Toyota Job Site Analysis & Job Description

Job Site Analysis Report

Weight Checking/Barcoding Station

FTS California – Hayward, CA

Prepared by:

Dr. Allen S. Miller

Date of Analysis:

February 12, 2004

411 E. Huntington Dr. 107-285 Arcadia CA 91006
· E-Mail Drasmiller@Earthlink.net ·

COMPANY	FTS California-Hayward, CA	JOB TITLE
CONTACT PERSON	Mr. Peter Ingenhutt	D.O.T. EQUIVALENT
POSITION	HR/Safety Manager	D.O.T. NUMBER
OTHER CONTACT		DEPARTMENT
POSITION		BREAKS	60 Min.
ADDRESS	18231 Murphy Parkway	SHIFT DURATION	8.0 Hrs.
CITY, STATE	Hayward, CA	REAL WORK TIME	8 Hrs.
ZIP	95330	DAYS WORKED	Monday to Friday
TELEPHONE	(209) 858-0400 ext 130	HOURS PER WEEK	40 Hrs.
FACSIMILE	(209) 858-9293	SHIFT	1
		PHYSICAL DEMAND LEVEL (UPPER BODY)	Medium
E-MAIL	Peter.Ingenhutt@Fueltotalsystems.com	PHYSICAL DEMAND LEVEL (LOWER BODY)	Sedentary – Light
DATE	2/10/04	UNION PLANT?	No

JOB DESCRIPTION

FUNCTIONAL JOB DESCRIPTION:

Weight Bar-coding Station

KEY JOB TASKS:

Employee must inspect and weigh freshly manufactured tank and place barcode on it. The employee must additionally place parts and work machinery in a safe manner.

DATA:

Information, knowledge and conceptions related to data, people or things obtained by observation and mental creation.

Synthesizing
Coordinating
Analyzing
Compiling
Computing
Copying
Comparing

Yes
Yes
Yes
Yes
Yes
Yes
Yes

INFREQUENT TASKS: None

WORK PACE:

Self-paced to accomplish and finish 60 parts per hour, or in accordance with the demands of the employer.

PERSONAL TRAITS:

Ability to comprehend and follow instructions.
Ability to perform simple and repetitive tasks.
Ability to maintain a work pace appropriate to a given work load.
Ability to relate to other people beyond giving and receiving instructions.
Ability to influence people.
Ability to perform complex or varied tasks.
Ability to make generalizations, evaluations or decisions without immediate supervision.
Ability to accept and carry out responsibility for direction, control and planning.

Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

POSTURE AND MOVEMENT

SUSTAINED POSTURE OVERVIEW	Max. Consec. Min. Per Hour	Total Daily Hours	Possible Change Optional	Further Description
Sitting	0	0	No	N/A
Static Standing	20	2	No	Line Dependent
Dynamic Standing	40	4	No	Line Dependent
Walking	10	2	No	Line Dependent
Driving	0			N/A

STATIC STANDING
Maximum Consecutive Minutes Per Hour	55
Total Daily Hours	8.0
Possible Change Optional?	No
Floor Surface	Cement, rubber mats
Step Available?	N/A
Further Description

DYNAMIC STANDING
Maximum Consecutive Minutes Per Hour	55
Total Daily Hours	8.0
Possible Change Optional?	Yes
Floor Surface	Cement, rubber mats
Further Description

WORK STATION

WORKSTATION LAYOUT	SURFACE 1 (See Below)	SURFACE 2 (See Below)
Surface	Roller Track
Height	39 in.
Depth	13 in.
Length	36 in.
Surface	Steel
Debris	No
Floor Surface	Cement with rubber mat
Comments

ERGONOMIC RISK FACTORS RISK FACTOR	IDENTIFIED?	COMMENTS
Awkward Posture	Yes	Must bend waist at 45 degrees to weight and place bar code on the tank.
Static Posture	Yes	Standing over a part for 20 seconds.
Repetition	Yes	Job task cycle is 1 part per minute
Forceful Exertion	No
Localized Mechanical Stress	Yes	Hands and low back.
Vibration	No
Extreme Cold	No

Strain Index (SI)

Hand: Right Side

Job Factors Level SI Score

Intensity of exertion Somewhat Hard 3.0

Duration of exertion (%) 33.0 1.5

Efforts/Minute 1.0 0.5

Hand/Wrist Posture Good 1.0

Speed of work Fair 1.0

Duration per Day (hr) 8.0 1.0

Strain Index Score: 2.2

Recommendation:

Risk Level = Low

NOTE: Preliminary testing has revealed that jobs associated with distal upper extremity disorders had SI Scores greater than 5. SI Scores less than or equal to 3 are probably safe. SI Scores greater than or equal to 7 are probably hazardous. The Strain Index does not consider stresses related to localized mechanical compression. This risk factor should be considered separately. For additional information see Moore & Garg (1995).

Rapid Upper Limb Assessment (RULA)

Analyst: Allen S. Miller

Job Name: Pressure Test

Workstation ID:

Hand: Right Side

Body Parts Posture RULA Score

Wrist Neutral 1

Wrist In mid-range of wrist twisting range 1

Upper Arms 46 to 90 3

Lower Arms 0 to 90 1

Neck 0 – 10 1

Trunk 0 – 20 2

Legs Legs/feet well-supported 1

Body Parts Posture Score Muscle Score Force Score Total

Arm+Wrist 2 0 0 2

Neck+Leg+Trunk 1 0 0 1

RULA Grand Score: 2

Recommendation: The Posture is acceptable if it is not maintained or repeated for long periods.

Detailed Summary:

Job Task Requirements

As the tanks come from the robot Station the Tank # 635 for the Toyota Tacoma weighing 9.12 kg (20.06 lbs.) or tank # 930 for the Toyota Corolla weighing 7.56 kg (16.63 lbs.) come down the roller tracks to the weight station (see Diagram 1) the employee must remove two plastic tabs from the sides of the tank that the robot cannon remove. Additionally, the employee must inspect the “O” ring and weight the tank (see diagram 2). Once the tank is weighed a bar code is printed and the employee must place the tag in its rightful place on the tank.

Diagram 1 Diagram 2

Additionally, the employee must write the weight with a white chalk pen on the tank. This procedure may not be continued in regular production. This procedure requires the employee to stand and work within a neutral posture at a workstation height of 39 inched and reach of 13 inches. Once the tank is weighed it is rolled to a cooling station and then to the thickness station.

Conclusion:

In this case there are no recommendations to adjust body mechanics to work within the confines of this station. It would be advisable to have the robot remove the excess tabs from the tank. The employee will have to remove two (2) tabs per tank with an average force of less than one (1) pound of force. That equals 2 tabs per tank, 480 tanks per cycle that is 960 times a shift an employee must remove this material. There is no recommended remedy, as utilizing the robot would raise the production time to unacceptable levels.

Additionally, due to employee being required to stand and walk around, one recommendation is anti-fatigue mats or possibly a more cost-effective alternative Personal Anti-fatigue Mat™ Insoles (http://www.mega-comfort.com/ergonomic_personal_anti-fatigue_mat_insole.htm). These insoles act as if the employee walked on anti fatigue mats anywhere they walked. The retail cost of the insoles is $19.95 and reduces muscle fatigue and as well as prolongs performance.

One of the positive aspects of the job task is the employee is not required to lift the tank or utilize severe adverse body mechanics to complete the job task. They are also able to walk and move around in a defined area. This dynamic posture is advantageous, as it requires the employee to move all muscle groups, which inherently reduces fatigue, stress and injury. Because of factors that we cannot change i.e. robot mechanics, that are set and financial prohibitive to change, job rotation is crucial, and would delay the effects of ergonomic stress to one area. This would also allow other muscles to work reducing over fatigue and injury.

Post-Offer Employment testing Requirements:

We will concentrate on lumbar, hand, wrist strength and stability. These two areas are crucial in reducing costly injury and claims.

Please understand that when we evaluated these positions, the systems were still being worked out and procedures were still in flux. We will modify these recommendations as production starts and procedures are solidified. If there are any questions concerning the above information, please feel free to contact me.

Sincerely,

________________________________

Dr. Allen Miller

ASM/sd

Published in:

on August 11, 2009 at 6:42 am Leave a Comment
Tags: Dr. Allen S. Miller, Jobsite Analysis, Kinematic Solutions, Kinematicexpert, Specific Job Functions, Toyota FTS

CNA Peer Review

CNA Insurance Services

LMMS, LLC

Kinematic Specialists

Dr. Allen S. Miller

411 E. Huntington Dr. 107-285

Arcadia CA 91006

(626) 399-6834

E-Mail Drasmiller@Earthlink.net ·

May 3, 2008

Laureen Alvarez
CNA Claims
P.O. Box 6500
Brea, CA 92822

RE:

Patient: Jose Smith

Claim Number: mmmmmm

Date of Birth: May 5, 1965

SS# 555-55-5555

Date of Injury: May 18, 2005

Employer: Jensen Precast

Peer Review: May 1, 2008

PEER REVIEW REPORT

The following is a Peer Review Evaluation based on medical records received from CNA on Jose Smith. This evaluation was requested by CNA and will address the following issues in dispute: Causality, Diagnosis, Excessive treatment, MMI, Necessity of treatment, Pre-existing condition, and Need for future medical care. The following report contains my opinions and conclusions, in regard to this case.

It should be duly noted that all records reviewed, (as delineated in the following report), were done by myself without delegation of tasks to other parties or individuals. Similarly, the entire body of this report was authorized solely by myself and all sources of historical facts mentioned in this report were obtained through a review of medical records as provided by CNA. Further, let it be known that I have not violated Labor Code Section 139.3 and the contents of the report and bill are true and correct to the best of my knowledge. This statement is made under penalty of perjury and is reiterated at the end of this report.

RECORDS REVIEWED:

5/28/2005-Doctors First Report; Mazin R. Sabri, MD

Doctor’s Hospital Medical Center of Montclair

5/28/2005-Post-Operative Report; Mazin R. Sabri, MD

Doctor’s Hospital Medical Center of Montclair

8/28/2005-Doctors First Report; Paul M. Umof, MD
9/22/2005- Interim Progress Report; Mazin R. Sabri, MD
5/29/2007 Primary Treating Physicians Request for Authorization; John B. Smith, MD Orthopaedic Medical Group of Riverside
7/5/2007 EMG and Nerve Conduction Study Report; Filemon R. Quinio, Jr., MD.
8/9/2007 Primary Treating Physicians Request for Authorization; John B. Smith, MD Orthopaedic Medical Group of Riverside.
9/18/2007 Primary Treating Physicians Progress Report; John B. Smith, MD Orthopaedic Medical Group of Riverside.
9/28/2007 Primary Treating Physicians Progress Report; John B. Smith, MD Orthopaedic Medical Group of Riverside.

HISTORY OF INJURY:

On May 18, 2005 the subject, Jose Smith, while working within the scope of his employment for Jensen Precast was “pulling cable” and “cut his pinky”. The subject presented to Doctor’s Hospital Medical center of Montclair via the emergency room with a complex laceration which was in a circular fashion across the distal portion of the right fifth finger at a level of the base of the nail. It was elected at that time to re-attach the torn tissue rather than amputate it. No information was documented how the accident occurred other than he was pulling cable. On 9/22/2007 Dr. Sabri, reported that the patient was doing well and presented with a healed right fifth finger tip. The finger was slightly contracted at the tip approximately 0.5 cm off the palmar aspect of the hand. The report states that the patient was to continue his regular work and scheduled for a re-examination in 6 weeks for release Permanent and Stationary.

HISTORY OF PRIOR INJURY AND/OR DISABILITY:

There is no history of prior injury and/or disability by way of recordation. However, x-rays taken by Dr. Smith on 5/29/2007 reveal a fracture of the right 3^rd phalanx. If any additional records become available concerning prior injuries and/or disability, I would be glad to review them and offer additional opinions if necessary as to whether or not there is a pre-existing condition.

SUBJECTIVE FINDINGS:

Subjective findings noted in Dr. Smith report, dated 5/29/2007 indicate that the patient noticed “numbness and tingling in the right hand and seems to be worsening since the time of original 5/18/2005 injury”. Dr. Smith at that time referred the patient for an EMG and Diagnostic Testing which was performed on 7/5/2007 by Filemon R. Quinio, Jr., MD. The testing revealed evidence of bilateral moderate carpal tunnel syndrome, with prolonged latencies of the median motor and sensory nerves across the wrist. There is no evidence of ulnar neuropathy, radial nerve injury or cervical radiculopathy. Note: Median-Ulnar/Martin Gruber anastomosis noted in both forearms.

On 8/9/2007 Dr. Smith makes note that the patient has bilateral moderate carpal tunnel syndrome, with prolonged latencies of the median motor and sensory nerves across the wrist. There is no evidence of ulnar neuropathy, radial nerve injury or cervical radiculopathy. The patient is noted to have a Median-Ulnar/Martin Gruber anastomosis noted in both forearms. Dr. Smith with this information scheduled the patient for left carpal tunnel release of flexor tenosynovectomies. On 9/18/2007, Dr. Smith in his interim report acknowledges the patients arthritis of the 5^th proximal interphalangeal joint and right carpal tunnel syndrome. However, states the patient is progressing well with his left postoperative carpal tunnel release and did not want to proceed with carpal tunnel release of the right wrist. The patient was returned to his regular work on 9/18/2007. On 2/12/2008, Dr. Smith reports that the patient now wants to proceed with the right carpal tunnel release and states that he anticipated another left carpal tunnel release. The patient exhibits swollen volar aspects of both wrists, and positive Tinel’s and Phalen’s bilaterally. There is dryness and decreased moisture in the median distribution of both hands as compared to the ulnar distribution. Dr. Smith diagnoses the patient with bilateral carpal tunnel syndrome with flexor Tenosynovitis bilaterally.

OBJECTIVE TESTS:

X-ray Findings: May 29, 2007

Three views of the right hand and wrist reveal normal anatomy of the wrist with the exception of the fifth finger. We note there is a well healed middle phalanx fracture with contour changes to the articular surface at the PIP joint. Narrowing of the PIP joint is noted. We also note there is a middle finger distal phalanx old tuff fracture also on this middle finger on the ulnar side there is a large osteophye at the proximal phalanx of the PIP joint.

EMG and Nerve Conduction Study Report- July 5, 2007

Filemon R. Quinio, Jr., MD.

Patient has evidence of bilateral moderate carpal tunnel syndrome, with prolonged latencies of the median motor and sensory nerves across the wrist. There is no evidence of ulnar neuropathy, radial nerve or cervical radiculopathy. No radiographic studies were performed on the patient. Note: Median-Ulnar/Martin Gruber anastomosis noted in both forearms.

CAUSATION:

The patient was released Permanent and Stationary with a fully healed laceration of the right 5^th PIP joint in October of 2005. The patient presented May 29, 2007 complaining of bilateral numbness and tingling of his right hand. It was only upon EMG and Nerve Conduction Studies was it revealed the patient had latencies consistent with left carpal tunnel syndrome. The patient following left carpal tunnel release continued to present with symptomology consistent with bilateral median nerve entrapment. Dr. Smith at that time scheduled the patient for right carpal tunnel syndrome and was considering a second carpal tunnel release.

On 7/5/2007 the Diagnostic Studies performed by Filemon Quinion, MD diagnosed the patient with Median-Ulnar/Martin Gruber anastomois in both forearms. Martin Gruber anastomois is a neural connection between the median and ulnar nerves in the forearm¹. This diagnosis is consistent with median nerve symptomology consistent with the patient’s complaints and is not a result of the 5/18/2007 injury involving the 5^th PIP joint. As discussed below Median-Ulnar Martin Gruber anastomosis is a genetically inherited condition.

DISCUSSION OF ISSUES IN DISPUTE:

The question of bilateral specifically left carpal tunnel syndrome and how it relates to a complex laceration to the right 5^th PIP suffered in the 5/18/2005 injury. First, it should be noted that the patients’ complaints of numbness and tingling in the right hand did not present until two years following the initial 5/18/2005 Injury. Secondly, the diagnosis of left carpal tunnel syndrome did not come until the electodignosistic studies were performed and discussed with the patient on 8/9/2007. Dr. Smith on 8/9/2007 upon his review of the EMG, consulted with the patient concerning his carpal tunnel syndrome and recognized the Martin-Gruber anastomosis bilaterally and subsequently recommended surgery to both wrists. The patient declined surgery to the right wrist consenting to surgery to the left wrist. Thirdly, Dr. Smith makes note in the radiologic exam contained within his 5/29/2007 report “there is a well healed fracture of the middle phalanx fracture of the right hand. However, there the patient denies any prior injuries to his right hand and wrist in prior reports dating back to 5/18/2005. Additionally, Dr. Sabri’s post-operative report dated 5/18/2005 do not make mention of any other injuries to the right hand other than the laceration. Furthermore, there are not reports of left hand symptomology, until after the 8/9/2007 examination by Dr. Smith following the diagnostic testing.

Following left wrist carpal tunnel surgery on 2/12/2008, Dr. Smith reports that the patient currently requests surgery to the right wrist and makes note that the patient has bilateral swelling of the volar aspect and positive Tinel’s and Phalen’s tests bilaterally. He diagnosis’s the patient with bilateral carpal tunnel syndrome. Dr. Smith, at that time agreed with the patient to relase the right flexor tenosynovectomies and is considering yet another surgery to the left wrist due to the patient’s complaints of numbness and tingling. On 7/05/2007, Dr. Quinio diagnosed the patient with Martin Gruber anastomosis of the forearms bilaterally. Martin-Gruber occurs in 10-30% of individuals and 60-70% of those affected show the anomaly bilaterally. In some families, an autosomal dominant inheritance is possible, although a gene controlling this occurrence has not been identified. Martin-Gruber anastomosis can be caused by a variety of indices none of which are a laceration to the a finger on the contralateral hand. Martin-Gruber anastomosis causes sensory changes in the nerves it involves and mimics carpal tunnel syndrome. Many patients complain of sensory changes in the fourth and fifth digits. Rarely, a patient actually notices that the unusual sensations are mainly in the medial side of the ring finger (fourth digit) rather than the lateral side, corresponding to the textbook sensory distribution. Sometimes the third digit is also involved, especially on the ulnar (ie, medial) side. The sensory changes can be a feeling of numbness or a tingling or burning as this patient exhibited. In this case the patient began to experience numbness and tingling of right hand, 2 years post surgery consistent with diagnosis of Martin Gruber anastomosis. As stated, it does not appear that the patient complained of numbness and tingling in the left hand however, when the EMG test results were brought to the patient’s attention he, consented to left carpal tunnel release, still not relieving the symptomology. It appears that this syndrome was discarded and the diagnosis of carpal tunnel syndrome was embraced. The patient was scheduled and a surgical release of the left flexor tenosynovectomy was performed. The patient returns 6 months post surgical with increasing symptoms in his right hand and the same symptoms in the left hand even in the lite of surgery. Dr. Smith still scheduled the patient for right carpal tunnel release and was considering yet another surgery to the left hand still ignoring the diagnosis of bilateral Martin-Gruber anastomosis.

In assessing the diagnosis given of Median-Ulnar/Martin Gruber anastomosis and the subsequent treatment and surgeries for carpal tunnel syndrome received by the patient, it was not related to or a direct result of the 5/18/2007 injury. Martin-Gruber anastomois was properly diagnosed by Dr. Quinio on 7/5/2007 is a condition that is not related to the 5/18/2005 injury or even a work related injury for that matter. It is my opinion, supported by the documentation and medical fact, that the original diagnosis given was reasonable based on the findings, however the new diagnosis made in 2007 is one that is of genetic origin and the treatment rendered was not consistent with the diagnosis given or the examination findings recorded. Based on the findings recorded, the treatment rendered was excessive and not medically necessary to cure and/or relieve the effects of the condition sustained by this patient. It is my opinion, given the minimal subjective and objective findings that the diagnosis of carpal tunnel syndrome is not work related and the carpal tunnel like symptoms are a direct result of the Martin-Gruber anastomosis, which is part of the patient’s genetic pathology and not work-related. We can deduce that the left carpal tunnel surgery failed as the patient was still symptomatic after the release of the left flexor tendon demonstrating that surgery was not successful in relieving the symptomology and further the objective signs were still present. There is no cause and effect relationship between the diagnosis carpal tunnel syndrome, Martin-Gruber anastomosis, all treatment rendered by Dr. Smith, and the 5/18/2005 injury. As stated, there is no evidence to support that the patient’s Median-Ulnar/Martin Gruber anastomosis is even work related. The patient has the genetic marker for this syndrome and most likely would have developed it regardless of the type and frequency of work he performed. It is also evident that the left wrist carpal tunnel release did not resolve the carpal tunnel syndrome of the left hand and most likely will not when performed on the right if the Martin Gruber anastomosis is not addressed.

FUTURE MEDICAL CARE:

The patient does have arthritis and oteophytic growth of the 5^th PIP as identified by x-ray. This is an expected sequella of the laceration and 5/18/2005 injury. Dr. Sabri, did an exceptional job in saving the tip of the patient’s 5^th finger. However, in that surgery, Dr. Sabri had to sacrifice the extensor tendon as Dr. Sabri notes, “reattaching it would have involved stabilization of the finger, possible compromising the blood supply and the finger”. This would have compromised the reattachment of the finger tip. In this process the finger lost some movement, due to Dr. Sabri’s inability to reattach the extensor tendon during the initial surgery 5/18/2007. The arthritis and oteophytic growth and any minimal loss of movement, if any, is a natural sequella and has minimal impact on the patient if any. The patient has returned to work full time unrestricted consistent with this injury and is in no need of future medical treatment. Additionally, the issue of future care is not a factor in this case as the patient was released permanent and stationary in 2005 for injuries sustained in the May 18, 2005 injury.

However, the patient does have diagnosed bilateral Martin-Gruber anastomois. That patient has one failed surgery to the left wrist and unless intervened will undergo another surgery to the right wrist without addressing the most likely cause Martin-Gruber anastomosis. The current symptoms and resulting left carpal tunnel surgery, and impending right carpal tunnel syndrome are not related to the 5/18/2007 injury or incident and are a sole and separate issue to be evaluated.

PROGNOSIS:

The patient’s prognosis is considered good as it results to the 5/18/2005 injury. The patient returned and continued to work full time unrestricted until he was evaluated by Dr. Smith.

REASONS FOR OPINIONS:

I have derived the above opinions from review of the medical records/diagnostic testing provided to me by CNA and clinical experience both in evaluating and treating individuals with the same or similar conditions.

COMPLIANCE STATEMENT:

“I personally prepared this report. If others have performed any services in connection to this report, outside of clerical preparation, their name and qualifications are noted herein. The time spent was in accordance with Industrial Medical Council (IMC) guidelines. I declare under penalty of perjury that the information contained in this report and its attachments, if any is true and correct to the best of my knowledge and belief, except as to information that I have indicated I received from others. As to that information, I declare under penalty of perjury that the information accurately describes the information provided to me and, except as noted herein that I believe it to be true. I have not violated Labor Code Section 139.3 and the contents of the report and bill are true and correct to the best of my knowledge. This statement is made under penalty of perjury.”

Thank you for allowing me to participate in the evaluation of this individual’s records. Should you have any additional questions or require any additional information, please do not hesitate to contact me directly.

Signed in Los Angeles County by:

5/3/2008

_____________________________________ _____________________

Dr. Allen S. Miller, DC, DACBSP Date

License Number 19031

(This signature will act as the original for the purposes of this document)

References:

The median-ulnar anastomosis (Martin-Gruber) in normal and congenitally abnormal fetuses. R Srinivasan and J Rhodes Archives of Neurology Vol. 38 No.7 July 1981
Ulnar Neuropathy, Article Last Updated: Jun 25, 2007 Stephen A Berman, MD, PhD

Published in:

on August 11, 2009 at 12:14 am Leave a Comment
Tags: CNA, Dr. Allen S. Miller, Kinematic Solutions, Kinematicexpert, Peer Review

CNA FCE – Lumbar Injury

CNA Insurance Services

LMMS, LLC
Kinematic Specialists

Dr. Allen S. Miller

411 E. Huntington Dr. 107-285 Arcadia CA 91006

(626) 399-6834

E-Mail Drasmiller@Earthlink.net ·

August 8, 2008

Bill Larkin
Claims Manager
P.O. Box 6500
Brea, CA 92822

RE:
Patient Name: Michelle Gomez
CNA Claim#:
Employer: Polo Shop
Job Description: Lead Cashier
Date of Birth: 11/
SS #
Claim #
DOI: 11/07/2007
DOE: 12/01/2008

PHYSICAL EVALUATION

411 E. Huntington Dr. 107-285 Arcadia CA 91006 (626) 399-6834
· E-Mail Drasmiller@Earthlink.net ·

HISTORY OF INJURY:
Ms. Gomez is a well developed 17 year old Hispanic female. She states that she was the lead cashier at Ralph Lauren Polo Shop during a busy time of year. She states that she was helping her counterpart with customers, packing clothes, emptying the trash and both carrying and emptying clothing sensors. Ms. Gomez further states that because of the busy nature of sales, the sensors, placed on clothing for anti-theft precautions were placed in a box after they were removed. It was her duty to lift the box of sensors weighting between 25 lbs (weight not verified) and carry it to the back of the store. She then placed the box down pulled out a large trash-can-like container containing the other previously dumped sensors and lifted the box to empty the sensors into the container. Ms. Gomez states that on the 6th and final time she had to empty the box, while lifting the box she felt her back “go out”. She states that the pain was sharp and intense and she was unable to move.
She further states that she was going to cry but didn’t as she was at work. Ms. Gomez states that she finished her shift although she was walking like an “old lady”. She states she was assisted by two coworkers because she was in so much pain. Ms. Gomez states that she went home, took some Ibuprophen, went to bed, and upon waking was unable to move. She states that she called her mother, who advised her to call her supervisor and her family physician immediately for an evaluation. Ms. Gomez presented to Dr. Cruz of St. Bernadine’s two days later and was subsequently examined and referred for an MRI of the lumbar spine. Ms. Gomez was provided pain medication and muscle relaxants. Following the MRI, Mrs. Gomez was referred to physical therapy for muscle stimulation and acupuncture, which helped reduce her pain for a short amount of time. She was saw Dr. Raffat Mattar, MD for an orthopedic consult. Dr. Mattar had recommended lumbar epidural injections however, Ms. Gomez states that she “hates needles”. Additionally, the claimants’ mother states that her husband, Ms. Gomez’s father got no relief of his back pain with injections’.

