Bliss v. BNSF Railway Company

Filing 197

ORDER on defendant's deposition objections, filing 190 . Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA DAVID BLISS, Plaintiff, vs. BNSF RAILWAY COMPANY, 4:12CV3019 ORDER Defendant. IT IS ORDERED that the defendant’s deposition objections, (Filing No. 190), are granted in part and denied in part as set forth in the attached transcripts. May 16, 2014. BY THE COURT: s/ Cheryl R. Zwart United States Magistrate Judge DEPOSITION OF DR. DANIEL RIPA " Condensed Transcript and Concordance Prepared By: LORI ffcGOWAN, RDR, CCR, CRR Certified Realtime Reporter LATIHER REPORTING 7atimer-reporting.com 528 S. 13th St., Suite 1 Lincoln, NE 68508 Phone: (402) 476-1153 (877) 567-5669 Fax: (402) 476-3853 Dr D Ripa !N THE UNITED STATES DISTRICT COURT I· N-D-E -X FOR THE DISTRICT OF HEBRP.,SKA DR DAVID BLISS, ' I Pltnnt1 ff )CASE NO DANIEL RIPA -12 Opi~ion Letter co Ri pa )OEPOSlTION TAKEN IrJ 7 13 4 12CV 3019 I b 4 4 I )BEHALF OF PLAINTIFF B!JSF RAlLVIAY COMPANY 8 I I DefEndant 8 9 " II DEPOSlTlO!l OF DR DATE rs FebruBry 24 TIME 7 01 PLACE DANIEL R RIPA 12 2014 a o 14 15 575 South 70th Street. Su1te 200. 16 L1ncoln, Nebraska 17 17 18 IS 19 18 20 20 21 21 22 22 23 23 25 " 25 4 S- T -1-P-U -L-A- T -1-0 -N -S APPEARANCES 3 APPEARl!iG FOR THE PLAINTIFF (Appear;ng Telephonlc8lly) Mr 0',11 Attor ~~.: McMahon It is hereby stipulated and agreed by and between the parties that; 4 Notice of taking said deposition is 5 Dcnrborn c:::'·" ." ~~~~~~na ••••• lcago 2 com APPEARING FOR THE DEFENDANT waived: notice of delivery of said deposition 6 is waived. 7 Presence of the witness during the S;;ttler 8 transcription of the stenotype notes is waived. 9 Thomas C Taken pursuant to the Federal Rules of at Law w 10 12 13 Civil Procedure. 11 (Exhibit Nos. 78C and 78D 12 marked for identification.) 13 15 DR. DANIEL R. RIPA, 14 Of lawful age, being first duly cautioned and 15 solemnly sworn as hereinafter certified. was 16 examined and testified as follows: 16 17 19 17 20 DIRECT EXAMINATION 18 BY MR. McMAHON: 19 Q. 20 for the jury. 21 A. Daniel Ray Ripa. 22 Q. And what's your profession or 23 occupation? 21 22 24 25 Doctor, could you please state your name 24 Toll free (877) 567-5669 A. 25 orthopedic surgeon. I'm an orthopedic surgeon, a physician, Lon J. McGowan, RDR, CCR, CRR Latimer Reporting, Lincoln, Nebraska Off: (402) 476-1153 Fax: (402) 476-3853 Dr D Ripa 5 7 Q. And showing you what's been marked as 1 materials that you reviewed in helping to 78D, exhibit, is this a true and accurate copy 2 formulate your opinions and conclusions in this 3 matter? 3 of your curriculum vitae? 4 A. It is, correct. 4 A. Well, I looked at several MRI scans, a 5 Q. Would you tell the jury a little bit 5 variety of medical records, some therapy notes, 6 about your educational background and training 6 some evaluations that the patient had had for 7 to be an orthopedic surgeon? 7 their fitness for work and those sorts of 8 A. Well, I went to the University of 8 things. 9 Nebraska Medical Center for my medical 9 Q. All right. And were these medical 1o doctorate degree. 1o records --they also predated the February 11 And then did a flexible internship and 11 incident that centraled this case; correct? 12 residency at Scott & White Memorial Hospital in 12 A. Yes. Some portions of them did. 13 Temple, Texas. 13 Q. Okay. And are these the type of 14 And after that, did a one-year spine 14 materials, documents that you and other 15 fellowship that was split between New Orleans 15 orthopedic surgeons typically rely upon to 16 and Chicago, the latter part at Northwestern in 16 assist them in formulating their opinions and 17 Chicago on the regional spinal cord injury 17 conclusions as to a person's current medical 18 unit. 18 condition? 19 Q. And are you in private practice? 19 A. Yes. Correct. 20 A. 20 Q. And did you rely upon this information And could you give the jury an idea 21 Q. 21 as well as your background and training as an 22 about the nature of your practice, what type of 22 orthopedic surgeon in formulating your own 23 conditions you treat, how many surgeries or 23 opinions and conclusions in this matter? 24 patients you treat on a weekly or monthly 24 A. Yes. 25 basis, that type of thing? 25 Q. All right. And if we look at Exhibit 6 8 1 A. Well, we're-- or I am a member of a 121 78C. 2 or 13-man orthopedic group. And we see 2 A. lhaveit. 3 patients all week long and do surgery all week 3 Q. Okay. There's listed here, I believe, 4 long, a mixture of about half clinic, half 4 seven numbered paragraphs. Do you see what I'm 5 surgery. 5 referring to? 6 And I treat a variety of neck and low 6 A. Yes. 7 back disorders, scoliosis, fractures of the 7 Q. All right. Are those the opinions and 8 conclusions that you reached in this matter as 8 spine. 9 I also do a fair amount of work in 9 far as relates to Mr. Bliss? 10 A. 10 artificial joint replacement. Yes. Q. Q. Okay. And do you regularly attend 11 All right. And if we could, let's just 11 12 medical conferences or continuing medical 12 go one by one through them. And we'll identify 13 education to keep up on the issues in your 13 them. And if you could, just explain the basis 14 field? 14 for those opinions. All right? 15 A. 15 A. I do. Okay. Okay. And are you published anywhere 16 Q. All right. So No. 1, could you read it, 16 Q. 17 please? 17 that we may have heard of in terms of articles 18 or that type of peer-review journals? 18 A. These are responses to the attorney that 19 A. Not for a long time. Did some back in 19 I believe represented the railroad previously. 20 the fellowship period. But not since then. 20 The first response, I put, "Dr. Noble's Q. All right. Doctor, at BNSF's request, 21 release for Mr. Bliss to return to work without 21 22 restrictions as per the request of Mr. Bliss in 22 did you perform a medical records review for 23 this case, for Mr. Bliss? 23 July 2010 was too liberal for someone with That is correct. 24 Mr. Bliss' degenerative spine condition." 24 A. Q. All right. And do you recall what 25 25 Q. Okay. What's the basis for that Tollfree (877) 567-5669 Lon J. McGowan, RDR, CCR, CRR Off: (402) 476-1153 Latimer Reporting, Lincoln, Nebraska Fax: (402) 476-3853 1 2 Dr D Ripa 11 1 opinion, Doctor? 1 incident in question. The other was shortly 2 A. Well, the patient did have some fairly 2 after it. 3 significant abnormalities chronically in his 3 And basically the MRI scan showed an 4 low back. And in general, we would tend to 4 increase in these degenerative changes rather 5 imply or put upon the patient at least some 5 than any clearcut evidence of an acute, sudden 6 degree of general restriction against excessive 6 abnormality such as a broken bone or ruptured 7 lifting or activities that might be considered 7 disk or something of that nature. 8 likely to cause some degree of difficulty with 8 0. Okay. And then No.4? and 802. 9 his back in the future. 9 A. No. 4, "The changes noted in the above Ruling: 1 o 0. Okay. Do you have any idea what those 1o response, paragraph No. 3, could be the result Overruled 11 types of restrictions would be? 11 of the natural progression of a degenerative 12 A. Well, our more generic restriction for 12 spinal condition." 13 someone with a low back condition is to try and 13 0. All right Could the changes that 14 avoid lifting in excess of 50 pounds at any 14 appear in No. 3, could it be in part due to the 15 time and, also, to keep repetitive lifting at 15 February 3rd, 2009, incident? 16 or below about 25 pounds. 16 A. Well, I would have to say that I did not 17 Other restrictions might be a bit more 17 see any sudden abnormality such as a ruptured 18 specific to the particular work activities. 18 disk, compression fracture or hyperintense zone 19 0. Okay. Were you asked to look at the 19 in the spine that would indicate that there was 20 particular work activities in this case or no? 20 some, you know, acute traumatic change. 21 A. Well, I don't recall a specific-- and I 21 0. Okay. 22 stand corrected. 22 A. So I would say that's less likely. 23 I don't recall a specific delineation of 23 0. Okay. And then No. 5? 24 the work activities in this person's 24 A. "The Functional Capacity Evaluation of 25 employment. 25 June 30th, 2011, appeared to be a valid 10 12 1 0. Okay. And then moving on to No. 2, I 1 Functional Capacity Evaluation so as to reflect 2 guess it's pretty self-explanatory, but just 2 Mr. Bliss' physical capabilities as of that 3 briefly go over the basis for opinion No. 2. 3 date." 4 A. Well, this opinion was, "Mr. Bliss was 4 0. All right. And then No.6? 5 clearly suffering from degenerative disk 5 A. No. 6, I responded, "Because of multiple 6 disease, particularly at the L3 slash 4, L4 6 back surgeries and continued natural 7 slash 5 and L5 slash 51 levels prior to 7 progression of his degenerative spine condition 8 February 3rd, 2011." 8 and past history of knee and shoulder joint 9 0. And the basis for that, was that just 9 degeneration and surgery, it would be 1o the prior medical records and the diagnostic 1o reasonable to restrict Mr. Bliss currently to 11 films that you reviewed? 11 lifting no more than 20 pounds and on 12 A. Correct. Specifically the MRI scan. 12 occasion-- and only occasional bending, 13 0. Okay. And No. 3, could you read that 13 stooping and crawling." 14 and explain the basis for your opinion there? 14 0. Okay. And what's the basis for that 15 A. This response was, "The change in 15 opinion? 16 Mr. Bliss' back condition between the MRI of 16 A. Well, that was basically looking at the 17 April 27th, 2010, and March 18th, 2011, showed 17 Functional Capacity Evaluation and the 18 an increase in degenerative facet joints, 18 reflection of his physical abilities and 19 foramina! narrowing and increased degenerative 19 basically endorsing that those recommendations 20 bone marrow at L4 slash 5 and LS slash 51." 20 were reasonable, based upon the medical record. 21 0. Okay. What-- what-- what does that 21 0. Okay. And lastly, Doctor, No. 7 there. 22 mean, and what's the basis for that opinion, 22 A. I answered, "From a review of Mr. Bliss' 23 sir? 23 medical history, MRis and degenerative 24 A. Well, the basis for that opinion is 24 condition, it was likely that Mr. Bliss -25 looking at the two MRis. One was prior to the 25 excuse me, Mr. Bliss' back would have continued Tollfree (877) 567-5669 Lon J. McGowan, RDR, CCR, CRR Off: (402) 476-1153 Latimer Reporting, Lincoln, Nebraska Fax: (402) 476-3853 BNSF objects to the testimony as hearsay without an exception and as not relevant. Fed. R. Evid. 402, 403, 801, 9 Dr D Ripa 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to degenerate after 2004, regardless of his work environment." 0. All right. And the basis for that opinion is what, sir? A. Well, the natural progression of degenerative disk disease creates the appearance of the MRI scan that we saw. And essentially no matter what you're doing, that type of change in the spine does continue to occur over time. Q. All right. And do you hold these opinions to a reasonable degree of orthopedic surgery, Doctor? A. I -- reasonable degree of medical certainty, yes. Q. Yes. Okay. MR. McMAHON: Thank you. Doctor, that's all I have. CROSS-EXAMINATION BY MR. SATTLER: Q. Dr. Noble-A. Dr. Ripa. Q. I'm sorry. Dr. Ripa. I'm sorry. With respect to the --some of the medical records that you had available to you, that would have 14 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cushions between the vertebrae. As this cushion material loses moisture, it becomes less elastic, less resilient to resisting shock. And our spine tends to settle somewhat. So that's why we naturally get a little shorter as we get older. A degenerative disk does not have as good a support between the vertebrae, so it places more load or demand upon the little joints in the back of the spine. And as these joints absorb more load and the cartilages ages in the joints, then those joints wear out. So the term spondylosis, which is sort of a medical term for degenerative change or wear and tear change in the spine, that is a fairly accurate descriptor of what we saw on the MRI scans of the patient. Disk degeneration, another way of describing it, some people will call it osteoarthritis of the spine, which is fairly accurate. You mentioned a word spondylolisthesis. Spondylolisthesis is a term where one vertebra shifts slightly forward on the other. That is 16 included an exhibit that had been marked 1 a situation where if the disk is degenerated previously as Exhibit No. 58, which is this 2 and the facet joints wear out, then there may 3 statement of job awareness and general duties 3 be some subtle shifting in the spine where 4 of a carman. This was dated and signed by 4 either the vertebra goes forward or to the 5 Dr. Noble back in August of 2010. You would 5 side. 6 have had that available to you, would you not? 6 And that is a term that was, I believe, 7 A. Yes. I believe looking now, that that 7 mentioned once regarding the spine in this 8 was included in Dr. Noble's records rather than 8 patient between lumbar 4 and lumbar 5. 9 a specific entry in the files that I have. 9 Q. With respect to the imaging studies that 10 Q. Right. And this would have covered 1 o were made available to you during your review, 11 basic activities, anticipated or expected, as 11 you had the benefit of seeing MRis dating back 12 general job duties of a carman? 12 to as early as 2002 and then moving up through 13 A. Yes. 13 and past the time of the February 2011 14 Q. Now, with respect to this broad category 14 timeframe; isn't that correct? 15 of degenerative disk disease, could you explain 15 A. That is correct. 16 to the ladies and gentlemen of the jury what 16 Q. So you would have had an opportunity to 17 degenerative disk disease is? 17 see the changes that would have occurred as a 18 There's been terms thrown around, like, 18 result of this disease process that you've 19 spondylolisthesis, lumbar spondylosis and then 19 described? 20 this disk degeneration. Could you explain what 20 A. That is correct. 21 these diseases are? 21 Q. There is reference in the various MRI 22 A. Well, certainly. Our natural tendency 22 studies to facet hypertrophy. Can you explain 23 to age takes its toll on our spine. Generally 23 to the ladies and gentlemen of the jury what 24 most everyone is subject to losing moisture in 24 the facets are and what that's really 25 their disk spaces. The disk spaces are the 25 describing? Tollfree (877) 567-5669 Lon J. McGowan, RDR, CCR, CRR Off: (402) 476-1153 Latimer Reporting, Lincoln, Nebraska Fax: (402) 476-3853 1 2 Dr D Ripa 17 A. 19 The facet joints are the little 1 A. Yes. connectors between each vertebra. So there is MR. SATTLER: Those are all the 2 3 questions I have, Doctor. Thank you. 3 a left and a right joint that connects one 4 vertebra to the other. 4 MR. McMAHON: Nothing further. 5 These are small little joints. They 5 Thank you, Dr. Ripa, for your time this 6 overlap each other, about the size of a 6 morning. 7 fingernail. And as these joints wear out, the 7 THE WITNESS: I will waive the 8 right to read this. 8 cartilage space decreases or thins. And then 9 the patient's joints start to enlarge or 9 (Deposition concluded at 7:19a.m.) 10 thicken. 10 11 The most-- the most easily understood 11 12 example is someone's knuckles. If you have a 12 13 grandmother that has a lot of arthritis in her 13 14 hands, you'll see that her knuckles have 14 15 enlarged. And that's the same thing that's 15 occurring in the spine. We just can't see it 16 16 17 underneath the muscles. 17 18 The spinal joints enlarge and thicken 18 19 and get irregular. And sometimes as those 19 20 joints enlarge, then they pinch the nerve or 20 21 narrow the openings for the nerves. 21 22 Q. And this facet joint deterioration, 22 23 based upon the M Rl studies that you were able 23 24 to view, showed this degenerative process over 24 25 time? 25 20 18 1 C-E-R-T-1-F-1-C-A-T-E 1 A. That is correct. 2 STATE OF NEBRASKA ) 2 Q. Doctor, you were asked some questions by 18:2 --19:1 : ss. BNSF objects 3 counsel for plaintiff related to what type of to the 3 COUNTY OF LANCASTER ) 4 generic restrictions that you would apply in testimony as I, Lori J. McGowan, General Notary Public 4 not relevant. 5 this discussion of this first opinion related Fed. R. Evid. 5 in and for the State of Nebraska and Registered 6 to Dr. Noble's release to return to work 02 and 403. 6 Professional Reporter, hereby certify that DR. 7 without restrictions. Ruling: 7 DANIEL RIP A was by me duly sworn to testify the I wanted to ask you, you're familiar Overruled 8 8 truth, the whole truth and nothing but the 9 with -- generally with the process of how 9 truth, that the deposition by him as above set 10 employers obtain return to work restrictions 10 forth was reduced to writing by me. 11 from treating physicians? This is something 11 That the within and foregoing deposition 12 that's common in your practice; is that true? 12 was taken by me at the time and place herein 13 A. That is correct. 13 specified and in accordance with the within 14 Q. When you say that the return to work 14 stipulations; the reading and signing of the 15 without restrictions by Dr. Noble was too 15 deposition having been waived. 16 liberal, do you believe that it was reasonable 16 That the foregoing deposition is a true 17 and prudent for an employer in BNSF's position 17 and accurate reflection of the proceedings 18 to reasonably rely upon work restrictions 18 taken in the above case. 19 established by a treating physician? 19 That I am not counsel, attorney, or 20 A. Yes, I do. 20 relative of either party or otherwise 21 Q. In this case, do you believe that it was 21 interested in the event of this suit. 22 reasonable and prudent for the BNSF Railway 22 IN TESTIMONY WHEREOF, I place my hand and 23 Company to rely upon this return to work 23 notarial seal this 24th day of February, 2014. 24 restriction or work-- return to work without 24 25 restriction that was issued by Dr. Noble? 25 Lon J. McGowan, RDR, CCR, CRR Off: (402) 476-1153 Tollfree (877) 567-5669 Fax: (402)476-3853 Latimer Reporting, Lincoln, Nebraska 1 2 Dr. D. Ripa 68508 [1]- 2:10 1 August 111 - 14:5 available [31 - 7 1 [1]- 8:16 10-4-12 [1]- 3:6 12 [1]- 6:1 13 [1]- 3:3 13-man [1J - 6:2 13:25, 14:6, 16:10 avoid [1]- 9:14 awareness [11- 7 [1]-12:21 14:3 701 [1]- 2:9 70th[1]-1:15 78Ci3J- 3:6,4:11, 8:1 78D [3]- 3:8, 4:11, . --· -- 5:2 18th[1]-10:17 2 7:01 [1]-1:14 2 [2]-10:1' 10:3 20 [1]- 12:11 7:19 [1]-19:9 200 [2]- 1:15, 2:5 2002[1]-16:12 2004[1]-13:1 2009[1]-11:15 2010 [3]- 8:23, 10:17, 14:5 2011 [4] - 10:8, 10:17,11:25,16:13 2014[2]-1:13, 20:23 24[1]-1:13 24th [1] - 20:23 25 [1]- 9:16 27th [1]- 10:17 3 3[3]-10:13, 11:10, 11 :14 301 [1]- 2:9 3019[1]-1:5 30th [1] - 11 :25 3rd 121 - 10:8. 11:15 4 4 [7] - 3:3, 3:6, 3:8, 10:6,11:8,11:9, 16:8 4:12CV 111- 1:5 5 5[4]-10:7, 10:20, 11 :23, 16:8 50[1]- 9:14 542 [1]- 2:4 575[1] -1:15 58[1]-14:2 6 6[2]-12:4, 12:5 60605 [i]- 2:5 A a.m]2]-1:14, 19:9 abilities [1J -12:18 able 111 - 17:23 abnormalities [119:3 abnormality [2J11:6,11:17 absorb[1)-15:11 accordance [1J 20:13 accurate [4)- 5:2, 15:17, 15:22,20:17 activities [5]- 9:7, 9:18, 9:20, 9:24, 14:11 acute [21 - 11 :5, 11:20 age121- 4:14, 14:23 ages[1J-15:12 agreed 111- 4:2 amount [1]- 6:9 answered [1J12:22 anticipated [1J 14:11 appearp]-11:14 appearance [1] B background [2J5:6, 7:21 based 121- 12:20, 17:23 basic[1J -14:11 basis [10] - 5:25, 8:13,8:25, 10:3, 10:9,10:14, 10:22, 10:24, 12:14, 13:3 becomes [11 - 15:3 BEHALF 111- 1:7 beiOW[1]- 9:16 bending 111 - 12:12 benefit [11 - 16:11 between [7] - 4:3, 5:15, 10:16,15:1, 15:8, 16:8, 17:2 bit [2]- 5:5, 9:17 BLISS 111- 1:4 Bliss 171 - 6:23, 8:9, 8:21' 8:22, 10:4, 12:10, 12:24 Bliss' 151 - 8:24, 10:16, 12:2, 12:22, 12:25 BNSF 121- 1:7, 18:22 BNSF's 121- 6:21. 18:17 bone [2J - 10:20, 11 :6 briefly 111 - 10:3 broad [1J- 14:14 broken [1]- 11:6 BY121- 4:18, 13:20 - 13:7 appeared [11 - c 11:25 APPEARING 121 2:2, 2:7 Appearing [1J- 2:2 apply 111 18:4 April 111- 10:17 arthritis [11 - 17:13 articles [1J- 6:17 artificial [11- 6:10 assist[1]-7:16 attend[1J- 6:11 attorney !21 - 8:18, 20:19 Attorney[2J- 2:4, 2:8 Toll free (877) 567-5669 capabilities [11 12:2 Capacity [3J 11:24,12:1,12:17 carman [2)- 14:4. 14:12 cartilage [1] - 17:8 cartilages 111 15:12 case [51 - 6:23, 7:11,9:20,18:21, 20:18 CASE 111- 1:5 categoryr11- 14:14 cautioned [1J4:14 Center [11 - 5:9 centra led [1]- 7:11 certainly [1]14:22 certainty [11 13:15 CERTIFICATE 11120:1 certified [1]- 4:15 9:22 counsel [21 - 18:3, 20:19 certify 111 - 20:6 change [51 - 10:15, 11 :20, 13:9, 15:15, 15:16 changes [41 - 11 :4, 11:9,11:13,16:17 EXAMINATION 11113:19 current [1J- 7:17 Chicago [31 - 2:5, 5:16,5:17 chronically[1J9:3 Civil [1]- 4:10 COUNTY 111- 20:3 COURT111-1:1 covered[1J-14:10 crawling 111 12:13 creates [1] - 13:6 Cross [1]- 3:2 CROSS 111- 13:19 CROSS· Curriculum [113:8 curriculum [11 5:3 cushion [1J- 15:2 cushions [11 - 15:1 D clearcut[1J-11:5 clearly [1]- 10:5 clinic [1J - 6:4 common [11 18:12 COMPANY 111- 1:7 Company [11 18:23 compression [1]11 :18 concluded [1J 19:9 conclusions [41 7:2, 7:17, 7:23, 8:8 condition [?J 7:18,8:24,9:13, 10:16, 11:12, 12:7. 12:24 conditions [115:23 conferences [116:12 connectors [1J 17:2 connects [1J - 17:3 considered [1]9:7 continue [1]- 13:9 continued [21 12:6, 12:25 continuing [1J6:12 copy 111- 5:2 cord [11- 5:17 correct [101 - 5:4, 5:20, 6:24, 7:11, 10:12, 16:14, 16:15, 16:20,18:1, 18:13 corrected [1] - Lori J. McGowan, RDR, CCR, CRR Latimer Reporting, Lincoln, Nebraska Daniel [1J- 4:21 DANIEL[4J·1:12, 3:3, 4:13, 20:7 date [11- 12:3 DATEi1J-1:13 dated 111- 14:4 dating [1]-16:11 DAVID 111- 1:4 Dearborn [1] - 2:4 decreases [11 17:8 Defendant [1]- 1:8 DEFENDANT[1J2:7 degenerate [1]13:1 degenerated [1J16:1 degeneration [3J12:9,14:20,15:19 degenerative [141 8:24,10:5, 10:18, 10:19,11:4,11:11, 12:7, 12:23, 13:6. 14:15, 14:17, 15:7. 15:15, 17:24 degree [SJ- 5:1 0, 9:6, 9:8, 13:12, 13:14 delineation [1] 9:23 delivery [1]- 4:5 demand[1J-15:9 Deposition [1119:9 deposition [6] 4:4, 4:5, 20:9, 20:11,20:15,20:16 DEPOSITION 121 1:6, 1:12 1 described [1J16:19 describing [2J 15:20, 16:25 descriptor [1115:17 deterioration [11 17:22 diagnostic[1J1 0:10 difficulty[1J- 9:8 Direct !11- 3:2 DIRECTi1J-4:17 discussion [lJ 18:5 disease [51 - 10:6, 13:6,14:15, 14:17, 16:18 diseases [11 14:21 disk 1121- 10:5, 11:7,11:18,13:6. 14:15, 14:17, 14:20, 14:25, 15:7, 15:19, 16:1 disorders [11 - 6:7 DISTRICT 121- 1:1, 1:2 Doctor [51 - 9:1, 12:21, 13:13,13:17, 19:3 doctor[3J- 4:19, 6:21,18:2 doctorate [1] 5:10 documents [1J 7:14 DRi4J-1:12, 3:3, 4:13. 20:6 Dr 1101 - 8:20. 13:21, 13:22,13:23, 14:5, 14:8, 18:6, 18:15, 18:25,19:5 due[1J-11:14 duly121- 4:14, 20:7 during [2J- 4:7, 16:10 duties [2J - 14:3, 14:12 E earlyp] -16:12 easily [11- 17:11 education [1J6:13 educational [1]5:6 eithert21- 16:4, Off: (402) 476-1153 Fax: (402) 476-3853 Dr, D, Ripa 20:20 16:13, 20:23 elastic 111 - 15:3 employer[1J18:17 Federal 111 - 4:9 fellowship [21 5:15, 6:20 employers 111- field 111 - 6:14 18:10 files 111 - 14:9 employment [1J9:25 endorsing [1112:19 enlarge[3J-17:9. 17:18, 17:20 enlarged [1]17:15 entry 111 - 14:9 environment [11 13:2 essentially fil13:8 established [1J 18:19 Evaluation [3111:24,12:1, 12:17 hold 111- 13:11 Hospital [1J- 5:12 hyperintense [1J 11:18 hypertrophy [1J16:22 knee [1J - 12:8 knuckles [2]17:12, 17:14 L films[1J-10:11 evaluations [1]7:6 event [1]- 20:21 evidence 111- 11:5 EXAMINATION 121 -4:17,13:19 examined [1J 4:16 example [11 17:12 excesS[1]- 9:14 excessive [11- 9:6 excuse 111 - 12:25 exhibit [2]- 5:2, 14:1 Exhibit 131- 4:11, 7:25, 14:2 EXHIBITS 111 - 3:5 expected [1J14:11 explain [5J - 8:13, 10:14, 14:15, 14:20, 16:22 explanatory [1)- fingernail [1] - first 131 - 4:14, 8:20, 18:5 fitness [1]- 7:7 flexible [1J- 5:11 follows [1] - 4:16 FOR 131 - 1 :2, 2:2, 2:7 foramina! [1]10:19 foregoing [2] 20:11,20:16 formulate [11- 7:2 formulating [2J 7:16, 7:22 forth 111- 20:10 forward [21 - 15:25, 16:4 fracture[1J-11:18 fractures [1)- 6:7 Functional [3] 11:24,12:1,12:17 future [11- 9:9 G General [11 - 20:4 general !41 - 9:4, 9:6, 14:3, 14:12 generally [21 14:23, 18:9 generic [21 - 9:12. 18:4 gentlemen [2114:16, 16:23 grandmother [11 17:13 group [1) - 6:2 guess[1]-10:2 10:2 H F facet[s]-10:18, 16:2, 16:22, 17:1, 17:22 facets [1J - 16:24 fair[1J 6:9 fairly[3J- 9:2, 15:17, 15:21 familiar 111 - 18:8 faf[1J- 8:9 February [6]- 1:13, 7:10,10:8,11:15, half 121 - 6:4 hand [1] - 20:22 hands[1J-17:14 heardr11- 6:17 helping 111 - 7:1 hereby 121- 4:2, 20:6 herein [11- 20:12 hereinafter[1J4:15 history121 -12:8, 12:23 Toll free (877) 567-5669 L3 111-10:6 17:7 L4 121 - 1 0:6, 1 0:20 L5[21·10:7, 10:20 idea 121 - 5:21, 9:1 0 identification [1J4:12 identify[1J- 8:12 IL[1J- 2:5 imaging [11 - 16:9 imply 111- 9:5 IN[3J·1:1, 1:6, 20:22 incident [3]- 7:11, 11:1, 11:15 includedrzJ-14:1, 14:8 increase [2J 10:18,11:4 increased [1] 10:19 INDEX 111- 3:1 indicate [11 - 11 :19 information [1]7:20 injury [1] - 5:17 interested [1]20:21 internship [11 5:11 irregular[1J17:19 issued [1]- 18:25 issues [1J- 6:13 J job 121- 14:3, 14:12 joint [4J- 6:10, 12:8,17:3, 17:22 joints [121- 10:18, 15:10,15:11,15:12, 15:13,16:2, 17:1, 17:5, 17:7, 17:9, 17:18, 17:20 journals [1J- 6:18 July111- 8:23 June[1] -11:25 jury [51 - 4:20, 5:5, 5:21, 14:16, 16:23 K keep 121 - 6:13, 9:15 ladies [2]- 14:16, 16:23 LANCASTER 11120:3 lastly 111- 12:21 latter[1J- 5:16 Law 121- 2:4, 2:8 lawful [1]- 4:14 least 111 - 9:5 left 111 - 17:3 less [3] - 11 :22, 15:3 Letter [11 - 3:6 levels[1J-10:7 liberal [2J - 8:23, 18:16 lifting [41- 9:7, 9:14,9:15, 12:11 likely 131 - 9:8, 11 :22, 12:24 Lincoln [2J - 1:16, 2:10 listed !11 - 8:3 load 12]-15:9, 15:11 look [21 - 7:25, 9:19 looked [11- 7:4 looking [3]- 10:25, 12:16, 14:7 Lori [1]- 20:4 loses [1]-15:2 losing [1] - 14:24 low [31 - 6:6, 9:4, 9:13 Luers [1J- 3:6 lumbar[3J- 14:19, 16:8 M March [1J- 10:17 Marked 111- 3:5 marked [3]- 4:12, 5:1, 14:1 marrow [1] - 10:20 material [11 - 15:2 materials [2J- 7:1. 7:14 matter[4J- 7:3, 7:23, 8:8, 13:8 McGowan [1]- Lori J. McGowan, RDR, CCR, CRR Latimer Reporting, Lincoln, Nebraska 20:4 McMahon [4]- 2:3, 4:18, 13:17,19:4 mean[1]-10:22 Medical [11- 5:9 medical [13] - 5:9, 6:12, 6:22, 7:5, 7:9, 7:17,10:10,12:20, 12:23, 13:14, 13:24, 15:15 memberr11- 6:1 Memorial [1] - 5:12 mentioned [21 15:23, 16:7 14:8, 18:6 0 might 121- 9:7, 9:17 mixture [1J- 6:4 moisture [2114:24, 15:2 monthly 111- 5:24 morning [11 - 19:6 most [3] - 14:24, 17:11 moving [21- 10:1. 16:12 MR [5]- 4:18, 13:17, 13:20,19:2, 19:4 MRI 181 - 7:4, 10:12,10:16,11:3, 13:7, 15:18, 16:21, 17:23 MRis [31- 10:25, 12:23, 16:11 multiple 111- 12:5 muscles [1]17:17 N namepJ- 4:19 narrowr11- 17:21 narrowing [11 10:19 natural [4]- 11:11, 12:6, 13:5, 14:22 naturally 111 - 15:5 nature [2]- 5:22, 11 :7 NEp]-2:10 NEBRASKA 121 1:2, 20:2 Nebraska [31 1:16, 5:9, 20:5 neck[1J- 6:6 nerve [11- 17:20 nerves[1J-17:21 Newr11- 5:15 N0111 1:5 Noble [4]- 13:21, 14:5, 18:15, 18:25 Noble's 131 - 8:20, 2 Northwestern [11 5:16 Nos 111- 4:11 notarial [11 - 20:23 Notary [1]- 20:4 noted [1J - 11 :9 notes [21- 4:8, 7:5 nothing [21- 19:4, 20:8 Notice [11- 4:4 notice [1]- 4:5 numbered [11 - 8:4 obtain 111- 18:10 occasion [11 12:12 occasional [11 12:12 occupation [1J4:23 OCCur[1]-13:10 occurred [1]16:17 occurring [1J 17:16 0Fi5J-1:2, 1:7, 1:12, 20:2, 20:3 Offered [1] ~ 3:5 older [il - 15:6 once[1]-16:7 one [6]- 5:14, 8:12,10:25, 15:24, 17:3 one-year[1J- 5:14 openings [11 17:21 Opinion [1] ~ 3:6 opinion [9J- 9:1, 10:3, 10:4, 10:14, 10:22, 1 0:24, 12:15, 13:4, 18:5 opinions [61- 7:2, 7:16, 7:23, 8:7, 8:14, 13:12 opportunity [1116:16 Orleans [1J- 5:15 orthopedic [7J 4:24, 4:25, 5:7, 6:2, 7:15,7:22, 13:12 osteoarthritis 111 15:21 otherwise 111 20:20 overlap [1]- 17:6 own 111- 7:22 Off: (402) 476-1153 Fax: (402) 476-3853 Dr. D. Ripa p 16:18,17:24, 18:9 profession [1] - 4:22 paragraph [1111:10 paragraphs [1] 8:4 part121- 5:16, 11:14 particular [2) 9:18, 9:20 particularly [1J 10:6 parties [1] - 4:3 party 111- 20:20 past 121 - 12:8, 16:13 patient [51 - 7:6, 9:2, 9:5, 15:18, 16:8 patient's [11 - 17:9 patients [2] - 5:24, 6:3 peen11- 6:18 peer~review [1]- 6:18 people 111 - 15:20 perr11- 8:22 perform [1J - 6:22 period 111 - 6:20 person's [21- 7:17, 9:24 physical 121- 12:2, 12:18 physician [2J 4:24, 18:19 physicians [1118:11 pinch 111- 17:20 PLACE 111- 1:15 place [2] - 20:12, 20:22 places 111- 15:9 plaintiff [1J - 18:3 Plaintiff111- 1:5 PLAINTIFF 121 1:7, 2:2 portions [11- 7:12 position [11- 18:17 pounds [3J - 9:14, 9:16, 12:11 practice [31- 5:19, 5:22, 18:12 predated 111- 7:10 Presence [1J - 4:7 pretty[1]-10:2 previously 121 8:19, 14:2 private 111- 5:19 Procedure [1] 4:10 proceedings 111 20:17 process [31 - Professional [1]20:6 progression [3111:11,12:7, 13:5 prudent [21 18:17, 18:22 Public 111 - 20:4 published [1J- 6:16 pursuant [11 - 4:9 put 121- 8:20, 9:5 Q questions [21 18:2, 19:3 R railroad [1]- 8:19 RAILWAYI1J-1:7 Railway f1l - 18:22 rather[2J - 11 :4, 14:8 Ray 111- 4:21 reached [1J- 8:8 read 131- 8:16, 10:13, 19:8 reading[1J- 20:14 really 111 - 16:24 reasonable [61 12:10, 12:20, 13:12, 13:14, 18:16, 18:22 reasonablyr1118:18 recommendation S[1] -12:19 record [1J - 12:20 records f6J- 6:22, 7:5, 7:10,10:10. 13:24, 14:8 Recross [11- 3:2 Redirect [1J- 3:2 reducedp]- 20:10 reference 11116:21 referring [1] - 8:5 reflectr11- 12:1 reflection [2J 12:18,20:17 regarding [1]16:7 regardless [1]13:1 regional 111- 5:17 Registered 111 20:5 regularly 111 - 6:11 related 121 - 18:3. 18:5 relates [1]- 8:9 relative [1J- 20:20 release [21 - 8:21, 18:6 rely[4]-7:15, 7:20, 18:18, 18:23 repetitive {1]- 9:15 replacement[1J6:10 Reporterp]- 20:6 represented [11 8:19 request [2]- 6:21, 8:22 residency [11 5:12 resilient [1J- 15:3 resisting [1] - 15:4 respect [31- 13:24, 14:14, 16:9 responded [1112:5 response [31 8:20,10:15,11:10 responses [1]8:18 restrict [11 - 12:10 restriction [41 9:6, 9:12, 18:24, 18:25 restrictions [BJ 8:22, 9:11' 9:17, 18:4, 18:7, 18:10, 18:15,18:18 result[2]-11:10. 16:18 return [6J- 8:21, 18:6, 18:10,18:14, 18:23, 18:24 review [4] - 6:18, 6:22, 12:22, 16:10 reviewed [21- 7:1, 1 0:11 Ripa [51 - 3:6, 4:21, 13:22, 13:23. 19:5 RIPA[4]-1:12. 3:3. 4:13, 20:7 Rules f1J - 4:9 ruptured [21 - 11 :6, 11:17 s S1[2]-10:7, 10:20 Sattler 111- 2:8 SATTLER 12113:20, 19:2 saw [21- 13:7, 15:17 scan [3]- 10:12, ------- ---------- Toll free (877) 567-5669 11:3, 13:7 scans [21 - 7:4, 15:18 scoliosis [1J- 6:7 Scott[1J- 5:12 seal 111- 20:23 see 161- 6:2, 8:4, 11:17, 16:17, 17:14, 17:16 seeing [11- 16:11 self[1J- 10:2 self-explanatory [1]- 10:2 set [11 - 20:9 settlepJ -15:4 seven [1J - 8:4 several [1]- 7:4 shifting [1J -16:3 shifts 111 - 15:25 shock 111 - 15:4 shorter [11 - 15:6 shortly 111 - 11:1 shoulder [1J- 12:8 showed [3110:17,11:3,17:24 showing [11- 5:1 side [1J- 16:5 signed [11 - 14:4 significant [1] - 9:3 signing [1J- 20:14 situation [11 - 16:1 size [1]- 17:6 slash [51 - 1 0:6, 10:7, 10:20 slightly 111 - 15:25 small [11- 17:5 solemnly [1J- 4:15 someone [21 8:23, 9:13 sometimes [1J 17:19 somewhat[1J15:5 sorry [21 - 13:23 SOrt[1]-15:14 sorts [1]- 7:7 South[2]-1:15, 2:4 space [1J- 17:8 spaceS[2]-14:25 specific [4J - 9:18, 9:21,9:23,14:9 specifically [11 10:12 specified 111 20:13 spinal !31- 5:17, 11:12, 17:18 spine [14] - 5:14, 6:8, 8:24, 11:19, 12:7, 13:9. 14:23, 15:4, 15:10, 15:16, 15:21,16:3,16:7, 17:16 splii[1J- 5:15 spondylolisthesi s [3]-14:19, 15:23, 15:24 spondylosis [21 14:19, 15:14 55 [1]- 20:2 stand [1]- 9:22 start 111 - 17:9 state [1] - 4:19 STATE[1]-20:2 State 111- 20:5 statement[1J14:3 STATES111-1:1 stenotype [11 - 4:8 stipulated [11 - 4:2 stipulations [1120:14 STIPULATIONS 111 -4:1 stooping [1J12:13 Street [21- 1:15, 2:9 studies [3]-16:9, 16:22, 17:23 subject [1J - 14:24 subtle[1J-16:3 sudden [21 - 11 :5, 11:17 suffering [1J - 1 0:5 suit 111 - 20:21 Suite [3]- 1:15, 2:5, 2:9 support 111- 15:8 surgeon [4J - 4:24, 4:25, 5:7, 7:22 surgeons [1]- 7:15 surgeries 1215:23, 12:6 surgery [41- 6:3, 6:5, 12:9, 13:13 sworn [2)- 4:15, 20:7 T TAKEN 111- 1:6 tcs@ sattlerbogen.com [1]- 2:10 tearr11- 15:16 term[4J-15:14, 15:15,15:24, 16:6 terms [21- 6:17, 14:18 testified [1J - 4:16 testify [11- 20:7 3 TESTIMONY 111 20:22 Texas [1J- 5:13 THE[S]-1:1,1:2, 2:2, 2:7, 19:7 therapyr11- 7:5 thicken[2]-17:10, 17:18 thins [1J- 17:8 Thomas [11- 2:8 thrown [1] - 14:18 TIMEi1J-1:14 timeframe [1J 16:14 toll 111 - 14:23 training [21 - 5:6, 7:21 transcription [1]4:8 traumatic [1]11:20 treat [31- 5:23, 5:24, 6:6 treating [21 - 18:11, 18:19 true [3] - 5:2, 18:12,20:16 truth [3J- 20:8, 20:9 try[1]- 9:13 two 111- 10:25 type [6]- 5:22, 5:25, 6:18, 7:13, 13:9. 18:3 types 111- 9:11 typically111 -7:15 u underneath [1117:17 understood f1l 17:11 unit[1J ~ 5:18 UNITED 111- 1:1 University [11 - 5:8 up 121-6:13, 16:12 v Telephonically 111 -2:2 Temple111- 5:13 tend 111 - 9:4 tendency [1J14:22 tends 111 - 15:4 valid [1J- 11 :25 variety 121- 6:6, 7:5 various 111- 16:21 vertebra [4J - -------------- Lori J. McGowan, RDR, CCR, CRR Latimer Reporting, Lincoln, Nebraska Off: (402) 476-1153 Fax: (402) 476-3853 Dr. D. Ripa 4 15:24. 16:4. 17:2. 17:4 vertebrae [2J - 15:1. 15:8 view [1]- 17:24 vitae [1]- 5:3 Vitae [1J- 3:8 VS [1]- 1:6 w waive[IJ-19:7 waived [41 - 4:5, 4:6, 4:8, 20:15 wear[4]-15:13, 15:16,16:2, 17:7 week [21 - 6:3 weekly [1J - 5:24 WHEREOF 111- 20:22 White[1J- 5:12 whole 111 - 20:8 William [11 - 2:3 WITNESS 121- 3:2, 19:7 witness [1]- 4:7 wmcmahon@ hoeyfarina.com [1J- 2:6 word [11 - 15:23 writing [1]- 20:10 y year[1J- 5:14 z zone[1]-11:18 Toll free (877) 567-5669 Lori J. McGowan, RDR, CCR, CRR Latimer Reporting, Lincoln, Nebraska Off: (402) 476-1153 Fax: (402) 476-3853 St. Elizabeth Medical Plaza NEBRASK !>75 South 70th Street Suite iOO Llrn:oln, Nc 60,!0 ORT!··IOPAEDI Phc (402) 16a"sn2 F.:<: (402) 488·1172 AND SPORTS MEDICINE, Wllli~m EMERITUS F. O•rvin, M.D. PHYSICIANS Patrick E. Clnre, M.D. David P. Hell'), M.D. Ro11ald 0. Sehwab, M.D. Do11ald J, W~la, NW. Thtlmns M. li>lter, M.D. Daniel R. klpn, M.D. Scott f. 5l!lllburger, M.D. Oovfd J. Clar•, M.D. '"'""' W. OnUentlne, M.O, Swven J. Voiin1 M.D. Ju~\ln D. Harris, M.D. ScoU A. Swans011, M.D. Daniel B. Cullan II, M.D. 1\>r<>ll M. Bott, M.D. fHYS!CIAN ASSISTANTS Stew1 L Gabri~l, P.A.-C )ill A Haveman, P.AA:: "'egan M. Heldlhrink, P.i\.-t: Brian J. Herbin, P.A...C Chrlttopber S. K"clmn, r.A.•C \1\Mllftt J. MM11'5chrer~ APRN jolm R, McPh•il. P.A.-C Erin N. Mose,, P.A.-C John P. Nickollt<, P.A.-C Patrick ). ~tlml, P.A.~C 6radlay A. Rlef, f'.A •...C Amanda L. Young, P.A ....C Aufll" 1/. 'louna PA.-C October 4, 2012. JllitltS B. Luers WolfQ, Snowden, B.'urd, Luers & Ahl, l-LP 1242 0 Stre<'Jt Lincoln, NE Q&SOS-1424 Rl!:; Dear Mr. Lt\bl'S: Tbis letter io in xesponse to tho re,~ew of records regmding Duvid Bliss. The fol\OV.oing at¢ opinions base.d on a reasonable degree of medical certainty. l. Dr. Noble's relellse for Mr. Bliss to rettm; to work wifhtout re«trictlons >ls per th~ request of Mr. Bliss in July 2010 wru> tol) liberal for S6D'reone with Mr. Bll~s· degenerative spine cQndition. 2. Mr. Bli3t was dearly su.fi'llt'ing from d~gencrmlve L:l/4, L415, and L5/Sl, prior to l'ebrumy 3, ?01 L dise:JJ;e, partk.ul3rly at and L5/SL 4. 'flte changes noted in p;u:afil11ph #3, could be the progression of a degenerative splndl condition. te~ult of tho natural 5. The Function~! Capi'!CiLy Evaluation (PCB) Df June 30, 2011, appMted to be valid FEC so tw to reflect Mr. Bliss' physkal capabilhies ds of that date. 6. CLINIC/I~ MANAGER Tare;; FIMt~n ma~ocz~ ~Hiz ~isk 3. The oh!lnfl,¢ in Mr. :Sll.t<fi' back condition between the MR! of April21, 7.01 0, llll.d the MRl {)f l\I.Uti'Cll lS, 20ll, shoWt.ld 1m incr·oose ill degenerative filcet joints, forllnilillll llllnaWing ll!ld :lnoreased de,gen.emtive bone J'.r)lm'oW al L4/S llUSINESS MANAGllR M!!llm Bues~lng roo/e!J1ld DAvid Bill!~ V BNSll' Rllilway ComJ.HthY (Your Fll• No. 961:1.05.604) 1'0 ~ Beonus~ \)f multiple> back Gurgeries Md con·clnu<Xl nrrt1mtl progt'Msion of hir. degenen\tive. spine conditio!\ mt4 pnst his\<lty of knee !lnd .sho\tldcr joint degenerdtlon illld sur;gory, it wnuld be rea~onable 10 ;ostrict Mr. flliss C\ltl'<mtl:Y tt> ll:f\lng no mor~ tl.\illt 20 potm<ls nnd only occa•ional bending, srooplr.~g and crawling. llE: Dnvld Bliaa "· BNSJ'l' fulltwt>y Contpnny Jlagfi l 7. From a review oi'Mr. Bll~s' ro.«tica! history, cltbtr MRl's, and dilg®~rtl!tlve condition, it was llkely that Mr. Bliss' ba<;k would h!.ve continued to de)J:enornle a:IWr 2004 regard\~m of his work envixomlle:nt. P~l:l contact us if further inforroatiOI'l is required. Sinc<rr<>ly, Dwuel R. [Hpa, M.D. DRR/rorr Daniel R. Ripa, M.D. Nebraska Orthopaedic and Sports Medicine, P.C. 575 South 70'" Street, Suite 200 Lincoln, Nebraska 68510 402-488-3322 PERSONAL: Date of Birth: August 1, 1958 Home Town: Wilber, Nebraska Family: Wife- Geralyn Children Madeline & Elizabeth EDUCATION AND MEDICAL TRAINING: Undergraduate: University of Nebraska- Lincoln Medical School: University of Nebraska College of Medicine 42'' & Dewey Avenue Omaha, Nebraska 68105 Bachelor of Science in Medicine, May 1983 Doctor of Medicine, May 1983 1976-1979 1979-1983 Flexible Internship: Scott & White Memorial Hospital Temple, Texas 1983-1984 Orthopaedic Residency: Scott & White Memorial Hospital Temple, Texas 1984-1988 Fellowships: Spinal Surgery Fellowship Under the direction of Dr. S. Henry LaRocca Elmwood Industrial Medical Center Jefferson, Louisiana (New Orleans) Fellowship in Spinal Cord Injury Treatment Under the direction of Dr. Paul R. Meyer Midwest Regional Spinal Cord Injury Unit Northwestern Memorial HospitaJ Chicago, illinois July 1988- December 1988 January 1989- June 1989 SPECIALIZED MEDICAL TRAiNING • Surgery of the Spine, Artificial Joint Replacement of the Knee and Hip BIRMINGHAM HlP Resurfacing System CERTIFICATIONS: • Board certification in Orthopaedic Surgery- July 1991 Recertified in 2001 • Nebraska State Medical License-# 16549 HOSPITAL AFFILIT ATIONS: St. Elizabeth Regional Medical Center 555 South 70 1h Street Lincoln, Nebraska BryanLGH-East 1600 South 48"' Street Lincoln, Nebraska Lincoln Surgical Hospital 1710 South 70"' Street Lincoln, Nebraska BryanLGH-Wcst 2300 South ! 61h Street Lincoln, Nebraska (courtesy staff) Madonna Rehabilitation Hospital 5401 South Street Lincoln, Nebraska 68506 (courtesy staff) PROFESSWNAL AFFILITATIONS • Member of Lancaster County Medical Society tt F w ~ Nebraska Medical Association American Medical Association Member of the Nmih American Spine Society American Academy of Orthopaedic Surgeons PUBLICATIONS: • "Series of 93 Cervical Spine Injuries treated by Anterior Spinal Plating", Spine, I 990 - Ripa, Meyer, EtAL Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA 1 2 CASE NO. 4:12-CV-3019 DAVID BLISS, 3 Plaintiff, 4 vs. 5 BNSF RAILWAY COMPANY, DEPOSITION OF DR. KEITH R. LODHIA TAKEN ON BEHALF OF THE DEFENDANT 6 Defendant. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Taken at Midwest Neurosurgery & Spine Specialists, 8005 Farnam Drive, Suite 305, Omaha, Nebraska, October 16, 2012, at 1:18 p.m. A P P E A R A N C E S For the Plaintiff: MR. WILLIAM J. McMAHON HOEY & FARINA 542 South Dearborn Suite 200 Chicago, Illinois 60605 For the Defendant: MR. JAMES B. LUERS WOLFE SNOWDEN HURD LUERS & AHL LLP 1248 "0" Street Suite 800 Lincoln, Nebraska 68508 Job No. CS1540360 Veri text Corporate Services 800-567-8658 973-410-4040 Page 2 : 4 5 6 7 8 9 10 11 12 13 '14 15 16 17 18 19 2 Page 2 3 Page INDEX 1 Appearances ....... . Stipulations ....... . 3 Reporter's Ceiiificate .... 46 WITNESS: DR. KEITH R. LODHIA Direct Examination by Mr. Luers . . . . 4 Cross-Examination by Mr. McMahon ... 37 Redirect Examination by Mr. Luers ... 44 EXHIBITS: Marked 56. Exam note from6/24/10 visit ...... 4 57. Note to Dr. Noble from Mr. Bliss . . . . 4 58. Statement of job awareness . . . . . . . 4 59. Medical records . . . . . . . . . . . . . 4 60. Physical therapy records . . . . . . . 4 20 21 i22 23 24 25 3 4 5 6 (Exhibit Nos. 56 through 60 were marked for identification.) DR. KEITH R. LODHIA, Being first duly cautioned and solemnly sworn as hereinafter certified, was examined and testified as follows: 7 (Witness's response to oath: "Yes.") 