This is the report of the New Penn employee that was injured lifting 100 lb bags of coffee. This report led to his conviction and later incarceration for workers compensation fraud.
Mr. Andrew Kerlik
VP Risk Management Human Resources
New Penn Motor Express Inc.
P.O. Box 630
Lebanon, PA 17042-0630
Re: Timothy Sham
SS#: 000-00-0000
DOB: 1/2/63
Claim #: 97007976
Employer: New Penn Motor Express Inc.
Job Description: Truck Driver
Date of Injury: 10/21/1997
Peer Review Record Review and Report
Dear Mr. Kerlik,
We were contacted to perform a peer review of medical records and all other pertinent information and compare those findings to the demands of the job task to determine:
1. Ability to perform job task.
2. Estimate a date of return to job task.
3. Functional capabilities of the above named individual.
The results of this review are discussed below.
HISTORY:
Mr. Sham is a 37-year-old male who stated, on 10/21/97, that he injured his low back in the course of his occupation as a truck driver, including lifting and moving heavy objects. He also states that he had an onset of sudden pain in the right buttock, radiating to the posterior heal. He states that he received an evaluation and eventual treatment at Exeter Hospital Emergency Room. Mr. Sham reported to Dr. Hepner that he returned to work wearing a lumbar support, and
PAST MEDICAL/SURGICAL HISTORY:
1. A/C Separation age 17 1.
2. Rt. Clavicle Fracture Age 17 1
3. Mr. Sham denies any contributory or past pertinent medical history 1.
PERSONAL ACTIVITES, HOBBIES:
1. Mr. Sham states that he is unmarried and residing with his girlfriend and two minor children.
2. The representative for Mr. Sham, Billy Carnes, states that he is a professional skydiver 2.
3. Mr. Sham stated in his deposition that, when he skydives, he exits the plane at a height upwards of 13,500 feet, and accelerates to speeds in excess of 150 mph .
4. Mr. Sham stated that he is training for the ESPN Extreme Games as a “sky surfer “3.
EXAMINATION FINDINGS:
Negative orthopedic and neurological findings to support a recent lumbar disc protrusion, or prolapse 1. Trunk flexion to reach within five inches of the floor with dimished extension. There is mild tenderness across the lumber spine. The subject displayed no atrophy or loss of reflexes 1.
RADIOLOGICAL FINDINGS:
1. Herniated disc at L5 of the protrusion type, with disc material protruding through the annulus extending to the right and lateral towards the neural foramen, touching the L5 nerve root 4.
2. There is a bulging at the L4disc 4.
REVIEW OF APPLICABLE DATA:
On 3/30/98, Mr. Sham participated in rehabilitation exercises, including seated rowing 4 sets of 50 lbs from 10-15 repetitions. He was also able to perform lat pull downs of 4 sets of 62 pounds for 10-12 repetitions; leg curls of 4 sets of 50 lbs for 10-12 repetitions 5. These exercises continued through 6/26/98 with the weight utilized escalating to 75 lbs for rowing, 62 lbs for lat pull downs, and 100 lbs for leg curls, respectively 6.
On, 8/05/98 3, a private investigator observed Mr. Sham working on an addition to a building at his skydiving “drop zone,” New England Adventures. These activities required repeated bending, stooping, squatting, reaching, walking, crawling, standing, sitting, fine hand motor control and lifting. These activities are consistent with his job task as a truck driver 7.
Upon evaluation of videotape and testimony, Mr. Sham, along with his representative Billy Carnes, admitted he participated in repeated freestyle skydiving activities from April 1998 through August 5, 1998 3. Additionally, it is depicted in the August 5, 1998 videotape and by statements made by Mr. Sham that he is a “professional skydiver” 2. These activities require repeated bending, stooping, squatting, reaching, walking, crawling, standing, sitting and fine hand motor control. These activities are more strenuous if the diver is “packing” his own chute. Mr. Sham also states that he exits the plane at speeds of 120 mph. He also states that when the canopy opens, he “goes from 150 mph to 0 mph in one second” 2.