Ms. Gomez was a very polite and cooperative subject. She was driven to the office by her mother. She was able to walk, sit and stand for a total of 2 + hours without visible signs of discomfort. Mrs. Gomez states that she did not take any pain medication the day of the examination.

When asked what activities Ms. Gomez participates in all day, she replied she does “teenager stuff” walks around the mall and watches television and movies. Ms. Gomez says that she can sit, walk and stand for about 30-45 minutes before the pain starts to become so bad she must move around or sit down.

The results of this evaluation are discussed below.

REVIEW OF RECORDS:

1. 6/23/2008 Raffat Mattar, MD, US Healthworks Medical Group
a. Findings: Recommended epidural injections to the lumbar spine. Dr. Mattar, will ad another anti-inflamatory to help relieve the symptomology.
2. 7/08/2008 Raffat Mattar, MD, US Healthworks Medical Group
a. Findings: Recommended epidural injections to the lumbar spine. The patient’s pain medications were renewed and the patient was advised of the contraindications.

DIAGNOSTIC TESTING:

1. There is an MRI of the Lumbar Spine, per Dr. Rosegon. Findings are as follows:
a. L4-L5 disc desiccation and mild loss of disc height and a 6mm central disc herniation.
b. L5-S1 disc desiccation and mild loss of disc height with a 3mm central disc protrusion. Mild facet hypertrophy is identified. There is no spinal stenosis at either level.

EXAMINATION FINDINGS:
This is a well developed 17 year-old Hispanic female complaining of diffuse pain at the low back, left lumbar para-spinal musculature, point tenderness and sharp pain at L4-L5 and L5-S1. The patient also complains of point tenderness at the left SI joint, with a “pulling and tearing” sensation down into the left buttock. Ms. Gomez also states that she has intermittent sharp pain radiating from her low back through the center of the leg to the knee. Ms. Gomez was asked to describe and number her overall pain on a scale of 1-5, 5 being described to her as the worst pain ever and I would need to take her to the hospital. She stated her pain was a 2 1/2.

She appears her stated age and is in good physical condition. Muscle testing revealed +5 muscle strength in the upper and lower extremities bilaterally.

ORTHOPEDIC SIGNS AND TESTS

Provocative Test Result Comment
Patellar Reflex Positive RT 1+
Achilles Reflex Positive RT 1+
L4 Dermatome Sensation Normal
L5 Dermatome Sensation Normal
S1 Dermatome Sensation Normal
Straight Leg Raise (Right) 75 degrees Negative
Straight Leg Raise (Left) 75 degrees Pain Left SI Joint
Sitting Straight Leg Raise (Right) 90 degrees Negative
Sitting Straight Leg Raise (Right) 90 degrees Pain Left SI Joint
Double Leg Raise Positive With Pain in the left tenderness at the SI Joint.
Kemps Positive LT Positive for sharp pain in the left L4-L5 joints.
Nachlas Positive LT Positive for tightness in the left L4-L5 joint.
Patrick Fabre Positive Bilaterally Positive for tightness in the low back.
Heel to Heel Negative
Toe Walk Negative

The following tests were performed to determine the subject’s ability to perform the specific job functions safely without causing themselves harm or harm to others.

CARDIOVASCULAR FITNESS TESTING
Depending upon the identified goals for the evaluation, cardiac testing is necessary for specific concerns regarding individuals with specific cardiac disease, and job positions that require significant walking, stepping, or constant upper extremity demands. The subject’s pre-test heart rate was 66 BPM. Post-test heart rate was 106 BPM.

Test MET Level Ability
Step Test 3.5 Medium

Ms. Gomez had a 45-minute warm-up performing the hand strength testing, range of motion testing, and isometric left testing. Before the step test began, Ms. Gomez was visibly out of breath and complained of low back pain along with throbbing and the tenderness which was beginning to get worse at the left SI Joint.

COMPUTERIZED RANGE OF MOTION
The patient was tested today using the JTECH Tracker ROM – a computerized range of motion measurement system utilizing dual inclinometers. ROM tests were performed in accordance with the protocols published by the American Medical Association.

Lumbar ROM Exam

Test Name Norm Max % Norm Deviation
Left Lateral 25° 27° 108 2°
Right Lateral 25° 27° 108 2°
Left Rotation 0° 20° 20°
Right Rotation 0° 12° 12°
Minimum Lordosis 15° 7° 47 -8°
Flexion 60° 37° 62 -23°
Extension 25° 24° 96 -1°
Sacral Hip Flexion 45° 45° 100 0°
Sacral Hip Extension 5° -14° -280 -19°

Validity ROM Exam

Test Name Norm Max % Norm Deviation
Left Straight Leg Raise 65° 65° 100 0°
Right Straight Leg Raise 65° 75° 115 10°

The patient was tested today using the JTECH RangeTrack – a computerized goniometer for measuring joint range of motion. ROM tests were performed in accordance with the protocols published by the American Medical Association.

COMPUTERIZED HAND STRENGTH TESTING
The patient was tested using the JTECH GripTrack, a computerized grip strength evaluation system.

5 Position Grip Strength Test
Grip tests indicate 4% right deficit at position 2 when compared with the opposite hand, with less than 15% considered within normal limits.

Grip Position Left Avg. Right Avg. Deficit
II 48 lb 46 lb 4% Right

Grip strength was tested in all five rung positions of the dynamometer. A bell-shaped curve is typically indicative of maximum effort for both injured and uninjured people alike (Stokes, 1983). The results of this test as denoted by the examiner show undetermined effort.

A Coefficient of Variation (CV) of 14% or less indicates validity, reproducibility, and consistency of effort (Chaffin, 1976). 2 of 2 tests performed met the validity criterion.

Rapid Exchange Grip Test
The Rapid Exchange Grip (REG) Test was used to help determine the patient’s level of effort. Because of the minimized time of muscle recruitment, forces generated during the REG at a specific dynamometer setting, should not exceed those values seen during the 5 position test performed at the same setting (Hildreth, 1989). The results of this test indicate the patient has given invalid efforts.

Sustained Grip Test
COMPUTERIZED ISOMETRIC LIFT STRENGTH
The patient was tested using the JTECH computerized static lift strength evaluation system.

A Coefficient of Variation (CV) and/or difference between successive reps of 14% or less indicates validity, reproducibility, and consistency of effort (Chaffin, 1976). 6 of 6 tests performed met the validity criteria.

The data is used to compare a patient’s lift strength to published norms. The 50th percentile indicates the average for the patient’s gender. NIOSH has determined a minimum of the 25th percentile should be demonstrated for the worker to safely perform the lift on the job (Work Practices Guide for Manual Lifting, 1981).

NIOSH Lift Test Max of Avg. Pop. %Tile
Arm 14 lb < 10%
Torso 15 lb < 10%
Leg 13 lb < 10%
High far 10 lb < 10%
Floor 16 lb < 10%
High near 15 lb < 10%

WORK ACTIVITIES
Work activity testing is used to evaluate and determine a worker’s ability to perform dynamic non-material handling activities. Activities are assessed either to the DOT standard activities or to work task specific movement patterns. Tool use or the ability to involve or negotiate the environment is also typically evaluated when specific activities are assessed.

WORK POSTURES
Work posture testing is used to determine a worker’s tolerance for maintaining specific postures and is evaluated to determine their ability to perform the given posture to either the DOT standards (Occasional, Frequent or Constant) or to a specified standard or time requirement. Testing is performed either formally or informally depending on the significance of the posture relative to the overall required work demands. Ms. Gomez exhibited pain on bending, twisting, squatting and stooping. Ms. Gomez did not exhibit pain while sitting, standing, or standing from a sitting position, and did not walk with an antalgic posture. Her abilities are listed below:

Standing Frequent
Sitting Frequent
Walking Frequent
Climb Not Tested
Squat Occasional
Reach-up Frequent
Reach-out Frequent
Bend Occasional

DIAGNOSIS

1. 724.8 Lumbar Facet Syndrome

CONCLUSIONS
Reliability of Effort
Subjective determination of effort is based on clinical opinion of how a worker participated in the FCE process. Eight questions are used to formalize the evaluator’s opinion as to whether the worker’s performance was consistent clinically.

Objective tests that are not directly biased by direct interaction between the evaluator and the worker are tallied to assess the worker’s participation level and effort consistency.
This is used as a checks and balance system to support and substantiate the evaluator’s clinical opinion. Objective tests are tallied by the software and are not directly biased by the evaluator. Additionally, objective tests can be imported from devices other than Tracker.

Max Voluntary Effort offers additional insight into worker participation. Results from the worker’s standard grip test compared to their rapid exchange grip tests reveals information about the worker’s voluntary participation level. Ms. Gomez was very cooperative and exhibited reliability of effort on every test.

Causation:
I am in agreement with Dr. Mattar and in reviewing the history, medical records, the forensic biomechanics of the injury, examination, it appears that the patient did sustain an injury arising of or caused by the industrial exposure of December 1, 2007

Current Job Description and Dot Explanation:
Upon review of the patients duties associated with her employment. It is determined through review of the Dictionary of Tiles that the patient is comparable to CODE: 299.677-010
TITLE(s): SALES ATTENDANT (retail trade) alternate titles: attendant, self-service store: (http://www.occupationalinfo.org/92/920687030.html). This job Task as outlined and defined as DOT level of Light work consisting of lifting 20lbs occasionally, 10lbs frequently and Negligible weight constantly in all positions1.

Discussion:
Ms Gomez portrays classic lumbar facet syndrome. This syndrome is a jamming of the lumbar facets by lifting and twisting while holding a weight of some kind. It was not the size of the load Ms. Gomez lifted, but that the movement was awkward and involved twisting. This twisting resulted in excessive shear factor at the lumbar joints causing pain and inflammation. Records indicate that Ms. Gomez has a 6 mm herniation at L4-L5 and 3 mm disc herniation at L5-S1. Even though, there is a two-disc-level herniation; the radiating pain in the leg is not classic of Lumbar Disc Syndrome or a Disc Herniation2,3 but due to the swelling at the L4-L5 and L5-S1 joint structures. As the available literature dictates, 76% of human beings have non symptomatic lumbar disc herniation up to 6mm2. The force of this related to lifting this box, did not produce enough force to injure the disc in a healthy 17-year-old female. These disc herniations are most likely related to genetics, a prior non-stated accident, or the mere fact that human beings walk upright against gravity. The diagnosis of Disc Syndrome was indicated in Raffat Mattar, MD, examination reports, Dr. Mattar is an excellent physcian and I have no doubt that Ms. Gomez stated that she had pain radiating from her low back down her leg. However, following extensive evaluation and interview time, Ms. Gomez, defined her pain as “located within the leg”, intermittent in nature and not down the back of the leg. Ms. Gomez, without the assistance of others, portrays the classic symptomology and accepted medical findings related to Lumbar Facet Syndrome.

The literature indicates that “The lumbar facet joints are biomechanically important. They absorb significant loads in extension and are a significant part of the three joint complex. Their role is to limit excessive mobility of the spinal segment and distribute load over a broad area”3. In this case, Ms. Gomez aggravated the joint structure when she bent, lifted and twisted holding the box with the sensors causing, simply put “jamming” of the facet joints.
Additionally, the patient was in a “rush” due to the nature of Christmas gift buying season, not taking proper lifting precautions. When these set of circumstances occur, and when confronted with this type of injury the body’s natural course is to inflame the area and tighten the muscles surrounding the area, protecting it from further injury, which most likely happened in this case. Lumbar Facet Syndrome is a painful injury, however, not serious, not usually requiring surgery, and responds well to conservative treatment modalities. Additionally, Ms. Gomez has been for the most part sedentary in her activities since the 12/01/2007 injury. The lifting examination as well as the cardiac MET level indicates that Ms. Gomez is able to perform sedentary work consistent with DOT Guidelines, limiting lifting to 5lbs from floor to waist1.

RECOMMENDATIONS:
With the information derived from the FCE, related documentation, we can make the following conclusions:

It should be evident from the records and this evaluation that Ms. Argeuello did suffer an injury arising out of employment for Ralph Lauren, and it would not seem reasonable at this juncture to formally recommend temporary limitations or preclusions from work. Furthermore, she has reasonably demonstrated her ability to engage in her routine activities of daily living. Ms. Gomez may return to modified duty to Sedentary Work restricting lifting to waist of 5lbs.

Ms. Gomez should be treated conservatively with Chiropractic Manipulative Therapy augmented by physiotherapy not to exceed eight (8) treatments. As Ms. Gomez has deconditioned during the time she was injured to present, Ms. Aguello should participate in work conditioning for eight visits to run concurrently with the Chiropractic treatments. I anticipate that the patient with the above described treatment process would be returned to pre-injury status without restriction or impairment. At the end of the treatment program, Ms. Gomez, should be referred back to Dr. Mattar and myself so we can evaluate this patient and address Permanent and Stationary status as well as impairment.

Ms. Gomez exhibits strength consistent with Sedentary Work Consistent with Dictionary of Occupational Guidelines1. The physical examination, MRI, as well as x-rays indicate that Ms. Gomez does have Lumbar Facet Syndrome. Ms. Gomez was found to be able to perform sedentary work (10 lbs. on an occasional basis) 3, from the waist to an overhead level. It is recommended that Ms. Gomez perform sedentary work from floor to waist limiting lifting to 5lbs. Ms. Gomez, works on a part time basis usually 5 days a week approximately 4 hours per day. Ms. Gomez may return to her previous level of work consistent with the above guidelines.

FUTURE TREATMENT RECOMMENDATIONS
The recommended treatment includes Chiropractic Manipulative Therapy augmented by physiotherapy not to exceed eight (8) treatments. As Ms. Gomez has deconditioned during the time she was injured to present, Ms. Aguello should participate in work conditioning for eight visits to run concurrently with the Chiropractic treatments. Additionally, the patient will require follow-up examination following the conclusion of treatment to determine permanent and stationary status.

COMPLIANCE STATEMENT:
“I personally evaluated this patient and prepared this report. If others have performed any services in connection to this report, outside of clerical preparation, their name and qualifications are noted herein. The time spent was in accordance with Industrial Medical Council (IMC) guidelines. I declare under penalty of perjury that the information contained in this report and its attachments, if any, is true and correct to the best of my knowledge and belief, except as to information that I have indicated I received from others. As to that information, I declare under penalty of perjury that the information accurately describes the information provided to me and, except as noted herein, that I believe it to be true. I have not violated Labor Code Section 139.3 and the contents of the report and bill are true and correct to the best of my knowledge. This statement is made under penalty of perjury.”

All available data supports the conclusions reached in this report. Thank you and Dr. Mattar, very much for considering this office for your referral. If there are any questions concerning this matter, please feel free to contact me.

Sincerely,

_________________________________08/10/2008
Allen S. Miller, DC, DACBSP Date:
(This signature will act as an original for the purposes of this document).
cc: Dr. Raafat Mattar
US Healthworks
850 Washington St., #100
Colton, CA 92324

REFERENCES:

1. Dictionary of Occupational Titles, U.S. Department of Labor Employment and Training Administration 1991. Volume II Fourth Edition, Revised 1991.
2. Low Back Pain: Mechanism, Diagnosis and Treatment by Jim Cox
3. Current Diagnosis & Treatment in Orthopedics by Harry B. Skinner – 2003
4. Foreman & Croft 1997. Radoff et all 1993.
5. The Forensic Documentation Sourcebook: The Complete Paperwork Resource for …
by Theodore H. Blau, Fred L. Alberts, Jr., Fred L. Alberts.

Published in:

on August 10, 2009 at 8:30 pm Leave a Comment
Tags: CNA, Dr. Allen S. Miller, FCE, Kinematic Solutions, Kinematicexpert, Lumbar Disc, Lumbar Injury

Great Western Administrators Iron Worker FCE

LMMS, LLC

Kinematic Specialists

Dr. Allen S. Miller

411 E. Huntington Dr. 107-285

Arcadia CA 91006

(626) 399-6834

E-Mail Drasmiller@Earthlink.net ·

August 15, 2008

Jennifer Stafella

Claims Manager,

S & C Claims

3380 West Sahara Ave. #100

Las Vegas, NV 89102

RE:

Patient Name: Daniel Smith

DOB 03/22/1981

Claim#:

Employer: Bob’s Construction

Job Description: Steel Worker

DOI: 05/23/2007

DOE: 08/14/2008

PHYSICAL EVALUATION

Daniel Smith presents today upon referral by his Claim Examiner for an examination to reassess further treatment and/or diagnostic testing. He is a 27-year-old, well developed 6’, 224 pound male previously employed in construction. He presents with a history of an occupational injury occurring on May 23, 2007, while working in Las Vegas. At that time, while standing on a ladder perched on a scaffold, platform, he states the scaffolds collapsed causing him to fall approximately 20 feet, landing onto a hard surface. He has no recollection of the events and is not certain how he landed or whether he had loss of consciousness; however, it was a closed injury. Mr. Smith states that he originally refused to be transported to the hospital by ambulance, but later agreed to have his supervisor transport him to the emergency room at St. Vincent’s Hospital in Henderson, Nevada. Radiographs were obtained at that time and he was admitted to the hospital. He was diagnosed as having thoracic and lumbar compression fractures.HISTORY OF INJURY:

He was neurologically intact at that time, and was braced/casted for four to five months by Dr. Siegler. Mr. Smith states that he relocated to San Diego California and began physical therapy there with Dan Gross, PT.

The patient complains of intermittent dull pain throughout his mid to low back region, which is occasionally sharp and severe. The quality of pain is aching. Mr. Smith states that he has pain most of the time. The pain is not radiating. His symptoms are worse with prolonged bending or stooping and standing, however, sitting does not bother him. He has not worked since his date of injury. He regularly uses Lidoderm patches and takes Percocet and Ibuprophen for pain.

Mr. Smith was a very polite and cooperative subject; he states that he had his girlfriend drive him which consisted of 90+ minutes of sitting. He was able to walk to the office from the car unattended and without antalgia. He was able to negotiate the office, speak clearly and concisely with the office staff and sit in the waiting room without hindrance.

When asked what activities Mr. Smith participates in all day, he replied he takes “walks up and down the block a couple of times a day”. He states that he “washes the dishes, which is time consuming and intense” and plays the guitar until his girlfriend comes home. He then helps prepare dinner and watches TV. He states that his girlfriend is a massage therapist, however, does not give him any massages.

The results of this evaluation are discussed below.

PAST MEDICAL AND FAMILY HISTORY:

Mr. Smith states he fell and fractured his right patella. He states he has no prior industrial, family, or other injuries that are contributory to this case.

EXAMINATION FINDINGS:

This is a well developed 27 year-old Caucasian male complaining of focused pain at the lower thoracic and upper lumbar region. There are +2 muscle spasms of the thoracic and lumbar para-spinal musculature and point tenderness at T8 & L1. The patient states that he has no other symptoms, Radicular pain, numbness and tingling in any of the extremities.

Mr. Smith was asked to describe and number his overall pain on a scale of 1-5, 5 being described to him as the worst pain ever and I would need to take him to the hospital. He stated his pain was a 2 ½ and stated it “is that way all the time”.

He appears his stated age and is in good physical condition. Muscle testing revealed +5 muscle strength in the upper and lower extremities bilaterally.

ORTHOPEDIC SIGNS AND TESTS

Provocative Test	Result	Comment
Patellar Reflex	Positive Bilaterally	1+
Achilles Reflex	Positive Bilaterally	1+
L4 Dermatome Sensation	Normal
L5 Dermatome Sensation	Normal
S1 Dermatome Sensation	Normal
Straight Leg Raise (Right)	60 degrees	Negative-Pulling pain in the low back
Straight Leg Raise (Left)	75 degrees	Negative-Pulling pain in the low back
Sitting Straight Leg Raise (Right)	90 degrees	Negative-Pulling pain in the low back
Sitting Straight Leg Raise (Right)	90 degrees	Negative-Pulling pain in the low back
Double Leg Raise	Negative	Negative
Kemps	Positive Bilaterally	Sharp pain in the low back
Patrick Fabre	Negative Bilaterally
Heel to Heel	Negative
Toe Walk	Negative
Finger to Nose	Negative

The following tests were performed to determine the subject’s ability to perform the specific job functions safely without causing themselves harm or harm to others.

CARDIOVASCULAR FITNESS TESTING

Depending upon the identified goals for the evaluation, cardiac testing is necessary for specific concerns regarding individuals with specific cardiac disease, and job positions that require significant walking, stepping, or constant upper extremity demands. The subject’s pre-test heart rate was 79 BPM and blood pressure 132/74. The heart rate during testing elevated to 170/99 with a heart rate of Post-test heart rate was 99 BPM. Mr. Smith’s blood pressure and heart rate returned to normal within approximate 2 minutes.

Test	MET Level	Ability
Step Test	3.5	Medium

Mr. Smith had a 45-minute warm-up performing range of motion testing, and isometric testing, before the step test began. Mr. Smith states that he was out of breath, but had no increase in pain or discomfort.

COMPUTERIZED RANGE OF MOTION

The patient was tested today using the JTECH Tracker ROM – a computerized range of motion measurement system utilizing dual inclinometers. ROM tests were performed in accordance with the protocols published by the American Medical Association.

Thoracic ROM Exam

Test Name
Norm	Max	Deviation
Minimum Kyphosis	20°	60°	40°
Flexion	60°	15°	-45°
Left Lateral	10°	23°	13°
Right Lateral	10°	35°	25°
Left Rotation	30°	13°	-17°
Right Rotation	30°	24°	-6°

Lumbar ROM Exam

Test Name
Norm	Max	Deviation
Left Lateral	25°	29°	4°
Right Lateral	25°	29°	4°
Left Rotation	0°	8°	8°
Right Rotation	0°	5°	5°
Minimum Lordosis	15°	40°	25°
Flexion	60°	51°	-9°
Extension	25°	19°	-6°
Sacral Hip Flexion	45°	94°	49°
Sacral Hip Extension	5°	23°	18°

Validity ROM Exam

Test Name
Norm	Max	Deviation
Left Straight Leg Raise	65°	71°	6°
Right Straight Leg Raise	65°	72°	7°

COMPUTERIZED ISOMETRIC LIFT STRENGTH

The patient was tested using the JTECH computerized static lift strength evaluation system.

COMPUTERIZED ISOMETRIC LIFT STRENGTH

The patient was tested using the JTECH computerized static lift strength evaluation system.

A Coefficient of Variation (CV) and/or difference between successive reps of 14% or less indicates validity, reproducibility, and consistency of effort (Chaffin, 1976). 5 of 6 tests performed met the validity criteria.

NIOSH Lift Test	Max of Avg.	Pop. %Tile
Arm	14 lb	< 10%
Torso	34 lb	< 10%
Leg	35 lb	< 10%
High far	8 lb	< 10%
Floor	45 lb	< 10%
High near	27 lb	< 10%

DYNAMIC LIFT TESTING

Dynamic task lifting is used to determine a worker’s ability to negotiate weighted objects. Lifting is performed to either a specific standard detailed by a job description or to the traditional work heights associated with the Dictionary of Occupational Titles (DOT).

WORK ACTIVITIES

Work Activity Testing is used to determine a subject’s ability to perform dynamic non-material handling activities. Activities are assessed either to the DOT standards or to work task specific movement patterns. Tool use or the ability to involve or negotiate the environment is also typically evaluated when specific activities are assessed.

Activity	Ability
Squat	Frequent
Reach-up	Frequent
Reach-out	Frequent
Bend	Frequent

WORK POSTURES

Work posture testing is used to determine a worker’s tolerance for maintaining specific postures and is evaluated to determine their ability to perform the given posture to either the DOT standards (Occasional, Frequent or Constant) or to a specified standard or time requirement. Testing is performed either formally or informally depending on the significance of the posture relative to the overall required work demands.

Activity	Ability
Standing	Frequent
Sitting	Constant
Walking	Frequent
Climb	Frequent

REVIEW OF RECORDS:

Exam Date: 5/2312007 Physician: Lasry, Jason

Procedure: XR Thoracic Spine + Swim View Accession Number:

FINDINGS: There appears to be an acute compression deformity at the TB level. The Paraspinous soft tissues appear displaced. This is compressed approximately 30%. TB level appears slightly compressed as well but this may be an old finding. The lower thoracic spine fractures are again noted at approximately the T11, T12 and L1 levels.

