On June 16, 1994, the claimant suffered a low back injury at work, was diagnosed with a back strain, and underwent conservative treatment. He was unable to work for a couple of weeks. See Exhibit H. On June 1, 1997, the claimant suffered a second work related low back injury. The claimant settled his workers' compensation case on the basis of a 2 % permanent partial disability to the body as a whole. See Exhibit H.
On April 1, 1998, the claimant sustained a back injury while lifting a sander off the back of a truck at work. The claimant had right lower extremity pain, was diagnosed with a herniated disc at L5-S1, and underwent a discectomy and hemilaminotomy at that level in 1999. The claimant's leg pain resolved, but his back pain persisted, he had back soreness more frequently, and he had decreased strength in his back. He returned to work in January 2000. The claimant settled his related workers' compensation claim on the basis of a 25 % permanent partial disability to the body as a whole. See Exhibits 20, 26, H, and E, page 7.
On September 1, 2000, the claimant injured his low back while unloading a buffer from a van. While lifting the buffer, the claimant suffered low back pain that progressively worsened. An MRI revealed a herniated disc at L4-L5 and scarring around his L5-S1 nerve root. On November 7, 2000, the claimant went to DePaul Pain Management for severe, low back pain that radiated into his anterior thighs to the top of his feet. The claimant was diagnosed with discogenic pain and post-laminectomy syndrome, a discogram ordered, and L4 nerve root block recommended. See Exhibits 26 and 27.
In early 2001, Dr. Kennedy began treating the claimant, and on February 12, 2001, a CT myleogram revealed an L4-L5 disc herniation and impingement of the left L5 nerve root sheath. Segmental instability was noted at L5-S1. On May 10, 2001, Dr. Kennedy and Dr. Robson performed a L4-L5 hemilaminectomy, L4-L5 dicectomy, a left iliac crest bone graft, and a fusion from L4-S1. The claimant participated in aquatic therapy and continued to have low back pain, leg numbness and pain, and decreased range of motion. On November 15, 2001, Dr. Kennedy noted a cool sensation in the claimant's lower extremities. See Exhibit 20.
On November 19, 2001, an FCE demonstrated that the claimant could function at a medium duty work level with occasional material handling tolerances of thirty pounds. This did not meet the essential job demand of a floor layer. The claimant was also limited in frequent forward bending and squatting. Dr. Kennedy released the claimant from treatment on November 27, 2001, with permanent restrictions of no lifting over thirty pounds and no repetitive bending, twisting, or stooping. See Exhibits 18 and 20.
On May 6, 2002, Dr. Poetz examined the claimant for pain in his upper and low back, radiating pain down both legs, and a cool sensation running down his legs when he got into bed at night. See Poetz deposition, pages 10-11, 49. The claimant had increased pain with sitting,
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Timothy W. Laster
Injury No.: 05-067976
driving, lifting, bending, and stooping. See Poetz deposition, pages 10-11, 49. Dr. Poetz documented the claimant was currently unemployed due to his lifting restrictions. See Poetz deposition, page 68. On exam, the claimant could flex to thirty degrees, complained of low back pain, and had pain upon rising. See Poetz deposition, page 11.
Dr. Poetz diagnosed the claimant with a herniated disc at L4-L5. See Poetz deposition, page 11. Dr. Poetz also recognized the pre-existing surgically repaired disc herniation at L5-S1. See Poetz deposition, page 16. He opined the claimant's "prognosis is guarded due to the length of time elapsed since the injuries and the continuance of pain in all areas of symptomology." See Employee's Ex. 2 to Exhibit D, page 4. Dr. Poetz concluded the claimant had a 25\% permanent partial disability of the body as a whole from the accident on September 1, 2000, and an additional pre-existing 20\% permanent partial disability to the body as a whole. See Poetz deposition, page 19 .
With regard to future medical care, Dr. Poetz recommended the claimant quit smoking for pain management purposes, use Cox-2 non-steroidal anti-inflammatory medication, perform range of motion exercises, engage in a lumbar exercise program, and utilize warm, moist packs. See Poetz deposition, page 14. He testified the claimant's fusion warranted being followed by a physician to ensure the hardware stayed in place and no problems were occurring. See Poetz deposition, pages 89-90.
