Exhibit B contains the deposition of Dr. Bernard Abrams taken on December 9, 2009 with Deposition Exhibit 1, Dr. Abrams' Curriculum Vitae, Deposition Exhibit 2, Dr. Abrams' February 21, 2009 report pertaining to Claimant, Deposition Exhibit 3, Dr.
Abrams' September 15, 2009 supplementary report pertaining to Claimant, and Deposition Exhibit 4, Dr. Abrams' record review pertaining to Claimant.
Dr. Abrams' Curriculum Vitae notes he is Clinical Professor of Neurology at the University of Missouri, School of Medicine, at Kansas City. His Curriculum Vitae, which contains sixteen pages, notes numerous administrative positions, including President of Missouri Pain Initiative for 2009-2010, editorial positions, including Associate Editor, Pain Digest (tutorials), and board certifications, including American Board of Psychiatry and Neurology, Neurology 1971, the American Board of Clinical Neurophysiology, American Association of Electromyography and Electrodiagnosis, and the American Board of Electrodiagnostic Medicine. Memberships and organizations are detailed, including active membership in the American Academy of Neurology. The Curriculum Vitae notes that Dr. Abrams is presently a member of the hospital staff of Menorah Medical Center. The Curriculum Vitae notes numerous publications, lectures, reviews, and videotapes.
Exhibit 3 notes that Dr. Abrams is "experienced in pain problems and complex regional pain syndrome 1 (RSD), having seen and treated hundreds of cases." Exhibit 3 also notes that Dr. Abrams is the author of seven chapters "in the major recent textbooks recognized as authoritative in the field-Waldeman's Pain Management and Raj's Practical Pin [sic] Management."
Dr. Abrams' February 22, 2009 report notes that Dr. Abrams saw Claimant on February 18, 2009. Dr. Abrams' report describes the history of Claimant's injuries beginning on December 9, 2002, and the treatment for those injuries. The report notes that from the beginning, Claimant has had significant right knee pain that has gotten worse. The pain is described as "about four inches above and below the knee and is characterized as a burning sensation which is present ' 99 % of the time.'" The pain is in Claimant's right knee.
Dr. Abrams' February 22, 2009 report describes his review of records.
Dr. Abrams' February 22, 2009 report sets forth the following summary and conclusions:
With reasonable medical certainty, this patient has the following diagnoses:
- Complex regional pain syndrome of the right lower extremity. This is secondary to his injury of December $9^{\text {th }}, 2002, arthroscopic surgery, January 10^{\text {th }}, 2003$ which was natural
consequence of a tear of the medial meniscus of the right knee with contusion of the under surface of the patella.
- As a consequence of this he had a deep vein thrombosis, January $16^{\text {th }}, 2003$ with development of complex regional pain syndrome 1 .
- He has also as a consequence, acute and chronic low back pain with degenerative disc disease due to a fall November $2^{\text {nd }}, 2004 and a tear of the rotator cuff of the left shoulder due to a fall December 10^{\text {th }}, 2004$.
- He also has depression which is chronic due to pain.
- He also has chronic constipation.
In response to your inquiry of January $14^{\text {th }}, 2009$, all of these conditions that he has enumerated above are permanent. There is a causal connection between his present conditions, i.e., complex regional pain syndrome and left rotator cuff tear as well as bilateral carpal tunnels and his work place injuries. Currently this patient has an extremely limited existence which is horrible for both him and his wife. He is willing to do any treatment advocated by a physician and I would certainly do a spinal cord stimulator trial and if successful, implant a spinal cord stimulator which cost in the neighborhood of 50 to 75,000 dollars with every 3 to 5 year battery replacements at approximately $\ 20,000. If this fails, then the patient will be on the same chronic medication he has been on to this date indefinitely.
This man is with reasonable medical certainty permanently and totally disabled by virtue of his chronic pain due to CRPS1, his left rotator cuff tear, his bilateral carpal tunnel syndrome, and his degenerative spondylosis of the lumbar spine.
Deposition Exhibit 3, Dr. Abrams' September 15, 2009 report, sets forth the following ratings:
I apologize for not having given the following ratings since I felt (and still do) that he was permanently and totally disabled):
Right leg: 60 % at the level of the knee
Left shoulder: 30 % at the level of the shoulder
Injury to low back and soft tissues: 5 % body as a whole.
Bilateral carpal tunnel syndromes 10 % at the level of each wrist.
Dr. Abrams testified regarding portions of his report. His testimony is consistent with his reports. He testified he reviewed the medical records before he saw Claimant. He examined Claimant. Claimant was agitated and clearly depressed about his situation. He was in pain and his pain increased during the examination.
Dr. Abrams diagnosed Claimant as having complex regional pain syndrome of the right lower extremity (Abrams deposition p. 13) that was secondary to Claimant's injury of December 9, 2002, arthroscopic surgery January 10, 2003, and deep vein thrombosis January 16, 2003. He stated that complex regional pain syndrome is sometimes referred to as regional sympathetic dystrophy.
Dr. Abrams was asked the following question and gave the following answer (pp. 13-14):
Q. Can you tell us what Chronic Regional Pain Syndrome is?
A. Well, Chronic Regional Pain Syndrome is, first of all, a painful condition which goes on for more than three months and which is characterized by a number of criteria. One's sensory, and he does have abnormal sensory findings; that is, things that are ordinarily non-painful are painful, and that was demonstrated by spraying him with cold, observing his pulse. He also has edema or swelling, which he clearly has. He has trophic changes which are changes in the skin striation, changes in the color. He has vasomotor phenomena which are changes in color of the extremities and temperature of the extremities.
So he really has -- oh, and he has motor, which is weakness. So he really has the gamut of findings that you see in Complex Regional Pain Syndrome I.
Dr. Abrams was asked regarding the causation of Claimant's condition. He answered (pp. 20-21):
A. Well I felt that his Complex Regional Pain Syndrome was secondary to his injury of December 9, 2002, the arthroscopic surgery of January $10^{\text {th }}, 2003, and contributed to by his deep vein thrombosis identified January 16^{\text {th }}, 2003$, which is not uncommon with arthroscopic surgery of the knee so it's a natural consequence of that.
I thought that he had acute and chronic low back pain due to a fall and, you know, also somewhat of his altered state and that he had
a tear of his rotator cuff left shoulder due to a fall December $10^{\text {th }}$, 2004, and his other two diagnoses, depression and constipation were natural consequence of his -- of his illness.
I, as you doubtless know, issued a supplementary report where I considered some other things that were related, and at that point I rated him. I thought he had bilateral carpal syndrome from using crutches, and in my supplementary report of September $15^{\text {th }}, 2009$, I identified the reasons and the rationale for each of my diagnoses and also went through the diagnostic criteria for his Complex Regional Pain Syndrome I.
Dr. Abrams testified that Claimant needs a spinal cord stimulator trial.
Dr. Abrams was asked whether Claimant will need future medical treatment. He answered at page 26 :
Well, he's definitely going to need future medical care. If you just look at the number of medications he's on related to his, you know, condition, then he's going to need somebody to really monitor him closely because just nobody will take the responsibility for giving him those kinds of medications and those kinds of doses without seeing him, you know, monthly or maybe every two months at least.
Dr. Abrams was asked how Claimant's condition affects his ability to perform occupational activities. He answered (page 27), "My opinion is that he is unable to perform any occupation." He testified his opinions stated in his deposition and Exhibits 2 and 3 had been stated within a reasonable degree of medical certainty.