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIRECT EXAMINATION BY MR. LUERS: Q. Doctor, would you state your full name and spell your last, please. A. Keith R., Raman, Lodhia, L-0-D-H-1-A. Q. And your business address, Doctor? A. It's 8005 Farnam, Suite 305, Omaha, Nebraska. Q. You are a physician? A. Yes. Q. And you have a specialty, sir? A. Yes, neurosurgery. Q. Any subspecialties? A. Spine, spinal neurosurgeries, neurosurgery of the brain, spine, peripheral nerve. Q. And is-- I presume you're board Page3 I 2 STIPULATIONS It is stipulated and agreed by and between the 3 parties hereto: 41 Page 5 certified, is that the-- board certified as a 2 neurosurgeon. Are you board certified in the subspecialty as well? 5 be taken before Lisa G. Grimminger, Registered Merit 6 Reporter, Certified Realtime Reporter, General 3 4 5 6 7 Notary Public, at the time and place set fm1h on 7 8 9 the title page hereof. 2. That the deposition is taken pursuant to 8 our secondary process. I've passed the written boards sometime at the end of residency, or actually 9 at the beginning-- middle of residency, and then we 4 10 11 12 1. That the deposition of DR. KEITH R. LODHIA may A. We don't have board certification in our spine specialty, and I'm board eligible. I still have to take the oral boards which are part of take them, typically, in our fifth year out. I'm notice. 3. That the original deposition will be delivered 10 11 actually out beyond that, but I've applied over a to Mr. James B. Luers, Attorney for the Defendant. 12 year ago. It takes a long time for them to kind of get you on the list. 13 4. That all objections except as to fom1 and 13 14 foundation shall be made at the time of the 14 15 16 deposition. 5. That the testimony of the witness may be 15 16 been practicing a neurosurgeon, Doctor? A. Six years. 17 18 Q. And you are licensed in the State of Nebraska? 17 transcribed outside the presence of the witness. 18 6. That the signature of the witness to the 19 transcribed copy of the deposition is waived. 20 ******** 21 22 23 19 20 21 22 23 24 24 25 25 Q. I understand. How long have you A. Uh-huh. Q. Anywhere else? A. Iowa and Michigan. Q. All right. Have you had your deposition taken before? A. Well, I think so. l know I've been recorded before. 1 assume it was a deposition. 2 (Pages 2 - 5) Veritext Corporate Services 800-567-8658 973-41 0-4040 Page 6 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 • 19 20 : 21 I 22 Q. All right. Are you acquainted as you sit here today-- well, strike that. Are you acquainted with a patient by the name of David Bliss? A. Yes. Q. As you sit here today, do you have an independent recollection of that patient? In other words, can you picture him? Do you recall seeing him and talking to him? A. Yes. Q. All right. Do you recall who you were -- who referred Mr. Bliss to you or to your office? A. No. Q. Let's look at-- the first time you saw him, at least according to my records, would have been June 8th of2011; is that right? A. Probably right. I've got a note there, yes. That's the earliest note I have . Q. I'm sony? A. Thafs the earliest note that I shoulder surgeries? A. I don't have that printout. They 2 3 usually have the patient's --the full record that 4 gets printed out here \Vasn't printed out. We have 5 all the little stuff that they fill in, the patients 6 7 so-- 8 9 10 fill in, themselves. They didn't print that out Q. Like patient information? A. Yeah. Q. Would that-- 11 A. Would that have affected-- 12 13 Q. Yeah. 1 guess at this point you weren't directed to that particular-- or any of 14 those problems; is that right? 15 A. No. 16 Q. You do reference that he had previous back surgery. Do you recall or do you know 18 when those were? 19 20 A. Just what was stated. He had one done April of that year, which was only probably a 21 couple months before I saw him, redo diskectomy at 22 have. 17 L3/4, and then it looked like he had some surgery 23 Q. Okay. And it looks like on that 23 before L3/4. He must have mentioned then there was 24 particular date you saw him, and you then sent a 24 one at L5/S1 and one at L2/3. 25 letter to Dr. Kreshel, which is also dated June 8th 25 Q. Do you happen to know, Doctor, from 1 reviewing the MRI whether that information was accurate or not in terms of the location of those surgeries and \Vhat they did? consultation, if you recall, Doctor, do you remember 2 3 4 what sort of medical history, if any, you were 5 in the report, but it doesn't sometimes show up, provided, either prior or contemporaneously with 6 depending on how small the bones were taken. that consultation? A. He was a gentleman, I guess, who had 7 Page 7 of 2011; correct? 2 A. Yes. 3 Q. All right. As of that first 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 , 19 , 20 '21 22 23 previous surgery at a couple of disk levels. Q. The information that's contained in Page9 8 9 10 A. It doesn't say from here. It wasn't Q. When he reported to your office in June of 2011, what was the purpose of your consultation? A. He came -- it says he came here with that June 8th letter, is that the history, 11 pain in his legs and back, and I guess he had some basically, that you were provided? 12 atrophy in his legs. A. Yes. 13 Q. And would that have been a history 14 what was the purpose of your visit? that was provided by the patient as opposed to 15 16 A. Typically. Just says in consultation. It usually says why, but it's 17 obviously for the symptoms. The next thing we talk 18 about after his surgery is that he had pain in his separate medical records? A. Looks like \Ve just heard from the patient. We did review an MRI scan, however. Q. And just seeking some relief, or Q. Okay. Do you remember \vhich? 19 legs and back before surgery. He was achy and A. It says lumbar spine from 3-18, 2011, so there would have been a report there, but 20 stiff, limited lifting because of this. 21 Q. Did he tell you -- it was before his last surgery, I guess. 22 A. Correction. I think he had some Q. All right. As of that particular 23 24 first visit, Doctor, in June of 2011, were you aware 24 25 that the patient had had both knee surgeries and 25 difficulty on the job or so because of this. Q. Did he tell you anything about his job or how he had gotten hurt? 3 (Pages 6 - 9) Veritext Corporate Services 800-567-8658 973-41 0-4040 Page 10 Page 12 ! or-- A. ffhe did, 1 don't recall the 2 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 25 specifics on that. 1 don't remember him saying anything about that. r knew he worked for the railroad because he knows a friend of mine from the railroad, just happenstance, because they work for the same company, and he was one of his supers at some point or something like that but-- so I knew that he had a very physical job. I guess that's about the extent of it. Q. All right. Were you aware, Doctor, that the he had claimed an injury in February, February 3rd of 2011, on the railroad? A. It's not listed on there so, no, 1 guess I wasn't aware of that, that he had previous surgery, so he must have complained to somebody about that. Q. Okay. I take it, Doctor, since you didn't see him until at least four months after what he's claiming was his injury, you're not in a position to render an opinion in this case as to the cause of his injury or how it happened? A. No. Q. All right. When you examined the patient on June 8, 2011, what did you find? A. At that time he had some incisions 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, I don't think we did. I don't recall. I'd have to look down there, but I don't think that was ordered. Q. If you'd had-A. It would be in our computer orders somewhere if he did. Q. What kind of back surgery did he have in April? A. Well, it was mentioned as a redo diskectomy. Q. And was there any-- did you have any medical records or anything to verify that, or was that just based on what he told you? A. I suspect it was based on what he told us. I meat\ until we got the MRI, which it looks like we got also on June 8th, so that was done on June 8th too, so we did get an MRI, but that wouldn't have been known that day, as we wouldn't have seen those results probably until later. Q. What did you see on the MRI, if anything of significance? A. The MRI showed changes, surgical changes, it looked like, at L5/Sl, L4/5, and L3/4, as we talked about those levels, I think, being a 2 3 4 5 6 7 8 9 10 11 12 13 14 15 : 16 17 18 19 20 21 . 22 : 23 24 25 on his back, it looks like. It looked like he was neurologically intact, meaning his strength and 2 sensation were good. Reflexes were notable. Eyes 3 were both equal, and he said he did have some 4 atrophy in his left thigh compared to the right 5 thigh, which I guess is what he had complained 6 about, but other than that it didn't look like it 7 was very remarkable exam. 8 Q. Okay. What did you recommend, if 9 anything? 10 A. At that time he had just had a 11 recent surgery, and because of that we ended up 12 recommending an MRI to see what had been done and 13 what was left over, whether any of that was 14 contributing to his left leg symptoms, back pain, 15 and so we recommended MRI, and then it says 16 something about a functional capacity evaluation, 17 'cause he obviously felt limited in what he could 18 do, and so we talked about possibly at some point 19 down the line getting an FCE to evaluate what his 20 limitations might be. 21 Q. And that's -- I read that under the 22 Jetter of June 8, 2011, as part of the plan. 23 A. Uh-huh. ' 24 Q. Did you order an FCE at that time 25 component. I think he said L2/3, but he may have meant L3/4. I don1t know, because those levels that was dictated in here are different than what are showing up on the scan, those three levels. Q. Okay. So he might have been off on what the levels of the diskectomies were? A. Uh-huh. Q. But, at any rate, the MRI, and that was dated June 8th of 2011 also. What other significant findings were on that particular report? Significant to you, Doctor. A. Well, basically, he had a lot of marrow changes, meaning degenerative changes, at really three levels. All three of those levels were levels where he probably had his hemiation, since he had surgeiy in those areas. He had what they call posterior retrospondylolisthesis, meaning a little bit oftipping back of the vertebrae at one of the levels. That typically indicates some level of instability, so basically we saw a lot of degenerative changes in the lower lumbar spine. Q. Now, this gentleman was-- I'm sony? A. And postoperative changes. Q. All right. This gentleman was Page II Pagel3 i 4 (Pages 10- 13) Veri text Corporate Services 800-567-8658 973-410-4040 Page 14 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ; 17 18 19 20 21 22 23 24 i 25 55 years old when you saw him. Were the degenerative changes that you saw in that particular spine of Mr. Bliss significantly different than other 55-year-olds? A. Yeah. Q. And in what regard, other than the surgeries? A. There was more extensive degeneration of the discs. You typically don't see a spondylolisthesis or instability or that kind of alignment changes in a normal adult. You may see some mild degenerative changes in the joints or the discs with aging, but this would be what I'd consider beyond that. Q. Okay. Were these degenerative changes the type of changes that, nevertheless, can be long term, ongoing, as opposed to traumatically induced? A. Yes. Q. Was there any way to know as you looked at either the individual, himself, or the MRI as to whether they were the result of trauma or just simple degenerative long term? A. No. I don't think there was anything, at least from the MRI that we had seen Page 16 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 came in with an acute problem that needed acutely fixing and I just needed to keep them out for a prescribed period of time. Q. All right. I gotcha. Doctor, are you familiar with Dr. Noble from --I guess he was in Lincoln. A. l don't know him personally, but l've seen some of his patients. Q. All right. Do you know if your clinic or you, personally, were ever provided with any records of Mr. Bliss from Dr. Noble's office from 201 0? A. I'm not aware of that. We don't have any reference that we did look at that, whether they were scanned in or not. We must not have seen them at the time of our visits. Q. All right. I can tell you that he had had a surgery in 2010, and Dr. Noble was the surgeon, and I'm going to provide you what's been marked as Exhibit 56 and ask you just to review that briefly for me. That's a note from Dr. Noble regarding the surgery and then a release to return to work. Now, that's dated what, Doctor? Do you see that, top of the page? A. June 24th, 2010. PaoeJ7i Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that we had ordered, that we could tell whether that was acute or a chronic type of-Q. After that June 8th visit, did you order or prescribe any particular restrictions for the patient? In other words, did you place him on any restrictions activity wise? A. I don't-- once again, if I had to-- if we did, we may have had a sheet we would have filled out for him. It's not referenced in the note-Q. You don't recall any? e 2 3 4 5 6 7 8 9 10 11 A. --so I don't recall that That's 12 probably why we made the comments of the functional 13 capacity evaluation. Typically, if we're going to 14 15 give restrictions that aren't in the short term that we don't know how long they're going to go and we 16 17 would tend to think it's a chronic condition, I would order a functional capacity evaluation. 18 Q. And that would be typically like 19 20 before you impose restrictions? A. Uh-huh. 21 Q. Is that a yes? 22 23 A. Especially if they're long term. On a chronic patient I've seen once, I'm not going to '24 make restrictions on a patient like that unless they 25 Q. All right. I can show you, then, Exhibit 58, which is another note from Dr. Noble, ask you if you've seen this exhibit before? It's dated August 5th of 20 I 0. MR. McMAHON; Fifty-eight'! MR. LUERS; Yeah. A. I don't recall seeing that. Q. (BY MR. LUERS) All right. Doctor, Dr. Noble, after that surgery in 2010, released the patient to full duty with the railroad for the tasks that were set forth in that particular exhibit. If you'd peruse that very briefly or quickly and tell me, based upon your physical exam and the MRI that you did in 2011 of Mr. Bliss, if at that time he would have been capable of returning to that type of activity. A. Yeah, I would suspect so. Q. You would think he would? A. Uh-huh. Q. And that would have been even -A. Basically, you're talking about after his diskectomy at the time when I would have seen him? Q. Correct. A. Yes, he had the functional abilities 5 (Pages 14- 17) Veri text Corporate Services 800-567-8658 973-410-4040 • Page 18 2 3 4 5 6 7 8 9 10 11 12 13 : 14 ' 15 16 17 18 19 20 21 22 23 24 25 to be able to do that. It was a matter of his description of pain. Q. All right. So even though there was ~~ at least one of the tasks is may lift, carry, push, and pull objects weighing bet\veen 25 and Page 20 2 3 4 5 50 pounds -A. 50 pounds some of the time. Q. 25 pounds frequently, 50 pounds occasionally, those would not be unreasonable in tcrmsof-A. I don't think so. Q. And even though -A. Based on his size, muscle strength. His back MRI really didn't show anything, any gross instabilities, just that little base of trace retrospondylolisthesis, which usually isn't a high grade instability. Q. Okay. So at least as of June of 2011, that would be the case too? A. Yes, I believe he could have done 6 7 8 9 10 11 12 13 14 15 16 17 that. Q. After that June of2011 visit, according to the records I have, Doctor, you saw him-- well, you spoke to him on June 13, 201 l. Do you have that one? 18 19 20 21 22 23 24 25 Q. All right. And at least as of the date when that arrived, you saw that they did his physical or functional testing, and they concluded that he could work at the demand level of a job categorized as heavy. Is that your understanding? A. Yeah. Q. Okay. Was there anything about that FCE that you found to be invalid? A. Not necessarily. They just said he developed some pain. Q. Right, but I'm talking about just the testing results, itself, at this point. Is there anything in there that jumped out at you? A. Well, they didn't say anything about it being invalid or that he didn't pass any of the tests, so no. I would say no. Q. Okay. So then you saw him on June 13th; is that right? Or, excuse me, July 13th. A. Yes. Q. And would you have actually seen him on that day, or would Mr. Calabro have? A. We probably both saw him, I'm guessing. Q. And that's when he came back complaining of additional pain after the FCE; is Page 19 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 A. MyselformyPA? Idon'thave June 13th. Q. Well, this is the PA. I'm sony. John Calabro? A. Yes. No, I don't have that. I have July 13th. Did you say June or July? Q. I said June. A. I have a July 13th. Q. Okay. I'm going to show you part of Exhibit 59, and actually it's on page-A. Oh, I take it back. Here it is. Here's the June 13th. They were out of order. Yes, got it. Q. Just read that briefly, and that's-- obviously, it's a note from John Calabro, which is your PA? A. Yes. Q. And by then you had suggested the FCE? 23 A. Q. A. Q. 24 when it came in? 25 Uh-huh. Is that right? Yes. All right. Then did you see the FCE A. Yes. Page 21 that right? 2 3 4 5 6 7 8 9 10 A. Yes, or I don't know if it's because of the FCE but-- 11 Q. No. I understand. A. Yeah. Increasing pain, yes. Q. What did you attribute that increased pain to, any particular thing? A. No. Just the exacerbation of degenerative changes. You know, anything can flare that up, sometimes minor things. I wasn't sure what would cause that. 12 13 Q. All right. And you ordered another MRI at that time? 14 A. Right, and an EMG. Q. And an EMG? A. He had pain in a new distribution, I guess, is what he was complaining of 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Tell me what you found with either of those test results. A Let's see. I don't know if 1 have those actual tests. I have a phone note based on our tests. I don't print up-Q. I think that's the EMG. A. That's the MRI. I've got that, so that didn't show anything essentially different than 6 (Pages 18- 21) Veri text Corporate Services 800-567-8658 973-410-4040 Page 22 1 EMG showed a chronic right LS radiculopathy. That's 2 3 8 looked at when you first saw him in June? 10 II 12 ' 13 i i 14 and the nerve may or may not heaL what John was talking about in the July 15th note. 2 3 4 5 6 7 9 Page 24 the previous one. There's the EMG. Okay. And the the repeat MR! that would have been done on July 13, 4 5 2011, basically, you didn't see anything 6 significantly different from the MRI that you'd 7 Q. So let me back up just a moment. So having these first back symptoms? A. Possibly. Q. Okay. No way to really know on that? 8 A. No, and we don't even know if the 9 A. Right. chronic EMG finding correlates even with his increased pain at the time. 10 Q. Correct? A. Right, correct. 11 Q. So you couldn't attribute-- at 12 least from the results of the MRI, you couldn't 13 14 attribute the reason for the additional pain? 15 A. The additional pain, right, correct. 15 16 17 18 19 Q. Then, the EMG, what is the purpose A. The EMG is to look for acute nerve compression versus old nerve compression versus 16 17 18 19 20 location, be it peripheral nerve or maybe pinched at 20 21 the lumbar spine, so it's a way to help us quantify 21 22 whether something's acute, chronic, and maybe \Vhat 22 23 location, which nerve, etcetera. 23 24 24 25 Q. So that may have been a condition that was there from as early as 2003, when he was of that? Q. And what did you find again? A. The EMG showed that right l5 chronic 25 Q. Okay. A. May very well not. Q. And how significant was the EMG finding? In other words -A. It was mild. Q. --you said mild? Okay. A. Which may or may not even cause symptoms in some people so -Q. And then you or your physician's assistant spoke with David Bliss's wife on July 15; correct? A. Yes. Q. All right. A. Got that. Q. And then who sent the patient to Page 23 1 2 3 consistent with an old injury. Q. Okay. "Old" meaning-- Page 25 Madonna, was that you, for some rehab? radiculopathy, meaning it's-- that would be 2 A. I don't know if he went to Madonna. We may have. I don't know if he did physical therapy or not 4 A. Not acute, something that's not 3 4 5 healing further. It's nothing new that's ongoing or 5 6 a new injury. There's no re-innervation occurring, 6 Doctor. I think that's from Madonna. 7 8 meaning the nerve is not trying to heal or in the process of denervating. It's just stably or 7 A. It looks like we did. 8 Q. And thaes dated what? 9 chronically impaired. 10 Q. Is there a 9 10 what type of Q. Let me show you a report that I got, A. 7-26, 2011. Q. Okay. So assuming that you guys 11 condition, injury or degeneration can result in 11 sent him for rehab, do you recall what you were 12 those kinds of findings on the EMG? 12 hoping to gain at that point in time through that rehab? If you want to look at this record, that's -- 14 13 a herniated disk or some other form of pinching of 13 14 15 the nerve. 15 A. What date was that again? 16 Q. That was July 26th, is the date of 16 17 , 18 i 19 A. You can have nerve damage from, say, Q. Can that be degenerative in nature also, or does it have to be an acute injury? A. Typically, it was a result of something that had injured it, so at some point it 17 service. 18 19 A. Okay. Was that before or after his functional capacity evaluation? 20 probably was an acute injury, but it could be 20 Q. Actually, it was after. 21 anything from a stretch to a compressive phenomenon, 21 A. That was after his FCE? Q. Yeah. The FCE was dated June 30th. 22 meaning, you know, nerve stretch or actual physical 22 23 compression on the nerve. Maybe it was a herniated 24 disk, maybe it was a bone spur that he'd had 23 24 A. Okay. My guess is we were just trying something nonoperative as opposed to a three 25 previously from other operations that was taken off, 25 level fusion or something. 7 (Pages 22 - 25) Veri text Corporate Services 800-567-8658 973-410-4040 ~-----------~--------------~------~----------------- Page 2 3 4 5 6 7 8 9 110 I 11 12 113 14 15 16 17 18 19 20 21 22 23 24 25 261 Q. Do you know offhand, Doctor, or do your records reflect any follow-up to that rehab? In other words, I can't recall at the conclusion of that rep01t whether they recommended anything further or -A. He believed he was at maximum medical improvement and deferred to either of us. He said, Use the information in the FCE as well as the physical exam to reconunend future work restrictions, and he didn't recommend any work restrictions today with him, so he kind of basically said whatever we said. Q. Then keep going in that. And you're looking at exhibit-- whaes the number on the front of that exhibit, Doctor? A Exhibit 59. Q. All right And keep going, and I think there's-- the next, is it August 25th, 2011, either report or~A Uh-huh. Q. What is that? Is that from Madonna again? A. Yes. Q. And at that point in time, were they recommending any further plan for Mr. Bliss? Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 together. Then your next -- the next time you actually saw Mr. Bliss would have been when? A. September 2nd. Q. Okay. What was the purpose of that visit? A. We saw him in consultation, reviev.,red his notes, I suppose, andre-review his complaints that he was having-- he was talking about when he got there. Q. Now, at that point in time, your physical exam noted that basically it was unchanged except with some depressed reflexes and now some S 1 radicular symptoms; correct? A. Uh-huh. Q. And that's yes? A. Yes. Q. Other than that, as far as his physical exam, was that pretty much the same as it was when you first saw him in June of2011? And I realize his subjective complaints \Vere different but-A. Yes. Q. Okay. You say down there on -- down at the last paragraph of that first page of that 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 . ] ~ Page 27 A. No follow-up, just continue physical therapy is something he recommended. No narcotics, took the anti-inflammatories, nonnarcotic medicines. Q. At some point in time, I thought I read in one of those Madonna reports work hardening or condition program. Do you know whether or not there was any follow-up in that regard or whether he engaged in any, Mr. Bliss? A. I'm not aware of that. Q. Let me take a quick look at it, Doctor. I'm sorry. I'm looking at page-- it's MRH5 of Exhibit 59 in the second-to-the-last paragraph. Do you know it references work hardening and some conditioning program? A. Yes, yes. It says something about continuing to advance to more functional 281 Q. Okay. Put that exhibit back 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 September 2nd, 2011 report, it says he can't function at his job with his current pain level and would need to be in a light~duty situation. I take it, Doctor, and you cmTect me if I'm wrong, but basically what you're saying is if you could eliminate his pain or reduce it, then that -- then he could function at more than a light level; is that what you were saying? A. Pain is what limited his functioning. Q. All right. And the pain, obviously those-- not to diminish it, but those are subjective complaints. You can't measure that; correct? A. Correct. Q. Otherwise, his physical exam was virtually the same? A. Correct. conditioning and work hardening, especially if there's no surgety planned. Q. All right And at that point in time, there was no surgery planned, I take it? A. No. Q. Do you know if there was any 19 20 21 22 A. Still wasn't sure what was causing his pain based on our physical exam and our imaging follow-up in that regard by either the rehab people or Mr. Bliss? A. Not that I'm aware of. 23 24 25 and our EMG; so, therefore, we wanted to see if maybe his pain source was in the joints, the facet joints, themselves, in those three levels that had Q. What did you recommend, if anything, at that point in time? 8 (Pages 26 - 29) Veri text Corporate Services 800-567-8658 973-410~4040 Page 30 : Page 32 I that degeneration, and so we recommended maybe facet 2 3 blocks or possibly facet rhizolysis. ff facet 2 nerve~ like blocks helped, they were a longer tenn solution. 3 him, and, as he said, were limiting him. 4 suggesting had improved significantly, but his Q. And the rhizotomy, is that different symptoms that he had were still bothering 14 I take it, then, he followed through on that, as far 14 Q. And I think in that report, Doctor, you indicate that at that point in time you didn't think fusion would do any good for him? A. Correct Q. You were not? A. He didn't seem to have mechanical low back pain that he had had before, and I told him that a fusion is mainly for mechanical low back pain unless you have some nerves to decompress, which we did not based on our MRI or EMG studies. Q. Do you know at that point in time 15 as you know; correct? 15 what kind of pain prescription he was on, or had you 16 A. Yes. 16 17 Q. Your next visit was when, Doctor? 18 19 A. Well, I guess we spoke to him on the 4 5 than the tacet blocks? 5 6 A. No. 6 7 8 Q. Same thing? 7 8 A. Well, they actually arc different. 9 Usually, one's referred to as using medications. 9 10 I0 The rhizolysis is typically something they use a 11 radiofi-equency generator to actually create a lesion 11 12 not chemically, but electrically. 12 Q. Okay. And you recommended that, and 13 13 : 17 18 19 20 21 22 23 24 phone, but we didn't sec him until November 2011. 20 Q. That would be November 7th? 21 A. Yes. 22 Q. What did you do on that particular 23 24 , 25 visit? A. We discussed his MRT findings with him, we discussed what he had done since I'd seen 25 prescribed pain medication? Was that-- was he getting that from somewhere else? A. I suspect he would have gotten that from somebody else. Typically, we don't prescribe pain medications unless we've done surgery. We let their other doctors take care of that. Q. Do you know if you ever have seen him since November of 2011? A. I don't believe I have. Q. Okay. Page31: 2 him, which at that time he had rhizolysis after having had his injections, still complained of some 3 burning symptoms in the back of his heels and feet 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 • 19 20 21 22 23 24 25 Page 33 ! A. Not from my notes. 2 1 3 with walking. 4 Q. According to that November 7th letter you have, he actually had an excellent response to the rhizolysis with near complete resolution of his lumbar back pain; is that correct? A. Right. Q. And he had the heels and lateral foot pain if he walked for 20 minutes or more; COITect? A. He was complaining more from what I'd say is nerve-like symptoms as opposed to just 5 6 7 8 9 10 11 12 13 14 the mechanical back symptoms. Q. But those symptoms were located now in the feet; correct? A. And the legs. He complained of some aching in the hips too, but, yes, it looks like they \Vere in the feet and legs. Q. At least from a physical standpoint, at that point in time-- or from a functional standpoint, it would have been improved, then, could you conclude, because of the lack of lumbar pain? A. Yes. I think his back pain he was Q. So as you sit here today, you don't know what his condition is; correct? A. Correct. Q. I take it, then, you would agree with me, Doctor, that at least from the first time you saw him until the last time you saw him, if anything, his condition improved? A. Correct. Q. And you would agree with me that at least from a curs01y examination of Exhibit 58, you still think he would be able to perform those types of tasks with his physical condition? A. I'm not sure. Q. Okay. Which one would cause you 15 16 17 some hesitancy? 18 or standing when he said he couldn't stand or 19 couldn't walk for more than 20 minutes or so. A Well, to do a half a day of sitting 20 Q. Okay. But you don't-- do you know 21 the reason that he couldn't walk for 20 minutes? 22 1 23 A. No. I had no objective evidence of why he couldn't do that. 24 Q. Okay. Doctor, do you agree that 25 Mr. Bliss was clearly suffering from degenerative 9 (Pages 30- 33) Veri text Corporate Services 800-567-8658 973-410-4040 r~-------------~------------------------ Page 34 1 2 Page 36 time you saw him first in June of20 ll '! 2 3 A. Yes. 3 4 Q. And any changes you noted in MRfs 4 5 6 5 from the-- well, strike that. 6 7 Did you ever see any MRI results from anything before June of 2011 '! Q. And you've not rendered any opinions or been asked to render any opinions as to any correct? temporary or permanent restrictions for Mr. Bliss; A. Correct. Q. And other than your physical exam 7 8 A. Yes. 8 and the MRl and EMG testing that you've done for 9 Q. Was there-- can you tell me what, 9 Mr. Bliss, you don't know what his current condition I0 if any, significant changes there were between those 10 11 two MRls and which-- let me back up. Which MRT did 11 12 you see that was befOre 2000 and -- 12 A~ 13 13 March 18th, 20 II. Q. Okay. And then, at least from 14 15 March 18,2011, through the last MRI you took, there 16 wasn't any real significant changes; is that right? 17 A. Well, the March-- there was a 18 change from the March 18th one from the MRis that I 19 saw, because he had surgery between these two. 14 15 16 17 18 is or his functional limitations or his medication requirements are? A. No. Q. And you have not been asked, nor have you rendered any opinion or have any opinion as to whether or not Mr. Bliss should return to any particular job or not return to any job; correct? A. Correct. Q. And as far as his conditions, 19 whatever they are right now, you don't know whether 20 Q. Okay. Which two are we talking 20 they're temporary or permanent? 21 22 about? I'm son)'· I'm confused. A. You asked if I saw an MRI before 23 24 June, and the answer is yes. We saw the March 18th one, which was done befOre his April surgery, and he 21 22 23 24 25 i ! A. Correct. disk disease at that L3/4 through L5/S I as of the had a recurrent disk herniation at LJ/4 on that 25 A. Correct. Q. And, again, 1 think 1 already asked you this, but whatever his conditions are, you have no opinions, nor have you been asked as to what the cause of those conditions are? I Page 35 Page 37 A. No. study. 2 3 4 5 Q. Okay. I gotcha. A. In June that wasn't mentioned there anymore so ~- Q. Gotcha. That was repaired by the 6 7 8 9 6 time the June MRI was taken care of? significant change? 10 11 12 13 14 15 16 A. Right, yes. Q. Other than that change was there any A. No. Q. And did you see any MRis taken prior to March of2011? A. No. Q. Okay. Doctor, are you aware that you were identified as an expert witness because you were one of the treating physicians in this 17 18 19 20 particular case that Mr. Bliss has against the 21 any rate; right? railroad? A. Yes. Q. Okay. You're aware of that now, at 7 8 9 10 CROSS~EXAMINATlON BY MR. McMAHON: Q. Doctor, just briefly, going back to the September 2nd, 2011, note, at the bottom there in Recommendations -~ A. Uh~huh. Q. ~- it seems that you and David had a long discussion about the conditions, and at that 11 12 time you stated that he certainly can't function at l3 14 l5 16 l7 18 19 20 need to be in a 123 A. Yeah. Q. You've not recommended any 24 restrictions, either temporary or permanent, for 21 22 23 24 25 Mr. Bliss; correct? 25 22 Q. Doctor, 1 have no further questions. 2 3 4 5 his job with the current pain level and he would light~duty situation? A. Yes, and that was related to his pain. Q. Okay. And so, depending on his pain level, he may or may not still be at that light~duty situation that you thought he \:vas that was appropriate in September 2nd, 2011? A. Correct. I told him-~ basically, he was telling me that the work was bothering him or things and it was causing repetitive type of twisting and movement and he couldn't function in his job. When he talked to me, he basically said he couldn't do these certain ~- it was because of pain, 10 (Pages 34 ~ 37) Veri text Corporate Services 800-567 ~8658 973-410-4040 Page 38 Page 40 and I said, "Well, if you can't do those things, you 2 3 37:5 4 --39:9 BNSF 5 objects to 6 the testimony 7 as hearsay 8 without an exception i 9 '10 and as not relevant. 11 Fed. R. i 12 Evid. 402, 403, 801 113 and 802. ' 14 1 Ruling: 15 Overruled 16 17 18 119 20 '21 122 : 23 124 '25 A. Rhizolysis, yeah. can't do those things," and so that was in reference 2 3 4 5 to that, that maybe light duty might be more helpful because of his pain doing his current-- you know, his current job description, but I was not-- I did not prescribe him any light duty. Q. Okay. And you weren't asked by the railroad? A. I don't believe so. Q. All right. A. I don't have any forms that l recall filling out. Q. All right. And then, in the November 7, 2011, note, you stated at the bottom that he would likely needed to continue on medications, at least in some form, as needed indefinitely unless he gets some relief with the spinal cord stimulator? A. Uh-huh. Q. What was this recommendation about? A. Basically, he had been placed on anti-inflammatories and other medicines for his pain which was used to manage that, and I felt that his pain was probably chronic and he was likely going to need to be on medications if this didn't work for Page 39 II 6 7 8 9 Q. Rhizolysis? Did that work in correcting some of the symptoms that Mr. Bliss had? A. Yes. That's what he reported, that it helped him with his low back pain significantly. Q. All right And how? WhaCs the-how docs that work? How docs the rhizolysis function to alleviate the low back pain? IJO A. Basically, it's-- I would say it's a newer procedure, the idea being if you take away i II the painful innervation of the joints in the back, 112 the facet joints, by basically destroying or 113 disrupting one of the nerves through heat or some 14 15 16 17 18 19 20 21 22 123 124 25 other type of injury that you can numb that joint innervation; therefore, if you have pain in that joint, you won't feel the pain in the back, and so it's a pain-relieving procedure by basically destroying part of the sensory portions of the nerves to those joints. Q. And is it a permanent fix for patients like Mr. Bliss? A. Most of the pain doctors consider it a semi permanent or longer term but not permanent, necessarily. Although some people supposedly get permanent relief, most of the doctors, I think, ! Page 41 1 his nerves, and we wouldn't know how long or what 1 suggest that it may be a year to two years, tops. 2 medicines those might be, but there may be nothing 3 4 else, in other words, for him. 2 3 Q. And that's because the nerves regenerate themselves? 4 A. Yes, the sensory branches can 5 Q. And did you make the referral to Dr. Donovan at that time, do you know? 5 6 A. For the spinal cord stimulator? 6 7 Q. Right, for the consult 7 110 ' 11 112 il3 then will come back, the mechanical back pain Q. But from the November 7, 2011, note, it seems that you were making the referral to more 110 symptoms will return? of a pain management treatment plan; is that fair to 112 113 Q. Is that COITect? A. Yes. Q. Okay. And then, in those patients where the nerve is regenerated and the symptoms of mechanical back pain have returned, if those patients return to see you, is there-- can you do another rhizolysis? What's the course of treatment at that time? A. That, I typically would leave up to the pain doctors, but I have heard of patients going back and getting another rhizolysis if they have good relief, but it does reoccur. I don't know what the success rate of that is for a repeat procedure like that say? A. Y cs. He was having nerve pain at 116 ' 17 even be a candidate for something like that spinal somebody that could maybe identify whether he would cord stimulator for some chronic nerve type of damage or pain, and that was my thought, is that that might be an option for him. Q. And the procedure, T guess it was .122 done by Dr. Devney, is that coJTect -- 23 A. Uh-huh. Q. --in October of2011, the rhizolysis? I~; 9 i that time, so sending him to a pain manager or 1 . 21 regenerate in that area where the rhizolysis was performed, is that the risk, is that the symptoms time. I don't know if he went or not. 114 ' 15 118 i 19 20 Q. And if the sensory branches 8 A. Y cs, we probably would have at that 8 9 regenerate. lu 114 i 15 A. Yes. 11 (Pages 38- 41) Veri text Corporate Services 800-567-8658 973-410-4040 Page 2 3 4 5 6 7 8 9 • 10 11 • 12 13 14 15 16 17 18 19 20 21 22 23 24 25 421 Q. All right. Now, there's been some mention in your records about a fusion, and in Mr. Bliss' case was it that he was a candidate for a three-level fusion? A. That's what I offered him. If we were going to do a fusion, we were going to have to address all three of those degenerative levels, any one of or all of those three contributing to his pain, potentially. Q. And fusion surgery, just by its own nature, is a permanent-- you're addressing a permanent type of fix for someone with mechanical back pain; correct? A. Correct. Q. And people that undergo the rhizolysis procedure, are they also candidates for fusion surgeries if the mechanical back pain symptoms return after the nerves regenerate? A. Sometimes. Q. All right. And is there anything about the rhizolysis procedure that excludes patients from future fusion surgery? A. Not necessarily. Q. Okay. A. I'd say not from the procedure, Page Page 44 Q. I understand. Thank you, Doctor. 2 3 4 5 6 7 8 9 i 10 11 : 12 13 : 14 15 16 17 18 119 20 21 22 23 24 25 Q. But just so we're clear, Doctor, you didn't recommend and even told him in the November letter that the fusion would not make him any better, and you didn't recommend that procedure? A. Based on his constellation of symptoms that he had at that time, which were almost all nerve related, which I couldn't pinpoint, I had no target. Before our target was back pain and generation back pain. The symptoms sounded like they got significantly better, and I couldn't improve upon that with fusion, at least when I saw him, and that's why I told him that. Q. I gotcha. And you've not seen anything that changed your opinion in that regard? A. No. Q. And you're not aware of any medical doctor at this point advising him to get a fusion? A. No. Q. Doctor, I don't think I asked you, and I just very quickly v,_,ill ask you if you ever saw this letter that Mr. Bliss wrote to Dr. Noble, and that is Exhibit 57. I'm doubting you've ever seen 431 Page 451 it. itself. