Summary of the Evidence
Claimant testified at the hearing that he is 67 years old. In November 2000, he was employed by Strong Alarm Company. Employer was headquartered in Olathe, Kansas. Employer installed residential and commercial fire alarms. Claimant had worked for Employer on the alarm side of the business for three and one-half years. Claimant installed alarm systems for Employer. He pulled cables on tops of buildings and attics. Cables weighed between fifty and one hundred pounds. He mounted boxes on walls, and ran cables through ceilings and walls and into basements. He climbed ladders and carried boxes with alarms that weighed around forty-five pounds.
Claimant had also worked for Employer as a technician in a pawn shop repairing electronic devices including copy machines and air compressors. He worked on the pawn side for fifteen years and was then transferred to the alarm company side.
On November 16, 2000, while working for Employer, Claimant installed an alarm system in Liberty, Missouri. He finished that job and then began driving Employer's Nissan pickup truck to another job. Claimant was involved in a motor vehicle accident on Highway 52 in Clay County, Missouri while driving to the other job. He was traveling about seventy miles per hour when a large deer jumped out in front of him and his truck struck the deer. His truck came to rest in a ravine on the side of the road.
The pick-up Claimant was driving had a camper shell that held tools. The front end of the truck came off and the windshield came out as a result of the accident. Equipment from the back of the truck came inside the truck and struck Claimant. He was wearing his seat belt at the time of the accident. He was under the dash when the truck came to rest. Claimant said he hurt all over after the accident.
Claimant called 911 on his cell phone. Fire department personnel removed him from the vehicle. He was driven to North Kansas City Hospital where x-rays were taken and pain medication was prescribed. He did not stay at the hospital overnight.
Claimant was also injured on March 8, 2000 when he fell off a ladder while on the job. Claimant testified that he was injured on his right side above his waist in the March 2000 accident. Claimant's employer did not have worker's compensation when Claimant was injured in March 2000. Claimant went to Dr. Gamble on his own. He was already scheduled to see Dr. Reintjes when he had the accident on November 16, 2000.
Claimant said he had problems with his head, shoulders, and back after the accident of March 8, 2000. He was able to work, but he had problems. Claimant testified he did not miss work between March 2000 and November 2000. He agreed that in the thirteen weeks before his November 2000 accident, he worked one and a half hours overtime during one week and three overtime hours during two weeks. He had pain and issues after the March fall, but he did his job for Employer.
Claimant testified that he was not having any problems before the March 2000 ladder accident. He performed his job without difficulty. He was under no doctor's care and was under no doctor's restrictions before March 2000. He was not taking any medication at that time.
Claimant initially complained of problems with his right side after the March 2000 accident. He saw Dr. Gamble between the time of his fall and the time of his November 2000 automobile accident. Dr. Gamble prescribed medication. Claimant did not have physical therapy during that time. Dr. Gamble had not recommended surgery. Dr. Gamble recommended that he have an appointment with an orthopedic surgeon. He had no restrictions between the March accident and the November accident. Employer did not provide any additional help with his job between the March accident and the November accident. Claimant worked without assistance during that time, although he had some pain. Before November 2000, he did all of his own housework and cared for his home. Claimant did not have problems driving before November 2000. His leg did not give out before the November automobile accident.
Claimant saw Dr. Reintjes on November 29, 2000. He had neck surgery after the November 2000 accident. Dr. Reintjes treated Claimant for a year and then released him with restrictions of ten pounds lifting and no bending or stooping. Claimant has had surgery, medication, and occupational therapy. He said that treatment did not help him. He has continued to get worse as time has gone on.
Claimant was not able to drive when he was released by Dr. Reintjes. He went to a driving school and learned to drive with his left leg and left hand. He now uses his left foot for the gas and brake, and only rarely drives on the interstate. He does not drive when there is snow.
Claimant testified he had problems with his legs after the second accident. His legs were weak. Claimant's right side became worse and his legs got wobbly after the November accident. He did not have problems with his leg giving out before November 2000. He said he began to have problems with his memory after the surgery. He testified he got worse after the second accident.
Claimant testified that he hurts from his head to his toes. His neck hurts and he cannot turn his head all the way. He said his shoulders, hand, legs, and back hurt every day. His feet go numb. He was wearing three shirts and a jacket during the hearing. He testified he cannot pick up things with his right hand. He wears gloves to support his hand. He said his legs and hand do not work if it gets cold. He cannot hold a cup of coffee or open a door with his right hand. He cannot button his buttons. Claimant testified he cannot be up too long before he needs to lie down.
