Mr. Castile, the employee, is twenty-seven years old, married and a graduate of high school. After high school, he served in the U. S. Marine Corps and received a lot of training as a firefighter. After his discharge from the Marines, Mr. Castile intended to serve in the National Guard and work in the private sector as a firefighter. He testified that before his accident he was in excellent shape and could run three miles in sixteen minutes. He testified that he is no longer able to serve in the National Guard and cannot pass the physical examination to be a full time firefighter. After his accident he started his own construction company and works as a volunteer firefighter for Fruitland Fire Department as a first responder. Mr. Castile testified that his duties as a volunteer firefighter only involve light duty.
The parties stipulated that the employee sustained a compensable accident on August 19, 2003, while working for Sanders Siding. At that time Mr. Castile was working on scaffolding about sixteen to eighteen feet above the ground.
He fell off the scaffold and fell to the ground breaking his right ankle. When he hit the ground, his right ankle actually lodged in one of the holes in a cement block. Mr. Castile testified that his toe was actually touching his leg while it was inside the cement block and that his coworkers had to break the cement block with a sledge hammer to get his foot out.
As a result of his injury, the employee received extensive medical treatment and was receiving pain management treatment/therapy at the time of trial. He has been treated or evaluated by Raymond A. Ritter Jr., M.D., Gary J. Schmidt, M.D., Kevin K. Nagamani, M.D., John Krause, M.D., Anthony Zoffuto, M.D., John D. Graham, M.D. and Bernard Charles Burns, D.O. Dr. Burns is the physiatrist who continues to provide pain management care to Mr. Castile.
As a result of his accident the employee has undergone four surgeries and as many as seven total procedures. He has had extensive physical therapy and prescriptions for orthotics and various medications including narcotic medications.
On August 19, 2003, the date of the accident, Dr. Ritter diagnosed an open fracture "... involving the medial malleolus of his right ankle and a closed fracture of the distal fibula". Mr. Castile had surgery entailing open reduction and internal fixation with plate and screws on the distal fibula fracture and debridement of his wound and internal fixation of the medical malleolar fracture with a compression type screw. The surgical record reports "Open bimalleolar fracture of the right ankle". Dr. Ritter discharged the employee from his care as of December 2003.
Due to continued problems, Dr. Schmidt began care as of January 22, 2004. At that time Dr. Schmidt recommended that Mr. Castile undergo additional surgery. On April 7, 2004 Dr. Schmidt's surgical report documents the employee's second surgery: "Procedure: Repair right non-union medial malleolus. Repair stenosis right tibial anterior tendon".
As of June 15, 2004 Dr. Schmidt reported that one of the screw heads had become prominent and was causing pain. He recommended addition surgery to remove hardware. Surgery was cancelled due to problems between the employee and Dr. Schmidt.
On July 21, 2004, Dr. Nagamani began treating the employee for ankle pain. His "Diagnosis/Assessment was:
- Right ankle saphenous neuritis
- Tibial anterior tendonitis
- Painful lateral hardware".
4.
Dr. Nagamani reported that the employee was not at MMI due to saphenous neuritis. He prescribed Lidoderm patches, reported that the employee needed physical therapy, antiinflammatories/Bextra, released Mr. Castile to full duty "for now" and indicated he would need surgery in the future.
On or about October 14, 2004, Mr. Castile had his third surgery for hardware removal. As of December 17, 2004, Dr. Nagamani was treating the employee for pain with medications etc., but due to continued problems he ordered another MRI that was performed on December 29, 2004. The MRI reported "Impression:
- FINDINGS OF OSTEONECROSIS FELT TO BE PRESENT WITHIN THE DISTAL TIBIAL METAPHYSEAL REGION, EXTENDING THE LAST 4 TO 5 CM TO THE LEVEL OF THE PLAFOND WITH A SMALL AMOUNT OF IRREGULARITY AT THIS LOCATION. NO LOOSE BODY IS SEEN. NO DEFINITE TALAR DOME ABNORMALITY.
- POST-SURGICAL CHANGES OF THE ANKLE FROM PRIOR SURGICAL FIXATION".
On or about February 25, 2005, Mr. Castile had his fourth surgery. The operative report indicates "Decompression and bone grafting of right tibial osteomyelitis. Bone marrow aspirate".
The employee continued to have problems including pain and was treated with physical therapy and medications etc. As of September 28, 2005 Dr. Nagamani reported that Mr. Castile needed a referral for pain management.
