P (1) At this time I am going to have to confer with her primary care doctors and specialist and recommend that she does not work for at least 3 months as further testing and evaluation is underway and then will further advise at that time.
(2) This was discussed with Pam Barnes at MEMC.
In the final handwritten treatment entry in the record, dated 03/03/99, it was written: "gastric bypass surgery, depression. Can't eat; Depressed, poor memory; Dr. DiFilippo, Dr. Ross \& Dr. Houser say she is not ready to RTW; pt - Dr. Klaus - per patient denying work ready. In the typed 03/03/99 entry was written:
S Here for return to work evaluation. It appears that Edna is saying she can go back to work but she has Dr. Ross, Dr. Houser and per patient Dr. Klaus. I have note also from Dr. DiFilippo that says she is not ready to return to work.
A RTW Eval
P (1) At this time we are denying her return to work until we get more information.
(2) This was discussed with Lois at MEMC.
Work-hardening reports from CH Health Technologies indicated 16 visits to work hardening by DeShaney. (No. D) for which DeShaney was 100\% in attendance. The initial Summary and Recommendation report, dated July 25, 1991, stated that DeShaney was referred for work hardening by Dr. Michael Adams. It was noted that DeShaney had injured her low back in April of 1991 "after lifting tubs of silicon slices, on a repetitive basis". In the work hardening Exit Report, dated August 27, 1991, the following was written:
Ms. DeShaney has participated in out work hardening program for the past 3 weeks, on a $1 / 2$ day basis (3-3.5 hours). According to her job simulated tasks, she has mad good progress, however, continues to complain of right PSIS/SIJ pain. Ms. DeShaney reports her pain appears to be increasing the longer she participates in the work hardening programs. However, Ms. DeShaney moves without gait deviations and without guarded movements. No difficulty is observed with any of the work hardening activities.
Ms. DeShaney is able to lift a 60 pound load with the assistance of another person. She then was able to hold that 60 pound load at 12 inches from her body for approximately 30 seconds. She performs other job simulated tasks, such as the carrying of a 15 pound load as well as pushing a cart containing a 120 pound load. Again, no change in gait deviations or movements are noted with these activities. She performs standing tolerance activities with equal weight bearing onto bilateral lower extremities. Although she exhibits the ability to perform a floor to waist level lift of a 25 pound load, without difficulty, she refused to lift greater than this weight due to report of increased pain.
Further written in the August 27, 1991 report was that DeShaney had been released to work per Dr. Adams, and she was "performing at the work demand level required of her job as lapper at MEMC, as she is able to perform the most difficult aspect of her job which is the lift of a 60 pound load with the assistance of another person".
Records of Dr. Terrence L. Piper, M.D. of St. Peters Bone and Joint Surgery, Inc. (No. H) concerned the treatment of DeShaney beginning on May 22, 1991 for chronic back pain and right leg pain by referral from Dr. Michael Adams. Dr. Piper noted in a May 22, 1991 letter to Dr. Adams that DeShaney had
had a recent CT scan at Barnes St. Peters which was compromised due to her large frame, but appeared to show no evidence of a ruptured disc but some facet changes. In an August 20, 1991 letter to Dr. Adams, Dr. Piper wrote that DeShaney had some right leg pain, however, neurologic testing that day was normal and straight leg raise testing was negative. The doctor noted that DeShaney had been in a work hardening program and relayed that sometimes this complicated her progress. Dr. Piper wrote on August 20, 1991 that he found no evidence of a disc herniation at that time, and further wrote that he had released DeShaney to go back to work at MEMC at that time.
The next document in the record was a December 12, 1991 letter by Dr. Piper's partner, Dr. McAllister to Dr. Adams. Dr. McAllister wrote that DeShaney was continuing "to complain of low back pain, various pains radiating own both legs, sometimes it's one leg, sometimes the other". The doctor noted that DeShaney was adamant that something must be wrong with her back, and because the CT was sub-optimal due to DeShaney's body habit, an MRI would be ordered. DeShaney was placed on light duty, and continued on meds and physical therapy. A 12/26/91 treatment entry by Dr. McAllister noted that the MRI demonstrated degenerative disc problems from basically L2 down to the sacrum and a mild bulging at 5-1 which was asymmetric to the right. It was noted that DeShaney mainly complained of constant back ache, and it was recommended that DeShaney be kept on light duty, in physical therapy, on medication, and return in one month. The record included a note by Dr. McAllister indicating that on 02/07/92 DeShaney was put on light duty for a month In the next treatment note of 02/17/92, Dr. McAllister wrote: "Crying in the office today. She is have terrible pains She really can't stand the pain. It is running al the way down her leg." (sic) Dr. McAllister noted that the previous MRI demonstrated a bulging disc; an epidural steroid injection was recommended. In the next treatment entry of 02/27/92, it was written that DeShaney reported her back pain was improved following the epidural steroid injection; the pain radiated down the right thigh to her knee at this point and did not go all the way down to the foot anymore. Dr. McAllister wrote in the 02/27/92 entry:
We discussed the problem with degenerative disc disease and the fact that it involves her entire spine. I again emphasized the need for weight loss. I discussed that this is a degenerative problem it is likely that if she continues to work at a job that requires lifting she will either have continued episodes or she will need to resign herself to the fact that she will have to work through the pain.
Dr. McAllister further wrote that as the injection had helped, a second epidural steroid injection would be performed and no work for one week, and then DeShaney would be allowed to resume light duty work, follow-up in 2 weeks. In the final document in the record, an April 1, 1992 letter by Dr. McAllister to Dr. Adams, it was noted that DeShaney was continuing to relate back pain and had been treating for some time, including epidural steroid injections; it was written that on that particular date DeShaney primarily complained of leg pain and a clicking in her neck with pain radiating and shooting up into her head causing severe headaches. "She has been working for two and a half weeks on light duty and states that the work isn't hard but she has to walk about and that causes headaches", the doctor wrote. Dr. McAllister noted: "On physical exam she has marked tenderness to very light palpation of the lumbar spine. She jumped and yelled when I lightly palpated her lumbar spine." Exam findings were discussed, and Dr. McAllister further wrote his opinion for permanent partial impairment, and wrote that he believed DeShaney was at maximum medical improvement. The doctor wrote that DeShaney's symptoms were not resolved, but he did not believe further treatment was indicated for this particular problem; the doctor wrote that he believed DeShaney should have permanent restrictions of no lifting more than thirty pounds, and repetitive lifting and bending is not in the best interest for DeShaney.
A 05/21/91 report of a CT scan of DeShaney's lumbar spine ordered by Dr. Adams (No. I; See, also No. V) noted the following impression: Limited exam due to artifacts generated by the patient's body habitus; Grossly, no abnormalities are seen; degenerative changes L5-S1 facets.
Records from O'Fallon Physical Therapy (No. J) concerned physical therapy treatment for the
period of 05/22/91 through September 1994. The initial documents were referral prescriptions by Dr. Terrence L. Piper, M.D. for treatment to the low back on 05/22/91, and for treatment for degenerative disc disease on 11/27/91. An initial treatment form, dated 12/04/91, indicated low back pain on the right side and pain down right front leg to the knee for past two weeks. In a January 30, 1992 letter to Dr. McAllister a physical therapist wrote that DeShaney was reporting decreased back and leg pain The record reflected pain in the upper back and the mid back in February 1992 physical therapy treatment entries. Written in a February 6, 1992 letter to Dr. McAllister was - "In the last couple of weeks she has had some increased low back pain and some upper back pain since she has been standing constantly at work".
The record indicated a resuming of physical therapy treatment for lumbar strain in August 1994 by referral from Dr. Houchin. In an August 9, 1994 letter to Dr. Aubra Houchin, a physical therapist wrote:
She comes to therapy today reporting having severe LBP (low back pain) to her right leg. She is having difficulty weight-bearing on that leg. She is also reporting having mid-back pain up into her shoulders, arms, and cervical spine with headaches.
The record contained an update letter to Dr. Michael Glazer, dated September 1, 1994, on the progress of DeShaney, and it included: "Patient reports still having pain in her extremities and in her trunk, but is feeling a lot more mobile". The last document in the record was a September 23, 1994 letter to Dr. Glazer in which a physical therapist wrote of the progress of DeShaney, writing: "Donna has made substantial progress and increased mobility of her LE, trunk, and UE. She now reports being able to ambulate stairs with alternating legs, as well as carrying things at the same time, which she was unable to do previously".
A letter from Dr. David Robson, M.D., dated December 20th, 1991 to an insurance company (No. K) noted that he had seen DeShaney on 12/19/91, and that DeShaney had had a work related injury on 04/20/91. Dr. Robson wrote the following:
She works for MEMC Company and has a light to moderate work demand at work. She was treated conservatively following her accident and tolerated a work hardening program and was released to return to wok on August 29, 1991. She worked for two months and then at the end of November 1991, she stopped again because she stated that her pain was intolerable. She complains of low back pain and bilateral pain and discomfort. She states she cannot take care of her daily needs and that when she was working all she did was lay around the house in between work days.
Dr. Robson discussed his exam findings; the doctor noted that he had called the hospital where DeShaney's MRI had been performed and showed degenerative disc disease in the lower three disc spaces and no surgical lesions on her lumbosacral spine. Dr. Robson finally wrote:
Based on the verbal report of her MRI and the physical exam in the office, I think that her subjective complaints far outweigh objective physical findings, I see not reason why she cannot work in her job. She could possibly do a couple more weeks of physical therapy and then a rapid return to work would be indicated. If she becomes a problem, then I would wan to personally view her MRI and make further comment based on my personal viewing, but at this point there is nothing clinically on physical examination which would correlate with any surgical lesions on her back.
Records from Westbury Allergy Group, P.C. (No. E) indicated that DeShaney had been evaluated by Dr. Richard E. Cannon, M.D. for hypersensitivity on March 18, 1994 by referral from Dr. Michael Adams. Dr. Cannon indicated in his letter to Dr. Adams the following: Diagnosis fell into the "Other" category - Reaction to toxic fumes; Timing - Perennial;; Triggering factors - Irritant;; and Clinical significant skin tests revealed the following - None. Dr. Cannon wrote of a recommended medication regimen of medication and a nasal spray. Dr. Cannon finally wrote the following: "Toxic reaction to fume exposure at
work fall 1993 causing marked nasal congestion which is inflammatory."
Records from Heritage ENT/Dr. Laurence A. Levine, M.D. (No. G) included results of an audiometric test performed on DeShaney on 01/28/94. A Dr. Mary Lewis, M.A. CCC, Clinical Audiologist, of Heritage E.N.T. wrote of the 01/28/94 audiometric test results in a 01/28/94 comment note:
Patient reports history of occupational noise exposure. She says the noise levels at work have been measured and sometimes the employees have been told it's bad enough that they have to wear ear protections and then they've been told it isn't loud enough. She was tested pre-employment and reportedly had normal hearing. She says she doesn't think she has any hearing loss but her daughter and her boyfriend say she turns the TV much louder than they think is necessary to hear.
Pure tone air conduction audiometric results are consistent with essentially normal hearing bilaterally, but with the right ear being somewhat better than the left ear. There is a frank asymmetry at 8000 Hz . Speech discrimination scores are normal bilaterally with the left ear minimally better than the right.
Patient was advised of essentially normal findings. Suggest annual or biannual recheck.