IMPRESSION: 1. There appear to be acute compression fractures of the thoracolumbar spine. A T6 compression fracture of approximately 30%. The T11, T12, and L1 levels appear compressed as well and are dictated on previous lumbar spine examination.

Exam Date:5/23/2007 Physician: Lasry, Jason

Procedure: CT T-Spine wo Contrast

IMPRESSION: 1. Findings consistent with an acute compression fracture at the T8 vertebral body of 40% Pedicles appear intact, but there is a bilateral laminar fracture.

2. There may be a tiny epidural hematoma at the T5 level, but is not causing any central canal narrowing.

3. Compression deformities at the TI I and 112 levels, as described. See lumbar spine CT scan.

Exam Date: 5/23/2007 Lasry, Jason

Procedure: XR Lumbar Spine Series, Five Views 5/23/07

FINDINGS: There are several compression deformities of the lumbar spine. The T11 vertebral body compresses approximately 20%. The T12 vertebral body compresses approximately 30%. L1 vertebral body compresses approximately 25%. This is probably acute as the bones appear somewhat irregular. Bony alignment is still within normal limits, it

may be further evaluated with MRI scan. SI joints appear within normal limits. Paraspinous soft tissues appear within normal limits.

IMPRESSION: 1. There appear to be several compression deformities of the thoracolumbar spine with compression deformities at the T11 level of approximately 20%, T12 level approximately 30% and L1 level approximately 25%.

Exam Dale:5/29/200 Ordering Physician Martinez, Roger

Procedure: MRI of the Thoracic Spine 05/29/07

FINDINGS: A 40% anterior wedge compression fracture of the T8 vertebral body is noted that appears relatively recent with edema and some slight enhancement due to trauma. Some minimal anterior wedging of the TI1, T12, and LI vertebral bodies are also seen that appear relatively recent. A minimal anterior wedging of the T6 vertebral body is also seen that appears old.

At all levels of the spinal canal, however, the spinal canal is generous in size, as are the neural foramen bilaterally. No definite epidural or other abnormalities is seen in the spinal canal in the thoracic spine is seen.

IMPRESSION I – Multiple anterior wedge compression fractures, most new but some old, as described above. No epidural hematoma seen. Spinal canal generous in size at all levels of the thoracic spine, as well as the neural foramen bilaterally.

Exam Date: 5/29/2007 Physician: Martinez, Roger

Procedure: MR T~Spine wo Contrast

FINDINGS: A 40% anterior wedge compression fracture of the T8 vertebral body is noted that appears relatively recent with edema and some slight enhancement due to trauma. Some minimal anterior wedging of the T11, T12, and LI vertebral bodies are also seen that appear relatively recent. A minimal anterior wedging of the TB vertebral body is also seen that appears old.

At all levels of the spinal canal, however, the spinal canal is generous in size, as are the neural foramen bilaterally. No definite epidural or a process is seen in the spinal canal in the thoracic spine is seen.

IMPRESSION: 1. Multiple anterior wedge compression fractures, most new but some old, as described above. No epidural hematoma seen. Spinal canal generous in size at all levels of the thoracic spine, as well as the neural foramen bilaterally.

Exam Date: 7/5/2007 Physician: Peoples, Randal R

Procedure: Four Views Lumbosacral Spine 07/05/07 1217 Hours

FINDINGS: AP, lateral, flexion, and extension views of the lumbosacral spine were submitted for review. The lumbosacral spine is well aligned without evidence of subluxation despite the flexion and extension maneuvers. However, there is a mild wedge deformity noted of the T11, T12, and L1 vertebral bodies. These compression fractures were noted on a previous examination dated 05/23/07.

IMPRESSION: 1. With flexion and extension maneuvers, there was no subluxation noted of the lumbar spine.

2. Old mild anterior compression fractures noted of the T1l, T12 and LI vertebral bodies.

12/28/07 Orthopedic Consultation Kevin M. Deitel, MD.
1. Findings: Thoracic and Lumbar Compression fractures AOE 05/23/07. The patient is to be returned to work, light duty, restricted to no prolonged standing, walking, bending, stooping, climbing, lifting or carrying over 10 lbs.

DIAGNOSIS:

1. Thoracic and Lumbar Compression Fractures

RELIABILITY OF EFFORT:

Subjective determination of effort is based on clinical opinion of how a worker participated in the FCE process. Eight questions are used to formalize the evaluator’s opinion as to whether the workers performance was consistent clinically.

Objective tests that are not directly biased by direct interaction between the evaluator and the worker are tallied to assess the worker’s participation level and effort consistency. This is used as a checks and balance system to support and substantiate the evaluator’s clinical opinion. Objective tests are tallied by the software and are not directly biased by the evaluator. Additionally, objective tests can be imported from devices other than Tracker.

DISCUSSION:

Mr. Smith presents today for an examination to reassess his current treatment, need for further treatment, and for diagnostic testing to assist him in returning to gainful employment. Mr. Smith states that he takes four Percocet pills and 1 Lidoderm patch a day. During the examination process, Mr. Smith was able to sit, walk, and stand without complaint. He was also able to be seated and lie down on the examination table (height 36 inches) without discomfort or assistance to stand from a prone position. While in the office, Mr. Smith was seated for approximately 30 minutes while completing the initial paperwork in addition to the 1 1/2+ hours of travel time; he then walked with normal gait to the examination room. He had forgotten some paperwork and walked back out to his vehicle and back to the examination room, which involved opening the front glass door that takes considerable effort to open. Once he was finished with the examination, he walked out to the vehicle, opened the door, climbed in and sat in the vehicle without effort or discomfort.

He was then escorted back to the examination room and his blood pressure was taken. He was seated for approximately 2 minutes and his resting heart rate was noted³. During the warm-up and step test, Mr. Smith stated, with movement his complaints subsided. The step test was completed without incident. Mr. Smith’s blood pressure rose and fell consistent with the work load, what you would expect of a 27 year-old male. Mr. Smith was cooperative during all portions of the examination. Mr. Smith did state that his pain level slightly increased during the isometric testing to a 3 out of 1-5 scale.

During the rest of the testing Mr. Smith was asked to sit, stand, walk, lift, and carry in all NIOSH lifting positions. He was tested with blood pressure and heart rate monitor at every step of the examination. Mr. Smith had no obvious physiological reactions i.e. severely elevated Heart Rate, myospasm or failure to complete the exam. We had to repeat many portions of the examination, as Mr. Smith would not provide full effort on a continuous basis. His gait did not change, his biomechanics changed only slightly during the isometric testing and it is noted that his palpable muscle spasms increased from +2 to +3 which would be expected considering the amount of force that the patient exhibited.

As discussed, we were able to evaluate Mr. Smith over a significant amount of time. This testing is quite strenuous, and designed to reveal the true condition of the subject’s injuries. In Mr. Smith’s case, there was slight palpable muscle spasms in the Thoracic-Lumbar junction area of the spine, and restriction of lumbar extension.

There was no significant guarding, antalgia or abnormal posture associated with his movements over the extensive period of time he was evaluated. This lack of significant muscle spasm or guarding indicates that there is no biomechanical instability and thus no active injury as substantiated by the 7/5/2007 flexion/extension studies. It was noted that Mr. Smith has been, in his words, sedentary since the time of the accident only walking up and down the block and vacuuming as well as other household activities during the day. We would expect significant de-conditioning associated with the lack of activities that he is participates in all day as they are extremely sedentary. Mr. Smith to the contrary, is well fit, his blood pressure and heart rate lowered following exertion consistent with a subject of physical capacity and not one of a de-conditioned man that has not worked since the time of the accident². Additionally, his heart rate did not stay elevated as one would expect of a man in extreme pain as he describes².

As referenced in the literature, a person that has essentially been inactive for over a year, one of which that wore a body brace for 5 months, would have degraded in his physical ability to perform work. Mr. Smith was injured on 05/23/2007, his only stated activities are walking up and down the block a couple of times a day, vacuuming, washing dishes and playing guitar calculating to the DOT Guidelines as sedentary work¹. Also, an individual in extreme pain, as described by Mr. Smith would have had, decreased muscle tone, decreased cardiac MET Level, an elevated heart rate and blood pressure that does not reduce over time and would increase substantially with “work”³.

Objective computer testing, cardiac step testing, as well as the extensive physical examination reveled Mr. Smith, was able to lift, twist, turn stoop and perform activities consistent light-medium work in all positions ¹ full time, indicating activities well above a sedentary lifestyle as described by the patient. These factors indicate that Mr. Smith was performing physically more strenuous activities than he states he was performing while TTD. Human beings accommodate physically to the work they perform⁴. Additionally, Mr. Smith denied any previous injuries except a “fall” that resulted in a patellar fracture. It was noted by 5/29/2007MRI by Roger Martinez, MD, noted that “there was a minimal anterior wedging of the T6 vertebral body seen that appears old”, indicating an old thoracic compression fracture. This information calls into question the severity of the fall or prior injuries Mr. Smith has experienced that were not expressed during the interview. Mr. Smith was disingenuous in his statements concerning his previous injures, which of course calls into question his credibility in regards to this examination. Statements made by Mr. Smith indicate that he has had numerous jobs and this job was obtained by “meeting a guy in a bar”. He moved to Las Vegas to “get a job” as he was out of work in his home town in Massachusetts. Mr. Smith worked in the steel industry while in California, and due to some conflict issues with his supervisor left that place of employment.

Mr. Smith is very apprehensive about moving, twisting, turning or lifting due to his injury, however was able to these activities well without repercussions. He indicated that his life is one of moving from place to place and job to job as he desired. He stated he is quite happy in his current relationship and his duties as a home maker and that he is apprehensive about returning to the job market. Mr. Smith states that his current physician stated that he would never return to construction. I respectfully disagree with this idea, as these fractures are well healed, the subject has minimal movement restrictions consistent with this injury and his strength level will increase once he becomes more active.

With these corollaries in mind I can state with medical probability the following conclusions and recommendations.

CONCLUSION

With the information derived from the physical examination, cardiac step test, computerized range of motion, isometric strength testing, related documentation, I can make the following conclusions:

Mr. Smith’s complaints of pain have been unchanged since his 12/28/07 examination with Kevin Deitel, MD. Mr. Smith has reached a Permanent Stationary Status, Maximum Medical Improvement, and can return to work full time, with the current permanent restrictions of Light-Medium work (35lbs Occasionally, 18 lbs Frequently, 7 lbs Constantly)¹ in all positions is consistentwith NIOSH Guidelines².

The physical examination, MRI, CAT scan as well as x-rays indicate that Mr. Smith does have moderate thoracic and lumbar compression fractures. Mr. Smith will continue to have some dull pain and slight restriction consistent with these healed fractures; additionally I can state with some medical probability that his current pain, is significantly less than the patient articulates and does not require the amount and type of medications he is receiving at this time.

Mr. Smith has reached a permanent and stationary status as well as maximum medical improvement and is in not in need of further treatment. According to the Dictionary of Occupational Titles¹, Mr. Smith can return to work full time, and can perform job tasks consistent with light-medium duty work¹.

FUTURE TREATMENT RECOMMENDATIONS

The patient has reached maximum medical improvement and is not in need of future treatment in regards to the 05/23/2007 work related accident. Physical Rehabilitation would be a valid treatment method to bring this patient back to his pre-injury strength. This type of treatment is quite valid and successful when a patient is motivated. However, I can state with some medical probability that Mr. Smith has very little desire to exert the energy required to participate in a physical rehabilitation program.

PHYSICAL DEMAND LEVEL

Mr. Smith is capable of performing permanent restricted full time duty of light-medium work in all positions (35lbs Occasionally, 18 lbs Frequently, 7 lbs Constantly)¹.

COMPLIANCE STATEMENT:

“I personally evaluated this patient and prepared this report. If others have performed any services in connection to this report, outside of clerical preparation, their name and qualifications are noted herein. The time spent was in accordance with Industrial Medical Council (IMC) guidelines. I declare under penalty of perjury that the information contained in this report and its attachments, if any, is true and correct to the best of my knowledge and belief, except as to information that I have indicated I received from others. As to that information, I declare under penalty of perjury that the information accurately describes the information provided to me and, except as noted herein, that I believe it to be true. I have not violated Labor Code Section 139.3 and the contents of the report and bill are true and correct to the best of my knowledge. This statement is made under penalty of perjury.”

All available data supports the conclusions reached in this report. Thank you very much for considering this organization for your referral. If there are any questions concerning this matter, please feel free to contact me.

Sincerely,

________________________________08/15/2008

Allen S. Miller, DC, DACBSP Date:

(This signature will act as an original for the purposes of this document).

cc: Lisa Anderson Esq., 601 South Ninth Street, Las Vegas, NV

REFERENCES:

Dictionary of Occupational Titles, U.S. Department of Labor Employment and Training Administration 1991. Volume II Fourth Edition, Revised 1991.
Nursing Diagnosis: Application to Clinical Practice by Lynda Juall Carpenito-Mojet
Foreman & Croft 1997. Radoff et all 1993.

2. United States National Institute for Occupational Safety and Health (NIOSH)

3. Health Psychology, By Michael Feuerstein, Elise E. Labbé, Andrzej R. Kuczmierczyk

4. Cardiovascular/Pulmonary Essentials, By Marilyn Moffat, Donna Frownfelter

7. The Forensic Documentation Sourcebook: The Complete Paperwork Resource for …

by Theodore H. Blau, Fred L. Alberts, Jr., Fred L. Alberts.

Published in:

on August 10, 2009 at 8:27 pm Leave a Comment
Tags: Dr. Allen S. Miller, FCE, Forensic, Fraud, fraud malingering, Functional Capacity Evaluations, Kinematic Solutions, Kinematice expert

Police FCE Report

Mr. John Doe

Risk/Safety Manager

City of Bradenton

5555 Street Blvd.

Bradenton, Fl. 34444

Re: Joan Smith

SS#: 000-00-0000

Claim #: 11111111

Employer: City of Bradenton

Job Description: Police Officer

Date of Injury: 05/29/1998

Date of Examination: 09/03/1998

FUNCTIONAL CAPACITY EXAMINATION

Dear Mr. Doe;

The above named individual was recently referred to this facility for a Functional Capacity examination. This testing consisted of computerized range of motion, computerized isometric lift tasks, dynamic lift tasks, computerized hand strength analysis, along with a routine physical exam. The protocol consisted of lifting isometrically and dynamically within the NIOSH 5-position protocol. The patient was instructed to lift normally and anyway she felt best, and to stop if her comfort level changed. The routine physical examination as stated was within Dr. Gordon Waddell’s protocols and included range of motion, orthopedic and neurologic tests. The patient was required to read and sign a consent form enabling this facility to examine, test, analyze and report findings to you, the employer. The objective of this testing was to determine the participants Physical Demand Level (PDL) for return into a suitable job task .

The results of this exam are discussed below.

Re: Joan Smith

SS#: 000-00-0000

HISTORY:

On 5/29/98, Officer Smith was the operator of a Crown Victoria Police vehicle. Officer Smith states that another vehicle collided with the passenger side of the Police vehicle while she was driving through an intersection in the course of her duties as a Police Patrol Officer. She states that the collision was of enough force as to roll the vehicle rolled over one and one quarter times, coming to rest on the passenger side. Officer Smith denies any loss of consciousness, and states that somehow her seat belt came unfastened as her vehicle rolled over. She further states that she struck her head, left arm and right leg on the vehicle interior.

Immediately following the accident, Officer Smith stated that she was “stunned”. Within a few hours following the accident, she began to experience left sided forehead pain, neck pain, mid back pain, left arm pain, low back pain and bilateral leg pain.

She was transported from the accident scene by ambulance, to Bradenton Memorial Hospital in Bradenton, Florida. She was examined by the physician on duty. She received x-rays of her neck and was prescribed “Tylenol # 3” and released. The same day she presented herself to Dr. Head at Oaks Medical Center for examination and was subsequently prescribed “Tylenol # 3”. Officer Smith was then examined by Dr. M. Jones and received x-rays of her neck and back. Dr. Jones prescribed physical therapy for Officer Jones at Mediplex. The physical Therapy treatments were described as consisting of thirty minute treatment sessions consisting of TENS therapy, Heat, and Rehabilitative Spinal Exercises. MRI’s of the Cervical and Lumbar spine were prescribed and performed. Officer Smith states that she continues to see Dr. Jones on an as needed (prn) basis.

Officer Smith states that she saw Dr. Bob Mets, a Bradenton Chiropractor once a week for treatment. She states that she saw Dr. Mets for a prior work related automobile accident. Treatment consisted of Cervical Spine Manipulation and massage therapy.

Officer Smith is currently working in the capacity of Desk Officer. This task requires her to answer a phone and interact with the public. She does not wear a Sam brown belt only a gun and holster. She states that she has recently requested a head set as answering the phone aggravates her neck symptoms.

Re: Joan Smith

SS#: 000-00-0000

PAST HISTORY:

On January 29, 1993, Officer Smith states that she was driving her patrol vehicle in the course of her duties as a Bradenton Police Officer. She states that she was performing a U-turn, and was struck in the driver’s door by another vehicle. She states that she struck her head on the door frame with her head turned to the left. She was seen by multiple physicians. She was then seen by Dr. Bob Mets.

Her initial visit and treatment frequency with Dr.Mets was 3 times per week. Officer Smith states that she is currently on a “on call basis” for treatment.

MEDICAL/SURGICAL:

Contributing Medical History: Denied.

Contributing Surgical History: Denied.

PRESENT COMPLAINTS:

Low back pain, bilateral, ache in nature, worse with sitting, graded 1 to 4/10 on the Borge pain Scale.
Right arm pain, ache in nature, extending from shoulder to forearm, graded 0 to 3/10 on the Borge pain scale, worse with repeated arm use.
Neck pain, posterior, bilateral, dull to sharp in nature, graded 1 to 4/10 on the Borge pain scale, worsens with repeated head movement.
Right leg ache, intermittent, graded 0 to 3/10 on the Borge pain scale, worsens with prolonged sitting.
Head pain, occiput to frontal, intermittent, graded 0 to 4/10 on the Borge pain scale.
Intermittent bilateral hand and foot paresthesias.

PERSONAL:

Police Officer, married, no children, non-smoker, and social alcohol user. Hobbies: Golf, Jet-ski and scuba diving.

EXAMINATION FINDINGS:

Joan Smith is a 32-year old female, 5′ 8″ tall, 155 pounds. She appears her stated age and is in excellent physical condition. Muscle testing revealed +5 muscle strength in the upper and lower extremities. Sensory testing was performed indicating no loss of pain or sensation along the dermatomes in the upper and lower extremities bilaterally.

Re: Joan Smith

SS#: 000-00-0000

Officer Smith does not demonstrate any abnormal scars, or protrusions connected with the injury.

Spinous percussion was positive for sprain type injury at L5 spinous level. Digital palpation of the Cervical, Thoracic and Lumbosacral regions revealed mild + 1 parapsinal myospams with accompanying mild tenderness at C2 through T3 bilaterally. Mild tenderness at the left of T10 through T12 and L4 through the sacrum and the right sacroiliac articulation. Officer Smith stated her comfort level to be 1 ½ on a 1 to 5 scale.

Cervical Lateral Compression Test (for nerve root compression) was negative bilaterally however the patient reported right sided neck pain. Cervical Flexion and Extension Compression Tests ( for nerve root compression) were negative however the patient reported right sided neck pain. Maximum Foraminal Compression test (for nerve root compression) was negative bilaterally however the patient reported right sided neck pain.

Cervical Distraction and Shoulder Depression Tests were negative.

Straight Leg Raise Test (for space occupying lesion) was positive bilaterally at 50 degrees of leg elevation for low back pain. Lindner’s test (for space occupying lesion) was positive bilaterally for low back pain complaint. Gaenslen’s and Nachlas Tests (for sacroiliac articulation lesion) were positive on the left for complaints of sacroiliac tenderness.

Deep Tendon Reflexes, motor strength levels and sensory pin prick were all within normal limits in the upper and lower extremities bilaterally.

The following tests were performed to determine the patients ability to perform the specific job functions safely without causing themselves harm or harm to others.

RADIOLOGICAL FINDINGS:

11/25/96 – Magnetic Imaging Center of Bradenton – Todd Osoow, M.D.

Impression: Moderate sized central and right paramedian, broad based disc herniation at C5-6 with flattening of the cord with minimal spinal stenosis.

Small central herniation at C4-5, best appreciated on axial images.

Neural Foraminal narrowing, predominantly on the left at C5-6.

Re: Joan Smith

SS#: 000-00-0000

08/28/98 – Magnetic Imaging Center of Bradenton – Todd Osoow, M.D.

Impression: Broad Based Central Herniation at C5-6 which has advanced when compared to the previous study. There is significant flattening of the spinal cord.

There is cord flattening also at C4-5 due to small Central disc herniation. There is also a small central protrusion at C6-7.

Neural Foraminal narrowing, predominantly on the left at C5-6.

08/28/98 – Magnetic Imaging Center of Bradenton – Todd Osoow, M.D.

Impression: Minor degenerative changes no disc herniation, spinal Stenosis or Neural foraminal narrowing is present.

CARDIOVASCULAR TESTING:

Depending on the identified goals for the Functional Capacity Examination, cardiovascular testing is necessary for specific concerns regarding individuals with specific cardiac disease, job positions that require significant walking, stepping, or constant upper extremity demands. The patients resting Heart Rate was 88 BPM and a Blood Pressure 100/70. The patient was tested and a Step test was performed. The patient performed a maximum of 4.3 METS with a Heat Rate of 165 BPM. The patients MET level corresponded with a Physical Demand Level of Medium work which does equal the PDL of the job task.

COMPUTERIZED RANGE OF MOTION:

The patient was tested utilizing the computerized inclinometer to determine their Cervical, Thoracic, and Lumbar Spine range of motion. This ration of the patients ROM is analyzed for any impairment utilizing the AMA guidelines 4^th, Edition as a reference.

The patient exhibited the following findings.

Cervical Spine:

Officer Smith exhibited mild restriction in the Cervical flexion/extension, left lateral flexion and right/left rotation with a cervical impairment 7%.

Thoracic Spine:

Officer Smith exhibited mild restriction in the thoracic flexion, and right/left rotation with a thoracic impairment 3%.

Re: Joan Smith

SS#: 000-00-0000

Lumbar Spine:

Officer Smith exhibited mild restriction in the lumbar flexion/extension lumbar spine impairment 7%.

¬ Whole Person Spine Impairment 16%.

These figures were calculated utilizing the AMA’s Guides to the Evaluation of Permanent Impairment. The patients test results are attached to this report.

COMPUTERIZED HAND STRENGTH TESTING:

There are many reasons to measure an patients grip strength. Grip strength can be used to determine the nature of injury (organic versus psychological) or the patient’s sincerity of effort as in a Functional Capacity Examination. As part of a Functional Capacity Examination, grip strength will be used to determine a sincerity of effort along with determining any residual muscle strength loss due to injury.

5 Position Grip Strength Test: This will be of use as a validity test check as part of a Functional Capacity Examination.

Left Hand Right Hand (Dominate):

Position 1 47 lb. Average. 28% CV. Test Valid. 48 lb. Average. 13% CV. Test Valid.

Position 2 84 lb. Average. 10% CV. Test Valid. 84 lb. Average. 4% CV. Test Valid.

Position 3 72 lb. Average. 18% CV. Test Valid. 91 lb. Average. 7% CV. Test Valid.

Position 4 59 lb. Average. 13% CV. Test Valid. 86 lb. Average. 6% CV. Test Valid.

Position 5 58 lb. Average. 9% CV. Test Valid. 59 lb. Average. 3% CV. Test Valid.

The patient failed to give consistent effort in repetitions 1 and 3 of the left hand.

Rapid Exchange Grip Test: The REG test will be used as a validity check and supplement the 5 position grip test. The will be the distinguishing test for the cooperative, uncooperative or malingering subject. This test validated the subjects maximum strength curves.

Sustained Grip Test: The SGT test will be used as a validity check and supplement the 5 position grip test. This will be the distinguishing test for the cooperative, uncooperative or malingering subject.

Re: Joan Smith

SS#: 000-00-0000

Position 2:

Left Hand Right Hand (Dominate):

Rep 1 53 lb. Average. Test . 59 lb. Average. Test .

Rep 2 50 lb. Average. Test . 54 lb. Average. Test .

Rep 3 47 lb. Average. Test . 48 lb. Average. Test .

Rep 4 42 lb. Average. Test . 67 lb. Average. Test .

The patient’s strength was within limits and are detailed in the attached documents. The testing revealed a 20% deficit on the left hand is consistent with Officer Smith’s use, training and proficiency with the right hand and weapons training.

Pinch Tests (Finger Strength):

Left Hand Right Hand (Dominate):

Tip 14.5 lb. Average. Test . 16.1 lb. Average. Test .

Key 20.9 lb. Average. Test . 22.6 lb. Average. Test .

Palmar 20.2 lb. Average. Test . 18.5 lb. Average. Test .

Opposition 5.2 lb. Average. Test . 5.4 lb. Average. Test .

COMPUTERIZED ISOMETRIC STRENGTH TESTING:

The Isometric strength testing is performed in accordance with the NIOSH Practices Guides for Manual Lifting and utilized the NIOSH 6 positions. The six lifting postures will be used to compile an isometric strength database.

