohen responded - "I believe he was a carpenter with the other employers, and I thought he was with Roloff; I'm not sure". (Cohen Dp. pg. 17) The doctor stated that for determining medical causation between an accident or an occupational disease it would make a difference with respect to the job duties "(I)f it's an occupational disease, then that would be, of course, important, yes". (Cohen Dp. pg. 17) Dr. Cohen testified about his understanding of Rothschild's duties at Karst: "He stated that he had to nearly constantly carry heavy materials and that he did a significant amount of bending, lifting, and squatting." (Cohen Dp. pg. 22) Explaining why it was important to learn about Rothschild's duties at employments subsequent to Roloff Trucking, Dr. Cohen testified:

"Because, in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." (Cohen Dp. pg. 23)

Dr. Cohen noted Rothschild's duties at B.A.M.: "He stated he had to do a lot of lifting of cabinets and doors and various types of equipment, and, I believe, in one of the depositions, he also went into a little bit more detail about that job. "(Cohen Dp. pg. 25) Dr. Cohen stated that some of Rothschild's job duties at Karst were heavy labor job duties, and at B.A.M. were heavy labor duties. The doctor discussed his understanding of Rothschild's job duties at Integrity Installations: "He stated he worked there as a carpenter and that he did a lot of repetitive work. And, I believe, also, that's described in his last deposition. My understanding, though, was, that was not a heavy labor work, as best I can recall." (Cohen Dp. pg. 26) Dr. Cohen was shown the First Amended Claim for Compensation against Integrity Installations filed by the claimant with the Division on September 13, 2003, and it was noted that the Claim stated the following description of what Rothschild was doing when the injury occurred - "Doing repetitive carpentry work and erection of display cases, attempting to carry heavy objects, including cabinets, carpentry equipment, and display case...". Dr. Cohen stated that he had seen this Claim form; when asked if this was consistent with what Rothschild had told him about his job duties at Integrity Installations, Dr. Cohen answered: "As far as the carrying heavy objects, that is different than what I understood from him when I saw him.". (Cohen Dp. pg. 27) The doctor agreed that assuming the statements in the First Amended Claim were correct, he would consider Rothschild's duties at Integrity Installations heavy labor type work. The doctor was asked if this changed any of his opinions, and Dr. Cohen answered: "I believe the last three employers were a repetitive type trauma, so whether it was heavy or not, all of those can contribute to an overuse disorder, so it really wouldn't change my opinions." (Cohen Dp. pg. 28)

Agreeing during cross examination that a person's job duties have a significance in determining whether an employee is permanently and totally disabled, Dr. Cohen testified as to the result of Rothschild being permanently and totally disabled: "In his case, it's a result of the pain and dysfunction he has in his shoulders as well as his right knee and the left ankle and due to the chronic pain that he has in those joints, all of that." (Cohen Dp. pg. 18) Dr. Cohen agreed that he is not a vocational specialist. When asked from what jobs was Rothschild permanently and totally disabled, Dr. Cohen answered: "When I put in my report, from a medical perspective, a permanent total, that means I do not feel he could do any type of job, including sedentary or any other any type of 32-hour-a-week job." (Cohen Dp. pg. 20) Stating that he did not believe Rothschild could do sedentary work, light labor, moderate or heavy labor work or any type of work, Dr. Cohen further said - "So I believe that whatever he's doing at Roloff that had to have him up on the truck where he fell is beyond sedentary work". (Cohen Dp. pg. 22) It was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "......I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Dr. Cohen agreed he was aware that after working for Karst Construction, Rothschild went immediately to work for BAM Construction, there was no separation between these two employments. Dr. Cohen agreed that there was a clarification in his June 2004 report that in his opinion he no longer believed that Rothschild was temporarily disabled between

December of 2001 and when he went to work for Integrity in August 2002 because during this time period Rothschild was off work due to lack of available work. The doctor further agreed that when reading Rothschild's deposition, he saw where Rothschild had said during this period of December 2001 through when he went to work for Integrity in August 2002 he had been exercising and looking for work, and thus more proof that Rothschild was not temporarily totally disabled during this period.

Agreeing during cross examination that in January of 2004 he made the recommendation for a total knee replacement based on x-rays taken in 2002, Dr. Cohen gave the following testimony in his explanation of this decision:

B. He already had severe joint space narrowing at the time I saw him, and it was clear that any x-rays taken at that time would show advanced osteoarthritis of the knee. It wouldn't show an improvement. It would only show either what he already had before or a deterioration.

R. And, most likely, a progression of symptomatology; is that correct?

B. Yes.

R. In fact, when you take a look at the three surgeries that were done on the employee's knee in 2000, the first two by Dr. Matthews and the third by Dr. Haupt, those three reports actually show a significant progression of degenerative problems in his knee, don't they?

B. Yes.

R. Would there be any reason to believe that that degenerative condition wouldn't continue to progress in that right knee?

B. It would progress.

R. It would progress pretty much no matter what the employee was doing; is that correct?

B. More likely than not, it would have. (Cohen Dp. pp. 65-66)

Dr. Cohen further stated, though:

"In a repetitive trauma type case or overuse type case to the joint, the overactivity or overuse or stressing of the joint leads to increased deterioration of the joint, and that is included in my thoughts when I assess a part of the body that, from the continued stress or damage to the joint, that it is a progressive condition." (Cohen Dp. pp. 68-69) (Ruling: Claimant's objections are overruled. Cohen Dp. pp 67-68)

Dr. Cohen agreed that Dr. Matthews, in January 2002, noted that x-rays at that time showed good joint space, which actually means that in January 2002 Rothschild wasn't bone on bone. The doctor was queried, wasn't it impossible to determine how much of the continued problems in the claimant's right knee, after the original accident, were the result of a natural progression of degenerative changes, activity, work, recreation, etc? Dr. Cohen answered:

"Well, it is quite possible to define his situation, based on the fact that he did have significant problems after the first injury, but by his history and doing this type of physical work, the condition increased. So talking about him alone, the medical course of this is that it progressed from the type of work that he was doing superimposed upon a bad injury." (Cohen Dp. pg. 70)

Dr. Cohen agreed that the history he received from Rothschild was that his right knee complaints got substantially worse after each of the subsequent employments. It was noted that Dr. Cohen had stated earlier that weight was a factor in degenerative changes in Rothschild's knee; when asked if he had put Rothschild's height and weight in his reports, the doctor answered - "No, I didn't." (Cohen Dp. pg. 72) Dr. Cohen stated that he did not recall Rothschild's weight or height. The doctor agreed that if the records reflected Rothschild was heavy, 260 pounds, that would also contribute to the general deterioration of the right knee.

During cross examination by Roloff Trucking, Dr. Cohen stated that he had reviewed all of the medical records he had listed in his reports. The doctor was queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle. Dr. Cohen answered that he did not remember, but further testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." (Cohen Dp. pg. 31) The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. The doctor was queried if his opinion as to disability for the left ankle would be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001. Dr. Cohen answered:

"That really wouldn't change my opinion, because it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk. So if he had a serious injury to his knee from the original injury and was limping or favoring it, that would still go back to the original injury if he did not have an acute injury to the ankle at the time when he fell." (Cohen Dp. pp. 36-37) (Ruling: Claimant's objections are overruled. Cohen Dp. pp. 34-36)

Dr. Cohen was further queried if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, and the

doctor responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." (Cohen Dp. pg. 37) Concerning the left ankle, Dr. Cohen stated that it was his understanding Rothschild's problems began several months after the August 1999 fall from the truck but prior to his returning to work in March 2001.

During cross examination, Dr. Cohen agreed that he did not have any treatment records for Rothschild during his employment with Karst from March to September, 2001, only an evaluation by Dr. Berkin performed in May of 2001. Dr. Cohen stated that he was not aware of Rothschild losing any time from work as a result of his knee or shoulder or anything else while working for Karst. Rothschild did not quit working for Karst, Dr. Cohen said, "I recall something in the deposition that they went out of business or closed". (Cohen Dp. pg. 78) The doctor agreed that he was not aware that Rothschild quit working for Karst due to any medical problems or concerns. Dr. Cohen agreed that Rothschild actually went straight to work for B.A.M. after Karst Construction, and after B.A.M. Rothschild was actually available to work all the way up until the Integrity Construction job.

Dr. Cohen stated, during cross examination by Karst, that he did not believe that Rothschild was in need of a total knee replacement in January of 2002. January 2002 was after the Karst employment, the doctor agreed. Dr. Cohen was queried - isn't it correct that the reason for the total knee replacement is the acute injury, the repetitive overuse and the progression of degenerative problems. "That's correct", Dr. Cohen answered. (Cohen Dp. pg. 81)

On cross examination by BAM Construction, Dr. Cohen agreed that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002. Therefore, the doctor agreed, during this period there was no medical taking Rothschild off work for any reason. Dr. Cohen agreed that there was no medical records indicating that Rothschild could not work during the period subsequent to January of 2002 until Rothschild went to work at Integrity in August of 2002.

On cross examination by Integrity Installations, Dr. Cohen stated, during cross examination Integrity Installations, that he is not an orthopedic doctor. I did have a year internship in which included four months through orthopedics and the rest of the year assisting with orthopedics; this was in 1980 and 1981, the doctor said. I have not had any orthopedic training since then. I am not a surgeon the doctor said.

Dr. Cohen agreed during cross examination by Integrity Installations that Rothschild relayed to him that in regards to the job at Integrity he put up display cases and did a lot of repetitive work.

Rothschild "had significant problems in his knee at the time he began his employment (at Integrity)", Dr. Cohen stated during cross examination by Integrity Installations. (Cohen Dp. pg. 89) The doctor agreed that Rothschild had a significant degenerative condition prior to working for Integrity, and that he would have had a lot of pain, discomfort and difficulty performing activities. Rothschild had evidence of this chronic condition before he came to work for Integrity, Dr. Cohen said. The doctor was asked if he had stated that in a large majority of patients, a degenerative condition such as Rothschild has would probably progress anyway without regard to subsequent activities. Dr. Cohen answered: "Yes. In regard to the knee." (Cohen Dp. pg. 90)

It was noted, during cross examination by Integrity Installations, that at one point in his report Dr. Cohen had indicated that Rothschild had worked for Integrity for approximately 11 months for August 2002 through July 2003, and that at another point in his report he had written it was through September of 2002. "I really don't know" the length of Rothschild's employment at Integrity at the time I issued my report, Dr. Cohen admitted. (Cohen Dp. pg. 92) "I hope I was thinking correctly at that time, based on the claim forms that I had and other records, but I can't remember what I was thinking at that time", the doctor said. (Cohen Dp. pg. 92) The doctor agreed that in his second report he had stated Rothschild worked at Integrity from May of 2002 through July of 2002. When queried, if Rothschild testified that his employment dates were approximately July of 2002 through September of 2002 and that he worked only 29 days during that time, would he have any reason to dispute this. "No", Dr. Cohen answered. (Cohen Dp. pg. 93) The doctor stated that he would have no reason to dispute the employment records if they indicated that Rothschild beginning date at Integrity was July of 2002 rather than May of 2002.

Dr. Cohen agreed, during cross examination by Integrity, that Dr. Matthews in his January 15, 2002 had found that Rothschild had a fairly significant disability to the right knee and said it was 50 to 60 percent; Dr. Cohen agreed that Dr. Matthews' rating in January 2002 was pretty close to what he had found overall in January 2004. It was noted that Dr. Matthews, in his May 2002 report, stated that Rothschild might need a total knee replacement, and this was before Rothschild worked for Integrity; Dr. Cohen agreed that in May 2002 Rothschild suffered from a progressive degenerative condition. Dr. Cohen was queried - so without regard to any subsequent employment after May 2002, Rothschild's knee was getting worse and chances are he was going to need a total knee replacement. "That's correct", Dr. Cohen responded. (Cohen Dp. pg. 96) Dr. Cohen agreed that if subsequent activities brought on the need for further treatment or a knee replacement a little quicker or sooner than expected then those work activities merely precipitated the knee for that treatment. (Ruling: Roloff Trucking's objection is overruled. Cohen Dp. pg. 97) The subsequent work activities of that time, after May 2002, would have been Integrity Installations only, the doctor agreed. Dr. Cohen agreed that he had testified that it was his understanding when he initially met with Rothschild the job at Integrity was not as heavy labor as the jobs at Karst and BAM. Despite this, Dr. Cohen admitted, he provided an opinion on disability with regard to the three subsequent employments the remaining disability from these three employments was equally divided. "(The job at Karst)

(r)egarding the duration or time" Rothschild worked for Integrity was less than at Roloff Trucking, Dr. Cohen stated. (Cohen Dp. pg. 99) "I was assuming that he was working (at Integrity) full-time", the doctor said. (Cohen Dp. pg. 100) Dr. Cohen stated that he had no reason to disagree if the employment records showed that Rothschild worked at Integrity four days some weeks, or one or two days another week. Dr. Cohen testified:

"From my talking to him on two occasions was that they were all about equal as how they affected him. The jobs may have been somewhat different, but they were difficult jobs that caused increased aggravation on this type of joint injury. And the duration there may have been less in time, but as far as the type of work he did as a carpenter, I thought they all were about the same as far as difficult type of work on a joint that is already significantly involved." (Cohen Dp. pg. 108)

Dr. Cohen agreed that he found disability on the original August 1999 injury, and then he found one lump sum additional for the other three employers, he did not separate out that additional disability as to the subsequent three employers. The doctor was asked if he had one incident that he would attribute most of Rothschild's problems to, and Dr. Cohen answered - "The (8)/30/99 injury". (Cohen Dp. pg. 110) (Ruling: Roloff Trucking and Karst Construction objections are overruled. Cohen Dp. pg. 110) (Ruling: Roloff Trucking's objections are sustained, Cohen Dp. pg. 111)

On cross examination by the Second Injury Fund, Dr. Cohen was queried - wasn't it correct that in his review of the medical records he saw no particular injuries while Rothschild was employed at Karst, BAM or Integrity. "Acute injuries, that's correct", the doctor said. (Cohen Dp. pg. 114) Dr. Cohen agreed that Rothschild's symptoms probably further degenerated since his last date of employment. The doctor was asked if he would defer as to whether or not there were any jobs suitable for Rothschild in his condition to a vocational expert, and Dr. Cohen answered - "Yes". (Cohen Dp. pg. 120)

On redirect examination, Dr. Cohen was asked if the degenerative changes seen in Rothschild's knee were due to the injuries that he had as opposed to the natural aging process. Dr. Cohen answered:

"The degenerative changes, in Mr. Rothschild's case, are due primarily to the original trauma to those joints and also due to the repetitive work he did, and to a lesser degree to the fact that he's of this particular age group, you could see some. And he is overweight, and that can also cause some of those findings as well." (Cohen Dp. pp. 133) (Ruling: Roloff Trucking objections are overruled. Cohen Dp. pg. 133)

Dr. Phillip George, M.D., an orthopedic surgeon who evaluated Rothschild ad prepared a June 22, 2004 report, and testified by deposition on behalf of Karst Construction (Karst Exh. No. 7). Dr. George testified as to his diagnoses:

"My diagnoses were: one, post-traumatic arthrosis, right knee, moderately advance; two, complete rotator cuff tear right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromioclavicular joint; three, rotator cuff tear of the left shoulder with degenerative arthritic changes at the AVC joint; four, early post-traumatic changes at the AVC joint; four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." (George Dp. pg. 8) (Ruling: Claimant's objection is overruled. George Dp. pg. 8)

Testifying about his conclusions Dr. George included:

"It was my felling that this gentleman had preexisting osteochondritis dissecans of his right knee and that it was aggravated or exacerbated by the fall of August of '99.

The subsequent surgeries were carried out in 2000. They found evidence of drastic osteochondritis dissecans, which preexisted the injury in question, but in my opinion was made worse by the injury in question. Standard arthroscopic techniques sufficed to moderate his symptoms but did not cure the problem.

It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10)

Dr. George testified as to his opinions regarding the role of the various subsequent employments after Roloff Trucking:

"The condition of osteochondritis dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employments from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004.

What I mean by a minor contributory factor is that, if a gentleman has a rough spot in his knee, and he goes to work, and even walking from the parking lot into the place of employment, that might make the knee a little sore. He works a full eight-hour day - - a ten-hour day. He does what does. He goes home. It's still sore. I think his work activity had something to do with making the knee sore.

If he had gone to work with a normal knee, smooth surfaces, no osteochondritis dissecans, he might have come to work

sore anyway depending upon what he does at the place of employment. If he falls off the top of a cab of a semi, he's going to be sore. That's more or less what I mean by minor contributory factor.

This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." (George Dp. pp. 10-11)

Dr. George gave his opinions in regard to the left ankle after evaluation:

"The diagnosis, which I offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

It was noted that Dr. George had said Rothschild had injured his left ankle in 1999, and the doctor was asked if he was able to find complaints produced in the medical records. Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, the doctor said. Dr. George agreed that his opinion was the same in regards to the left ankle as with the right knee in regards to subsequent employment, that the subsequent employment played only a minor contributory role in the problem. Dr. George was asked to compare the problems in Rothschild's left ankle to his right knee:

"The nature of the difficulty in his joints is, in my view, the result of a systemic problem. Osteochondritis dissecans is a bona fide orthopedic diagnosis. It has a chapter in any orthopedic text. And what it says is we don't know why people get this, but it's very classic and well-described. And this gentleman fits the diagnosis to a tee.

There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle.

What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab." (George Dp. pg. 14)

Dr. George agreed that he has stated that in regards to the surfaces of the ankle and the knee, these could get sore with activity. In regards to activities such as trucking and whether or not it contributed to any additional problem, Dr. George testified: "I would suggest that those activities would not alter the natural - so-called natural history of this particular condition, which is one of progressive deterioration with advanced pain." (George Dp. pg. 15) (Ruling: Roloff Trucking objection is overruled. George Dp. pg. 15) Dr. George agreed that in his review of the medical records he did not see any significant alteration with the symptoms.

On cross examination, Dr. George gave further testimony about the condition of osteochondritis dissecans and his reference to the two leading texts for orthopedists:

"If you read that, it says this condition is post-idiopathic, doctor talk for we don't know why. But it then proceeds to say one of the, one of the many possible etiologies might be trauma. What I'm referring to is the kind of trauma that occurs if a 14-year-old kid falls off his bicycle or twists his knee playing soccer, those kinds of thins, or a 21-year-old hits a bridge on his Harley, those kinds of things, we think, can initiate the problem.

It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have." (George Dp. pp. 16-17)

Dr. George gave further testimony:

"Certainly the effects of that (1999 work related traumatic) injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans........" (George Dp. pg. 21) (Ruling: All objections overruled. George Dp. pg. 20)

Dr. George agreed that even if you have preexisting osteochondritis dissecans, it can be asymptomatic and can be activated or aggravated by trauma. The doctor also testified: "I do think that if you have an osteochondritic knee and you fall off a trailer you can hurt it. Now, what does that mean? That means the symptoms get more severe. Did the fall cause the problem? I don't think so. (George Dp. p. 22-23) Dr. George agreed, during cross examination, that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of Rothschild's current conditions. (Ruling:

On cross examination, Dr. George stated if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". (George Dp. pg. 31( (Ruling: claimant's objection is overruled. George Dp. pg. 31) It was noted that the doctor described the left ankle as "early post-traumatic arthrosis of the left ankle", and Dr. George explained what he had meant: "That means I expect it to get worse". (George Dp. pg. 32) It was also noted that he had used the term "drastic osteochondritis dissecans", and the doctor was asked if the condition was drastic back in 1999. Dr. George answered: "It was drastic in 2000 when they first started looking in there with an arthroscope? The three operative reports of the two surgeries describe changes which one would have to label drastic, i.e., advanced, long-lasting, severe." (sic) (George Dp. pg. 33) Dr. George gave the following opinion testimony in regards to the claimant's left ankle:

R. Okay. And my understanding is, from reviewing your report, that the claimant's - when you looked at him it appears, one of the symptoms he did is he had a limp on the left, not the right. So is it a fair statement he was limping from the left ankle, not the right knee?

B. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

R. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

B. No.

R. Or the original accident back on August 30, 1999?

B. No.

R. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

B. That's a fair statement.

R. In that you say it was substantially caused by the original trauma of 1999 ?

B. That is correct. (George Dp. pp. 33-34) (Note: Ruling: Second Injury Fund and Claimant's objections are sustained. George Dp. pp. 29, 30 and 31 )

On cross examination by the Second Injury Fund, Dr. George agreed that he met with Rothschild personally, and Rothschild did not relay to him any prior injuries or treatment to the right knee before the August 29, 1999 injury. Dr. George agreed that he did not see any preexisting treatment records for the right knee or left ankle prior to the August 30, 1999 injury. Dr. George agreed that Rothschild did not relay to him any medical history, and he did not obtain any medical history of any problems before August of 1999 to the left ankle; the doctor agreed that Rothschild relayed to him that he had no prior injury or treatment to the right knee before the injury of August 29, 1999. Dr. George stated "(C)orrect" that it was his opinion the osteochondritis dissecans was significantly aggravated or exacerbated by the fall of August of 1999 when Rothschild fell off the trailer. (George Dp. pg. 39)

On further cross examination by the claimant, Dr. George agreed that in his report he had opined - "I consider his present condition to be due to preexisting osteochondritis dissecans aggravated to a significant degree by the trauma from 1999". The doctor further testified: "I agree with that. I mean, I think that's what I've been saying all along," (George Dp. pg. 44) (Ruling: All objections are overruled. George Dp. pp. 43 and 44 )

Dr. Richard Rende, M.D., who evaluated Rothschild on June 2, 2004 on behalf of Integrity Installation and testified by deposition on behalf of Integrity Installation (Integrity Installation Exh. No. 8), stated his impressions: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) The doctor explained what osteochondritis dissecans (OCD) was:

"OCD is a traumatic injury that occurs typically in people anywhere between the ages of 15 to 50 that results in a lesion that forms on the weight bearing surfaces of either the medial or lateral femoral condyle -

"-or in lay terms, the end of the femur bone. It's the part of the femur bone that bears weight. It's etiology is typically that of either idiopathic or trauma.

"Idiopathic means that there are people who have no known reason for the lesion to occur, but approximately 50 percent of these patients have a history of trauma. There's some theories that it could possibly be a vascular insult that is later dislodged by trauma, but regardless, many of them are traumatic in etiology and it basically results in complete loss of bone and cartilage from the end of the femur from one event.

"It's probably the most devastating of the injuries to the knee because in one fell swoop the patient becomes, as we would say, bone against bone." (Rende Dp. pp. 9-10)

Dr. Rende testified as to his additional impressions:

"It was my opinion that the osteoarthritis was directly a result of that particular injury. This was not a repetitive micro-trauma type of injury, and I felt that the gentleman also needed permanent work restrictions, and I went over those in my letter to you." (Rende Dp. pg. 11)

It was noted that Dr. Rende used the term "progressive degenerative osteoarthritis"; the doctor was asked what relationship, if any, did that have to OCD, and the following testimony occurred:

E. Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with exposed bone and no cartilage.

U. Okay.

E. OCD is a disease where it happens and it's done, it's there. It becomes exposed bone from one injury.

U. And does the progressive degenerative osteoarthritis, was that the result of the OCD injury?

E. Yes. The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results.

U. And that's the natural disease type process from this type of injury?

E. Yes. We call that the natural history of the disease.

U. Would his condition then progress like that without regard to his activities?

E. Yes, that's correct. (Rende Dp. pp. 12-13)

Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14) Dr. Rende agreed that he indicated the OCD would have progressed without regard to whatever activities Rothschild was doing. (Ruling: Claimant's objection is overruled. Rende Dp. pg. 14) Agreeing that he felt Rothschild had permanent partial disability to the right knee, Dr. Rende testified: "I felt he had a permanent partial disability of his right leg at the level of his right knee of 30 percent as a result of the osteoarthritis dissecans injury." (Rende Dp. pg. 15) The doctor agreed that this assessment to the right knee was for the overall condition at the time of his evaluation of Rothschild on June 2, 2004. I did not find any disability with regard to the left ankle, the doctor said.

On cross examination by the claimant, the doctor was asked if his recommended restrictions for the right knee was because he thought it would hurt the knee. "Yes, it would make it worse and it would produce significant symptomatology to him", Dr. Rende answered. (Rende Dp. pg. 18) The doctor was then queried - so any kneeling, squatting climbing, or lifting repetitively over 50 pounds would make the knee worse? Dr. Rende responded: "I'm talking about his symptoms when - when you come to a physician, we're human beings, we don't want to inflict pain on someone. And that's the reason I said that." (Rende Dp. pg. 18)

Dr. Rende, during cross examination, was shown x-rays in the case, and testified as to what a 9/3/99 x-ray revealed as to whether or not this was a traumatically induced OCD versus a preexisting OCD:

"Well, what this x-ray shows is it shows that the base of the lesion is very smooth and sclerotic and it suggests that there's been some separation of the normal vascular bone from the avascular bone below. This suggests that the OCD lesion was, in fact, present for some time." (Rende Dp. pg. 31)

The doctor agreed that the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999. "There's also a very small osteophyte here, but that is really a minimal degenerative change, so -". (Rende Dp. pp. 31-32) The medial joint space looked normal on the 9/3/99 x-ray, Dr. Rende said. The doctor commented on the differences seen on the next x-ray taken on 2/9/00:

"The difference here is that now the loose fragment has been removed and there appears to be significant narrowing in the medial joint space, at least 30 percent loss of height of the medial joint space, relative to the films that were taken preciously." (Rende Dp. pg. 32)

The next x-ray taken on 8/1/00 is essentially the same, Dr. Rende said, "(T)he difference in the two films, the osteophyte that was located in the medial joint space in the prior film, which was two millimeters, is now probably three millimeters." (Rende Dp. pg. 32) Concerning the last x-ray taken on 1/2/01, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." (Rende Dp. pg. 33) Dr. Rende agreed that after viewing the 9/3/99 x-ray, it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the

osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33) Dr. Rende was asked - is there any question, after reviewing the x-rays, that after this accident of falling off the truck, Rothschild had a Type III OCD lesion. The doctor answered: "Well let me answer this. There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." (Rende Dp. pg. 36) Dr. Rende agreed that from that point on the condition was going to progress, and that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression throughout the year 2000.

During cross examination, it was noted that Dr. Rende had testified earlier that Rothschild's was not a repetitive microinjury situation; Dr. Rende was asked to explain what he meant by that and the following testimony occurred:

B. Well the question that was brought to me by the letter that I received is could this have anything to do with his subsequent jobs, and my answer was no. This occurred as an injury and the subsequent jobs didn't have anything to do with it.

R. So subsequently activity - I think you testified to it on direct - can produce some symptoms for Mr. Rothschild, is that correct?

B. Once you've got this you're going to have symptoms and they're not going to go away.

R. But the underlying progress of this disease got set in stone when Rothschild fell off the truck?

B. It got set in stone when that piece broke loose, became a Type III lesion.

R. Okay. And nothing really that he did after that could significantly accelerate or aggravate the underlying condition of OCD?

B. It could have, but it didn't in this case, and the reason it didn't is because of his age. (Rende Dp. pp. 37-38)

Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende explained why: "...because they've got bone on bone, and bone on bone is what happens. It's one of the few conditions in the human body where one day you don't have arthritis and the next day you've got bone on bone." (Rende Dp. pg. 39) The doctor was asked these activities that cause Rothschild to be symptomatic, they're not changing the underlying nature of his OCD disease are they? "They are not", Dr. Rende answered. (Rende Dp. pg. 39)

On further cross examination by the claimant, Dr. Rende agreed that he had been shown x-rays that preexisted Rothschild's fall of the truck that was indicating he had OCD. The doctor was referred to the 9/3/99 x-ray, and Dr. Rende noted that it revealed a Type III OCD. The doctor was asked - you can't really say that the Type III lesion was four years old, four weeks old, four months old or four days old, can you, just from the film alone? Dr. Rende answered: "That's correct. The film doesn't tell you how long that piece has been displaced." (Rende Dp. pg. 47) The doctor was further queried - the osteochondritis dissecans displacement could have been a week old. "The displacement would probably match his symptoms", Dr. Rende responded. (Rende Dp. pg. 47) When queried, the type of displacement seen in the 9/33/99 x-ray would be consistent with pain originating from falling off the truck, Dr. Rende answered: "I would say very easily that that would be very painful and his knee wouldn't straighten all the way." (Rende Dp. pg. 48)

It was noted that Dr. Rende had testified earlier that after Rothschild fell off the truck, on a scale of 1 to 10 he was a 10, he was already as bad as he was going to get; the doctor was asked - with regard to subsequent activities, did they aggravate his pain or do they aggravate his underlying condition? "It aggravates his pain and it puts other parts of his body at risk", Dr. Rende answered. (Rende Dp. pg. 55) Agreeing that he meant other parts of his body outside of his knee; "(H)is knee is already as bad as it's going to get", the doctor further said. (Rende Dp. pg. 55) Dr. Rende added:

"Working for 29 days for this guy or 6 months for that guy didn't make this guy's knee suddenly need to be replaced. It was the lesion that occurred at his age that resulted in bone on bone, with a snap of the fingers." (Rende Dp. pg. 55)

It is found, concerning the right knee, that the competent and substantial medical evidence establishes that as a result of the prior August 30, 1999 work related accident at Roloff Trucking, a pre-existing condition in the claimant's knee of osteochondritis dessicants (OCD) was aggravated becoming a Grade III lesion in that a fragment of cartilage bone in a defect of the medial femoral condyle became loose or displaced completely. It is found that there is no competent and substantial medical evidence establishing that the claimant's performance of his work duties at Karst Construction from March 2001 through approximately September/October 2001 or the claimant's performance of his work duties at BAM Construction approximately from October 1, 2001 to about December 30, 2001 aggravated this preexisting OCD condition in the claimant's right knee. There is no dispute among the medical opinions that subsequent to the August 30, 1999 injury, the conditions in the claimant's right knee were osteochondritis dessicans and osteoarthritis, both of which are progressive diseases by their nature without regard to activities. Several doctors state that the OCD condition can progress naturally and/or because of activities including labor work as a carpenter (i.e. Dr. Matthews, Dr. Cohen). The issue presented in this case, it is found, is whether or not the claimant's performance of his job duties at Integrity Installations for 29 days during the period of July 22, 2002 through September 24, 2002 was the substantial cause in an aggravation/additional injury of the preexisting right knee condition; it is found that as the competent and substantial medical evidence and opinions do not establish an occupational disease to the right knee due to repetitive trauma as a result of performing

work duties as a carpenter at the prior employers, BAM Construction and Karst Construction, thus Section 287.067.7 cannot be used to shift liability from the last alleged exposure employer (Integrity Installations) to a prior employer. Thus, the question is whether or not the claimant suffered an occupational disease under Section 287.063 and Section 287.067 in the performance of his work duties at Integrity Installations.

In this case, Dr. Matthews in his treatment records noted on 01/15/02 that radiographs of the right knee were obtained and showed "sclerosis of the medial compartment, but good joint space is maintained. There is some patellofemoral narrowing, as well. There is a flat spot on the lateral of the medial femoral condyle that is notable". Dr. Matthews' assessment on 01/15/02 was Posttraumatic osteoarthritis of the right knee. The doctor's treatment plan was: "Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee". In the next treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit.......

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote Rothschild was to return in three weeks, and further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

I am in receipt of your letter dated September 11, 2002. I have reviewed Mr. Rothschild's chart and I would make the following comments based on knowledge of his record and his current complaints of knee symptoms. I feel that Mr. Rothschild has currently sustained an exacerbation of his pre-existing degenerative knee condition. This subsequent exacerbation will resolve leaving him with more symptoms than prior to the recent exacerbation.

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr. Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visit, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

At his deposition, Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) The following testimony then occurred:

Q. Now, Dr. Matthews, in later reports, you used words such as aggravated, exacerbated, and accelerated to describe the connection between Mr. Rothschild's subsequent employments, after Roloff Trucking, to the progression of his disease, the progression of his OCD, and the problems in his knee. Okay. By aggravating, exacerbating, accelerating, do you mean that these particular physical activities caused him to be symptomatic, or do you mean that there was a particular objective change that was directly caused by these particular activities in the knee?

Or both?

A. I would state both.

Dr. Matthews stated the following when asked his opinion of what subsequent employments in carpentry would have on the claimant's right knee: "...in general, I think it would be agreed upon, with medical certainty, that laboring type jobs such as his would aggravate and exacerbate and progress his particular condition, whether it be one job or 17 different jobs." When queried if

he could point to anywhere in his records which would show where a subsequent employment could be directly related to an objective fining in the right knee, Dr. Matthews answered - "probably not." Dr. Matthews testified as follows:

Q. Do you have anywhere in your records where Mr. Rothschild ever told you that any of the subsequent employments, specifically any activities, specific activities at those jobs, were causing a further problem to his knee?

A. Not specifically, no, I don't believe.

Q. Is there anywhere in your records during your, I guess, three years or so treatment of this gentleman, that he even told you anything about who - - who he worked for or what he did?

A. No.

Q. Over the three years, did he ever tell you about any of the subsequent employments, again after the August of 1999 injury?

A. I vaguely remember some discussion about him being a trim carpenter, but not employers and/or employment and/or where, no.

Q. Never identified the employers?

A. No.

Dr. George's opinion was that the OCD condition was found to be drastic in 2000 at the time of the surgeries and that the OCD condition preexisted the August 30, 1999 work related injury, but the August 1999 injury made the injury in question worse. Dr. George then testified:

"It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of ' 99 ."

Dr. George agreed, during cross examination, that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of Rothschild's current conditions. Dr. George's opinion was that Rothschild suffered from a systemic problem, and further testified:

"It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have."

In regards to work activities, Dr. George opined: "I would suggest that those activities would not alter the natural - so-called natural history of this particular condition, which is one of progressive deterioration with advanced pain." Dr. Rende testified: "There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." Dr. Rende agreed that from that point on the condition was going to progress. Dr. Rende's opinion was that with the claimant's age, the natural history of the claimant's OCD disease is "that it becomes progressively more severe and end stage degenerative arthritis results". When queried - And nothing really that he did after that could significantly accelerate or aggravate the underlying condition of OCD?, Dr. Rende answered: "It could have, but it didn't in this case, and the reason it didn't is because of his age." It was Dr. Rende's opinion that performing activities that the claimant had to perform in his carpenter job such as kneeling, squatting climbing, or lifting repetitively over 50 pounds would make the right knee symptoms, not the underlying condition worse which is why he recommended restrictions, testifying: "I'm talking about his symptoms when -- when you come to a physician, we're human beings, we don't want to inflict pain on someone. And that's the reason I said that." Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14) Dr. Rende agreed that he indicated the OCD would have progressed without regard to whatever activities Rothschild was doing. Dr. Cohen offered the only opinion that the claimant's subsequent employments "was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee". Dr. Cohen was asked if the degenerative changes seen in Rothschild's knee were due to the injuries that he had as opposed to the natural aging process, and the doctor answered:

"The degenerative changes, in Mr. Rothschild's case, are due primarily to the original trauma to those joints and also due to the repetitive work he did, and to a lesser degree to the fact that he's of this particular age group, you could see some. And he is overweight, and that can also cause some of those findings as well."

