Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational expert opinion and deposition, the medical records, the medical bills, the other records, and the testimony of the other witnesses, as well as based on my personal observations of Claimant and the other witnesses at hearing, I find:
1) Claimant is a 64 -year-old, currently unemployed individual, who worked as a pressman for approximately 35 years for one employer, first named R\&F, then Borden, and finally New World Pasta (Employer). Claimant last worked approximately five years ago and stopped working because he was having surgery on his knee. He was hoping to be able to work until he was 65 years old.
2) Claimant testified that he was born in Sicily and came to the United States in 1971. He said that he only had a fifth grade education in Sicily and no other specialized training. Claimant testified that his English is limited. He never tried to take formal lessons, but only learned some English from television or from personal contacts. He said that he mostly spoke Sicilian and only a little English at Employer's plant. He acknowledged that he watches television programs in English, but he said that he only understands a word here and there.
3) On cross-examination, Employer tried to show that Claimant had a better grasp of English than he testified to on direct. Claimant admitted that he has had a Missouri driver's license since 1971, but noted that an Italian translator helped him obtain that. Claimant was presented with a Nissan Forklift Knowledge Evaluation test (Exhibit 7) that he took on February 7, 2008, which was all in English and required mostly true or false answers to be circled. He admitted that he took that test, but then noted that someone helped him do the forklift test, not only translating the questions for him, but telling him which answers to circle as well.
4) Claimant testified that his father was a farmer in Sicily. He said his father died of a heart condition, but he had no problems with his knees or with arthritis. He admitted that he never reviewed his father's medical records and his father did not come to the United States with him.
5) Claimant testified that as a pressman for Employer his job duties included operating the presses and going up and down stairs every 15 minutes to check the troughs and control how the pasta was being made with the mixing of the flour and semolina. Three to four times an hour, eight hours a day, five days a week, he would go up and down the 12 stairs to check the presses and ensure that they were running properly.
He said that there was a catwalk between the machines so that he could check the three he was responsible for running. He noted that when he first started there, it was actually 12-hour days. He said that twice a month, the whole time he was there, they also worked seven days a week. He testified that when he was not on a press, he was checking to see if the spaghetti was dry. He was always standing on a cement floor, with no mats or other padding on it.
6) John McGrath testified on Employer's behalf at the time of hearing. Mr. McGrath worked as a production supervisor for Employer in 2007 and 2008. He confirmed that Claimant worked for him and he was responsible for monitoring the daily work from Claimant. Mr. McGrath confirmed that a press operator, like Claimant, was responsible for running three presses. He said that a press operator monitors a screen or control panels at ground level while standing. He said that Claimant never required assistance to do his job that he could recall, and he never had any problems with Claimant's work. He explained the process of making the mix into dough, with the dough then extruded into pasta, followed by drying it. A press operator was responsible for monitoring the machines to make sure they ran properly. As far as an operator's need to climb the stairs on the machines, he estimated that if a machine was running properly, then an operator would only have to climb the stairs three to five times per shift, but if it was not running properly, then he would have to climb more often.
7) Mr. McGrath explained that the Short Goods Press Monitoring Log (Exhibit 11) is the form that press operators complete as they work. He explained that the form indicated the minimum number of checks on the machines was once every two hours. He said that the press operators fill out that form during their shift and give it to their supervisor. Claimant acknowledged that he had seen this form at work, but he said an Italian co-worker read the monitoring document to him. Claimant testified that no one told him to only check the presses one time every two hours. He noted, however, that checking more often, like he did, helped keep the pasta machines running. On cross-examination, Mr. McGrath acknowledged that there was no maximum number of times that an employee could go up to check on the machines and he does not know how many times Claimant actually climbed the presses to check on them during his shift. He simply believed that climbing more than two to four times a shift was not a regular occurrence for operators.
8) Claimant testified that he first started noticing problems with his knees in approximately 2007. He weighed approximately 177 pounds at the time and said that his weight was always around that same number prior to the onset of the knee problems. However, since the knee problems, and specifically after the first operation, his weight has gone up to approximately 250 pounds. He testified that his weight went up after he was put on the depression medications from Dr. Khan after the knee problems started.