NIOSH Arm Lift Statistics (Back, Shoulder, & Bilateral Arm Lift):

Max lift average 46 lb.

NIOSH 45 %tile.

The test CV was 9 % and .

The Patients Dynamic Rating was: Light-Medium

35 lbs. Occasionally (0-33%), 14 lbs. Frequently (34-66%) 7 lbs. constantly (67-100%).

NIOSH Torso Lift Statistics (Bilateral Arm, Back & Leg Lift):

Max lift average 33 lb.

NIOSH 6 %tile.

The test CV was 18 % and .

The Patients Dynamic Rating was: Light

17 lbs. Occasionally (0-33%), 7 lbs. Frequently (34-66%) 3 lbs. constantly (67-100%).

Re: Joan Smith

SS#: 000-00-0000

NIOSH Leg Lift Statistics (Bilateral Leg, & Back Lift):

Max lift average 124 lb.

NIOSH 79 %tile.

The test CV was 7 % and .

The Patients Dynamic Rating was: Medium

62 lbs. Occasionally (0-33%), 25 lbs. Frequently (34-66%) 12 lbs. constantly (67-100%).

NIOSH High Far Lift Statistics (Bilateral Arm, Shoulders & Back Lift):

Max lift average 29 lb.

NIOSH 50 %tile.

The test CV was 8 % and .

The Patients Dynamic Rating was: Light-Medium

42 lbs. Occasionally (0-33%), 17 lbs. Frequently (34-66%) 8 lbs. constantly (67-100%).

NIOSH Floor Lift Statistics (Bilateral Leg, Arm & Back Lift):

Max lift average 52 lb.

NIOSH 30 %tile.

The test CV was 8 % and non-Valid.

The Patients Dynamic Rating was: Light-Medium

31 lbs. Occasionally (0-33%), 12 lbs. Frequently (34-66%) 6 lbs. constantly (67-100%).

Note: Officer Smith did not appear to offer a sincere effort at this point in testing. This test had to repeatedly restarted due Officer Smith’s misunderstanding of the commands.

Push Statistics (Bilateral Arm, Legs & Back):

Max lift average 86 lb.

The test CV was 10 % and .

Note: The patient was able to exert significant force and was void of an increase in comfort level, myospasm or restriction.

Pull Statistics (Bilateral Arm, Legs & Back):

Max lift average 66 lb.

The test CV was 4 % and .

Note: The patient was able to exert significant force and was void of an increase in comfort level, myospasm or restriction.

Re: Joan Smith

SS#: 000-00-0000

DYNAMIC LIFT TEST:

The patients safe lift capacity was determined by static lifting. Once it was determined that the patient could produce enough force and strength to lift the required weight for the job task the patient was referred to dynamic lifting to confirm the sincerity of effort.

The patient was required to lift a box of weights they felt comfortable lifting, proceeding to 80% of the patients body weight or a safe comfort level which ever was less. This test was utilized to determine the patients sincerity of effort. The patient lifted the required weight in the 5 positions.

Floor Lift: Max Weight Achieved – 35 Lbs. HR: 158 Comfort Level: From 2-2 ½.
Knee Lift: Max Weight Achieved – 52 Lbs. HR: 171 Comfort Level: From 2 to 3.
Waist Lift: Max Weight Achieved – 32 Lbs. HR: 160 Comfort Level: From 2 to 3.
Waist-Overhead: Max Weight Achieved – 32 Lbs. HR: 160 Comfort Level: From 2 to 3.
Carry 20 Ft: Max Weight Achieved – 32 Lbs. HR: 146 Comfort Level: From 3 to 2.

The patient was able to lift a weight box in anyway she felt comfortable and able in several positions. She complained of a slight increase in her comfort level, without an increase in myospasm, joint tenderness or restriction. Officer Smith was consistent and reliable in her effort and exceeded our expectations in this area.

POSTURES AND ACTIVITIES:

During testing, Officer Smith, was required to bend squat, reach, walk crawl, stand and sit. These are activities that coincide with her duties as a Police Officer. During this testing Officer Smith complained of pain, myospams and dizziness. Upon immediate physical examination her symptoms could not be validated by palpation or orthopedic tests.

Officer Smith was asked to run up 4 steps turn quickly and jump off of the 4 stairs to a concrete floor. Officer Smith’s only complaint was that of knee stiffness, with this type of physical stress dizziness should have been apparent. However, Officer Smith was able to perform this test without dizziness. Twenty two minutes later upon examination for arm numbness, Officer Smith experienced a “bout” of dizziness. However, this episode did not coincide with any positive Rombergs or other reliable neurologic testing methods.

Re: Joan Smith

SS#: 000-00-0000

Conclusions:

Officer Smith was compliant and cooperative during the examination process. She was objectively examined with a multitude of tests and in several positions. She was given a full physical examination and tested utilizing computerized hand dynamometer, inclinometer, isometric and dynamic strength testing.

These tests were utilized to substantiate her complaints of pain, numbness, dizziness and disability and subsequently find Officer Smith a suitable job task for her to perform. The testing that Officer Smith participated in is quite rigorous and takes 3-4 hours to complete. Officer Smith exhibited the ability to sit still for 60-90 minutes without a change in her comfort level or heart rate. She did not need to rise or stretch, she sat while filling out the forms and during the examination process unremarkably. This contradicts her stated symptoms and limitations on the Functional Activities Questionnaire. She exhibited fine motor skills and the ability to bend, squat, stand, reach, twist and turn without significant hindrance. Officer Smith stated that during these activities her comfort level changed from a 2 to a 2.5., at the same time she showed a lowering of her heart rate from 101 to 88 indicating a relaxed demeanor.

Following the initial interview and examination the participant underwent a cardiovascular step test. This test was utilized to determine the cardiovascular health of the participant and her Physical Demand Level (PDL) as it compares to her job description.

Officer Smith exhibited the ability to perform medium work, which correlates with the DOT description 375.367-010, that of police officer. The step test indicated that she is slightly de-conditioned in relation to her age, however this is consistent with her statements that she doesn’t “work out as much since the accident.”

The participant was also required to perform computerized hand and finger strength testing. This entails 7 isometric strength tests per hand where the participant is required to squeeze a non-moving isometric device as hard as possible. This registers the strength of the participant in 5 positions and compares it to the Mathowitz national database. Her complaints of bilateral hand numbness, specifically, could not be substantiated correlated to the test results. When asked when her numbness occurs, she stated intermittently. When asked to further elaborate, she could not tell us when the numbness occurs, what causes it or how long it lasts.

Re: Joan Smith

SS#: 000-00-0000

She also was inconsistent as to the type of hand numbness she experiences. Officer Smith states that her numbness occurs in the 4^th and 5^th fingers bilaterally and simultaneously.

Then, she stated that her numbness also occurs in the 3^rd, 4^th, and 5^th fingers bilaterally and simultaneously. Yet during the computerized dynamometer testing she gave us maximum effort and produced significant valid strength curves. This again is inconsistent with her reported symptoms. She was tested multiple times bilaterally, with consistent and valid results. The strength, force and effort Officer Smith exhibited in conjunction with the other tests should have aggravated her hand complaints and numbness, however her comfort level never exceeded a level that of “2” and there was no loss of muscle strength, increased muscle spasm or resulting numbness.

Next, Officer Smith underwent computerized range of motion (ROM) testing. This test required the participant to move her cervical, thoracic and lumbar spine in all ranges of motion while it is measured and documented by the computer. Officer Smith exhibited mild restriction and slight impairment of the Cervical, Thoracic and Lumbar range of motion during the examination.

During one part of the examination, Officer Smith was required to bend at the waist while keeping her legs straight. She was required to hold that position while we determined her ROM. She was able to perform this test without significant rise in her HR (101 to 109) or a change in her comfort level (2 to 2.5). The rise in her HR correlates to the movement activity she was performing during the testing and is consistent with the work she performed. It should be noted that persons with back injury and or weakness cannot perform certain portions of this test due to pain and must be administered in a modified position. Officer Smith was able to perform these movements without an increase in pain or muscle spasms.

We also monitored Officer Smith’s HR and comfort level numerous times during every phase of the testing. She did not portray a significant rise in comfort level or HR during this phase of the testing.

Following this ROM testing Officer Smith participated in Isometric Strength Testing. Officer Smith was tested utilizing NIOSH Isometric lift testing procedures including Push and Pull. This testing required the participant to pull a non moving bar with maximum strength in six positions including bending, standing, and squatting. The patient exhibited significant strength consistent with her age and gender. Her HR raised from 101 to an average of 158 during this portion of the testing.

Re: Joan Smith

SS#: 000-00-0000

This is consistent as this type of testing is rigorous and difficult to perform. The patient did not exhibit dizziness or significant rise in comfort level during this phase of testing. Her comfort level rose from 2.5 to 3.0 during this phase, however, this is consistent with the rigors of testing. Officer Smith completed the testing and was examined immediately afterwards for muscle spasms and or pain. Officer Smith did not exhibit a significant increase in pain or palpable muscle spasms before, during and after the examination.

One would expect a rise in muscle spasms pain and joint restriction from someone with the type of injury and restriction reported by Officer Smith.

During the examination process Officer Smith stated that she had pain and myospams around the medial border of the right scapula. However, during the isometric push/pull testing, Officer Smith exhibited significant strength and endurance. Her position and strength curves contradict her complaints of pain, reported restriction and associated spasms.

We utilized Dynamic Testing to correlate the data derived from Computerized Isometric Static Testing. Officer Smith was asked to pick up an empty box weighing 12 lbs. After completing this successfully, she was then asked to add weight to the box in increments she felt comfortable with and repeat the lifting procedure. Officer Smith lifted the boxes in 4 different positions correlating with the NIOSH testing positions. We did see a rise in her HR while performing this examination form 101 to a maximum of 160 with an average of 141. This rise in HR, is consistent with the amount of work required to perform this examination. During the less strenuous portions of this testing, Officer Smith’s’ HR dropped from 158 to 141 again consistent with the work task. Officer Smith was able to lift the boxes without increased palpable spinal muscle spasms. Officer Smith stated that her comfort level increased from a 2 to a 3 respectively.

Because of the type of lifting Officer Smith was asked to perform, one would expect an increase in objective signs that occur involuntarily such as in palpable muscle spasms, pain and joint restriction. Physical examination could not detect any signs consistent with her complaints or that of her original injury.

During the entire examination process Officer Smith complained of pain and spasm around the medial border of the scapula, and sacral region. However, during all phases of testing, Officer Smith exhibited significant strength and endurance consistent with the activities involved. Physical Examination, testing position, and significant strength contradicts her current complaints of pain, restriction and spasm in these areas.

Re: Joan Smith

SS#: 000-00-0000

Officer Smith’s subjective complaints of pain, spasm and restriction do not correlate with the physical examination, computerized hand/finger strength, range of motion, isometric and dynamic lift tests.

RECOMMENDATIONS:

With the information derived from computerized testing, physical examination, dynamic and isometric lift tests, the position and specific job functions consistent with a Police Patrol Officer are for the participant to perform. Officer Smith exhibited the ability and strength consistent with and even exceeding the ability to perform medium work which correlates with the DOT description 375.367-010, that of Police Officer. We did not find any physical reason Officer Smith cannot return to her job duties as a Police Patrol Officer. She may return to her duties as a Police Patrol Officer immediately without restriction.

Officer Smith has received the gambit of treatment modalities Chiropractic, Medical, Physical Therapy and Rehabilitation. Officer Smith has reached a permanent and stationary plateau and has received maximum medical benefit. I would recommend that Officer Smith continue with the exercise program that she is currently performing at the Police Station. It is recommended that Officer Smith include cardiovascular training for overall health, fitness and job safety.

Without the records of the prior work related auto accidents it is difficult to apportion these injuries. Our computerized testing utilzies the AMA Guides to imparement 4^th. Edition to determine injury imparement. The rating source utilized in the State of Florida is the Florida Imparement Guides and is the proper sourse for rating work related injuries occuring after June 1993. The Following referenced section of The Florida Imparement Guide appropriately represents Officer Smith present status.

Under Specific Disorders of the Spine, the category C. Intervertebral Disc or Other Soft Tissue Lesions: 2 Pain associated with rigidity (loss of motion or postural abnormality) and chronic muscle spasm. The chronic muscle spasm and rigidity is substantiated by objective clinical findings but without associated demonstrable degenerative changes:

Cervical 3% Imparement of whole person.

Re: Joan Smith

SS#: 000-00-0000

Officer Smith’s MRI studies revealed disc herniations at C4/C5 and C5/C6 disc levels. When both discs are considered, and the assigned percentage of impairment combined, they yield a 6% total impairment of the whole person. It is significant, and therefore predated the 05/29/98 accident. Therefore, her present level of impairment is not due solely to the 05/29/98 accident.

Thank you very much for considering this facility for your referral. If there are any questions concerning this matter, please feel free to contact me.

Sincerely,

Dr. Allen S. Miller

Enclosures

CC Insurance Company

Published in:

on August 10, 2009 at 8:09 pm Leave a Comment
Tags: Dr. Allen S. Miller, FCE, Forensic, Functional Capacity Evaluations, Kinematice expert

CNA Case Using Forensic Biomechanic Measurement of SubRosa Video Tape

September 4, 2007

Honorita E. Natividad

Claims Manager

CNA Insurance Services

675 Placentia Avenue, Suite 200

Brea, California 92821

Patient Name: Smith-Perez vs. Puritan Bakery

WCAB No: VNO xxxxx

Claim No: 81-xxxxxxxxxxxxxx

Date of Injury: 06/20/2000

FUNCTIONAL CAPACITY EVALUATION

Dear Ms. Natividad:

We were contacted to perform a peer review of medical records, sub-rosa video tapes as well as all other pertinent information; to evaluate and compare those findings to the demands of the job task to determine the following:

Ability to perform job task.
Estimate a date of return to job task.
Functional capabilities of the above named individual.
Permanent and Stationary Status.
Future Medical Care.

The results of this evaluation are discussed below.

EXAMINATION FINDINGS:

The examination findings are located within the record review.

REVIEW OF APPLICABLE DATA:

Alexander Angerman, MD AME report dated April 10, 2006

(Orthopaedic Surgery) AME supplemental report dated August 30, 2006

AME supplemental report dated March 15, 2007

AME supplemental report dated February 1, 2007

Thomas E. Preston, MD, PHD AME report dated May 4, and August 9, 2006

(Psychiatry and Psychoanalysis)

Seymour Levine, MD AME report dated October 8, 2005

(Rheumatology) AME re-evaluation report dated August 19, 2006

AME re-evaluation report dated March 7, 2007

Deposition of Seymour Levine, MD dated March 28, 2007

Deposition of Kenith K. Paresa, MD dated March 23, 2007

DISCUSSION OF RECORDS REVIEWED:

As in all the above reports the records have been reviewed for you in elaborate detail multiple times over. In this discussion, I will discuss the findings in regards to the evaluation of the patient, and subsequent evaluation of the sub-rosa video tape, as well as the conclusions each AME reached based on such.

Alexander Angerman, MD

(Orthopedic Surgery)

Dr. Angerman is the expert of record who performed the orthopedic AME. His initial examination of the patient was on April 10, 2006, and all findings were documented in the AME report dated April 10, 2006. In this report noted is the patient’s job description which is of particular importance since the patient has been TTD since the date of injury, “Physical requirements of this job included constant standing and walking with occasional bending, stooping and twisting his body. He did no kneeling, squatting and crouching. He did no stair or ladder climbing. He did sitting only when driving to make the deliveries. He did constant carrying of up to 10 pounds, frequent lifting of 11 to 25 pounds and occasional lifting of 26 to 50 pounds. He did constant carrying of up to 10 pounds for a distance of 4 to 5 feet. He did constant overhead reaching. There was heavy physical labor “some of the time”. He did frequent heavy pushing and pulling. He did no typing or computer work.” The patient relates to Dr. Angerman that he is able to lift only 10 pounds post-injury and that prior to the injury in question he was able to lift up to 100 pounds.

Examination findings demonstrate no gross deformity or muscle spasm of the cervical spine. Noted was diffuse palpable tenderness of the right paraspinal muscles, trapezius muscles and right medial scapular region. Orthopedic test was negative and AROM of the cervical spine demonstrated limitation in right/left rotation and lateral flexion. Reflexes of the upper extremity were normal. Motor testing of the left upper extremity was normal, right revealed 0-3/+5. Sensory revealed hypersensitivity of the right upper extremity, with 0 grip strength on the right. Examination findings of the left upper extremity were normal, findings of the right upper extremity demonstrated decreased AROM in the shoulder and in the wrist/hand no findings as the examiner was not able to perform this testing due to the patient’s “hypersensitivity. Diffuse swelling of the right wrist and antalgic posture of the right extremity in a flexed position was noted. Examination of the thoracic spine was unremarkable. Examination of the lumbar spine was unremarkable.

Dr. Angerman reviewed multiple records of all the treating physicians to date, showing multiple chiropractic, neurologic, orthopedic, and pain management treatments as well as numerous prescriptions were given. Of note were electromyelogram and nerve conduction studies which were normal. From record review, the patient continued to report numerous subjective complaints regarding the right upper extremity, and since pain management treatments had little to no relief, the patient had sympathectomy thoracic surgery. The patient continued to complain of subjective symptoms following this procedure which was performed in April of 2002. Electrodiagnostic study of the right upper extremity dated 06/23/2003 was negative.

Dr. Angerman notes two past automobile accidents in the patient’s history. One in 1998 where the patient injured his lower back and bilateral shoulders, he was out of work for two months, treated, and in this report the AME states he recovered completely. A second motor vehicle accident took place on 03/21/2001 after this DOI in question. Dr. Angerman states in his report that the patient was unable to describe the accident and was uncertain as to what body parts were injured. Dr. Angerman also requested additional records regarding this accident to discuss whether or not apportionment was an issue. From my review, these records were not received. Numerous records were also reviewed from Ronald Jay Davidson, MD (Psychiatrist) who treated the patient for depression, suicidal thoughts and anxiety. Of note MRI of the brain negative. MRI of the lower back demonstrated 5.6mm caudally dissecting disc extrusion, although the patient notes no lower back pain at this time. MRI of the cervical spinal showed no disc protrusions.

Dr. Angerman reviewed the sub-rosa video tapes in his supplemental report dated August 30, 2006. In this report the AME states, “Based on those sub-rosa films, I do not feel that solely on an orthopedic basis that this patient requires any work restrictions.” The AME in February of 2007 submits an additional supplemental report to give his conclusions based on now having received all requested records. Again Dr. Angerman states that based on his review and his review of the sub-rosa films that the patient does not have any orthopedic work restrictions. He also states that from an orthopedic view that the patient is permanent and stationary for purposes of rating.

Thomas E. Preston, MD, PHD

(Psychiatry and Psychoanalysis)

Dr. Preston saw the patient on May 4, 2006, for AME Psychiatric Evaluation and again on August 9, 2006, to subsequently watch the sub-rosa films together. The AME notes in his report that the patient initially sought psychiatric treatment with David Friedman, MD but was not helped and later, on his own picked Ronald Davidon, MD out of the yellow pages. He notes that Dr. Davidson was extremely helpful and has continued treatment throughout this case. Of note was the patient was approved for social security and Medicare in 2004. Of note the patient and his wife purchased a house to use as a rental property in 2005. Of note the patient’s wife gave birth to a son in April 2006. The patient following the birth of his son was more hopeful, he was responsible to take care of the son as the wife worked. At this time, the patient felt “ready” to have the surgery for the stimulator. The patient also has requested to go to the Virginia Mason pain management program in Seattle (this is to be the top location in the country for RSD). The AME notes that the patient relates the following: “that he is willing to pay out of pocket for the Seattle trip, which he could also use Medicare but he feels the workers’ compensation insurance is responsible”. Of note the patient is receiving $513 per month in workers’ compensation benefits, $800 per month in social security as well as Medicare benefits. Mr. Smith-Perez also relates he is considering going back to school to get his MA in international business, and that he has a business plan to start his own business as well, as he has already saved the money for it. Noted over and over in this report are the patient statements that, “he is not depressed just aggravated from all the doctors.”

Dr. Preston notes that throughout the interview the patient sat with his right hand in his pocket, although he was able to complete the psychological testing utilizing his right hand to fill out true-false answers on psychological tests. The patient appeared angry and morose during the interview. The AME notes the patient is pre-occupied with getting appropriate treatment. The AME states the patient is oriented, cognitive functions are intact, and that his judgment is impaired by his pain and depression. During the interview of August where both the AME and Mr. Smith-Perez sat and watched the sub-rosa films, the patient did acknowledge that it was him in the films. When asked about his abilities in the films being more than what he states he can do, the patient relates that watching this video shows him that he is capable of overcoming his injury. He also stated that he was instructed by his doctors to use his right hand or “lose it”. He had no ready explanation as to why he apparently had so many symptoms with regards to the upper extremity, and why he reports functioning so poorly, while at the same time the videos demonstrate him functioning doing heavy work with his right arm. And again, the patient stated he needed more pain management treatment and wanted to go to Seattle for it.

Dr. Preston diagnosed the patient with mood disorder, pain disorder associated with both psychological factors and general medical condition and history of opioid dependence. In conclusions, the AME states the patient presents in person as far more impaired orthopedically than is evident on the videos. Also notes is inconsistency in psychiatric picture, stating the patient presents as calm, mildly dysphoric, and preoccupied with obtaining pain management. Dr. Preston states the severe mood disorder noted by the treating psychiatrist was not evident. Dr. Preston also states that he did not observe any firsthand evidence of manic or hypomanic behavior as indicated by the treating psychiatrist. Dr. Preston also states in his AME report that on the sub-rosa films the patient appeared to be functioning well from a psychiatric perspective, and he further states that the patient is permanent and stationary from a psychiatric perspective by June 21, 2005. The AME recommends continued supportive psychotherapy and psychopharmacologic treatment as indicated by the treating physician. He goes on to state that the prognosis depends on the patient placing his injury in perspective and moving on with his plans for the future.

Seymour Levine, MD

(Rheumatology)

Dr. Seymour Levine evaluated the patient on October 5, 2005, for a rhematological AME review. Both Dr. Angerman and Dr. Preston deferred to Dr. Levine in regards to RSD (complex regional pain syndrome of the upper extremity). Dr. Levine states the injury occurred as follows: “There was a specific injury on June 20, 2000. The patient was walking on a wet metal platform when he slipped and fell. He put out his right hand and arm in order to break the fall. His right hand forced his arm up into the shoulder. His whole right arm and low back were immediately painful. He was seen at a local clinic at Western Medical Group per his company and no broken bones were found. He was given medications. X-rays were done. He states that after 30 days the patient chose his own doctor. Also stated was the patient obtained legal advice and was referred to a chiropractor who became his treating physician. From that point he was referred to Philip Sobol, MD (orthopedist) who gave him medication and referred him down the path of doctors. Dr. Sobol made the initial suggestion of a diagnosis for RSD. The patient then, on his own, sought treatment with vascular surgeon Samual Ahn, MD at UCLA in April of 2002. Dr. Ahn performed a sympathectomy which made the patient worse. The patient was then referred by his sister (who is a physician) to Cedar-Sinai pain management program where he came under the care of Kenith Paresa, MD. The patient last saw Dr. Sobol in 2003 and at the time of this report was treating with Dr. Paresa, Dr. Rosengarten, and psychiatrist Ronald Davison, MD. Also of note was the patient was detoxified twice at Cedars-Sinai. Also of note was the patient was waiting to have implantation of a spinal cord stimulator.

The patient is taking the following drugs: Duragesic patches, Neurontin, Soma, Lithium ER, Cymbalta, Zyprexa, Lunesta, and Lidoderm at the time of the October 2005 report. On examination, the patient had a good well-nourished appearance and appeared to not be in acute distress. Noted was the patient held the right arm in a flexed position at the elbow and somewhat flexed at the wrist with a mild claw hand resulting in a dependent hand, and mild reddish and purplish discoloration to the right hand and wrist. Cervical examination was unremarkable with full range of motion, lumbar was unremarkable with adequate range of motion.

On examination of extremities the left side was unremarkable. The right hand had mild edema, the right shoulder AROM was up to 90 degrees, and with assistance he reached 120 degrees. There was allodynia and hyperalgesia over the right upper extremity diffusely, most pronounced in the hand and wrist. Limitation of motion of the right wrist was due to guarding, and the patient guarded against palpation of these areas. Neurological was unremarkable, although the patient did not allow for proper testing of the right upper extremity. Fibromyalgia examination was negative. Laboratory data was negative for rhematological conditions.

Dr. Levine concludes diagnostic impressions of the following: work-related slip-and-fall injury of June 20, 2000 resulting in strains to the right upper extremity and low back. Complex regional pain syndrome type 1 (RSD). Chronic pain syndrome (based on subjectives of the patient) accompanied by non-restorative sleep, chronic fatigue, depression and anxiety, tension headaches, TMJ and IBS. History of dysuria and sexual dysfunction most likely due to medication use. Obesity.