Dr. Graham testified by deposition that was taken on May 1, 2008. He testified that his practice deals with pain management and that he first saw the employee on October 26, 2005. Dr. Graham testified that he examined the employee, took a history and prepared a report.
Dr. Graham performed a physical examination and testified that he found:
- that the employee walked with a limp
- he showed no distress
- he changed positions smooth and fluid without assistance
- his right ankle had healed scars
- he did not detect Tinel's
- there was some skin discoloration at the scarring sites
- the employee had good range of motion in all planes
- minimal swelling
- the employee said swelling was less as he had not worked that day
- neurologically the employee was intact
- right ankle pain status post fracture and subsequent surgeries
- the employee complained he did not like to walk on uneven surfaces or climb ladders with his injured leg.
Based on his assessment he recommended:
- some anti inflammatories, specifically Naprosyn, 500 milligrams twice a day
- supplement with Tylenol Arthritis two capsules every eight hours
- the employee could use Ultram up to 4 times a day.
Dr.Graham felt that Mr. Castile could work without restrictions. He envisioned seeing Mr. Castile every 4-6 months as long as medications were being prescribed. Dr. Graham also felt that Mr. Castile was at MMI but would need ongoing medications. Dr. Graham testified that he had the employee complete a psychologic test and reported that the employee scored a somatization scale in the 99th percentile. Dr. Graham testified that such a score might indicate that it is difficult to find the source of the person's subjective complaints, the person may have complaints that are recalcitrant to treatment, such people have more issues with overuse of narcotics and you cannot necessarily take these people at their word.
As of November 21, 2005, Dr. Graham refused to treat the employee anymore as he indicated that he discharged the employee from his care as his behavior was inappropriate.
As of March 22, 2006, Dr. Graham testified that he was asked by Chris Weiss to provide an opinion as to whether he thought "massage therapy" was appropriate treatment. Dr. Graham testified that he did not see an indication for massage therapy, indicating that massage therapy is a touchy-feely treatment if you can call it treatment. He says that right after a surgery such therapy can be of benefit as what they are doing is getting in and mobilizing the underlying tissue. He testified that this looks like massage but it is not.
He further testified that he looked at the records of Dr. Burns and stated that the regimen of drug prescriptions that Dr. Burns had done over the last two years is not one that he would recommend. He stated that he would not recommend Lidoderm patches and would be particularly concerned about the narcotics for a couple of reasons:
- First there has been an escalation of narcotics. The employee has been allowed upwards of fourteen pills a day and the record suggested that it had not significantly altered the pain-the employee is functioning at the same level. The doctor testified that the drugs have not provided the employee a benefit.
- Secondly he testified that the medical literature has failed to document any substantial benefit for using narcotics for non-malignant pain on a long term basis. There are issues of tolerance and addiction. Chronic narcotics are also of concern in a patient with an elevated somatization scale.
Dr. Graham testified that he is concerned most about the next 40 years. He stated that anti-inflammatories such as
Naprosyn can help the swelling in the employee's ankle.
Under cross examination question by Mr. Weiss, Dr. Graham agreed that the employee's physical complaints are consistent with his injury and subsequent treatment and that pain is subjective and varies from person to person. Dr. Graham also agreed that he last saw Mr. Castile on November 25, 2005, and acknowledged that there was a diagnosis of osternecrosis at that time.
Upon further questioning, Dr. Graham testified that whether massage therapy is a form of physical therapy depends on how massage therapy is being defined. He stated that some physical therapists may use a routine that appears to the layman to be massage therapy, but it is not. He further stated that the type of therapy that a trained physical therapist gives-particularly for myofascial release-is going to be different than your average massage therapist that works on you because you are stiff and sore. He also agreed that one benefit of physical therapy is to reduce swelling and further agreed that massage therapy can reduce symptoms from an injury such as swelling, but indicated you do not do them long term. In addition he agreed that Mr. Castile will continue to have swelling. Dr. Graham also testified that the only situation where he thinks massage therapy should be used on a continued basis is after breast surgery to treat lymphodemia-it helps drainage as lymph nodes were taken out of the arm.
Dr. Nagamani addressed the issue of massage therapy and Mr. Castile's treatment in several letters. In a letter dated August 23, 2005 he indicated that Mr. Castile should continue to take ibuprofen or Tylenol III/Ultram. He stated that for the most part he believes the employee's pain can be controlled with ibuprofen and reported that everyday high top boots are good enough. He stated that for further pain the employee should see his family doctor.
