Richard Leonard v. Novacare Inc.

employer/insurer.

As to Exhibits A, F, G, J and K, employee offered each of these exhibits into evidence pursuant to the provisions of Section 287.210.7 RSMo. As to each of these exhibits, employer/insurer made several objections, to wit: that none of them satisfied the statutory requirements set forth in sections 287.210 .5 and 7 RSMo; there was not sufficient foundation established for their admissibility to overcome hearsay objections; none of the exhibits satisfied the provisions of section 287.140.7 RSMo concerning admission of certifying treating records of physicians; and none of these exhibits satisfied the business records provision of section 490.680 RSMo, permitting their admission into evidence.

Section 287.210.7 RSMo provides in part as follows:

"The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other health care providers."

Section 287.210.5 RSMo provides in part as follows:

"As used in this chapter the terms 'physician's report' and 'medical report' mean the report of any physician made on any printed form authorized by the division or the commission or any complete medical report. As used in this chapter the term 'complete medical report' means the report of a physician giving the physician's qualifications and the patient's history, complaints, details of the findings of any and all laboratory, X-ray and all other technical examinations, diagnosis, prognosis, nature of disability, if any, and an estimate of the percentage of permanent partial disability, if any. An element or elements of a complete medical report may be met by the physician's records."

The Commission is of the opinion that if a party complies with the statutory provisions of section 287.210 RSMo, the complete medical report offered is to be admitted into evidence without other foundational evidence, rendering additional objections as to foundation, authenticity, etc., moot.

Exhibit A is set forth on pages 188-241. It contains medical records of Dr. Marino and purports to be the complete medical report of Dr. Marino. The qualifications of Dr. Marino are not included in Exhibit A. The Commission finds that Exhibit A does not satisfy the statutory requisites of section 287.210 .5 and 7 RSMo, as being a complete medical report, and sustains the objection made by employer/insurer. The Commission has not relied on this exhibit in reaching any of its conclusions.

Exhibit A also contains an affidavit with a notarial seal dated April 16, 2002. However, the affidavit does not indicate the number of pages attached and there are several pages to the exhibit attached which are dated subsequent to April 16, 2002, thus, this exhibit can also not be admitted into evidence pursuant to the provisions of section 287.140.7 RSMo, concerning certified records of a treating physician. Exhibit A also does not meet the statutory requisites of business records pursuant to section 490.680 RSMo. Exhibit A is excluded from evidence in its entirety.

The Commission notes that the deposition of Dr. Marino was taken and introduced into evidence as Exhibit V. It was reviewed, considered and weighed, in reaching the Commission's final conclusions.

Exhibit F is set forth on pages 336-401. It contains medical records of Dr. Granberg and purports to be the complete medical report of Dr. Granberg. The qualifications of Dr. Granberg are not included in Exhibit F. The Commission finds that Exhibit F does not satisfy the statutory requisites of sections 287.210 .5 and 7 RSMo,

as being a complete medical report, and sustains the objection made by employer/insurer. It is not admissible pursuant to section 287.140.7 RSMo, as there was no certification attached. It is not admissible pursuant to section 490.680 RSMo as it was not authenticated as required by the statute. The Commission did not consider Exhibit F in reaching its conclusions.

Exhibit G is set forth on pages 403-546. It contains medical records of Dr. Granberg, the qualifications of Dr. Granberg, and purports to be the complete medical report of Dr. Granberg. The Commission finds the statutory requisites of sections 287.210 .5 and 7 RSMo were satisfied, and affirms its admission into evidence as determined by the administrative law judge. The Commission reviewed, considered and weighed this evidence in reaching its conclusions. Since it is admissible pursuant to the provisions of section 287.210 RSMo, objections that the exhibit was not authenticated as a business record pursuant to section 490.680 RSMo or not certified pursuant to section 287.140.7 RSMo, are moot.

Exhibit J is set forth on pages 561-592. It contains the medical records of Dr. Feinberg, the qualifications of Dr. Feinberg and purports to be the complete medical report of Dr. Feinberg. The Commission finds the statutory requisites of sections 287.210 .5 and 7 RSMo were satisfied and affirms its admission into evidence. Any objections that it was not authenticated as a business record pursuant to section 490.680 RSMo and not certified pursuant to section 287.140.7 RSMo are rendered moot due to its admissibility under sections 287.210 .5 and 7 RSMo. The Commission reviewed, considered and weighed this evidence in reaching its conclusions.