Mr. Sham was able to perform these activities voluntarily without apparent restriction while carrying a 30-35 lb. parachute pack. Mr. Sham performs these activities in preparation for and following a jump. The intervals for which this activity is performed, by admission of Mr. Sham, is between 8-10 times during an outing 2for a total of 8 hours. Once prepared, Mr. Sham puts the pack on his back and voluntarily boards a plane on which he sits until the plane reaches an altitude of 13,500 feet. As the divers ascend to the agreed-upon altitude, the ambient temperature decreases, to an average of 25 degrees Farenheight (depending on region and meteorological factors). When he exits the aircraft, he is moving horizontally at the same speed as the aircraft, typically 90-110 mph. During the first 10 seconds, a skydiver accelerates up to about 115-130 mph straight down. In a standard face-to-earth position, the diver can change his fall rate up or down a few (i.e., 10-20) miles per hour 8. However, by diving or “standing up” in freefall, any experienced skydiver can learn to reach speeds of over 160-180 mph. Speeds of over 200 mph require significant practice to achieve 8. By admission, Mr. Sham states that he reaches speeds in excess of 200 mph. The actual freestyle flying lasts approximately 2-3 minutes. Upon deployment of the chute, 2-3 G-forces are enacted on the body of the diver. These forces can be so severe in some cases as to cause unconsciousness 9. Once under parachute, descent rates of 1000 ft/min are typical, and a heavier person may have a somewhat faster descent than a lighter person. Mr. Sham is 6’0”, 185 lbs. Experienced jumpers can descend (in normal glide) at up to 1500 ft/min. During radical turns, the descent rate can go well over 2000 ft/min.10 The diver continues to decelerate and hit the ground, if all is controlled, at an average speed of 20 mph, causing significant compression forces on the lower extremities and spine. By admission, Mr. Sham repeated this activity 8-10 times during an outing 2.
On 8/11/1998, Mr. Sham submitted to a Physical Capacity Evaluation, that utilized isometric strength-testing that is compared to the National Institute of Occupational Safety & Health Standards (NIOSH).10 This testing was utilized to determine Mr. Sham’s physical demand level and ability to return to work in his previous job task. This testing consisted of computerized range of motion, computerized isometric lift tasks, along with a routine physical exam. The protocol consisted of lifting isometrically within the NIOSH 6-position protocol. The protocol is to instruct the subject to lift normally and in any way he felt best, and to stop if his comfort level changed. The objective of this testing was to determine the participant’s Physical Demand Level (PDL) for return into a suitable job task.
During testing, Mr. Sham was required to bend, squat, reach, walk, stand and sit for varying intervals of time, which are activities that coincide with his duties as a truck driver. These activities also involved pushing, pulling, lifting and straining against a non-moveable object to measure strength. This testing is quite rigorous and physically demanding. One of the most important aspects of this testing is that, if there is disability, impairment or injury, this testing would aggravate it immediately along with the accompanying symptoms. However, in this case, I cannot find evidence of Mr. Sham’s inability to perform or complete the testing, or any increase in objective medical signs/symptoms. This type of testing involves very objective protocols and anonymous tests; know as “distraction testing”. Specifically, there is no feedback from the equipment to tell the subject how he is performing. The built-in coefficient of variance ensures both subject and evaluator accuracy along with consistency. In Mr. Sham’s case, he was able to produce strength consistent with the Dictionary of Titles (DOT), Very Heavy Lifting,10 which is consistent with his described job task as a truck driver 5.
CONCLUSIONS AND RECOMMENDATIONS:
With the information derived from documentation pertaining to the computerized testing, physical examination, rehabilitation reports, videotapes and statements made by Mr. Sham, we can make the following conclusions.
In March of 1998, Mr. Sham participated in rehabilitation exercises, consisting of seated rows, squats, lat pull downs and leg curls. He utilized weights in excess of 50 lbs increasing to 100 lbs . The forces that these exercises produce on the lumbar spine, directly at the L5/SI disc space, are significant. Injured persons with lumbar spine involvement, in most cases, are unable to start and maintain exercises of this magnitude without exacerbating their symptoms. Mr. Sham complains of only slight increases in pain and symtomogly when performing these activities. These exercises mimic the type of activities, forces and strength consistent with performing his job description as truck driver.
In addition, Mr. Sham consistently and repeatedly participated in activities that produced forces and stress to his body that far exceeded those consistent with his job task. In most cases, it is normal for an injured individual to attempt to continue, activities they enjoyed prior to injury. In this case, thoe activities are skydiving and sky surfing. Once the activities are attempted and the symptoms increase, the injured person stops the activity, as it is too painful and debilitating. What is important to realize is that Mr. Sham was able to perform these activities repeatedly without aggravating his symptoms or injury. For example, the video clearly shows Mr. Sham landing after a jump involving sky surfing. He is clearly visible descending and, at the last moment, pushes off the board with his foot and then impacting the ground.15, 16. Mr. Sham then gathers up his chute, along with the board weighing 10 lbs. Carrying these items, he then walks over to the investigators filming his activities. The investigators engage him in a conversation about his activities. This tape depicts several biomechanical attributes. Mr. Sham is able to walk, bend, stoop, and carry items without difficulty or antalgic (pain) posture.