Claimant testified he has difficulty sleeping because of pain. He gets to sleep at 4:30 or 5:00 and sleeps off and on. His difficulty sleeping began after his neck surgery. He has a difficult time taking a shower. He prepares his own meals with a microwave. He does not cook like he did before the November accident. It takes him forty-five minutes to get dressed. He has help with his laundry and home maintenance.
Claimant testified that he was not taking pain medication other than an occasional Tylenol that did not help. Dr. Reintjes had prescribed Neurontin, but Claimant stopped taking that. Claimant said he wears gloves daily. He said his right leg gives out at times and he occasionally falls. He uses a cane, but that was not prescribed by a doctor. He last saw a doctor for his neck injury one year after the automobile accident when he last saw Dr. Reintjes. He has not been injured since then. Claimant was on medication for depression after the surgery. He had not taken that medication before November 2000.
Claimant testified he did not work after he had the surgery provided by Dr. Reintjes. He said he was not able to go back to work for Employer. He said the doctor told him he could not go back to work and he quit his job. He applied for work in electronics but was not able to pass the physical.
Claimant spoke with the owner of Employer after Dr. Reintjes released him, and they agreed that there was nothing that Claimant could do either at the pawn shop or on the alarm side. Claimant testified that he has not been able to get a job since November 16, 2000. He has tried to find work. He went to a program with Social Security to try to
get a job but he was not successful. Claimant did not think he could do any job. He said he cannot lift or sit long and it hurts to lift one gallon of water. He testified he could not do electronics anymore.
Claimant is a high school graduate. He went to college and studied electronics. Claimant testified that he has a college degree and has two certificates. He came to Kansas City and worked in various jobs, including the sheriff's department and police department. He worked with the school district in Kansas City, Kansas for seventeen years driving trucks, cutting lawns, and doing labor. He has done construction work. Claimant testified he could not do any of that work now. He said he cannot lift anything. Most of the jobs he had before November 2000 involved a lot of lifting.
Claimant is a HAM operator and speaks on the radio daily. He used to hunt and fish, but has not since March 2000. He now watches TV for a while and uses the HAM radio. He said he cannot do anything for the pain. Exercise has not been recommended. Pain medication does not help.
Claimant's deposition taken on February 15, 2002 was admitted as Second Injury Fund Exhibit 2. Claimant testified then that he has a valid driver's license. He has a college degree. He received a bachelor's degree in roughly 1965 from Pine Bluff College, now known as the University of Arkansas. He testified he studied electronics and had grades over 3.5. He was certified in electronics after college. He had been a computer technician for a school district before working for Employer. He did programming and a lot of typing. He also repaired computers.
Claimant testified in his deposition that he had been with Employer for eleven years, and his last job was with Employer. His duties at Employer on a daily basis were repairs, installing alarm equipment, accessing controls, fire alarms, and doing fire inspections. He drove for his work. He was a service technician. Most of the work was commercial. He installed all the equipment. He lifted between fifty to one hundred pounds. He had to crawl through crawl spaces. He carried two fiberglass ladders. He carried tools on his tool belt. He always worked by himself.
Claimant testified in his deposition that since his accident, he does not remember as well as he used to. He did not have memory problems before the accident. Claimant testified his hands hurt every day. He said he has severe pain. He also is bothered with his neck, shoulders, arm and hands. He was wearing a cervical collar when his deposition was taken. He writes with his right hand. He testified his shoulders bother him all the time.
Claimant testified in his deposition that after his fall from the ladder, and before his November accident, when he reached above his head trying to pull cables, he would
have sharp pains. That did not prevent him from working. He handled the job with no problem.
Claimant testified in his deposition that he did not hurt his back when he fell from the ladder. He fell on the right side. He fell on some crates that broke his fall. Dr. Gamble gave him pain medication and injections in the left shoulder.
Claimant was asked in his deposition: "Q. Did you hurt your neck at all when you fell?" He answered, "No, not really. Just in my shoulders. I just had problems up there when I fell. When you fall, you don't know what you damage. I'm not a doctor so I don't know."
Claimant testified in his deposition that he did not have any of the complaints with his hands that he had at the time of the deposition when he fell in March. He never stopped working after the March 8, 2000 accident. He did not have any problem doing the things he had to do for the company. He did not have any problems traveling or lifting, except "only if I reached over my head I would get a sharp pain."
Claimant testified in his deposition that he last worked on November 16, 2000. He was asked if that was because of all the physical problems he had now and he answered: "Yeah. I can't do anything no more." He said he had not looked for work at any place since November 16, 2000 because he was not able to. He answered, "What can I do with these hands?" He had not driven since November 16, 2000. He takes care of himself with difficulty. He cooks with difficulty.
