~ -~l ~" j(M $/1

BEFORE THE U 7-,qr-1-MISSISSIPPI WORKERS' COMPENSATION COMMISSION

MARK THOMAS McGOVERNMAXINE ANDREWS

V.

CLAIMANT

MWCC NO. 91 02758-E-3250

PEPSI-COLA OF BATESVILLE, INC.

and

HOME INDEMNITY COMPANY

DEPOSITION

OF

KENNETH J. GAINES, M.D.

May 11, 1992

MARK S. DODSONRegistered Professional Reporter44 North Second Street, Suite 300

Memphis, TN 38103 (901)526-2179

EMPLOYER

CARRIER

1 The deposition of KENNETH J. GAINES, M.D.

2 was taken on behalf of the Employer and Carrier

3 pursuant to Notice and agreement of counsel, in

4 accordance with the provisions of the Mississippi

5 Rules of civil Procedure, for use thereunder in the

6 above-entitled cause, beginning at 9:00 a.m., on the

7 15th day of May, 1992, at the offices of the

8 deponent, 920 Madison Avenue, Memphis, Tennessee,

9 before Mark Sa Dodson, Registered Professional

10 Reporter.

11 All forms and formalities, including the

12 signature of the witness, are waived. All

13 objections, except as to the form of the question,

14 are reserved, to be presented and disposed of at or

15 before the hearing of the cause.

A P PEA RAN C E S

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For the Claimant:

For the Employer andCarrier:

JAMES E. HOLLAND, ESQ.PaD. Drawer 1680Cleveland, MS 38732

ROBERT L. MOORE, ESQ.2900 - One Commerce SquareMemphis, TN 38103

2

KENNETH J. GAINES, M.D.,

was duly sworn and testified as follows:

DIRECT EXAMINATION

BY MR. MOORE:

Q. Would you tell His Honor your full name,

please.

Tennessee.

Q. For the benefit of the jury, what is a

neurologist? What do you do as a neurologist?

A. A neurologist is a specialist that deals

with diseases of the brain, the spinal cord, and

peripheral nerves.

Q. And tell me about your background as far

as your experience and training.

A. I went to medical school at the

University of Tennessee in Memphis. Upon completion

of that, I went through a internship at the City of

Memphis Hospitals and subsequently a three-year

neurology residency at the University of Tennessee.

I was on the faculty of the University of Tennessee

in neurology before going into private practice.

And I subsequently practiced in Hattiesburg,

Mississippi, and then in Tupelo, and finally

returned to Memphis to do a combination of teaching

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A.

Q.

A.

Q.

A.

Kenneth James Gaines.

What is your profession?

I am a neurologist.

Where are your offices located?

At 920 Madison Avenue in Memphis,

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and research and clinical practice.

Q. Do you teach here in Memphis now?

A. I do.

Q. Where do you teach?

A. At the University of Tennessee Medical

School. I am assistant professor in neurology.

Q. Would you be teaching other medical

students in your specialty area?

A. That's correct.

Q. Are you licensed to practice medicine in

the State of Mississippi?

A. I am.

Q. All right. Since when have you been

licensed in the State of Mississippi?

A. Approximately 1977, '76, I believe.

Q. I gather you are also licensed here in

the State of Tennessee?

A. That's correct.

Q. How long have you been teaching at the

hospital here?

A. Ever since I have been in Memphis, about

five years.

Q. And you are now in a private practice in

addition to your responsibilities as a professor at

the medical school, you also have a private medical

practice with what's called the Semmes-Murphey

Clinic?

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A.

Q.

That's correct.

And the Semmes-Murphey Clinic, so the

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1 members of the jury will understand, is it a group

2 of doctors?

3 A~ It's a group of neurologists and

4 neurosurgeons~ There are about 35 people in the

5 group, 35 physicians, and combination of

6 neurologists and neurosurgeons.

7 Q. In the medical practice that you practice

8 as far as this group, what types of medical problems

9 does your group treat?

10 A~ We treat head injuries, strokes,

11 seizures, headaches, multiple sclerosis.

12 Q. Now, have you written any papers of any

13 type in your field?

14 A. I have. Most of my research is in the

15 area of stroke~ And I do research, both

16 epidemiologic and clinical trial research in stroke.

17 And I have several publications in the area of

18 stroke.

19 Q. I didn't ask you when we started today,

20 but do you have what a lot of doctors call a

21 curriculum vitae?