Dr. Cohen's opinion is given less weight, though, in that Dr. Cohen admitted - "(The job at Karst) (r)egarding the duration or time" Rothschild worked for Integrity was less than at Roloff Trucking. Also, Dr. Cohen admitted - "I was assuming that he was working

(at Integrity) full-time". Dr. Cohen stated that he had no reason to disagree if the employment records showed that Rothschild worked at Integrity four days some weeks, or one or two days another week. Dr. Cohen agreed that he found disability on the original August 1999 injury, and then he found one lump sum additional for the other three employers, he did not separate out that additional disability as to the subsequent three employers. Considering the medical opinions, it is found that the competent and substantial medical opinions do not indicate that the performance of the claimant's job duties at Integrity Installations was the substantial factor in causing the progression in the condition in his right knee at or near the time of that employment. At most, there is competent medical opinion that the claimant's work activities as a carpenter at employments subsequent to the acute injury at Roloff Trucking may have played a role or a minor role in the condition as well as did the natural progressive nature of his condition, the claimant's weight, and activities of life.

It is found, concerning the left ankle, that the competent and substantial medical evidence indicates that March 2001 was the first time the claimant was diagnosed with any problem with his left ankle. Dr. Haupt, on March 20, 2001, made the diagnosis: "Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury." Dr. Matthews, on October 28, 2002, Dr. Matthews wrote an opinion response letter to the claimant's attorney which included: "I feel that his left (sic) knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort.....I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point." Dr. Matthews, it is found, makes no reference to the claimant's employment activities at any employer, including Integrity Installations. Dr. Cohen diagnosed Rothschild with: Due to a compensatory gait, he has left ankle instability with chronic tendonitis, and Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, an aggravation of the left ankle condition. Dr. Cohen stated that it was his understanding Rothschild's problems with the left ankle began several months after the August 1999 fall from the truck but prior to his returning to work in March 2001. During cross examination by Roloff Trucking when queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle, Dr. Cohen answered that he did not remember. When queried during cross examination, if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, Dr. Cohen responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." It is found that Dr. Cohen's opinions, in part, are not supported by the medical evidence and thus his opinions are given less weight. Dr. Phillip George testified as to his diagnoses after evaluation of Rothschild on June 22, 2004, which included: "four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." Dr. George testified:

"The diagnosis, which if offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of ' 99 ".

When queried if he had been able to find complaints of injury to the left ankle in the medical records, Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." It was Rothschild's report to me as of the exam of June of 2004, Dr. George stated. Dr. George was asked to compare the problems in Rothschild's left ankle to his right knee:

"The nature of the difficulty in his joints is, in my view, the result of a systemic problem.......

There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle.

What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab."

Dr. George agreed, during cross examination, that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of Rothschild's current conditions. It is found that the competent and substantial medical evidence and opinions do not establish that the claimant sustained an occupational disease to the left ankle due to repetitive trauma from performing work duties at Integrity Installations.

As no occupational diseases have been established as a result of the claimant's employment at Integrity Installation, Inc., compensation is denied. All remaining issues are therefore moot.

The following exhibits were admitted into evidence in all four cases (except as specifically designated):

No. A: Deposition transcript of Raymond Cohen, D.O. taken on behalf of the claimant on July 14, 2004; with the attached exhibits thereto of Dr. Cohen's reports of 1/15/04 and 6/22/04, the Claim for Compensation, the 5/3/01 report of Shawn Berkin, D.O., the 10/8/02 report of J. W. Morrow, Jr., D.O. as well as the office notes of Dr. Matthews. (Second Injury Fund -- admitted subject to the objections therein)

No. B: Deposition transcript of Thomas D. Matthews, M.D. taken on behalf of the employee on October 1, 2004 with attached exhibits

No. B-1: Deposition transcript of Thomas D. Matthews, M.D. taken on behalf of the employee on November 19, 2004 (continued deposition of Dr. Thomas D. Matthews, M.D.) with attached exhibits

No. C: October 14, 2000 report of James Israel (Ruling: Second Injury Fund's objections on probative value grounds of - lacking foundation, and based on hearsay, and based on some medical records or lack thereof - are overruled.)

No. C-1: Curriculum Vitae of James Israel

No. D: Certified medical records of Fischer Chiropractic Center, certified 9/17/02 (26 pages)

No. D-1: Certified medical records of Fischer Chiropractic Center, certified 10/14/04 (4 pages)

No. E: Certified medical records of HealthSouth Tri-County Surgery, certified 9/30/02 (15 pages)

No. F: 10/13/2000 operative report of HealthSouth Surgery Center of West County concerning the right knee procedure performed by Dr. Herbert Haupt, M.D.

No. G: Certified medical records of the Herman Area District Hospital, certified 10/4/02 (12 pages)

No. G-1: Certified medical records of the Herman Area District Hospital, certified 10/13/04 (6 pages)

No. H: August 4, 2000 MRI of the right knee performed at Missouri Baptist Medical Center

No. H-1: August 4, 2000 left shoulder arthrogram performed at Missouri Baptist Medical Center

No. I: Certified medical records of ProRehab, P.C., certified 11/17/04 (16 pages)

No. J: Certified medical records of St. John's Mercy Hospital - Washington, Missouri, certified October 9, 2003 (3 pages)

No. K: Certified medical records of Washington Chiropractic Clinic, P.C., certified 10/25/02 (36 pages)

No. L: WITHDRAWN

No. M: 10/16/03 letter of Ray Gerritzen demanding back Temporary total disability benefits of \$2,378.88 plus interest (Admitted into evidence in one case, only - Injury Number 99-11262)

No. M-1: WITHDRAWN

No. N: Report of Injury of Roloff Trucking for the 8/30/99 accident (Admitted into evidence in one case, only - Injury Number 99-11262)

No. O: West County Radiological Group invoice for $\ 217.00 for the MRI of the upper extremity performed at St. John's Hospital Washington, Missouri on 10/28/99 (Admitted into evidence in one case, only - Injury Number 99-112621) (Employer/Insurer Attorney Mohan: I don't have an objection to the invoice. But because today is my first knowledge of the fact that Attorney Gerritzen intended to try and get a past medical expense that wasn't paid, it's entirely possible that my client also paid this invoice and I don't know that at this time. So I would reserve the right, if in fact I find that out that its been paid or maybe double paid by us and him that I could present evidence of that later.)

No. P: Photo

No. P-1: Photo

No. P-2: Photo

No. P-3: Photo

No. P-4: Photo

Employer/Insurer's Exhibits:

No. 1: Deposition transcript of James England, Jr. Taken on behalf of Roloff Trucking on October 14, 2004, with attached exhibits (Admitted subject to the objections therein)

No. 2: Medical records of Dr. Herbert Haupt, M.D. from August 1, 2000 through completion of treatment, which is March 20, 2001

No. 3: Medical records of Dr. Yadava, D.O. dated between March 14, 2001 and March 28, 2001

No. 4: Radiology report of Radiology Consultants Midwest, dated September 7, 1999

No. 5: Medical records of Dr. David Peeples, dated February 20, 2001

No. 6: WITHDRAWN

No. 7: Deposition transcript of Dr. Phillip George, M.D. taken on behalf of employer, Karst Construction on August 9, 2004

None.

No. 8: Deposition transcript of Dr. Richard Rende, M.D. taken on behalf of Integrity Installations on October 6, 2004

No. 9: Certified employment records from Integrity Installations.

Roman Numeral I: Self-authenticating certificated records from the Missouri Division of Employment Security concerning the claimant, Charles Rothschild, Jr.

No. 1AA: Attorney lien documents and agreement (Admitted into evidence in 99-112621, only)

Charles Gordon Rothschild, Jr., the claimant, testified that he was born on April 29, 1953. I graduated from high school, Washington High School, in 1971, Rothschild said. I entered the United States Air Force in 1971 and was in for three years, or until 1974 when I was honorably discharged, he stated. In the Air Force I did primarily refrigeration and air conditioning, the claimant stated. I used the GI Bill to attend East Central Junior College in Union, Missouri where I took a course in auto mechanics and machinist for just a few months. I then got jobs in air conditioning and refrigeration, Rothschild agreed, and then in 1975 I changed fields and started working in various factories. This did not work out, the claimant said, and in approximately 1977 and 1978 I worked a few months for Shell Oil Company driving trucks from St. Louis to Rolla, Missouri and then drove trucks a few months for Food Service Systems, and then drove trucks for Southern Products Company as well as several other ones such as Chromalloy. I did not do any carpentry work for any of these companies, the claimant said. I was driving mainly 18-wheelers, he said, but I also drove dump trucks and 14-wheelers. Rothschild agreed that he did interchange driving trucks with doing carpentry work, doing one or the other. I did not do refrigeration work after the 1970s, he said.

I first went to work for Roloff in, I believe, it was early 1990, Rothschild testified, and worked approximately nine years for Roloff before the first accident happened. During this time frame for Roloff I just drove a dump truck and whatever came with that, he said.

Prior to August 30, 1999 I had no problems or difficulties referable to my left or right shoulder, my right knee, nor my left ankle, Rothschild said.

On August 30, 1999 I was delivering rock to a construction site in a dump truck for Roloff, Rothschild stated, and as I was starting to leave the dump site after dumping the rock I noticed that one of the tree limbs had broken off in the cab shield and was hanging down over the windshield. I got out and pulled it out and that's when the accident happened, Rothschild said, I slipped and fell off the side of the truck, about 11, 12 feet, and landed best I could, which wasn't very good. Asked to give the details of what happened, the claimant testified: I saw the tree limb; I pulled over to the side of the road to get it out of there, it was in the way or would fall off in traffic. So I pulled it out, and when I pulled it out I climbed up the side of the truck and it was 11, 12 foot up. I jerked it out and it didn't come; I jerked some more and all of a sudden it came and I flew off the side of the truck and landed the best I could on the ground, and I tore up everything. I landed pretty much on my feet the best I could and then rolled, primarily landing I think on the right leg then the left; and my knee immediately, and my left shoulder, was hurting pretty bad, the claimant said. I think I twisted my knee because it was really sore and my left shoulder was too, it must of happened when I rolled on the ground on my left shoulder. I experienced pain immediately in my right knee, left shoulder, and my left ankle and heel area. I then got back in the truck with a little bit of difficulty, he said, and I took the truck back to the shop.

The next day I tried to get up and I was really hurting, the claimant said, my right knee was killing me, it was so swolled up it was starting to turn colors. And my left shoulder, I could not even lift it up, Rothschild said, in fact I had a real trouble getting out of bed, and I knew I wasn't going to be able to work that day. So I called in and told them that I had hurt myself that night, and I had to go see the doctor, or chiropractor, or something. Agreeing that he saw Dr. Al Fischer, Rothschild stated that the boss used this doctor, Roloff used him. Rothschild was asked if Mr. Roloff ever concurred in his going to Dr. Fischer. Well, I told him I was going, Rothschild answered, I don't know if - he didn't disagree with it; I mean, I told him who I was going to see. Mr. Roloff, my boss, didn't tell me yes and didn't tell me no when I was going to Dr. Fischer, but he knew I was going to Dr. Fischer, Rothschild stated.

Dr. Fischer x-rayed and checked my range of motion out on mainly my left shoulder and my right knee 'cause I was really hurting, I was having a real hard time walking, Rothschild said.

Dr. Fischer started making me do these movements and exercises, and I think there was hot packs and cold packs and ultrasound on my left shoulder and I think my right knee too, he said. Then Dr. Fischer referred me to Dr. Thomas D. Matthews about a month later as he couldn't do me any good, Rothschild said. He agreed that October 20, 1999, as indicated by the records, sounded right. Dr. Matthews scheduled me for an MRI and checked my range of motion and everything, and x-rayed, the claimant said, and I don't remember exactly what, but he give me a cortisone shot after he read that MRI report. I can't remember if he was the one that give me injection into my shoulder; I definitely got one in my knee, and they suggested I had loose bodies in my knee; and he scheduled a surgery, first surgery, on my right knee, Rothschild said. He agreed that this first surgery was on January 19, 2000, and then the doctor did a second operation on June 22, 2000. I was still hurting pretty bad and he had give me several injections, Rothschild stated, and I went through therapy and everything trying to get my strength back, and he did another surgery.

From August 30, 1999 up through the second surgery I wasn't doing any work, I was off work, the claimant said, I wasn't able to work because my knee and shoulder were ruined, both of them was just hurting so bad. It helped a little bit what he did, but it was just real bad, Rothschild said, I could hardly walk and I could hardly lift my left arm. I went through therapy at ProRehab, and he said it was a total tear in my rotator cuff so they couldn't believe that I got it working, the claimant said. He agreed that he had physical therapy in this time frame. Rothschild agreed that the workers' comp insurance company for Roloff had a nurse from the insurance company go to Dr. Matthews' office with him, a Gail Hanks (phonetically) from England and Company.

I saw Dr. Matthews until July of 2000, Rothschild agreed, and then they cut me off from Dr. Matthews completely, and Gail Hanks said we were going to another doctor, Dr. Haupt, that she had scheduled me with Dr. Herbert Haupt. With Dr. Haupt I believe I got an arthrogram on my left shoulder, and I can't remember but I think he did the MRI, too on my right knee. I don't know when it was but he told me he I needed surgery on my right knee. Rothschild agreed that Dr. Haupt then performed a third surgery on his right knee. After this surgery compared to the other previous two surgeries by Dr. Matthews, I was horrible, the claimant said, he had cut some tendons and ligaments in there and my knee was just a rainbow, it was so swolled up I couldn't even move; it was all wrapped up in bandages, it was soaked with blood; I was screaming in agony, Rothschild said. This was immediately after the surgery, he said, it was the first time in my life I've ever had morphine, which was for the pain in the whole right leg after surgery. My knee never did get fixed, the claimant said, it felt better for a while because he kept putting cortisone injections in it, and then he got this unloader brace that I've got on right now. The diagnosis the doctor made with reference to my left shoulder was that I had a total tear of the rotator cuff too, Rothschild said. The doctor offered to operate on my left shoulder, but I did not let him, the claimant said, I told him that no surgery would get done on my left shoulder until my right knee was fixed. I told him, you're gonna make a total invalid out of me, which I almost was already, the claimant said. Rothschild was asked if he was asking for surgery on the left shoulder now at this point. It's starting to get bad again, but I don't know if I want it; I guess I do; it needs to be fixed; I can't go on like this, the claimant answered. He agreed that it was part of the future medical treatment he was asking to be awarded, treatment of the left shoulder including surgery if it's deemed proper by a physician.

My right knee now, Rothschild stated, I bare all my weight on it and I just can't do the things I ever wanted to do. I can't work, I can't stand long, I can't lay long, I can't sit long, Rothschild testified, I can't do anything. I have to keep moving positions; I just cannot stay in the same position; I haven't slept in a bed since this happened, he said. I sleep on the couch every night and I have to throw my leg over the back of the couch to get in a position with pillows; some times I wake up in the middle of the night, it just hurts, the claimant said. Rothschild agreed that he is asking for an award of treatment for the right knee, including surgery on the right knee, if needed.

After the three surgeries on the right knee I have had a total of maybe three or four falls, Rothschild stated. It just gives out; it's just like one minute it's there and the next minute gone, you're on the ground. Agreeing that there was one particular fall at the end of July or first of August of 2003 at home, Rothschild stated that what caused that fall was he was going down the stairs and he had just about made it down the stairs and got down to the last couple, three steps and it just folded up on me. I tried to catch myself, he said, I was half running trying to catch up with my feet and I landed on my right hand, which jammed my shoulder back up, scraped up all the skin off my hand and everything, and I couldn't hardly get off the ground. My right shoulder was like it was hanging there; I couldn't hardly move it away from my body at all, the claimant said. It was my right knee that gave way causing me to fall and injure my right shoulder, Rothschild said. What was different about this fall compared to the other previous falls I had on the right knee was that it's only one that happened when I was going down the stairs, the claimant said. On other previous falls on my right knee I had not injured any other part of my body, he said. As a result of this fall down the stairs my right shoulder is -- it's useless, Rothschild testified, I'm right handed and I can't do anything with it. I can't hardly even lift it up to wash my hair, brush my hair, just to get something out of the cabinets, you know, a glass, or open a door, or pulling a light switch, he said. There has been a diagnosis of a full thickness tear of the rotator cuff in the right shoulder also, the claimant agreed. Rothschild stated that he is asking for an award of treatment of the right shoulder, including surgery. The claimant was asked if the injury to the knee at Roloff in August of 1999 was the cause, as far as he was concerned, for the fall in July, 2003. It is what caused it because my right knee gave out going down the stairs, otherwise it wouldn't have happened, Rothschild answered. He agreed that the right knee was the same knee that was injured in the fall from the truck.

Dr. Haupt did his surgery, and then I was off work the whole time until Dr. Haupt released me back to work in March of 2001, I believe it is. March of 2001 when I went to work for Karst, Rothschild stated, he was gonna release me anyway, so I found a job. The claimant agreed that he was completely off of work from August of 1999 until March 2001, and agreed that this was all due to the injuries at Roloff. With regard to giving further treatment in March of 2001, Rothschild testified, I told Dr. Haupt my

knee was still hurting and he sent me to all these other doctors -- Yadava and Peeples -- which it didn't do a thing for me, and then he finally said, "Well, there's nothing more that we can do for you. You just need to go back to work.". So I found a job and I asked him to release me, and I went to work for Karst Construction. Rothschild agreed that he was asking to be awarded interest, 10 percent per annum, on the $\ 2,378.88 from March 28, 2001, the late TTD payment.

Rothschild stated that his brother and a friend of his had both worked for Mr. and Mrs. Karst, and they had been trying to get him to come to work there. I started with Karst on March 30, 2001, I believe, he said, right after Haupt released me. I worked there until late September or early October of 2001, he agreed. When I went to work for Karst my right knee, left shoulder, and left ankle -- well, nothing was really fixed, the claimant said. The left shoulder was probably the best thing out of everything but I had to do all this heavy carrying, Rothschild stated. My left ankle and my right knee were just getting worse and worse the whole time, he said, we had to keep carrying all these heavy doors and equipment. And these fire doors were very heavy, they were solid-core particle board, he stated. My job when I worked for Karst was trim out of St. Louis Housing Authority houses. We had to move the cabinets in and install them, and all the doors were fire doors and we had to load them on trucks, and take them out of the trailer to the houses and carry them in the house, and install them, he said. The doors were so heavy, they were pre-hung with the trim on them, he said, and when you lifted them up the trim would just disintegrate if we didn't lift them up just right. Rothschild agreed that he was doing these things constantly while working at Karst. He was asked what, if any, affect did this have on his right knee, left shoulder, and left ankle. Well, everything I did just kept getting worse, the claimant answered. It was mainly pain in my right knee and my left ankle that was giving me the fits there, he said, I had to take breaks and Joe had the laborers do a lot of the hard lifting and carrying for me and stuff. I worked an 8 -hour day at Karst, the days we worked usually, Rothschild stated. It was a fulltime job but there was days that you didn't work and there was times that there was nothing to do; something didn't come in or something like that, he said. Rothschild agreed that he had to do walking stairs, explaining that with regard to his right knee he would step up with his left foot first when he had to do that. I tried to avoid stairs, the claimant said. My right knee it was definitely worse than anything because it would just be grinding and gritting and popping and completely swollen all the time, he said, and this brace when you sweat - it's supposed to be made for sweating - the more you sweat, and it was very hot out there as it was in the summer time, this brace slipped down on my leg and actually eaten holes, and the bleeding where the pads ate into my leg, Rothschild testified. And when the thing slips down it's putting pressure on the wrong spots and it gets lots worse, the claimant stated. He stated that he wore a brace on his right knee then that was given to him by Dr. Haupt. I made complaints to Joe Karst and P. J., his wife, about the brace rubbing and showed it to them, Rothschild said, they saw it many times. They had the laborers do a lot of the hard lifting and carrying, stocking the rooms with doors and things like that because I couldn't do it, the claimant said. Joe Karst worked with me getting these houses done, Rothschild stated, Joe would hold something up for me; he wasn't really a carpenter or anything, but he would help me do different things like carry something in the room. Rothschild agreed that Joe was there and had on several times told him to sit down and take a break, or something like. He saw I was hurting, Rothschild said.

Rothschild was shown Claimant's Exhibits P- 1, 2, 3, and 4 and identified them as pictures of the knee surgery by Dr. Haupt a few days afterwards. These pictures were taken in October of 2000, the claimant said, a friend of mine took the pictures. These pictures correctly portray the way my knee looked at that time after I pulled the bandages off, he said.

My work at Karst ended because Karst had some pretty bad financial troubles, Rothschild said, they actually ended up losing everything and went out of business.

When I stopped working for Karst I then went to work for BAM Construction Company. I worked to BAM Construction approximately from October 1, 2001 to about December 30, 2001, he said. At BAM Construction Company I strictly worked on the Lenox Hotel, Downtown St. Louis and trimmed quite a few of the hotel rooms out. I was a finish carpenter for BAM Construction, he said. My work entailed my physically doing such things as hanging of doors, the vanities, doing baseboard, stocking the rooms with the trim. They had one elevator, which we mostly used, but if you couldn't get a elevator a lot of times you had to use the stairs carrying your tools, and sometimes you had to go lug a trim from a different floor, he stated. We were lifting the doors that were all stacked in the room usually one wall, Rothschild said, and you had to move them into the correct rooms and openings. And then you had to get the baseboard up there, set up your saws and move the baseboard, and just everything to do with trimming that room out for a finish, so it's ready for the painter, he said. I was lifting and carrying tools, doors, big baseboards, and stocking the rooms, Rothschild said. It was a wide baseboard, the claimant said, about 9 or 10 inches wide and sometimes 16 to 20 -foot long. I usually did not carry the baseboards with someone else, he stated, sometimes if you needed help you could get one of the other guys, but they had their responsibilities. At BAM I worked from 6:00 a.m. to 2:00 or 2:30 p.m., or 7:00 a.m. until 3:00 p.m., Rothschild said, and pretty well five days a week. He agreed that at that time he was making $\ 30.00 an hour. At BAM I had to do more stairs than while working for Karst because I couldn't get a elevator most of the time, Rothschild said.

Rothschild agreed that he worked at BAM for approximately three months in the end of 2001. He was asked what affect, if any, did working there have on any part of his body. Well, you had to put the baseboard in, which required bending down, and the climbing the stairs and everything; just everything got worse, Rothschild answered. My knee got more swollen, the claimant stated, it was always hot in there and I was always sweating, and my brace would fell down and get in the wrong location and eat my leg up, and in the wrong location it put the pressure on the wrong point. I didn't have that much trouble with my left shoulder, Rothschild said, I could use my right shoulder to pretty well take the load. Rothschild agreed that this was before he had the rotator cuff tear on the right shoulder. I never could lift the left shoulder right all the way then, Rothschild said, I didn't have the strength in it after that accident, but I got most of it back through the therapy that I took. It never got back to the way it was before I fell off

the truck at Roloff, the claimant said. He was asked if working at BAM aggravated or made the left shoulder worse. It really didn't, the claimant answered, it didn't make it any worse. The left ankle it definitely did make worse because -- well, my right knee was hurting so bad I had to bare all the weight on my left, Rothschild stated.

The job with BAM ended when the Lenox Hotel renovation ended, which would have been the end of December, Rothschild agreed. I did not work anywhere from the end of December, 2001 till August of 2002, the claimant said. During those roughly seven months I just did exercises at home and I tried to find some jobs, Rothschild said, but when you're in the union you get fined pretty heavy if you go somewhere else and work. So I put my name in the carpenters hall and it was 500 carpenters out, so they couldn't do anything about it, so I just had to wait and drew unemployment until they called me back, he said. Rothschild agreed that he felt he was able to work at that time. He was asked why did he tell unemployment that he could work. I was supposed to look for work and I was looking for work, he answered, I called different places up that I could do some jobs at the house or anything like that, I tried calling different carpenters up.

The claimant agreed that in August 2002 he went to work for Integrity Installations. He stated that he worked for Integrity 29 actual working days but it was over approximately a three-month period, it wasn't just one month because it went on through August through September. My job at Integrity was we put together these Estee Lauder display cases, and there was makeup and display cases for jewelry and everything you see in Lord \& Taylor, Rothschild said, they are those big displays that are real heavy, like at Frontenac and Tiffany's. Lord \& Taylor was the job site and Estee Lauder was the display case, he explained. We had to unload the semis of all these display cases that were already built in Florida and shipped up here in a semi and bring them into the buildings and set them up, he said. The display cases were gigantic and very, very heavy, some of these items were like a ton a piece, they was all particle board and glass, Rothschild said, and it was four of us that would pretty well empty the truck out and set up these things. He agreed that he did both carpentry work and erection of the display cases here. Working for Integrity mainly affected my knee and ankle, the claimant stated, this brace -- we were sweating so bad in there, it was really hot out and this brace kept eating into my leg, and my knee was all swollen up, and then trying to keep the weight off my right leg I put it on my left and my left ankle was just swolled up. You couldn't even see the ankle bone; it was really hurting, Rothschild said.

The claimant was asked what difference, if any, was there in his right knee and left ankle between the time that he was off work from January 2002 until August of 2002, compared to when he was working for Integrity for the 29 days in August and September 2002. Well, my knee never was right or my ankle, Rothschild answered, but it definitely got worse when I went back to work because I had put all this weight on it, you know, up steps and what have you.

Agreeing that he actually quit work at Integrity, Rothschild explained that Kirby Moreland, the job steward, knew he was having trouble. I'd sit down once in a while with him, Rothschild stated. I told Moreland my knee was in bad shape and I think I showed it to him, the claimant said, I think I even showed him the pictures of it. Moreland saw me working, Rothschild said, he was present all the time when I was working. I told Moreland - I can't even stand up anymore, Rothschild stated, I told him I had to go to home and had to go to the doctor. He knew I'd been having trouble with it, real bad several days before that, and I told him I would stay there as long as I could, the claimant stated. Agreeing that he told Moreland that he could not work anymore, Rothschild stated that he told Moreland - I have to leave. I couldn't work anymore because my knee and ankle were hurting so bad, the claimant said, I couldn't even stand. I didn't know if I was gonna make it back to my truck, and I told Moreland that, Rothschild said. At the end when I was working there I could not go up and down steps regularly, he said. At the time I quit I could not lift anything heavy, I could not squat at all because my knee was so swollen and sore. I have not worked at all since that last day at Integrity in September of 2002, Rothschild said. I have not been able to work since then because my knee is shot, my left ankle is just about shot, and both of my shoulders are total rotator cuff tears, the claimant stated, and I just can't do any of the things that I do and work. My job requires me to squat down, and climb, and lift; and there's just no way I can do it, he said.

Rothschild agreed that he worked as long as he could at Integrity. I told Kirby that I couldn't even stand another minute; a few days later he called me back and said he needed me, and I told him, Kirby, I don't know if I can, if I'd be any help to you at all; I said, "I'm really hurting.". Kirby then said he just needed me for a little bit, I was the only one he could trust to do this, and I came back in and I helped him, and I helped him as long as I could, Rothschild testified. Then I told him I told him I couldn't stay any longer, and he said - That's okay, go home. Rothschild agreed that this was after the last day he had left; it was several days afterwards he had quit. I don't know long I worked when I went back after I had quit, five hours maybe just that one day, he said. Rothschild agreed that that was it, he hasn't been able to work since. He agreed that Kirby was there with him on his day of working five hours. Rothschild agreed that his normal work time was eight hours.

Rothschild explained his physical problems. My right shoulder is all but useless, he said, lifting anything, just as much as trying to brush my hair or wash my head or reaching up in a cabinet; it's just no weight whatsoever can I put on it. If it's down low I can carry; if it's anywhere lifting it up I can't, I can't get it up there. I have to move the right shoulder just right, he said, 'cause even to get it back around sometimes I have to take my elbow and grab it like this (demonstrating) to even get it up to the back of my head; I also can use the wall if I'm close to the wall sometimes. And it comes out of the socket and sometimes I have to move it back around to get it back and you feel it pop back in. The claimant demonstrated the limitation of motion in the right shoulder. Rothschild agreed that he uses his left hand to push the right arm up sometimes because he can't lift the right shoulder by itself. The left shoulder is just kind of sore all the time and it's weak, Rothschild said, but I just limit what I do, lifting stuff up above my head or whatever. Like putting these books on the shelves, if I move it just the right way I could put them up there; but I get to that

one point where that pain is, I guess it's where that tear is in there and its never been fixed. Rothschild agreed that this has been true for the left shoulder since falling off the truck in 1999 at Roloff. I can reach the back of my neck with the fingers of my left hand, the claimant stated, it right to the point where it hurts, but I can reach it. The left ankle, Rothschild testified, it's like it's always swollen; I bare weight on it all the time because I cannot lock my right knee. My right knee has never locked since the accident and it's swollen right now, and I just bare all the weight on the left ankle all the time when I'm standing, he said. If I step on a rock or something, it will throw my ankle out, the claimant stated, and agreed that he has difficulty walking on uneven surfaces. I try to avoid them, he said. I get no warning when my right knee gives out, Rothschild testified, that's why I try not to put all the weight on it and use my left. I do not wear the brace around the house because the doctor told me not to, and the more you wear it the more it rubs and it just it gets sore, the claimant stated. If I got to do something, anything at all, when I'm out then I wear the brace, he said. Rothschild agreed that he had worn the brace to the hearing. You can see through the pants, a big old bulky thing, he said. It's light but it's big bulky, he testified, it's a unloader brace, it's supposed to put pressure where it's bone on bone and bring that away to the other side where there's a little cartilage left. One side has cartilage and the other side don't, the claimant said, and when it rubs bone on bone that's when it gets a real bad pain. That one spot when you bend it, there's a spot right there, Rothschild said, it's like a creeky door hinge, one spot it squeaks and the other it don't. You can tell right now when it hits the bone; that's when the thing gives out; it's just a pain like knives going in there; it just drops out from under you and you don't have a warning of it or anything. You can try to avoid the position but if it happens it's too late, he said.

The claimant was asked to discuss how his life is different now than before August 30, 1999. My whole life has been ruined, Rothschild said. I can't work; I can't do any things that I want to do; I have to watch everything I do, he said. I'm in debt up to my neck, and I can't do anything, the claimant stated, I'm pretty well 90 percent useless. What I do on a daily basis, Rothschild testified, is I cook, do my bills, and try to do a couple exercises. The claimant (hesitantly) testified that he gets food stamps to get food. I can't set there all the time, he said, so I try to walk or I even use the stairs to try to get up and down them, but usually I try to use my left foot first to get up the step, and that's how I get up and down the steps pretty well. He was asked if he could drive a truck as a business man, and the claimant answered - No. It's all I could do to drive down here to the hearing. He agreed driving a truck was what he did before when he was a carpenter. I can't drive a truck because I can't sit in that position and it requires you to use a clutch, and I can't move around in the truck, he explained. I cannot work as a carpenter now, Rothschild stated, I give it my best shot and I'm worse now than I ever was. All the combination of everything that's wrong with me, there's nobody that'd hire me, he said.

Rothschild was asked if he was asking for more surgery on his right knee if deemed proper by an orthopedic surgeon. I don't want this knee replacement that they got, I want to try to do something else; that's what I was hoping for, they would come up with something better than the knee replacement; I'm scared to death of the knee replacement because nobody I know has got any good results out of it. The claimant agreed, though, that he is asking for an award of further medical treatment on his right knee.

Rothschild stated that he is able to go to the store, and that he has to drive his pickup truck. It's just a few miles and I make it. I use my right leg on the accelerator as long as I can, he said, in short trips like that it's not too bad. But when I drive down here I have to throw it offer the hump; by the time I get here it was an hour and 15 minutes, and it just gives out on -- it just goes numb, and it starts hurting, the claimant said, so I use my left foot on the accelerator and the brake. I use the brace when I shop, Rothschild stated, and I use the cart to lean on when I go through the mall. If I have to lift up and get something off a high shelf I just get somebody to grab something off the top shelf or whatever it is for me; if there's nobody there to do it for me I just got to do it, he said.

I can't do it because my shoulders are shot, he said, I just can't -- lifting it up there is one thing but trying to lift anything, if any weight of anything, I don't care if it's five pounds, I just can't even get it up there; there's no way I can do it.

Rothschild was queried, the days he worked at these other places after Roloff how did that factor into his right knee and his left ankle and his left shoulder, did working at those place make these worse (it was noted that the right shoulder was the fall at home). Agreeing that there was not a difference in any of them, they all just add a little more each time, Rothschild further stated Everything just added up until I'm where I'm at right now. I can't do any of my activities; I can't run, I can't play ball anymore; I can't work. I can do a very little fishing, the claimant said, but I've hardly done any of that. The only hunting I can do is dear hunting because I can set there on my four wheeler, which I cut my grass with, or I got a deer stand that's right there in my yard and I get my deer right there, Rothschild testified. And I don't have to do any lifting, he said, I've got the wenches set up for the animals and everything else, and the trailer to pull them up there. There's nothing hard to it, I can sit down when I want, the claimant stated, that's the only kind of hunting I can do. As far as walking through the brush, that's out, Rothschild said, I cannot do any of that stuff anymore; quail hunting, none of it. I use to do all of these things before this happened.

On cross examination by Roloff Trucking, Rothschild agreed that he had his third and last right knee surgery on October 13, 2000, and that was performed by Dr. Haupt. Then Dr. Haupt treated me after that for follow up, and sent me to Dr. Yadava, a physiatrist, and they both treated me; in March 2001; both of these doctors released me, saying I was at maximum medical improvement and released me to full, unrestricted duty, the claimant agreed. Rothschild agreed that he told Dr. Haupt he had the Karst Construction job lined up and wanted to be released on February 27, 2001. The claimant agreed that prior to this he had been placed on light duty by various treating physicians, including Dr. Matthews and Dr. Haupt, but since Roloff Trucking had no light duty work available he received workers' compensation temporary total disability benefits from Roloff Trucking. Immediately after I was placed at maximum medical improvement and returned to full, unrestricted duty by Dr. Haupt and Dr. Yadava, I went to work

full time within one or two days working full duty at Karst Construction Company as a carpenter making $\ 25.00 or $\ 26.00 an hour, Rothschild agreed; he agreed that this salary was more than double what he had earned as a truck driver at Roloff. Rothschild agreed that he had testified that the work at Karst Construction involved traditional carpentry work including lifting of heavy fireproof doors and other heavy items. I told Dr. Cohen when he examined me, the claimant agreed, that I nearly constantly had to carry heavy materials and had to do a significant amount of bending, lifting, and squatting. I worked from the end of March 2001 until October 2001 for Karst when Karst went out of business, Rothschild said.. He agreed he did not lose his job at Karst because of a physical inability to work, and he did not quit working for Karst because of the injuries he suffered in the August, 1999 accident at Roloff. I would have continued working for Karst Construction doing carpentry work, including heavy lifting, had work been available from Karst, Rothschild agreed, further stating - "I had to".

