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-lbs5 every 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”,6 or 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”,6 or 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.
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.
- 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.
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.
- 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 1 from 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 media5”. 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 case6-7.
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 gain9-10.
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 physician6-7, 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.
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,
_________________________________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.
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.
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.
- 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.
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.
- 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 1 from 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 media5”. 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 case6-7.
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 gain9-10.
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 physician6-7, 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.
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,
_________________________________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”.
//
//
Dr. Allen S. Miller's Reports 