9) Claimant testified that Dr. Khan treated him for depression in 2007 with medications. He admitted that the medications made him feel a little bit better. He said that he was diagnosed with depression because of working too much. He had three work
positions to handle and it became too much for him. He felt bad. He said that because work was too overwhelming for him, he would have his supervisor help him or send a co-worker to help him complete his work tasks. Despite admitting that he needed help to complete his job after the depression diagnosis and did not previously need such help, he denied that the depression was interfering with his job.
10) Medical treatment records from Midwest Health Professionals, P.C. (Exhibit A) begin on June 9, 2006 with a visit for complaints diagnosed as social anxiety disorder or possibly generalized anxiety disorder, for which he is given medications. He was reporting problems in social situations, although he was continuing to work. His weight was reported throughout 2006 and into early 2007 as ranging from 170-182 pounds. He continued to treat for this condition into 2007 and also began seeing Dr. Saad Khan (Exhibits C and D) for his psychiatric complaints in 2007. When Dr. Khan first examined Claimant on April 16, 2007, he noted that Claimant had been admitted into St. Anthony's Medical Center on December 31, 2006 for attempted suicide. He diagnosed Claimant with severe major depression and prescribed medications and follow-up visits. Dr. Khan has continued to see Claimant regularly up through February 10, 2014, with complaints that have ranged from normal to slight to moderate depression during the period, making adjustments to his medication regimen to try to gain good relief of his psychiatric issues/complaints.
11) Claimant testified that he started with pain in his knees that made it difficult to walk. It also prevented him from doing his normal job duties. He described that the knee pain got worse during the work week and while he was performing his job duties. He said that the knee pain worsened over the next several years after 2007. He could not remember when he first talked to Employer about his knee problems. He admitted that he treated on his own for his knees.
12) Claimant testified that he first saw Dr. Buck in 2007 with pain in his knees, left greater than right. He said he received an injection in his left knee and medications (pain and anti-inflammatory). He was examined by Dr. Doerr in 2008 with pain in his knees. Dr. Doerr injected the left knee, ordered an MRI and recommended surgery, but the surgery was not done at that time. Claimant testified that he continued to work for Employer in 2008 and into early 2009.
13) The first clear reference to knee complaints that I found in the medical treatment records of Midwest Health Professionals, P.C. (Exhibit A) was on July 2, 2007, when Claimant reported to Dr. Denise Buck that his knees were hurting more in the evening and he was using extra strength glucosamine. He said that he was having trouble walking and reported that he climbs lots of stairs at work. X-rays taken on July 5, 2007, revealed minimal osteoarthritis in the right knee and tri-compartment osteoarthritis, worse in the medial compartment, in the left knee. When Claimant continued to complain of knee pain on January 28, 2008, additional X-rays were taken showing no significant change from the last ones (moderate narrowing on the right side and moderately-severe narrowing on the left side), so Dr. Buck prescribed some pain medication in addition to the naproxen that he was already taking. She injected the left knee on February 5, 2008 and Claimant reported that the injection helped for a
couple weeks, but the knee pain returned. Claimant continued to have bilateral knee pain. Other than the reference to Claimant climbing a lot of steps at work, I found no discrete opinion from the doctor in these records that the bilateral knee complaints were related to his job activities for Employer or not.
14) When Claimant's bilateral knee complaints continued, Dr. Buck referred Claimant to Dr. Dale Doerr (Exhibit E) for evaluation and treatment. Dr. Doerr first examined Claimant on May 27, 2008. He diagnosed degenerative arthritic changes of both knees, left worse than right, and injected the left knee. When Claimant returned on July 11, 2008, reporting that the injection did not provide long-term relief, Dr. Doerr ordered an MRI of the left knee, which showed degenerative arthritic changes, as well as a tear of the posterior horn of the medial meniscus. On July 18, 2008, it appeared as though he was suggesting surgery, but that was not scheduled in the short term, apparently because Claimant was unable to get off work for that purpose. Claimant was next seen by Dr. Doerr on March 25, 2009.
