Bliss v. BNSF Railway Company

Filing 197

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

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: [phone]
[phone]
Fax: [phone]

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

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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

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575 South 70th Street. Su1te 200.

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L1ncoln, Nebraska

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17
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IS

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"
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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.

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(Exhibit Nos. 78C and 78D

12

marked for identification.)

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15

DR. DANIEL R. RIPA,

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Of lawful age, being first duly cautioned and

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solemnly sworn as hereinafter certified. was

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examined and testified as follows:

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DIRECT EXAMINATION

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BY MR. McMAHON:

19

Q.

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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 [phone]

A.

25

orthopedic surgeon.

I'm an orthopedic surgeon, a physician,

Lon J. McGowan, RDR, CCR, CRR
Latimer Reporting, Lincoln, Nebraska

Off: [phone]
Fax: [phone]

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 [phone]
Lon J. McGowan, RDR, CCR, CRR
Off: [phone]
Latimer Reporting, Lincoln, Nebraska
Fax: [phone]
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 [phone]
Lon J. McGowan, RDR, CCR, CRR
Off: [phone]
Latimer Reporting, Lincoln, Nebraska
Fax: [phone]
BNSF
objects to
the
testimony as
hearsay
without an
exception
and as not
relevant.
Fed. R.
Evid. 402,
403, 801,

9

Dr D Ripa

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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

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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 [phone]
Lon J. McGowan, RDR, CCR, CRR
Off: [phone]
Latimer Reporting, Lincoln, Nebraska
Fax: [phone]
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: [phone]
Tollfree [phone]
Fax: [phone]
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

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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 [phone]

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: [phone]
Fax: [phone]

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 [phone]

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: [phone]
Fax: [phone]

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 [phone]

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: [phone]
Fax: [phone]

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 [phone]

Lori J. McGowan, RDR, CCR, CRR
Latimer Reporting, Lincoln, Nebraska

Off: [phone]
Fax: [phone]

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

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CASE NO. 4:12-CV-3019

DAVID BLISS,
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Plaintiff,
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vs.
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BNSF RAILWAY COMPANY,

DEPOSITION OF
DR. KEITH R. LODHIA
TAKEN ON BEHALF OF
THE DEFENDANT

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Defendant.
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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

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INDEX

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Appearances ....... .
Stipulations ....... .
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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

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(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:

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(Witness's response to oath: "Yes.")

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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

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STIPULATIONS
It is stipulated and agreed by and between the

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parties hereto:

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certified, is that the-- board certified as a
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neurosurgeon. Are you board certified in the
subspecialty as well?

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be taken before Lisa G. Grimminger, Registered Merit

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Reporter, Certified Realtime Reporter, General

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Notary Public, at the time and place set fm1h on

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the title page hereof.
2. That the deposition is taken pursuant to

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our secondary process. I've passed the written
boards sometime at the end of residency, or actually

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at the beginning-- middle of residency, and then we

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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

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actually out beyond that, but I've applied over a

to Mr. James B. Luers, Attorney for the Defendant.

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year ago. It takes a long time for them to kind of
get you on the list.

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4. That all objections except as to fom1 and

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foundation shall be made at the time of the

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deposition.
5. That the testimony of the witness may be

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been practicing a neurosurgeon, Doctor?
A. Six years.

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Q. And you are licensed in the State of
Nebraska?

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transcribed outside the presence of the witness.

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6. That the signature of the witness to the

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transcribed copy of the deposition is waived.

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********

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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.

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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

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usually have the patient's --the full record that

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gets printed out here \Vasn't printed out. We have

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all the little stuff that they fill in, the patients

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so--

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fill in, themselves. They didn't print that out
Q. Like patient information?

A. Yeah.
Q. Would that--

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A. Would that have affected--

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Q. Yeah. 1 guess at this point you
weren't directed to that particular-- or any of

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those problems; is that right?

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A. No.

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Q. You do reference that he had
previous back surgery. Do you recall or do you know

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when those were?

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A. Just what was stated. He had one
done April of that year, which was only probably a

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couple months before I saw him, redo diskectomy at

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have.

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L3/4, and then it looked like he had some surgery

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Q. Okay. And it looks like on that

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before L3/4. He must have mentioned then there was

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particular date you saw him, and you then sent a

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one at L5/S1 and one at L2/3.

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letter to Dr. Kreshel, which is also dated June 8th

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Q. Do you happen to know, Doctor, from

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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

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what sort of medical history, if any, you were

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in the report, but it doesn't sometimes show up,

provided, either prior or contemporaneously with

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depending on how small the bones were taken.

that consultation?
A. He was a gentleman, I guess, who had

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of 2011; correct?