In a letter dated April 6, 2006 Dr. Nagamani specifically addressed the question of massage therapy. He stated "This letter is regarding the question of massage therapy for Mr. Billy Castile. Massage therapy may be of benefit to him but I see no indication for the use of such therapy. Therefore, I cannot medically prescribe such massage therapy for longterm treatment".
Dr. Zoffuto evaluated the employee's condition on September 21, 2005. He testified by deposition taken May 10, 2006. Dr. Zoffuto was questioned about massage therapy, and like the other doctors, he provided opinions. He reviewed the records of Tammy Piatt, the massage therapist that had been treating the employee and was asked if the massage therapy was medically necessary. Dr. Zoffuto testified "I believe that there are benefits of massage that help relieve pain and improve mobility, and I think they do that by reducing fluid in the injured joints. Apparently, Mr. Castile has undergone these treatments and is continuing to go and get them. It may be helping him. For that reason, I would think if it is helpful, it should be a reasonable remedy as far as pain". He opined that depending on Mr. Castile and the relief of pain he gets, that would determine the amount of therapy he would need. He stated that the employee should get the therapy as long as the ankle hurts and he is getting relief from it. He said that that if something helps pain, it's generally continued for as long as possible. He also suggested that massage therapy may restore flexibility. On cross-examination Dr. Zoffuto agreed that he had not studied massage therapy and was not familiar with the mechanics of massage therapy.
Dr. Zoffuto provided a disability rating for Mr. Castile and said that he has a disability of twenty-five per cent of the body as a whole. He testified that the ankle was fifty percent impaired. Dr. Zoffuto also testified that the employee should continue to get pain relief and should be under the long term care of an orthopedist to deal with the long term effects of osteonecrosis. He stated that the risks of osteonecrosis are pain, problems with ambulation, and sometimes infection. He stated that these problems will exist for the rest of the employee's life. He testified that the employee already has traumatic arthritis, and if the osteonecrotic bone continues to deteriorate, it could impair the employee's weight bearing ability, his standing ability, his proprioception and that it may increase his pain
Dr. Krause was asked to see the employee for an IME on June 12, 2006. He was apparently aware of the employee's prior treatment history. He reviewed prior MRI records and got new x-rays and indicated-"Assessment:
- History of an open right ankle fracture dislocation, healed.
- Cannot rule out entrapment of the superficial peroneal nerve, minimally symptomatic.
- History of distal tibial osteonecrosis.
- Chronic right ankle pain with degenerative joint disease".
Dr. Krause recommended:
- A new MRI due to uncertainty of the source of the employee's pain. He stated that it is unfortunate that the medical malleolar screws were not taken out as they cause an artifact.
- Following the MRI, diagnostic ankle injection to assess what sort of pain relief the employee gets. If short time but no long time relief from injection, it would not be unreasonable to do an arthroscopy of ankle depending on the MRI.
- Entrapment of superficial peroneal nerve does not cause extensive problems or discomfort unless there is direct pressure on it. He did not recommend treatment at that time.
- The employee's high score on somatization scale is concerning therefore the doctor is cautious about surgery helping the employee.
On July 7, 2006, Dr. Krause injected Mr. Castile's ankle to see what short term relief he would get. As of July 24, 2006 the employee reported twenty-four hours of pain relief with the pain coming right back. At that time Dr. Krause made further recommendations:
- I do not think the patient would benefit from any further surgical intervention at this point. He may eventually need an ankle arthrodesis in the future.
- Naprosyn
- Short supply of Darvocet
- The doctor sent the employee to Dale Watson to get a solid low profile AFO that he can use at work.
As of August 14, 2006, Dr. Krause provided further opinions as the employee was not happy with the orthotic device:
- Does not recommend another surgery.
- Eventually he will need an ankle arthodesis. Given his motion at this point I would not recommend that at this point.
- He is best managed with an AFO which will help to limit motion. He would also be managed with pain medications primarily anti-inflammatory plus or minus a low grade narcotic.
- Naprosyn and short prescription for Darvocet.
- The employee should follow up with a pain management specialist. He is at MMI and the doctor did not need to see the employee back.