15) Claimant testified that he saw Dr. Buck for left ankle pain in 2009. He said that he had swelling, and X-rays were ordered. He testified that there was no specific accident or incident that caused the onset of the left ankle problems. Claimant said that he treated at St. Anthony's and with Dr. Doerr for the left ankle. He said that an MRI revealed a fracture of the distal tibia and he was placed in a boot to allow the fracture to heal. He said that he never returned to work after the left ankle issues, but his failure to return to work was because his knees hurt.
16) Medical treatment records from Midwest Health Professionals, P.C. (Exhibit B) document a visit on February 20, 2009 for left ankle pain with standing that had been present for two weeks. There was no injury or trauma reported to cause the pain and swelling in the ankle. The notes indicate that it gets better with rest, but worse with standing, and he has swelling by the end of the day. Claimant was diagnosed with left ankle pain, treated conservatively with medications, and had a venous Doppler study ordered to rule out blood clots as the cause of the pain. The left lower extremity venous Doppler ultrasound was performed at Watson Imaging Center (Exhibits U and V) on March 20, 2009 and showed no evidence of deep venous thrombosis.
17) When Claimant returned to see Dr. Doerr on March 25, 2009 (Exhibit E), he was still complaining of knee problems, but now also pain in the left ankle. Dr. Doerr indicates, "The patient has no history of injury to the left ankle." He reported an onset of pain in the left ankle a few days before and an inability to walk. X-rays from St. Anthony's Medical Center (Exhibit W) on March 24, 2009 were negative for fracture and showed only mild osteopenia. Dr. Doerr thought there was perhaps a partial tear, or at least, Achilles tendonitis in the left ankle. An MRI and X-rays performed by Dr. Doerr on April 7, 2009, showed a long oblique stress fracture of the distal tibia. Claimant was placed in a walking cast brace to allow the fracture to heal. By May 26, 2009, Dr. Doerr reported that the stress fracture was healing and minimally displaced, but Claimant had less complaints of pain, so Dr. Doerr allowed weight-bearing in his regular shoe.
18) Claimant testified that he began treating with Dr. Benz in June 2009 for his knees. He received injections in both knees and ultimately, after a second opinion from Dr. Stahle, had surgery and knee replacements for each knee. In fact, Claimant testified that he has had three knee replacement surgeries for the left knee. His most recent knee replacement on the left side was performed by Dr. Mudd on February 12, 2014 and he was still in therapy for the left knee.
19) The medical treatment records of Dr. Stephen Benz (Exhibit G) confirm that he first examined Claimant on June 3, 2009, with a complaint of left greater than right knee pain present for years. The note indicates that Claimant walks a lot with his job and does a lot of stair climbing. X-rays showed a significant amount of degenerative arthritis in all three compartments and the physical examination showed crepitus and severely restricted range of motion. Dr. Benz opined that Claimant needed total knee replacements, but suggested possibly trying Synvisc injections first to see if that helped. He believed a knee arthroscopy would be "a total waste of time." After the Synvisc injection in each knee did not help his complaints, Dr. Benz recommended joint replacement surgery for Claimant. He took Claimant off work from June 3, 2009 "until further notice."
20) Before proceeding with surgery, Claimant had a second opinion examination with Dr. Steven Stahle (Exhibit I) on July 14, 2009. Claimant again reported pain in both knees and again reported that when he goes up and down steps at work, they are sore. Dr. Stahle diagnosed bilateral knee degenerative joint disease and meniscus damage. He ordered MRIs of the knees to assess the damage. The MRIs of the knees taken on July 15, 2009, showed extensive cartilage loss, chondromalacia with chondral erosion, and meniscus and ligament damage in each knee.
21) Following the MRIs, Dr. Stahle referred Claimant to Dr. Corey Solman (Exhibits K and M) for evaluation and treatment. Dr. Solman examined Claimant on July 22, 2009. Claimant presented with chronic bilateral knee pain, with an onset two years earlier. Claimant reported that his condition is worsened with climbing up and down inclines or stairs. He denied any precipitating event, but noted that he worked at a pasta plant and "feels that some of the pain may be due to walking up and down stairs for 37 years." Dr. Solman diagnosed bilateral knee osteoarthritis and degenerative medial meniscus tears. He recommended an arthroscopic surgery on the right knee, but acknowledged that a knee replacement may still be necessary in the future. Dr. Solman noted, "Also he and his wife understand that this is NOT a work related condition, as he has no work related injuries or surgeries that would predispose him to arthritis other than normal chronic progressive degeneration of the knees."