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A. Yes.

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Q. All right. As of that first

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previous surgery at a couple of disk levels.
Q. The information that's contained in

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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,

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pain in his legs and back, and I guess he had some

basically, that you were provided?

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atrophy in his legs.

A. Yes.

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Q. And would that have been a history

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what was the purpose of your visit?

that was provided by the patient as opposed to

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A. Typically. Just says in
consultation. It usually says why, but it's

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obviously for the symptoms. The next thing we talk

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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?

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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

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stiff, limited lifting because of this.

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Q. Did he tell you --

it was before his last surgery, I guess.

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A. Correction. I think he had some

Q. All right. As of that particular

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first visit, Doctor, in June of 2011, were you aware

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that the patient had had both knee surgeries and

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difficulty on the job or so because of this.
Q. Did he tell you anything about his
job or how he had gotten hurt?

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or--

A. ffhe did, 1 don't recall the

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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

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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

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on his back, it looks like. It looked like he was
neurologically intact, meaning his strength and
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sensation were good. Reflexes were notable. Eyes
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were both equal, and he said he did have some
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atrophy in his left thigh compared to the right
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thigh, which I guess is what he had complained
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about, but other than that it didn't look like it
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was very remarkable exam.
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Q. Okay. What did you recommend, if
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anything?
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A. At that time he had just had a
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recent surgery, and because of that we ended up
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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,
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and so we recommended MRI, and then it says
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something about a functional capacity evaluation,
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'cause he obviously felt limited in what he could
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do, and so we talked about possibly at some point
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down the line getting an FCE to evaluate what his
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limitations might be.
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Q. And that's -- I read that under the
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Jetter of June 8, 2011, as part of the plan.
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A. Uh-huh.
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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

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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

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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

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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?

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A. --so I don't recall that That's
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probably why we made the comments of the functional 13
capacity evaluation. Typically, if we're going to
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give restrictions that aren't in the short term that
we don't know how long they're going to go and we
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would tend to think it's a chronic condition, I
would order a functional capacity evaluation.
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Q. And that would be typically like
19
20
before you impose restrictions?
A. Uh-huh.
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Q. Is that a yes?
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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

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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

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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

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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?

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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

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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?

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A.
Q.
A.
Q.

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when it came in?

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Uh-huh.
Is that right?
Yes.
All right. Then did you see the FCE

A. Yes.

Page 21

that right?
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A. Yes, or I don't know if it's because

of the FCE but--

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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.

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Q. All right. And you ordered another
MRI at that time?

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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

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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

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EMG showed a chronic right LS radiculopathy. That's

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looked at when you first saw him in June?

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and the nerve may or may not heaL

what John was talking about in the July 15th note.

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the previous one. There's the EMG. Okay. And the

the repeat MR! that would have been done on July 13,

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2011, basically, you didn't see anything

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significantly different from the MRI that you'd

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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?

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A. No, and we don't even know if the

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A. Right.

chronic EMG finding correlates even with his
increased pain at the time.

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Q. Correct?
A. Right, correct.

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Q. So you couldn't attribute-- at

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least from the results of the MRI, you couldn't

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attribute the reason for the additional pain?

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A. The additional pain, right, correct.

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Q. Then, the EMG, what is the purpose
A. The EMG is to look for acute nerve
compression versus old nerve compression versus

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location, be it peripheral nerve or maybe pinched at

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the lumbar spine, so it's a way to help us quantify

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whether something's acute, chronic, and maybe \Vhat

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location, which nerve, etcetera.

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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

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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

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consistent with an old injury.
Q. Okay. "Old" meaning--

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Madonna, was that you, for some rehab?

radiculopathy, meaning it's-- that would be
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A. I don't know if he went to Madonna.
We may have. I don't know if he did physical
therapy or not

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A. Not acute, something that's not

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healing further. It's nothing new that's ongoing or

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a new injury. There's no re-innervation occurring,

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Doctor. I think that's from Madonna.

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meaning the nerve is not trying to heal or in the
process of denervating. It's just stably or

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A. It looks like we did.

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Q. And thaes dated what?

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chronically impaired.

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Q. Is there a

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what type of

Q. Let me show you a report that I got,

A. 7-26, 2011.
Q. Okay. So assuming that you guys

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condition, injury or degeneration can result in

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sent him for rehab, do you recall what you were

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those kinds of findings on the EMG?

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hoping to gain at that point in time through that
rehab? If you want to look at this record,
that's --

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a herniated disk or some other form of pinching of

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the nerve.

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A. What date was that again?