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REDIRECT EXAMINATION BY MR. LUERS: Q. Thafs what I meant. Is there something that would then sort of-A. If the procedure were done and it gave no relief at a level that they did it, then I would suspect that I wouldn't fuse a level that didn't work from the other procedure either if I was using that as a diagnostic procedure, but typically those would be done with a block and not a rhizolysis. Q. Okay, all right. 'Cause then fusion obviously wouldn't help those symptoms if the rhizolysis, or the block, didn't help those symptoms; cotTect? A. Typically. Q. So the thinking goes; right? A. Yes, and in his case I think the joints were a big component of his pain. The other issue is the disk and the nerve, which isn't addressed by rhizolysis because that's -- we're talking about a little more anterior and different portions of the nerve, not the nerve innervation to the joint, so it gets a little complex using them to totally decide whether you're going to do that surge1y or not. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. You've never seen it? A. No. Q. I take it that the language in here where he says, when I go to work as a carman even after January of2011, it's not a heavy load, was that different than what he told you about his carman duties? A. I was under the impression that he had some heavy physical labor involved in it. I don't know the specifics, but that was a physical job. Q. Did you ever-- did he ever talk specifics with you in terms of how heavy or how physical? A. I don't recall that conversation. MR. LUERS: I have nothing further. MR. McMAHON: I have nothing fmther. MR. LUERS: Doctor, you have a right to read and review the transcribed deposition, or you can waive that 1ight. THE WITNESS: That's fine. Waive it. (Deposition concluded at 2:07p.m.) 12 (Pages 42- 45) Veri text Corporate Services 800-567-8658 973-410-4040 [ I 4 Page 46 CERTIFICATE I, Lisa G. Glimminger, RMR, CRR, General Notary Public, duly commissioned, qualified, and acting under a general notarial commission within 5 and for the State of Nebraska, do hereby certify 6 that 7 DR. KEITH R. LOmBA 8 was by me first duly sworn to tell the truth, the 9 I0 whole truth, and nothing but the truth; that the fOregoing deposition was taken by me at the time and II place herein specified and in accordance with the 12 within stipulations; that I am not counsel, 13 mtomey, or relative of either party or otherwise 14 interested in the event of this suit. 15 IN TESTIMONY WHEREOF, I have hereunto set my 16 hand officially and attached my notarial seal at 17 Lincoln, Nebraska, this 24th day of October, 2012. 18 19 General Notary Public 20 2! 22 23 24 25 13 (Page 46) Veri text Corporate Services 800-567-8658 973-410-4040 [&-bliss] Page I ,-------&--------,3~0~1~9~1~:2~-------,~a-c-cu_r_a~te~9~:~2----~-a~tt~o-rn_e_)_'~3~:1~2~4~6~:~13~ '-.&----.-~ 305 1:9 4:16 i aching 31:19 attribute 21:6 22:12 1 9 1 3 17 ______:cc.c·'-''c::c•------, 30th 25:22 i achy 9:19 22:14 1 i 37 2:9 I acquainted 6: I ,3 august 17:4 26:18 1 2:3 3:4 10:12 acting 46:4 aware 7:24 10:10,14 1 3rd ~~-----------1248 1:17 4 .activity 15:617:16 16:1327:9,2535:14 13 18:24 22:5 actual 21:21 23:22 35:20 44:19 I 4 2:8,12,13,14,15,16 2 14 13 t h 19 :2 ,6,8, 12 . acute 15:2 16:1 awareness : 3:13 20:18,18 44 2:10 22:18,22 23:4,17,20 b 15 24:20 acutely 16:1 46 2:5 b 1:16 3:12 15th 22:3 additional 20:25 14:12 1:2 back 8:17 9:11,19 16 1:10 22:14,15 11:1,15 12:813:18 18 34:15 [________s_____---1 address 4:15 42:7 18:1419:11 20:24 IS 3:16 addressed 43:20 18th 34:13,18,23 22:4 24:4 28:1 31:3 r-='1::.::1.::_8__::_1 1_::_0______-----11 50 18:6,7,8 addressing 42:11 1 31:8,15,25 32:10,11 i542 1:14 adult 14:11 2 34:11 37:5 40:5,8 --:-----------1 55 14:1,4 advance 27:16 2 39 40:11,16 41:9,9,16 56 2:124:116:20 advising 44:20 20 3 1: 1133 :19 ,21 41:22 42:13,17 I 57 2:13 44:25 aging 14:13 200 1: 14 44:11,12 2000 34 :12 158 2:1417:233:11 ago 5:12 base 18:15 ! 59 2:15 19:10 26:16 agree 33:5,10,24 2003 24 :3 based 12:14,15 2010 16:12,18,25 i 27 :12 agreed 3:2 17:13 18:13 21:21 i~s:.:th::..__:_l7:..c:4-'----------,. a hi 1:17 17 :4 ,9 29:22 32:13 44:8 6 2011 6:17 7:1,21, 24 1 - - - - - - - - - - i.i alignment 14:11 basically 7:12 13:12 9:8 10:12,2411:23 6 3:18 i alleviate 40:8 13:20 17:21 22:6 · ' 13:9 17:1418:19, 22 6/24/10 2:12 1 answer 34:23 26:11 28:12 29:5 I 60 2:16 4:1 i anterior 43:21 18:24 22:6 25:9 37:20,24 38:21 40:9 !60605 1:15 anti 27:3 38:22 26:18 28:20 29:1 40:12,17 anymore 35:4 30:19 32:23 34:2,7 i 68508 1:18 beginning 5:9 34:13,15 35:12 37: 6 ic-=:=.:-=--~_::__-----1 appearances 2:3 7 behalf 1:5 37:19 38:14 39:10 applied 5:11 ' believe 18:20 32:24 I 7 38:14 39:10 39:24 45:7 • appropriate 37: 19 38:9 7-26 25:9 2012 1:10 46:17 apn"I 8:20 12 :9 believed 26:6 24th 16:25 46:17 7th 30:20 31:5 34:24 better 44:7,13 8 r-------------1 area 41:7 25 18:5,8 beyond 5:11 14:14 25th 26:18 i 8 10:2411:23 areas 13:16 big 43:18 I 800 1:18 arrived 20:2 26th 25:16 bit 13:18 I 8005 1:9 4:16 1 asked 34:22 36:3,13 bliss 1:22:136:4,12 2:07 45:24 ' 2nd 28:4 29:1 37:6 I 8th 6:17,25 7:11 36:22,24 38:7 44:22 14:3 16:1117:14 37:19 12:17,1813:915:3 i assistant 24:20 26:25 27:8,24 28:3 '---~~----------1--"-------"---------1, assume 5:25 33:25 35:17,25 36:4 ______--_3------+----:---a--::r--------11 assuming 25:10 36:9,15 40:3,21 3 2:43:11 I abilities 17:25 I atrophy 9:1211:5 42:3 44:24 · able 18:1 33:12 attached 46:16 3-18 7:20 I f - .- - - - - - - - - - - - - - - , c:: c - .- I Veritext Corporate Services 800-567-8658 973-41 0-4040 [bliss's- dictated] Page 2 bliss's 24:20 certified 3:6 4:6 5:1 block 43:9,13 5:1,2 blocks 30:2,3,5 certify 46:5 bnsf 1:5 cetera 22:23 board 4:25 5:1,2,4,5 change 34:18 35:8,9 boards 5:6,8 • changed 44:17 bone 23:24 changes 12:23,24 bones 9:6 13:13,13,21,24 14:2 bothering 32:2 14:11,12,16,1621:9 37:21 34:4,10,16 bottom 37:6 38:14 chemically 30:12 brain 4:24 chicago 1:15 'branches 41:4,6 chronic 15:2,17,24 'briefly 16:21 17:12 22:2,22,25 24:9 19:14 37:5 38:24 39:18 burning 31:3 ch1·onically 23:9 ; business 4:15 claimed 10:11 ----c--------1 claiming 10:19 f - - - - - - - - _ _ , clear 44:4 c 1:12 46:1,1 calabro 19:4,15 clearly 33 :25 clinic 16:10 : 20 21 call 13:17 come 41:9 candidate 39:17 comments 15:13 : commission 46:4 42 3 'd t commissioned 46:3 can d 1 a es 42 : 16 capable 17:15 company 1:5 10:6 capacity 11 : 17 compared 11 :5 complained I 0:15 15:14,18 25:19 care 32:2135:6 ll: 631 :2 •18 carman 45 :6 ,9 complaining 20:25 21:17 31:13 cany 18:4 case 1:2 10:20 18:19 complaints 28:8,21 29 13 35:17 42:3 43:17 : categorized 20:5 complete 31 :7 cause 10:21 11:18 complex 43 :23 r ; 1 21:1124:17 33:15 36:2543:11 causing 29:21 37:25 cautioned 4:5 certain 37 :24 • certainly 37:11 , certificate 2:5 certification 5:4 component 13:1 43 18 : compression 22:19 : : 22 19 23 23 compressive 23:21 computer 12:6 conclude 31 :24 concluded 20:3 45:24 cs1540360 I :25 conclusion 26:3 current 29:2 36:9 condition 15:17 37:12 38:4,5 23: II 24:2 27:6 cursory 33:11 33:3,8,13 36:9 cv 1:2 conditioning 27:14 27:17 d conditions 36:18,23 d 2:1 4:14 36:25 37:10 damage 23:13 39:19 confused 34:21 date 6:24 20:2 25:15 consider 14:14 25:16 40:22 dated 6:25 13:9 consistent 23:2 16:23 17:4 25:8,22 constellation 44:8 david I :2 6:4 24:20 consult 39:7 37:9 consultation 7:4,7 day 12:19 20:21 9:9,16 28:7 33:17 46:17 contained 7: 10 dearborn 1: 14 contemporaneously decide 43:24 7:6 decompress 32:12 continue 27:1 38:15 defendant 1:5,6,16 continuing 27:16 3:12 contributing 11:15 defened 26:7 42:8 , degeneration 14:9 conversation 45:17 23:1130:1 copy 3:19 degenerative 13: 13 cord 38:18 39:6,18 13:21 14:2,12,15,23 correct 7:1 17:24 21:9 23:16 33:25 22:10,11,15 24:21 42:7 28:14 29:4,14,15,18 delivered 3: II 30:15 31:8,12,17 demand 20:4 32:7 33:3,4,9 35:25 denervating 23:8 36:1,5,6,16,17,21 depending 9:6 37:16 37:20 39:22 41:12 deposition I :4 3:4,9 42:13,14 43:14 3:11,15,19 5:23,25 correcting 40:3 45:21,24 46:10 conection 9:22 depressed 28: 13 correlates 24:9 description 18:2 i counsel 46:12 38:5 ' couple 7:9 8:21 destroying 40:12,18 course 41:18 developed 20:10 court I :I devney 39:22 create 30:11 diagnostic 43:8 cross 2:9 37:3 dictated 13:3 CIT 46:2 Veritext Corporate Services 800-567-8658 973-410-4040 [different- gotcha] different 13:3 14:3 21:25 22:7 28:21 30:4,8 43:21 45:8 difficulty 9:23 diminish 29:12 direct 2:8 4:9 directed 8:13 discs 14:9,13 ' discussed 30:24,25 discussion 37: I 0 disease 34:1 disk 7:9 23:14,24 34:1,25 43:19 diskectomies 13:6 diskectomy 8:21 12:11 17:22 disrupting 40:13 distribution 21:16 district 1: I, I doctor 4:11,15 5:15 7:4,24 8:25 10:10 10:1713:1116:4,23 17:818:23 25:6 26:1,15 27:11 29:4 30:17 32:4 33:6,24 35:14 37:2,5 44:1,4 44:20,22 45:20 doctors 32:2140:22 40:25 41:21 doing 38:4 donovan 39:5 doubting 44:25 dr 1:4 2:7,13 3:4 4:4 6:2516:5,11,18,21 17:2,9 39:5,22 44:24 46:7 drive 1:9 duly 4:5 46:3,8 duties 45:9 duty 17:10 29:3 37:13,17 38:3,6 ~~~~~~---e Page 3 earliest 6:19,21 eyes 11:3 forth 3:7 17:11 ~~~~------~ early 24:3 f found 20:821:18 '-f--~~:--~------~ foundation 3:14 eight 17:5 either 7:6 14:21 ·four 10:18 facet 29:24 30:1,2,2 21:1926:7,1927:23 frequently 18:8 30:5 40:12 35:24 43:7 46:13 friend I 0:4 fair 39:12 electrically 30:12 front 26:14 familiar 16:5 eligible 5:5 full 4:11 8:3 17:10 far 28:18 30:14 eliminate 29:6 function 29:2,7 36:18 emg 21 :14,15,23 37:11,23 40:8 farina I: 13 22:1,2,16,18,25 functional II: 17 farnam 1:94:16 23:12 24:9,13 29:23 15:13,1817:25 20:3 fee 11:20,2519:19 32:13 36:8 25:19 27:16 31:22 19:23 20:8,25 21:3 ended 11:12 36:10 25:21,22 26:8 engaged 27:8 functioning 29: I 0 february 10:11,12 equal 11:4 further 23:5 26:5,25 feel 40:16 especially 15:23 37:2 45:18,19 feet 31:3,17,20 27:17 fuse 43:6 felt 11:18 38:23 essentially 21 :25 fusion 25:25 32:6,11 fifth 5:10 et 22:23 42:2,4,6,10, 17,22 fifty 17:5 evaluate 11:20 43:11 44:6,14,20 fill 8:5,6 evaluation 11:17 future 26:9 42:22 filled 15:9 15:14,18 25:19 filling 38:12 event 46:14 find I 0:24 22:24 ! g 3:5 46:2 evidence 33:22 finding 24:9,14 gain 25:12 exacerbation 21:8 findings 13:10 23:12 general 3:6 46:2,4 exam 2:12 II :8 30:24 46:19 17:13 26:9 28:12,19 fine 45:23 generation 44: 12 29:16,22 36:7 first 4:5 6:15 7:3,24 generator 30: II examination 2:8,9 gentleman 7:8 13:22 22:8 24:4 28:20,25 2:10 4:9 33:11 37:3 33:6 34:2 46:8 13:25 44:2 fix 40:20 42:12 getting II :20 32:17 examined 4:6 10:23 fixing 16:2 41:22 excellent 31:6 flare 21:9 give 15:15 excludes 42:21 follow 26:2 27:1,7 go 15:16 45:6 excuse 20:18 27:23 goes 43:16 exhibit 4:1 16:20 followed 30:14 going 15:14,16,24 17:2,3,1119:10 follows 4:6 16:19 19:9 26:13,17 26:14,15,16 27:12 foot 31:11 37:5 38:24 41:21 28:1 33:1144:25 foregoing 46: I 0 42:6,6 43:24 exhibits 2:11 form 3:13 23:14 good 11:3 32:6 expert 35:15 38:16 41:23 !------~::.________ extensive 14:8 e 1:12,12 2:1 46:1,1 forms 38:11 gotcha 16:4 35:2,5 extent I 0:9 44:16 ! 46 1 V etitext Corporate Services 800-567-8658 973-41 0-4040 Page 4 gotten 9:25 32:18 grade 18:17 grimminger 3:5 46:2 gross 18:14 . guess 7:8,22 8:12 9:11 10:8,1411:6 16:5 21:17 25:23 30118 39121 ·guessing 20123 ; gnys 25:10 [gotten- lincoln] I huh 5:19 II :24 13:7 15:2117:1919:20 26:20 28:15 37:8 38:19 39:23 hurd 1:16 i hurt 9:25 i intact 11 :2 interested 46:14 invalid 20:8,15 involved 45: II iowa 5:21 issue 43:19 j 33:20 36:9,19 38:4 39:1,5,9 41:23 45:12 known 12:19 knows 10:4 kreshel 6:25 I idea 40:10 j 1:13 I 3:14:14 identification 4:3 james 1:16 3:12 12/3 8:2413:1 identified 35:15 ,january 45:7 13/4 8:22,23 12:24 r--~---h------1 identify 39:16 job 1:25 2:14 9:23 13:2 34:1,25 1-------------1 illinois 1:15 9:25 10:8 20:4 29:2 14/5 12:24 i h 4:14 imaging 29:22 36:16,16 37:12,23 IS 8:24 12:24 22:2 half 33:17 i impaired 23:9 38:5 45:13 22:25 34:1 hand 46:16 ·impose 15:20 john 19:4,15 22:3 labor 45:11 1 happen 8:25 impression 45:10 joint 40:14,16 43:23 lack 31:24 happened 10:21 I improve 44:14 joints 14:12 29:24 language 45:5 happenstance 10:5 1 improved 31:23 29:25 40:11,12,19 ·lateral 31:10 hardening 27:5,13 · 32:1 33:8 43:18 leave 41:20 27:17 · improvement 26:7 july 19:6,6,8 20:18 left 11:5,14,15 heal 23:7 24:1 incisions 10:25 22:3,5 24:20 25:16 leg 11:15 I healing 23:5 increased 21:7 jumped 20:13 legs 9:11,12,19 ·heard 7:1741:21 24:10 june 6:17,25 7:11,24 31:18,20 heat 40:13 increasing 21:5 9:810:2411:23 lesion 30:11 heavy 20:5 45:7,11 indefinitely 38:17 12:17,18 13:915:3 letter 6:25 7:11 45:15 independent 6:7 16:25 18:18,22,24 11:23 31:6 44:6,24 heels 31:3,10 indicate 32:5 19:2,6,7,12 20:18 level 13:19 20:4 help 22:21 43:12,13 indicates 13:19 22:8 25:22 28:20 25:25 29:2,7 37:12 helped 30:3 40:5 individual 14:21 34:2,7,23 35:3,6 37:17 42:4 43:5,6 helpful 38:3 induced 14:18 k levels 7:912:2513:2 hereinafter 4:5 inflammatories 27:3 1-------------1 13:4,6,14,14,15,19 keep 16:2 26:13,17 hereof 3:8 38:22 keith 1:4 2 :7 314 414 29:25 42:7 hereto 3:3 information 7: I 0 licensed 5:17 4:13 46:7 hereunto 46:15 8:8 9:1 26:8 kind lift 18:4 5112 1218 herniated 23:14,23 injections 31:2 lifting 9:20 14110 26111 32115 herniation 13:15 inj'ured 23:19 k' d light 29:3,7 37:13,17 . , Ill S 2 .JI 12 34:25 injury 10:11,19,21 knee 38:3,6 7125 hesitancy 33:16 23:2,6,11,17,20 k limitations 11:21 new 10 :3 ,7 high 18:16 40:14 know 5:24 8:17,25 36:10 hips 31:19 innervation 23:6 limited 9:2011:18 1312 1412015116 history 7:5,11,14 40:11,1543:22 , , , 29:9 1617 92112 9 20 hoey 1:13 instabilities 18:15 limiting 32:3 23:22 24:6,8 25:2,3 hoping 25:12 Instability 13:20 lincoln 1:18 16:6 26112716 13 22 14:1018:17 46:17 • ' 30:15 32:14,22 33:3 1 ! Veritext Corporate Services 800-567-8658 973-410-4040 Page 5 [line - okay] mris 34:4,I I,I8 marrow I3:I3 line II:20 lisa 3:5 46:2 matter 18:1 35: I I list 5:13 maximum 26:6 muscle 18:13 listed IO:I3 ·mcmahon I:13 2:9 n little 8:5 13:I8 I8:I5 · 17:5 37:445:19 n I:I22:I3:I 43:21,23 mean 12:16 name 4:12 6:4 lip I:17 meaning I I:2 I3:I3 narcotics 27:2 load 45:7 13:17 23:1,3,7,22 nature 23:I642:II meant 13:2 43:2 located 3 I: I 6 near 31:7 measure 29:13 location 9:2 22:20 nebraska 1:1,10,18 mechanical 31: I 5 22:23 4:17 5:18 46:5,17 32:9,1141:9,16 · lodhia 1:4 2:7 3:4 necessarily 20:9 42:12,17 4:4,13 46:7 40:24 42:23 medical 2:I5 7:5,16 long 5:12,1414:17 need 29:3 37:I3 12:13 26:7 44:19 I4:23 15:16,23 38:25 medication 32:16 37:IO 39:1 needed I6:1,2 38:15 36:10 longer 30:3 40:23 38:I6 look 6:1511:712:3 medications 30:9 nerve 4:24 22:I8,I9 32:20 38:16,25 16:14 22:18 25:13 22:20,23 23:7,I3,15 medicines 2 7:3 27:10 23:22,23 24:1 31:14 38:22 39:2 looked 8:22 11: 1 32:2 39:14,18 4I:15 12:24 I4:21 22:8 mention 42:2 43:19,22,22 44:IO looking 26:I4 27:11 mentioned 8:23 nerves 32:I2 39:I 12:10 35:3 looks 6:23 7:I 7 I 1:1 40:I3,I9 41:2 42:I8 merit 3:5 12:17 25:7 31:19 neurologically I I :2 michigan 5:21 lot I3:12,20 neurosurgeon 5:2 middle 5:9 . low 32:10,11 40:5,8 5:15 i lower I3:21 midwest I:9 neurosurgeries 4:23 Iuers I :16,I6 2:8,10 mild 14:I2 24:I5,I6 neurosurgery 1:9 mine 10:4 3:12 4:1017:6,8 4:2I,24 minor 21:10 44:3 45:18,20 never 45:3 I lumbar 7:20 13:21 minutes 3 I :I I 33:19 nevertheless 14: 16 33:21 22:2131:8,24 new 21:16 23:5,6 m moment 22:4 newer 40:10 ~-m-ad_o_n_n_a---:I-,-,---1 months 8:21 10:18 noble 2:I3 16:5,I8 2 5 2 6 movement 37:22 16:2117:2,9 44:24 26:21 27:5 making 39:I1 : mrh5 27:I2 noble's I6:1 I 'mri 7:18 9:111:13 nonnarcotic 27:3 manage 38:23 management 39:12 II:I612:16,18,21 nonoperative 25:24 12:23 13:8 14:21,25 normal I4:11 manager '9 :15 -' 17:1318:1421:13 nos 4:I march 34:I3,I5,17 34:18,23 35:I2 21:24 22:5,7,13 notable 11:3 marked 2 :I 1 4 :2 30:24 32:I3 34:6,I I notarial 46:4,16 16:20 34:15,22 35:6 36:8 1 :notary 3:7 46:3,I9 note 2:I2,13 6:18,19 6:21 I5:10 16:21 I7:2 I9:I5 21:2I 22:3 37:6 38:I4 39:10 noted 28:12 34:4 notes 28:8 33: I notice 3:10 november 30:19,20 31:5 32:23 38:I4 39:IO 44:5 numb 40:14 I number 26:14 0 I o 1:I7 3:14:14 oath 4·7 • objections 3: I 3 objective 33:22 objects 18:5 obviously 9:17 I1:1819:15 29:11 43:12 . occasionally I 8:9 · occurring 23:6 october I: 10 39:24 46:17 offered 42:5 offhand 26: I office 6:I3 9:7 16:I I officially 46: I 6 oh 19:11 okay 6:23 7:19 I0:17 11:9 13:5 14:I5 18:I8 19:9 20:7,17 21:18 22:1 23:3 24:6,I I,I6 25:10,18,23 28:1,5 28:24 30:13 32:25 33:15,20,24 34:14 34:20 35:2,I4,20 37:16 38:7 41:14 42:24 43:11 I i I Veritext Corporate Services 800-567-8658 973-4 I 0-4040 [old- realtime] Page 6 i old 14:122:19 23:2 part 5:611:23 19:9 pinpoint 44:10 procedure 39:21 40:10,17 41:24 23:3 40:18 place 3:7 15:5 46:11 ; olds 14:4 particular 6:24 7:23 placed 38:21 42:16,21,25 43:4,7 omaha 1:104:16 8:1313:1014:2 43:8 44:7 plaintiff 1:3,13 ; once 15:7,24 15:417:1121:7 plan 11:23 26:25 process 5:7 23:8 ·one's 30:9 30:22 35:17 36:16 program 27:6,14 39:12 planned 27:18,20 . provide 16:19 ongoing 14:17 23:5 : parties 3:3 operations 23:25 party 46:13 ; provided 7:6,12,15 please 4:12 16: I 0 opinion 10:20 36:14 pass 20:15 point 8:12 10:7 11:19 20:12 23:19 public 3:7 46:3,19 36:1444:17 passed 5:7 patient 6:3,7 7:15 25:12 26:24 27:4,19 pull 18:5 opinions 36:2,3,24 purpose 9:8,14 opposed 7:15 14:17 7:18,25 8:8 10:24 28:11 29:20 31:22 25:2431:14 15:5,24,2517:10 22:16 28:5 32:5,14 44:20 pursuant 3:9 option 39:20 24:25 portions 40: 18 oral 5:6 patient's 8:3 push 18:5 43:22 order 11 :25 15:4,18 patients 8:5 16:8 put 28:1 position 10:20 11:19 24:5 19:12 40:2141:14,17,21 . possibly q ordered 12:4 15:1 42:22 30:2 i qualified 46:3 posterior 13: 17 21:12 people 24:18 27:23 quantify 22:21 postoperative 13:24 orders 12:6 40:24 42:15 questions 37:2 potentially 42:9 perform 33:12 original 3:11 quick 27:10 pounds 18:6,7,8,8 _o_u_ts_i_de_3:_:_17.:___ ___, performed 41:8 quickly 17:12 44:23 practicing 5:15 period 16:3 p r ---~-----1 peripheral 4:24 prescribe 15:4 p 1:12,123:1 22:20 r 1:4,12 2:7 3:4 4:4 32:19 38:6 p.m. 1:10 45:24 4:13 46:1,7 permanent 35:24 prescribed 16:3 pa 19:1,3,16 1·adicular 28:14 32:16 36:4,20 40:20,23,23 page 2 :2 3 :8 16 :24 1·adiculopathy 22:2 prescription 32:15 40 :25 42 :11 •12 19:10 27:1128:25 23:1 presence 3:17 pain 9:11,18 11:15 personally 16:7,10 radiofrequency peruse 17:12 presume 4:25 18:2 20:10,25 21:5 30:11 phenomenon 23:21 pretty 28:19 21:7,16 22:14,15 railroad 10:4,5,12 phone 21:21 30:19 previous 7:9 8:17 24:10 29:2,6,9,11 17:10 35:18 38:8 physical 2:16 10:8 10:14 22:1 29:22,24 31:8,11,24 ·• railway 1:5 previously 23:25 17:13 20:3 23:22 31:25 32:10,11,15 raman 4:13 25:3 26:9 27:1 print 8:6 21:22 32:16,20 37:12,15 rate 13:8 35:21 printed 8:4,4 "7 16 25 38 4 22 24 28:12,19 29:16,22 41:24 .J : ' :' ' 31:2133:13 36:7 printout 8:2 39:12,14,15,19 40:5 read II :22 19:14 prior 7:6 35:11 45 :1I,l 2,1 6 40:8,15,16,17,22 27:5 45:21 probably 6:18 8:20 physician 4:18 41:9,16,21 42:9,13 real 34:16 12:20 13:15 15:13 42:17 43:18 44:11 physician's 24:19 realize 28:21 20:22 23:20 38:24 : physicians 35:16 44 12 really 13:14 18:14 39:8 painful 40:11 picture 6:8 24:6 problem 16:1 Pinched 22:20 paragraph 27:13 1·ealtime 3:6 : pinching 23:14 problems 8:14 28 25 Veri text Corporate Services 800-567-8658 973-410-4040 [reason- snowden] Page 7 related 37:14 44:10 reason 22:14 33:21 reviewing 9:1 29:23 30:19 34:6,12 recall 6:8,11 7:4 I relative 46: 13 rhizolysis 30:2,10 35:11 41:17 release 16:22 8:1710:1 12:3 31:1,739:2540:1,2 seeing 6:917:7 15:11,1217:7 25:11 j released 17:9 40:7 41:7,18,22 seeking 9:13 11·elief 9:13 38:17 seen 12:2014:25 26:3 38:1145:17 42:16,2143:10,13 . recollection 6:7 40:25 41:23 43:5 43:20 15:24 16:8,15 17:3 , recommend II :9 relieving 40:17 rhizotomy 30:4 17:23 20:20 30:25 26:9,1029:1944:5 1·emarkable 11:8 right 5:22 6:1,11,17 32:22 44:16,25 45:3 remember 7:4,19 senti 40:23 6:18 7:3,23 8:14 44:7 recommendation 10:2 10:10,23 11:513:25 sending 39:15 render 10:20 36:3 16:4,9,1717:1,8 38:20 sensation 11:3 recommendations rendered 36:2,14 sensory 40:18 41:4,6 18:3 19:21,23 20:1 reoccur 41 :23 37:7 20:11,18 21:1,12,14 sent 6:24 24:25 recommended repaired 35:5 22:2,9,11,15,25 25:11 11:16 26:4 27:2 repeat 22:5 41:24 separate 7:16 24:23 26:17 27:19 repetitive 37:22 30:1,13 35:23 september 28:4 29:1 29:11 31:9 34:16 recommending report 7:21 9:5 37:6,19 35:7,21 36:19 38:10 13:10 25:5 26:4,19 11:13 26:25 service 25:17 38:13 39:7 40:6 record 8:3 25:13 set 3:717:1146:15 42:1,2043:11,16 29:1 32:4 recorded 5:25 reported 9:7 40:4 45:20,22 sheet 15:8 records 2:15,16 6:16 reporter 3:6,6 risk 41:8 short 15:15 reporter's 2:5 7:1612:13 16:11 . rmr 46:2 shoulder 8: I e-----s-------c show 9:5 17:1 18:14 reports 27:5 18:23 26:2 42:2 recurrent 34:25 requirements 36: II 19:9 21:25 25:5 s 1:12 3:1,1 redirect 2: I 0 44:2 residency 5:8,9 showed 12:23 22:2 sl 8:24 12:24 28:13 redo 8:21 12:10 resolution 31:8 22:25 34:1 reduce 29:6 response 4:7 31:7 showing 13:4 saw 6:16,24 8:21 reference 8: 16 restrictions 15:4,6 signature 3: 18 13:20 14:1,2 18:23 15:15,20,25 26:10 16:14 38:2 significance 12:22 20:2,17,22 22:8 26:11 35:24 36:4 referenced 15:9 significant 13: I 0,11 28:3,7,20 33:7,7 references 2 7: 13 result 14:22 23:11 24:13 34:10,16 35:9 34:2,19,22,23 44:14 referral 39:4,11 significantly 14:3 23:18 44:23 referred 6:12 30:9 results 12:20 20:12 22:7 32: I 40:5 saying 10:2 29:5,8 reflect 26:2 21:19 22:13 34:6 44:13 says 7:20 9:10,15,16 retrospondylolisth ... reflexes 11:3 28:13 simple 14:23 11:16 27:15 29:1 regard 14:6 27:7,23 13:1718:16 sir 4:20 45:6 return 16:22 36:15 · sit 6:2,6 33:2 44:17 scan 7:18 13:4 regarding 16:22 36:16 41:10,17 sitting 33:17 scanned 16:15 42:18 regenerate 41:3,5,7 situation 29:3 37:13 seal 46:16 returned 41:16 42:18 37:18 second 27:12 , regenerated 41:15 returning 17:15 six 5:16 secondary 5:7 i registered 3:5 review 7:18 16:20 size 18:13 see 10:18 11:13 rehab 25:1,11,13 28:8 45:21 small 9:6 12:21 14:9,11 16:24 reviewed 28:7 26:2 27:23 snow den I: 16 19:23 21:20 22:6 I I Veri text Corporate Services 800-567-8658 973-410-4040 [solemnly - type] Page 8 31:25 32:4,6 33:12 solemnly 4:5 stretch 23:21,22 take 5:6,1010:17 36:22 40:25 43:17 19:11 27:10,20 29:3 strike 6:2 34:5 solution 30:3 1 30:14 32:21 33:5 studies 32:13 44:22 somebody 10: 15 thinking 43: 16 32:19 39:16 40:1045:5 study 35: I stuff 8:5 taken I :5,9 3:5,9 thought 27:4 37:18 something's 22:22 sorry 6:20 13:23 subjective 28:21 5:23 9:6 23:25 35:6 39:19 three 13:4,14,14 19:3 27:11 34:21 29:13 35:11 46:10 · subspecialties 4:22 takes 5:12 25:24 29:25 42:4,7 sort 7:543:3 talk 9:1745:14 sounded 44:12 subspecialty 5:3 42:8 success 41:24 talked 11:1912:25 time 3:7,14 5:12 • source 29:24 south 1:14 suffering 3 3 :25 37:23 6:15 10:25 11:11,25 . talking 6:9 17:21 specialists 1:9 suggest 41 :I 16:3,16 17:14,22 specialty 4:20 5:5 suggested 19: 18 20:11 22:3 28:9 18:7 21:13 24:10 34:20 43:21 25:12 26:24 27:4,20 specifics I 0:2 45:12 suggesting 32: I suit 46:14 target 44: 11, 11 28:2,11 29:20 31: I 45:15 31:22 32:5,14 33:6 suite 1:9,14,18 4:16 tasks 17:10 18:4 specified 46: 11 33:13 ·spell 4:12 33:7 34:2 35:6 supers 10:6 tell 9:21,24 15:1 suppose 28:8 spinal 4:23 38:18 37:11 39:5,9,15 16:1717:12 21:18 supposedly 40:24 41:19 44:9 46:10 39:6,17 sure 21:10 29:21 tipping 13:18 34:9 46:8 spine I :9 4:23,24 5:5 7:20 13:21 14:3 33:14 title 3:8 telling 37:21 temporary 35:24 surgeon 16:19 today 6:2,6 26: II 22:21 spoke 18:24 24:20 36:4,20 surgeries 7:25 8:1 33:2 9:3 14:7 42:17 tend 15:17 told 12:14,16 32:10 30:18 spondylolisthesis surgery 7:9,22 8:17 term 14:17,23 15:15 37:20 44:5,15 45:8 8:22 9:18,19 10:15 15:23 30:3 40:23 top 16:24 14:10 11:12 12:8 13:16 terms 9:2 18:10 tops 41:1 spur 23:24 totally 43:24 45:15 stably 23:8 16:18,22 17:9 27:18 stand 33:18 27:20 32:20 34:19 trace 18:15 test 21:19 i standing 33:18 transcribed 3: 17, 19 34:24 42:10,22 testified 4:6 · standpoint 31 :21,23 43:25 45:21 testimony 3: 16 46:15 trauma 14:22 state 4:11 5:17 46:5 surgical 12:23 suspect 12:15 17:17 testing 20:3,12 36:8 traumatically 14:17 stated 8:19 37:11 tests 20:16 21:21,22 treating 35:16 32:18 43:6 38:14 thank 44:1 sworn 4:5 46:8 treatment 39:12 statement 2:14 thempy 2:16 25:4 41:18 symptoms 9: 17 states 1:1 stiff 9:20 11:15 24:4,18 28:14 truth 46:8,9,9 27:2 stimulator 38:18 · trying 23:7 25:24 31:3,14,15,16 32:2 thigh II :5,6 40:3 41:8,10,15 thing 9:17 21:7 30:7 twisting 37:22 39:6,18 42:18 43:12,14 44:9 things 21:10 37:25 two 34:11,19,20 stipulated 3:2 38:1,2 44:12 stipulations 2:4 41: I t , think 5:24 9:22 12:2 type 14:16 15:2 46:12 f----- - - - - - - - - - 1 12:4,25 13: I 14:24 17:15 23:10 37:22 street 1:17 3 :1, 1 4 6 : 1, 1 15:1717:18 18:11 39:18 40:14 42:12 strength 11:218:13 t 21:23 25:6 26:18 Veritext Corporate Services 800-567-8658 973-41 0-4040 [types- years] Page 9 types 33:12 weighing 18:5 typically 5:10 9:15 • went 25:2 39:9 13:19 14:9 15:14,19 I whereof 46:15 23:18 30:10 32:19 • wife 24:20 william 1:13 41:20 43:8,15 • wise 15:6 u witness 2:6 3:16,17 u 3:1 3:18 35:15 45:23 uh 5:19 11:24 13:7 i witness's 4:7 15:21 17:1919:20 wolfe 1:16 26:20 28:15 37:8 words 6:8 15:5 38:19 39:23 24:14 26:3 39:3 unchanged 28:12 work 10:5 16:23 undergo 42:15 20:4 26:9,10 27:5 understand 5: 14 27:13,17 37:21 21:444:1 38:25 40:2,7 43:7 understanding 20:5 45:6 united 1:1 worked 10:3 unreasonable 18:9 written 5:7 use 26:8 30:10 wrong 29:4 usually 8:3 9:16 wrote 44:24 18:16 30:9 ! ! ! X v verify 12:13 versus 22:19,19 vertebrae 13:18 virtually 29:17 visit 2:12 7:24 9:14 15:3 18:22 28:6 30:17,23 visits 16:16 vs 1:4 w X 2:1 y yeah 8:9,12 14:5 17:6,17 20:6 21:5 25:22 35:22 40:1 year 5:10,12 8:20 14:441:1 years 5:16 14:1 41:1 waive 45:22,23 waived 3:19 walk 33:19,21 walked 31: 11 walking 31:4 want 25:13 wanted 29:23 way 14:20 22:21 24:6 we've 32:20 Veri text Corporate Services 800-567-8658 973-410-4040 \ \ SPINE DANIEL P. NOBLE, MD ~~~1[~----------------~CH~R~I~ST~O~P~H~E~R~M~.~M~C~W~IL~L=IA~M~S~,~PA~-~C PATIENT: David Bliss EXAM DATE: June 24, 2010 PRIMARY CARE PHYSICIAN: Charles Kreshel, M.D. CHIEF COMPLAINT: F/U left L3-4 microdiscectomy. ' HISTORY OF PRESENT ILLNESS: DGtvid returns today wishing to return to work. He feels better at this point than he has in a long time. He is doing better in all areas. He does feel he can return to yvork at this point without· any heavy lifting. REVIEW OF SYSTEMS: Unremarkable for any recent illnesses or other complaints. PHYSICAL EXAMINATiON: None today DIAGNOSIS: 1. SIP left L3-4 microdiscectomy, DOS 5-6-1 0 2. ' 8/P left L4 laminotomy with lateral recess decompression and discectomy, DOS 2-10-03 RECOMMENDAriONS: 1. Rllturn to work. The patient may return to duty effective 6-25-10 with restrictions as outlined on his return to work form.. Restrictions.remain in place until11-6:1 0. 2. MMI. I do e~pect he will be at MMI11-6-10. 3.' Return to' clinic 8-12-10. · Daniel P . Noble, M.D./ap ./I EXHIBIT NO. _) '-?1- . OCT 1 6 201~ USA GAJMMINGER, RMR, CRR PHONE 402.484.0400 FAX 4{}2.484.6625 4220 PIONEER WOODS DR., SUITE B UNCOLN, NE 68506 NSC00015 \ _ EXHIBfTNO. _,__, CCT 1 6 2UI2 liSA GRIMM INGER, RMR. CRR ' I 1JAviJ. ~(/if; '\:,. . ' l ..,:. . ., ~~t ·1f?Ji~rJ1:'4JtA'Aw 'f}. : J f I t...Jl.. 1,_- · ·. eV~ft? ..:V' !f~rl<~tJJ!ly 1Pj 3~ ?H:~ M • . t/"f• Cf:J ;5 C"'r/llt11/ Pw/iM-' ·~J~ , ,·'. -, ;.WI . t:~ '.,{'.@'AI;; .b, '1' if;:, ·" rer;(lqjj~ .'i'.,. iVIjf' w. t' J.~~y.,;.,i/' f}'l;(•l-: · :ii: ·#!.~ :;rt#l«ft-t; reM.f w,/le ~t- ~ 6el'lt ttr . b)hd h'iff"11 J, 1ZJf ~ f4 (,ine :I tUttYc; bt'l/.t .J:br The. rep4. ir A /".:1 ,'( eti! rf 7t,'j !,J ll.llf//1,/lj t1.r1vnJ C:&.N anJ /11f7'}f 14 d"'j qf 4 dfrK 4nd 'cutpdcr rt..e ;e!:d f" tf ; ' 7-tJ Fi I I /f) /;; r f L (1}1C't1 ·{lvfr: c?/11 v;WtliR'tl ..,r :1/t~ e,j· r~,~ (:ft'r; 4,11J 1 ,. 1 t:.(/tren·if~. ()ne t)'f ,R 117r:-n (.A'f feJ'J,'II:n1 1 ?~!I r{z?~ 5"' t{;lt;>eR.1 dl"c. t/)t.. 0 of: <:t"J due t'i? ctn t!l't:.? ;tJc,,t :£ 4177 tuA~ k'IJ..mr fle dl{;fer""'t &orrfl -FiJr e6f,~ dt?ef /I- ~fl[f;.rf'rlf Jt./e cPf/f Tp dt+trr.-n f fr;~1 of Ct,tflj. I111 /f("C'iftf'/ :1~m.~ ;'}(/~fit: i-l.erftl !,·flY'~ I tr/IYiff ~f:'e. 4'111 ~tltlr:t/11 t&Ji~· to/.'/ at /ol11 t ::J'M . • &f RNI ~11J tl~~~ 1 llt7f tlr q hc-1+"1; /!)A). ~flif h<tj cr r;t,~ A:pf. :14('' tflre, f,p'tir on rc~t!if.J;!}I"VV/f I 'f',fttt9 rt!f.fc H ~re_:tJf rt7 li-f:r (.uyft.ln? o~~Cr 'i~zt PfJ:f~~f «f?l4v•tr:,, ~. wntl l?t~ tb tf?;.. t4w: tr(/}y/))11} · 11?:1/fe Cf)r/;j fftPCl f'ilt? me. !If -1/1~~111 t·d{r;'tlfe.. /tJ .1lJ 644 TIJ t{)or~ f J(/11 tJtf q(/ fft.1'n 11rJ, r#/JJ.;/"r:t~~~fl j·fiffn.?~. I:J blft.k /;1 t?N /r;t~ plct't1e eJI.I/ ' ~ . nllltJ .n,,,Ir;r.,.,.,~,.r K<?~ I .,! f • . / 11/L NSC00158 .• AUG-05-2010 20:37 ' From:40248.:16625 Aug. 4. 2010 !2:58PM No. 6451 BNSF RAILWAY P. l Medical and .l3nviroll1llental Health Department A'ITENTIOH PRO\IlDER vu~ ro the wol/C level of the posiffon /l&!d by Ws ampfllyee 811rflot the natute of his aondllion, p!Ms& complete this blisfform anrJf(l)(bsdl.trJ IJNSF s.tBIJUBIJ.i2oO. Thank you. sta~nt of Job Awareness General Job Duties Carman TO PROVIDER: Re: ( Dr. Daniel Noble MD Davtd Bliss 61'2111955 EXHIBIT NO. CCT 1 6 2012 LISA GRIMMINGER, RMR, CRR Some of the physical r~ments of the po9ition include: • Mil$t be able to .lllll.lm quick h.snd and leg IIUlvementa -Uue iQ the nature of the position, i.e. working arolllld motllng and hoazy cquipmcm~ i,t is imperative that an imlivldual is awllle M the environment and able to :r¢$f>Dnd quickly to any unsafe condition. • Perform car 1111d eqlliplllent inspectiOn>- Requires an individual to proficiently walk on uneven temin lllld bllllast UJ jnspeet :for any '!lMaf~ conditions ox mecbllnieal defects. • Climb on/off equipment~ Thi$ involves lifting one footapproximll!aly 3 ft. onfu a l•ddet while rea~bing up to grasp tho grab irons with both han.&: and pUll tileit weight up onto the • ladder. 'I11i1 cannon waintl'iu•• ~epl!ICI)N Andler repair& air btalro plpes, valVe$ or fittings, Slllbts, air hose~ and athO< "'!llipjncnt .. rr:qulred to maintoln a s~f~ train. • The Clll'IIlllD must be able co oxnibit pbygj\ml nrenglh sufficl•nt "'!Wcarry pulll ~nd pull objeots weighing b~etn2S pounds (frequendy) to 50 pounds (occuionally); pull. pusb, ond po.silion equipment orcac eomponw~ whtllmakiog ~epai~; ooOMiOnftllj' c11r wheels; bend stoop occ:llrionally II$ reqlllred whoQ making "':!'•ira to :&:eis,bt com; climbing onto ~nd off of rail cllrS; maintain bl!lauce whllc cllmbmg on stAin~ or Jaddl!rg to repa!t• rolling stock; per(ann occasional overhead work, remain srandlng or ~tting for more than~ of every work dAy with lhe opportunicy to pOiiodlC3l,ly olla1tge positioru: for comfort. Soma work is pmonmd In below g!I)Und worhpaces to nccess \llltl.ercarJ:iage of rail car. • Tile employee must be abla"' stOOp, bend and twlstlow back on ocoP$ional to frequent basil; muet be able. Ill ~. crawlllnd crouch <lll occasloll!ll to ftequ.ent bMis; must bo able to walk on lllgled and UIIC~CJ! ttound; must 'bl> a"ble to climb and WOl:l: atelevationa > 12f~etabovo grouo.d Jove!; must be able tq "'movo and replace C01ll!)Onents on rolliog stOCk (lihocs, couplor assemble•, .a.lr brAke &}'$!ems), use powcrtooi. a~d nWl power tooL;, ruuiconduct.inspeclions of rolling s!Oclc (railroad cars) in a J'lln:! or an a track. '"'""'mil t have considerad the above job responsibilities in reaelllng my professional opinion regarding thfs ernployae's rnedloal condition and capability to work. (/ :.,)( ) 09/26/2011 09:07:4:3 AM Remote ID -> Page 14 r zs EXHIBIT NO. .-_;;- f OCT 1 6 2012 liSA GRIMMINGER, AMR, CRA 8006 Farnam Drive, Suite 306 Omaha, Nebraska 68114 ph: (402) 398-9243 fax: (4021 398-9263 Account#: 104768 Requesting MD: Charles L. Kreshel MD Family MD: Charles Kreshel MD Case Manager: David R Bliss 1801 Preamble Lane Lincoln, NE G8621 (402)476-91 07 OG/2111966 6/8/2011 Dear Dr. Kreshel: David Bliss is here in the neurosurgery clinic in consultation. Mr. Bliss is a pleasant 55 -year-old who had recent surgery in April including redo diskectomy at L3-4. He has had previous diskectomy at L3-4 as well as what appears to be one at L5-S1, although he says he thought it was L2·3. He has had some pain in his legs and back before surgery. After his last surgery in April he has really had a hard time bouncing back. He has a lot of mechanical back pain. He has had atrophy in his left leg, although it is improving with physical therapy significantly. He has noticed a lot more pain in his back. He is achy and stiff and has limited lifting because of this. He has no numbness. He does have some quadriceps atrophy and weakness overall he says. The patient is alert, oriented times three and appropriately dressed with normal affect. The neck is supple without masses. Casual gait is symmetrical, with normal heel-toe progression. Heart has regular rhythm, with no murmur. The lungs are grossly clear to auscultation. No carotid bruit is heard. The lower extremities demonstrate normal strength, reflexes, sensation and muscle tone bilaterally_ He has mildly decreased muscle bulk when looking at his left thigh compared to his right thigh. No joint instability or crepitus is noted in the lower extremities exam. Patrick's maneuver bilaterally is negative. Straight leg raise is negative bilaterally. Dorsalis pedis and posterior tibialis pulses are regular and full bilaterally. There is no lower extremity edema. There is no clonus at the ankles bilaterally, and Babinski reflexes are absent bilaterally. Range of motion of the spine is full without increased pain. Palpation of the spine is nontender, although he has 2 well healed lumbar dorsal incisions in the midline from his spine surgery. Imaging was reviewed including MRI of the lumbar spine from 3/18/11. This was preoperative before his last L3-4 diskectomy. There is evidence of recurrent disc herniation at L3-4 with com pression to the L3 nerve root. There are modic endplate changes at L3-4 significantly. There are also some endplate changes and disc degeneration at L4-5. There is disc bulging, but no significant nerve root compression. At L5-S1 there appears to be a laminotomy on the right. MNASS00014 OS/26iZ011 09:07:4:0 AM Remote ID -> Page 101 zs Page 2 - David R Bliss There is facet arthropathy severe at L5-S1 and some foramina! stenosis on that right side compared to the left, though both sides are having foramina! stenosis. There is also facet arthropathy at L3-4 and L4-5 that is more minimal. There is hypertrophy of the facets at L3-4. There is a slight posterior spondylolisthesis at L3-4. The remaining discs appear fairly normal. ASSESSMENT: 1. Lumbar posterior spondylolisthesis l3-4. 2. Lumbar spondylosis L5-S1, L3-4 and L4-5. 3. Previous laminotomies, diskectomies. 4, Disc degeneration. PLAN: David has continued mechanical back pain. I believe with his job on the railroad he is going to be somewhat limited given his multiple history of disc degenerations. He has not had any recent imaging. We will get an MRI of the lumbar spine. I discussed operations including diskectomy and fusion. We discussed limitations with and without surgery as well. At this point he would be a candidate for a functional capacity evaluation to see what his level of ability is. We will get him set up for his studies, and I will contact him with the results. Sincerely, ~- Keith R. Lodhia, MD Dictated but not proofread MNASS00015 09/26/2011 09::57:43 AM Remote ID -> Page 16 r 29 Charles L. Kreshel MD 3100 N 14th St STE 201 Lincoln, NE 68521-2134 RE: David R Bliss Account#: 104758 DOB: 08/21/1955 Exam Date: 06/08/11 Ordering Physician: Keith R. Lodhia, MD Referring MD: Charles L. Kreshel MD Family MD: Charles Kreshal MD MIDWEST NEUROIMAGING Dear Dr. Kreshel: 8005 Farnam Drive, $tlite 202 MAGNETIC RESONANCE IMAGE OF THE LUMBAR SPINE WITH AND WITHOUT INTRAVENOUS CONTRAST ------ Omaha, Nebraska 68114 401.390.4100 fax: 390-4103 CLINICAL INDICATION: Low back pain, leg pain. Chri$tian 8ruce Baron. DO Schl~epfer. MD Erik Pedersen. MD TECHNIQUE: Sagittal and axial pre and post contrast T1 weighted images and also T2 weighted FSE images of the lumbar spine were obtained. 20 cc of Magnevist contrast to the normal technique. Don Evans, MD FINDINGS: Evaluation of the lumbar spine demonstrates a trace of retrospondylolisthesis of L3 on L4. There is noted to be end plate degenerative marrow signal changes at the level of L3-4, L4-5 and L5-S1. No evidence to indicate fracture. The conus medullaris ends at the level of L 1-2 and demonstrates normal signal. The visualized sacrum and Sl joints are noted to be normal. At L5-S1 the disc space demonstrates postoperative changes of right hemilaminectomy change. There is a diffuse disc bulge. There is a mild end plate osteophytic ridge. The facet joints demonstrate moderate hypertrophic change. There is mild bilateral foramina! stenosis. No central canal stenosis. At L4-5 the disc space demonstrates decompressive right and left laminectomy change. The disc space demonstrates mild to moderate loss of height. There are end plate erosions. There is vacuum phenomenon. There is a diffuse disc bulge with an end plate osteophytic ridge. Disc and osteophyte extend into both the right and left foramen. There is moderate left and mild to moderate right foramina! stenosis. No evidence for central canal stenosis. The facet joints demonstrate mild hypertrophic change. At L3-4 the disc space demonstrates decompressive left laminectomy change. There is a diffuse disc bulge with an end plate osteophytic ridge. There is a focal area of disc protrusion extending to the left paracentral aspect of the canal. This is best viewed on sagittal image #9 and axial image #9. This is effacing the left side of the thecal sac. This is surrounded by areas of granulation tissue. There is no underlying central canal stenosis. No significant foramina! narrowing. The facet joints are mildly hypertrophic. RE: David R Bliss MNASS00016 OS/Z0/2011 08:07:43 AM Remote ID -> Page 17128 Account#: 104758 DOS: 06/21/1955 Exam Date: 06/08/.11 Page 2- Lumbar MRI At L 1-2 and LZ-3 the disc spaces are normal. There is no central or foramina! stenosis. IMPRESSION: 1) Small left paracentral disc protrusion at L3-4. Correlate clinically with symptoms. 2) Bilateral foramina I stenosis greater on the left than right at L4-5. 3) Mild bilateral foraminal stenosis at L5-S1, 4) No central canal stenosis. 5) Facet hypertrophic changes of the lower lumbar spine. Thank you for the courtesy of this referral. MIDWEST NEUROIMAGING soos Farnam Drive, Suite 202 Omaha, Nebraska 68114 402.390.4100 fax: 390-4103 Bruce Baron, DO Chrhtian Sch\aepfer', MD Sincerely, frlk Pedersen. MD Don Evans, MD Christian S,chl~j)fer, MD. CS/mw Dictated at Midwest Neurolmaging, 68114. 06/08/2011 Electronically appro•;ed by: Midwest Neurolmaging Date: 06/09/ll 09:43 MNASS00017 09/26/20 II 09:07:43 AM Remote ID -> Page 13/29 -1David R Bliss 1801 Preamble Lane Lincoln, NE 68521 (402) 476-9107 06/21/1955 Account #: 104758 Requesting MD: Charles L. Kreshel MD Family MD: Case Manager: June 13, 2011 I spoke with Mr. Bliss in regards to his MRI scan showing multi-level degenerative facet changes. He has a disc herniation which was smaller than previous surgery in April. Dr. Lodhia did feel that he would be a surgical candidate consisting of a lumbar fusion L3-4, L4-5 and L5-S1. At this point he seems to be getting by. Dr. Lodhia has recommended a functional capacity evaluation for further evaluation of his current work status. Mr. Bliss will give us a call once this has been completed. /L / ~ MIDWEST NEUROSURGERY 8005 Farnam Drive, Sulte 305 Omaha. Nebraska 6~1.114 Phone-: 402.398,9243 Fax: 402·398·9253 www.m\dWesrneurosuqwy.com 201 Ridge Street, Suite 305 Coundt Bluffs, lA 51503 ?hone: 402-390-4115 Fax:: 712-256·3059 Les\le C. Hellbusch 1 MD Ooo~(as J. Long, MD Stephen E. Doran, MD JohnS. Treves, MD f"'/k-.