22) Dr. Solman took Claimant to surgery on August 4, 2009 at Advanced Ambulatory Surgical Care (Exhibit O). He performed a right knee arthroscopy, partial medial meniscectomy and chondroplasty of the trochlea, patella and medial femoral condyle, to treat Claimant's right knee osteoarthritis, grade IV chondromalacia and medial meniscus tear. Despite the surgery, a course of physical therapy, a knee brace and a cortisone injection, he still had pain complaints as he continued to follow up with Dr. Solman. Dr. Solman continued his off-work status starting in August 2009. Claimant
was hopeful that he could return back to work with the knee brace, but instead, he ended up having the right total knee arthroplasty performed by Dr. Solman at Des Peres Hospital (Exhibit Q) on November 20, 2009 to treat his end-stage osteoarthritis of the right knee. Claimant attended a course of physical therapy and continued to follow up with Dr. Solman through March 22, 2010, reporting some improvement in his complaints and increased function in the right knee following the knee replacement surgery. He still had some weakness and occasional soreness, as well as trouble going up and down stairs, which the doctor noted was a "major part of his job which he has done for the last thirty-seven years at the pasta plant that he works at." Dr. Solman recommended continued physical therapy to see if he could improve his ability to go up and down stairs. Dr. Solman noted that if he did not improve in this regard, then Claimant may not be able to go back to his normal job at the plant, but perhaps a different job that did not require so much work on stairs. By May 24, 2010, Claimant was doing well with the right knee, but no longer had a job with Employer. Dr. Solman suggested that he continue with his home exercise program and continue to work on regaining his strength, to see whether or not he was capable of returning to any gainful employment.
23) Physical therapy records from PRORehab, P.C. (Exhibit S) document the physical therapy Claimant received at the direction of Dr. Solman from August 6, 2009 through March 15, 2010.
24) Claimant returned to Dr. Solman on November 15, 2010, reporting that his right knee was doing well and he was ready to have his left knee replacement surgery scheduled. Dr. Solman (Exhibit M) performed a left total knee arthroplasty on Claimant on January 14, 2011 at Des Peres Hospital to treat Claimant's left knee osteoarthritis. On February 9, 2011, Dr. Solman noted that his left knee was doing fairly well, but Claimant had been hospitalized twice since the left knee surgery for congestive heart failure, atrial fibrillation and recurrent dizziness. He continued Claimant in physical therapy for the knee. When Dr. Solman discovered on March 14, 2011 that Claimant had some swelling and stiffness in the knee, he scheduled a closed manipulation of the left total knee arthroplasty under anesthesia, which he performed on March 17, 2011 at Des Peres Hospital, to treat Claimant's mild arthrofibrosis in the left knee. Dr. Solman kept Claimant in physical therapy to work on range of motion. On May 2, 2011, Dr. Solman found some continued pain and swelling in the left knee, which he believed was attributable to a loose lateral joint fragment. He took Claimant back to surgery on May 5, 2011 at Des Peres Hospital for a removal of a foreign body from the subcutaneous tissue of the left knee. Claimant showed improvement in terms of pain, swelling and function following this third procedure. Dr. Solman was continuing to find pitting edema in his legs and complaints of dizziness for which he recommended Claimant see his personal physician.