During cross examination by Roloff Trucking, Rothschild was queried - isn't it true that his left shoulder didn't get worse while working for Karst. It did not get worse while I was working for Karst Construction, Rothschild responded, but it did get worse. The claimant was asked - wasn't it true that he did not work fewer hours while at Karst due to pain or problems he was having from the injuries received in the August, 1999 accident at Roloff. Well, we had shorter hours, Rothschild responded, but admitted that he didn't take fewer because he was physically unable to. I had to work, the claimant said. Rothschild agreed that he had testified earlier that after Karst Construction got into financial trouble he was the last worker out the door. Rothschild stated that his right knee did not give way while he worked for Karst Construction during those seven to nine months he was at work. In that job I did go up and down stairs, but not too much, he admitted, and I was carrying heavy objects, including heavy fire doors. Rothschild agreed that after working for Karst Construction he went to work for BAM, and that was full time, full duty at the Lenox Hotel where he was trimming hotel rooms and carrying heavy objects. He agreed that he was also going up and down stairs and stocking rooms with materials, and that whole time his right knee did not give way and cause him any injuries. It was the same type of work I did for Karst Construction; Rothschild agreed, and I earned $\ 30.00 an hour, which was approximately triple what I was earning as a truck driver for Roloff Trucking. I worked for BAM for about three months until the job ended and I was laid off, the claimant agreed, I didn't leave BAM Construction due to the problems I was having with my injuries from the August 1999 accident at Roloff. To the best of my ability I was able to do all the work that BAM gave me, Rothschild said. I was in great pain when I was doing it but I had to do it, he said. He agreed that he would have continued working for BAM if he had not been laid off. Rothschild agreed that he had testified that after the BAM job and he was laid off, he continued to look for work but construction was slow in the St. Louis area at that time. If somebody had offered me a job doing carpentry I would have taken the job, Rothschild stated. He agreed that in July, 2002 he went to work for Integrity Installations doing carpentry type of work, and this job involved heavy lifting and doing work with heavy equipment, and with heavy display cases. Rothschild stated that he would say he was involved in lifting items with other people that weighed all the way up to a ton

I testified previously, Rothschild agreed during cross examination by Roloff, that during the time I was looking for work, my left shoulder stayed about the same as it had been since I had completed physical therapy. He agreed that this was after Roloff but before the Karst job that he completed physical therapy. Rothschild stated that his left shoulder stayed about the same after this through all three other jobs, including Karst, BAM and Integrity. But I carried it with my right, Rothschild added.

During cross examination by Roloff, Rothschild agreed that he worked for Integrity from some time in August 2002 until September 24, 2002, and that he earned $\ 30.00 an hour, triple what he made for Roloff. Rothschild agreed that when he left employment with Integrity on September 24, 2002 he again applied for unemployment compensation and received the full 17 weeks of unemployment compensation at that point.

During cross examination by Roloff, Rothschild agreed that he filed his Claim for Compensation against Karst Construction and Integrity Installations on October 17, 2002, and alleged a permanent total disability with a date of onset of September 1, 2001 against Karst and September 1, 2002 against Integrity; the claimant agreed that he filed a Claim for Compensation against BAM alleging on September 17, 2003 he was permanently and totally disabled with a date of onset of October 1, 2001 and December 1, 2001. Concerning his fall at home, Rothschild stated that he fell in July 2003, then treated with a chiropractor first, and then went to Herman Area Hospital on or about August 6, 2003. The claimant was asked if he had said anything to the nurses or the doctors at Herman Area Hospital about the fall being caused by his right knee giving away. Yes, I did, Rothschild answered. He was asked if he had ever told any of his employers at Karst, BAM, or Integrity that he had any work restrictions. No, I didn't, he stated. I did ask them to limit my work somewhat, he said. If they had aides and/or helpers, and they would let me sit down a little bit; all that kind of stuff to help me out and carry stuff, Rothschild explained, they helped me, they worked with me. The claimant agreed that he has continued to deer hunt since his last employment, and that he has to climb rungs similar to a ladder to get to his deer stand. Rothschild was asked how much he weighs now. Two hundred and eighty (280) pounds, he answered. He stated that he does not take much medication now since the Vioxx trouble; he agreed that as of March of 2005 he didn't take much medication. When I did take some medication it was over-the-counter Tylenol and some Advil; that's all I had left, Rothschild stated. I don't like to take any drugs, the claimant stated.

Rothschild stated, during cross examination by Roloff, that he was saying that he hurt his left ankle in the original incident when he fell off the truck. I told Dr. Fischer right away, the claimant stated, but the pain in my left shoulder and my right knee was much worse than the pain in my left ankle. Rothschild stated that he was complaining to Dr. Haupt when he was treating him as well as to Dr. Matthews when he was treating him early on after the accident. Rothschild agreed that he recalled seeing Dr. Shawn Berkin on May 3, 2001 by his own attorney, and at that time he was employed by Karst Construction. I believe I recall seeing Dr.

Morrow for a rating evaluation on my own behalf on October 8, 2002, and at that time I had just left the employment of Integrity Installations, the claimant stated. When queried if he had told Dr. Morrow at that time that he hadn't worked since he last saw Dr. Matthews on January 15, 2002, Rothschild responded - I don't remember. The doctor could have got it mixed up; I wouldn't have lied to him, Rothschild said.

Rothschild stated, during cross examination by Roloff, that he does his own yard and lawn work, and he lives on about three and a half acres. The claimant was asked - since your accident at home where you fell down the stairs in July of 2003, have you ever injured yourself in any way as a result of your right knee giving out? No, Rothschild answered, I fell three times and I didn't hurt myself any of those times. He stated that his right knee was giving out a lot while he was being treated by Dr. Matthews and Dr. Haupt, and he told Dr. Haupt and Dr. Matthews several times about it. I don't know why their records don't mention this or my ankle either, Rothschild said, I don't know why they did that. I never told Dr. Matthews at the first visit on October 20, 1999 that I had had off and on problems in the past with my right knee, Rothschild said, and agreed that within the last year or two he sent a note or something of that effect to Dr. Matthews requesting that he change something in his record about that.

Rothschild stated that he recalled when his first deposition was taken on January 16, 2001, and during cross examination by Roloff he stated that he fell 11, 12 feet, whatever high the truck was, and answered when asked how did he land -- "Landed mostly on my feet and rolled.". The claimant stated that he recalled he was then asked - "And you injured which body parts in this accident?", and he answered - "Left shoulder, right knee." It was noted that Rothschild did not mention anything about his left ankle at that deposition. It wasn't as bad as the rest of it at the time, Rothschild said. It was noted that in his second deposition taken on March 16, 2004 Rothschild was again queried - "Now it's my understanding you were injured working for Roloff Trucking; is that right?" and "Okay, what areas of your body did you injure?", and he answered "My right knee and my left shoulder.". That is correct, Rothschild said. The claimant admitted that he probably didn't mention his ankle then either when that second deposition was taken more than three years later.

On cross examination by Karst Construction, Rothschild agreed that after his Roloff injury, he ended up having three surgeries on his right knee all in 2000. He agreed that he was also diagnosed with rotator cuff tear in his left shoulder and was also having problems with his left ankle. Rothschild agreed that this was all prior to ever going to work for Karst Construction. During the time period after the last surgery by Dr. Haupt up to the time that I went to work for Karst Construction, my knee was giving me a lot of problems, the claimant agreed. Agreeing that he had some disagreement with Dr. Haupt as to whether he should be discontinued from medical treatment, Rothschild testified I told him my knee wasn't right, and my left ankle and my left shoulder. I said, none of it's right and you're going to send me back to work; I said we have got to do something here, the claimant stated. During this period my right knee was hurting all the time and it had actually given away on a couple of occasions, he agreed. At that time I think it was two times that I had actually fallen because of this give away situation, he said. Rothschild agreed that he had indicated that during this time, hills and stairs and anything that would cause him to have to put extra weight on the right knee would give him extra difficulties. He agreed that he was walking with a limp during that period of time because he couldn't straighten his knee out all the way, and he couldn't kneel at all on his right knee. During this period of time, between Dr. Haupt's surgery and going to work for Karst, it hurt to raise my left shoulder up, and he was also having difficulty getting his left shoulder and his left hand even away from his body because of the problems in his left shoulder. With therapy we got it working again, Rothschild added. It was noted that at some point his ankle began hurting and was swelling, and Rothschild stated that this was before his employment with Karst Construction.

I went to work for Karst Construction in the Spring of 2001, and this was right after Dr. Haupt released me from care, Rothschild agreed during cross examination by Karst Construction. He agreed that when he went to work for Karst Construction he was a union carpenter making union scale. I was on my way for qualifying for Union benefits, Rothschild said. During the time I worked for Karst Construction, Spring of 2001 through September 11, 2001, I worked full time getting substantial hours but I wasn't getting a full 40 hours, Rothschild agreed, and I was actually working as a trim carpenter which is different than a standard carpenter. I guess you could consider this as a lighter job, but not really, the claimant said. He agreed that the Karsts became friends of his during the period of his employment and they worked with him to make sure that he didn't get too sore. I didn't miss any time from work because of my left shoulder, right knee, or left ankle when I was working at Karst, he said, they worked with me. They let me work at my own pace, he agreed, they got me laborers when that was necessary, things like that. I couldn't have done the job without it, Rothschild said. He agreed that while working at Karst he didn't have any specific accidents that caused damage to those body parts, and that he never received any medical treatment of any kind for these body parts while he was working for Karst. Rothschild agreed that when Dr. Haupt released him he didn't begin to get additional medical care until he went back to Dr. Matthews some time in 2002.

Agreeing, during cross examination by Karst Construction, that when the Karst's business started folding up he was pretty much the last guy out the door, Rothschild further stated - When work ran out there I even did work in their own home. He agreed that he didn't leave for any medical reason. After working for Karst I went to work for BAM Construction, and that was pretty quick, Rothschild testified, Joe Karst was friends with the owner of BAM Construction, Brian Murphy, and he got me in there on a high recommendation. He agreed that he worked for BAM for a period of up through December of 2001. I left BAM for nonmedical reasons as well, Rothschild agreed, explaining - I was laid off. At that point I applied for and obtained unemployment compensation and began looking for work in the carpentry field, he agreed. The claimant agreed that he was also looking for work in other fields. Rothschild was queried - wasn't it not until after the employment with Integrity that he started saying to himself,

you know, I just can't do this work any more? It was right there on the job, Rothschild answered, I stood up as long as I could, and did the job as long as I could, until my leg -- it just gave out totally; I could not do it.

During cross examination by Karst Construction, Rothschild agreed that his first Claim for Compensation against Karst Construction was filed in October of 2002, and this was actually over a year after he'd quit working for Karst.

On cross examination by BAM Construction, Rothschild was asked if he remember when he started working for Bam after leaving Karst. No, I don't, he answered. I believe October of 2001 was pretty close, the claimant said. At BAM I was a finish carpenter at the Lenox Hotel. It was noted that he had worked as a trim carpenter at Karst, and Rothschild said that that was the same thing as a finish carpenter. He agreed that he worked at the Lenox Hotel as a trim carpenter/finish carpenter for BAM until the job was finished and then he was laid off on about December 17, 2001. I didn't have any specific accidents on the job while I was working at BAM, the claimant said. He agreed that he filed for unemployment when he was laid off at BAM, and then he was looking for work. Rothschild agreed that his claim against BAM was filed in October of 2003, not quite two years after he'd worked for BAM. I did not miss any time from work during the time I worked at BAM as a result of anything, Rothschild said. Agreeing that he did have discussions with someone at BAM, Rothschild said it was not about being hurt on the job. It was with Dave Iden; he knew it, because he let me off with a couple things here and there and stuff like that; getting somebody to bring the trim up or help me get it, Rothschild stated.

On cross examination by Integrity Installations, Rothschild was asked further about the condition of his knee after Dr. Haupt's treatment but before you went to work for Karst. Rothschild agreed that he had stated his knee was ruined; he agreed that this was at the time frame before Karst. Rothschild agreed that he had said before he went back to Karst nothing was ever fixed, and he was talking about the knee, the ankle and the shoulder. The claimant was asked how would he describe his pain level in his knee back between October of 2000 and March of 2001 before he went to Karst. Well, I was wearing this brace and they gave me Vioxx and I took all that; I needed to do the job and stuff and I was hurting but I was able to get through it, he answered. Until the knee brace started slipping down when I started sweating, he said. I had pain in my knee all the time before working at Karst, the claimant said, and problems with stairs and with lifting with the shoulder.

During cross examination by Integrity Installations, Rothschild agreed that Dr. Matthews talked to him about a knee replacement as early as possibly 2000. He agreed that Dr. Matthews advised him that the more he might use his knee the quicker it was going to wear out. In May of 2001 I recall seeing Dr. Berkin at the request of my attorney, Rothschild agreed, and Dr. Berkin gave me restrictions on my activities of no kneeling, stooping, or climbing, and restricted my lifting, standing and sitting. Rothschild agreed that he continued to do some of those activities, though. I had to; I had to work, he explained. I really didn't pay much attention to Dr. Berkin's recommendations because he really wasn't my doctor, the claimant stated. He agreed that Dr. Berkin had also specifically said he should consider alternative employment, but he kept doing the same work.

Rothschild agreed, during cross examination by Integrity Installations, that he had testified about how his activities at Karst, BAM and Integrity made his knee and ankle a little worse, more painful and swollen. At the various jobs everybody pretty well helped me because they knew I couldn't do the job, the claimant said. Rothschild admitted, though, that he would agree that at the time he was working for Karst, BAM and Integrity and doing those specific job activities and developed more pain and swelling, he knew in his own mind at that time that those job activities were making his knee and ankle a little worse.

The claimant agreed, during cross examination by Integrity Installations, that he worked for Integrity Installation for 29 days during the period of from July 22nd through September $24^{\text {th }}$. I never had any slip, trip or falls on the job while I worked for Integrity, Rothschild said. He agreed that at Integrity he worked under a gentleman named Kirby Moreland who was the steward for the job and the one he reported to. I wore a knee breeze from day one on the Integrity job, the claimant agreed, only a couple days that I didn't because it rubbed a hole in my leg. When asked if he had been experiencing some additional problems with his knee shortly before he started with Integrity, Rothschild responded - I've always had trouble with it ever since --. I told Kirby I had these previous problems with the knee, Rothschild said, but I don't know when I told him; it was not before I started or on the first day. Rothschild state that he would not agree that his job at Integrity was a little lighter than the jobs he did for Karst and BAM. I'd say it was heavier; those pieces was lots heavier, he testified. I might have told Dr. Cohen that the job at Integrity was not as heavy labor as the jobs at Karst and BAM, Rothschild admitted. The claimant agreed that he had stated the job at Integrity is when he unloaded display cases used for jewelry and make-up counters and set them up in West County Mall and Frontenac; he agreed that he had earlier described this work for Integrity as very heavy work. He stated that he and three other people would have to lift up the partially assembled cases and then put them on dollies and then roll them in on planks to the ground and then inside; he stated that at Lord \& Taylor he would have somebody putting the display cases on to the dollies and rolling them right in from the truck into the facility. Rothschild agreed that to get the display case on to the dolly somebody could tilt up one side and slide the dolly under, so he wasn't actually having to lift the entire display case at any time, he would simply angle one side and slide in the dollies. He agreed that there were four of them generally on that job - a couple of people on the truck and a couple of people rolling the stuff in; the claimant agreed that he was mostly rolling the things in with Mr. Moreland. Rothschild was queried - wasn't it correct that he had stated he had quit the job voluntarily at Integrity because the pain got too bad and he just couldn't do the work anymore? I didn't actually quit on the spot, no; I had to get out of there and get some help from a doctor, and that's when I went back to see -- made an appointment with Dr. Matthews immediately, Rothschild responded. He admitted that he walked off the job

because he couldn't do it anymore. I had to get some help and I went to the doctor, the claimant said. I did go back to the job after this, Rothschild stated, and agreed this was when Kirby brought him back. Rothschild stated when he couldn't stand it any longer and went to the doctor, he thought he went to see Dr. Matthews on September 6, 2002, which would have been within the period of employment at Integrity. I made an appointment as soon as I could, Rothschild stated, I couldn't get in to see the doctor, he was all, backed up, so I called him at his house and he boosted me up the line to get me in. It was noted that work records showed that Rothschild worked two more days, two 10-hour days, the week after Dr. Matthews took him off work; it was noted that Dr. Matthews' record indicated that on 9/6/02 says he was taking Rothschild off work as of that day. I don't remember, the claimant responded, but further stated that he had no reason to dispute the work records. Rothschild admitted that if it's true that Dr. Matthews took him off work per his records as of 9/6/02, he didn't follow the doctor's recommendation and kept working. I needed the money, Rothschild further stated. The claimant was queried - isn't it true that you did continue working at Integrity until the job completion and you were laid off with everyone else? No, Rothschild answered, everybody was there and I was the only one that left. The day I walked off the job I only worked a few hours after that a few days later, he said, that's all I remember there, I don't remember working two days after I saw Dr. Matthews. Rothschild stated that it sounded correct that the day he saw Dr. Matthews after walking off the job was on September 6, 2002. It was noted that in that record of Dr. Matthews it said the doctor was taking Rothschild off work until seen again, the claimant responded - The doctor did take me off work but I can't recall what date it was. I did go back to the job site for Integrity after that visit with Dr. Matthews on September 6, 2002 for a few hours, Rothschild stated. He agreed that when he had testified earlier that the pain got so bad at Integrity he had to quit work and go to the doctor and couldn't go back to work, that was not entirely true, he did go back to Integrity. It was noted that the Integrity work records actually showed Rothschild worked two additional 10-hour work days in between, and, also, Rothschild was queried - isn't it accurate then that he did keep working at Integrity until completion of the job. Rothschild answered that he did not recall working for Integrity those additional days. That was the end of the job when Kirby called me back because he had to set these glass cases, the claimant further stated, so, yes, it was the end of the job. He agreed that the last day he went back there he did work up until the end of the job. Rothschild agreed that he had testified earlier that Kirby had no one else to help him and that's why he was brought back Kirby was the last one on the job site doing punch-out work, Rothschild agreed. Explaining what "punch out" is, the claimant testified - Chips, and nicks, and knobs, and things that were missing off the cabinets; just little bitty things like that; replace glass that didn't come in or was broken; replacing parts that were broken, or mismeasured, or whatever have you. When Kirby brought me back that last day at the end of the job, the best I remember, we had to pull these jewelry display cases apart by heating them up and pulling the glass out that was actually melted into place; and it took two people because we had to use these special suction cups to lift them out of their locations. It was noted that the time records showed Rothschild worked eight hours that day. Kirby said he would pay me for eight hours, I did not work eight hours that day like the time records show, the claimant responded, I worked five hours. Rothschild agreed that after he last worked for Integrity with Kirby Moreland on that final day he filed for and received unemployment again. The claimant was queried - you were out actively looking for employment. I was trying to do something, he responded, I had no money coming in, I had to have some money coming in. Rothschild agreed that he had to report to the State that he was ready and able to work. He agreed that, as indicated in the unemployment records from the State, the last day he worked for Integrity was September 24, 2002.

During cross examination by Integrity Installations, Rothschild stated that he told Dr. Matthews about the increased problems he says he was experiencing while working for Karst, BAM and Integrity. He agreed that he remembered seeing Dr. Morrow on October 8, 2002, which was right after the job with Integrity ended on 9/24/02; Rothschild stated that he told Dr. Morrow about how the jobs with Karst, BAM and Integrity were making his knee and ankle much worse. It was noted that Dr. Morrow's report indicated Rothschild told the doctor that he didn't work anywhere after January 2002 when he saw Dr. Matthews, and Rothschild was asked if he had told Dr. Morrow this. These dates I just -- they get all mixed up after a while; I can't remember what dates are what; I don't remember, the claimant answered. September 24, 2002 was the last time I remember working, the claimant further stated.

On cross examination by the Second Injury Fund, Rothschild agreed that he was a member of Carpenters 1839, and stated that P.J. Karst wrote the letter for him. I was in it earlier in 1987, but I had to be reinstated and had to have a letter for someone to hire me, the claimant stated. He agreed that before he worked for Roloff he had some union jobs as a carpenter. I left carpentry work for Roloff because of a lack of work, the claimant said, wintertime there's always lack of work, most everybody gets laid off.

Rothschild stated, on cross examination by the Second Injury Fund, that during the time he worked at Karst, BAM and Integrity his knee brace bothered him, and that he told Mike Farris at ProRehab about the problems with the brace slipping, and that the Karsts knew it. Everybody that pretty well knew me knew about it, he said. I did not seek medical help for it or rehab help for it while I was at Karst, BAM or Integrity, the claimant said. The claimant was queried - wasn't it correct that he didn't seek any medical treatment at all until he went to see Dr. Matthews in September, 2002? I tried to one time and they told me that I wouldn't be covered because this was a workers' comp accident, Rothschild answered. They wouldn't do anything for me related to this knee and shoulder, because it was a preexisting condition; I believe this was the Carpenters Union, he stated. When I went to see Dr. Matthews my carpenters insurance paid for that and I paid the co-pay, he said. The Union sends you a letter telling you when you're reinstated in the carpenters' hall, when you have enough hours to get your insurance, Rothschild explained. He agreed that this was before he started at Integrity, and had to be while he was working for Karst.

During cross examination by the Second Injury Fund, Rothschild stated that when he left the job at Integrity for good there were no more jobs to be had at Integrity, the job was over, and he applied for unemployment and went out and looked for other

jobs. I had to put my name on the list at the carpenters hall so I could be recalled, Rothschild testified, I was one of the 500 carpenters that was laid off at the time and work was really bad at that time. He was queried - isn't it correct that he never got recalled because it was wintertime? Basically; yes, he answered. The drought of work lasted until they called me back to work when Integrity called the carpenters hall, Rothschild stated. After I left Integrity I applied for unemployment again but I did not put my name at carpenters hall, Rothschild said. Explaining where he looked for work, the claimant testified - "I looked for work in different -- something I could do at home." Something where I could maybe send letters out or post cards or something; that, most of it all entailed the computer and I don't know anything about it; different things on that order, the claimant stated. He was asked if he had sought any jobs through the Missouri Division of Employment or Vocational Rehab. I went down there to see a Veterans Administration guy one time, Rothschild answered, and he took me over to a computer and told me that he couldn't help me operate the computer, he could set there and tell me what to do, and I never touched a computer in my life, so I had no idea; I didn't go back. Rothschild stated that he lives in a town named Berger which is 20 -some miles west of Washington, Missouri. Agreeing that he still has access to transportation, Rothschild stated that he has a full-size Dodge pickup. I think I looked around the Washington area and my town for employment a little bit but there was nobody gonna hire me in my condition, he stated, I couldn't do anything that I knew how to do. I was looking for other things that I could do, other than the carpentry, truck driving, which I definitely couldn't do anymore, he said. Rothschild was asked if he had actually filled out any applications for work anywhere. No, I didn't, he answered.

Rothschild stated, during cross examination by the Second Injury Fund, that other than chiropractor adjustment, before the August 30, 1999 injury at Roloff trucking he hadn't really been to a doctor since 1993. Agreeing that had characterized himself as a very active person, Rothschild stated that in addition to working full time driving the dump truck his other activities were fishing, hunting, running with his dog, swimming and skiing, and doing gardening. Rothschild stated that for the past eight years he has been living on a little better than three aches of land. I bought a piece of property and it was just like abandoned junk and I fixed it all up, the claimant testified, it was a real mess, there was only one little building there that was left when I bought it and I redid it. After the August 30, 1999 injury I worked on my property and my house very little, Rothschild stated, it's maintenance free basically, I don't have to do much to it.

Rothschild was asked to describe what a typical day would be for him now, during cross examination by the Second Injury Fund. A typical day is just doing bills, phone calls, taking walks, doing a little exercise, laundry, dishes, he answered. Rothschild stated that he lives alone, and he doesn't have to do much to clean his house but vacuum or dust. I do my own grocery shopping, he stated, I have to drive 22-25 miles into town. Explaining how far he walks when he takes walks, Rothschild testified - My land attaches to the State gravel pit and they have got most of the gravel taken off of it and I walk up there; it's nice and flat; I don't go very far, it's probably 400-500 yards long. Rothschild agreed that he still does deer hunting once a year. When asked if he rode a four wheeler out into the woods, Rothschild responded that he doesn't have the go in the woods very far, he live right there. It's what I cut my grass with and everything, he further stated. Rothschild noted that his brother is with the Sheriff's Department and sometimes he goes over there, and goes to his house. He's got a bunch of dogs and we let the dogs swim; we barbecue and stuff like that, the claimant said. Rothschild was asked if he had made any inquiries at the Sheriff's Department whether he could work as a dispatcher or in any capacity where he wouldn't have to do a lot of walking around or heavy lifting. No, the claimant answered, I don't know if anybody would hire me because I can't sit there, you just have to sit there for hours.

During cross examination by the Second Injury Fund, Rothschild was queried - wasn't it correct that he had stated earlier that he never called in sick when he worked the jobs at Karst, and BAM. I was sick one time at the end of the job at BAM, I had a really bad sinus infection; that was the only time, the claimant responded. He was queried - wasn't it correct that it would not be unusual for a carpenter to have assistance in carrying doors that he had described weighed about 200 pounds, and in holding the prehung doors? No, Rothschild answered, there was only one carpenter usually on the job and that was your job to put it in there or hang the door yourself. The laborers weren't supposed to touch it or anything, but they knew I couldn't do it by myself and they all went out of their way to help me, he said.

On redirect examination, Rothschild stated that sometimes there were other carpenters that worked with him at Karst. When asked if he was able to do the same work they did, Rothschild stated that they would help him. Everybody would help me, Rothschild said, they let me off on a bunch of stuff because I couldn't do the job. He stated that at all three places - Karst, and Integrity, and BAM - he was given different work than the other carpenters who had no injury, and these employers lighten his work because of his injuries. Rothschild stated that his right knee and his ankle got worse when working at all three of these places. I did things at work to keep it from being in pain, like stepping up with my left leg first, the claimant stated, whatever I could do. Explaining why he went to work in that condition, Rothschild testified that he had to work, he had to have money. I had just bought my new home and everything and I was gonna lose everything, he stated, whatever it took to get money coming in. He agreed that that was the reason he applied twice for unemployment compensation; he agreed that he did this on the telephone. Testifying more about how the other workers helped him out, Rothschild stated that the laborers was not supposed to touch anything for the carpenters, he could be fined for it or thrown off the job. But they risked it and they helped me hang the doors, carry the trim in; they weren't supposed to use their vehicles to bring the material to me and they brought but a lot of it to me and helped me whenever they could; Joe Karst himself, the owner, came in and helped me on the job; they all went out of their way to help me otherwise I could not have done the job, Rothschild stated.

Rothschild testified, during redirect examination, about how his deer hunting changed after August 30, 1999 when he had the

work related accident at Roloff. Well, if it got tough hunting I used to go stalk the deer and find them, but after that I just had to set there and wait for them to come to me, he answered.

Concerning Dr. Matthews and what he put in his records and whether or not he had put in his records Rothschild's complaints of his knee gave way, Rothschild stated he made many specific complaints to Dr. Matthews that the doctor didn't actually write down. When I saw Dr. Haupt I told him my knee was giving way and the doctor responded that I had had two previous surgeries on my knee, the claimant agreed. I was never seen by any doctor, hospital, chiropractor, nurse practitioner or anybody for complaints to my right knee prior to August 30, 1999, Rothschild said, and further stated that he did not know of one medical record that showed anything wrong with his right knee prior to August 30, 1999. I know of no medical record showing anything wrong with my left shoulder or my left ankle prior to August 30, 1999, the claimant said. I never had torn cartilage in my right shoulder prior to the fall at home in 2003, Rothschild said. The claimant stated that he consented to three different surgeries on his right knee because he couldn't even walk at all. I was really in pain, he said, I thought that was gonna help me.

During redirect examination, Rothschild was asked if he thought he could graduate from high school today. I've seen what kids are doing now days and it's nothing what I went through and I don't think I could; it's a lot worse than when I went to school, Rothschild responded. Rothschild was asked if he knew of any alternative employment he could do, and he answered -. No, I don't.

When I went to worked for Karst the condition of my left shoulder was that it was sore and it wasn't right, Rothschild testified during redirect examination, I couldn't do the heavy lifting so I carried it with my right shoulder because my right shoulder was real good. (Ruling: Roloff Trucking's objection to Claimant's offer of proof is sustained.) The claimant was asked when did his left ankle first start bothering him. The day I had the accident at Roloff, he answered, and after the accident it just got swollen and stiffer and sorer until I couldn't hardly put my heel on the ground. He agreed that the left ankle got progressively worse. Discussing the problems he was having in the left ankle, Rothschild testified - I had to stand on it all the time because I couldn't lock my right knee, and putting the weight on it all the time, carrying all that weight, my ankle was all swolled up, you couldn't even see my ankle bone; and it was hard to bend it, to walk on a grade of any kind.

During redirect examination, Rothschild stated that he noticed his right knee getting worse while working for Karst Construction from all the use - the heavy load-bearing, the carrying stairs and doors. He was asked to explain how it was worse, and Rothschild responded - I think I got injections all the way through this whole thing until a few months ago; it was all swollen up and it was grinding and popping; it was like gravel inside of my knee all the time. And I never could lock it; keeping your knee bent all the time you know what that is, your muscle, the claimant stated. Stating that the pain was worse in his right knee when he was working at Karst, Rothschild explained that it got sharper.

During redirect examination, Rothschild stated I never told anybody at Karst, BAM or Integrity that I had problems with my left shoulder, right knee or my left ankle, and nobody asked. Joe Karst knew but I don't know what date they knew it, he said. Rothschild stated that he had trouble getting up and down steps all the time. I had to stand up and bend over while putting on baseboard, which is not the way a finish carpenter puts on baseboard, everybody kneels, the claimant said, and I couldn't squat. Rothschild stated that he did tell Kirby -- "I cannot work anymore"? I told him this in September of 2002, he said. This was the same day when I could hardly get to my truck and make an appointment to see Dr. Matthews, Rothschild said.

The claimant was asked, during redirect examination, what if anything was different today between his typical day than what it was prior to August 30, 1999. My whole life has been a wreck, I can't do anything that I used to do, Rothschild answered, I haven't worked for a couple years now and I just can't do anything, I'm just like helpless. With the walks I take, before the fall at Roloff I would run, now I gotta hobble and watch where I step, and go short; I could just take off and do whatever I wanted, I wouldn't stay on the trial I'd go through the woods, Rothschild testified. With doing the dishes at home, it's not the same, he stated, I can't even stand there long. I have to go sit back down, and cooking supper's the same way, he said, 'cause my leg just gives out on me. Explaining why he slept on the sofa after August 30, 1999, Rothschild that it's the only place he can get his leg in a position to be out of pain; he agreed that this was true before any of the three surgeries on the knee. The three surgeries on my knee did not enable me to go back and sleep in my bed, he said.

During redirect examination, Rothschild was asked if he could work now, and he answered - No. I can't do any of the things that I know how to do; I can't stand there, I can't lift, reach, he explained. There's nobody that would hire me in the condition I'm in to do any job, the claimant stated. Rothschild stated that he would love to have his knee made better, and also both of his shoulders ad his left ankle. He was asked if he would like to go back to work. I would love to, he responded, I wish this never happened. Rothschild stated he would go to a doctor for treatment if it was awarded. I'd like to get this knee evaluated, that's my worst thing, the claimant stated, my shoulder is useless but I need to walk before I need to do anything with my shoulder.

On further cross examination by Karst Construction, Rothschild agreed that when he was seeing Dr. Haupt prior to going to work for Karst, he and the doctor did have a conversation about a knee replacement. Dr. Haupt said in the future you may need a knee replacement is what he told me, Rothschild further stated. The claimant agreed that he had testified that during his employment with Karst he was getting help from laborers and from Joe Karst in order to do his job, and this was happening basically from the beginning of his employment all the way through. Rothschild agreed that he had indicated his knee had gotten

progressively worse working for Karst, and that this was also true for his employments with BAM and Integrity. Agreeing that he had testified earlier his left shoulder really did not get worse in his employments with Karst, BAM and Integrity, Rothschild explained that this was because he was using his right arm instead for putting a load up. I was using my right arm then to carry the load of my left; my right arm was my good arm, the claimant stated. Rothschild agreed that the complaints he listed in regards to his left ankle, all those symptoms occurred prior to his being released by Dr. Haupt to go back to work.

On further cross examination by the Second Injury Fund, Rothschild was asked if his left shoulder had improved since he had stopped working. No, it hasn't, Rothschild answered, now I've got trouble sleeping on it; even if I lay on that side it's real sore. With regards to my heel, Rothschild stated, it's swollen all the time. They said they couldn't do anything for it, he further stated. The heel has stayed pretty well the same since I'm not working because I keep the weight off of it now lots more; it's more swollen, it's still swollen, he said. My right knee has gotten worse; it has progressed since I left Integrity, Rothschild indicated. They call it degenerative, he said.

Kirby L. Moreland testified on behalf of Integrity Installation Incorporated. Moreland stated that he had received a subpoena by mail, but the he had relayed that he was going to come voluntarily anyway. I am not currently employed, Moreland said, I was last employed about three years ago for Integrity. I am retired now, he stated, it was indirectly a voluntary requirement. Moreland explained that the union hall took in southern part of Illinois which added 11,000 men to our already 11,000 , so it flooded our market. I have learned from one individual that insurance companies are wanting people in their 40's and younger for employment, to insure the contractors, and the ones over 40 are just plain out; so I just decided to take early requirement and go with it.

Moreland agreed that he worked for Integrity in 2002. I was the steward on jobs at both West County Mall and Plaza Frontenac Plaza, he said, and after layoff I stayed at Tiffany job and did all the punch-out work for Integrity. Moreland agreed that he knows Charles Rothschild. I met him when we started working together on the Lord Taylor (sic) store, he said, we had Clinique, and the men's fragrance, and Lancome cosmetic display units. I met him because I was the steward, Moreland stated. Explaining what they were doing through Integrity at these two mall jobs, Moreland stated that we started out with unloading the trucks, with usually Wally, a superintendent, and Michael, the foreman, doing most of the loading of the dollies. We would transport the display cases on the dollies back into where we had to install them, and then we would sort them out and set them in their close proximities, Moreland stated, and once we did that then we would come back and assemble - put glass shelves in, caulking, sometimes a piece of trim here and there, whatever had to be done. The part of the delivery process I was primarily involved in was wheeling the dollies that were loaded with the display cases into the dock, Moreland stated. Charlie and I usually were teamed up together, and usually one would be behind and one in front.

