Donna DeShaney v. MEMC Electronic Materials, Inc.

Employee: Donna DeShaney

Injury No. 98-123679

Dependents: ---

Employer: MEMC Electronic Materials, Inc. (previously settled)

Additional Party: State Treasurer, as Custodian of the Second Injury Fund

Insurer: (Previously Settled)

Hearing Date: December 18, 2007

Checked by: LEHB/In

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: April, 1998
5. State location where accident occurred or occupational disease was contracted: St. Charles, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Performing her routine job duties when rack slipped jerking her left shoulder
12. Did accident or occupational disease cause death? No Date of death? ---
13. Part(s) of body injured by accident or occupational disease: Left shoulder

- Nature and extent of any permanent disability: PTD against SIF

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? N/A
3. Value necessary medical aid not furnished by employer/insurer? N/A
4. Employee's average weekly wages: ---
5. Weekly compensation rate: $\$ 240.00 / \ 240.00

- Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: ---

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

--- weeks of permanent partial disability from Employer

--- weeks of disfigurement from Employer

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

Claimant's lifetime

1. Second Injury Fund liability: Yes

Total: PERMANENT TOTAL DISABILITY OF \$240.00/WEEK BEGINNING 46.4 WEEKS

AFTER aPRIL 24, 1998

(OR ON

APPROXIMATELY MARCH 16, 1999) FOR

OF CLAIMANT.

1. Future requirements awarded: None

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

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

Mark Moreland, Attorney for Claimant

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: MEMC Electronic Materials, Inc. (previously settled)

Additional Party: State Treasurer, as Custodian of Second Injury Fund

Insurer: (Previously Settled)

Checked by: LEHB/In

This is a hearing in Injury Number 98-123679. The claimant, Donna DeShaney appeared in person and by counsel, Attorney Mark Moreland. The case against the employer/insurer was previously settled and the employer/insurer was not present at this hearing. The Second Injury Fund appeared by and through Assistant Attorney General Laura Wagener.

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

On or about the last day of the claimant's employment in April of 1998 the claimant was in the employment of MEMC Electronic Materials Incorporated in St. Charles County, Missouri.

On or about April of 1998: the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation law; and the rate on the date in question is $\$ 240.00 / \ 240.00. A Claim for Compensation was filed within the time prescribed by law. No temporary total disability benefits were paid in the primary case, and no medical aid was paid in the primary case.

1. Whether or not the claimant suffered an accident
2. Notice
3. Medical causation
4. Nature and extent of permanent partial disability
5. Liability of the Second Injury Fund

The following exhibits were admitted into evidence:

No. A: Report of April 17, 1998 from Dr. J.H. Morrow, D.O.

No. B: Scott Radiological Group report, dated August 20, 1998, referencing DeShaney's low back and left wrist interpreted by Dr. McCown

No. C: Letter from Dr. Ray Clouse, M.D., dated February 26, 1999

No. D: Work-hardening report from CH Health Technologies concerning 16 visits to work hardening

No. E: Records from Westbury Allergy Group, P.C.

No. F: Report from Park Crest Orthopedics/Dr. James P. Emanuel dated March 11, 2002

No. G: Records from Heritage ENT/Dr. Levine, M.D.

No. H: Dr. Terrence L. Piper, M.D of St. Peters Bone and Joint Surgery, Inc.

No. I: Records from Barnes St. Peters Hospital

No. J: Records from O'Fallon Physical Therapy

No. K: Letter from Dr. David Robson, M.D., dated December 20th, 1991

No. L: Medical records from Arthritis Consultants, Inc.

No. M: Medical records from Dr. Michael K. Houser, M.D.

No. N: Certified records of Dr. Martin Glazer, D.O.

No. O: Records of Dr. Stanley Martin, M.D.

No. P: Copy of a Stipulation for Compromise Settlement referencing a 1996 right elbow injury, Injury Number 96-121722

No. Q: Copy of a Stipulation for Compromise Settlement in reference to 1995 bilateral carpal tunnel syndrome, Injury Number 95-051586

No. R: Deposition transcript Dr. Thomas Musich, M.D. taken on behalf of the employee on April 29, 2003 (Admitted subject to the objections therein)

No. S: Deposition transcript of vocational expert Gary Weimholt, M.S. taken on behalf of the employee on March 17, 2003 (Admitted subject to the objections therein)

No. T: Records of Dr. E.A. DiFilippo, M.D. of St. Charles Orthopaedic Surgery

No. U: Medical records of St. Joseph's Health Center, St. Charles

No. V: Medical records of Dr. Michael J. Adams, D O.

No. W: Medical records from St. Charles Clinic

No. X: Medical records of Dr. Richard Anderson, M.D.

No. Y: Claimant's written list of medications she testified at hearing she was on at the time of the hearing; which DeShaney stated were - Cymbalta, Geodon, Gabitrel, Gabapitin, Deplin 75, Trazadone, Ambien, Prevacid, Laboxso, Abututron, and Butatron SR.

Roman Numeral I: Deposition transcript of Dr. James P. Emanuel, M.D. taken on behalf of the employer/insurer on May 19, 2003 (Admitted subject to the objections therein)

Roman Numeral II: Deposition transcript of James M. England, Jr. taken on behalf of the Second Injury Fund on December 14, 2007 (Admitted subject to the objections therein)

The claimant, DeShaney, alleges that she sustained injuries to her left shoulder and neck as a result of a work related accident in April of 1998 while working at MEMC Electronics, Inc.. The applicable provisions for a compensable "accident" under Missouri Workers' Compensation Law at the time of the alleged work-related accident herein are set forth in Section 287.020, which states in pertinent part:

1. The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.
2. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of

employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard of risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life:

DeShaney testified that she went to work for MEMC Electronics on May 30, 1990. My last day that I worked for MEMC Electronics was in April of 1998, DeShaney said. She was asked if she remembered a specific day in April of 1998, and DeShaney responded - No, I don't. She agreed that it was the day that she last injured herself that is the subject of this claim.

DeShaney testified about the various jobs she performed at MEMC, stating that she started her last jobs at MEMC, working in the LE MAT and FTIR department, starting in probably early 1997. I ran the LE MAT and the FTIR machines, she said. On the LE MAT we would take one wafer and put it down in the machine where it would go down into chemicals and stuff, and the machine would read the contents of what was in the wafer, certain levels of different things in the wafer; and it would print it out on the computer screen, and it would also print it out on paper, DeShaney testified. And we would have to enter all that data into the computer, she said. Agreeing that she would personally enter the data into the computer by typing it in, DeShaney further stated that they had to use the keyboard to run the machine, too. When that process in the machine was completed, we would take the wafer out and put it in a rack which handled 25 wafers, she said, and when I had 25 wafers in the rack, then it would go in a tub. The tubs are probably two, two and a half foot wide and are completely square, and are probably ten to twelve inches high, the claimant said. They each held four racks, she said. When I completed four racks of wafers and had them in a tub, I would take this tub with the 100 wafers in it and I would slide or scoot the tub onto a rack with wheels, and then I would move the rack with wheels with full tubs on it to polishing. At that time in addition to working in the LE MAT machine, I was also working on the FTIR machine, DeShaney said. It also measured the contents of certain chemicals that was in the wafer, she stated. DeShaney agreed that each wafer would have to go in both machines. She agreed that when the wafer came out of the FTIR machine, would it also go on a rack and then onto the tub, and she would have to also slide this tub over onto the rack of wheels. DeShaney agreed this was a job she had in April of 1998. In April of 1998 the number of wafers I was doing depended on how much work we actually had, DeShaney stated, and it depended on if I was having a good day or a bad day. I'd say I would probably run about three lots, the claimant stated. She agreed that she was saying that on an average day it could be 6 to 900 wafers.

DeShaney agreed that in April of 1998 she sustained an injury while she was employed at MEMC. Describing how the injury occurred, DeShaney testified I had a stack of tubs, and I had two tubs and I had a tub on top of that that actually had wafers in it, and I had three tubs on another set of wheels that I had finished, just finished that tub. And I was trying to get that tub over onto the next pile, and when I went to do it, the wheels didn't have no locks or anything on them, and when I went to scoot it over, the wheels took off pretty quick and it more or less jolted me down to my left because the wafers almost went all the way to the floor before I managed to finally get them. Somebody came over and helped me, DeShaney said. She agreed that at the time that this occurred she had a full tub of wafers. She was queried if a full tub of wafers would have been 100 wafers, and DeShaney responded - Yes, about 30 pounds. She agreed that this would include the weight of the wafers, the racks, and the tub. I was holding this in both of my arms, DeShaney said. I was trying to put that tub on top of three empty tubs, she stated. She agreed it was three empty tubs that were already setting on a rack of wheels. Describe the position of her body, DeShaney stated I was up like this and the tubs were probably about this high, and my other ones was about waist high, and I was

trying to slide the tub off of this rack of wheels over to this tub, and when I started to do it, the tub went sliding off to my left. And when it did, I had no way of stopping it from rolling, and it was hard for me to lift that kind of weight, she said, that was why I would try scooting it instead of just actually lifting it. So whenever the thing started scooting away, I lunged to this way, was trying to catch it and still keep it on the cart and the wafers eventually got away from the cart, and it lunged me down and the wafers pretty well hit the floor, DeShaney stated. Then somebody come over and helped me get them back up, she said. The claimant agreed that when the rolling cart moved, she ended up holding 30 pounds of wafers, racks, and tubs with both hands. She was asked if it was on her left side. Yes, but I was in a strained position holding them, DeShaney answered. I don't remember who it was who came over to help me, DeShaney stated, because we work with so many different people everyday and people work in different areas. I don't remember, she stated. She was asked if she remembered who her team leader was that day. Marsha Atkins, DeShaney answered.

The claimant was asked what time on that particular work shift that day did she hurt herself. It was near the end of my shift, DeShaney answered. She was asked if she had felt any aches, pains, discomfort, or anything when that event occurred. Oh, I had a real sharp pain, DeShaney answered. It more or less took my breath away, and I just had to stand there for a minute, I couldn't do anything, and then they helped me get the tub up on the thing. I just sat down; I wasn't able to do anything the rest of the shift, DeShaney said. She was asked where did she experience this real sharp pain that she felt that almost took her breath away. It was in my shoulder and my neck on my left side, the claimant answered.

The claimant agreed that at the time that this injury in April 1998 occurred, she was already on light duty. She was asked if she recalled approximately how many hours a day she was working. I was working three days a week, six hours a day, DeShaney answered. I don't remember how long I had been on light duty, she said.

DeShaney agreed that she had said after this injury, the next day she called in and reported it. She agreed that she went to a doctor, Dr. DiFilippo. The claimant agreed that she had been seeing Dr. DiFilippo already. I had been seeing him already for low back problems and upper extremities, DeShaney said. Dr. DiFilippo ordered an MRI, DeShaney stated. DeShaney was asked if she recalled approximately when Dr. DiFilippo had ordered the MRI. It had to have been just within a few days after the accident, she answered. As soon as I could get in, the claimant added. She agreed that the MRI was to her left shoulder. She was asked her understanding of what the results of the MRI were. I had an incomplete rotator cuff tear on the left side, the claimant answered. DeShaney agreed that she had treatment for this, adding that the doctor saw her for a while, but she didn't know exactly what the doctor did. I never had any surgery for it, she said.

During cross examination, DeShaney agreed that she had stated earlier that she does not recall the actual date of her injury. She agreed that her recollection was that it was the last day that she worked for MEMC, and it was sometime during the month of April of 1998. DeShaney agreed that she was hospitalized for depression and gastrointestinal problems on April 30, 1998 at St. Joseph's West. I was in the hospital for about a week, she agreed. She was queried - And that same day, April 30, 1998, you had seen Dr. Houser, is that correct? I recall seeing Dr. Houser on April 30, 1998, DeShaney said, and agreed he was her primary care physician at that time. She was asked if she recalled telling Dr. Houser she had some left shoulder pain on that date. I don't recall, but I more than likely did, the claimant answered. She stated that if Dr. Houser's records reflect that she had talked to him about left shoulder pain, she would not have any reason to dispute that. She was queried - Did you mention when you discussed your left shoulder pain, that that had started at work? Yes, I did, DeShaney answered. She stated that she did not recall what she had told Dr. Houser. She was queried - And if Dr. Houser's records don't reflect any history of the left shoulder injury occurring at work, would that be a mistake on his part that he didn't record that? Probably, yeah, DeShaney responded. She stated that she was not aware that Dr. Houser didn't record any history of a work injury to her left shoulder. I know he was rushed that day when he seen me because they worked me in in order for him to be

able to see me, DeShaney added. DeShaney agreed that the first time she saw Dr. DiFilippo for her left shoulder was May 5, 1998. She was asked - when you saw Dr. DiFilippo on that date, did you mention a work injury to him? Yes, I did, DeShaney answered. She was queried if she was aware that Dr. DiFilippo's records on that date did not contain a history of a work injury. I don't know why they don't because I told him too, DeShaney responded. She was queried if she was aware that Dr. DiFilippo's July 1998 records as well do not record a history of any left shoulder injury occurring at work. No, I wasn't, DeShaney responded. DeShaney agreed that she also saw a Dr. Stephen Ross on June 22, 1998 for multiple problems which included her left shoulder. She was asked if she had told Dr. Ross that her left shoulder problems were from a recent work injury. I don't know for sure if I did tell him because I was seeing him for multiple things, DeShaney answered. She was queried - You did however tell him that your back problems had started with a work injury in 1990; correct? Probably, the claimant responded. DeShaney agreed that Dr. Ross diagnosed her with fibromyalgia. She agreed that that diagnosis had been discussed with her previous to the time of Dr. Ross.

During cross examination, DeShaney agreed that in early November of 1997 she was taken off of work by Dr. Houser. When queried - didn't Dr. Houser have her off for the entire month of November 1997 and December 1997 up until her gastric bypass surgery, DeShaney responded -- I don't remember the exact date. She stated that if Dr. Houser's notes from November of 1997 state that she was to continue on disability for another month, she would have no reason to dispute that that's what actually occurred. The claimant agreed that she then had gastric bypass surgery on December 17, 1997. I don't remember exactly for sure how long I was off work, if it was a period of four to six weeks after that surgery, DeShaney said, I would imagine that would be about how much time. She agreed that she had a lot of complications after that surgery, and stated that she would not dispute it if the records reflect that she stayed off work in January and February of 1998. She agreed that she actually had two additional surgeries in February of 1998. DeShaney stated that she would not dispute the history if Dr. Houser's records reflect that because of all of these surgeries and problems, on March 12, 1998, that she should continue to stay off work for an additional two weeks. DeShaney agreed that she would not dispute it if Dr. Houser's return to work slip put her on three days per week, six-hour days starting March 28, 1998. She agreed that if this history is correct, she would have returned to work approximately March 28, 1998 after being off work since November of 1997. DeShaney agreed that then her alleged shoulder injury happened sometime in April of 1998. She admitted that she was back at work for about a couple of weeks at that time.

During cross examination, DeShaney agreed that when she was hospitalized for depression in April of 1998 she treated with a Dr. Richard Anderson. She agreed that Dr. Anderson was her treating psychiatrist then for a period of time after that. It was noted that Dr. Anderson records a history on July 30, 1998 that for the last few years DeShaney had been off work for three months at a time; DeShaney was queried - Based on the questions they had gone through, this was true for periods of time in 1995, 1996, and 1997. Yes, DeShaney answered.

During cross examination, DeShaney was asked if she had seen anyone else for her shoulder other than Dr. Houser, Dr. DiFilippo, and Dr. Ross. I don't remember, DeShaney answered. It was noted that DeShaney's attorney had introduced the report of a Dr. Joseph Morrow. DeShaney stated that she recalled seeing Dr. Morrow, and that it was at the request of her attorney for her previous Workers' Compensation cases. She stated that she really did not recall if she had seen Dr. Morrow on April 17, 1998. DeShaney was queried if she knew when she saw Dr. Morrow on April 17, 1998 that was before or after her left shoulder injury. I don't remember because I don't remember exactly what date it was that I got injured, DeShaney answered. I don't know if the injury had occurred before I saw Dr. Morrow or after, DeShaney stated. She was queried - If it had occurred before, would you have told Dr. Morrow about it? Yes, DeShaney answered. She was queried if she was aware that Dr. Morrow's report does not record a history of that particular injury occurring. No, I'm not, DeShaney responded.

Considering the medical evidence, medical records of Dr. Michael J. Adams, D.O. (No. V) included a work status form by Dr. Houser, M.D. dated 03/26/98 in which Dr. Houser indicated that DeShaney had been released to return to work on 03/28/98 with restrictions of - "only work 6 hrs/day for 2 wks work only in FTIR \& ELYMET for 3 months"; a 03/26/98 MEMC Fitness Report Return To Work form completed by Dr. Adams stated that DeShaney was on temporary restrictions for 03/28/98 - 04/09/98 of: 1. No greater than 6 (hours) work per day, 2. No greater than 3 days per week, and 3.5 lb wt restriction. Dr. Michael K. Houser, M.D. (No. M) records indicated that he treated DeShaney for various ailments during the period of November 1995 through July 1999. Treatment entries from 11/16/95 through 1997 indicated treatment for diagnoses such as Bronchitis with bronchospasm, Depression, Chronic back pain, G.E. reflux, severe right elbow pain, and noted that DeShaney had undergone treatment for carpal tunnel syndrome in the past. In a 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; it was indicated that leave was recommended for a period of 11/4/97 11/18/97, and that DeShaney was informed. In an 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

1. persistent nausea due to Nissen fundoplication surgery
2. 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.

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 on April 12, 1995 that DeShaney had bilateral upper extremity pain which was not typical for carpal tunnel syndrome, though it was certainly possible. The record indicated that when conservative treatment failed DeShaney was admitted to St. Joseph Health Center/Hospital on 04/28/95 and Dr. Martin performed on DeShaney the surgery of - Right carpal tunnel release. A 06/09/95 operative report indicated that Dr. Martin performed on DeShaney the surgery of - Left carpal tunnel release. Dr. Martin's written assessment on September 21, 1995 included that DeShaney was doing satisfactorily.

In a January 25, 1996 entry, Dr. Martin wrote that DeShaney returns with numerous complaints, mostly concerning her right hand and arm. Among his suggestions was that she continue to take Advil and Aleve as needed and perhaps wear the wrist braces as she could tolerate them." 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 has 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. 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 wrist 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, and 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 the 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. It was noted in a treatment entry dated May 14, 1996 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 from 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. 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. In a November 5, 1996 entry, Dr. DiFilippo wrote that EMG/NCV studies showed no evidence of abnormality about the elbow; it was noted that a bone scan and x-rays were normal; it was noted that she had improved from lateral epicondylitis. It was written that shoulder discomfort was resolved since DeShaney had been off work. In a 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 from 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 in 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 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.