22 A. I do.

23 Q. There may be some experiences and

24 training that I've left off that you have on that,

25 so I would like to get that and make that as an

26 exhibit also.

27 A. We'll provide you with that.

28 Q. Doctor, in the course of your practice of

29 neurology, have you had occasion to see and treat

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1 Marc T. McGovern?

2 A. Yes, sir, I have.

3 Q. When was the first time that you saw and

4 treated Mr. McGovern?

5 A. I first saw Mr. McGovern January 24th,

6 1991-

7 Q. How did he come to see you?

8 A. He was referred to me by Dr. Fred Sage

9 who is an orthopedic surgeon in Memphis.

10 Q. When Mr. McGovern came to see you on

11 January 24, 1991, did you take a history from him?

12 A. Yes, sir, I did.

13 Q. What was that history, please?

14 A. At that time he was 25 years old and

15 right-handed. And he gave me a history of a back

16 injury that occurred four years prior to that which

17 caused some pain in his back and in both of his

18 legs. The pain lasted only a short period of time.

19 He reported that he stayed in the hospital for seven

20 days in traction and was off work for about seven

21 weeks for his back pain. He had fallen off a pole

22 where he worked. There was no head injury at that

23 time. He reported doing well until about eight

24 months prior to my seeing him in January of '91 when

25 he had onset of new symptoms. The new symptoms had

26 involved back pain, but even more prominent than

27 that was a sensation of a numbness in both of his

28 feet, right side greater than left, that it

29 subsequently developed into numbness in the right

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arm and the right side of his face over the

preceding one month.

He was not aware of any weakness in the

arms or legs. He described a continuous numb

feeling involving the right side of his face, right

arm and both legs. He had a headache for about a

week. Complained of some intermittent blurred

vision and that his night vision was not as good as

it was in the past. He did not describe any double

vision, hearing loss, or ringing in the ears. He

described his work situation at that time which was

lifting as a Pepsi-Cola merchandiser, but he

described no recent specific injury to his back.

Q. When he told you that part of his job

involved lifting and carrying cases of drinks, did

you ask him specifically about any recent injury?

A. Yes, sir, that's what I just related. We

had asked the question of whether or not there had

been a specific injury that he could relate, and at

that point he said no.

Q. When you reviewed his symptoms, did you

find anything of significance about his weight?

A. Be had reported about 20 pounds of weight

loss recently. Excuse me.

(The deposition was briefly

interrupted. )

Q. Did you conduct an neurological

examination?

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examination?

A. His general physical examination was

unremarkable. His neurologic exam included an

evaluation of mental status, cranial nerves, and we

found no abnormalities there. And we found his

reflexes to be symmetrical at the biceps, triceps,

knee and ankle jerks. His toe signs were downgoing

bilaterally. Hoffman reflexes were absent. His

cerebellar limb and gait testing, which was a

measure of balance, was normal. Bis general sensory

exam was normal to pin touch, vibration and

stereognosis. There was no bruits heard in the

neck, and the skull showed no abnormalities. There

were no dysmorphic or neurocutaneous features.

We did not find a cortical sensory loss

to bilateral simultaneous stimulation. There was a

minimal decrease in pinprick sensation in the right

leg when compared with the left, but no other

sensory modality was affected. In the arm and the

leg there was otherwise a symmetrical pinprick

stimulation.

Q. As you were conducting the evaluation

that you just recited, were you looking for anything

in particular, or were you having a more broad-based

examination at that point?

A. I was doing a fairly broad-based exam

because the nature of his symptoms included both

pain in the lower back and then also symptoms that

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Q. What were the results of that

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presenting causes for this problem?

you explain that word for His Honor?

were more suggestive of problems not related to the

you just described, did you form an impression or a

diagnosis that you could work with?

This sensory loss

Best expressed as at least an uncertainty

And that's what we did in this gentleman~

Were you able to rule out any possible

When you say undetermined etiology, could

I diagnosed him as having lower extremity

Many times~

After you had conducted the evaluation

Within your specialty of neurology, have

Q.

consider~

Q.

A.

in the diagnosis to the point of having several

possible diagnoses that we would want to look at and

numbness of undetermined etiology and then right

sided numbness as he had described also of

undetermined etiology~

We felt that a neuropathy was a possibility,

something wrong with the brain such as multiple

sclerosis, then an evaluation of his lower back

pain~

A.

you seen and treated patients with neck strain, back

strain few times or many times?

back, more related to the brain~

involving the right face, arm and leg either

suggested some type of problem with the brain or a

neuropathy due to problems with the peripheral

nerves in the arm, leg and facea

Q.