Dr. Burns testified by deposition taken February 4, 2008. He testified that he has been the treating doctor for Mr. Castile since September 27, 2006. The doctor testified about all of the problems that Mr. Castile has resulted from the accident and further testified that these problems will affect him for the rest of his life and that he will need treatment for these problems, including pain for the rest of his life. A partial list of these problems includes necrosis, pain along the tendon sheath, osteomyelitis, degenerative joint disease, nerve disruption, disturbed lymphatic flow and swelling of soft tissues. In addition, Dr. Burns testified that the employee has gait disturbance/an anatalgic gait due to pain that will put wear and tear on his knee, hip and low back. Dr. Burns also testified that Mr. Castile has been compliant with treatment. He reported that the opinion of MMI in March 2007 was more of an "administrative statement" to let the administrators move on with their paperwork and does not rule out the need for further surgery. He testified that all of the treatment that the employee had before he saw him was reasonable and the expected standard of care for this type of injury, and that he will need to see the employee periodically for medication adjustment. He added that Mr. Castile's treatment conditions may evolve over the employee's lifetime. Dr. Burns specifically testified that the employee will have ankle pain, and that this pain will become worse with use. He additionally stated that the ankle pain caused sleep disturbance. He further stated that the employee needs orthotic bracing as he is wearing one out every month or two.
Dr. Burns testified about the medications that Mr. Castile needs to deal with his problems. He testified that the drugs are changed and moved around depending on their effectiveness. He testified that the dosages that the employee takes have increased since treatment first started. A list of some of the medications that the doctor has or is prescribing are:
- Lidoderm patches
- Darvocet
- Lyrica
- several anti-inflammatory medications including Arthortec
- Norco
- Tyelonol
Dr. Burns testified that the use of Hydrocodone can lead to addiction in addition to liver and kidney damage, and that the longer you use drugs the less effective they become. He indicated that he has not moved the employee to long lasting Schedule III drugs as there are more risks with them. Dr. Burns also testified about the benefits of physical therapy, such as regaining strength and mobility, restoring range of motion to a joint and pain reduction. He also testified that an exercise program, the use of ice and heat and compression (the act of applying pressure to an area of the body) can be helpful with pain reduction.
Dr. Burns has opinions and testified extensively regarding the use of massage therapy. He testified that massage therapy is a form of physical therapy that provides benefits such as increased mobility to a joint, increasing the strength of a muscle around a joint and decreased pain and swelling. He further testified that some of the physical therapy that the employee received included massage therapy. Dr. Burns specifically testified that "...there is no doubt in my mind that the massage therapy is helping relieve some of Mr. Castile's symptoms". He stated that medically, massage therapy has helped him keep the heavy workload that he has. In a letter dated March 20, 2007, Dr. Burns testified that he recommended massage therapy for the employee as it was helping him. However in a letter dated April 6, 2007 he stated that massage therapy is not indicated for maintenance for a chronic condition. He testified that the employee's symptoms have responded to massage therapy, especially with pain, and added that "He is very persistent in the view that massage therapist helps him more so than those other things. In fact, to the point of paying for that therapist himself". Dr. Burns also testified that it is possible that massage therapy would lessen the pain medication that Mr. Castile has to take.
Dr. Burns was asked about ankle fusion surgery. He testified that fusion was the opinion of one of the reconstructive guys and he is not sure if he agrees with that. He indicated it is clearly not the right choice now as Mr. Castile wants to maintain a high activity level. He reported that he has a second hand report that fusion will ultimately be necessary and he guesses he cannot disagree with that, but he does not think it is something the employee should have right now. He testified that the employee should wait as long as possible before having that type of surgery as a fused ankle can require more surgery and fusion surgery would set the employee up for a lot more medical treatment.
Dr. Burns stated that a home exercise program including the use of ice, elevation, range of motion therapy along with ace bandage use could provide the same benefit as massage therapy. He testified that in the Cape Girardeau area, in the medical community among doctors, the use of massage therapy for treatment of a chronic condition would not be customary and added that this takes us back to the whole controversy as he has other conditions that he takes care of that are occasionally helped with massage therapy. ex. Fibromyalgia and arthritis. He says massage therapy is gaining in getting included on different insurance panels and is becoming more of a long-term modality for people than it has been in the past.
In summary, Dr. Burns thinks that massage therapy is a viable treatment modality, he has specifically testified that massage therapy has helped relieve symptoms caused by the employee's accident, he recommended massage therapy as of March 20, 2007, but when asked the specific question of whether it was reasonable to recommend that Mr. Castile have massage therapy he responded in part by saying that traditionally massage therapy is lumped into a maintenance or even luxury item that is not universally recognized as an active treatment past a certain point. He stated that he was not able to come down on one side or the other and admitted that he has not prescribed massage therapy for Mr. Castile. Dr. Burns testified that he has been wishy-washy about massage therapy before his deposition and at the deposition, but testified "But in this chronic condition, I think that that may need rethinking. Classically, and I sent a note in April that massage therapy is typically not intended for maintenance of a chronic condition. But I guess the same could be said of medications for pain which are classically used for acute conditions". He reported that
he has prescribed massage therapy for other patients in the past concerning soft tissue swelling but has not typically prescribed massage therapy for a chronic condition.