25) When Claimant continued to have left knee pain and intermittent swelling on September 26, 2011, Dr. Solman suggested a need to perhaps revise the knee replacement, since he may have some loosening in the knee, resulting in the continued pain. On November 15, 2011, Dr. Solman took Claimant back to surgery again at Des Peres Hospital and performed a revision of the tibial component of the left total knee
arthroplasty, to treat Claimant's aseptic loosening of the tibial component of the total left knee arthroplasty. As Claimant continued to follow up with Dr. Solman after this last surgery, he was reporting improvement in the left knee, but by January 9, 2012, he was having a lot of lower back and SI joint pain. Dr. Solman diagnosed lumbar spine osteoarthritis/spondylosis, sacroiliac joint pain and mild bilateral hip osteoarthritis. At the last visit with Dr. Solman on February 13, 2012, he was doing better with the left knee, but needed an injection into the IT band area of the left knee because of pain on the lateral side of the knee. ${ }^{1}$
26) Claimant acknowledged that he developed low back pain that was first treated after his knees became symptomatic. He said that he has pain with sitting too long or getting up. He also admitted that he was recently diagnosed with vertigo since he stopped working for Employer.
27) Claimant was examined by Dr. Christopher Mudd at Metropolitan Orthopedics, LTD. (Exhibit X) on December 17, 2013. Claimant was still complaining of left knee pain, especially with doing stairs. Dr. Mudd recommended additional tests to try to determine the etiology of his complaints, but he did not see any obvious mechanical or radiographic reason to consider another revision surgery on the left knee. When Claimant returned on January 13, 2014, Dr. Mudd noted that the bone scan showed increased uptake diffusely in the left knee, lateral tibial plateau and medial femoral condyle, suggesting either loosening or infection. The knee was aspirated to rule out infection, and if no infection was found, then Dr. Mudd was going to perform a revision knee arthroplasty. ${ }^{2}$
28) Claimant submitted into evidence a number of medical bills and the corresponding medical records described above, for the care and treatment he received for his alleged bilateral knee work injury. The bills submitted into evidence are as follows:
Signature Health Services, Inc. (Exhibit F) $\ 2,896.00
Tesson Heights Orthopaedics (Exhibit H) $\ 3,183.00
Dr. Steven Stahle (Exhibit J) $\ 319.00
U.S. Center for Sports Medicine (Exhibit N) $\$ 39,097.75^{3}
Advanced Ambulatory Surgical (Exhibit P) \ 11,216.00
Des Peres Hospital (Exhibit R) $\ 64,037.10
PRORehab, P.C. (Exhibit T) $\ 15,639.89
Metropolitan Orthopedics, LTD (Exhibit Y) $\ 824.00
Total charges $\ 137,212.74
[^0]
[^0]: ${ }^{1}$ It should be noted that while Claimant placed in evidence the Des Peres Hospital records and bills for the November 20, 2009 right knee replacement surgery, no such records or bills from Des Peres Hospital were placed in evidence for the multiple surgical procedures performed on the left knee by Dr. Solman at that facility in 2011. ${ }^{2}$ Based on Claimant's testimony, it appears that Claimant had the additional revision surgery suggested by Dr. Mudd, but the record of evidence does not contain any medical records or bills for the hospitalization or surgery. ${ }^{3}$ Claimant also submitted into evidence medical bills from Dr. Solman under the name of Professional Athletic Orthoped (Exhibit L). In comparing those charges to the bills contained in Exhibit N, I find that all of the charges in Exhibit L have exact duplicate charges in Exhibit N. Therefore, I am not including any charges from Exhibit L to prevent duplicate bills from being considered in the record.
29) Claimant also submitted into evidence some medical bills and the corresponding medical records described above, for the care and treatment he received for his alleged left ankle injury. The medical bills from Signature Health Services, Inc. (Exhibit F) totaled $\ 3,678.00.
30) Regarding his current condition/complaints with his knees, Claimant testified that his left knee hurts so much that he can hardly walk on it. He is in constant pain and can only stand or walk for about five minutes around the house. He limps now. He said that he also has limited movement in the knee because of the pain. He admitted that his right knee moves better than his left, but he is still unable to kneel like he once could. He described that he sits down in a recliner and elevates his knees to relieve the pain. Claimant said that he must stop on every step as he is climbing stairs, so it takes a long time to climb stairs. He said that he cannot work or do anything else because of his knees. He used to work around the yard, trim bushes, cut grass and help his wife around the house, but he cannot do any of that anymore.
31) In terms of his current medications, he said that he takes medication for depression and one or two medications for pain. He said that his wife takes care of his medications for him. He admitted that the medications make him feel a little better, but once in a while he gets dizzy from them.
