Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational opinion and deposition, and the medical records, as well as my personal observations of Claimant at hearing, I find:
1) Claimant is a 57 year old, currently unemployed individual, who last worked for Schroeder \& Tremayne (Employer) as a sewing machine operator on January 22, 2003. She had worked for Employer from September 1998 until the date of her injury.
2) Claimant testified that she was born in Capljina, Yugoslavia (Bosnia) and lived there from birth until 1993. She testified that she finished elementary school and three years of high school, but then left school and went to work. She worked for $51 / 2$ years at a factory knitting sweaters with a machine, but left that job because she got married. She received no special work training in Bosnia. After getting married, she was a homemaker, raising her three children.
3) I observed that Claimant became visibly upset and very tearful when she was describing how her life changed because of the war between Croatia and Bosnia over religion. Since she was a Muslim, she said that her family was targeted by the authorities. She described that grenades were constantly falling, and they often had no food. She would huddle with her three children in the basement to protect them from the grenades. Claimant said the Croatian army came and took her husband away to a concentration camp. She said it was over a month before she knew his whereabouts. She said there was no food to be purchased since the stores were robbed. She testified that her Muslim neighbors shared what they could. Finally, Claimant said the authorities came and forced her to sign over everything they owned (specifically, the house) to get her husband out of the concentration camp. Having nowhere to live now in Bosnia, she and her family traveled to Germany in 1993, where they lived for 5 years. She said she did not work in Germany. Then she came with her family to the United States, and settled in St. Louis. She said they brought nothing with them when they came over here to America.
4) Claimant said her first job in St. Louis was packing diapers, which she did for $11 / 2$ to 2 months. Then she got the job sewing at Schroeder \& Tremayne in September 1998, and worked there until the day of her injury, January 22, 2003.
5) Claimant testified that she missed work because of what she had gone through in Bosnia. She said she not only missed some days because of bad nightmares, but she also had to leave early because she was feeling bad. She said her problems included an inability to sleep at night because of nightmares of trucks coming to pick up children and women to take them away. She also had nightmares of the army coming into the house with guns. She testified she has had constant nightmares of the soldiers since coming from Bosnia. She said, at times, she felt like she could not be around people. She just did not feel well. She said she would sometimes ask to go home when she was feeling this way, even if she did make it into work.
6) Medical treatment records from Dr. Maret at BJC Medical Group (Exhibit 4) begin with an examination dated February 18, 2002. There was a question of hypertension and hyperlipidemia, but no complaints of chest pain, shortness of breath or focal neurologic symptoms. She did complain of aching in her hands and also interestingly noted "occasional left elbow and left knee pain when after a fall." She did have dyspnea on exertion and noted her smoking history. She had additional follow-up appointments on September 30, 2002, October 28, 2002, and December 16, 2002. She was given medication for the hyperlipidemia which she did not take, and medication was also eventually recommended for the hypertension. She also continued to smoke despite the doctor's directive to stop. The records then document three examinations after her work injury on January 22, 2003. The last one dated June 20, 2003 noted no complaints referable to the smoking or hypertension. Her hypertension was under "excellent control" and her hyperlipidemia was "well controlled." There were absolutely no complaints or references in the records to nightmares, trouble sleeping, flashbacks or any other psychological problems related to her experiences in Bosnia.
7) On January 22, 2003, Claimant testified she was sewing, and was then taking a full box to put it on the pallet, when she twisted, slipped and fell as she was moving the box. She said she hurt her arm (left elbow), leg (left knee) and low back. She testified she went for therapy at Health South. She said she was diagnosed with an elbow fracture and had surgery performed by Dr. Brown. Her knee was also hurting her and was swollen. She said she could not walk on it. Because of those complaints, she also had surgery on the knee, but she said the surgery did not help her knee at all. She said she also received injections for her low back from Dr. Graham, a pain specialist.
8) Medical records from Unity Corporate Health (Exhibit F) document the initial treatment Claimant received on the day of the injury, January 22, 2003. After X-rays, Claimant was diagnosed with a questionable, undisplaced slightly impacted fracture of the radial head of the left elbow. On January 22, 2003, she was given a long arm splint at Health South (Exhibit D) to keep the elbow at 90 degrees of flexion following the diagnosis of a
fracture after her fall at work. She was also diagnosed with a contusion of the left knee. She was referred to Dr. Brown for further treatment on the elbow, but continued to see the doctors at Unity through February 28, 2003 for the left knee. During that time she was prescribed medications and given a course of physical therapy for the knee. An MRI of the knee performed on February 26, 2003 was read as negative, and she was diagnosed with a continued contusion of the left knee. However, because of her continued complaints, she was referred to Dr. Miller for further evaluation of the knee. None of these records contain any indication of, or diagnosis of, low back problems related to the injury.