Q.

A.

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1 A. Well, it seemed unlikely that this was a

2 tumor, for example. It seemed unlikely that this

3 was due to any type of vascular disease or hardening

4 of the arteries.

5 Q. Were you able to rule in or rule out

6 cervical and lumbar strain?

7 A. It seemed based on his symptoms that the

8 right-sided numbness would not be necessarily

9 related to the back pain that he complained of and

10 that those would have to be looked at as separate

11 problems.

12 Q. What did you do then to follow up on this

13 evaluation and bring you to a specific diagnosis?

14 A. He had several diagnostic studies

15 performed including an MRI scan of the head, evoked

16 potential studies, electromyographic studies and

17 then subsequently a set of laboratory studies

18 performed including a general chemistry panel,

19 looked for Lupus, looked at his serum proteins. And

20 of those tests, only two showed any relevant

21 abnormalities, his electromyographic study and the

22 study of his serum proteins.

23 Q. Are these tests that you just described

24 tests that are state of the art tests?

25 A. Yes.

26 Q. Are there any tests of which you are

27 aware that give a more accurate diagnostic image of

28 the patient's body?

29 A. No, sir.

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1 Q. When you got those results back, did that

2 help you to form a diagnosis as to Mr. McGovern's

3 problems?

4 A. Yes, sir, based on those initial tests,

5 we found nothing wrong with the brain. We found no

6 evidence of mUltiple sclerosis or a tumor in the

7 brain. We found no evidence of mUltiple sclerosis

8 based on the MRI scan. His scan of his lumbar spine

9 which he had, which he had had subsequent to that

10 also, had shown no abnormalities, and we felt that

11 based on his EMG study, however, that he had what's

12 called a peripheral neuropathy, which is a mild

13 disease of the nerves in the arms and the legs, and

14 that that explained the numbness that he had

15 complained of.

16 Q. When you say that the bone scans and the

17 other tests you have described showed no abnormality

18 in the lumbar spine, what are you talking about when

19 you say that?

20 A. We were looking for several problems

21 which might, in the lumbar spine, explain his back

22 pain. We would be looking for evidence of arthritis

23 of the spine, and we found no evidence of that. We

24 would be looking for evidence of a disc out of place

25 in the back. We found no evidence of that. We

26 would be looking for evidence of structural disease

27 of the bones where they were misplaced or out of

28 place, and we found no evidence of that.

29 Q. Did Mr. McGovern have any degenerative

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changes in his spinal column at all?

A. No, sir.

McGovern?

A. I saw him back on several occasions, and

we did several of these studies sort of sequentially

in his case actually going through February of 1991.

I did have him see another physician at that time

because of the abnormalities that we initially found

on his protein studies. And I had him see a

hematologist for evaluation of those. We found low

proteins in his blood. We were concerned that this

could represent a malignancy, but evaluation showed

no evidence of that.

Q. How did you set about to treat the

peripheral neuropathy that you diagnosed?

A. We felt based on the low proteins and his

other negative findings that this could be treated

with a vitamin therapy. We felt in fact he might be

vitamin deficient at that point. I treated him with

thiamin and folic acid which are two vitamins that

are important for nutrition of the nerves, and over

about a four- to five-month period he showed

improvement and his follow-up EMG study returned to

normal.

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Q.

Q.

therapy?

A.

Q.

When did you relate these findings to Mr.

When did you begin that course of

In March of '91.

Did you form an opinion, and do you have

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1 an opinion with a reasonable degree of certainty

2 what the cause of that vitamin deficiency was?

We found no specific explanation for3

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A.

that. It could be a number of factors. It could be

5 dietary, simply inadequate intake of these

6 particular vitamins.

7 Q. Are any of the factors that you've just

8 given to the court, would any of those factors

9 include trauma?

10 A. No, sir.

11 Q. Would any of those factors include

12 hurting your back or neck while you were lifting

13 weights?

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A.

Q.

No, sir.

Is there any significance to the weight

16 loss he reported to you as it relates to the

17 diagnosis you made?

Well, it might be if he were --

definitive diagnosis, and I want to be

sure that's in the record.

