Case 2:11-cv-00048 Document 33 Filed 05/16/11 Page 1 of 9 PageID #: 400 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON WEST VIRGINIA CITIZENS DEFENSE LEAGUE, INC., et al. THE CHARLESTON DEFENDANTS’ REPLY BRIEF IN FURTHER SUPPORT OF THEIR MOTIONS TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants City of Charleston,
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Ime reportSample Type: IME, Work. Comp. etc.
PRESENT COMPLAINTS: The patient is reporting ongoing, chronic right-sided back
pain, pain that radiates down her right leg intermittently. She is having difficulty with
bending and stooping maneuvers. She cannot lift heavy objects. She states she continues
to have pain in her right neck and pain in her right upper extremity. She has difficulty
with pushing and pulling and lifting with her right arm. She describes an intermittent
tingling sensation in the volar aspect of her right hand. She states she has diminished grip
strength in her right hand because of wrist pain complaints. She states that the Wellbutrin
samples I had given her previously for depression seem to be helping. Her affect appears
appropriate. She reports no suicidal ideation. She states she continues to use Naprosyn as
an anti-inflammatory, Biofreeze ointment over her neck and shoulder and back areas of
complaints. She also takes Imitrex occasionally for headache complaints related to her
neck pain. She also takes Flexeril occasionally for back spasms and Darvocet for pain.
She is asking for a refill on some of her medications today. She is relating a VAS pain
score regarding her lower back at a 6-7/10 and regarding her neck about 3/10, and
regarding her right upper extremity about a 4/10.
PHYSICAL EXAMINATION: She is afebrile. Blood pressure is 106/68, pulse of 64,
respirations of 20. Her physical exam is unchanged from 03/21/05. Her orthopedic exam
reveals full range of motion of the cervical spine. Cervical compression test is negative.
Valsalva's maneuver is negative. Hoffmann's sign is negative. DTRs are +1 at the biceps,
brachioradialis and trapezius bilaterally. Her sensation is grossly intact to the upper
extremity dermatomes. Motor strength appears 5/5 strength in the upper extremity muscle
Phalen's and Tinel signs are negative at both wrists. Passive range of motion of the right
wrist is painful for her. Passive range of motion of the left wrist is non painful. Active
range of motion of both wrists and hands are full. She is right hand dominant.
Circumferential measurements were taken in her upper extremities. She is 11 inches in
the right biceps, 10-1/2 inches in the left biceps. She is 9 3/4 inches in both right and left
forearms. Circumferential measurements were also taken of the lower extremities. She is
21 inches at both the right and left thighs, 15 inches in both the right and left calves.
Jamar dynamometry was assessed on three tries in this right-hand-dominant individual.
She is 42/40/40 pounds on the right hand with good effort, and on the left is 60/62/60
pounds, suggesting a loss of at least 20% to 25% pre-injury grip strength in the right
Examination of her lumbar trunk reveals decreased range of motion, flexion allowing her
fingertips about 12 inches from touching the floor. Lumbar extension is to 30°. The right
SLR is limited to about 80°, provoking back pain, with a positive Bragard's maneuver,
causing pain to radiate to the back of the thigh. The left SLR is to 90° without back pain.
DTRs are +1 at the knees and ankles. Toes are downgoing to plantar reflexes bilaterally.
Sensation is grossly intact in the lower extremity dermatomes. Motor strength appears 5/5
strength in the lower extremity muscle groups tested.
IMPRESSION: (1) Sprain/strain injury to the lumbosacral spine with lumbar disc
herniation at L5-S1, with radicular symptoms in the right leg. (2) Cervical sprain/strain
with myofascial dysfunction. (3) Thoracic sprain/strain with myofascial dysfunction. (4)
Probable chronic tendonitis of the right wrist. She has negative nerve conduction studies
of the right upper extremity. (5) Intermittent headaches, possibly migraine component,
possibly cervical tension cephalalgia-type headaches or cervicogenic headaches.
TREATMENT / PROCEDURE: I reviewed some neck and back exercises.
RX: I dispensed Naprosyn 500 mg b.i.d. as an anti-inflammatory. I refilled Darvocet N-
100, one tablet q.4-6 hours p.r.n. pain, #60 tablets, and Flexeril 10 mg t.i.d. p.r.n. spasms,
#90 tablets, and dispensed some Wellbutrin XL tablets, 150-mg XL tablet every
morning., #30 tablets.