Dr. Poetz also provided permanent work restrictions. He advised the claimant should: (1) Avoid prolonged sitting, standing, walking, bending, and stooping; and (2) Find employment where he can move about as needed. See Poetz deposition, page 14. Dr. Poetz did not provide a lifting restriction, but testified the claimant was to "[a]void any activity that causes exacerbations of the symptoms or is known to cause progression of the disease process." See Poetz deposition, page 68. He explained this restriction tells the patient to avoid anything that would either hurt or cause undue stress to the levels of pathology, for example, standing, walking, and stooping. See Poetz deposition, pages 68-69, 73. Dr. Poetz testified that he would have been more restrictive than Dr. Kennedy concerning the amount the claimant could safely lift. See Poetz deposition, page 70. Dr. Poetz opined that the claimant should attend "[v]ocational rehabilitation for training for a sedentary occupation." See Employee's Ex. 2 to Exhibit D, page 4 and Poetz deposition, page 69 .
On January 10, 2003, the claimant settled his September 1, 2000, workers' compensation claim against the employer on the basis of a 22.5 % permanent partial disability of the body as a whole. On December 5, 2006, the claimant settled his claim against the Second Injury Fund on the basis of a " 10 % load, 15 % of the right hand, plus a 10 % load." See Exhibit H.
Subsequent Motor Vehicle Accident.
In 2009, the claimant suffered injuries to his neck and left hip in a motor vehicle accident. At the hearing, the claimant denied hurting his left hip, insisting any documentation of such an injury is incorrect. See Exhibits E, page 8 and Lalk deposition, pages 13-14.
Back Condition from 2001 to June 7, 2005
At the hearing, the claimant testified that he continued to have upper and low back pain, radiating pain down both legs, and a cool sensation running down his left leg getting into bed at night. The claimant also experienced a burning sensation at the graft site on his left hip and flare-ups of pain that caused burning into his left leg. When experiencing a flare-up of symptoms, the claimant had difficulty performing activities and utilized treatment modalities he had previously learned.
The claimant testified that he stopped playing sports after 2000 due to low back pain and did not work between 2000 and 2004. The claimant testified that he was unable to find a job during this period due to an inability to handle the work and workload expected of flooring installers. The claimant could no longer bend over to install floors or perform edging work. The amount he could lift was limited, preventing him from handling some of the equipment. The claimant had limitations in sitting, kneeling, twisting, and driving hurt his low back. He did not look for a job outside of the floor installation industry and did not seek vocational retraining.
Due to his inability to find a job within his restrictions and abilities, the claimant started this firm, the employer in this case, in late 2004. The claimant estimated he started the company six months to a year before the accident on June 7, 2005. Starting his own company permitted the claimant to engage in activities such as sales, organizing jobs, ordering materials, and light duty tasks. As the owner, he was able to control the activities he was responsible for performing, dictate what tasks would be completed by others, and, thereby, accommodate the work to his abilities. The claimant avoided activities that caused him pain and problems and, in doing so, reportedly got along alright. He did experience pain when engaging in activities that he could not avoid.
The claimant testified that this employer and Mid-Rivers Hardwoods had an arrangement in which the claimant entered contracts with customers for flooring projects and Mid-Rivers Hardwoods performed the installation of flooring. The claimant received 50 % of the profit from the jobs. All Star Flooring and Mid-Rivers Hardwoods charged $\ 2.50 a square foot for the installation of flooring or the sanding/refinishing of flooring. If the job involved the installation and finishing of flooring, the companies charged $\ 5.00 a square foot. The claimant testified he sold one job, or approximately 800 square feet, a week and estimated he took home \4,000.00\ 5,000.00. All of the accounting books for the employer have been destroyed and the claimant did not file taxes in 2004 or 2005, so no documentation of the claimant's income was submitted at the hearing.
The claimant testified that leading up to 2005, he had some back problems, but mainly experienced occasional flare-ups of symptoms. However, the claimant continued to accommodate his work pursuant to his limitations.
Back Condition June 7, 2005, to Date
The claimant testified that he did not improve after the second surgery. Instead, his condition remained the same or worsened. On the other hand, in his deposition, the claimant testified that the second surgery helped and "a lot of the symptoms that were constantly there all the time, kind of subsided ..." See Exhibit J, pages 18 and 48.