The next treatment note in the record was dated May 5, 1998, Dr. DiFilippo typed: "Complaining of 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 indicating 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's past medical problems in his report, as well as DeShaney's present complaints at the exam, which were noted as:

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 wrote of his diagnoses in regards to pre-existing injuries.

Dr. Morrow further noted:

......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 for the injury of 5-24-95.

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 in which Dr. Ross included 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.

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).

Dr. Musich 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 finding 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 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 has 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 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)

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 about 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.

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 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 shoulder prior to the incident that she descried to me 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:

1. 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.

1. 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?
2. 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 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)

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 had 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 appears 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 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, and 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.

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)

It is found, considering the evidence, that as the claimant testified, her treatment records for prior to April 1998 from Drs. Adams, Houser, Martin and DiFilippo indicated no significant problems with her left shoulder; this was also acknowledged by the medical experts Drs. Musich and Emanuel. It is found that the first indication of left shoulder complaints found significant enough for further investigation and treatment was in Dr. Houser's 04/30/98 treatment entries, and it should be noted that in his 04/30/98 entry, 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. (Emphasis added)

It should be noted that the 04/30/98 entry was the first in which Dr. Houser included in his diagnoses shoulder pain. Dr. DiFilippo, for the first time in his May 5, 1998 entry typed that DeShaney was "Complaining of pain about area of her neck and also her lower back, also area of left upper extremity and shoulder and radiating down the arm." (Emphasis added) Additionally in this typed note, next to "her lower back", there was handwriting indicting DeShaney had stated this was for years; and next to "left upper extremity" there was handwriting indicating DeShaney had said this had increased in last few months. Dr. DiFilippo's exam findings and diagnoses on May 5, 1998 included the left shoulder. In the next entry of May 26, 1998, Dr. DiFilippo wrote - "She has signs and symptoms of rotator cuff tendonitis left shoulder"; and the record indicated that the doctor treated the left shoulder for the first time with an injection. The medical treatment and evaluation records reveal, it is found, that subsequent to this noted complaints from DeShaney about her left shoulder: a. Dr. Martin in a 06/11/98 entry noted that DeShaney had returned since a last visit on July 8, 1997 at the request of Dr. DiFilippo for evaluation of neck and LUE pain. Dr. Martin further wrote:

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.

Dr. Martin's assessment on June 11, 1998 included: "Her symptoms sound more consistent with primary shoulder pathology than a true cervical radiculopathy." b. Dr. Dr. Ross in a 06/22/98 entry discussed DeShaney's past medical history noting that she had had lumbar injury, carpal tunnel syndrome and release at both elbows, Dec. 15, 1997 gastric by pass surgery. The doctor wrote: "She has tendinitis in her elbows and a possible partial rotator cuff tear of the left shoulder", and that DeShaney was "currently undergoing physical therapy on her right elbow and left shoulder".

Written in this 06/22/98 form at Present Treatment space was - PT now Rt elbow and Lt shoulder, +EMG/NCS CTS in past. Dr. Ross' written diagnoses on 06/22/98 were: 1. Fibromyalgia; 2. Status-post carpal tunnel release; and 3. Epicondylitis. The doctor felt there was a need for additional treatment for the claimant's left shoulder, writing: "When she completes her course of physical therapy for the elbow and shoulder I would recommend an aquatic exercise program." Dr. Morrow evaluated DeShaney on 04/17/98, and there was no mention of left shoulder complaints in his report.

Expert medical opinion was present in this case. Dr. Musich evaluated DeShaney at the claimant's request in regards to an alleged April 1998 work related injury. Dr. Musich noted that "this patient had some longstanding chronic wear and tear type changes in the AC joint, which is the acromioclavicular joint", but that a June 4, 1998 MRI of the left shoulder "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. Dr. Musich explained that "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". Dr. Musich opined:

"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."

Dr. Emmanuel evaluated DeShaney on behalf of the defense, and opined: "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." Dr. Emmanuel stated that in his opinion the June 1998 MRI findings were suggestive of degenerative changes of the AC joint primarily; the doctor admitted, though, that he did not see the actual films, he had only reviewed the MRI report. During cross examination, Dr. Emanuel agreed that the June 1998 MRI of the left shoulder showed an incomplete tear of the rotator cuff and some type of tendonitis of the supraspinatus in the left shoulder, and when 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, Dr. Emmanuel answered. "That is a mechanism that could perhaps cause injury to the rotator cuff".

Considering the medical evidence and opinions, it is further found that the medical treatment records supports the claimant's allegations of an injury to her left shoulder in April 1998 as a result of performing her work duties at MEMC, and from the medical evidence, this injury occurred more than likely between the time of 04/18/98 and 04/30/98 - subsequent to DeShaney's evaluation with Dr. Morrow and prior to her treatment with Dr. Houser on 04/30/98 at which point she had advised Dr. Houser that the lifting she had to do at work really flared up her shoulder. Additionally, treatment records subsequent to this point included left shoulder complaints from the claimant.

The evidence reveals that sophisticated testing was necessary to determine a diagnosis for the claimant's injury, as the medical evidence indicates problems to the same or close in proximity areas of the

claimant's body. It has been established by case law that where the injury or condition is a complicated matter such as in this case, medical opinion is required for the determination of causation.

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

It is found that there is competent and substantial evidence establishing the nature of injury to the left shoulder sustained by the claimant in late April 1998, that being an injury described as manifesting symptoms more consistent with primary shoulder pathology than a true cervical radiculopathy, signs and symptoms of rotator cuff tendonitis left shoulder. It is found that the competent and substantial medical evidence reaches a diagnosis of - suggestion of focal incomplete tear and/or tendonitis in the supraspinatus tendon at the attachment to the humerous, or a possible partial rotator cuff tear of the left shoulder.

Therefore, it is found that there is substantial competence evidence establishing that as a result of performing her work duties for MEMC in late April 1998 the claimant suffered a work-related accident and injury of - suggestion of focal incomplete tear and/or tendonitis in the supraspinatus tendon at the attachment to the humerous, or a possible partial rotator cuff tear of the left shoulder.

At issue is whether or not the claimant provided proper notice of the April 1998 work related injury. The parameters of proper notice are set forth in Section 287.420 RSMo 1998, which states:

No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or the commission finds that there was good cause for failure to give the notice, or that the employer was not prejudiced by failure to receive the notice. No defect or inaccuracy in the notice shall invalidate it unless the commission finds that the employer was in fact misled and prejudiced thereby. In this case, the claimant testified about a work related injury that she said occurred in April 1998, stating that while rolling a cart moved, she ended up holding 30 pounds of wafers, racks, and tubs with both hands and was in a strained position holding them. I don't remember who it was who came over to help me, DeShaney testified, because we work with so many different people everyday and people work in different areas. She was asked if she remembered who her team leader was that day. Marsha Atkins, DeShaney answered. The claimant explained the responsibility of a team leader. Well, we all worked in teams, and we really didn't have a supervisor there that you could hardly ever find because they were always off in meetings and stuff, DeShaney stated. So we would pick a team leader and that team leader was just a regular employee like we were, but if we had any problems or anything, we would go to that team leader, and tell them if we had any problems, what was going on, she stated, or if we needed equipment or if the machine was down or whatever. She agreed that it was the regular practice at MEMC to pick a team leader for that particular day or shift. Every shift is run like that, DeShaney stated, it's run on the team concept. She was asked if she had told her team leader that day, Marsha Atkins, about what occurred. I didn't tell her that day because I didn't know what I did, but there was two women in there that seen what happened, and they knew that I hurt myself, but I didn't know if it was something that was just going to go away or not, DeShaney answered. So I went home and I couldn't move my arm away from my body, and I couldn't turn my neck either way, so I went home and went straight to bed, DeShaney said, and the next morning I got up I called into work and that's when I reported to Marsha Atkins that I had hurt myself. Marsha was nowhere around for me to tell her the day that it happened, DeShaney stated, I didn't know where she was.

The claimant was asked what time on that particular work shift that day did she hurt herself. It was near the

end of my shift, DeShaney answered. She was asked if she had felt any aches, pains, discomfort, or anything when that event occurred. Oh, I had a real sharp pain, DeShaney answered. It more or less took my breath away, and I just had to stand there for a minute, I couldn't do anything, and then they helped me get the tub up on the thing. I just sat down; I wasn't able to do anything the rest of the shift, DeShaney said. She was asked where did she experience this real sharp pain that she felt that almost took her breath away. It was in my shoulder and my neck on my left side, the claimant answered. It was noted that DeShaney had said when she went home, she was having difficulty; she was asked what she was having difficulty, was it with movement. DeShaney answered - Yes. I couldn't move my arm away from my body, and I couldn't turn my neck one way or the other, DeShaney stated.

The claimant agreed that at the time that this injury occurred, she was already on light duty. She was asked if she recalled approximately how many hours a day she was working. I was working three days a week, six hours a day, DeShaney answered. I don't remember how long I had been on light duty, she said.

DeShaney agreed that she had said after this injury, the next day she called in and reported it. She agreed that she went to a doctor, Dr. DiFilippo. The claimant agreed that she had been seeing Dr. DiFilippo already. I had been seeing him already for low back problems and upper extremities, DeShaney said. Dr. DiFilippo ordered an MRI for my left shoulder, DeShaney stated.

It was noted that the injury occurred in April 1998; DeShaney was asked if she remembered the day in April. No, she answered. She was queried - But you did not return to work that day, is that correct? The next day, no, I couldn't, she answered. I never returned to work at MEMC, DeShaney said. I never went back to work anywhere, she stated.

DeShaney was asked if she recalled approximately when Dr. DiFilippo had ordered the MRI. It had to have been just within a few days after the accident, she answered. As soon as I could get in, the claimant added. She agreed that the MRI was to her left shoulder. She was asked her understanding of what the results of the MRI were. I had an incomplete rotator cuff tear on the left side, the claimant answered. DeShaney agreed that she had treatment for this, adding that the doctor saw her for a while, but she didn't know exactly what the doctor did. I never had any surgery for it, she said.

DeShaney agreed that in addition she has also suffered from depression. I have suffered from depression for probably 25 years, she said. She was asked what triggered this, at least in her mind. In my second marriage my husband had an eight-month-old baby girl, and I didn't know anything about her until she was eight months old, DeShaney stated. And when I found out about it, he was upset because I was crying all the time and stuff. He used to beat me all the time, and then he divorced me, so it was just at that time that everything really started going bad, DeShaney testified. She agreed that this is why she went back to school, and why she got her degree in order to support herself. She was asked how many children did she have at that time. Four, DeShaney answered. She agreed that she raised them as a single parent. DeShaney agreed that she was treated for depression during that time. During that time I was seen at the Crider Center for a while, DeShaney stated, and then I was seeing a Dr. Bird, and now I'm seeing a Dr. Balter. The claimant agreed that she has been under the care of a psychiatrist for the depression for two decades or more. She agreed that there have been times when she has been hospitalized for depression. As of to date, three - five times, DeShaney testified. In the 1990s the symptoms my depression had on me was I had a hard time concentrating, DeShaney said. My aptitude is not as good; I can't -- I used to be able to figure everything in my head and I can't do that now, she said. I have trouble sleeping; I have trouble remembering things, she stated. The claimant agreed that this has been a chronic problem now, stating I'd say it's been bad since about 1985. DeShaney agreed that there have been times during that time where she contemplated suicide. She agreed that has sometimes been the reason why she entered the hospital. And a lot it was just the pain because it's hard to live with the pain all the time, the claimant stated. DeShaney agreed that the pain that she has experienced from her right knee, her low back, her right wrist, her left wrist, her right elbow, her left elbow, her left shoulder all contributes, in her, mind to the depression. And the fact

that I can't work, DeShaney added. She agreed that this is why she had kept trying to work.

DeShaney was asked - Back in 1998 and after the injury to your left shoulder and when you thought about not working, can you describe how that made you feel? I cried all the time because in my eyes at 47 years old you didn't go on disability, DeShaney answered. Agreeing that at that time she had looked at the want ads and things, DeShaney further testified I used to look at the want ads all the time and what computer techs was making, and it would just blow me away because I knew that if I could work, that I could be making that kind of money. The type of psychiatric medications I was on at that time were different than the list I just gave you, DeShaney stated, some of them were Ambien, Effexor, Remeron, Prevacid, Clonazepam; that's about all of them. DeShaney agreed that she still suffers from depression now.

During cross examination, DeShaney stated that she recalled being seen by a Dr. Susan McKinnon at Washington University in September of 1997 for her upper extremities. She was queried - And your history to her was that you had only been able to return to work for a few months at a time over the last three years, and she records a history that you would be at work for a couple of months and then you would be off work a couple of months, and then you would return to work for a couple of months; is that about the history for the last three years you were working at MEMC? I don't know if it was real, real often, but yeah, I know I was out of work, DeShaney responded. She agreed that based on the histories they had talked about previously, she was out of work a lot in 1996 and 1997, and for a number of months at a time.

During cross examination, DeShaney agreed that when she was hospitalized for depression in April of 1998 she treated with a Dr. Richard Anderson. She agreed that Dr. Anderson was her treating psychiatrist then for a period of time after that. It was noted that Dr. Anderson records a history on July 30, 1998 that for the last few years DeShaney had been off work for three months at a time; DeShaney was queried - Based on the questions they had gone through, this was true for periods of time in 1995, 1996, and 1997, correct? Yes, DeShaney answered.

DeShaney agreed that she had said earlier that when she returned to work in late March 1998 she was working limited duty of three days per week, six hours a day. The claimant was asked what was her work shift at that time. I normally worked weekend warrior, but at the time I was working, I was working I think it was every other day, like Monday, Wednesday, and Friday six hours a day, DeShaney answered.

During cross examination, DeShaney was queried - with regard to your testimony about the actual injury, did you say there were witnesses or there were not witnesses to the injury? There was nobody that was right there because I was kind of in a secluded area, DeShaney answered. But somebody come running over once they seen me drop -- I had the tub where I had it, DeShaney stated, two people come over to help me. I don't remember who these people were because we worked with different people every day, DeShaney stated. She agreed that she had said the next day she was scheduled to work, she called in to say that she couldn't come into work. DeShaney was asked who did she speak with. I spoke with Marcia Atkins, and I also spoke to Pat Matlock, DeShaney answered. I'm certain of that, DeShaney said. DeShaney stated that she recalled her deposition being taken in April of 2002, and recall being asked questions about reporting the injury to MEMC. She was asked if she had any recollection of what she had said at that time. I know that when I called in to tell them I wasn't able to come to work, that's when I told them I got hurt, DeShaney responded. She was asked if she could recall at the time of her deposition who she told. I'm pretty sure it was Marcia Atkins, DeShaney answered, I don't know for sure. Now I think about it -- after l've been thinking about it, I think it's Marcia Atkins, but I don't know a hundred percent for sure, DeShaney said. The claimant was queried - So are you saying you do recall or you don't recall who you spoke with? Not really, DeShaney responded. She was asked what did she tell them when she spoke to them. I told them that I had hurt myself at work, that I was trying to scoot a tub onto another tub and that the wheels started rolling, and when the wheels started rolling, it lunged me kind of forward and pulled me down with the wafers because the tub of wafers was going down, DeShaney answered. DeShaney stated that she

did not recall if the person she was speaking to was a male or female. She was asked if that person asked her to go seek medical treatment anywhere. Well, yeah, I knew that I had to go seek medical treatment because there was -- I couldn't move my head, my arm and I couldn't move my arm away from my body, DeShaney responded. She was queried if she had asked whoever she was speaking to on the phone to send her for medical treatment. No, I don't think so, DeShaney answered. She stated that she did not remember if that person suggested that she should go to a particular medical provider for treatment. She was asked if anyone at MEMC ever had her fill out any type of form, a report of injury form, about this incident. No, not that I remember, DeShaney answered. It was noted that DeShaney had said earlier that she saw Dr. Anderson while she was in the hospital for depression, and DeShaney agreed. DeShaney stated that she did not remember if Dr. Anderson took a history from her when she was hospitalized at St. Joseph's West on April 30, 1998. It was noted that Dr. Anderson recorded a history in his medical records that she had returned to work for the past week and was unable to function effectively at that time and left work; DeShaney was asked if she recalled giving that history to Dr. Anderson. By meaning not functioning effectively it was because it was hard for me to do my job is what I meant when I told him that, DeShaney answered.

DeShaney agreed, during cross examination, that she filed a Claim for Compensation through her attorney. It was noted that she had listed a date of injury of April 1, 1998, and she was asked if she knew how she got this particular date. It had to have been the date that it happened, DeShaney responded. I don't remember for sure, but that seems like it might have been the day, I don't know, DeShaney further stated, like I said I don't remember the actual date.

Considering other evidence in this case, the medical evidence, 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, including bronchitis, chronic back pain, G.E. reflux, lateral epicondylitis, morbid obesity, and depression. In a 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. The assessment on 11/25/97 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 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

1. persistent nausea due to Nissen fundoplication surgery
2. 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.

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 for bilateral carpal syndrome, including right carpal tunnel release on 04/28/95 and left carpal tunnel release on 06/09/95. The record indicated continued intermittent treatment into 1996.

In a July 8, 1997 examination entry, 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." 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.

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 the 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; the written impression on June 6, 1996 was - medial epicondylitis. In a 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; treatment for both upper extremities continued into December 3, 1996; it was written in the December entry that DeShaney reported she had improved from an injection and wanted to return to work. In the next entry of January 10, 1997, and DeShaney was kept off work during testing and treatment. The record indicated that DeShaney was working prior to June 1997, but on this date reported a flareup of pain in the area of the right and left wrist since return to work. The record indicated continued treatment of DeShaney's upper extremities into July 1997. In a July 16, 1997 entry it was written that DeShaney wanted to return to work at keyboarding with no heavy lifting and no constant repetitive motion, and she was to return for follow up in 6 weeks.

The next treatment note in the record was dated May 5, 1998, and Dr. DiFilippo typed: "Complaining of 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 indicating 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.

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.

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 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.

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' written diagnoses in the June 22, 1998 letter 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.

It is found that in this case, the claimant offered questioned, but uncontradicted testimony that she informed her team leader, Marsha Atkins, of her April 1998 work related accident and injury the next morning when she got up. DeShaney explained that the team leader was just a regular employee like she was, but if the employees had any problems they would go to that team leader. DeShaney gave undisputed testimony that it was the regular practice at MEMC to pick a team leader for that particular day or shift. DeShaney testified I didn't tell my team leader the day of the accident that day because I didn't know what I did. But there was two women in there that seen what happened, and they knew that I hurt myself, DeShaney further stated, but I didn't know if it was something that was just going to go away or not. So I went home and I couldn't move my arm away from my body, and I couldn't turn my neck either way, so I went straight to bed, DeShaney said, and the next morning I got up I called into work and that's when I reported to Marsha Atkins that I had hurt myself. Marsha was nowhere around for me to tell her the day that it happened, DeShaney stated, I didn't know where she was.