PLAN / RECOMMENDATIONS: I told the patient to continue her medication course
per above. It seems to be helping with some of her pain complaints. I told her I will
pursue trying to get a lumbar epidural steroid injection authorized for her back and right
leg symptoms. I told her in my opinion I would declare her Permanent and Stationary as
of today, on April 18, 2005 with regards to her industrial injuries of May 16, 2003 and
February 10, 2004.
I understand her industrial injury of May 16, 2003 is related to an injury at Home Depot
where she worked as a credit manager. She had a stack of screen doors fall, hitting her on
the head, weighing about 60 pounds, knocking her to the ground. She had onset of
headaches and neck pain, and pain complaints about her right upper extremity. She also
has a second injury, dated February 10, 2004, when apparently a co-worker was goofing
around and apparently kicked her in the back accidentally, causing severe onset of back
FACTORS FOR DISABILITY:
1. She exhibits decreased range of motion in the lumbar trunk.
2. She has an abnormal MRI revealing a disc herniation at L5-S1.
3. She exhibits diminished grip strength in the right arm and upper extremity.
1. Based on her headache complaints alone, would be considered occasional and minimal
to slight at best.
2. With regards to her neck pain complaints, these would be considered occasional and
slight at best.
3. Regarding her lower back pain complaints, would be considered frequent and slight at
rest, with an increase to a moderate level of pain with repetitive bending and stooping and
heavy lifting, and prolonged standing.
4. Regarding her right upper extremity and wrist pain complaints, these would be
considered occasional and slight at rest, but increasing to slight to moderate with
repetitive gripping, grasping, and torquing maneuvers of her right upper extremity.
LOSS OF PRE-INJURY CAPACITY: The patient advises that prior to her industrial
dates of injury she was capable of repetitively bending and stooping and lifting at least
60 pounds. She states she now has difficulty lifting more than 10 or 15 pounds without
exacerbating back pain. She has trouble trying to repetitively push or pull, torque, twist
and lift with the right upper extremity, due to wrist pain, which she did not have prior to
her industrial injury dates. She also relates headaches, which she did not have prior to her
WORK RESTRICTIONS AND DISABILITY: I would find it reasonable to place
some permanent restrictions on this patient. It is my opinion she has a disability
precluding heavy work, which contemplates the individual has lost approximately half of
her pre-injury capacity for performing such activities as bending, stooping, lifting,
pushing, pulling and climbing or other activities involving comparable physical effort.
The patient should probably no lift more than 15 to 20 pounds maximally. She should
probably not repetitively bend or stoop. She should avoid repetitive pushing, pulling or
torquing maneuvers, as well as gripping and grasping maneuvers of the right hand. She
should probably not lift more than 10 pounds repetitively with the right upper extremity. I
suspect that prior to her industrial she could lift repetitively and push, pull, torque and
twist at least 20 to 25 pounds with the right upper extremity.
CAUSATION AND APPORTIONMENT: With regards to issues of causation, they
appear appropriate to her industrial injuries and histories given per the May 16, 2003 and
the February 10, 2004 injuries.
With regards issues of apportionment, it is my opinion that 100% of her pain complaints
are industrially related to her industrial injuries of May 16, 2003 and February 10, 2004.
There does not appear to be any apportionable issues here.
FUTURE MEDICAL CARE: This patient should be allowed access to analgesics, anti-
inflammatories, and muscle relaxants from time-to-time, to manage her pain complaints,
access to migraine medications for headache complaints. She should also be allowed
consideration for a lumbar epidural steroid injection for back and right leg symptoms, and
consideration for surgical intervention in the future regarding her back and right leg
complaints. Brief courses of chiropractic care and physical therapy should be considered
for pain flare up.
TOTAL TEMPORARY DISABILITY: I understand that she has been TTD from the
last date she worked up until present. This TTD status should be allowed.
VOCATIONAL REHABILITATION: It is my opinion that this patient is a Qualified
Injured Worker. She needs to meet with a vocational rehabilitation counselor about
vocational retraining to get her back into the workforce.
I spent approximately 45 minutes reviewing medical records in preparation of this report. I will see the patient back here for follow up in about six to eight weeks. John Smith, M.D. JS/jw
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