Dr. Levine wrote a January 31, 1994 letter to Dr. Adams which included the following:
I saw DeShaney on January 28, 1994 for her history that dates back several years of nasal congestion, cough, post nasal drainage and itchy watery eyes. In as much as you are fully aware of her history, I will not reiterate it.
On physical examination there is no wax in either external canal and both tympanic membranes appear normal. Nasal mucous membranes are congested and slightly pale. There is clear mucus in the nose and the nasopharynx. The remainder of the exam is unremarkable.
ASSESSMENY: Allergic rhinitis, cough, otalgia..
Dr. Levine wrote of the medications he had stared DeShaney on, and further wrote that she was to see Dr. Richard Cannon who had cared for her children when they had allergies. Dr. Levine wrote that DeShaney would return to him as necessary.
Medical records from Dr. Michael K. Houser, M.D. (No. M) indicated that the doctor treated DeShaney for various ailments during the period of November 1995 through July 1999. In an 11/16/95 treatment entry in which the doctor's diagnoses were: 1. Bronchitis with bronchospasm, 2. Depression, 3. Chronic back pain, and 4. G.E. reflux. The doctor listed the medications DeShaney was on for each of these diagnoses. In a Physicians' Message Minder form, dated 01/24/96, it was written - referral to Dr. Martin for wrist pain. In a 04/18/96 entry, Dr. Houser wrote that DeShaney was on a diet. Further written was that DeShaney complained on severe right elbow pain; it was noted that she had undergone treatment for carpal tunnel syndrome in the past. The diagnosis on 04/18/96 was - 1. G.E. reflux significant improvement, and 2. Lateral epicondylitis. Treatment on that date included injection in the right elbow. A 04/30/06 Physicians' Message Minder form stated that DeShaney had called requesting a paper for no repetitive lifting and carrying thing is hands for long time to be faxed to MEMC; a 04/30/96 Certificate Of Professional Care form completed by Dr. Houser stated - "Tennis elbow No repetitive lifting and carrying things in hands for 1 mo \& re-assess." The record indicated continued treatment of the right tennis elbow; it was written in a 06/07/96 entry that papers were completed for DeShaney to go back to work on July 3, 1996. The 07/08/97 entry indicated treatment of DeShaney for various diagnoses, including depression and morbid obesity.
In the next treatment entry of 10/09/97, it was written:
Continues to complain of multiple aches and pains all over, both wrists, both elbows. Hurts so much she can
hardly work. She's seen an orthopedist and then a plastic surgeons and they have pretty much given up on her and told her that they don't think they can operate on her and help. She's already had previous carpal tunnel surgery and still having pain.
Dr. Houser wrote in the 10/09/97 entry the assessment of - diffuse joint pains, she has never seen any rheumatologist; the doctor wrote that there would be a Rheumatology referral to Dr. Ross. October and November 1997 Physicians' Message Minder forms indicated that DeShaney had called informing that her daughter had cancer; in the 11/06/97 form it was written that DeShaney was very upset, nerves were shot, and wanted like two weeks off, and leave was 11/4/97 - 11/18/97 and DeShaney was informed. In a 11/13/97 entry it was written: "She's having trouble with her work. They do not want to cover her. They want her to go on a family leave instead of medical leave but she needs to be off for depression". The diagnosis on 11/13/97 included - depression unipolar severe, uncontrolled by Prozac. In the treatment plan section of the 11/13/97 entry was written: "Psych referral to either Dr. Canale or Dr. Mattingly. She'll try to arrange through Behavioral Care and she needs to be off work on medical leave for disability." In the next entry of 11/25/97 it was written that DeShaney was being seen for follow-up for depression. It was written that DeShaney was not feeling well at all though she had noticed minimal improvement. It was observed that DeShaney presented affect was flat, mood depressed, crying at times. The assessment included - 1. Depression not improved pending seeing a psychiatrist in hopefully mid December, and 2. Morbid obesity (it was written that DeShaney had been approved to have stomach stapling in January 1998). A 03/11/98 Physicians' Message Minder form was in the record, and stated: "Had G(astric)B(ypass) surgery on Feb 23 still sick \& crying about it - doesn't wasn't to go back to work yet - can you help her out?" The next treatment entry was dated 03/12/98, and it was written that DeShaney was having multiple problems. It was noted that she had had gastric bypass surgery and then had to go back into the hospital with an infection, and that on February 13, 1998 she had had some kind of female surgery by Dr. Lamping on February 23, 1998 had had to have gallbladder surgery. Further written in the 03/12/98 entry:
She's had persistent nausea everyday. If she's up for more than 15 minutes she feels nauseous like she's going to throw up. She can only eat very minimal amount before she feels nauseous She's lost 60 pounds in 3 months which is more than she was suppose to have lost by now.
It was further noted that DeShaney was very depressed and cried constantly all through the interview. The assessment on 03/12/98 was: 1. Persistent nausea, could be reflux symptoms but I'm not sure how to fix this, and 2. Severe depression. Dr. Houser wrote that he had increased DeShaney's medication, and if she was not better in a week he would refer her to a gastroenterologist, and he would like her to continue to try to get arranged to see the psychiatrist regarding her depression. "I called her disability company and got her 2 more weeks off work until she can get these things straightened out", Dr. Houser further wrote. A work status form, dated 03/26/98, was in the record and indicated that Dr. Houser released DeShaney to work with restrictions of - "only work 6 hrs/day for 2 wks, work only in FTIR \& ELYMET for 3 months". In the next treatment entry of 04/30/98, Dr. Houser wrote:
S: Comes in with multiple complaints. The main one is that she's severely depressed. She's crying the whole time she's talking to me and can't stop. She's complaining of left shoulder pain, upper back pain. She can't hardly move due to the pain. Can't eat because of the constant nausea. Can't sleep. She's suppose to see Dr. Canale May 26th but it's the first appointment she could get. She's been working 6 hour days 3 days a week but couldn't work the last 2 times because she's been so sick. The lifting that she has to do at work really flared up her shoulder pain and the nausea and everything else, and has thought about hurting herself but has no definite plans yet.
O: Severely depressed patient. Really not functioning. She hasn't been out of bed in 3 days other than to go to the bathroom. She's already taking Serzone without improvement.
A: 1. depression severe
- persistent nausea due to Nissen fundoplication surgery
- shoulder pain.
P: Will resume Relafen 500 mg 2 a day and Skelaxin. Will try to get her admitted to psych ward today for depression under Dr. Canale. She's really been disabled since 4/24/98.
In the next treatment entry of 08/06/98, Dr. Houser wrote that DeShaney was going to water therapy for fibromyalgia. It was further written that Dr. Altman had been trying different things for her nausea without much improvement; that DeShaney was just weak and fatigued all the time, only eating a few crackers a day that kind of thing, she can't eat because of the nausea; she's lost 100 pounds since her surgery. It was noted that Dr. Anderson had just added Depakote for her depression for about the last month; DeShaney had not been working, is filing for disability. The assessment on 08/06/98 was: 1. fatigue; 2. depression; and 3. chronic nausea. The next treatment entry concerned treatment for the diagnoses of: 1. Abdominal pain, cause unclear; and 2. Mild back pain, already on medication. "Patient I think is pretty disabled from her pain and her depression and all her other problems", Dr. Houser wrote in the 09/24/98 entry.
Certified records of Dr. Martin Glazer, D.O. (No. N) consisted of a February 14, 1996 letter by the doctor in which he wrote that he was enclosing office notes and all pertinent records relating to DeShaney as requested, as well as itemized ills for charges for 1994 and 1995. The record included a statement page reflecting payments for services during the period of 08/17/94 through 07/19/95. The final page in the record was a form completed and signed by Dr. Glazer on 03/24/95 in which the doctor wrote: "unable to work the laser mark - due to therapy - may work another machine or machinery. May not return to laser mark till 4/24/95".
The treatment records of Dr. Stanley Martin, M.D. of Metropolitan Neurosurgery, Inc. (No. O) concerned the treatment of DeShaney during the period of April 1995 through June 1998. The record began with an April 12, 1995 treatment entry by Dr. Martin in which it was noted that DeShaney had been referred by Dr. Glazer for evaluation of bilateral upper extremity pain; after discussing his examination findings, Dr. martin wrote that DeShaney had bilateral upper extremity pain which was not typical for carpal tunnel syndrome, though it was certainly possible. The record indicated that conservative treatment failed, and DeShaney was admitted to St. Joseph Health Center/Hospital on 04/28/95. The History of Present Illness included that DeShaney had described "about a one year history of bilateral upper extremity pain, radiating from the elbows into the forearms, and into the wrists and hands....". A 04/28/95 operative report indicated that Dr. Martin performed on DeShaney the surgery of - Right carpal tunnel release; the post-operative diagnosis was - Right median nerve compression at the wrist. The record indicated some infection at the right wrist surgical site which Dr. Martin treated with the medication Keflex. DeShaney was again admitted to St. Joseph Health Center/Hospital on 05/22/95 for surgery on the left wrist. A 06/09/95 operative report indicated that Dr. Martin performed on DeShaney the surgery of - Left carpal tunnel release; the postoperative diagnosis was - Left carpal tunnel syndrome. In an August 31, 1995 entry, it was written that DeShaney had indicated in a phone call that her left hand was swollen after working two 12 hour shifts over the weekend; it was written that DeShaney was instructed to come in if her hand was still swollen after continuing to work. A follow up entry dated September 21, 1995 included that DeShaney noted persistent intermittent swelling over both wrists, the left greater than right, when she works. Exam findings on September 21, 1995 included - wounds well healed, no erythema, mildly tender over the proximal aspect of the left incision good strength. Dr. Martin's written assessment on September 21, 1995 included that DeShaney was doing satisfactorily and that he would like to see her in 2-3 months. Further written was: "She does not wish to do a particular job at work which involves quite repetitive motions. I concur that this is reasonable at this point as gave her a note to that effect".
In the next treatment entry of January 25, 1996, Dr. Martin wrote that DeShaney returns with numerous complaints, mostly concerning her right hand and arm. After discussing his examination findings, Dr. Martin wrote the following in the assessment section: "The etiology of her complaints are not entirely clear. I suggested she continue to take Advil and Aleve as needed and perhaps wear the wrist braces as she
could tolerate them." Dr. Martin wrote that DeShaney would return in a few months. In an April 3, 1996 treatment entry, the doctor wrote:
Her main complaint at this point is right lateral forearm pain which is worse with working and moving her right arm. It seems to be better with rest. She is working three 12 hours shifts but states she cannot work overtime because of these pains. She ahs some residual numbness in her right hand but she states this is much improved from before the surgery. It is not getting worse and does not particularly bother her. She has little in the way of pain in the hand itself. She states that her hand feels weak but notes this weakness only when she has the right lateral forearm pain. She denies any LUE complaints. The pains are not at all worsened by moving her neck. She does have some baseline low back pain which she has had intermittently over the years. She denies any more proximal shoulder or upper arm pain.
