On March 6, 2010, this then 33-year-old claimant, a County Sheriff's deputy, injured his low back after falling to the ground to avoid gunfire from an armed assailant near the Katy Trail and Upper Bottom Road in St. Charles County, Missouri. On that date, the claimant was on regular patrol near the Katy Trail at 8:49 pm when he observed a 40-50 year old white male, grey hair, approximately 5'10 to 6'0" tall, approximately 180-200 pounds, wearing a camouflage jacket and dark-colored pants. The claimant identified himself as a police officer. After the unidentified subject initially ignored the claimant's inquiry, the subject turned toward the claimant and fired one shot at the claimant. The claimant who was then 30 to 50 feet from the subject and behind his driver side door, then drew his gun, fired two shots, went to the ground and rolled to the rear of his vehicle for cover. The claimant fell to the ground landing on his mace canister which was on his service belt. The claimant advised dispatch of the incident and remained at the scene. An empty cartridge was found at the scene where the shooting took place.
The claimant testified that he felt he had lots of adrenalin, felt pain and knew that something was not right. He remained at the scene with many other officers and supervisors for about an hour and then went by ambulance to Barnes-Jewish St. Peters Hospital.
At Barnes-Jewish St. Peters Hospital, the claimant reported being involved in a shooting (without gunshot wound) and complained of low back pain and high blood pressure after the altercation. The claimant received pain medication and muscle relaxers, some of which caused nausea/vomiting. The claimant reported back pain with a severity of 7 , which was constant and sharp, and radiated into his right thigh. The claimant was diagnosed with low back pain and sciatica and instructed to follow up with his employer's occupational health provider. See Exhibit 2. Both the claimant and Jennifer Bell testified that the emergency room physician recommended a low back MRI.
On March 8, 2010, the claimant went to BarnesCare St. Peters and reported that his symptoms had continued since the injury occurred and that the pain was constant. He stated to the nurse practitioner that he wanted to return to full-duty work. See Exhibit 3. The claimant testified that even though he was still experiencing pain, he wanted to go back to work because that is who he is.
The claimant testified that as a result of the shooting he was required to go to at least three appointments with a psychiatrist. At the April 13, 2010 appointment, Dr. Caraffa noted that the claimant "likes most all supervisors" but a lieutenant questioned one of the claimant's "protégés about having [a] throw-down gun and extra shells" and the protégé told the lieutenant "no way". At the April 20, 2010 appointment, Dr. Caraffa noted how the claimant had issues with a lieutenant who mistrusts him. The claimant also discussed with Dr. Caraffa the differences between working in Jennings (the claimant's prior employer where the claimant was involved in other shootings) and St. Charles. See Exhibit 5.
The claimant testified that he continued to have low back complaints in the months following the accident. On April 9, 2010, he went to his primary care physician who noted that the claimant's back and leg pain were not responding with conservative treatment and he was advised to follow up with an orthopedist. See Exhibit 4. The claimant testified that in order to cope with his back pain that he self-medicated by taking large quantities of over-the-counter pain medications such as Tylenol and Advil. Jennifer Bell testified that the claimant was in significant pain, was very immobile and only left bed for work.
On May 24, 2010, the claimant went to St. Joseph Hospital West complaining of nausea/vomiting and left heel pain, brought about by overcompensating due to back pain and right leg pain. The claimant also complained of low back pain. The claimant was diagnosed with gastritis caused by taking too many medications. See Exhibit 10.
The claimant testified that he spoke with Sgt. Mallet, co-workers, and Lt. O'Neill (his supervisor on midnights) about his continued back complaints. The claimant testified that before his March 6, 2010, injury he had never filed a claim for workers' compensation and was not familiar with the process. The claimant testified that in June or July 2010 he called and left messages with Ed Noonan, the Risk Manager for St. Charles County. The claimant testified that he did not receive responses. The claimant's wife also testified that she sent an email to Ed
Noonan concerning the claimant's back complaints but did not receive a response. After discussing his continued back problems with Lt. O'Neill (the claimant's supervisor on midnights), Lt. O'Neill recommended Dr. Graven as Dr. Graven had treated Lt. O'Neill's wife's back problems.
On June 22, 2010, Dr. Larkin examined the claimant and ordered a low back MRI, which revealed a broad central and right paracentral herniation and diffuse disk bulge at L4-5. On June 29, 2010, Dr. Larkin prescribed a second Medrol Dosepak and directed the claimant to follow up with Dr. Graven. On July 29, 2010, Dr. Graven noted the claimant was experiencing excruciating right leg pain. Dr. Graven referred the claimant for epidural steroid injections. See Exhibit 8. On July 29, August 19, and September 16, 2010, the claimant received lumbar epidural steroid injections. See Exhibit 9.