DeShaney agreed that she went to a doctor, Dr. DiFilippo, and agreed that she had been seeing Dr. DiFilippo already. I had been seeing him already for low back problems and upper extremities, DeShaney said. Dr. DiFilippo ordered an MRI for my left shoulder, DeShaney stated. When asked if she recalled approximately when Dr. DiFilippo had ordered the MRI, DeShaney responded - It had to have been just within a few days after the accident. As soon as I could get in, the claimant added. My understanding of the results of the MRI, DeShaney stated, was I had an incomplete rotator cuff tear on the left side. DeShaney agreed that she had treatment for this, adding that the doctor saw her for a while, but she didn't know exactly what the doctor did. I never had any surgery for it, she said.

Again, it has been determined previously in this Award that the substantial weight of the evidence indicates that the claimant's work related left shoulder injury occurred in late April 1998, more than likely between the time of 04/18/98 and 04/30/98. The medical treatment records reveal that at this time, notwithstanding DeShaney's reporting to her doctors new problems with her left shoulder/neck area, there were numerous diagnoses and treatments for DeShaney [i.e. On 04/30/98 Dr. Houser noted DeShaney's complaints included - 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; and Dr. Houser's assessment included that DeShaney was a severely depressed patient; and the doctor's treatment plan included - Will try to get her admitted to psych ward today for depression under Dr. Canale.] The medical treatment records additionally reveal that at this time, the claimant was suffering from severe depression and was hospitalized for this condition on May 1, 1998, which was close in time subsequent to the late April 1998 work related accident and injury.

The purpose of proper notice of a work related injury and any exceptions have been well-established in case law:

"The purpose of $\S 287.420$ is to give the employer timely opportunity to investigate the facts pertaining to whether the accident occurred and if so, to give the employee medical attention to minimize the

disability. Brown v. Douglas Candy Co., 277 S.W.2d 657, 662 (Mo.App.1955). The written notice requirement of $\S 287.420$ may be circumvented if the claimant makes a showing of good cause or the employer is not prejudiced by the lack of such notice.....

Claimant has the burden of showing the employer was not prejudiced. Pattengill v. General Motors Corp., 820 S.W.2d 112, 113 (Mo.App.1991). A prima facia case of no prejudice is made if claimant can show the employer had actual knowledge of the injury. Id. at 113. Here, claimant argues that he told his supervisors of the injury the day it occurred. He also points out that the employer did not alter its course of conduct after it became aware of the work-related allegation.

However, the Commission found there was no actual notice despite claimant's testimony and there is evidence to support this finding. Missouri courts have found that no prejudice exists where the evidence of actual notice was uncontradicted, admitted by the employer, or accepted as true by the fact-finder. See, Pattengill v. General Motors Corp., 820 S.W.2d at 112; Martin v. Lindburg Cadillac, 772 S.W.2d 12 (Mo.App.1989). Reichert v. Jerry Reece, Inc., 504 S.W.2d at 182; Jones v. Purity Textiles Corp., 328 S.W.2d 714 (Mo.App.1959); Buckner v. Quick Seal, 233 Mo.App. 273, 118 S.W.2d 100 (1938)..........

Claimant further argues that his failure to comply with the written notice requirement of $\S 287.420$ should have been excused for good cause. He argues that his lack of education and limited reading and writing skills constitute good cause for his failure to provide written notice to his employer within thirty days of the alleged work-related injury. Witnesses testified that claimant's speech was difficult to understand. His supervisors would routinely repeat things to ensure that he understood an order or directive. No medical testimony was offered to support this claim of mental deficiency. However, claimant was also a long-time employee whom it would appear performed his duties well and was capable of following instructions. The Commission obviously did not accept this argument and we are unable to say that its decision was not supported by substantial and competent evidence. Missouri case law on this issue has found the existence of good cause only where the injury was latent or the claimant did not realize the extent of the injury until after the thirty day period had passed. See, Beatty v. Chandeysson Electric Co., 238 Mo.App. 868, 190 S.W.2d 648 (1945); Reeves v. Frasier-Brace Engineering Co., 237 Mo.App. 473, 172 S.W.2d 274 (1943); Buckner v. Quick Seal, 233 Mo.App. 273, 118 S.W.2d 100 (1938); and State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1008 (1932)." Willis v. Jewish Hosp., 854 S.W.2d 82, 84 -85 (Mo.App. E.D. 1993).

Considering the evidence in this case, it should be mentioned that the claimant's uncontradicted testimony that she gave actual notice to an employee who is found to be in a supervisory position, that being team leader Marsha Atkins, the day after the April 1998 work related accident would be sufficient to establish a prima facia case of no prejudice. However, the claimant admitted that she was not a hundred percent for sure who she spoke with, not even if it was a male or female. This admission, along with the medical evidence of the claimant's mental status at that time makes this part of the claimant's testimony less than reliable evidence, thus found not to be probative on the question of whether or not the employer received actual notice. It is found that there is substantial medical evidence presented establishing that the claimant's, DeShaney's, mental status during the 30-day notice period in issue was severely compromised such that it is questionable if DeShaney had the ability to realize and/or act as required for the workers' compensation notice provision during that the 30-day time period in issue. It is found that there is competent and substantial evidence establishing that there was good cause why DeShaney did not give timely notice of her April 1998 work related injury to her employer.

DeShaney, the claimant, testified I ultimately obtained my GED in about 1981, DeShaney said. The

claimant was queried if she had had any employment outside the home between 1967 and 1981, that thirteen or fourteen year period of time before getting her GED, and she answered - No. She agreed that during that time she was rearing what were then her small children, and added that she did baby-sit some in the home.

After getting my GED in 1981 I got other education, DeShaney stated, I went to Brown Business College for clerical bookkeeping which I completed in 1983. I never had a job as a bookkeeper, DeShaney said, and I never worked in an office. Agreeing that she has had other training other than the Brown Business School, DeShaney stated I went to Control Data for computer technology where I got a certificate for computer technology. It took a little over a year to get this certificate, the claimant said. It was full time program, she stated, I went Monday through Friday. I got the certificate in about 1985, she said. Other education, DeShaney said, I took some classes at St. Charles Community College and at Flo Valley, but I did not complete any type of degree program. She was asked if she had any idea how far she had gotten as far as freshman, sophomore, junior, senior; how many credit hours she had. I more or less just went one semester at each college, DeShaney responded. I have never had any professional licensure, like real estate or insurance, the claimant said, and I have never applied for anything like that.

As far as the computer field goes in the 1980s, DeShaney said, I was able to obtain a job in that field. I worked for one small company for like three months in St. Charles, and then a guy that I worked for found a bigger company and had a better job for me and that was Applied Microsystems on Brown Road in St. Louis County. At Applied Microsystems I assembled circuit boards, did wiring harnesses, trouble shot circuit boards, DeShaney stated, I built circuit boards. She agreed that this was a full-time job, 40 hours a week. I worked for Applied Microsystems for probably four or five years, DeShaney said. She was asked to describe the types of physical things she had to do at Applied Microsystems in order to accomplish those tasks. I had to have a lot of hand dexterity because I was picking up little components and putting them in circuit boards, DeShaney stated, I had to be able to use the (wire scraper/stripper), soldering iron, and stuff like that when I assembled the circuit boards. She agreed that she was required to assemble so many boards in the course of a shift. It was noted that it has been 20 years or more, but DeShaney was asked if she had any recollection as to how many. Probably maybe 20 in a day, she answered. It was a pretty fast pace, she said, in terms of the pace of the job. She was asked if the job required the ability to lift, push, pull; things of that nature. I had to lift the circuit boards and then we had a piece of equipment that was in a metal box, and I would have to lift them sometimes, DeShaney stated. And I had to pull all my own parts for all my assemblies that I did, she added. A circuit board that I had to lift, when it was completed, weighed maybe a pound or two, the claimant stated. DeShaney agreed that the lifting requirements at that job were fairly light. After I left Applied Microsystems, I went to work for MEMC Electronics where I started on May 30, 1990. My last day that I worked for MEMC Electronics was in April of 1998, DeShaney said. She was asked if she remembered a specific day in April of 1998, and DeShaney responded - No, I don't. She agreed that it was the day that she last injured herself that is the subject of this claim.

DeShaney testified as to what difficulties she now has with her left shoulder. I can't hardly get my arm around behind me to fasten my bra, she stated. And combing my hair makes a difference, holding the telephone; I can't lay in bed and try to put my arm underneath my pillow, or like if I'm in a car and try to put my arm up on the back of the seat -- I can put it up there for a little bit but it starts hurting and I have to actually use my other hand to take it down because with the pain I just can't maneuver it by myself. She was asked how would she describe her range of motion in the shoulder. It's limited, DeShaney answered. I can raise it out in front of me, she said, but to raise it up over my head, that's difficult, I can do it, but it's painful. The claimant was asked about strength in her left arm and shoulder. It's the same as it's been for the last few years, she responded. She further stated that it is not the same as it was before the injury. Before the injury I could use my arm and stuff, you know, I could move it; I could do the things that I said I can't do, DeShaney stated. She agreed that she was handling several hundred wafers a day.

It was noted that DeShaney had testified about the medications she is on, and she agreed that some of them are pain medications. It's Darvocet, she stated. DeShaney agreed that it helps the pain in her left shoulder. Testifying as to other things she does in order to alleviate the pain in her left shoulder, DeShaney stated l've got a whirlpool tub and I get in that with real hot water and lay in that -- that helps my shoulder some. Agreeing that she uses something like a heating pad, the claimant said l've got a heating pad, and then there's times I use a cold pack too. She was asked, in regards to your shoulder, how often do you have to use something or take something to try to control the pain? I've built up a high tolerance to pain, and I try not to take anything if at all possible because I know it's not doing my stomach any good to be taking a lot of medication, but usually like every other day or so I have to take something for it, DeShaney answered.

DeShaney discussed prior problems she had before her left shoulder problem. She agreed that she was on light duty, and that she had had a surgery for gastric bypass. I think I had that surgery on December 17, 1997, DeShaney said. I don't really know how long I was off work from that gastric bypass, the claimant said, probably maybe four to six weeks. She agreed that she went back to work from that, and that was one of the things that had her on light duty. Agreeing that she was having difficulties following her abdominal surgery, DeShaney stated I had difficulties with nausea. Sometimes I would throw up but if I eat just a few bites, my stomach would feel real nauseated, she explained. I was on medication for this, DeShaney said, Prevacid. She agreed that she is still on it. The claimant was asked to explain about during the time when she was on light duty and she said she was nauseated, how many days a week or hours in a day did she have that nauseating feeling. If I didn't eat, I can pretty well get over it, DeShaney answered, but if I would try to eat a little bit, then I would get the nauseous feeling, and sometimes it would take a couple hours for it to go away. I was throwing up some when I was nauseated, but not a whole lot, she said. She was asked how this had affected her in terms of strength, energy, things of that nature. I was weak, DeShaney answered.

Prior to the gastric bypass I had had bilateral carpal tunnel, DeShaney agreed. Explaining when this had occurred, DeShaney testified I started having problems with it probably late 1992, early 1993. She agreed that she had filed a claim for compensation in which the date of injury was listed as April of 1995. DeShaney agreed that she was working for MEMC at that time. My job when this developed was laser mark, DeShaney stated. She agreed that she had had surgery on both hands. I think one surgery was in May of 1995 and the other one was I think in June of 1995, DeShaney said. Dr. Stanley Martin did the surgery, the claimant said, and they were done at St. Joseph's Hospital in St. Charles. I'm not sure how much time I missed from work as a result of the surgeries, DeShaney said, I was just out the normal amount of time that they allowed for the surgery. She agreed that after her surgeries and after she returned to work, she returned to work full duty. Typically, I was working three days a week, twelve-and-a-half-hour days, DeShaney stated. A few months later I was eventually put in braces that went all the way from my arms, my elbows down to my wrists, DeShaney stated, because of all the problems I was having with my arms. The problems were pain, numbness, weakness, she said. DeShaney agreed that this was one of the reasons in addition to the gastric bypass that she was on light duty. Dr. DiFilippo prescribed the braces for me, DeShaney said. She agreed that she was using those braces in her job at MEMC, and agreed that she had those braces on at the last job of FTIR and LE MAT. DeShaney agreed that on the day that she injured her left shoulder, she had braces on both hands. The claimant was questioned more about the problems she was having in both hands. She agreed it was numbness and pain in both hands. DeShaney stated that she is right hand dominant. In terms of numbness in my right hand, she said, it was in my wrists and going down into pretty much all five fingers. She stated that this was aggravated by the work that she was doing. DeShaney agreed that the numbness extended back from her wrists going backwards up into her arms. It would come up sometimes up close to my elbow, she stated, and when I would work a shift, my wrists would swell just from me doing the repetitious work and both my wrists would even swell. The claimant was queried - And on a scale of zero to ten with zero being pain-free and ten being laying in the hospital room screaming kind of pain, incapacitating kind of pain, do you have any rough idea of what estimate that you give in terms of your right hand and arm? Four to five, DeShaney answered. She agreed that it was numb and painful at the same time. Agreeing that she had a brace on her left hand as well, DeShaney testified that it was pretty much the same, but it wasn't near

as bad as my right hand. My right hand was the worst one, she said. Describing where the numbness was, DeShaney stated it was pretty well in my wrist going down into my hand, the same as on my right hand. She agreed that it extended up her arm as well, up mid arm to her elbow. Using that same scale, zero being pain-free, ten excruciating incapacitating pain, the pain in my left arm that I experienced in the hand up to the elbow was probably a three to four, DeShaney said. She was asked how long after the surgeries had the pain and the numbness that she had described in her arms had been that way. It's pretty well been that way ever since my surgeries, DeShaney answered. She was asked if it was that way now. I still have the numbness and the pain, DeShaney answered, it's not near as bad as it was, but I still have numbness in my hands.

DeShaney agreed that in addition to the carpal tunnel, she had a right elbow injury at MEMC. Explaining the problems she was having in her right elbow, DeShaney testified whenever I would try to lift anything at all, I would get a real bad pain in my elbow. Dr. DiFilippo ended up putting me in a brace that went around the midsection of my arm, she said, and I wore that and if I had that on, the pain wasn't as bad. If I remember correctly, they said I had like tennis elbow, DeShaney stated. She was asked if this was a particular accident at work; one thing happening or was that due to the repetitive nature. Just due to the repetitive work that I was doing, DeShaney answered. She was queried if she had filed a claim for this dated March 1, 1996. I don't remember that one, DeShaney responded. After being shown an exhibit, DeShaney stated that she remembered. She stated that she did not surgery on her right elbow. She agreed that she wore the two braces on her arm at one time. DeShaney agreed that she was wearing both braces on her arm at the time of the April 1998 injury. She was asked how is her right elbow now. It's okay, DeShaney responded. It bothers me some, but not a whole lot, she said.

The claimant agreed that she has had difficulties with her left elbow in the past, and stated that she has had surgery on her left elbow. I was working at MCl , so the surgery must have been early 1980, she stated. The kind of surgery I had in the early 1980s on my left elbow, DeShaney testified, I think they called it an open nerve trans, because what they did is they took the nerve from the bottom of my arm and put it up on top my arm. She agreed that they called it an ulnar nerve transposition, and that she had this in the early 1980s. She was asked what kinds of aches, pains, or discomfort was she having in the left elbow at the time that she was trying to do all this work at MEMC. The main thing whenever I was having that, it was my arm and my wrist was going numb, DeShaney answered. That's mainly why I had that surgery done, she said. After I had the surgery, it took a while, but my your left elbow got better, DeShaney stated.

She agreed that at the time of this last accident she had already had surgery on her left elbow, her left wrist, her right wrist, and she had a brace on her left and right wrist and right elbow. DeShaney was queried - In spite of this you were able to do the work? Yes, DeShaney answered, it was difficult, but I managed to do it. She was asked why she was trying to continue to do that kind of work. Because I wanted to work, and I needed a job; I had to support myself, DeShaney answered. She was asked - After the injury to your left shoulder, why didn't you return to work? Because then when I worked prior to the injury, I couldn't use one hand to lift anything, I always had to use two. I had to use two to lift the tub, I had to use two to lift a rack because if I tried it in one hand, sometimes I would drop them, she stated. So everything I did I had to use both hands for, she said. Once I had the injury and I couldn't get my arm away from my side and I couldn't move my neck or anything, I no longer had that capability of having two hands that I could work with, DeShaney testified.

DeShaney agreed that she has suffered a low back injury in the early 1990s. Explaining what happened to her low back in the early 1990s, DeShaney stated I was on the lapper at work, and I was putting some slices in, and the machine was so tall that there was a stool that we had to stand on, and I was loading the machine and I was on the stool reaching at the back of the machine and the stool slipped out from under me and it pulled my back and put me in a strain from the way the position was that I was under the lapper. Explaining why she had to use a ladder, DeShaney stated it was because the lapper was so big

around that in order for us to get back of the lapper and get the slices all the way around it, it was huge, we had to stand on something because we couldn't just reach them all the way around. DeShaney stated that she is 5'9" tall, and agreed that she still had to stand on a stool. She was asked how high off the ground would she have to get up on that stool to reach into the back of the machine. I would say the stool was probably about twelve inches high, she responded. She was queried - So you fell off the stool, is that what occurred? The stool slid out from under me, DeShaney responded. She agreed that she had injured her back. The treatment I had for my low back at that time, DeShaney said, I had steroid shots in my back. I was in physical therapy, she said, they put me in water therapy. I even went through a work hardening program partially due to my lower back, she stated. Dr. Adams, the company doctor at that time, performed the steroid injections, DeShaney said. I don't recall how many epidural steroid injections I received for my low back, DeShaney stated, I know I got a lot of them because he would give me like ten to fourteen shots at a time and I was seeing him every Friday. She agreed these were like trigger point injections. DeShaney agreed that she also saw Dr. McCallister at that time for her low back, and agreed that this doctor gave her a restriction in terms of the amount of weight she should be lifting. I think the restriction was ten pounds, she said. I don't remember if Dr. McCallister gave me a final restriction after I dad completed my treatment on my low back, DeShaney said. She was queried - If the records reflected that the final restriction was 30 pounds, would you have any reason to agree or disagree with that? Yes, I disagree with that because that's what the tubs weighed, DeShaney responded. They had me on restrictions for a while with my back, but then they took me off of them after a while, DeShaney stated, then whenever I would get bad again, they'd put them back on me. I wasn't completely under restrictions the whole time, she said. The claimant testified about what problems she was having with her low back following the injury she had to her low back. Just real bad pain, she said. It would take my breath away, and I had pain radiating down into both of my legs, DeShaney stated. The pain like this was pretty well constantly, she said, on a daily basis. She agreed that she was able to continue to work with that.