Dr. Martin's written assessment on April 3, 1996 included the following: "I believe her symptoms are not due to recurrent carpal tunnel at this time. They sound more consistent with an overusage type syndrome, perhaps involving tennis elbow type syndrome." The doctor wrote that DeShaney should see another doctor concerning the tennis elbow symptoms, and he had told DeShaney she need not return on a routine basis but should call for further problems or questions. The next document was a July 8, 1997 examination entry in which Dr. Martin wrote that DeShaney had been referred by Dr. DiFilippo for evaluation of bilateral wrist pain. Dr. Martin further wrote: "She has been back to work and tolerating it on and off for the last year or so. She has not worked for the last month due to bilateral wrist pain. This comes on with activity." Symptoms noted by DeShaney, the doctor wrote, were swelling of the wrists and numbness of both hands, weakness involving both hands, occasionally drops objects; denies much neck pain or more proximal extremity pain. Dr. Martin's written assessment on July 8, 1997 included that DeShaney had a syndrome of bilateral writ pain and paraesthesia which sounded as if it was worsening; they are clearly related to activity and better with rest, the doctor wrote. Dr. Martin wrote that he told DeShaney he was not in favor of repeat surgery, but offered to send her for another surgical opinion, and that he would speak to Dr. DiFilippo. In the next and final treatment entry in the record, dated June 11, 1998, Dr. Martin noted the following:
She returns at the request of Dr. DiFilippo for evaluation of neck and LUE pain. She was well until a few months ago when she awoke with posterior cervical pain and stiffness. She states the pain radiates from the left side of her neck and began radiating down to the left arm. It bothered her a great deal in the shoulder and radiated down to the arm and forearm and into all of the fingers, particularly the thumb. This pain is worse when she moves her shoulder. She states that arm pain is worse than the neck pain. She notes numbness in both hands but states this has been residual since her carpal tunnel releases in the past. She denies any history of lower extremity stiffness, gait difficulty, or bowel or bladder dysfunction. There is no recent history of fever, sweats or chills. She has recently been hospitalized for depression following a gastric bypass procedure about 6 months ago at Doctors hospital. She has lost 98 pounds since. She has had a disability valuation as well. Dr DiFilippo performed an injection in the left shoulder about 9 days ago and she states this has markedly improved the pain.
In the Assessment section of the June 11, 1998 entry, Dr. Martin wrote: "Her symptoms sound more consistent with primary shoulder pathology than a true cervical radiculopathy. While I told her those were sometimes difficult to distinguish I am not inclined to repeat a cervical spine MRI scan at this point."
Records of Dr. E.A. DiFilippo, M.D. of St. Charles Orthopaedic Surgery (No. T) indicated that the doctor first examined DeShaney on May 14, 1996. In a letter of the same date to a Dr. Michael Houser, M.D., Dr. DiFilippo wrote that DeShaney had signs and symptoms of lateral epicondylitis of eh right elbow. It was noted that DeShaney was somewhat improved since she had been off work and had had a recent injection of Cortisone. It was written that DeShaney would be continued off work, was to attend physical therapy and return in about 3 weeks. In a treatment entry dated May 14, 1996, it was additionally noted that DeShaney had had carpal tunnel release in April 1995 and June 1995 by Dr. Martin with overall good
improvement; it was also noted that DeShaney was also on Prozac under the care of Dr. Houser. The next treatment entry of June 6, 1996 included that DeShaney had some medial epicondylitis symptoms but the lateral epicondylitis had apparently resolved; other complaints form DeShaney were some numbness in the dorsum of her wrist hand and fingers, some persistent numbness from an old injury of her 5th finger where she had a tendon injury in the past, and no neck discomfort and good neck mobility and neurologically grossly within normal limits. The written impression on June 6, 1996 was - medial epicondylitis. An injection was given, and DeShaney was to return in1 month. It was indicated in the next entry of 07/02/96 that DeShaney had improved from lateral and medial epicondylitis, but in the next entry of 09/12/96 it was written that DeShaney was complaining of pain about the area of the right and left shoulder and the right and left elbows as well as continued paresthesia in the dorsum of the forearm radiating down into the hand on the right, and volar aspect of the forearm radiating into the hand on the left. Overuse syndrome was a considered impression, and a bone scan was recommended. In an October 1, 1996 letter to DeShaney, Dr. DiFilippo wrote that the bone scan examination on 098/27/96 was essentially within normal limits, and that nerve conduction studies and EMG of both upper extremities were borderline evidence of carpal tunnel syndrome on the right wrist. In an October 8, 1996 treatment entry, Dr. DiFilippo wrote that DeShaney had somewhat improved with anti-inflammatory medicine and being off work for 3 weeks. It was noted that DeShaney had mild carpal tunnel changes in the right wrist, status post carpal tunnel release approximately a year ago. Exam findings on10/08/96 included no evidence of atrophy, negative Tinel; Physical therapy was scheduled and DeShaney was continued off work for 2 weeks. In a November 5, 1996 entry, Dr. DiFilippo wrote that EMG/NCV studies showed no evidence of abnormality about eh elbow; it was noted that a bone scan and x-rays were normal. The doctor wrote that DeShaney had had symptoms of pain in the medial epicondylar area, and had been having symptoms since about February 1996; it was noted that she had improved from lateral epicondylitis. It was written that shoulder discomfort was resolved since DeShaney had been off work. The entry reflected that DeShaney was reinjected in the medial epicondylar area, and was continued off work. In the next entry of December 3, 1996, it was written that DeShaney reported she had improved form the injection and wanted to return to work. In the next entry of January 10, 1997, it was noted that DeShaney had had reoccurrence of medial epicondylitis; the doctor wrote - "She works where she handles multiple silicone wafers and that may well be causing increase problem with her elbow". It was further noted that DeShaney had continued paresthesias post carpal tunnel release, and had occasional neck discomfort. Dr. DiFilippo questioned if the neck problems were due nerve entrapment at the neck; it was written that DeShaney had had poor result form carpal tunnel release, and she was to have x-rays and MRI of the cervical spine. DeShaney was kept off work, and was to return I one month. In a March 7, 1997 entry, Dr. DiFilippo wrote that there were no recommendations for surgery at this time, it was noted that DeShaney had been reinjected in regards to her mild epicondylitis and was to try to return to work. It is also recommended that she undergo a job change, the doctor wrote. Further written was - "the MRI of the cervical spine shows some evidence of arthritis". In a June 3, 1997 entry it was written that DeShaney had had a flareup of pain in the area of the right and left wrist since return t to work; it was noted that at that time her work included primarily computer work. In a July 1, 1997 entry, it was noted that DeShaney continued to have pain in the lower aspect of both wrists. The prior carpal tunnel surgery was again noted. It was also written that DeShaney had pain with abduction of the shoulder in the area of her hand and wrist; it was noted that bone scans were negative and EMG nerve conduction studies were borderline. Dr. DiFilippo's impression on July 1, 1997 was that if DeShaney's symptoms continued she might need to see a general surgeon or thoracic surgeon to rule out thoracic outlet syndrome. In the next treatment note of July 16, 1997, it was written that DeShaney had returned to Dr. Martin who had performed a carpal tunnel release and conservative treatment had been recommended; it was written that she had improved somewhat in regard to her carpal tunnel symptoms. She has some mild symptoms about the medial aspect of the elbow similar to her previous medial epicondylitis for which she was seen at St. Louis University, Dr. DiFilippo wrote. The doctor further wrote that DeShaney wanted to return to work at keyboarding with no heavy lifting and no constant repetitive motion; she was to return for follow up in 6 weeks.
pain about area of her neck and also her lower back, also area of left upper extremity and shoulder and radiating down the arm." Next to "her lower back" there was handwriting indicting DeShaney had stated this was for years; next to "left upper extremity" there was handwriting indicating DeShaney had said this had increased in last few months. Exam findings on May 5, 1998 included: neurological exam grossly within normal limits; negative Tinel upper and lower extremities; pain is about area of deltoid posteriorly in left shoulder and deltoid insertion; good neck mobility, neurological exam grossly within normal limits. The written plan was to obtain x-rays of the neck and lower back, physical therapy, total body bone scan, and EMG and nerve conduction studies of right and left upper extremities to rule out carpal tunnel (doubtful) and rule out cervical disc disease. In the next entry of May 26, 1998, Dr. DiFilippo wrote:
Has multiple joint arthralgias in area of her neck and in the lower back and left shoulder and right elbow. She has signs and symptoms of medial epicondylitis in right elbow, injected 1 cc Cortisone 3 cc Lidocaine.
She has signs and symptoms of rotator cuff tendonitis left shoulder. Injected left subacromial area 1cc Cortisone 3 cc Lidocaine.
She's to attend physical therapy for left shoulder and right elbow.
She also has parasthesias in left upper extremity and she's to see a neurosurgeon. She also has multiple arthralgias rheumtoligist, given Dr. Baldassare name and number... (sic)
In a May 26, 1998 letter to Dr. Martin, Dr. DiFilippo wrote that DeShaney had multiple joint arthralgias and was to see a rheumatologist sometime in the near future; it was noted that DeShaney had had left and right carpal tunnel releases under Dr. Martin's care in the past, and it would be appreciated if Dr. Martin would reevaluate DeShaney's neck complaints with radicular symptoms of left upper extremity. It was noted that an EMG, nerve conduction studies of 5/22/98 were a normal EMG of both arms and a marginal studies of her median nerve injury of her right wrist.
St. Joseph's Hospital West records (No. U) contained a 06/04/98 report of an MRI of the left shoulder ordered by Dr. DiFilippo, noting an order diagnosis of - pain. The written diagnosis by the Radiologist Dr. Edward Cohen, M.D. was: Degenerative change acromioclavicular joint; and Suggestion of focal incomplete tear and/or tendonitis in the supraspinatus tendon at the attachment to the humerous
In Dr. DiFilippo's next treatment entry of 07/07/98 (No. T), the doctor wrote that DeShaney was on some type of disability and had a history of fibromyalgia; it was noted that she had had a stomach bypass in the past. It was written that DeShaney was having pain in the area of the left shoulder and lower back. Dr. DiFilippo further wrote:
Also, discussed with her physician by phone today in regard to Mrs. DeShaney, that she appears to be disabled from work for many reasons from the standpoint of her fibromyalgia, ongoing pain post carpal tunnel release, pain in the area of the upper and lower extremities and also an incomplete rotator cuff tear on the left.
The doctor wrote that he had discussed with DeShaney that she had an incomplete rotator cuff tear on the left, that she had good range of motion good strength against resistance and no plans for reconstruction were recommended. Dr. DiFilippo wrote in the next treatment entry of August 18, 1998, that DeShaney was continuing to have multiple joint arthralgia including left shoulder, both knees, and lower back. In the next and final treatment entry in the record, dated October 13, 1998, Dr. DiFilippo wrote the following impression:
Impression at this time is multiple joint arthralgia with history of fibromyalgia with additional radicular symptoms left upper extremity with no obvious neurological deficit, status post bilateral carpal tunnel release.
She may have a recurrent cervical disc problem and she continues to have symptoms may require MRI although she's been seen by a neurosurgeon in May 1998 and no additional studies recommended at that time.
Last visit Dr. Martin June 1998 did not recommend additional MRI. If she continues to be symptomatic will need to see Dr. Martin again.
She'll be off work at least over the next year and she's applying for disability.
The record included two prescription forms, one completed by Dr. Martin Altman, M.D, Gastroenterology, St. Joseph's Health Center, and the other completed by Dr DiFilippo. Dr. Altman wrote in the 10-12-98 form: "This patient has severe, intractable esophagitis - because of her intense pain with and after eating, she is unable to work at this time for at least 3 months. She is being referred to St. Louis U. Hosp for further evaluation." In a 10-13-98 form, Dr. DiFilippo indicated that DeShaney was under his care, and was to be excused from work, off work, for one year.