Dr. Abrams was asked the following questions and gave the following answers (page 28):
Q. And if I understand you correctly, you indicated that he was permanently and totally disability from all the various injuries he has?
A. Yes.
Q. And that's when you take them together and not individually; for example, the torn meniscus doesn't make him totally disabled?
A. No, but a good deal of his problems come from the torn meniscus because of the pain in the knee for multiple medications which sort of obtund him, sort of rendered him less mentally sharp. So a lot of it is that, but when you take the additive of his low back pain and hands and his left shoulder, they really add up.
Q. So it's when you add all of them together, the left shoulder, the knee, the Complex Regional Pain Syndrome, the depression, the low back, all of those things combined to make him totally disabled?
A. Yes.
Dr. Abrams stated Claimant's total disability includes his left arm and shoulder as well as his carpal tunnels.
Dr. Abrams testified that he does not actively treat patients. About ten percent of Dr. Abrams' work is in a medical legal setting. Probably sixty percent of that is on behalf of the injured individual, ten or fifteen percent comes from administrative law judges in Kansas, and the range of twenty-five to thirty percent would be defendant or employer.
Dr. Abrams acknowledged that Claimant was not started on Trazadone or Cymbalta until after his December 2004 injury.
Dr. Abrams testified that he rated Claimant's right leg at 60 % at the knee, and that he related the right knee to the December 9, 2002 original injury. He related the 30\% rating of the left shoulder to the December 21, 2004 event where Claimant was repositioning himself in the truck.
Dr. Abrams was asked the following questions and gave the following answers (page 61):
Q. And then you indicate injury to his low back and soft tissues 5 percent of the body, and that's in reference to, I believe, three separate falls?
A. Correct. November $2^{\text {nd }}, December 10^{\text {th }} and December 17^{\text {th }}$, 2004.
Q. And you didn't apportion any disability between those three falls?
A. Among them, no.
Q. Among them, thank you for correcting me, Doctor.
A. No, I couldn't do that. I mean, the man's recollection five years later is much to imperfect for that.
Dr. Garth Russell
Exhibit A is the deposition of Dr. Garth Russell taken on June 22, 2009, with Deposition Exhibit 1, Dr. Russell's Curriculum Vitae, Deposition Exhibit 2, a partial list of Dr. Russell's depositions and court testimonies given in the past year, and Deposition Exhibit 3, Dr. Russell's May 9, 2008 report. Dr. Russell's Curriculum Vitae notes that he has staff positions with Columbia Regional Hospital, Columbia, Missouri, University of Missouri-Hospital and Clinics, Columbia, Missouri, and Boone Hospital Center, Columbia, Missouri. He is Clinical Associate Professor of Orthopedic Surgery at the University of Missouri, School of Medicine in Columbia, and has been since 1970. He is Board Certified by the American Association of Evaluating Physicians and the American Board of Orthopedic Surgery. He is a licensed Medical Doctor. His Curriculum Vitae identifies numerous professional memberships, committee assignment positions, and directorships. His Curriculum Vitae also includes bibliography, scientific exhibits and numerous audio/visual presentations.
Dr. Russell's May 9, 2008 report states that Claimant "dates his injury to December 9, 2002." The history of Claimant's right knee injury is described in the report, as is the history of subsequent treatment, including arthroscopic knee surgery on January 10, 2003, diagnosis of blood clot, and treatment with Dr. Baade and Dr. Cathcart in 2003 and 2004. The report notes Claimant stated that he tripped over some telephone wires in the office on April 26, 2004 and reinjured his right leg and returned to work. Dr. Russell's report notes that Claimant was subsequently seen by Dr. Cathcart for an injury which occurred on November 2, 2004 where he fell backwards. Claimant stated he injured his low back and left leg. The report notes, "Subsequently, he said he fell backwards on the marble stairs at City Hall, falling in his left side, injuring his left elbow, his left shoulder, his left hip, and lower back."
Dr. Russell's report further notes, "Later, he states that his left shoulder popped while he was adjusting himself in the city truck." Claimant's medical treatment in 2006 is described, including surgery on Claimant's left and right hands in 2006 and an MRI of the left shoulder performed on July 17, 2006 with diagnosed tear of the rotator cuff.
Dr. Russell's report notes Claimant states he is unable to work for a considerable period of time, and he walks with crutches and a walker. Claimant's complaints are noted. The report notes Claimant was presently receiving Hydromorphone and Dilaudid
for pain, Flexeril for muscle relaxation, Trazadone, and Cymbalta for chronic depression. The report discusses the results of Dr. Russell's physical examination of Claimant. The examination of lower extremities revealed "a red splotch, discoloration to both lower extremities from the knee distalward. It was more severe on the right than it was on the left side. Touching, stimulating the right lower extremity produced parasthesia and a reaction on the part of the patient. The measurement of his lower extremities were approximately the same, however, one could not definitely determine because of the history of venous enlargement." Range of motion measurements are discussed.
Dr. Russell's May 9, 2008 report sets forth the following final diagnosis:
- Tear medial meniscus, right knee with contusion of the undersurface of the patella secondary to injury December 9, 2002.
- Arthroscopic surgery January 10, 2003 secondary to above.
- Deep venous thrombosis January 16, 2003 secondary to above.
- Development of complex regional pain syndrome or reflex sympathetic dystrophy, chronic secondary to above.
- Acute and chronic lumbar strain superimposed upon preexisting degenerative disc disease, lumbar area, secondary to fall on November 2, 2004.
- Tear rotator cuff left shoulder with additional injury to his lower back secondary to fall of December 10, 2004.
- Reactive depression, chronic, severe.
Dr. Russell's report sets forth the following opinions (pp. 7-9):
It is my opinion that the patient's injury to his right knee is consistent with the fall that he describes on December 9, 2002. His treatment with arthroscopic surgery and chondroplasty was performed. Post-operatively the patient developed a deep vein thrombosis confirmed by venogram. He was treated appropriately but developed severe pain and paresthesias in the right leg. A diagnosis of reflex sympathetic dystrophy or complex regional pain syndrome, Type I, was made. There has been some debate among the treating physicians as well as the evaluating physicians as to the presence of this entity.
Complex regional pain syndrome is an accepted medical condition which produces many varied findings, but with consistent pain and discomfort, chronic, into the extremity in which it occurs. Such is consistent in this case. This is a condition in which there is dysfunction of the sympathetic nerve system secondary to injury. He received three sympathetic nerve blocks by Dr. Baade with only partial relief of his symptoms.
The fact that he received any relief lends some support to the diagnosis of complex regional pain syndrome, inasmuch as he has multiple reasons for the pain and some symptoms may continue following chemical blocking of the nerve.
The patient did return to work, but was receiving massive amounts of narcotic medication over an extended period of time. He, by history, fell upon several occasions, but the two major ones occurred when he fell down marble steps in November of 2004. He sustained additional injury to his back and to his shoulders. This fall is consistent with a patient who has dysfunction of his right knee with pain the right lower extremity. In addition, the muscles were atrophied secondary to the fact that he used ambulatory support, i.e., cane or crutch when walking. In addition, the consumption of the medication which he was taking would cause some dizziness and loss of balance.
There was a documented tear of the rotator cuff and capsule of the left shoulder following the fall. He does show in addition symptoms in his lower back with chronic muscle spasm present. Because of the multiple bulges within the discs, it is my opinion that these did pre-exist his fall, but he did aggravate the pre-existing degenerative disc disease with the fall and now he exhibits chronic spasm in the musculature of his back of a mild to moderate nature.