The claimant continues to have ongoing back pain that begins at his left hip and wraps around to his left thigh. He has a cold sensation in his legs, tightness in his low back, and his legs are weak and easily fatigued. Since his release from Dr. Robson's care, the claimant's tightness in his low back, burning from his left hip to his left thigh, and his bilateral leg fatigue have gradually worsened. He could not state when the worsening of his symptoms started. The claimant's limitations in bending, twisting, kneeling, driving, and sitting have increased since June 7, 2005. Although the claimant had bending limitations before June 7, 2005, afterwards he could no longer touch his toes or tie his shoes. He can bend to reach his knees, but it is painful. His sitting is limited to twenty minutes and his driving to ten minutes. The claimant believed his inability to lift weight had increased, preventing him from now lifting over a gallon of milk. Since June 7, 2005, the claimant has been limited in standing, climbing stairs, and sleeping. He can squat, walk one mile, and sleep four to six hours per night. Cold weather aggravates his symptoms, but hot showers and lying down decreases them.
In 2005, the claimant married and fathered his youngest child. The claimant and his family moved in with his mother in 2006. His marriage ended in divorce in 2011, and he now has custody of all three of his children. The claimant's children are twelve, eight, and four years old. He relies on his mother for assistance in the care of his children. On an average day, the claimant gets up, fixes breakfast, and gets his children ready for school. The claimant watches two hours of television a day and reads the news for an hour a day. He talks on the phone, takes walks, and interacts with his four year old child. He prepares sixteen meals a week. At the hearing, the claimant testified that he lies down three to five times a day for a fifteen to twenty minute period. The claimant testified that this had increased from one time a day in mid-2011, because of the gradual worsening of his condition. See Exhibit K, page 18.
After June 7, 2005, the claimant went to work for a friend selling decks and held the job for less than one month. The claimant missed an appointment due to pain and was let go. In 2011, the claimant was hired as a cook at Game Day Grill. His job duties included cooking, sweeping, mopping, and taking care of the kitchen area. The claimant worked three eight-hour shifts a week and held the job for one month. He testified that he did not complete all of his job tasks and missed three of his shifts. See claimant deposition, page 7. The claimant did not pay enough in to qualify for Social Security Disability. See claimant deposition, pages 18-19.
David Robson, M.D.
Dr. Robson, a board certified orthopedic surgeon, examined the claimant on September 23, 2010, for an updated evaluation. The claimant complained of low back pain that occasionally radiated down the posterior aspect of his left leg. See Dr. Robson deposition, pages 22. Dr. Robson testified that the claimant's condition had changed since 2008, because the pain on the left side of the leg had worsened a little bit. See Dr. Robson deposition, page 23. On examination, the claimant's straight leg raise was positive at eighty degrees on the left, and consistent to his past findings. See Dr. Robson deposition, page 24. His Hoffman's test, which indicates spinal cord findings, was normal and the claimant had no atrophy. See Dr. Robson deposition, page 24. The claimant's lumbar flexion was decreased by $20^{\circ}$ and his extension was normal. See Robson deposition, pages 23-24. X-rays revealed worsening of some scoliosis and degenerative changes above the fusion, most notably at L1-L2. See Dr. Robson deposition, pages 24-25.
On October 12, 2010, Dr. Robson reviewed a CT scan and concluded that the claimant had a solid fusion from L3 to the sacrum and degenerative changes at L1-L2. See Dr. Robson deposition, pages 25-26. On that date, the claimant reported low back and left hip pain, but the pain level had slightly improved. See Dr. Robson deposition, pages 26-27. On exam, the claimant had pain over the left sacroiliac area and, for the first time, a decrease in his left hip's range of motion. See Dr. Robson deposition, page 27. His straight leg raising was positive on the left at seventy-five degrees bilaterally. See Dr. Robson deposition, page 27. His lumbar range of motion in flexion lacked $10^{\circ}$ and his extension was normal. See Dr. Robson deposition, pages 27-28. Dr. Robson opined that the claimant would not benefit from any further treatment to his lumbar spine that patients with multi-level fusions did not need to have the hardware monitored by a physician, that there was a 10 % chance of a problem at an adjacent level, and the claimant need only required medical attention if he started having difficulties. See Dr. Robson deposition, pages 28-29, 37, 38.