On September 10, 2010, Dr. Mandava, a psychiatrist, examined the claimant and noted that claimant was having nightmares and dreams related to the shooting in March of 2010. Dr. Mandava noted that the claimant's heart was racing, and he had lack of sleep, dreams, sweating, trembling, shaking, shortness of breath, nausea, dizziness, losing control, crazy, chills, hot flashes, paresthesias, and agitation. The claimant has had flashbacks at home and woke up sweating. Dr. Mandava diagnosed the claimant with post-traumatic stress disorder (PTSD). See Exhibit 7.
On October 18, 2010, Dr. Graven performed an L4-5 discectomy and L4-5 hemilaminotomy on the right. See Exhibits 8 and 10. On October 29, 2010, Dr. Graven examined the claimant and released him to return to work on November 1, 2010, with light duty/desk duty only. The claimant followed up with Dr. Graven again on November 23, 2010. See Exhibit 8.
The claimant was off work from October 18, 2010, through November 1, 2010, and contacted his Employer who filled out Leave Requests/Absence Reports. See Exhibit 12.
On December 9, 2010 Dr. Stufflebam, the claimant's new primary care physician, noted the L4-5 discectomy, the NSAID-induced ulcer, and PTSD among the claimant's problem list. On February 15, 2011, Dr. Stufflebam began prescribing Cymbalta. See Exhibit 11.
The claimant testified that currently he experiences stiffness and soreness in his back. He cannot sit in certain positions for very long. He is unable to ride his motorcycle for long distances. The claimant testified about the significant psychological problems which he has related to the March 6, 2010 shooting. He described his "night terrors" and how he does not like to talk about the incident as talking about the incident will result in increased "night terrors". The claimant testified he was often afraid to go to sleep. The claimant testified that he had previously been shot at while working for the City of Jennings, but that was different because it was expected and he was prepared for it. The claimant testified about how he was withdrawn socially and did not want to be around his family and friends. He had no mood and no energy. His sleep is significantly interrupted and difficult. He still has the "night terrors" ( 75 % of his nightmares involve the March 6, 2010, shooting while 25 % involve the July 25, 2012 shooting). He testified that he "knows" where the areas are that the shootings took place, and while he does not completely avoid the areas, being in the areas brings back the memories.
Jennifer Bell, the claimant's wife of nine years, testified that the claimant has had significant back pain since the March 6, 2010 injury. She testified that he took lots of pain medications, was less mobile, and only left bed for work. He was unable to help care for their then two young children. Following the back surgery, his condition improved and he had fewer complaints related to the back. She testified that he tries to do as much as he can. Ms. Bell testified emotionally about the significant psychological problems that the claimant has encountered. She described it as a "rough go". The claimant withdrew from his family and friends. He did not want to get out of bed. She testified that it was as if he was not there. Currently, he continues to have terrible dreams and nightmares where he relives the March 6, 2010 and July 25, 2012 incidents. He will roll out of bed, run into the wall or furniture, and/or curl up in a ball. If he is able to be calmed down enough to go back to sleep, it takes a long time. Ms. Bell also testified that she sent an email to Ed Noonan from her yahoo home email account following up on the voicemail messages that claimant had left for Mr. Noonan concerning obtaining treatment for his back injury. Ms. Bell testified that Mr. Noonan did not respond to her email.
Edward Noonan, the employer's risk manager since 2003, testified that a supervisor is required to contact him for approval of medical treatment for an employee unless it is a life-ordeath matter. He testified that the employer is self-insured for workers' compensation and for group health/medical insurance. Despite a Report of Injury, filed in March 2010 and an Answer to Claim for Compensation dated February 28, 2011, Mr. Noonan testified that he first heard of the March 6, 2010, injury in February 2013. See Exhibit 16. Mr. Noonan also testified that neither the claimant nor his wife contacted him about the 2010 injury, but he acknowledged that it was possible that he was contacted. Mr. Noonan testified that the claimant emailed him on October 17, 2012, concerning the July 25, 2012 injury and that the email "got misplaced and resurfaced" five weeks later. See Exhibit E.