Claimant testified in his deposition that he took care of yard work and snow removal "real well" before the November accident. He said he could not fish because he could not use his wrists. He had injured his low back on the job before March 2000. He did not have surgery. He was taking anti-depressants at the time of the deposition. Those had not been prescribed before November 2000. He was also taking codeine and a muscle relaxer prescribed by Dr. Reintjes. He uses Aspercreme and Formula 454 for pain in his hands.
Claimant testified in his deposition that there was nothing that he thought he could do for a living, given his background and experience. He said that he needed his hands and he cannot use his hands. He said his right leg gives out on him, and if he is not close to something he falls. He said his physical complaints have gotten worse since his accident.
Claimant testified approximately one hour and twenty minutes after the commencement of the hearing that the bottoms of his feet were numb. Claimant drove himself to court from Kansas for the hearing.
I find this trial testimony and deposition testimony of Claimant to be credible unless noted otherwise later in this Award. It is noted that Claimant sat continuously during the trial which lasted approximately one hour and thirty minutes.
Exhibit A is the deposition of Dr. James Stuckmeyer taken on June 1, 2006 with Stuckmeyer Exhibit 1, his Curriculum Vitae, and Stuckmeyer Exhibit 2, his medical report dated February 28, 2005 pertaining to Claimant and addressed to Claimant's attorney. Objections contained in Dr. Stuckmeyer's deposition to the opinions of Dr. Prostic are sustained.
Dr. Stuckmeyer's Curriculum Vitae notes that he was Board Certified by the American Board of Orthopedic Surgeons in 1989. No current hospital affiliations are noted.
Dr. Stuckmeyer's February 28, 2005 report notes that he evaluated Claimant on February 21, 2005. He reviewed records identified in the report. The report notes Claimant sustained two occupational injuries. The first occurred on March 8, 2000 when Claimant was on a ladder that tipped over and caused him to fall to a floor. Claimant reported the accident and continued to work with ongoing symptoms of diffuse upper extremity weakness and ongoing symptoms of neck pain. He denied radicular symptoms into the lower extremities.
Dr. Stuckmeyer's report summarizes Claimant's treatment following the March 2000 injury (injury number one.) His report notes Claimant was evaluated by Dr. Nathan Schechter on September 21, 2000. Claimant informed Dr. Schechter that he fell approximately ten feet to the ground and complained at that time of constant pain in the posterior aspect of the cervical spine with intermittent aching in the right shoulder and numbness of all fingers of the right hand. Dr. Stuckmeyer's report also notes Claimant complained of weakness of grip in the right hand and constant aching in the fingers of the right hand and numbness of the thumb and index finger of the left hand that was constant. The report notes Claimant had seen Dr. John Gamble in consultation and had received medication and heat and massage to the neck region. Claimant denied previous involvement to the cervical spine and upper extremities prior to March 8, 2000.
Dr. Stuckmeyer notes Dr. Schechter opined Claimant had marked degenerative changes in the cervical spine with narrowing of the disc spaces between C3-4, C5-6, and C6-7.
Dr. Stuckmeyer's report notes Claimant saw Dr. Stephen Reintjes on November 29, 2000. Dr. Reintjes is noted to have recorded that Claimant stated he fell approximately ten feet from the ladder and landed on concrete on March 8, 2000. Dr.
Reintjes is also noted to have recorded that Claimant stated he had an injury on November 16, 2000 while driving a company truck and striking a deer. Claimant reported that before striking the deer he did have neck pain and shooting pain throughout the upper arms with diffuse weakness of the right hand. Claimant had also described increased pain with extension of the neck and had complained of diffuse upper extremity weakness and that he could not walk right and his legs did not work right. Dr. Reintjes noted that since the motor vehicle accident on November 16, 2000, Claimant had increase in neck pain, weakness, and new complaints of low back pain.
Dr. Stuckmeyer's report describes the course of Claimant's treatment after his November 16, 2000 injury. His report notes that on December 4, 2000, an MRI scan at North Kansas City Hospital of the cervical spine revealed severe degenerative disc disease in the cervical spine with severe spinal stenosis at C3-4 and C4-5. At the C3-4 level there was osteophytosis with facet arthropathy and disc bulging. There was also a small central disc protrusion at C5-6 causing impingement on the central aspect of the cord and generalized disc bulging at C5-6, C6-7 and C7-T1. Cervical spine x-rays revealed severe cervical spondylosis but no acute fracture.
Dr. Stuckmeyer's report notes Claimant followed with Dr. Reintjes on December 21, 2000 after cervical myelogram and post-myelographic CT scan. That revealed severe concentric cervical stenosis at C3-4 with a central disc herniation at C4-5 and a left sided C5-6 foraminal stenosis. Claimant underwent a decompressive cervical laminectomy at C3-4 and was seen in follow-up post-operative on February 7, 2001. Claimant reported on March 7, 2001 to Dr. Reintjes that his right hand hurt, that he could not use his right hand, and that he had decreased dexterity. Physical therapy and occupational therapy were recommended.