In his report he demonstrates the reasons why he believes the patient to have complex regional pain syndrome type 1 (RSD) which was the area in dispute. He defines complex regional pain syndrome as a regional posttraumatic neuropathic pain problem that most often affects one or more limbs. Diagnostic criteria for complex regional pain syndrome type 1 is as follows: initial painful event that may or may not have been traumatic along with allodynia, hyperalgesia, history of edema, skin blood flow abnormalities or sudomotor abnormalities in the painful region. No other concomitant condition can be present to account for the pain. Dr. Levine describes that the patient’s most common symptom is burning pain, although patients may also have throbbing, squeezing, aching or shooting pains. Dr. Levine states that the patient demonstrates allodynia and hyperalgesia on physical examination. He also notes that he may or may not demonstrate sympathetic dysfunction (color changes, temperature changes and excessive sweating). Dr. Levine states that the patient reports these changes and he did note temperature changes during examination in the right hand along with mild reddish, purplish discoloration of the right hand. At this point the AME also notes that these changes can be due to the patient holding his arm in a dependent position. Also noted are those patients will develop a guarded antalgic position due to the allodynia. Another factor of note was in this patient, due to the length of time he allegedly had this condition, there should have been more significant findings such as: trophic changes in the affected limb, nails being hypertrophic or atrophic, hair growth and texture may be increased or decreased, skin may become atrophic, motor dysfunction (tremor, dystonia, muscle spasms, and loss of strength and endurance of affected muscle groups), brawny edema, muscle atrophy and contractures, and marked cyanosis of the limb. The patient, according to Dr. Levine, did not have these end-stage findings.

Dr. Levine also states in terms of this diagnosis there are no specific diagnostic tests available. It is solely based on presenting symptoms and subjective complaints of the patient. Basically, testing is only done to rule out other possible diagnoses, and if they are all negative, then they are given this diagnosis based on symptoms. In the AMA Guides, physical therapy and drug therapy are the recommended course of treatments for this condition. If such therapies don’t work, then sympathectic blocks, somatic blocks and spinal cord stimulation are suggested. Dr. Levine, based on his evaluation of the patient in the October 8, 2005 report, (prior to having received sub-rosa videos) states that he believes the patient to have a diagnosis of complex regional pain syndrome type 1. Dr. Levine also states that he does not believe the patient is permanent and stationary, and believes further treatment is indicated. He also states treatment was delayed of which he didn’t receive the blocks until one year after injury, and the sympathectomy around two years after the injury, and there is no way to know whether or not earlier treatment would have been more effective as far as outcome for the patient. From an ideal point of view, it is suggested the earlier the treatment is started the better the prognosis for the patient; and it has been the patient’s statement that the insurance company deliberately delayed treatment.

Dr. Levine recommends as continued treatment, Spinal cord stimulation. He states a 50/50 chance of this helping the patient. If the treatment fails, Dr. Levine states there could be a potential suicide risk for the patient so he recommends continued psychotherapy to transition the patient through this period of time. Dr. Levine also states that pain management in Seattle seems unreasonable as there are good pain management programs locally in the area. Dr. Levine also states in regards to the internal medicine complaints that there is not enough evidence to state that this is due to the industrial injury. He also states that the patient had normal blood pressure at the time of evaluation (of note, this statement was made by the other AME examiners). Dr. Levine goes on to recommend that the patient continue to be supplied medications that are on an industrial basis. These are as follows: Duragesic patches, Neurontin, Soma, Lithium, Cymbalta, Zyprexa, Lunesta and Lidoderm patches.

SUB-ROSA VIDEO TAPES ANALYSIS AND SECOND AME BY DR. LEVINE:

On August 19, 2006, Dr. Levine submitted a second AME report. He met with the patient for evaluation on June 20, 2006. At this time he was also provided the sub-rosa videos tapes for review. At this time the patient stated that he had not received any of the recommended treatments that Dr. Levine had made in his initial AME report of October 2005. In this report the patient stated he spends his time watching TV and staying home. He also stated it is hard to concentrate and difficult to read, other symptoms were unchanged. During this examination findings of the right upper extremity revealed decreased shoulder AROM at 140/180 degrees, and that the examiner was unable to further test the right elbow, wrist, and hand as the patient guarded against it. The examiner was unable to perform orthopedic tests on the right as well due to patient guarding.

Dr. Levine reviewed the sub-rosa films and made the following comments: “There is no apparent difficulty utilizing either of the upper extremities (This certainly looked like a different individual in terms of the involved upper extremity compared to the time that I saw this patient.) Without mentioning every detail noted in the videotapes, there was absolutely no musculoskeletal abnormalities……This appeared to be a healthy, normal, normally active individual…..There was no pain behavior observed.” “He ambulated normally. The individual is videotaped behind his pickup truck……he was noted to ambulate normally, bend normally, and utilize the upper extremities normally…….The individual was noted to walk up the stairs to his house and enter the house without difficulty.” Dr. Levine also states in his report that the individual in these tapes is not the same individual that presents on examination, and that based on these films the patient appears to have no musculoskeletal abnormalities.

Dr. Levine concludes the same diagnostic impressions as in his October 2005 report. He states in discussion that the patient continues to be symptomatic regarding the complex regional pain syndrome type 1 in the upper extremity. He further states that it is complicated by psychiatric diagnoses. In comments of the sub-rosa tapes, Dr. Levine states again that this individual appears to have no abnormality and further comments that Dr. Preston, Psychiatric AME, also states the same. Dr. Levine points out that it all comes down to what is the truth is regards to the upper extremity and whether or not this individual does have a problem. The other issue is how the patient presents to the examining doctors versus how he is on these tapes.

Dr. Levine concludes the following: “A patient is not videotaped when they may not be feeling well and do not venture outside of the house. In addition, when patients do venture outside of the house, they may perform activities regardless of how they feel in order to accomplish what they want to do. Nonetheless, this patient appeared to be ‘a normal individual’ when observed on the sub-rosa videotapes.” Dr. Levine then states that “he is willing to take this patient at his word and refer him to the Virginal Mason (Seattle) program based upon my observations of him on the 2 occasions that I have seen him in my office…..I will give him the benefit of the doubt that the sub-rosa videotapes may represent sampling problems in that he was videotaped on his best days.”

Dr. Levine further states in his October 2005 report that the patient is not permanent and stationary, and he continues to recommend the spinal cord stimulation, drug therapy, as well as pain management (and at this time he now concludes Seattle would benefit the patient because it would take him away from local stressors). Dr. Levine goes on to state that if the patient does not go to Seattle, and does not receive the spinal cord stimulator, he would consider him permanent and stationary for purposes of rating.

On March 7, 2007, Dr. Levine submits a supplement AME report based on additional medical records he was sent to review. This was to determine whether or not self-procured medications were to be covered by the insurance carrier as well as transportation for mileage and parking. At this time, he deemed the expenses reasonable.

This completes the review of the AME reports provided by CNA insurance.

SUB-ROSA VIDEO TAPE REVIEW

Each digital record of the videotape was reviewed, and imported into Microsoft Movie Maker. Each individual video file was analyzed frame by frame. When an example, of the subject’s movements was visualized, the video was paused and copied with Microsoft Movie Make as well as Snagit and copied into a JPG file. The JPG file was then copied into Microsoft Power Point and then the pictures were chronologically sorted. Each individual activity was blown up, and the items Mr. Smith-Perez used were identified for scrutiny and measurement. This investigator went to Home Depot in Alhambra and analyzed, weighed, and measured each item with a JTech force gauge. The JTech force gauge was calibrated to 50lbs prior to use. The micro-sampling of 30 slides from the sub-rosa video tapes, depicting normal activities Mr. Smith-Perez performed voluntarily over the course of hours, days, weeks, months, and years, are analyzed below.

The results of that analysis are listed below:

Slide From Tape #: Date: Activity:_______________________________________

08/07/2003-9:31.47 am Mr. Smith-Perez is using the right hand in an unrestricted fashion to utilize his truck keys to open the truck door, start the ignition, and turn the steering wheel to maneuver the vehicle out of the drive-way to a location.

Impression: Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities bilaterally, without restriction, Mr. Smith-Perez is clean, well groomed, dresses himself, and performs lift strength, range of motion, and MET level, consistent with the Dictionary of Titles (DOT)- Physical Demand Level (PDL) of Light Work¹.

08/07/2003-9:57.32 am Mr. Smith-Perez is observed using his right hand and arm in an unrestricted motion to hold drinks, eat food, and walk in an unrestricted manner.

Impression: Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities bilaterally, without restriction. Mr. Smith-Perez is clean well groomed, dresses himself, and performs lift strength, range of motion, and MET level, consistent DOT-PDL of Light Work¹.

08/08/2003-9:35.15 am Mr. Smith-Perez exits his dwelling and approaches his vehicle, displaying full range of motion of his right upper extremity, inserts his truck key into his truck door locks, flexes his wrist, turns the key, and opens the door. He grabs the steering wheel with his right arm, enters his vehicle subsequently scooting across the seat. He drives off in the vehicle flexing and extending and rotating his upper extremities bilaterally. He is able to sit unrestricted in a flexed position and rotate his head right and left within normal ranges of motion to look for obstacles before pulling his vehicle onto the street.

Impression: Mr. Smith-Perez is able to walk, move, utilize fine motor control in regards to his upper extremities and lower extremities bilaterally, without restriction, to enter/exit, with hands and arms equally rotating his cervical spine, arms and wrists to pilot his vehicle for extended periods of time without obvious distress. Mr. Smith-Perez is clean well groomed, dresses himself and performs lift strength, range of motion, and MET level consistent DOT-PDL of Light Work¹.

08/08/2003-11:07.29 am Mr. Smith-Perez returns from his trip in his vehicle displaying full range of motion of his right upper extremity. He drives off in the vehicle flexing, extending, and rotating his upper extremities bilaterally. He is able to sit unrestricted in a flexed position and rotate his head right and left within normal ranges of motion to look for obstacles before parking his vehicle on the street.

Impression: Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities and lower extremities bilaterally, without restriction, to enter/exit with hands and arms equally rotating his cervical spine, arms, and wrists to pilot his vehicle for extended periods of time without obvious distress. Mr. Smith-Perez is clean, well groomed, dresses himself, and performs lift strength, range of motion, and MET Level, consistent DOT-PDL of Light Work¹.

08/087/2003-11:23.42 am Mr. Smith-Perez picks up two 8 lb. plastic trash cans with his left hand while holding mail in his right hand. He displays normal range of motion, void of antalgia, pain response hyper-sensitivity of the right hand with normal grip and range of motion of the right hand. He is able to walk in brisk fashion up the driveway of his home while holding the trash cans. Mr. Smith-Perez lifts two trash cans weighing 16 lbs recreating NIOSH waist lift and carry. This weight-load force on the low back, left shoulder, arm, and hand is calculated by 16 lbs (2 trash cans) x 10 inches (approximate reach) = 160 in-lbs. This puts bilateral or cross over pressure on the right upper extremity and low back even though the cans are lifted on the left at about 1/3 the total weight. The total pressure on the entire kinetic chain is 160 in-lbs + 160 in-lbs = 320 in-lbs⁵ every time the cans are lifted and carried. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

Impression: Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities bilaterally, without restriction, Mr. Smith-Perez is clean well groomed, dresses himself, and performs lift strength, range of motion, and MET level, consistent with DOT-PDL of Light Work¹.

08/08/2003-11:24.03- am Mr. Smith-Perez moments after placing the trash cans at the end of the driveway, walks up a step, reaches into his pocket with his right hand removes his house keys, inserts the keys into the lock, turns the lock, opens the door, and enters the dwelling. While entering the dwelling Mr. Smith-Perez waits inside the dwelling for several minutes. Mr. Smith-Perez does not at anytime display hypersensitivity, antalgia or any other restriction of the right limb, low back or any other body part.

Impression: Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities bilaterally, without restriction. Mr. Smith-Perez is clean well groomed as well as dresses himself and performs activities i.e. lift strength, range of motion and MET Level consistent with DOT-PDL of Light Work¹.

08/08/2003 11:24.36am Mr. Smith-Perez is seen exiting his dwelling and sees the surveillance crew video taping his movements stationed in front of his dwelling. Mr. Smith-Perez exits the house with a slight smile on his face and takes on an antalgic posture in regards to his right hand. He holds his right arm at a fixed 20° angle with his right hand in a ‘claw’ like manner. He displays a limp type gate and only utilizes his left hand and arm with the right arm fixed to let his dog out of the pen.

Impression: Mr. Smith-Perez takes on an antalgic posture, in regards to his right arm to perform duties following his observation of the surveillance team. Mr. Smith-Perez’s attempt to display antalgic posture is opposite of his normal posture moments earlier when not aware of the presence of the surveillance team. Mr. Smith-Perez displays movement that is classic “faking bad”⁶ behavior for secondary gain. Mr. Smith-Perez’s activities, regardless of the behavior he displays performs range of motion, lift strength and MET level consistent with DOT-PDL of Light Work¹.

08/08/2003 11:24.47 am Mr. Smith-Perez walks down two steps to the location of the remaining 8+ lb trash can, picking it up while holding the right arm at a fixed 20° angle with his right hand in a ‘claw’ like manner. He does not bend at the waist nor move his arms as before to pick up the trash can. At one point he drops the trash can and performs the same postures to take the trash can back to the end of the driveway and at one point smiles at the surveillance team. r. Smith-Perez lifts two trash cans weighing 16 lbs recreating NIOSH waist lift¹ and carry. This weight-load force on the low back, left shoulder, arm, and hand is calculated by 8 lbs (1 trash can) x 10 inches (approximate reach) = 10 in-lbs⁵. This puts bilateral or cross over pressure on the right upper extremity and low back even though the cans are lifted on the left at about 1/3 the total weight. The total pressure on the entire kinetic chain is 80in-lbs + 80 in-lbs = 160 in-lbs⁵every time the can is lifted and carried. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

Impression: Mr. Smith-Perez clearly displays a different behavior for the camera than without. This is classic “Faking Bad”,⁶or simply put malingering and fraud behavior, for secondary gain. Mr. Smith-Perez’s activities regardless of the behavior he displays performs range of motion, lift strength and MET level consistent with DOT-PDL of Light Work¹.

08/08/2003 11:27.41 am Mr. Smith-Perez standing on his front lawn picks up and turns the water hose on to water his plants. A younger male approached Mr. Smith-Perez and hands him an 8 ½ x 11 groups of papers. The young male attempts to hand the papers to Mr. Smith-Perez, and when Mr. Smith-Perez does not change the angle of his arm or reach for the papers he looks confused. The young man and Mr. Smith-Perez exchanges words and the young man places the papers in Mr. Smith-Perez’s right hand.

Impression: Mr. Smith-Perez clearly displays a different behavior for the camera than without. This is classic “Faking Bad”,⁶or simply put malingering and fraud behavior for secondary gain. Mr. Smith-Perez activities regardless of the behavior he performs range of motion, lift strength consistent, and MET level with the DOT-PDL of Light Work¹.

10. 08/08/2003-11:27.46 am Mr. Smith-Perez glances at the surveillance team and again without changing the position to his arm swings his body to pitch the papers onto the porch while still watering the plants. Note: Mr. Smith-Perez must actually use strength to perform this maneuver consistent with his right upper extremity. He must hold the papers securely in his right finger tips, his right arm secured in its flexed position and swing his body around to drop the papers. This is actually more work that it would be to keep his arm flexed and move his shoulder to drop the papers indicative of faking bad”⁶ i.e. malingering and fraud behavior.

Impression: Mr. Smith-Perez clearly displays a different behavior for the camera than without “in forensic instances information that is gathered information gathered post incident time period could be very important. The authors had experience with correctional officers describing “he only acts like this when somebody from the outside is around; the rest of the time he is perfectly alright”⁶ which is evident here”. This is classic malingering and fraud behavior for secondary gain. Mr. Smith-Perez activities regardless of the behavior he displays performs range of motion, lift strength consistent with the DOT-PDL of Light Work².

11. 06/21/2005-11:37.17 am Mr. Smith-Perez is seen arriving at Home Depot with a load of home construction materials that he had loaded in the back of his truck. He unloads the materials onto a cart to return to Home Depot. Mr. Smith-Perez lifts Hardi-Backer weighing 24 lbs recreating NIOSH near lift to overhead lifting¹ on to the cart. This weight-load force on the low back, shoulders, arms, and hands is calculated by 24 lbs (bag weight) x 64 inches (approximate reach) = 1536 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1441.44 lbs of force exerted on the low back, shoulders, arms, and hands. The total pressure on the entire kinetic chain is 1536 in-lbs + 1441.44 in-lbs = 2974.4 in-lbs every time the sheet is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. Impression: Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium to Medium-Heavy Lifting².

12. 06/21/2005-11:37.28 am Mr. Smith-Perez is seen pushing the above describe items on a cart with both hands with equal grip strength to the return desk of Home Depot. The cart unloaded has18 lbs of force to start pushing the cart over a similar surface. With the cart laden with approximate 100lbs of material such as Mr. Smith has loaded on the cart takes 40lbs of force to start the cart and 18lbs of force to sustain the cart in a forward motion. It also takes bilateral coordination to push and guide the cart in a straight line or a designation to a particular location over a large distance as seen in the tape. This took the entire Kinetic Chain to perform this act including MET level and grip strength. Impression: Push/Pull strength is not a NIOSH standard however is used to determine over all PDL and MET level. Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium to Medium – Heavy Lifting².

13. 06/21/2005-12:21.16 pm Mr. Smith-Perez is seen in several tapes over an approximate of 90+ minutes at Home Depot loading and unloading numerous items of home remolding items such as 5 gallon buckets of primer weight 68lbs into the back of his truck. Mr. Smith-Perez is seen picking up several packages of 68lb buckets of plaster lifting them according to NIOSH knee lift position to above the waist over the side of his vehicle into the bed of his truck. Additionally, the weight load force on the low back is calculated by 68 lbs (bag weight) x 56 inches (approximate reach) = 3808 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1441.44 lbs of force exerted on the low back. The total pressure on the low back lifting the bags 3808 in-lbs + 1441.44 in-lbs = 5259.44 in-lbs every time a bucket is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. This position is equal to and involves NIOSH Knee Lift, to NIOSH High Near Lift¹ consistent with heavy lifting. Impression: Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium to Medium-Heavy Lifting².

14. 06/21/2005-12:35.42 am Mr. Smith-Perez is seen in several tapes over an approximate of 90+ minutes at Home Depot loading and unloading numerous items of home remolding items such as 5 gallon buckets of primer and wood and in this picture 50lb bags of cement. Mr. Smith-Perez is seen picking up several packages of 50lb bags of cement and 68lb buckets of plaster lifting them according to NIOSH knee lift¹ position to above the waist over the side of his vehicle into the bed of his truck. Additionally, the weight load force on the low back is calculated by 50 lbs (bag weight) x 56 inches (approximate reach) = 2800 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1441.44 lbs of force exerted on the low back. The total pressure on the low back lifting the bags 2800 in-lbs + 1441.44 in-lbs = 4241.44 in-lbs every time a bag is lifted and more when the buckets of plaster. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. This position is equal to and involves NIOSH Knee Lift, to NIOSH High Near Lift consistent with heavy lifting. Impression: Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium to Medium-Heavy Lifting.

08/21/2003-12:30.40 am Mr. Smith-Perez is standing next to his vehicle waiting in line for the employees of Home Depot to utilize a fork lift to place a pallet of tile in the bed of his truck.

Impression: Mr. Smith-Perez does not show signs of distress, swelling, antalgic posture, mottling, swelling or hypersensitivity consistent with RSD of the right upper extremity.

08/21/2003-12:30.40 am Mr. Smith-Perez takes it upon himself unsolicited, to help the Home Depot employee pull with significant strength to open a stuck tail gate. As seen on the sub-rosa video, the tailgate is significantly stuck that it takes two normal adult males 15+ seconds of pulling at a rate of 134 pounds of pull strength to open the tail gate.

Impression: Mr. Smith-Perez displays a lack of pain posture, swelling, antalgia, mottling of the right upper extremity while push/pulling posture which would be consistent with RSD of the right upper extremity. Although push/pull is not part of the NIOSH protocol it is used to access strength and stability of all areas of the body. Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium to Medium-Heavy Lifting¹.

06/21/2005-15:03.50 Mr. Smith-Perez as walking from his vehicle to the front door of his dwelling uses his right hand to scratch his left shoulder.

Impression: This movement indicates Mr. Smith-Perez has full unrestricted motion of the right shoulder. This movement is actually an orthopedic sign and test called apprehension. Mr. Smith-Perez utilizes and has a voluntary orthopedic sign and test of the right shoulder. Mr. Smith-Perez’s arm is void of swelling, ‘claw hand’, mottling and any other sign of RSD. Mr. Smith-Perez displays a fully functional right shoulder, arm, and hand.

06/21/2005-18:56.51 pm Mr. Smith-Perez leaves his residence holding a box of unknown weight in right hand.

06/21/2005-15:03.50 pm Mr. Smith-Perez leaves his residence holding items in both hands simultaneously to dump in the trash. Mr. Smith-Perez stands at the trash can after placing the items in the trash can, picking through the trash with both and most importantly the right had.

6/22/2005-12:37.21 pm Mr. Smith-Perez opened the tailgate of his truck and gets into the bed of the truck using shoulders, arms, and hands. Mr. Smith-Perez is seen bending at the waist, lifts several boxes weighting approximately 40lbs each are placed. Mr. Smith-Perez lifts the 40lb boxes with both at floor-level to waist-level holding the box with his right hand and stabilizing them with his left. He lowers the box back to floor-level from waist-level using his shoulder, hands and arms with full unrestricted range of motion. This movement is equivalent to the NIOSH floor to waist lift @ 40lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 40 lbs (bag weight) x 36 inches (approximate reach) = 1440 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting the bags 1440 in-lbs + 1435.2 in-lbs = 2875.2 in-lbs every time a box of tile is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. Impression: This movement indicates Mr. Smith-Perez has full unrestricted motion of the right shoulder. Mr. Smith-Perez’s arm is void of swelling, ‘claw hand’, mottling, and any other sign of RSD. Mr. Smith-Perez displays a fully functional right shoulder, arm, and hand. Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium Lifting.

06/22/2005-12:37.21 pm Mr. Smith-Perez in the bed of his truck walks to the back of the bed where several boxes weighting approximately 40lbs each are placed. Mr. Smith-Perez lifts the 40lb boxes with both at floor-level to waist-level holding the box with his right hand and stabilizing them with his left. He lowers the box back to floor-level from waist-level using his shoulder, hands, and arms with full unrestricted range of motion. This movement is equivalent to the NIOSH floor to waist lift @ 40lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 40 lbs (bag weight) x 36 inches (approximate reach) = 1440 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting the bags 1440 in-lbs + 1435.2 in-lbs = 2875.2 in-lbs every time a box of tile is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

Impression: This movement indicates Mr. Smith-Perez has full unrestricted motion of the right shoulder. Mr. Smith-Perez’s arm is void of swelling, ‘claw hand’, mottling and any other sign of RSD. Mr. Smith-Perez displays a fully functional right shoulder, arm, and hand. Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium Lifting.

06/22/2005-12:46.50 pm Mr. Smith-Perez carries the boxes of tiles weighing 40lbs, from the tailgate of his truck and walks to his back yard approximately 50+ feet away³. Mr. Smith-Perez lifts the 40lb boxes with both hands at waist-level, to carry the box he holds the box with his right hand and stabilizes them with his left. He lowers the box back to floor-level from waist-level using his shoulders, hands, and arms with full unrestricted range of motion. This movement is equivalent to the NIOSH floor-to-waist lift @ 40lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 40 lbs (bag weight) x 36 inches (approximate reach) = 1440 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting the bags 1440 in-lbs + 1435.2 in-lbs = 2875.2² in-lbs every time a box of tile is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

Impression: This movement indicates Mr. Smith-Perez has full unrestricted motion of the right shoulder. Mr. Smith-Perez’s arm is void of swelling, ‘claw hand’ deformity, mottling, and any other sign of RSD. Mr. Smith-Perez displays a fully functional right shoulder, arm, and hand. Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium Lifting¹.

06/22/2005-12:37.21 pm Mr. Smith-Perez wearing a low back brace, carries each box from waist-level to the ground, using his shoulder, hands, and arms with full unrestricted range of motion. This movement is equivalent to the NIOSH floor to waist lift³ @ 40lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 40 lbs (bag weight) x 36 inches (approximate reach) = 1440 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity)² = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting the bags 1440 in-lbs + 1435.2 in-lbs = 2875.2² in-lbs every time a box of tile is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. Impression: This movement indicates Mr. Smith-Perez has full unrestricted motion of the right shoulder. Mr. Smith-Perez’s arm is void of swelling, ‘claw hand’, mottling and any other sign of RSD. Mr. Smith-Perez displays a fully functional right shoulder, arm, and hand. Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium Lifting¹.

24. 06/22/2005-12:59.53 pm Mr. Smith-Perez is seen carrying 50lb bags of cement³. Mr. Smith-Perez is seen picking up several packages of 50lb bags of cement lifting them according to NIOSH knee lift¹ position to above the waist and place them on the ground without breaking the paper packaging. Additionally, the weight load force on the low back is calculated by 50 lbs (bag weight) x 56 inches (approximate reach) = 2800 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity)² = 1441.44 lbs of force exerted on the low back. The total pressure on the low back lifting the bags 2800 in-lbs + 1441.44 in-lbs = 4241.44 in-lbs² every time a bag is lifted and more when the buckets of plaster. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. This position is equal to and involves NIOSH Knee Lift, to NIOSH High Near Lift¹ consistent with heavy lifting². Impression: Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium to Medium-Heavy Lifting¹.