9) Medical records from The Orthopedic Center of St. Louis (Dr. David Brown) document Claimant's initial visit there on January 24, 2003, at which time she described a consistent history of injury to her left elbow. (Exhibit 1) She was diagnosed with a nondisplaced left radial head fracture. By the time of her next visit on February 7, 2003, the facture was more displaced and Dr. Brown was recommending surgery.
10) Claimant was taken to surgery by Dr. David Brown at Des Peres Hospital (Exhibit E) on February 13, 2003 for a left radial head excision to treat her displaced left radial head fracture. Initially Dr. Brown was going to perform an open reduction and internal fixation, but because the fracture was severely comminuted, he opted for the radial head excision instead.
11) Claimant had a course of physical therapy at Health South (Exhibit D) for the left elbow following her elbow surgery from March 6, 2003 through May 9, 2003 with a discharge note dated June 6, 2003. By the end of her elbow therapy, the records documented left elbow range of motion within normal limits, improved functioning and fewer complaints.
12) Following surgery, Claimant continued to follow-up with Dr. Brown for her left elbow. (Exhibit 1) The notes show steady progress with decreasing complaints, and increasing motion in the left elbow. On June 11, 2003, Claimant only complained of occasional soreness in the left elbow. She had a full active range of motion and no point tenderness. Dr. Brown released her from care for the elbow and indicated no further treatment was necessary. Dr. Brown then last saw her on December 14, 2004 with complaints of diffuse nonspecific elbow pain. Claimant had an MRI of the elbow that was completely normal. Dr. Brown wrote, "From an anatomical point of view, there is no good explanation for Ms. Zilic's diffuse pain." She was kept at a full duty release with no restrictions on the elbow. Finally, on December 20, 2004, Dr. Brown issued a final rating on the elbow of 12\% permanent partial disability.
13) Following her initial course of treatment on the knee at Unity Corporate Health, Claimant came under the care of Dr. Mark Miller. The records from The Orthopedic Center of St. Louis (Dr. Mark Miller) document treatment she received there for the left knee beginning on March 5, 2003. (Exhibit 2) Dr. Miller initially made a differential diagnosis of a patellofemoral contusion versus a tear of the posterior horn of the medial meniscus. After a course of physical therapy, when Claimant was still not doing well with her knee complaints, Dr. Miller recommended a diagnostic arthroscopy.
14) Claimant was taken to surgery by Dr. Mark Miller at Des Peres Hospital (Exhibit E) on April 25, 2003 for a partial lateral and medial meniscectomy and chondroplasty to treat her anterior horn medical meniscus tear, lateral meniscus tear, grade 2 chondromalacia of the patella and grade 2-3 chondromalacia of the trochlea in the left knee.
15) Claimant continued to follow-up with Dr. Mark Miller following the surgery. (Exhibit 2) The notes indicated she was advancing very slowly in rehab, and as of June 5, 2003, she still had a relatively pronounced limp. The note dated June 26, 2003 is the first one to mention a complaint of low back pain radiating to the buttock and posterior thigh which escalated "in the past couple days." She walked with a marked antalgic gait, and had spasm and a positive straight leg raise test. Dr. Miller recommended an MRI to rule out left sciatica. When asked about the causation of the back complaints, Dr. Miller responded in a July 17, 2003 letter that the back complaints were causally related to the knee injury and subsequent surgery, because of the limping and disturbance of her gait pattern.
16) An MRI of the lumbar spine performed on July 25, 2003 (Exhibit H) revealed mild diffuse disc bulges from L3-4 to L5-S1 without evidence of neural foraminal narrowing. There was also facet disease at the levels of L3-4 and L5-S1. The report indicated there was a loss of normal disk space height and signal at L4-5 and L5-S1 consistent with degenerative disk disease.
17) After the MRI was performed, Dr. Miller next saw Claimant on July 31, 2003. Claimant still complained of knee pain and difficulty walking, as well as radiating pain from the buttock to the posterior thigh. He confirmed that the MRI did not show any disc herniation, but it did show degenerative changes "that are independent and not related to her fall." He believed the thigh pain was from the antalgic gait pattern from the knee. Objectively, he thought her knee was progressing well with no swelling and near full range of motion. He recommended continued physical therapy for her complaints. He also recommended Synvisc injections in the knee to try to deal with her knee complaints. Claimant underwent the Synvisc injections on August 14, 21, and 28, 2003. Dr. Miller
hoped that the injections would eliminate the buttock and hip pain by eliminating the knee pain, but he noted that if it did not, then epidural steroid injections may be necessary for the back. He remained of the opinion that the degenerative disc disease in the back pre-existed the fall, but was exacerbated by it. By the time of her third injection on August 28, 2003, the note indicates Claimant was having almost no knee pain whatsoever, but still had the upper thigh and buttock pain.