St. Louis County Police Sergeant Daniel Cunningham testified that on March 6, 2010, he was the pilot of a helicopter flying general patrol over Chesterfield when they heard the call of an officer involved shooting. Though he did not have his call notes (which would set forth the exact times) or any recordings, he believed it took him about two minutes to get to the area of the scene of the shooting. Sgt. Cunningham testified his primary duty was piloting the helicopter and a different officer was in charge of actually looking at the FLIR unit. Sgt. Cunningham testified that the FLIR unit cannot observe all areas such as under bridges. He also testified that they had to leave the scene and refuel on three different occasions which would take at least 16-18 minutes each time. He testified that after six hours ( 3 am on March 7, 2010), he had no other involvement with the shooting, the search or the investigation. Sgt. Cunningham also testified that an officer on the ground has a better perspective on what has occurred.
St. Charles County Police Sergeant Bryan Streck arrived at the scene of the shooting eight minutes after the shooting. He testified that the claimant appeared "shaken up", looked like he had been in a tussle, was a little bit dizzy and later said his back hurt. Sgt. Streck initially testified that he set up a perimeter of 5 miles and had an officer every 50-100 feet on the perimeter. He also testified that that was not possible. He testified that while there may have been a total of one hundred officers at the scene, not all of them were part of a perimeter. Sgt. Streck also acknowledged that a canine unit with the Maryland Heights Police Department was
on a hot trail when he instructed them to stop the search because air support had to land for refueling and he did not think it was safe for them to continue on the trail without air support. After not being able to continue on the hot trail, the Maryland Heights officers and canine unit left the scene and did not return. While personally believing that no shooting occurred, Sgt. Streck testified that he did not review any of the investigation and based it primarily on the fact that a suspect was not captured. Sgt. Streck testified that there were supplemental reports concerning the investigation and he did not review them. He acknowledged that other witnesses saw a man fitting the description given by claimant and that structures in the area were found that indicated homeless people had been living there in the vicinity. Sgt. Streck also testified that he personally filled out the Leave Request/Absence Report (Exhibit 12) dated October 30, 2010 and that as is normally done, he decided which box to mark and he signed the line which reads "Signature of Employee". Sgt. Streck testified that the claimant never reported to him whether the back surgery was or was not work-related.
Captain Thomas Koch testified that in March 2010 he was a Lieutenant and the Patrol Division Commander. He went to the Katy Trail after receiving a call from Sgt. Streck. He only saw claimant briefly and the claimant and all the officers were "shaken up". He testified he had very little contact with the claimant immediately after the shooting and limited contact afterwards. He testified that he did not perform any investigation concerning the March 6, 2010, shooting. Detective Copeland performed the investigation. No discipline of anyone was discussed. Captain Koch testified that the claimant has been "Officer of the Year" on two occasions. Captain Koch testified that it is an anomaly for a police officer to be shot at in St. Charles County and that such shootings are rare. He acknowledged that the claimant has shrapnel in his arm to prove the July 25, 2012 shooting.
Raymond F. Cohen, D.O.
On June 2, 2014, Dr. Cohen examined the claimant, took a medical history, reviewed his medical records, and reviewed the claimant's deposition. Dr. Cohen described the claimant's current chief complaints related to his back:
He continues to have pain in his low back. This is present on a daily basis. He has difficulty sitting in most chairs. He will try to lean forward, if at all possible. When he sits in a vehicle, after approximately two hours, he will get out for a few moments to stretch. He has pain radiating down to the right hamstring area. He describes this as a painful grabbing or pulling sensation. He does obtain some relief of the low back and right leg pain by lying on the floor on his back. He also notes some relief of the pain during the day when he can extend his low back area. When he has to put on his work boots he will have to sit on the floor in order to tie them. He has frequent muscle spasm. He describes the muscle spasm as increased periods of severe low back pain in which his muscles feel extremely hard. He tries to do the stretching that was shown to him in physical therapy on a regular basis. He has increased pain in his low back with repetitive squatting and twisting at the waist. He is careful with heavy lifting. He used to enjoy riding his motorcycle for long periods of time. He now can ride approximately 45 minutes and he will have to stop because of his low back. See Dr. Cohen medical report, Exhibit 1-B, pages 2-3.
In his physical examination, Dr. Cohen noted that the claimant appeared to be in mild distress due to his low back and that he did most of the examination sitting in a forward manner. Dr. Cohen noted that the right toes and foot dorsiflexors were weak at 4/5. There was loss of the normal lumbar lordotic curve and presence of distinct lumbar muscle spasm. Lumbar range of motion in extension was to 10 degrees and he complained of pain with extension. Flexion was to 50 degrees and he complained of discomfort. Both side bending was to 15 degrees and he complained of pain to the left and discomfort to the right. The claimant had some increased spasm with side bending to the left. Straight leg raising was negative bilaterally at 90 degrees, although this did increase his back pain on the right to 70 degrees. See Dr. Cohen medical report, Exhibit 1-B, pages 4-5.