Dr. Robson could not relate the claimant's scoliosis and degenerative changes above his fusion. Robson deposition, pages 24-26, 28, 40. If the scoliosis were related, Dr. Robson testified that it would be at a level adjacent to the fusion, such as L2-L3, and the fact it was two levels higher makes a stronger point that it was just an "unfortunate occurrence in regards to his spine." See Dr. Robson deposition, page 40. The claimant's scoliosis worsened between 2005 and 2010. See Dr. Robson deposition, page 28. Dr. Robson testified that the degenerative changes and scoliosis were conditions that could be painful and symptomatic. See Dr. Robson deposition, pages 25-26. He concluded some of the claimant's pain complaints may be attributed to the scoliosis and left hip condition. See Dr. Robson deposition, page 40.
Dr. Robson also opined that the claimant's left hip complaints were unrelated to the work accident. See Dr. Robson deposition, page 28. Dr. Robson discussed, with the claimant, the possibility the left hip was causing some of the symptoms he was experiencing. See Dr. Robson deposition, page 28 .
Dr. Robson provided medium permanent restrictions when he released the claimant from treatment on October 1, 2008. He opined that no changes to these restrictions were warranted in 2010. See Dr. Robson deposition, page 29. He testified that, in assigning the claimant's restrictions, consideration was given to the data from the FCE and work hardening, which was accumulated over a series of visits, and the typical limitations that, in his experience, someone with this type of fusion. See Dr. Robson deposition, page 20. Dr. Robson opined that the claimant's recovery was slightly better than typical. See Dr. Robson deposition, page 20. Dr. Robson credited the claimant with being motivated and working "very hard," in light of his multi-level fusion, to get back to a medium duty level. See Dr. Robson deposition, pages 20, 31, 37 .
Concerning the claimant's pre-existing fusion, Dr. Robson advised someone fused from L4 to S1 should be restricted to the moderate to moderately heavy work range and, as such, the condition would affect the person's ability to perform work. See Dr. Robson deposition, page 29. He opined that the restrictions provided by Dr. Kennedy in 2001 and Dr. Poetz in 2002 were reasonable and would limit the type of work that could be performed. See Dr. Robson deposition, pages 30-31. If an additional level were added, such as in this case, Dr. Robson opined the ability to work may not change a whole lot. See Robson deposition, page 29. Dr. Robson testified, in this case, the claimant "worked very hard and regained to [sic] that medium
work range, so I would say that adding one additional level in this case really did not change his restrictions a significant step." See Dr. Robson deposition, page 31.
Dr. Robson testified that the claimant's prior fusion would have added extra stress to the L3-L4 level. See Dr. Robson deposition, page 30. The previous fusion would also make the L3L4 level harder to fix. Id.
Robert Poetz, M.D.
Dr. Poetz, an osteopathic physician, examined the claimant on February 5, 2007. See Dr. Poetz deposition, page 6. The claimant reported that his condition improved after surgery, but complained of tightness in his back when he gets up and a cold sensation in his back and legs. See Dr. Poetz deposition, pages 20-21. His legs ached, were weak, no longer hold him up, and his knees bothered him. See Dr. Poetz deposition, pages 20-21. The claimant had difficulty performing any activity for any length of time and could not sleep due to pain. See Dr. Poetz deposition, pages 20-21. Prior to the latest injury, the claimant reported that he had occasional pain, but his nerve symptoms resolved. See Exhibit A, page 4. He was able to work before June 7, 2005, despite the pain from the 2000 injury. See Exhibit A, page 4.