It took several trips back and forth rolling the items into the building because you got a whole semi load, Moreland stated. To get the cases off the dollies, one of us would have to lift on the end and get the other one out, and the other one pulled the dolly. Then Wally and Michael would come in and they would assign us whatever projects they wanted us to work on such as putting on the shelves or whatever. It didn't require anymore lifting at that point, Moreland said, we did have to put the units in their exact location, and then from that point on is when they were divided up, just about singled out. They were taller, about six and a half to seven feet tall and about three and a half feet square, roughly, and all those units had to go together to make a long display. I never weighed these individual units but I would guess when we would lift on them it would be somewhere around a hundred fifty to 200 pounds. I tried to lift one alone once and I could do it, Moreland said, but after that I said, we're going to get two guys on them and lift them.

Later after, when we was on the next job, I learned that he had a problem with his leg and I made sure to do all the lifting I could and he'd just pull the dollies, Moreland stated. There was very little to some lifting on the job; we might have to move the cabinet in place then work on it for a while before we could do the next one, he said. Explaining what was involved when you would butt up the cases or get them in place, Moreland stated we would shove them and butt them against each other until we was on the line, and then it was just a matter of fastening the units with bolts. We would put the shelves in later, he said. The only lifting in this part of the job was just lifting the glass shelves which weigh 15 pounds maybe, Moreland said.

When I and Charlie Rothschild first started working together for Integrity I was not aware of any type of problem with his knee, shoulder, or ankle, Moreland said. We were on the Tiffany job, that last one together, about one-fourth to one-third of the way through the job that I was made aware that Rothschild had a problem with his knee, ankle, or shoulder, Moreland stated. I was putting the mark on the floor so we could snap a line, and when Rothschild did he kept the one leg straight and the other one was bent. I thought, well, what in the world is going on with him? About a day or two later he came to me and said: "Can I talk to you in confidence?" And I said: "Sure. What's the problem?" And he said: "I've got problems with my right knee." And he said: "I just can't do some of that bending." I told him: "Well, I have told you I can keep this in confidence." But I said: "What I want you to do is go to the foreman and tell him so's that he'll know what to do and he can assign you things that will work for you." It was about a day or two later Charlie came back and says, "I took your advice and I told him." Moreland agreed that it was just the right knee that Rothschild told him about. He was asked if Rothschild had ever told him anything about his left shoulder or left ankle, and Moreland answered - Not that I can remember, he might have later on but definitely not at that time. The day that Rothschild told me about the problems with his knee he just mentioned being on it made it hurt, just his own body weight; that's what I remember, Moreland said. Agreeing that there was a point toward the end of the job that required them to do some base work around the display cases, Moreland that when they first started Charlie came over and said he couldn't get down there to do the

work, it hurt too much to do that. I told him to go tell Perry, the foreman, and Perry would put him own something else. Charlie Rothschild was on the job with Integrity, to the best of my recollection, roughly five weeks, Moreland said.

When asked if Rothschild worked to the end of the second job at Tiffany, Moreland answered - What I remember at the end of the job we were getting down to where we had probably a half a day for all four of us. Either that or possibly one day earl, he said, I don't really remember real close on that. Anyway, Charlie wanted to go home early seeing's how it was only going to be part of a day, Moreland added, and that did let the rest of us get around six hours. It was gonna be the last day on the project for everybody but myself, Moreland said, I stayed on to do the punch-out work. Moreland stated that he remember a time before this where Rothschild left telling him something about going to the doctor. He said he had a doctor's appointment and needed to take off work, so he did, Moreland said. He was asked if Rothschild had told him that he was leaving the job site that day because his knee was too painful from standing that he couldn't do it anymore and he had to go to the doctor. I know his seeing the doctor was because of the leg, but he didn't put it that way; "I got a doctor's appointment to attend to the leg" was the idea, Moreland stated. Rothschild came back to work for Integrity after that day that he left to go to the doctor's appointment, he said. Agreeing that Rothschild had come back and assisted him when he was doing the punch out, Moreland stated that there was one day that he needed a second hand to lift a counter top off. When I figured out I was going to need a hand, I was looking for his phone number and the phone rang and when I answered it, it was Charlie, so I didn't have to finish finding the number, Moreland said. I asked him how he was doing and Rothschild said he wasn't feeling chipper because he had no way to earn money, no food and so on, Moreland stated, and I told him, what I was gonna call you for, we have got about a half a day of work, that would get some grocery money for you. I told him that it was changing a glass top, and if he thought he could do it then he should decide what he wanted to do, Moreland said. Rothschild said he could do that, and he came in. It was probably around 10:00 before we was allowed to get to it; I did all the preliminaries I could, I told Charlie - "Sit down. Take it easy.". When we got the top done I added, probably paid him for six hours or eight hours, Moreland said. We only had about four hours of work, and he needed money for groceries so I added some in then I turned around and worked that many hours that I added so's I did not charge the company, Moreland said. Explaining what he had Rothschild assist him with, Moreland stated it was a counter top and he had Charlie on one end and he I took the other end, and before they did any lifting he worked it lose and had Rothschild shove a shim in it so's that we'd have a place to get our fingers under without any problem and made it twice as easy to lift. Once we got it shimmed up then I said - Let's just try lifting and load ourselves and see what it's gonna do, and if you feel anything at all you let me know, we'll stop. Moreland stated that he meant Rothschild's knee or anywhere. So anyway, we got it ready; I had Charlie stand right by the end of the panel that we were lifting and I placed the horses that we had to lay it on after we got it off. When we got it up where we could move away I walked around with it, Moreland said, and all Charlie had to do was stand there braced against the top and lift and set it there. When we got done I asked him how did he feel, and Rothschild answered - Didn't hurt a bit; I used my other leg. Then we changed the glass top and we set it back on the same way, he said. It took about 45 seconds to lift it the first time and about the same amount setting it back on, Moreland said. Rothschild did not do any other physical labor that day, Moreland said, I just told him to take it easy 'cause all we needed was that.

Moreland was asked if at any time on the job with Integrity did he see Rothschild do anything to his leg or knee that looked like he suffered an injury. There was no injury on the job whatsoever from any of the trades, anyone, anywhere, Moreland answered. He was asked if Rothschild had ever told him during this time at all that the job activities at Integrity were making his knee condition worse. Not like that he didn't, Moreland answered, he told me a time or two that it was hurting, but I didn't consider that to be related to the job because it was already damaged. He was asked if Rothschild had ever told him it was those job duties at Integrity that were causing him the problem that he was having with his knee. No, Moreland answered.

On cross examination by the claimant, it was noted that Rothschild had testified that he had Moreland - "I've got to leave, I can't work anymore." I don't remember that being said like that at all, Moreland responded. He was asked if he knew Rothschild wore a brace on his right knee. After he told me in confidence what was going on then I knew it was a brace on there, Moreland answered. He agreed that as the steward, if anyone complained to him about anything he had a duty to report it to the company, and that would've jeopardized Rothschild's job. That was Rothschild's concern, Moreland responded, that he would be laid off if it was told. Moreland agreed that if Rothschild had told him of problems he was having with his left shoulder, his right knee and his left ankle, he would have had to report Rothschild and jeopardize Rothschild's job. Later on I found out that Rothschild had fallen off a truck in 1999 and had fallen 12 feet to the ground, Moreland said. It was close to the end of the job that Charlie relay this to me, Moreland said, but there was nothing associated with it being a real problem at that time. Agreeing that Rothschild just happened to tell him about falling off a truck, Moreland further stated that Rothschild said that he was trying to get settlement on it and that they were fighting him on it. Moreland stated that Rothschild never told him that he had a torn rotator cuff in his left shoulder. He was asked if he had known whether Rothschild was using his right shoulder and right arm much more than he was using his left shoulder or left arm when Rothschild was working with him. When we were working together I didn't notice any abnormality at all, Moreland answered. No, I didn't notice anything that would have indicated a torn rotator cuff of the left shoulder, or would have indicated a sprained ankle, Moreland said. He was asked if it was a surprise to learn that Rothschild had had those maladies. I don't know that he does have them, Moreland responded.

Moreland stated, during cross examination by the claimant, that he had retired from work about three years earlier and has been living on, his retirement from his carpenter's pension. He stated that his education is 12th grade, high school.

During cross examination by the claimant, Moreland stated that it did not seem strange to him when Charlie told him he

could not get down to do the baseboard. He'd already told me that earlier that he had trouble with his leg, Moreland testified, and that's when I told him, go and see Perry, the foreman, and have him put you on something you can do.

On cross examination by Roloff trucking, Moreland agreed that he also worked on a day-to-day basis with Rothschild on the first job which was the Lord \& Taylor West County Mall job. Moreland stated that it was correct that on that first job he had no indication in any way that Rothschild had any physical ailments or physical problems based on how he did his work. No problems that was visible that I could tell anything about, Moreland testified. Moreland agreed Rothschild lifted things, and he stooped, squatted and things like that on the job. We worked eight hours a day, sometimes ten, Moreland stated. He was asked how many days of those eight to ten hours days did he work with Rothschild on the West County Mall Lord \& Taylor job. That was sporadic, Moreland answered, sometimes might be together a day or two and might be pulled off for a few hours, then we might be back again. That's hard to answer and be very accurate, he added. At the Tiffany job at Frontenac, the second job we worked together everyday, Moreland testified. But at Lord \& Taylor we were divided up several times and would go a single operation on things; probably 15-20 percent at the very most we would be teamed up, Moreland stated. The job at the West County Mall, Lord \& Taylor, took about 14 days, he said. In those 14 days whenever I worked with Rothschild he never appeared to me to have any kind of physical ailments at all, Moreland said. As far as I was concerned, Moreland agreed, Rothschild was doing the job as well physically as I or the other men were on the job. He was queried - wasn't it correct that it wasn't until near the end of the second job at Tiffany's at Frontenac that he first learned, by looking at Rothschild's leg being straight, that Rothschild had a physical problem? Not at the end; it was about one-fourth to one-third of the way through the job, Moreland testified, that's the first incident that I had any kind of question. And then he verified the next day that he had a sore leg out of it, Moreland stated.

On cross examination by Karst Construction, Moreland agreed that once he did find out that Rothschild had a problem with his knee he helped Rothschild out whenever possible. Moreland agreed that he did the bulk of the lifting after that and things like that. He could lift some if he wanted to or decided to, Moreland added. I explained to Rothschild that he was not to do anything that would cause him any pain or discomfort at all, Moreland testified, I said, if it's gonna, you say so and we won't do it.

On redirect examination by Integrity, Moreland said that when Rothschild first came to him and told him he had a knee problem and had a brace, Rothschild told him in confidence. In confidence meant not tell anyone else, Moreland stated. I didn't relate it to him trying to hide, it was basically he was afraid of getting laid off if someone else found out, Moreland said. He was asked - Rothschild hadn't told anybody, to your knowledge, that he had this problem? I was the first one as far as I know, Moreland responded.

On further cross examination by the claimant, Moreland agreed that he had stated earlier that when he saw Rothschild in the beginning he hadn't noticed any problems. Moreland was queried - but you did notice problems at Tiffany's in Plaza Frontenac. Not until the day I saw him bend over funny to mark the floor, Moreland responded. Rothschild had been working probably a month and a half to two months, he answered. Moreland was asked - you're saying in the beginning you didn't notice anything but after Rothschild had been working a month or two you noticed without him telling you anything that he was having difficulty with his right knee? Because it was a very unprofessional stance and I wondered about it, and I still didn't know at that time, Moreland answered, and it was the next day or two when he came and voluntarily informed me that he did have a problem.

Medical records of Fischer Chiropractic Center (No. D) reflected treatment of Rothschild during the period of 8/31/99 through 11/23/99. The record began with a Workmen's Compensation Questionnaire in which Rothschild wrote of an 8/30/99 work injury at Roloff Trucking - "Climbed upon truck to pull off limb broken off in tarp shield as I was jerking on limb it suddenly broke free \& lost my balance \& jumped clear to avoid falling landed wrong \& twisted knee". Rothschild wrote that his problems were "Lifting \& left arm \& right knee is pain full when bending or trying to stand straight". Rothschild indicated on the questionnaire that he reported the accident to "Ralph/Ramona/Dr. Fischer"; he wrote that he was referred to Dr. Fischer by "Dan Scego". In the second form in the record, in the Symptoms/History section, it was noted that this injury had occurred on 8/30/99, and Rothschild had noticed symptoms the morning of 8/31/99. September 7, 1999 x-ray reports in the record noted the following findings: a. left shoulder - no acute fracture, no acute pathology; and b. right knee - osteophyte from the superior pole of the patella, also some calcification seen at the attachment of the muscle at the patella region, two small calcific densities noted on the tunnel view in the tunnel itself, narrowing of the medial femoral-tibial joint space. The written impression concerning the right knee in the 9/7/99 xray was: 1. no evidence of fracture; 2. osteoarthritis of the femoral patellar and medial femoral-tibial joint space; and 3. Possible joint mice in the tunnel of the knee.

A Lumbar -- Orthopedic/Neurological Exam form dated 8/30/99 noted among the findings for the right knee: 5 degrees loss of extension, valgus stress - medial knee pain. A cervical --Neurological/Orthopedic Exam form dated 8/30/99 noted among findings for the left shoulder. An 8/30/99 Consultation Record - Fischer Chiropractic Center reflected an assessment of: a. Left rotator cuff injury, possible tear; and b. right knee Grade 1 Grade 2 sprain, possible meniscus injury; the form indicated treatment was given to the left shoulder and right knee. Subsequent entries were handwritten notes, i.e. 9/10/99 - Rothschild's complaint that the right knee felt very unstable when he walked on uneven ground, pain with walking, and left shoulder is sore and achy too; 10/07/99 - shoulder continues to bother \& knee has increased swelling; 11/2/99 - got a cortisone shot, still limping, and shoulder and knee still have pain; 11/23/99, the last treatment entry indicated continuing problems; a 1/17/2000 note stated - Knee surgery.

The record included an October 20, 1999 letter by Dr. Fischer, D.C. to Dr. Thomas Matthews, M.D.. Dr. Fischer wrote that Rothschild first presented on 09/01/99 for injuries to his left shoulder and right knee; it was noted that the diagnosis was - left rotator cuff tear, and Grade II sprain strain of the right knee with a possible loose body. Dr. Fischer wrote a request for Dr. Matthews to evaluate Rothschild and send him a report of findings; Dr. Fischer further wrote that he would continue to treat unless Dr. Matthews felt another course of treatment was needed. A 10/28/99 report of an MRI of the left shoulder ordered by Dr. Matthews was in the record (See, also No. J), and reflected the following opinion: 1. Complete tear of the supraspinatus tendon at its insertion; 2. Laterally downward sloping acromion with prominent spurring. This is causing a moderate degree of impression on the supraspinatus tendon; and 3. Mild degree of osseous reactive change in the region of the insertion of the supraspinatus tendon.

Dr. Thomas D. Matthews, M.D.'s treatment records (See Attachments, Claimant's Exhibits Nos. B and B-1) began with an October 20, 1999 evaluation report to the workers' compensation insurance company. The doctor wrote that Rothschild presented for evaluation of right knee and left shoulder pain he sustained when he slipped and fell out of his truck bed in late August sustaining a twisting injury to his right knee and left shoulder. Dr. Matthews noted in his October 20, 1999 report: "Radiographs of the knee show loose bodies in the intercondylar notch. Evidence of old osteochondritic dissecans lesion and degenerative changes as well". The doctor further wrote that radiographs of the shoulder were unremarkable. Rothschild is advised to undergo an corticosteroid injection in the right knee and an MRI of the left shoulder to rule out rotator cuff tear, Dr. Matthews wrote. In an 11/3/99 entry, Dr. Matthews wrote that a complete tear of the supraspinatus at the insertion was evident on the MRI. The patient is advised to consider rotator cuff repair, the doctor wrote. In an 11/10/99 entry Dr. Matthews wrote that he had discussed options of treatment including outpatient physical therapy, injections, etc. "He would like to try his chiropractor for awhile", Dr. Matthews wrote, and "I told him that was ok, however if symptoms increased or got worse arthroscopic evaluation and decompression and rotator cuff repair would be recommended". In a 12/08/99 entry, it was noted that Rothschild reported that his shoulder had improved, but his right knee had increasing pain and loss of motion. Dr. Matthew's record indicates that he performed on 01/19/00 right knee arthroscopy on Rothschild. After post-operative treatment including medication, physical therapy and injections with some improvement, it was noted in a 03/28/00 entry that Rothschild continued to complain of pain; arthrocopic evaluation of the knee again for debridement was mentioned in the next entry of 04/19/00. In May 2000 Dr. Matthews wrote that if Rothschild wanted to return to work his climbing in and out of a truck was his main restriction and he did not think that was feasible for Rothschild at that time; in a 06/07/00 entry it was written that Rothschild was off work until surgery. A 06/22/00 entry stated right knee arthroscopy debridement. In the next entry of 06/29/00, Dr. Matthews wrote the following:

He comes in today one week after debridement of his knee joint. Again, his osteochondral defect is pretty significant. The margins were debrided. Some loose bodies were removed. Other than that, nothing else can be done arthroscopically.

In the next entry of 07/12/00, Dr. Matthews wrote that Rothschild was three weeks out from his scope and second debridement of his medial femoral condyle defect. The doctor further wrote that Rothschild was advised to continue a range of motion program on his own level and let his knee calm down at that time; the doctor wrote that he wanted to see Rothschild back in one month for recheck.

The next entry in Dr. Matthews' record was a 01/15/02 entry in which the following was written:

He comes in today for an opinion regarding his right knee. He apparently had an osteochondral transfer graft to the medial femoral condyle by Dr. Haupt in St. Louis last year. Since that time, his knee has been bothering him somewhat with occasional swelling and stiffness and inability to squat and inability to get down on the leg. His other knee is bothering him as well.

Dr. Matthews noted that radiographs were obtained and showed "sclerosis of the medial compartment, but good joint space is maintained. There is some patellofemoral narrowing, as well. There is a flat spot on the lateral of the medial femoral condyle that is notable". Dr. Matthews' assessment on 01/15/02 was - Posttraumatic osteoarthritis of the right knee. The doctor wrote the following in the treatment plan section of the 01/15/02 entry:

Significant concerns include, the possibility for further surgery in the future, including total knee arthroscopy. At this time, he is moderately symptomatic. I have placed him on a Medrol Dose Pack to see if the anti-inflammatory will help him. He may need an injection in the future, possible therapy, possible re-arthroscopy and/or total knee.......I believe he does have a 50-60\% disability of the knee, but my most significant concern is the problems in the future.

Dr. Matthews prepared a May 2002 report to the claimant's attorney in which he wrote the following:

I have reviewed Mr. Rothschild's chart. As you know, this gentleman claims injury to his right knee while at work prior to an office visit he had on 10/20/99. The evaluation of the left knee at that time showed x-ray evidence of an old osteochondritic dessicans lesion of the medial femoral condyle. In spite of conservative measures which failed, knee arthroscopy was recommended. At the time he was noted to have an old osteochondritic lesion which was debrided. Temporally the lesion that he had in the knee at the time of the arthroscopic evaluation could not have specifically been caused by his work related injury, however, the development of subsequent symptomatology, swelling and pain, could have been brought on by that particular injury and thus necessitating the subsequent surgeries that this gentleman has had. The

patient has stated that he had no problem with his knee prior to the work injury, which is consistent with a stable OCD lesion. The twisting and/or wrenching of his knee at the time of injury could have fractured and/or dislodged the lesion to the point that he became symptomatic. So in essence, the patient did have a pre-existing lesion which was essentially asymptomatic and/or subclinical and the work related injury aggravated this condition to the point that it became clinically symptomatic in need of treatment.

Further treatment and/or therapies could include arthroscopic evaluation of the knee, partial and/or total knee replacement, in addition to, the normal and customary office visits, x-rays, physical therapy, etc. I believe that these treatments are more likely than not to occur in the future, for this gentleman suffers from a progressive degenerative problem with his knee, which undoubtedly will continue and be in need of medical attention in the future....

In the next treatment entry, dated 09/06/02, Dr. Matthews wrote:

Return evaluation today notable increasing problems in the right knee and he requested the office visit........

Radiographs of the knee shows evidence of decreased medial joint space which is significantly advanced since his last visit several months ago.

The doctor wrote of the treatment given that day, and that Rothschild was to return in three weeks. The doctor further wrote in the 09/06/02 entry: "He is to be off of work until seen back. He is to contact the office in regards to having a letter sent to his attorney regarding the development of his predictable post traumatic degenerative joint disease of his knee."

In a September 17, 2002 letter to the claimant's attorney, Dr. Matthews included the following:

Mr. Rothschild, as you may or may not understand, suffers from a condition called Osteochondritis Dessicans of his mediofemoral condyle. A work injury on August 31, 1999 exacerbated that condition which led to subsequent arthroscopic evaluation and his subsequent office visits, physical therapy and multiple surgeries. He is still dealing with the same condition and the sequela of that diagnosis. In any event, over time his condition will progress as most degenerative knee conditions progress and lead to his inability to actively work as a carpenter. I have discussed this at length with Mr. Rothschild.

The problem and confusion that I have conveying to Mr. Rothschild is the apportionment of the original injury that Workmens compensation signed off on. The pre-existing condition that Mr. Rothschild has lends itself to the progressive nature of a degenerative condition and sporadic events such as working environment, conditions, etc. will undoubtedly exacerbate underlying symptoms. The recent events at work, not injury, have exacerbated underlying symptoms further which led to his office visit and his current treatments. I feel that Mr. Rothschild is headed for a more definitive knee procedure which will end up with a partial and/or total knee replacement.

The big question is who is responsible for coverage of these subsequent office visit, therapy and/or surgical treatments? I am unsure if I can give objective guidance in that area, based on my knowledge of the disease process that he has and the overlapping work conditions which provide an environment for the aggravation and exacerbation of the underlying disease.

A 09/20/02 treatment entry in the record indicated that on that date Rothschild returned for reevaluation of his knee. The doctor further wrote: "His knee symptoms have not significantly abated. He has developed some mild sciatica on the right side." After discussing examination findings, Dr. Matthews wrote that he thought this was more inflammatory process than a disc or any other problem. A Medrol Dose Pak was recommended, and it was written that Rothschild was to return in about three weeks, and was to be off work until seen back. In the next entry of 10/11/02, it was written that Rothschild was in "mostly for all of his social issues in regards to lack of workmens comp coverage"; it was noted that he continued to complain of medial pain. Dr. Matthews further wrote in the 10/11/02 entry: "The patient again is advised either uni or total knee arthroplasty in the future when his insurance issue is resolved. He can return to see me back on a prn basis. If any problems develop he will let me know."

Dr. Matthews wrote an October 28, 2002 opinion letter to the claimant's attorney concerning Rothschild's left ankle:

I feel that his left knee injury has aggravated the pre-existing condition of calcific tendonitis of his Achilles tendon and subsequently caused increasing ankle and heel discomfort. This condition is usually treated conservatively with symptomatic treatments such as non-steroidal anti-inflammatory agents and rest. I feel that the fact that he has shifted weight to the left lower extremity to protect and/or lessen the trauma to the right knee is a significant causative factor adding to the symptoms of the left ankle at this point.

The next treatment entry was dated 08/20/03, and it was noted that Rothschild came in for evaluation of his right shoulder. Dr. Matthews further noted:

He apparently fell down some steps injuring his right shoulder about three weeks ago. He sought attention from his

chiropractor, which failed to resolve his symptoms, and radiographs accompany him today. He describes having a giving way episode with his right knee, which has been chronic and landing on his right upper extremity. Since that time he has been unable to forward elevate and abduct the arm.

The doctor's impression on 08/20/03 was - rotator cuff tear right shoulder, traumatic and acute. An MRI was scheduled to verify. An 08/29/03 entry stated that the MRI showed a complete tear of the supraspinatus tendon, and that physical therapy was being scheduled as Rothschild did not want surgery, and an injection might by then administered if symptoms continued. The next entry of 09/03/03 noted that Rothschild was in for reevaluation of his right shoulder; it was written that an injection had been administered and physical therapy was continuing. The next entry of 09/24/03 noted that Rothschild was in for reevaluation of his shoulder, and that he had been attending outpatient physical therapy and his passive range of motion had improved. He was given a parking sticker for his knee as a permanent handicap sticker, Dr. Matthews further wrote in the 09/24/03 entry. The last treatment entry of 10/22/03 noted that Rothschild was in for a recheck of his right shoulder, and that he was moving it much better, and that he could now do most of his therapy at home. It was indicated in a 12/03/03 entry that Rothschild had cancelled this appointment date.

Dr. Matthews prepared a September 12, 2003 opinion letter to the claimant's attorney which included the following:

As I discussed with you later employment (subsequent to the August 1999 injury) which supposedly caused Mr. Rothschild to bend, stoop, twist and run on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. ...

Dr. Matthews, in a September 29, 2003 letter, addressed further inquiry from the claimant's attorney in regards to the right shoulder injury:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon. Mr. Rothschild wants to pursue nonoperative treatment for this problem and has been attending outpatient physical therapy...

With regard to the hypothetical that you posed in your letter, I believe that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

I am anticipating some improvement with continued physical therapy and conservative management. I think the end-result is unclear to me at this point, how much function Mr. Rothschild will gain from this conservative management. Mr. Rothschild may need surgical intervention with the shoulder.....

Medical records of HealthSouth Tri-County Surgery (No. E) were surgical records of procedures performed on Rothschild's right knee by Dr. Matthews on 01/19/2000 and 06/22/00. In the 01/19/2000 surgical report, Dr. Matthews noted a history of: "This 46-year-old gentleman is taken to the operating room at this time to undergo arthroscopic evaluation for continued knee swelling. Recent radiographs confirm OCD lesion with displacement in the medial femoral condyle." On 01/19/00, the preand post-operative diagnosis was the same - right osteochondritic dessicans of right medial femoral condyle with potential loose bodies. The procedure performed on 01/19/00 was: Removal of OCD lesion, debridement of medial femoral condyle.

In the 06/22/00 surgical report, Dr. Matthews noted a history of: "This 47-year-old gentleman is taken to the operating room at this time to undergo right knee arthroscopy. He is 6 months post right knee arthroscopy for debridement of the medial femoral condyle, old osteochondritic dissecans lesion. He continued to have swelling and marked pain with his knee joint. He was advised arthroscopic evaluation and re-debridement at this time. The risks and benefits including no guarantees for decreased pain have been explained to him, he understands this and is willing to proceed." On 06/22/00, the pre-operative diagnosis was - right knee medial femoral condyle defect; and the post-operative diagnosis was - same, chondromalacia patellofemoral joint.

Medical records of the Herman Area District Hospital (No. G) were records of physical therapy to the right knee by referral of Dr. Matthews after the 01/19/00 right knee arthroscopy. A Plan of Care/Referral form, dated 1/19/00, listed goals of increased range of motion, increase mobility, patient education and home program. The physical therapy record indicated that Rothschild was seen for the first time on 01/25/00; initial notations included - pain seems now as before surgery, and using ice a lot seems to decrease swelling. A $1 / 28 / 00$ entry included Rothschild's comments - "it feels like there s something right under my knee

cap", and that he reported the knee was still tight and sore. The final physical therapy treatment entry, dated 2/01/00, noted Rothschild's comments that his pain remained the same, and there was a lot of "clicking" in his knee, and his knee "gives out". The 2/04/00 entry indicated that Rothschild canceled due to a death in the family; the 2/08/00 entry stated that Rothschild was a no show/no call' the final entry of 2/11/00 stated that Rothschild was contacted and he stated that the doctor had discontinued therapy at that time. Further written in the 2/11/00 entry was that Rothschild felt there was something still wrong with his knee, and the doctor wanted him to rest it.; it was noted that Rothschild was discharged at that time, goals were unable to be met.

Medical records of Dr. Herbert Haupt, M.D. (No. 2) concerned the treatment of Rothschild during the period of August 1, 2000 through the completion of treatment on March 20, 2001. In the initial examination report of August 1, 2000, Dr. Haupt noted that Rothschild's chief complaints were - right knee/left shoulder injury. The doctor wrote the following about the history of present illness:

Mr. Rothschild presents today for evaluation of upper and lower extremity complaints. He drives a dump truck. On date of injury noted to be $8 / 30 / 99$, he was pulling a limb out of the cab shield on his dump truck, he lost his balance and fell about 12 feet to the ground, suffering injury to his left shoulder and right knee. He does not recall exactly how he landed, but does recall injury to these two areas.

Dr. Haupt then discussed the testing and treatment Rothschild had received, including the results of an MRI scan of the left shoulder and what was demonstrated upon two arthroscopic procedures performed on 01/19/00 and 06/22/00. The patient denies any previous history of complaints regarding his right knee or left shoulder prior to the work-related injury, Dr. Haupt wrote. The doctor's written assessment on August 1, 2000 included the following:

1) Right knee discomfort that appears to be an element of a preexisting condition as noted by early closure of the medial compartment just days following the work-related injury and evidence of an osteochondral lesion that appears to be potentially old and preexistent to the work-related injury. Certainly, that injury at work would certainly at minimum have acted a trigger to the preexisting condition. It is also possible that in fact it did knock loose that osteochondral lesion. It is very difficult to tell based just upon the information I have available today.... I am concerned about the degree of the lesion at the medial femoral condyle. The information available is just not clear enough to clearly determine how badly the medial femoral condyle may be affected by this lesion.

2) Left shoulder findings of a rotator cuff tear on the MRI scan may or may not be accurate. He certainly has significant degenerative changes noted at the AC joint as well as a Type III acromion, all considered preexisting. A full thickness rotator cuff tear has to be considered. This would be considered a direct result of the work-related injury.

An August 4, 2000 MRI (No. H) of the right knee performed at Missouri Baptist Medical Center at the request of Dr. Haupt noted the following clinical history: "Right knee pain increasing in severity over the last two weeks. The patient has had two prior knee surgeries." The second page of the August 4, 2000 right knee MRI, apparently containing the impression, was missing from this exhibit.

An August 4, 2000 left shoulder arthrogram (No. H-1) performed at Missouri Baptist Medical Center at the request of Dr. Haupt noted the following clinical history: "patient sustained an injury on 08-30-99 and has had shoulder pain since that time. Clinical concern is for rotator cuff tear. The written impression was - Complete rotator cuff tear; it was instructed to refer to the discussion above, which included - findings suggesting an old left clavicular fracture are identified.

In the next examination report of August 10, 2000 (See Exh. No. 2), Dr. Haupt wrote that an arthrogram and MRI scan had been completed, and demonstrated a complete rotator cuff tear. It was noted that a knee MRI had been completed and demonstrated the area of the osteochondral lesion without evidence of avascular necrosis. In the September 20, 2000 examination report, Dr. Haupt wrote the following: "Mr. Rothschild notes a marked improvement in his shoulder function with the help of therapy, but his knee complaint is becoming more and more bothersome. He complains of pain primarily anteriorly about that right knee. He denies any new injuries." Dr. Haupt's assessment on September 20, 2000 included the following:

1) Shoulder is actually doing quite well with conservative management in physical therapy.

2) Persistent complaints in the right knee that appear to be primarily patellofemoral in nature, but also has medial compartment discomfort in the area of the osteochondritis dessicans. Reviewing his operative notes, I note that during the first operative procedure performed in January 2000, it was noted that the "superior patellar pouch where the articular surface of the patella and corresponding femoral trochlea were found to be relatively unremarkable".

However, on the second operative procedure that was performed on June 22, 2000, it was noted that "the superior patellar pouch, the articular surface of the patella and the femoral trochalea were evaluated and found to have Grade II chondromalacia changes".. This suggests that there has been interval change within the area of the patellofemoral joint and this may presumably be a sequelae to the first operative procedure that may have resulted in contractures about the patellofemoral ligaments, resulting in malalignment and the development of the chondromalacia. This area seems to be the predominant source of his discomfort at this point. Treatment recommendations at this point by Dr. Haupt were:

Regarding his shoulder, he is doing well with the conservative management and it is appropriate to continue that effort. Regarding the patient's knee, with the persistent complaints in the area of the patellofemoral joint, I have given him two options for care and treatment. These include a corticosteroid injection with further efforts at therapy to see if we can break through his complaint or to proceed with arthroscopic management to assess the degree of injury at the OCD and also at that point, debride the patellofemoral joint and potentially perform a lateral release to improve mechanics.

A 10/13/2000 operative report of HealthSouth Surgery Center of West County (No. F) concerned the third right knee procedure which was performed by Dr. Herbert Haupt, M.D. The pre-operative diagnosis was: right knee - osteochondral defect, medial femoral condyle, patellofemoral joint chondromalacia. The post-operative diagnosis was: right knee - posterior horn tear of medial meniscus, quarter size osteochondral defect down to subchondral bone of medial femoral condyle with a larger circumferential area about $2-3 \mathrm{~cm}$ diameter of the medial femoral condyle and Grade chondromalacia, evidence of partial anterior cruciate ligament tear but considered competent, marked Grade 4 chondromalacia of the femoral trochlea, and Grade 2-3 chondromalacia of the patella.

In the November 21, 2000 examination report (See Exh. No. 2), Dr. Haupt wrote that Rothschild was doing well with his left shoulder, that he had no major complaints., and that the therapist noted he was progressing quite well with therapy. Dr. Haupt further wrote: "His right knee, however continues to be a complaint. He still ambulates with crutches and has a fair amount of swelling primarily posteriorly about the hamstrings." The doctor wrote that the knee was aspirated of serous fluid, and then was injected with medication; physical therapy was continued. Dr. Haupt wrote in the next examination report of December 5, 2000 that Rothschild was doing much better with his knee, that he had seen some improvement in soreness and swelling with the aspiration and the injection. Examination findings on December 5, 2000 were:

Examination today demonstrates he lacks full extension by just a few degrees. At this point his swelling is markedly improved. He is able to ambulate without the use of crutches.

Shoulder examination demonstrates passive range of motion is full. His active abduction and external rotation strength is approaching $4 / 5$.

Dr. Haupt wrote that physical therapy would continue for three more weeks and Rothschild would continued with the medication Ultram for discomfort. In the next examination report of January 2, 2001, Dr. Haupt wrote the following: "Mr. Rothschild was doing well until about 2 weeks ago. He then developed increasing swelling and discomfort about his knee. He is doing well with his shoulder, with no major complaint." Dr. Haupt's assessment on January 2, 2001 was:

Persistent inflammation and discomfort with evidence of medial compartment degenerative changes noted secondary to work related injuries. The patient's increased swelling is secondary to rebound after the injection has worn off.