One of the main difficulties in this patient which contributes to loss of function in his chronic reactive depression. Consumption of the amount of analgesic or pain killing medication of the narcotics the strength of which this man is receiving will produce chronic reactive psychological depression. This patient exhibits this both in his history following the injury of December 9, 2002. This is exhibited by his reaction to his injuries, to his subsequent falls, and response to treatment from multiple practitioners.
To remove this patient from all of his pain medication at the present time would be a major medical task, inasmuch as the physiological system of his body has become addicted to the medication. In addition, the chronic depression with the pain medication and his anti-depressant medication certainly precludes him from pursing any and all gainful employment. In addition, it is my opinion that these changes are permanent and will continue throughout the remainder of his life.
Dr. Russell testified that he examined Claimant on May 9, 2008. He testified Claimant had the appearance of being in chronic distress and talked with a garbled rambling manner. He was unable to walk without support. There was marked crepitans of the undersurface of the kneecap on the right side. Claimant could only abduct his left arm about half-way between his head and his shoulder. The limitation of motion of the low back was tender over the lumbosacral area and over both sacroiliac joints. He had about 50 % of the normal range of motion in his back. Claimant was not able to straighten his right leg out.
Dr. Russell described the diagnoses set forth in his report. He testified Claimant has complex regional pain syndrome. His opinion was based on Claimant's history with his injury, his subsequent surgery, his continued pain, his review of the records of the treating physicians, his examination of Claimant on May 9, 2008, and Claimant's description of the symptoms he was having.
Dr. Russell testified that Claimant's complex regional pain syndrome (which is another term for reflex sympathetic dystrophy) "was secondary to the injury that he had on December the $9^{\text {th }} of 2002 which resulted in the surgical intervention of January the 10^{\text {th }}$ of 2003" (pp. 18-19), and that the regional pain syndrome occurred following that surgery. He noted Claimant has had only partial relief from the treatment he has received. He noted Claimant had been receiving a substantial amount of narcotics, hydromorphone.
Dr. Russell testified: "He is receiving treatment for the side effects of the heavy doses of narcotics which is depression, chronic depression. And so he's receiving Cymbalta which is an antidepressant medication. But those are his treatments he is receiving now for his complex regional sympathetic dystrophy." (p. 21).
Dr. Russell testified that the treatment Claimant had received with the medications was appropriate and is appropriate at the present time for complex regional pain syndrome. (p. 22).
Dr. Russell testified, "In my opinion the amount of medication that he is receiving of the narcotics is making him both mentally and physical unable to pursue any gainful employment." (p. 22). He further testified: "It's my opinion that this man is unable to communicate. He is unable to physically function in using his lower extremities and his body. But based upon these two facts it's my opinion he is unable to pursue any gainful employment." (pp. 23-24)
Dr. Russell testified that another diagnosis "was acute and chronic lumbar strain superimposed upon preexisting degenerative disc disease, lumbar area, secondary to a fall occurring on November 2, 2004." (p. 24).
Dr. Russell testified that another diagnosis was a tear of Claimant's rotator cuff of the left shoulder with additional injury to his lower back due to a fall on December 10, 2004. He was asked how he made that diagnosis. He answered: "Well, this was based upon the history of the patient who indicated to me that his, with his right knee could not be trusted and therefore was the source of his fall when he occurred on the city, when he fell on the City Hall's steps I believe on November the $2^{\text {nd }} of 2004. And I believe an additional fall had occurred on December the 10^{\text {th }}$ of 2004." (pp. 25-26). Dr. Russell did not recommend surgery to repair the rotator cuff tear.
Dr. Russell was asked about the cause of Claimant's acute and chronic lumbar strain. He answered: "A. My opinion based upon the patient's history that he gave me, upon review of his medical records, that it was due to a fall that occurred on the marble steps on the City Hall of St. Joseph, Missouri which caused the pain in his lower back." (p. 27). He testified that Claimant's lumbar strain was permanent and would interfere with his ability to pursue gainful employment. (p. 28). He stated that Claimant would have difficulty because of his rotator cuff injury in working above his head or lifting anything that would weigh more than fifteen or twenty pounds.
Dr. Russell testified that Claimant has a reactive depression, chronic, severe, which is a known complication of the treatment that Claimant is receiving for his complex regional pain syndrome and will continue that way in the future. (p. 29). Dr. Russell testified that Claimant's use of an assistive device is appropriate because he is unable to ambulate or walk without an assistive device.
Dr. Russell was asked the following questions and gave the following answers (pp. 37-38):
Q. Were you able to -- do you have an opinion on whether or not the fall that occurred in 2004 is related to the injuries he suffered after December 9, 2002?
A. Yes.
Q. And what is that opinion?
A. It's my opinion that his knee buckled, his right knee buckled causing the fall. And it buckled because of the injury which he sustained in the fall that occurred in 2002 on December the $9^{\text {th }}$.
Q. And what about his injury from 2002 leads you to that opinion?
A. Well, it was the type of injury that he had, the surgery that he's had and his history of multiple falls after that time and plus the examination of his knee which revealed that the impairment and deformity in the right knee that will produce those falls.
Q. Do you have an opinion on whether or not the fall that occurred in December of 2004 is related to the injuries Mr. Pace suffered in, as a result of his December, 2002 fall?
A. I do have an opinion.
Q. And what is that?
MR. EISFELDER: I'm going to object. It's calling for speculation. No proper foundation.
A. It's my opinion it again that due to the impairment and the function of his right knee which caused it to buckle and fall.
Q. And on what basis do you assert that?
MR. EISFELDER: Renew my objections.
A. Based upon the patient's history.
Dr. Russell stated he is familiar with the Missouri system for rating disabilities and has "rated hundreds and hundreds and hundreds of cases." He testified he has operated on hundreds of knees over the years. He has experience rating knee injuries and shoulder injuries. He has operated on many shoulders and has rated backs, particularly on some of the seven thousand backs that he did surgery.
Dr. Russell testified that "based upon the lack, the loss of motion of the knee, the degenerative changes present and the instability of the knee for ambulation that he had a 60 % permanent partial impairment rated at the right knee or at the 160 -week level." His rating is based upon reasonable medical certainty. (p. 43).
Dr. Russell rated Claimant as having sustained a 30\% permanent partial impairment of his left shoulder at the 232 week level based on physical examination, moderate weakness in the ability to abduct his left upper extremity at the shoulder, restriction of motion. He also noted that Claimant had loss of flexion with the knee of ten degrees, loss of ten degrees of extension in his right knee, marked degenerative changes on the undersurface of the patella with severe chondromalacia and generalized edema and weakness of his right lower extremity and a history of function with the knee in observing his function. He testified that specifically the complex regional pain syndrome did not affect his rating of Claimant's right knee. (pp. 48-49)
Dr. Russell testified Claimant had sustained a 5\% whole body physical impairment to his lower back to the body as a whole based on chronic muscle spasm, restriction of motion and subjective tenderness within the back. Dr. Russell also stated, "It was my opinion that based upon the rating of his left shoulder, his knee and his back, that he had 51 % whole body physical impairment. It is further my opinion that based on his reactive depression that he was total and completely physically disabled from gainful employment or from function of his body in the future." (pp. 52-53)
Dr. Russell was asked whether Claimant's chronic reactive depression is related in any way to the December 9, 2002 fall and the injuries he sustained as a result of that fall. He answered (p. 54):
It's my opinion, that the injury to his right knee was secondary to the fall in 2002 which left him with an unstable knee with multiple falls injuring his back in 2004, his left shoulder and his complex regional pain syndrome which required medication which rendered him 100 %, which rendered him based upon the second injury phenomena to be 100 % physically impaired."