A report of April 17, 1998 from Dr. J.H. Morrow, D.O. (No. A) indicated that the doctor was seeing DeShaney for injuries occurring on 04/19/95, 03/01/96 and for Second Injury Fund purposes. Dr. Morrow noted many facts regarding DeShaney in his report, including the following:
She had a left ulnar nerve transfer in 1982, but has no complaints involving the left elbow....
She has a pre-existing condition of chronic exogenous obesity. She was 318 pounds in 1997, for which she underwent a gastric bypass surgery on 12-15-97, she is presently down to 245 pounds. She had been 260 pounds at t the time of the injury of April, ' 95 involving the hand.....would be rated at 15 % of the body as a whole reference chronic exogenous obesity prior to 4-19-95 injury reference second injury fund.
Reference second injury fund, the patient sustained injury to the low back in April, '91. She was employed at MEMC at that time and after lifting packs of silicone slices weighing about 25 pounds, she did this on a repetitive basis, she would lift about 4 tubs and hour......She saw David Robson, M.D., orthopedic surgeon, also on 12-20-91, she had been released t return to work on 8-29-91, he noted, and worked 2 months and in November, stopped again because the pain was intolerable in the low back.
MRI was performed that showed mild asymmetric disc bulging at L-5-S-1 to the right with no discrete herniation, also degenerative disc disease from the L-3 level down to S-1. Dr. Robson on his exam did not feel that surgery was indicated.....
Complaints: Present complaints reference the low back, reference second injury fund at this time. She complains of constant pain in the low back, the pain varies anywhere from mild to severe intensity, bending, lifting, pushing, pulling and squatting tend to produce the pain. The severe pain is present at least once a day, she also has back pain at night. If she is standing in excess of half an hour will cause the pain back, walking in excess of 20 minutes will cause the back pain, and sitting 20 minutes will increase the back pain also. The pain is confined to the low back and occasionally goes up into the dorsal area. (sic)
Dr. Morrow's written diagnosis in regards to the pre-existing injury of 1991 was - "Lumbosacral sprain with degenerative disc disease at L-5-S-1 level primarily having been treated with physical therapy, antiinflammatory, and analgesic medications as well as epidural injections". The doctor assessed 35\% permanent partial disability of the body as a whole referable to the low back for pre-existing injuries of April 1995 and March 1996.
Dr. Morrow noted that DeShaney had undergone right carpal tunnel release on 04/28/95 and left carpal tunnel release on 06/09/95. The doctor further wrote:
....Dr. Martin on 8-31-95 notes that she phoned him and told him the left hand was swollen after working two
12 hour hours over the week end and he noted on 9-21-95 that she could not work three 12 hour shifts in a row, but was able to work a regular Saturday, Sunday and Tuesday job. The ordinary job was 36 hours a week, but she would be actually working three $121 / 2$ hours sifts, and she had frequently worked overtime in the past.
On 4-3-96, the doctor noted that she was working three 12 hour shifts but could not work overtime because of the pain, and had some residual numbness in the right hand but much improved before surgery....There was little in the way of pain, and the hand itself. On 4-3-96, the doctor felt that her symptoms were not due to recurrent carpal tunnel at that time. He found it more consistent with overuse type syndrome, perhaps involving tennis elbow syndrome....Dr. DeFillippo on 7-1-97 referred the patient back to Stanley Martin, M.D., neurosurgeon, reference bilateral wrist pain, normal activity had not worked for the prior month, she had swelling in the wrist and numbness of both hands, the right worse than the left. She would occasionally drop things....He noted MRI of the cervical spine had been normal.
......She was off from 11-6-97 up until the end of March, '98 and has been back to work the past two weeks....She is back doing the computer work.
She is still working 3 days a week, 6 hour days by the surgeon that did the gastric bypass surgery.
Otherwise, she would be working three $121 / 2$ hour days a week. She is involved both with running machines, where she would be lifting 5 pound cassettes in addition to the keyboarding.....
Present complaints at this time: The patient gets numbness along the entire right hand involving all five digits at night about 3-5 times a week, she gets numbness on the entire five digits of the left hand at night about once of twice a week. She gets pain in the volar wrist and the palmar aspect of the hand in the area of the carpal tunnel and the right thenar eminence. She has problems with the left hand but to a lesser frequency. Writing with the right hand causes the symptoms in the right hand. Keyboarding causes the symptoms in both hands, the right worst than the left. Writing with the right hand causes the symptoms in the right hand. Lifting 5 pound cassettes also cases the pain. Talking with the phone in the right hand, then she had to switch to the left hand and back and forth because either hand tends to get numb. Using her hands at any time in a repetitive manner, then the pain will come within about 15 minutes after she has been doing this involving either hand. Using a screw driver and so forth are things that cause the pain. Driving can cause the pain but more so numbness when driving.
Dr. Morrow wrote of his diagnosis for the injury of 03/01/96: "Right medial humeral epicondylitis having been treated with some local injections and a forearm support and physical therapy". The doctor assessed 35\% permanent partial disability of the right upper extremity at the level of the elbow "associated with the activities of her right upper extremity at the elbow as of approximately 3-1-96". Dr. Morrow offered a diagnosis in reference to "the hand with repetitive use of her hands at her place of employment as of 5-24-95: Bilateral carpal tunnel syndrome...". The doctor assessed 40\% permanent partial disability of the right upper extremity at the level of the wrist and 30 % of the left upper extremity at the level of the wrist "associated with repetitive use of her hands at her place of employment".
Medical records of Dr. Richard Anderson, M.D. (No. X) began with a 05/01/98 consultation note, St. Joseph Health Center, in which Dr. Anderson wrote that DeShaney was known to him from the office, and who had been admitted because of severe depression with suicidal ideation. The doctor noted the following history:
The patient has been getting progressively more depressed over the last few months primarily due to her chronic illness. She had a gastric stapling done and then developed persistent nausea ever since, just can't eat and just feels terrible all the time. She went back to work and has not been able to tolerate that because of the nausea and this has been her major stress. She also has a daughter who has ovarian cancer and that is another major stress in her life.
In the Surgical History of the report, Dr. Anderson wrote: "Carpal tunnel surgery in 1995 on both hands and breast surgery for benign tumor in 1992. Elbow nerve surgery in 1989. Septal reconstruction 1984 and then
she had the gastric stapling n 1997. She also had a back injury in 1990, but I don't think that required surgery. She also had tubal ligation." In the Social History section, Dr. Anderson included: "She had been back to work on a part time basis working six hours three days a week, but was unable to tolerate that." In the Review of Systems section of his 05/01/98 consultation report, Dr. Anderson wrote the following in categories:
Gastrointestinal: As noted above. The patient has had persistent nausea, just can eat a few bites of food at a time and gets very nauseous. She has seen the surgeon, Dr. Scott, who did the surgery and he told her that everybody else that has surgery has gotten better and he does not understand why she is still having nausea for this long. He basically told her there is nothing else that he can do for her..... Musculoskeletal: Has chronic low back pain which somewhat limits her working. Neurological: No history of seizures, stroke or other neurologic event.... Psychiatric: Long history of depression. Apparently she has had previous overdoses and treatment with antidepressants for a long time. I personally had her on antidepressants for about three years continuously. First, on Prozac and then just recently she was switched over to Serzone without much improvement.
Dr. Anderson, in his physical examination findings, included the following: neck - without bruits; extremities: normal pulses, no edema, no calf or thigh tenderness; neurological - intact other than the mental status. The doctor's assessment on 05/01/98 was: 1. Severe depression with suicidal ideation; 2. Persistent nausea due to the surgery most likely; 3. Status post gastric stapling for obesity; 4. Left shoulder pain; 5. Chronic back pain; and 6. hypothyroidism with mildly elevated thyroid-stimulating hormone.
In a History and Physical Examination form, dictated 05/01/98, Dr. Anderson included the following in the History of Present Illness section:
During the past year and a half she has had an exacerbation of her depressive illness with low mood, crying spells, helplessness, hopelessness and thoughts of death. She has had a number of physical problems and has undergone three surgeries since December of last year. She was having continued pain in her back from an old injury, as well as stomach upset from her surgeries, and inconsequence of unremitting chronic pain she had a worsening of depression during the past several months. During the past three to four months she has lost 85 pounds, about 17 pounds of this have been in the last month. During the past week she had returned to her job but had been unable to function effectively. Her inability to return effectively to work combined with continued chronic pain, combined with already present depression have served to make her almost incapable of doing anything....
Dr. Anderson wrote in the 05/01/98 History and Physical Examination report that DeShaney would be hospitalized.
Progress treatment notes began with a 05/14/98 entry which indicated that DeShaney was a no show. It was next written that DeShaney was a no show. In the next treatment entry dated 05/18/98 it was written: out of work x 6 mos (with) back stomach; just sitting around house; upset can't sleep, crying "I can't cope". Further written was: lots of somatic complaints; has had 3 surgeries. The written assessment on 05/18/98 was: 1. depression with anxiety; and 2. rule out somatoform. Written in the next entry of 06/02/98 was that DeShaney's mood was better with the medication Remeron. In the next treatment entry of 07/14/98 the following was written: psych; multiple somatic complaints; told she has fibromyalgia - pain, depression, G.I. complaints. Also written was: Filing for disability; complaints of headaches, stomach ache, etc, etc. The assessment was: 1. depression, and 2. somatization. In the next entry of 07/29/98 it was written that DeShaney was on long term disability and was trying for SSI. Written in the 07/29/98 entry was: multiple somatic complaints; "I'm probably going to get disability, they are furnishing a lawyer for free"; "I don't think your med helps. Further written in the entry was: multisystem complaints in unrelated; doing aquatic therapy
"but I'm in such pain"; asking for more sleep meds. The diagnoses remained the same.
The record indicated that a Dr. J. Stuart of the St. Charles Psych Clinic took over treatment of DeShaney on or about 07/30/98. The treatment entry of the same date included:
c/o nausea, pain. "The water therapy which l've done for 2 wks is making pain \& nausea worse." Rainy days - she hurts in joints. "I've been dx fibromyalgia." "I had carpal tunnel surgery, it just makes me worse." "Last few years, l've gotten sick, off work3 mos at a time. I'm trying for disability. I've lost 100 lbs since 12/15/977?" Not supposed to have caffeine, soda, fried foods. She had by-pass surgery her gastroenterologist Dr. Altman took her off Remeron because she's on Purpolsid.
Three surgeries: 12-15-97 gastric bypass 2/13/98 knot in vagina 2/28/98 gall bladder. (Daughter has ovarian CA. she's a severe epileptic. She's on disability too.)
Further written in the 07/30/98 entry was about DeShaney's personal and family life. It was written that DeShaney complained that she has done a lot for her kids, now when she needs same thing, they won't help her. Also written was: Donna has little hand strength - she drops things. Karen - her closest friend.
In the next treatment entry of 08/13/98 it was indicated that DeShaney's mood was sad, tearful; her energy was low, her sleep was interrupted and appetite was poor, she cried often. Further written was:
I've always had sharp concentration - now I am forgetful. She has an appt to see MD \& psychologist re: social security disability. "I'm taking pain pills to get out of bed. I've been weak, \& throwing up." c/o swelling in (Left) knee \& (left) wrist \& in back of neck.