The treatment plan included continued physical therapy, and a valgus unloading brace "to unload that medial compartment to see if that will provide some symptomatic relief and allow that medial compartment to have a better opportunity for healing", the doctor wrote. In the January 22, 2001 examination letter, it was written that Rothschild was noticing that his left shoulder was doing well with home therapy but it seemed to be getting weaker, and that the right knee was still quite uncomfortable with attempts at physical therapy which was confirmed by the therapist's notes. Physical therapy was continued for the knee and resumed for the left shoulder. The next examination report of February 12, 2001 noted that Rothschild reported the brace had really helped his right knee discomfort and without the brace he still had a fair amount of medial compartment discomfort; it was written that the left shoulder was progressing in therapy. The doctor further wrote: "Today he mentions that he is having a complaint of numbness in his right leg. He has pins and needles down the leg as he is driving for any length of time. He indicates he has had this tingling and numbness even before he had the sport brace applied. He does not recall exactly when it started but it seemed that to be sometime after the most recent surgery." Dr. Haupt noted the following in his next examination report of February 27, 2001:

His major complaint at this point is numbness that occurs with prolonged sitting activities while driving or even prolonged standing activities. He complains of the whole leg becoming nub, especially distal to the knee. He has completed the workup by Dr. Peeples which notes a normal neurologic examination on electrical studies. This rules out any significant neurologic dysfunction causing his complaints.

Examination findings on February 27, 2001 were:

The right knee has minimal to no effusion. He can actively extend the knee. He is able to ambulate but still has a mildly antalgic gait but it is improved.

Shoulder examination demonstrates a full range of motion. No dysfunction noted.

The assessment on February 27, 2001 was: "This patient overall has improved quite well regarding his knee complaints as well as the shoulder complaints." In the treatment plan section of the February 27, 2001 report, Dr. Haupt wrote that his recommendation was for Rothschild to resume full duty. "He apparently has an opportunity to pursue work activities outside of his current employment and he wants to consider that.", the doctor wrote. Physical therapy was continued, geared more to doing piriformis stretches and strengthening as well as hi range of motion and strengthening, and Rothschild was to return in 3 weeks so that his

overall progress could be assessed. A March 7, 2001 form completed by Dr. Haupt was in the record and indicated that Rothschild was placed on limited duty - sit down activities only; the form indicated Roloff Trucking as the employer.

Dr. Haupt prepared a March 20, 2001 examination report in which he wrote that Rothschild indicated he did see some improvement in his leg pain with the injections at trigger points performed by Dr. Yadava and with the modifications in his physical therapy program. It was written that Rothschild further indicated that his knee and shoulder were actually doing quite well though he still has the complaint of pain down that leg with prolonged sitting or driving or standing, and a tingling and numbness that occurs in the knee on down the lateral and posterior aspects of the right leg. Examination findings on March 20, 2001 were:

Examination of the right knee shows full extension and flexion. No effusion. He is stable to varus and valgus stress. Shoulder range of motion is considered full. Good active abduction and external rotation strength.

No obvious sensory deficits on today's examination. Motor, sensory, and DTR's are intact.

Dr. Haupt's assessment in the March 20, 2001 examination letter was: "I feel the patient has reached a point of maximum medical improvement regarding orthopedic care regarding his shoulder and his right knee." Dr. Haupt wrote that he would defer further medical management to Dr. Yadava. Rothschild is continued on light duty status until he sees Dr. Yadava next week, Dr. Haupt further wrote, and the written restrictions were - "steps and stairs only to enter a truck, car or building. Limited lifting of 50 pounds and no ending or squatting activities". Dr. Haupt assessed permanent partial disability for Rothschild in the March 20, 2001 examination report:

Having reached maximum medical improvement, in my opinion, this patient has a permanent ratable disability of six percent ( 6 % ) at the left shoulder compensating for a possible full thickness rotator cuff tear that has been effectively treated with conservative management.

Regarding the patient's right knee, in my opinion, he has a permanent ratable disability of seventeen percent (17\%) at the right knee secondary to work related injuries to compensate for his significant osteochondral lesion of the medial femoral condyle and torn medial meniscus.

"He has been advised to wear the valgus unloading brace for a prolonged period of time to help symptomatic relief of his discomfort", Dr. Haupt further wrote.

In a separate March 20, 2001 examination report, Dr. Haupt wrote that Rothschild's chief complaint was - left ankle discomfort. In the history section of the report, Dr. Haupt wrote the following:

Mr. Rothschild presents today for evaluation of a left ankle complaint. He indicates that he noticed this discomfort just recently after he discontinued, voluntarily, Vioxx medication prescribed or him by me. After discontinuing the Vioxx medication within in about two days he developed the onset of soreness about the lateral aspect of the left ankle. He denies any previous history of complaints or injury except that he did note that he had some similar discomfort about the left ankle in the fall of 2000 while I was treating him when he discontinued the Vioxx for a brief period of time and had an intermittent period of soreness about the left ankle.

He does admit to having no ankle complaints following the work related injury or in the interval until I began treating the patient. He denies any other injury to the ankle that he is aware of. (sic)

Examination findings on March 20, 2001 were:

Examination today demonstrates, by his own admission, a 50 % improvement in the soreness he noted over the weekend. Examination demonstrates no apparent swelling. Range of motion is considered intact and full. Stable to varus and valgus stress. He complains of soreness, however, on anterior drawer as well as with varus stress of the ankle. His anterior drawer is considered negative. He is tender to palpation at the anterior talofibular ligament. There is no swelling noted. His Achilles tendon is normal. When he weight bears his arch appears to be normal. There is no plantar aspect of pain noted.

Routine plain films are really rather unremarkable. No acute or chronic changes noted. These are rather benign appearing plain films.

Dr. Haupt's written diagnosis on March 20, 2001 was:

Evidence of some low grade inflammation of the left ankle, which I do not feel is a direct result of the work related injury. It is possible that he has had some inflammation about that ankle was masked with the use of the Vioxx medication and became apparent upon discontinuing the anti-inflammatory medication and is more or less a rebound effect.

Dr. Haupt wrote of his treatment recommendation in the March 20, 2001 report:

Treatment recommendations are that he can pursue appropriate strengthening on his own, and we taught him a few exercises. In addition, I recommend the use of over-the-counter anti-inflammatories in an effort to cut down on some of the

inflammation about the ankle. This can be in the form of Aleve.

There is no formal treatment under worker's compensation for this complaint, and he can be released from care advocating the importance of appropriate home exercises.

Dr. Ravi Yadava, D.O. record (No. 3) began with a March 14, 2001 examination report in which Rothschild's chief complaint was noted as - right leg numbness and tingling. The August 30, 1999 work related accident was discussed, and Dr. Yadava wrote that Rothschild relayed that he has been in pain ever since the accident; it was noted that stated that sitting reproduced numbness and tingling on the lateral aspect of his right leg. Dr. Yadava wrote of Rothschild's medical history, his occupational history, and of his examination findings.

The doctor included the following in the Summary Section of his March 14, 2001 report:

He has had a total of three arthroscopic procedures on the right knee. He has had persistent pain and impairment. He has done relatively well with his medial unloading brace. He has done relatively well with his therapeutic program. He is having some numbness and tingling. His electrodiagnostic study is unremarkable. He does not have anything on his physical exam that concerns me for radiculopathy, plexopathy or true neurogenic basis for his pain and impairment. I think his numbness, tingling and pins and needle sensation is referred pain of a myofascial etiology. The kind of modification to his rehab program we have provided today will serve him quite well and help him achieve (?hi?)s goals in a more timely and cost effective fashion. I think these trigger point injections will facilitate this and minimize the use of medications. I feel he will not require medications and/or procedures in the long term......

In his last examination report of March 28, 2001, Dr. Yadava wrote that Rothschild relayed that he was having a number of problems with the medication; he is doing better now, the doctor noted. It was noted that Rothschild was not on any medication at that time. The doctor wrote of his findings upon examination of Rothschild which were:

In the seated position, he has remarkable improvement in his soft tissue evaluation along the peroneus musculature. Previous area of trigger point injection have resolved. He has some nodularity, but no taut bands or trigger points. There is no vasomotor instability or signs consistent with RSD. Dorsal and pedal pulses are symmetrical. His neurologic evaluation is stable and unchanged. His DTR's are symmetrical. His hamstring flexibility is unchanged. He measures 75 degrees bilaterally. His quadriceps mechanism still shows evidence of disuse atrophy. His knee examination is unimpressive. He does not have any acute features. He does not have any swelling, effusion of synovitis.

Dr. Yadava wrote the following in the Summary section of his March 28, 2001 report:

...He states he is doing better. He does have objective improvements in the previous areas of injection. The only recommendations I would have for him at this time is to continue with his VMO strengthening exercises, utilize his bracing as directed and continue with his hamstring and gastroc soleus flexibility program. There is no formal physical therapy I feel is indicated. There are no other diagnostic studies or therapeutic intervention I feel is indicated. I do not think he needs ongoing use of medications. He does tell me he is anxious to return to his full time, unrestricted capacity. I think it is safe and appropriate. I did tell him it is reasonable to expect to return to work in a comfortable fashion I think there is some deconditioning that has occurred. He may have increased soreness that should be well controlled through conservative mechanisms as outlined in detail here in the office. I think he is at maximum medical improvement from a rehabilitation perspective. There are no other diagnostic studies or therapeutic intervention I feel is indicated.

A March 28, 2001 Injured Workers Status Report form completed by Dr. Yadava was in the record and indicated that Rothschild was being released and was being returned to work without restrictions for usual job duties on March 28, 2001.

Dr. Shawn L. Berkin, D.O. prepared a report, dated May 9, 2001, after performing an evaluation of Rothschild for the purpose of a rating as it related to the work related injury occurring on August 30, 1999. (See Exh. A, Attachment Roloff Dp. Exh. No. 2) The doctor discussed the August 30, 1999 work related injury while in the employ of Roloff Trucking. Subsequent treatment was discussed by Dr. Berkin through what he termed a re-evaluation by Dr. Haupt on 01/22/01 at which time Rothschild was continued on physical therapy for his right knee and left shoulder and was continued on working with limited duty restrictions. "The patient stated that he never returned to work for Roloff Trucking following his treatment and is currently employed as a trim carpenter for the Carst (sic) Construction Company", Dr. Berkin wrote. The doctor noted that Rothschild had worked for Roloff Trucking for ten years. Present complaints of Rothschild noted by Dr. Berkin in his May 9, 2001 report were - pain and tenderness to the right knee, swelling to the knee and the knee gives out; stiffness to the right knee and symptoms worse with weather changes; Rothschild reported limited motion of the knee and his knee symptoms are aggravated by kneeling and squatting; he had complaints of weakness to his left arm and his shoulder symptoms were aggravated by lifting. Dr. Berkin discussed his examination findings of May 3, 2001 which included: a. height - 73", weight - 268 pounds; b. left arm - no swelling or deformity, shoulders level in sitting position, upon palpation tenderness over the anterolateral surface involving that acromioclavicular joint extending into the left upper arm, stressing left shoulder failed to demonstrate any joint instability but a prominent clunk was present on passive circumduction of left shoulder, it was indicated that range of motion of left shoulder was decreased in all planes, muscle strength testing showed weakness of left arm on flexion and extension against resistance; c. right shoulder - range of motion was normal; d. right leg -

wearing brace furnished at time of treatment, upon removal of brace generalized swelling without obvious joint effusion, walked in a normal gait without evidence of a limp, generalized weakness localized over the anteromedial surface, stressing knee failed to demonstrate any joint instability but patient complained of pain to his knee on valus and varus stressing, it was indicated that flexion and extension range of motion was decreased, weakness of left leg on extension of the left knee against resistance, able to stand on toes and heels without difficulty but unable to squat because of complaints of pain in his right knee; e. left knee - normal range of motion. Dr. Berkin's final impressions were: 1. Rotator cuff tear of the left shoulder; 2. Impingement syndrome of the left shoulder; 3. Right knee strain; 4. Tear of the medical meniscus of the right knee; 5. Tear of the anterior cruciate ligament of the right knee; 6. Osteochondritis dissecans of the right knee; 7. Status-post arthroscopy of the right knee with debridement of the medial femoral condyle and removal of osteochondral lesion 01/19/00; and removal of osteochondral lesion 01/19/00; 8. Status-post arthroscopy of the right knee with arthroscopic debridement 06/22/00; 9. Status-post arthroscopy of the right knee with medial meniscectomy, Debridement of the anterior cruciate ligament, shaving, debridement and chondroplasty of the medial femoral condyle and femoral trochlea and lateral retinacular release.

In the conclusion section of his May 9, 2001, Dr. Berkin discussed the treatment Rothschild had received finally writing that following the October 2000 surgery by Dr. Haupt Rothschild was treated by Dr. Haupt including attending physical therapy through January of 2001. "The patient is currently employed as a trim carpenter for Carst Construction and is receiving no treatment for his injuries at this time", Dr. Berkin wrote.

Dr. Berkin wrote of his assessment as to disability:

c. A permanent partial disability of 30 % of the left upper extremity at the level of the shoulder for the rotator cuff tear of the left shoulder associated with an impingement syndrome.

d. A permanent partial disability of 55 % of the right lower extremity at the level of the knee for the right knee strain associated with tears of the medial meniscus and the anterior cruciate ligament and an osteochondral lesion involving the medial femoral condyle necessitating three surgical procedures on his right knee. I feel the patient has an additional permanent partial disability of 10 % of the right lower extremity at the level of the knee for the degenerative arthritis of the right knee that pre-existed his injury which to my knowledge, has been asymptomatic prior to his injury.

Dr. Berkin's treatment recommendations were:

The patient continues to have significant symptoms to his right knee and I recommend the continued use of his knee brace in order to stabilize his knee. I recommend that the patient be restricted from prolonged standing or sitting and that he be restricted from kneeling, stooping or climbing.

With respect to his left shoulder, the patient continues to remain symptomatic and indicated that he does not wish to have surgery on his shoulder because he feels that surgery has not really helped his knee. With respect to his left shoulder, I recommend the patient be restricted from lifting with his left arm no more than twenty-five pounds from the floor to the waist and fifteen pounds from the waist to the shoulder. I recommend that the patient avoid working with his left arm above the level of his shoulder.

The patient has indicated that he is currently working as a trim carpenter but if he continues to have symptoms at his current level of activity, I recommend that he consider alternative employment that his less physically demanding. (sic)

Medical records of Washington Chiropractic Clinic, P.C. (No. K) concerned prior treatment of Rothschild in 1995.and in July of 1999 for cervical spine complaints.

A 12/31/01 entry noted complaints of neck pain that radiated to the right upper extremity and tingling in the fingers; it was noted that there had been no trauma, Rothschild had woke up with the symptoms.

Dr. J. W. Morrow, D.O. prepared an October 8, 2002 evaluation report (See No. A, Attachment No. 3); the doctor wrote that he was seeing Rothschild for injuries sustained in the August 1999 work related injury. It was noted that the claimant relayed that he had been pain free in his right knee and his left shoulder prior to the August 1999 work related injury. Dr. Morrow discussed Rothschild's present complaints on involving the left shoulder and the right knee:

He relates if he attempts to move the left arm in lifting activities above the shoulder level this causes pain in the shoulder joint. Sudden movements of the arm at the shoulder tend to cause pain. Since he is not working for a period of time, the pain occurs about two of three times a week in the left shoulder with such movement.

He relates standing, walking, squatting, going up and down steps, lifting, pushing and pulling activities all tend to cause the severe pain in the right knee, and he attempts to avoid these activities since he is not working at this time.

Dr. Morrow's diagnoses concerning the August 1999 work related accident were: a. traumatically induced sprain of the left shoulder, and an MRI study showed a complete tear of the supraspinatus of the rotator cuff; and b. traumatically induced sprain of

the right knee, Dr. Matthews noted that upon the 10/20/99 surgery by Dr. Matthews there was evidence of old osteochondritis dessicans and degenerative changes about the knee joint. Dr. Matthews noted the osteochondral defect was pretty significant. Dr. Morrow noted additional subsequent treatment, including the subsequent two surgeries; Dr. Haupt took x-rays on January 15, 2002, Dr. Morrow wrote, "showing stenosis of the medial compartment and some patellofemoral narrowing with a flat spot on the lateral medial femoral condyle and being diagnosed as posttraumatic osteoarthritis of the right knee, at which time the doctor notes the patient may require surgery in the future, including a possible total knee arthroplasty procedure. ". Dr. Morrow wrote his recommended restrictions for the left shoulder and right knee; concerning the right knee, Dr. Morrow further wrote: "The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the right knee, particularly the medial knee joint space where he is approaching bone on bone". Dr. Morrow assessed permanent partial disability on October 8, 2002:

Based upon this examination, there is a 40 % permanent partial disability of the left upper extremity at the level of the shoulder attributable to the injury of 8-29-99.

Based upon this examination, there is a 65 % permanent partial disability of the right lower extremity at the level of the knee. Of the 65 %, we allow 32 % preexisting with the possibility of the preexisting osteochondritis dessiccans. Even though asymptomatic immediately prior to the injury in question according to the patient, and the remaining 321 / 2 % due to the aggravation of the injury in question and the necessity for the three procedures that had been performed arthroscopically, two by Dr. Matthews and one by Dr. Haupt.

Dr. Morrow wrote of his recommended restrictions, and finally wrote:

The knee condition is subject to further aggravation in the future. The patient may at some time in the future require a total knee replacement due to developing osteoarthritis involving the tight knee, particularly the medial knee joint space where he approaching bone on bone.

The combination of the disability of the left shoulder and the right knee would provide a greater overall disability than their simple sum. I would defer employability to a vocational expert in that regard.

Additional treatment records from Fischer Chiropractic Center (No. D-1) concerning the treatment of Rothschild in August 2003 for right shoulder complaints. The record indicated that Rothschild was referred by his father. The initial entry of 08/04/03 noted Rothschild's complaints of soreness in the right shoulder and an inability to move it. Rothschild's history was noted as: "Says that the pn. came from a fall down the steps". The entry indicated treatment given to the right shoulder. The next and final entry of 08/05/03 noted that Rothschild still had soreness in the right shoulder and the swelling had gone down. He has a lot of swelling \& pain in the left ankle, was noted; examination findings for the right shoulder and left ankle were noted.

Medical records from Herman Area District Hospital (No. G-1) reflected treatment of Rothschild on 08/06/03 for left ankle and right shoulder complaints. Attending physician, Dr. Anjna Sethi, M.D., noted the history as: "Fell down the stairs at 4:30 a.m. and says that he has been having pain moving the right shoulder. Denies any other complaints. He does have a past medical history of rotator cuff pathology on the left shoulder and currently takes Vioxx." A 08/06/03 x-ray report noted the following findings: a. left ankle - normal left ankle; and b. right shoulder - 1. sclerotic changes along the greater tuberosity suggesting possible chronic rotator cuff pathology, 2. Moderate degenerative changes of the acromioclavicular joint, and 3. no evidence for fracture or dislocation. Dr. Sethi's assessment was: "History of fall. Pain right shoulder and left ankle." Treatment consisted of a sling for the right shoulder and recommendation to avoid weight bearing on the left ankle, and Tylenol 650 mg ; the doctor wrote that Rothschild had been asked to follow up with his regular doctor, and that he might need further MRI studies by the regular doctor.

An August 26, 2003 MRI of the right shoulder (See, No. J) ordered by Dr. Matthews noted the following impression: 1. Complete tear of the supraspinatous tendon; 2. Acromioclavicular joint hypertrophy and narrowing of the acromiohumeral space, and 3. Large joint effusion.

Dr. Thomas Matthews, M.D. testified by deposition on behalf of the employee. (No. B) A board certified orthopedic surgeon, Dr. Matthews stated that he first saw Rothschild as a patient on 10/20/99. The doctor discussed the history relayed by Rothschild:

"He related a history of while at work, he sustained an injury to his right knee and left shoulder while pulling something out of a pickup truck bed, I believe. He apparently slipped and fell at that time in late August - I believe that would be 1999 - twisting his knee and injuring his left shoulder at the same time." (Matthews Dp. pg. 11)

Dr. Matthews agreed that the date of injury Rothschild relayed to him was August 30, 1999, and then discussed his examination findings:

"His examination was primarily confined to his left shoulder and his right knee. His left shoulder was found to have a

normal neurologic and vascular or blood vessel status.

His range of motion of his shoulder was felt to be excellent. He was tender overlying the lateral or outside aspect of the shoulder. There was also some tenderness noted overlying the acromial clavicular joint. That's the intersection of the clavicle and the point of the shoulder." (Matthews Dp. pg. 12)

"I hadn't gotten to the right knee, but instead of paraphrasing, I will try to summarize the right knee examination.

The patient's motion was good. The patient's swelling was minimal. He did lack some extension or terminal extension of his knee joint. He couldn't straighten or flatten out his knee joint all the want. (sic) X-ray examinations were obtained of his knee joint, which showed a loose fragment of cartilage and bone and evidence of an old osteochondritic dessicants lesion and some degenerative changes. And the patient was advised a corticosteroid or 'Cortisone,' quote/unquote, shot into the right knee, and he was also advised to obtain an MRI of his left shoulder to evaluate his rotator cuff." (Matthews Dp. pg. 16)

Dr. Mathews stated that the injection was given at the office visit, and that an MRI was obtained "which showed he had a compete tear, somewhat surprising, of his supraspinatus tendon, which is the foremost rotator cuff tendon that gets ruptured usually". (Matthews Dp. pg. 16) The doctor explained the function of the supraspinatus tendon: "Its function is to elevate and flex your shoulder and arm above the level of your shoulder." (Matthews Dp. pg. 17) Dr. Matthews opined: "I think (the osteochondritis dessicants in the right knee) preexisted the fall off the truck". (Matthews Dp. pg. 19) The following question and answer then occurred:

Q. (By Mr. Gerritzen) Assuming as a fact this man says he's never had any problems with his right knee prior to the fall of the truck on October 30, 1999, landed on the right knee after a 12 -foot fall, approximate 12 -foot fall, had pain ever after. In your opinion, was the osteochondritis dessicants activated or aggravated by that fall?

A. It seems like it was. (Matthews Dp. pg. 22)

Osteochondritis dessicants can be caused by trauma or can be idiopathic; "(M)ost of the time we are at a loss as to what causes it", the doctor said. (Matthews Dp. pg.19) The doctor stated that he sees people every day that have asymptomatic knees that have preexisting problems with their knees that is exacerbated and/or aggravated by recent trauma. "We can only go on what patients tell us, and if they're asymptomatic prior to presenting with a recent injury and they're not having problems, then we can only assume that they didn't have problems", the doctor said. (Matthews Dp. pg. 23)

Dr. Matthews stated that he performed arthroscopic evaluation of Rothschild's right knee joint on two different occasions, 01/19/2000 and 06/22/2000. In his discussion of the procedures, Dr. Matthews testified:

"In any event, it was found that he had, on the first surgery, the osteochondritic lesion that we're talking about, which was about the size of a nickel, was a cartilage bone fragment in a defect of the medial femoral condyle. That's where it originated from but this fragment was loose, and it could be probed and moved around that area that it was supposed to be sitting in.

In adult patients, the treatment for that entity is removal of that fragment, and that was done. So in a, more or less, piecemeal fashion, that fragment of bone and cartilage was resected behind the crater where this OCD - we'll refer to it as an OCD lesion for now - resides. That crater is exposed raw bone. It should have cartilage on the end of its. So in an effort to remedy or at least palate the problem, the crater is drilled with multiple drill holes to try to stimulate a blood supply to form near the end of this crater." (Matthews Dp. pg. 24)

Dr. Matthews stated that he removed probably about one-fifth of the extent of the articular surface of the condyle with the removal of the fragment; the doctor stated that the condyle articulates with the tibia bone and agreed that it is necessary for movement of the knee. Discussing the second surgery of June 22, 2000, the doctor testified:

"That was essentially a re-debridement of the medial femoral condyle defect and also a patellar chondral debridement, which again means you take a shaving instrument........and you sculpt off the sharper edges of this particular areas of his medial femoral condyle. And on the back side of his patella, he had some arthritic changes." (Matthews Dp. pg. 26)

"The reason we got to the second surgery is because of the symptoms. And in spite of conservative measures, which, I believe, I may have given him a steroid injection in the interim, and that wasn't really effective, I was going to look back in his knee and see exactly where we stood at that point.

"The patella, in particular, I felt needed to be addressed at that time." (Matthews Dp. pg. 27)

Dr. Matthews was asked his opinion of whether or not both of the surgeries were necessary as a result of the fall off the truck on August 30, 1999, and he answered:

"I feel that, again, if a patient presents that has an asymptomatic history and now is symptomatic, and he has this particular lesion, so then I do address it surgically. So I can only conclude that the fall is a concomitant factor that results in

the need for the operation.

"Well, I have a - I don't know what you guys mean by substantial. But yes, I feel that it's a substantial factor in regards to the development of his symptoms." (Matthews Dp. pg. 28) (Ruling: Employer Roloff's objection on grounds of Seven Day Rule is overruled. (Matthews Dp. pg. 28)

Dr. Matthews stated he believed that the treatment was proper. The doctor discussed the follow-up treatment he gave to Rothschild: "Well, Mr. Rothschild has been seen multiple times after this second surgery, perhaps a dozen times after the second surgery. He has had, I believe, physical therapy. He has had injections of corticosteroid medication, and he's had a lot of advice given in that time also." (Matthews Dp. pp. 28-29) Dr. Matthews agreed that he knew that Rothschild had additional surgery by Dr. Haupt after he saw Rothschild for the two surgeries.

The doctor was asked if Rothschild's knee would ever be the same as it was prior to the fall of August 30, 1999. Dr. Matthews answered "No", and explained: "The sequela of the knee surgery is a progressive arthritic condition." (Matthews Dp. pg. 30)

Dr. Matthews stated that he believed the fall off of the truck on August 30, 1999 was the cause of the left rotator cuff injury Rothschild sustained. The doctor stated that at the current time he was not sure as to Rothschild's symptoms in his left shoulder, but further testified: "Most authorities would feel that or believe that an untreated rotator cuff tear will also progress to develop what's called posttraumatic or rotator cuff arthropathy, which is basically arthritis of your shoulder." (Matthews Dp. pg. 30)

Dr. Matthews stated that there was no reference to the left ankle in his record from the claimant in his October 20, 1999 notes. The doctor testified: "So that final visit or that visit as of 10/11/02 was the end of the treatment cycle for that postoperative period after the second arthroscopy. Then the patient disappeared from my practice until he revisited me on 8/20/03." (Matthews Dp pg. 38)

The doctor discussed treatment of Rothschild in 2003 referencing his treatment notes. (Ruling: Employer/Insurers' objections are overruled. Matthews Dp. pg. 38) Rothschild returned to my office on August 20, 2003 and the history at that time was regarding a recent right shoulder injury, Dr. Matthews said, Rothschild stated that he fell down some steps at home and described a giving way episode with his right knee. His examination at that time was that he had torn his rotator cuff of his right shoulder, the doctor said. An MRI was recommended , Dr. Matthews testified, "and his MRI showed that he had a complete tear of his supraspinatus tendon of his right shoulder". (Mathews Dp. pg. 39) We talked about physical therapy and about surgery, and I believe Rothschild was sent to physical therapy, the doctor said. He was reevaluated on September 3, 2003 after attending physical therapy and was given an injection at that time; at the next appointment on September 24, 2003 his symptoms were improved and at the last appointment on October 33, 2003 he had regained his motion in his shoulder and it was recommended that he continue a home exercise program, Dr. Matthews stated. The doctor stated:

"I'll restate what I think the question is, which is, did the preexisting problem with the patient's right knee lend itself to a fall or giving way episode that injured the patient's right shoulder. According to the history, that's correct, and, yes, it's conceivable that that's what caused the right shoulder injury." (Matthews Dp. pg. 41)

Dr. Matthews noted that between the 9/24/03 and the 10/22/03 visits "there was a letter written that summarizes those visits in relationship to the right shoulder, I believe." (Matthews Dp. pp. 39-40) In a September 29, 2003 letter to the claimant's attorney (included in the medical record attached to the deposition transcript) Dr. Matthews wrote the following:

Mr. Rothschild did present with the story as you had described to me secondary to his knee giving way. He does have some pre-existing left ankle arthritic changes, which may have contributed to his fall at home. In any event, he has sustained a rotator cuff injury to his right shoulder, verified with MRI showing a complete tear of the supraspinatus tendon......

With regard to the hypothetical that you posed in your letter, I believe that that if Mr. Rothschild's knee and ankle and/or both, gave way and/or had increasing pain due to a pivoting or twisting mechanism, that a subsequent fall could result injuring his right shoulder, i.e., his rotator cuff.

The doctor was asked at the deposition if he had made reference in his September 29, 2003 letter that Rothschild may need surgical intervention; Dr. Matthews wrote in his letter:

I am anticipating some improvement with continued physical therapy and conservative management. I think the end-result is unclear to me at this point, how much function Mr. Rothschild will gain from this conservative management. Mr. Rothschild may need surgical intervention with the shoulder....

Dr. Matthews was asked his opinion of what effect, if any, would subsequent employments in carpentry have on Rothschild's right knee and shoulder. The doctor answered:

"Mr. Rothschild is a laborer. I believe he's a carpenter?

"Which requires stooping, bending, squatting. So his occupation plays a role in the amount of time that he's up on his knee, and the physicalness of his job adds to the stress that his knee sees. So, consequently, those particular type jobs will promote or progress his degenerative change in his knee joint." (Matthews Dp. pg. 44)

"...in general, I think it would be agreed upon, with medical certainty, that laboring type jobs such as his would aggravate and exacerbate and progress his particular condition, whether it be one job or 17 different jobs." (Matthews Dp. pg. 46) (Ruling: Employer/Insurers' objection on grounds of Seven Day Rule is overruled. Matthews Dp. pp. 44 and 45 and 47 )

In Dr. Matthews' treatment record attached to the deposition transcript was a September 12, 2003 letter by the doctor to the claimant's attorney in which Dr. Matthews wrote the following:

As I stated in that meeting I believe that Mr. Rothschild had a condition of his knee, namely osteochondritis dissecans that was exacerbated and/or aggravated by a work injury. This necessitated an arthroscopic evaluation of his knee by myself and an additional orthopedic procedure at a later date. This individual subsequently has sustained permanent partial impairment of his knee which from time to time with activity causes him symptoms which include swelling and pain. These symptoms are aggravated and exacerbated by the chronic and progressive nature of his condition.

As I discussed with you later employment which supposedly caused Mr. Rothschild to bend, stoop, twist and turn on his knee in 2001 and subsequently in 2002 exacerbated his symptoms to the point that he has had acceleration of the progressive nature of the degenerative condition of his knee joint.

I also believe most recently Mr. Rothschild described to me that he fell secondary to his knee injuring his right shoulder and Mr. Rothschild is subsequently in the process of being treated for a rotator cuff tear as a result of that fall.

Due to this individual's labor intensive occupation, the fact that he has a progressive degenerative condition of his knee joint which will undoubtedly end in a more definitive orthopedic surgery such as total knee replacement, and the condition of the rotator cuff tear recently diagnosed, I feel that this patient is totally disabled from his current work. (sic)

Dr. Matthews was asked at his deposition his opinion of whether or not he felt Rothschild was able to work or get a job, and the doctor answered:

"I'll just be completely honest about this. I told Mr. Rothschild at some time, not documented in any of my notes, but I remember the conversation. 'Charlie, you're gifted; you have carpenter skills. You shouldn't be lifting and pulling heavy objects. You probably ought to be making cabinetry and having a shop and doing that sort of work, but I don't think you ought to be framing and installing and lifting.' And that conversation took place. And, as I say, I tried to counsel him during this process of his knee, and that's where we've left it.

"I think - and this is speculative. I think a contractor that frames houses would have a hard time hiring Charlie Rothschild. However, I think a contractor that has a small cabinet shop or more precise work that is - doesn't have the heavy labor requirements may find his skills beneficial." (Matthews Dp. pp. 47-48) (Ruling: Employer/Insurer Roloff's objection on grounds of Seven Day Rule is overruled. Matthews Dp. pg. 48)

Dr. Matthews was asked what physical limitations, in his judgment, did Rothschild have, and the doctor answered:

"Based objectively on Mr. Rothschild's orthopedic pathologies, which includes two rotator cuff tears - -

"- - right and left rotator cuff tears, and the right knee post osteochondritic dessicant lesion, debridement/degenerative disease - - ....

"His restriction would include moderation of overhead activity. I can't quantify what that means. Less than normal overhead activity because of the rotator cuff disease on the right and left shoulder. Moderation of squatting, stooping, bending, pivoting, and turning on his knee joint. If he does too much activity with any one of those joints, he will become more symptomatic and he will progress his disease." (Matthews Dp. pp. 52 and 52)

On cross examination by Roloff Trucking (See, No. B-1), a September 1999 x-ray report of Rothschild's knee taken about eight days after the August 30, 1999 work related accident in Dr. Matthews' record was noted; Dr. Matthews stated that findings on this x-ray of -- an osteophyte from the superior pole of the patella, some calcification seen at the attachment of the muscle at the patellar region and narrowing of the medial femoral/tibial joint space were all preexisting conditions that could cause pain or other symptoms; the doctor stated that in regards to two small calcific densities on the tunnel view and the tunnel itself seen on the x-ray,

no one knew if this was a preexisting condition, but further stated that it could cause pain or discomfort. Dr. Matthews agreed that the radiologist's conclusions on the September 1999 x-ray report -- that Rothschild had osteoarthritis of the femoral patellar and medial femoral/tibial joint space -- were pre-existing conditions. Dr. Matthews agreed that the OCD condition in the knee that he found had been present in Rothschild's knee for years prior to when the September 7, 1999 had been taken. The doctor agreed that the arthritis and the OCD are progressive degenerative conditions which are not necessarily caused by trauma and can develop even in the absence of trauma. Dr. Matthews was queried - would he have expected there to be any significant difference in the x-ray appearance if an x-ray had been taken the day before the August 30, 1999 accident as opposed to this x-ray that was taken on September 7, 1999. "I would not expect there would be any difference, Dr. Matthews answered. (Matthews 11/19/04 Dp. pg. 75) (Ruling: Second Injury Fund's objection is overruled. Matthews 11/19/04 Dp. pg. 75) The doctor was queried, wasn't it true in his practice that people who presented to him and were found to have OCD presented without a history of any trauma. Dr. Matthews responded:

"I would say that is true that they present in the absence of trauma, and they also present in the absence of symptoms, and that the finding of OCD is usually a radiographic finding that, Oh, look what we found. So most of the people that present with OCD don't present because their knee is really bothering them that much or - they're just not symptomatic." (Matthews 11/19/04 Dp. pg. 78) (Ruling: Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 77-78)

Dr. Matthews stated that the chondromalacia found at the time of his second surgery would not have been caused by the first surgery in January 2000. Agreeing that the osteoarthritic condition and the OCD lesion were present in the knee before August 30, 1999, Dr. Matthews further testified:

"...I would just state that the progression of (the osteoarthritic condition and the OCD lesion) would aid in the progression of the chondromalacia in so far as small fragments of cartilage deteriorating from degenerative joint disease or osteoarthritic and/or the OCD essentially swim around in someone's joint and they cause abrasion to the end of the bone and/or joint." (Matthews 11/19/04 Dp. pg. 79)

The doctor was asked if the OCD condition in Rothschild's knee would have continued to progress in the absence of an accident on August 30, 1999. "The condition would progress in absence of trauma", Dr. Matthews answered. (Matthews 11/19/04 Dp. pg. 80) Dr. Matthews stated that he would not classify the OCD in Rothschild's knee as severe. "I think the severity, in my mind, would be based on sort of the end stage aspect of that disease process, and I don't think Mr. Rothschild's disease in his knee is end stage." (Matthews 11/19/04 Dp. pg. 82) (Ruling: Second Injury Fund's and Claimant's objections are overruled. Matthews 11/19/04 Dp. pp. 81-82)

During cross examination by Roloff Trucking, Dr. Matthews agreed that he changed his 10/22/99 office note concerning Rothschild's right knee that "He has had off and on problems in the past" in October 2002 to "He has never had problem in the past"; when asked if he was saying

Rothschild had never made this statement in October 1999, Dr. Matthews responded - "No. I am telling the world that Mr. Rothschild believes that the way the history was recorded was incorrect in regards to him having problems on and off in the past." (Matthews 11/19/04 Dp. pg. 89) Dr. Matthews stated that he tries to be careful when he takes a history from a patient, "but I get bits and pieces of patients' histories incorrect all the time, and I write notes to myself, but things get dictated incorrectly". (Matthews 11/19/04 Dp. pg. 89) The doctor admitted - "I think it would be unusual" - to get something like this incorrect. (Matthews 11/19/04 Dp. pg. 89) Dr. Matthews stated that if Rothschild had complained of the history within a month of his interaction with Rothschild and he had remembered the office visit and the specifics that were gone over, and it contradicted what he remembered Rothschild telling him, he would not have changed it. "However, this has been now three years later, and I can't remember the interaction", the doctor said. (Matthews 11/19/04 Dp. pg. 92)

Dr. Matthews stated, during cross examination by Roloff Trucking, that he did not recall Rothschild telling him he had injured his left ankle in the August 30, 1999 incident, and did not recall treating Rothschild for any left ankle problems that Rothschild complained about.