Dr. Cohen testified that from April 2011, to November 2012, he was employed as a neurologist at the Compensation and Pension Section at the Harry S. Truman Memorial Veterans Hospital in Columbia Missouri and he dealt with veterans who had PTSD on a frequent basis, at least weekly and almost daily. See Dr. Cohen deposition, pages 6-7. After reviewing reports from Dr. Pribor and Dr. McCabe, Dr. Cohen also prepared a supplemental medical report dated July 8, 2015. See Dr. Cohen medical report, Exhibit 1-C. After reviewing Dr. Pribor's medical report and Dr. McCabe's test results, Dr. Cohen's opinions and conclusions set forth in his June 2, 2014 did not change. See Dr. Cohen deposition, page 19.
Dr. Cohen's diagnoses regarding the primary work-related injury of March 6, 2010, were:
(1) Fall at work on his low back after shots fired.
(2) Lumbar herniated nucleus pulposus at L4-5 with right lower extremity radiculopathy.
(3) Status post surgery for herniated nucleus pulposus L4-5. The procedure was minimally invasive spine surgery, discectomy at L4-5 and hemilaminotomy at L45 on the right.
(4) Failed lumbar laminectomy syndrome characterized by muscle spasm and loss of lumbar range of motion.
(5) Post-traumatic stress disorder. See Dr. Cohen deposition, pages 14-15.
Dr. Cohen opined that due to the severe symptoms from the PTSD, the claimant is in need of additional treatment and recommended that he be evaluated by a sleep specialist and have a formal sleep study performed. He also recommended that the claimant be seen and followed by a mental health specialist for treatment of the PTSD.
Assuming that the claimant received no further treatment, Dr. Cohen opined that as a result of the March 6, 2010 injury, the claimant suffered a 40 % permanent partial disability of the whole person at the lumbar spine level and a 30 % permanent partial disability of the whole person as a result of the post-traumatic stress disorder. See Dr. Cohen deposition, page 17. Dr. Cohen further opined that although the claimant did have other potentially traumatic events that he was exposed to prior to being employed with this employer, he did not develop any symptoms of PTSD until the work injury of March 6, 2010. Accordingly, claimant did not have any preexisting disability prior to that date regarding the PTSD. See Dr. Cohen deposition, pages 17-18.
Michael C. Chabot, D.O.
On July 10, 2015, Dr. Chabot examined the claimant, took a medical history, and reviewed his medical records and diagnostic studies. See Exhibit B-2. Dr. Chabot noted that the claimant complained of back stiffness/ache and occasional soreness. Dr. Chabot noted that hip examination revealed decreased internal rotation involving the bilateral hips with mild hamstring tightness bilaterally. Dr. Chabot noted in his review of medical records that on February 9, 2010, the claimant had complained to Dr. Cabral of back pain radiating to the right leg. See Dr. Chabot deposition, page 11. Dr. Chabot also testified that the September 16, 2010, notation from Dr. Shelton regarding an aggravation of the claimant's back condition due to moving furniture was of minimal relevance, because the claimant already had documentation of a disc herniation on the right. Dr. Chabot deposition, pages 13-14. Based on his review of the medical records, Dr. Chabot opined that the claimant's need for surgical intervention was related to his work injury of March 6, 2010. See Dr. Chabot deposition, page 19. Dr. Chabot opined that the treatment surrounding his back complaints from March 6, 2010, until his discharge from care by Dr. Graven was causally related to the March 6, 2010 work injury. See Dr. Chabot deposition, page 21. Dr. Chabot further opined that the claimant sustained a 5\% permanent partial disability of the lumbar spine from the March 6, 2010, injury and the surgery following as a result of that injury. See Dr. Chabot deposition, pages 15-16. After reviewing the June 25, 2010, MRI, Dr. Chabot provided a supplemental report dated July 30, 2015 in which he stated that his conclusions set forth in his July 10, 2015 report remain unchanged. See Dr. Chabot medical report, Exhibit B-3.
Elizabeth F. Pribor, M.D.