Mr. Castile testified that he is currently being treated by Dr. Burns for pain management, and has been a patient of Dr. Burns for the last one and one half years. He indicated that the treatment he is getting consists of anti-inflammatories, pain killers, Lorcet, OxyCodone, Lidoderm patches and orthotics. He indicated that he uses at least one and sometimes two Lidoderm patches a day. He further testified that Dr. Burns allows him to take as many as six Lorcets a day and two OxyCodones at night.
At the time of his accident, the employee was working in construction. He testified that he now mostly does construction as he did in the past. However, he indicated that no one would hire him due to his injury and he therefore has to start his own construction business. He testified that the accident has caused him to be far in debt and that he is still digging himself out.
Mr. Castile testified about the affects of the accident and the physical problems he has with his right ankle. He testified that on a normal day he gets up at 5:15 AM and takes a Lorcet. He then lays back down until about 6AM. When he gets up he has to stretch and physically draws the letters of the alphabet with his big toe. He completes this process three times every morning. He testified that his foot is inconstant pain in that every step he takes cause pain. Mr. Castile works construction and indicated that anytime his ankle is on an incline he has greater problems. He further testified that he has muscle cramps in the instep that travels up his leg to the knee and hip. He also indicated that he has problems with his opposite leg.
As to the degree of ankle pain, the employee testified that when he is sitting such as he was at trial, pain is a 3-4, when walking the pain is a 5 and when he works on inclines the pain is at a 7 . He testified that ladders are especially difficult for him. He further testified that the doctor had to increase the medications he takes as the pain was so bad that it was keeping him up at night. He indicated that swelling is a continuing problem as well as popping and grinding at the ankle due to bone on bone contact. He testified that his ankle swells so bad that it hangs over the top edge of his work boots by as much as three quarters of an inch to an inch. Swelling is greater after working, therefore when the employee comes home from work he keeps his foot elevated by sitting in a recliner.
Mr. Castile testified that he receives massage therapy treatments from Tammy Piatt which mostly helps the swelling, pain and cramping. He stated that he saw Ms. Piatt about 2-3 times as week for sessions lasting one half hour to one hour. He indicated that he had to discontinue the massage therapy treatment due to the cost. Mr. Castile testified that the therapy helped a great deal as the pressure point therapy works out the toxins from the swelling. He said this has a lot of benefits as the swelling goes down and he has a 50 % improvement the next day. In addition, the medications mask the pain, but the therapy provides pain relief. He takes six Lorcets in the day time and two OxyCodones at night. Mr. Castile says that the massage therapy allows him to reduce the amount of medication he takes which in turn provides additional benefits as the medications are hard on his kidneys and liver. He testified that the relief from the massage therapy is ten times greater than the relief from taking the medications.
Mr. Castile is asking for benefits including permanent partial disability, that his message therapy bills be paid, that he receive future medical care as indicated by the doctors, including temporary total disability benefits for future surgery and that the care include massage therapy as provided by Tammy Piatt. He testified that he needs to see Ms. Piatt three to four times a week as it will help his liver in the future, but he could live with two times a week. He further testified that the massage therapy treatment have helped so much that in the past he paid Tammy Piatt out of his pocket- he knows it helps-it cures and relieves. In addition he testified that the massage therapy is good for his attitude with his family, it helps pain and swelling and is good for his body as he would have to take less medication. In addition the employee testified that he wears his work boots and brace almost constantly and that he wears out his orthotics about every month or two.
Juanita Castile, the employee's wife also testified at trial. She confirmed the employee's testimony about the massage therapy and the physical relief it provides. She listed the benefits that the massage therapy provides as:
- reduced swelling of the ankle
- the therapy cause her husband to get such pain relief that he is in a better mood so that sometimes they can go out to dinner
- he is more comfortable and takes less medication
- he has more energy after the therapy
- he walks better after the therapy.
Tammy Piatt is the massage therapist that has been treating the employee from June 2005 to May 2008-about 248 sessions. She provided her treatment records in Employee Exhibit G and recommends that the employee should have massage therapy at least two times a week. She testified that the costs for her massage therapy sessions are $\ 60.00 per hour. The employee is seeking reimbursement for $\ 5,390.00 that he spent for massage therapy.