On cross examination by Karst Construction Company, Dr. Matthews agreed that he had noted the progression of Rothschild's symptoms or problems between the time of the first surgery in January 2000 and the second surgery in June of 2000 in terms of any objective findings intraoperatively. Dr. Matthews agreed that he had reviewed the surgical note of Dr. Haupt for the surgery performed later in 2000, and that surgical noted reflected a progression of problems in the knee from the June 2000 surgery. The doctor noted that given the fact that Rothschild had an osteoarthritic knee with the OCD lesion, overall progression or worsening of the chondromalacia and narrowing of the joint space "is part and parcel to the progressive nature of those conditions, yes". (Matthews 11/19/04 Dp. pg. 97) Dr. Matthews further testified:

"The progressive nature, as I stated before, is going to happen in spite of trauma, in spite of lifestyle, in spite of whatever the conditions and/or circumstances are that surround these conditions, as we've been talking about, OCD and degenerative arthritis.

"Trauma, activity, weight, genetics all play into the progressive nature of these conditions.

"How fast it would progress. I would predict, in general, that someone that had a sedentary lifestyle and a sedentary desk job, given all other factors equal, would have less progression of an osteoarthritic knee joint with OCD lesion than a laborer." (Matthews 11/19/04 Dp. pp. 98-99)

Dr. Matthews acknowledged that a comparison from January 2002 and September 2002 of radiographs "show that he had had a significant advance in the joint space narrowing of the medial compartment in comparison to the previous film", and that "there was significant progression between those two office visits". (Matthews 11/19/04 Dp. pp. 103 and 104-105) The following testimony then occurred:

Q. Now, Dr. Matthews, in later reports, you used words such as aggravated, exacerbated, and accelerated to describe the connection between Mr. Rothschild's subsequent employments, after Roloff Trucking, to the progression of his disease, the progression of his OCD, and the problems in his knee. Okay. By aggravating, exacerbating, accelerating, do you mean that these particular physical activities caused him to be symptomatic, or do you mean that there was a particular objective change that was directly caused by these particular activities in the knee?

Or both?

A. I would state both.

Q. Could you point at anywhere in your record to places that would show us, okay, where a subsequent employment can be directly related to any objective findings in the knee?

A. Probably not. (Matthews 11/19/04 Dp. pp. 105 and 106)

During cross examination by Karst Construction Company, the following testimony occurred:

Q. Let me turn to the right shoulder just for a minute, doctor. It's my understanding that Mr. Rothschild gave you a history with regard to this right shoulder, and that history was in your - it was in other records, but it 's also in your......9/29/2003 report. And you indicated that - and you recorded in that report that Mr. Rothschild had told you that his knee had given way and he had fallen at home injuring his right shoulder; is that correct?

D. If that's what the report says, yes.

T. Doctor, anywhere in your previous encounters with Mr. Rothschild, had you recorded any incidences of instability or his knee giving way?

D. No, I don't think so.

T. Do you recall ever putting anything like that in any of your reports as a complaint that Mr. Rothschild had about his right knee?

A. I don't recall that, no. (Matthews 11/19/04 Dp. pp. 107-108)

On cross examination by Integrity Installations, Dr. Matthews was asked to explain the surgery performed by Dr. Haupt:

"That involves either obtaining a cartilage and bone graft from the patient himself, usually from a nonweight bearing area of the same knee, and transferring that where the OCD lesion and/or a lesion on the weight bearing surface on the end of the femur would be, or in larger lesions, sometimes cadaveric specimens are used to transfer.

"You're trying to repair a defective area that doesn't have cartilage coverage, and the underlying one in this case, because of the OCD process, is also lacking...." (Matthews 11/19/04 Dp. pg. 109)

This procedure performed by Dr. Haupt can be a permanent solution to this condition, Dr. Matthews said, but it was not in Rothschild's case. Dr. Matthews stated that this procedure by Dr. Haupt before January 2002 "could explain some, yes," of the difference seen in the knee between the January and September 2002 visits. (Matthews 11/19/04 Dp. pg. 110) Dr. Matthews was queried as to what problems was he referring to in his January 15, 2002 letter in which he had written the possibility for future treatment, and he had specifically mentioned that Rothschild might require a total knee replacement. The doctor explained:

"Well, I probably was referring to the fact that the progressive nature of the disease, future office visits, future injection therapy, conservative management, the use of anti-inflammatory medications and/or surgical events that will, you know, undoubtedly more than likely happen.....Including total knee arthroplasty." (Matthews 11/19/04 Dp. pg. 111)

The doctor agreed that this future treatment would be because of the progressive nature of Rothschild's condition. When again queried if the progressive nature of the condition was going to happen without regard to activities, Dr. Matthews responded - "(I)n so far as, the activity will, in my words, exacerbate and/or accelerate the condition". (Matthews 11/19/04 Dp. pg. 111) The doctor admitted that the condition was going to get worse "with just activities of daily living, getting in and out of the car, driving, walking". (Matthews 11/19/04 Dp. pg. 112) Agreeing that it was his stated belief that in someone who does moderate activity or works as a laborer the condition would progress faster, Dr. Matthews further stated - "I don't know if it would precipitate

it....Progress it, yes". (Matthews 11/19/04 Dp. pg. 112) The doctor agreed that the work as a laborer would cause this progression to come about sooner than expected. Dr. Matthews agreed that in his May 15, 2002 report he again talked of the possibility for a total knee replacement and that again he had mentioned a progressive, degenerative problem with the knee. It was noted that in a September 17, 2002 report to the claimant's attorney, Dr. Matthews had discussed the work injury of August of 1999 which exacerbated the allegedly preexisting condition the OCD lesion and that he stated that now in September 2002 Rothschild was still dealing with the same condition and the sequela of that diagnosis; Dr. Matthews was asked to explain what he meant by this, and the following testimony occurred:

D. That means that, given this man's preexisting OCD lesion and factoring in his activities had, again, I'll use this word, the totality of his employment and these different traumas that he's had, he's still dealing with the aftermath of having this condition.

T. Okay. Now, you are referring to the August of 1999 injury, and now you are using the word traumas plural. Did the patient ever tell you that he had more than one direct trauma?.....To the knee.

D. I guess I would use the trauma in the cumulative sense. One specific trauma, the truck injury and fall, I guess that's what I was referring to.

T. To paraphrase your statement here, this is still one condition. And when you say he's still dealing with the sequela of that original diagnosis or condition - -

D. Yes.

T. - - are you saying it's an ongoing thing dating back to the first time that condition was either noted or diagnosed?

D. Correct.

T. Do you have anywhere in your records where Mr. Rothschild ever told you that any of the subsequent employments, specifically any activities, specific activities at those jobs, were causing a further problem to his knee?

D. Not specifically, no, I don't believe.

T. Is there anywhere in your records during your, I guess, three years or so treatment of this gentleman, that he even told you anything about who - - who he worked for or what he did?

D. No.

T. Over the three years, did he ever tell you about any of the subsequent employments, again after the August of 1999 injury?

D. I vaguely remember some discussion about him being a trim carpenter, but not employers and/or employment and/or where, no.

T. Never identified the employers?

A. No. (Matthews 11/19/04 Dp. pp. 113-115)

Dr. Matthews further stated that Rothschild never specifically told him what he did as a trim carpenter for any of these employers.

On cross examination by BAM Construction, Dr. Matthews stated that there are different grades of OCD. "I would classify them in four stages, and (when I first saw Rothschild) he had a grade four", the doctor stated. (Matthews 11/19/04 Dp. pg. 116) Indicating that Rothschild's OCD was not as bad as it could be, Dr. Mathews explained: "The worst grade would be if the lesion has come out of the pocket or the area where it - - if it had broken off and was swimming around the joint and then the hole was left empty". (Matthews 11/19/04 Dp. pg. 116) Rothschild's was, though, "an end stage type lesion, yes", the doctor said. (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that in his experience, people's memories change over time, so their histories can change as time goes by.

On cross examination by the Second Injury Fund, it was noted that Dr. Matthews had written to the claimant's attorney in a May 15, 2002 letter - "The patient has stated he has had no problems with his knee prior to the work injury, which is consistent with a stable OCD lesion." When asked if this was still his opinion today, Dr. Matthews answered - "Yes". (Matthews 11/19/04 Dp. pg. 117) Dr. Matthews agreed that the conditions seen on the September 7, 1999 x-ray could have been asymptomatic. The doctor agreed that the osteochondritis dessicant can also be asymptomatic; Dr. Matthews agreed that the condition could be in the early stage and then a severe trauma is sustained and then the condition goes into level four; the doctor agreed that the OCD could trigger the exacerbation of other pathologies in the knee including the osteoarthritis. October 22, 2003 was the last time I saw Rothschild, Dr. Matthews agreed. When asked, wasn't it your opinion at that time that Rothschild eventually might need a knee replacement but he wasn't at that stage yet, Dr. Matthews answered - "That's correct.". (Matthews 11/19/04 Dp. pg. 120)

On redirect, Dr. Mathews stated that to his knowledge he had not seen any medical record in which Rothschild had made complaints referable to the right knee prior to August 30, 1999. The doctor agreed that if the findings disclosed by the x-ray of the osteophyte, the osteoarthritis, the narrowing, the findings of the right knee were there prior to Rothschild's falling off the truck, to his knowledge there is no history that Rothschild had sought any treatment for problems with these conditions. Denying that a fall from the truck could have entirely caused the 20 percent of the medial femoral condyle that needed to be surgically treated by him, Dr. Matthews testified that "a fall from a height, as you've described, could aggravate a preexisting OCD lesion and make it symptomatic". (Matthews 11/19/04 Dp. pg. 124) The doctor was asked - even if Rothschild had the asymptomatic condition before, wasn't the fall off the truck the cause for his ongoing problems since then, including the surgeries, everything? Dr. Matthews answered:

"I would not characterize it as such. I would - -

"The fall off the truck brought to light the condition that Mr. Rothschild had in his knee. I'm not going to give a percentage on what that fall off the truck led to. I don't think I have that crystal ball to be able to do that." (Matthews 11/19/04 Dp. pp. 126-127)

The doctor was queried, if Rothschild had had those changes seen on the September 1999 x-ray and had not had the fall off of the truck in August 1999, would he have still had to have three surgeries by January of 2000. "In all likelihood he would have ended up with a surgical event", Dr. Matthews responded. (Matthews 11/19/04 Dp. pg. 127) "I can't give you a time frame", the doctor said, but admitted that it could be a year or 20 years. (Matthews 11/19/04 Dp. pg. 127) Dr. Matthews agreed that he felt the trauma of falling off of the truck aggravated the preexisting arthritic condition in the right knee, and agreed that only after that aggravation occurred did the three surgeries occur. The doctor agreed that when he did the surgery he found loose material in the knee, and stated that that could be from the trauma to the knee.

During redirect, Dr. Matthews was asked his opinion of whether or not Rothschild could work based on his medical history, and the doctor responded: "It is asking me to render a vocational opinion, which I do not have the expertise to do. I don't know if he's employable or not." (Matthews 11/19/04 Dp. pg. 134)

Dr. Raymond Cohen, D.O. testified by deposition on behalf of the claimant. (No. A) The doctor agreed that he reviewed medical records and independent medical evaluation reports, and reviewed the 03/16/04 deposition of Rothschild as part of his evaluation of Rothschild.

It was agreed and stipulated to by the parties at the deposition, that Dr. Cohen would testify in accordance with his curriculum vitae and his two reports dated January 15, 2004 and (June) ${ }^{\text {I2I }} 22,2004$ and the doctor's reports were admitted into evidence. (See, Cohen Dp. pp. 6-7) In his January 15, 2004 report, Dr. Cohen wrote of Rothschild's August 30, 1999 work related injury to the right knee and left shoulder upon falling approximately 12 feet off of a truck while working at Roloff Trucking. Subsequent treatment Rothschild received was discussed by Dr. Cohen, including that Rothschild had two surgeries to the right knee in early 2000 by Dr. Matthews and a third surgery to the right knee by Dr. Haupt in October 2000. "Dr. Haupt released him and in March, 2001 he returned to work", Dr. Cohen wrote. Rothschild's subsequent employments as a carpenter at Karst Construction, BAM Construction and Integrity Installations were briefly discussed by Dr. Cohen; Dr Cohen noted Rothschild's comments that several months after falling off of the truck he began to have pain in the left ankle from favoring the right knee; the doctor noted Rothschild's comments that the pain and symptoms in the right knee, left shoulder and left ankle increased from the labor work at each of the subsequent employers. Dr. Cohen noted Rothschild's history that "(I)n July 2003, while at home his right knee gave out on him and he fell and injured the right shoulder". Dr. Cohen's physical and neurological exam findings on January 15, 2004 included the following:

The gait was slow and the patient favored the right knee and left ankle when he ambulated....The left knee was unremarkable. The right knee revealed marked crepitus with range of motion testing. He was diffusely tender to palpation over the knee. A mild effusion was noted. Extension was to -5 and flexion was to 120. Anterior drawer was 1+ positive. McMurray's revealed increased joint pain medially and laterally. The quadriceps were weak at $4 / 5$. The left shoulder revealed a positive impingement sign. Abduction was reduced approximately 30 % of expected normal. The rotator cuff muscles were weak at $4+/ 5$. The right shoulder revealed a positive impingement sign. Abduction was reduced approximately 40 % of expected normal. The rotator cuff muscles were weak at $4 / 5$. The right ankle was unremarkable. The left ankle had a mild effusion. He had a loss of motion of the left ankle of approximately 10-15 degrees in all directions....

Dr. Cohen wrote the following in his January 15, 2004 report as the diagnosis regarding the primary work-related injury of 8-30-99:

1. Status-post three right knee surgeries for osteochondral defect as well as chondromalacia and medial meniscus tear.
2. Left shoulder rotator cuff tendon tear and impingement.
3. Due to a compensatory gait, he has left ankle instability with chronic tendonitis.
4. Due to an overuse disorder (cumulative trauma disorder) up through 9-1-01, December 2001, and 9-1-02, he has symptomatic degenerative joint disease of the right knee, an aggravation of the left shoulder tendonitis, and an aggravation of the left ankle condition.
5. Due to the right knee giving out at home on or about July 2003, he has a right shoulder rotator cuff tear.

Dr. Cohen wrote of his conclusions regarding the primary work related injury in the January 15, 2004 report:

It is my medical and neurological opinion that within a reasonable degree of medical certainty that the above noted diagnoses are as a direct result of injuries this man sustained at work on or about 9-30-99 to his right knee, left shoulder, and left ankle and due to an overuse disorder to those areas from his work up through 9-1-01, December 2001, and 9-1-02. It is further my medical opinion that the work is the substantial factor in his disability and the treatment he has had up to

this point was medically necessary and was reasonable.

Although he does have some pre-existing x-ray findings referable to the left shoulder, it is my medical opinion that he does not have any pre-existing disability before 8-30-99.

It is further my medical opinion that within a reasonable degree of medical certainty, he is going to need additional treatment in the future. He is going to need a total right knee joint replacement. Generally these last 7-15 years and more likely than not, he is going to ultimately need a second total knee replacement. Also, he needs to see an orthopedic surgeon for consideration for surgery on both of his shoulders.

It is my medical opinion that within a reasonable degree of medical certainty, he was temporarily totally disabled from December 2001 through August 2002 due to the significant pain that he was having in the above noted areas of his body.

However, assuming that he has no further treatment, then it is my medical opinion that within a reasonable degree of medical certainty, he has a 70 % permanent partial disability at the right knee. Of this 70 \%, 40 % is due to the injury on or about 8-30-99 and the remaining 30 % is from the overuse disorder up through 9-1-01, December 2001, and 9-1-02.

At the level of the left shoulder, he has a 35 % permanent partial disability, of which 20 % is due to the injury on or about 8-30-99 and the remaining 15 % permanent partial disability at the left shoulder is from the three overuse claims.

At the level of the left ankle, it is my medical opinion that within a reasonable degree of medical certainty, he has a 30 % permanent partial disability at the level of the left ankle, of which 15 % is due to the injury on or about 8-30-99 and the remaining 15 % is due to the three overuse disorders.

He has a 35 % permanent partial disability at the right shoulder. The 35 % at the right shoulder in my medical opinion is due to all four of the claims and would be divided in the same percentages that I had previously stated referable to the right knee.

It is my further medical opinion that within a reasonable degree of medical certainty, his pre-existing conditions or disabilities combine with the primary work-related injury to create a greater overall disability than their simple sum and that due to this combination of disabilities, Mr. Rothschild is permanently and totally disabled and not capable of gainful employment. It is further my medical opinion that his pre-existing conditions or disabilities were a hindrance or obstacle to his employment or re-employment.

In a Supplemental Rating Report, dated June 22, 2004, Dr. Cohen wrote that he had had an opportunity to review additional records consisting of Rothschild's deposition taken on 03/16/04, and a 06/02/04 IME from Dr. Rende. Dr. Cohen noted Rothschild relayed that in regard to the 8-30-99 injury he also injured his left foot; Dr. Cohen further wrote - "As he was favoring his right knee, he was putting increased pressure on his left foot and ankle and the pain progressively became worse. According to the patient, he had x-rays taken of the left foot and ankle by Dr. George and he was told that he had a spur. He continues to have pain in the left foot and ankle." Dr. Cohen noted Rothschild's relayed history in regards to his subsequent employment after Roloff Trucking and his symptoms:

He states that prior to his employment at Karst which began in March 2001, his symptoms were pain in the right knee and left shoulder. He was receiving physical therapy for his shoulder at the time of his employment at Karst. He states that the right knee was giving out on him. He had a sharp ongoing pain in the right knee. He had fallen several times from the knee giving out on him.

He states that he began his employment at BAM Construction in October 2001 and worked through December 2001. He states that subsequent to December 2001, he was off work for a few months due to a lack of available work for him.

He believes his employment at Integrity Installations began around May through July 2002. Please note in my report of 1-15-04, it states that his employment was through July 2003. This should be July 2002. He believes that he was at Integrity less than three months as far as he can recall.

His was last employed in September 2002. He has been unemployed since.

In his June 22, 2004 supplemental report, Dr. Cohen discussed Rothschild's complaints and noted that a repeat exam revealed no changes. My medical opinions on Mr. Rothschild remain as is per the report of 1-15-04, Dr. Cohen wrote.

At his deposition, Dr. Cohen was asked if it was his opinion that Rothschild is permanently and totally disabled, and the doctor answered - "Yes". (Cohen Dp. pg. 7) (Ruling: Employer/Insurers' and Second injury Fund's objections are overruled. Cohen Dp. pg. 7)

On cross examination by Roloff Trucking, Dr. Cohen stated that he met with Rothschild initially on January 15, 2004 and requested a second time on June 22, 2004 for a second evaluation. Explaining the purpose of the second evaluation, Dr. Cohen stated that as best he could recall he "was uncomfortable with the dates of all of the various employers after 8/30/99", and Rothschild "came back for me to see if I could figure out the dates of those employers". (Cohen Dp. pg. 10) During redirect examination, Dr. Cohen stated - "That's correct" - that he was the one who wanted the subsequent June 2004 exam of Rothschild after having canceled an earlier deposition, the claimant's attorney had nothing to do with him doing a second exam of Rothschild. (Cohen Dp. pg. 132) The histories as to the employments were basically the same, the doctor said. Dr. Cohen further explained the reason for the second evaluation was this "is a more difficult situation because of the large number of claims or employers and claims". (Cohen Dp. pg. 13) The doctor was queried as to what was Rothschild's job at Roloff Trucking, and Dr. Cohen responded - "I believe he was a carpenter with the other employers, and I thought he was with Roloff; I'm not sure". (Cohen Dp. pg. 17) The doctor stated that for determining medical causation between an accident or an occupational disease it would make a difference with respect to the job duties "(I)f it's an occupational disease, then that would be, of course, important, yes". (Cohen Dp. pg. 17) Agreeing that a person's job duties have a significance in determining whether an employee is permanently and totally disabled, Dr. Cohen testified as to the result of Rothschild being permanently and totally disabled: "In his case, it's a result of the pain and dysfunction he has in his shoulders as well as his right knee and the left ankle and due to the chronic pain that he has in those joints, all of that." (Cohen Dp. pg. 18) Dr. Cohen agreed that he is not a vocational specialist. When asked from what jobs was Rothschild permanently and totally disabled, Dr. Cohen answered: "When I put in my report, from a medical perspective, a permanent total, that means I do not feel he could do any type of job, including sedentary or any other - any type of 32-hour-a-week job." (Cohen Dp. pg. 20) Stating that he did not believe Rothschild could do sedentary work, light labor, moderate or heavy labor work or any type of work, Dr. Cohen further said - "So I believe that whatever he's doing at Roloff that had to have him up on the truck where he fell is beyond sedentary work". (Cohen Dp. pg. 22)

During cross examination by Roloff Trucking, Dr. Cohen testified about his understanding of Rothschild's duties at Karst: "He stated that he had to nearly constantly carry heavy materials and that he did a significant amount of bending, lifting, and squatting." (Cohen Dp. pg. 22) Explaining why it was important to learn about Rothschild's duties at Karst, Dr. Cohen testified:

"Because, in my medical opinion, he had an acute injury on 8/30/99 to those parts of his body. The subsequent employment, I didn't find, really, anything that was an acute type of injury, but it was a type of repetitive or overuse or occupational problem causing the increase in the condition of his knee, shoulder, and ankle." (Cohen Dp. pg. 23)

Dr. Cohen noted Rothschild's duties at B.A.M.: "He stated he had to do a lot of lifting of cabinets and doors and various types of equipment, and, I believe, in one of the depositions, he also went into a little bit more detail about that job. "(Cohen Dp. pg. 25) Dr. Cohen stated that some of Rothschild's job duties at Karst were heavy labor job duties, and at B.A.M. were heavy labor duties. The doctor discussed his understanding of Rothschild's job duties at Integrity Installations: "He stated he worked there as a carpenter and that he did a lot of repetitive work. And, I believe, also, that's described in his last deposition. My understanding, though, was, that was not a heavy labor work, as best I can recall." (Cohen Dp. pg. 26) Dr. Cohen was shown the First Amended Claim for Compensation against Integrity Installations filed by the claimant with the Division on September 13, 2003, and it was noted that the Claim stated the following description of what Rothschild was doing when the injury occurred - "Doing repetitive carpentry work and erection of display cases, attempting to carry heavy objects, including cabinets, carpentry equipment, and display case...". Dr. Cohen stated that he had seen this Claim form; when asked if this was consistent with what Rothschild had told him about his job duties at Integrity Installations, Dr. Cohen answered: "As far as the carrying heavy objects, that is different than what I understood from him when I saw him.". (Cohen Dp. pg. 27) The doctor agreed that assuming the statements in the First Amended Claim were correct, he would consider Rothschild's duties at Integrity Installations heavy labor type work. The doctor was asked if this changed any of his opinions, and Dr. Cohen answered: "I believe the last three employers were a repetitive type trauma, so whether it was heavy or not, all of those can contribute to an overuse disorder, so it really wouldn't change my opinions." (Cohen Dp. pg. 28)

During cross examination by Roloff Trucking, Dr. Cohen stated that he had reviewed all of the medical records he had listed in his reports. The doctor was queried if he recalled ever seeing any mention in any of the medical records prior to March of 2001 that Rothschild had complained about his left ankle. Dr. Cohen answered that he did not remember, but further testified "It's important to know what the patient says about what happened, and it's also important to see what the records say." (Cohen Dp. pg. 31) The doctor stated that he was basing his opinion on the extent of disability for the left ankle, in part, on Rothschild's history that he had actually injured his left ankle when he fell off the truck. The doctor was queried if his opinion as to disability for the left ankle would be any different assuming the medical records did not reflect a complaint from Rothschild in regards to the left ankle until March 2001. Dr. Cohen answered:

"That really wouldn't change my opinion, because it's very common to have what's called a compensatory gait, that a person can have a significant joint injury on one side of their body - a person can have a compensatory gait from a serious injury to one part of their body and favor, if you will, that injured part and put more pressure on the other part of their body that's helping support them when they walk. So if he had a serious injury to his knee from the original injury and was limping or favoring it, that would still go back to the original injury if he did not have an acute injury to the ankle at the time when he fell." (Cohen Dp. pp. 36-37) (Ruling: Claimant's objections are overruled. Cohen Dp. pp. 34-36)

Dr. Cohen was further queried if it was his opinion that Rothschild had an acute injury or a repetitive injury to his left ankle, and the

doctor responded: "So, my opinion is that he has both, that he hurt it somewhat in that fall, mainly the knee and shoulder, but the ankle got worse, primarily from the compensatory gait and, subsequently, the repetitive type work that he was doing." (Cohen Dp. pg. 37)

Rothschild's left shoulder injury was an acute injury in August of 1999, Dr. Cohen said, the acute injury was from the fall with subsequent finding on the MRI of a rotator cuff tear. Dr. Cohen stated that he did not recall at that time of his deposition if in the records surgery had been recommended for the left shoulder. The doctor stated that he had recommended surgery in his report, and it was his opinion the surgery would probably improve the condition of Rothschild's left shoulder. Dr. Cohen agreed that it was his opinion Rothschild sustained an acute injury to the right knee in the August 1999 fall. Agreeing that he has recommended a total knee replacement to the right knee, Dr. Cohen stated that this was based on severe pain in the knee, the findings in the knee and the medical situation that it is a bone on bone situation. The doctor was asked when in his opinion did Rothschild become a candidate for a total knee replacement, and Dr Cohen answered:

"That time frame would be sometime in 2002 at the point that the knee progressively became more painful and that it appeared clear that he was not going to improve regarding the condition from the knee without the knee joint replacement." (Cohen Dp. pg. 40)

It was noted that Dr. Cohen did not assign any pre-existing disability to the right knee, and the doctor responded:

"Based on that operative report, really did not show any significant history, and he had stated to me that he didn't have any prior history in the knee and, I believe, in the deposition, that he didn't have any problems. So my assumption on that answer is, no prior history of any problems in the knee, and the operative report really didn't show a lot, the first operative report, that he had a pre-existing condition." (Cohen Dp. pg. 45)

Dr. Cohen further stated that in regards to osteochondritis dissecans, "......I didn't really believe that he had that condition as a preexisting. I felt that, assuming he had no prior history and had an acute injury to his knee, it developed from the acute injury". (Cohen Dp. pg. 46) Assuming that Dr. Matthews' note was correct that Rothschild did have a preexisting condition of osteochondritis dissecans, Dr. Cohen further stated: "...I don't feel, from a medical perspective, that he had any preexisting disability since it didn't bother him. He may or may not have had that condition, but assuming he even had it, it didn't appear to cause any dysfunction in the knee. So I don't find any disability unless he had a severe case of that, then it could have led to some preexisting disability." (Cohen Dp. pg. 48) The doctor was asked if he was now testifying that there may actually be some preexisting disability to the right knee, and Dr. Cohen responded: "I would give a small percentage of disability if it is shown that he had some type of preexisting condition to his knee before that (August 1999) injury." (Cohen Dp. pg. 50) (Ruling: Second Injury Fund's objection on grounds - asked and answered - is overruled. Cohen Dp. pg 50) Dr. Cohen was asked to testify as to what his opinion of this disability would be, the doctor answered: "Approximately 2 to 3 percent." (Cohen Dp. pg. 53) (Ruling: Second Injury Fund's objection is overruled. Cohen Dp. pp. 50-51; and Claimant's objections are overruled. Cohen Dp. pp. 51-52) Dr. Cohen was asked to explain what in his opinion caused the need for the total knee replacement: "The need of the total knee joint replacement is due to the acute injury as well as the repetitive or overuse injury that he has had to his knee, all of that." (Cohen Dp. pg. 54) The doctor agreed that he thought it was due to the combination of the acute injury and the subsequent employers. (Ruling: Claimant's objection is overruled. Cohen Dp. pg. 54; Second Injury fund's objection is overruled. Cohen Dp. pg. 54)

On cross examination by Karst, Dr. Cohen agreed he was aware that after working for Karst Construction, Rothschild went immediately to work fro BAM Construction, there was no separation between these two employments. Dr. Cohen agreed that there was a clarification in his June 2004 report that in his opinion he no longer believed that Rothschild was temporarily disabled between December of 2001 and when he went to work for Integrity in August 2002 because during this time period Rothschild was off work due to lack of available work. The doctor further agreed that when reading Rothschild's deposition, he saw where Rothschild had said during this period of December 2001 through when he went to work for Integrity in August 2002 he had been exercising and looking for work, and thus more proof that Rothschild was not temporarily totally disabled during this period.

Dr. Cohen agreed, during cross examination by Karst, that he has no training and no experience in vocational rehabilitation. The doctor stated that as a neurologist he did testing of Rothschild's mental abilities and his mental abilities were normal; Dr. Cohen agreed that based on his assessment he did not see any obstacle or impediment to employment or vocational training in regards to his mental abilities.

During cross examination by Karst, Dr. Cohen agreed that in January of 2004 he made the recommendation for a total knee replacement based on x-rays taken in 2002. Stating that he was not in the practice of recommending such significant surgery without performing more recent radiographic studies, Dr. Cohen explained his decision in this case in the following testimony:

D. He already had severe joint space narrowing at the time I saw him, and it was clear that any x-rays taken at that time would show advanced osteoarthritis of the knee. It wouldn't show an improvement. It would only show either what he already had before or a deterioration.

T. And, most likely, a progression of symptomatology; is that correct?

D. Yes.

T. In fact, when you take a look at the three surgeries that were done on the employee's knee in 2000, the first two by Dr. Matthews and the third by Dr. Haupt, those three reports actually show a significant progression of degenerative problems in his knee, don't they?

D. Yes.

T. Would there be any reason to believe that that degenerative condition wouldn't continue to progress in that right knee?

D. It would progress.

T. It would progress pretty much no matter what the employee was doing; is that correct?

D. More likely than not, it would have. (Cohen Dp. pp. 65-66)

Dr. Cohen further stated, though:

"In a repetitive trauma type case or overuse type case to the joint, the overactivity or overuse or stressing of the joint leads to increased deterioration of the joint, and that is included in my thoughts when I assess a part of the body that, from the continued stress or damage to the joint, that it is a progressive condition." (Cohen Dp. pp. 68-69) (Ruling: Claimant's objections are overruled. Cohen Dp. pp 67-68)

The doctor was queried, wasn't it impossible to determine how much of the continued problems in the claimant's right knee, after the original accident, were the result of a natural progression of degenerative changes, activity, work, recreation, etc? Dr. Cohen answered:

"Well, it is quite possible to define his situation, based on the fact that he did have significant problems after the first injury, but by his history and doing this type of physical work, the condition increased. So talking about him alone, the medical course of this is that it progressed from the type of work that he was doing superimposed upon a bad injury." (Cohen Dp. pg. 70)

Dr. Cohen agreed that the history he received from Rothschild was that his right knee complaints got substantially worse after each of the subsequent employments. It was noted that Dr. Cohen had stated earlier that weight was a factor in degenerative changes in Rothschild's knee; when asked if he had put Rothschild's height and weight in his reports, the doctor answered - "No, I didn't." (Cohen Dp. pg. 72) Dr. Cohen stated that he did not recall Rothschild's weight or height. The doctor agreed that if the records reflected Rothschild was heavy, 260 pounds, that would also contribute to the general deterioration of the right knee. Dr. Cohen agreed that Dr. Matthews, in January 2002, noted that x-rays at that time showed good joint space, which actually means that in January 2002 Rothschild wasn't bone on bone.

Concerning the left ankle, Dr. Cohen stated that it was his understanding Rothschild's problems began several months after the Augusts 1999 fall from the truck but prior to his returning to work in March 2001.

Dr. Cohen agreed, during cross examination by Karst, that with regard to the left shoulder (as also with the right knee) it was his opinion the subsequent employments lumped together aggravated the left shoulder difficulties Rothschild incurred in 1999.

During cross examination by Karst, Dr. Cohen agreed that he did not have any treatment records for Rothschild during his employment with Karst from March to September, 2001, only an evaluation by Dr. Berkin performed in May of 2001. Dr. Cohen stated that he was not aware of Rothschild losing any time from work as a result of his knee, ankle or shoulder or anything else while working for Karst. Rothschild did not quit working for Karst, Dr. Cohen said, "I recall something in the deposition that they went out of business or closed". (Cohen Dp. pg. 78) The doctor agreed that he was not aware that Rothschild quit working for Karst due to any medical problems or concerns. Dr. Cohen agreed that Rothschild actually went straight to work for B.A.M. after Karst Construction, and after B.A.M. Rothschild was actually available to work all the way up until the Integrity Construction job.