The Commission further notes the deposition of Dr. Feinberg was taken and submitted into evidence as Exhibit J. This evidence was reviewed, considered and weighed by the Commission in reaching its conclusions.

Exhibit K is set forth on pages 593-627. It contains medical records of Dr. Malik and purports to be the complete medical report of Dr. Malik. The qualifications of Dr. Malik are not included in Exhibit K. The Commission finds that Exhibit K does not satisfy the statutory requisites of sections 287.210 .5 and 7 RSMo , as being a complete medical report, and sustains the objection made by employer/insurer. Exhibit K is not admissible pursuant to section 287.140.7 RSMo as the custodial affidavit certifying the authenticity of the medical records is deficient. The certification attests to thirteen pages and Exhibit K consists of thirty-five pages. Exhibit K is not admissible pursuant to section 490.680 RSMo as it was not authenticated as required by statute. The Commission did not consider Exhibit K in reaching its conclusions.

Exhibit O-2 is a computerized billing statement from the office of Dr. Feinberg. Dr. Feinberg testified as to the reasonableness and the necessity of his treatment and the Commission finds this exhibit was properly admitted into evidence and the Commission has relied on this exhibit in reaching its determinations and conclusions.

Exhibit T, a computerized printout of the business records of Walgreen's, has an appropriate custodial affidavit attached and said exhibit was properly admitted into evidence pursuant to section 490.680 RSMo. The Commission has relied on this exhibit in reaching its determinations and conclusions.

Exhibit U is a hearsay document without proper foundation and or authentication, and objection to its admission into evidence is sustained. The Commission did not rely on this exhibit in reaching any conclusions or determinations in this case.

Exhibit W represents medical expenses in the amount of $\ 6,175.40 incurred under the auspices of Dr. Granberg. The treating records of Dr. Granberg were admissible in evidence and contained in Exhibit G, and the Commission also is of the opinion that the testimony of the wife of the employee, connecting these bills with the treatment received due to the accident, provides a sufficient basis for its admission into evidence. See Martin v. MidAmerica Farm Lines, Inc., 769 S.W.2d 105 (Mo. banc 1989).

As to Exhibit X as well as Exhibit Y, the Commission finds there was insufficient foundation for the admission of these two exhibits into evidence and the objections thereto are sustained. The Commission did not rely on either Exhibit X or Exhibit Y in reaching any final determination or conclusion in this matter.

Due to the above rulings the Commission makes several determinations as to past medical expenses to be awarded the employee.

The Commission awards the employee past medical expenses in the amount of $\ 6,175.40 representing the bills for treatment received under the auspices of Dr. Granberg. In awarding this amount the Commission relies on Exhibit G, the medical records and report of Dr. Granberg, as well as Exhibit W, the invoices/billing statements of Dr. Granberg. Exhibit G contains an opinion from Dr. Granberg that the charges for his treatment were usual and customary; furthermore Dr. Feinberg also opined that the treatment rendered by Dr. Granberg was reasonable and necessary; and the testimony of the employee's spouse confirms that the bills received from Dr. Granberg were due to the result of the visits and treatments employee received under the auspices of Dr. Granberg on account of the injury.

Dr. Feinberg testified that his treatment rendered employee in the total amount of $\ 695.00, was reasonable and necessary treatment on account of his injuries sustained. Based on this testimony, employee is awarded $\ 695.00 for past medical care and treatment.

The Commission also awards employee past medical expenses in the amount of $\ 854.40 incurred at St. Anthony's Medical Center as reflected in Exhibit L, which was admitted into evidence without objection.

Exhibit T, the computerized printout of prescription bills from Walgreens indicates a co-pay of $\ 2,398.19 and a balance of $\ 51,650.81. Subtracting the amounts prescribed by Dr. Malik, due to the fact that Dr. Malik's medical records are not in evidence, the Commission awards employee the amount of $\ 32,634.64. Exhibit T was admitted into evidence, and the testimony of the employee's spouse connected the purchase of these prescriptions with visits to the treating physicians on account of the injury.

The Commission denies awarding any past medical expenses incurred under the auspices of Dr. Marino as these expenses were not proven.

As previously stated, the administrative law judge concluded that employee's last injury in and of itself rendered the employee permanently and totally disabled and consequently, the Second Injury Fund had no liability.

Employer/insurer contends on appeal that there was an absence of any competent and substantial evidence concerning this legal conclusion. The Commission disagrees.