DeShaney stated that the pain that radiated down her right leg went down to her knee, and her left leg was about the same. She agreed that work aggravated the condition or made it worse. She was asked to describe what about her work made the condition worse. When I was laser marking, I had to kind of set up in a chair, she said. I had a different position; I couldn't lean back in the chair because I was loading the machine and stuff, so that put a strain on my low back the whole time I was doing that, DeShaney stated. And then standing for so long amount of time would cause it to hurt, or sitting for so long amount of time would make it hurt, she said. She agreed that she had to alternate positions. DeShaney agreed that she had jobs at MEMC that allowed her to alternate sitting and standing. It would have been all the jobs that I have described as having done there allowed for some level of alternate sitting and standing, except for lapping which was all standing, DeShaney stated. She agreed that after the back injury she took medications for the back and continued to take medications. The medications I was taking in the 1990s for my back problem, DeShaney stated, I was taking Percocet, Skelaxin, an anti-inflammatory - I don't remember the name of the drug - plus I was taking a muscle relaxer. I was taking these as I needed them, the claimant said. She agreed she had had medical treatment for her back periodically. Dr. DiFilippo, and then I seen Dr. Anderson, DeShaney stated. I seen quite a few different doctors with my back, she said, Dr. Adams.

DeShaney stated that prior to the back injury, she had an injury to her right knee in the early 1980s. I was getting up ready to go to college and I opened the door to let my little dog out and when I did, I stepped out with her, and it was ice and I went down on my knee, DeShaney said, and I bent my -- strained my knee. Explaining the kind of treatment she got for her right knee, DeShaney testified they went in and did an arthroscopic surgery on m knee. I don't recall what doctor did this, she said, but it was done at Barnes St. Peters. The problems are experienced with my right knee after the surgery, DeShaney said, I could tell when it got cold or damp, my knee would hurt and like to try to get down on my knee and -- like lean on my knee or anything like that, I couldn't do that because of the pain.

DeShaney agreed that in addition she has also suffered from depression. I have suffered from depression for probably 25 years, she said. She was asked what triggered this, at least in her mind? In my second

marriage my husband had an eight-month-old baby girl, and I didn't know anything about her until she was eight months old, DeShaney stated. And when I found out about it, he was upset because I was crying all the time and stuff. He used to beat me all the time, and then he divorced me, so it was just at that time that everything really started going bad, DeShaney testified. She agreed that this is why she went back to school, and why she got her degree in order to support herself. She was asked how many children did she have at that time. Four, DeShaney answered. She agreed that she raised them as a single parent. DeShaney agreed that she was treated for depression during that time. During that time I was seen at the Crider Center for a while, DeShaney stated, and then I was seeing a Dr. Bird, and now I'm seeing a Dr. Balter. The claimant agreed that she has been under the care of a psychiatrist for the depression for two decades or more. She agreed that there have been times when she has been hospitalized for depression. As of to date, three - five times, DeShaney testified. In the 1990s the symptoms my depression had on me was I had a hard time concentrating, DeShaney said. My aptitude is not as good; I can't -- I used to be able to figure everything in my head and I can't do that now, she said. I have trouble sleeping; I have trouble remembering things, she stated. The claimant agreed that this has been a chronic problem now, stating l'd say it's been bad since about 1985. DeShaney agreed that there have been times during that time where she contemplated suicide. She agreed that has sometimes been the reason why she entered the hospital. And a lot it was just the pain because it's hard to live with the pain all the time, she said. DeShaney agreed that the pain that she has experienced from her right knee, her low back, her right wrist, her left wrist, her right elbow, her left elbow, her left shoulder all contributes, in her, mind to the depression. And the fact that I can't work, DeShaney added. She agreed that this is why she had kept trying to work.

DeShaney was asked - Back in 1998 and after the injury to your left shoulder and when you thought about not working, can you describe how that made you feel? I cried all the time because in my eyes at 47 years old you didn't go on disability, DeShaney answered. Agreeing that at that time she had looked at the want ads and things, DeShaney further testified I used to look at the want ads all the time and what computer techs was making, and it would just blow me away because I knew that if I could work, that I could be making that kind of money. The type of psychiatric medication I was on at that time were different than the list I just gave you, DeShaney stated, one of them was Ambien, Effexor, Remeron, Prevacid, Clonazepam; that's about all of them. DeShaney agreed that she still suffers from depression now.

The claimant agreed that she also has a thyroid condition. I have had this condition since the mid '90s, DeShaney stated. She agreed that she takes medication for it, further stating I take Levoxyl. DeShaney was asked if the thyroid condition affects her in any way. I get cold easy, DeShaney answered.

DeShaney testified about a day in her life, first noting that she takes three different sleeping pills to sleep. I take two 300 milligrams of -- I can't think of the name of it, DeShaney stated, and I take one Ambien and I take two Trazodone. I've been on these medications, I'd say, for four years, DeShaney said. She was asked how does she sleep. I wake up a lot at night because of the pain, DeShaney answered. It actually even hurts me just to lay on the bed, she said, there's a lot of times, maybe two, three, four o'clock in the morning, I wake up and I'm hurting and I can't go back to sleep, DeShaney stated. I just get up and go sit in the chair or do something for a while, or go watch TV or something because I can't sleep, she stated. She was asked if she rested or slept during the course of a day. No, DeShaney answered. I don't take naps, she said, but I lay down during the course of a day. It depends how often I down during the course of a day, DeShaney testified, it depends if I got a good day or a bad day. If l've got a bad day, I might lay almost the whole day, she said. If I have a good day I might just lay down for a little while, DeShaney said. If I hurt a little bit, I'll lay down, she said. I'd say out of a week I might have one good day, DeShaney stated. The claimant was asked, when you say bad days and pain, are you talking about the depression or are you talking about your arms or back. Just pain all over plus the depression, DeShaney answered.

DeShaney agreed that she vacuum, and explained how: I set on the floor and use the nozzle to vacuum. She explained that she sits on the floor because it kills her lower back and her arms to run a

vacuum cleaner. I don't really do much dusting, DeShaney said, my boyfriend does a lot for me. I do very little grocery shop, DeShaney stated, he does most of the grocery shopping. She was asked if she helps him carry things in. No, he always carries them in, she answered. DeShaney stated that she sometimes goes to the store with him, and agreed that she is able to walk in the store. He's the type of person he usually just goes in for like one or two things at a time; he don't go in and do like a week's shopping at a time, she said. She stated that she is in the store very long at all. I do laundry still, DeShaney testified, but I just put a little bit in a basket, take it into the laundry room, and then I more or less set on the floor to fold it. I don't hardly drive that much anymore, the claimant said, for one thing my concentration and for another thing just maneuvering my head to look around and stuff it's difficult at times, and with the pain it's hard to concentrate. My boyfriend does the driving, DeShaney stated, he even drove me here (to the hearing) today. He does a lot of the cooking, DeShaney stated.

DeShaney agreed that in the past, a number of years now when she was a single mom and she needed something done around the house like home repairs and things like that, she was able to do this. Describing some of the things that she was able to do, DeShaney stated me and my kids put siding on the house, I closed the carport in and made a garage out of it, I put up a six-foot privacy fence all the way around our property. I used to do a lot of woodworking and a lot of electrical wiring, DeShaney said, anything electrical in the house that needed to be fixed, I could always fix it. I could not do any of these things now, DeShaney said. For one thing with the electronics, with my concentration I try not to get around electronics, and just with the pain, and my limitations that l've got of how I could move and stuff; l'm just not able to do that type of stuff anymore, DeShaney testified.

The claimant testified about the kind of things she does to alleviate the pain. I take my pain medication; I lay down in the floor and try stretching my spine; I lay on a rolling pin with it on my back and that helps stretch out my back and that helps relieve it sometimes, DeShaney stated. I've got the sauna that I lay in to help relieve it, she said. I use the sauna at least once a week, twice a week, she said. She was asked how often does she use a heating pad. It depends, DeShaney answered, sometimes I use it every night, sometimes I don't use it for two or three nights; it just depends on how I feel. It was noted that DeShaney had said she uses ice occasionally or a cold pack, and she was asked how often does she use this. I don't use the cold pack as much as I do the whirlpool and the heating pad, DeShaney answered. She agreed that this was in addition to the pain medication she takes on a daily basis.

My current physician is Dr. Michael Houser, DeShaney testified. I seen him last time probably about six months ago, she stated.

DeShaney stated that she liked working for MEMC. She was asked if she thinks she can do any of the jobs that she had described as having done for them. No, DeShaney answered. Because there's days I can't even get out of bed, so I wouldn't be able to hold down a job if l've got days that l'd be missing all the time; so there's no way I could hold down a job, DeShaney explained. She was asked why she can't get out of bed on those days she says she can't get out of bed. Because of pain, DeShaney answered. Pain in my back, pretty well all over, she stated.

On cross examination by the Second Injury Fund, DeShaney agreed that she had said earlier that she had taken some college classes at Florissant Valley. My classes were history, math, accounting, and oral communication, DeShaney stated. I took these classes in the early 1980s, she said. She agreed that she had said she also took a semester's worth of classes at St. Charles Community College, and stated I took one law class, another accounting class, another history class, and a music class. DeShaney agreed that she was able to understand what she read. She agreed that she knows how to use a personal computer.

DeShaney agreed that she has had some prior Workers' Compensation claims, and she had talked about them today. She agreed that one of those was in 1995 for both of her hands, and another one was in 1996

for your right elbow. DeShaney agreed that the 1995 claim for her hands was something she had reported to MEMC. She stated that she had also reported the 1996 claim for the right elbow. DeShaney agreed that she had said earlier her 1990 back injury was a work injury as well. She agreed she had filed a claim for this and had received a settlement for this.

DeShaney agreed, during cross examination, that in early November of 1997 she was taken off of work by Dr. Houser. When queried - didn't Dr. Houser have her off for the entire month of November 1997 and December 1997 up until her gastric bypass surgery, DeShaney responded -- I don't remember the exact date. She stated that if Dr. Houser's notes from November of 1997 state that she was to continue on disability for another month, she would have no reason to dispute that that's what actually occurred. The claimant agreed that she then had gastric bypass surgery on December 17, 1997. I don't remember exactly for sure how long I was off work, if it was a period of four to six weeks after that surgery, DeShaney said, I would imagine that would be about how much time. She agreed that she had a lot of complications after that surgery, and stated that she would not dispute it if the records reflect that she stayed off work in January and February of 1998. She agreed that she actually had two additional surgeries in February of 1998. DeShaney stated that she would not dispute the history if Dr. Houser's records reflect that because of all of these surgeries and problems, on March 12, 1998, that she should continue to stay off work for an additional two weeks. DeShaney agreed that she would not dispute it if Dr. Houser's return to work slip put her on three days per week, six-hour days starting March 28, 1998. She agreed that if this history is correct, she would have returned to work approximately March 28, 1998 after being off work since November of 1997. DeShaney agreed that then her alleged shoulder injury happened sometime in April of 1998. She admitted that she was back at work for about a couple of weeks at that time.

During cross examination, DeShaney agreed that, as the notes from Dr. Houser also showed, she was on medical leave from May of 1996 through July 3, 1996. She agreed that as the records of Dr. DiFilippo showed, she was off work in September of 1996, October of 1996, November of 1996, and then returned to work in December of 1996. DeShaney agreed that it was correct there is also a note from Dr. DiFilippo that she should've been off work for another month beginning in January of 1997. She agreed that as reflected in a note from Dr. DiFilippo, Dr DiFilippo he took her off work in May of 1997 and kept her off work until July 16, 1997. DeShaney stated that she remembered the visit with a doctor for her right elbow, but she did not remember the name of Dr. David Strege; she agreed that she saw the doctor in about March of 1997. DeShaney stated she would have no reason to dispute the history if Dr. Strege's records noted a history of recent inactivity because she had not been at work, so a doctor had her off work in March of 1997 as well. DeShaney agreed that if these histories are correct, she was off the latter part of 1996 from September through December of 1996, January of 1997, March of 1997, April through July of 1997 and then November of 1997 through March of 1998, and this was because of multiple medical problems that she was having.

DeShaney stated, during cross examination, that she recalled being seen by a Dr. Susan McKinnon at Washington University in September of 1997 for her upper extremities. She was queried - And your history to her was that you had only been able to return to work for a few months at a time over the last three years, and she records a history that you would be at work for a couple of months and then you would be off work a couple of months, and then you would return to work for a couple of months; is that about the history for the last three years you were working at MEMC? I don't know if it was real, real often, but yeah, I know I was out of work, DeShaney responded. She agreed that based on the histories they had talked about previously, she was out of work a lot in 1996 and 1997, and for a number of months at a time.

During cross examination, DeShaney agreed that when she was hospitalized for depression in April of 1998 she treated with a Dr. Richard Anderson. She agreed that Dr. Anderson was her treating psychiatrist then for a period of time after that. It was noted that Dr. Anderson records a history on July 30, 1998 that for the last few years DeShaney had been off work for three months at a time; DeShaney was queried - Based

on the questions they had gone through, this was true for periods of time in 1995, 1996, and 1997. Yes, DeShaney answered.

Considering the medical evidence, medical records of Dr. Michael J. Adams, D.O. (No. V) included a work status form by Dr. Houser, M.D. dated 03/26/98 in which Dr. Houser indicated that DeShaney had been released to return to work on 03/28/98 with restrictions of - "only work 6 hrs/day for 2 wks work only in FTIR \& ELYMET for 3 months"; a 03/26/98 MEMC Fitness Report Return To Work form completed by Dr. Adams stated that DeShaney was on temporary restrictions for 03/28/98 - 04/09/98 of: 1. No greater than 6 (hours) work per day, 2. No greater than 3 days per week, and 3.5 lb wt restriction.

The next document in Dr. Adams' record was a Physician's Certification Of Borrower's Total And Permanent Disability signed by Dr. DiFilippo on 08/18/98 in which DeShaney's present medical condition was listed as: Fibromyalgia, Rotator cuff tendonitis, Low back pain, and Bilateral knee pain; it was indicated that the conditions were not static, that optimum improvement was - uncertain. The record next contained an August 20, 1998 report of x-ray findings as follows: A) For a history of - Disability evaluation, low back pain -Impression was - a. Multiple surgical clips in the upper abdomen, b. Degenerative disc disease L-5/S-1, c. Schmorl's node L-2, d. limbus vertebrae L-4, and e. Possible soft tissue mass left side of the abdomen that could be arising from the kidney, suggest additional study; and B) For a history of - disability evaluation, carpal tunnel -- Impression was - Negative. Treatment entries dated 03/26/98 included: "Return to work evaluation following 3 surgeries in the past 3 months. She has had a gastric bypass surgery, gallbladder surgery (which was done laparoscopically on 2/23/98), and vaginal mass removal in the past 2-3 months. She is having a lot of nausea, decreased appetite". It was further written in the 03/26/98 entry that DeShaney's doctor wanted her to return to work with restrictions of - no greater than 6 hours a day, no greater than 3 days a week, and no lifting over 5 pounds for 2 weeks; it was written that this was discussed with MEMC. A handwritten 04/13/98 entry stated - "pt will be on 6 hr day, 3 day week for 3 more weeks". The next entry was dated 10/21/98, and included: "c/o; RTW visit after surgery - has 4 notes to not go back to work - would not let me copy them." A typed 10/21/98 entry stated the following:

Here for return to work evaluation following gastric stapling. She has left shoulder pain and numbness in the right arm. Inability to raise her arm about 90 degrees. As a result of her surgery she has had some intractable esophagitis with digestive problems. Her primary care doctor, Dr. Houser, recommends that she does not work as a result of the stomach problems, depression and muculoskeletal problems. Dr. Altman recommends that she not work due to the intractable esophagitis. Dr. DiFilippo recommends that she not work as a result of her musculoskeletal problems.

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.

Dr. Michael K. Houser, M.D. (No. M) records indicated that he treated DeShaney for various ailments during the period of November 1995 through July 1999. Treatment entries from 11/16/95 through 1997 indicated treatment for diagnoses such as Bronchitis with bronchospasm, Depression, Chronic back pain, G.E. reflux, severe right elbow pain, and noted that DeShaney had undergone treatment for carpal tunnel syndrome in the past. In a 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; it was indicated that leave was recommended for a period of 11/4/97 11/18/97, and that DeShaney was informed. In an 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

1. persistent nausea due to Nissen fundoplication surgery
2. 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.

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 on April 12, 1995 that DeShaney had bilateral upper extremity pain which was not typical for carpal tunnel syndrome, though it was certainly possible. The record indicated that when conservative treatment failed DeShaney was admitted to St. Joseph Health Center/Hospital on 04/28/95 and Dr. Martin performed on DeShaney the surgery of - Right carpal tunnel release. A 06/09/95 operative report indicated that Dr. Martin performed on DeShaney the surgery of - Left carpal tunnel release. Dr. Martin's written assessment on September 21, 1995 included that DeShaney was doing satisfactorily. 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 a January 25, 1996 entry, Dr. Martin wrote that DeShaney returns with numerous complaints, mostly concerning her right hand and arm. Among his suggestions was that she continue to take Advil and Aleve as needed and perhaps wear the wrist braces as she could tolerate them." 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 has 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. 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 wrist 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, and 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 the 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. It was noted in a treatment entry dated May 14, 1996 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 from 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. 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 09/27/96 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. In a November 5, 1996 entry, Dr. DiFilippo wrote that EMG/NCV studies showed no evidence of abnormality about the elbow; it was noted that a bone scan and x-rays were normal; it was noted that she had improved from lateral epicondylitis. It was written that shoulder discomfort was resolved since DeShaney had been off work. In an 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 from 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 in 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 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.

The next treatment note in the record was dated May 5, 1998, Dr. DiFilippo typed: "Complaining of 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 indicating 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.

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.

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 work 3 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 doctors 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 her 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 in which Dr. Ross included 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 hopes 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. A 06/30/98 entry 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 or internist.

Documents in evidence included two copies of Stipulation for Compromise Settlement forms. The first stipulation (No. Q) indicated a settlement between DeShaney and MEMC electronic Materials, Inc. for an April 19, 1995 work related injury, the settlement based on 20\% permanent partial

disability of the right wrist and 20\% permanent partial disability of the left wrist, Injury Number 95-051586. The second stipulation (No. P) concerned a settlement between DeShaney and MEMC Electronic Materials, Inc. for a March 1, 1996 work related injury, the settlement based on 17\% of the right elbow, Injury Number 96-121722.

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".

Dr. Thomas Musich, M.D., who testified by deposition on behalf of the employee (No. R), stated 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).

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. 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)

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 has 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." (Musich Dp. pp. 1617)

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. Ms. 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)

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 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)

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:

1. 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.

1. 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?
2. 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 refer to somebody who was more qualified to take care of 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)

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 behalf of the defense. (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 has 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 appears 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)

During cross examination, Dr. Emanuel 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.