Dr. Cohen stated, during cross examination by Karst, that he did not believe that Rothschild was in need of a total knee replacement in January of 2002. January 2002 was after the Karst employment, the doctor agreed. Dr. Cohen was queried - isn't it correct that the reason for the total knee replacement is the acute injury, the repetitive overuse and the progression of degenerative problems. "That's correct", Dr. Cohen answered. (Cohen Dp. pg. 81)

On cross examination by BAM Construction, Dr. Cohen agreed that in his review of the medical records, there was no indication of any medical treatment from September/October of 2001 until January 2002. Therefore, the doctor agreed, during this period there was no medical taking Rothschild off work for any reason. Dr. Cohen agreed that there was no medical records indicating that Rothschild could not work during the period subsequent to January of 2002 until Rothschild went to work at Integrity in August of 2002.

It was noted, during cross examination by BAM Construction, that in regards to his opinion of permanent total disability for Rothschild as of January 2004, the doctor did not put any restrictions on Rothschild. Explaining why this was, Dr. Cohen stated: "If a patient is medically unemployable, I didn't see any need to put the restrictions in there." (Cohen Dp. pg. 83) Dr. Cohen agreed

that there are things Rothschild could do from a physical standpoint, Rothschild is not bedridden. The doctor was asked if he expected Rothschild's condition to change in the future without further medical attention. "He will, more than likely than not, have increased arthritic changes in the knee and in his shoulder and may have increased pain from that", Dr. Cohen answered. (Cohen Dp. pg. 84) The doctor agreed that this was because of the nature of arthritic changes and its progressive nature.

On cross examination by Integrity Installations, Dr. Cohen agreed that Rothschild relayed to him that in regards to the job at Integrity he put up display cases and did a lot of repetitive work.

Dr. Cohen stated, during cross examination Integrity Installations, that he is not an orthopedic doctor. I did have a year internship in which included four months through orthopedics and the rest of the year assisting with orthopedics; this was in 1980 and 1981, the doctor said. I have not had any orthopedic training since then. I am not a surgeon the doctor said.

Rothschild "had significant problems in his knee at the time he began his employment (at Integrity)", Dr. Cohen stated during cross examination by Integrity Installations. (Cohen Dp. pg. 89) The doctor agreed that Rothschild had a significant degenerative condition prior to working for Integrity, and that he would have had a lot of pain, discomfort and difficulty performing activities. Rothschild had evidence of this chronic condition before he came to work for Integrity, Dr. Cohen said. The doctor was asked if he had stated that in a large majority of patients, a degenerative condition such as Rothschild has would probably progress anyway without regard to subsequent activities. Dr. Cohen answered: "Yes. In regard to the knee." (Cohen Dp. pg. 90)

It was noted, during cross examination by Integrity Installations, that at one point in his report Dr. Cohen had indicated that Rothschild had worked for Integrity for approximately 11 months for August 2002 through July 2003, and that at another point in his report he had written it was through September of 2002. "I really don't know" the length of Rothschild's employment at Integrity at the time I issued my report, Dr. Cohen admitted. (Cohen Dp. pg. 92) "I hope I was thinking correctly at that time, based on the claim forms that I had an other records, but I can't remember what I was thinking at that time", the doctor said. (Cohen Dp. pg. 92) The doctor agreed that in his second report he had stated Rothschild worked at Integrity from May of 2002 through July of 2002. When queried, if Rothschild testified that his employment dates were approximately July of 2002 through September of 2002 and that he worked only 29 days during that time, would he have any reason to dispute this. "No", Dr. Cohen answered. (Cohen Dp. pg. 93) The doctor stated that he would have no reason to dispute the employment records if they indicated that Rothschild beginning date at Integrity was July of 2002 rather than May of 2002.

Dr. Cohen agreed, during cross examination by Integrity, that Dr. Matthews in his January 15, 2002 had found that Rothschild had a fairly significant disability to the right knee and said it was 50 to 60 percent; Dr. Cohen agreed that Dr. Matthews' rating in January 2002 was pretty close to what he had found overall in January 2004. It was noted that Dr. Matthews, in his May 2002 report, stated that Rothschild might need a total knee replacement, and this was before Rothschild worked for Integrity; Dr. Cohen agreed that in May 2002 Rothschild suffered from a progressive degenerative condition. Dr. Cohen was queried - so without regard to any subsequent employment after May 2002, Rothschild's knee was getting worse and chances are he was going to need a total knee replacement. "That's correct", Dr. Cohen responded. (Cohen Dp. pg. 96) Dr. Cohen agreed that if subsequent activities brought on the need for further treatment or a knee replacement a little quicker or sooner than expected then those work activities merely precipitated the knee for that treatment. (Ruling: Roloff Trucking's objection is overruled. Cohen Dp. pg. 97) The subsequent work activities of that time, after May 2002, would have been Integrity Installations only, the doctor agreed. Dr. Cohen agreed that he had testified that it was his understanding when he initially met with Rothschild the job at Integrity was not as heavy labor as the jobs at Karst and BAM. Despite this, Dr. Cohen admitted, he provided an opinion on disability with regard to the three subsequent employments the remaining disability from these three employments was equally divided. "(The job at Karst) (r)egarding the duration or time" Rothschild worked for Integrity was less than at Roloff Trucking, Dr. Cohen stated. (Cohen Dp. pg. 99) "I was assuming that he was working (at Integrity) full-time", the doctor said. (Cohen Dp. pg. 100) Dr. Cohen stated that he had no reason to disagree if the employment records showed that Rothschild worked at Integrity four days some weeks, or one or two days another week. Dr. Cohen testified:

"From my talking to him on two occasions was that they were all about equal as how they affected him. The jobs may have been somewhat different, but they were difficult jobs that caused increased aggravation on this type of joint injury. And the duration there may have been less in time, but as far as the type of work he did as a carpenter, I thought they all were about the same as far as difficult type of work on a joint that is already significantly involved." (Cohen Dp. pg. 108)

Dr. Cohen agreed that he found disability on the original August 1999 injury, and then he found one lump sum additional for the other three employers, he did not separate out that additional disability as to the subsequent three employers. The doctor was asked if he had one incident that he would attribute most of Rothschild's problems to, and Dr. Cohen answered - "The (8)/30/99 injury". (Cohen Dp. pg. 110) (Ruling: Roloff Trucking and Karst Construction objections are overruled. Cohen Dp. pg. 110) (Ruling: Roloff Trucking's objections are sustained, Cohen Dp. pg. 111)

On cross examination by the Second Injury Fund, Dr. Cohen was queried - wasn't it correct that in his review of the medical records he saw no particular injuries while Rothschild was employed at Karst, BAM or Integrity. "Acute injuries, that's correct", the doctor said. (Cohen Dp. pg. 114) Dr. Cohen agreed that Rothschild's symptoms probably further degenerated since his

last date of employment. Dr. Cohen agreed that it was his opinion Rothschild would benefit from surgery to the left shoulder. The doctor was asked if he would defer as to whether or not there were any jobs suitable for Rothschild in his condition to a vocational expert, and Dr. Cohen answered - "Yes". (Cohen Dp. pg. 120)

On redirect examination, Dr. Cohen was asked what injury Rothschild had sustained to the left shoulder as a result of the August 1999 fall. "He has an impingement to the left shoulder and a tear of the rotator cuff in the left shoulder", the doctor responded. (Cohen Dp. pg. 125) The doctor was asked if the degenerative changes seen in Rothschild's knee were due to the injuries that he had as opposed to the natural aging process. Dr. Cohen answered:

"The degenerative changes, in Mr. Rothschild's case, are due primarily to the original trauma to those joints and also due to the repetitive work he did, and to a lesser degree to the fact that he's of this particular age group, you could see some. And he is overweight, and that can also cause some of those findings as well." (Cohen Dp. pp. 133) (Ruling: Roloff Trucking objections are overruled. Cohen Dp. pg. 133)

Dr. Phillip George, M.D. testified by deposition on behalf of Karst Construction (Karst Exh. No. 7) Dr. George stated that he is an orthopedic surgeon. It was agreed and stipulated to by the parties that Dr. George would testify in accordance with his June 22, 2004 report. (See, George Dp. pp. 6-7)

Dr. George testified as to his diagnoses after taking a history and complaints, a physical examination and a medical review:

"My diagnoses were: one, post-traumatic arthrosis, right knee, moderately advance; two, complete rotator cuff tear right shoulder with proximal migration of the humeral head and advanced post-traumatic arthrosis of the right acromiocalvicular joint; three, rotator cuff tear of the left shoulder with degenerative arthritic changes at the AVC joint; four, early post-traumatic changes at the AVC joint; four, early post-traumatic arthrosis, left ankle; five, plantar fasciitis of the left foot." (George Dp. pg. 8) (Ruling: Claimant's objection is overruled. George Dp. pg. 8)

The doctor was asked his conclusions as to Rothschild's right knee difficulties, and Dr. George answered:

"It was my felling that this gentleman had preexisting osteochondritis dissecans of his right knee and that it was aggravated or exacerbated by the fall of August of '99.

The subsequent surgeries were carried out in 2000. They found evidence of drastic osteochondritis dissecans, which preexisted the injury in question, but in my opinion was made worse by the injury in question. Standard arthroscopic techniques sufficed to moderate his symptoms but did not cure the problem.

It was my opinion that his further employment after the episode of August of '99 did not play a major role in exacerbating the preexisting problem. In my opinion, any employment subsequent to his work with Roloff Trucking played a minor role in his present condition.

I consider his present condition to be preexisting osteochondritis dissecans, which I did mention was aggravated by the trauma of '99." (George Dp. pp. 9-10) (Ruling: Claimant's objection is overruled. George Dp. pg. 10)

Dr. George was asked to testify as to his opinions regarding the role of the various subsequent employments:

"The condition of osteochondritis dissecans, which, as I mentioned, I felt had been preexisting and was ongoing at the time of all the employments from Roloff down the road, I thought was the major reason for his ongoing complaints when I examined him in June of 2004.

What I mean by a minor contributory factor is that, if a gentleman has a rough spot in his knee, and he goes to work, and even walking from the parking lot into the place of employment, that might make the knee a little sore. He works a full eight-hour day - - a ten-hour day. He does what does. He goes home. It's still sore. I think his work activity had something to do with making the knee sore.

If he had gone to work with a normal knee, smooth surfaces, no osteochondritis dissecans, he might have come to work sore anyway depending upon what he does at the place of employment. If he falls off the top of a cab of a semi, he's going to be sore. That's more or less what I mean by minor contributory factor.

This is a fellow, in my mind, who had and has a preexisting systemic degenerative condition involving the articular cartilage in his right knee and his left ankle. The kind of work that he has done since '99 on occasion, I thought, resulted in increased complaints. It did not alter the nature of the disease condition itself." (George Dp. pp. 10-11)

The doctor was asked to state his opinions in regard to the left shoulder, based on his evaluation:

"I felt that that same injury we just discussed, the fall off the top of the cab of the tractor in '99, caused the rotator cuff tear.

The patient had an MRI at that time which showed a tear of the supraspinatus tendon. He decided he did not want surgery. Indeed, he told me that he had a condition in his left shoulder he felt he could live with. I would agree with that." (George Dp. pg. 11)

Dr. George gave his opinion on causation as to the right shoulder:

"The right shoulder problem was clinically more severe. It had apparently resulted from a fall which had occurred some years - perhaps three to four years after the original injury of '99. The patient, indeed, told me that it occurred at home because his right knee collapsed and caused him to fall.

I simply said that I did not feel the right shoulder problems, even though they were severe, were not the result of any of the work injuries we talked about." (George Dp. pg. 12)

Dr. George gave his opinions in regard to the left ankle after evaluation:

"The diagnosis, which I offered earlier, concerning his left ankle was post-traumatic arthrosis, fancy talk for degenerative arthritis.

The patient told me that he had injured the ankle when he fell off the top of the truck in August of '99. He said that his ankle had not been addressed. The ankle complaints had not been addressed because his knee and shoulder problems were worse.

Assuming that was true to the case, then I would state that the arthritis, in my opinion, was substantially caused by the trauma of '99" (George Dp. pp. 12-13)

It was noted that Dr. George had said Rothschild had injured his left ankle in 1999, and the doctor was asked if he was able to find complaints produced in the medical records. Dr. George responded: "I found no record of that complaint in the records of - - his medical records from '99, 2000, 2002, 2003." (George Dp. pg. 13) It was Rothschild's report to me as of the exam of June of 2004, the doctor said. Dr. George agreed that his opinion was the same in regards to the left ankle as with the right knee in regards to subsequent employment, that the subsequent employment play only a minor contributory role in the problem. Dr. George was asked to compare the problems in Rothschild's left ankle to his right knee:

"The nature of the difficulty in his joints is, in my view, the result of a systemic problem. Osteochondritis dissecans is a bona fide orthopedic diagnosis. It has a chapter in any orthopedic text. And what it says is we don't know why people get this, but it's very classic and well-described. And this gentleman fits the diagnosis to a tee.

There seems to be something wrong with the nature of the chemical makeup of the smooth white shiny surface which covers all our joints from the knuckles to the knee to the ankle.

What I think has gone on with this gentleman is he clearly has osteochondritis dissecans of the knee. His ankle problem, I think, is essentially the same thing at a different level in the ankle instead of the knee. The white smooth shiny surface that he was born with is now rough, irregular, sandpaper-like. It causes symptoms of swelling, stiffness and soreness walking to the john, much less climbing into a truck cab." (George Dp. pg. 14)

Dr. George agreed that he has stated that in regards to the surfaces of the ankle and the knee, these could get sore with activity. In regards to activities such as trucking and whether or not it contributed to any additional problem, Dr. George testified: "I would suggest that those activities would not alter the natural - so-called natural history of this particular condition, which is one of progressive deterioration with advanced pain." (George Dp. pg. 15) (Ruling: Roloff Trucking objection is overruled. George Dp. pg. 15) Dr. George agreed that in his review of the medical records he did not see any significant alteration with the symptoms.

On cross examination by the claimant, the doctor was queried if he was saying osteochondritis dissecans cannot be caused by trauma ever. Referring to what the doctor described as one of the two leading texts for orthopedists, Dr. George answered:

"If you read that, it says this condition is post-idiopathic, doctor talk for we don't know why. But it then proceeds to say one of the, one of the many possible etiologies might be trauma. What I'm referring to is the kind of trauma that occurs if a 14-year-old kid falls off his bicycle or twists his knee playing soccer, those kinds of thins, or a 21-year-old hits a bridge on his Harley, those kinds of things, we think, can initiate the problem.

It clearly has a life of its own. It's clearly - the doctor term for it is systemic, which means there's something going on in the whole system, not just in the knee, not just in the ankle, not just in the knuckles. It's all over. It causes a progressive deterioration of the smooth shiny surface that you once had. I once had. We no longer have." (George Dp. pp. 16-17)

Dr. George agreed that even if you have preexisting osteochondritis dissecans, it can be asymptomatic and can be activated or aggravated by trauma. The doctor also testified: "I do think that if you have an osteochondritic knee and you fall off a trailer you can hurt it. Now, what does that mean? That means the symptoms get more severe. Did the fall cause the problem? I don't think so. (George Dp. p. 22-23)

During cross examination by the claimant, Dr. George agreed that in his report he had written the right shoulder problem is more severe and resulted from a fall which occurred three to four years after the original injury to the right knee. When queried, wasn't it correct that the fall occurred because of the right knee gave way, Dr. George responded - "That's what the patient told me." (George Dp. pg. 20) Dr. George gave further testimony:

"What I think I've been saying is that I think the gentleman had an intrinsic problem with his knee, which for convenient sake, orthopedists call osteochondritis dissecans.

It was my opinion that the work-related trauma of ' 99 was a minor contributing factor to this condition. It was my feeling that eh reason he fell, assuming his report to me was the truth, in, I guess, ' 03 or whenever it was, at least three to four years after the original injury when his right knee gave way - it would be my surmise that the knee gave way because of osteochondritis dissecans, not because of any effect of an injury which occurred in '99.

Certainly the effects of that injury had been completely treated by three arthroscopies and were well in the past. His ongoing problems was degenerative arthritis in the knee secondary to osteochondritis dissecans. That presumably is what made his knee give way and hurt his shoulder.

So I'm not - I mean, your reading of that statement is fairly creative from your point of view. From my point of view I would tell you I think it was due to arthritis of his knee." (George Dp. pg. 21) (Ruling: All objections overruled. George Dp. pg. 20)

Dr. George admitted that he had no history of Rothschild's right knee giving way prior to the 1999 accident when he fell off the truck at Roloff Trucking, and that he had no history and saw no medical records of osteochondritis dissecans being diagnosed prior to the fall of the truck at Roloff Trucking in 1999.

On cross examination by Integrity Installations, Dr. George agreed that by stating that the employments after Roloff Trucking played, if any, a minor contributory role in the development of the current conditions in the left ankle and right knee, he was saying that the subsequent employments were not a substantial factor in the development of his current conditions. (Ruling: Roloff Trucking's objection is overruled. George Dp. pg. 28) Dr. George stated that he did not think he saw the report of Dr. Richard Rende.

On cross examination by Roloff Trucking, Dr. George stated if some one had injured their left ankle in an accident such as occurred on August 30, 1999, as was the history relayed to him by the claimant, he would have expected initial symptoms in the ankle "(T)he next day". (George Dp. pg. 31( (Ruling: claimant's objection is overruled. George Dp. pg. 31) It was noted that the doctor described the left ankle as "early post-traumatic arthrosis of the left ankle", and Dr. George explained what he had meant: "That means I expect it to get worse". (George Dp. pg. 32) It was noted that he had used the term "drastic osteochondritis dissecans", and the doctor was asked if the condition was drastic back in 1999. Dr. George answered: "It was drastic in 2000 when they first started looking in there with an arthroscope? The three operative reports of the two surgeries describe changes which one would have to label drastic, i.e., advanced, long-lasting, severe." (sic) (George Dp. pg. 33) Dr. George gave the following opinion testimony in regards to the claimant's left ankle:

T. Okay. And my understanding is, from reviewing your report, that the claimant's - when you looked at him it appears, one of the symptoms he did is he had a limp on the left, not the right. So is it a fair statement he was limping from the left ankle, not the right knee?

D. I thought his worst problem at the time I saw him was his heel. He had plantar fasciitis, a heel spur, which was bothering the dickens out of him. He also had a bad ankle from the post-traumatic arthrosis. But both of those were clearly worse than his right knee, which, as I said, is drastic and has been since 2000.

T. Okay. And the plantar fasciitis, would that have anything to do with any of his employment?

D. No.

T. Or the original accident back on August 30, 1999?

D. No.

T. And if the claimant did not injure his left ankle in the August 30, 1999 accident, then is it a fair statement that your opinion regarding the causation of the left ankle arthritis is incorrect?

D. That's a fair statement.

T. In that you say it was substantially caused by the original trauma of 1999 ?

D. That is correct. (George Dp. pp. 33-34) (Note: Ruling: Second Injury Fund and Claimant's objections are sustained. George Dp. pp. 29, 30 and 31)

On cross examination by the Second Injury Fund, Dr. George agreed that he met with Rothschild personally, and Rothschild did not relay to him any prior injuries or treatment to the right knee before the August 29, 1999 injury. The doctor was again questioned if a patient can have osteochondritis dissecans but no symptoms, and Dr. George's testimony this time was: "Once again, it depends on the degree. If you have osteochondritis dissecans and you have symptoms, you may not go to the doctor about it, but you're certainly symptomatic." (George Dp. pg. 37) (Ruling: All objections overruled. George Dp. pp. 35, 36 and 37) When further queried, don't you recall testifying earlier that a person can have the condition of osteochondritis dissecans but be asymptomatic, Dr. George responded: "I don't recall saying that. I doubt I said that. If I said that, I didn't mean it. What I meant was you can have that condition and not go to the doctor about it." (George Dp. pg. 37) Dr. George agreed that he did not see any preexisting treatment records for the right knee or left ankle prior to the August 30, 1999 injury. Dr. George agreed that he examined Rothschild's left shoulder, and it was his opinion the August 1999 injury caused the left shoulder rotator cuff tear. "As far as I

know", the doctor said, Rothschild was pain free in the left shoulder before August of 1999. (George Dp. pg. 38) The doctor agreed that Rothschild told him he had injured his right shoulder at home and not at work. Dr. George agreed that Rothschild did not relay to him any medical history, and he did not obtain any medical history of any problems before August of 1999 to the left ankle; the doctor agreed that Rothschild relayed to him that he had no prior injury or treatment to the right knee before the injury of August 29, 1999. Dr. George stated "(C)orrect" that it was his opinion the osteochondritis dissecans was significantly aggravated or exacerbated by the fall of August of 1999 when Rothschild fell off the trailer. (George Dp. pg. 39)

On further cross examination by the claimant, the doctor was queried if the fall of 12 feet landing on concrete such as Rothschild had could cause severe drastic changes in the kneecap which would show up as osteochondritis dissecans.

"What I'm trying to say is the findings that were reported by the arthroscopist describe a condition which I called drastic. And what I meant by that was advanced degenerative changes in the knee which had been long-lasting. What I mean by that is preexisting August of ' 99 .

If one falls off a 12 -foot truck cab onto any kind of surface, one can damage any of his joints, but that kind of injury doesn't cause what was described by the arthroscopist. What they were describing was far beyond that, something that had been ongoing for probably 20 years and could have been aggravated by the trauma of August of '99, but there would be no way to tell because of all the wreck that had been there before secondary to osteochondritis dissecans." (George Dp. pp. 4243) (Ruling: Karst and Roloff objections are overruled. George Dp. pg. 42)

Dr. George agreed that in his report he had opined - "I consider his present condition to be due to preexisting osteochondritis dissecans aggravated to a significant degree by the trauma from 1999". The doctor further testified: "I agree with that. I mean, I think that's what I've been saying all along," (George Dp. pg. 44) (Ruling: All objections are overruled. George Dp. pp. 43 and 44)

Dr. Richard Rende, M.D. testified by deposition on behalf of Integrity Installation. (Integrity Installation Exh. No. 8) Dr. Rende stated that he is a board certified orthopedic surgeon. The doctor agreed that he evaluated Rothschild on June 2, 2004 on behalf of Integrity Installation and prepared a report. A history was taken from Rothschild which included any injuries and/or treatment, an employment history, the doctor agreed. I was provided various records for review, the doctor stated. Dr. Rende stated that he performed a physical examination of Rothschild. The doctor stated that he would testify in accordance with his report as to this information as well as his findings upon examination. Dr. Rende testified as to his impressions based on the history and the records: "That Mr. Rothschild had traumatic osteochondritis dissecans of his medial femoral condyle from an August 19, 1999, injury, and this injury resulted in a progressive degenerative osteoarthritis of the knee." (Rende Dp. pg. 9) The doctor was asked to explain what osteochondritis dissecans (OCD) was:

"OCD is a traumatic injury that occurs typically in people anywhere between the ages of 15 to 50 that results in a lesion that forms on the weight bearing surfaces of either the medial or lateral femoral condyle -

"-or in lay terms, the end of the femur bone. It's the part of the femur bone that bears weight. It's etiology is typically that of either idiopathic or trauma.

"Idiopathic means that there are people who have no known reason for the lesion to occur, but approximately 50 percent of these patients have a history of trauma. There's some theories that it could possibly be a vascular insult that is later dislodged by trauma, but regardless, many of them are traumatic in etiology and it basically results in complete loss of bone and cartilage from the end of the femur from one event.

"It's probably the most devastating of the injuries to the knee because in one fell swoop the patient becomes, as we would say, bone against bone." (Rende Dp. pp. 9-10)

Agreeing that there are different grades of OCD, Dr. Rende explained:

"A Grade I lesion is a lesion that occurs on the radiograph where the bone has lost its integrity but the piece actually does not break away from the end of the femur.

"That has the best prognosis. A Grade II lesion is one in which the piece breaks away partially or becomes unstable. Those can be pinned back in place with a fair prognosis, and then there's a Grade III lesion in which the piece becomes displaced completely and loses its entire blood supply, and those are the poorest prognosis, and that's the type of injury that Mr. Rothschild sustained." (Rende Dp. pg. 11)

Dr. Rende testified as to his additional impressions:

"It was my opinion that the osteoarthritis was directly a result of that particular injury. This was not a repetitive micro-trauma type of injury, and I felt that the gentleman also needed permanent work restrictions, and I went over those in my letter to you." (Rende Dp. pg. 11)

It was noted that Dr. Rende used the term "progressive generative osteoarthritis"; the doctor was asked what relationship, if any, did that have to OCD, and the following testimony occurred:

F. Well, OCD results all too often, especially in this age group in progressive degenerative osteoarthritis. Osteoarthritis is a wearing away of the cartilage on the end of the bone. Most of the time it's a slowly progressive disease that leaves you with exposed bone and no cartilage.

V. Okay.

F. OCD is a disease where it happens and it's done, it's there. It becomes exposed bone from one injury.

V. And does the progressive degenerative osteoarthritis, was that the result of the OCD injury?

F. Yes. The natural history of an OCD in a man of his age, especially a Type III OCD, is that it becomes progressively more severe and end stage degenerative arthritis results.

V. And that's the natural disease type process from this type of injury?

F. Yes. We call that the natural history of the disease.

V. Would his condition then progress like that without regard to his activities?

F. Yes, that's correct. (Rende Dp. pp. 12-13)

Dr. Rende agreed that he had reached an opinion on Rothschild's ability to work, and stated: "I felt that the patient was able to perform only light duty activities." (Rende Dp. pg. 13) The doctor noted that the restrictions necessary for Rothschild were that he shouldn't be allowed to kneel, squat, climb or lift repetitively over 50 pounds.

Dr. Rende was asked his opinion as to whether or not Rothschild's knee injury was a repetitive trauma in nature, and the doctor answered: "This is not a repetitive trauma injury or case.". (Rende Dp. pg. 13) Dr. Rende explained his opinion: "Because of my experience with osteochondritis dissecans. This is a well-known common problem." (Rende Dp. pg. 13) The doctor was asked if the knee condition he saw at the evaluation was related to the 29-day employment with Integrity Installations between July 2002 and September 2002. Dr. Rende responded: "This had nothing to do with that 29 days of employment." (Rende Dp. pg. 14) "This problem occurred long before Mr. Rothschild went to work for that company", the doctor further said. (Rende Dp. pg. 14) Dr. Rende agreed that he indicated the OCD would have progressed without regard to whatever activities Rothschild was doing. (Ruling: Claimant's objection is overruled. Rende Dp. pg. 14) It was noted that Rothschild was also alleging consequence injuries as a result of the right knee problem to the left ankle and also to the right shoulder from a fall at home at a later time. "I don't believe it had anything to do with his 29 days of employment (at Integrity) that late after his injury", Dr. Rende answered, and agreed that he meant this also as to the left ankle as well.

Agreeing that he felt Rothschild had permanent partial disability to the right knee, Dr. Rende testified: "I felt he had a permanent partial disability of his right leg at the level of his right knee of 30 percent as a result of the osteoarthritis dissecans injury." (Rende Dp. pg. 15) The doctor agreed that this assessment to the right knee was for the overall condition at the time of his evaluation of Rothschild on June 2, 2004. I did not find any disability with regard to the left ankle, the doctor said. Dr. Rende stated that he did not evaluate the right shoulder, noted from the fall at home.

Dr. Rende testified as to his opinion of whether or not Rothschild needed any further treatment: "I felt that this gentleman would be an excellent candidate for a knee replacement or partial knee replacement." (Rende Dp. pg. 16)

On cross examination by the claimant, the doctor was asked if his recommended restrictions for the right knee was because he thought it would hurt the knee. "Yes, it would make it worse and it would produce significant symptomatology to him", Dr. Rende answered. (Rende Dp. pg. 18) The doctor was then queried - so any kneeling, squatting climbing, or lifting repetitively over 50 pounds would make the knee worse? Dr. Rende responded: "I'm talking about his symptoms when -- when you come to a physician, we're human beings, we don't want to inflict pain on someone. And that's the reason I said that." (Rende Dp. pg. 18)

During cross examination by the claimant, Dr. Rende agreed that his opinion the claimant needed either a total or partial knee replacement was attributed to the injury back in August of 1999 when Rothschild fell off the truck.

Dr. Rende stated, during cross examination by the claimant, that osteoarthritis dissecans and avascular necrosis have different etiologies, and explained:

"Avascular necrosis implies more of a vascular damage and it usually is a little more extensive. Osteochondritis dissecans is more of a focal area of loss of blood supply.

"Avascular necrosis is a slightly different disease, it manifests itself similar but it looks different radiographically, it behaves a little bit differently." (Rende Dp. pp. 20-21)

Avascular necrosis does not develop from osteoarthritis dissecans, Dr. Rende said. "The osteochondritis dissecans lesion frequently loses its blood supply but it's a traumatic loss of blood supply because of the loss of the integrity of the subchondral bone", the

doctor further stated. (Rende Dp. pg. 21)

On cross examination by Roloff, Dr. Rende stated that half the people in the literature who have osteochondritis dissecans have no history of trauma. "Most of those patients are in the teen age group", the doctor added. (Rende Dp. pg. 23) The doctor stated that he has had a middle aged patient without a history of trauma and have OCD. Dr. Rende was asked what the x-rays would like in a patient without a history of trauma and relays some symptoms of OCD. The doctor answered: "Most atraumatic lesions present as Type I lesions. That means that the radiograph shows a small halo, but the piece that's avascular is still in its anatomic position." (Rende Dp. pg. 24) (Ruling: Claimant's objection is overruled. Rende Dp. pg. 23) The doctor was asked what an x-ray would like in a patient who had preexisting, diagnosed OCD and is subsequently seen with a history that the day before he had an accident; Dr. Rende responded - "It depends on whether the trauma converted it to a Type II or Type III." (Rende Dp. pg. 25) The doctor was asked if it was possible that a trauma could convert a Type I to a type II or a Type II to a Type III. Dr. Rende answered:

"If you look at the literature, most of the Type II lesions have some traumatic history. It's the Type I lesions that typically are more likely - I shouldn't say more likely, they're equally likely to have trauma or not, but the displaced lesions, you usually have a history of trauma." (Rende Dp. pg. 25)

Dr. Rende stated that in Rothschild's case, it would not make any difference if in the August 1999 accident he landed on his feet and twisted his right knee; "(S)imilar etiology or history in treatment", the doctor further said. (Rende Dp. pg. 26) The doctor stated that if a person suffered a traumatically induced OCD he would not necessarily expect a significant amount of pain immediately, but he would expect bleeding of the bone immediately. The doctor was queried if he had also said that OCD even in patient of middle age could be a degenerative type condition. "I wouldn't call it degenerative, I would call it a dysvascular condition", Dr. Rende responded, and explained that "(T)hat means it's an area because of trauma has lost its blood supply". (Rende Dp. pg. 26) (Note: Ruling: Claimant's and Second Injury Fund's objections are sustained. Rende Dp. pp. 27, 28 and 29) Dr. Rende was shown x-rays in the case, and testified as to what a 9/3/99 x-ray revealed as to whether or not this was a traumatically induced OCD versus a preexisting OCD:

"Well, what this x-ray shows is it shows that the base of the lesion is very smooth and sclerotic and it suggests that there's been some separation of the normal vascular bone from the avascular bone below. This suggests that the OCD lesion was, in fact, present for some time." (Rende Dp. pg. 31)

The doctor agreed that the 9/3/99 x-ray suggested the OCD lesion was present before August 29, 1999. "There's also a very small osteophyte here, but that is really a minimal degenerative change, so -". (Rende Dp. pp. 31-32) The medial joint space looked normal on the 9/3/99 x-ray, Dr. Rende said. The doctor commented on the differences seen on the next x-ray taken on 2/9/00:

"The difference here is that now the loose fragment has been removed and there appears to be significant narrowing in the medial joint space, at least 30 percent loss of height of the medial joint space, relative to the films that were taken preciously." (Rende Dp. pg. 32)

The next x-ray taken on 8/1/00 is essentially the same, Dr. Rende said, "(T)he difference in the two films, the osteophyte that was located in the medial joint space in the prior film, which was two millimeters, is now probably three millimeters." (Rende Dp. pg. 32) Concerning the last x-ray taken on 1/2/01, Dr. Rende testified: "(T)his picture is roughly the same as the last one. I don't see any appreciable difference." (Rende Dp. pg. 33) Dr. Rende agreed that after viewing the 9/3/99 x-ray , it was now his opinion the claimant had preexisting osteochondritis dissecans at the time of the August 1999 accident. The doctor was further queried - the osteochondritis condition itself was not traumatically induced by the incident, correct? "The lesion itself looks like there has been some vascular insult present for some time prior to, possibly up to three or four years", Dr. Rende answered. (Rende Dp. pg. 33)

On cross examination by Karst, Dr. Rende explained that OCD involves the cartilage that basically forms the end of the femur bone "(A)nd its underlying support structure, a small fragment of bone". (Rende Dp. pg. 34) "You seldom see just the cartilage peeled away, it's usually a little piece of the bone as well as the cartilage that breaks off", the doctor further explained. (Rende Dp. pg. 34) The theory is that "it's actually the bone that's traumatized and it gets loose. The support of the cartilage, which is the bone, comes off with it", the doctor said. (Rende Dp. pg. 34) "The theory is these are traumas, but 50 percent of these don't have a specific history of that", Dr. Rende said. (Rende Dp. pg. 35) The doctor was queried, was it correct that the condition becomes a progressive condition because of the devascularization of the fragment. Dr. Rende answered: "Once the fragment is displaced it loses any little bit of blood supply that it may have had and has to be removed surgically, because it becomes a mechanical blockade to the knee." (Rende Dp. pg. 35) Dr. Rende was asked - is there any question, after reviewing the x-rays, that after this accident of falling off the truck, Rothschild had a Type III OCD lesion. The doctor answered: "Well let me answer this. There's no question that that x-ray on the left (9/3/99 x-ray) is a Type III OCD." (Rende Dp. pg. 36) Dr. Rende agreed that from that point on the condition was going to progress, and that when he reviewed the operative notes of Dr. Matthews and subsequently Dr. Haupt he could actually see the progression throughout the year 2000.

During cross examination by Karst, it was noted that Dr. Rende had testified earlier that Rothschild's was not a repetitive micro-injury situation; Dr. Rende was asked to explain what he meant by that and the following testimony occurred:

D. Well the question that was brought to me by the letter that I received is could this have anything to do with his subsequent jobs, and my answer was no. This occurred as an injury and the subsequent jobs didn't have anything to do with it.

T. So subsequently activity - I think you testified to it on direct - can produce some symptoms for Mr. Rothschild, is that correct?