As to the guiding legal principles, the Commission cites Hughey v. Chrysler Corp., 34 S.W.3d 845 (Mo. App. E.D. 2000) which states as follows at page 847:

"Section 287.220 creates the Second Injury Fund and sets forth when and the amount of compensation that shall be paid from the fund in '[a]ll cases of permanent disability where there has been previous disability.' See Stewart v. Johnson, 398 S.W.2d 850, 852 (Mo.1966); Roller v. Treasurer of Mo., 935 S.W.2d 739, 741 (Mo.App. S.D.1996).

In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Id.; Vaught, 938 S.W.2d at 939; Roller, 935 S.W.2d at 741. 'Until that disability is determined, it is not known whether the second injury fund has any liability. ...' Stewart, 398 S.W.2d at 854. Accordingly, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. Kizior v. Trans World Airlines, 5 S.W.3d 195, 201 (Mo.App. W.D.1999); Roller, 935 S.W.2d at 743-44. If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer

is responsible for the entire amount. Id.; Vaught, 938 S.W.2d at 939."

Dr. Levy unequivocally testified that employee is permanently and totally disabled due to the last injury alone. Dr. Levy opined that employee was rendered permanently and totally disabled solely due to the effects of his last injury to his lumbar spine. Dr. Levy was of the opinion that employee was unable to compete in the open labor market and this inability to compete in the open labor market was directly attributable to employee's failed back syndrome which was a residual of the last injury alone. Dr. Levy further stated that employee's resultant low back condition was not dependent on any previous preexisting disability.

Relying on this medical expert testimony and the testimony of the employee, the Commission affirms the conclusion of the administrative law judge that the injury occurring September 28, 1998, in and of itself, rendered the employee permanently and totally disabled.

Both Dr. Levy and Dr. Feinberg support the determination by the administrative law judge that on account of the accident occurring September 28, 1998, employee will require future medical care and treatment to cure and relieve him from the effects of his low back injury as well as his chronic depression. Dr. Levy diagnosed failed back syndrome, and was unequivocally of the opinion that employee will require future medical care and treatment to cure and relieve him from this residual. Likewise, Dr. Feinberg was of the opinion that employee sustained chronic depression due to the accident occurring September 28, 1999, and that employee needs treatment in the future to cure and relieve him from the effects of this disabling condition. The awarding of future medical care and treatment for the residuals to the lumbar spine and for the resultant chronic depression are affirmed.

The Commission agrees with the conclusions of the administrative law judge that there was an injury due to an accident arising out of and in the course of employment; that future medical care and treatment will be necessary to cure and relieve employee from the effects of this injury concerning residuals to employee's lumbar spine and his resultant chronic depression; and the last injury occurring September 28, 1998, in and of itself rendered the employee permanently and totally disabled; there is no Second Injury Fund liability; and that on account of this injury, past medical expenses were incurred in the amount of $\ 32,634.64, that were reasonable and necessary to cure and relieve employee from the effects of this injury.

Accordingly, the following workers' compensation benefits are payable to employee by the employer/insurer:

Past Medical

Dr. Granberg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Given at Jefferson City, State of Missouri, this $9^{\text {th }}$ day of February 2007.

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I would affirm the administrative law judge's award without modification. For that reason, I must dissent from that portion of the majority's decision to reduce the award of past medical expenses.

John J. Hickey, Member

Employee: Richard Leonard

Injury No.: 98-113992

Dependents: N/A

Employer: Novacare

Additional Party: Second Injury Fund

Insurer: Liberty Mutual Fire Insurance Company

Hearing Date: August 31 and September 13 - 14, 2005

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDV:tr

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

1. Date of accident or onset of occupational disease: September 28, 1998
2. State location where accident occurred or occupational disease was contracted: St. Louis City
3. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
4. Did employer receive proper notice? Yes
5. Did accident or occupational disease arise out of and in the course of the employment? Yes
6. Was claim for compensation filed within time required by Law? Yes
7. Was employer insured by above insurer? Yes
8. Describe work employee was doing and how accident occurred or occupational disease contracted: Fell down stairs at work.
9. Did accident or occupational disease cause death? No Date of death? N/A
10. Part(s) of body injured by accident or occupational disease: Back, psyche
11. Nature and extent of any permanent disability: Permanent total disability
12. Compensation paid to-date for temporary disability: $\ 19,050.39
13. Value necessary medical aid paid to date by employer/insurer? $\ 67,201.31