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Q. That was July 26th, is the date of

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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

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service.

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A. Okay. Was that before or after his
functional capacity evaluation?

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probably was an acute injury, but it could be

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Q. Actually, it was after.

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anything from a stretch to a compressive phenomenon,

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A. That was after his FCE?
Q. Yeah. The FCE was dated June 30th.

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meaning, you know, nerve stretch or actual physical

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compression on the nerve. Maybe it was a herniated

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disk, maybe it was a bone spur that he'd had

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A. Okay. My guess is we were just
trying something nonoperative as opposed to a three

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previously from other operations that was taken off,

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level fusion or something.

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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?

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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

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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

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Q. Okay. Put that exhibit back

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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

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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.

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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?

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that degeneration, and so we recommended maybe facet

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blocks or possibly facet rhizolysis. ff facet

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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

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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

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A. Yes.

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Q. Your next visit was when, Doctor?

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A. Well, I guess we spoke to him on the

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than the tacet blocks?

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A. No.

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Q. Same thing?

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8

A. Well, they actually arc different.

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Usually, one's referred to as using medications.

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I0

The rhizolysis is typically something they use a

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radiofi-equency generator to actually create a lesion

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not chemically, but electrically.

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Q. Okay. And you recommended that, and

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phone, but we didn't sec him until November 2011.

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Q. That would be November 7th?

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A. Yes.

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Q. What did you do on that particular

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, 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

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Page 33

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A. Not from my notes.
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with walking.

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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

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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

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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?

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1

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A. No. I had no objective evidence of
why he couldn't do that.

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Q. Okay. Doctor, do you agree that

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Mr. Bliss was clearly suffering from degenerative

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time you saw him first in June of20 ll '!

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A. Yes.

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4

Q. And any changes you noted in MRfs

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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

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11

two MRls and which-- let me back up. Which MRT did

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12

you see that was befOre 2000 and --

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A~

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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.

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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
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June, and the answer is yes. We saw the March 18th
one, which was done befOre his April surgery, and he

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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?

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Page 35

Page 37

A. No.

study.

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Q. Okay. I gotcha.
A. In June that wasn't mentioned there
anymore so

~-

Q. Gotcha. That was repaired by the

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time the June MRI was taken care of?

significant change?

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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

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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
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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
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need to be in a

123

A. Yeah.
Q. You've not recommended any

24

restrictions, either temporary or permanent, for

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25

Mr. Bliss; correct?

25

22

Q. Doctor, 1 have no further questions.

2

3
4
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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,

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and I said, "Well, if you can't do those things, you

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--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.
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Evid. 402,
403, 801 113
and 802. ' 14
1

Ruling: 15
Overruled
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'25

A. Rhizolysis, yeah.

can't do those things," and so that was in reference

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3
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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

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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

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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,

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Page 41

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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.

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20

Q. And if the sensory branches

8

A. Y cs, we probably would have at that

8
9

regenerate.

lu

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i 15

A. Yes.

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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.

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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

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it.

itself.
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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.

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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)
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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.

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19
General Notary Public

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2!

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\

\
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

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EXHIBIT NO.

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. OCT 1 6 201~
USA GAJMMINGER, RMR, CRR

PHONE [phone]

FAX 4{}2.484.6625

4220 PIONEER WOODS DR., SUITE B

UNCOLN, NE 68506
NSC00015

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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: [phone]
fax: [phone]
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: [phone]

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: [phone]
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
[phone]
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: [phone]
Fax: [phone]

MNASS00013

0912.612011 09:07:43 AM

Remme ID ->

Page 9 r 29

8006 Farnam Drive, Suite 306
Omaha, Nebraska 68114
ph: [phone]
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
[phone]
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: [phone]

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: [phone]
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 [phone]
Coruu(tation • 'E[ectl'omyogl'<L]!It\j

ROBERT R. SUNDELL, M.D.
DAVID A. FRANCO, M.D.
T. SCOTT DlESfNG, M.D.

FAX [phone]

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: [phone]
Fax: 402-39e-9253

VtWYJ.mldwestneurosurg:ery.com

~/Cr~­
/.

201 ftidge Street, Su!te 305
Councll Bluffs, !A 51503
Phone: [phone]

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: [phone]
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: [phone]
fax [phone]

Account#: 104768
Requesting MD: Charles L. Kreshel MD
Family MD: Charles Kreshel MD
Case Manager:

David R Bliss
1801 Preamble Lane
Lincoln, NE 68621
[phone]
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: [phone]
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
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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

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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

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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
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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.
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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.
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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

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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

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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
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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

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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
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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

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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

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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

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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.
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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

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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."
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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
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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;
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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.
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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
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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.
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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

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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
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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
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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

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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
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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

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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,
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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
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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,
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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
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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
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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.
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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.
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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

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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.
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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 --

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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
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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?
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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

///
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(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
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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
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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

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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

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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?
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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
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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?
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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

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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

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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

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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

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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,

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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 --

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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.
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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.
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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

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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
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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
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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.
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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.