He is able to stand erect holding these items and speak without inflection or obvious pain. This is all done after impacting the ground, 15, 16 with a visibly hard landing at an estimated speed of 15-20 mph. This leads to the following conclusions:
1. Mr. Sham’s body mechanics are not consistent with his reported degree of disability.
2. Mr. Sham’s movement patterns are not consistent with his reported degree of disability.
3. Mr. Sham’s diagnosistic-based limitations are not consistent.
The forces from his voluntary hobby and the construction work would not only have exacerbated his injuries, but most likely would have resulted in a more severe injury and disability, if Mr. Sham was physically impaired or the injury was “active”. As stated, the forces enacted on his body during these activities are so excessive that they would exacerbate and flare-up an active injury, especially the lumbar spine, if the individual was impaired.
For example, astronauts Neil Armstrong (commander) and David Scott (pilot), of the Gemini VIII, received similar forces that Mr. Sham experienced. The Gemini VIII astronauts experienced Gz force of 0.89 G-units from the waist up, Gz of 0.05 from the waist down, and were momentarily incapacitated.11 This was so disturbing to NASA that they redesigned the space capsule for re-entry to prevent this from recurring. Mr. Sham sustains and repeats forces in excess of 1-2 Gz and tolerates these activities consistent with a professional skydiver, again without hesitation or injuring his low back. Long-term stress and force causes significant long-term injury and changes to the human body, i.e., spinal stenois,12 disc disease and repeated micro tearing of the intervertebal discs, etc. These changes are represented in Mr. Sham’s medical data, indicative of long-term, continuous trauma due, in part, to his skydiving activities.
Mr. Sham also made statements that he was training for the ESPN Extreme Games in Sky Surfing.3, 13, 14 The requirements to enter this sport are physically demanding. They require multiple jumps exceeding speeds of 200 mph and Gz forces well exceeding 1.00. In addition, the competition requires the surfer/diver to twist, turn, rotate, and spin while traveling at speeds in excess of 150-200 mph. This, again, causes tremendous stress on the body that would have resulted in injury and incapacitation to an individual with an injury.11, 12 Mr. Sham practiced and performed for this competition multiple times, indicating his ability to return to work full time, unrestricted. Billy Carnes made the statement that skydiving is “not as strenuous as pushing twenty or thirty thousand pounds of freight around, it’s not quite the same thing.”2 He is, in essence, correct; it is not the same thing, it is worse. By definition, Very Heavy Lifting17 constitutes lifting greater than 100 lbs on an occasional basis, 50 lbs on a frequent basis, and 20 lbs on a constant basis. In his employment as a truck driver, Mr. Sham is able to utilize his own strength and body mechanics in performing lifting tasks. He is able to control the speed, force, direction, and all aspects of the job task. His own pain, fatigue, impairments, restrictions, and intelligence, along with the human guarding mechanism, limit him from injuring himself unless, of course, unforeseen circumstances occur.
In the case of skydiving, he knows the risks and is unable to affect and control the forces acted upon him. The diver cannot prepare for the forces that come from skydiving, as they come from variety of different directions at once and at different loads, causing extreme tearing, shearing, and loading on all parts of the body. An injured body cannot take this abuse and stress without breaking down, or the symptoms and impairments flaring-up. The fact that Mr. Sham was able to repeat this activity supports the conclusion that he could have returned to work full time unrestricted when he resumed or continued skydiving. Mr. Sham continued to perform these activities, resulting in stresses and forces more severe than he could possibly have caused himself performing the duties consistent with a truck driver during a typical day at work.
The August 8, 1998 Physical Capacity Evaluation determined, objectively, Mr. Sham’s Physical Demand Level (PDL) to be Very Heavy Lifting17 consistent with and exceeding the New Penn Motor Express Inc. job description of Truck Driver. According to the records, Mr. Sham did not exhibit the following. His strength presentation was not consistent with his diagnosis. One would expect a significant increase in pain and restriction from someone with the type of injury and restriction reported by Mr. Sham. As stated above, this testing is rigorous and physically demanding. This testing is designed to aggravate an injury to determine a subject’s ability to do work. Mr. Sham was able to tolerate and excel in the testing process to levels far exceeding the average proportion of the population. This testing indicated that Mr. Sham was able to return to work as a truck driver full time and unrestricted.