Finally written in the 08/13/98 entry was DeShaney's comments: "I have had pain for 8-9 years - now the stomach problems, \& the weakness, perhaps from not eating. I used to be active, always doing some thing. I never sat idle. Now I sit \& watch the clock." In the next entry of 08/26/98 it was written that DeShaney talked about fibromyalgia. It was written that DeShaney said she had seen doctor concerning her disability, and one physician "yanked" her arm up and caused her pain. DeShaney's complaints on this date were noted as: chronic fatigue, some days she does not dress. Some days she cannot climb 4 stairs slowly. What keeps her spirits up are here grandchildren. In the next treatment entry of 08/08/98 it was written that DeShaney had met a guy from 25 years ago; her present boyfriend, Jay, was discussed, and DeShaney statements included that Jay would not do anything with her, that without the social outlet of going to work she feels depressed by lack of stimulation. Written in the next entry of 10/13/98 was that DeShaney had cancelled, but had left a message for the doctor to call her at home, and when the doctor called the telephone was not answered. The next entry of 10/05/98 included:
Aetna trying to get her off disability \& back to work
She has (decreased) mood, crying in waiting room; multiple somatic complaints
Upset at evaluation of independent M.D.
Basically wants to go on permanent disability for carpal tunnel, etc.
.....MEMC cutting off her salary
Has boyfriend but not another guy she knew 25 yrs ago.
The assessment on 10/05/98 was: 1. depression, and 2. Somatization. In the final treatment entry in the record, dated 11/30/98, was written:
"not good"
Disability has stopped - M.D. said she doesn't need it - ...
Living with guy from 25 years ago...
Fighting (with) SSI/disability Dr. Altman sending her to Wash U.
She doesn't want to go back to work
"I hurt all over: - lots of polysomatic complaints
c/o being light headed, dizzy
The assessment on 11/30/98 remained: 1. depression; and 2. Somatization.
Medical records from St. Charles Clinic (No. W) began with a 05/15/98 treatment entry in which was written - continued nausea. The next treatment entry of 05/28/98 continued a discussion on the medications DeShaney was on, including a medication to alleviate antidepressant. The next and final treatment entry of 10/19/98 noted that DeShaney had had a gastric bypass 10 weeks earlier, and continued to indicate treatment for this.
The record included Telephone Contact forms during a period of 05/28/98 through 03/01/99. The first forms of 05/28/98 through 07/01/98 indicated care for complaints concerning nausea and vomiting. The next Telephone Contact forms of 07/29/98 and 08/14/98 again noted complaints of nausea, but also noted, respectively: "fibromyalgia - doing water therapy - seems more nauseated"; and "Doing H2O thx for fibromyalgia \& she thinks is making worse". The next Telephone Contact form of 08/31/98 included complaints of - hurting all over. DeShaney's complaint in the next form of 09/14/98 noted severe pain upper abdomen after meals, and scar at the top of stomach has knots in it. In the next entry of 10/18/98 the following was written:
Has a terrible pain when she eats -
Wants a note that she's not able to work.
Got fired from job. To whom it may concern
Need by Thurs. one to Aenta
one to MEMC electronic material (sic)
A final Telephone Contact form was in the record, dated 03/01/99, and included that DeShaney was still having nausea \& pain in her stomach. Further included in the form was:
You quote her a note to be off work 3 months Wants you to write another for 3 m . Trying to get SS. Clause said he would too. but only seeing her one time Should probably get one from you.. (sic)
Medical records from Arthritis Consultants, Inc. (No. L) began with a June 22, 1998 consultation letter by Dr. Stephen C. Ross, M.D. to Dr. Houser. Included in the June 22, 1998 letter was the following:
As you know, Mrs. DeShaney is a pleasant 45 year old female with multiple musculoskeletal problems. As you know, she sustained at injury to her lumbar spine in 1990 and states that she has subsequently had pain in her lumbar spine and both hips since that time. She has also experienced a rather severe bilateral carpal tunnel syndrome and had a release at both volar wrists. She has tendinitis in her elbows and a possible partial rotator cuff tear of the left shoulder. She has generalized arthralgias and sleeps poorly through the night. She has constant paresthesias in both hands. She underwent gastric bypass surgery in December with a subsequent 90 pound weight loss in hoes that this would help with her musculoskeletal symptoms, however her pain has persisted. She is currently undergoing physical therapy on her right elbow and left shoulder. She has no rashes, psoriasis, photosensitivity, stomatitis, Raynaud's phenomenon, Sjogren's syndrome, or subcutaneous nodules. (sic)
Dr. Ross continued in the June 22, 1998 letter with a discussion of the medications DeShaney was presently on. The doctor noted:
Her general physical examination was unremarkable. Musculoskeletal examination revealed 20\% limitation
of lateral bending of the cervical spine. Peripheral joints were negative. She had many tender points.
Dr. Ross' written diagnoses were: 1. Fibromyalgia; 2. Status-post carpal tunnel release; and 3. Epicondylitis. The doctor further wrote:
I explained to Mrs. DeShaney that I felt her musculoskeletal symptoms were multifactorial in origin including persistent paresthesia, status-post carpal tunnel release, epicondylitis, and partial rotator cuff tear. She has characteristic tender points, however, to substantiate a diagnosis of primary fibromyalgia. She is currently being treated with muscle relaxants and serotonin reuptake inhibitors which I feel are appropriate. When she completes her course of physical therapy for the elbow and shoulder I would recommend an aquatic exercise program. I gave her information from the arthritis foundation on fibromyalgia.
A physical examination form, dated 06/22/98, was in the record, and indicated the following: a. "Examination revealed a (well) developed, overweight nourished 45 year old white female in no acute distress. She rose from a chair without difficulty. Height 5'9". Weight 222. Blood pressure 102/82."; Neurological - intact; Extremities - good pulsations; Tender points - triceps, lig ??????, costochondral, elbows, gluteals, trochaters, and medial knees; limitation in range of motion in cervical vertebrae; no limitation in thoracic and lumbar vertebrae; fists and grips were 100 %. Also in the record was another form, dated 06/22/98, and included was the following:
1990 lumbar injury - lumbar pain, hips painful since then.
Carpal tunnel syn. Both volar wrists - has seen 2 specialists at Barnes for CTS, nothing further can be done + tenderness elbows;
Had series epidurals
L(eft) shoulder painful
Aches all over
Dec. 15th gastric by pass surgery -
90\# wgt loss but still painful
Paresthesias hands
Can't sleep at night
Improved w/snoring since wgt loss
Was in hosp. for depression
Further written in this 06/22/98 form at Present treatment space was - PT now Rt elbow and Lt shoulder, +EMG/NCS CTS in past.
The first treatment entry, dated 06/30/98, stated: "phone re: test results per Dr. R all normal, Dx fibromyalgia. Pt requested letter stating she can not work due to pain. Per Dr. R have disability office send us form to fill out and get letter from orthopedic surgeon of internist". In a 08/14/98 entry was written: "phone pain \& swelling all over, vomiting, therapy not helping". In the next entry of 09/21/98 was written: "phone - Is there anything in records that will help her (with) disability? If so pt wants copy of records - per Dr. R" (Also handwritten in the entry was - "No". The next treatment entry of 12/29/98 noted that DeShaney was on multiple meds. DeShaney's complaints were noted as - right knee, lumbar pain, right hip pain, pain when she does any ?mint?. The diagnosis appeared to be - fibromyalgia syndrome. Further written was - work excuse for today, and treatment for lumbar and right knee. Early 1999 entries indicated DeShaney had problems with insurance. An apparently ?03?/01/99 treatment entry included that DeShaney was being seen for follow-up of fibromyalgia; it was noted that injection had helped a lot but now pain again. Further written was: generalized arthralgias, fell 3 x going down stairs, difficult to walk long time, psychiatrist has her on meds. Also noted was: had bypass (gastric), uses whirlpool helps. Tender points were noted as: triceps, elbows, lumbar, knees, and costochondral. The diagnosis remained - fibromyalgia. Indicated treatment was for arthritis.
The record included a work status form, dated 12/28/98, in which Dr. Ross indicated that DeShaney was being treated for the conditions of Fibromyalgia and knee pain. The form contained spaces for - patient has been unable to work since, patient has been released to return to work on, there are no restrictions, restrictions include - and nothing was written at these spaces. Only other indication on the form was - This patient was seen in our office on 12-29-98.
The final document in the record was a March 2, 1999 letter by Dr. Ross to a Mr. J. Berns. The doctor included the following in his letter:
In response to your letter of March 1st I have followed Mrs. DeShaney since June, 1998 with a diagnosis of primary fibromyalgia. Mrs. DeShaney has multiple musculoskeletal symptoms which are attributable to several factors, such as a history of partial rotator cuff tear, lateral epicondylitis, and primary fibromyalgia. I believe that her multiple problems would prevent her from full time employment as these will be chronic in nature. Although primary fibromyalgia has no destructive feature, her limitation is going to remain with chronic pain which will certainly be worsened with her current work environment.
A Scott Radiological Group report, dated August 20, 1998, concerned radiographic studies of DeShaney's low back and left wrist interpreted by Dr. Allan McCown, M.D. (No. B) The history noted for the low back was: "Disability evaluation. Low back pain". The written impression for the low back x-ray was: Multiple surgical clips in the upper abdomen; Degenerative disc disease L-5/S-1; Schmorl's node L-2; Limbus vertebrae L-4; and Possible soft tissue mass left side of the abdomen that could be arising from the kidney, suggest additional study. The history noted for the left wrist was: "Disability evaluation. Carpal tunnel". The written impression for the left wrist was: Negative.
A letter dated February 26, 1999 by Dr. Ray Clouse, M.D. to DeShaney (No. C) indicated that the doctor was associated with Washington School of Medicine, Gastroenterology Division. Dr. Clouse wrote the following in his letter:
I am writing to you at your request following your visit to my office today.
I realize at this time that you have considerable abdominal discomfort that probably relates to hypersensitivity of your intestine to foods and liquids. Although this kind of problem has no defined underlying neurologic basis, many patients are very uncomfortable from the process. As distraught as you were today in the office, I can understand why is has been difficult for you even to consider returning to your employment.
It is possible that some medication changes will be helpful in improving your functional capabilities. I am going to make these recommendations directly to Dr. Boyd, as it will involve some medications that might interfere with your current psychiatric treatment. Based on a single interview and office visit it is hard for me to make strong comments regarding your suitability for employment. These are the kinds of decisions that require much longer consideration of a patient's course and response to treatment.
I would hope that your employer would be considerate of your difficult condition and would allow some time for medication modification before being too insistent on your returning to work.
Dr. Thomas Musich, M.D. testified by deposition on behalf of the employee on April 29, 2003. (No. R) Dr. Musich stated that he is board certified in primary care and family practice. The doctor agreed that he examined the claimant, DeShaney, at the claimant's request concerning the April 1998 primary injury and injuries that pre-existed the April 1998 accident, and that he had reviewed medical records. At Dr. Musich's deposition, an April 24, 2002 letter listing the medical records Dr. Musich was sent for review was marked as Dp. Exh. 2 and admitted into evidence without objection; this letter indicated that the doctor's
evaluation of DeShaney was to occur on April 26, 2002 (See Musich Dp. pg. 6).