06/23/2005-13:46.47 pm Mr. Smith-Perez is seen using a tile cutting saw to cut the individual tiles. Mr. Smith-Perez has opened the boxes and lifted each individual tile onto the saw. He uses his right had to steady the tile while the left hand cuts the tile. Impression: Mr. Smith-Perez must use sufficient grip strength to hold the tile and again significant cutting pressure. Mr. Smith-Perez works for 2+ days straight on this project with enough strength, normal range of motion, and MET level equal to DOT PDL Medium-Heavy work¹.

07/27/2005-10:24.23 am Mr. Smith-Perez is seen lifting Hardi-Backer weighting 24lbs. from floor to overhead and subsequently putting it into a dumpster 48 inches off of the ground. Mr. Smith-Perez is using shoulders, arms, and hands as well as stability to grasp the material. Impression: Mr. Smith-Perez must use sufficient grip strength to hold the 24lb board. Mr. Smith-Perez utilizes enough strength, normal range of motion, grip strength, and MET level equal to DOT PDL Medium work¹.

06/23/2005-09:35.57 am Mr. Smith-Perez is observed using his right hand and fine motor control to place his truck key into the truck door, turn the key and open the door, enter the truck and drive away. Impression: The right arm is held at 45° and utilizing enough grip strength consistent to turn the key and open the door and eventually drives away. Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities bilaterally, without restriction, Mr. Smith-Perez is clean, well groomed, dresses himself, and performs lift strength, range of motion, and MET level, consistent with the Dictionary of Titles (DOT)- Physical Demand Level (PDL) of Light Work¹

07/27/2005-08:53.05 am Mr. Smith-Perez is observed walking across a street holding a large cup of soda weighing approximately 1 lb with his right hand sipping the drink from a straw, while holding a bag of food in the left. Impression: The right arm is held at 50° and utilizing enough grip strength consistent to hold the cup without dropping it. Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities bilaterally, without restriction, Mr. Smith-Perez is clean, well groomed, dresses himself, and performs lift strength, range of motion, and MET level, consistent with the Dictionary of Titles (DOT)- Physical Demand Level (PDL) of Light Work¹.

07/11/2006-11:50.10 am Mr. Smith-Perez after lifting his child out of the rear car seat, is seen walking down the street holding his child who weighs approximately 30lbs with his right arm and hand. Impression: These movements are equivalent to the NIOSH waist lift and carry¹ @ 30lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 30 lbs (child weight) x 36 inches (approximate reach) = 1080 in-lbs². Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs)² x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting² the child 1080 in-lbs + 1435.2 in-lbs = 2515.2 in-lbs every time he lifts his child. Also this is a constant load of 30 lbs on his right arm and hand over a sustained period of time. Of note an injured person would not put his child in danger if he was truly injured. This is an innate protective manner for which Mr. Smith-Perez has no decision. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

07/11/2006-11:50.10 am Mr. Smith-Perez after lifting his child out of the rear car seat, walks down the street holding his child that weighs approximately 30lbs with his right arm and hand, shifts the baby to his left arm and opens a door that takes approximately 18 lbs of grip strength to open. Impression: These movements are equivalent to the NIOSH³waist lift and carry @ 30lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 30 lbs (child weight) x 36 inches (approximate reach) = 1080 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs)² x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back². The total pressure on the low back lifting the child 1080 in-lbs + 1435.2 in-lbs = 2515.2² in-lbs every time he lifts his child. Also this is a constant load of 30 lbs on his right arm and hand over a sustained period of time. This force is spread out through the hands, arms shoulder and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

DYNAMIC LIFT TESTING

Mr. Smith-Perez’s safe lifting capacity was calculated to be sufficient for Physical Demand Levels ¹from the measured capacities Mr. Smith-Perez lifted, on several occasions, over the course of years. Mr. Smith-Perez, of his own volition, lifted weighted items from less than 1 pound upwards to between 50 and 68 pounds. Mr. Smith-Perez worked within his safe comfort level during this examination, which was extrapolated from watching several incidents on film of various lifting postures of multiple items. Lifting is measured and compared to a specific standard detail by a job description, or to the traditional work heights associated with the Dictionary of Occupational Titles (DOT)¹.

Occasional Lift	Ability	PDL
Floor	68lb	Medium-Heavy
Knee	68 lb	Medium-Heavy
Waist	68 lb	Medium-Heavy
Shoulder	50 lb	Medium
Overhead	24 lb	Medium
Carry	50-68 lb	Medium-Heavy

WORK ACTIVITIES

Work Activity Testing is a subject’s ability to perform dynamic non-material handling activities. Activities are assessed either to the DOT standards, or to work-task specific movement patterns. Tool use or the ability to involve or negotiate the environment is also typically evaluated when specific activities are assessed. This was also performed in the evaluation of Mr. Smith-Perez. He was able to walk, squat, bend, twist, turn, and perform all other postures associated with medium level work of a tile layer far exceeding his original job description.

Activity	Ability
Squat	Frequent
Reach-up	Frequent
Reach-out	Frequent
Bend	Frequent

DISCUSSION

With the information derived from documentation pertaining to statements of the physicians performing the Agreed Medical Exams (AME), physical examinations performed by the patient’s personal physicians, rehabilitation reports, videotapes, and statements made by Mr. Smith-Perez, along with this examiner’s personal measurement of construction materials observed in the sub-rosa video tapes, we can make the following conclusions.

There is no question the man depicted in the sub-rosa video tapes is Mr. Smith-Perez, as he was required to view them by Dr. Preston, and the patient admitted that the person in all the tapes was in fact himself. It was evident, by all available data, that Mr. Smith-Perez is and was able to sit, walk, stand, grip, and push/pull without complaint, antalgia, or any other objective signs you would expect with an injury or diagnosis of RSD. Mr. Smith-Perez is viewed bending, twisting, and lifting while holding numerous boxes and items ranging from papers, soft drinks, and fast food to buckets of plaster weighing in excess of 68 pounds. This is noted beginning in August 2003, June 2005, through July 2006 to present. Mr. Smith-Perez is able to bend unsupported, lift, carry these items, push/pull, bend/stoop, crawl, and place these items lightly on the ground. The calculated stress on the low back of a person Mr. Smith-Perez’s height and weight bending forward utilizing a NIOSH³ standard was calculated to be in excess of 500 pounds of compressive force along with shear force being within normal limits. With this amount of force exerted on his low back, shoulders, arms, and hands we would expect to see guarding and/or antalgic type of postures or at least an increase in objective findings. In all cases over the years, there are no discernable objective changes other than that of a normal male. Additionally, with a diagnosis of RSD and the stated symptoms the patient portrays in the physicians’ offices we would expect to see one example of swelling, mottling, and/or any other signs associated with his right hand RSD⁴.

In this case, we saw no evidence of RSD until Mr. Smith-Perez had knowledge of the surveillance team, (which by the way is one of the rare instances we see this behavior) and during times of examination by medical personal at which time he takes on this “claw” like position with his hand and locks his elbow at a 30° angle. Mr. Smith-Perez clearly displays a different behavior for the camera than without. “In forensic instances information that is gathered from the post incident time period could be very important. The authors had experience with correctional officers describing “he only acts like this when somebody from the outside is around; the rest of the time he is perfectly alright” which is evident here. This is classic “Fake Bad” behaviorcommonly known as malingering, fraud for secondary gain.

In cases such as these, we look for consistency. People with a significant pain or injury will be consistent and do not attempt to deceive the physicians. “Deception manifests itself in the way the deceiver attempts to fool others within a context. Ground truth always represents itself as an interaction with the actor, (Mr. Smith-Perez) the acted upon (Doctors, Insurance Company Personnel, Surveillance Team and Attorney’s) and the context (the injury): deception represents a departure from what actually transpired, in this three entity interaction. Unfortunately, for the deceiver (Mr. Smith-Perez) deliberate deception takes energy, thought, and often times reveals inconsistency”⁵. Simply put you would find supporting evidence of an injury, true manic episodes, depression and all other signs described by the treating physicians, and Dr. Levine in his AME at any time he was observed. Injured persons sometimes perform personal acts of lifting, such as groceries etc. on an occasional basis consistent with activities of daily living (ADL) to get through life this is the “one good day scenario” described by Dr. Levine. In my experience and sited in numerous articles, this is normal and expected behavior. However, when patients have significant injury or disability they, as a rule, do not engage in long projects that require heavy lifting, they do not go out of their way to help another individual in an overexertion lifting venture, or place themselves in a posture that could cause an increase in pain over hours, days, and months as displayed by Mr. Smith-Perez. In essence they, and right fully so, are selfish when it comes to their actions. Additionally, the episode describe above, has been described by Dr. Levine as a “Manic Episode,” to the contrary this is “Fake Bad” behavior associated with deception”⁵.

In the supporting sub-rosa video tapes, identified by Mr. Smith-Perez, he is seen to be void of symptoms consistent with RSD, “claw hand” or any antalgia. Mr. Smith-Perez premeditates his deceptionas he is seen going to tile shops months prior to the home remodeling project, purchasing appropriate materials, loading/unloading the materials, exerting himself over the course of hours, days, and weeks performing this project. If in fact, Mr. Smith-Perez was not exhibiting fraud behavior or deception, and if he was truly afflicted with RSD, Manic Depression etc. the severity of the medium level work and light-heavy work would have exacerbated his symptoms within minutes, if not an hour, and made him unable to continue work, especially over the course of obvious weeks that it took to perform this project. This is irregardless of the drugs he is taking, in fact the more pain the work caused the more drugs he would need to take until he was so debilitated he could not work., this is of course contrary to what we see on the video tapes, as he is able to perform complicated fine motor tasks without any hindrance. Additionally, Mr. Smith-Perez is, according to video tapes, quite knowledgeable on how to lay tile and perform the tasks significant to this type of home remolding, and subsequently knew what level of physical demand it will take to complete this project. As seen in the videos, it is apparent that Mr. Smith-Perez knows how much tile to buy, the correct materials and tools needed to perform the job including the type of saw to cut the tile. Mr. Smith-Perez even wears, what appears to be a newly purchased low back brace, to protect his back during heavy lifting. Mr. Smith-Perez is observed measuring, marking, and subsequently cutting the tile using both hands equally. In another instance Mr. Smith-Perez, unsolicited helps a stranger open a stuck truck tailgate. In the sub-rosa video we observe that it takes both men to open the tailgate and the amount of strength produced by a man his size far exceeds 150 lbs of pull strength on the low back, mid back, shoulders, arms, and hands as well as enough grip strength bilaterally to hold this pressure without falling to the ground. It has been my extensive experience, that when a patient displays different weaker posture strength in an examiner’s office, and manufactures symptoms to elude correct diagnosis this is “called “Faking Bad” behavior⁵ and is perpetrating a deception and/or fraud on those associated with this case. “As a rule fakers choose target symptoms in accordance with the direction of their vested interests.^.People choose what they think will work to accomplish their goals. Much knowledge of psychological and medical conditions is published in the media^5”.Additionally Mr. Smith-Perez’s sister, whom he has a relationship with, is a physician who referred him to subsequent pain management physician related in this case^6-7.

As discussed, we were able to evaluate Mr. Smith-Perez over a significant amount of time as well as analyze the video tapes provided. Over the course of years observed, since the time of the accident, Mr. Smith-Perez admits and is shown performing the following activities:

Homemaker/housewife is a medium duty job task 301.687-010¹,
Student business services is a light duty job task 189.157-010¹,
Tile layer is a medium duty job task 861.381-054¹,
Plasterer is a medium duty job task 842.361-018¹.

In Mr. Smith-Perez’s case, there were no viewed or evidence muscle spasms, skin mottling, color change, hypersensitivity, instability, lack of grip strength, guarding and/or antalgia, wincing, or grimacing associated with his movements over the extensive period of time he was evaluated. Mr. Smith-Perez is able to perform fine motor movements consistent with the right hand. This is observed in the sub-rosa video, as well as the patient’s own admission consistent with washing dishes. Dr. Preston also observed the patient write with his right hand and answer the MMPI which has approximately 550 questions to it. This lack of strength loss, guarding, range of motion indicates that there is no biomechanical instability and thus no active injury. Additionally, the current strength Mr. Smith-Perez exhibits is consistent and far exceeds his previous job description of medium work consistent with bakery-delivery person. Since there is no active injury, and Mr. Smith –Perez’s strength is consistent with his previous job description I am in agreement with Thomas Preston, MD PHD and Alexander Angerman, MD that Mr. Smith-Perez has reached a permanent and stationary status as of June 21, 2006. What is most interesting is Mr. Smith-Perez was improving from the non-witnessed slip and fall injury of June 06, 2000. In March 21, 2001 as indicated by Dr. Angerman, Mr. Smith-Perez was involved in an automobile accident which resulted in increased symptoms according to records of the treating physicians. This is a crucial statement that Dr. Angerman makes in his AME report, as it appears the patient was improving and nearing the end of treatment for his work-related injury and then immediately following the non-work related automobile accident of 2001 his symptoms increase on record from that point on. This is documented by his treating physicians and Dr. Angerman. A majority and also, the primary etiology of referral pain to the upper extremities is cervicogenic.⁷. In this case, Mr. Smith-Perez has suffered multiple cervical spine traumas due to automobile accidents in 1999 and again 2001. I agree with Dr. Angerman that apportionment definitely needs to be investigated in relationship to the 2001 automobile related injury.

Following evaluation of the sub-rosa video tapes, Mr. Smith-Perez exhibits strength and a MET level consistent with medium work on a constant basis and medium-heavy work on an occasional basis, according to DOT PDL standards¹. Mr. Smith-Perez is able to exert himself and recover without any evidence of positive objective findings. He performs them willingly and consistently over days, months, and years on personal projects. In this case, Mr. Smith-Perez can return to work as he himself has requested. Additionally, for a man that claims to be so depressed and fixated on pain management programs, it should be noted that he has coped quite well to this alleged injury. He has gotten married, produced a son, bought a rental home, remodeled it, purchased a new car, gone to school and received his Bachelors degree. He is continuing his studies for an MBA and has saved enough money to start his own business in international business. It is obvious that Mr. Smith-Perez has rehabilitated himself and is not in need of vocational rehabilitation. Mr. Smith-Perez performs personal projects consistent with Medium-Heavy Work¹ voluntarily without self imposed restrictions.

Since these acts are planned, and executed on numerous occasions extending days, weeks, and months over years I do not understand the need for additional pain management, especially out of state. All examined information depicts several biomechanical attributes. Mr. Smith-Perez is able to walk, bend, stoop, lift, grasp, push, pull, and carry items without difficulty or antalgic (pain) posture, wincing, grimacing, or any other expected sign of pain and/or restriction due to hypersensitivity. Mr. Smith-Perez is able to interact with others on a daily basis, stand erect holding numerous items, and speak without inflection or obvious pain.

The forces from his voluntary hobby, (the home remolding and construction work) he has performed would not only have exacerbated his injuries, but most likely would have resulted in a more severe injury and disability. If Mr. Smith-Perez was physically impaired, or the injury was ‘active’, the forces enacted on his body during these activities are so excessive that they would exacerbate and/or flare-up an active injury, especially in the lumbar spine and especially the right had, if the individual were in fact impaired. Of important note, Mr. Smith-Perez an alleged injured man, with a right arm that is so sensitive and painful that he will not allow a physician to examine, is able to lift his (approximate 30lbs) child, out of a car seat and carry his child down the street with the effected arm placing his child in danger if truly injured. This would not happen if he was injured, weak and disabled as the innate paternal instinct to protect ones child takes over. Mr. Smith-Perez also drives under the influence over the course of years endangering himself, wife, and child. In my vast experience and training in these matters, for an allegedly impaired individual he appears to be very well coordinated. Reviewing the video tapes from 2003 through 2006 and the records showing the vast amounts of prescription medications Mr. Smith-Perez is ingesting, he is found to be well coordinated, drives without weaving, engages people, is able to get his ideas and points across to other individuals, carries, and lifts without the hint of being impaired either by drugs or physical impairment.

Mr. Smith-Perez has misrepresented his symptoms to all physicians, and has a significant credibility problem to say the least⁵. I find it hard to believe his stated need for additional medication to treat symptoms and restrictions that do not appear to exist. If I would have had the chance to evaluate the August 2003 video tapes in 2003, it would have been my conclusion that Mr. Smith-Perez could have returned to work full time, without restriction in Light Work consistent with DOT standards. In the sub-rosa video tapes there is no evidence of restriction, impairment, skin mottling, loss of range of motion, or any other objective factors consistent with RSD. “In regards to RSD or Complex Regional Pain Syndrome (CRPS) and this case–“The test results for this disorder are highly variable and the accuracy very low. If a disorder is misdiagnosed then how can the physician rely on the response to treatment as a way of establishing a diagnosis?”⁴ In this case the physicians made the diagnosis of RSD by default. All objective signs and tests were negative, all treatment methods failed including the Sympathectomy, and the diagnosis was based on the patients requests for prescription medication and unsubstantiated complaints of pain. This again goes to the “deception”⁵ and “faking bad”⁵ behaviors the patient has exhibited along with the physicians’ evidence of misdiagnosis for secondary gain^9-10.

Mr. Smith-Perez, in my opinion, utilized the workers’ compensation to his own personal gain, and to ‘fill his drug habit’ as indicated by Dr. Preston. I disagree with Seymour Levine, MD’s statements that the patient is to be given “good will” and disregard the sub-rosa video tapes in regards to his symptomology and diagnosis. Mr. Smith-Perez has gone to great lengths to mislead the physicians and others associated with this case and therefore, cannot be trusted. Additionally, it was revealed that Mr. Smith-Perez’s sister, a physician^6-7, following the 30 day employer controlled treatment restriction, refers her brother to the Chiropractor Raymond Phillips who then subsequently refers him to his current attorney. Mr. Smith-Perez is then referred to Dr. Philip Sobol. The patient is then referred to pain management specialist Kenneth Paresa, MD by Mr. Smith-Perez’s sister and Dr. Phillip Sobol, who through my experience has a financial relationship with Michael Drobots’ pharmaceutical repackaging network as does the pain management group that Mr. Smith-Perez was referred. Additionally, it is my experience, the chiropractor has a significant referral interrelationship with Dr. Sobol. I find it convenient that Mr. Smith-Perez is referred by his sister to one of the largest applicant treatment facilities in the state.

The purpose of an AME is to objectively look at the data, take an impartial unbiased look at the patient’s symtomotology and ability to return to work, as well as what if any additional treatment is needed. This calls into question Dr. Levine’s complete lack of acceptance of the sub-rosa video tapes, the other objective evidence indicating Mr. Smith-Perez is permanent and stationary, and that he can return to a job task unrestricted, consistent with a DOT level of medium to medium-heavy work¹ exceeding his previous job description of bakery-delivery man. I urge Dr. Levine to change his opinion once he reviews the biomechanical loads the patient voluntarily subjected himself too over the days, weeks, months and years he has been off work performing a variety of projects.

The purpose of an AME is to objectively look at the data, take an impartial unbiased look at the patient’s symtomotology and ability to return to work, as well as what if any additional treatment is needed. This calls into question Dr. Levine’s complete lack of acceptance of the sub-rosa video tapes, the other objective evidence indicating Mr. Smith-Perez is permanent and stationary, and that he can return to a job task unrestricted, consistent with a DOT level of medium to medium-heavy work¹ exceeding his previous job description of bakery-delivery man. Possibly Dr. Levine will change his opinion once he reviews the biomechanical loads the patient voluntarily subjected himself to over the days, weeks, months, and years he has been off work performing a variety of projects.

Mr. Smith-Perez was referred to Dr. Davidson, MD Psychiatrist, by the patients other treating Chiropractor Mehrad Ahablou as in seen in Dr. Levine’s AME.10/08/2005. Mr. Smith-Perez was referred to Dr. Mehrad Ahrablou the Chiropractor by his sister as stated above. From the onset Mr. Smith-Perez was seen three times a week for psychotherapy and has been the largest proponent for him writing letters noting his somatic and psychological symptoms and the need for multiple medications, home duty nurse, additional therapies, etc and that he needed to be in a better place psychologically before going ahead with the placement of a spinal. It has been my extensive experience in these matters, when a physician disregards objective data to support patient’s claims of unsupported pain and disability, the physician has motives of secondary gain or has taken on a advocate rather than doctor relationship with the patient. Kirk and Kutchins (1988) concluded “clinicians use a more serious diagnosis than is warranted by the patient’s clinical symptoms. Charges made for services not provided, money collected for services, fictitious patients, or patients encouraged to stay in treatment longer than necessary are examples of intentional inaccuracy.” These authors “acknowledged that the possibility that misdiagnosis occurs to benefit clients to enable them to receive services that they would not normally be able to afford otherwise-but they argued that self interest is often the reason for misdiagnosis”. This calls into question Dr. Davidson’s motives in regards to this case, and definitely requires investigation from official sources.

Mr. Smith-Perez is portraying classic “fraud” behavior in regards to this case, prolonging his disability and inhibiting his return to work full-time. Mr. Smith-Perez is capable of working full-time, unrestricted, and is capable of performing his previous assigned job tasks, and needs no further treatment.

Reliability of Effort

All decisions made by the treating medical personnel were based on misleading statements, and inaccurate subjective data provided by Mr. Smith-Perez. Additionally, the treating physicians and Dr. Levine an AME, completely ignored Mr. Smith-Perez’s voluntary “construction” efforts in any of their decisions which completely baffles me, unless there were alternative reasons or motivations I am not aware. In addition, Mr. Smith-Perez stated that his goal was “to return to work.” Specifically, he did not return to work but continued to misrepresent the facts regarding his outside activities, severity of his injuries, and ability to return to work, to all medical personnel he encountered in what appears to be a need to procure drugs and secondary gain.

Based on the above results, the overall level of effort as deemed by this examiner who is an expert in this area, and the unsolicited activities taken from sub-rosa video tapes I have found Mr. Smith-Perez is able to perform work levels consistent with and above his previous job description. Mr. Smith-Perez was able to perform medium-heavy work both physically and cardiovascularly without taking breaks or showing any signs of distress. This further indicates that Mr. Smith-Perez is capable of performing a work load in excess of what he demonstrated during any of the examination processes as related by his physicians.

CONCLUSION

Mr. Smith-Perez has reached a permanent and stationary status as well as maximum medical improvement. According to the Dictionary of Occupational Titles¹, Mr. Smith-Perez performed job tasks as a bakery-delivery person that calculates to light-medium duty work. However, Mr. Smith-Perez was found to be able to perform Medium Work (50 lbs. on an occasional basis)¹ from the floor, from the knee level and from the waist level, and overhead. This corresponds and exceeds the actual job task requirements of his prior employment.

Mr. Smith-Perez has rehabilitated himself past his original job station and received a Bachelors degree; therefore he is not in need of vocational rehabilitation. Mr. Smith-Perez is also not in need of further treatment or pain management programs.

The 2001 automobile accident should be investigated for its apportionment value to this case.

Mr. Smith-Perez-Perez is able to return to work full-time unrestricted.

Sincerely,

_________________________________09/04/2007

Allen S. Miller, DC, DACBSP Date:

(This signature will act as an original for the purposes of this document).

“I have not violated Labor Code Section 139.3 and the contents of this report and bill are true to the best of my knowledge. This statement is made under penalty of perjury”.

Cc: Robert E. Robinson, ESQ.

McDermott & Clawson, LLP

16530 Ventura Blvd, #209

Encino, CA 91436

Enc. Appendix 1 Smith-Perez Slide preview

REFERENCES:

Dictionary of Occupational Titles, U.S. Department of Labor Employment and Training Administration 1991. Volume II Fourth Edition, Revised 1991.
Maynard’s Industrial Engineering Handbook By Harold Bright Maynard, Kjell B. Zandin
United States National Institute for Occupational Safety and Health (NIOSH).

68 lbs (bag weight) x 56 inches (approximate reach) = 3808 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1441.44 lbs of force exerted on the low back. The total pressure on the low back lifting the bags 3808 in-lbs + 1441.44 in-lbs = 5259.44 in-lbs every time a bucket is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. This position is equal to and involves NIOSH Knee Lift, to NIOSH High Near Lift¹ consistent with heavy lifting. Impression: Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium to Medium-Heavy Lifting².

08/21/2003-12:30.40 am Mr. Smith-Perez is standing next to his vehicle waiting in line for the employees of Home Depot to utilize a fork lift to place a pallet of tile in the bed of his truck.

Impression: Mr. Smith-Perez does not show signs of distress, swelling, antalgic posture, mottling, swelling or hypersensitivity consistent with RSD of the right upper extremity.

08/21/2003-12:30.40 am Mr. Smith-Perez takes it upon himself unsolicited, to help the Home Depot employee pull with significant strength to open a stuck tail gate. As seen on the sub-rosa video, the tailgate is significantly stuck that it takes two normal adult males 15+ seconds of pulling at a rate of 134 pounds of pull strength to open the tail gate.

06/21/2005-15:03.50 Mr. Smith-Perez as walking from his vehicle to the front door of his dwelling uses his right hand to scratch his left shoulder.

06/21/2005-18:56.51 pm Mr. Smith-Perez leaves his residence holding a box of unknown weight in right hand.

06/21/2005-15:03.50 pm Mr. Smith-Perez leaves his residence holding items in both hands simultaneously to dump in the trash. Mr. Smith-Perez stands at the trash can after placing the items in the trash can, picking through the trash with both and most importantly the right had.