32) Claimant described his daily activities now as getting up, eating breakfast, watching television in a recliner, having lunch, sitting down again and watching more television until dinner, having dinner, watching more television, and, then, going to bed. He said that he could not return to work for Employer because he cannot walk with his knees the way they are now. He said that he has always done physical work and does not know what he would be able to do in his current condition.
33) On cross-examination, Claimant admitted that his first treatment for the left knee was actually in 1994. Records regarding a May 30, 1994 left knee work injury (Exhibit 4) show that Claimant received a brief period of conservative treatment for a left knee strain. There was also a mention in those records of degenerative osteoarthritis changes in the left knee. Claimant received no payment of disability on the left knee at that time. Claimant also admitted that he was hospitalized for depression for two weeks in 2007 and missed work during those two weeks on account of his depression treatment. He admitted that he applied for a leave of absence for his left knee pain from Employer in May 2008, but he did not remember if he said it was work related or not. He noted that it was only for a period of two days.
34) The deposition of Dr. Bruce Schlafly (Exhibit AA) was taken by Claimant on October 11, 2012 to make his opinions in this case admissible at trial. Dr. Schlafly is a board certified orthopedic surgeon, with added qualifications in hand surgery. He examined Claimant on one occasion, November 29, 2011, at the request of Claimant's attorney and issued his report on that same date (Exhibit Z). Interestingly, Claimant was still in a wheelchair at the time of Dr. Schlafly's examination, having just had a left knee surgery two weeks earlier. He was still under follow-up treatment from the surgeon for the left knee. Dr. Schlafly took an extensive history from Claimant of his
work activities, problems and complaints, as well as the medical treatment he received. That history included a description of the work activities, walking and climbing stairs repetitively, that he performed for Employer for over 35 years. The history from Claimant also included a description of an injury in 2009, when his right knee gave out and he jammed his left lower leg against the steps at work. Claimant denied any ongoing complaints or problems with the left lower leg. Dr. Schlafly also reviewed extensive medical records regarding treatment he received. His physical examination of Claimant revealed swelling at the knees, left greater than right, and surgical scars consistent with the bilateral knee surgeries. Dr. Schlafly did not ask Claimant to get out of the wheelchair, so there were some range of motion measurements on the right knee, but none for the left knee.
35) Dr. Schlafly diagnosed a torn medial meniscus of each knee, a torn anterior cruciate ligament of the left knee and medial collateral ligament strain of the right knee, as well as cartilage loss with arthritis of the knee, status post left total knee replacement and revision surgery, and right knee arthroscopic partial medial meniscectomy followed by right total knee replacement. Dr. Schlafly also diagnosed a stress fracture of the left distal tibia, which he found to be completely healed and asymptomatic. As for the stress fracture, Dr. Schlafly opined that it probably arose from altered gait, due to arthritis of the right knee, but the stress fracture was appropriately treated and completely healed, with no residual disability associated with the stress fracture of the distal tibia. Dr. Schlafly was "uncertain about any separate work injury that produced the stress fracture of the left leg." However, he testified in deposition that a stress fracture is caused by repetitive exposure to the forces, such as going up and down stairs, and, in that respect, believed it to be related to Claimant's work for Employer. As for the bilateral knee condition, Dr. Schlafly opined that Claimant's unusually repetitive work climbing up and down metal stairs for Employer, is the prevailing factor in the cause of the torn cartilage in the knees, and as a result of the torn cartilage, Claimant developed progressive arthritic changes in the knee joints, producing progressively increasing pain in the knees, forcing Claimant to seek treatment for the knees. He believed Claimant's work for Employer was the prevailing factor in the need for the bilateral total knee replacements, as well as the other knee treatment.