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 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, and 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)

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)

Gary Weimholt, M.S., vocational expert testified by deposition on behalf of the employee on March 17, 2003. (No. S). A vocational rehabilitation consultant, Weimholt stated that he examined

DeShaney at the claimant's request on May 31, 2002. He agreed that he had reviewed medical records. Weimholt testified about the information he had obtained from DeShaney which included her age, her area of residence, her height and weight, and the different injuries she has had over the years, testifying:

"Briefly, I noted that she had a work injury in April '98 involving her left arm and shoulder and neck, and that her preexisting conditions included chronic obesity, long-term depression, and that she's had longstanding fibromyalgia. She's had a history of low back problems dating from 1995. She's also had a vaginal surgery in 1997, gastric bypass surgery in 1997, and gall bladder surgery in 1998.

I noted from interviewing her that she did have a history of receiving vocational rehabilitation from the state of Missouri in the past." (Weimholt Dp. pg. 10)

Weimholt noted that DeShaney's date of birth was 4/19/52, her height and weight at the time of his evaluation was noted, and it was noted that DeShaney lives in the St. Louis metropolitan area, in O'Fallon, Missouri. Weimholt discussed DeShaney's educational history, including:

".....She indicated to me that she obtained a GED in the early 1980s. I inquired as to whether or not she had difficulty with reading, and she says that she can - has no trouble with reading. She knows how to type some, but says it's not very fast, or real fast. I always inquire as to whether or not the person has computer and/or knows how to use a computer. And she, in fact, had a home computer and describes herself as having built it herself a year ago, her most recent one. She indicated to me that she knows how to use a computer. She has a previous history of training in clerical and bookkeeping services at Brown Business College. And then more recently, around 1985, she attended Control Data Institute and for computer technology studies." (Weimholt Dp. pp. 11-12)

Testifying about DeShaney's skills in math, Weimholt further testified:

"And she did indicate having taken calculus, trigonometry, and algebra. She had indicated to me that part of the reason that she went into that program is that the - her assessment through the state of Missouri was that she had good math skills and - and evidently that was part of the recommendation for that training." (Weimholt Dp. pg. 12)

Weimholt noted that DeShaney relayed that at one point she had been able to install or replace parts into the computer and now she has to have someone help her with that. He further stated: "She can only play games on the computer for about thirty-five or forty minutes, and then she reported that her arm and hands become numb. And she doesn't use the computer daily, but uses it about two or three times a week." (Weimholt Dp. pp. 12-13) Weimholt discussed DeShaney's work history, her current activities of daily living, her ability to drive. Agreeing that he had asked about DeShaney's need to rest or incline during the day, Weimholt testified: "And she indicates that she would be at rest or reclining most of the time." (Weimholt Dp. pg. 16) Weimholt testified about his review of the medical records and evaluation reports, including a functional capacity work sheet of June 30, 1998 ordered by Dr. DiFilippo. Weimholt discussed the results of testing he had performed on DeShaney. Agreeing that he had taken into consideration whether or not DeShaney is currently a candidate for vocational rehabilitation, Weimholt testified:

"My opinion is that she's not a candidate for either job placement or vocation training or reeducation. I really don't see a realistic vocational goal for her either now or with further training that is sufficient for her to overcome the kind of multiple problems that she has, and will allow for regular competitive work." (Weimholt Dp. pp. 39-40)

Weimholt agreed that he had formed an opinion as to whether or not DeShaney would be capable of engaging work in the open labor market, and testified:

"My opinion is that she's not employable, that she is totally vocationally disabled from employment. Further, it's my opinion that there's no reasonable expectation that an employer in the normal course of business would hire her, or that she would be able to perform the usual duties of a job that she's qualified to perform." (Weimholt Dp. pg. 41) (RULING: Second Injury Fund's objections ore overruled. Weimholt Dp. pg. 40)

On cross examination, Weimholt was asked if it was his opinion that DeShaney was no permanently and totally disabled prior to April of 1998. Weimholt answered:

"Prior to the last injury of April 1998? It appears that, you know, looking at Dr. Musich's report, that that has been a condition as a result of that. It's -- A consequence has been that she's not been able to work, continue working, yes."

"Prior to the last injury in April of 1998? I don't think that she was necessarily totally disabled at that point in time." (Weimholt Dp. pp. 41 and 42)

During cross examination, it was noted that Weimholt had provided an opinion as to DeShaney's ability to return to work and that the cause of that condition is, at least in part, due to the April 1998 injury; Weimholt was queried if it was his understanding the April 1998 injury was a specific accident. "Yes, I believe so", Weimholt responded. (Weimholt Dp. pg. 44) After reviewing the records, Weimholt gave the following testimony in regards to a specific date for the April 1998 accident: "Well there isn't. You're correct that there's not a specific date that's indicated. It's dated as of April 1998." (Weimholt Dp. pg. 45) Weimholt indicated that DeShaney had had left shoulder problems before April of 1998, testifying: "I think she's had problems related to fibromyalgia that would have involved the left shoulder some." (Weimholt Dp. pg. 49) He agreed that DeShaney had cervical problems prior to April 1998. He was queried if he agreed that one of DeShaney's most debilitating problems is her depression. Weimholt answered: "Depression has -- I agree that it's been long-standing for her, and that it's been part of her overall adjustments for years. So, at times certainly it's been a major part of her problems." (Weimholt Dp. pg. 50)

On cross examination by the Second Injury Fund, Weimholt agreed that he was aware DeShaney had filed for social security disability and was those benefits back on June 6, 1997. He agreed that he was aware these benefits were retroactive to November 6, 1997. Weimholt agreed that he had read DeShaney's deposition, and had read about all the medicines that she was taking; Weimholt agreed that most of the medicines dealt with depression or were aids to help DeShaney sleep. Weimholt stated that he read the medical records about DeShaney's depression, and being hospitalized in May of 1998 at St. Joseph's Health Center and that in the medical history they described DeShaney's gastric stapling procedure in December of 1997 and the persistent nausea she had developed and that she had told them she couldn't eat and just felt terrible all the time; Weimholt stated that he was aware that DeShaney told them she went back to work but had not been able to tolerate that because of nausea and this had been her major stress. Weimholt was queried - wasn't it correct that DeShaney's depression really reached its peak in April of 1998 and led to her being hospitalized at her doctor's request on May 1, 1998. "Yes", Weimholt answered. (Weimholt Dp. pg. 59) He was asked if it would also be fair that it was also a substantial factor in DeShaney not being able to work any more. "I think it would be, yes", Weimholt answered. (Weimholt Dp. pg. 59)

During cross examination, Weimholt was qeureid if he was aware that DeShaney had had some left shoulder pain in 1997, and he had answered - "Yes". (Weimholt Dp. pg. 66) It was noted that DeShaney had described herself as a math wiz; Weimholt was queried - don't you agreed that DeShaney has elevated mathematics abilities. Weimholt answered:

"No. She described herself as a math wiz. She says she took algebra, calculus and trigonometry in 1985 or '87, perhaps, when she went through Control Data Institute. And she was at that average range in that numerical sequence testing, which related to logical thinking and numerical thinking. So, that's - I mean,

hat's what I would say she has as far as that goes." (Weimholt Dp. pg. 67)

Weimholt was further queried if the fact that DeShaney had built her own computer would indicate a rather advanced knowledge of technology and also fairly strong computer skills. He responded: "She -- It would mean that she's more than an average person, but I don't know that that indicates how advanced that she is. She was able to plug in and unplug certain boards in her computer." (Weimholt Dp. pg. 68)

Weimholt's July 25, 2002 Vocational Rehabilitation Assessment/Evaluation report was marked at Weimholt's deposition as Employee's Deposition Exhibit No. 2, and Weimholt agreed that his opinions were expressed in this report based on his evaluation of DeShaney. The July 25, 2002 report was offered into evidence with no objections by the employer/insurer and subject to cross examination of Weimholt by the Second Injury Fund which was performed at the deposition. See, Weimholt Dp. pg. 9. In his July 25, 2002 report, Weimholt included the following:

Consideration of my experiences in vocational rehabilitation and job placement. Based upon my experiences in providing job placement assistance, vocational training or re-education, conducting labor market surveys, the analysis of the DOT for transferable job skills as well as other entry level jobs, and the particulars of this persons vocational profile it is my opinion that she is not a candidate for vocational rehabilitation and that no realistic vocational or job goal can be identified. Her multiple medical problems would preclude full-time educational attendance and she would have considerable trouble with note taking and test taking although there are some kinds of accommodations that can be made for these activities.

In my opinion, her multiple medical conditions including low back problems, chronic shoulder problems and chronic upper extremity problems, use of pain medications, self-reported symptoms, and depression indicate to me an inability to profit from job placement services. I have found that persons matching Ms. DeShaney's background who must refrain from hand intensive and repetitive upper extremity use are among the most difficulty cases that I encounter in terms of providing vocational goals that can be determined for her.

I found Ms. DeShaney to be cooperative and forthcoming during the vocational interview. Her self-report of limitations are consistent with what has been reported in the medical records. She has demonstrated a desire to work with the pre-existing conditions. I did not any observe her to attempt to be manipulative or evasive during the interview and I did not note any tendency toward anger toward her previous employer. It is my opinion that given all the factors I have considered above, that Ms. Donna DeShaney is totally vocationally disable from employment. It is my opinion that there is no reasonable expectation that an employer, in the normal course of business, would hire her, or that she would be able to perform the usual duties of a job that she is qualified to perform. It is my opinion that she has become totally disabled as a result of the multiple medical conditions reviewed and listed in this report including the injuries while she was working with MEMC Electronics including those of April 1998. (sic)

James M. England, Jr., a rehabilitation counselor, testified by deposition on behalf of the Second Injury Fund (Roman Numeral II). Agreeing that he performs vocational evaluations in workers' compensation case, England stated that at the Second Injury Fund's request he performed a vocational records review of DeShaney. As part of my review of the records, England said, I had an opportunity to review the evaluations and depositions of Dr. Emanuel and Dr. Musich, as well as DeShaney's deposition. He agreed that he did not personally meet with DeShaney. Stating that he did not feel that by not meeting with DeShaney he was missing any information necessary to complete a vocational evaluation, England added:

"Particularly in this case, I mean, there was so much information to review and it was so thorough, I really cannot imagine what else I could have asked that had not already been asked by either the doctors or Gary

or the various people that evaluated her, treated her, that type of thing." (England Dp. pg. 8)

England agreed that from the information he was provided he was able to glean DeShaney's history of events, injuries, current complaints as well as her family and social background, her educational background, and a vocational background.

Agreeing that he had found skills that DeShaney had acquired that would be useful in a less physically demanding job, England testified:

"......She had had typing and computer training in the past that I think would be useable, even down to a sedentary level of exertion, in clerical kinds of occupations such as customer service, receptionist, data entry, general office work, just a variety of things where that type of knowledge that she had acquired in the business training, business college training that she had, that would be useful." (England Dp. pp. 9-10)

England agreed that he was able to obtain functional restrictions and limitations from the information provided. England's vocational evaluation report was marked as Deposition Exhibit B and was offered into evidence without objection (See England Dp. pg. 10); he stated that he would testify in accordance with his report.

Agreeing that he was able to reach some conclusions after reviewing all of the information provided, England testified as to his conclusions:

"At the time that I reviewed the information, Ms. DeShaney would have been considered a younger worker under U.S. Department of Labor guidelines. She had a GED. She also had some post high school vocational technical training, particularly business, computer, that type of training.

There were really a wide variety of opinions as far as her functioning. I thought that, from a physical standpoint, we had opinions from several doctors that thought she would be unable to do any type of work just based on physical restrictions, and I think, in particular, I remember Dr. DiFilippo indicating that he did not think she could use her hands to do either gross or fine dexterity, and if you cannot do that, it doesn't really leave much ability to do work. There was also an indication that her depression gave her a GAF score of 30. If that is the case, I think that could certainly disable her by itself.

The only doctor, I think, that seemed to vary from the ones that thought that she was disabled, was Dr. Kuhlman who indicated that he had reviewed some surveillance and based on that and his exam, he thought that she could go back to work without essentially any physical restrictions. And I think that depending on the degree of depression and the ability or the effect that it has on her functioning, you know, she might benefit at some point in the future, but I don't think based on the information that I saw in here, that at the time of my review, that she is really employable.

And thought that based on, again, what I saw in review of the films, she felt she had been disabled, and I think the -- you know, that there were reports in there that she has been unable to really do normal full-time regular work activity all the way back to 1997. So I don't -- I guess as far as a -- from a vocational standpoint, I didn't really see a combination with another injury because she -- there was some discussion from some of the doctors that didn't feel there was a primary injury.

But, I mean, the bottom line is, I think, my opinion as really a vocational opinion, that it appears to me based on the preponderance of medical evidence that she has been unable to really fully work since 1997." (England Dp. pp. 10-12)

England was asked if he had noted the date that Social Security had used as the date for DeShaney's disability. He answered: "According to their records, they dated it 11/6/97." (England Dp. pp. 12-13) England agreed that the GAF score of 30 he had noted was from Dr. Anderson, and this had occurred while DeShaney was admitted to the psychiatric ward in April of 1998.

On cross examination by the claimant, England agreed that prior to the last accident of April 1998 DeShaney had substantial pre-existing disabilities that would serve as a hindrance and an obstacle to obtaining and maintaining employment. For example, DeShaney's low back had a permanent restriction by Dr. Martin of 30 pounds for a low back injury or degenerative disc disease, and this would be a hindrance and obstacle to her employability because it would knock her out of moderate and heavy work demand categories of employment, England agreed. He agreed that DeShaney had pre-existing bilateral carpal tunnel syndrome in the mid 90's and a left lateral epicondylitis in 1984 with surgery; England agreed that if someone had restrictions that prevented them from doing repetitive fine motor skills in their hands, this would too serve as a hindrance and obstacle to one's employment in the labor market. England agreed that if DeShaney's depression was not well controlled that could lead to rather significant impediment in the open labor market even in sedentary positions.

In regards to what he knew of the nature of DeShaney's employment at MEMC in April 1998 and during the weeks and months preceding that, England testified:

"All I know is that she said in April of '98, she was working only three days a week, four hours a day. And she said in April of '98 she was working in the clean room running two different machines and that she would handle anywhere from 5 to 25 pounds on a light duty assignment that she had been on for several months. I mean, that is what she said in her depo." (England Dp. pg. 18)

England was queried - Wouldn't this suggest to you that DeShaney was capable then of functioning in the open labor market at the time of her last injury, the fact that she was employed and doing a job that required her to move between 5 to 25 pounds? England answered:

"Well, I think it certainly indicates that she was able to do some part-time employment. I think from what she testified to in her deposition, she obviously liked her employer. They obviously must have liked her because she said that there were multiple times that she would miss pretty substantial amounts of time and then would be allowed to come back. She said she would be off from 6 weeks to 2 to 3 months and then was allowed to come back, so, I mean, that -- I would say they must have liked her and she must have liked them." (England Dp. pg. 19)

England was asked if it was his conclusion that DeShaney is totally disabled, just that there is not a combination of working between the last accident and the pre-existing conditions that DeShaney suffered. He answered: "I guess what my conclusion was, that I think she was disabled based on what she testified to. I think she really was not able to do regular full-time employment even before '98 -- even before the '98 injury." (England Dp. pp. 19-20)

On redirect examination, England was asked if a history of working three days per week, four hours per day, with missing periods of work ranging from 6 weeks to 2 to 3 months -- is that considered competitive employment? England answered: "Well, I mean, she was working in a regular employment setting, but I think there was certainly a lot of accommodation that would be unusual compared to most what -- what is required of most workers. I mean, that is a lot of time missed." (England Dp. pg. 20)

It is found as follows. The claimant, DeShaney, is alleging that she is permanently and totally disabled. DeShaney testified that she did not return to work subsequent to a work related injury at her employer, MEMC, in April 1998. The claimant also testified about numerous pre-existing conditions and injuries that are found to have been hindrances or obstacles to her employment, i.e. the evidence reveals loss of time from work due to these conditions and injuries such as bilateral carpal tunnel, and the claimant testified about these conditions or injuries affecting her ability to perform her work duties; further there is evidence that some of these pre-existing conditions and injuries resulted in permanent partial disability. At issue in this case is what permanent disability, if any, for the work related April 1998 injury, and also what

liability, if any, is there for the Second Injury Fund.

"Under § 287.220 RSMo Supp. 1984, liability may be imposed upon the Second Injury Fund in two instances: (1) when the combination of a preexisting disability with a compensable disability results in a greater disability than the sum of the two disabilities considered independently, the Second Injury Fund is liable for the difference between the sum of the two disabilities and the disability resulting from their combination, or, (2) if the compensable disability is partial but when combined with the preexisting disability results in total permanent disability, the Second Injury Fund is liable for the compensation due the employee for permanent total disability, but only after the employer has paid the compensation due the employee on account of the disability resulting from the compensable injury." Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576 (Mo.App. E.D. 1985)

"In order to recover from the Fund, a claimant must first prove a pre-existing permanent partial disability whether from compensable injury or otherwise, pursuant to $\S 287.220 .1$. The permanent disability pre-dating the injury in question must 'exist at the time the work-related injury was sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed.' Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214 (Mo.App.1999). In this case, Karoutzos sustained a severe crushing injury to four fingers on his left hand while working at Quality Wood in 1984, and the Fund does not contest that this injury qualifies as a pre-existing injury under § 287.220.1.

Second, 'a preexisting disability must combine with a disability from a subsequent injury in one of two ways: (1) the two disabilities combined result in a greater overall disability than that which would have resulted from the new injury alone and of itself; or (2) the preexisting disability combined with the disability from the subsequent injury to create permanent total disability.' Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522, 526 (Mo.App.1999) (citation omitted). There are no specific requirements when the pre-existing disability and the primary injury combine to cause permanent total disability. Id.

Total disability is defined as the inability to return to any employment and not merely the employment in which the employee was engaged at the time of the accident. § 287.020.7. 'The test for permanent total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment.' Reese, 5 S.W.3d at 526. 'The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this employee in his or her present physical condition.' Id." Karoutzos v. Treasurer of State, 55 S.W.3d 493, 498 -499 (Mo.App. W.D., 2001).

It has been determined in this case that there is competent and substantial evidence establishing that the claimant sustained a work related accident resulting injury in April 1998, that injury determined to be suggestion of focal incomplete tear and/or tendonitis in the supraspinatus tendon at the attachment to the humerous, or a possible partial rotator cuff tear of the left shoulder. Considering the evidence, i.e. Dr. Musich's opinions, it is found that there is competent evidence that supports a finding of permanent partial disability as a result of the April 1998 work related injury of 20\% permanent partial disability.

The remaining issue is the liability of the Second Injury Fund; whether or not the evidence establishes that a combination of the claimant's work related disability combines with her pre-existing disability to result in additional permanent partial disability or permanent total disability.

The term "total disability" is defined in Missouri workers' Compensation law as an "inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident". Section 287.020.7 RSMo 1998.