Dr. Stuckmeyer's report notes that on March 21, 2001, Dr. Reintjes wrote a letter stating that the result of Claimant's injury was a spondylitic myelopathy with primarily a spastic right upper extremity. Claimant is noted to have followed with Dr. Reintjes on April 9, 2001, May 7, 2001 and June 15, 2001, when Neurontin was noted to have caused swelling in the arms and legs, and Claimant was placed on Relafen. Ongoing occupational therapy was recommended to improve dexterity of the right hand. On July 16, 2001, Dr. Reintjes noted Claimant still complained of right hand pain. He recommended Claimant return to work at a supervisory position, and felt he could lift up to ten pounds, and that he should not work at any height.
Dr. Stuckmeyer's report notes that on August 24, 2001, Dr. Reintjes' impression was that Claimant had cervical spinal stenosis at C3-4 which preexisted either accident, but was made symptomatic by the fall of March 8, 2000, and was exacerbated by the motor vehicle accident on November 16, 2000. Dr. Reintjes is noted to have attributed 60 % of the symptoms to the fall off the ladder and 40 % of the symptoms due to the motor
vehicle accident. Dr. Reintjes is noted on January 21, 2002 to have recommended that Claimant not drive as a part of any occupation, and that he not drive in high traffic situations or adverse weather conditions.
Dr. Stuckmeyer's report notes that Claimant had a functional capacity evaluation on September 14, 2001 that revealed Claimant did not meet the overall physical demand level required for consideration of safe work performance at the job of driver/security alarm installer. Claimant completed a lift and carry test demonstrating the ability to carry and lift ten, twenty, and thirty pounds a twenty foot distance.
Dr. Stuckmeyer's report notes that on December 8, 2001, vocational consultant, Mr. Dreiling, saw Claimant and stated: "I do not believe that he is realistically employable in the labor market." Dr. Stuckmeyer's report notes Mr. Dreiling also commented, "I do not believe any employer in the usual course of business, seeking persons to perform duties of employment in the usual and customary way would reasonably be expected to employ this individual in his existing physical condition."
Dr. Stuckmeyer's report notes that on February 18, 2002, an independent medical evaluation was performed by Dr. Eden Wheeler. Dr. Wheeler is noted to have commented that Claimant had "severe spinal stenosis at C3-4 level status post decompressive laminectomy with neurological sequelae of the right upper extremity, motor, and sensory deficit and associated disc coordination." Dr. Wheeler is noted to have found no clinical evidence of neurological deficit involving the lower extremities or associated gait impairment. Dr. Wheeler is noted to have believed that Claimant had chronic pain syndrome involving the right upper extremity secondary to cervical stenosis and non-vocational issues of hypertension.
Dr. Wheeler is also noted to have stated that in terms of ability to return to work, the functional capacity evaluation dated September 14, 2001 "would be an appropriate model on which to base recommendation." Dr. Wheeler is noted to have stated that despite documented evidence, there was self-limitation and increased coefficient variation on certain testing, and that based on the evaluation, "The patient would be able to lift and carry thirty pounds on an occasional basis with overhead lifting to ten pounds on an occasional basis. Limitation also would be placed on the ability to perform fine motor skills with the right upper extremity."
Dr. Stuckmeyer's February 28, 2005 report notes Claimant's current complaints and conditions. Claimant reported he was not employed and had been off work since November 16, 2000 and was receiving Social Security disability. Claimant stated he was having ongoing "significant symptoms of neck pain with no feeling in the right hand, numbness and tingling into the left arm with weakness in both of the upper extremities, bilateral decreased grip strength." Claimant related difficulty with any attempts at
overhead utilization of either arm and poor motor control and a "shaky" gait. Claimant stated his ongoing neck symptoms interfered with his sleep patterns.
Dr. Stuckmeyer's report notes Claimant reported neck pain and pain with extension and neurological complaints prior to November 16, 2000, and those symptoms "were markedly exacerbated and aggravated with the November 16, 2000 injury." The report notes Claimant's March 8, 2000 injury appeared to have initiated his cervical complaints and pathology.
Dr. Stuckmeyer's report sets forth results of his physical examination of Claimant. The report notes Claimant had "rather diffuse tenderness from the mid-cervical region to the upper thoracic region however no evidence of spasm." He had limited range of motion lacking approximately 50 % of flexion and extension and 50 % of side bending and lateral rotation. Claimant was noted to have decreased fine motor control and difficulty picking a coin up from the desktop. Dr. Stuckmeyer reported Claimant had a gait asymmetry and slight instability.