Employee: Richard Leonard Injury No.: 98-113992

1. Value necessary medical aid not furnished by employer/insurer?
2. Employee's average weekly wages: $\ 844.01
3. Weekly compensation rate: $\$ 562.67 / \ 294.73
4. Method wages computation: Agreed

1. Amount of compensation payable:

Past medical care $\ 63,462.50

Permanent total disability benefits from Employer beginning October 5, 1995 for Claimant's lifetime

Future medical care

(* = contingent lifetime benefits)

1. Second Injury Fund liability: No

TOTAL: $\quad \$ 63,462.50 * * *$

1. Future requirements awarded: Future medical care

Said payments to begin immediately 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:

John Schneider

Insurer: Liberty Mutual Fire Insurance Company Checked by: MDV:tr

Proceedings were held in this case over the course of three days. Exhibits Pre-Hearing A through Pre-Hearing K were the subject of the first day's proceeding on August 31, 2005 held pursuant to Claimant's Notice of Intent to Submit Medical Records and Reports in Evidence under the authority of $\S 287.140 .7 and \S 287.210 .7$ RSMo. The objections filed by Employer were overruled and the exhibits deemed sufficient to submit into evidence under those sections. Ultimately, Exhibits P-A through P-K were admitted into evidence, as well as L through Y. Exhibit P-F had a sub-designation, F-1, also admitted into evidence. On day two, Employer indicated it would call Claimant's supervisors the next day. On the next day, Employer called no witnesses but marked Exhibits 1 through 5, which were admitted into evidence, and the Second Injury Fund marked Exhibit I, which was also admitted into evidence.

Claimant lost his right leg below the knee as a result of a bicycle accident in 1968 when he was a child. By 1977, Claimant had become a professional prosthetitist. In this capacity he would cast limbs, fit them for prosthesis, align the prosthesis, attach it, perform laminations and perform every other aspect of patient care from start to finish with regard to fashioning and fitting of prosthetic devices for the arms and legs. Claimant worked for a variety of providers over the years, but at the time of the accident herein was working for Novacare.

On the date of the accident Claimant was working late, and as he was descending the stairs from his place of employment, he fell down the stairs injuring his back. His prosthetic leg came off as he fell and Claimant ultimately

underwent back surgery and spinal fusion. Claimant thereafter developed depression and/or a psychological problem and contends that as a result of the work related incident he has become permanently and totally disabled from competing in the open labor market and that he will require future medical care to cure and relieve him of the effects of the back injury and the subsequent psychological injuries. Thus, he also requests an open award of medical care.

Employer paid medical benefits in excess of $\ 67,000.00 and temporary total disability benefits in excess of $\ 19,000.00. Then the claim was denied. Employer contends that if Claimant did in fact suffer a work related injury, that he is not permanently and totally disabled as a result of that injury and that if he is permanently and totally disabled, it is a result of his prior amputation working in combination with the primary injury to cause liability to fall upon the Second Injury Fund.

The issues presented for resolution by way of this hearing are past medical benefits, future medical benefits, the nature and extent of any permanent disabilities to include the liability of the Second Injury Fund, costs, Employer contests accident, medical causation, and there is a prior attorney's lien.