Again, the test for "permanent total disability" established by case law is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. In this case, it is found that the substantial weight of the evidence supports the claimant's testimony that she never returned to work after April 1998. Additionally, there is substantial evidence establishing that the claimant was off work for long periods of time due to illness prior to April 1998. The evidence goes on to reveal, though, that the claimant was able to resume working at MEMC Electronics prior to April 1998 after being off for long periods of time due to illness. Consequently, notwithstanding vocational rehabilitation counselor England's opinion that DeShaney has been unable to fully work since 1997, it is found that the evidence in this case concerning the claimant prior to April 1998 would not meet the definition of "total disability" in that the claimant returned to employment, and would not meet the test for permanent total disability prior to April 1998 in that the evidence reveals that the claimant's potential for returning to work was met and an employer, in this case MEMC, did hire the clamant in her physical condition which was limited by work restrictions.

Considering the evidence subsequent to the April 1998 work related injury: A) Dr. Houser on 3/12/98 diagnosed DeShaney with severe depression and nausea due to gastric bypass surgery, and after treatment released DeShaney to work with restrictions on 03/26/98 due to the same diagnoses; on 04/30/98, Dr. Houser wrote in his treatment note that DeShaney reported "the lifting that she has to do at work really flared up he shoulder pain and the nausea and everything else, and has thought about hurting herself but has no definite plans yet, Dr. Houser further wrote on 04/30/98 - "She's really been disabled since 4/24/98"; in his 08/06/98 entry Dr. Houser indicated his opinion that DeShaney continued to be disabled, writing - "Patient I think is pretty disabled from her pain and her depression and all her other problems". B) Dr. Martin, who had last seen DeShaney in July 1997 following bilateral carpal tunnel release treatment, noted that he was seeing DeShaney on 06/11/98 by referral from Dr. DiFilippo for evaluation of neck and left upper extremity pain, which Dr. Martin ultimately wrote that DeShaney's symptoms were more consistent with a primary shoulder pathology than a true cervical radiculopathy. C) Dr. DiFilippo noted in a May 5, 1998 entry that he was seeing DeShaney for complaints of pain about her neck, lower back, and also left upper extremity and shoulder and radiating down the arm; Dr. DiFilippo wrote on 07/07/98 that DeShaney was having pain in the area of the left shoulder and lower back, and 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.

Dr. DiFilippo wrote in a 10/13/98 entry of DeShaney's continuing physical problems, and further wrote "She'll be off work at least over the next year and she's applying for disability. D. Dr. Anderson's record indicated that he hospitalized DeShaney on May 1, 1998 (apparently for about four days, as the evidence reveals that DeShaney was seen by Dr. DiFilippo on May 5, 1998) because of severe depression; the doctor wrote, though, a history that included many problems for DeShaney:

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.

Dr. Anderson again noted in the Social History section of his may 1, 1998 entry: "She had been back to work on a part time basis working six hours three days a week, but was unable to tolerate that." Dr. Anderson's diagnoses on May 1, 1998 were: 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. E) Dr. Ross, on 06/22/98, noted that DeShaney was currently treating, undergoing physical therapy on the right elbow and left shoulder; in a 06/30/98 entry it was noted that DeShaney had requested a letter stating she could not work due to pain, and it was written that the doctor requested to have the disability office send him forms to fill out. F) Weimholt, a vocational rehabilitation expert, opined:

In my opinion, her multiple medical conditions including low back problems, chronic shoulder problems and chronic upper extremity problems, use of pain medications, self-reported symptoms, and depression indicate to me an inability to profit from job placement services....... It is my opinion that given all the factors I have considered above, that Ms. Donna DeShaney is totally vocationally disable from employment. It is my opinion that there is no reasonable expectation that an employer, in the normal course of business, would hire her, or that she would be able to perform the usual duties of a job that she is qualified to perform. It is my opinion that she has become totally disabled as a result of the multiple medical conditions reviewed and listed in this report including the injuries while she was working with MEMC Electronics including those of April 1998. (sic)

It is found that there is substantial competent evidence, including the claimant's testimony, establishing that the claimant, DeShaney is permanently and totally disabled as a result of the combination of her last injury, that being the work related injury herein occurring in late April 1998 while working at MEMC, with preexisting disabilities. It is found that the evidence establishes liability for permanent total disability with the Second Injury Fund. Considering the evidence and findings, it is found that the Second Injury Fund is liable to begin payment of permanent total disability benefits to the claimant 46.4 weeks subsequent to date indicated by the evidence that the claimant was deemed at a permanent disabled state, the date stated by Dr. Houser of April 24, 1998; it is found that once the 20\% of the left shoulder permanent partial disability benefit owed by the employer/insurer for the worked related April 1998 left shoulder injury ends in 46.4 weeks after April 24, 1998 (or from about March 16, 1999), the Second Injury Fund is to pick the permanent disability payment from that point forward for permanent total disability for the life of the claimant at the same rate stipulated to by the parties of $\$ 240.00 /$ week.

Donna Jean DeShaney, the claimant, testified that she is 55 years old. My date of birth is 4/19/52, DeShaney said. DeShaney agreed that she was on medication at the time of her testimony at the hearing, and listed those medications from her written list - Cymbalta, Geodon, Gabitrel, Gabapitin, Deplin 75, Trazadone, Ambien, Prevacid, Laboxso, Abututron, and Butatron SR. DeShaney stated that none of these medications had side effects that would effect her knowledge or prevent her from testifying truthfully at the hearing. She stated that some of the medications did have side effects that she experiences. I have dizziness from some of them, the claimant explained, and my concentration, I have trouble concentrating.

DeShaney testified that her current address is in DeSoto, Missouri, and that she has lived here for five years. It is a mobile home, she said. I live there with my boyfriend, DeShaney stated, we have been together for 18 years. We do not have any children together, she said. I have children, the claimant stated, their names are Michelle, she's 31, Diane, she's 36, Theresa, she's 39, and I've got a son named Donald and he's 40. DeShaney stated that none of these children are currently dependent upon her for support, and none of them live with her. The only people that reside in the mobile home are myself and my boyfriend, Jay Allen Bauer, DeShaney said. The highest grade that I completed was seventh grade, the claimant stated, and agreed that she had left school sometime in the 8th grade, in about 1967. Explaining why she had left school at that time, DeShaney stated I was pregnant and I got married. I ultimately obtained my GED in about 1981, DeShaney said. The claimant was queried if she had had any employment outside the home between 1967

and 1981, that thirteen or fourteen year period of time before getting her GED, and she answered - No. She agreed that during that time she was rearing what were then her small children, and added that she did babysit some in the home.

After getting my GED in 1981 I got other education, DeShaney stated, I went to Brown Business College for clerical bookkeeping which I completed in 1983. I never had a job as a bookkeeper, DeShaney said, and I never worked in an office. Agreeing that she has had other training other than the Brown Business School, DeShaney stated I went to Control Data for computer technology where I got a certificate for computer technology. It took a little over a year to get this certificate, the claimant said. It was full time program, she stated, I went Monday through Friday. I got the certificate in about 1985, she said. Other education, DeShaney said, I took some classes at St. Charles Community College and at Flo Valley, but I did not complete any type of degree program. She was asked if she had any idea how far she had gotten as far as freshman, sophomore, junior, senior; how many credit hours she had. I more or less just went one semester at each college, DeShaney responded. I have never had any professional licensure, like real estate or insurance, the claimant said, and I have never applied for anything like that.

As far as the computer field goes in the 1980s, DeShaney said, I was able to obtain a job in that field. I worked for one small company for like three months in St. Charles, and then a guy that I worked for found a bigger company and had a better job for me and that was Applied Microsystems on Brown Road in St. Louis County. At Applied Microsystems I assembled circuit boards, did wiring harnesses, trouble shot circuit boards, DeShaney stated, I built circuit boards. She agreed that this was a full-time job, 40 hours a week. I worked for Applied Microsystems for probably four or five years, DeShaney said. She was asked to describe the types of physical things she had to do at Applied Microsystems in order to accomplish those tasks. I had to have a lot of hand dexterity because I was picking up little components and putting them in circuit boards, DeShaney stated, I had to be able to use the (wire scraper/stripper), soldering iron, and stuff like that when I assembled the circuit boards. She agreed that she was required to assemble so many boards in the course of a shift. It was noted that it has been 20 years or more, but DeShaney was asked if she had any recollection as to how many. Probably maybe 20 in a day, she answered. It was a pretty fast pace, she said, in terms of the pace of the job. She was asked if the job required the ability to lift, push, pull; things of that nature. I had to lift the circuit boards and then we had a piece of equipment that was in a metal box, and I would have to lift them sometimes, DeShaney stated. And I had to pull all my own parts for all my assemblies that I did, she added. A circuit board that I had to lift, when it was completed, weighed maybe a pound or two, the claimant stated. DeShaney agreed that the lifting requirements at that job were fairly light. After I left Applied Microsystems, I went to work for MEMC Electronics where I started on May 30, 1990. My last day that I worked for MEMC Electronics was in April of 1998, DeShaney said. She was asked if she remembered a specific day in April of 1998, and DeShaney responded - No, I don't. She agreed that it was the day that she last injured herself that is the subject of this claim.

When I started working for MEMC, DeShaney testified, my first job to run a lapper. It was a great big dish with like a top come down on and actually rubbed the pieces together in the unit, she said, and it held about twelve slices at a time. They had certain spots inside the lapper where you put each slice, and you put them on and you'd let them run for so many minutes because it was lapping them down, taking some of the product off, DeShaney stated, making them thinner. And then I would have to take them out and dry them, and then I'd have to take them over and put them in a unit where we put them to rinse, she said. Then once they rinse, I had to take them out of there and put them in a dryer, the claimant stated. It was noted that DeShaney used the word "slice", and there were other times she use the term "wafer". They're both the same, she responded. She explained that at MEMC a slice or a wafer is a silicone wafer that they print the circuit boards and stuff on for computers, radios, anything; any kind of circuit board can be put on it. That's what MEMC does, she stated, they make the product, they don't put anything on the circuit board. The slice or the wafer is twelve inches and weighs less than a pound, DeShaney said. I had to handle them one at a time, she said. She was asked - in running a lapper, how many of these wafers would go into the lapper at a

time. Twelve to fourteen, DeShaney answered. Indicating that she would then take that twelve to fourteen out, DeShaney further stated she would reload it again, move the twelve over, rinse and dry. She stated that it was hard to put a number on how many of these she did throughout the course of a day while she was in the lapper department. We went by lots, she said, and we would have a lot maybe that would have 350 slices in it or maybe 250 slices in that particular lot, and I would run usually 8 to 10 lots a shift. She agreed that when she did eight to ten lots a shift, she could be talking about handling a couple thousand wafers a day. I did the job in the lapper department a little over a year, DeShaney said. She agreed this would have been in the early 1990s. My next job at MEMC was I went to laser mark, DeShaney stated. In the laser mark department the machine set in front of me, and I'd have a rack of wafers setting on this side, and I'd take a wafer out, the claimant said. I'd have to open a door, put the slice in the unit, and then I'd have to push a button to lock the slice in, she said, and then I had to close the door and reach up and hit a button up on the machine. Then after it marked, I would have to open the door again, push the button, take it out, and put it in my left hand and put it in a cassette on the left side, DeShaney testified. And two wafers out of every cassette had to be measured for dot depth, which I used another piece of equipment that measured how actually deep the dot was; the dots were in the slice, the claimant stated. She agreed that again she was picking up the individual wafer weighing less than a pound, and when she was done, she was putting them in a rack. I did a rack of 25 at a time, DeShaney stated, and I'd take them from one rack and put them in another rack of 25 , and then once I got them done, I end up putting four racks in a tub. She agreed that she would put four racks of 25 wafers in a tub, or she would put 100 wafers in a tub. I would then take the tub over and put it on a rack of wheels because we just kept stacking the tubs up, the claimant stated. It was a very fast paced job, she said. In the laser mark job on a twelve-and-a-half-hour shift it was nothing for me to do like 1800 wafers to 2800 wafers in the course of a day, DeShaney said. She agreed that what she was marking was the actual wafer. It was actually a laser mark that consisted of letters and numbers that went on it, she said. She agreed that this was to help identify the wafer, and further stated that the wafer went all through the process by that number. I worked at the laser mark job, I'd say at least six to seven years, DeShaney stated. After that job I worked in an area called thickness sort, she said. I'd be required to pick up racks of wafers, and the machine held like twelve racks, and I put a full one on there, and for thickness they would go to any one of the ten different racks that was on the machine, DeShaney testified. We kept doing them until we would get all the wafers run in that lot, she said, and then once we would have to take the 25 lot to set off the machine, put it in a tub, and replace it with another rack; and we did that until the whole lot was run through, so they stayed in different sizes. This was more like at the end of the process with the wafers, she stated. I started in the thickness sort job in maybe 1995 or 1996, DeShaney said, and I did this job for probably a little over a year. I did one more job at MEMC, DeShaney stated, I worked in LE MAT and FTIR department, starting in probably early 1997. I ran the LE MAT and the FTIR machines, she said. On the LE MAT we would take one wafer and put it down in the machine where it would go down into chemicals and stuff, and the machine would read the contents of what was in the wafer, certain levels of different things in the wafer; and it would print it out on the computer screen, and it would also print it out on paper, DeShaney testified. And we would have to enter all that data into the computer, she said. Agreeing that she would personally enter the data into the computer by typing it in, DeShaney further stated that they had to use the keyboard to run the machine, too. When that process in the machine was completed, we would take the wafer out and put it in a rack which handled 25 wafers, she said, and when I had 25 wafers in the rack, then it would go in a tub. The tubs are probably two, two and a half foot wide and are completely square, and are probably ten to twelve inches high, the claimant said. They each held four racks, she said. When I completed four racks of wafers and had them in a tub, I would take this tub with the 100 wafers in it and I would slide or scoot the tub onto a rack with wheels, and then I would move the rack with wheels with full tubs on it to polishing. At that time in addition to working in the LE MAT machine, I was also working on the FTIR machine, DeShaney said. It also measured the contents of certain chemicals that was in the wafer, she stated. DeShaney agreed that each wafer would have to go in both machines. She agreed that when the wafer came out of the FTIR machine, would it also go on a rack and then onto the tub, and she would have to also slide

this tub over onto the rack of wheels. DeShaney agreed this was a job she had in April of 1998. In April of

1998 the number of wafers I was doing depended on how much work we actually had, DeShaney stated, and it depended on if I was having a good day or a bad day. I'd say I would probably run about three lots, the claimant stated. She agreed that she was saying that on an average day it could be 6 to 900 wafers.

DeShaney agreed that in April of 1998 she sustained an injury while she was employed at MEMC. Describing how the injury occurred, DeShaney testified I had a stack of tubs, and I had two tubs and I had a tub on top of that that actually had wafers in it, and I had three tubs on another set of wheels that I had finished, just finished that tub. And I was trying to get that tub over onto the next pile, and when I went to do it, the wheels didn't have no locks or anything on them, and when I went to scoot it over, the wheels took off pretty quick and it more or less jolted me down to my left because the wafers almost went all the way to the floor before I managed to finally get them. Somebody came over and helped me, DeShaney said. She agreed that at the time that this occurred she had a full tub of wafers. She was queried if a full tub of wafers would have been 100 wafers, and DeShaney responded - Yes, about 30 pounds. She agreed that this would include the weight of the wafers, the racks, and the tub. I was holding this in both of my arms, DeShaney said. I was trying to put that tub on top of three empty tubs, she stated. She agreed it was three empty tubs that were already setting on a rack of wheels. Describe the position of her body, DeShaney stated I was up like this and the tubs were probably about this high, and my other ones was about waist high, and I was trying to slide the tub off of this rack of wheels over to this tub, and when I started to do it, the tub went sliding off to my left. And when it did, I had no way of stopping it from rolling, and it was hard for me to lift that kind of weight, she said, that was why I would try scooting it instead of just actually lifting it. So whenever the thing started scooting away, I lunged to this way, was trying to catch it and still keep it on the cart and the wafers eventually got away from the cart, and it lunged me down and the wafers pretty well hit the floor, DeShaney stated. Then somebody come over and helped me get them back up, she said. The claimant agreed that when the rolling cart moved, she ended up holding 30 pounds of wafers, racks, and tubs with both hands. She was asked if it was on her left side. Yes, but I was in a strained position holding them, DeShaney answered. I don't remember who it was who came over to help me, DeShaney stated, because we work with so many different people everyday and people work in different areas. I don't remember, she stated. She was asked if she remembered who her team leader was that day. Marsha Atkins, DeShaney answered.

The claimant explained the responsibility of a team leader. Well, we all worked in teams, and we really didn't have a supervisor there that you could hardly ever find because they were always off in meetings and stuff, DeShaney stated. So we would pick a team leader and that team leader was just a regular employee like we were, but if we had any problems or anything, we would go to that team leader, and tell them if we had any problems, what was going on, or if we needed equipment or if the machine was down or whatever. She agreed that it was the regular practice at MEMC to pick a team leader for that particular day or shift. Every shift is run like that, DeShaney stated, it's run on the team concept. She was asked if she had told her team leader that day, Marsha Atkins, about what occurred. I didn't tell her that day because I didn't know what I did, but there was two women in there that seen what happened, and they knew that I hurt myself, but I didn't know if it was something that was just going to go away or not, DeShaney answered. So I went home and I couldn't move my arm away from my body, and I couldn't turn my neck either way, so I went home and went straight to bed, DeShaney said, and the next morning I got up I called into work and that's when I reported to Marsha Atkins that I had hurt myself. Marsha was nowhere around for me to tell her the day that it happened, DeShaney stated, I didn't know where she was. She was asked what time on that particular work shift that day did she hurt herself. It was near the end of my shift, DeShaney answered. She was asked if she had felt any aches, pains, discomfort, or anything when that event occurred. Oh, I had a real sharp pain, DeShaney answered. It more or less took my breath away, and I just had to stand there for a minute, I couldn't do anything, and then they helped me get the tub up on the thing. I just sat down; I wasn't able to do anything the rest of the shift, DeShaney said. She was asked where did she experience this real sharp pain that she felt that almost took her breath away. It was in my shoulder and my neck on my left side, the claimant answered. It was noted that DeShaney had said when she went home, she was

having difficulty; she was asked what she was having difficulty, was it with movement. DeShaney answered - Yes. I couldn't move my arm away from my body, and I couldn't turn my neck one way or the other, DeShaney stated.

The claimant agreed that at the time that this injury occurred, she was already on light duty. She was asked if she recalled approximately how many hours a day she was working. I was working three days a week, six hours a day, DeShaney answered. I don't remember how long I had you been on light duty, she said.

DeShaney agreed that she had said after this injury, the next day she called in and reported it. She agreed that she went to a doctor, Dr. DiFilippo. The claimant agreed that she had been seeing Dr. DiFilippo already. I had been seeing him already for low back problems and upper extremities, DeShaney said. Dr. DiFilippo ordered an MRI, DeShaney stated.