Dr. Stuckmeyer's report sets forth the following conclusion (pp. 7-8):
In summary, I feel within reasonable medical certainty that Mr. Brown represents a very complicated orthopedic/spinal patient. It is the opinion of this examiner within reasonable medical certainty that Mr. Brown did have preexisting asymptomatic degenerative arthritis of the cervical spine. As a direct result of the accident of March 8, 2000, it appears that the patient developed symptoms of neck pain and radicular symptoms into the upper extremities. The patient was appropriately managed conservatively; however, he was then involved in another workrelated injury of November 16, 2000, which markedly exacerbated and aggravated these neurological complaints. From an orthopedic standpoint I do feel the patient's treatment to date has been appropriate and indicated. I do not feel that further diagnostic studies are indicated nor do I feel that the patient would benefit from any further surgical spinal procedures.
Taking into consideration the objective findings as well as ongoing subjective complaints, it would be the opinion of this examiner within reasonable medical certainty that based on the ongoing symptoms of pain and dysfunction and neurological impairment in both the right and left upper extremity that Mr. Brown is permanently and totally disabled.
Specific to the cervical spine I would render a 15 % preexisting disability to the accident date of March 8, 2000, based on the diagnosis of advanced cervical degenerative arthritis, multi-level cervical spine. I would
assess an additional 25 % disability to the cervical spine causally related to the accident date of March 8, 2000, and another 15 % disability to the accident date of November 16, 2000.
I concur with . . . Mr. Dreiling that the patient is incapable of obtaining gainful employment due to his diagnosis of cervical myelopathy with obvious neurological impairment of upper and lower extremities and chronic cervical pain.
Dr. Stuckmeyer's report notes that his opinions are rendered within a reasonable degree of medical certainty.
Dr. Stuckmeyer testified on June 2006 that he examined Claimant on February 21, 2005. He described the records he reviewed prior to preparing his report. He discussed the history of Claimant's March 8, 2000 and November 16, 2000 accidents, Claimant's course of treatment after the accidents, Claimant's complaints, social history, the effect on ordinary pursuits of life, and his physical examination of Claimant. Dr. Stuckmeyer's testimony is consistent with his report.
Dr. Stuckmeyer testified that the significance of Claimant's decreased motor control and difficulty picking up a coin off a desktop indicated that Claimant had difficulty utilizing his fingers for even fine motions that was obviously limiting. Claimant also had decrease in grip strength of sixteen kilograms on the right and twenty kilograms on the left. Normal range would be forty to sixty kilograms on the dominant side and a percentage on the non-dominant side. Dr. Stuckmeyer testified regarding the conclusions set forth in the report, and his testimony is generally consistent with his report. He testified that Claimant was suffering from cervical myelopathy, which he stated is spinal cord damage as opposed to nerve root damage.
Dr. Stuckmeyer testified regarding Claimant's disability, and his testimony is consistent with his report. He testified that he did not feel that Claimant was capable of gainful employment.
Dr. Stuckmeyer was asked if Claimant's disability following the March 8, 2000 accident would have caused a hindrance or an obstacle in becoming reemployed if he became unemployed. Dr. Stuckmeyer answered "Yes" and testified:
I felt that the patient had ongoing symptoms of neck pain and radicular symptoms in the upper extremity. These injuries are relatively close in proximity and he was under, as I recall, neurosurgical consultation with Dr. Reintjes. And to answer your question, yes, I think his ongoing symptoms would have been a hindrance to employment after the first injury.
Dr. Stuckmeyer testified that the 55\% disability rating would be to the cervical spine. He further stated:
However, when you take the overall impact and based on Dreiling's report and the fact this patient is 62 years of age, he has significant motor function loss with limitation of range of motion.
When you take the global picture, which is what you really have to do in dealing with these individuals, I didn't feel that he was capable of gainful employment and that was in agreement with other examining physicians.
Dr. Stuckmeyer testified on cross-examination that he did not recall reviewing any medical records prior to March 8, 2000 with regard to Claimant's cervical condition.
Dr. Stuckmeyer gave the 15 % rating for preexisting based on Claimant's "significant spinal stenosis." He noted Claimant was not really complaining of neck pain and was not really having any arm pain prior to March 8, 2000, but that did not mean that there was not a problem. He agreed that Claimant was asymptomatic preexisting March 8, 2000. He agreed Claimant was gainfully employed and that there was no indication that he had missed any time from work at that time. Claimant was working full time without complaints. He agreed that Claimant was having no hindrance or obstacle to his employment at that time prior to March 8, 2000.