Dr. Pribor, a psychiatrist, evaluated the claimant regarding his psychiatric complaints related to his work-related incidents of March 6, 2010 and July 25, 2012. Testing was performed on October 29, 2014, and she interviewed the claimant on March 25, 2015. See Dr. Pribor deposition, page 96. Dr. Pribor testified that post-traumatic stress disorder is a psychiatric disorder that results when an individual is exposed to trauma, then that particular trauma produces a particular type of emotional reaction in an individual. See Dr. Pribor deposition, page 10. Dr. Pribor testified that PTSD is the most subjective, or one of the most subjective, psychiatric disorders that leaves the diagnosis open to interpretation by one physician versus another. See Dr. Pribor deposition, pages 13, 48. The diagnosis of PTSD is a subjective measure on the part of the physician. See Dr. Pribor deposition, page 47.
Dr. Pribor testified that being shot at on March 6, 2010, and being shot at and hit on July 25, 2012, qualifies as traumatic events. See Dr. Pribor deposition, page 47. Dr. Pribor testified that the claimant's nightmares, flashbacks, and upsetting dreams satisfy the second requirement. Dr. Pribor deposition, pages 49-50. The third requirement is that there needs to be avoidance. Dr. Pribor agreed with the American Board of Psychiatry when it says that avoiding reminders of the traumatic event may include avoiding people, places, activities, objects, and situations that bring on distressing memories. See Dr. Pribor deposition, page 52. Dr. Pribor acknowledged that the claimant does not like to talk about the shooting and avoids doing that, because it brings on nightmares. Dr. Pribor opined that those conditions do not rise to the level of avoidance needed to meet that diagnostic requirement. See Dr. Pribor deposition, pages 53-54. Dr. Pribor initially testified that the fourth requirement has to do with essentially changing world
perceptions, negative perceptions and connections with the world. See Dr. Pribor deposition, page 54. After consulting her DSM-5, she clarified that they call it negative alteration and cognitions and mood associated with a traumatic event, including but not limited to the following examples: Persistent negative emotional state such as fear, horror, anger, guilt or shame; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; etc. See Dr. Pribor deposition, pages 55-56. Dr. Pribor opined that the claimant did not have two of the examples of the fourth requirement (i.e. negative alteration in cognitions and moods). See Dr. Pribor deposition, page 59. The fifth criterion is that there needs to be arousal symptoms such as irritability, difficulty sleeping, hypervigilance, etc. Despite acknowledging that he had irritability (page 59), hypervigilance (page 57), and sleep disturbance (page 60), Dr. Pribor opined that the claimant did not meet the fifth criterion, "[H]e may have met E for a portion of time, but by the time he saw me, he was no longer having E. See Dr. Pribor deposition, page 60. Dr. Pribor acknowledged that Dr. Mandava, a psychiatrist, in fact diagnosed him as having PTSD. See Dr. Pribor deposition, pages 40, 58.
Dr. Pribor testified that the claimant's psychological testing suggests that he has problems expressing negative symptoms and that due to his difficulty with the expression of negative symptoms, clinicians working with claimant might need to amplify the intensity of what he says to get a better sense of what he is likely experiencing in reality. See Dr. Pribor deposition, page 63. It is also claimant's personality to underreport things. See Dr. Pribor deposition, pages 6465. Dr. Pribor testified that the claimant is the only person she spoke to and she did not speak to his wife, anyone at work, or anyone else concerning the claimant or his symptoms. See Dr. Pribor deposition, pages 53, 79-80, 83. Dr. Pribor testified that the testing indicated that there's no suggestion that claimant is exaggerating or faking bad about the shootings. See Dr. Pribor deposition, page 84. Dr. Pribor testified that a police officer in Jennings has an expectation of worse things happening than a police officer in St. Charles County. See Dr. Pribor deposition, page 86 .
Dr. Pribor opined that the claimant developed an adjustment disorder with anxious mood following the March 6, 2010, shooting and the July 25, 2012, shooting and that he developed psychological symptoms directly related to those events that were clinically significant. See Dr. Pribor deposition, pages 37, 90. Dr. Pribor opined that the claimant's psychological symptoms, specifically the nightmares that he gets and the somewhat increased difficulty with sleep are directly related to the work incidents. See Dr. Pribor deposition, page 102. Nonetheless, Dr. Pribor opined that despite having these psychological symptoms, they do not rise to a level of a permanent partial disability. Dr. Pribor concluded that the claimant is fit to continue his work as a patrolman for the St. Charles County Police Department. See Dr. Pribor medical report, Exhibit A-2, page 21.