Dr. Russell stated the chronic reactive depression was a second injury fund phenomena "in the fact that this impairment was secondary to his treatment required for the multiple injuries which he had received and then which extended his impairment over his entire body and made it 100 % complete." (p. 53). He testified his opinions had been stated within a reasonable degree of medical certainty.
Dr. Russell was asked on cross-examination about what his understanding of what happened on November 2, 2004. He answered: "A. That he had fell on the city steps,
marble steps in the City Hall of St. Joseph, Missouri. He was asked: "Q. Did he indicate that he had slipped?" He answered: "A. I don't remember if he used the word slipped or his knee gave out or what." (p. 62).
Claimant told Dr. Russell he injured his low back and his left leg as a result of the November 2, 2004 event. He did not indicate that his right leg complaints were aggravated.
Dr. Russell was unaware of an injury Claimant had claimed on December 17, 2004 when Claimant indicated he was injured when a dog jumped on him.
Claimant indicated he returned to work after the April 26, 2004 incident when he tripped over some telephone wires in the office and reinjured his right leg. Dr. Russell acknowledged Claimant returned to work after his work accidents in November 2004 and December 2004.
Dr. Russell did not attribute any of Claimant's left shoulder injury to Claimant reaching up and adjusting himself in the city truck when he felt the pop in his shoulder. It was Dr. Russell's opinion that if Claimant's left shoulder did pop or finish tearing in the car, it was secondary to the fall that he had had. (p. 78). He stated, "Just because you're just pulling yourself around in a car would not tear it." (p. 78).
Dr. Russell further testified: "It's my opinion that, that his, 100\% whole body impairment is secondary to a combination of the injuries of December '02 and the two injuries in '04." (p. 83). He agreed that the combination of all the injuries with the chronic reactive depression, severe, would apply for the second injury. (pp. 83-84)
Dr. Russell was asked if he had an opinion about whether or not the second injury phenomena is related to the December 9, 2002 accident and subsequent injuries that Claimant sustained. He answered, "Well, it's my opinion that the initial injury of December 9, 2002 caused the injury to his knee with the subsequent complex regional pain syndrome requiring medication and treatment and the deep vein thrombosis. His knee then buckled, was not trustworthy, caused him to fall these multiple times which, so it, it all relates back to that one injury." (p. 93). His opinion was stated within a reasonable degree of medical certainty.
Employer's Evaluating Physician—Dr. P. Brent Koprivica
The deposition of Dr. Koprivica taken on February 16, 2009, Exhibit 1, with Koprivica Deposition Exhibits was admitted subject to objections contained in the deposition. Koprivica Deposition Exhibit 1 is Dr. Koprivica's Curriculum Vitae.
Deposition Exhibit 2 is the July 6, 2009 report pertaining to Claimant. Deposition Exhibits 3 through 8 are records of Dr. David Cathcart pertaining to Claimant.
Dr. Koprivica is a Medical Doctor. He is Board Certified in Emergency Medicine and in Occupational Medicine. He belongs to the American Board of Independent Medical Examiners.
Dr. Koprivica examined Claimant at the request of Employer's attorney, Bart Eisfelder, on July 6, 2009. Dr. Koprivica reviewed medical records identified in his report, Claimant's deposition of March 28, 2005, claims for compensation, report of Dr. Bernard Abrams dated February 21, 2009, report of Mary Titterington dated August 8, 2008, report of Dr. Garth Russell dated May 9, 2008, and additional records identified in the report.
Dr. Koprivica's July 6, 2009 report describes Claimant's educational and vocational history. The report also discusses the history of present injury/illness. The report notes Claimant was involved in a motor vehicle accident in 1999 when the vehicle Claimant was driving was t-boned on the driver and rear passenger side. Claimant reported missing minimal time from work, being treated by a chiropractor, receiving a settlement, and having ongoing chronic neck and left shoulder pain for a couple of years associated with the accident.
Claimant told Dr. Koprivica that his symptoms after the 1999 motor vehicle accident "seemed to resolve." Dr. Koprivica's report further states: "However, on direct questioning, he admitted that he would have an obstacle to reemployment, if he had lost his employment with the City of St. Joseph for any type of job that required any extensive overhead activities, especially using the left upper extremity of the shoulder." The report notes Claimant also had another motor vehicle accident in 2002 and had a neck strain.
Dr. Koprivica's report discusses the history of Claimant's work injury of December 9, 2002. The report notes Claimant's right knee injury and discusses the history of the treatment for that injury. Dr. Koprivica's discussion of the medical treatment Claimant received following that accident is consistent with the medical treatment records in evidence. Claimant worked light duty for a time after the accident. Dr. Koprivica's report describes the medical treatment Claimant received after the injury. An MRI on December 21, 2002 revealed tearing of the medial lateral menisci. Claimant was referred to Dr. Smith who saw him on December 31, 2002. An anterior partial medial meniscectomy and patellar chondroplasty were performed on January 10, 2003. Claimant developed deep venous thrombosis on the right and was hospitalized from January 16, 2003 through January 19, 2003. He had physical therapy. A bone scan on March 7, 2003 revealed some right patella inflammatory changes. Claimant saw Dr. Baade at Heartland Pain Clinic on April 1, 2003. The report notes Dr. Baade concluded
Claimant did not have reflex sympathetic dystrophy. Claimant returned to work on April 8, 2003.
Claimant saw Dr. McCormick on April 30, 2003 for a second opinion. Dr. McCormick gave Claimant a steroid injection. Claimant had ongoing rehabilitation through HealthSouth Rehabilitation. Dr. McCormick recommended a home exercise program and use of Celebrex. Dr. Smith rated Claimant on June 27, 2003 at 6\% impairment of the right lower extremity.
Claimant was evaluated by Dr. Cathcart on September 24, 2003. Dr. Cathcart is noted to have been concerned about reflex sympathetic dystrophy and recommended an MRI scan of the right knee and EMG testing.
Dr. Freeman performed electrodiagnostic studies on February 4, 2004 that were negative for any evidence of neuropathy or radiculopathy. Dr. Freeman is noted to have thought there was a probable reflex sympathetic dystrophy or complex regional pain syndrome.
Dr. Koprivica's report states Dr. Baade saw Claimant on February 9, 2004, and noted Claimant was positive for anxiety and depression. Dr. Baade is noted to have reiterated he did not believe Claimant had reflex sympathetic dystrophy. Claimant continued to treat with Dr. Baade and had a series of lumbar epidural injections.
Dr. Koprivica notes Claimant had another injury on April 28, 2004 when he strained his right knee when he caught his foot in cords and wires while standing near a desk. Claimant saw Dr. Baade on May 12, 2004 and reported increased right leg pain. Xrays were negative.
Dr. Koprivica's report notes Dr. Smith discharged Claimant on July 9, 2004 and indicated he could work. Dr. Koprivica's report notes that on July 19, 2004, Dr. Smith indicated that Claimant could perform all the essential functions of his job without restrictions and released him on July 12, 2004.
Dr. Koprivica's report notes Claimant saw Dr. DiStefano on July 27, 2004. Dr. DiStefano is noted to have been concerned about the amount of narcotic use and the duration of the narcotic use. Dr. Koprivica's report notes that Dr. DiStefano saw Claimant on September 23, 2004 and noted there was really no evidence of reflex sympathetic dystrophy changes. Dr. DiStefano was noted to have felt that Claimant's complaints related to post-phlebitic changes related to his prior deep venous thrombosis.