6/22/2005-12:37.21 pm Mr. Smith-Perez opened the tailgate of his truck and gets into the bed of the truck using shoulders, arms, and hands. Mr. Smith-Perez is seen bending at the waist, lifts several boxes weighting approximately 40lbs each are placed. Mr. Smith-Perez lifts the 40lb boxes with both at floor-level to waist-level holding the box with his right hand and stabilizing them with his left. He lowers the box back to floor-level from waist-level using his shoulder, hands and arms with full unrestricted range of motion. This movement is equivalent to the NIOSH floor to waist lift @ 40lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 40 lbs (bag weight) x 36 inches (approximate reach) = 1440 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting the bags 1440 in-lbs + 1435.2 in-lbs = 2875.2 in-lbs every time a box of tile is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. Impression: This movement indicates Mr. Smith-Perez has full unrestricted motion of the right shoulder. Mr. Smith-Perez’s arm is void of swelling, ‘claw hand’, mottling, and any other sign of RSD. Mr. Smith-Perez displays a fully functional right shoulder, arm, and hand. Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium Lifting.

06/22/2005-12:37.21 pm Mr. Smith-Perez in the bed of his truck walks to the back of the bed where several boxes weighting approximately 40lbs each are placed. Mr. Smith-Perez lifts the 40lb boxes with both at floor-level to waist-level holding the box with his right hand and stabilizing them with his left. He lowers the box back to floor-level from waist-level using his shoulder, hands, and arms with full unrestricted range of motion. This movement is equivalent to the NIOSH floor to waist lift @ 40lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 40 lbs (bag weight) x 36 inches (approximate reach) = 1440 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting the bags 1440 in-lbs + 1435.2 in-lbs = 2875.2 in-lbs every time a box of tile is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

06/22/2005-12:46.50 pm Mr. Smith-Perez carries the boxes of tiles weighing 40lbs, from the tailgate of his truck and walks to his back yard approximately 50+ feet away³. Mr. Smith-Perez lifts the 40lb boxes with both hands at waist-level, to carry the box he holds the box with his right hand and stabilizes them with his left. He lowers the box back to floor-level from waist-level using his shoulders, hands, and arms with full unrestricted range of motion. This movement is equivalent to the NIOSH floor-to-waist lift @ 40lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 40 lbs (bag weight) x 36 inches (approximate reach) = 1440 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting the bags 1440 in-lbs + 1435.2 in-lbs = 2875.2² in-lbs every time a box of tile is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

06/22/2005-12:37.21 pm Mr. Smith-Perez wearing a low back brace, carries each box from waist-level to the ground, using his shoulder, hands, and arms with full unrestricted range of motion. This movement is equivalent to the NIOSH floor to waist lift³ @ 40lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 40 lbs (bag weight) x 36 inches (approximate reach) = 1440 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs) x 10.4 inches (center of gravity)² = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting the bags 1440 in-lbs + 1435.2 in-lbs = 2875.2² in-lbs every time a box of tile is lifted. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads. Impression: This movement indicates Mr. Smith-Perez has full unrestricted motion of the right shoulder. Mr. Smith-Perez’s arm is void of swelling, ‘claw hand’, mottling and any other sign of RSD. Mr. Smith-Perez displays a fully functional right shoulder, arm, and hand. Mr. Smith-Perez displays the bilateral upper extremity strength, grip and pinch strength as well as lower extremity range of motion, low back stability, low back range of motion, Cardiac MET Level and strength consistent with the DOT-PDL of Medium Lifting¹.

06/23/2005-13:46.47 pm Mr. Smith-Perez is seen using a tile cutting saw to cut the individual tiles. Mr. Smith-Perez has opened the boxes and lifted each individual tile onto the saw. He uses his right had to steady the tile while the left hand cuts the tile. Impression: Mr. Smith-Perez must use sufficient grip strength to hold the tile and again significant cutting pressure. Mr. Smith-Perez works for 2+ days straight on this project with enough strength, normal range of motion, and MET level equal to DOT PDL Medium-Heavy work¹.

07/27/2005-10:24.23 am Mr. Smith-Perez is seen lifting Hardi-Backer weighting 24lbs. from floor to overhead and subsequently putting it into a dumpster 48 inches off of the ground. Mr. Smith-Perez is using shoulders, arms, and hands as well as stability to grasp the material. Impression: Mr. Smith-Perez must use sufficient grip strength to hold the 24lb board. Mr. Smith-Perez utilizes enough strength, normal range of motion, grip strength, and MET level equal to DOT PDL Medium work¹.

06/23/2005-09:35.57 am Mr. Smith-Perez is observed using his right hand and fine motor control to place his truck key into the truck door, turn the key and open the door, enter the truck and drive away. Impression: The right arm is held at 45° and utilizing enough grip strength consistent to turn the key and open the door and eventually drives away. Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities bilaterally, without restriction, Mr. Smith-Perez is clean, well groomed, dresses himself, and performs lift strength, range of motion, and MET level, consistent with the Dictionary of Titles (DOT)- Physical Demand Level (PDL) of Light Work¹

07/27/2005-08:53.05 am Mr. Smith-Perez is observed walking across a street holding a large cup of soda weighing approximately 1 lb with his right hand sipping the drink from a straw, while holding a bag of food in the left. Impression: The right arm is held at 50° and utilizing enough grip strength consistent to hold the cup without dropping it. Mr. Smith-Perez is able to walk, move, utilized fine motor control in regards to his upper extremities bilaterally, without restriction, Mr. Smith-Perez is clean, well groomed, dresses himself, and performs lift strength, range of motion, and MET level, consistent with the Dictionary of Titles (DOT)- Physical Demand Level (PDL) of Light Work¹.

07/11/2006-11:50.10 am Mr. Smith-Perez after lifting his child out of the rear car seat, is seen walking down the street holding his child who weighs approximately 30lbs with his right arm and hand. Impression: These movements are equivalent to the NIOSH waist lift and carry¹ @ 30lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 30 lbs (child weight) x 36 inches (approximate reach) = 1080 in-lbs². Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs)² x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back. The total pressure on the low back lifting² the child 1080 in-lbs + 1435.2 in-lbs = 2515.2 in-lbs every time he lifts his child. Also this is a constant load of 30 lbs on his right arm and hand over a sustained period of time. Of note an injured person would not put his child in danger if he was truly injured. This is an innate protective manner for which Mr. Smith-Perez has no decision. This force is spread out through the hands, arms, shoulders, and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

07/11/2006-11:50.10 am Mr. Smith-Perez after lifting his child out of the rear car seat, walks down the street holding his child that weighs approximately 30lbs with his right arm and hand, shifts the baby to his left arm and opens a door that takes approximately 18 lbs of grip strength to open. Impression: These movements are equivalent to the NIOSH³waist lift and carry @ 30lbs without a break for several minutes equivalent to constant work. Additionally, the weight load force on the low back is calculated by 30 lbs (child weight) x 36 inches (approximate reach) = 1080 in-lbs. Secondly, it is important to calculate the stress of bending forward, the upper body weight approximately 138 lbs (2/3 total Body Weight@ 210lbs)² x 10.4 inches (center of gravity) = 1435.2lbs of force exerted on the low back². The total pressure on the low back lifting the child 1080 in-lbs + 1435.2 in-lbs = 2515.2² in-lbs every time he lifts his child. Also this is a constant load of 30 lbs on his right arm and hand over a sustained period of time. This force is spread out through the hands, arms shoulder and the entire Kinetic Chain of the body, with sufficient bilateral grip strength to sustain these loads.

DYNAMIC LIFT TESTING

Occasional Lift	Ability	PDL
Floor	68lb	Medium-Heavy
Knee	68 lb	Medium-Heavy
Waist	68 lb	Medium-Heavy
Shoulder	50 lb	Medium
Overhead	24 lb	Medium
Carry	50-68 lb	Medium-Heavy

WORK ACTIVITIES

Activity	Ability
Squat	Frequent
Reach-up	Frequent
Reach-out	Frequent
Bend	Frequent

DISCUSSION

Homemaker/housewife is a medium duty job task 301.687-010¹,
Student business services is a light duty job task 189.157-010¹,
Tile layer is a medium duty job task 861.381-054¹,
Plasterer is a medium duty job task 842.361-018¹.

The purpose of an AME is to objectively look at the data, take an impartial unbiased look at the patient’s symtomotology and ability to return to work, as well as what if any additional treatment is needed. This calls into question Dr. Levine’s complete lack of acceptance of the sub-rosa video tapes, the other objective evidence indicating Mr. Smith-Perez is permanent and stationary, and that he can return to a job task unrestricted, consistent with a DOT level of medium to medium-heavy work¹ exceeding his previous job description of bakery-delivery man. Possibly Dr. Levine will change his opinion once he reviews the biomechanical loads the patient voluntarily subjected himself to over the days, weeks, months, and years he has been off work performing a variety of projects.

Reliability of Effort

CONCLUSION

The 2001 automobile accident should be investigated for its apportionment value to this case.

Mr. Smith-Perez-Perez is able to return to work full-time unrestricted.

Sincerely,

_________________________________09/04/2007

Allen S. Miller, DC, DACBSP Date:

(This signature will act as an original for the purposes of this document).

“I have not violated Labor Code Section 139.3 and the contents of this report and bill are true to the best of my knowledge. This statement is made under penalty of perjury”.

Cc: Robert E. Robinson, ESQ.

McDermott & Clawson, LLP

16530 Ventura Blvd, #209

Encino, CA 91436

Enc. Appendix 1 Smith-Perez Slide preview

REFERENCES:

Dictionary of Occupational Titles, U.S. Department of Labor Employment and Training Administration 1991. Volume II Fourth Edition, Revised 1991.
Maynard’s Industrial Engineering Handbook By Harold Bright Maynard, Kjell B. Zandin
United States National Institute for Occupational Safety and Health (NIOSH).

signature will act as an original for the purposes of this document).

“I have not violated Labor Code Section 139.3 and the contents of this report and bill are true to the best of my knowledge. This statement is made under penalty of perjury”.

Published in:

on August 10, 2009 at 7:28 pm Leave a Comment
Tags: Dr. Allen S. Miller, Forensic, Fraud, Kinematice expert, Subrosa videotape

Eurosoft FCE of Employee

Joyce Bernal

Texas Mutual Insurance Company

221 West Sixth Street,

Suite 300

Austin, Texas 78701-3403

Patient Name: Michael D Smith SSN: 555-55-5555

This report is a FCE performed on an employee of Eurosoft, Dallas TX. This report was responsible for finding fraud and led to the conviction of the doctor for fraud.

FUNCTIONAL CAPACITY EVALUATION

Dear Ms. Bernal:

The above named evaluee was recently referred to this facility for a functional capacity evaluation. This testing consisted of a routine physical exam, as well as computerized range of motion, isometric lift strength, dynamic lift tasks, work activities and postures, and computerized hand strength testing. The evaluee was instructed to lift normally and any way most comfortable and to stop the test if their comfort level changed. The physical examination included appropriate protocols of orthopedic and neurologic tests. The evaluee was required to sign a consent form prior to testing.

The results of this evaluation are discussed below.

PAST MEDICAL HISTORY

Onset Date: 9/15/2003

Mr. Michael D. Smith states that on the above date he was carrying an entertainment cabinet out of an aircraft. He stepped on grease on the floor and fell while holding onto the cabinet. He states that this caused pain to his neck, shoulder, and lower back. He stated that he did not hit his head; the cabinet went straight to the floor and brought him with it.

Mr. Smith states that the neck pain does not bother him now and that his main complaint is low back pain. Antonio Fred Guerra M.D. in San Antonio, TX is currently treating Mr. Smith.

Dr. Guerra has prescribed and Mr. Smith states that he is currently taking Methadone (10mg 3 times per day) and Ibuprofen (800mg as needed for pain – usually 2 – 3 times per day).

Mr. Smith states that he is able to exercise regularly with medication. His regular exercise consists of walking approximately 1 mile per day 5 days a week. Mr. Smith also states that he can perform his typical yard work if he paces himself and takes his medication. Mr. Smith indicated that he could drive or ride in a vehicle for 1 – 2 hours before he needs to stop and get out of the car; however he states that he cannot sit through a typical movie, play, concert or performance. Mr. Smith states that he is able to take care of basic personal needs – bathe, feed, dress, care for himself – without assistance. During a typical day, Mr. Smith states that he sits for 12 hours, stands for 2 hours and reclines or lies down for 10 hours.

Mr. Smith states that in the past he has experienced arthritis (diagnosed during draft process in 1966), concussion (football injury approximately 1963), indigestion (recent), German measles, headaches, neck pain (due to a work related injury in the 1990’s), rheumatic fever (as a child approximately 10 years of age), and sinus trouble (over the last 15 to 20 years). Current symptoms he is experiencing are depression (for the last 1 ½ months – Dr Guerra prescribed medication), pain in the low back, tingling numbness in the left upper leg, pins and needles in left shoulder blade area.

Mr. Smith states the tingling numbness in his left upper leg occurs when standing for long periods of time (approximately 30 minutes or longer). He states that he notices the numbness when he is standing at the kitchen sink doing dishes or while in the backyard grilling. He stated that Dr Guerra suggested that when he is at the sink doing dishes he should open the cabinet door and rest his left foot inside the cabinet. Mr. Smith states that this seems to help.

Mr. Smith states that the pins and needles in the left shoulder blade area occur while taking a shower or when sitting for a prolonged period of time.

Mr. Smith states that currently he is working six hour shifts, he had tried eight hour shifts but felt that was too much for him.

PREVIOUS INJURIES

Mr. Smith indicates he has had surgery on his right elbow for a work related injury in the 1980’s, surgery on right index finger for a work related injury in 1986 or 1987, and a head and neck work related injury in 1993 or 1994. He also stated that in 1978 he had colon surgery for an abscess.

Review of medical records from Business Health Partners LLC, an injury/illness history dated 9/18/2003 reveals evidence of a previous injury. The previous related injuries/problems section states “30 yrs ago pt fell off a loading dock.” No further mention as to extent of injury was noted.

SURVEILLANCE TAPE REVIEW

Dr. Barras and Dr. Kramer reviewed videotape of Mr. Smith in various activities that include repeated bending, standing, twisting for approximately for 5 minutes and 53 seconds. It appears on the videotape to be servicing his vehicle with water. In the tape, Mr. Smith is handed a green pitcher of water by an unidentified female. Mr. Smith is able to bend and rise multiple times unencumbered, move, bend twist and turn without hindrance, guarding, antalgic posture or minor’s sign as well as any noticeable wincing. One would expect an individual in any stage of injury repair to exhibit guarding or even the hint of restriction and pain. Analysis of the video tape utilizing NIOSH standards will be reviewed in the discussion section of this report.

EXAMINATION FINDINGS

Michael D Smith is a 55-year old obese male, 5′ 10″ tall, 204 pounds. He appears his stated age and is in good physical condition. Muscle testing revealed +5 muscle strength in the upper and lower extremities.

ORTHOPEDIC SIGNS AND TESTS

Provocative Test	Result	Comment
Patellar Reflex	Positive RT	1+
Achilles Reflex	Positive RT	1+
C5 Dermatome Sensation	Normal
C6 Dermatome Sensation	Normal
C7 Dermatome Sensation	Normal
C8 Dermatome Sensation	Normal
L4 Dermatome Sensation	Positive RT	Hyperaesthetic
L5 Dermatome Sensation	Positive RT	Hyperaesthetic
S1 Dermatome Sensation	Normal
Double Leg Raise	Negative
Ely	Positive LT	Positive for tightness in the SI joint. Not a true positive test.
Nachlas	Positive LT	Positive for tightness in the SI joint. Not a true positive test.
Patrick Fabre	Positive Bilaterally	Positive for tightness in the hip joints. Not a true positive test.
Heel to Heel	Negative
Toe Walk	Negative
Finger to Nose	Negative

The following tests were performed to determine the evaluee’s ability to perform the specific job functions safely without causing themselves harm or harm to others.

CARDIOVASCULAR FITNESS TESTING

Depending upon the identified goals for the evaluation, cardiac testing is necessary for specific concerns regarding individuals with specific cardiac disease, job positions that require significant walking, stepping, or constant upper extremity demands. The evaluee’s pre-test heart rate was 85 BPM and blood pressure 135/90. Post-test heart rate was 100 BPM and blood pressure 150/90.

Test	MET Level	Ability
Step Test	2.7	Light

Mr. Smith had a 2-minute warm-up on the recumbent bike and then the step test began. Mr. Smith had no complaints during this portion of the exam.

COMPUTERIZED RANGE OF MOTION

Cervical	Norm	Max	% of Norm
Flexion	50 °	52 °	104
Extension	60 °	48 °	80
Left Lateral	45 °	38 °	84
Right Lateral	45 °	36 °	80
Left Rotation	80 °	85 °	106
Right Rotation	80 °	68 °	85

Thoracic	Norm	Max	% of Norm
Minimum Kyphosis	20 °	46 °	230
Flexion	60 °	20 °	33
Left Lateral	10 °	24 °	240
Right Lateral	10 °	18 °	180
Left Rotation	30 °	20 °	67
Right Rotation	30 °	26 °	87

Lumbar	Norm	Max	% of Norm
Left Lateral	25 °	15 °	60
Right Lateral	25 °	27 °	108
Left Rotation	0 °	13 °
Right Rotation	0 °	6 °
Minimum Lordosis	15 °	22 °	147
Flexion	60 °	57 °	95
Extension	25 °	5 °	20
Sacral Hip Flexion	45 °	38 °	84
Sacral Hip Extension	5 °	9 °	180

Validity	Norm	Max	% of Norm
Left Straight Leg Raise	65 °	19 °	29
Right Straight Leg Raise	65 °	23 °	35

Upper Extremity	Norm	Left Active	Left % of Norm	Right Active	Right % of Norm
Shoulder Internal Rot.	75 °	90 °	120	59 °	79
Shoulder External Rot.	55 °	73 °	133	73 °	133
Shoulder Flexion	175 °	154 °	88	147 °	84
Shoulder Extension	45 °	20 °	44	49 °	109
Humerus/Scapula Flex.	140 °	133 °	95	148 °	106
Humerus/Scapula Ext.	20 °	24 °	120	36 °	180
Shoulder Adduction	35 °	19 °	54	3 °	9
Shoulder Abduction	165 °	53 °	32	39 °	24

During this portion of the examination process the patient indicated changes in his comfort level and complained of various symptoms.

After performing cervical lateral flexion Mr. Smith stated he had pain. His heart rate had not increased from his resting heart rate of 85.

Mr. Smith also stated he felt a pulling sensation across his lower back during the thoracic lateral flexion and that his comfort level was now close to a 6 (his beginning comfort level was 5). His heart rate was 92. Their was not palpable muscle spasm or guarding consistent with his complaints.

During thoracic rotation his comfort level was still close to a 6 and his heart was 91.

During lumbar rotation he stated he felt pulling in his left lower back and his comfort level was at 6. His heart rate was 90.

After completing lumbar flexion/extension, Mr. Smith stated his comfort level was at a 6. His heart rate was 98.

No complaints were noted during shoulder range of motion. His heart rate during this testing began at 85 and ended at 90.

COMPUTERIZED HAND STRENGTH TESTING

The patient was tested using the JTECH GripTrack, a computerized grip strength evaluation system. Grip strength can be used to determine the nature of the injury (organic vs. psychological) or the evaluee’s sincerity of effort.

5 Position Grip Strength Test

Grip tests indicate a 14% Left side deficit at position 2 when compared with the opposite hand, with less than 15% considered within normal limits.

Grip Position	Left Avg.	Right Avg.	Deficit
II	49 lb	57 lb	14% Left

A Coefficient of Variation (CV) of 14% or less indicates validity, reproducibility, and consistency of effort (Chaffin, 1976). 2 of 2 tests performed met the validity criterion.

Mr. Smith had no complaints during this portion of the exam.

Rapid Exchange Grip Test

The Rapid Exchange Grip (REG) Test was used to help determine the patient’s level of effort. Because of the minimized time of muscle recruitment, forces generated during the REG at a specific dynamometer setting, should not exceed those values seen during the 5-position test performed at the same setting (Hildreth, 1989). The results of this test indicate the patient has given valid efforts.

Mr. Smith had no complaints during this portion of the exam.

Sustained Grip Test

A sustained grip test was performed to establish patient’s ability to maintain contraction. Results indicate a 30% Left side deficit when compared with the opposite hand.

No complaints were noted during this portion of the exam.

Pinch

The patient was tested using the JTECH PinchTrack, a computerized pinch strength evaluation.

The results of the tip pinch test indicate a 23% Left side deficit, with less than 15% considered normal.

The results of the key pinch test indicate an 8% Left side deficit, with less than 15% considered normal.

A Coefficient of Variation (CV) of 14% or less indicates validity, reproducibility, and consistency of effort (Chaffin, 1976). 6 of 6 pinch tests performed met the validity criterion.

This data is used to compare a patient’s pinch strength to published norms. The 50th percentile indicates the average for the patient’s gender and age group. More than two standard deviations below the average indicates that a deficit exists. Right side Tip results fall in the 82 percentile with a SD of 0.9. Left side Tip results fall in the 50 percentile with a SD of 0.0. Right side Key results fall in the 46 percentile with a SD of -0.1. Left side Key results fall in the 38 percentile with a SD of -0.3. Right side Palmar results fall in the 31 percentile with a SD of -0.5. Left side Palmar results fall in the 31 percentile with a SD of -0.5.

No complaints were noted during this portion of the exam.

COMPUTERIZED ISOMETRIC LIFT STRENGTH

The patient was tested using the JTECH computerized static lift strength evaluation system.

A Coefficient of Variation (CV) and/or difference between successive reps of 14% or less indicates validity, reproducibility, and consistency of effort (Chaffin, 1976). 5 of 5 tests performed met the validity criteria.

NIOSH Lift Test	Ability	PDL
Arm	38 lb	Light Medium
Torso	29 lb	Light
Leg	49 lb	Light Medium
High far	12 lb	Sedentary
High near	31 lb	Light
Floor – Patient stated he could not pull anymore.

The NIOSH lift testing began with Mr. Smith’s heart rate at 85 and a comfort level of 6. Five of the six tests were completed. After the fifth test, Mr. Smith stated he could not pull anymore and the NIOSH portion of the tested was terminated.

Other observations noted during the NIOSH portion of the exam were as follows:

Arm Lift – Beginning Heart Rate 85 Beginning Comfort Level 6

Ending Heart Rate 95 Ending Comfort Level 6

High Near – Beginning Heart Rate 85 Beginning Comfort Level 6

Ending Heart Rate 97 Ending Comfort Level 6+

Patient stated he “felt tingling in back”

High Far – Beginning Heart Rate 90 Beginning Comfort Level 6+

Ending Heart Rate 95 Ending Comfort Level 6+

Patient stated he felt “numbness going across midback”

Torso – Beginning Heart Rate 84 Beginning Comfort Level 6+

Ending Heart Rate 88 Ending Comfort Level 6 ½ +

Leg Lift – Beginning Heart Rate 77 Beginning Comfort Level 6 ½ +

Ending Heart Rate 88 Ending Comfort Level 7

Patient stated he couldn’t pull anymore.

DYNAMIC LIFT TESTING

Once the evaluee’s safe lift capacity was determined to be sufficient for the defined job tasks via static lifting, the evaluee was referred for dynamic lift testing. The evaluee was required to lift weighted box starting at 16 pounds, proceeding to a maximum of 80% of the evaluee’s body weight or his safe comfort level. Lifting is performed to either a specific standard detailed by a job description or to the traditional work heights associated with the Dictionary of Occupational Titles (DOT).

Occasional Lift	Ability	PDL
Floor	38 lb	Light Medium
Knee	43 lb	Light Medium
Waist	31 lb	Light
Shoulder	23 lb	Light
Overhead	16 lb	Sedentary Light
Carry	26 lb	Light

WORK ACTIVITIES

Work Activity Testing is used to determine an evaluee’s ability to perform dynamic non-material handling activities. Activities are assessed either to the DOT standards or to work task specific movement patterns. Tool use or the ability to involve or negotiate the environment is also typically evaluated when specific activities are assessed.

Activity	Ability
Squat	Occasional
Reach-up	Frequent
Reach-out	Frequent
Bend	Frequent

DISCUSSION

Mr. Smith was transported both to and from his appointment by the same driver from the San Antonio office of EuroSoft to Natures Health Care in Austin. The driver reported Mr. Smith to be relaxed and able to sit comfortably throughout the ride to and from the appointment. Mr. Smith asked to stop on the way to the appointment to get something to eat. Mr. Smith was able to exit and enter the car without difficulty or assistance. The ride was 2 hours in each direction and Mr. Smith dozed on the ride home. He did ask to stop and get a drink on the ride home. The driver did not see Mr. Smith take any medication during the ride there or home.

Mr. Smith was observed by a staff member of Nature’s Healthcare to exit the vehicle and enter the building without assistance. The staff member also noted that Mr. Smith had normal gait and did not appear to be in discomfort.

During the examination process, Mr. Smith was able to sit, walk, and stand without complaint. He was also able to be seated and lie down on the examination table (height 29 inches) without discomfort or assistance. While in the office, Mr. Smith was seated for approximately 30 minutes while completing the initial paperwork in at addition to the 2+ hours of drive time; he then walked with normal gait to the restroom. Once he was finished in the restroom he was taken back to the examination room, normal gait still noted. He then sat down on the examination table and was advised that the examination would be video taped. He stated he had no objection as long as he received a copy of the video.