36) Dr. Schlafly rated Claimant as having permanent partial disabilities of 55 % of the right knee and 70 % of the left knee, further opining that the work injury dated May 27, 2008 is the prevailing factor in the cause of these knee disabilities. Since there was disability in each knee, Dr. Schlafly opined that a condition of multiplicity exists, which should be compensated by a loading factor applied to these knee disabilities. He believed Claimant was unable to return to his previous job for Employer, because of his knees, and limited Claimant to sedentary work. He opined that Claimant was limited to sedentary work since he developed the stress fracture in his left leg. Finally, he opined in his report, "I have no opinion regarding pre-existing disability due to depression. I have no opinion regarding Mr. Tarpeo's need for any future medical care, other than physical therapy, for the left knee." However, in his deposition, Dr. Schlafly was asked about Claimant's need for future medical treatment, and he responded, "Nothing specific that I can indentify."
37) On cross-examination, Dr. Schlafly admitted that some of the findings on the physical examination would be expected given his recent left knee surgery and he would also expect the complaints and function to improve for several months after the surgery. He acknowledged that he has not seen any more recent medical records and does not know anything about Claimant's condition subsequent to his examination on November 29, 2011. He simply rated Claimant's permanency as of that date, further acknowledging that Claimant had not completed treatment and was not yet at maximum medical improvement for the left knee. He also confirmed that he did not even evaluate, nor rate, any pre-existing conditions (depression or high blood pressure).
38) The deposition of Dr. Richard Rende (Exhibit 1) was taken by Employer on October 16, 2012 to make his opinions in this case admissible at trial. Dr. Rende is a board certified orthopedic surgeon, who has performed about 12,000 total knee replacement surgeries. He examined Claimant on one occasion, June 19, 2012, at the request of Employer's attorney, and issued his report on that same date. He took a history from Claimant, reviewed the medical treatment records and performed a physical examination of Claimant, in reaching his conclusions in this case. Overall, Claimant reported that his right knee was doing better than his left knee. Based on the description of some of his complaints, Dr. Rende concluded that some of his pain going down the left leg into the foot, is actually coming from the low back, not the knee. Dr. Rende found excellent range of motion in the right knee and good range of motion in the left knee, with no effusion and good stability. Dr. Rende opined that Claimant's bilateral knee condition is related to severe degenerative osteoarthritis, a condition of aging and wear and tear. He did not believe it was a work-related condition. He suggested that Claimant told him his father was very impaired because of severe arthritis, and, so, Claimant's condition was more related to genetics and his weight, than to repetitive trauma at work.
39) In his report, Dr. Rende opined that Claimant reached maximum medical improvement and was not in need of any further care for either knee. However, on direct examination, Dr. Rende opined, "whenever you have knee replacements, you always need yearly follow-up visits with the physician that placed the knee replacements. In the sense that they would require yearly follow-up visits, he would need additional care." He did not provide any ratings of disability and opined that Claimant could work with permanent restrictions of no kneeling, squatting or climbing repetitively, and no running, jumping or lifting in excess of 50 pounds. He described these restrictions as "typical" for anyone with knee replacement procedures.
40) On cross-examination, Dr. Rende agreed that recurrent stress to the knee joint could contribute to osteoarthritis. He agreed that going down stairs increases the stress on a person's knees, as does going up stairs, but not at the same level as descending. He even agreed that studies have shown that going up and down stairs has a potential for aggravating a pre-existing arthritic condition. However, he continued to opine that osteoarthritis is a wear-and-tear process that is directly related to age. Dr. Rende admitted that he took into account the recurrent stress that Claimant's knees were
exposed to at work as a part of the wear and tear that caused Claimant's knee condition, but he still did not think the work exposure was the prevailing factor. He admitted that the history Claimant gave him of his father having arthritic problems was not contained anywhere in his notes, which he used to produce his report, but he insisted that Claimant told him that. There was a discussion of the difference between risk factors and causation, and when confronted with questions about whether his opinion would change, if his assumptions on Claimant's weight and genetics were incorrect, he testified that the opinion would not change. Finally, he admitted that, "It's reasonable that his work may have hastened his osteoarthritis but not caused it." I should also note that during cross-examination, Dr. Rende became rather combative and refused to explain a basis for one of his opinions, indicating, "I don't feel I need to explain it to you. I'm the orthopedic knee specialist, you aren't."