-... /Jtark J. Puccioni; MD John P. Calabro, PA-C Wendy J. Spangler, MD Bradley s. Bowctlno, MD Keith R. Lodllia, MD .... /0d" .. · · · · . Guy M. tAusic, MD -~~. Julie Walsh, Charley Pugsley, Michele {Shelley) Julin, John Calabro, David Siebels, Kim Nelson, Brittany Lanoha, Krlstlll Henne5sey, Keith R. Lodhia, MD JCIKRL: mw Dictated but not proofread PA-C ?A-C PA·C PA-C PA-C PA-C PA-c PA·c John Dunn Ctinic Administrator Electronically approved by: John Calabro Date: 06116/11 15:33 MIDWEST NEUROIMAGING 8005 Farnam Drive, Su-ite 202 Omaha,. Nebraska 68114 Phone: 402.390.4100 Fax: 402-3904103 MNASS00013 0912.612011 09:07:43 AM Remme ID -> Page 9 r 29 8006 Farnam Drive, Suite 306 Omaha, Nebraska 68114 ph: (402) 398-9243 fax: {402\ 398-9263 Account#: 104768 Requesting MD: Charles L. Kreshel MD Family MD: Charles Kreshel MD Case Manager: David R Bliss 1801 Preamble Lane Lincoln, NE 68521 (402) 476-9107 OG/2111966 07/13/2011 David Bliss is here today in followup and consultation after undergoing functional capacity evaluation. Mr. Bliss repcrts having increasing back and leg pain along with numbness into the balls of his feet. We had previously evaluated him and found his multi-level degenerative change along with multi-level previous surgeries. We had recommended the possibility of an L3 through S 1 lumbar fusion. Due to his increasing pain, we are seeing him lor further evaluation. He is alert, oriented times 3, affect was appropriate. Gail was antalgic with a leaning wide based stance. He has mild decreased bulk into the left thigh as compared to the right. Motor strength is considered about a 5. Sensation is decreased in non dermatomal pattern. He has no clonus and Babinski reflexes are absent. Straight leg raise causes · lumbar back pain. He has a well healed lumbar incisional site. ASSESSMENT' 1) Bilateral lower extremity pain and lumbar back pain. PLAN: David Bliss presents today with worsening symptoms. We have recommend proceeding with EMG studies of bilateral lower extremities along with a repeat MRI of \he lumbar spine for further evaluation. Mr. Bliss now reports pain in the S1 distribution which is increased in intensity since previous examination. Therefore we will repeat his MRl scan. We did briefly discuss surgical intervention consisting of a lumbar fusion L3 through S 1. We will plan on seeing him back once the studies have been completed to further discuss treatment options. ~z/cc /' ~. John P. Calabro, PAC ~- Ketth R. Lodhia, MD Dictated but not proofread MNASS00009 09/ZB/ZO 11 os:o7:43 AM Remote ID -> Page 11/29 Charles L. Kreshel MD 3100 N 14th StSTE 201 Lincoln, NE 68521-2134 RE: David R Bliss Account#: 104758 DOB: 06/21/1955 Exam Date: 07/13111 Ordering Physician: Keith R. Lodhia, MD Referring MD: Charles L. Kreshel MD Family MD: Charles Kreshel MD MIDWEST NEUROIMAGING Dear Dr. Kreshel: SOOS farnam Olive, SUite 202 MAGNETIC RESONANCE IMAGE OF THE LUMBAR SPINE WITHOUT CONTfMST. --- Omaha, Nebraska 68114 402.390.4100 fax: 3904103 CLINICAL INDICATION: Bilateral leg pain, greater on the left than right, back pain. Bruce Baron, DO Christian Schtaepfer. MD Erik Pedersen. MD Don E'fil.nsl MD TECHNIQUE: Sagittal and axial T1 and T2 weighted FSE images of the lumbar spine were obtained./ FINDINGS: Evaluation of the lumbar spine with comparison to prior examination from 06108111. The lumbar spine demonstrates \he alignment to remain stable since prior examination. There is a trace of retrospondyiolisthesis of L3 on L4. Vertebral body heights demonstrate no areas of new marrow signal abnormality to indicate tumor or infection, There is extensive end plate degenerative marrow signal changes at the level of L3-4, L4-5 and L5-S 1. The sacrum remains stable in signal. No new abnormality of the Sl joints. At L5-S1 the disc space demonstrates postoperative changes of right hemilaminectomy change. The disc space demonstrates disc space desiccation. There is a diffuse disc bulge and end plate osteophytic ridge. The facet joints demonstrate moderate hypertrophic change. The appearance of the disc is noted to be similar to prior examination. There is mild bilateral foramina I stenosis. There is no new area of central canal stenosis. At L4-5 the disc space demonstrates post surgical changes of bilateral laminectomy change. The disc is demonstrating moderate loss of height. There are end plate erosions. There is a diffuse disc bulge and end plate osteophytic ridge. This extends into both the right and left foramen. There is moderate left and mild to moderate right foramina! stenosis. The appearance remains stable. The facet joints are hypertrophic. No new area of central canal stenosis. At L3-4 the disc space demonstrates postoperative changes of left hemilaminectomy change. There are elements of granulation tissue seen along the thecal sac. The disc is narrowed with a diffuse disc bulge. The small area of disc protrusion within the granulation tissue is noted to be similar to smaller than on prior examination. RE: David R Bliss MNASS00011 09/26/2011 09::57:43 AM Remote ID -> Page 12./29 Account#: 104758 DOB: 06121/1955 Exam Date: 07/13111 Page 2- Lumbar MRI Disc and osteophyte extend into both the right and left foramen. There is noted to be mild inferior foramina! stenosis, similar. There is no new central canal stenosis. At L1-2 and L2-3 the disc spaces are noted to be normal. There is no underlying central or foramina! stenosis. IMPRESSION: -- 1) Bilateral foramina! stenosis greater on the left than right at L4-5, stable. 2) Mild bilateral foramina! stenosis at L5-S1, stable. 3) No new central canal stenosis. 4) Post surgical changes at L3-4, stable. MIDWEST NEURoiMAGING BOOS farnam Drive1 Suite 202 Omaha, Nebraska 68114 402.390.4100 fax: 390-4103 Bruce Baron, DO Christian Schlaepfer, MD Erik Pedersen, MD Den Evans, MD Thank you for the courtesy of this referral. Sincerely, ~J ~~ ~~- (__~~- Christian Schlaepfer, MD CS/mw Dictated at Midwest Neurolmaging, 68114 07/13/2011 Ekolronically approved by: Midwest Neurolmaging Date: 07il4111 09:29 MNASS00012 Neurology JOHN C. GQLDNER, M.D.· RONALD A. COOPER, M.D. JOEL T. COTTON, M.D. PHONE 402 354-2000 Coruu(tation • 'E[ectl'omyogl'<L]!It\j ROBERT R. SUNDELL, M.D. DAVID A. FRANCO, M.D. T. SCOTT DlESfNG, M.D. FAX 402 354-8645 I'l'.'DlAN HILLS MEDICAL PLAZA • 8901 WEST DODGE ROAD, SUITE 210 • OMAHA, NEBRASKA 68114-3442 ELECTROMYOGRAPHY I NERVE CONDUCTION STUDY REPORT I NAME: David Bliss DOB: 6/2111955 FILE#: 2011-2014 PHYSICIAN (S): Keith Lodhia, M.D. DATE: 7113/2011 NERVE CONDUCTION STUDY: MOTOR: Stimulating Nerve Lt. Peroneal Rt. Peroneal Lt. Tibial Rt. Tibial knee-ankle knee-ankle knee-ankle knee-ankle Recording ext. dig. brevis ext. dig. brevis abd. hallucis abd. hallucis Distal Proximal Latency Latency (msec) Cmscc) 5.3 5.7 5.7 5.6 14.5 14.3 14.1 15.0 Amplitude Distance (N~Nmmal) _J:&.!nL N (3.9/3.4) N (4.014.5) N (7.1/5.9) N (8.3/8.1) Conduction Velocity (m/sec) 9/41 9/39 9/42 9/41 46 45 50 44 Normal (mise c) 38-65 38-65 38-65 38-65 SENSORY: Amplitude Nerve Lt. Sural Stirn ulating Recording posterior aspect lower leg lateral maJlcolus Latencv 2.8 CN~Normall N Distance Normal 14 ELECTROMYOGRAM: Muscle Lt. Lt. Lt. Lt. Lt. Lt. Rt. Rt. Rt. Rt. Rt. tibialis anterior medial gastrocnemius peroneus longus vastus medialis tensor fasciae 1atae abductor hallucis tibialis anterior peroneus longus tensor fasciae latae medial gastrocnemjus vastus medialis Fibrillation 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Motor Unit Potentials Fasciculation 0 0 0 0 Normal Normal Normal Nonnal Normal Mildly large, polyphasic motor units Mildly large, polyphasic motor units Mildly large, polyphasic motor units Normal Normal EMG with nerve conduction studies oftbe lower extremities was done at the request of Dr. Lodhia on a patient with left more than right lower extremity pain and prior back surgeries. (CONTINUED) Neurology LLP B901 West Dodge Rood &>ita 210 omw,N-..SS114-344l! Neurology00001 DAVID BLISS July 13, 2011 PAGE TWO SUMMARY: The peroneal compound muscle action potentials were normal and symmetric. The tibial compound muscle action potentials were nonnal and symmetric. The left sural sensory nerve action potential was normal. Needle examination of the left lower extremity was normal. Needle examination of the right lower extremity demonstrated mild chronic stable neuropathic motor unit changes within the right L5 myotome. IMPRESSION: Abnormal EMG and nerve conduction studies of both lower extremities. There is electrophysiologic evidence of n. No abnormalities were noted in the left lower extremity. Clinical correlation is needed. a mild chronic right LS radiculopathy without evidence of uncompensated or ongoing denerva TSD:pjf NeurOIOijy ~Lf' 8901 West Dodge Road Sutta 210 Oma!», NebrMka68114-3442 Neurology00002 . 0912'012.0 II 09:57:43 AM Remote ID -> Page 8 I zs Account#: 104758 Requesting MD: Charles L. Kreshel Family MD: Charles Kreshel Case Manager: David R Bliss 1801 Preamble Lane Lincoln, NE 68521 ( 402) 476-91 07 06/21/1955 July 15, 2011 MIDWEST NEUROSURGERY I spoke with David R Bliss's wife in regards to his E.MG study showing chronic radiculopathy. No new or acute changes. In regards to the MRI scan this shows three-level lumbar disk degeneration as previously noted. No new disk herniations or listhesis. 8005 Farnam Drive, Suite 305 Omaha, tlebraska 68114 Phone: 402.398.92.43 Fax: 402-39e-9253 VtWYJ.mldwestneurosurg:ery.com ~/Cr~­ /. 201 ftidge Street, Su!te 305 Councll Bluffs, !A 51503 Phone: 402-390-4115 fax: 712·256·3059 John P. Calabro, PA-C leslie C. Hellbusch, MD Douglas J. tong. MD Stephen E. Doran. WD John S. Treves, MD Mark J. Puc:doni. MD ~ MD Keith R. Lodhia, JPC/KRUimh Dictated but not proofread Wendy J. Spang\er1 MD Bradle>• S. Bowd!no, MD Keith R. todhla, MD Guy M. Music, MD Electronically approved by: John Calabro Date: 07/22/11 08:36 Julie Walsh1 Charley Pugsley, Michele {Shelteyj Julin. John Calabro, David Siebels. PA-C PA·C PA·C PA·C PA-C Kim Hetson, PA·C Bri.ttany umoha, flA·c Kristin Hennessey, PA-c Jolln Dunn Clinic Achtinistrator MIDWEST NEUROIMAGING 8005 Farnam Drive, SUite ZOZ Omaha, Nebraska 68114 Phone: 402.390.4100 Fi!M: 402-390·4103 1 MNASS00008 • • MJ\DONN.-\ REHAflll.JTJ\T!ON HOSPITAl. OUTPATll"NT Cl.lNlC NOTE ON: flli'<, DoviJ R D.\TF Ol' SERVlCR: 1)7 /26/2011 RFI'ERRING PHYSICIAN: Kdth Luhdi:>, M.D. RFASON POR REFERR/\1.: Rc;h:'l.bilitation evalu:uion :uld recorntncndations for: and left leg pain. TIME IN: 2:00 ~pent low back pain TIME OUT: 3:15 Over 60 minutes were chconi~.: <li~cussion tothy whh D:1vid :1nd his wife, the ntt\iodty of \Vhich w:is in evaluation. C:1!'it: ;lnd ro:lnagcmc.nt, and p:nicm cduc:tcion. HISTORY 01' PR"SENT ILLNESS: Da,id l\U, is" plcas:mt 56-yc'<lr-<>ld gcntlcm,tn who ,va' referred here by Dr. Keith Lohdia for c,·ahntion <>flow back p~in. He hO> a fairly complicntcJ history. ln 2003, he UtH.lt:f\\·tnt ~n 1.3-4 lt1minectomy due to a tHsk herniation th:u was causing a lot nflt:fr leg ~ymptom_s. lt sounds Eke time w1s weakne" in the left leg o.< well as possible footdmp and significat>l poin. He responJcJ wt:ll to the surgel)' and had been working with rhe railro:1d since th!lt time.:. Thi:; inithtl surgery was done by Dr. 'Joblc. In the spring of last )Car, he started to dcvdop simllor >ytnptoms going down rhe leg. He un~o.h:.rwcnt :'I microdi~k<.:ctorn~ in hhy with a follow~ up exploration in /\pril of thb }'C::lr. He still was h;1vi11g: some ongoing ~;ymptoms am\ ~ought ~n opinion by Dr. f .ohdia !'lt l\1iUwcst Neurosurgery & Spine Spc.:cbl..ists in Om:thn. He. revicwt.:d thl: lmaging studit:.:; al''lli fdt th:lc it wa:; primotrily mcchnnicallc>W bat.:k pain. Thcy t.hd repeat an !\·flU and 1•.li~cug3cd ~urgit~i opti()OS. H~ ~ubst:9Uently unDerwent functional c2pacity examination hue in Linculn •rollnd hteJunc or the beginning of july. l [c rolemed the tcor prttty well but the: following J;J.y w?.s h:wing an increase in his pain. not only the low back bur al~o hi.s ldt leg symptoms wen.: worse. He ~aw Dr. I.ohdia ~ga.in who rc{)t:.:m:d the J\.1RJ and obtained ekcrrm.liagnnstic smdies that arc discu~sed late.r. · Aftc.:r discu~!iing \h(,; next sutgical optinn whkh wou\J cs.'>enti~Uy be :t mn1tikvd fu:-;ion, Dr. Lohc.li:t .refern.:d David ht.·.rc for further cvaluatiun and recom.mcndation.'\. Toda)· ht: su1~t:s rhftt his pain is \VOrsc in the !ow b~ck comparc<l to the leg. He generally fcds the best if he is lying flm on his back. ,\dvity, C>pecially frcque:H bending ond lifting, bother him. l [e also h., difflcnlty with !atcml bending, especially rn the left. Ht. feds like h~ ha':i gcncral :ttrophy :\.od wcaknc:>s in the kg~ but that tO.is h:ts gotten :-omcwhar better wi£h phy$icai therapy. He is wotking withJc:remiahJurgcn~t:n here in mwn 2 tim~;:s pt.r week doing a v~ricry of ~trcngcheni.ng and ~ttc-lchc~ along with modRliii\:.$. Currently fot p:-~in t:Ontrol he is ptimaril}r taking Tylenol frequently as wdl !"l.s some tratnadol that is pt<;scribc-d thrc>ugh his prhrmry phj•_.:.ician, Dr. K.t-eshel. :\:-; rhis is work n:lat~:J, David is frusrt:ttc.:d wlth the fact that his pn:.vimls office job w:-~s no longeravaihblc after one o( his :mrgcries :tnd h~: h<l~ bc(.;n dojng more mRnu:d ['i\bor. I-Je h;-\:> not bt:en bad; to work sinct his mo<r recent surgery in April. Dr. Noble felt that it would rake M kast 3 montho to get back to light to \!.-\DONNA llHL\llilJT,\TION HOSPlTAL OUTPATIENT CfJ).J!C ).J()TE I ~AME: ll\i", D.vid R SERV!CL:: DATE: {)7/21>/20\ I PA TfE"T NUMllf..R: 30022\0023 MEDJCAL RECORD NUMBER: \3·30-81 \93245 l'ng,: I Odginal I PHYSICIAN: Ad:un T. J(.qfka. M.ll. MRH00006 • • rncdium dttty work ;lnd 6 momh:t fl1r mtdium to ht-?tV\·. Dnvid does not fed like he is anrwhcrc n~m· rcadv w go bnck ro his previously highly physically Jcmc,r.d~g job. · · David's other concern~~ that he does have yuitt: :1 bit of fatigut:. He thinks it has be-en worse since his most recent surgery <Jnd is unsure wht:th<.:r iris rchtcd to tht pi'lin or therapy that he has been undergoing. He has had to Ctlt b:ack on !'iOci:JI acrivities :1s he usc.:J sleep has bt.:cn ;.~fft:ctcd 1s to fl:;h <jl!itt: a bit on his bi1.S~ bo=1t but i~ unahk: w do this. His welL Pi,ST MF.DICAL H!S'fORY !. He ha5 aHhm~ that is well contro!lcJ anJ not n.:(_1uiting medications. 2. Hiswry of severe GT b!t.:cd requiring rnns:fusion. This w:-~s thoughr w Ue cclatl'd w aspirin and .Mobic. 3. :\CL repcir in 1998. 4. L1miacctomy in 2003. 5. Microdiskcctomy in 2010. 6. MicroJiskectomy revision in tvhy of2010 ~nd :\pril of 2011. 7. Multiple km:r.: urchro~copit.::. 8. !.eft shoulder •tthroscopy. h\!v!Il.Y HISTORY: llorh porcnts are Jccc'"cJ, his f:1tbtr of a heart ottock anJ mother of diabetes. He Jenics any history of diaben:!i. SOCI 1\J. HISTORY: Da\'iJ is single bur hos o signifie,nt other. He hns oeeasioml :tlcobol but no tob,cco or alcohol expo~un.·.. f-k dt.K·s not get any rcg;.uhu acri\'it~; nut:.idc of work. He was ptcvinusly a car m~n for th~ r!lilrr><td. CURRENT MED!C\TJONS: 1. Tylenol max dose Jaily. 2. T romaclol 2 rabs every +6 hou" p.r.n. ALLERGIES: NEOSPOR!N causes tasb 11nd THEOPHYLLINE causes G! reflux. He is also sensitive to adhesives. REVIEW OF SYSTCl\!S: T wclve-point rt·dew of systems WO< obtained toJay :tnJ positive for fatigue, mild nsthma, anJ rhosc complaints listed in clte l !PI. The remainder wao ncgntivc. PIIYSlC.\J. F.XAIV!l K,\ TlOI": GENER:\L: Dal.iid i~ a plc;{sant, wdJ.-appt:aring, moduatdy ohc~\:. gt.ntk.man in no d.istrt:::.~. He doe.~ not exhibh any p:1ir1 b~.:haviors but is clt:~rly frustrated with his <.:urrem s:yml)totns a.nJ c..:specialty ~sit t<:.lttte:> to his occupation. HHF.NT: Hc:td is normoccph:llic, arraumark. l:acit:s iir<: ::symmetric. MADONN,\ R~HM\lLlTt\TlON OUTI't\TICNT CL!NlC "OW. HOSI'!TAI. N1\ME: llliss, DaviJ R SFRVICF. DATEo (\7 /26/2Cll PA'J1ENT NUMllER: 31lil221002.l MF.])JCA!. RECORD NUMBF.R: J.>-1fl·81 19:'1245 Pa~e 2 Originnl PHYSICIAN: ;\d•m T. Kafb, 1\!.D. MRH00007 • ~KlN: • \\/arm and dry throughout. CXTREP.,11TlC:S: No swelling, ctythemn, or ecchymo<cs. B;\CK: Multiple midline incisions all well apprnximatctl ontl healed. He hns some nauening of normal lumbar lordosis. He has fairly good flexion and cxten~ion, lH.:ithtr of which L-. particulnrly painfuL, hut he is weak ·with t:xt~::nsion and hns somt <.Hfficulty gt..:rtlng b<1cl~ to upright pn~ture. He does not have.: any obvious li" or scoliosis. He has pretty good lumbar rotation bur siJchcnding to the left is restricted and quite rainful. Be has rendt:rness around the lcfr SI joint as wt..:l! a~ lower ltJmbar facers. This pain is exacerhatul by sidd.)ending but not too much by cxtcn.-;ion. He has no glun.:al tcndunt:s:5 nt pain around the rruchamcric region. Examination of the kgs show~ ~ymmerric muscle buik without any obvious atrnphy. He ha:; at least 4+ /5 ~trcngth thcougbout, nnd l have difficulty eliciting any flb,•ious strength deficit. He cnn heel and too walk witbnur difftculty other than a lirrk bit of balance rroublc, NEUROJ.O( ;tc: Absent refkx at the left pntdla but 2/4 at the righ r. He has 1+ reflexes at the Achilles, but it 5t:t:ms a bit more diminisht:d on rhe left compan.:d tO the right. S._:nsory examination ro light touch anJ pinprick is normAl to all right lower (:.x:rn.:nti1· dermatomc:i. In tht !eft lowec cx.rrctnity he bnsicully ha5 dccrtased stnsatim1 rhtoughuut the ~mite foot. This is mninl}' to pinprick which feels mote duH comp-Mcd to tht: right side, hut light tOuch is prt.st!"r\'t:cl. Then~ j~ no donus or upper motor nt:uron signs noted. n1PRESS10N: David Rliss is a 56-ytor-old gendcmau with chronic low back pain, prim;trily mechanical anJ axi:ll, wlrh hisrory of multiplt: lumbar s.urgerics. H~..: also has radiating ;;}'mproms in tht: lt:fr lower cxtn:mity thar bave imprm·c:d with therapy but pcr~i~t iind ~n: in a nonder·mawmnl partern. Imaging studies show diffuse dcgcntl'!tive nrthricis in the lumbar spine~' wdl "'spondylosis "t Ll-4, JA-5, nnd LS-Sl with small posterior spondyloli:::>the~is at L:~-4. Thi~ is based upon the: imaging reports ::1~ I do not havt: the imagt:s available. I did redew the dcctrodingnostic mrdics obtained on 07/13/11 which show some large polyphasic motor units in the.: right LS myotome bur no et·idcncc of ongoing n..-.:onalloss. i\Jso no eddence of pctiphcral ntump1>.thy o! foc<~i m:mopa.thy. RECOMMENDATIONS: We had a long discusoion about possible dologies Clf hi., pain :\nd that this is likely multifactorial. I would obviously dtft:r to Dr. Lohdb ns tf> whether or not ht wnt1ld be appropriate for a fusion, bm this m;:jy not ben bad option, L'Spccially \Vith what appears to be some mild fac.:tt-mcdiared ptdn, c.:spn.:i;!lly on rhe left which i~ where tht: majorit}' nf his pain seems to be coming· from. Nevertheles!->, 1 think an adequate count..: of physical therapy and St}mc medication tnanagttnt!nt would be n.:asonabk as rhcre is cermin!y no rush to undergo surgtry. To help with pain control, I was hoping to u>e ~ntiinflammatories; but with hi' hbtory of G! bleed, I am a little hesiram to starr an oral agenr. r havt hr:d some luck with Flr.:ctor parchc~ which havt much lower incidence of GI ulceration and rhtreforc gave him a few ~ample." to try; and if the aclht::'>l\'t: does not bother him, he can get this script tilled. He should apply it to the kft low back where the majorir; of hi> pain is. ,\Jdicionally I woultl like to smrt him on I.yrica tfl help with his kg svmproms as well as cwer"JI pain mudularion in the hope~ that he..: ha.s better baseline <..:ontrol <tnd can cut back on tht: amount o( tramadol that ~l.~DON:-J.\ llliiiABILITADON OUTI'ATJF.NT CI.INlC NOTE !9:12<15 Pagd Original T·TOSPrL\L ';\iA~~1E: Ulis$, O~vid R SERVJCE OAT!'.: 07/21,/2011 PATIENT NUMilF.R: 30022!0021 \!EDT CAL RECORD NU~lllF.R: 13-30-Hl PHYli!CJ,\N: .'\c!nm T. Kn!kn, M.D. MRHOOOOS • b~ • is using. I did write.: a prescription to obtain <1 vir;~min D h:~vd as low h.:vdx ha\'c been associated with f:Jtibrt.te as weU as p.ain. Purrhermore, this is easy to correct if it is !ow. I woukllike w sec him back in 1 month. Wie will :~sscss how he is responding w physicaf rhcrnpr :t5 wdl a.o,; ml:dication management. h doeR not appear as though ht.: is going to pursue surgery but nt;edl> more inten~ive chronic pai11 management. 1 wou!J recommend consultarion with rl1c pain management group here in town who are berrct t:quippcJ to follow Iong~rerm pain medication ma:. However, my thought is th:tt he may nor get a whole lot of benefit from chronic opioid u::.e, and given the side:: effccrs of these in chronic low back pain, I would recommend avoiding them if possible, :~nd rnnrgina! efficacy I do appreciate thi~ n.:fcrral. If thc.·.rc an.: :my qucscic)n5 regarding Mr. Bliss's visic, plc<1sc fed ftee to contact me, Adam T, Kafb, M.D, DD: 07/26/2011 DT: 0? /27/2011 8:42 A kp cc: Date ___4 /z-'>-1-7/-'/1'1---- Time: .., J I Charlc:-; L Kn;shcl 7'vi.D. Keith Lohd,ia, MD,, 8005 I'arnam Drive, 0uirc :lOo, Omaha, NE 68114 1 MADONNA REfL\l!ll.!Ti\T!ON HOSPITAL OllTPt\TIENT CLINIC NOTE 193245 P•gc 4 Original NAME: Uli:;s, DwiJ R SERVICE f);\TE: 07 /2!l/2011 PATIENT NUMBER: 30022HXl2.1 MEDlCJ\L RECORD ::-!CMU~-R: U-30-SI l'HYSICJAN: A<lnm T. Kafka, M,D, MRH00009 I Remote 1 -:> D 0912512011 09::>7:43 AM Page 18129 Thygesen PhysicalTherapy 713012011 Keith R Lodhia, M.D. Midwest Neurosurgery & Spine Specialists 8005 Farnham Drive, Suite 305 Omaha, NE 68114 Dr. Lodhia RE: DaVid Bliss Mr. David Bliss presented to my clinic on 613012011 for Functional Capacity Evaluation testing. A slandard 1 day Core FCE was performed which involved a detailed musculoskeletal assessment followed by performance or standardized objective testing to determine his current physical abilites and safe lifting maximum recommendations. No specific job description was provided by the employer therefore determining a definitive job ma!Ch was not fully possible. The only Information that was communicated !o me by his case v;orker [Eileen Wamer) regarding physical job demand information was that the physical demand level of his job is categorized as HEAVY. Therefore, given this information I have compared his performance on the FCE to physical demand characteristics of HEAVY as classified in the Dictionary of Occupational Titles (DOT). Please refer to the specifics of his performance on the FCE GRID for further details. If you would have any further need to obtain information pertaining to specific tasks or physical demands testing pertaining to his job I would be more than happy to retest any items you would request. If you have any quesUons regarding any information on the FCE report please conlact me directly at402-423-7878. Thank you again for this FCE referral ~~fr Paul Thygesen PT Thygesen Physical Therapy 5955 Sootn 561h. Uncoln NE 68516 402423-7878 Phone A02423-0272 FAX • • MADONNA RHIABlLITATION HOSPITAL OUTPAT!ENT CLINIC NOTE ON: Bliss, David R DATE OF SERVICE: 08/25/20) 1 TIME IN: 10:15 11MB OUT: 10:45 Greater rha11 25 minutes were spent today with Mr. Bliss, the majority of which was in case discussion and management as well as patient education. INTERIM HISTORY: David returns today for followup regarding hiS low back pain. The initial visit I had with Mr. Bliss was on 07/26/11 upon referral from Dr. Keith Lohdia in Omaha. Briefly, he has a history of low back pain wirh several injuries that stem bnck to 2003, at which point he underwent laminectomy. He has subsequently had microdiskecromy and revision 3 times over the pasr year and a half or so. These were all done by Dr. Noble, bur Dr. Lohdia was discussing possible lumbar fusion as a more definitive treatment. He came to me for any further rehabilitation recommendations that would be nonsurgical in narore. I did not feel that there was much indication for thernpeutic injections given the diffuse narure of his axial pain thar seemed primarily mecha,tical in nature. He does ha\'C some radicular symptoms with l~MG evidence of mild chronic inactive right LS radiculoparhy. I had recommended David continue with physical therapy and tty a neuropathic pain agent. l wmte for Lytica 50 mg t.i.d., and he is taking it alx>ut twice a day. lr does help reasonably well with pain control, but it also makes him tired. He still takes tramadol as needed. There has nor becrl a whole lot of change ill his symproms. He continues ro work with physical therapy 2 days per week at the Center for Spine & Sport Rehab. Ir sounds Uke rhey are mainly doing some e-scim type acti,•ities using the ReBuildcr sysrem. He is looking to get rhis ar home. Most of our discussion today was Da~id expressing his concerns and frustrations over this entire J>tocess. He feels as though hi. pain is significant enough that it is not allowing him to do any sort of physicaUy demanding job. Even chores around the house cause quite a bit of pain. He also had a day at work when he spent mosr of rhe day in meetings in a chair and then the next day was having a flare-up of his pain, so sedentary activity also bothers him quire a bir. He has not returned to see Dr. Lohdia since his last visit but does have a <cheduled appoinrmenr. lr is still uncle<~r wherher or not he will pursue any further surgical interventions. PHYSICAL EXAMINATION: On brief exam, David is well appearing and in no di,tress. He does not visibly appear tO be in significant pain, and he walks wirh a symmetric and nonanralgic gait. No evidence of footdrop is present. Further ex~trtination was deferred in favor of case discussion. IMPRESSION: David BliS> is a 56-year·old gentleman with chronic mechanical low back pain and mild right L5 radiculopathy. This was demonstrated e\ectrodiagnostically, although the pain seems ro be primarilj' on the left leg whic~ was normal. MADONNA REHABILITATION HOSPlTAL NAME: Bli,,, David R OUTI'AT!ENTCI..INIC NOTE SF::RVICE DATE: 08/25/2011 1960 lO Page 1 Original PATIENT NUMBER: 3002210023 !l.iEDlCAL RECORD NUMBER: 13·.>0-81 PI IYSICIAN: Adam T. Kalka, M.D. MRH00004 • RECOMMENDi\TlONS: At this point I do nor have a whole lor of further tecommendations from a rehabilitation standpoint. If he is ro P"""" surgery, this will have to be decided between he and Dr. Lohdia; and with presumed segmental instability due to his prior surgeries, he may in fact get good benefit from this. I would obviously have to defer that decision to he and his surgeon. From a medication standpoint, l would not usc any stronger optoids than his rramadol. This is chronic in nature, and given his sensitivity to medications causing him sedation, I w()uld try and escalate the Lyrica as tolerated and otherwise stick to antiintlammatodes and other nonnarcotic pain medications. I wollld continue with physical therapy. If the ReBuilder system is helping him with symptom relief, I would recommend it 1 think it is reasonable to advance to more functional conditioning and work hardening] especially if there is no further surgery planned. This way we could get him at least as functional as possible, even if he does have ongoing pain. 1 did not schedule any formal foltowup. At some {ooint, he will likely be at maximum medical improvement, a>Suming no surgery is performed. I would have ro defer to either Dr. Lohdia or Dr. Nollie as ro when that point would be. Based on his recent history, he may in fact have already reached that point. I'Lmhermore, since there has been an FCE performed, if this is everyone's opinion, then I would recommend using informatjon from the F'CE as well as hio physical examination to recommend future work restrictions. I did nor address any work restrictions today wirh Mr. Bliss. Adam T. Knfka, M.D. DD: 08/25/2011 DT: 08/30/2011 4:00 P kp cc: Date _ _ -',;1'-tLvJ-"JL~--- Time _______ ,_... Keith Lohdia, M.D., 8005 Farnam Drive, Suite 305, Omaha, NE 68114 Workers' Compensation MADONNA REHABILITATION HOSPITAL OUTPATJENTCL!N!C NOTE 196010 Page 2 NAME: lllio<, llivid R SERVICE: DATE:: 08/25/2011 I'A'11ENT NUMBER: 3002210023 MEDICAL RECORD NU:-..!BER: 13-:\0·81 PHYSICIAN: Adam T. Kafka, i\LD. Original MRH00005 09/Z5/ZO ll 09:07:43 AM Remote ID -> Page 5129 8006 Farnam Drive, Suite 306 Omaha, Nebraska 6&114 ph: (402) 398-9243 fax (402) 398-9263 Account#: 104768 Requesting MD: Charles L. Kreshel MD Family MD: Charles Kreshel MD Case Manager: David R Bliss 1801 Preamble Lane Lincoln, NE 68621 (402) 476-9107 OS/2111966 09/02/2011 Dear Charles Kreshel: David Bliss was seen today in consultation for forty-two minutes. I reviewed David's studies and discussed results with him. I reviewed his old notes and reviewed Dr. Kafka's notes for physiatry. I looked over his physical therapy notes as well as functional capacity evaluation. He was listed in a physical functional capacity as having no limitations on heavy demand, although he had a lot of pain that developed right after this and has limited him significantly. He has noted more Sl radicular symptoms with numbness and some pain and particularly pain in the back with twisting or movements. If he sleeps he only gets a couple of hours of sleep and then wakes up and has to reposition because of the pain. Any kind of working in awkward positions bothers him as well. He takes Lyrica and Tramadol all the time. This is much more on the left side than the right side and follows an S1 distribution. He was found on EMG to have a chronic and active mild L5 radiculopathy likely related to his previous 3 surgeries. His MRI showed laminectomy changes at the hemilaminotomy on the right L5-S1, bilateral laminectomy changes L4-5 and left sided L3 hemilaminectomy changes. He has degenerative disc at 3 levels as well as significant facet disease at those 3 levels. The other levels look fairly good in their condition. He has posterior spondylolisthesis Grade I at L3-4. David's exam is unchanged with the exception of depressed reflexes and S1 radicular symptoms even a little numbness as he was sitting here. He has several well healed dorsal midline incisions and othentJise is not tender in the back. He transitions from sitttng to standing with shocks of pain and walks with some mild antalgia. 1) Lumbar spondylolisthesis. 2) Lumbar spondylosis. 3) Lumbar disc degeneration. 4) Lumbar radiculitis. Recommendations: David and I had a long discussion about his condition. He certainly can't function at his job with his current pain level and would need to be in a light duty situation. He has spondylolisthesis and spondylosis with facet degeneration as well as disc degeneration. l think most of his symptoms probably are facet mediated and may be even causing some of his radicular light complaints. MNASS00006 09126/20 II 09:57:43 AM Remote ID -> Page 7/29 Page 2 - David R. Bliss I would like for him to hy some facet blocks both as a diagnostic and possible therapeutic effect and if this seems to help, maybe a facet rhyzolysis might be an option as opposed to a fusion at 31evels. However I would recommend the posterolateral and interbody fusion at L3 to S1 if he continues to have refractory severe pain. His lifestyle is extremely limited in what he can even do when he's not working. David's questions were answered to his satisfaction and he's in agreement with our plan. Sincerely, ~Keith R. Lodhia, MD Dioteted but not proofread MNASSD0007 ----·~-- ,"UYI 8006 Farnam Drive, Suite 306 omaha, Nebraska Q8114 ph: (402) 398-9243 rax (402) 398-!1263 Acoount #: 104768 Requesting MD: Charles L. Kreshel MD Family MD: Chafh~s Kreshel MD Casu l\llanager: ( David R Bliss 1801 Preamble Lane Lincoln, NE 88621 (402) 476~91 07 08/21/1966 1110712011 Dear Dr. Kreshel: David Bliss Is here in the neurosurgery clinic in follawup. David was seen for 25 minutes In consultation, half t>f which was in counseling. We discu$sed findings an hi~ MRI with him and his wife. He had rhyzolysls by Dr. Devney an'd actually had excellent response to this witli near complete resolution of his lumbar back pain, only a little lower sacroiliac region discomfort at times and some accasfomll upper thoracic, mid-thoracic pain. He still has burning in the back of his heels and on the lateral foot If he walks for 20 minutes or mare unless he takes Tramadof or hydrocodone. He gets some "aching" in his anterior hips and at the belt line and a little bit into his knees on occasion. He Is worried because he doesn't think he can go back to work. He had a functional capacity evaluation an 07130111. He still has difficulty with walking. He can't walk more than 20 minutes which Is bothering him the most. HI) feels like he's not very Independent because of this. He would like to seek treatment for this. I told him for chronic nerve issues I don't realfy.have a good solution surgically with the exception of some possible spinal cord stimulator. He does have chronic mild L5 radiculopathy an the right although the left was normal. His symptoms seam to bo more S1 mediated. I do think he would be a possible candidate for spinal cord stimulator and we will get him set up for an evaluation and possible trlaling of the spinal cor~ ~ti'mufator. I did tell him that the fusion would not make him any b'etter with regards to' his lumbar spine as this seems to have already been improved significantly with his rhizotomy. He will likely Med to continue an medications at feast In some form as needed Indefinitely unless he gets some relief with the spinal cord stimulator. Sincerely, ~. . Keith R. Lodhla, MD Dictated but not proofrt~t~d MNASS00030 Page 15 f29 Remote ID -> 0912612011 05::57:43 AM Thygesen EXHIBIT NO. {?() OCT 1 6 2012 Physical Therapy USA GRIMMI~GER, RMR, CRR 7/3012011 Keith R. Lodhia, M.D. Midwest Neurosurgery & Spine Specialists 8005 Farnham Drive. Suite 305 Omaha. NE 68114 Dr. Lodhia RE: DaVid Bliss Mr. David Bliss presented to my clinic on 6/30/2011 for Functional Capacity Evaluation testing. A standard 1 day Core FCE was performed which involved a detailed musculoskeletal assessment followed by performance of standardlzed objective testing to determine his current physical abilites and safe lifting maximum recommendations. No specific job descriptiOn was proVided by the employer therefore determining a definitive job match was not fully possible. The only information that was communicated to me by his case worller (Eileen Warner) regarding physical job demand information W3$ that the physical demand level of his job is categorized as HEAVY. Therefore. given this information I have compared his performance on the FCE to physical demand characteristics of HEAVY as classified in the Dicljonary of Occupational Titles (DOT). Please refer to the specifics of his performance on the FCE GRID for further details. If you would have any further need to obtain informatioo pertaining to speCific tasks or physical demands testing pertaining to his job I would be more than happy to retest any items you would request If you have any questions regarding any information on the FCE report please conlact me directly at 402-423-7878. Thank you again for this FCE referral /2-e ~ ~rPaul Thygesen PT Thygesen Physic<!! Therapy 5955Soutn56\h. Uncoln NE 68516 402-423-7876 Phone 402-423-0272 FAX 09/26/2011 09:07:43 AM Remote ID -> Page 18129 Cfient Name: David Bliss FCE oates: OSI30® 11 \VworkWell Therapist: Paul Thygesen Thygesen Physical Therapy SYSTEMS. INC. 5955 S 56th St Ste 1 Linooln, NE'61)510 WorkWell FCE History Name: David Bliss Dala<l of FCe TeoUna: 0613012011 o.-. of Blrtl>: 00121n955 O.!e of InjUry: 02XW2011 Gender: M Add'"": 1601 Preamb!B Ln. City/SU\te/Zfp: lincoln, Nebraska 68521 Primary Oiagnoaia: 722.73 Area of lttju1y. low Back Oceupatioo; Railroad C8fman Dept of Labor CaleiJOIJI of Work: H<oavy Mochanlemrrype of Injury: Uffing injury of heavy/awkward piece of equipment. Previous fro.atment; Conservative physieal therapy. pain physit::ian evaluatoi-n and treatment. lumbar surgery x 3, Pertinent $urgery/Othe< Clinical Tests!Paat -leal History: lumb;u Su<gery x 3, Knee surgeries, loft RTC. Cummt Medications; Tyienol FunctionAl Stotull ActiVIty Level: Client indicates he 1$ able to perform majority of day !o day fasM indepandently "depending on how his bal:k !eels" Client Indicates independence with AOL's. Cltent indicates intennitlent disruption in sleep pattern due 1o back pain. chklf Comptolnto/Symptoma: Client reports that M h"$ r.,sldoslleft t.E weat<:ness fo!lowfng injury and surgeries and continues to experience variable intermittent back. pain but t0l9f'~tss this and "gets on wl!h his life.., R.-tum to-Work lnfonnation: not working Goats: Clientwi<beocin emp~O<l return to;;_ S19,n~ture ~ 0_-_:_I(_:_ Date _ __c,7_-_:I:..: Page 8 of9 Rem01e ID 0912.612011 09:::57:43 AM Page 2.0128 -? Client Name: David Sfiss FCE Dates: 0£13012tl11 \vWorkWell Therapist: Paul Thygesen Thygeoen Physi10at Therapy S Y S 1 E M S. t N C. 5955 S 56th St Ste 1 Uncoln, Nf 68510 WorkWell FCE Physical Exam Sys.t:oms RG:Vifw SJood P«ta•Ur'O'! 140190 Haight: 65" lloart Rl1tl trollting)' 69 Woight: 220 Ga.ft: WFL's Posture: Client demonstrates sway back type postore with hfps mildly shifted to the Jet~; and left shoukler girdle elevated. Coordil'Qtion: Client demonstrated functional coon::fiOatoin with no ob$ervable deficits. M0v4mont CMractMlatiea(sP4*d. smoothn~ posturing): ctieot demonstrated functional galt and Il'lOV001ent between sitting. s1andlng. and supine position changes with oo opedlic delidt aroas. AtropftyJEdoma: None OOaerved in lumbar region tntegume-ntarr- WNL's, well healed midlline lumbar incisions observed. MU'&~a Tone Spaam.a! Client demon&trated moderate increase in musde lone through the bllatemlllliTlb<tt and lower thoracic parasplnals and &dditiooally at the ~ft superior shoulder invOlving the muscles of shoulder girdle (.$C8pUiar} elevation. PAR..Q Ves No X 1. Has your doctor ever $8id that you have a heart condilion and that you t5hould only do physical activity recommended by a Ooct.a.r? Do you feel pain In your chest when you do phY'ical. actlvily? X 2. X 3. ln the past month. have you had chest pain when you weren't doing physical actMty? X 4. Do you lose your balance because of dixziness or do you aver lose conscJousness? 5. Do you have a bone or joint prob~m (for example, back. knee or hip} that could be made worse by e X changein¥ourph~lactiVtty? X 5. Is your doctor currently prescribing drugs (foc example. water pitls) fur blood pressure Of heart condition? X Neck 7. Do you know ooy other reason why you should not do physical activity? Nonnal 45 Rongo of Motion Muacle S~gtll WNl 45 45 WNl lelt Lale<at Flexion Right Rotation 45 WNL 90 WNl 5 5 5 5 5 Le" Rotation 90 WNL s Flexion Exler\$ ion Righll.ateral Flexion WNl Trunk Normal Range of Motion Muo<:lo Strungtll Ftexfon so 55-60 4+15 Extension 30 20-25 5 Right l.atera\ l'texion 35 2s.:l() 4+/5 Left lateral Flexion 35 <5-30 ~+IS Pogelof5 Page 2.1 Remote ID -> OS/2.6/20 11 OS:Ci7:43 AM r zs Client Name: David Bliss FCE DaleS: 06/3UI20 11 \vWorkWell Therapist Paul Thygesen Thygesen Physical TherapY S '( S T E M S. I N C. 5955 S 66th St Ste 1 lincoln, NE 68510 Trunk Normal Range of Mollon Muscl& Strength Right Rotation 45 40-45 4+15 Let\Rollilion 45 :l5 4+15 Commanbt./Ouality of Motion~ Spine CUent: demonstrates AROM decrease in planes of flexion. extensioll, rlght and left latera! flexion and rotation. Client demonstrates mild strength decceas.e in planas of OG.xion, ri9ht and left side fttlxkm and rotatiOn. Client 'Cia pa;n and t.tiffr'less at the t!mits of ICh!ier trunk ex1erusion and left rotation. RllngeofMotioo Muocle Strength Nonnal Right Left Rl!Jht Loft WNL WNL 5 WNL WNL 5 5 5 WNL WNL 5 lnlemat Rotation 160 60 160 70 WNL WNL Exte""'l Rctatlon 90 WNL WNL 5 5 Elbow Normal Right Left Right Flexion Extension 150 WNL WNL 5 left 5 0 WNL WNL 5 5 Foreann Normal Right Left Right Left 80 80 WNL WNL WNL WNL 5 5 5 5 Nanna I 60 70 Right Loft Right Left WNL WNL WNL 5 5 WNL 5 5 5 5 5 5 ShouCdttr FOfW31'd Flexion Exterutiofl All<lucllon Rang& of Motion Pronation Muscle Str.ngth Range of Motion Wrist FleXion E~ension 5 Mua<:le Strength Range of Motion Supinafion 5 5 Muscle Strength UlnarDevi~ 30 WNL WNL P.ad(at Oe<Jiat\o.n 2(1 WNL \NNL G""'s Hand Normal Range of Motion Muscle StronQth Right l...rt Right Left WNL WNL 5 5 Honnal RlllllJG of - o n Right Left Rl!Jht 1..811 FleXion (knGc oxtd) 90 WNL WNL 5 4+/5 FleXion (knoo flxd) lt!l-115 11()-115 Ab<lucllon 120 45 WNL WNL 4+/5 4+/5 4+/5 Adduction 30 }'JNL WNL 4+/5 4/5 Motion Composite Motion Hip Page 2 of S MU~<:Ie S!retlgtll 4+/5 Aemote ID -> Ol3/Z612011 09:.57:43 AM Page ZZ/ ZS Client Name: David Bliss \VworkWell FCE Oafes: 0613012011 Therapist: Paul Thygesen SYSTEMS. INC. Thygesen Physjcal Therapy 5955 S 58th St Ste 1 lincoln, NE6e510 Rlln!l• of Motion Muoc!o StMngth Left Right left 4+15 WNL WNL WNL 5 5 5 WNL WNL 5 5 Range of Motion Muoclo Strength llormal Right Left Right left 135 WNL WNL 4- 4+/5 Extension 0 WNL WNL 5 5 Anl<le Normal Right Loft Right Left 50 20 WNL WNL 5 WNL WNL WNL WNL 5 5 4'1'/5 WNL YVNL 5 5 5 5 Normal Rlght Extension 30 WNL Internal Rotation External Rotltioo 45 45 Knee Flexion Hlp Range of Motion Plantar FkOOon DorsiHexion Inversion Eversion 35 15 4- -4+15 Muo<:leS!rength C<>mmenlS/Qualily of Motion - Lower Qual'blr Client demonStrated decreased hlp ROM in pfanes of fie >:ion bilaterally. Cfient demonstrated hip weakness in planes of r.eldon,extension.