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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
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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.)

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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
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65:10 68:3
told 18:2 23:12 46:9
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top 51:6
track 55:2
tracking 60:10
tramadol 32:16
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transcription 3:8
treated 6:12 7:13
treating 21:11 22:10
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treatment 6:8 54:11
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trial 3:10 43:17
true 23:16 69:16
truth 69:8,8,9
try 31:19 34:5 39:5
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tv 35:5
twice 61:19
two 5:1 66:5 67:7
type 21:4 49:10,11
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typical 51:17
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typo 59:20
typos 58:3
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uh 13:24 16:14 17:9
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unable 18:21
unchanged 17:13
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uncommon 27:23
undergo 26:1,19
undergone 48:15
understand 30:6
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understanding 13:1
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unfortunately 58:6
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united 1:1
unsure 23:19
unusual 37:1 54:7
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update 59:25
updated 18:9
use 30:24 31:21,25
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vague 32:9
valid 12:7,7,11
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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
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53:13 55:13 60:15
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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
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wanting 64:25
warrant 65:4
watch 31:24
watching 35:5
water 36:20
way 5:10 18:18 23:7
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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
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46:19 47:14 48:19
48:21,21 49:1,3,5
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51:2,24,25 53:3
58:12,17,23 62:4,21
worker 49:22
workers 7:21
working 19:10 27:7
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works 15:23 17:25
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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

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year 42:12
years 66:5
ymca 36:7

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Pag e 3

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IN THE UNITED STATES DISTRICT COURt
FOR THE DISTRICT Of NEBRASKA

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DAVID BLISS,

) CASE NO. 4:12-CV3019
)
PLAINTIFF,
) DEPOSITION OF
) MICHAEL H. MCGUIRE, M.D.

vs.

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)

INDEX
CASE CAPTION .......................... Page
I
APPEARANCES ....... .... ................ Page 2
INDEX ............................ ..... Page 3
TESTIMONY ...... ....................... Page 4
REPORTER CERTIFICATE .................. Page
DIRECT EXAMINATION:
By Mr. McMahon ................... Page 4

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) TAKEN ON BEHALF OF
BNSF RAILWAY COMPANY,
) PLAINTIFF
)
DEFENDANT.
)

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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.

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CROSS-EXAMINATION:
By Mr. Sattler ....... ............ Page 31
EXHIBITS:
80. CURRICULUM VITAE
MARKED OFFERED

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81. MEDICAL RECORDS
MARKED OFFERED
4
82. COLOR PHOTOGRAPHS
MARKED OFFERED
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APPEARANCES
FOR THE PLAINTIFF:
MR. WILLIAM MCMAHON
HOEY & FARINA, PC.
542 S. Dearbom Avenue, Suite 200
Chicago, Illinois 60605
[phone] FAX[phone]
[e-mail]
FOR TH E DEFENDANT:
MR. THOMAS C. SATTL ER
MS. KATHERINE Q MARTZ
SATTLER & BOGEN
701 P Street, Suite 301
Lincoln, Nebraska 68508
[phone]
tcs@sattlerbogen com

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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
[phone] FAX [phone]

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(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

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(Pages 1 to 4)

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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

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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
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Creighton.
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Q. Okay. And are you board certified in that
field?
A. Yes, I am. I'm ce11ified by the American
Board of Orthopedic Surgery.
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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?

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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

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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.

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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

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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.

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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--

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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

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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

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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?

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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

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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

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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.

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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.

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(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.

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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

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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

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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

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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

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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?

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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

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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

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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.

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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

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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,

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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

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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.

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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

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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?

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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

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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

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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.

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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
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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

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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

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Page 41

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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

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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

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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

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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
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examination for posture, palpation, gait, range of
motion, muscle strength screening. They talk about
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a sitting position, with neurological and nerve
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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

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In --

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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.

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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.)

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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--

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(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?

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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

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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

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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.

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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--

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Pag e 53

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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.

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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

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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,

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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

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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.

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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

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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.

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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.

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GRETCHEN THOMAS, CCR, RPR, CRR
GENERAL NOTARY PUBLIC
Certified Court Reporter
Registered Professional Reporter
Certified Realtime Reporter

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My Commission Expires :

_--=::;;... _ _

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