41) The deposition of Mr. James England, Jr. (Exhibit CC) was taken by Claimant on September 27, 2012 to make his opinions in this case admissible at trial. Mr. England is a certified vocational rehabilitation counselor. He met with Claimant on one occasion, February 29, 2012, at the request of Claimant's attorney. He reviewed extensive medical treatment records; took a family, social, educational and vocational history from Claimant; administered vocational testing; determined his functional restrictions/limitations; and then issued his report dated March 7, 2012 (Exhibit BB). Mr. England did not believe that Claimant had any usable, transferable skills to jobs at the light or sedentary levels of exertion. He found that Claimant is functionally illiterate in English and scored at the fourth-grade level in math. He determined that his academics would not be sufficient to allow Claimant to handle even entry-level service employment. He acknowledged that Dr. Schlafly limited Claimant to a sedentary level of work activity. Considering his lack of transferable skills, his age, education, inability to read or write effectively, limitation to sedentary work, and need to elevate his leg a good part of the day, Mr. England concluded that Claimant was not competitively employable.
42) When asked at deposition about the reasons Claimant is unable to compete in the open labor market, Mr. England replied that, "it would be due to the combination of the effects of the knee problems, in combination with his limited education, his inability to effectively communicate in English, or to read and understand in English. It's the combination of those things, I think, with the physical problems, that would totally disable him." He testified that the depression he found references to in Claimant's medical records "wasn't something that I considered as a limiting factor." Therefore, it was not a factor he included in determining that Claimant was unemployable. Mr. England described the difficulties that Claimant would have even trying to get a GED, because of his age, his limited education in his country of origin, and his inability to communicate in English. However, nowhere in his report or testimony was there any opinion, or even suggestion, that Claimant was unable to learn English or get a GED because of some mental defect or disability, just that it would be difficult given his age and failure to learn English already.
43) Mr. McGrath denied that Claimant ever reported knee pain to him from doing his job. He said that on March 24, 2009, Claimant complained to him about having problems
walking and said he needed to go home. He said that he sent the e-mail on April 7, 2009 (Exhibit 8) because the company has a policy about reporting injuries and wanted to make it clear that Claimant did not report an injury, and, in fact, denied that he injured himself at work. Mr. McGrath testified that Claimant never said he was leaving for a work-related injury.
44) Earleen Ehlers, Employer's Human Resources Manager, also testified live at trial for Employer. She is responsible for all of the workers' compensation, FMLA, hiring, firing, and short and long term disability for Employer. She acknowledged that she spoke mostly to Claimant's wife, not Claimant, about the various issues with his claimed injury and other benefit applications. Regarding his time actually worked, as opposed to taking off for FMLA, Ms. Ehlers showed in Exhibits 9 and 10, that Claimant took off completely for FMLA from January through May 2007, worked full time until May 2008, when he missed two days for FMLA for his knees (Exhibit 5), and again worked full time until March 2009, when he went out on FMLA on March 24, 2009, received short term disability for 26 weeks, then long term disability, but never returned to work. Interestingly, although the FMLA paperwork (Exhibit 5) was dated June 11, 2008, and only had a doctor's note for two days in May 2008 attached to it, it was back dated to January 1, 2007 to apparently pull in that time from 2007 even though no prior FMLA paperwork had been filed for that time period at or around the time the lost time occurred.
45) With regard to his second claimed injury from 2009, Ms. Ehlers showed on the time logs (Exhibit 9) that Claimant was not even working on March 20, 2009. He was not even scheduled to work that day. A review of Employer's computer notes (Exhibit 8) shows that in discussions between Ms. Ehlers and Claimant's wife, there was some uncertainty about what was going on with Claimant's left ankle/leg, and once a fracture was diagnosed, Ms. Tarpeo was certain it did not happen at home, so it must have happened at work. According to the notes, when Claimant's short term disability paperwork was originally submitted, Claimant listed it as a work-related injury with a date of March 10, 2009, so Claimant's wife was told by Ms. Ehlers that the STD application would be denied. Upon further discussions between Ms. Ehlers and Ms. Tarpeo, the short term disability application (Exhibit 6) was changed to "unknown" for where the accident happened and the date line was left blank, so that Claimant would be approved for the short term disability.