~bduction,adduction. Cllen! demonstrates muscle weakness to manual musda testing with bilateral hip flexion. ahducrion/adduction. left hip axtanslon. Ctient demonstrates muscles weakness of the left quGdrtcops and hamstrings. Client demonstrates k:Jft dorsiflexion weakness. Sernsory Testing Client reports dlronic decteased sensation of left anteromedlal leg {reported from medial malleolar regoin to medial knee/lhigh. Reftex Ankle Jerk Absent left ankle jeli< reflex RelleX 1<ne<> Jeri: Absent left patellar rallex Reffox Upper Extremities WNL·s Screening foe Gr0$:1i Bala:nce Attrlbut<> Trlai1(Tlme$) Trial 2{Tltnes) Standing oo Floor, Eyes Open Standifl9 on Floor, Eyes CIOlS<ld Standing on Foam. Eyes Open Standing on foam. Eyes Ciosed 30 30 30 30 30 30 30 30 FIN<t Day Summary of Phyalcal ""'""'"mont Client demonstrated muscle tone inerease in bilateral thoracolumbar parasplnal mus:cles, ~ schollkter girdle/scapular elevators. Client d01110nltraWo pootural -)'fTletfie&. Client demonstrates decrease In AROM of tttlnk fiexion, extension, lateralllexion and Remme ID -> 0912612011 09::57:43 AM Page231 29 Client Name: David Bliss \vWorkWell FCE Dates: 061:10/2011 Thera~st Paul Thyges.en Thygesen Physical Therapy SVSTEMS. INC. 5955 S 56th St Ste 1 Lincoln, NE 68510 Client demonstratM mild stro.ngth deficit in planes of flexion, right and lett side flexion and rotaUon. Client c/o stiffness/pain at limits of lowet trunk extension and left: rotation. Cflent demonstrates dacfease in hip ROM in the planes of flexion bilaterally and muscl.e weakness in ptnaes. of fklxion, extension. abduction and aOducUon. Client dernon&tratee left quadriceps and hams.ttings weakness and JaR: ci()(sjf)exion weakness. Pfaasa refer to the physical exam grid for specific tested ROM and strength rotation. L voloos. 0~ f./a Signature Dale ').- 7~ Page 4 of 5 ?o- I( pr- Page 24 t 23 Remote ID -> 03!2612.0 II 03::57:43 AM Client Name: David Bliss \VworkWell FCE Dates: D613012il11 Therapist Paul Thygesen S Y S T E .,_ S. I N C. Thygesen Physical Therapy 5955 S 56th St S!e 1 r1!!$M1rh•sdmt:e·~ Unco!n, NE 68510 WorkWell FCE Test Results and Interpretation The interpretation ofWoritWefrs &andardize.d functional testing is basad on ass.umptionG includlng normal breaks, beS!c ergonomic conditions and that the le$ted functions are not required more than 213 d. a nOI'TTli!l working day. If a function Is requirod continuousty. job specffic testing should be performed. Client Name: David Bli$$ T""t Dat.o: 0613012011 ntemretation of obse rvo<l fu nction eg,Sidinq .aGtivftY during a oormaf W'Qtio;ing day Poatdon/M!bUJatlon Frequoncy Wei!Jhted Activities % of worl<day QuantftatiYe + Qu.CfbrtfvO Oboerved Effort ........ lwei NEVER RARI'LY Contraindicated No! Possible Oo/o Maximum Significant Umitation 1~5% OCCASIONALLY FREQUENTLY Heavy Some Umitatlon 6--33% Low Slight/No Urnitation 34-$% Clie<lt•lopped !es~ submaximum effort level SELFUMITED Max Heavy Low Rare 1-5% O!:c Freq ~-3~% :!4-ll6% Weist to Roor (11 in. from Hoe<) 85 65 30 Waist To Crown (Hancles) 50 <!{) 20 Front Carry 85 50 StJbmax percent 35 Uftfng, Slrongth (Ills) Pooturo, Flexibility, Ambulatlon 1\ieW>r HeVM Slgaiftcant Limitation Raro1-6% Llm!t.Btlons SUgntJNo Some Uttl!t>lfon Umitalfoo O!:c &-33% NotodFreq :14-ll&% Elevated Work Recommendations Umb:tlons Ro-commendatiorta X (Weighted - 2# cuff on both wrisls) Forwarn X sencing-stancing Standing Worl< X Crouc!1 X Kneaf. HslfKneal X Stairs X W•lk- 6 Min Walk X Test X Sitting Push-Pull (Stafi~) Foree Generated (pounds} Page 3 of 9 Limitations RecommandatJons Remote ID -> OS/Z6fZ011 OS:::i7:43 AM PageZ::i/ ZS Clfent Name: David Bliss FCE Dates: 06/3012011 \vWorkWell Therapist: Paul Thygesen Thygesen Physical Therapy 5955 S 56th St Ste 1 lincoln. NE 88510 Puah-Pull (SW!c) Force Generated S Umib:tfons V S T E M S. I N C. Re-commendations: (pounds) Push Static 75 Pull Static 83 (Numerous vanables HTipad. Push/Pull force mclud~ng load, eqUipment, :.urface, e1c. These forces do not represent the amount of weight lha! is !Tv~) Signature Dale Pa.ge-4 of9 ~• ~ 7-lo·- r Remote ID 08fZ6fZ011 08::l7:43 AM -:> Page Zo r zs Client Name: David Bliss \V'WorkWell FCE Datos: 0613012011 iherapist: Paul Thygesen SYS 1 Thygesen Physical Thetapy 5955 S 56th St Sfe 1 Uncofn, NE 68510 ~ tA S. I N C. WorkWell Functional Capacity Evaluation summal)' Report Name: Da'lid lllios Testo.rte:~011 Date of Birth: 00/2111955 Gender: M Addr~ti: 18m Preamble Ln. City: l-incoln Stale: Nebraska Zip Code: 68521 Phono: 402·525-6110 Physician: Or. Keith R Lodhia Employer: BNSF RailrQad Primary Diagnosi,-: 122. 1~ ReastlnforTeating Determine- abUfty to return to previous job or other job. E\fafuation to determine functional a.bi!iti" and ~mltations Deocrlption of Test Dono Ooe day Core Wori:Well FCE coop4ratton 2nd Effort Client demonstrated cooperative behavior and was wi!Uog to work to maximum abilitJe:s in all test items Conalstancy of Pertortrutnc-e Client gave maximal affort on all test items as e'Widencad b).' predidabte pattams of movement including increased accessory musda recruitment, counterbalancing and use of momentum, and physi~ical responsas. sUCh as increased heart rate. Pain Report Client reported discomfort prezent in lumbar region and h8mstrings towsrd the end of testing during static standing in forward trunk 1\exed ~run. but there was no intMferenee in safety. s.faty Client demonstrated safe performance using appropriate bOdy mechanM:s throUQhou:t all subte.sts. Quality of Movement . Cl~nt demonstrated safe and appropriate changes in body mecharics, inc4tding use o( ~wry muscles, counterbalancing af'ld mome-ntum. a' load/force mcrei!Sed. Th~ Abilitfes/St:rangttus Client demonstrated sjgnifiC8nt abHitiBs specific information. changes are expected and con;is.tent with maxlmai effort. in grip strength, h30d coordination, Ufti.ng, eM caff'JiiVJ. PtQase ~ to the FCE GR\0 for Umitationa Client demonstated no specific physical limitations pertaining to the test ftems perfonned on this-eore FCE. Physical Retum to Wort< Optkli11S Explored The client's safe tiffing ma>dmums. rT\$t the POL le~ HEAVY ca\agoJY. Tfwr.Jpbt'a RQC<>mrmrnd~tion Regarding Return to Wori(. Unable to obtain job description US OeP•rtntMt of La- Physical Oomllnd l1>10l Heavy Signature Page1of9 b J'~ {lr Pie-ase- refer to the Job Maich Grid for details. OSIZ51Z011 OS:07:43 AM Remote ID -> Page 27 I zs Client Name: David Bliss FCE Dates: 06/3012011 Therapist Paul Thygesen Thygesen Physical Therapy 5955 S 5!llh S! Sre 1 Uncoln, NE 68510 )-lo- I( Date_:_ _ _ _ __ Page 2 o(9 \VworkWell SYSTEMS. INC. Page 1 1 2 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA DAVID BLISS, 4 Plaintiff, 5 vs. 6 BNSF RAILWAY COMPANY, 7 Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ) ) ) CASE NO. 4:12CV3019 ) ) DEPOSITION TAKEN IN ) ) BEHALF OF DEFENDANT ) ) DEPOSITION OF: DR. LIANE E. DONOVAN DATE: October 4, 2012 TIME: 1:05 p.m. PLACE: 6940 Van Dorn Street, Suite 201, Lincoln, Nebraska APPEARANCES: Mr. William J. McMahon Attorney at Law 542 South Dearborn Street Suite 200 Chicago, IL 60605 Mr. James B. Luers Attorney at Law 1248 O Street Suite 800 Lincoln, NE 68508 for Plaintiff for Defendant Job No. CS1336570 Veritext Corporate Services 800-567-8658 973-410-4040 Page 2 1 I-N-D-E-X 2 WITNESS Direct 3 DR. L. DONOVAN 3 Cross 46 Redirect 61 Recross -- 4 5 EXHIBITS Marked Offered 6 51. Spine & Pain Centers Medical 7 Records 12 8 52. Supplemental Doctor's 47 -- 67 Statement -- -- 9 53. NPC Follow-Up Clinical 10 Visit Forms 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Veritext Corporate Services 800-567-8658 973-410-4040 Page 3 1 S-T-I-P-U-L-A-T-I-O-N-S 2 3 It is hereby stipulated and agreed by and between the parties that; 4 Notice of taking said deposition is 5 waived; notice of delivery of said deposition 6 is waived. 7 Presence of the witness during the 8 transcription of the stenotype notes is waived. 9 All objections are reserved until the time 10 of trial except as to form and foundation of 11 the question. 12 DR. LIANE E. DONOVAN, 13 Of lawful age, being first duly cautioned and 14 solemnly sworn as hereinafter certified, was 15 examined and testified as follows: 16 DIRECT EXAMINATION 17 BY MR. LUERS: 18 Q. 19 Luers. 20 Good afternoon, Doctor. My name's Jim Would you state your full name and spell 21 your last name, please. 22 A. Liane Donovan, D-0-N-0-V-A-N. 23 Q. And your office address? 24 A. 6940 Van Dorn, Suite 201. 25 Q. Doctor, you are a physician; is that Veritext Corporate Services 800-567-8658 973-410-4040 Page 4 1 correct? 2 A. Correct. 3 Q. Practicing here in Lincoln, Nebraska? 4 A. Correct. 5 Q. And what is your specialty? 6 A. Pain medicine. 7 Q. Are you board certified in that 8 specialty? 9 A. Yes. 10 Q. And how long have you been practicing 11 then? 12 A. Since '94. 13 Q. Okay. 14 here, the Pain -- Spine and -- or the Pain 15 and -- 16 A. I know. 17 Q. What is it? 18 A. Yes. 19 began I think in 2003. 20 Q. What's the name of it now? 21 A. Spine and Pain Centers of Nebraska. 22 Q. Okay. 23 specialists? 24 A. Yes. 25 Q. How many? Is that with the same clinic It keeps changing. Okay. But that's -- this officially And you practice with some other Veritext Corporate Services 800-567-8658 973-410-4040 Page 5 1 A. I practice with two other specialists. 2 Q. What are their names? 3 A. John Massey and Phil Essay. 4 Q. Okay. 5 clinic? 6 A. No, he is not. 7 Q. Where does he practice? 8 A. Omaha. 9 Q. Okay. Is Dr. Devney then in your All right. So he's not 10 associated with you in any way? 11 A. No. 12 Q. Doctor, have you had your deposition 13 taken before? 14 A. Yes. 15 Q. All right. 16 process? 17 A. Yes. 18 Q. Are you acquainted or do you know Mr. -- 19 what's his first name? 20 A. David. 21 Q. David Bliss? 22 A. Yes. 23 Q. Yes. 24 an independent recollection of Mr. Bliss? 25 A. So you're familiar with the As we sit here today, do you have Yes. Veritext Corporate Services 800-567-8658 973-410-4040 Page 6 1 Q. All right. Can you tell me how you 2 first met him? 3 A. 4 spinal cord stimulator. 5 Q. 6 that right? 7 A. Yes. 8 Q. Had you ever done any treatment on 9 Mr. Bliss prior to that? I first met him in an evaluation for Okay. So he came to your office; is 10 A. No. 11 Q. And had you ever known any other members 12 of his family or treated any other members of 13 his family? 14 A. No. 15 Q. All right. 16 A. Not that I know of. 17 Q. Do you know who recommended you to him? 18 A. I think he came in referral from 19 Dr. Lodhia. 20 Q. 21 referrals from Dr. Lodhia? 22 A. Yes. 23 Q. For pain patients? 24 A. Yes. 25 Q. All right. And is that -- do you typically get Are you acquainted with Veritext Corporate Services 800-567-8658 973-410-4040 Page 7 1 Mr. Bliss' attorney? 2 A. No. 3 Q. All right. 4 A. No. 5 Q. Are you aware, Ma'am, that there is a 6 lawsuit pending in this case involving 7 Mr. Bliss? 8 A. I'm aware now. 9 Q. Okay. Never spoken with him? You weren't at -- as of recent 10 times? 11 A. No, I was not. 12 Q. Okay. 13 treated other railroad employees that are 14 involved with pending lawsuits? 15 A. 16 think of anybody. 17 Q. Not familiar? 18 A. Yes. 19 Q. Okay. 20 familiar with specific crafts or job duties of 21 railroad workers? 22 A. 23 in general is that unless they are 100 percent, 24 it's hard to return to work, is how I 25 understood it. Have you ever, to your knowledge, I assume I probably have. No. But I can't As we sit here today, are you The only thing that I am aware of Veritext Corporate Services 800-567-8658 973-410-4040 Page 8 1 Q. Okay. But you know -- but as you sit 2 here today, for example, you don't know what -- 3 job requirements of a carman at the -- 4 A. No. 5 Q. -- Lincoln shops? 6 A. I do not. 7 Q. Okay. 8 that correct? 9 A. Correct. 10 Q. So you don't typically render opinions 11 as to whether an individual can return to work 12 or what types of activities that individual can 13 actually engage in in terms of work? 14 A. No, I do not. 15 Q. And you don't anticipate offering those 16 kinds of opinions in this case, do you? 17 A. No, I do not. 18 Q. How about FCEs? 19 your practice in conducting functional capacity 20 evaluations? 21 A. Rarely. 22 Q. All right. 23 typically how they are run? 24 A. Yes. 25 Q. And when you send them out, do you And you are not a voc expert; is Do you get involved in More often we send them out. Are you familiar with Veritext Corporate Services 800-567-8658 973-410-4040 Page 9 1 generally then look at the report and evaluate 2 them yourself? 3 A. Yes. 4 Q. Okay. 5 on Mr. Bliss? 6 A. I have. 7 Q. All right. 8 WorkWell dated -- 9 A. Yes. 10 Q. Looks like it's dated -- 11 A. 6-30-11. 12 Q. Correct. 13 A. Yes. 14 Q. Do you remember when or how? 15 A. Just before this deposition. 16 Q. Oh, really? 17 A. Yes. 18 Q. How did that come to you? 19 A. Just came in a form of just past 20 records. 21 Q. Okay. 22 A. My work comp nurse. 23 Q. Okay. 24 request for that? 25 A. Have you ever seen one conducted Do you have that one from You were provided with that? Who provided it to you? How did you -- did you make a I, prior to depositions, request prior Veritext Corporate Services 800-567-8658 973-410-4040 Page 10 1 records. 2 Q. 3 provided then just prior to this deposition? 4 A. 5 And I have an EMG study. 6 Q. 7 are the noted -- are the notes from Dr. Lodhia? 8 A. 9 the record. All right. What other records were I just -- I have Dr. Lodhia's notes. And could you tell me, please, what date He has one -- and this may have been in Although, I'm not sure. This 10 one's from 11-7-11, just a letter to 11 Dr. Kreshel. 12 Q. Okay. 13 A. And then I have another one of his that 14 is from 9-2-11. 15 Dr. Kreshel. 16 Q. Okay. 17 A. And that's all the notes I have. 18 Q. And then you've got the -- 19 A. I have the EMG. 20 Q. And when is that dated? 21 A. That is dated 7-13-11. 22 Q. From -- and who provided that to you? 23 A. Actually, I think I had that prior 24 because I was aware of the EMG. 25 Q. And that is another letter to Okay. Veritext Corporate Services 800-567-8658 973-410-4040 Page 11 1 A. 2 evaluation from 6-30-11. 3 And then I have the functional capacity And then I have an old op report. But I 4 already had this prior from Dr. Noble from 5 2003. 6 Q. 7 were provided to you -- when you say just 8 prior, is that, like, within the last week? 9 A. Yes. 10 Q. Okay. 11 week -- 12 A. Yes. 13 Q. -- did you have an opportunity to review 14 old medical history of Mr. Bliss? 15 A. 16 I was aware of Dr. Devney's notes regarding a 17 radiofrequency he had done. 18 Q. 19 with this particular client in looks like 20 September of 2011; is that right? 21 A. Yes. 22 Q. Okay. 23 those medical records, you're not aware of any 24 other medical history? 25 A. Very good. So all of those documents Prior to that, prior to this past I was aware of his 2003 operation. And And Dr. Devney actually got involved So other than those -- other than No, I'm not. Veritext Corporate Services 800-567-8658 973-410-4040 Page 12 1 Q. 2 FCE, did you have an opportunity then in the 3 past week to review that? 4 A. Yes, I have. 5 Q. Is there anything in there that jumps 6 out at you that would suggest to you that it's 7 not valid or it wasn't valid at the time it was 8 taken? 9 A. No, I do not. 10 Q. All right. 11 June 30th, 2011, it appears to be a valid 12 evaluation of his physical -- of Mr. Bliss' 13 physical capabilities? 14 A. Yes. 15 Q. Okay. 16 17 All right. With regards to the WorkWell At least as of the date of Dr. Devney saw the patient. MR. LUERS: I'm going to mark this as an exhibit. 18 (Exhibit No. 51 marked for 19 identification.) 20 Q. 21 what I hope to be a fairly complete compilation 22 of Dr. Devney and then your office notes. 23 it's marked as Exhibit 51. 24 25 (BY MR. LUERS) Doctor, I've put together And It appears that Dr. Devney first saw Mr. Bliss on September 9th of 2011. Is that Veritext Corporate Services 800-567-8658 973-410-4040 Page 13 1 your understanding? 2 A. Yes. 3 Q. When Dr. Devney sent the patient or -- 4 no. 5 the patient to you. 6 minute. 7 A. You know, that's -- 8 Q. Strike that. 9 A. It's a good question. Dr. -- I'm sorry. Dr. Devney didn't refer Was it -- well, wait a And I'm trying to 10 remember how he came. I have it written as 11 Dr. Lodhia. 12 have come through Devney. 13 Q. I think maybe I did see -- 14 A. Did it come through him? It's possible. 15 Q. Well, it doesn't matter. But at any 16 rate, let me -- let me -- when he -- when 17 Mr. Bliss came to you, you had at least been 18 provided with Dr. Devney's medical records; 19 correct? 20 A. Yes. 21 Q. And as of 9-9 of 2011, if you could look 22 at pages -- that initial report of 23 Dr. Devney -- 24 A. Uh-huh. 25 Q. -- on the second page, the objective -- But I'm not sure whether it might Veritext Corporate Services 800-567-8658 973-410-4040 Page 14 1 looks like a -- sort of a general physical 2 exam -- 3 A. Yes. 4 Q. -- with the exception of some loss of -- 5 slight loss of sensation on the left foot and 6 some reflexes that are absent, would you agree 7 with me, Doctor, that that physical exam was 8 pretty normal? 9 A. Yes. 10 Q. And the impression then included a 11 variety of these low back pain, mostly lumbar 12 disc degeneration, facet and probably lumbar 13 spinal stenosis. 14 be attributed to longstanding spine 15 degeneration? 16 A. Yes. 17 Q. Okay. 18 understanding that at least as of that initial 19 report, Dr. Devney didn't impose any 20 restrictions on Mr. Bliss? 21 A. Not that I am aware of. 22 Q. All right. 23 And that begins on page 5. Are those -- can all of those And is it -- was it your 9-19 was his next report. 24 Again, the condition was generally 25 negative except for a few of the -- of the Veritext Corporate Services 800-567-8658 973-410-4040 Page 15 1 original complaints; correct? 2 A. Yes. 3 Q. 9-26, they -- he proceeded with a -- is 4 that a rhizotomy? 5 A. Yes. 6 Q. Tell me what that is, Doctor. 7 A. It is a -- it is a alternating current. 8 It's actually a burn of the nerve to the joint, 9 the facet joint in the back. So he -- 10 Q. What is the purpose of that? 11 A. It is with the understanding that the 12 pain in the back is related to facet pain or 13 facet-mediated pain so arthritis in the spine 14 and that the intent of the rhizotomy is to 15 remove the sensory portion of what somebody 16 feels with that range of motion in the joint 17 and, therefore, decrease their pain. 18 Q. 19 done on patients that are suffering from, like, 20 multi-level degenerative spine? 21 A. Usually multi-level facet degeneration. 22 Q. Okay. 23 A. So it only works -- you do the medial 24 branch or the diagnostic block to prove that a 25 good portion of their back pain is related to Is that -- and like you said, that's Veritext Corporate Services 800-567-8658 973-410-4040 Page 16 1 the joint. 2 Q. Okay. 3 A. And not a disc or anything else. 4 Q. So if the pain is alleviated, then it 5 is, at least some of the pain that they're 6 complaining of is related to the facet joint? 7 A. Yes. 8 Q. And is the facet joint something that, 9 again, degenerates over time and that can be a 10 normal process? 11 A. Yes. 12 Q. On November 7th, which is page 12, up 13 above, mark the pages. 14 A. Uh-huh. 15 Q. Under subjective, I think it's the third 16 sentence or fourth sentence, it says, "He 17 reports 95 percent pain reduction." 18 A. Yes. 19 Q. So that's -- that's indicative of, like 20 you said, if it's an arthritis-related 21 condition? 22 A. Yes. 23 Q. And certainly with that kind of pain 24 reduction, there's no indication that as of 25 November 7th of 2011, there would be any reason Veritext Corporate Services 800-567-8658 973-410-4040 Page 17 1 to impose additional -- or any restrictions; 2 correct? 3 A. Correct. 4 Q. And as far as you know, there were no 5 restrictions? 6 A. As far as I know. 7 Q. Okay. 8 that page, 12 -- 9 A. Uh-huh. 10 Q. -- it says, toward the bottom, "Lumbar 11 range of motion is full in all directions with 12 mild discomfort. 13 remains unchanged. 14 extremities." 15 A. Yes. 16 Q. All right. 17 which is page 14, this is the first time that 18 you actually saw the patient; is that accurate? 19 A. That is correct. 20 Q. Okay. 21 under the past, family, social, employment 22 history. 23 "Work history" -- 24 A. Yes. 25 Q. -- "no changes required. Under the objective portion on His neurological assessment No edema noted in the lower Pretty normal; correct? If we go to November 18th, Talk to me a little bit about There is a line there that says, He works at Veritext Corporate Services 800-567-8658 973-410-4040 Page 18 1 BNSF as a carman." Obviously he would have 2 told you -- he would have provided you that 3 information? 4 A. Yes. 5 Q. When you -- says no changes required, I 6 take it at that point in time, you're not 7 imposing any restrictions or limitations? 8 A. 9 required, it's been updated. It would -- when it says no changes That is how he 10 described his work history. 11 necessarily talk about restrictions. 12 So it doesn't It's how they say, like, I'm a 13 secretary. Patient is a secretary. 14 doesn't say currently disabled, currently -- I 15 mean, they usually add that if I -- if I -- a 16 change is required, they say currently disabled 17 is a change, then you would remove the -- it 18 would change that way so -- 19 Q. 20 some reason either you believed it or the 21 patient believed that he was unable to return 22 to work as a carman, you would add disabled 23 or -- 24 A. Correct. 25 Q. -- restricted or -- Okay. So it So you would add -- if -- if for Veritext Corporate Services 800-567-8658 973-410-4040 Page 19 1 A. Yeah. 2 MR. McMAHON: Objection. 3 Foundation as to what Mr. Bliss thinks. 4 Q. 5 would be provided to you then, and that might 6 dictate a change? 7 A. Yes. 8 Q. Okay. 9 November 18th, it was still your understanding (BY MR. LUERS) But that information In this instance, at least as of 10 that he was working as a carman or would return 11 to work as a carman? 12 A. 13 don't -- this is in his writing. 14 as last date of employment, February 3rd, 2011. 15 Q. Correct. 16 A. But -- 17 Q. That's when his alleged injury occurred; 18 correct? 19 A. Yes. 20 Q. At least that's your understanding? 21 A. Yes. 22 Q. Okay. 23 initial pain overview -- 24 A. Yes. 25 Q. -- paragraph of your report. Yes. I do have in his intake -- and I He does say And I think that's in your Veritext Corporate Services 800-567-8658 973-410-4040 Page 20 1 Was there any indication in your initial 2 visit here of November 18th, 2011, that 3 Mr. Bliss was having shoulder problems or 4 complaints of pain in his shoulders? 5 A. No. 6 Q. Go to 12-21, which I think is the next 7 visit that you had with Mr. Bliss. 8 page 18? 9 A. Yes. 10 Q. Was that your next visit? 11 A. Yes. 12 Q. All right. 13 to any change in work history there; correct? 14 A. Correct. 15 Q. Is there any indication in that report 16 of any complaints of shoulder pain or shoulder 17 problem? 18 A. On that date -- December 21st? 19 Q. Yes. 20 A. He doesn't say it in his intake with the 21 nurse. 22 That's on Again, there's no reference But on his picture, his pain diagram, he 23 does draw just a mark across the shoulder 24 there. 25 Q. Okay. Veritext Corporate Services 800-567-8658 973-410-4040 Page 21 1 A. So at that point -- but he didn't -- 2 usually what we discuss or address are the 3 things they want to talk about. 4 times with the type of pain patients, we'll 5 often see a whole body covered, but you have to 6 focus on an area. 7 places are marked, it doesn't necessarily mean 8 we address it unless a patient wishes to 9 address it. Okay. So a lot of So sometimes when other 10 Q. Were you aware at that time that 11 he was treating with any other physicians for 12 shoulder problems? 13 A. No, I was not. 14 Q. He never brought that to your attention? 15 A. No. 16 Q. Were you aware that he had had surgery 17 on December 5th for his shoulder? 18 A. No. 19 Q. Okay. 20 you any indication as of December 21st that he 21 had gone through physical therapy at least four 22 times or three times -- three or four times as 23 of that date for the shoulder? 24 A. No, I don't have that. 25 Q. Okay. Would -- did he make any -- give Veritext Corporate Services 800-567-8658 973-410-4040 Page 22 1 A. I do see, though, that I have written 2 multiple times that he is in litigation. 3 guess I just -- that doesn't tend to be 4 something I focused on. 5 was aware he was in litigation, I must have 6 known it. 7 Q. Oh, no. 8 A. Yeah, but I never concentrate -- 9 Q. That's fine. I So when you asked if I That's okay. You didn't know he was 10 treating for shoulder problems and had surgery 11 and physical therapy? 12 A. I was not aware. 13 Q. Okay. 14 according to your history, it looks like his 15 pain has improved? 16 A. Yes. 17 Q. And if you look on page 19, down on 18 comments -- 19 A. Yes. 20 Q. -- you say, "He's -- he's doing 21 considerably better and pain is something he 22 can live with." 23 As of that 12-21 visit, at least And then you go on to say, "He is able 24 to work but not likely at full capacity that he 25 had been." Veritext Corporate Services 800-567-8658 973-410-4040 Page 23 1 What changed -- what, if anything, if 2 you recall, made you make that comment? First, 3 let me ask you that. 4 A. 5 necessarily -- the comments wouldn't 6 necessarily be based upon a physical exam 7 finding or a change that way. 8 based upon their statement that they have some 9 concern about whether they would be able to Usually when -- that wouldn't It's usually 10 continue to work. 11 Q. 12 statement there is based upon what he told you? 13 A. Yes. 14 Q. And then what about, "He would likely be 15 qualified for light or sedentary duty"? 16 same thing true there? 17 telling you? 18 A. 19 when they -- they're unsure whether they would 20 be able to work, we would still say -- my job, 21 kind of my opinion of my job is to keep people 22 going, to have them continue to work in some 23 capacity. 24 25 Okay. So is it probable that that I don't recall. Is the Is that what he's Sometimes -- sometimes When someone has chronic pain, the worst thing you can do is to disable them and let Veritext Corporate Services 800-567-8658 973-410-4040 Page 24 1 them sit at home and not do anything. 2 So most of the time if they can't 3 perform full capacity, such as with a railroad 4 job, is my understanding, light duty or some 5 sort of work to continue to work in some 6 capacity tends to be in a pain patient's best 7 interest and something that we'd recommend or 8 we'd like them to continue. 9 Q. Okay. You weren't -- you weren't 10 rendering an opinion there in that sentence 11 based upon, like, the Social Security work 12 categories as to whether he was eligible for 13 light, medium -- 14 A. No. 15 Q. -- or heavy duty? 16 A. No, no. 17 pounds that he can lift or time that -- no. 18 It's more we believe he should be able to 19 continue to work in some capacity. 20 Q. Okay. 21 A. Exactly. 22 Q. Okay. 23 impose any restrictions on him? 24 A. No. 25 Q. All right. It's not based on specific Whether it be light or medium? And you didn't at that time Next visit was March 20th; Veritext Corporate Services 800-567-8658 973-410-4040 Page 25 1 is that correct? 2 A. I believe so. 3 Q. If you look on the -- page 22, under 4 history, second paragraph, you say -- he says 5 that, "Pain is exacerbated by walking long 6 distance." 7 what he referenced as being long distance? 8 A. No, I don't recall. 9 Q. Would -- okay. Can -- do you recall, perchance, You also say that he 10 gets 80, 90 percent of relief from meds and 11 that the pain is considerably better; correct? 12 A. Correct. 13 Q. Again, when you're doing your physical 14 exam, you note, "No acute distress." 15 doing pretty well at that point? 16 A. Yes. 17 Q. Okay. 18 next visit. 19 pretty much unchanged, relatively good; 20 correct? 21 A. Yes. 22 Q. Exercise program, I think you're 23 recommending under musculoskeletal on the 24 second -- on page 26 -- 25 A. So he's Go to April 19th, which is the Same thing, physical exam is Yes. Veritext Corporate Services 800-567-8658 973-410-4040 Page 26 1 Q. -- you say, "Can undergo exercise 2 testing and/or participate in exercise 3 program." 4 Doctor? 5 A. 6 electronic medical record, if you -- when 7 you're going through the record, if you push 8 the normal button, it will put that out. 9 not sure that's always an accurate statement. What did you have in mind there, That's an interesting thing because the 10 But if you look back probably through the 11 I'm record, it says that each time. 12 It's the assumption that -- I will 13 change it if -- the best thing -- the more 14 accurate thing would be normal gait and 15 station, you know, whatever, no -- that sort of 16 thing rather than what comes out on that form. 17 But that's what it implies. 18 So I would say that he would be able to 19 undergo normal exercise and activity, but that 20 is not a new finding. 21 been the whole way through. 22 Q. 23 normal exercise and activity be? 24 his case, as of April -- 25 A. Okay. That's probably how he's And then what would -- what would I mean, in ADLs, whatever he normally does, his Veritext Corporate Services 800-567-8658 973-410-4040 Page 27 1 activities of daily living. 2 feeling that he was limited in his ability to 3 do the things that he had been doing all along. 4 Q. 5 you at that time anything changed with regards 6 to his belief that he could -- that he was 7 working as a BNSF carman or could work? 8 A. Yes, he did not. 9 Q. May 21st, 2012, which is the next visit, Okay. I didn't get the And, again, he didn't indicate to 10 second paragraph under history -- and, quite 11 frankly, on there you have the referral as 12 Dr. Lodhia. 13 A. It is there? 14 Q. Yeah. 15 A. Okay. 16 Q. It's on page 28. 17 A. Uh-huh. 18 Q. Second paragraph under history. 19 A. Yes. 20 Q. He talks about, "Pain as stiff and sore 21 first thing in the morning and by noon is 22 feeling great. 23 to return." 24 of -- in this kind of condition? 25 A. By evening the pain is starting Is that uncommon in this kinds No, it is not. Veritext Corporate Services 800-567-8658 973-410-4040 Page 28 1 Q. Okay. What -- what is the precipitating 2 factor for someone that starts getting more 3 pain as the day progresses? 4 A. 5 have pain, just as a general rule, people who 6 have pain in the morning tend to be more 7 arthritis related, get up in the morning, 8 they're stiff from lying in bed. 9 would be kind of -- when you're looking at When we ask about time of day that you And so that 10 facets or when you're looking at that sort of 11 thing, you always kind of look toward morning 12 pain. 13 Pain as the day progresses or more pain 14 towards the end of the day suggests more disc 15 mediated or other causes for pain. 16 So this would suggest he has some return 17 of the arthritis pain but he may also have 18 his -- the pain related to his spine and what 19 he's had in the past. 20 Q. 21 exacerbated by no meds." 22 take himself off the meds? 23 saying? 24 A. 25 medication, like, if he's saying -- yes, I Okay. All right. It says, "Pain is I guess what? Did he Is that what he's I think he's saying when he's not taking Veritext Corporate Services 800-567-8658 973-410-4040 Page 29 1 would say if he skips a dose, he notices more 2 pain. 3 Q. 4 too much activity and long car rides," again, 5 do you have any recollection of what he meant 6 by long car rides there? 7 A. I do not. 8 Q. Okay. 9 All right. "Standing in one place or That's all right. The pain on the VAS scale, 3 and -- out 10 of 10, what -- tell me how you -- how you rate 11 that and how you present that to the patient. 12 A. 13 21st? 14 Q. Yes, Ma'am. 15 A. He does write on his intake, he says, he 16 is "stiff and slow getting around in the 17 morning and loosens during the day. 18 for more than 15 to 20 minutes is the limit I 19 have." 20 Q. Okay. 21 A. "I have to sit down. 22 30 minutes to an hour and then sit down. 23 midday, the back pain will leave, and I have no 24 symptoms, but foot pain remains." 25 Q. You know what I do have? Is this May Standing Walking, I can go By Doctor, I didn't ever get those intake Veritext Corporate Services 800-567-8658 973-410-4040 Page 30 1 pages. 2 A. 3 what we tend to do is when a patient is 4 sitting, about to come back, they'll write, you 5 know, the information that we ask. 6 Q. 7 about driving there? 8 A. He just mentions -- 9 Q. Long car rides? 10 A. No. 11 standing more than -- no, he does not. 12 Q. 13 regards to the pain, 3 on a scale of 10 -- 14 A. Yes. 15 Q. -- tell me how that is presented to the 16 patient and how do you analyze that? 17 A. 18 to analyze is a lot of times a visual analog 19 scale, people learn it almost like they learn 20 their Social Security number, what's your pain 21 today, it's a 10. 22 pain ever, it's a 10. 23 how they are. 24 25 I can get those to you. I understand. That's just -- Did he write anything Okay. Just about having to sit down -- And then back to my question with Well, the more -- the more accurate way It's, like, that's the worst You know, that's kind of Really, the more accurate way is to use a scale such as this but, actually, it be, you Veritext Corporate Services 800-567-8658 973-410-4040 Page 31 1 know, 10 inches or 10 centimeters and where 2 they put their X on the scale should actually 3 be measured. 4 reading based upon -- on a line where their 5 pain tends to sit. 6 that's probably a little bit more accurate 7 because where they put it, they don't memorize 8 where they are on the line. 9 Q. Sure, sure. 10 A. And that's actually a little bit more 11 accurate than using a number. 12 pretty well-controlled pain as a whole. 13 Q. 14 this right, is August 22nd. 15 A. I have it as August 22nd as well. 16 Q. Okay. 17 functionality has decreased. 18 anything in terms of your evaluation that 19 either confirmed or refuted that, or do you try 20 to do that? 21 A. 22 self-report as a means of figuring it out. Okay. And then you have a measured And that can help you. And But a three is Then the next visit, if I've got There he's reporting that his Did you do We use a lot of their report, their 23 Sometimes when something changes 24 considerably, we will kind of watch what 25 they're doing or whatever. But we -- we use Veritext Corporate Services 800-567-8658 973-410-4040 Page 32 1 actually functionality more than the VAS, the 2 score, because, again, like you said, one's 3 just a number. 4 hurt more, I haven't been able to do as much, I 5 can't go to the mailbox, I can only get around 6 in the kitchen and I have to sit, that sort of 7 thing. 8 detailed report. 9 Whereas, I'm not doing -- I So a lot of times they'll give us more That's pretty vague except for he is now 10 walking with a cane, which looks like that's 11 something different. 12 Q. 13 functionality was -- has decreased, did he give 14 you any more specifics than that? 15 A. 16 "Tramadol use goes up with activities. 17 swelling in fingers hurt. 18 Pain in both heels and balls of feet and 19 grinding teeth," is what he wrote on his intake 20 form. 21 Q. 22 analysis yourself to determine if his 23 functionality had, in fact, decreased? 24 A. No. 25 Q. Okay. When he -- when he reported his He writes that he's same to worse, that Hand Low back stiffness. So you didn't conduct any evaluation or And as far as why he was -- why Veritext Corporate Services 800-567-8658 973-410-4040 Page 33 1 he had bought a cane, do you know what -- what 2 specific physical problem led him to do that? 3 In other words, was it the pain in his feet, do 4 you know? 5 it meds? 6 A. 7 why he was using the cane. 8 Q. 9 complaint of bilateral hands and feet. Was it -- was it his balance? Was It's more the foot pain, I believe is He -- you have it that he has a new What 10 would that signify to you, if anything? 11 A. 12 want to look for is, like, peripheral 13 neuropathy, new onset diabetic, is there some 14 sort of thing going on, is there a vitamin 15 deficiency, you know, causes for peripheral 16 neuropathy as that pain. 17 Well, I guess the one thing you always But other times, when we see pain that 18 kind of is random, sometimes it can also be 19 more related to depression or other changes as 20 they -- again, that's the reason why I like 21 getting them to work sooner or do something 22 because when you sit around and dwell on your 23 pain, you notice more pain. 24 Q. 25 time, do you counsel the patient to get out Were you -- throughout this period of Veritext Corporate Services 800-567-8658 973-410-4040 Page 34 1 and -- 2 A. Yes. 3 Q. -- engage in exercise? 4 A. Always. 5 Q. And try to work? 6 A. Always. 7 Q. Did you -- were you having any success 8 in Mr. Bliss' -- 9 A. He -- he -- his problem and the problem 10 pretty much from the beginning is that the 11 medications always helped him, but the sexual 12 side effects was causing a lot of problems in 13 his house. 14 in, the main thing that he would be talking 15 about is erectile dysfunction. 16 So every time that he would come So we would counsel, you know, getting 17 up and doing things and moving around and how 18 big a deal is this because if it's a big enough 19 deal, it is usually worth changing medication. 20 If a side effect is greater than its 21 benefit, we should absolutely change a 22 medication. 23 So his main focus -- I was never under 24 the impression -- usually when somebody is not 25 functional, he -- he described himself, I mean, Veritext Corporate Services 800-567-8658 973-410-4040 Page 35 1 a 3 out of 10 pain, 80 to 90 percent 2 improvement. 3 person. 4 what, you need to get out of your chair and 5 quit just watching TV. 6 day. 7 I feel is less functional. 8 time on that discussion. That's a pretty functional So you're less likely to say, you know What do you do in the 9 And I'll see that more with somebody who We will spend more In his particular case, he never really 10 described decreased functionality until this 11 visit. 12 effects of the medication, although -- 13 although, the medications were very helpful to 14 him. 15 Q. Okay. 16 A. And it would be more counseling in that 17 direction. 18 Q. 19 you correct me if I'm wrong -- basically you 20 felt that his activity level was probably high 21 enough that you didn't have to spend a lot of 22 time on encouraging him to work hardening and 23 those kinds of things? 24 A. Yes. 25 Q. All right. So he was mainly describing the side So if I understand you correctly -- and There was no indication to Veritext Corporate Services 800-567-8658 973-410-4040 Page 36 1 you, at least through your analysis over these 2 months and your physical exams, that he was 3 incapable of engaging in normal activities? 4 A. No, there was no indication. 5 Q. All right. 6 assessment, you do reference encouraging him to 7 attend the YMCA and to increase his activities. 8 So at least there was some indication at that 9 point in time maybe you felt he should increase On page 32, under 10 his activity? 11 A. 12 in. 13 a cane. 14 happened between those three months or the last 15 visit and how do we get him back to doing what 16 he was. Yeah. And you can kind of see, he comes He says he's less functional. 17 Okay. He's using How do we get him back, what There's not a big fall or something that 18 changed significantly. 19 need a little push to say, you know what, if 20 you're okay in the water, you're going to start 21 to be okay in land and you get moving again. 22 Sometimes they just And he looks like he expresses interest 23 in trying to -- he recognizes it as well. And 24 is actually saying going to the Y with his son. 25 So he's proactively trying to do something, Veritext Corporate Services 800-567-8658 973-410-4040 Page 37 1 which is also unusual with our patients so -- 2 Q. 3 you know if he joined the Y or if he did any 4 aquatherapy? 