Dr. Koprivica's report notes Claimant had another episode where he fell backward on the stairs because of weakness in the right leg on November 2, 2004. Dr. Cathcart is noted to have seen Claimant on November 5, 2004 and diagnosed multiple contusions.
Dr. Baade saw Claimant on November 16, 2004 and added Klonopin for Claimant's anxiety issues.
Claimant is next noted to have been injured on December 10, 2004 when his right knee gave out causing a loss of balance and he fell walking down the stairs. Claimant saw Dr. Cathcart that day and was diagnosed with multiple contusions. He was released to his regular duty work on December 12, 2004. Dr. Koprivica's report notes that on December 13, 2004, Dr. Cathcart returned Claimant to restricted duty with sit-down work.
Dr. Koprivica notes Claimant was next injured on December 17, 2004 when a dog jumped on his back, resulting in a strain injury to his back and right leg. Claimant saw Dr. Cathcart on December 20, 2004.
Dr. Koprivica notes medical records contain notations that Claimant's left shoulder popped when shifting his weight in a truck on December 21, 2004.
Claimant is noted to have been released by Dr. Cathcart on January 3, 2005. Dr. Koprivica notes that on February 17, 2005, Dr. Stuckmeyer performed an evaluation and assigned a 40 % permanent partial disability of Claimant's right lower extremity of the level of the hip based on the December 9, 2002 work injury.
An MRI scan done on the lumbar spine on February 18, 2005 is noted to have revealed degenerative disc disease at the L4-5 level with disc desiccation and broad disc bulge. Claimant continued to follow with Dr. Baade and was maintained on Dilaudid, Klonopin and Flexeril.
Claimant was seen by Dr. Wheeler on June 29, 2005. Dr. Wheeler is noted by Dr. Koprivica to have stated that Claimant's low back complaints were not a cause or consequence of the December 9, 2002 injury. Dr. Wheeler is noted to have assigned a 6\% impairment of the right lower extremity at the 160 -week level. Dr. Wheeler is noted to have felt the back pain is related to Claimant's November 2, 2004 injury. Dr. Koprivica's report states in part: "I would note that on my understanding of Mr. Pace's history, the back complaints are really more dated to the December 17, 2004, injury, where the dog jumped on him." (page 15).
Dr. Koprivica notes Dr. DePriest performed endoscopic carpal tunnel release on January 13, 2006 and right endoscopic carpal tunnel release on February 10, 2006.
Dr. Koprivica notes Dr. Hendler performed an independent medical evaluation on June 27, 2006. Dr. Hendler is noted to have stated he did not believe there were findings suggesting complex regional pain syndrome or reflex sympathetic dystrophy. Dr. Hendler is noted to have stated he did not believe Claimant required a cane on an ongoing basis. Dr. Hendler is also noted to have stated that the bilateral carpal tunnel syndromes were unrelated to Claimant's gait assistance since he was using the cane in only one hand. Dr. Hendler is also noted to have stated that Claimant's internal derangement of the right knee was attributable to the December 9, 2002 injury and the back pain "would be either due to the gait abnormality that occurred on November 2, 2004 or December 10, 2004."
Dr. Koprivica's report notes Dr. Hendler stated that Claimant was at maximum medical improvement, but required ongoing care and treatment from a chronic pain management standpoint. Dr. Hendler is noted to have assigned a 15 % permanent partial disability for the right knee based on the December 9, 2002 injury and 2\% permanent partial disability based on back pain. Dr. Hendler assigned a 10\% permanent partial disability to the right hand at the level of the wrist (175-week level) for the right carpal tunnel syndrome and a separate 10 % permanent partial disability of the left hand at the level of the wrist (175-week level) for the left carpal tunnel syndrome. He noted in combining all the disabilities, the knee, the median neuropathies and the back injuries, Dr. Hendler assigned a twenty (20) percent permanent partial disability to the body as a whole.
Dr. Koprivica discusses Dr. Cathcart's December 6, 2007 report, Dr. Russell's May 9, 2008 report, Mary Titterington's vocational evaluation of August 8, 2008, and Dr. Abrams' evaluation of February 21, 2009.
Dr. Koprivica's report notes Claimant's current complaints including ongoing severe right knee pain underneath the knee cap as well as other complaints in the right lower extremity. He notes Claimant reports low back pain that radiates to the right lower extremity. Claimant is noted to use two canes and sometimes a walker. Dr. Koprivica's report notes Claimant has been told he is too high a risk for left shoulder surgery. Claimant's bilateral hand complaints are noted including thumb pain and ulnar based numbness. Claimant's medications are noted.
Dr. Koprivica performed a physical examination. The results are discussed in detail in the report.
Dr. Koprivica's report sets forth conclusions and recommendations. These include the following:
- As Mr. Pace presents, there are several conclusions that I would like to make.
In general, it is my opinion with all the data that is available that Mr. Pace is, indeed, permanently totally disabled.
I would note the vocational information provided by Mary Titterington in that regard.
- Pre-dating the initial work injury claim date of December 9, 2002, Mr. Pace had pre-existent industrial disability based on chronic cervicothoracic pain. This specifically related in terms of onset with the motor vehicle accident that occurred in 1999. The subsequent motor vehicle accident in 2002 did not significantly contribute to this disability, although it is a contributor.
For this pre-existent condition in terms of the chronic cervicothoracic pain, I would assign a twelve and one-half (12-1/2) percent permanent partial disability to the body as a whole.
- In looking at this pre-existent industrial disability, Mr. Pace would be restricted from repetitive overhead activities, especially weighted activities. He would be limited in climbing. He would also need to avoid activities where head and neck jarring are likely, such as operating heavy equipment.
I would note that Mr. Pace's subjective history of obstacle to re-employment is consistent with this assignment of pre-existent industrial disability.
- Mr. Pace's work injury of December 9, 2002, represents the direct, proximate and substantial factor in Mr. Pace's development of chronic lower extremity pain.
- In reference to the December 9, 2002, work injury claim in isolation, it is my opinion that Mr. Pace is at maximal medical improvement.
- For the primary injury of December 9, 2002, considered in isolation, in and of itself, I would assign a thirty-five (35) percent permanent partial disability of the right lower extremity at the level of the knee (160-week level).
In my opinion, the December 9, 2002, injury is not totally disabling considered in isolation, in and of itself.
- I would note that there is Second Injury Fund liability associated with the claim injury date of December 9, 2002.
In my opinion, the synergism of combining the pre-existent industrial disability in the cervicothoracic region with the additional permanent partial disability attributable to the December 9, 2002, injury is represented by a 10 percent enhancement factor.
- Prior to the work injury claim of November 2, 2004, there were additional injuries to the right lower extremity dated April 28, 2004, and May 2, 2004, as I have documented in the text above.
There apparently are not primary work injury claims filed for these injury dates, although I believe they are contributors to the chronic right lower extremity pain that is ongoing.
For each of these claim dates, I would separately apportion five (5) percent permanent partial disability of the right lower extremity at the level of the knee (160-week level).
I would consider these no-work-related injury dates to be substantial contributors to the permanent partial disability with which he presents of the right lower extremity and represented by this assignment of permanent partial disability.
- The November 2, 2004, claim where he fell backward on the stairs represents a separate injury with further aggravating injury to the right lower extremity. There were other multiple soft tissue injuries associated with this contributing to the chronic pain presentation.