1. In 1968 Claimant lost his right leg $21 / 2$ inches below the right knee as a result of an accident on a bicycle. He was 13 years old at the time.
2. In 1977 Claimant became a professional prosthetitist. In this capacity he would cast molds for prosthetic devices, fit the device, align it, detach it, perform laminations to build it up, perform patient care in every aspect necessary to fashion, fit and make a prosthetic device comfortable for a patient. Claimant's professional duties were limited to fashioning prosthetic devices for the arms and legs only.
3. Claimant worked at 1914 Olive Street originally for J.E. Hanger, an individual, who subsequently sold out the business to Novacare. Claimant worked for Novacare for five years. His supervisor was Richard Stanfill and John Spath was the supervisor above Richard Stanfill. Claimant also worked in Mount Vernon, Illinois on Wednesday and Friday as part of his duties in order to service clientele in that part of the Midwest. Claimant generally worked 50 hours or more a week.
4. Claimant has an associate's degree from Lakewood Junior College. He went for specialized training at NYU in 1975 and 1978 pertaining to prosthetics. He has to deal with gait patterns, inertia, feedback from the ground, frictions, various client occupations and hobbies when he determines what type of prosthetic device an individual requires. He was required to know anatomy for prosthetics as they relate to muscles and flexion of the foot and prosthetic hooks.
5. Claimant was able to play golf, play with his son, work in the yard, travel to museums, go to the zoo, ride a bike and the amputation of his right leg had never really bothered him for 25 years. Claimant was able to do anything he wanted short of running. He limped but it was so subtle that people generally thought that he had a sore knee. Claimant could get on the roof of his house, climb up ladders, and play golf three times a week. He scored in the 90s.
6. On the date of the accident herein, September 28, 1998, Claimant was working. No one else was at work. It was a Monday night. It was approximately 6:00 p.m. and he was coming down the steps at work. There were four or five steps left on the flight when Claimant's left foot slipped or hit something. His right prosthetic leg came off and he fell and struck the steps on his buttocks and slipped down the rest of the steps. As Claimant's left foot slipped his right prosthetic device caught something, which caused it to come off. Claimant injured his back in this fall and the force of it knocked the wind out of him. He removed his trousers and put his prosthetic leg back on and sat there for several minutes before he was able to get up. He went home, told his wife about the incident, and went to bed. He was unable to move the next day and couldn't pull the sleeve which is utilized on the prosthetic leg to attach it to his right stump. Claimant was unable to work that day, Tuesday, so he called into work and informed the secretary, Charice, about the incident and that he would not be in that day. On Wednesday the condition was worse and he also was unable to work, called in again, spoke with the same secretary, Charice, took some Tylenol and Advil and continued to recuperate at home in bed.
7. By Thursday, October 1, the pain was so great that Claimant called his physician, Dr. Marino, and requested a strong pain reliever and he explained that Advil and Tylenol were causing his stomach to be upset. Dr. Marino's office indicated that Claimant would have to come into the office for an examination before a narcotic pain reliever could be prescribed. The nurse was going to make an appointment for him but Claimant had to go to Mount Vernon, Illinois to service his patients there and so was unable to go in to see the physician. Richard Stanfill told Claimant to treat with his own physician as a result of the injury. Claimant was able to see Dr. Marino on October 12 and was examined and a prescription for Vicodin was written.

1. Dr. Marino had treated Claimant since June of 1994, originally due to headaches.
2. Over the years Dr. Marino prescribed a variety of medicines mostly to control headaches. These would include pain relievers and Paxil. Claimant at the time of the first Paxil prescription in April of 1998 was anxious and nervous due to his inability to relax. He felt that he was not getting enough work done and that he was over eager. He described himself as jumpy but not depressed.
3. Prior to the work injury, Claimant was on a ladder in March of 1998 cleaning a gutter and fell off the fourth rung of the ladder. He fell on his neck and shoulder and hit his head with a hammer and cut his head. This did not result in any permanent injuries. He continued to work all summer and into September up to the date of the work accident.
4. Claimant did have a bout of back pain in May of 1998 which had continued for three weeks but according to Dr. Marino's records got better when he got out of bed.
5. Claimant continued treating with Dr. Marino after the work accident and then his supervisor, Mr. Stanfill, directed that Claimant should go to a different doctor at BJC. Claimant was examined and sent to Washington University to see Dr. Praither and eventually Dr. Mirkin. Examinations and x-rays were performed. MRIs and myelograms were performed showing discs at L2-3 and L4-5. Dr. Mirkin suggested surgery. Claimant was experiencing tremendous pain in his low back going into the left leg and left thigh. His left leg would fail and go out and nothing would relieve his low back pain. Dr. Mirkin suggested surgery because of the unrelenting pain.
6. Claimant agreed and underwent surgery in April of 1999. Dr. Mirkin performed an L2-3 discectomy, fusion and hardware installation into the spine. He did not repair the L4-5 disc. Immediately after the surgery Claimant experienced tremendous pain. His left thigh was numb and he felt as if the thigh was on fire or as if he was being stung by a million bees. Claimant describes the condition following the surgery as no better than before the surgery. He was bedridden for one month after the surgery. After about one month he was able to get out of bed but still was gaining no relief from the pain.
7. Dr. Mirkin thereafter sent Claimant to pain management after Dr. Mirkin was unable to control or diminish the pain condition. Claimant eventually received therapy with Oxycontin, Vicodin, Hydrocodone, and prescription epidural steroid injections. Dr. Granberg provided much of the pain management treatment.
8. The workers' compensation insurer stopped paying for the pain management therapy with Dr. Granberg in October of 1999 and Claimant had to obtain COBRA benefits to continue receiving the pain management. Shortly after this the insurer also stopped paying for Claimant's prescriptions. Eventually Dr. Granberg would no longer see Claimant because the COBRA insurance ran out and he wasn't paying his bills. Dr. Granberg believed Claimant was unable to work due to chronic pain.
9. Claimant's wife described him as happy, energetic and fun prior to the work injury and the surgery. After the surgery he was still optimistic while Dr. Mirkin gave him hope, but when he started seeing Dr. Granberg for unrelenting pain and was cut off from medical treatment he became depressed and his pain increased and he lost all hope. He would lay in bed, close the door to his bedroom, he wouldn't eat, speak, he had no contact with his children and everyone knew to stay away from him. Claimant kept the shades down and would only shrug or nod in response to questions and often gave looks that said, "get away from me or I will kill you". His wife decided he had to get some help and the Highland Center was contacted and Claimant was treated there for depression and stress related problems. Compounding that hospital admission was the inability to pay those bills and the garnishment proceedings that were instituted relating to those bills.
10. In February of 2000 Claimant was admitted to the Highland Center for depression, anxiety and was also treated by Dr. Malik. Claimant was unable to pay those bills and eventually garnishment actions were instituted for those bills which contributed to his depression and anxiety.
11. Claimant was unable to work, financial strains were mounting, the injury and bills were straining his marriage and he found himself unable to enjoy any of his life's previous pursuits. He started experiencing memory problems and couldn't concentrate on anything. He seemed to drift off in concentration and had problems with his long-term memory.
12. Claimant describes himself as a people person when he was working prior to the work injury. He liked working. He would like to continue to work but he is in constant pain. The more pain he is in the more prescription medications he takes and the more out of consciousness he finds himself.
13. Dr. Malik continued to treat Claimant and at one point recommended the possibility of electroshock therapy to treat his depression. Claimant did not want to undertake such a radical treatment.