The doctor discussed the history of the primary work related accident as relayed to him by DeShaney:
"Ms. DeShaney told me that she was performing her routine job activities at MEMC Electronic Materials that required her to move a tub filled with a rack of wafers. According to Ms. DeShaney, the tub weighed about 30 pounds, and she states that while moving the tub, the wheels on the rack slipped causing her to jerk her left shoulder and upper back acutely. According to Ms DeShaney, she did not note any significant symptoms in her left shoulder prior to the work trauma in April, 1998. According to Ms. DeShaney, she is unable to recall any single event injury affecting her left shoulder before April of 1998. Ms. DeShaney is also unaware of any orthopedic evaluation or treatment she received referable to her left shoulder before April 1998." (Musich Dp. pp. 8-9)
Dr. Musich stated that DeShaney gave him a history of medical care she received following the trauma in April 1998, noting that DeShaney "told me that she followed with Dr. DiFilippo in May 1998 for complaints referable to her neck, upper back, low back and left shoulder". (Musich Dp. pg. 9) The doctor discussed the treatment history, noting that it included a total bone scan on May 22, 1998 which was interpreted as normal, and a left shoulder MRI on June 4, 1998 which "demonstrated degenerative change of the AC joint with a suggestion of a focal incomplete tear and/or tendonitis of the supraspinatus tendon at the attachment of the humerus". (Musich Dp. pg. 10) Dr. Musich was asked to explain in layman's terms the findings of the June 1998 MRI of the left shoulder:
"According to the medical report, this patient had some longstanding chronic wear ad tear type changes in the AC joint, which is the acromioclavicular joint, and it's located on the top of the shoulder. That is typically not an unusual findings in somebody Ms. DeShaney's age of 50 years old.....However, the MRI also demonstrated some significant changes of the supraspinatus tendon and those changes were either an incomplete focal problem with the supraspinatus tendon such as a partial tear and/or tendonitis or inflammation of the tendon. The supraspinatus tendon is one of the major rotator cuff tendons of the shoulder girdle, and the symptomatology consistent with an incomplete tear or tendonitis would be chronic pain, decreased mobility and weakness of the shoulder girdle." (Musich Dp. pp. 10-11)
Dr. Musich noted that DeShaney had told him "she suffered from cervical pain prior to the work trauma in 1998. A cervical MRI was performed February 27, 1997 which demonstrated straightening of the normal cervical lordosis with a mild degenerative change in the mid cervical spine without evidence of a discrete disk herniation, spinal or neuro stenosis". (Musich Dp. pg. 11) Dr. Musich discussed DeShaney's complaints at the examination. The doctor listed the medications she was on at the time of his examination of her, and explained what he medications were for:
"Ambien is used for sleep disorders. Klonopin is used for either seizures or panic disorders. Effexor is an antidepressant medication. Remeron is an antipsychotic medication. Seroquel is used for major depression. Prevacid is a medication for excessive gastric secretion. Thyroid supplement is what it says, it's a thyroid medication in oral form, and narcotic analgesic medication such as Percocet is an oral form of oxycodone." (Musich Dp. pg. 12)
Dr. Musich discussed the past medical history and other history DeShaney had relayed to him:
"DeShaney told me that she underwent a gastric bypass surgery in 1997, right breast cyst excision in 1991, cholecystomy in 1998, bilateral carpal tunnel decompressions in 1995 or 1996, tubal ligation in 1977, arthroscopic right knee surgery in 1982, left ulnar nerve transposition in approximately 1984, female surgery in 1998. She told me she completed a seventh grade education and that she received a GED certificate. Ms.
DeShaney told me that she attended trade school for computer technology. She told me that she was not working at the time of my evaluation and that her last work date was in 1998." (Musich Dp. pp. 12-13)
The doctor discussed his exam findings in regards to DeShaney's neck and left shoulder. Dr. Musich testified about his opinions after evaluation of DeShaney as to the nature of any injury DeShaney sustained as a result of the history DeShaney had relayed to him about April 1998:
"It was my medical opinion based upon a reasonable degree of medical certainty that Donna DeShaney sustained acute traumatic injury while moving heavy tube at work during the course and scope of her employment for MEMC Electronics in April of 1998. It's also my medical opinion that the traumatic work injury of April 1998 is a substantial factor in this patient's chronic ongoing complaints of pain, weakness and decreased mobility relative to her left upper back and left shoulder. It's my opinion that the traumatic work injury of April 1998 ha resulted in a permanent partial disability of 40 percent of the left upper extremity at the shoulder level accompanied with an additional permanent partial disability totaling 20 percent of the person as a whole referable to chronic myofascial pain of the neck, and upper back. It's also my medical opinion that Donna DeShaney did suffer a preexisting disability of five percent of the person as a whole referable to chronic myofascial pain in the paracervical soft tissue prior to April of 1998. It's also my medical opinion that Ms. DeShaney should continue to participate in a home exercise program and refrain from activities that severely and adversely affect the symptoms referable to her left upper back and left shoulder." (Musich Dp. pp. 16-17)
Dr. Musich agreed that he had reviewed medical records in reference to DeShaney's preexisting injuries or disabilities and medical problems and testified about what history he had obtained:
"Prior to April 1998 Ms. DeShaney was treated on multiple occasions for severe depression and suicidal ideation. DeShaney has suffered from chronic severe depression for many years prior to April 1998. It's also noted in the medical records that Ms. DeShaney has been evaluated and treated for multiple trigger points referable to chronic fibromyalgia that causes constant and persistent pain throughout her body.
It's also noted in the medical records from her treating physician that Ms. DeShaney cannot perform relevant past work and does not have transferable skills to perform other work within her residual functional capacity. In addition to severe persistent depression and chronic pain secondary to fibromyalgia, Ms. DeShaney has been surgically treated for bilateral carpal tunnel syndromes that continue to produce chronic pain, numbness and tingling over the median nerve distribution of both hands.
Ms. DeShaney has also undergone ulnar nerve transposition at the left elbow due to chronic pain and paresthesia over the ulnar nerve distribution of the left knee arthroscopy in the early 1980s secondary to internal derangement of the joint. Ms. DeShaney continues to note chronic intermittent daily pain in her right knee aggravated by attempted squatting, kneeling, cold and damp weather. Ms. DeShaney has also been evaluated and treated for chronic low back pain as a result of degenerative change and chronic myofascial pain. During this evaluation Ms. DeShaney continues to note symptoms consistent with ulnar neuropathy, bilateral carpal tunnel paresthesia, weakness and pain along with chronic low back pain.
Presently Ms. DeShaney is being treated by her psychiatrist and primary care physician with Ambien, Klonopin, Effexor, Seroquel, Remeron, Prevacid, thyroid supplement and multiple vitamins. Ms. DeShaney has also undergone gastric bypass in 1997 due to morbid obesity. Me. DeShaney has difficulty sitting in one position for any length of time over one hour. She also has difficulty walking stairs, climbing or standing for any prolonged period of time over 30 minutes." (Musich Dp. pp. 17-19)
Agreeing that he had arrived at an opinion as to the nature and extent of DeShaney's disability, Dr. Musich testified:
"It's my opinion based upon a reasonable degree of medical certainty that Donna DeShaney is totally and permanently disabled due to a combination of her present and past disabilities as well as her education,
training and transferable skills. It's also noted that ms. DeShaney requires chronic narcotic analgesic medication in the form of Percocet in order to tolerate pain and also requires sleep aids due to chronic fatigue and chronic pain. All of my medical opinions have been made with a reasonable degree of medical certainty." (Musich Dp. pp. 19-20) (RULING: Second Injury Fund's objections are overruled. Musich Dp. pg. 19)
Agreeing that DeShaney's need for Percocet and also sleep aids as a result of chronic fatigue would have an impact on her employability, Dr. Musich explained:
"All of the medication that Ms. DeShaney takes and that l've mentioned earlier in this evaluation have significant adverse reactions and quite frequently most of those adverse reactions are similar to each other depending upon what drug she's taking. She's taking medication like Ambien, Klonopin, Effexor, Percocet, Seroquel, Remeron. All of those medications can cause sleep disturbances, fatigue, chronic nausea, poor concentration, poor judgment, and the combination of those adverse reactions to those multiple drugs can actually be worse than any one of the adverse reactions from on particular drug." (Musich Dp. pg. 20)
Dr. Musich agreed that he had examined DeShaney's left elbow, both wrists and her low back. The doctor further testified:
"All of her complaints were consistent with her complaints in the medical records that I reviewed. Ms. DeShaney had ongoing symptoms and physical examination consistent with carpal tunnel decompressions and carpal tunnel syndromes and ulnar nerve transpositions and cubital tunnel syndrome. Her physical examination and her complaints were consistent with all the records that I reviewed and the complaints that she voiced to me at the time of my evaluation." (Musich Dp. pg. 21)
On cross examination, Dr. Musich stated that he had examined DeShaney's cervical spine, left trapezius muscle, left shoulder and the upper extremities "(r)eferencing the work injury of April 1998". (Musich Dp. pg. 22) Regarding DeShaney's elbows and wrists, Dr. Musich testified: "I also did a physical examination. I didn't make a specific paragraph in my records regarding that part of the physical examination, but that examination was consistent with eh medical records and complaints that she had prior to April '98". (Musich Dp. pg. 23) Dr. Musich agreed that he had performed a physical exam of DeShaney's elbows and wrists but did not talk about it in his report. (RULING: Employer/Insurer's objection to Dr. Musich's opinions about physical examination of the claimant's elbows and wrists is overruled. Musich Dp. pg. 23, line 11-13) The doctor was asked if there were other things that he had not talked about in his report that he did spend time with DeShaney. Dr. Musich answered:
"The only thing that was performed under physical examination at the time of my evaluation involved her low back, and at that time I did not note any radicular symptoms into either lower extremity regarding her low back pain. I didn't note any atrophy. I did not note positive straight leg raising sign or any of the type of symptomatology during my physical examination. This patient complained of chronic low back pain which was consistent with the medical records that I reviewed regarding those prior complaints that occurred before April 1998." (Musich Dp. pp. 23-24)
Agreeing that he did not note any of these physical examination findings in his report, Dr. Musich explained why: "I just don't have them written in the report because what my findings were were all consistent with the medical records that she had documented prior to April 1998." (Musich Dp. pg. 24) The doctor agreed that he had examined DeShaney's low back.
During cross examination, Dr. Musich agreed that he had reviewed Dr. DiFilippo's records in the course of his evaluation; Dr. Musich agreed that Dr. DiFilippo was one of the first doctors to see DeShaney following the alleged left shoulder and neck and arm injury. It was noted that Dr. DiFilippo saw DeShaney on
May 5, 1998, and Dr. Musich was queried - Dr. DiFilippo describes the complaints DeShaney had about the left shoulder but did not mention an accident at work anywhere in his report of May 5 1998, is that correct? Dr. Musich responded:
"On May 5, 1998 Dr. DiFilippo wrote complaining of pain about area of her neck and also her low back, also area of left upper extremity and shoulder radiating down the arm.