Dr. Stuckmeyer agreed that the only treatment records he had relating to Claimant's March 8, 2000 incident were the records of Dr. Gamble who was the only treating physician between March 8, 2000 and November 16, 2000. The treatment Claimant received during that time was conservative with hot packs, a little pain medicine, therapy but no MRI or CT. Dr. Stuckmeyer believed Claimant continued to work during that time on a full time basis without restrictions.
Dr. Stuckmeyer testified that the MRI after November 16, 2000 showed evidence of a high signal within the cord that suggested edema. He stated there was also evidence of a disc protrusion. Dr. Stuckmeyer testified: "I think it would be somewhat speculative to say that was the cord edema due to November or was it really due to the initial March injury because there clearly was evidence on Dr. Schechter's commentary that there was something going on with this gentleman." Dr. Stuckmeyer noted Claimant went to a driving school after the November 2000 injury to work with some adaptive devices because of problems that he was having after the November 2000 injury.
Dr. Stuckmeyer testified that Claimant was having "relatively significant complaints of neurological problems based on what Dr. Schechter commented on" prior to the November 2000 accident. He noted Dr. Schechter had stated that "the patient was having numbness of all fingers of the right hand, weakness of the grip, frequently dropping objects, lack of feeling, numbness, left-hand constant. Stated when he extended the cervical spine he got a tingling down the right arm." That was prior to the November accident.
Dr. Stuckmeyer also testified (pp. 46-47) that Dr. Schechter had commented:
He has neurological changes in the right upper extremity with associated numbness of the entire right upper extremity and weakness of grip of the right-hand as compared to the left. The patient definitely has neuropathy of the right upper extremity. The patient should have further examination, namely an MRI scan of the cervical spine and electrodiagnostic follow up by a neurosurgical treatment.
Dr. Stuckmeyer testified that Dr. Schechter is an orthopedic surgeon.
Dr. Stuckmeyer testified at pages 50-51:
As I opined, this individual had a bad spine, but was working. He injures himself in March, had significant problems going on based on review of Dr. Schechter's commentary and what the patient was complaining on. And it's my opinion that the patient most likely had a cervical cord, not nerve root, cord problem with a diffused numbness and tingling. There are recommendations by two specific physicians, Dr. Gamble and Dr. Schechter, that the guy had problems, most likely a myelopathic condition, which is a contused cord. And there was [sic] recommendations for treatment, MRI scan and electrodiagnostic studies, as well as orthopedic spine and neurosurgical consultation. It was never obtained, although recommended prior to accident no. 2.
After accident no. 2, he was ultimately referred to Dr. Reintjes and all these things were discussed. I think in my opinion, it was speculative to state whether it was accident no. 1 or accident no. 2 that caused the contused cord. However, based on review of Dr. Schechter's commentary and my extensive experience as a spine surgeon, this guy had a bad problem after accident no. 1. It just had not been addressed, although it was discussed. And based on my opinion and all the review of the medical records and the fact this
gentleman has ongoing myelopathic problems with an antalgic gait, I rendered the opinion that he was permanently and totally disabled.
Dr. Stuckmeyer was asked the following question at page 51:
Q. And my question to you then is, is it one accident, an injury that caused him to be permanently and totally disabled, or the other or a combination of both?"
Dr. Stuckmeyer provided the following answer to that question at pages 51-52:
A. It's my opinion, getting back to my example that I tried to give with the pipe, the first injury caused a significant problem based on Dr. Schechter's commentary. And the second injury just made matters worse. I think it would be speculative. However, I could speculate that the first injury in and of itself probably would have necessitated the surgery based on just the complaints that he was having to Dr. Schechter, and the fact that he had recommended. And that the second injury probably just caused more contusion and further problems to the cord.
Dr. Stuckmeyer testified that Claimant has problems with his gait because he got a cord contusion along with the myelopathic condition. The difficulty with the gait was subsequent to November 16, 2000. Problems with his gait would mean he would have difficulty with prolonged walking. It would make him unsteady. He would have difficulty traversing steps. Claimant was not using a cane when he saw Dr. Stuckmeyer.
Claimant's Exhibit B is the deposition of Michael Dreiling taken April 4, 2006 with Deposition Exhibit 1, Mr. Dreiling's Curriculum Vitae. Mr. Dreiling's Curriculum Vitae notes that he is a vocational consultant with thirty-one years experience in the field of vocational rehabilitation. He is a Diplomat of the American Board of Vocational Experts. He has a Master's of Science degree in guidance and counseling from Ft. Hays State University. He worked from 1975 to 1984 as a vocational rehabilitation counselor/supervisor/administrator. The CV notes that Mr. Dreiling was Director, Projects with Industry/Menninger Return to Work Center from 1984 to 2001.