Dr. Poetz diagnosed the claimant with an operated herniated disc at L3-L4, on the right resulting from the June 7, 2005 accident, with exacerbation of discogenic disease. See Dr. Poetz deposition, pages 25-26. He found the claimant had an operated herniated disc from 1999 and a herniated disc at L4-L5 that resulted in the need for a fusion from L4 to S1 in 2000. See Exhibit A, page 5. Dr. Poetz opined that the claimant had a 35 % permanent partial disability to the body as a whole as a result of the accident of June 7, 2005. See Dr. Poetz deposition, page 74. Dr. Poetz also opined that the claimant had a pre-existing 20 % permanent partial disability to the body as a whole as a result of the 1999 injury and a 25 % permanent partial disability to the body as a whole as a result of the 2000 injury. See Dr. Poetz deposition, page 19. Finally, Dr. Poetz found "the combination of the present and prior disabilities result in a total which exceeds the simple sum by 15 %." See Exhibit A, page 7. Dr. Poetz opined that the claimant was "Permanently and Totally disabled as a direct result of his June 7, 2005 [sic] and in addition to his prior injuries." (Emphasis original.) See Exhibit A, page 7.
Dr. Poetz examined the claimant on September 20, 2011, for a reevaluation of the back injury. See Poetz deposition, page 30. The claimant reported that he continued to have low back pain, weakness in his legs, and was now starting to experience pain in both hips. See Exhibit B, page 1. He complained of pain traveling down from the left hip, to the side of his left side, and wrapping around to the front of his leg to the knee. See Exhibit B, page 1. The claimant experienced increased pain with more activity, weather changes, and prolonged sitting and standing. See Exhibit B, page 1. He reported difficulty sleeping, but felt his constant, hip pain was the biggest problem. See Exhibit B, page 1. The claimant estimated he went to Med-First for flare-ups of pain three to five times a year. See Exhibit B, page 1.
On exam, the claimant lacked $45^{\circ} of flexion, 15^{\circ} of extension, and 20^{\circ}$ of right and left lateral flexion. See Poetz deposition, page 31. His straight leg raise was positive on the left. See Dr. Poetz deposition, page 32. Dr. Poetz's previous diagnoses were unchanged. See Exhibit B, page 4. Dr. Poetz's permanency ratings also remained unchanged, except to increase the total by which the combination of the present and prior disabilities exceed the simple sum to 15-20\%.
See Exhibit B, pages 5-6. Dr. Poetz again opined the claimant was "Permanently and Totally Disabled as a result of his June 7, 2005 injury and in addition to his prior lumbar spine injuries." (Emphasis original). See Exhibit B, page 6 and Dr. Poetz deposition, page 38.
In addition to the restrictions he provided in 2007, Dr. Poetz testified that effusion changes the mechanics of the spine and can cause additional stress to other levels, creating a greater risk for further disc pathology. See Dr. Poetz deposition, page 42. Dr. Poetz recommended that the claimant follow up with an orthopedic surgeon to monitor the status of the hardware or if symptoms out of the ordinary develop. See Dr. Poetz deposition, page 42. It was noted the claimant might have to undergo repeat MRIs and surgery if indicated. See Dr. Poetz deposition, page 42. He opined that the claimant may benefit from warm, moist packs, topical anti-inflammatory medication, or Cox-2 anti-inflammatory medication. See Exhibit B, page 4.
In an addendum report dated February 20, 2012, Dr. Poetz reviewed the treatment the claimant has received since February 2007 and diagnosed psuedoathrosis. See Exhibit C, page 5. Dr. Poetz increased the claimant's permanent partial disability to 45 % of the body as a whole from the injury on July 7, 2005. See Dr. Poetz deposition, page 91. He opined that the claimant was "Permanently and Totally Disabled as a result of his June 7, 2005 injury and in addition to his prior lumbar spine injuries." (Emphasis original). See Exhibit C, page 5 and Dr. Poetz deposition, page 38. When questioned about how lifting a Shop Vac could cause a disc herniation, Dr. Poetz testified:
A: Well, any mechanism that puts undue stress on that part of the body, the disc in especially a situation where the levels of pathology that developed at that time were levels above prior pathology, putting that level at a higher risk for injury, so that putting undue risk -- undue stress through that level can cause the disc to rupture.
Q: All right. And what's actually going on in terms of the disk rupturing within the body?
A: Well, if you picture the disc as a jelly donut, with a center, and if you press down on the jelly donut hard enough it's going to squirt jelly out the side. In the case of a disc, if that disc is under too much pressure, from levels above or below or both, and that pressure puts undue stress on the cartilaginous disk itself, then the center, the nucleus of that cartilaginous disc, will squirt out. See Dr. Poetz deposition, pages 26-27.