It was noted that the injury occurred in April; DeShaney was asked if she remembered the day in April. No, she answered. She was queried - But you did not return to work that day, is that correct? The next day, no, I couldn't, she answered. I never returned to work at MEMC, DeShaney said. I never went back to work anywhere, she stated.

DeShaney was asked if she recalled approximately when Dr. DiFilippo had ordered the MRI. It had to have been just within a few days after the accident, she answered. As soon as I could get in, the claimant added. She agreed that the MRI was to her left shoulder. She was asked her understanding of what the results of the MRI were. I had an incomplete rotator cuff tear on the left side, the claimant answered. DeShaney agreed that she had treatment for this, adding that the doctor saw her for a while, but she didn't know exactly what the doctor did. I never had any surgery for it, she said.

DeShaney testified as to what difficulties she now has with her left shoulder. I can't hardly get my arm around behind me to fasten my bra, she stated. And combing my hair makes a difference, holding the telephone; I can't lay in bed and try to put my arm underneath my pillow, or like if I'm in a car and try to put my arm up on the back of the seat -- I can put it up there for a little bit but it starts hurting and I have to actually use my other hand to take it down because with the pain I just can't maneuver it by myself. She was asked how would she describe her range of motion in the shoulder. It's limited, DeShaney answered. I can raise it out in front of me, she said, but to raise it up over my head, that's difficult, I can do it, but it's painful. The claimant was asked about strength in her left arm and shoulder. It's the same as it's been for the last few years, she responded. She further stated that it is not the same as it was before the injury. Before the injury I could use my arm and stuff, you know, I could move it; I could do the things that I said I can't do, DeShaney stated. She agreed that she was handling several hundred wafers a day.

It was noted that DeShaney had testified about the medications she is on, and she agreed that some of them are pain medications. It's Darvocet, she stated. DeShaney agreed that it helps the pain in her left shoulder. Testifying as to other things she does in order to alleviate the pain in her left shoulder, DeShaney stated l've got a whirlpool tub and I get in that with real hot water and lay in that -- that helps my shoulder some. Agreeing that she uses something like a heating pad, the claimant said l've got a heating pad, and then there's times I use a cold pack too. She was asked, in regards to your shoulder, how often do you have to use something or take something to try to control the pain? I've built up a high tolerance to pain, and I try not to take anything if at all possible because I know it's not doing my stomach any good to be taking a lot of medication, but usually like every other day or so I have to take something for it, DeShaney answered.

DeShaney discussed prior problems she had before her left shoulder problem. She agreed that she was on light duty, and that she had had a surgery for gastric bypass. I think I had that surgery on December 17, 1997, DeShaney said. I don't really know how long I was off work from that gastric bypass, the claimant

said, probably maybe four to six weeks. She agreed that she went back to work from that, and that was one of the things that had her on light duty. Agreeing that she was having difficulties following her abdominal surgery, DeShaney stated I had difficulties with nausea. Sometimes I would throw up but if I eat just a few bites, my stomach would feel real nauseated, she explained. I was on medication for this, DeShaney said, Prevacid. She agreed that she is still on it. The claimant was asked to explain about during the time when she was on light duty and she said she was nauseated, how many days a week or hours in a day did she have that nauseating feeling. If I didn't eat, I can pretty well get over it, DeShaney answered, but if I would try to eat a little bit, then I would get the nauseous feeling, and sometimes it would take a couple hours for it to go away. I was throwing up some when I was nauseated, but not a whole lot, she said. She was asked how this had affected her in terms of strength, energy, things of that nature. I was weak, DeShaney answered.

Prior to the gastric bypass I had had bilateral carpal tunnel, DeShaney agreed. Explaining when this had occurred, DeShaney testified I started having problems with it probably late 1992, early 1993. She agreed that she had filed a claim for compensation in which the date of injury was listed as April of 1995. DeShaney agreed that she was working for MEMC at that time. My job when this developed was laser mark, DeShaney stated. She agreed that she had had surgery on both hands. I think one surgery was in May of 1995 and the other one was I think in June of 1995, DeShaney said. Dr. Stanley Martin did the surgery, the claimant said, and they were done at St. Joseph's Hospital in St. Charles. I'm not sure how much time I missed from work as a result of the surgeries, DeShaney said, I was just out the normal amount of time that they allowed for the surgery. She agreed that after her surgeries and after she returned to work, she returned to work full duty. Typically, I was working three days a week, twelve-and-a-half-hour days, DeShaney stated. A few months later I was eventually put in braces that went all the way from my arms, my elbows down to my wrists, DeShaney stated, because of all the problems I was having with my arms. The problems were pain, numbness, weakness, she said. DeShaney agreed that this was one of the reasons in addition to the gastric bypass that she was on light duty. Dr. DiFilippo prescribed the braces for me, DeShaney said. She agreed that she was using those braces in her job at MEMC, and agreed that she had those braces on at the last job of FTIR and LE MAT. DeShaney agreed that on the day that she injured her left shoulder, she had braces on both hands. The claimant was questioned more about the problems she was having in both hands. She agreed it was numbness and pain in both hands. DeShaney stated that she is right hand dominant. In terms of numbness in my right hand, she said, it was in my wrists and going down into pretty much all five fingers. She stated that this was aggravated by the work that she was doing. DeShaney agreed that the numbness extended back from her wrists going backwards up into her arms. It would come up sometimes up close to my elbow, she stated, and when I would work a shift, my wrists would swell just from me doing the repetitious work and both my wrists would even swell. The claimant was queried - And on a scale of zero to ten with zero being pain-free and ten being laying in the hospital room screaming kind of pain, incapacitating kind of pain, do you have any rough idea of what estimate that you give in terms of your right hand and arm? Four to five, DeShaney answered. She agreed that it was numb and painful at the same time. Agreeing that she had a brace on her left hand as well, DeShaney testified that it was pretty much the same, but it wasn't near as bad as my right hand. My right hand was the worst one, she said. Describing where the numbness was, DeShaney stated it was pretty well in my wrist going down into my hand, the same as on my right hand. She agreed that it extended up her arm as well, up mid arm to her elbow. Using that same scale, zero being pain-free, ten excruciating incapacitating pain, the pain in my left arm that I experienced in the hand up to the elbow was probably a three to four, DeShaney said. She was asked how long after the surgeries had the pain and the numbness that she had described in her arms had been that way. It's pretty well been that way ever since my surgeries, DeShaney answered. She was asked if it was that way now. I still have the numbness and the pain, DeShaney answered, it's not near as bad as it was, but I still have numbness in my hands.

DeShaney agreed that in addition to the carpal tunnel, she had a right elbow injury at MEMC. Explaining the problems she was having in her right elbow, DeShaney testified whenever I would try to lift anything at all, I would get a real bad pain in my elbow. Dr. DiFilippo ended up putting me in a brace that

went around the midsection of my arm, she said, and I wore that and if I had that on, the pain wasn't as bad. If I remember correctly, they said I had like tennis elbow, DeShaney stated. She was asked if this was a particular accident at work; one thing happening or was that due to the repetitive nature. Just due to the repetitive work that I was doing, DeShaney answered. She was queried if she had filed a claim for this dated March 1, 1996. I don't remember that one, DeShaney responded. After being shown an exhibit, DeShaney stated that she remembered. She stated that she did not surgery on her right elbow. She agreed that she wore the two braces on her arm at one time. DeShaney agreed that she was wearing both braces on her arm at the time of the April 1998 injury. She was asked how is her right elbow now. It's okay, DeShaney responded. It bothers me some, but not a whole lot, she said.

The claimant agreed that she has had difficulties with her left elbow in the past, and stated that she has had surgery on her left elbow. I was working at MCl , so the surgery must have been early 1980, she stated. The kind of surgery I had in the early 1980s on my left elbow, DeShaney testified, I think they called it an open nerve trans, because what they did is they took the nerve from the bottom of my arm and put it up on top my arm. She agreed that they called it an ulnar nerve transposition, and that she had this in the early 1980s. She was asked what kinds of aches, pains, or discomfort was she having in the left elbow at the time that she was trying to do all this work at MEMC. The main thing whenever I was having that, it was my arm and my wrist was going numb, DeShaney answered. That's mainly why I had that surgery done, she said. After I had the surgery, it took a while, but my your left elbow got better, DeShaney stated.

She agreed that at the time of this last accident she had already had surgery on her left elbow, her left wrist, her right wrist, and she had a brace on her left and right wrist and right elbow. DeShaney was queried - In spite of this you were able to do the work? Yes, DeShaney answered, it was difficult, but I managed to do it. She was asked why she was trying to continue to do that kind of work. Because I wanted to work, and I needed a job; I had to support myself, DeShaney answered. She was asked - After the injury to your left shoulder, why didn't you return to work? Because then when I worked prior to the injury, I couldn't use one hand to lift anything, I always had to use two. I had to use two to lift the tub, I had to use two to lift a rack because if I tried it in one hand, sometimes I would drop them, she stated. So everything I did I had to use both hands for, she said. Once I had the injury and I couldn't get my arm away from my side and I couldn't move my neck or anything, I no longer had that capability of having two hands that I could work with, DeShaney testified.

DeShaney agreed that she has suffered a low back injury in the early 1990s. Explaining what happened to her low back in the early 1990s, DeShaney stated I was on the lapper at work, and I was putting some slices in, and the machine was so tall that there was a stool that we had to stand on, and I was loading the machine and I was on the stool reaching at the back of the machine and the stool slipped out from under me and it pulled my back and put me in a strain from the way the position was that I was under the lapper. Explaining why she had to use a ladder, DeShaney stated it was because the lapper was so big around that in order for us to get back of the lapper and get the slices all the way around it, it was huge, we had to stand on something because we couldn't just reach them all the way around. DeShaney stated that she is 5'9" tall, and agreed that she still had to stand on a stool. She was asked how high off the ground would she have to get up on that stool to reach into the back of the machine. I would say the stool was probably about twelve inches high, she responded. She was queried - So you fell off the stool, is that what occurred? The stool slid out from under me, DeShaney responded. She agreed that she had injured her back. The treatment I had for my low back at that time, DeShaney said, I had steroid shots in my back. I was in physical therapy, she said, they put me in water therapy. I even went through a work hardening program partially due to my lower back, she stated. Dr. Adams, the company doctor at that time, performed the steroid injections, DeShaney said. I don't recall how many epidural steroid injections I received for my low back, DeShaney stated, I know I got a lot of them because he would give me like ten to fourteen shots at a time and I was seeing him every Friday. She agreed these were like trigger point injections. DeShaney agreed that she also saw Dr. McCallister at that time for her low back, and agreed that this doctor gave her a

restriction in terms of the amount of weight she should be lifting. I think the restriction was ten pounds, she said. I don't remember if Dr. McCallister gave me a final restriction after I dad completed my treatment on my low back, DeShaney said. She was queried - If the records reflected that the final restriction was 30 pounds, would you have any reason to agree or disagree with that? Yes, I disagree with that because that's what the tubs weighed, DeShaney responded. They had me on restrictions for a while with my back, but then they took me off of them after a while, DeShaney stated, then whenever I would get bad again, they'd put them back on me. I wasn't completely under restrictions the whole time, she said. The claimant testified about what problems she was having with her low back following the injury she had to her low back. Just real bad pain, she said. It would take my breath away, and I had pain radiating down into both of my legs, DeShaney stated. The pain like this was pretty well constantly, she said, on a daily basis. She agreed that she was able to continue to work with that.

DeShaney stated that the pain that radiated down her right leg went down to her knee, and her left leg was about the same. She agreed that work aggravated the condition or made it worse. She was asked to describe what about her work made the condition worse. When I was laser marking, I had to kind of set up in a chair, she said. I had a different position; I couldn't lean back in the chair because I was loading the machine and stuff, so that put a strain on my low back the whole time I was doing that, DeShaney stated. And then standing for so long amount of time would cause it to hurt, or sitting for so long amount of time would make it hurt, she said. She agreed that she had to alternate positions. DeShaney agreed that she had jobs at MEMC that allowed her to alternate sitting and standing. It would have been all the jobs that I have described as having done there allowed for some level of alternate sitting and standing, except for lapping which was all standing, DeShaney stated. She agreed that after the back injury she took medications for the back and continued to take medications. The medications I was taking in the 1990s for my back problem, DeShaney stated, I was taking Percocet, Skelaxin, an anti-inflammatory - I don't remember the name of the drug - plus I was taking a muscle relaxer. I was taking these as I needed them, the claimant said. She agreed she had had medical treatment for her back periodically. Dr. DiFilippo, and then I seen Dr. Anderson, DeShaney stated. I seen quite a few different doctors with my back, she said, Dr. Adams.

DeShaney stated that prior to the back injury, she had an injury to her right knee in the early 1980s. I was getting up ready to go to college and I opened the door to let my little dog out and when I did, I stepped out with her, and it was ice and I went down on my knee, DeShaney said, and I bent my -- strained my knee. Explaining the kind of treatment she got for her right knee, DeShaney testified they went in and did an arthroscopic surgery on m knee. I don't recall what doctor did this, she said, but it was done at Barnes St. Peters. The problems are experienced with my right knee after the surgery, DeShaney said, I could tell when it got cold or damp, my knee would hurt and like to try to get down on my knee and -- like lean on my knee or anything like that, I couldn't do that because of the pain.

DeShaney agreed that in addition she has also suffered from depression. I have suffered from depression for probably 25 years, she said. She was asked what triggered this, at least in her mind? In my second marriage my husband had an eight-month-old baby girl, and I didn't know anything about her until she was eight months old, DeShaney stated. And when I found out about it, he was upset because I was crying all the time and stuff. He used to beat me all the time, and then he divorced me, so it was just at that time that everything really started going bad, DeShaney testified. She agreed that this is why she went back to school, and why she got her degree in order to support herself. She was asked how many children did she have at that time. Four, DeShaney answered. She agreed that she raised them as a single parent. DeShaney agreed that she was treated for depression during that time. During that time I was seen at the Crider Center for a while, DeShaney stated, and then I was seeing a Dr. Bird, and now I'm seeing a Dr. Balter. The claimant agreed that she has been under the care of a psychiatrist for the depression for two decades or more. She agreed that there have been times when she has been hospitalized for depression. As of to date, three - five times, DeShaney testified. In the 1990s the symptoms my depression had on me was I had a hard time concentrating, DeShaney said. My aptitude is not as good; I can't -- I used to be able to figure everything in my head and I can't do that now, she said. I have trouble sleeping; I have trouble remembering

things, she stated. The claimant agreed that this has been a chronic problem now, stating l'd say it's been bad since about 1985. DeShaney agreed that there have been times during that time where she contemplated suicide. She agreed that has sometimes been the reason why she entered the hospital. And a lot it was just the pain because it's hard to live with the pain all the time, she said. DeShaney agreed that the pain that she has experienced from her right knee, her low back, her right wrist, her left wrist, her right elbow, her left elbow, her left shoulder all contributes, in her, mind to the depression. And the fact that I can't work, DeShaney added. She agreed that this is why she had kept trying to work.

DeShaney was asked - Back in 1998 and after the injury to your left shoulder and when you thought about not working, can you describe how that made you feel? I cried all the time because in my eyes at 47 years old you didn't go on disability, DeShaney answered. Agreeing that at that time she had looked at the want ads and things, DeShaney further testified I used to look at the want ads all the time and what computer techs was making, and it would just blow me away because I knew that if I could work, that I could be making that kind of money. The type of psychiatric medication I was on at that time were different than the list I just gave you, DeShaney stated, one of them was Ambien, Effexor, Remeron, Prevacid, Clonazepam; that's about all of them. DeShaney agreed that she still suffers from depression now.

The claimant agreed that she also has a thyroid condition. I have had this condition since the mid '90s, DeShaney stated. She agreed that she takes medication for it, further stating I take Levoxyl. DeShaney was asked if the thyroid condition affects her in any way. I get cold easy, DeShaney answered.

DeShaney testified about a day in her life, first noting that she takes three different sleeping pills to sleep. I take two 300 milligrams of -- I can't think of the name of it, DeShaney stated, and I take one Ambien and I take two Trazodone. I've been on these medications, I'd say, for four years, DeShaney said. She was asked how does she sleep. I wake up a lot at night because of the pain, DeShaney answered. It actually even hurts me just to lay on the bed, she said, there's a lot of times, maybe two, three, four o'clock in the morning, I wake up and I'm hurting and I can't go back to sleep, DeShaney stated. I just get up and go sit in the chair or do something for a while, or go watch TV or something because I can't sleep, she stated. She was asked if she rested or slept during the course of a day. No, DeShaney answered. I don't take naps, she said, but I lay down during the course of a day. It depends how often I down during the course of a day, DeShaney testified, it depends if I got a good day or a bad day. If l've got a bad day, I might lay almost the whole day, she said. If I have a good day I might just lay down for a little while, DeShaney said. If I hurt a little bit, I'll lay down, she said. I'd say out of a week I might have one good day, DeShaney stated. The claimant was asked, when you say bad days and pain, are you talking about the depression or are you talking about your arms or back. Just pain all over plus the depression, DeShaney answered.

DeShaney agreed that she vacuum, and explained how: I set on the floor and use the nozzle to vacuum. She explained that she sits on the floor because it kills her lower back and her arms to run a vacuum cleaner. I don't really do much dusting, DeShaney said, my boyfriend does a lot for me. I do very little grocery shop, DeShaney stated, he does most of the grocery shopping. She was asked if she helps him carry things in. No, he always carries them in, she answered. DeShaney stated that she sometimes goes to the store with him, and agreed that she is able to walk in the store. He's the type of person he usually just goes in for like one or two things at a time; he don't go in and do like a week's shopping at a time, she said. She stated that she is in the store very long at all. I do laundry still, DeShaney testified, but I just put a little bit in a basket, take it into the laundry room, and then I more or less set on the floor to fold it. I don't hardly drive that much anymore, the claimant said, for one thing my concentration and for another thing just maneuvering my head to look around and stuff it's difficult at times, and with the pain it's hard to concentrate. My boyfriend does the driving, DeShaney stated, he even drove me here (to the hearing) today. He does a lot of the cooking, DeShaney stated.

DeShaney agreed that in the past, a number of years now when she was a single mom and she needed

something done around the house like home repairs and things like that, she was able to do this. Describing some of the things that she was able to do, DeShaney stated me and my kids put siding on the house, I closed the carport in and made a garage out of it, I put up a six-foot privacy fence all the way around our property. I used to do a lot of woodworking and a lot of electrical wiring, DeShaney said, anything electrical in the house that needed to be fixed, I could always fix it. I could not do any of these things now, DeShaney said. For one thing with the electronics, with my concentration I try not to get around electronics, and just with the pain, and my limitations that l've got of how I could move and stuff; l'm just not able to do that type of stuff anymore, DeShaney testified.