Exhibit C is Volume II of the deposition of Michael Dreiling taken on May 30, 2006. Dreiling Deposition Exhibit 2 is the report of Michael Dreiling dated December 8, 2001. Dreiling Deposition Exhibit 3 is the medical report of Dr. Eden Wheeler dated February 18, 2002 pertaining to Claimant. Dreiling Deposition Exhibit 4 is the Functional Capacity Evaluation report of Daniel Fischer, Rehabilitation Consultants' Supervisor, dated September 14, 2001 pertaining to Claimant.
Mr. Dreiling's December 8, 2001 report notes Claimant acknowledged he has pain in the right hand, right arm, right leg, neck area and in the upper portion of the back area on a daily basis. The report states that Claimant "acknowledged that this pain is quite debilitating and it significantly impacts on his overall physical functioning abilities." Claimant reported that he can sit for about an hour and has difficulty with using his right hand, due to poor dexterity, poor grip and the fact that his right hand is quite tender. The report notes Claimant takes anti-depressants on a daily basis as well as muscle relaxers. Claimant acknowledged poor sleep at night due to pain and was constantly up and down. He described having a poor memory since his last injury.
Mr. Dreiling's December 8, 2001 report states that Claimant was referred for purposes of participating in a vocational assessment. Mr. Dreiling interviewed Claimant on December 3, 2001. Mr. Dreiling's report identifies portions of the reports of Edward Prostic dated November 6, 2001, Steven Reintjes dated October 12, 2001, and Nathan Schechter dated September 21, 2000 which identified functional limitations. Mr. Dreiling's report discusses Claimant's educational background, social background, prior medical information, work background, Claimant's perspective of injury, and results of vocational testing including Wunderlich personnel test. Mr. Dreiling's report sets forth the following conclusions (pages 8-9):
When I consider this gentleman's vocational profile, which includes an individual who is now 58 -years of age and soon to be 59 ; he has significant medical restrictions advised by his treating physician; and he has been indicated unable to work by several other physicians; he describes difficulties with functioning on a day in, day out basis; and he has cognitive abilities identified in the vocational testing section, it would be my opinion that I do not believe that any employer in the usual course of business, seeking persons to perform duties of employment in the usual and customary way, would reasonably be expected to employ this individual in his existing physical condition.
Pain appears to be a significant issue for this gentleman, along with a limited ability, in terms of performing either prolonged sitting or standing activities, or using his right upper extremity, which is his dominant side.
There also appears to be some significant issues surrounding his cognitive ability, given the results of the vocational testing, and his stated academic achievements, going back to the early 1960's.
This client is going to be 59-years of age in several days, and given his current vocational profile, it does not appear realistic to refer him to the State Vocational Rehabilitation Program for any type of job-placement services or further vocational-training services.
If this individual was a younger individual and had more years remaining in his work-life expectancy pattern, it may be advisable to pursue further extensive vocational testing to identify actual vocational capacities pertaining to returning to the classroom, but given his advanced age, I do not believe that is warranted or realistic.
Given this gentleman's description of his work background and his academic achievement levels, he would have obviously acquired job skills that would transfer to a sedentary level of activity. Given his limited level of functioning to a less than sedentary level and difficulty with using his dominant right upper extremity, I do not believe that he is realistically employable in the labor market.
In summary, I do not believe that any employer in the usual course of business, seeking persons to perform duties of employment in the usual and customary way, would reasonably be expected to employ this individual in his existing physical condition.
Mr. Dreiling testified by deposition on May 30, 2006. He had reviewed the medical report of Dr. James Stuckmeyer dated February 20, 2005. He noted that report indicated Claimant's medical difficulties began with the first injury and continued and were basically aggravated through the second injury. He testified he had reviewed medical reports, including the report of Dr. Edward Prostic dated November 6, 2001. He testified Dr. Prostic "commented on the spasticity of the dominant right upper extremity, limited mobility from the spastic and weak right lower extremity. He testified at that point the doctor felt that it [sic] was functionally unable to return to gainful employment."
Mr. Dreiling noted Dr. Reintjes, on October 12, 2001, felt Claimant was capable of sedentary work with stand/walk, zero to two hours at a time, stand/walk six to eight hours a day, sit for up to two hours at a time, sit for six to eight hours a day and could not use his hands for repetitive fine manipulation, and had restricted Claimant to occasionally bend, squat, kneel, and did not want Claimant climbing or reaching, and that Dr. Reintjes felt those restrictions or limitations were permanent.
Mr. Dreiling also testified Dr. Stuckmeyer felt Claimant was permanently and totally disabled and agreed with his vocational report that Claimant was incapable of obtaining gainful employment based upon his diagnosis of cervical myelopathy with the
obvious neurological impairment of the upper and lower extremities and chronic cervical pain. Mr. Dreiling testified regarding Claimant's educational background, social background, prior medical history, military background, and work history, and his testimony is consistent with his report. Mr. Dreiling was aware that Claimant had two injuries, one when he fell off a ladder, and the second when he struck a deer while driving to a jobsite.