There's no indication in his medical record abut any trauma and there's no documentation in his May 5th, 1998 record of how these complaints began." (Musich Dp. pg. 26)
Dr. Musich agreed that DeShaney saw Dr. DiFilippo again on May 26, 1998, and there was not any mention in this notation regarding any accident at work; Dr. Musich agreed that in this note Dr. DiFilippo identified this injury of the left shoulder and neck as multiple joint arthralgia in the neck. When asked if he had diagnosed DeShaney with fibromyalgia, Dr. Musich responded: "She was diagnosed with fibromyalgia way before she ever came to me and she's had fibromyalgia prior to April of 1998." (Musich Dp. pg. 27) Dr. Musich stated that he agreed with this diagnosis. Dr. Musich was queried if it wasn't true that Dr. DiFilippo in a July 7, 1998 note wrote that he had no plans for reconstruction of the left rotator cuff because of good movement. Dr. Musich answered:
"He described on the date of July 7, 1998 that this patient, namely Donna DeShaney, has an incomplete rotator cuff tear on the left. She has good range of motion, good strength against resistance and no plans for reconstructions are recommended. Now, he did not mention at that time what her range of motion was, so I don't know what good range of motion means." (Musich Dp. pg. 29)
Dr. Musich agreed that Dr. Morrow also saw DeShaney in April 1998, in close proximity to the alleged accident in this case; Dr. Musich agreed that he had reviewed Dr. Morrow's report prior to providing an opinion in this case. Dr. Musich agreed that he had relied upon all of the medical records he had reviewed in the course of his evaluation. In response to the inquiry of whether or not Dr. Morrow's April 17, 1998 report provided any information about any accident that occurred at MEMC Electronics in April of 1998, Dr. Musich further stated:
"......and it was my assumption when I read this report that Dr. Morrow at that time -- and the report is dated April 17, 1998. I don't know when the exact date of the evaluation was, also I don't know the exact date in April of '98 that Ms. DeShaney -- her incident occurred at work that she relayed to me." (Musich Dp. pg. 32) (RULING: Claimant's objection on grounds - records speak for themselves - is sustained. Musich Dp. pg. 31)
Dr. Musich agreed, during cross examination, that the only information he had received about the alleged accident at work was provided to him by DeShaney. The doctor was further - isn't it true that DeShaney did not tell him what day in April 1998 this alleged accident occurred? Dr. Musich answered:
"She just mentioned April '98. Now, she wrote April 1998 in April 2002. I saw her four years after the work injury in April 1998, so I don't know if she knows the specific date of that work injury, because I do not see a specific date." (Musich Dp. pg. 35)
Dr. Musich was queried that he had noted in his report that DeShaney had told him she didn't have any orthopedic evaluation or treatment to her left shoulder prior to April of 1998. "Not that she could recall to me", Dr. Musich responded. (Musich Dp. pg. 36) Dr. Musich acknowledged that an orthopedic evaluation or treatment would "(n)ot necessarily" have to be from a doctor specializing in orthopedic medicine. (Musich Dp. pg. 36)
During cross examination, Dr. Musich was queried if Dr. DiFilippo in his July 1, 1997 letter indicated that DeShaney had symptoms with abduction in the shoulder. Dr. Musich answered: "Page two states she also has symptoms of abduction in the shoulder, and it goes on to state whether this represents some type of thoracic outlet syndrome is also a possibility." (Musich Dp. pg. 38) Dr. Musich agreed that the July 1, 1997 letter was approximately nine months prior to the alleged accident in this case. On redirect examination, Dr. Musich was asked, in the July 1, 1997 letter where there was a reference made to shoulder abduction, was there a reference to which shoulder. "No", Dr. Musich answered. (Musich Dp. pg. 42)
Dr. Musich agreed, during cross examination, that it was his opinion that DeShaney has 40\% permanent partial disability of the left shoulder as a result of the April 1998 alleged accident. The doctor agreed that he had diagnosed DeShaney with fibromyalgia. It was noted that Dr. Musich had not attributed any percentage of DeShaney's left shoulder disability to the fibromyalgia, and Dr. Musich responded: "No, because it's my medical opinion that her left shoulder symptoms and pathology are not due to fibromyalgia." (Musich Dp. pg. 39) "I believe there was" preexisting arthritis in DeShaney's shoulder, Dr. Musich stated. (Musich Dp. pg. 39) The doctor agreed that he did not attribute any of DeShaney's disability to the preexisting arthritis.
During cross examination, Dr. Musich agreed that rotator cuff tears can occur from a degenerative condition. When queried, isn't it true he could not rule out that possibility in DeShaney's case, Dr. Musich answered:
"According to her history, I would have to rule that out. Whether or not she had some significant degeneration of the rotator cuff prior to April 1998 is subject to guess work because I just don't know. Ms. DeShaney never had an evaluation with an arthrogram or an MRI of the left shudder prior to the incident that she descried tome at work from April of 1998." (Musich Dp. pg. 40)
It was noted that Dr. Musich had testified on direct examination that the MRI showed long-term wear and tear type injury in DeShaney's left shoulder. The following testimony then occurred:
- What I said under direct examination is this patient demonstrated degenerative change of the AC joint, the acromioclavicular joint, and I believe that that preexisted April of 1998.
Q. And you stated that her MRI showed long-term wear and tear type injury in her left shoulder.
A. Well, I think what I said is that the degenerative condition of the AC joint is most likely due to wear and tear and longstanding degeneration of that joint. I did not say that her rotator cuff pathology was due to longstanding degenerative tears of the rotator cuff.
- And nor am I stating that you did say that the rotator cuff tear showed anything in particular. What I'm saying is that your testimony on direct and right now my question is, is it your testimony that the MRI showed long-term wear and tear type injury in the left shoulder?
- Let's be a little bit more specific and say the AC joint, and then I will say yes to your question. (Musich Dp. pp. 40-41)
Dr. Musich agreed that DeShaney had cervical neck pain before April of 1998. The doctor agreed that DeShaney had had an MRI of the cervical spine in January of 1997, and this showed arthritic changes. Dr. Musich agreed that DeShaney had had complaints of neck pain in 1996 and 1997 upon his review of DeShaney's medical records of treatment from those years.
On cross examination by the Second Injury Fund, Dr. Musich agreed that he had not conducted a psychiatric examination of DeShaney. The doctor was queried if it was correct that he is not a psychiatrist or a psychologist, and Dr. Musich answered:
"I'm not a board certified psychologist or psychiatrist. Anybody that -- any patient that I would have that has the amount of psychiatric symptoms that Ms. DeShaney exhibits, I would certainly reefer to somebody who was more qualified to take care f patients with minimal to moderate depression or panic disorders or the more simple straightforward psychiatric problems, but somebody that is this complex, I wouldn't touch." (Musich Dp. pp. 42-43)
Dr. Musich agreed that in forming his opinion that DeShaney sustained a work injury he had relied upon the history DeShaney had given him. The doctor was asked - would you agree that no contemporaneous medical record actually documents the history that DeShaney had given to him of a work-related injury in April of 1998. "Yes", Dr. Musich answers. (Musich Dp. pg. 43)
During cross examination, Dr. Musich agreed that he is not a vocational expert, further stating: "No, I do not place people in jobs. A lot of times my patients will ask do you think I could do this or do you think I could do that and I have given opinions regarding their capability of performing certain activities over the past 25 years or so; however, I do not place people in jobs and I don't have full knowledge of the entire job market in the St. Louis area." (Musich Dp. pp. 43-44) The doctor was asked if the entirety of his knowledge of DeShaney's education, training and transferable skills contained within the report he had issued. Dr. Musich answered:
"My opinions regarding those conditions are contained in the report. There is a lot of baseline information in the medical records that support the diagnoses and the opinions that I placed in my medical report." (Musich Dp. pg. 44)
Dr. Musich agreed that what he knows of DeShaney's education, her training and her transferable skills are pretty much laid down in his report of May 3rd. The doctor agreed that he did not do any sort of vocational testing on DeShaney. Dr. Musich was queried - When you give your opinions on employability, you basically look at DeShaney as she presents in your office, you're not looking at whether one injury or another in isolation might have rendered her unable to work, is that fair? Dr. Musich answered:
"I think it's fair in this situation that my medical opinion is that it was a combination of all of her disabilities along with her education, lack of transferable skills and her advanced age, along with her ongoing medical and psychiatric treatment. The whole combination rendered her totally and permanently disabled." (Musich Dp. pg. 45)
Dr. Musich agreed that he had not looked to see if, for example, DeShaney's psychiatric difficulties in and of themselves might have rendered DeShaney totally disabled.
On further cross examination, it was noted that Dr. Musich had said he was aware that DeShaney had been awarded social security disability as of November 6, 1997; Dr. Musich was asked his opinion of whether or not DeShaney was able to work at that time. Dr. Musich answered: "I think it's fair to state that this patient at least attempted to return to work after 1997. After April 1998 there's no way she could return to work." (Musich Dp. pg. 47) (RULING: Claimant's objection on grounds -- calls for a legal conclusion as to whether or not the doctor agreed with the legal opinion as to social security as to when DeShaney became disabled -- is overruled. Musich Dp. pg. 47) Dr. Musich was further queried if he agreed that DeShaney was unable to return to work as of 1997, and Dr. Musich answered:
"I did not evaluate her in 1997 and I don't know what her situation was like specifically at that time. I do --
if she was unable to work and if she attempted to return to work, I applaud her effort, however, unfortunately I think that as of April 1998 she was unable to work after that point in time. I don't know exactly if she was capable of full-time employment at a regular job after 1997." (Musich Dp. pg. 48)
Dr. Musich agreed that he was not providing an opinion one way or the other as to whether DeShaney could or could not work as of 1997. Explaining why he did not feel he could give that opinion, Dr. Musich stated: "I think I would have to ask the patient a few more questions pertinent to that type of -- pertinent to that history." (Musich Dp. pg. 48) Dr. Musich was queried - So you would defer to the opinion of other physicians regarding whether DeShaney was able to work as of 1997? Dr. Musich answered: "I think it's fair to say that she at least attempted to return to work. I don't know what her treating physician's opinions were regarding her ability to work at that time. And like I say, I would have to either ask the patient or include medical records from her treating physician regarding her employability back in 1997 and early 1998. I didn't see any of those records in her medical file." (Musich Dp. pp. 48-49) Dr. Musich agreed that he was not providing an opinion as to whether DeShaney could or could not work as of 1997.