The position and specific job functions as described by New Penn Motor Express, Inc.5 are safe for Mr. Sham to perform. Mr. Sham exhibited, in multiple ways, independent of one another, the ability and strength consistent with and exceeding the ability to perform very heavy work consistent with his job tasks at New Penn Motor Express, Inc. We did not find any physical reason why Mr. Sham could not return to his job duties5 as a truck driver as of March 30, 1998. This is the date Mr. Sham completed his rehabilitation routines consistent with his job description. It is also concluded that Mr. Sham could have returned to his job task full time, unrestricted, upon his first repeated freestyle skydiving activity, or whichever date came first. It is our opinion, based on the available subjective data provided, Mr. Sham could have been working in some capacity with modified duty from the date of injury. We cannot give an exact work level, as we do not have objective medical records or tests to determine the level of work for which he could have returned. However, the rehabilitation records of March 30, 1998 indicate that he was lifting weights in positions that mimicked his work activities as a truck driver, and could have returned to work full time unrestricted on that date.
In addition, Mr. Sham’s subjective complaints of pain, spasm, and restrictions do not correlate with his activities. They are inconsistent with the findings of the physical capacity evaluation, along with the physical requirements of sky surfing, skydiving, and/or construction work. In addition, Mr. Sham stated that his goal was “to return to work.” Specifically, he did not return to work but continued to misrepresent the facts regarding with his outside activities, severity of his injuries, and ability to return to work, to all medical personnel encountered.
All decisions made by the medical personnel were based on misleading statements and inaccurate subjective data provided by Mr. Sham. The medical personnel were unable to accurately determine the legitimacy of the claim and make recommendations as to the severity of injury, treatment, and return to work recommendations.
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,
Allen S. Miller, D.C., DACBSP
COO, Kinematic Solutions, LLC
Enclosures
Footnotes
Transcript Court Proceedings, Commonwealth of Massachusetts, Lowell District Court. Commonwealth of Massachusetts vs. Timothy Sham. April 11, 2001.
3 Transcript from Tape Recording: Case #:01-0533. Southern New England Joint Area Committee. May 24, 2001.
4 Diagnostic Imaging Department, Exeter Hospital, Inc. 12/30/1997.
5 Exercise: Worksheet, Exeter AthletiCare. 3/26/98-4/3/98
6 Exercise: Worksheet, Exeter AthletiCare. 6/12/98-6/26/98.
7 Job Description, 1-City Driver/Road Driver.
8 rec.skydiving FAQ Sheet. http://www.afn.org/skydive/faq/faq.html#physical ., Archive-name: sports/skydiving/faq. Last-modified: 8/13/97
9 Fong KL, Fan SW., An overview of the physiological effects of sustained high +Gz forces on human being. Ann Acad Med Singapore 1997 Jan;26(1):94-103.
10 Physical Capacity Evaluation, Debra McAuley, OTR/L 8/13/98
11 Mohler SR, Nicogossian AE, McCormack PD, Mohler SR Jr., Tumbling and space flight: the Gemini VIII experience. Aviat Space Environ Med 1990 Jan;61(1):62-6.
12 Hamalainen O, Toivakka-Hamalainen SK, Kuronen P. +Gz associated stenosis of the cervical spinal canal in fighter pilots. Aviat Space Environ Med 1999 Apr;70(4):330-4
13 BAP Qualifications. HTTP://www-user.york.ac.uk/~socs213/info/category.html .
14 Addendum-Sky surfing Compulsory Sequences 2001 Performance Requirements & Judgment Criteria. HTTP://members.aol.com/skysurfnj/page4.html.
15 VHS Videotape. Labeled MASS AG. Depicting Mr. Sham Sky surfing, landing and interviewed by investigators.
16 VHS Videotape. Labeled TV-25 Sham. Depicting Fox 25 new at Ten. Fox undercover exclusive of Timothy Sham sky surfing.
17 Dictionary of Occupational Titles, U.S. Department of Labor Employment and Training Administration 1991. Volume II Fourth Edition, Revised 1991
Dr. Allen S. Miller's Reports 