Mr. Dreiling testified regarding Claimant's perspective of injury. His testimony is consistent with his report. He stated the results of the Wunderlich test show Claimant was at the third percentile and was basically functioning at a very low level of academics, considering a high school graduate has twenty-one correct answers compared to his eight correct answers. Mr. Dreiling did not think formal vocational training would be of significance for Claimant.
Mr. Dreiling testified that considering the medical information he reviewed, the interview process, the findings from testing, and Claimant's age, he did not believe Claimant was capable of acquiring or maintaining any type of employment in the labor market. He did not feel that employers would be in a position to employ Claimant in his current condition. He understood Claimant returned to work after his first injury. He testified that all of his opinions given that day were to a reasonable degree of vocational certainty.
Mr. Dreiling said he was aware Claimant injured his right side in the first injury in March 2000. He was not aware of what kind of treatment Claimant received between March 2000 and November 2000. He was not aware if Claimant had any limitations at work between March 2000 and November 2000. He understood Claimant never looked for work after his second injury of November 2000. He testified that there was a pretty substantial difference between what Claimant reported doing educationally and what the Wunderlich test reported.
Mr. Dreiling was shown Exhibit 4, the Functional Capacity Evaluation done September 14, 2001. The FCE indicated Claimant lifted twenty pounds six times from floor to waist height of thirty-two inches, twenty pounds nine times from waist to shelf height of sixty-seven inches, and did a lift and carry, ten, twenty, and thirty pounds a distance of twenty feet.
Mr. Dreiling was asked about Dr. Eden Wheeler's restrictions of lifting, carrying thirty pounds occasional basis, overhead lifting ten pounds occasional, limitation placed on ability to perform fine motor skills with the right upper extremity and with accommodations, as outlined by the driver's evaluation, no restrictions in terms of driving with an automatic vehicle.
Mr. Dreiling testified that after considering the additional information of the FCE and Dr. Wheeler's report, his opinions were not changed about Claimant's ability to work. He also stated Claimant needs accommodations to drive.
Dr. Eden Wheeler's February 18, 2002 report, Dreiling Deposition Exhibit 3, includes a rating of Claimant based upon the American Medical Association Guide to Evaluation of Permanent Impairment, Fourth Edition, of 25\% whole person. Dr. Wheeler's report addresses vocational impairment, and states at page 12:
In terms of the ability to return back to vocational impairment, I do feel that the Functional Capacity Evaluation dated September 14, 2001 would be an appropriate model on which to base recommendations. This is despite documented evidence that there was self-limitation as well as increased coefficient variations on certain testing. Therefore, based upon this evaluation, lifting carry would be limited to 30 pounds on an occasional basis with overhead lifting to 10 pounds on an occasional basis.
Limitations also would be placed on the ability to perform fine motor skills with the right upper extremity. Additionally, with the accommodations as outlined by the driver's evaluation, I do not see other restrictions in terms of driving either vocational or non-vocational with an automatic vehicle.
The September 14, 2001 Functional Capacity Evaluation, Dreiling Deposition Exhibit 4, states that Claimant "does not meet the overall physical demand level required for consideration of safe work performance at the job of Driver/Security Alarm Installer. He does not have the adequate strength to perform his essential job functions." The FCE notes Claimant lifted twenty pounds, six times from floor to waist height at thirty-two inches and twenty pounds, nine times from waist to shelf height, nine times from waist to shelf height of sixty-seven inches. Claimant also was noted to have completed a lift and carry test and demonstrated the ability to lift/carry ten, twenty, and thirty pounds a twenty feet distance. Grip strength was noted to be considered to be normal for the left hand and "significantly low" for the right hand.
Exhibit E is a Driver's Program Discharge Summary of the Rehabilitation Institute dated December 13, 2001 pertaining to Claimant. The Summary notes that based on six hours of behind the wheel training, Claimant demonstrated the ability to resume driving with the following equipment restrictions: 1. Left footed accelerator pedal and right foot accelerator block. 2. Spinner knob at the ten o'clock position. 3. Crossover turn signals.
Second Injury Fund Exhibit 1 is a Kansas Worker's Compensation Director Worksheet for Settlements with a copy of transcript of proceedings. The Worksheet recites in part: "Basis of Settlement: $\ 85,000.00 on a full and basis of all issues, including nature and extent, past and future benefits including medical (except any valid
and authorized incurred up to today's date), and review and modification. Settlement is equivalent to 75 % work disability."