18) Claimant had extensive courses of physical therapy at Health South for her left knee and low back. (Exhibit D) The records document courses of therapy for the left knee from February 5, 2003 through February 21, 2003, March 7, 2003 through April 25, 2003, and then April 28, 2003 through September 16, 2003 (with that last period following her knee surgery). Her range of motion in the knee and her pain complaints seemed to wax and wane throughout the period without any specific pattern of improvement. Finally, she had a course of physical therapy for the low back (sciatica) from October 3, 2003 through October 17, 2003 with a discharge note dated November 7, 2003. During her therapy for the low back, it appeared that she increased her range of motion and flexibility, despite indicating that her complaints basically remained the same.
19) Medical records from the Pain Treatment Center (Dr. John Graham) document an initial visit there as a referral from Dr. Miller on September 22, 2003. (Exhibit G) She was complaining of left buttock and upper thigh pain. The notes contain a history of the injury at work on January 22, 2003, and of the treatment she had received so far for the elbow and knee. The note indicates, "Elbow better, knee some better but stairs a problem." The examination of her back revealed no spasm, negative straight leg raise test, intact heel/toe, and intact neurovascular exam. She was given an epidural steroid injection at this first visit. When she was next examined on September 29, 2003, Claimant reported not seeing much change following the first injection. She was given a second injection and also given a course of physical therapy for her complaints. At her last examination with Dr. Graham on October 6, 2003, she again reported no improvement from the injections, so no more injections were given. Dr. Graham released her from his care and recommended that she continue to follow-up with Dr. Miller. In his hand-written note from that date, he wrote "MMI" (maximum medical improvement).
20) Dr. Mark Miller issued his final report dated December 10, 2003. (Exhibit 2) He noted his last physical examination of Claimant occurred on October 22, 2003. At that time, Claimant indicated her knee pain had improved, but she still had buttock and thigh pain, which Dr. Miller believed was coming from multiple level disc disease in her low back. The physical examination revealed no effusion in the knee, symmetric range of motion, and mild loss of muscle strength. He rated her as having 12 % permanent partial disability of the left knee. He also confirmed that she was released back to work without restrictions with respect to the knee.
21) Claimant said the doctor told her she could not do her old job. On cross-examination, Claimant said she did not remember both doctors releasing her to work without restrictions, because she was still hurting. She also did not remember being released to use a sewing machine again. After she was released from care, the company laid her off. She said she tried to work elsewhere, and even applied for unemployment, which she received for about 2 months. However, she was not offered any jobs, since she does not speak English. Claimant acknowledged on cross-examination that when she applied for and received unemployment compensation, she was ready, willing and able to work. She has not worked anywhere since her injury.
22) She said she felt hopeless and helpless at that time. She was the sole supporter of herself and her husband. She said her husband got sick with cancer in 2001 and had surgery to remove cancer of the throat. She admitted this made her depression worse.
23) She said she cannot concentrate or learn English to pass the citizenship test. She said she did attend the International School for English, but she could not comprehend it.
24) In terms of her current complaints, Claimant testified that her left elbow still hurts and she has lost some rotating motion. She said her elbow complaints affect her lifting ability. With regard to her left knee, Claimant said she cannot bend it, and she has pain and a popping sound in it. She said the complaints affect her ability to walk. Because of the continuing pain in her back, she said she is always moving to try to find a comfortable position. Because of all of her complaints, she said, "My life is ruined." She said she is "not a normal person" because she cannot walk, sit or pick things up normally. She acknowledged that the pain makes her depression worse. She said she is sadder because she cannot work. During her testimony, I did observe Claimant to be holding her back while sitting. She also moved very slowly to get up from a sitting position.
25) The deposition of Dr. Shawn Berkin was taken by Claimant on August 8, 2006 to make his opinions in this case admissible at trial. (Exhibit C) Dr. Berkin is an osteopathic physician with a general family practice. He examined Claimant on one occasion, March 16, 2004, at the request of Claimant's attorney, and then generated one report dated November 2, 2004. He provided no treatment for Claimant.