5 A. I do not. 6 Q. Okay. 7 August 21st -- excuse me, August 22nd, 2012, 8 you still had not imposed any specific 9 restrictions on Mr. Bliss; is that correct? Did you -- did you follow that up, or do As of that date of May -- or 10 A. That is correct. 11 Q. And that -- is that the last time you've 12 seen him? 13 A. Yes, that I'm aware of. 14 Q. Okay. 15 you prescribing for Mr. Bliss? 16 A. Cymbalta and Lyrica. 17 Q. And what is Cymbalta for? 18 A. Cymbalta is -- what it does is it 19 increases serotonin and norepinephrine, some 20 neurotransmitters that get depleted with pain. 21 It is an antidepressant, but we don't use it -- 22 its indication is more for neuropathic pain. 23 And most of the time people in pain also have 24 some depression associated with it. 25 Q. As of that date, what meds were He says he's taking up to six Tramadol a Veritext Corporate Services 800-567-8658 973-410-4040 Page 38 1 day. 2 A. That must be through his primary care. 3 Q. And what is Tramadol? 4 A. Tramadol is a -- it is a pain medication 5 that works at a narcotic receptor. 6 it's schedule -- I don't remember its schedule 7 dosing. 8 9 Where is he getting that prescription? It is -- But it doesn't -- it's not like hydrocodone. So people sometimes will have 10 samples in their office or things like that. 11 It's a lot less regulated. 12 purpose, it's a narcotic. 13 Q. Okay. 14 A. Lyrica's an anticonvulsant. 15 something called an alpha 2 delta receptor. 16 what it's supposed to do is stabilize the way a 17 nerve sends a pain signal. 18 But all intents and And Lyrica? It works at So If you -- if you block the calcium 19 channel through there, you don't have pain. 20 So, again, it's for neuropathic pain is what we 21 use it for. 22 Q. 23 narcotic drug in conjunction with what you're 24 trying to do with your other drugs? 25 A. Although, it's a anticonvulsant. How do you monitor his use of this I -- I tend not -- I tend not to Veritext Corporate Services 800-567-8658 973-410-4040 Page 39 1 prescribe narcotics very often for chronic 2 pain. 3 monitor it is on an intake, asking the patient 4 what are they taking. How -- the only way that we tend to 5 I don't try to second guess necessarily 6 their primary care unless I see a red flag or a 7 reason that they should be a little more aware 8 of something. 9 If I'm giving them a pain medication and 10 I find out someone else is, that's a definite 11 red flag. 12 And that would be a reason. But I've never given him as such a pain 13 pill. And so what his primary care is doing is 14 kind of between them. 15 Q. 16 four to six tablets daily -- 17 A. 18 personal opinion. 19 judge. 20 that is the correct number or not. 21 that is a really high dose. 22 Q. 23 question. 24 point -- 25 A. Okay. So this Tramadol, 100 milligrams, That's an outrageous amount in my But, again, I try not to It almost makes me question whether I understand. Because And I guess that was my Is -- is there any concern at this Yes. Veritext Corporate Services 800-567-8658 973-410-4040 Page 40 1 Q. Okay. 2 A. See, initially on my initial ones, he 3 was on 100 milligrams. 4 the way an extended-release medication works is 5 it is supposed to be slowly released by 6 whatever -- whatever substance that you want to 7 use to cause it over a certain period, whether 8 it be 12-hour, 24-hour. 9 And this is another -- I'm amazed by how often the medication 10 is not prescribed correctly. 11 that's an extended-release medication. 12 people, you'd never give that person in a 50 13 milligram form, whatever -- 10, 15 of those. 14 And, yet, you're somewhat doing that when 15 you're giving them three a day of 100 16 milligrams or six a day of a 100-milligram 17 pill. 18 As 100 milligram, Most Again, I question the judgment of that. 19 But I -- I'll just leave it at that. 20 Q. 21 didn't have any -- any -- you don't recall any 22 specific visits that you had with Mr. Bliss 23 concerning his narcotic medications? 24 A. No, I did not. 25 Q. Okay. Okay. I understand. All right. You All right. Veritext Corporate Services 800-567-8658 973-410-4040 Page 41 1 A. The other thing that's really hard is 2 that oftentimes when they come from a 3 neurosurgeon or they come from a surgical 4 consult or standpoint, we're not necessarily 5 monitoring the primary care's care. 6 just handling that part of it. 7 wasn't prescribing it, we're not prescribing 8 it, it is of concern. 9 Q. I understand. So we're So Dr. Lodhia Do you know who's 10 prescribing it? I mean, for sure or -- 11 A. 12 his primary care is. 13 assuming. 14 Q. 15 aware of that he's taking? 16 A. No, I'm not aware of any others. 17 Q. Now, at least as of November of 2011, he 18 had -- he was on hydrocodone. 19 been through -- from the shoulder surgery or -- 20 A. Yes, I would assume so. 21 Q. Okay. 22 A. I would assume so. 23 Q. All right. 24 scheduled for, like, three months from August; 25 is that right? I assume Dr. Kreshel because that's who But I don't -- I'm But I don't know. Okay. Any other medications that you're That could have Next visit that you have is Veritext Corporate Services 800-567-8658 973-410-4040 Page 42 1 A. Yes. 2 Q. And why -- why do you have another visit 3 scheduled, and how long is -- what are your 4 plans? 5 Mr. Bliss? 6 A. 7 needs to be seen at intervals -- and his 8 interval, it would probably be further apart. 9 If I saw him and he's still on Cymbalta at 60 10 or Lyrica at 100 three times a day or whatever 11 he's on and he's been stable like that for a 12 year or whatever, I'd probably extend those 13 visits to six months because there's not a 14 reason that we need to. 15 What is the prognosis and plans for As a whole, somebody with chronic pain The -- the Tramadol use or things like 16 that may -- may make it so that it would be 17 valuable for him to come in sooner in a 18 situation like that. 19 Q. Got you. 20 Do you -- strike that. 21 You didn't have an opportunity to review 22 any MRIs or -- 23 A. I have seen his MRIs before. 24 Q. Oh, have you? 25 A. Yes. Veritext Corporate Services 800-567-8658 973-410-4040 Page 43 1 Q. Okay. The MRIs that reveal the lumbar 2 disc degeneration, the facet arthropathy, the 3 lumbar spinal stenosis, again, all of those 4 things can be attributable to simply a 5 degenerative process of the spine; correct? 6 A. Correct. 7 Q. And you saw those, I take it, on the 8 MRIs prior to -- of those MRIs prior to 9 February 3rd of 2011; correct? 10 A. Yes. 11 Q. That's a yes? 12 A. Yes. 13 Q. Okay. 14 identified -- and I don't know if I'm telling 15 you anything you don't know. 16 identified as a possible expert for the 17 plaintiffs in this case at trial. 18 aware of that? 19 A. No, I was not. 20 Q. All right. 21 suggested that you have some specific opinions 22 relative to functional limitations, medication 23 requirements and job restrictions. 24 is that -- based on what our earlier -- your 25 earlier testimony was, I take it that's not Doctor, you have been But you've been Were you You -- it is -- it is Is that -- Veritext Corporate Services 800-567-8658 973-410-4040 Page 44 1 entirely accurate? 2 A. Yeah, that is not entirely accurate. 3 Q. Okay. 4 you have opinions as to what his current 5 functional limitations are? 6 A. No, I do not. 7 Q. All right. 8 relative to what his -- what, if any, job 9 restrictions he has? For example, do you know or do Do you have opinions 10 A. 11 assessment. 12 Q. The FCE? 13 A. Uh-huh, yes. 14 Q. That FCE revealed a medium to heavy 15 work? 16 A. Correct. 17 Q. Okay. 18 pain? 19 that -- well, let me back up. 20 It would only be based upon his prior What about opinions as to his Do you have opinions as to whether As we sit here today, do you know what 21 specifically is causing Mr. Bliss' pain and 22 where it's located? 23 A. I would say it's multifactorial. 24 Q. Okay. 25 A. I would say that by the response he had Veritext Corporate Services 800-567-8658 973-410-4040 Page 45 1 from his rhizotomy, that there is definitely a 2 facet or arthritis component to his pain. 3 I would say that based upon his EMG 4 studies, he has some chronic L5 radicular -- 5 radiculopathy. 6 too. 7 suggest. 8 And there might have been S1, I'm not sure. But the EMG studies would So he's got both lower extremity pain 9 and back pain, which can be accounted for. 10 then the MRI findings suggest some chronic 11 changes that way. 12 the cause of his current pain, I'm not sure. 13 Q. 14 having any pain, for example, in his knees and 15 what's causing the knee pain? 16 A. I do not. 17 Q. Foot pain we talked about or the hand 18 pain, we don't know if that is -- if there's 19 a -- what's the word for it? 20 reason -- 21 A. We don't know. 22 Q. -- or if it's just -- okay. 23 And Whether those are actually Do you know what -- to what extent he is Physiological What about shoulder pain? Do we know if 24 any of his current conditions are related to 25 his shoulder problems? Veritext Corporate Services 800-567-8658 973-410-4040 Page 46 1 A. I do not know. 2 Q. Okay. 3 me look for -- 4 A. You're fine. 5 Q. You would agree with me that Mr. Bliss 6 was clearly suffering from degenerative disc 7 disease prior to February 3rd of 2011? 8 A. Yes. 9 Q. The -- I think you've already told me, I'm just about done, Doctor. 10 the FCE appeared to be a valid FCE; correct? 11 A. Let Yes. 12 13 MR. LUERS: Doctor, thank you. That's all the questions I have. 14 THE WITNESS: Thank you. 15 CROSS-EXAMINATION 16 BY MR. McMAHON: 17 Q. 18 some of the questions regarding any opinions 19 that you might have, work restrictions or 20 whatnot. Just a few, Doctor. Following up on 21 Since I'm his attorney and I'm the one 22 that disclosed it, let me show you a document. 23 24 MR. McMAHON: I guess we should mark this as Exhibit 52. 25 /// Veritext Corporate Services 800-567-8658 973-410-4040 Page 47 1 (Exhibit No. 52 marked for 2 identification.) 3 Q. (BY MR. McMAHON) Doctor, you recognize 4 your signature is on this document? 5 A. Yes. 6 Q. Okay. 7 document for Mr. Bliss? 8 January 27th, 2012. 9 A. Yes. 10 Q. Okay. 11 A. I did not -- I didn't fill it out, 12 though. 13 Q. Okay. 14 A. That is actually our work comp nurse 15 that filled it out. 16 Q. 17 No. 7? 18 A. Yes, yes. 19 Q. Your name is included in there? 20 A. I did -- I must have read over it to 21 sign it. 22 Q. 23 signed the document? 24 A. Yes. 25 Q. Okay. Do you recall filling out this I think it's dated BNSF objects to the testimony as hearsay without an exception and as not relevant. Fed. R. Evid. 402, 403, 801 and 802. Ruling: Overruled And -- You didn't fill it out? Although your name is dated in the box So you must have reviewed this when you And do you hold the opinions that Veritext Corporate Services 800-567-8658 973-410-4040 Page 48 1 are listed here that were submitted with this 2 form on January 27th, 2012? 3 A. Yes. 4 Q. And on those forms, you both gave your 5 diagnosis and the diagnosis -- working 6 diagnosis that you had at the time; is that 7 correct? 8 A. Yes. 9 Q. And you attached medical records that we 10 just went over in great detail to this -- to 11 this document; is that right? 12 A. Yes. 13 Q. And you indicated some of the past 14 surgeries and medical history that Mr. Bliss 15 had undergone; is that correct? 16 A. Correct. 17 Q. Box No. 3. 18 Box No. 5 was -- asked your opinion 19 regarding his ability to return to work. And 20 on that you said that he's not able to return 21 to work but he needs light to sedentary work, 22 which agrees with the opinions that were 23 revealed in your medical records; correct? 24 A. Yes. 25 Q. And you stated on earlier questions that Veritext Corporate Services 800-567-8658 973-410-4040 Page 49 1 it's your understanding just through your work 2 experience, that the railroad carman position 3 doesn't have a light or sedentary work 4 assignment, but it was your opinion that he 5 could return to work at the railroad in a light 6 or sedentary position; correct? 7 A. Yes. 8 Q. And both -- you testified that, in fact, 9 that is good for a patient like Mr. Bliss who 10 has chronic pain to be out and doing some type 11 of employment even if it's in a sedentary type 12 of position? 13 A. Yes. 14 Q. And in your experience with -- in these 15 type of work comp -- work injury type of 16 situations, I should say, do you find that 17 employers are typically receptive of accepting 18 employees back with the -- with these types of 19 restrictions? 20 A. 21 employment. 22 available. 23 not be able to go back to construction, and if 24 they don't have a desk job available, they may 25 need to find a different type of employment. Depends on the job. Depends on the If it's not available, it's not I mean, a construction worker may Veritext Corporate Services 800-567-8658 973-410-4040 Page 50 1 2 3 4 5 6 7 8 9 But as a whole, try to accommodate them. BNSF objects to the question as to Q. Okay. And so a reasonable employer its improper form as to use of terms would try to accommodate these types of "reasonable employer" and restrictions? "accommodate." A. Again, depends on the type of Ruling: Sustained, especially since the employment -witness never answered the MR. LUERS: Object to form of question as to this plaintiff and his the question. employment. A. -- they have. 13 50:10-13 is Q. (BY MR. McMAHON) Right. Okay. Did you stricken--See pretrial know that BNSF had terminated Mr. Bliss at or conference order and maybe a few days before he -- first seeing him? motion in limine ruling. A. No, I wasn't aware. 14 Q. Okay. 15 52, do you still hold these opinions to a 16 reasonable degree of medical certainty, that 17 the -- the job restrictions that you would 18 place upon Mr. Bliss would be a light or 19 sedentary work assignment? 20 MR. LUERS: 10 11 12 And -- all right. And so Exhibit Object. Form and 21 foundation. 22 A. 23 about is we have a work comp nurse in the 24 office to review the chart and then to fill in 25 the lines. How -- just -- how the -- how this comes Veritext Corporate Services 800-567-8658 973-410-4040 Page 51 1 And I assume that she came to the light 2 to sedentary work restriction based upon the 3 note that was in the chart. 4 Do I think he is at 100 percent? 5 Do I really know where he falls on that? 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 No. 50:10 --53:3 BNSF objects to the testimony as I can look at a book and figure out what -hearsay without an exception and what the guidelines are for each of those as not relevant. categories. Fed. R. Evid. 402, 403, 801 But she -- the person who filled out and 802. See subsequent this form does supposedly know both that and testimony at 62:1 --63:8; 65:9-15. the railroad and their normal restrictions and Ruling: Sustained. In the whole thing. So we tend to use their light of 7:12-8:14, expertise oftentimes in some of this portion of 24:9-21, 44:3-16, 62:1 --63:8, 65:9-15, this it. witness' testimony Q. (BY MR. McMAHON) Okay. So the -- so the as to level of work the plaintiff can typical procedure in your office when you perform and his ability to return to have -- when you're called upon to -- in work at the railroad is either your -- in your capacity as a physician, when wholly irrelevant for lack of you're called upon to offer these types of sufficient foundation or, if opinions like you did in Exhibit 52, the way relevant at all, more prejudicial your office does it is you employ someone than probative. I do not. I don't know off the top of my head. 23 who -- 24 A. Has work comp expertise. 25 Q. -- has work comp expertise? Veritext Corporate Services 800-567-8658 973-410-4040 Page 52 1 A. Uh-huh. 2 Q. They review your treating notes? 3 A. Yes. 4 Q. And any other records they might have -- 5 A. Yes. 6 Q. And then -- 7 A. They render kind of their understanding 8 of it. And either we agree or disagree with 9 things. 10 And in this particular case, as I 11 understand -- well, as I understand secondhand 12 how the railroad works is that he could not be 13 a carman and that she's -- she's basically 14 saying, so less than 100 percent, the next 15 category from whatever full duty is is light 16 and -- or sedentary. 17 about. 18 Q. 19 process that you just described took place, you 20 endorsed that opinion? 21 A. 22 do a functional capacity. 23 test him to figure that out. 24 25 All right. Yes. And that's how it came And so when the -- this Because, again, I didn't actually I didn't actually But from how he presents in the office and how -- what I -- my understanding of his Veritext Corporate Services 800-567-8658 973-410-4040 Page 53 1 job duties, I did not believe that he could go 2 back to his current position. 3 he should work. 4 Q. 5 opinion that's reflected in Exhibit 52 where he 6 should be on a light or sedentary job 7 assignment, you still hold that opinion? Right. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Absolutely. MR. LUERS: But I do think So -- so this Object. Form and foundation, asked and answered. 53:4 --54:1 BNSF objects to question Q. (BY MR. McMAHON) You still hold that to as to its improper form. BNSF objects this day going forward? to the testimony as MR. LUERS: Asked and answered. there is no proper and sufficient A. As -- as of the last visit, I think it's foundation; it is hearsay without an reasonable. exception and not relevant. Fed. R. Q. (BY MR. McMAHON) And in the beginning Evid. 402, 403, 801 and 802. See when Mr. Luers was talking about the documents subsequent testimony at 62:1 you have in your chart, I believe you had some --63:8; 65:9-15. Ruling: Sustained records from Dr. Lodhia? as to 53:4-14 for A. Yes. the reasons stated as to 50:10-53:3; Q. And they're in the forms of letters to overruled as to 53:15-54:1 Dr. Kreshel? 22 A. Yes. 23 Q. Then that September note, Dr. Lodhia had 24 both reviewed the FCE as well as the EMG as 25 well as met with Mr. Bliss; is that correct? Veritext Corporate Services 800-567-8658 973-410-4040 Page 54 1 A. Yes. 2 MR. LUERS: Object on 3 foundation, as far as what Dr. Lodhia did. 4 Q. 5 in his records; correct? 6 A. Yes. 7 Q. And is nothing unusual for you to 8 receive records from a neurosurgeon or a 9 neurologist or other treating physician and you (BY MR. McMAHON) Okay. That's contained 10 use those records as part of your care and 11 treatment for patients; correct? 12 A. Yes. 13 Q. Okay. 14 case with Dr. Lodhia's records; correct? 15 A. Yes. 16 Q. Who was a referral physician, of course; 17 correct? 18 A. Yes. 19 Q. And it seems from that September 2011 20 note with Dr. Lodhia, that the FCE, as well as 21 Mr. Bliss' condition over this -- this summer 22 since the June 30th FCE, had worsened and his 23 condition -- the -- had -- he still had the 24 condition of back pain? 25 And that's what you did in this MR. LUERS: Object. Form and Veritext Corporate Services 800-567-8658 973-410-4040 Page 55 1 foundation. 2 A. I lost track of your question. 3 Q. (BY MR. McMAHON) Sure. 4 after the FCE and during the months when 5 Mr. Bliss was getting the diagnostic tests that 6 Dr. Lodhia had ordered, his back condition 7 had -- didn't improve? 8 still symptomatic; correct? 9 It seems the -- It was still -- he was MR. LUERS: Same objection, 10 foundation, form. 11 A. Yes. 12 Q. (BY MR. McMAHON) And Dr. Lodhia, in 13 fact, in that September 2011 visit recommended 14 that Mr. Bliss be in a light and -- light-duty 15 job assignment; correct? 16 A. Yes. 17 Q. In a permanent capacity? 18 MR. LUERS: Object. I don't know about that. 54:19 --55:18 BNSF objects to the question as to its improper form. BNSF objects to the testimony as there is no proper and sufficient foundation; it is hearsay without an exception and not relevant. Fed. R. Evid. 402, 403, 801 and 802. See subsequent testimony at 62:1 --63:8; 65:9-15 Ruling: Sustained for the reasons stated as to 50:10-53:3, plus the witness ultimately admitted she did not know what Dr. Lodhia recommended (55:12-20). Foundation. 19 A. 20 say -- 21 Q. 22 of your -- part of the practice in pain 23 management, I guess how -- what I want to 24 phrase this more is there's a -- almost a -- 25 the psychological and physiological response to (BY MR. McMAHON) Okay. But he does All right. Part Veritext Corporate Services 800-567-8658 973-410-4040 Page 56 1 pain; is that correct? 2 A. Yes. 3 Q. All right. 4 Mr. Bliss, obviously there was a psychological 5 component to the chronic pain -- 6 A. Pain condition. 7 Q. -- that he was treating; correct? 8 A. Correct. 9 Q. And that's -- although you're not a And while you were treating 10 psychiatrist or psychologist or whatnot, 11 that -- you incorporate those -- the mental 12 impacts of chronic pain in your treatment; 13 correct? 14 A. Yes. 15 Q. And you did that with Mr. Bliss? 16 A. Yes. 17 Q. All right. 18 the mental anguish of chronic pain with 19 Mr. Bliss, but it was also affecting his 20 personal life. 21 about how that was impacting the medical care 22 and treatment, the medicine -- 23 A. Yes. 24 Q. -- side that you were treating him with; 25 correct? And part of that wasn't just And you mentioned a little bit Veritext Corporate Services 800-567-8658 973-410-4040 Page 57 1 A. Yes. 2 Q. All right. 3 unusual type of -- 4 A. No. 5 Q. It comes with the territory of treating 6 patients with chronic pain? 7 A. Yes. 8 Q. All right. 9 the medications and trying to find the right And is that -- is that an And -- and that adjusting 10 balance of the chronic pain medication that we 11 saw that you went through with Mr. Bliss, that 12 is -- that is what, I guess, the science and 13 the medicine of pain management is all about; 14 correct? 15 A. Yes. 16 Q. All right. 17 medications to try to help the patient deal 18 with the pain that's there on a permanent 19 basis; is that right? 20 A. Yes. 21 Q. And is that what you did with Mr. Bliss? 22 A. Yes. 23 Q. All right. 24 that seemed to be made about the interesting 25 software of electronic medical records. And -- and fluctuating the And just real small point Veritext Corporate Services 800-567-8658 973-410-4040 Page 58 1 A. Yeah, I know. 2 Q. So -- 3 A. There will be typos in there, too, that 4 will be, like, what in the world. 5 Q. This comes up a lot nowadays as EMR -- 6 A. Unfortunately. 7 Q. Actually, I've been corrected. 8 EMR. 9 A. EHR. 10 Q. EHR. Stand corrected. 11 A. Yes. It's a health record now. 12 Q. So this work history reviewed, no 13 changes required, he works as a -- at BNSF as a 14 carman, this no changes required, that's not a 15 function of Mr. Bliss telling somebody, whether 16 it's you or the nurse, that no changes are 17 required from his perspective as a work 18 ability? 19 A. 20 happens is they are -- they're supposed to ask, 21 is -- is -- you still on the same medications, 22 has anything changed in terms of your social 23 status or your work status. 24 everything's the same from however they want to 25 recall it. It's not It's -- The no changes required comes up. What And they say, no, Veritext Corporate Services 800-567-8658 973-410-4040 Page 59 1 And then you click a box. And it says, 2 no change. And it fills that part out. And it 3 says, no change is required. 4 Q. So it's automatic? 5 A. So it's not somebody saying don't change 6 anything. 7 Q. So if he came in and he got a job -- 8 A. They should have taken that, and -- 9 Q. Right. 10 A. -- it should have changed. 11 Q. Right. 12 A. He is now employed at blah, blah, blah. 13 Q. Blah, blah, blah. 14 no change required would have changed and would 15 have -- 16 A. 17 yes. 18 Q. 19 there's a -- there's a part -- I don't even 20 think it's a typo. 21 A. Unfortunately. 22 Q. It's a -- it's in the expectations line. 23 A. Uh-huh. 24 Q. And it seems to be more -- there must 25 have been, like, an update to the software. It's just what it is. Exactly. Right. And that's when that And it wouldn't be there then, Okay. And the same for -- It's more like a -- Veritext Corporate Services 800-567-8658 973-410-4040 Page 60 1 It states here, "David further states," 2 like, for example, on the -- 3 A. 4 long-term effects or something? 5 Q. Yes. 6 A. Yes. 7 Q. So it seems like there's a second half 8 that's sort of filled in, but that first half 9 of the sentence is sort of -- is asked of the 10 patient, and it's just a way of tracking where 11 the patient is on that particular day? 12 A. 13 how the nurse chooses to fill in that line. 14 But we -- what -- what we require of them is 15 that the expectations for the visit because 16 sometimes patients will want to talk about 17 medication, or sometimes patients have a new 18 problem, I have a new pain complaint, my 19 shoulder hurts or something, I want to address 20 this instead of what -- what we expected them 21 to come in for. Like, expectations, focus on remedy and It depends. Actually, sometimes it's 22 So -- or I want an injection today. 23 we know when we see them, this is what they 24 want. 25 another story. So And whether we can accommodate or not is But that's what that line is. Veritext Corporate Services 800-567-8658 973-410-4040 Page 61 1 Q. Good. 2 A. Is an expectation. 3 Q. Like another -- another way to flush out 4 all of the patient's needs and -- 5 A. Absolutely. 6 Q. -- for a -- 7 A. Try to make them happy however -- what 8 they want addressed. 9 Q. All right. 10 11 Okay. MR. McMAHON: Thank you, Doctor. That's all I have. 12 REDIRECT EXAMINATION 13 BY MR. LUERS: 14 Q. Doctor, I have a few more. 15 A. I thought you might. 16 Q. Surprise. 17 signed Exhibit 52 -- 18 A. Yes. 19 Q. -- you had seen the patient twice; 20 correct? 21 A. Yes. 22 Q. And both of those times your general 23 physical examination was virtually good, as you 24 told me; correct? 25 A. Certainly by the time you Yes. Veritext Corporate Services 800-567-8658 973-410-4040 Page 62 1 Q. All right. And you told me, I believe, 2 that as of that December 21st visit, the 3 language there where you said, he's able to 4 work but not likely at full capacity and that 5 he would likely be qualified for light and 6 sedentary duty was likely the -- his words, 7 Mr. Bliss' words reporting to you; is that 8 accurate? 9 A. That is accurate. 10 Q. So the note that your -- that your nurse 11 or whomever was filling out, Exhibit 52, was 12 looking at is probably this note? 13 A. Based upon that. 14 Q. Okay. 15 belief was, at least -- or is, is that he's not 16 100 percent so he -- so he may not be able to 17 return to his normal employment; correct? 18 A. Yes. 19 Q. You're not analyzing based upon physical 20 demands of a job and the categories that -- 21 that identify light, medium or heavy work in 22 your note of Exhibit 52; is that correct? 23 A. That's correct. 24 Q. And what you're saying is he -- he might 25 be -- or he'd likely be qualified for light or And I think you told me that your Veritext Corporate Services 800-567-8658 973-410-4040 Page 63 1 sedentary duty. You're not saying there that 2 he would not necessarily be qualified for 3 medium duty? 4 A. That's correct too. 5 Q. All right. 6 rendering opinions based upon functionality; is 7 that right? 8 A. That's correct. 9 Q. And we're still -- you're still -- it's And you're just not 10 still your testimony that the only valid FCE 11 that you're aware of is that WorkWell FCE 12 and -- 13 A. 14 FCE and I've seen a patient and I've evaluated 15 him over time and I don't necessarily agree 16 with the FCE, the best time to have that 17 discussion or to state that is soon after it's 18 occurred. 19 What -- but as an aside, when I get an And in his particular case, I think 20 after his FCE, he experienced more pain. And 21 that is when Dr. Lodhia saw him and kind of 22 assessed him and felt that maybe it's a little 23 different than how he presented at his FCE, 24 which is to say is that just a flare-up of his 25 condition or is it something more -- hard to Veritext Corporate Services 800-567-8658 973-410-4040 Page 64 1 say. 2 Mine is just another blip in time, quite 3 a bit separate from the FCE. 4 rendering opinion based on something current at 5 that moment. 6 So, again, I'm So a functional capacity I always find 7 is a very helpful thing because you can 8 definitely -- most helpful when it's invalid 9 because you can kind of say -- but when it's a 10 valid FCE and the patient does their best and 11 then they walk away and they have more pain, 12 how long that pain lasts or what it is is -- 13 sometimes it's reasonable to get or repeat if 14 you feel like something's changed. 15 Over the course of his history or his 16 physical exams, he -- when he came to us, he 17 was in pretty good shape. 18 spinal cord stimulator. 19 pretty well. 20 He didn't want a He thought he could do He started off doing really well in 21 terms of medication, despite the side effects 22 and pretty -- seemed fairly functional. 23 And then in the last couple of visits, 24 something kind of changed in terms of needing a 25 cane, wanting to figure out if he's just not Veritext Corporate Services 800-567-8658 973-410-4040 Page 65 1 physically active. 2 depression and marital strife in all of that. 3 Something changed a little bit there. 4 There's definitely some Whether that's enough to warrant another 5 FCE, hard for me to say. But sometimes if 6 there's a question as to its validity from 7 prior to current, it may be reasonable to get 8 another one. 9 Q. I fully understand. And as you sit here 10 today, you're not going to render an opinion 11 that he's capable of returning to heavy-duty. 12 I understand that. 13 A. 14 category, that's -- I'm not rendering an 15 opinion that way either. 16 Q. 17 is that in the last three months or why it is 18 in the last three months that maybe his 19 condition or functionality may have 20 deteriorated? 21 A. I don't. 22 Q. Okay. 23 attribute that deterioration to an incident 24 that happened in February in 2011, do you? 25 A. But -- But the medium to light to sedentary All right. And you don't know what it I don't. And you don't have any reason to No, that's not for me to say. Veritext Corporate Services 800-567-8658 973-410-4040 Page 66 1 Q. Okay. 2 A. The one thing that is possible is that 3 he had the rhizotomy. 4 well. 5 two years, eighteen months average. 6 be the increased back pain or increased pain 7 that he's having, if he's mainly describing 8 back pain, may require another rhizotomy. 9 Q. He was doing pretty Rhizotomy lasts on average six months to Okay. It might But that wouldn't -- that 10 wouldn't result in a -- further reduction of 11 functionality, would it? 12 A. It should not. 13 Q. Okay. 14 is pain, I assume? 15 A. As I understand it. 16 Q. Okay. 17 18 Right now his biggest limitation MR. LUERS: Thank you, Doctor. That's all I have. 19 THE WITNESS: Thank you. 20 MR. McMAHON: That's all I have. 21 Thank you, Doctor. 22 THE WITNESS: 23 MR. LUERS: 24 Thank you. Oh, you know what, can we get copies? 25 THE WITNESS: Yeah. Veritext Corporate Services 800-567-8658 973-410-4040 Page 67 1 2 MR. LUERS: Could you make me a quick copy of those? 3 THE WITNESS: Yeah. 4 MR. McMAHON: I don't have them 6 THE WITNESS: Yeah, definitely. 7 MR. LUERS: 5 either. Make two copies. 8 Make three copies. 9 quick so we know what we're talking about here. 10 11 And we'll mark it real THE WITNESS: These are these pain diagrams. 12 MR. LUERS: 13 MR. McMAHON: 14 MR. LUERS: 15 Yes. With the -The intake, whatever. 16 (A short recess was taken.) 17 (Exhibit No. 53 marked for 18 identification.) 19 Q. (BY MR. LUERS) We're back on the record. 20 Doctor, I'm going to hand you what's been 21 marked as Exhibit 53. 22 that these were the -- sort of the intake notes 23 and then the -- what do you call these? 24 Clinical -- what do you call them? 25 A. It's my understanding It is a -- it is a patient intake and a Veritext Corporate Services 800-567-8658 973-410-4040 Page 68 1 questionnaire. 2 Q. 3 file today; is that right? 4 A. 5 6 Okay. Fine. And that comes out of your Correct. MR. LUERS: Doctor. That's all I have, Thank you. 7 MR. McMAHON: 8 MR. LUERS: 9 right to read and review, or you can waive 10 Fifty-three. Doctor, you have a that. 11 THE WITNESS: 12 Waive. (Deposition concluded at 2:21 p.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 Veritext Corporate Services 800-567-8658 973-410-4040 Page 69 1 2 C-E-R-T-I-F-I-C-A-T-E STATE OF NEBRASKA ) : 3 4 COUNTY OF LANCASTER ss. ) I, Lori J. McGowan, General Notary Public 5 in and for the State of Nebraska and Registered 6 Professional Reporter, hereby certify that DR. 7 LIANE DONOVAN was by me duly sworn to testify 8 the truth, the whole truth and nothing but the 9 truth, that the deposition by her as above set 10 11 forth was reduced to writing by me. That the within and foregoing deposition 12 was taken by me at the time and place herein 13 specified and in accordance with the within 14 stipulations; the reading and signing of the 15 deposition having been waived. 16 That the foregoing deposition is a true 17 and accurate reflection of the proceedings 18 taken in the above case. 19 That I am not counsel, attorney, or 20 relative of either party or otherwise 21 interested in the event of this suit. 22 23 IN TESTIMONY WHEREOF, I place my hand and notarial seal this day of October, 2012. 24 25 Veritext Corporate Services 800-567-8658 973-410-4040 [& - assignment] Page 1 24 40:8 26 25:24 & 2:6 27th 47:8 48:2 0 28 27:16 0 3:22,22 2:21 68:12 1 3 10 29:10 30:13,21 3 2:3 29:9 30:13 30:22 31:1,1 35:1 35:1 48:17 40:13 30 29:22 100 7:23 39:15 40:3 30th 12:11 54:22 40:10,15,16 42:10 32 36:5 51:4 52:14 62:16 3rd 19:14 43:9 46:7 11-7-11 10:10 4 12 2:7 16:12 17:8 4 1:11 40:8 46 2:3 12-21 20:6 22:13 47 2:8 1248 1:21 4:12cv3019 1:4 14 17:17 5 15 29:18 40:13 18 20:8 5 14:23 48:18 18th 17:16 19:9 20:2 50 40:12 19 22:17 51 2:6 12:18,23 19th 25:17 52 2:8 46:24 47:1 1:05 1:12 50:15 51:21 53:5 61:17 62:11,22 2 53 2:9 67:17,21 2 38:15 542 1:18 20 29:18 5th 21:17 200 1:18 6 2003 4:19 11:5,15 201 1:13 3:24 6-30-11 9:11 11:2 2011 11:20 12:11,25 60 42:9 13:21 16:25 19:14 60605 1:19 20:2 41:17 43:9 61 2:3 46:7 54:19 55:13 67 2:10 65:24 68508 1:22 2012 1:11 27:9 37:7 6940 1:13 3:24 47:8 48:2 69:23 7 20th 24:25 7 47:17 21st 20:18 21:20 7-13-11 10:21 27:9 29:13 37:7 7th 16:12,25 62:2 22 25:3 22nd 31:14,15 37:7 & 8 80 25:10 35:1 800 1:21 9 9-19 14:22 9-2-11 10:14 9-26 15:3 9-9 13:21 90 25:10 35:1 94 4:12 95 16:17 9th 12:25 a ability 27:2 48:19 58:18 able 22:23 23:9,20 24:18 26:18 32:4 48:20 49:23 62:3,16 absent 14:6 absolutely 34:21 53:4 61:5 accepting 49:17 accommodate 50:1 50:3 60:24 accounted 45:9 accurate 17:18 26:9 26:14 30:17,24 31:6 31:11 44:1,2 62:8,9 69:17 acquainted 5:18 6:25 active 65:1 activities 8:12 27:1 32:16 36:3,7 activity 26:19,23 29:4 35:20 36:10 acute 25:14 add 18:15,19,22 additional 17:1 address 3:23 21:2,8 21:9 60:19 addressed 61:8 adjusting 57:8 adls 26:25 afternoon 3:18 age 3:13 agree 14:6 46:5 52:8 63:15 agreed 3:2 agrees 48:22 alleged 19:17 alleviated 16:4 alpha 38:15 alternating 15:7 amazed 40:9 amount 39:17 analog 30:18 analysis 32:22 36:1 analyze 30:16,18 analyzing 62:19 anguish 56:18 answered 53:9,12 anticipate 8:15 anticonvulsant 38:14,21 antidepressant 37:21 anybody 7:16 apart 42:8 appearances 1:16 appeared 46:10 appears 12:11,24 april 25:17 26:24 aquatherapy 37:4 area 21:6 arthritis 15:13 16:20 28:7,17 45:2 arthropathy 43:2 aside 63:13 asked 22:4 48:18 53:9,12 60:9 asking 39:3 assessed 63:22 assessment 17:12 36:6 44:11 assignment 49:4 50:19 53:7 55:15 Veritext Corporate Services 800-567-8658 973-410-4040 [associated - complaint] associated 5:10 37:24 assume 7:15 41:11 41:20,22 51:1 66:14 assuming 41:13 assumption 26:12 attached 48:9 attend 36:7 attention 21:14 attorney 1:17,20 7:1 46:21 69:19 attributable 43:4 attribute 65:23 attributed 14:14 august 31:14,15 37:7,7 41:24 automatic 59:4 available 49:21,22 49:24 average 66:4,5 aware 7:5,8,22 10:24 11:15,16,23 14:21 21:10,16 22:5 22:12 37:13 39:7 41:15,16 43:18 50:13 63:11 b b 1:20 back 14:11 15:9,12 15:25 26:10 29:23 30:4,12 32:17 36:13 36:15 44:19 45:9 49:18,23 53:2 54:24 55:6 66:6,8 67:19 balance 33:4 57:10 balls 32:18 based 23:6,8,12 24:11,16 31:4 43:24 44:10 45:3 51:2 62:13,19 63:6 64:4 basically 35:19 52:13 basis 57:19 Page 2 bed 28:8 began 4:19 beginning 34:10 53:15 begins 14:23 behalf 1:6 belief 27:6 62:15 believe 24:18 25:2 33:6 53:1,17 62:1 believed 18:20,21 benefit 34:21 best 24:6 26:13 63:16 64:10 better 22:21 25:11 big 34:18,18 36:17 biggest 66:13 bilateral 33:9 bit 17:20 31:6,10 56:20 64:3 65:3 blah 59:12,12,12,13 59:13,13 blip 64:2 bliss 1:3 5:21,24 6:9 7:1,7 9:5 11:14 12:12,25 13:17 14:20 19:3 20:3,7 34:8 37:9,15 40:22 42:5 44:21 46:5 47:7 48:14 49:9 50:11,18 53:25 54:21 55:5,14 56:4 56:15,19 57:11,21 58:15 62:7 block 15:24 38:18 bnsf 1:6 18:1 27:7 50:11 58:13 board 4:7 body 21:5 book 51:7 bottom 17:10 bought 33:1 box 47:16 48:17,18 59:1 branch 15:24 brought 21:14 burn 15:8 button 26:8 c c 69:1,1 calcium 38:18 call 67:23,24 called 38:15 51:18 51:20 cane 32:10 33:1,7 36:13 64:25 capabilities 12:13 capable 65:11 capacity 8:19 11:1 22:24 23:23 24:3,6 24:19 51:19 52:22 55:17 62:4 64:6 car 29:4,6 30:9 care 38:2 39:6,13 41:5,12 54:10 56:21 care's 41:5 carman 8:3 18:1,22 19:10,11 27:7 49:2 52:13 58:14 case 1:4 7:6 8:16 26:24 35:9 43:17 52:10 54:14 63:19 69:18 categories 24:12 51:9 62:20 category 52:15 65:14 cause 40:7 45:12 causes 28:15 33:15 causing 34:12 44:21 45:15 cautioned 3:13 centers 2:6 4:21 centimeters 31:1 certain 40:7 certainly 16:23 61:16 certainty 50:16 certified 3:14 4:7 certify 69:6 chair 35:4 change 18:16,17,18 19:6 20:13 23:7 26:13 34:21 59:2,3 59:5,14 changed 23:1 27:5 36:18 58:22 59:10 59:14 64:14,24 65:3 changes 17:25 18:5 18:8 31:23 33:19 45:11 58:13,14,16 58:19 changing 4:16 34:19 channel 38:19 chart 50:24 51:3 53:17 chicago 1:19 chooses 60:13 chronic 23:24 39:1 42:6 45:4,10 49:10 56:5,12,18 57:6,10 clearly 46:6 click 59:1 client 11:19 clinic 4:13 5:5 clinical 2:9 67:24 come 9:18 13:12,14 30:4 34:13 41:2,3 42:17 60:21 comes 26:16 36:11 50:22 57:5 58:5,19 68:2 comment 23:2 comments 22:18 23:5 comp 9:22 47:14 49:15 50:23 51:24 51:25 company 1:6 compilation 12:21 complaining 16:6 complaint 33:9 60:18 Veritext Corporate Services 800-567-8658 973-410-4040 [complaints - dr] complaints 15:1 20:4,16 complete 12:21 component 45:2 56:5 concentrate 22:8 concern 23:9 39:23 41:8 concerning 40:23 concluded 68:12 condition 14:24 16:21 27:24 54:21 54:23,24 55:6 56:6 63:25 65:19 conditions 45:24 conduct 32:21 conducted 9:4 conducting 8:19 confirmed 31:19 conjunction 38:23 considerably 22:21 25:11 31:24 construction 49:22 49:23 consult 41:4 contained 54:4 continue 23:10,22 24:5,8,19 controlled 31:12 copies 66:24 67:7,8 copy 67:2 cord 6:4 64:18 correct 4:1,2,4 8:8,9 9:12 13:19 15:1 17:2,3,14,19 18:24 19:15,18 20:13,14 25:1,11,12,20 35:19 37:9,10 39:20 43:5 43:6,9 44:16 46:10 48:7,15,16,23 49:6 53:25 54:5,11,14,17 55:8,15 56:1,7,8,13 56:25 57:14 61:20 61:24 62:17,22,23 63:4,8 68:4 Page 3 corrected 58:7,10 correctly 35:18 40:10 counsel 33:25 34:16 69:19 counseling 35:16 county 69:3 couple 64:23 course 54:16 64:15 court 1:1 covered 21:5 crafts 7:20 cross 2:2 46:15 cs1336570 1:25 current 15:7 44:4 45:12,24 53:2 64:4 65:7 currently 18:14,14 18:16 cymbalta 37:16,17 37:18 42:9 d d 2:1 3:22 daily 27:1 39:16 date 1:11 10:6 12:10 19:14 20:18 21:23 37:6,14 dated 9:8,10 10:20 10:21 47:7,16 david 1:3 5:20,21 60:1 day 28:3,4,13,14 29:17 35:6 38:1 40:15,16 42:10 53:11 60:11 69:23 days 50:12 deal 34:18,19 57:17 dearborn 1:18 december 20:18 21:17,20 62:2 decrease 15:17 decreased 31:17 32:13,23 35:10 defendant 1:6,7,22 deficiency 33:15 definite 39:10 definitely 45:1 64:8 65:1 67:6 degenerates 16:9 degeneration 14:12 14:15 15:21 43:2 degenerative 15:20 43:5 46:6 degree 50:16 delivery 3:5 delta 38:15 demands 62:20 depends 49:20,20 50:5 60:12 depleted 37:20 deposition 1:5,10 3:4,5 5:12 9:15 10:3 68:12 69:9,11,15,16 depositions 9:25 depression 33:19 37:24 65:2 described 18:10 34:25 35:10 52:19 describing 35:11 66:7 desk 49:24 despite 64:21 detail 48:10 detailed 32:8 deteriorated 65:20 deterioration 65:23 determine 32:22 devney 5:4 11:18 12:15,22,24 13:3,4 13:12,23 14:19 devney's 11:16 13:18 diabetic 33:13 diagnosis 48:5,5,6 diagnostic 15:24 55:5 diagram 20:22 diagrams 67:11 dictate 19:6 different 32:11 49:25 63:23 direct 2:2 3:16 direction 35:17 directions 17:11 disable 23:25 disabled 18:14,16 18:22 disagree 52:8 disc 14:12 16:3 28:14 43:2 46:6 disclosed 46:22 discomfort 17:12 discuss 21:2 discussion 35:8 63:17 disease 