Dr. James P. Emanuel, M.D. testified by deposition on May 19, 2003 (Roman Numeral I) Dr. Emanuel testified as to the history of DeShaney's employment at MEMC relayed to him by DeShaney:
"This patient was her for an independent medical evaluation. The patient was employed at MEMC Electronics. Was employed there for about eight years. Her job was, basically, sitting at a computer and running what she called, slices through a machine. These were eight inch wafers that would weigh one ounce or so. She would pick cassettes up that would weigh five pounds, and she would also lift tubs that weighed approximately twenty-five pounds. She would lift these tubs up to place them on another machine." (sic) (Emanuel Dp. pg. 6)
The doctor was asked to discuss the history of the alleged injury at work in April of 1998 relayed to him by DeShaney:
"She states that on 4/1/99 she went to put a sleeve into a tub. She tried to pick the tub up. The tub started to fall and it jerked her left arm. She jerked it in order to keep the tub from falling and she developed pain in her left shoulder. She also had pain that radiated up into her neck and her neck was stiff. The following day, she had stiffness in the neck and the inability to move her arm away from her body. She was seen apparently by Dr. DiFilippo. X-rays were taken. Told that she had a torn rotator cuff. She is not sure whether or not she had an MRI scan. She complained of pain when sleeping on her shoulder and had complaints of her arms going numb. In putting her arm on the seat of a car, it would hurt to raise her arm. She was careful with carrying groceries because of the fear of dropping them. She thinks that she has had a nerve conduction EMG study in the past but is uncertain. She ha had no shoulder surgery. She had elbow surgery and carpal tunnel surgery bilaterally that was performed predating and prior to the date of her injury of $4 / 1 / 89$. She has complaints of low back pain and difficulty walking. Hurts to hold her neck up. Pain in her shoulder She states that she is on a pain medication for that." (sic) (Emanuel Dp. pp. 7-8)
Agreeing that he had taken a past surgical history of DeShaney, Dr. Emanuel noted: "Gastric bypass in 1997; carpal tunnel surgery in 1994/1995; gallbladder in 1998; and elbow surgery in 1984." (Emanuel Dp. pg. 8) Dr. Emmanuel agreed that he had obtained the medications DeShaney was on at the time of his examination, her family history, and her social history. Dr. Emmanuel agreed that he had done a review of systems for DeShaney, and testified as to his findings:
"Positive for headaches; tremors; dizzy spells; numbness and tingling; tiredness and sluggishness; abdominal pain; nausea and vomiting; indigestion; join pain and swelling; neck pain; sinus problems; and urinary frequency. The patient feels depressed. She also stated to me that she is not working. She is currently on Social Security Disability because of her back and a history of fibromyalgia. She has a past
history of work-related injuries at MEMC. She states that she had been treated through the work doctor for along time with regards to her back and her right shoulder. Not her left shoulder." (sic) (Emanuel Dp. pg. 9)
Dr. Emanuel agreed that he had reviewed medical records as part of his evaluation, and had relied upon all of this information from the treatment records of DeShaney in order to form his opinions regarding DeShaney's condition in this case. Dr. Emmanuel testified as to his assessment:
"In my review of the medical records and physical review of this patient, I do not feel that there is sufficient evidence in her medical records that supports an alleged injury to her left arm, shoulder and neck on April of 1998 while lifting tubs. It is not substantiated in any of the notes in the medical records. The MRI findings are suggestive of degenerative changes of the AC joint primarily. I found no evidence on her physical exam of her rotator cuff to correlate with a possibility of an incomplete tear of the rotator cuff by MRI scan." (Emanuel Dp. pg. 15)
Agreeing that he could provide an opinion to a reasonable degree of medical certainty whether DeShaney had suffered any permanent partial disability as a result of an alleged accident at work in April 1998, Dr. Emanuel stated that DeShaney had not sustained any permanent partial disability as a result of the alleged accident. The doctor was asked to testify further in this regard as to his recommendations:
"It is, therefore, my medical opinion that this patient describes an incident that is not substantiated in the medical records that I can see. If an event did occur, it appear that it would be a temporary aggravation of a pre-existing degenerative change in the area of the AC joint I believe that if any injury did occur on 4/98, that she has definitely reached maximum medical improvement with regards to this condition and based on her exam, the history described and the medical records review, I do not feel that she sustained any permanent partial disability of her upper extremity as it related to the shoulder or neck." (Emanuel Dp. pp. 15-16)
On cross examination by the claimant, it was noted that in Dr. Emanuel's file was a bill which reflected diagnostic codes, and the codes listed were impingement of the shoulder, bursitis subacromial, degenerative joint disease of the shoulder. The doctor was asked if these were the diagnoses that DeShaney suffers from, and Dr. Emanuel answered - "Correct". (Emanuel Dp. pg. 18)
Dr. Emanuel agreed, during cross examination, that when he saw DeShaney in March 2002 she gave him a history of an accident and voiced various complaints to him about her left shoulder and to some degree also her neck. The doctor agreed that he had reviewed medical records given to him; Dr. Emanuel was asked if he had noted in these records any history of pain, discomfort, injury to the left shoulder prior to April of 1998. "I don't have any knowledge in my report of an injury or shoulder complaint prior to '98", Dr. Emanuel answered. (Emanuel Dp. pg. 22) The doctor agreed that he did not have any indication in any history of any left shoulder treatment prior to April of 1998. Dr. Emanuel agreed that subsequent to April 1998 Dr. DiFilippo, DeShaney's treating physician, evaluated DeShaney in May 1998 and followed up with an MRI of the left shoulder which showed an incomplete tear of the rotator cuff and some type of tendonitis of the supraspinatus in the left shoulder; Dr. Emanuel was asked if these findings on the MRI would be consistent with the mechanism of injury six weeks earlier described by DeShaney to him of having a container begin a process of falling, reaching out, grabbing it, feeling a pulling sensation. "That is a mechanism that could perhaps cause injury to the rotator cuff", Dr. Emanuel answered. (Emanuel Dp. pg. 24) (RULING: Second Injury Fund's objection on grounds -- speculative -- is overruled. Emanuel Dp. pg. 24) When asked if he knew, from his review of his own record, whether or not he had reviewed the actual MRI film or just reviewed the radiologist's report, Dr. Emanuel responded: "There's no mention of any x-rays that were taken or reviewed, so l'd have to say that we reviewed only the reports". (Emanuel Dp. pg. 25) The doctor was queried - if DeShaney had a history of fibromyalgia dating back prior to April 1998 and if it affected the left shoulder joint, isn't it correct that this in no way rules out or rules in her sustaining an injury of accident in April 1998. "Correct", Dr. Emanuel answered. (Emanuel Dp. pg. 25)
On cross examination by the Second Injury Fund, Dr. Emanuel testified about his subspecialty within his specialty of board certified orthopedic surgeon: "I received a sports medicine fellowship after my training and most of that was involving the shoulder." (Emanuel Dp. pg. 26) The doctor stated that on a weekly basis he probably does ninety percent shoulder surgeries, about twelve per week.
During cross examination, Dr. Emanuel stated that he saw DeShaney on March 11, 2002, approximately a little less than four years after her alleged injury. The doctor agreed that DeShaney gave to him a history of how the injury occurred. Dr. Emanuel stated that he had reviewed the medical records, including those of Dr. DiFilippo and Dr. Martin and Dr. Ross. "Dr. DiFilippo is an orthopedic surgeon and... Dr. Martin is a neurosurgeon", Dr. Emanuel noted. (Emanuel Dp. pp. 28 and 29) The doctor was asked what, if anything, significant did he note by reviewing these three doctors' notes that was concern or help to him with DeShaney's case. Dr. Emanuel answered:
"With regards to Dr. DiFilippo, he saw the patient approximately a month following this allege work injury, and there was no mention in his notes of any type of injury that occurred at work. And in addition, the other physicians that you mentioned, in their reports, there was no mention of any type of work-related injury." (Emanuel Dp. pg. 29)
The doctor was asked if DeShaney had been seeking treatment for a general left shoulder area of her body. Dr. Emanuel answered:
"She was seeing Dr. DiFilippo with regards to complaints of pain around her neck, her lower back, her left upper extremity and her shoulder radiating down to her arm. She saw Dr. Martin for similar types of complaints that were, in his opinion consistent with a diagnosis of fibromyalgia." (Emanuel Dp. pp. 30-31)
Dr. Emanuel agreed that DeShaney had been evaluated by Dr. Morrow on seventeen days after the alleged injury; Dr. Emanuel was asked if there was any mention in Dr. Morrow's 04/17/98 report about injuries to the left shoulder, left arm shoulder or neck. "There was none, no", Dr. Emanuel answered. (Emanuel Dp. pg. 31)
Dr. Emanuel agreed, during cross examination, that he did not see any old diagnostic films concerning DeShaney's left shoulder or left arm.
On redirect examination, Dr. Emanuel agreed that the medical records he had reviewed included records pertaining to treatment prior to April 1998, ad agreed that he had stated in the Recommendations section of his own report that DeShaney could have a pre-existing degenerative condition in her left shoulder. The doctor agreed that he had taken into consideration the findings of physicians who had treated DeShaney in 1996 and 1997 as well as in 1998 prior to the date of accident in this case. Dr. Emanuel stated that he had taken into consideration, for example, Dr. DiFilippo's September 1996 notes where in which he had noted -- "Pain in the right and left shoulders". When queried if he had taken into consideration Dr. DiFilippo's notes of January 1997 where he had ordered x-rays of the cervical spine and an MRI of the cervical spine, Dr. Emanuel responded:
"Yes, I reviewed that and I considered that in my report, and can I just add, when I answered Mr. Moreland's question, my feeling on that question was that did I report in my history whether or not the patient had had pre-existent injury to her shoulder. My answer to that was no. But it's clear throughout the medial records that this patient has had complaints of shoulder pain, you know, dating back to 1996." (Emanuel Dp. pp. 3435)
Dr. Emanuel stated that a partial rotator cuff tear such as the one DeShaney had could develop as a degenerative condition. The doctor was asked if it was possible that this is the case for DeShaney. Dr.
Emanuel answered: "Honestly, I didn't feel the patient had, even on her physical exam, as I noted in my note, any weakness in her rotator cuff to suggest a partial cuff tear. I'm not convinced the patient does have a partial cuff tear." (Emanuel Dp. pg. 35) (RULING: Employee's objection on grounds -- calls for speculation -- is overruled. Emanuel Dp. pg. 35) Dr. Emanuel further stated: "Well, I just stated in my assessment that during my physical exam, I found no evidence of a rotator cuff, that correlates with the diagnosis of a partial rotator cuff tear, which was on the MRI scan. (Emanuel Dp. pp. 36-37) (RULING: Employee's objections on grounds - outside the scope of his report -- are overruled. Emanuel Dp. pg. 36) The doctor was asked if it was his opinion, then, on the objective exam the findings were not consistent with partial rotator cuff tear. "That was my opinion on that date during that assessment", Dr. Emanuel answered. (Emanuel Dp. pg. 37)
On further cross examination by the claimant, Dr. Emanuel was asked what kind of pre-existing problem did he feel DeShaney had in her shoulder. "She has evidence of arthritic changes of the accromial clavicular joint", Dr. Emanuel answered. (sic) (Emanuel Dp. pg. 38) The doctor further acknowledged that he had listed an additional diagnosis of -- bursitis in the shoulder. Dr. Emanuel was asked if he was aware of any treatment to the left shoulder prior to April 1998. Dr. Emanuel answered:
"The question, I believe, was if there was any medical records or x-rays or MRI scans of the shoulder, and there's none prior to that. There was some question of a possible thoracic outlet syndrome of the left shoulder with possible treatment but I don't know if anything was done." (Emanuel Dp. pg. 40)
Date: June 12, 2008
Made by: /s/ LESLIE E.H. BROWN
LESLIE E.H. BROWN
Chief Administrative Law Judge
Division of Workers' Compensation
A true copy: Attest:
/s/ JEFFREY BUKER
JEFFREY BUKER
Director
Division of Workers' Compensation
ISSUES: Whether or not the claimant suffered an accident; Medical causation begins on page 4.
ISSUE: Notice begins on page 21.
ISSUES: Nature and extent of permanent partial disability; Liability of the Second Injury
Fund begins on page 31
SUMMARY OF THE EVIDENCE begins on page 61.
See, also Dr. Emanuel's March 11, 2002 report (Claimant's Exhibit No. F) in which he states the same assessment and recommendations. See, also Dr. Emanuel's March 11, 2002 report (Claimant's Exhibit No. F) in which he states the same assessment and recommendations. Section 287.220 was amended in 1998.
See, also Dr. Emanuel's March 11, 2002 report (Claimant's Exhibit No. F) in which he states the same assessment and recommendations.