26) Dr. Berkin took an extensive history from Claimant regarding the injury at work on January 22, 2003 and her treatment subsequent to that injury for the left elbow, left knee and low back. Regarding a history of past injuries, the report indicates, "The patient denied any history of fractures or prior injuries." Therefore, Dr. Berkin did not
assign any pre-existing permanent partial disability for any pre-existing conditions. In her listing of present complaints, Claimant certainly did report pain in the elbow, knee and low back, as well as knee swelling and popping, and trouble sleeping because of her pain. The report contained no description in that section of nightmares or any other psychological complaints from Claimant. Physical examination of the low back revealed spasm, tenderness and markedly decreased range of motion. However, there was normal muscle tone and bulk in the lower extremities and normal reflexes. Other than this examination of the lower extremities in connection with the low back exam, I did not find any specific examination results on the left knee. The report contained no description of findings in the knee or range of motion testing, or anything else for that matter. Dr. Berkin testified that he did not note any swelling of the knee or any crepitus (popping). The examination of the left elbow revealed tenderness, but no ligamentous instability, and no swelling. Range of motion testing revealed full flexion and extension but some loss of either pronation or supination (the report is not clear in that regard).
27) Dr. Berkin opined the injury on January 22, 2003 was a substantial factor in the injuries to the left elbow, left knee and low back. He explained in his deposition that with regard to the low back, he basically agreed with Dr. Miller that due to her altered body mechanics when walking after the injury and surgery, she developed lower back symptoms. He rated her as having permanent partial disability related to the January 22, 2003 injury of 40 % of the left elbow, 40 % of the left knee and 30 % of the body as a whole referable to the lumbar spine for a strain involving multiple bulging lumbar discs. He also testified that when considering the disabilities together, the overall disability exceeds the simple sum. He provided a number of recommendations including physical restrictions and treatment recommendations. He did not provide an opinion that she was permanently and totally disabled, despite the restrictions he put on her, and he deferred providing any opinions on her emotional and psychological status.
28) Claimant testified she saw her own doctor, Dr. Svrakic, at Barnes-Jewish one time in 2003 for depression when she had insurance. She said she went there because he spoke her language and she could talk to him about her hopelessness and pain. She said he gave her some pills to help. She said she was unable to continue to see him because she lost her insurance.
29) The deposition of Dr. Wayne Stillings was taken by Claimant on June 12, 2006 to make his opinions in this case admissible at trial. (Exhibit B) Dr. Stillings is a board certified psychiatrist. He examined Claimant on one occasion, April 20, 2004, at the request of Claimant's attorney, and then generated one report with that same date. He provided no treatment to Claimant.
30) Dr. Stillings took a history of complaints from Claimant including problems with the left hand, left knee, left forearm, and low back. According to the report, she also complained of depression that began after her injury in January 2003, and worsened when she did not make a good recovery. Her complaints included sleep disturbance, crying spells and feelings of helplessness, hopelessness and worthlessness. He took a history from her that included a description of her experiences of being caught up in the war in Bosnia, and her reported complaints following that including nightmares, flashbacks and avoidance symptoms. The report indicates that around mid1995, many of these complaints abated, but they have been reactivated since her injury and inability to work. Her history also included the description of an additional personal stressor regarding her husband's health (throat cancer), and his inability to work and provide support for the family. Claimant described one prior visit with a psychiatrist, but she could not remember his name and needed prompting to remember what medications he prescribed. There were no medical records available from this visit for Dr. Stillings to review. The mental status examination was positive for displayed psychological distress when discussing Bosnia or her work injury. He found that her mood was significantly depressed. There were a number of elements of the examination that could not be assessed accurately because of her language barrier. The MMPI-2 also resulted in an invalid profile because of the language barrier.
31) Dr. Stillings diagnosed pre-existing PTSD, which was reactivated by the January 2003 work injury, and also major depressive disorder, single episode, related to the January 2003 work injury. He rated permanent partial disability for the January 22, 2003 injury of 25 % of the body as a whole related to the depression and 6.25 % of the body as whole related to the aggravation of her PTSD. He also rated 18.75 % of the body as a whole related to the pre-existing PTSD. He recommended a treatment regimen of medications and psychotherapy to "prevent clinical deterioration in her psychiatric condition." He also opined, "From a psychiatric standpoint she is permanently and totally disabled due to the aforementioned diagnoses in combination with her physical limitations, impoverished cultural background, inability to speak English and her age." When asked on crossexamination if there was any reason why she was unable to learn English, Dr. Stillings responded that her depression impaired her ability to acquire new knowledge, but "that isn't totally preclusive."