- For the November 2, 2004, injury considered in isolation, in and of itself, I would consider a five (5) percent permanent partial disability to the body as a whole to be appropriate.
- I would not find any Second Injury Fund liability associated with the November 2, 2004, work injury.
- I would clearly point out the November 2, 2004, injury is not totally disabling considered in isolation, in and of itself.
- For the December 10, 2004, considered in isolation, in and of itself, I would assign a fifteen (15) percent permanent partial disability of the left upper extremity at the level of the shoulder (232week level).
Separately, for the additional contributors to the chronic pain including the aggravating injury to the right lower extremity as well as other soft tissue contusion, I would assign a separate five (5) percent permanent partial disability to the body as a whole.
When looking at these conditions, globally, a fifteen (15) percent permanent partial disability to the body as a whole is assigned based on the December 10, 2004, injury considered in isolation, in and of itself.
I would not consider the December 10, 2004, injury to be totally disabling in isolation, in and of itself.
- In my opinion, there are Second Injury Fund liability issues associated with the December 10, 2004, injury claim. When one considers the pre-existent industrial disability of significance as outlined in the text above in combination with the December 10, 2004, injury, an enhancement factor of 10 percent is felt to represent the Second Injury Fund liability issues.
- As I have pointed out, I believe there is aggravating injury to the left shoulder on December 21, 2004.
For this specific injury, I would separately apportion a ten (10) percent permanent partial disability of the left upper extremity at the level of the shoulder (232-week level).
- The work injury of December 17, 2004, represents the direct, proximate and substantial factor in Mr. Pace's chronic low back pain. In my opinion, the low back pain with the identified disk disease on MRI scanning is felt to be likely diskogenic in origin with radicular-like symptoms associated with the claim injury date of December 17, 2004.
- In reference to the last work injury claim of December 17, 2004, and all the pre-existent claims that I have outlined. It is my opinion that Mr. Pace is at maximal medical improvement.
- In looking at the primary claim injury date of December 17, 2004, in isolation, I would consider Mr. Pace to have reached maximal medical improvement as of the evaluation of Dr. Wheeler on June 29, 2005.
- I would note that Mr. Pace's development of bilateral carpal tunnel syndrome is felt to be unrelated to the primary injury claims that I have identified.
- When one looks at all the data that is available, it is my opinion that following the December 17, 2004, work injury claim, Mr. Pace is permanently totally disabled.
In looking at the issue of permanent total disability, it is when one combines all of the disabling conditions that pre-dated December 17, 2004, including the concerns about psychological disability with the additional disability attributable to the December 17, 2004, injury that Mr. Pace is permanently totally disabled.
I would not consider Mr. Pace to be permanently totally disabled based on the last work injury claim date of December 17, 2004, considered in isolation, in and of itself.
Dr. Koprivica's October 25, 2009 report notes he has received a copy of Claimant's personnel file, a copy of Dr. Abrams' September 15, 2009 supplementary report, records from Center for Pain Management of Dr. Baade extending through February 12, 2009 and records from Occupational Medicine. Dr. Koprivica's October 25, 2009 report notes that in reviewing those records, he would not materially change any of the opinions or conclusions he has already expressed.
The reports of Dr. DiStefano, Dr. Hendler, Dr. Stuckmeyer, and Dr. Wheeler discussed by Dr. Koprivica were not offered in evidence.
Exhibit 1 is the deposition of Dr. Brent Koprivica taken on February 16, 2009. Dr. Koprivica testified regarding his qualifications. His testimony is consistent with his Curriculum Vitae.
Dr. Koprivica testified that 98 to 99 % of his medical/legal practice is on behalf of the injured individual or a referral by his or her representative.
Dr. Koprivica testified that his answers would be within a reasonable degree of medical certainty unless he stated otherwise. He examined Claimant at the request of Bart Eisfelder. Dr. Koprivica identified Exhibit 3, his addendum report dated October 25, 2009 .
Dr. Koprivica described the format of the examination, including obtaining the history from Claimant. He described the manner of the physical examination. He thought he spent between three to four hours with Claimant. He reviewed medical records that he summarized in his reports. He noted Claimant had some difficulty with history.
Dr. Koprivica testified that Claimant's residuals of the motor vehicle accident constituted hindrance in employment. He did not think that Claimant's prior great toe fracture in 1986 was significant. Claimant did not identify anything that he really could not do because of the toe fracture.
Dr. Koprivica testified regarding Claimant's work injuries, beginning December 9, 2002. His testimony is consistent with his report. He testified the December 9, 2002 event resulted in permanent disability, and the injury constituted a hindrance in finding employment in the open labor market in and of itself. Claimant worked after that injury. Claimant fell backwards on stairs on November 2, 2004, resulting in soft tissue contusions. The residuals of the November 2 event constituted a hindrance on Claimant's employability. Dr. Koprivica testified that the November 2, 2004 injuries were separate and distinct from the prior disabling conditions that existed prior to November 2, 2004.
Dr. Koprivica testified that on December 10, 2004, Claimant lost his balance and fell while walking down stairs and had multiple body part contusions with a contribution to left shoulder impairment. The residuals from that event constituted a hindrance on his employability. He continued to work until he was injured on December 17, 2004 when a dog jumped on his back resulting in injury to his back and right leg. He worked between December 10 and December 17, 2004. The December 17 event resulted in some disability.
Claimant also testified that on December 21, 2004, while away from work, he was shifting weight in a truck and injured his shoulder. Dr. Koprivica felt Claimant had aggravating injury to a chronic impingement problem involving the left shoulder. That contributed to the limitations involving the left shoulder.
Dr. Koprivica was asked (p. 38):
Q. With regard to the four injuries you've identified having occurred [sic] City of St. Joseph, taken in isolation were any of those--or did any of those injuries result in permanent total disability?
A. In my opinion no single injury was totally disabling in isolation.
Dr. Koprivica was asked the following question and gave the following answer (pp. 39-40):
Q. I know in your report you have indicated Mr. Pace is totally disabled. Do you have an opinion as to whether or not that total disability is a result of any single event, or only when you take the various injuries that you've referred to already in your deposition and in your reports together?
MS. SHINE: Same objection, calls for vocational opinion.
A. I have an opinion.
Q. (By Mr. Eisfelder) What is that opinion?
A. Just in response to the question, I'll point out that I did have vocational information in the records that were provided. So my conclusion is based on that additional input. But I do believe that that permanent total disability that's present results from the synergism of combining all of the disabling conditions that we've referenced in your questioning and I outlined in my report, and didn't believe it was attributable to any one specific work-related injury claim.
Q. And the vocational information you're referring to, is that the vocational evaluation by Mary Titterington?
A. Yes.
Dr. Koprivica testified, "On my examination there was not the stigmata of complex regional pain syndrome on July $6^{\text {th }}, 2009$." (p.42). Dr. Koprivica was asked why he believed that Claimant did not have RSD. He answered (pp. 42-43):
Q. (By Mr. Eisfelder) As an occupational doctor, board certified in emergency medicine, also in your years of teaching,
training, experience have you had occasion to evaluate people with reflex sympathetic dystrophy or complex regional pain syndrome?
A. I have had two this week.
Q. You indicated that he did not have the stigma of that -stigmata of RSD. Why do you believe he did not have RSD?
A. RSD is a syndrome that's marked by loss of skin trigger. It becomes smooth and shiny. There's edema or swelling. There's colored disparity between the opposite extremity where there's a palpable difference in temperature, sweating. And one of the most marked things about it is it is called allodynia, which is distress when you try to examine the part which is slight touch involving the entire part. He didn't have those findings. He has pain, but I just didn't believe he had complex regional pain syndrome.