1. Claimant described the situation following this injury as difficult to mentally deal with because his life has been ripped apart. His professional life, his personal life and everything he worked for was gone.
2. Claimant can only stand for 15 minutes then must sit for half an hour before he can stand again for 15 minutes and it gets a little longer sitting each time depending on the surface on which he finds himself trying to stand.
3. Before the accident Claimant was able to do all the duties of his job despite his prior amputated leg. He was able to drive one and a half hours to Mount Vernon, Illinois, engage in vigorous activities, lift plaster bags of up to 100 pounds by himself, never required assistance at work, he could do anything he wanted to do without help, and he has never had to have any job accommodations.
4. Drs. Granberg, Margolis, Feinberg and Malik believe Claimant is permanently and totally disabled. Drs. Mirkin and Wagner find permanent partial disability. Drs. Feinberg and Margolis believe the disabilities are caused by the work accident and prior amputated leg.
5. Claimant incurred $\ 63,462.50 in reasonable and necessary medical benefits. Some amounts are co-pays, some are due insurers. Employer refused to pay these amounts.

1. Claimant sustained an accident on September 28, 1998 that arose out of and in the course of his employment.
2. As a result of that accident Claimant required medical and psychological treatment and will require future medical and psychological treatment to cure and relieve him of the effects of the injury and its sequelae. Past medical benefits totaling $\ 63,462.50 should be paid directly to Claimant.
3. The past medical care was reasonable and necessary to cure and relieve the effects of the injury.
4. Following the accident and injuries Claimant became permanently and totally disabled. It was the last injury alone that caused this permanent total disability.
5. Claimant's permanent and total disability is medically and causally related to his work injury on September 28, 1998, the disc injury to L2-3 and the subsequent surgery, the disc injury to L4-5, limitations therefrom, and the disabling psychiatric condition resulting therefrom and which erupted thereafter.
6. No lien from a prior attorney has been proven and none is granted.

Claimant seems like a very resilient, "can-do" kind of person. He was able to learn and practice a highly skilled medical art for 25 years before this accident. He was as or more active than the average person despite the amputated leg. I do not believe that he would be able to work now, even if he had a perfect right leg. The work injuries would still keep him unemployable. Thus, it really is the last injury to L2-3 and L4-5, the surgery at L2-3 with fusion and hardware and the resultant psychological stress and chronic pain that are preventing him from working, not the amputated leg.

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

.