32) The deposition of Dr. Edwin Wolfgram was taken by Employer on June 20, 2006 to make his opinions in this case admissible at trial. (Exhibit 3) Dr. Wolfgram is a board certified psychiatrist. He examined Claimant on one occasion, May 2, 2005, at the request of Employer's attorney. He generated one report dated May 12, 2005. He provided no treatment to Claimant.
33) Dr. Wolfgram took a history from Claimant including her prior general health issues (obesity, hypertension,
hyperlipidemia, and smoking), her prior mental health issues from the Bosnia War, and the effects of the injury at work on January 22, 2003. He reviewed an extensive collection of medical treatment records, and noted from his review that none of the treating physicians or therapists mentioned symptoms suggestive of PTSD or major depression. He confirmed that no medical records for her one-time visit to a psychiatrist (as referenced by Dr. Stillings) were made available to him for review. On his examination, Dr. Wolfgram found that she displayed a wide range of emotions, and he agreed with Dr. Stillings that she was under psychological distress when discussing her work injury and Bosnian War experiences. He found she was "animated, spontaneous, and expansive as she registered her problems."
34) Dr. Wolfgram diagnosed an Adjustment Disorder with mixed anxiety and depressed mood, chronic; a Pain Disorder associated with psychological factors, chronic; Posttraumatic Stress Disorder, chronic; and Nicotine Dependence. With regard to the first diagnosis, he explained that the stressors causing this are withdrawal and inactivity. He also explained that, "Her cultivation of a dysfunctional state as part of the litigation process has added to her pain." He opined that, "the desire to enhance the litigation process by an apparent dysfunctional state" is an additional stressor for her. He opined that the pre-existing clinical conditions including the obesity, hypertension, degenerative spine disease, smoking and PTSD placed Claimant in a state of compromised health. He also believed the language barrier was an added problem. Although he knew of "no precise rating scale for the identified collection of problems", he suggested 30 % permanent partial disability secondary to those conditions, except for the PTSD which he testified did not reach a level of clinical significance before the work injury and so did not have any permanent partial disability associated with it. He did not believe Claimant had any psychiatric permanent partial disability related to the injuries of January 22, 2003, and he also did not believe Claimant had any work restrictions from a psychiatric standpoint. Although he discussed Claimant's need for therapy and medications to treat her overall physical condition, he was clear in his testimony that she did not need any psychiatric treatment related to the work accident on January 22, 2003. The suggestion of treatment was more directed to her overall physical condition and the pre-existing clinical conditions described above. Dr. Wolfgram did not express an opinion as to whether or not Claimant is able to learn English.
35) Claimant testified that she would like help from a doctor for her mental condition. She admitted that she has had no treatment over the last three years for her elbow, knee or low back. She also has no braces, nor a cane, to help her walk. She said she had seen her family doctor for high blood pressure medications and for Lipitor, but she has not seen him lately since she has no insurance.
36) The deposition of Samuel Bernstein, Ph.D. was taken by Claimant on December 4, 2006 to make his opinions in this case admissible at trial. (Exhibit A) Dr. Bernstein is a licensed psychologist and vocational expert. He met with Claimant on one occasion, July 20, 2006, at the request of Claimant's attorney, and then generated one report with that same date. He provided no treatment or rehabilitation/vocational services to Claimant.
37) Dr. Bernstein wrote in his report and testified that although Claimant's daughter was there as an interpreter, he was also able to communicate with her in German, since both he and the Claimant knew some German. He agreed with Dr. Stillings that she had depression and posttraumatic stress disorder. He testified that Claimant had prior back problems before the January 22, 2003 injury, which he felt were a hindrance or obstacle to employment, and which were exacerbated by this injury. He testified that because of her weight and her bad back, "she would have [pre-existing] problems in terms of bending, torsional, and lifting." He also noted in his report that she had hypertension for a long period of time which is not under control because of a lack of medication due to insurance reasons. When asked about limitations from an orthopedic standpoint that he took into account, he testified that Dr. Brown placed a 25 pound weight lifting restriction on her elbow. He described in his report a number of symptoms that he attributed to the left hand from the primary work injury. He noted based on her vocational history that she was an unskilled worker.
38) Dr. Bernstein opined that Claimant was unemployable in the open labor market because of the combination of a number of factors, including her age; unskilled background; work related injuries to her left elbow, left knee, low back and left wrist; her prior PTSD with depression; the exacerbated PTSD and depression after her work injury; the language barrier and limited educational skills. He testified that he had no reason one way or the other to think that she would be unable to learn English. The fact is that she is just very limited with her English. He admitted that the PTSD she had could be exacerbated by other factors such as her husband's health.
39) Claimant testified on cross-examination that she did not give Dr. Bernstein any information in German, because except for a few words, she does not speak German.