Dr. Koprivica also stated that there is not a test that is definitive. He noted Claimant's triple-phase bone scan did not show complex regional pain syndrome. He also testified (p. 43), "You would expect with the duration of time that that's had these disabling symptoms he would go on to a markedly atrophic limb, that's what happens as it progresses to atrophy, he didn't have that." Dr. Koprivica testified an atrophic limb looks wasted away. Atrophic means it has lost mass. It is wasted away because it is not being used.
Dr. Koprivica testified that grip strength testing demonstrated strength capabilities that were not Claimant's maximum. He thought Claimant should have been able to demonstrate lumbar motion even though it would be limited. Claimant could not do the motion testing. Dr. Koprivica thought that was an exaggerated finding.
Dr. Koprivica testified that he could not see an association between Claimant's carpal tunnel and any of his work injuries because Claimant's gait assistance was only using one extremity (p. 48). He stated: "So if it was related to the need for gait assistance from his lower extremity injury you would expect it to impact the extremities using for gait assistance." (p. 48).
Dr. Koprivica testified that he thought Claimant was permanent totally disabled. He further testified (p. 49), "My opinion is that no single injury in isolation of any of the four primary injury dates they were not totally disabling in isolation." He stated, "The actual nature of the objective physical impairments that I've identified, and the restrictions that would be necessary based on those specific isolated injuries, they are not of the type that would preclude the ability to access the open labor market alone."
Dr. Koprivica testified that the event of December 9, 2002 was a substantial contributing factor in causing and contributing to cause a substantial factor in producing "internal derangement of his right knee and the complication of post-surgical deep venous thrombosis and problems with right lower extremity pain. I did not believe he had a complex regional syndrome, but I do believe he had chronic extremity pain." (p. 57). He assigned 35 % permanent partial disability to the right lower extremity at the level of the knee as a result of the December 9, 2002 event. That is at the 160 -week level.
Dr. Koprivica assigned a 121 / 2 % permanent partial disability to the body as a whole for the chronic cervical thoracic pain predating December 9, 2002. (p. 56).
Dr. Koprivica testified from the event December 2, 2004, Claimant suffered further injury to the right lower extremity that contributed to his chronic right lower extremity pain (p. 58). He assigned 5\% permanent partial disability to the body as a whole for the November 2, 2004 injury that included the right lower extremity and also other body parts.
Dr. Koprivica testified that Claimant suffered permanent injury to his left shoulder, contributing to chronic impingement in the left shoulder and chronic left shoulder pain as well as other soft tissue injuries including aggravating pain to the right lower extremity, that were substantially caused by the December 10, 2004 accident. He assigned a global 15 % permanent partial disability to the body as a whole including the left shoulder and other multiple body parts.
Dr. Koprivica testified that the December 17, 2004 event resulted in chronic low back pain based on diskogenic pain in the lumbar region. He assigned 15 % permanent partial disability to the body as a whole for that injury.
Dr. Koprivica testified that Claimant suffered further aggravating injury to the rotator cuff structures to the left shoulder as a result of the December 21, 2004 event. He ascribed a 10 % permanent partial disability to the left upper extremity at the level of the shoulder 232-week level for that event. He testified that the permanent total disability is not attributable to any single work injury claim that he evaluated considered in isolation.
Dr. Koprivica was asked the following questions and gave the following answers (p. 63):
Q. What is your opinion as to the cause of that permanent total disability assuming him to be totally disabled?
A. I felt that when I combined all of the permanent partial disabilities that predated December $17^{\text {th }}, 2004$, with that additional disability that he was totally disabled. I don't believe that the subsequent injury date of December $21^{\text {st }}, 2004$ is of any consequence in that total disability. So I believe it follows that last work injury claim. But it's from the synergism of combining all the disabling conditions.
Q. When you say synergism what do you mean?
A. The impact of combining multiple disabilities leads to inability to accommodate for an underlying disabling conditions due to their -- due to the limitations from the other disabling conditions. And that results in greater disability that's above simply adding the simple arithmetic sum of those disabilities.
Dr. Koprivica attributed chronic pain to Claimant's right lower extremity (p. 64). He thought the December 9, 2002 injury was the majority contributor to the right lower extremity chronic pain, although he thought the subsequent injuries contributed as aggravators. He did not know of any cure for Claimant's chronic pain and believed Claimant would have that for the rest of his life. He believed Claimant would be limited on standing and walking. He recommended intervals in the range of thirty minutes to an hour with flexibility to change between sitting, standing and walking. He would restrict Claimant from squatting, crawling or kneeling. He would restrict Claimant from working at heights and climbing.
Dr. Koprivica testified that Claimant's right side weakness following the December 9, 2002 injury would make Claimant "particularly vulnerable to aggravating the injury in his right leg." (p. 67). Claimant would be at a greater risk of falling because of that. Claimant's April 28, 2004 injury and May 2, 2004 injury aggravated the pain in Claimant's right leg and aggravated the disability of his right leg. (p. 68).
Dr. Koprivica was asked (p. 68):
Q. Do you consider those events to be related to the December 9, 2002 injury?
A. I thought they were distinct events, but there was -- they were associated with the risk of the ' 02 injury.
Q. Do you consider his right knee giving out is related to the chronic pain in his right leg?
A. Yes.
Dr. Koprivica was asked regarding records of Dr. Cathcart dated November 5, 2004, November 12, 2004 and December 10, 2004 of the diagnosed lumbosacral strain. Dr. Koprivica was asked (p. 71):
Q. Yes. So from that record we see that there's an association or connection between the fall on the stairs and Mr. Pace's back pain.
A. Yes, I would say that's true.
Dr. Koprivica was asked about Dr. Cathcart's May 20, 2005 office record that discusses Claimant's back condition and that relates problems with his back since he fell down the steps at City Hall. Dr. Koprivica said he had not seen any contemporaneous records of Claimant's medical record that related Claimant's back pain or back disability to the December 17, 2004 event with the dog.
Dr. Koprivica testified that Claimant told him his back pain started with the dog incident. He testified if he just considered Dr. Cathcart's records, there was a contribution from November 2, 2004 and December 10, 2004 to his back. If he isolated his opinion based on the records of Dr. Cathcart, he would consider the November 2, 2004 incident to be a substantial factor to Claimant's back disability and to be a factor with more weight in his opinion than the dog jumping on Claimant.
Dr. Koprivica stated the December 9, 2002 injury was a substantial factor in causing the weakness in Claimant's right leg, and in causing the fall on December 10, 2004. The December 10, 2004 incident aggravated Claimant's right leg pain and aggravated his shoulder injury.
Claimant did not tell Dr. Koprivica that he experienced relief when his shoulder popped while shifting his weight in the truck. He was asked about Dr. Cathcart's January 3, 2005 note stating Claimant felt left shoulder pop, and "now has more active range of motion." Dr. Koprivica noted that suggested his shoulder was better. He did not believe the December 21, 2004 event was essential in Claimant being totally disabled.
Dr. Koprivica testified that Claimant's use of Hydromorphone impacted his employability. He testified that it is "pretty rare" that persons having to take chronic narcotics are able to access the open labor market. The medication has the potential to affect cognitive abilities. Persons using the medication should not be around dangerous equipment. The medication has the potential to be sedating. He believed that clinically Hydromorphone is warranted as Claimant presented.
Dr. Koprivica testified that he believed that Claimant is going to need ongoing chronic pain management. He expected Claimant would need to continue to see someone like Dr. Baade and would expect the use of medication to continue.