The claimant testified about the kind of things she does to alleviate the pain. I take my pain medication; I lay down in the floor and try stretching my spine; I lay on a rolling pin with it on my back and that helps stretch out my back and that helps relieve it sometimes, DeShaney stated. I've got the sauna that I lay in to help relieve it, she said. I use the sauna at least once a week, twice a week, she said. She was asked how often does she use a heating pad. It depends, DeShaney answered, sometimes I use it every night, sometimes I don't use it for two or three nights; it just depends on how I feel. It was noted that DeShaney had said she uses ice occasionally or a cold pack, and she was asked how often does she use this. I don't use the cold pack as much as I do the whirlpool and the heating pad, DeShaney answered. She agreed that this was in addition to the pain medication she takes on a daily basis.

My current physician is Dr. Michael Houser, DeShaney testified. I seen him last time probably about six months ago, she stated.

DeShaney stated that she liked working for MEMC. She was asked if she thinks she can do any of the jobs that she had described as having done for them. No, DeShaney answered. Because there's days I can't even get out of bed, so I wouldn't be able to hold down a job if l've got days that l'd be missing all the time; so there's no way I could hold down a job, DeShaney explained. She was asked why she can't get out of bed on those days she says she can't get out of bed. Because of pain, DeShaney answered. Pain in my back, pretty well all over, she stated.

On cross examination by the Second Injury Fund, DeShaney agreed that she had said earlier that she had taken some college classes at Florissant Valley. My classes were history, math, accounting, and oral communication, DeShaney stated. I took these classes in the early 1980s, she said. She agreed that she had said she also took a semester's worth of classes at St. Charles Community College, and stated I took one law class, another accounting class, another history class, and a music class. DeShaney agreed that she was able to understand what she read. She agreed that she knows how to use a personal computer.

DeShaney agreed that she has had some prior Workers' Compensation claims, and she had talked about them today. She agreed that one of those was in 1995 for both of her hands, and another one was in 1996 for your right elbow. DeShaney agreed that the 1995 claim for her hands was something she had reported to MEMC. She stated that she had also reported the 1996 claim for the right elbow. DeShaney agreed that she had said earlier her 1990 back injury was a work injury as well. She agreed she had filed a claim for this and had received a settlement for this.

During cross examination, DeShaney agreed that she had stated earlier that she does not recall the actual date of her injury. She agreed that her recollection was that it was the last day that she worked for MEMC, and it was sometime during the month of April of 1998. DeShaney agreed that she was hospitalized for depression and gastrointestinal problems on April 30, 1998 at St. Joseph's West. I was in the hospital for about a week, she agreed. She was queried - And that same day, April 30, 1998, you had seen Dr. Houser, is that correct? I recall seeing Dr. Houser on April 30, 1998, DeShaney said, and agreed he was her primary care physician at that time. She was asked if she recalled telling Dr. Houser she had some left shoulder pain

on that date. I don't recall, but I more than likely did, the claimant answered. She stated that if Dr. Houser's records reflect that she had talked to him about left shoulder pain, she would not have any reason to dispute that. She was queried - Did you mention when you discussed your left shoulder pain, that that had started at work? Yes, I did, DeShaney answered. She stated that she did not recall what she had told Dr. Houser. She was queried - And if Dr. Houser's records don't reflect any history of the left shoulder injury occurring at work, would that be a mistake on his part that he didn't record that? Probably, yeah, DeShaney responded. She stated that she was not aware that Dr. Houser didn't record any history of a work injury to her left shoulder. I know he was rushed that day when he seen me because they worked me in in order for him to be able to see me, DeShaney added. DeShaney agreed that the first time she saw Dr. DiFilippo for her left shoulder was May 5, 1998. She was asked - when you saw Dr. DiFilippo on that date, did you mention a work injury to him? Yes, I did, DeShaney answered. She was queried if she was aware that Dr. DiFilippo's records on that date do not contain a history of a work injury. I don't know why they don't because I told him too, DeShaney responded. She was queried if she was aware that Dr. DiFilippo's July 1998 records as well do not record a history of any left shoulder injury occurring at work. No, I wasn't, DeShaney responded. DeShaney agreed that she also saw a Dr. Stephen Ross on June 22, 1998 for multiple problems which included her left shoulder. She was asked if she had told Dr. Ross that her left shoulder problems were from a recent work injury. I don't know for sure if I did tell him because I was seeing him for multiple things, DeShaney answered. She was queried - You did however tell him that your back problems had started with a work injury in 1990; correct? Probably, the claimant responded. DeShaney agreed that Dr. Ross diagnosed her with fibromyalgia. She agreed that that diagnosis had been discussed with her previous to the time of Dr. Ross.

DeShaney agreed, during cross examination, that in early November of 1997 she was taken off of work by Dr. Houser. When queried - didn't Dr. Houser have her off for the entire month of November 1997 and December 1997 up until her gastric bypass surgery, DeShaney responded -- I don't remember the exact date. She stated that if Dr. Houser's notes from November of 1997 state that she was to continue on disability for another month, she would have no reason to dispute that that's what actually occurred. The claimant agreed that she then had gastric bypass surgery on December 17, 1997. I don't remember exactly for sure how long I was off work, if it was a period of four to six weeks after that surgery, DeShaney said, I would imagine that would be about how much time. She agreed that she had a lot of complications after that surgery, and stated that she would not dispute it if the records reflect that she stayed off work in January and February of 1998. She agreed that she actually had two additional surgeries in February of 1998. DeShaney stated that she would not dispute the history if Dr. Houser's records reflect that because of all of these surgeries and problems, on March 12, 1998, that she should continue to stay off work for an additional two weeks. DeShaney agreed that she would not dispute it if Dr. Houser's return to work slip put her on three days per week, six-hour days starting March 28, 1998. She agreed that if this history is correct, she would have returned to work approximately March 28, 1998 after being off work since November of 1997. DeShaney agreed that then her alleged shoulder injury happened sometime in April of 1998. She admitted that she was back at work for about a couple of weeks at that time.

During cross examination, DeShaney agreed that, as the notes from Dr. Houser also showed, she was on medical leave from May of 1996 through July 3, 1996. She agreed that as the records of Dr. DiFilippo showed, she was off work in September of 1996, October of 1996, November of 1996, and then returned to work in December of 1996. DeShaney agreed that it was correct there is also a note from Dr. DiFilippo that she should've been off work for another month beginning in January of 1997. She agreed that as reflected in a note from Dr. DiFilippo, Dr DiFilippo he took her off work in May of 1997 and kept her off work until July 16, 1997. DeShaney stated that she remembered the visit with a doctor for her right elbow, but she did not remember the name of Dr. David Strege; she agreed that she saw the doctor in about March of 1997. DeShaney stated she would have no reason to dispute the history if Dr. Strege's records noted a history of recent inactivity because she had not been at work, so a doctor had her off work in March of 1997 as well. DeShaney agreed that if these histories are correct, she was off the latter part of 1996 from

September through December of 1996, January of 1997, March of 1997, April through July of 1997 and then November of 1997 through March of 1998, and this was because of multiple medical problems that she was having.

DeShaney stated, during cross examination, that she recalled being seen by a Dr. Susan McKinnon at Washington University in September of 1997 for her upper extremities. She was queried - And your history to her was that you had only been able to return to work for a few months at a time over the last three years, and she records a history that you would be at work for a couple of months and then you would be off work a couple of months, and then you would return to work for a couple of months; is that about the history for the last three years you were working at MEMC? I don't know if it was real, real often, but yeah, I know I was out of work, DeShaney responded. She agreed that based on the histories they had talked about previously, she was out of work a lot in 1996 and 1997, and for a number of months at a time.

During cross examination, DeShaney agreed that when she was hospitalized for depression in April of 1998 she treated with a Dr. Richard Anderson. She agreed that Dr. Anderson was her treating psychiatrist then for a period of time after that. It was noted that Dr. Anderson records a history on July 30, 1998 that for the last few years DeShaney had been off work for three months at a time; DeShaney was queried - Based on the questions they had gone through, this was true for periods of time in 1995, 1996, and 1997. Yes, DeShaney answered.

DeShaney agreed that she had said earlier that when she returned to work in late March 1998 she was working limited duty of three days per week, six hours a day. The claimant was asked what was her work shift at that time. I normally worked weekend warrior, but at the time I was working, I was working I think it was every other day, like Monday, Wednesday, and Friday six hours a day, DeShaney answered.

During cross examination, DeShaney was asked if she had seen anyone else for her shoulder other than Dr. Houser, Dr. DiFilippo, and Dr. Ross. I don't remember, DeShaney answered. It was noted that DeShaney's attorney had introduced the report of a Dr. Joseph Morrow. DeShaney stated that she recalled seeing Dr. Morrow, and that it was at the request of her attorney for her previous Workers' Compensation cases. She stated that she really did not recall if she had seen Dr. Morrow on April 17, 1998. DeShaney was queried if she knew when she saw Dr. Morrow on April 17, 1998 that was before or after her left shoulder injury. I don't remember because I don't remember exactly what date it was that I got injured, DeShaney answered. I don't know if the injury had occurred before I saw Dr. Morrow or after, DeShaney stated. She was queried - If it had occurred before, would you have told Dr. Morrow about it? Yes, DeShaney answered. She was queried if she was aware that Dr. Morrow's report does not record a history of that particular injury occurring. No, I'm not, DeShaney responded.

DeShaney was queried, during cross examination, with regard to your testimony about the actual injury, did you say there were witnesses or there were not witnesses to the injury? There was nobody that was right there because I was kind of in a secluded area, DeShaney answered. But somebody come running over once they seen me drop -- I had the tub where I had it, DeShaney stated, two people come over to help me. I don't remember who these people were because we worked with different people every day, DeShaney stated. She agreed that she had said the next day she was scheduled to work, she called in to say that she couldn't come into work. DeShaney was asked who did she speak with. I spoke with Marcia Atkins, and I also spoke to Pat Matlock, DeShaney answered. I'm certain of that, DeShaney said. DeShaney stated that she recalled her deposition being taken in April of 2002, and recall being asked questions about reporting the injury to MEMC. She was asked if she had any recollection of what she had said at that time. I know that when I called in to tell them I wasn't able to come to work, that's when I told them I got hurt, DeShaney responded. She was asked if she could recall at the time of her deposition who she told. I'm pretty sure it was Marcia Atkins, DeShaney answered, I don't know for sure. Now I think it -after l've been thinking about it, I think it's Marcia Atkins, but I don't know a hundred percent for sure,

DeShaney said. The claimant was queried - So are you saying you do recall or you don't recall who you spoke with? Not really, DeShaney responded. She was asked what did you tell them when you spoke to them. I told them that I had hurt myself at work, that I was trying to scoot a tub onto another tub and that the wheels started rolling, and when the wheels started rolling, it lunged me kind of forward and pulled me down with the wafers because the tub of wafers was going down, DeShaney answered. DeShaney stated that she did not recall if the person she was speaking to was a male or female. She was asked if that person asked her to go seek medical treatment anywhere. Well, yeah, I knew that I had to go seek medical treatment because there was -- I couldn't move my head, my arm and I couldn't move my arm away from my body, DeShaney responded. She was queried if she had asked whoever she was speaking to on the phone to send her for medical treatment. No, I don't think so, DeShaney answered. She stated that she did not remember if that person suggested that she should go to a particular medical provider for treatment. She was asked if anyone at MEMC ever had her fill out any type of form, a report of injury form, about this incident. No, not that I remember, DeShaney answered. It was noted that DeShaney had said earlier that she saw Dr. Anderson while she was in the hospital for depression, and DeShaney agreed. DeShaney stated that she did not remember if Dr. Anderson took a history from her when she was hospitalized a St. Joseph's West on April 30, 1998. It was noted that Dr. Anderson recorded a history in his medical records that she had returned to work for the past week and was unable to function effectively at that time and left work; DeShaney was asked if she recalled giving that history to Dr. Anderson. By meaning not functioning effectively it was because it was hard for me to do my job is what I meant when I told him that, DeShaney answered. DeShaney agreed that she filed a Claim for Compensation through her attorney. It was noted that she had listed a date of injury of April 1, 1998, and she was asked if she knew how she got this particular date. It had to have been the date that it happened, DeShaney responded. I don't remember for sure, but that seems like it might have been the day, I don't know, DeShaney further stated, like I said I don't remember the actual date.

Medical records in evidence included the following:

Medical records of Dr. Michael J. Adams, D O. (No. V) included initial treatment records for complaints of low back and hip pain, diagnosed after testing including CT scan, as lumbar strain, beginning in April 1991. The record revealed that treatment included trigger point injections, physical therapy, and work hardening to work on strengthening and flexibility because DeShaney needed to be able to lift 30 to 60 pounds at work. The record indicated that DeShaney was taken off work during this time. A 07/05/91 entry indicated improvement in the low back; there was mention for the first time of some upper back and neck strain in this entry. DeShaney's complaints of low back, upper back and neck pain continued into the August 1991 entries; it was written that DeShaney was in work hardening; written in the 08/02/91 entry was - "Feel like there is a lot of malingering in this case". The 08/16/91 entry indicated that DeShaney was to be returned to work per Dr. Piper on that next Tuesday. An August 27, 1991 Work Hardening Summary form included: "She is performing at the work demand level required of her job as a lappet at MEMC, as she is able to perform the most difficult aspect f her which is the lift of a 60 pound load with the assistance of another person". Subsequent 1991 entries noted that DeShaney was in a weight loss program. A December 20, 1991 letter on Dr. David Robson's letterhead to the insurance company noted that DeShaney had been released to return to work in August 1991 and worked for two months, and then at the end of November 1991 she stopped again because she stated her pain was intolerable. Examination and radiographic findings were discussed. I think that her subjective complaints far outweigh objective physical findings, Dr. Robson wrote. In an April 1992 letter to Dr. Adams, Dr. McAllister wrote that DeShaney's complaints of low back pain, leg pain ad a clicking in her neck with radiating and shooting up into her head causing sever headaches had not resolved, but the doctor did not believe any further treatment was indicated. Dr. McAllister further wrote in the April 1992 letter that DeShaney had reached maximum medical improvement, and that she should have permanent restrictions of lifting no more than thirty pounds, and repetitive lifting and bending were not in the best interest of DeShaney. Treatment entries into 1992 continued to reflect DeShaney's complaints of entire back pain.

The record included an 06/13/93 emergency room record for treatment of DeShaney at Barnes for inhalation injury while working at MEMC; a 06/13/93 report of a chest x-ray stated a summary of - negative chest. A Certificate To Return To Work form completed by a Dr. Houchin indicated that DeShaney had been under the doctor's care for the period of 07/13/93 to 07/14/93 for a right hand sprain, and would be able to return to work on $07 / 15 / 93$.

The record began to reflect hand/wrist complaints by DeShaney on 07/13/93. July and August 1994 entries reflected complaints from DeShaney of severe low back pain; it was written in the 07/25/94 entry - "... back hurts all the time. It started out with right sacroiliac pain and has progressed to mid thoracic and cervical pain". In a 02/06/95 treatment entry was written - upper back strain, resolving; the record contained a 03/24/95 form by a Dr. Glazer in which the doctor wrote that DeShaney was unable to work on laser mark due to therapy but could work on another machine or machinery, but could not return to laser mark until 04/24/95. A 03/31/95 MEMC Fitness Report Return To Work form stated that DeShaney was restricted to no repetitive motion unless able to use both hands, and no more than 30 pounds repetitive actions form 03/31/95 through 04/24/95; a 03/31/95 treatment entry stated an assessment of - right arm strain - and listed the same restrictions. A 07/02/96 work status form was completed by Dr. DiFilippo, and stated that DeShaney was to return to work on 07/06/96; a 07/03/96 MEMC Fitness Report Return To Work form signed by Dr. Adams, D.O. stated that DeShaney was returned to full duty work with no restriction as of 07/06/96. A 07/03/96 treatment entry stated - recheck of right elbow tendonitis, functional capacity testing today is negative, ready for work, return to work with no restriction on 07/06/96. A 07/18/97 entry stated - Here for return to work for arm pain bilaterally and shingles; the assessment was bilateral arm pain, improving, and DeShaney as returned to work with restrictions. The record continued to include work restrictions and return to work forms into 1997 (i.e. on 07/19/97 - 10/19/97 DeShaney was placed restrictions of no lifting over 25 pounds, and alternate repetitive motion).

The record next contained a work status form by Dr. Houser, M.D. dated 03/26/98 in which the doctor indicated that DeShaney had been released to return to work on 03/28/98 with restrictions of - "only work 6 hrs/day for 2 wks work only in FTIR \& ELYMET for 3 months"; a 03/26/98 MEMC Fitness Report Return To Work form completed by Dr. Adams stated that DeShaney was on temporary restrictions for 03/28/98 04/09/98 of: 1. No greater than 6 (hours) work per day, 2. No greater than 3 days per week, and 3.5 lb wt restriction. The next document in the record was a Physician's Certification Of Borrower's Total And Permanent Disability signed by Dr. DiFilippo on 08/18/98 in which DeShaney's present medical condition was listed as: Fibromyalgia, Rotator cuff tendonitis, Low back pain, and Bilateral knee pain; it was indicated that the conditions were not static, that optimum improvement was - uncertain. The record next contained an August 20, 1998 report of x-ray findings as follows: A) For a history of - Disability evaluation, low back pain -- Impression was - a. Multiple surgical clips in the upper abdomen, b. Degenerative disc disease L-5/S-1, c. Schmorl's node L-2, d. limbus vertebrae L-4, and e. Possible soft tissue mass left side of the abdomen that could be arising from the kidney, suggest additional study; and B) For a history of - disability evaluation, carpal tunnel -- Impression was - Negative. Treatment entries dated 03/26/98 included: "Return to work evaluation following 3 surgeries in the past 3 months. She has had a gastric bypass surgery, gallbladder surgery (which was done laparoscopically on 2/23/98), and vaginal mass removal in the past 2-3 months. She is having a lot of nausea, decreased appetite". It was further written in the 03/26/98 entry that DeShaney's doctor wanted her to return to work with restrictions of - no greater than 6 hours a day, no greater than 3 days a week, and no lifting over 5 pounds for 2 weeks; it was written that this was discussed with MEMC. A handwritten 04/13/98 entry stated - "pt will be on 6 hr day, 3 day week for 3 more weeks". The next entry was dated 10/21/98, and included: "c/o; RTW visit after surgery - has 4 notes to not go back to work - would not let me copy them." A typed 10/21/98 entry stated the following:

Here for return to work evaluation following gastric stapling. She has left shoulder pain and numbness in the right arm. Inability to raise her arm about 90 degrees. As a result of her surgery she has had some

intractable esophagitis with digestive problems. Her primary care doctor, Dr. Houser, recommends that she does not work as a result of the stomach problems, depression and muculoskeletal problems. Dr. Altman recommends that she not work due to the intractable esophagitis. Dr. DiFilippo recommends that she not work as a result of her musculoskeletal problems.

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

1. persistent nausea due to Nissen fundoplication surgery

1. 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:

1. 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.

1. 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?
2. 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.