D. Once you've got this you're going to have symptoms and they're not going to go away.

T. But the underlying progress of this disease got set in stone when Rothschild fell off the truck?

D. It got set in stone when that piece broke loose, became a Type III lesion.

T. Okay. And nothing really that he did after that could significantly accelerate or aggravate the underlying condition of OCD?

D. It could have, but it didn't in this case, and the reason it didn't is because of his age. (Rende Dp. pp. 37-38)

Noting the OCD is normally recognized at an earlier time and treated, that most patients he sees are referred to him by pediatricians, Dr. Rende further stated that younger people have a better prognosis than 51 year olds, and 51 is probably the oldest you'll see this. "Most of the Type 3s are break loose as a result of trauma"; "It doesn't have to be a significantly huge trauma to break loose"; "With a Type III, oh yeah, everybody that has a Type III is going to have pain because they lock the knee joint", Dr. Rende testified. (Rende Dp. pp. 38 and 39) Stating that a patient who has surgical removal of the lesion is going to get continued pain and symptoms, Dr. Rende explained why: "...because they've got bone on bone, and bone on bone is what happens. It's one of the few conditions in the human body where one day you don't have arthritis and the next day you've got bone on bone." (Rende Dp. pg. 39) The doctor was asked - these activities that cause Rothschild to be symptomatic, they're not changing the underlying nature of his OCD disease are they? "They are not", Dr. Rende answered. (Rende Dp. pg. 39)

On cross examination by the Second Injury Fund, Dr. Rende stated that he did not review any x-rays prior to the 1999 injury, and agreed that it would helpful in actually determining if Rothschild had Type I OCD before the 1999 traumatic injury. Dr. Rende indicated that based on the x-rays he was shown at his deposition "I see that he had OCD of some sort before the event". (Rende Dp. pp. 42-43) Dr. Rende agreed that a person can have the beginning type of OCD and be asymptomatic.

On further cross examination by the claimant, Dr. Rende agreed that he had been shown x-rays that preexisted Rothschild's fall of the truck that was indicating he had OCD. The doctor was referred to the 9/3/99 x-ray, and Dr. Rende noted that it revealed a Type III OCD. The doctor was asked - you can't really say that the Type III lesion was four years old, four weeks old, four months old or four days old, can you, just from the film alone? Dr. Rende answered: "That's correct. The film doesn't tell you how long that piece has been displaced." (Rende Dp. pg. 47) The doctor was further queried - the osteochondritis dissecans displacement could have been a week old. "The displacement would probably match his symptoms", Dr. Rende responded. (Rende Dp. pg. 47) When queried, the type of displacement seen in the 9/33/99 x-ray would be consistent with pain originating from falling off the truck, Dr. Rende answered: "I would say very easily that that would be very painful and his knee wouldn't straighten all the way." (Rende Dp. pg. 48)

During further cross examination by the claimant, Dr. Rende stated that Rothschild needs knee replacement now, and agreed that the need for the treatment is because of the injury in 1999.

On further cross examination by Karst Construction, it was noted that Dr. Rende had testified earlier that after Rothschild fell off the truck, on a scale of 1 to 10 he was a 10 , he was already as bad as he was going to get; the doctor was asked - with regard to subsequent activities, did they aggravate his pain or do they aggravate his underlying condition? "It aggravates his pain and it puts other parts of his body at risk", Dr. Rende answered. (Rende Dp. pg. 55) Agreeing that he meant other parts of his body outside of his knee; "(H)is knee is already as bad as it's going to get", the doctor further said. (Rende Dp. pg. 55) Dr. Rende added:

"Working for 29 days for this guy or 6 months for that guy didn't make this guy's knee suddenly need to be replaced. It was the lesion that occurred at his age that resulted in bone on bone, with a snap of the fingers." (Rende Dp. pg. 55)

James E. Israel, vocational rehabilitation counselor, testified at the hearing on behalf of the claimant. I saw Charles Rothschild at my office on July 27, 2004 on behalf of the claimant, Israel said, and the Vocational Rehabilitation Evaluation report was completed on October 14, 2004.

Prior to interviewing and evaluating Rothschild I reviewed medical records and reports, Israel said. Those records, which I certainly will need to refer to my report, include: Orthopedic Associates, Ravi Yadava, D.O., August 3, 1999; HealthSouth TriCounty Surgery, Thomas Matthew, M.D., January 19, 2000 to June 22, 2000; HealthSouth Surgery Center of West County, Herbert Haupt, M.D., January 25, 2000 to January 26, 2000; Missouri Baptist Medical Center, August 4, 2000; Orthopedic Associates, Herbert A. Haupt, M.D., August 1, 2000 to March 20, 2001; ProRehab, P.C., August 3, 2000 to March 7, 2001; England \& Company Case Management Incorporated, July 18, 2000 through May 4, 2001; Neurological and Electrodiagnostic Institute, David M. Peeples, M.D., February 20, 2001; Shawn L. Berkin, D.O., May 9, 2001; Fischer Chiropractic Center, Alfred Fischer, D.C.,

September 12, 2002; Herman Area District Hospital, October 4, 2002; J. H. Morrow, Jr., D.O., October 8, 2002; Washington Chiropractic Clinic, September 7, 1995 through October 25, 2002; Patients First Healthcare, LLC, Thomas Matthews, M.D., October 20, 1999 to October 28, 2003; St. John's Mercy Hospital-Washington, October 28, 1999 to August 26, 2003; the Division of Workers' Compensation records, September 17, 2003; the deposition of Charles Rothschild, and that includes January 16, 2001 and March 16, 2004; Raymond F. Cohen, D.O., January 15, 2004 to June 22, 2004. Israel noted that subsequent to meeting with Rothschild, two documents became available -- the deposition of Dr. Raymond Cohen taken on July 14, 2004; and also England \& Company Rehabilitation Services, James England report of August 12, 2004.

The evaluation of Rothschild on July 27, 2004 included an interview and there was vocational testing, Israel stated. I interviewed him about his work history, educational background, Israel said, and later on, I looked at the issue of his transferable skills. I administered two tests, the Wide Range Achievement Test and the Purdue Peg Board Test, Israel said.

I was asked to assess Rothschild's ability to compete in the open labor market; what factors in time impacted him adversely as to whether he could work or not, that is work as a truck driver or as a carpenter, and in what time line did these factors have an impact; and essentially how was he vocationally affected as a result of the combination of his condition, Israel testified.

In his October 14, 2004 vocational rehabilitation evaluation report (No. C), Dr. Israel included the following in the Employability Section:

Occupations within these initial guidelines could be found in a limited ranged of sedentary and light strength classification of employment as defined by the U.S. Department of Labor. However, these overall restrictions or guidelines now provide for an excessively narrow range of work capacity within both sedentary and light ranges. Considering these restrictions, Mr. Rothschild is clearly unable to return to his past occupations as a truck driver or carpenter.

The vocational assessment found Charles to have a $12^{\text {th }} grade formal education with current academic skills ranging from the 6^{\text {th }} percentile through the 12^{\text {th }}$ grade levels. His manual dexterity speed when compared to others in the sample population was deficient. He would be a viable candidate for selected alternative vocational education or advanced training options when these specific profile factors are considered, independently of his current overall functional status.

The Employment Statistics Quarterly, Third Quarter 2004, shows the existence of significant numbers of unskilled or semiskilled sedentary or light jobs (e.g. assemblers, order clerks, handpackers, cashiers, etc.) in the local labor market. While Mr. Rothschild's earlier medical guidelines do not categorically preclude all sedentary and light tasks, he is not at an insurmountable disadvantage in seeking and securing those lesser skilled jobs that exist in the local economy. At 51 years old, Charles has not worked in an alternative capacity. He could not apply any of his past background as a truck driver or carpenter. He has now has poor capacity to adapt to work that he has been previously unaccustomed to performing. The types of unskilled or semi-skilled sedentary or light tasks that meet the medical guidelines generally do not afford the degree of latitude and work site accommodations that Charles's physical disabilities would now necessitate.

Therefore, when considering his age of 51, education current skills, overall physical limitations and pain combined with the job opportunities within his remaining work specifications, he is insurmountable disadvantaged. Charles, without medically determined improvement followed by extensive work adjustment training to rebuild his work stamina and pace, would not have favorable prospects at keeping any job within these medical guidelines. Employers in the usual course of selecting job applicants would avoid hiring an individual with Mr. Rothschild's overall profile in favor of individuals who are more work ready and able. His current overall limitations, pain, educational and work background factors, and required work site accommodations have certainly rendered Mr. Rothschild unable to compete in the pen labor market.

Dr. Israel included the following in the Conclusion Section of his October 14, 2004 report:

Mr. Rothschild had sustained right knee, left shoulder, and left ankle injuries in an accident on August 30, 1999. Following the accident, Charles resumed significant work activity with other employers as noted above until pain forced him to cease all duties in September, 2002

Charles is an older worker (age 51) with a completed high school education. Vocational testing indicated that his academic skills at present are both below and equal to his achieved schooling level several years ago. His manual dexterity speed was deemed to be deficient. Charles is clearly unable to return to his past occupation as a truck driver or carpenter. He does not have vocational skills transferable to other occupations within his current physical capacity. Charles would not currently be able to sustain gainful work within any exertion classification as defined by the U.S. Department of Labor.

Charles Rothschild is disabled from his usual occupation as a truck driver and carpenter as well as from related occupations for which he would be qualified by education and experience as a direct or proximal result of the industrial injury sustained on August 30, 1999. Successive work injuries accrued from ongoing carpentry duties from 2000 to 2002 (as noted in the medical records). Hence, Charles inability to resume substantial gainful activity is the result of medically determined

limitations from both primary and pre-existing industrial injuries or conditions.

The work injuries of August 30, 1999 was the beginning of Charles's work impeding disabilities. The further re-injuries occurred in successive employment as a carpenter from 2000 to 2002, had considerably exacerbated his disabilities (as he performed heavy, repetitive tasks). His right knee injury in September, 2002 continued the cycle of general decline of his vocational potential. As several of his carpentry jobs from 2000 to 2002 were of short duration (less than one year), precise discernment of vocational loss is each instance is untenable. However, overall, Mr. Rothschild is indeed disabled by the series of work events as described form 1999 to 2002. Hence, Charles inability to resume substantial gainful activity is the result of medically determined limitations from all related industrial injuries or conditions.

Mr. Rothschild's diminished endurance capability makes it quite unlikely he could sustain any substantial gainful or fulltime job. The cumulative effects of his physical condition, age of 51, education work background and the special work site accommodations required of prospective employers have placed him at an insurmountable disadvantage. Employers in the usual course of selecting job applicants would avoid hiring an individual with Mr. Rothschild's overall profile in favor of individuals who are more work ready and able. His efforts to locate, apply for, obtain, adapt to, and maintain a suitable job would be replete with obstacles. Under these combined present circumstances, Charles Rothschild certainly cannot compete in the open labor market. (sic)

Israel noted for the record at the hearing that he was referring to and planned on continuously referring to as a source his report and the notes throughout his testimony at the hearing. Agreeing that he had taken data regarding Rothschild's age, Israel stated that he had Rothschild as 51 years old.

Eluding to and relying upon my report at this time, Israel said, Rothschild arrived on time for his scheduled evaluation having driven from his home in Herman, Missouri. Rothschild was referred for evaluation following an injury to his right knee, left shoulder, left ankle, and work-related accident on August 30, 1999, Israel said. He is six feet one inch tall and reported a current weight of 272 pounds, varying between 260 and 304 pounds due to giving up cigarette smoking. Rothschild is right hand dominant, Israel said. He has difficulty with his ability to participate in any enduring activity; he related to the examiner in a cooperative manner; he appeared to put forth good effort during the vocational assessment, Israel testified. He noted Rothschild's primary complaints as indicated in his report, as well as Rothschild's relayed functional limitations. Rothschild's ability to communicate with the interviewer was adequate, Israel noted. Rothschild appeared to be in notable discomfort throughout the course of the evaluation, Israel said. A break was taken after one hour with Rothschild reporting the presence of pain in his right knee; he was able to complete the Wide Range Achievement Test 3, known as the WRAT3 and the Purdue Pegboard Test.

Israel was voir dired on any independent recall he might have of the interview and information regarding Rothschild. Israel admitted that to the last three or four questions he had referred entirely to his report, and had actually read portions of page 2 and Page 3 of the report. Israel noted the things he recalled about Rothschild such as Rothschild standing, and how uncomfortable he was during the interview. But in terms of much of the time line, the kind of jobs he held, who he worked for, I don't recall; I must rely on the records as there's many, many facts in this report. So I am relying heavily on my notes, but I do recall Rothschild, Israel said, and as I see him today at the hearing I certainly remember that interview. Israel testified the questions can cover a very wide spectrum of work history, education, the sequence of events and medical procedures, and the complexity really does require that I make some reference and would need to rely on these notes as I normally do. It was ultimately agreed and stipulated by the parties that Israel would testify in complete conformity with his report dated October 14, 2004.

Israel discussed Rothschild's background, noting that Rothschild reported his general health to have been good prior to August 30, 1999, the date of his initial work injury; Rothschild did not have any preexisting condition that imposed any discernable work limitation. Charles' present work-impeding difficulties began on August 30, 1999 while in the course of employment with Roloff Trucking, Israel said, and then discussed the work related accident and subsequent treatment. Israel noted Rothschild's subsequent employments as a carpenter and duties in those employments.

Israel noted that Rothschild's Wide Range Achievement Test was below and equal to his achieved education several years ago, it refers to his twelfth grade high school diploma, in 1971, several years ago. Arithmetic at the end of the sixth grade; spelling in the middle of the eighth, but would be the middle of the twelfth grade, there about, his high school education; so that is the point of explanation of below and equal to his prior education.

Israel was asked on what did he base his statement that Rothschild is clearly unable to return to his past occupation as a truck driver or carpenter. I based that on very consistent functional limitations as it relates to both upper and lower extremities, Israel answered, what he can use from his upper extremities, i.e. lifting restrictions, and current limitations affecting both the upper and lower extremities, i.e. the limitations on standing and walking, on pushing and pulling of the upper extremities; these are so severely limiting to what a carpenter would do and a truck driver would do. These limitations easily and singularly eliminate both of those prior physically demanding occupations, Israel said.

Israel was asked why he had said Rothschild does not have the vocational skills transferable to other occupations within his current physical capacity. He has transferable skills by virtue of being a truck driver and a carpenter, but not when he's limited to seven

pounds, as an example, with his left hand, and not with the push and pull limitations; not with the type of standing and walking restriction, the various functional limitations, Israel answered. These limitations are very prohibitive, not only on the jobs of a carpenter and a truck driver, but any kind of skill and knowledge that he accrued over the years; he cannot use that within the residual capacity remaining after all these limitations are duly considered, Israel further testified.

On cross examination by Roloff Trucking, Israel agreed that he had found that Roloff had a middle of the twelfth grade reading level which was pretty good. It should be no barrier to many types of jobs as long as you consider the overall profile; yes, it's a constructive score, Israel said. With his eighth grade spelling, it would depends on the job, Israel testified, some jobs require no spelling in which case it's not an issue at all but some jobs require spelling. What I mean is there's many variables, and middle eighth grade spelling is a weak spelling score, but often you could work around it. My conclusion here notes that these overall scores are adequate for some of the entry level, unskilled positions out there, quite a number, Israel stated. He agreed that the same thing would be true even of sixth grade math skills. In fact Rothschild had worked with those scores as a carpenter, as a truck driver, and many others, Israel noted.

Israel agreed, during cross examination by Roloff Trucking, that after Rothschild was placed at maximum medical improvement by Dr. Haupt for the August 30, 1999 injury Rothschild subsequently went to work as a carpenter at a number of much heavier duty jobs than he had while working at Roloff Trucking. Israel agreed that being a carpenter is a much more physically demanding job than truck driving. He agreed that based on his history over a year and a half after being released by Dr. Yadava and Dr. Haupt from the August 30, 1999 injury, and after leaving the employment of Roloff Trucking, Rothschild was able to perform all of those jobs and do the work for those time periods. But also the issue ultimately of his sustainability, does this person last at that job, to constitute gainful employment; so, yes, performance, but sustainability seems to come into the issue here, Israel added. Agreeing that the claimant was employable in the open labor market on the day he left the employment of Roloff, and on the day he began working for Karst Construction Company, Israel further stated as he was working, or as he was making an attempt to go back to work, yes. When further queried if he would also then agree that Rothschild was employable in the open labor market on the day he left Karst Construction Company and the day he began working for BAM Construction Company, Israel responded - I can say this; I was asked to look at his employability at the time I saw him as opposed to those other times. Clearly he went from Karst to yet another one or two jobs actually. So that transfer spoke for itself; that he was working and worked until completion of that time period at each of those respective carpentry jobs, Israel testified. As he worked for the time period that he did, yes, Israel stated, the same statement would be true with respect to when Rothschild left the employment of BAM and began the employment of Integrity - he was employable in the open labor market.

Concerning restrictions he considered, Israel stated during cross examination by Roloff Trucking, I looked at all of the medical records with an emphasis on the most recent records in the past year particularly, or even a year or two that noted what would most directly relate to what limits him. The most recent report was also weighed heavily, and that was Dr. Cohen's of 6/22/04, Israel said. He agreed, though, that at looking at the restrictions in his report they appear to be mainly a combination of Dr. Morrow's and Dr. Cohen's restrictions. Israel was queried as to the reason he disregarded Dr. Matthews', one of the treating surgeons, conclusions that the claimant was capable of working. The latest record of Thomas Matthews is October 28, 2003, and I was referring to the datedness of that 2002 report, that was prior to evaluation or comprehensive assessment of Dr. Cohen in 2004; I didn't have anything later than October 28, 2003 from Dr. Matthews, the most recent was Dr. Cohen, Israel answered. Israel stated that he had no knowledge of Dr. Matthews' testimony that the claimant should be working -- doing carpentry and perhaps even at his own carpentry shop. I have no knowledge of that, Israel responded. When asked if this would change his opinion at all, Israel responded that he would have to see what Dr. Matthews said and what the limitations are, and what context before he could judge by that.

On cross examination by Karst Construction, Israel was queried about his statement in his report - based on Dr. Cohen's statement that Rothschild is "incapable of gainful employment in the market place", he wrote his opinion - "Well, I based my opinion that he's incapable of employment in the market place on Dr. Cohen's conclusion that he was incapable of employment in the market place." Stating that it wasn't that simple, Israel explained that the vocational assessment takes in many elements that any medical assessment can't. I look at the age, the education, the work experience, the employment, the vocational rehab training possibilities, he said. All of these are factors are what plays into whether or not a transition can be made to alternative employment or not, Israel stated. I defer to the physician to make the medical call, then I make the employment corollary as well from all of the medical records, he said. I looked at all of the records that are outlined, Israel testified, the limitations that were also eluded to by other physicians in earlier time periods; I'm looking at the competing issues of upper and lower extremity, that has a time line as well, I'm looking at the time of carpentry and truck driving duties, the test scores, the educational background, and the potential for readapting to alternative employment. Dr. Cohen is merely the latest, the most recent, Israel said. But just as my report noted earlier physicians and their limitations, for example in 2002 or 2001, these are all part of what are factors in the time line.

During cross examination by Karst Construction, Israel stated that he was not given a copy of Dr. Rende's report or his deposition. Israel admitted that he was not aware that Dr. Rende had evaluated Rothschild as late as June of 2004. Israel stated that he was not aware that Dr. George evaluated Rothschild again in June of 2004, concurrently with Dr. Cohen, and that he was not given any of that information. I was not given transcripts of the two days of Dr. Matthews' deposition to review, Israel stated. Only through October of 2003 is the latest records for Dr. Matthews is what I have, Israel said. I did request an updated medical records, Israel noted, which is why the report came October 14, 2004, having seen Rothschild on July 27th. I needed more records. Israel

agreed that the only things he received in response was the deposition of Dr. Cohen and the report of Mr. England. He was queried whether or not it was odd that he did not see any employers' evaluations. I don't look at who had been on the defense or the plaintiff, Israel responded, I look at the issue of a medical person who is a physician, who makes a diagnosis of functional limitations and I don't attempt to get out of that domain and figure whose representing what.

On cross examination by B.A.M. Construction, Israel agreed that in the section of his report entitled "Functional Capacity" there was no reference to anything Dr. Matthews, Dr. Haupt or Dr. Peeples may have said. There certainly was a reading of Dr. Matthews' extensive treatment records up through October of 2003; Israel added. When queried if through some process he picked and chose which of the physicians he was going to use to include their information in the Functional Capacity portion of his report, Israel answered - No, is isn't like a process of picking and choosing; it's all part of the record; there is a timeline. Look at what the limitations are, Israel added, all of them are considered. If I were to quote every doctor that is listed on page 1, it would be a very, very long report, he said, and the point is that all of these were reviewed and considered. What I did was highlight what were the most current limitations that I had, Israel stated.

The emphasis that had the most weight was the June of 2004 current statement regardless of who that source was; it happened to be Dr. Cohen who did that evaluation; if there were other records that are relevant in 2004 then they ought to be considered as well, Israel testified. Israel admitted the fact that Dr. Haupt and Dr. Yadava released Rothschild to return to work without restrictions wasn't noted in the Functional Capacity portion of his report. That's not repeated, he added. The information in the section entitled "Education and Training" was a result of my interview with Rothschild and any other references that may have eluded to it, but, yes, it was primarily Rothschild's assertions about how far he went in school. Israel said. The information in the section of my report entitled "Work experience" came from Rothschild and if there was any reference or information in a report that added light to it, but primarily Rothschild explained pretty clearly what he did, Israel said. Israel was queried if it was correct that his conclusion in his report was that there are occupations within the physical range of skills possessed by Rothschild. Yes, he certainly has transferable skills, there are occupations that a person can do whose been a carpenter and whose been a truck driver though not within his current capacity, Israel answered. It was noted that in his report Israel wrote - "Occupations within those initial guidelines can be found in a limited range of sedentary and light strength classification of employment as defined by the you U.S. Department of Labor." Initial guidelines of doctors did allow for some capacity of work within a sedentary to light range, Israel responded. This was before Dr. Cohen's determination that Rothschild was totally disabled, Israel agreed.

On cross examination by Integrity Installations, Israel agreed that the most current report was what he put more emphasis on, and that he put the most emphasis on Dr. Cohen's June 2004 report. Israel agreed that he was aware that's Dr. Cohen's primary evaluation occurred on January 15, 2004 and Dr. Cohen's June, 2004 report said it was for a supplemental medical rating. He agreed that he had concluded that all of Dr, Cohen's opinions remained the same from January, 2004. Israel agreed that he was unaware of and didn't have the report of Dr. Rende or Dr. George, and it was noted that both of these were orthopedic doctors who saw Rothschild in June of 2004. Israel was shown Dr. Cohen's second report from June of 2004 (marked as Employee's Exhibit C from Dr. Cohen's deposition) and asked to read the second sentence on the first page - "Additional records were reviewed as they include an IME of 6/2/04 from Dr. Rende.". When asked if he had ever asked for Dr. Rende's report after reviewing Dr. Cohen's June 2004 report, Israel stated that he believed that there were more records that he needed to see and he made that request, but, no, he didn't say - I want this doctor or that. I didn't ask for specific doctors, I wanted them all, Israel said.

When I received the updated records I believed that I got all the relevant records.

On cross examination by the Second Injury Fund, Israel agreed that Rothschild told him that he had no preexisting injuries before the August 1999 injury, and the medical records did not contradict that fact. Israel stated that the claimant told him that he had driven to Israel's office from Herman, Missouri, and that is a distance of a little more than an hour; he agreed that as far as he knew Rothschild was driving himself home. When Rothschild ambulated into my office he had a knee brace, I believe, Israel said. He agreed that he asked Rothschild about the August 1999 work injury, and that Rothschild told him he had worked for a short period at three subsequent car[entry jobs. Israel was queried - isn't it correct you're not aware that there were any work injuries at any of the subsequent jobs. As I understood it, Israel answered, what he had told me is that the demands of the carpentry were hard for him, and in that sense became more difficult. I would just say the records speak of the injuries that occurred, Israel testified, I defer to the records that talk about the 1999 injury and all the other particular events leading up to 2002 -- the 9/1/01, the 9/1/02. There were other events since 1999 as he tried to do his carpentry job, Israel stated. Israel stated that he was not aware of any medical records for treatment for any specific work injuries during the three subsequent jobs. Israel said the he believed there was some statement or some reference, though he didn't have independent recall, that the claimant after he left the last job at Integrity applied for unemployment compensation. I do believe that Integrity was Rothschild's last job and that after that he was not able to keep any employment or find any employment at all, Israel said.

Israel agreed, during cross examination by the Second Injury Fund, that Rothschild has a high school education plus some college classes at East Central College. Israel stated that writing and reading would not be barriers for Rothschild; no, academics is not his barrier in that regard. I believed I asked him if he had any computer skills and he does not have any current computer skills with a PC, he said. I asked him if he handled his own finances and I believe that he handles his finances or handles daily living functions, Israel said. Rothschild as a truck driver or a carpenter I think had delegated tasks to people, but, he was not a supervisor and was not a foreman as I understand it, he said. Israel was queried, wasn't it correct that Rothschild's assertions of physically being able to lift 150 pounds, to sit for 90 minutes and to stand for 60 minutes, these three items themselves would not restrict Rothschild from seeking a sedentary or light position. What I observed of him was a person who was restless, who stood up, who

appeared very uncomfortable, Israel responded, so what I observed seemed at variance with what his assertions were. But based on those assertions, if it was as he said, yes, there would be a whole different profile, Israel said.

During cross examination by the Second Injury Fund, Israel was asked wasn't it correct that when he came to his conclusion that he didn't think Rothschild could seek employment, among the factors he took into consideration physically were his right knee, his left shoulder, and his right shoulder. The opinion certainly did take in all of those records and his overall condition, Israel answered. He was asked, when you did an Oasis Test did you take all the data of Rothschild's past experience in heating and cooling as well as his experience as a truck driver and as a carpenter. I enter the job information of the past 15 years, and referred to his past relevant experience; in this instance his extensive experience as a truck driver and his background as a carpenter was in the past 15 years; I believe these were the jobs that were in the past 15 years. Heating and ventilation, air conditioning goes back to the early '70s in the Air Force, I believe, and some work since, but as past relevant work, no; it was centered really in two areas, carpentry and truck driving.

On redirect examination, Israel testified based on my evaluation, my interview, the testing, the review of the records noted in my report, and the subsequent records; based on the factors of age, education, work experience of carpentry and truck driving background, the residual capacity of the upper and lower extremity, I believe at this time Rothschild is not able to compete because of these combined factors.

James M. England, Jr. testified by deposition on behalf of Roloff Trucking. (No. 1) A rehabilitation counselor. England stated that he is a rehabilitation counselor, and that he reviewed medical records and reports and two depositions of the claimant, and prepared a report dated 8/12/04. England agreed that the claimant provided a complete family, educational and vocational background in his deposition. England was asked to testify as to what he had determined about Rothschild's vocational history:

"Well. The first nine years - well, he had worked for about nine years for Roloff Trucking. He said he worked about fifty hours a week and made about ten0fifty per hour. After that he had worked for Karst.....Construction, from March of 2001 to November of 2001. He said that he had worked full-time but it was on a sporadic basis, just when the work was available. He thought he made twenty-five to twenty-six an hour when he was working there. He had worked for BAM Construction earning about thirty per hour. He said he thought he worked there about three months. He left there because of a lack of work, and he did indicate that if he had not been laid off he would have stayed working for that company.

He said he started working for Integrity Construction in July of 2002. That he was there through September of that year. He explained that on that particular job he would assemble and install retail jewelry and cosmetic cases at department stores, and he said he left there in September of 2002 because his pain had worsened and he just didn't feel he could handle that type of physical activity any longer. He indicated that he drew unemployment for about sixteen weeks or so after that and indicated that the did complete the paperwork indicating that he was ready, willing and able to work and that he was, in fact, looking for all alternate employment.

He was also asked about what he had done before he went to work for Roloff Trucking. He said he had worked for several years on his own operating his own business doing home remodeling, finishing basements, things of that nature. He had also driven some other trucks in the past. That included anything from dump trucks to eighteen wheelers. I felt his primary skill and knowledge would be that in truck driving and carpentry. And it appeared to me that it did not appear that he could go directly back to these forms of work based on the medical evidence, but I felt his knowledge of trucking would certainly give him an edge in applying for something like dispatching and at the same time his knowledge of carpentry I think would be idea for Allied Construction positions, such as sales of construction materials, working at an answer desk, dealing with customers who need knowledge about what kind of building materials to buy for a particular project, that type of thing." (sic) (England Dp. pp. 11-13)

England testified as to his conclusions after his evaluation (at the deposition it was agreed and stipulated to by the parties that England would testify in accordance to his August 12, 2004 vocational rehabilitation evaluation report):

There is obviously a variance of opinion with regard to this man's physical capability. Based on Dr. Rende's findings Mr. Rothschild would not be able to go back to his previous work as a carpenter but he would certainly be able to perform a variety of work at the light to medium levels of exertion.

Utilizing his past acquired knowledge, it would appear that he would be an ideal person to train as a dispatcher or that he could use his construction knowledge in sales positions and customer service positions. He could obviously also acquire additional skills at no cost through the Missouri Division of Vocational Rehabilitation which would help him with tuition, books, transportation money, etc.

Only if one accepts Dr Cohen's opinion that the man cannot sustain even sedentary work could one conclude that this man in unemployable. If Dr. Cohen is right then Mr. Rothschild's lack of employability would be due to a combination of a number of different impairments rather than simply one injury that has occurred.

Dr. Cohen added in his deposition that it was possible, in his opinion, that with additional treatment Mr. Rothschild might

improve physically and might then not be permanently and totally disabled.

He also admitted that he would defer to a vocational expert as to whether or not there might be suitable jobs for the claimant with his medical conditions. (Ruling: All objections are overruled. England Dp. pp. 14, 15 and 16)

On cross examination by Karst Construction, England was asked about his statement - a combination of injuries - was he talking about a combination of the shoulders and the knee? England responded: "...I'm not saying that's right or wrong, I'm just saying that's what Dr. Cohen indicated, that it was the man's combination of impairments and my understanding the combination would be that he's he had problems with both shoulders and his knee". (England Dp. pp. 19-20) England was further queried - o you're not actually rendering an opinion here today whether this man is permanently and totally disabled, if he is, as a result of a combination or as a result of one injury or anything like that, you're just simply giving us what Dr. Cohen said. England answered:

"What I'm saying is vocationally the only opinion that I can see in here from a medical standpoint - as a vocational person I can't put restrictions on somebody.

"One set of restrictions I think there are plenty of things he can do. The other doctor doesn't list restrictions but just says I don't think he can even do sedentary work. But that some doctor also says the reason I don't think he can do sedentary work is due to a combination of these medical problems. And so I'm saying if he can't work then, based on what that doctor indicated, his lack of ability to work would be based on a combination of problems rather than just one injury." (England Dp. pg. 21)

On cross examination by Second Injury Fund, England was asked if there was any indication that before the date of injuries Rothschild was not able to do his job at Roloff.

/s/ PATRICIA "PAT" SECREST

PATRICIA "PAT" SECREST

Director

Division of Workers' Compensation

[^0]

[^0]: ${ }_{[1]}^{[1]} The correct statutory cite is -2 \S 7.160.

{ }_{[2]}^{[2]} The correct statutory cite is -2 \S 7.160.

{ }_{[3]}^{[3]}$ This report was incorrectly referred to as a January 22, 2004 report (See, Cohen Dp. pg. 6), but the correct report (dated June 22, 2004) was marked and attached to the deposition transcript.

${ }_{[4]}^{[4]}$ This report was incorrectly referred to as a January 22, 2004 report (See, Cohen Dp. pg. 6), but the correct report (dated June 22, 2004) was marked and attached to the deposition transcript.

${ }_{[5]}^{[5]}$ This report was incorrectly referred to as a January 22, 2004 report (See, Cohen Dp. pg. 6), but the correct report (dated June 22, 2004) was marked and attached to the deposition transcript.

[6]

In August 2005 Section 287.067 was amended, and Subsection 7 became Subsection 8 and now states: "With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with the immediate prior employer was the prevailing factor in causing the injury, the prior employer shall be liable for such occupational disease." (Italics indicates the change in the section) The term "prevailing factor" was defined in Section 287.020.3(1) by August 2005 amendment. The Court in Mayfield noted:

testifies in those exact words. See P.M. v. Metromedia Steakhouses Co., 931 S.W.2d 846, 849 (Mo.App.1996). There is nothing talismanic about the phrase in question. Id. The words a medical expert uses when testifying are often important, not so much in and of themselves, but as a reflection of what impressions such witness wishes to impart. Id.

'[T]he substantial contributing factor' was left undefined by the legislature when it enacted § 287.067.7. Absent from the statute is a percentage figure, quantitative measure, or other standard that can be used to decide when liability must be shifted. No appellate case has explained what evidence is necessary to satisfy the requirements of $\S 287.067 .7$. Accordingly, it becomes our task to interpret the meaning of this language and the legislative intent to be ascribed to such phrase. See Vice v. Thurston, 793 S.W.2d 900, 905[6] (Mo.App.1990).

When interpreting a statute, our primary responsibility is to ascertain the intent of the legislature from the language used and give effect to that intent if possible. Weston Point Resort Condominium Owners' Ass'n. v. Floro, 796 S.W.2d 928, 930[2] (Mo.App.1990). To arrive at the legislature's intent when it leaves a phrase or term undefined, the objectives of the act are to be considered, and the construction given must be reasonable and logical. State ex rel. Rhodes v. Crouch, 621 S.W.2d 47, 49[3] (Mo.banc 1981). In such cases, it is appropriate to assume that the ordinary meaning of words used by the legislature accurately expresses the legislative intent. See State ex rel. Metropolitan St. Louis Sewer Dist. v. Sanders, 807 S.W.2d 87, 88[1,2] (Mo.banc 1991).

It appears that the legislature enacted $\S 287.067 .7$ to avoid the sometimes harsh result of the last exposure rule when that last exposure is short in duration and follows a prior employment that was more substantial in duration, or more significant in the development of the occupational disease, or both. To accomplish that end, the legislature empowered the Commission to choose between two employers, and in turn two potential contributing factors. Having in mind the objective of $\S 287.067 .7$ and the above-mentioned canons of construction, we conclude that "the substantial contributing factor" language in $\S 287.067 .7$ means that factor which is the more responsible of the two contributing factors." Mayfield, 941 S.W.2d at 36.

It is found that under either standard -- "the substantial contributing factor" or "the prevailing factor" -- the claimant must show by expert medical opinion that an exposure from the performance of his employment duties was the foremost or most important cause of the medical condition.

${ }_{17}^{[7]}$ This report was incorrectly referred to as a January 22, 2004 report (See, Cohen Dp. pg. 6), but the correct report (dated June 22, 2004) was marked and attached to the deposition transcript.