Dr. Kramer and Dr. Barras were both in the room and both examined Mr. Smith. Mr. Smith was then escorted back to the restroom where he was instructed to put on the heart rate monitor. He was then escorted back to the examination room and his blood pressure was taken. He was seated for approximately 2 minutes and his resting heart rate was noted. During the warm-up and step test, Mr. Smith made no mention of discomfort. The step test was completed without incident. Mr. Smith was cooperative during all portions of the examination.

During the rest of the testing Mr. Smith was asked to sit, stand, walk, lift, and carry all in various positions. Mr. Smith had no obvious physiological reactions even when he stated that his comfort level had changed. His gait did not change, his biomechanics changed only slightly during the dynamic lift testing. He did not perspire or get flush in the face during any portion of the testing.

During the ride back from Austin to San Antonio Mr. Smith was observed by the driver to snooze. This clearly demonstrates that Mr. Smith did not have an increase pain response following the examination process. This observation along with no pain response observed in both his blood pressure and heart rate during the examination indicates that Mr. Smith did not experience and increase in pain from this vigorous testing.

Mr. Smith spent a total of 7 hours, 4 hours riding of which in a vehicle and 3 hours of the examination process. Mr. Smith did not appear to tire, request a rest break or have any difficulties. Additionally, as stated above both doctors and examiner viewed the 6/18/2004 surveillance tape. Mr. Smith is viewed bending twisting and holding a pitcher of water that weight approximately 8 lbs. Mr. Smith is able to hold this bottle and bend unsupported and pore the liquid precisely into the radiator. The calculated stress on the low back of a person Mr. Smith’s height and weight bending forward utilizing a NIOSH standard ¹ was calculated to be in excess of 430 lbs of compressive force along with 71 lbs of shear force. With this amount of force exerted on to his low back we would expect to see guarding and/or antalgic type of postures.

As discussed we were able to evaluate Mr. Smith over a significant amount of time as well as analyze the video tape. This testing is designed to reveal the true condition of the subjects’ injuries. In Mr. Smith’s, case there was no viewed or palpated muscle spasms, guarding or antalgia associated with his movements over the extensive period of time he was evaluated. This lack of muscle spasms or guarding indicates that there is no biomechanical instability and thus no active injury. Additionally, Mr. Smith exhibits strength consistent with his previous job description. Since there is no active injury, and Mr. Smith’s strength is consistent with his previous job description, then the injuries Mr. Smith allegedly received have healed and Mr. Smith has been returned to his pre-injury status.

Mr. Smith may certainly be experiencing a symptom magnification process, thus prolonging his disability and inhibiting his return to work full time. Mr. Smith is capable of working full time, unrestricted and is capable of performing his previous assigned job task and needs no further treatment.

Reliability of Effort

Subjective determination of effort is based clinical opinion of how a worker participated in the FCE process. Eight questions are used to formalize the evaluator’s opinion as to whether the worker’s performance was consistent clinically.

Of 8 criteria observed by the evaluator during the FCE, 2 (25%) would be consistent with valid effort.

Objective tests that are not directly biased by direct interaction between the evaluator and the worker are tallied to assess the worker’s participation level and effort consistency. This is used as a checks and balance system to support and substantiate the evaluator’s clinical opinion. Objective tests are tallied by the software and are not directly biased by the evaluator. Additionally, objective tests can be imported from devices other than Tracker.

37 of 37 tests showed consistent effort.

5-position grip test showed valid effort.

REG test showed valid effort.

Overall Validity or Level of Effort is determined by looking at all of the end results of the subjective, objective and max voluntary effort. Consistency of effort or lack there of is identified as either Reliable or Unreliable relative to making accurate vocational placement plans. If the outcomes indicates that the results are Relatively Reliable, this reflects a situation where symptom magnification is not present but submaximal effort secondary to anxiety or fear is presenting as a limiting factor.

Based on the above results, the overall level of effort as deemed by the examiner is relatively reliable. Mr. Smith is able to perform work levels consistent with and above his previous job description. His heart rate did not increase enough during any part of the testing to indicate an increase in pain. His increase in heart rate barely indicated that he gave maximum voluntary effort. A normal heart rate increase with work load increase is 30 plus beats per minute. Mr. Smith did not get anywhere near that increase in heart rate. This shows that Mr. Smith is capable of performing a work load in excess of what he demonstrated during the testing process.

CONCLUSION

Mr. Smith has reached his pre-injury status and maximum medical improvement. According to the Dictionary of Occupational Titles the Interior Installer 806.381-078 is a medium duty job task. However, Mr. Smith’s employer and supervisor went over Mr. Smith’s actual job task and rated it as a light-medium job task. This requires Mr. Smith to lift 35 lbs. on an occasional basis.

Mr. Smith was found to be able to perform Light-Medium work (35 lbs. on an occasional basis) from the floor, from the knee level and from the waist level. This corresponds to the actual job task requirements.

Mr. Smith is able to return to work full time unrestricted.

Physical Demand Level

Mr. Smith is capable of performing light medium duty work from the waist, floor and from the knee (35 lbs. occasional). Light duty work (20 lbs. occasionally) at the shoulder level, sedentary work from the overhead level full time.

If there are any questions concerning this matter, please feel free to contact me.

Sincerely,

Evaluator: _Signatures on File_______________________Date: __9/29/04_____________

Dr. Allen S. Miller

CC Randy Miller

EuroSoft

1705 S. Capital of Texas

Suite 202

Austin, TX 78746

Footnote:

United States National Institute for Occupational Safety and Health (NIOSH)

Published in:

on August 10, 2009 at 7:11 pm Leave a Comment
Tags: Dr. Allen S. Miller, Eurosoft, FCE, Fraud, Functional Capacity Evaluations, Kinematic Solutions, Kinematicexpert, Malingering

New Penn Employee FCE

This is the report of the New Penn employee that was injured lifting 100 lb bags of coffee. This report led to his conviction and later incarceration for workers compensation fraud.

Mr. Andrew Kerlik
VP Risk Management Human Resources
New Penn Motor Express Inc.
P.O. Box 630
Lebanon, PA 17042-0630

Re: Timothy Sham
SS#: 000-00-0000
DOB: 1/2/63
Claim #: 97007976
Employer: New Penn Motor Express Inc.
Job Description: Truck Driver
Date of Injury: 10/21/1997

Peer Review Record Review and Report

Dear Mr. Kerlik,

We were contacted to perform a peer review of medical records and all other pertinent information and compare those findings to the demands of the job task to determine:

1. Ability to perform job task.
2. Estimate a date of return to job task.
3. Functional capabilities of the above named individual.

The results of this review are discussed below.

HISTORY:

Mr. Sham is a 37-year-old male who stated, on 10/21/97, that he injured his low back in the course of his occupation as a truck driver, including lifting and moving heavy objects. He also states that he had an onset of sudden pain in the right buttock, radiating to the posterior heal. He states that he received an evaluation and eventual treatment at Exeter Hospital Emergency Room. Mr. Sham reported to Dr. Hepner that he returned to work wearing a lumbar support, and

PAST MEDICAL/SURGICAL HISTORY:

1. A/C Separation age 17 1.
2. Rt. Clavicle Fracture Age 17 1
3. Mr. Sham denies any contributory or past pertinent medical history 1.

PERSONAL ACTIVITES, HOBBIES:

1. Mr. Sham states that he is unmarried and residing with his girlfriend and two minor children.
2. The representative for Mr. Sham, Billy Carnes, states that he is a professional skydiver 2.
3. Mr. Sham stated in his deposition that, when he skydives, he exits the plane at a height upwards of 13,500 feet, and accelerates to speeds in excess of 150 mph .
4. Mr. Sham stated that he is training for the ESPN Extreme Games as a “sky surfer “3.

EXAMINATION FINDINGS:

Negative orthopedic and neurological findings to support a recent lumbar disc protrusion, or prolapse 1. Trunk flexion to reach within five inches of the floor with dimished extension. There is mild tenderness across the lumber spine. The subject displayed no atrophy or loss of reflexes 1.

RADIOLOGICAL FINDINGS:

1. Herniated disc at L5 of the protrusion type, with disc material protruding through the annulus extending to the right and lateral towards the neural foramen, touching the L5 nerve root 4.
2. There is a bulging at the L4disc 4.

REVIEW OF APPLICABLE DATA:

On 3/30/98, Mr. Sham participated in rehabilitation exercises, including seated rowing 4 sets of 50 lbs from 10-15 repetitions. He was also able to perform lat pull downs of 4 sets of 62 pounds for 10-12 repetitions; leg curls of 4 sets of 50 lbs for 10-12 repetitions 5. These exercises continued through 6/26/98 with the weight utilized escalating to 75 lbs for rowing, 62 lbs for lat pull downs, and 100 lbs for leg curls, respectively 6.

On, 8/05/98 3, a private investigator observed Mr. Sham working on an addition to a building at his skydiving “drop zone,” New England Adventures. These activities required repeated bending, stooping, squatting, reaching, walking, crawling, standing, sitting, fine hand motor control and lifting. These activities are consistent with his job task as a truck driver 7.

Upon evaluation of videotape and testimony, Mr. Sham, along with his representative Billy Carnes, admitted he participated in repeated freestyle skydiving activities from April 1998 through August 5, 1998 3. Additionally, it is depicted in the August 5, 1998 videotape and by statements made by Mr. Sham that he is a “professional skydiver” 2. These activities require repeated bending, stooping, squatting, reaching, walking, crawling, standing, sitting and fine hand motor control. These activities are more strenuous if the diver is “packing” his own chute. Mr. Sham also states that he exits the plane at speeds of 120 mph. He also states that when the canopy opens, he “goes from 150 mph to 0 mph in one second” 2.

Mr. Sham was able to perform these activities voluntarily without apparent restriction while carrying a 30-35 lb. parachute pack. Mr. Sham performs these activities in preparation for and following a jump. The intervals for which this activity is performed, by admission of Mr. Sham, is between 8-10 times during an outing 2for a total of 8 hours. Once prepared, Mr. Sham puts the pack on his back and voluntarily boards a plane on which he sits until the plane reaches an altitude of 13,500 feet. As the divers ascend to the agreed-upon altitude, the ambient temperature decreases, to an average of 25 degrees Farenheight (depending on region and meteorological factors). When he exits the aircraft, he is moving horizontally at the same speed as the aircraft, typically 90-110 mph. During the first 10 seconds, a skydiver accelerates up to about 115-130 mph straight down. In a standard face-to-earth position, the diver can change his fall rate up or down a few (i.e., 10-20) miles per hour 8. However, by diving or “standing up” in freefall, any experienced skydiver can learn to reach speeds of over 160-180 mph. Speeds of over 200 mph require significant practice to achieve 8. By admission, Mr. Sham states that he reaches speeds in excess of 200 mph. The actual freestyle flying lasts approximately 2-3 minutes. Upon deployment of the chute, 2-3 G-forces are enacted on the body of the diver. These forces can be so severe in some cases as to cause unconsciousness 9. Once under parachute, descent rates of 1000 ft/min are typical, and a heavier person may have a somewhat faster descent than a lighter person. Mr. Sham is 6’0”, 185 lbs. Experienced jumpers can descend (in normal glide) at up to 1500 ft/min. During radical turns, the descent rate can go well over 2000 ft/min.10 The diver continues to decelerate and hit the ground, if all is controlled, at an average speed of 20 mph, causing significant compression forces on the lower extremities and spine. By admission, Mr. Sham repeated this activity 8-10 times during an outing 2.

On 8/11/1998, Mr. Sham submitted to a Physical Capacity Evaluation, that utilized isometric strength-testing that is compared to the National Institute of Occupational Safety & Health Standards (NIOSH).10 This testing was utilized to determine Mr. Sham’s physical demand level and ability to return to work in his previous job task. This testing consisted of computerized range of motion, computerized isometric lift tasks, along with a routine physical exam. The protocol consisted of lifting isometrically within the NIOSH 6-position protocol. The protocol is to instruct the subject to lift normally and in any way he felt best, and to stop if his comfort level changed. The objective of this testing was to determine the participant’s Physical Demand Level (PDL) for return into a suitable job task.

During testing, Mr. Sham was required to bend, squat, reach, walk, stand and sit for varying intervals of time, which are activities that coincide with his duties as a truck driver. These activities also involved pushing, pulling, lifting and straining against a non-moveable object to measure strength. This testing is quite rigorous and physically demanding. One of the most important aspects of this testing is that, if there is disability, impairment or injury, this testing would aggravate it immediately along with the accompanying symptoms. However, in this case, I cannot find evidence of Mr. Sham’s inability to perform or complete the testing, or any increase in objective medical signs/symptoms. This type of testing involves very objective protocols and anonymous tests; know as “distraction testing”. Specifically, there is no feedback from the equipment to tell the subject how he is performing. The built-in coefficient of variance ensures both subject and evaluator accuracy along with consistency. In Mr. Sham’s case, he was able to produce strength consistent with the Dictionary of Titles (DOT), Very Heavy Lifting,10 which is consistent with his described job task as a truck driver 5.

CONCLUSIONS AND RECOMMENDATIONS:

With the information derived from documentation pertaining to the computerized testing, physical examination, rehabilitation reports, videotapes and statements made by Mr. Sham, we can make the following conclusions.

In March of 1998, Mr. Sham participated in rehabilitation exercises, consisting of seated rows, squats, lat pull downs and leg curls. He utilized weights in excess of 50 lbs increasing to 100 lbs . The forces that these exercises produce on the lumbar spine, directly at the L5/SI disc space, are significant. Injured persons with lumbar spine involvement, in most cases, are unable to start and maintain exercises of this magnitude without exacerbating their symptoms. Mr. Sham complains of only slight increases in pain and symtomogly when performing these activities. These exercises mimic the type of activities, forces and strength consistent with performing his job description as truck driver.

In addition, Mr. Sham consistently and repeatedly participated in activities that produced forces and stress to his body that far exceeded those consistent with his job task. In most cases, it is normal for an injured individual to attempt to continue, activities they enjoyed prior to injury. In this case, thoe activities are skydiving and sky surfing. Once the activities are attempted and the symptoms increase, the injured person stops the activity, as it is too painful and debilitating. What is important to realize is that Mr. Sham was able to perform these activities repeatedly without aggravating his symptoms or injury. For example, the video clearly shows Mr. Sham landing after a jump involving sky surfing. He is clearly visible descending and, at the last moment, pushes off the board with his foot and then impacting the ground.15, 16. Mr. Sham then gathers up his chute, along with the board weighing 10 lbs. Carrying these items, he then walks over to the investigators filming his activities. The investigators engage him in a conversation about his activities. This tape depicts several biomechanical attributes. Mr. Sham is able to walk, bend, stoop, and carry items without difficulty or antalgic (pain) posture.
He is able to stand erect holding these items and speak without inflection or obvious pain. This is all done after impacting the ground, 15, 16 with a visibly hard landing at an estimated speed of 15-20 mph. This leads to the following conclusions:

1. Mr. Sham’s body mechanics are not consistent with his reported degree of disability.
2. Mr. Sham’s movement patterns are not consistent with his reported degree of disability.
3. Mr. Sham’s diagnosistic-based limitations are not consistent.

The forces from his voluntary hobby and the construction work would not only have exacerbated his injuries, but most likely would have resulted in a more severe injury and disability, if Mr. Sham was physically impaired or the injury was “active”. As stated, the forces enacted on his body during these activities are so excessive that they would exacerbate and flare-up an active injury, especially the lumbar spine, if the individual was impaired.

For example, astronauts Neil Armstrong (commander) and David Scott (pilot), of the Gemini VIII, received similar forces that Mr. Sham experienced. The Gemini VIII astronauts experienced Gz force of 0.89 G-units from the waist up, Gz of 0.05 from the waist down, and were momentarily incapacitated.11 This was so disturbing to NASA that they redesigned the space capsule for re-entry to prevent this from recurring. Mr. Sham sustains and repeats forces in excess of 1-2 Gz and tolerates these activities consistent with a professional skydiver, again without hesitation or injuring his low back. Long-term stress and force causes significant long-term injury and changes to the human body, i.e., spinal stenois,12 disc disease and repeated micro tearing of the intervertebal discs, etc. These changes are represented in Mr. Sham’s medical data, indicative of long-term, continuous trauma due, in part, to his skydiving activities.

Mr. Sham also made statements that he was training for the ESPN Extreme Games in Sky Surfing.3, 13, 14 The requirements to enter this sport are physically demanding. They require multiple jumps exceeding speeds of 200 mph and Gz forces well exceeding 1.00. In addition, the competition requires the surfer/diver to twist, turn, rotate, and spin while traveling at speeds in excess of 150-200 mph. This, again, causes tremendous stress on the body that would have resulted in injury and incapacitation to an individual with an injury.11, 12 Mr. Sham practiced and performed for this competition multiple times, indicating his ability to return to work full time, unrestricted. Billy Carnes made the statement that skydiving is “not as strenuous as pushing twenty or thirty thousand pounds of freight around, it’s not quite the same thing.”2 He is, in essence, correct; it is not the same thing, it is worse. By definition, Very Heavy Lifting17 constitutes lifting greater than 100 lbs on an occasional basis, 50 lbs on a frequent basis, and 20 lbs on a constant basis. In his employment as a truck driver, Mr. Sham is able to utilize his own strength and body mechanics in performing lifting tasks. He is able to control the speed, force, direction, and all aspects of the job task. His own pain, fatigue, impairments, restrictions, and intelligence, along with the human guarding mechanism, limit him from injuring himself unless, of course, unforeseen circumstances occur.
In the case of skydiving, he knows the risks and is unable to affect and control the forces acted upon him. The diver cannot prepare for the forces that come from skydiving, as they come from variety of different directions at once and at different loads, causing extreme tearing, shearing, and loading on all parts of the body. An injured body cannot take this abuse and stress without breaking down, or the symptoms and impairments flaring-up. The fact that Mr. Sham was able to repeat this activity supports the conclusion that he could have returned to work full time unrestricted when he resumed or continued skydiving. Mr. Sham continued to perform these activities, resulting in stresses and forces more severe than he could possibly have caused himself performing the duties consistent with a truck driver during a typical day at work.

The August 8, 1998 Physical Capacity Evaluation determined, objectively, Mr. Sham’s Physical Demand Level (PDL) to be Very Heavy Lifting17 consistent with and exceeding the New Penn Motor Express Inc. job description of Truck Driver. According to the records, Mr. Sham did not exhibit the following. His strength presentation was not consistent with his diagnosis. One would expect a significant increase in pain and restriction from someone with the type of injury and restriction reported by Mr. Sham. As stated above, this testing is rigorous and physically demanding. This testing is designed to aggravate an injury to determine a subject’s ability to do work. Mr. Sham was able to tolerate and excel in the testing process to levels far exceeding the average proportion of the population. This testing indicated that Mr. Sham was able to return to work as a truck driver full time and unrestricted.

The position and specific job functions as described by New Penn Motor Express, Inc.5 are safe for Mr. Sham to perform. Mr. Sham exhibited, in multiple ways, independent of one another, the ability and strength consistent with and exceeding the ability to perform very heavy work consistent with his job tasks at New Penn Motor Express, Inc. We did not find any physical reason why Mr. Sham could not return to his job duties5 as a truck driver as of March 30, 1998. This is the date Mr. Sham completed his rehabilitation routines consistent with his job description. It is also concluded that Mr. Sham could have returned to his job task full time, unrestricted, upon his first repeated freestyle skydiving activity, or whichever date came first. It is our opinion, based on the available subjective data provided, Mr. Sham could have been working in some capacity with modified duty from the date of injury. We cannot give an exact work level, as we do not have objective medical records or tests to determine the level of work for which he could have returned. However, the rehabilitation records of March 30, 1998 indicate that he was lifting weights in positions that mimicked his work activities as a truck driver, and could have returned to work full time unrestricted on that date.

In addition, Mr. Sham’s subjective complaints of pain, spasm, and restrictions do not correlate with his activities. They are inconsistent with the findings of the physical capacity evaluation, along with the physical requirements of sky surfing, skydiving, and/or construction work. In addition, Mr. Sham stated that his goal was “to return to work.” Specifically, he did not return to work but continued to misrepresent the facts regarding with his outside activities, severity of his injuries, and ability to return to work, to all medical personnel encountered.
All decisions made by the medical personnel were based on misleading statements and inaccurate subjective data provided by Mr. Sham. The medical personnel were unable to accurately determine the legitimacy of the claim and make recommendations as to the severity of injury, treatment, and return to work recommendations.

Sincerely,

Allen S. Miller, D.C., DACBSP
COO, Kinematic Solutions, LLC
Enclosures

Footnotes
Transcript Court Proceedings, Commonwealth of Massachusetts, Lowell District Court. Commonwealth of Massachusetts vs. Timothy Sham. April 11, 2001.
3 Transcript from Tape Recording: Case #:01-0533. Southern New England Joint Area Committee. May 24, 2001.
4 Diagnostic Imaging Department, Exeter Hospital, Inc. 12/30/1997.
5 Exercise: Worksheet, Exeter AthletiCare. 3/26/98-4/3/98
6 Exercise: Worksheet, Exeter AthletiCare. 6/12/98-6/26/98.
7 Job Description, 1-City Driver/Road Driver.
8 rec.skydiving FAQ Sheet. http://www.afn.org/skydive/faq/faq.html#physical ., Archive-name: sports/skydiving/faq. Last-modified: 8/13/97
9 Fong KL, Fan SW., An overview of the physiological effects of sustained high +Gz forces on human being. Ann Acad Med Singapore 1997 Jan;26(1):94-103.
10 Physical Capacity Evaluation, Debra McAuley, OTR/L 8/13/98
11 Mohler SR, Nicogossian AE, McCormack PD, Mohler SR Jr., Tumbling and space flight: the Gemini VIII experience. Aviat Space Environ Med 1990 Jan;61(1):62-6.
12 Hamalainen O, Toivakka-Hamalainen SK, Kuronen P. +Gz associated stenosis of the cervical spinal canal in fighter pilots. Aviat Space Environ Med 1999 Apr;70(4):330-4
13 BAP Qualifications. HTTP://www-user.york.ac.uk/~socs213/info/category.html .
14 Addendum-Sky surfing Compulsory Sequences 2001 Performance Requirements & Judgment Criteria. HTTP://members.aol.com/skysurfnj/page4.html.
15 VHS Videotape. Labeled MASS AG. Depicting Mr. Sham Sky surfing, landing and interviewed by investigators.
16 VHS Videotape. Labeled TV-25 Sham. Depicting Fox 25 new at Ten. Fox undercover exclusive of Timothy Sham sky surfing.
17 Dictionary of Occupational Titles, U.S. Department of Labor Employment and Training Administration 1991. Volume II Fourth Edition, Revised 1991

Published in:

on August 10, 2009 at 6:49 pm Leave a Comment
Tags: Boston, Dr. Allen S. Miller, fraud malingering, Kinematic Solutions, Kinematicexpert, New Penn Motor Express, Teamsters

Dr. Allen S. Miller's Reports

Med Legal Reports

Toyota Job Site Analysis & Job Description

FTS California – Hayward, CA

Prepared by:

STATIC STANDING

WORK STATION

Strain Index (SI)

Rapid Upper Limb Assessment (RULA)

CNA Peer Review

CNA FCE – Lumbar Injury

Great Western Administrators Iron Worker FCE

Mr. Smith is capable of performing permanent restricted full time duty of light-medium work in all positions (35lbs Occasionally, 18 lbs Frequently, 7 lbs Constantly)¹.

2. United States National Institute for Occupational Safety and Health (NIOSH)

3. Health Psychology, By Michael Feuerstein, Elise E. Labbé, Andrzej R. Kuczmierczyk

4. Cardiovascular/Pulmonary Essentials, By Marilyn Moffat, Donna Frownfelter

7. The Forensic Documentation Sourcebook: The Complete Paperwork Resource for …

Police FCE Report

FUNCTIONAL CAPACITY EXAMINATION

SS#: 000-00-0000

CNA Case Using Forensic Biomechanic Measurement of SubRosa Video Tape

Eurosoft FCE of Employee

New Penn Employee FCE

Dr. Allen Miller’s Reports To Industry

Report Categories

Report Archieves

Meta

Med Legal Reports

FTS California – Hayward, CA

Prepared by:

STATIC STANDING

WORK STATION

Strain Index (SI)

Rapid Upper Limb Assessment (RULA)

Mr. Smith is capable of performing permanent restricted full time duty of light-medium work in all positions (35lbs Occasionally, 18 lbs Frequently, 7 lbs Constantly) 1.

2. United States National Institute for Occupational Safety and Health (NIOSH)

3. Health Psychology, By Michael Feuerstein, Elise E. Labbé, Andrzej R. Kuczmierczyk

4. Cardiovascular/Pulmonary Essentials, By Marilyn Moffat, Donna Frownfelter

7. The Forensic Documentation Sourcebook: The Complete Paperwork Resource for …

FUNCTIONAL CAPACITY EXAMINATION

SS#: 000-00-0000

Dr. Allen Miller’s Reports To Industry

Report Categories

Categories

Report Archieves

Meta

Mr. Smith is capable of performing permanent restricted full time duty of light-medium work in all positions (35lbs Occasionally, 18 lbs Frequently, 7 lbs Constantly)¹.