Dr. Poetz opined that a fusion limits movement, weakens the levels above and below it, and could make it more likely a problem or herniation will occur at an adjacent level. See Dr. Poetz deposition, pages 31, 60. Thus, the previous fusion placed the claimant at a higher risk for a herniation at L3-L4. See Dr. Poetz deposition, pages 60, 91.
Dr. Poetz also testified "[i]t's my opinion that he is permanently and totally disabled as a result of the June 7th, '05 injury, in addition to his prior lumbar spine injuries." See Dr. Poetz deposition, page 38. He also testified that the injury on June 7, 2005, alone caused the permanent total disability. He qualified his earlier testimony by opining
I think the sentence says he's permanently and totally disabled as a result of his June 7th, 2005, injury, period, if you want to put a period there, and, in addition, he has additional lumbar spine injuries. But my opinion is he would be permanently disabled as a result of that injury alone if he did not have other injuries as well. See Dr. Poetz deposition, page 40.
Dr. Poetz testified that 90 % of patients who only had a herniated disc can be treated conservatively and recover to a symptom free, or almost symptom free, state. See Dr. Poetz deposition, page 60. He testified that individuals with one level, surgically corrected disc herniations return to the work force quite often. See Dr. Poetz deposition, page 63. Dr. Poetz testified:
Q: If the employee had only had a herniated disk at L3-L4, is that the type of condition that would normally just be treated with a discectomy?
A: Well, I don't know. Depends on the patient. Some patients that have ruptured disks at L3-4 don't have any surgery. 90 percent of patients who have ruptured disks can be treated conservatively without surgery and they get symptom free or relatively symptom free. So you're talking about a hypothetical patient. I don't know that I can give you any better answer than that.
Q: So could you say if Mr. Laster suffered only the L3-L4 disk herniation that he wouldn't need surgery or he would have just needed a discectomy?
A: Of course I can and did.
Q: Just L3-L4 alone?
A: I told you if he only had that injury he would be totally and permanently disabled as a result of that injury and resulting necessary treatment as well.
Q: I'm confused at -- you can't tell me what type of surgery he would have needed or what kind of procedure he would have needed for that injury, but yet you can tell me what the resulting permanent partial disability or permanent total disability for that's going to be?
A: Because we're talking about a patient named Timothy Laster, not a hypothetical patient.
Q: I'm saying if Mr. Laster had suffered only L3-L4 and he never had the pathology below, could you tell me what kind of treatment he would have needed?
A: I could, but I won't because you're talking about a hypothetical patient. I would have to examine the hypothetical patient in order to give you a correct answer.
Q: So, Doctor, is it not hypothetical for you to tell me that he would have been permanently and totally disabled if he only suffered the herniated disk at L3L4 alone?
A: That is not hypothetical. That is a patient that I have examined and I have the imaging and everything else that goes along with it. That's everything but hypothetical.
Q: Doctor, when you examined the patient that had this -- Mr. Laster, as he had this disk herniation at L3-L4, does not his previous disk pathology, surgery, treatments, symptoms that were residual, and limitations affect how -- and interact with L3-L4?
A: Of course they do. And I clearly stated that and clearly gave him disability ratings for those other levels as well, which we've talked about several times. See Dr. Poetz deposition, pages 60-63.
Dr. Poetz testified that the claimant was permanently and totally disabled from herniation at L3-L4 because of "the risk of additional pathology and crippling." See Dr. Poetz deposition, page 64. Dr. Poetz acknowledged the claimant had low back pain between 2002 and 2005, and could not state how the pain differed after June 7, 2005. See Dr. Poetz deposition, pages 76-77. Dr. Poetz testified that he had never seen the claimant without the prior fusion and associated limitations. See Dr. Poetz deposition, page 113.
Although he believed there was a synergistic effect from all of the injuries combined, Dr. Poetz could not state whether the symptoms from the prior injuries combined with the symptoms from the primary injury to create a greater level of discomfort. See Dr. Poetz deposition, pages 93-94. Dr. Poetz testified it was not within his expertise to state how the pre-existing symptoms might affect the symptoms after June 7, 2005. See Dr. Poetz deposition, page 95.