46:7 distance 25:6,7 distress 25:14 district 1:1,2 doctor 3:18,25 5:12 12:20 14:7 15:6 26:4 29:25 43:13 46:2,12,17 47:3 61:10,14 66:17,21 67:20 68:6,8 doctor's 2:8 document 46:22 47:4,7,23 48:11 documents 11:6 53:16 doing 22:20 25:13 25:15 27:3 31:25 32:3 34:17 36:15 39:13 40:14 49:10 64:20 66:3 donovan 1:10 2:3 3:12,22 69:7 dorn 1:13 3:24 dose 29:1 39:21 dosing 38:7 dr 1:10 2:3 3:12 5:4 6:19,21 10:4,7,11 Veritext Corporate Services 800-567-8658 973-410-4040 [dr - full] 10:15 11:4,16,18 12:15,22,24 13:3,4 13:4,11,18,23 14:19 27:12 41:6,11 53:18 53:21,23 54:3,14,20 55:6,12 63:21 69:6 draw 20:23 driving 30:7 drug 38:23 drugs 38:24 duly 3:13 69:7 duties 7:20 53:1 duty 23:15 24:4,15 52:15 55:14 62:6 63:1,3 65:11 dwell 33:22 dysfunction 34:15 e e 1:10 2:1 3:12 69:1 69:1 earlier 43:24,25 48:25 edema 17:13 effect 34:20 effects 34:12 35:12 60:4 64:21 ehr 58:9,10 eighteen 66:5 either 18:20 31:19 52:8 65:15 67:5 69:20 electronic 26:6 57:25 eligible 24:12 emg 10:5,19,24 45:3 45:6 53:24 employ 51:22 employed 59:12 employees 7:13 49:18 employer 50:2 employers 49:17 employment 17:21 19:14 49:11,21,25 Page 4 50:6 62:17 emr 58:5,8 encouraging 35:22 36:6 endorsed 52:20 engage 8:13 34:3 engaging 36:3 entirely 44:1,2 erectile 34:15 essay 5:3 evaluate 9:1 evaluated 63:14 evaluation 6:3 11:2 12:12 31:18 32:21 evaluations 8:20 evening 27:22 event 69:21 everything's 58:24 exacerbated 25:5 28:21 exactly 24:21 59:16 exam 14:2,7 23:6 25:14,18 examination 3:16 46:15 61:12,23 examined 3:15 example 8:2 44:3 45:14 60:2 exams 36:2 64:16 exception 14:4 excuse 37:7 exercise 25:22 26:1 26:2,19,23 34:3 exhibit 12:17,18,23 46:24 47:1 50:14 51:21 53:5 61:17 62:11,22 67:17,21 exhibits 2:5 expectation 61:2 expectations 59:22 60:3,15 expected 60:20 experience 49:2,14 experienced 63:20 expert 8:7 43:16 expertise 51:14,24 51:25 expresses 36:22 extend 42:12 extended 40:4,11 extent 45:13 extremities 17:14 extremity 45:8 f f 69:1 facet 14:12 15:9,12 15:13,21 16:6,8 43:2 45:2 facets 28:10 fact 32:23 49:8 55:13 factor 28:2 fairly 12:21 64:22 fall 36:17 falls 51:5 familiar 5:15 7:17 7:20 8:22 family 6:12,13 17:21 far 17:4,6 32:25 54:3 fce 12:2 44:12,14 46:10,10 53:24 54:20,22 55:4 63:10 63:11,14,16,20,23 64:3,10 65:5 fces 8:18 february 19:14 43:9 46:7 65:24 feel 35:7 64:14 feeling 27:2,22 feels 15:16 feet 32:18 33:3,9 felt 35:20 36:9 63:22 fifty 68:7 figure 51:7 52:23 64:25 figuring 31:22 file 68:3 fill 47:11,13 50:24 60:13 filled 47:15 51:10 60:8 filling 47:6 62:11 fills 59:2 find 39:10 49:16,25 57:9 64:6 finding 23:7 26:20 findings 45:10 fine 22:9 46:4 68:2 fingers 32:17 first 3:13 5:19 6:2,3 12:24 17:17 23:2 27:21 50:12 60:8 flag 39:6,11 flare 63:24 fluctuating 57:16 flush 61:3 focus 21:6 34:23 60:3 focused 22:4 follow 2:9 37:2 following 46:17 follows 3:15 foot 14:5 29:24 33:6 45:17 foregoing 69:11,16 form 3:10 9:19 26:16 32:20 40:13 48:2 50:7,20 51:11 53:8 54:25 55:10 forms 2:10 48:4 53:20 forth 69:10 forward 53:11 foundation 3:10 19:3 50:21 53:9 54:3 55:1,10,18 four 21:21,22 39:16 fourth 16:16 frankly 27:11 full 3:20 17:11 22:24 24:3 52:15 Veritext Corporate Services 800-567-8658 973-410-4040 [full - kinds] 62:4 fully 65:9 function 58:15 functional 8:19 11:1 34:25 35:2,7 36:12 43:22 44:5 52:22 64:6,22 functionality 31:17 32:1,13,23 35:10 63:6 65:19 66:11 further 42:8 60:1 66:10 g gait 26:14 general 7:23 14:1 28:5 61:22 69:4 generally 9:1 14:24 getting 28:2 29:16 33:21 34:16 38:1 55:5 give 21:19 32:7,13 40:12 given 39:12 giving 39:9 40:15 go 17:16 20:6 22:23 25:17 29:21 32:5 49:23 53:1 goes 32:16 going 12:16 23:22 26:7 33:14 36:20,24 53:11 65:10 67:20 good 3:18 11:6 13:9 15:25 25:19 49:9 61:1,23 64:17 great 27:22 48:10 greater 34:20 grinding 32:19 guess 22:3 28:21 33:11 39:5,22 46:23 55:23 57:12 guidelines 51:8 Page 5 h half 60:7,8 hand 32:16 45:17 67:20 69:22 handling 41:6 hands 33:9 happened 36:14 65:24 happens 58:20 happy 61:7 hard 7:24 41:1 63:25 65:5 hardening 35:22 head 51:6 health 58:11 heavy 24:15 44:14 62:21 65:11 heels 32:18 help 31:5 57:17 helped 34:11 helpful 35:13 64:7,8 hereinafter 3:14 high 35:20 39:21 history 11:14,24 17:22,23 18:10 20:13 22:14 25:4 27:10,18 48:14 58:12 64:15 hold 47:25 50:15 53:7,10 home 24:1 hope 12:21 hour 29:22 40:8,8 house 34:13 huh 13:24 16:14 17:9 27:17 44:13 52:1 59:23 hurt 32:4,17 hurts 60:19 hydrocodone 38:9 41:18 i identification 12:19 47:2 67:18 identified 43:14,16 identify 62:21 il 1:19 impacting 56:21 impacts 56:12 implies 26:17 impose 14:19 17:1 24:23 imposed 37:8 imposing 18:7 impression 14:10 34:24 improve 55:7 improved 22:15 improvement 35:2 incapable 36:3 inches 31:1 incident 65:23 included 14:10 47:19 incorporate 56:11 increase 36:7,9 increased 66:6,6 increases 37:19 independent 5:24 indicate 27:4 indicated 48:13 indication 16:24 20:1,15 21:20 35:25 36:4,8 37:22 indicative 16:19 individual 8:11,12 information 18:3 19:4 30:5 initial 13:22 14:18 19:23 20:1 40:2 initially 40:2 injection 60:22 injury 19:17 49:15 instance 19:8 intake 19:12 20:20 29:15,25 32:19 39:3 67:14,22,25 intent 15:14 intents 38:11 interest 24:7 36:22 interested 69:21 interesting 26:5 57:24 interval 42:8 intervals 42:7 invalid 64:8 involved 7:14 8:18 11:18 involving 7:6 j j 1:17 69:4 james 1:20 january 47:8 48:2 jim 3:18 job 1:25 7:20 8:3 23:20,21 24:4 43:23 44:8 49:20,24 50:17 53:1,6 55:15 59:7 62:20 john 5:3 joined 37:3 joint 15:8,9,16 16:1 16:6,8 judge 39:19 judgment 40:18 jumps 12:5 june 12:11 54:22 k keep 23:21 keeps 4:16 kind 16:23 23:21 27:24 28:9,11 30:22 31:24 33:18 36:11 39:14 52:7 63:21 64:9,24 kinds 8:16 27:23 35:23 Veritext Corporate Services 800-567-8658 973-410-4040 [kitchen - morning] kitchen 32:6 knee 45:15 knees 45:14 know 4:16 5:18 6:16 6:17 8:1,2 13:7 17:4 17:6 22:9 26:15 29:12 30:5,22 31:1 33:1,4,15 34:16 35:3 36:19 37:3 41:9,13 43:14,15 44:3,20 45:13,18,21 45:23 46:1 50:11 51:5,6,11 55:19 58:1 60:23 65:16 66:23 67:9 knowledge 7:12 known 6:11 22:6 kreshel 10:11,15 41:11 53:21 l l 2:3 3:1 l5 45:4 lancaster 69:3 land 36:21 language 62:3 lasts 64:12 66:4 law 1:17,20 lawful 3:13 lawsuit 7:6 lawsuits 7:14 learn 30:19,19 leave 29:23 40:19 led 33:2 left 14:5 letter 10:10,14 letters 53:20 level 15:20,21 35:20 liane 1:10 3:12,22 69:7 life 56:20 lift 24:17 light 23:15 24:4,13 24:20 48:21 49:3,5 50:18 51:1 52:15 Page 6 53:6 55:14,14 62:5 62:21,25 65:13 limit 29:18 limitation 66:13 limitations 18:7 43:22 44:5 limited 27:2 lincoln 1:14,22 4:3 8:5 line 17:22 31:4,8 59:22 60:13,25 lines 50:25 listed 48:1 litigation 22:2,5 little 17:20 31:6,10 36:19 39:7 56:20 63:22 65:3 live 22:22 living 27:1 located 44:22 lodhia 6:19,21 10:7 13:11 27:12 41:6 53:18,23 54:3,20 55:6,12 63:21 lodhia's 10:4 54:14 long 4:10 25:5,7 29:4,6 30:9 42:3 60:4 64:12 longstanding 14:14 look 9:1 13:21 22:17 25:3 26:10 28:11 33:12 46:3 51:7 looking 28:9,10 62:12 looks 9:10 11:19 14:1 22:14 32:10 36:22 loosens 29:17 lori 69:4 loss 14:4,5 lost 55:2 lot 21:3 30:18 31:21 32:7 34:12 35:21 38:11 58:5 low 14:11 32:17 lower 17:13 45:8 luers 1:20 3:17,19 12:16,20 19:4 46:12 50:7,20 53:8,12,16 54:2,25 55:9,18 61:13 66:17,23 67:1 67:7,12,14,19 68:5 68:8 lumbar 14:11,12 17:10 43:1,3 lying 28:8 lyrica 37:16 38:13 42:10 lyrica's 38:14 m ma'am 7:5 29:14 mailbox 32:5 main 34:14,23 management 55:23 57:13 march 24:25 marital 65:2 mark 12:16 16:13 20:23 46:24 67:8 marked 2:5 12:18 12:23 21:7 47:1 67:17,21 massey 5:3 matter 13:15 mcgowan 69:4 mcmahon 1:17 19:2 46:16,23 47:3 50:10 51:16 53:10,15 54:4 55:3,12,21 61:10 66:20 67:4,13 68:7 mean 18:15 21:7 26:23 34:25 41:10 49:22 means 31:22 meant 29:5 measured 31:3,3 medial 15:23 mediated 15:13 28:15 medical 2:6 11:14 11:23,24 13:18 26:6 48:9,14,23 50:16 56:21 57:25 medication 28:25 34:19,22 35:12 38:4 39:9 40:4,9,11 43:22 57:10 60:17 64:21 medications 34:11 35:13 40:23 41:14 57:9,17 58:21 medicine 4:6 56:22 57:13 medium 24:13,20 44:14 62:21 63:3 65:13 meds 25:10 28:21,22 33:5 37:14 members 6:11,12 memorize 31:7 mental 56:11,18 mentioned 56:20 mentions 30:8 met 6:2,3 53:25 midday 29:23 mild 17:12 milligram 40:10,13 40:16 milligrams 39:15 40:3,16 mind 26:3 mine 64:2 minute 13:6 minutes 29:18,22 moment 64:5 monitor 38:22 39:3 monitoring 41:5 months 36:2,14 41:24 42:13 55:4 65:17,18 66:4,5 morning 27:21 28:6 28:7,11 29:17 Veritext Corporate Services 800-567-8658 973-410-4040 [motion - paragraph] motion 15:16 17:11 moving 34:17 36:21 mri 45:10 mris 42:22,23 43:1,8 43:8 multi 15:20,21 multifactorial 44:23 multiple 22:2 musculoskeletal 25:23 n n 2:1 3:1,22,22 name 3:20,21 4:20 5:19 47:16,19 name's 3:18 names 5:2 narcotic 38:5,12,23 40:23 narcotics 39:1 ne 1:22 nebraska 1:2,14 4:3 4:21 69:2,5 necessarily 18:11 21:7 23:5,6 39:5 41:4 63:2,15 need 35:4 36:19 42:14 49:25 needing 64:24 needs 42:7 48:21 61:4 negative 14:25 nerve 15:8 38:17 neurological 17:12 neurologist 54:9 neuropathic 37:22 38:20 neuropathy 33:13 33:16 neurosurgeon 41:3 54:8 neurotransmitters 37:20 never 7:3 21:14 22:8 34:23 35:9 39:12 Page 7 40:12 new 26:20 33:8,13 60:17,18 noble 11:4 noon 27:21 norepinephrine 37:19 normal 14:8 16:10 17:14 26:8,14,19,23 36:3 51:12 62:17 normally 26:25 notarial 69:23 notary 69:4 note 25:14 51:3 53:23 54:20 62:10 62:12,22 noted 10:7 17:13 notes 3:8 10:4,7,17 11:16 12:22 52:2 67:22 notice 3:4,5 33:23 notices 29:1 november 16:12,25 17:16 19:9 20:2 41:17 nowadays 58:5 npc 2:9 number 30:20 31:11 32:3 39:20 nurse 9:22 20:21 47:14 50:23 58:16 60:13 62:10 o o 1:21 3:1 object 50:7,20 53:8 54:2,25 55:18 objection 19:2 55:9 objections 3:9 objective 13:25 17:7 obviously 18:1 56:4 occurred 19:17 63:18 october 1:11 69:23 offer 51:20 offered 2:5 offering 8:15 office 3:23 6:5 12:22 38:10 50:24 51:17 51:22 52:24 officially 4:18 oftentimes 41:2 51:14 oh 9:16 22:7 42:24 66:23 okay 4:13,17,22 5:4 5:9 6:5 7:9,12,19 8:1,7 9:4,21,23 10:12,16,25 11:10 11:22 12:15 14:17 15:22 16:2 17:7,20 18:19 19:8,22 20:25 21:10,19,25 22:7,13 23:11 24:9,20,22 25:9,17 26:22 27:4 27:15 28:1,20 29:8 29:20 30:12 31:13 31:16 32:25 35:15 36:13,20,21 37:6,14 38:13 39:15 40:1,20 40:25 41:14,21 43:1 43:13 44:3,17,24 45:22 46:2 47:6,10 47:13,25 50:2,10,14 51:16 54:4,13 55:21 59:18 61:9 62:14 65:22 66:1,9,13,16 68:2 old 11:3,14 omaha 5:8 one's 10:10 32:2 ones 40:2 onset 33:13 op 11:3 operation 11:15 opinion 23:21 24:10 39:18 48:18 49:4 52:20 53:5,7 64:4 65:10,15 opinions 8:10,16 43:21 44:4,7,17,18 46:18 47:25 48:22 50:15 51:21 63:6 opportunity 11:13 12:2 42:21 ordered 55:6 original 15:1 outrageous 39:17 overview 19:23 p p 3:1 p.m. 1:12 68:12 page 13:25 14:23 16:12 17:8,17 20:8 22:17 25:3,24 27:16 36:5 pages 13:22 16:13 30:1 pain 2:6 4:6,14,14 4:21 6:23 14:11 15:12,12,13,17,25 16:4,5,17,23 19:23 20:4,16,22 21:4 22:15,21 23:24 24:6 25:5,11 27:20,22 28:3,5,6,12,13,13,15 28:17,18,20 29:2,9 29:23,24 30:13,20 30:22 31:5,12 32:18 33:3,6,16,17,23,23 35:1 37:20,22,23 38:4,17,19,20 39:2 39:9,12 42:6 44:18 44:21 45:2,8,9,12 45:14,15,17,18,23 49:10 54:24 55:22 56:1,5,6,12,18 57:6 57:10,13,18 60:18 63:20 64:11,12 66:6 66:6,8,14 67:11 paragraph 19:25 25:4 27:10,18 Veritext Corporate Services 800-567-8658 973-410-4040 [part - recommend] part 41:6 54:10 55:21,22 56:17 59:2 59:19 participate 26:2 particular 11:19 35:9 52:10 60:11 63:19 parties 3:3 party 69:20 patient 12:15 13:3,5 17:18 18:13,21 21:8 29:11 30:3,16 33:25 39:3 49:9 57:17 60:10,11 61:19 63:14 64:10 67:25 patient's 24:6 61:4 patients 6:23 15:19 21:4 37:1 54:11 57:6 60:16,17 pending 7:6,14 people 23:21 28:5 30:19 37:23 38:9 40:12 percent 7:23 16:17 25:10 35:1 51:4 52:14 62:16 perchance 25:6 perform 24:3 period 33:24 40:7 peripheral 33:12,15 permanent 55:17 57:18 person 35:3 40:12 51:10 personal 39:18 56:20 perspective 58:17 phil 5:3 phrase 55:24 physical 12:12,13 14:1,7 21:21 22:11 23:6 25:13,18 33:2 36:2 61:23 62:19 64:16 Page 8 physically 65:1 physician 3:25 51:19 54:9,16 physicians 21:11 physiological 45:19 55:25 picture 20:22 pill 39:13 40:17 place 1:13 29:3 50:18 52:19 69:12 69:22 places 21:7 plaintiff 1:4,19 plaintiffs 43:17 plans 42:4,4 please 3:21 10:6 point 18:6 21:1 25:15 36:9 39:24 57:23 portion 15:15,25 17:7 51:14 position 49:2,6,12 53:2 possible 13:14 43:16 66:2 pounds 24:17 practice 4:22 5:1,7 8:19 55:22 practicing 4:3,10 precipitating 28:1 prescribe 39:1 prescribed 40:10 prescribing 37:15 41:7,7,10 prescription 38:1 presence 3:7 present 29:11 presented 30:15 63:23 presents 52:24 pretty 14:8 17:14 25:15,19 31:12 32:9 34:10 35:2 64:17,19 64:22 66:3 primary 38:2 39:6 39:13 41:5,12 prior 6:9 9:25,25 10:3,23 11:4,8,10 11:10 43:8,8 44:10 46:7 65:7 proactively 36:25 probable 23:11 probably 7:15 14:12 26:10,20 31:6 35:20 42:8,12 62:12 problem 20:17 33:2 34:9,9 60:18 problems 20:3 21:12 22:10 34:12 45:25 procedure 51:17 proceeded 15:3 proceedings 69:17 process 5:16 16:10 43:5 52:19 professional 69:6 prognosis 42:4 program 25:22 26:3 progresses 28:3,13 prove 15:24 provided 9:12,21 10:3,22 11:7 13:18 18:2 19:5 psychiatrist 56:10 psychological 55:25 56:4 psychologist 56:10 public 69:4 purpose 15:10 38:12 push 26:7 36:19 put 12:20 26:8 31:2 31:7 q qualified 23:15 62:5 62:25 63:2 question 3:11 13:9 30:12 39:19,23 40:18 50:8 55:2 65:6 questionnaire 68:1 questions 46:13,18 48:25 quick 67:2,9 quit 35:5 quite 27:10 64:2 r r 69:1 radicular 45:4 radiculopathy 45:5 radiofrequency 11:17 railroad 7:13,21 24:3 49:2,5 51:12 52:12 railway 1:6 random 33:18 range 15:16 17:11 rarely 8:21 rate 13:16 29:10 read 47:20 68:9 reading 31:4 69:14 real 57:23 67:8 really 9:16 30:24 35:9 39:21 41:1 51:5 64:20 reason 16:25 18:20 33:20 39:7,11 42:14 45:20 65:22 reasonable 50:2,16 53:14 64:13 65:7 recall 23:2,18 25:6,8 40:21 47:6 58:25 receive 54:8 receptive 49:17 receptor 38:5,15 recess 67:16 recognize 47:3 recognizes 36:23 recollection 5:24 29:5 recommend 24:7 Veritext Corporate Services 800-567-8658 973-410-4040 [recommended - side] recommended 6:17 55:13 recommending 25:23 record 10:9 26:6,7 26:11 58:11 67:19 records 2:7 9:20 10:1,2 11:23 13:18 48:9,23 52:4 53:18 54:5,8,10,14 57:25 recross 2:2 red 39:6,11 redirect 2:2 61:12 reduced 69:10 reduction 16:17,24 66:10 refer 13:4 reference 20:12 36:6 referenced 25:7 referral 6:18 27:11 54:16 referrals 6:21 reflected 53:5 reflection 69:17 reflexes 14:6 refuted 31:19 regarding 11:16 46:18 48:19 regards 12:1 27:5 30:13 registered 69:5 regulated 38:11 related 15:12,25 16:6,20 28:7,18 33:19 45:24 relative 43:22 44:8 69:20 relatively 25:19 release 40:4,11 released 40:5 relief 25:10 remains 17:13 29:24 remedy 60:3 Page 9 remember 9:14 13:10 38:6 remove 15:15 18:17 render 8:10 52:7 65:10 rendering 24:10 63:6 64:4 65:14 repeat 64:13 report 9:1 11:3 13:22 14:19,22 19:25 20:15 31:21 31:22 32:8 reported 32:12 reporter 69:6 reporting 31:16 62:7 reports 16:17 request 9:24,25 require 60:14 66:8 required 17:25 18:5 18:9,16 58:13,14,17 58:19 59:3,14 requirements 8:3 43:23 reserved 3:9 response 44:25 55:25 restricted 18:25 restriction 51:2 restrictions 14:20 17:1,5 18:7,11 24:23 37:9 43:23 44:9 46:19 49:19 50:4,17 51:12 result 66:10 return 7:24 8:11 18:21 19:10 27:23 28:16 48:19,20 49:5 62:17 returning 65:11 reveal 43:1 revealed 44:14 48:23 review 11:13 12:3 42:21 50:24 52:2 68:9 reviewed 47:22 53:24 58:12 rhizotomy 15:4,14 45:1 66:3,4,8 rides 29:4,6 30:9 right 5:9,15 6:1,6,15 6:25 7:3 8:22 9:7 10:2 11:20 12:1,10 14:22 17:16 20:12 24:25 28:20 29:3,8 31:14 35:25 36:5 40:20,25 41:23,25 43:20 44:7 48:11 50:10,14 52:18 53:4 55:21 56:3,17 57:2 57:8,9,16,19,23 59:9,11,18 61:9 62:1 63:5,7 65:16 66:13 68:3,9 rule 28:5 run 8:23 s s 3:1,1 s1 45:5 samples 38:10 saw 12:15,24 17:18 42:9 43:7 57:11 63:21 saying 28:23,24,25 36:24 52:14 59:5 62:24 63:1 says 16:16 17:10,22 18:5,8 25:4 26:11 28:20 29:15 36:12 37:25 59:1,3 scale 29:9 30:13,19 30:25 31:2 schedule 38:6,6 scheduled 41:24 42:3 science 57:12 score 32:2 seal 69:23 second 13:25 25:4 25:24 27:10,18 39:5 60:7 secondhand 52:11 secretary 18:13,13 security 24:11 30:20 sedentary 23:15 48:21 49:3,6,11 50:19 51:2 52:16 53:6 62:6 63:1 65:13 see 13:13 21:5 22:1 33:17 35:6 36:11 39:6 40:2 60:23 seeing 50:12 seen 9:4 37:12 42:7 42:23 61:19 63:14 self 31:22 send 8:21,25 sends 38:17 sensation 14:5 sensory 15:15 sent 13:3 sentence 16:16,16 24:10 60:9 separate 64:3 september 11:20 12:25 53:23 54:19 55:13 serotonin 37:19 set 69:9 sexual 34:11 shape 64:17 shops 8:5 short 67:16 shoulder 20:3,16,16 20:23 21:12,17,23 22:10 41:19 45:23 45:25 60:19 shoulders 20:4 show 46:22 side 34:12,20 35:11 56:24 64:21 Veritext Corporate Services 800-567-8658 973-410-4040 [sign - three] sign 47:21 signal 38:17 signature 47:4 signed 47:23 61:17 significantly 36:18 signify 33:10 signing 69:14 simply 43:4 sit 5:23 7:19 8:1 24:1 29:21,22 30:10 31:5 32:6 33:22 44:20 65:9 sitting 30:4 situation 42:18 situations 49:16 six 37:25 39:16 40:16 42:13 66:4 skips 29:1 slight 14:5 slow 29:16 slowly 40:5 small 57:23 social 17:21 24:11 30:20 58:22 software 57:25 59:25 solemnly 3:14 somebody 15:15 34:24 35:6 42:6 58:15 59:5 something's 64:14 somewhat 40:14 son 36:24 soon 63:17 sooner 33:21 42:17 sore 27:20 sorry 13:4 sort 14:1 24:5 26:15 28:10 32:6 33:14 60:8,9 67:22 south 1:18 specialists 4:23 5:1 specialty 4:5,8 specific 7:20 24:16 33:2 37:8 40:22 Page 10 43:21 specifically 44:21 specifics 32:14 specified 69:13 spell 3:20 spend 35:7,21 spinal 6:4 14:13 43:3 64:18 spine 2:6 4:14,21 14:14 15:13,20 28:18 43:5 spoken 7:3 ss 69:2 stabilize 38:16 stable 42:11 stand 58:10 standing 29:3,17 30:11 standpoint 41:4 start 36:20 started 64:20 starting 27:22 starts 28:2 state 3:20 63:17 69:2,5 stated 48:25 statement 2:8 23:8 23:12 26:9 states 1:1 60:1,1 station 26:15 status 58:23,23 stenosis 14:13 43:3 stenotype 3:8 stiff 27:20 28:8 29:16 stiffness 32:17 stimulator 6:4 64:18 stipulated 3:2 stipulations 69:14 story 60:25 street 1:13,18,21 strife 65:2 strike 13:8 42:20 studies 45:4,6 study 10:5 subjective 16:15 submitted 48:1 substance 40:6 success 34:7 suffering 15:19 46:6 suggest 12:6 28:16 45:7,10 suggested 43:21 suggests 28:14 suit 69:21 suite 1:13,18,21 3:24 summer 54:21 supplemental 2:8 supposed 38:16 40:5 58:20 supposedly 51:11 sure 10:9 13:11 26:9 31:9,9 41:10 45:6 45:12 55:3 surgeries 48:14 surgery 21:16 22:10 41:19 surgical 41:3 surprise 61:16 swelling 32:17 sworn 3:14 69:7 symptomatic 55:8 symptoms 29:24 t t 3:1,1 69:1,1 tablets 39:16 take 18:6 28:22 43:7 43:25 taken 1:5 5:13 12:8 59:8 67:16 69:12,18 talk 17:20 18:11 21:3 60:16 talked 45:17 talking 34:14 53:16 67:9 talks 27:20 teeth 32:19 tell 6:1 10:6 15:6 29:10 30:15 telling 23:17 43:14 58:15 tend 22:3 28:6 30:3 38:25,25 39:2 51:13 tends 24:6 31:5 term 60:4 terminated 50:11 terms 8:13 31:18 58:22 64:21,24 territory 57:5 test 52:23 testified 3:15 49:8 testify 69:7 testimony 43:25 63:10 69:22 testing 26:2 tests 55:5 thank 46:12,14 61:10 66:17,19,21 66:22 68:6 therapy 21:21 22:11 thing 7:22 23:16,25 25:18 26:5,13,14,16 27:21 28:11 32:7 33:11,14 34:14 41:1 51:13 64:7 66:2 things 21:3 27:3 34:17 35:23 38:10 42:15 43:4 52:9 think 4:19 6:18 7:16 10:23 13:13 16:15 19:22 20:6 25:22 28:24 46:9 47:7 51:4 53:2,13 59:20 62:14 63:19 thinks 19:3 third 16:15 thought 61:15 64:18 three 21:22,22 31:11 36:14 40:15 41:24 42:10 65:17,18 67:8 68:7 Veritext Corporate Services 800-567-8658 973-410-4040 [time - wrote] time 1:12 3:9 12:7 16:9 17:17 18:6 21:10 24:2,17,22 26:11 27:5 28:4 33:25 34:13 35:8,22 36:9 37:11,23 48:6 61:16 63:15,16 64:2 69:12 times 7:10 21:4,22 21:22,22 22:2 30:18 32:7 33:17 42:10 61:22 today 5:23 7:19 8:2 30:21 44:20 60:22 65:10 68:3 told 18:2 23:12 46:9 61:24 62:1,14 top 51:6 track 55:2 tracking 60:10 tramadol 32:16 37:25 38:3,4 39:15 42:15 transcription 3:8 treated 6:12 7:13 treating 21:11 22:10 52:2 54:9 56:3,7,24 57:5 treatment 6:8 54:11 56:12,22 trial 3:10 43:17 true 23:16 69:16 truth 69:8,8,9 try 31:19 34:5 39:5 39:18 50:1,3 57:17 61:7 trying 13:9 36:23,25 38:24 57:9 tv 35:5 twice 61:19 two 5:1 66:5 67:7 type 21:4 49:10,11 49:15,15,25 50:5 57:3 Page 11 types 8:12 49:18 50:3 51:20 typical 51:17 typically 6:20 8:10 8:23 49:17 typo 59:20 typos 58:3 u u 3:1 uh 13:24 16:14 17:9 27:17 44:13 52:1 59:23 unable 18:21 unchanged 17:13 25:19 uncommon 27:23 undergo 26:1,19 undergone 48:15 understand 30:6 35:18 39:22 40:20 41:9 52:11,11 65:9 65:12 66:15 understanding 13:1 14:18 15:11 19:9,20 24:4 49:1 52:7,25 67:21 understood 7:25 unfortunately 58:6 59:21 united 1:1 unsure 23:19 unusual 37:1 54:7 57:3 update 59:25 updated 18:9 use 30:24 31:21,25 32:16 37:21 38:21 38:22 40:7 42:15 51:13 54:10 usually 15:21 18:15 21:2 23:4,7 34:19 34:24 v v 3:22 vague 32:9 valid 12:7,7,11 46:10 63:10 64:10 validity 65:6 valuable 42:17 van 1:13 3:24 variety 14:11 vas 29:9 32:1 virtually 61:23 visit 2:10 20:2,7,10 22:13 24:25 25:18 27:9 31:13 35:11 36:15 41:23 42:2 53:13 55:13 60:15 62:2 visits 40:22 42:13 64:23 visual 30:18 vitamin 33:14 voc 8:7 vs 1:5 w wait 13:5 waive 68:9,11 waived 3:5,6,8 69:15 walk 64:11 walking 25:5 29:21 32:10 want 21:3 33:12 40:6 55:23 58:24 60:16,19,22,24 61:8 64:17 wanting 64:25 warrant 65:4 watch 31:24 watching 35:5 water 36:20 way 5:10 18:18 23:7 26:21 30:17,24 38:16 39:2 40:4 45:11 51:21 60:10 61:3 65:15 week 11:8,11 12:3 went 48:10 57:11 whatnot 46:20 56:10 whereof 69:22 william 1:17 wishes 21:8 witness 2:2 3:7 46:14 66:19,22,25 67:3,6,10 68:11 word 45:19 words 33:3 62:6,7 work 7:24 8:11,13 9:22 17:23 18:10,22 19:11 20:13 22:24 23:10,20,22 24:5,5 24:11,19 27:7 33:21 34:5 35:22 44:15 46:19 47:14 48:19 48:21,21 49:1,3,5 49:15,15 50:19,23 51:2,24,25 53:3 58:12,17,23 62:4,21 worker 49:22 workers 7:21 working 19:10 27:7 48:5 works 15:23 17:25 38:5,14 40:4 52:12 58:13 workwell 9:8 12:1 63:11 world 58:4 worse 32:15 worsened 54:22 worst 23:24 30:21 worth 34:19 write 29:15 30:4,6 writes 32:15 writing 19:13 69:10 written 13:10 22:1 wrong 35:19 wrote 32:19 Veritext Corporate Services 800-567-8658 973-410-4040 [x - ymca] Page 12 x x 2:1 31:2 y y 36:24 37:3 yeah 19:1 22:8 27:14 36:11 44:2 58:1 66:25 67:3,6 year 42:12 years 66:5 ymca 36:7 Veritext Corporate Services 800-567-8658 973-410-4040 Pag e 3 Page 1 1 IN THE UNITED STATES DISTRICT COURt FOR THE DISTRICT Of NEBRASKA 2 3 DAVID BLISS, ) CASE NO. 4:12-CV3019 ) PLAINTIFF, ) DEPOSITION OF ) MICHAEL H. MCGUIRE, M.D. vs. 4 5 ) INDEX CASE CAPTION .......................... Page I APPEARANCES ....... .... ................ Page 2 INDEX ............................ ..... Page 3 TESTIMONY ...... ....................... Page 4 REPORTER CERTIFICATE .................. Page DIRECT EXAMINATION: By Mr. McMahon ................... Page 4 II 60 II 6 ) TAKEN ON BEHALF OF BNSF RAILWAY COMPANY, ) PLAINTIFF ) DEFENDANT. ) 7 8 9 0 1 VIDEOTAPED DEPOSITION OF MICHAEL H. MCGUIRE, M.D., taken before Gretchen Thomas, Certified Court Reporter, Registered Professional Reporter, Certified Realtime Reporter, General Notary Public within and for the State ofNebraska, beginning at 12:41 p.m ., on June 18. 2013, at the Professional Offices of Thomas & Thomas Cou11 Reporters, I321 Jones Street, Omaha, Nebraska 68108, pursuant to the Federal Rules of Civil Procedure. 2 LJ L4 II CROSS-EXAMINATION: By Mr. Sattler ....... ............ Page 31 EXHIBITS: 80. CURRICULUM VITAE MARKED OFFERED 4 81. MEDICAL RECORDS MARKED OFFERED 4 82. COLOR PHOTOGRAPHS MARKED OFFERED 35 5 6 l7 8 L9 "'O Q1 /2 /3 24 ?5 I I Page 4 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 2 3 APPEARANCES FOR THE PLAINTIFF: MR. WILLIAM MCMAHON HOEY & FARINA, PC. 542 S. Dearbom Avenue, Suite 200 Chicago, Illinois 60605 (312)229-7581 FAX(312)939-7842 wmcmahon@hoeyfarina.com FOR TH E DEFENDANT: MR. THOMAS C. SATTL ER MS. KATHERINE Q MARTZ SATTLER & BOGEN 701 P Street, Suite 301 Lincoln, Nebraska 68508 (402)475-9400 tcs@sattlerbogen com 4 5 6 7 8 9 ALSO PRES ENT MR .JOHN J THOMAS , JR., CL VS Thomas & Thomas Court Reporters and Certified Legal Video, L.L C 1321 .Iones Street Omaha, Nebraska 68102 (402)556-5000 FAX (402)556-2037 15 16 17 0 1 ' 2 3 4 5 6 7 .8 9 0 1 18 l9 ~0 121 .2 22 23 24 25 3 4 5 (Whereupon, the following proceedings were had, to-wit:) (Exhibit Nos. 80-81 marked for identification.) VIDEOGRAPHER: Please stand by. Counsel, we are on the record. This is Tape No. 1 to the Videotape Deposition of Michael McGuire, M.D., in a deposition qtaken by the plaintiff in a case entitled David Bliss versus BNSF Railway Company; Case No. 4: 12-CV-3019. This deposition is being held at the offices of Thomas & Thomas Court Reporters, 1321 Jones Street in Omaha, Nebraska. Today's date is June 18th, 2013. The approximate time is 12:41 p.m. My name is John Thomas, Videotape Specialist, from the office of Thomas and Thomas . Our court reporter this afternoon is Gretchen Thomas. Will counsel please identify themselves for the record . MR. MCMAHON : William J. McMahon for the plaintiff, Mr. Bliss. MR. SATTLER: Tom Sattler, BNSF I li II II I! li 1 (Pages 1 to 4) Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Railway Company. MICHAEL H. MCGUIRE, M.D. having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. MCMAHON: Q. Good afternoon, Doctor. A. Good afternoon . Could you please state your name for the members of the jury. A. My name is Michael H. McGuire, M.D. Q. And do you have a profession or occupation that you specialize in? A. Yes. I'm an orthopedic surgeon. Q. And what does it mean to be an "orthopedic surgeon"? A. Orthopedic surgery is defined as the medical specialty that provides evaluation and treatment for conditions of the spine and extremities. Generally speaking, we're the bone and joint doctors. Q. Okay. And could you tell the jury a little bit about your education and training to be an orthopedic surgeon. A. Yes. I attended Creighton University here ·o. Pa g e 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 full-time employee ofthat hospital for many years, about 25 years. I have headed the mihopedic service at the Creighton University Hospital here in Omaha, and I continue to hold privileges at II Creighton. II Q. Okay. And are you board certified in that field? A. Yes, I am. I'm ce11ified by the American Board of Orthopedic Surgery. 1 : Q. What does that mean , to be "board ce11ified"? A. It means that you've met the educational and training requirements as we just discussed . You've successfully mastered the fund of knowledge necessary to practice orthopedic surgery and have passed a written test for that. And then finally, you've demonstrated your abilities in the practice of orthopedic surgery, both by a review of your practice and by an oral examination of, um -- of that practice. If you meet all those things, you are granted certification by the American Board of Orthopedic Surgery. Q. And I take it over the past -- over three decades of-- in your career, you've treated other patients with similar back conditions as Mr. Bliss? II Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in Omaha, and earned a bachelor of science in chemistry degree in 1971 --May of 1971. I continued at Creighton for my medical degree and earned an M.D. in May of 1975. I then served a five-year orthopedic surgery residency at St. Louis University in St. Louis, and completed that residency in-- on June 30th, 1980. Q. And could you tell the jury a little bit about the current nature ofyour practice; what type of patients you see, what type of conditions you treat. A . I'm a-- I practice as an orthopedic surgeon in Columbus, Nebraska, a town of22,000 people about 90 miles from here. I practice a general mihopedic surgery with two other surgeons. I do a number of joint replacements, do a number of fracture work. And my interest for many years in orthopedics -- or my special interest has been tumors ofthe musculoskeletal system, so I continue to see a number of patients referred for my treatment. Q. And have you been on the staff of any hospitals, whether here in Omaha or Columbus? A. Yes, I have. I'm currently -- I practice at the Columbus Community Hospital-- actually as a Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,, A. That is true. And have you performed back surgeries on those types of patients? A. In a very limited fashion. My practice of orthopedics does not include routine di scectomies or spinal fusions, but on the occasion when tumors have affected the spine, then I've worked with spine surgeons, either mihopedists or neurosurgeons, to do that type of surgery. Q. Okay. And in the field of mihopedics, do you have to do continuing medical education courses to keep up with the certification in the field? A. Yes. Q. Okay. And do you regularly do that type of continuing education and attend conferences in the field? A. Yes. Actually, the orthopedic community has developed a-- a whole range of opportunities for that, and I pa11icipate for a number of reasons, including the fact that in the state of Nebraska, we must demonstrate some level of continuing medical education to maintain our license. Q. Okay. Doctor, at my request, did you perform a medical records review, as well as a-- an Q. 2 (Pages 5 to 8) Page 11 Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 examination ofMr. David Bliss? A. Yes, I did. Q. And, um, have you done this type of review before? A. Yes, I have. Q. Is it possible to estimate how many times, either per year or a period of time, that you perform this kind of medical/legal consultation? A. Urn, specific to a case like yours, it would be a handful of times per year. For many years, I-- I've done, um, similar work, perhaps 30 or 40 or 50 patients evaluated per year. Q. Okay. And when you did this review, what materials did you review in helping you to formulate your opinions and conclusions in this matter? A. Can I-Q. Sure. A. You or your office was good enough to send me this box of records. I haven't weighed it, but it's this box of records (indicating). Q. Okay. And are those the medical records for Mr. Bliss? A. Yes, they are. Q. Both the medical records that exist after the February 2011 reported work-related injury, as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pertinent findings did you gather from your review of the medical records of Mr. Bliss's orthopedic history? A. Well, in my report to you, I attached from that box of records a small collection of medical records that I found to be most petiinent to the case of Mr. Bliss. I can list those, if you'd like me to. Q. lfyou could, yeah. A. I hope to do this in the correct order. So the first would be an office note, a note of the evaluation by Anthony Cox, PA-Certified, dated 4 February 2011, in reference to David Bliss. So this would have been his office evaluation the day-- the day after the injury. Q. Okay. A. So that would be the first one. Then there is a report of-- of MR imaging of Mr. David Bliss's lumbar spine, and the MR images were obtained on the 18th of March, 20 II, so about six weeks later. And the next is the --the report of the operation -- the operative repo11 of-- of surgery performed by Daniel Noble for the patient David Bliss, and that's dated 6 April 2011. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well as -- that predate that? A. Yes, I believe that's true. I'd have to look-- on the predated ones, I'd have to look through . But yes, there's a complete set of records there. Q. And you also had a chance to do a physical examination upon Mr. Bliss? A. That is correct. Q. And do you remember the date of that? A. I saw Mr. Bliss on the 31st ofMay, 2012. Q. All right. And is a review of these types of documents and --as well as a physical examination of the patient, is that the type of information and documentation that you and other physicians and orthopedic surgeons typically rely upon to assist them in formulating opinions and conclusions as to the cause of a current medical condition of a person? A. Yes. Q. Okay. And, in fact, did you rely upon these medical records in your own review -examination of Mr. Bliss in formulating your own opinions and conclusions in this matter? A. Yes, I did. Q. Before we get to those, what findings-- II II II If Page 12 Page 10 1 2 3 4 5 6 7 8 II II II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And then -- and then there -- and then there's a set of records for fUiiher evaluation of Mr. Bliss, and these records are authored by Keith Lodhia, L-0-D-H-1-A, M.D ., of Midwest Neurosurgery and Spine Specialists, 8 June 2011, to September 2011, and 7 November 2011. And then finally again attached to my repmi for you is a report of Mr. Bliss's operation by Daniel Noble, a lumbar spine operation, from the 6th of May, 2010, so prior to his injury. And a rep011 from the Lincoln Physical Therapy Associates date 3 October 2008 in the form of a letter to Dr. David Clare, C-L-A-R-E. And finally the report of Mr. Bliss from the Spine and Pain Center of Nebraska from 21 December 2011. And this is authored by Dr. Liane Donovan. Q. Thank you, Doctor. Before we move on, maybe if we could define a few medical terms that might be helpful before we move on. Doctor, what does the term radiculopathy mean? A. In medical terms, it -- it refers to the way pain travels or radiates out through an 1 1 II - 3 ( Pages I' II 9 to 12) il li Pa g e 15 Pa g e 1 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extremity. So as an example, if one has a herniated disc in their low back, that disc may push against the -- a nerve root as it leaves the spine, and that nerve travels entirely down the extremity. Low back, it travels down the lower extremity, of course. And from neck, it travels through the upper extremity. So we make-reference to a radiculopathy, we're really referring to pain radiating out or traveling out through the length of an extremity. Q. Okay. And what difference is there, if any, between the term disc extrusion and herniated disc? A. Probably no --no difference. A disc extrusion may be a little bit more dramatic thing, that the disc -- a portion of the disc was actually squirted out. But-- but I think for purposes ofthis discussion, a herniation or extrusion of the disc would be the same. Q. All right. And the medical procedure discectomy, what's that? A. It's an operation, a form of surgery, and the goal is to remove the herniated or extruded portion ofthe disc and, therefore, take pressure 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discectomy helps patients that have a disc extrusion? A. Yeah. Well, it's simply by taking the pressure off the nerve root. So if you were to think about -- if my arm was to be the nerve root -obviously much bigger than a true nerve root-- and a disc was pushing against it, any of us could stand that for a while, but after some length oftime, we'd want the disc to be removed. So it's to take pressure off the nerve root or to remove the offending cause of the pinched nerve root. Q. And, um, how is it that a fiset rhizotomy is used after a micro discectomy for patients that still have pain? A. Well, I think the key phrase there in your question-- who still have pain. So if a patient-- if a patient has undergone surgery to remove a herniated disc, and hopefully the pain that is radiating through their extremity, hopefully that's gone, but if they still have back pain, then a rhizotomy would be a reasonable attempt to relieve that part of the condition. Q. Okay. And another term, what's a spinal cord stimulator? Pag e 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 off the nerve root where it's being pinched. Q. And another medical procedure, rhizotomy -- a fiset rhizotomy? A. Yes. Q. What's that? A. Hard to know. The spine-- we commonly think of the spine as a series of blocks; and, in fact, it is a series of blocks, separated in each way between a cushioning disc. But, in fact, if we reach to -- any of us -- and feel our spine, feel our back, we're not feeling those blocks, but we're feeling the roof, um, of the spine that protects the spinal cord and the nerve roots. And there are joints back there to allow the spine to move and move. And people are-- certainly a potential cause of back pain is wearing out those joints, much like an arthritis or something. And so one can destroy the nerves that supply those little joints and perhaps no pain would come from there. And that-- the procedure to destroy the nerves surrounding these little joints where the back of the spine hooks together is known as a rhizotomy. Q. Okay. And then how is it that a li I• I! II II Pag e 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Um , the-- it's an implantable device that discharges a-- small electric shocks, and I think the best way to probably think about is to perhaps confuse or-- confuse the brain or the pain receptors, and -- if you were to tap-tap-tap-taptap-tap-tap for- -- forever on something, maybe finally you just kind of wear out its ability to recognize pain . So it's a device, again, hope to relieve pain. Q. All right. And then finally the last term that you use in your report is "failed back syndrome." A. Yes. Q. What is meant by that term? A. It's kind of a catch-all I suppose, but Mr. Bliss here is a patient who's had-- I think at least three operations on his spine, and a number of other procedures. And despite everyone's best attempts, and despite appropriate indications for surgery, and despite time and everything else; the fact of the matter is he remains, um --he continues to suffer back pain . And so if you've kind of used up all of your reasonable choices and you still have pain, you gather that all together into one phrase, "failed I' - 4 (Pages 13 to 16) ·, ' Pag e 1 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back syndrome." Q. Okay. You were able to have a physical examination of Mr. Bliss; is that right? A. Yes, I did. Q. What were your findings on your physical examination? A. I report those findings on the first paragraph of Page 3 of my letter to you, and for completeness sake, my Jetter's dated 31 May 2012. I will read this shot1 paragraph. (Reading): On exam, I noted a pleasant, healthy appearing male who moved about the office in a satisfactory fashion. The first step or two after arising from a seated position in our waiting room chair caused pain. He then ambulates for short distances in a normal fashion. Mr. Bliss was able to partially disrobe for the exam without difficulty. Visual examination of his lumbosacral spine is remarkable for healed surgical incisions consistent with his history. l noted a pain free, passive, full range of motion of both hips and knees. Mr. Bliss has bilateral pes planovalgus (flatfeet) deformities. The deep tendon reflexes were measured at the knee jerk and ankle jerk level. Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On the right lower extremity, the reflexes were noted to be 2+/4 with provocation. On the left lower extremity, the reflexes were absent and could not be elicited, even with provocation. The function ofthe extensor hallucis longus muscle and tendon to each great toe is intact, brisk, and strong. His distal pulses at the posterior tibialis and dorsalis pedis levels are easily palpable bilaterally. And then I add that Mr. Bliss is a nonsmoker. Q. And then the following paragraph, you summarize some of your opinions in this matter; is that right? A. Yes, I do. Q. And is that based upon both the review of the medical records and documents that you had in this case, as well as your examination of Mr. Bliss? A. And the history that I took from Mr. Bliss on that day. So that-- the records, the patient's history, and my physical examination, yeah. Q. And what was that history that he provided to you on that day? A. If we go back to Page 1, the second paragraph --and I will again read. I .I II II I! II Pa g e 2 0 Pag e 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Reading): Mr. David R. Bliss is a now 56-year-old male who has been an employee of the BNSF Railroad for the past 22 years. Mr. Bliss reports the onset of low back pain with radicular symptoms (especially through the left lower extremity) while on the job on 3 February 2011. Mr. Bliss was repairing the dented wall and bent door frame of a boxcar at that time. The project required the use of a hydraulic ram that, once maneuvered into place, can be used to jack the walls apart. This returns the frame of the door and wall of the boxcar to the original position. I reviewed photos of the device and how it works. The ram is estimated to weigh at least 150 pounds. Mr. Bliss reports that at the moment of the onset of the pain, he was not actually lifting any objects. Simply as he stood up, something popped in his low back. And the episode occurred following a two- or three-hour period of repeatedly maneuvering the ram into place and using that ram to repair the boxcar. Q. And in the course of medical treatment that Mr. Bliss received after this incident on February 3rd, 2011, could you summarize that for the Ladies and Gentlemen of the Jury. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. And this makes reference to the pet1inent medical records that we already reviewed. But to summarize it, because of the severity of the symptoms, Mr. Bliss repot1ed the event to his superiors at BN SF that day. He then sought evaluation on 4 February 2011 by Anthony Cox, PA-C. MR imaging of the lumbar spine was completed on 18 March 2011. Mr. Bliss underwent lumbar spine surgery on 6 April2011. Unf011unately, his post-operative rep011 has been unsatisfactory. He has been unable to return to work. Fasit rhizotomies were performed by James Devney, D.O., in October of2011. Q. Did you also gather from your review of the records, as well as your discussions with Mr. Bliss, his previous surgical history, previous to February 3rd, 2011? A. Yes, I did. Q. Could you summarize that for the jury as well? A. I can do so in an expet1 fashion. The next paragraph of my letter, Mr. Bliss's past surgical history is significant. He initially underwent a lumbar discectomy in 2003. He then underwent a lumber discectomy (at a more II II li 5 (Pages 17 to 20) Page 23 Pa ge 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proximal level) on 6 May 2010 . Following that procedure, he was in an off-work status for approximately four months. He reports that he successfully returned to work in October of2010. Mr. Bliss did well and apparently was working without restrictions until the morning of three-until the morning of 3 February 2011. As noted above, he has not worked since that time. Q. What-- what's your understanding of the surgery that Mr. Bliss had on the 6th of May, 201 0? A. As I understand the history from the records sent by Mr. Bliss's report, I state that as noted -- or excuse me. Strike -I put down that the 6 May 2010 surgery was not the result of an injury at work. Rather, Mr. Bliss's back went out while lifting a bucket of water for his dog. Q. And what type of surgery was that performed by Dr. Noble? A . That was a lumbar discectomy, and we have a copy of the operative rep011 from that date in these records. Q. Okay. And what was the procedure after the work-related injury of February 3rd, 2011, that-- the surgical procedure that Dr. Noble 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 24 Page 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 performed on Mr. Bliss on April 6, 20 II? A. I'll read from the operative rep01t of that date, 6 April 2011. The operation is listed as a left L3-4 micro discectomy, re-exploration. And No. 2, use of an operative microscope. And the reason that it's listed as a re-exploration is because the 6 May 2010 discectomy had been at the same level, the left side of the Lumbar 3-Lumbar 4 disc. Q. Okay. And what does it mean to be a recurrent left L3-4 disc extrusion ? A. Well, what it means is that Dr. Noble believes -- and ce1tainly the history suggests that-- that the first time that the L3-4 disc extruded or pinched out against the nerve and the extruded portion -- the offending portion was removed and the patient got better, but now an additional extrusion, more ofthe disc has come out ofthe space and is pinching the nerve. You know, when we do a discectomy, we perhaps take -- most half of the disc out, which leaves people at some risk for recurrence or -- and Dr. Noble's listing here suggests that he believes that there was a-- a recurrence of that disc extrusion at that level. And for that reason , required additional discectomy through a re-exploration ofthat same level. Q. And when you say, "that level," could you indicate where on a person's spine is this -- the re-excrusion -- re-extrusion ofthe disc? A. Sure. So alI of us -- or most of us, almost all of us, have 12 thoracic vertebrae or the blocks, and those are the vertebrae that our ribs are hooked to. And then almost all of us have five low back or lumbar vertebrae or blocks. And then finally we have the sacrum or the tailbone. So at the 3-4 disc, it would be halfway down the lumbar spine. Q. And then on your examination -- I think it was continued on Page 3 of your report-- did Mr. Bliss present to you with any symptoms on that pmticular day? A. Yes. If we go to the -Q. Page 2, maybe? A. Yeah. If we go to the bottom paragraph of Page 2 of my 31 May 2012 report. (Reading): At the time of my evaluation, Mr. David R. Bliss reported constant left lower extremity pain that radiates to his heel and is associated with 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 numbness over the lateral aspect of his left foot. Q. And his current treatment at that time was I what? A. He was in a pain management program directed by-- by Dr. Donovan. Q. And did he indicate what activities, if any, increased his level ofpain? A. He reports that he is relatively comfortable while seated or lying down. He has learned to stand and to bend in a slow and careful fashion. Prolonged standing and walking caused his lower extremity symptoms to increase. Q. Okay. And Doctor, based upon your review of the medical records, and also your physical examination of Mr. Bliss, did you have an opinion, to a reasonable degree of orthopedic ce1tainty, what the cause of the constant left lower extremity pain that radiated into Mr. Bliss's heel and associated numbness over the lateral aspect of his left foot, what that was caused from? MR. SATTLER: I'll object to the form of the question as it relates to a history provided by the patient and not his physical exam. Overruled II BY MR. MCMAHON: I Q. Just based upon your physical exam and the 6 (Pages 21 to 24) Page 27 Page 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 review of the records in this case, and background and training as an orihopedic surgeon, do you have an opinion as to what was causing the lower extremity radiating pain in Mr. Bliss as reported? A. Yes, I do . Q. And what is that? A. l think I best tried to provide that by the statement that I would characterize his current status as a failed back syndrome. And cetiainly his repmis of pain radiating to the heel ofhis foot and my findings suggest that there's ongoing irritation or pinching of some or one of the nerve roots exiting the lumbar sacral spine. Q. Okay. And based upon your physical exam, your review of the records, as well as your examination of Mr. Bliss, did you formulate an opinion, to a reasonable degree of orihopedic cet1ainty, whether Mr. Bliss had reached a point of maximum medical improvement as of May 31st, 2012? A. Yes, I did. And I believe that Mr. Bliss had reached a point of maximum medical improvement effective the date of my examination, 31 May 2012. Q. And based upon that opinion, did you formulate any restriction -- medical restrictions that you believe were appropriate for Mr. Bliss? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 impairment, do you have an opinion in that regard, I don't have an objection to that. If that's what the doctor is going to address, that's fine. MR. MCMAHON: Okay. BY MR. MCMAHON: Q. Doctor, I'll withdraw that previous question. Okay, Tom? Doctor, did you rate Mr. Bliss based upon your review of the medical records, your examination of Mr. Bliss, as of May 31st, 2012? A. Yes, l did. Q. And what does that mean, first of all? A. Um, well, based on everything that we've been discussing, and in these situations, the physician is asked to provide a rating of a permanent partial impairment of function. And to assist us in that task, the AMA has provided a text -- a large text that is named the AMA Guides to the Evaluation of Permanent Impairment. At this time, I used the Fifth Edition of that textbook. And in Table 15-3 of that text, the table provides criteria for rating impairment due to lumbar spine injury. And I am of the opinion that Mr. Bliss and his condition is best described in the Page 2 8 Pag e 2 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 :(.5 16 17 18 19 20 21 22 23 24 25 MR. SATTLER: Well, I'll object to the form of the question. Also, it goes beyond the disclosure made by the May 31, 2012, repmi. There is no such opinion or testimony . MR. MCMAHON: Very good. I'll withdraw that, Mr. Sattler, and I'll rephrase it. MR. SATTLER: I should have looked at your face, Doctor. THE WITNESS: Oh, boy, they got me now. That's off... MR. MCMAHON: I'll rephrase it. BY MR. MCMAHON: Q. Doctor, based upon your opinion that Mr. Bliss had reached maximum medical improvement, effective May 31, 2012, did you come to any opinion whether Mr. Bliss had reached any-- whether permanent or-- or impairment level of function, based upon your review of the records, your examination of Mr. Bliss, and your education and training and experience in orthopedic surgery? MR. SATTLER: Hang on a second, Doctor. I'll object to the form of the question . If the question is did you rate him under the AMA guides to the evaluation of permanent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORE lumbar category III. And for that reason, I would apply a 12 percent impairment ofthe whole person. Q. And that phrase, "12 percent impairment of the whole person," it-- is it possible for you to translate that from orthopedic terminology to maybe what us laypeople might understand? A. Well , 1 guess --I hope this is appropriate, but I -- I often point out to patients that this is not a-- some sort of rating of disability. If-- and I use myself as an example. I happen to be a surgeon, so if I were to for some reason suffer an amputation of my foot or lower leg, I could be rated, according to a table in the guides. In fact , it would really not disable me in any way according to my profession . Other people, it would be more disabling. So really I guess what this means is that 12 percent of all the things that we think a regular person like Mr. Bliss can do, he can no longer do. So he's lost-- or he's suffered a significant impairment of the normal function that we would expect of a 56-year-old man. 7 II li II (Pages 25 to 28) I I Page 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right. And then based upon that, did you come to any conclusions of whether Mr. Bliss could return to his prior position with the rai Iroad as railroad carman? MR. SATTLER: I'll object to the form of the question as no proper and sufficient foundation. Overruled BY MR. MCMAHON: Q. Okay. A. At the completion of-- at the completion of my letter, I offer the opinion, finally, I find it unlikely that Mr. Bliss can or will return to the duties required of his previous position at the BNSF Railroad. MR. SATTLER: And again, I'll move to strike: Without sufficient foundation. Overruled BY MR. MCMAHON: Q. Okay. And Doctor, what's the basis for your opinion regarding that he will not return to his previous position with the railroad? A. Um, he-- it's my understanding that he did hard physical labor, such as jacking apart railroad cars to repair them. And his combination of clinical problems, as I've said, summarized as a failed back syndrome, make it particularly painful Page 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is the cause of the treatment and outcome as we've described -- or reported in my letter. Q. Okay. And the basis for that, again? Sorry. A. The patient's history, my review of his medical records, and my findings at physical examination. MR. SATTLER: Same objection. Move to strike. Overruled MR. MCMAHON: Thank you, Doctor. That's all. CROSS-EXAMINATION BY MR. SATTLER: Q. Now, Dr. McGuire, you saw the patient, Mr. Bliss, at the request of his lawyer; is that right? A. That is true. Q. Jt was not a referral for another health-care provider? A. That is correct. Q. And it was not intended for purposes of examining Mr. Bliss as a patient for treatment? A. That is correct. Q. And in other words, this was a specific arrangement made so that you could offer opinions, 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for him to do heavy labor. Q. All right. And lastly, Doctor, do you have an opinion, to a reasonable degree of medical certainty, as to whether the reported February 3rd, 2011, work incident was a cause in whole or in pmi to the-- to the injury to Mr. Bliss's spine and the subsequent medical treatment? A. Yes, J do. Q. And the basis for that opinion? A. My-- the-- all the things that we've covered in this letter. Q. Okay. And J guess I should close the loop there. So you believe it was connected, to a reasonable degree of medical certainty, to the February 3rd, 201 I, work injury? A. Yes. MR. SATTLER: Hang on a second Doctor. 1'11 object: No proper, sufficient foundation. Also object to the form of the question. Overruled BY MR. MCMAHON: Q. Okay. A. J believe that the 3 February 2011 injury I Page 32 Page 30 1 2 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not unlike those that have just been provided by you in direct examination? A. That is correct. Q. Now, did this examination occur at your office, then? A. Yes, it did. Q. In Columbus? A. Yes. Q. Correct. And this would have been on May 31st of 2012? A. Correct. Q. This would have been roughly 16 months after the incident alleged to have occurred on February 3rd of 2011, right? A. Correct. Q. In terms of the actual time that you would have spent with Mr. Bliss, how much time would that have taken? A. With Mr. Bliss, about 30 minutes. Q. Jn terms of the physical exam of Mr. Bliss, how much time was spent in the physical exam pmi? I'm talking about the clinical exam where you've got him in the room and you're looking at him. II II II II, I' - 8 (Pages 29 to 32) Page 35 Pag e 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Well, we were in a room-- the two of us in an exam room for those 30 minutes. The actual touching, checking, doing reflexes would be 5 or 7 or 8 minutes ofthat. Q. And in terms ofthe records review in preparing your report, approximately how much time was involved there? A. Um, probably 3 hours. Q. Have you billed counsel for plaintiff in this case yet? A. Yes, I have . Q. And what amount was that? A. Today, there's a bill for $1800 for this deposition. I'm sure there was a bill on --for the May 31st, but I must admit I don't know what it is. Q. All right. Now, was this done through the auspices ofthe hospital, or is this a business that's handled on the side or ... A. This is a side business. Q. All right. And you had not seen the plaintiff, Mr. Bliss, before this visit on May 31st? A. Correct. Q. And you haven't seen him since? A. Correct. Q. And the only information that you would 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 repm1ed to me. Q. Right. I noticed also, Doctor, we obtained copies of everything that was provided to you through a request to counsel for Mr. Bliss, and in the materials were included a number of photographs. Do you recall seeing photographs like this in the materials that you would have received? A. Yes, I do recall. (Exhibit No . 82 marked for identification.) BY MR. SATTLER: Q. For the record, I've asked, and the cout1 reporter has marked as Exhibit 82, a series of four photographs. Also for the record these are Bates marked DID000759, -760,-761 and -762. Doctor, if you could take a look at those photographs. With respect to those four photos in Exhibit 82, do those look like the photos that were provided to you by counsel? A. Yes, they're the same. Q. Okay. I note in your report you said, "I reviewed photos of the device and how it works." You were talking about this hydraulic ram? Page 3 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have had regarding his past medical history or any history after you saw him would have been provided by his lawyer? A. Yes. The box of records, yes. Q. Right. I mean, you haven't consulted with any of his treating physicians, you haven't -- in other words, not being a health-care provider for Mr. Bliss, you're not in the loop discussing treatment plans or anything like that? A. That is correct, I am not. Q. Now, you refer in your report to your physical examination as a neuro-musculoskeletal exam focused on his lumbar spine and his lower extremities; is that right? A. That is right. Q. In terms of the interview that you had with Mr. Bliss, I take it that you're-- the only basis that you had as reflected in your report in terms of the-- his background with the railroad or the circumstances of the incident on February of 2011 would have been based solely on that information provided to you by Mr. Bliss? A. Correct. I suppose I should add the caveat, and I have the medical records, but Mr. Bliss re- --that I! ,, II II li II II :I Page 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Exactly. Q. What you left off in your testimony, which appears in your report, is that it is maneuvered into place. And I want to make sure that you recognize that -- or accept that the photos here in Exhibit 82 --was it your understanding that this was how it was maneuvered by Mr. Bliss at the time ofthe accident? A. Yes. Q. Okay. And you've had a chance to look at those? All right. So these four photographs showing him leaning over, grabbing the device and maneuvering it, you understood that that was taking place on the date ofthe incident? A. Correct. Q. And that formed, at least in part, the basis for your opinions here today? A. Yes. Q . Now, interestingly, you note in your report that the episode occurred when he simply, as he stood up, something popped in his low back. Do you recall putting that in your report? A. Yes, that's what he reported to me. Q. Right. And for those of us who are not 9 (Pa ge s 33 to 36) II II It II II II I! Page 39 Page 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 physics majors, I'm going to use a term, but I'd like you to explain it to the jury. One can load the spine-A. Correct. Q. --by lifting heavy objects or maneuvering heavy objects, et cetera. Can you explain what the difference is between just standing up versus moving with some type of a heavy object in terms ofloading ofthe spine? A. Yeah. I'm not sure that I can. Q. Okay. A. But this-- the spine, as I have been demonstrating, is a series ofbony blocks separated by cushions or-- that we call discs. And certainly going from a bent-over position to standing back up changes forces across the spine . And as a physician, of course, I'm -- I start with what the patient tells me, and he says-he reports, simply, as he stood up, something popped in his low back, which is-- it was actually not an unusual report. Q. There are reports of people who just bend over to pick up the newspaper-A. Exactly. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 spine center. He says, "He bent over to pick up a socks -- a sock, when he felt a pop and felt a sharp stabbing in the left side of his low back and into his buttocks." A. So that's different than what J learned. Q. Right. What I'm more interested in, rather than the disparity in the history, is the fact that events to the spine can occur as a resu It of just fairly minimal movement of the body; isn't that correct? A. That's true. Q. Now, I want to talk a little bit about your referral to this situation as a "failed back syndrome ." Now , this failed back syndrome is terminology that's used in your field. It's a term of art used in your field, is it not? A. That's true. Q. And it refers to chronic pain experienced after unsuccessfu I surgery for back pain; isn't that how it's typically defined? A. That's very good, yes. Q. Now, surgery for back pain is conducted Page 40 Page 3 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. -- and wi11 have a disc problem, right? A. Right. Or sneeze. Q. Actually, if you look back at Dr. Noble's operative report-- or the reports around the time that he had the first discectomy, this is the one back in 2010, I think it's in May of2010, you report the patient telling you that he was picking up a bucket of water for his dog. You'll note in Noble's report, he got a history of just bending over to pick up a sock; do you remember that? A. I didn't discover that. Q. Okay. A . Perhaps Dr. Noble was confused. Q. Well, either that or the history has changed, right? A. Yeah, or I'm -- or my report's confused. I'd be happy to look at that, if 1 can ... Q. Do you have the operative report from the May incident-- or the May surgery, 1 should say? A . Yes, I do. Q. Okay. A. I have it. Q. I've got one from -- and for the record , this is Bates marked NSC00020. This is from Noble's 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when there is an identifiable source of the pain, and I think you actually used language in your direct examination that the best attempts at fixing the problem through surgery were made and that there were appropriate indications for the surgery when the surgeries occurred. I think that's the language you used. A. Correct. Q. But back pain can also have a number of causes, and accurate identification of a source of pain is complicated. And I notice when you also gave your testimony about the failed back syndrome, J think you used the term he had "ongoing irritation over one or more of the nerve roots of the spine." I think that's the language you used. A. Yeah. I think I -- toward the end -counsel asked me why -- what was the source of-- of his continued complaints of pain , and based on Mr. Bliss's description of hi s pain and my findings at the time of my physical exam, it would suggest that he has ongoing problems or something causing pinched nerves. Q. Right. And you're using the term plural , "nerves." You're talking about -- he's got a-- when II II ~ 10 (Pages 37 to 40) I Page 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we talk about a failed back syndrome, the real issue is trying to figure out where the pain source is, right? A. That's true. Q. And the difficulty is that when you try all these surgical approaches, you do the best you can, based upon the diagnostic tools that you typically would use, like MR!s, discography, whatever it might be, to isolate an area that may be the pain generator? A. That's correct. Q. But when you're in a failed back syndrome situation, what you have is a number of different levels that are deteriorating over time-- and by the way, this gentleman has degenerative disc disease; does he not? A. That's correct. Q. That's a progressive disease that's been ongoing for many years? A. It can be a progressive disease. Q. Have you compared his MRI studies from the 201 0 time frame to the more recent ones? A. I have not seen those. Q. And then, of course, the symptoms that we're talking about, when we talk about complaints Page 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cause chronic pain? A. Correct. Q. Now, there was a point at which during direct examination you were reading from your report, and I'm assuming that was just the --to refresh your memory as to your exam and your analysis. But, um, this testimony that you gave about Mr. Bliss having pain radiating into his heel and associated with numbness over the lateral aspect of his foot, that was by his rep011 to you? A. Correct. Q. Now, on your examination --and again, I take it that this examination that you conducted, Dr. McGuire, is in the context of doing what you were asked to do, which was essentially put together an impairment rating for this guy? A. Correct. Q. Now, you understand we're not in a workers' compensation setting? A. Correct. Q. You also understand, and I think you actually testified, that when we talk about impairment, we're not-- that doesn't equate with disability under the AMA guides; that's a distinct Page 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of pain, that's a subjective symptom, right? A. That is correct. Q. And while we have these diagnostic tools to try to find out objectively where the pain generator is, it doesn't always work out that way? A. That is true. Q. Okay. Now, causes of failed back syndrome, um, that can be the original cause of pain, in terms of recurrence, it can even be complications that occur during surgery; isn't that true? A. Correct. Q. And when the surgery occurs, a nerve root causing the pain can be inadequately decompressed, right? A. Correct. Q. Joints or nerves may become irritated actually during the surgical procedure itself? A. Correct. Q. Scar tissue can form and cause recurring pain? A. Correct. Q. And also inadequate or incomplete rehabilitation or physical therapy, especially in patients whose back muscles are deconditioned, can II Page 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issue? A. That is correct. Q. Now, I want to talk a little bit about the approach that a physician in your position would take. Doing a rating under the AMA guides, and the [I type of physical examination that you would undertake -- and as a matter of fact, the AMA guides actually list and identify the type of physical examination for lumbar spine rating under the guides. A. Correct. Q. They talk about a standing position I examination for posture, palpation, gait, range of motion, muscle strength screening. They talk about I a sitting position, with neurological and nerve .I tension testing. These are all kind of a guideline under the AMA guides for how you do the lumbar exam, ,:: right? A. Correct. Q. Now, in looking at the-- at your report, you did a physical-- or excuse me, a visual examination of the lumbar spine, correct? A. Correct. Q. There's no mention here in terms of these various positions that one might have a patient I :1 11 (Pages 41 to 44) Page 47 Page 45 1 In -- 1 2 A. Well, l -Q. -- like, recumbent supine, recumbent prone, sitting position, or the exam's in a standing position? A. I guess I could fill that in for you. Q. Well, but it's not reported here is the point. A. I can tell you that he was standing during the visual examination of the lumbosacral spine. Q. All right. And there's no mention of posture in your report? A. Well, that's not true. On the first sentence of my paragraph of the report, I note that he moved about the office in a satisfactory fashion, and that-- that reflects his posture. Q. Okay. There's no negative note regarding his posture? A. Correct. Q. In other words, there's no issue of lordosis, kyphosis, nothing like that? A. Correct. Q. So his posture was normal? A. Correct. 2 3 4 5 6 7 8 9 1 o· 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 let me ask you a different way. Did you follow the AMA guides in terms of your physical examination? A. I used a combination of my training, experience, and the Table 15-3 in the -- in the guides. Q. Well, the Table 15-3 is just punching up the numbers. It's not the physical exam recommendations made by the AMA? A. No. I do my physical exam. Q. So you didn't follow those recommended? A. Well, actually I did, but perhaps not the way you hoped I had. Q. Okay. But in terms of posture, in terms of gait, range of motion, and whatever muscle strength screening that you did, there was nothing out of the ordinary? A. Correct. Q. All right. VJDEOGRAPHER: Counsel, we are off the record. The time is 1:39 p.m. (I :39 p.m. -Recess taken.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right. Now, in terms of palpation of the spine, no mention of that? A. Correct. Q. Now, you didn't check for muscle spasm, guarding? A. No. Q. But if he had normal posture, that would tend to suggest that he didn't have muscle spasm or guarding? A. Correct. Q. Now, what is the significance of that in terms of the Ladies and Gentlemen ofthe Jury, the fact that there isn't a change in the posture caused by muscle spasm or guarding? A. Well, you note that at the beginning, in my opening paragraph, l state that I performed a neuro-musculoskeletal exam, and you are making reference at this moment to muscle function --or muscle findings. Q. Well, but that's only because we're looking at the AMA guides as to how you do the impairment rating for the lumbar spine. A. Right. And I'm not suggesting that there are any muscle problems. Q. Okay. But what I to make sure is is-- : ' I I i I i Page 4 6 1 ! Page 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (At I :42 p.m ., with parties present as before, the following proceedings were had, to-wit:) VIDEOGRAPHER: Please stand by. Counsel, we are back on the record. The time is I :42 p.m. BY MR. SATTLER: Q. Doctor, when we broke, we were going over your physical examination ofthe plaintiff, Mr. Bliss, and I was going through the AMA guides in terms of the physical exam for the lumbar spine. We had just talked a little bit about this muscle issue. Did you do any measurements of his lower extremities to determine if there was any atrophy of his lower extremity? A. No, I did not. Q. You didn't find any objective signs of loss of motor function or loss of innervation to the muscles? A. No, I did not. Q. Are you aware of whether or not at any time anyone has done any electromyographic diagnostic studies on this radiculopathy that has been discussed here today? 12 (Pages 45 to 48) I I I Page 5 1 Page 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Not by memory. I guess I could not guarantee that there is or is not a rep01t in that box. Q. You didn't rely on any EMG studies -A. No. Q. -- or any other electrodiagnostic studies to come up with some objective evidence of the basis for the radiculopathy complaints? A. No, I did not. Q. Let's talk about this pain-free passive full range ofmotion of both hips and knees. Could. you describe for the jury what passive range of motion is, and what you're really looking at in terms of range of motion as it relates to the hips and knees? A. Yes. So in this part ofthe exam, the patient is seated on an examining table. And, um, if-- we're trying to learn or rule out another cause for pain through the extremity. And certainly an mthritic hip and/or arthritic knee can cause radicular pain through the extremity. ln Mr. Bliss's pmt, I was able to demonstrate a full range of motion. And by passive, it means that the examiner is moving the joint rather than the -- in an active sense, the patient 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And you didn't use that methodology? A. That is correct. Q. Now, in terms ofreflexes, you did note that reflexes were absent in the left lower extremity, and could not be elicited, even with provocation. "With provocation," we're talking about what, the little hammer, the mallet? A. No. Q. What are you talking about? A. I was hoping you'd ask me . The -- as it turns out, many of us , perhaps around this table, our reflexes would not fire even just with a tap of a hammer. But if patients are asked to grab their fingers like this (indicating), it kind of sets everything, and then the reflexes fire with a tap of a hammer. So what I noted then in the right lower extremity, the reflexes were two-plus over four with this provocation. And by that, 1 mean they were normal. On the left lower extremity, I could not elicit-- get any of the-- you know, you think of kick the leg out, excuse me, even with the -- this act of provocation . Q. But you did note that the function of this 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is moving. So to my movement of the extremity, to stimulate a range of motion, both of his hips and both of his knees, that was all done without causing any pain. Essentially, in a 56-year-old male, ruling out arthritis of the joint as a possible cause. Q. All right. With respect to range of motion of the spine, can you test that? Can you measure it? A. Yes, you can. Q. Did you do that? A. Well, I noted that he was able to pmtially disrobe for the exam without difficulty. That required some bending and twisting and moving, but I did not-- I did not list any direct measurements. Q. There's actually a device called -- what is it, an inclinometer? A. Yeah. I don't use that. Q. And you understand the AMA guides, the difference between the approach you took for measuring impairment on the lumbar spine, there's another one where they use range of motion, right? A. Yes. li II II II li I! Page 52 Page 50 1 2 3 4 5 6 7 II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hallucis longus muscle and the tendon of each great toe was intact -A. Yes. Q. -- brisk and strong. Now, in terms of radicular syndrome and the nerve roots, this extensor hallucis longus is related to lumbar disc level L4-5, right? A. Correct. Q. And that's the L5 nerve root? A. Yes. Q. And that was based on your -- your testing here would seem to be unimpaired? A. Correct. Q. Was any of your other findings on physical exam consistent with a specific-- or involvement of a specific nerve root? A. Well, actually, yes, because the-- on the right lower-- excuse me. On the left lower exam -left lower extremity, the absence of an ankle jerk is -- makes reference to the S 1 nerve root. Q. That's the ankle plantar flexors? A. Correct. And the absence of a knee jerk is more proximal, either the 3rd or 4th lumbar. Q. So we're talking about involvement high-- 13 I~ II II II II I! II (Pages 49 to 52) ]I Page 55 Pag e 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relatively high in the spine and relatively low in the spine? A. Correct. Q. Okay. A. Well, I suppose-- 1 don't know if-- I mean-Q. Well, at 3-4 or LS , S 1? A. Yeah, ofthe lumbar spine. Q. Yeah, we're just talking lumbar spine? A. Correct. Q. But as you mentioned, that's five different levels? A. Correct. Q. Now, you did mention this in your rep011, the fact that Mr. Bliss had preexisting lumbosacral spine degenerative disease . Can you describe for the jury what that is. A. Well, he's a 56-year-old male, who in February of2003, underwent surgery at the L5, S I -Q. It wasn't in February-- or February of 2003? A. Correct. Q. Okay. I'm with you. A. At least on this op report. Q. I'm with you. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you say the diagnosis of a recurrent disc extrusion at the left side of the L3, L4 level was established. Actually, Dr. Noble indicates that after the May 6, 2010, micro discectomy, he was advised to achieve more optimal body weight to decrease stress on the spine, as well as to help reduce his chance of recurrent herniation. Unfortunately, he was unable to lose any weight; and somewhat predictably, he is back as a result of recurrent herniation. A. I see that. Q. Okay. Is that generally consistent with the experience you've had over time? A. Well, I know that I've not been able to lose any weight since 20 I 0. Q. Let's talk about your patients. A. Well, I see. I thought perhaps you were being critical of me. Well, you know, I mean, people-- I don't know the numbers, but obesity contributes to -- to low back problems, yeah. Q. Now, finally, Doctor, in terms of what we're really referring to under these-- under the AMA guides, and this analysis that you undertook for the impairment rating-- by the way, before we move 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. All right. So if we look at his op report from April of2011, Dr. Noble was good enough to list as No. 4 diagnosis, "Status post right side L5-S 1 micro discectomy, 2003 ." So we know that for eight years prior to February of2011, he's had an absence of at least part of the disc-- the cushioning between the fifth lumbar and first sacra segment, and that that can be connected. I don't know if it's absolutely so, but it certainly can be connected to the fact that his ankle jerk, deep tendon reflex, no longer works. And then , as we know in 2010, he then went on -- a discectomy at the L3, L4 level. So again, he's had absence of normal cushioning effect. And then he happens to be overweight, and he's worked for the railroad for 22 years, or whatever that means, and his spine is kind of wearing out. Q. Okay. Also, if you're on the operative report for April 6 of2011, I'm looking at the St. Elizabeth Regional Medical Center operative report for Dr. Noble, the surgery of-A. Correct. Q. Okay. I note in your-- in your repoti, II II II I• Page 56 Pa g e 5 4 1 2 3 4 5 6 7 8 II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 off of that, I want to just tie up what I left off on the physical examination. There was no evidence of-- of any loss of bowel or bladder with Mr. Bliss? A. That is correct. Q. Any function. So we -- in terms of other sensory loss, other than his report, did you test for any sensory loss? A. No, I did not. Q. Now, going back to the AMA guides in terms of the impairment, this refers to a loss or decline offunctional capacity as a result of a medical condition or a symptom, right? A. Correct. Q. Whereas a limitation is something that an individual cannot perform due to a medical condition . These limitations can be objectively measured, and tests have been devised to assess these limits of physical capacities. And 1 think the jury is going to hear about functional capacity evaluations. All right? A. Okay. Q. Now, a restriction is not what a patient cannot do it, it's what a patient should not do 14 ]1 [: II (Pages 53 to 56) Pag e 5 9 Pag e 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because there is a substantial or immediate risk of harm to him or others, correct? A. Correct. Q. Now, with respect to this impairment rating that you've arrived at in this case, these guides from the AMA attempt to standardize an objective approach to evaluating medical impairments focused on perceived interference with activities of daily living. I think you referred -- without using that terminology, I think you referred to these-- our normal activities in life? A. Correct. Q. Right. But again, the guide offers that just because a person may be assessed with an impairment that may interfere with these activities of daily living, there may be no corresponding diminution and ability to perform productive work? A. Correct. In fact, I used myself as an example. Q. As an example. Determining whether a patient is impaired is a medical opinion, whereas whether or not someone is actually disabled is not a medical opinion? A. That is correct. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SATTLER: I think those are all the questions I have, Dr. McGuire. Thank you. MR. MCMAHON: I have nothing. Thank you, Doctor. VIDEOGRAPHER: Counsel, we are off the record. The time is 1:56 p.m. (1 :56 p.m . -Recess taken .) Page 60 Page 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And the medical role is to determine functional limitations or medically reasonable restrictions, and not to make occupational determinations? A. I'm sorry, say that again? Q. The medical rule, your role -A. Yes. Q. -- is to determine functional limitations or medically reasonable restrictions and not to make occupational determinations? A. That is correct. Q. And you've not had any specific training in making occupational determinations? A. That is correct. Q. And the only information that you had available to you as to what he did at the BNSF Railway time-- at the BNSF Railway was his description of him maneuvering this-- this hydraulic jack, as depicted in these photographs in Exhibit 82, for a two- or three-hour period? A. Correct. Q. That's the only thing you know about his job? A. I think that's fair. Q. Okay. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 CERTIFICATE STATE OF NEBRASKA ) ) ss. COUNTY OF DOUGLAS ) I, Gretchen Thomas , Registered Professional Reporter, General Notary Public within and for the State of Nebraska, do hereby certify that the foregoing testimony of Michael McGuire, M.D., was taken by me in shorthand and thereafter reduced to typewriting by use of Computer-Aided Transcription, and the foregoing fifty-nine (59) pages contain a full, true and correct transcription of all the testimony of said witness, to the best of my ability; That I am not a kin or in any way associated with any of the parties to said cause of action, or their counsel, and that I am not interested in the event thereof. IN WITNESS WHEREOF, I hereunto affix my signature and seal this 1st day of July, 2013. 21 22 23 GRETCHEN THOMAS, CCR, RPR, CRR GENERAL NOTARY PUBLIC Certified Court Reporter Registered Professional Reporter Certified Realtime Reporter 24 25 II My Commission Expires : _--=::;;... _ _ 15 (Pages 57 to 60)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?