Claimant's Vocational Expert—Mary Titterington
Exhibit 3 is the deposition of Mary Titterington taken on October 8, 2009, with Deposition Exhibit 1, Ms. Titterington's Curriculum Vitae, and Deposition Exhibit 2, Ms. Titterington's report on the vocational evaluation of Claimant dated August 8, 2008. Ms. Titterington is a self-employed vocational rehabilitation consultant. She has been a selfemployed vocational rehabilitation consultant since 1987. She is a licensed professional counselor in the State of Kansas, and is a certified disability management specialist and a certified forensic counselor. She has an MS degree in Guidance and Counseling from Creighton University.
Ms. Titterington's August 8, 2008 report notes that she evaluated Claimant on August 5, 2008. The evaluation lasted three hours and ten minutes. Claimant presented as a "man consumed by his pain and discomfort. He reported substantial pain in multiple body parts." She noted Claimant walked with the assistance of a forearm crutch.
Ms. Titterington's report notes the treatment records, the claim for compensation, and evaluation of Dr. Garth Russell she reviewed. Ms. Titterington's report notes Claimant is being treated by Dr. Norman Baade, pain management specialist, every three months, and by his family physician on an as needed basis. Her report notes Claimant's diagnoses and medical conditions, medications, and current medical problems. The report also identifies physical limitations noted by Dr. Garth Russell in his May 9, 2008 report, Dr. Cathcart and his evaluation of December 6, 2007, Dr. McCormick in his Certificate for Work or School dated April 30, 2003, and Dr. Hendler dated June 27, 2006. Her report describes Claimant's current emotional status, activities of daily living, pre- and post-injury activities, education, military service, work history, and results of testing.
Ms. Titterington's report sets forth the following Vocational Implications (pp. 89):
Mr. Pace worked in a variety of occupations throughout his working history. His most recent job was as a building inspector that required consistent walking, standing, climbing stairs and ladders, bending, stooping, kneeling and squatting. He also worked one year as an inmate supervisor which involved sustained standing and walking. His work immediately prior to the City of St. Joseph, was in
retail work as a parts clerk and night stocker. Both jobs required sustained standing and walking as well as lifting up to and occasionally over 50 pounds. He also worked as a full service auto mechanic which required significant physical exertion. The assessments by Drs. Cathcart, McCormick and Russell preclude Mr. Pace from returning to any of the above jobs.
Dr. Cathcart and Dr. Russell both conclude that Mr. Pace is not employable based on his need for significant amounts of narcotic medication, his sleep disturbance, and his overall pain.
Dr. McCormick limited Mr. Pace to sedentary work. If only this functional limitation is considered, Mr. Pace can return to work in the open labor market.
As Drs. Cathcart and Russell point out, Mr. Pace is on narcotic pain medication consistently throughout the day. A potential employer would have significant concerns about hiring an individual who takes this level of narcotics on a daily basis.
In addition, as Mr. Pace presented there is no employer who would be willing to hire him for work as it is customarily performed. Mr. Pace's total functioning revolves around his pain. He moves very slowly and in a protected manner. These mannerisms would be of significant concern to a potential employer in an interview. With his pain focus, depressive symptoms and reduced work speed, Mr. Pace would not be able to meet the production goals for any job.
Mr. Pace is not a good candidate for retraining given his current functioning level, physical limitations, narcotic pain medications and his age.
Ms. Titterington's report further sets forth the following Summary:
Mr. Pace is a fifty-seven year old man who has incurred multiple impairments throughout his life. He reports a very limited life style and one that involves constant pain even with significant amounts of narcotic medications. In addition, he reports severe depressive symptoms which need to be evaluated by a licensed psychiatrist. Both Drs. Russell and Cathcart have assessed Mr. Pace's multiple problems as too severe to support employment. There is no expectation that any employer would be willing to hire Mr. Pace for a
job as it is customarily performed in the open labor market. As he presents, Mr. Pace is unemployable.
Ms. Titterington testified that Claimant was "probably one of the top ten pain focused people I have worked with." Since preparing her report on August 8, 2008, she also had received and reviewed Dr. Garth Russell's deposition, Employer's records, Dr. Abrams' evaluation of 2-21-09 and Dr. Koprivica's evaluation of 7-6-09.
Ms. Titterington testified that Claimant indicated he was easily angered, easily upset, had trouble concentrating, had trouble comprehending things and believed he was severely depressed and in need of treatment. His wife had taken over handling the family finances, and he did not get along with strangers. She noted he had difficulty with activities of daily living including washing himself, bathing, grooming, and trimming his toenails. He had trouble sleeping even with sleep medications. He primarily does very sedentary activities-watching television, reading and looking out the window.
Ms. Titterington testified that based upon the tests she administered to Claimant, his scores were consistent with someone with a 91 IQ and below average.
Ms. Titterington testified: ". . . I think it's very clear that he's [Claimant's] unemployable. He's on a great deal of narcotic pain medications, he is having sleep deprivation, he is extremely pain focused." (Titterington deposition, p. 22). She noted that although Dr. McCormick put Claimant to sedentary work, Dr. Koprivica, Dr. Abrams, Dr. Russell and Dr. Cathcart all conclude that Claimant is unemployable. She also testified: ". . . there is no expectation that an employer would be willing to hire him for any job as is customarily performed in the open labor market." (Titterington deposition, p. 22).
Ms. Titterington further testified (pp. 22-23):
He would not interview well. You know, in an interview I think they would have concerns just about his safety on the work force, which is difficulties rising, with his difficulty walking, his slow work speed -- and not slow work speed, slow walking speed, you know, he would not make a good impression in an interview, and I don't think he would either be hired or he would be employable as he would not meet the basis requirements of work.
He would have difficulty getting there on a daily basis, which he did have during his last couple years of work. He would have trouble meeting production goals, which he did during his last couple years of work with the City, and he would have trouble, basically,
with his irritability and his pain focus. He would have trouble getting along with co-workers, supervisors and any customers if there were some.
So my opinion, professional opinion, and based on what I've documented, he is unemployable in the open labor market.
Q. Okay. And are those opinions given within a reasonable degree of vocational certainty?
A. Yes.
Ms. Titterington was asked the following questions and gave the following answers (pp. 29-30):
Q. Did you -- let me back up. From your other prior testimony that I've been involved in with you, you are not apportioning the disability to any one of four or so work-related injuries or non workrelated injuries?
A. That's correct.
Q. You're just saying overall he is unemployable?
A. Right.
Q. And that's as he stands from work-related injuries, non work-related injuries, personal medical problems, everything?
A. Right.
Ms. Titterington said that she absolutely did not think that at this time Claimant was a candidate for voc-rehab (p. 34).
Exhibit 4 contains personnel records of Employer pertaining to Claimant. Exhibit 4 includes a February 4, 2005 letter from Employer to Claimant. The letter states that Claimant was terminated as of February 7, 2005 for performance detailed in the letter that demonstrated "a pattern of inefficiency, incompetence, nonfeasance, and misfeasance that is unacceptable." The letter references Claimant initiating too few cases. The letter also references Claimant authorizing payment for demolition of a building prior to receipt of landfill receipts documenting that asbestos had been properly disposed of. The letter also references that Claimant had failed to initiate the demolition of a building for two months
after September 7, 2004 consent of the owners. The letter also references Claimant having mailed a letter to an owner that improperly included internal comments.
Exhibits F, G, H, I, J and K include medical billing records relating to Claimant.