I don't believe you gave a

You can

I want to object toMR. HOLLAND:

the question.

A.18

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objection for later.

MR. MOORE:

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answer it. I am just preserving an

Let me change my

26 question.

27 Q. Can you tell the court within reasonable

28 certainty whether the weight loss he reported to you

29 impacted upon the vitamin deficiency?

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Q. What was his condi 'tLo n that day?

A. At that time he was being followed up in

regards to the peripheral neuropathy. We had

discontinued some of his medications at that point.

He had been on a short course of an

anti-inflammatory medication. We felt he was doing

well enough that he could return to work but that he

should go through a physical therapy program for

work hardening and arranged for a follow-up visit

two months subsequent.

Q. What kind of medication was he on then?

A. At that time he was still taking the

thiamin and the folic acid.

A. Well, I don't know for a fact that it

did, but it certainly could have if he were dieting

and having an inadequate intake of vitamins. That

could have explained the neuropathy.

Q. Are you able to say whether it's more

likely than not?

A. I think it probably was a contributing

factor.

Q. After February 5th, 1991, when was the

next time you saw Mr. McGovern?

A. I saw him through my last visit with him

which was June 18th of 1991.

Q. The visit that I am looking at after

February appears to be April 18, 1991.

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Q.

Yes, that's correct.

Is thiamin classified as a medicine or

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Q. Did you form any opinions on that date

regarding any permanent disability he might have and

into the future?

a prescription, folic acid is not, but they are both

therapeutic vitamins.

Q. On that date, did you discharge him?

Q. When was the last time you saw Mr.

McGovero, please?

A. The last time I saw him was June 18th of

1991.

Q. Would you tell the court what his

condition was on that date.

A. At that time he had returned with some

increasing lower back pain. Be had had a negative

MRI scan of the lumbar spine and the negative

evaluation as in regards to his back, but we did

find a neuropathy as we mentioned on his EMG

studies. We didn't think the neuropathy was a

reasonable explanation for his persistent pain. We

suggested a different type of anti-inflammatory

medication, arranged for some additional studies, a

bone scan and a sed rate and recommended that he

follow up with one of the surgeons to see if they

had any additional suggestions On the therapy.

Q. Do you have an opinion as to what the

Not at that time, no.

Thiamin is available without

No, sir.

It's both.

vitamin?

A.

A.

A.

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1 likely reasonable cause for his persistent pain was?

2 A. I could find no reasonable neurologic

3 explanation for his continued paina

4 Q. You have not seen him since June 18,

5 1991, is that true?

6 A. That's t.r ue .

7 Q. Is that because he was discharged that

8 day or because he hasn't come back to see you?

9 A. He was to follow up with Dra Jon

10 Robertson at that pointa It's my understanding that

11 he didn't do that. I had really recommended he

12 follow-up with him and then come back to see me if

13 that felt appropriate.

14 Qa Doctor, based on your examination of Mr.

15 McGovern, do you have an opinion about whether there

16 is any permanent disability that Mr. McGovern is

17 under?

18 A. No, based on my last visit with him I

19 felt it was reasonable for him to return to work,

20 and I didn't have any limitations on him.

21 Q. Did you assign any disability rating to

22 him in accordance with the AMA guidelines?

23 A. No, sir.

24 Qa If you had been asked to evaluate him for

25 a disability based on the AMA guidelines, would he

26 have had any?

27 A. No, sir.

28 Q. It was your understanding, was it not,

29 that Mr. McGovern was working as a merchandiser of

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Q. Is there any limitation on how much he

can push?

while?

A. Based on my evaluation, I think he could

do that as needed.

Q. Is there any limitation on how much

weight he can carry?

A. No, sir.

Q. Is there any limitation on how long he

can be on his feet?

A. No, sir.

Q. Is there any limitation on how long he

should sit?

Pepsi product? Be was lifting and carrying Pepsis?

A. Yes, sir.

Q. When you say that you are of the opinion

he could return to work without restriction, could

you describe that more fully for the court?

A. Based on his last visit, his neuropathy

had resolved based on his electrophysiologic

studies. I would recommend that he remain on

vitamin therapy but otherwise would not have any

limitations on him.

Q. Can he lift 50 pounds?

A. Yes, sir.

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Q.

A.

Q.

A.

Can he lift 75 pounds?

Yes, sir.

Can he do that repetitively or once in a

No, sir.

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Q. Is any limitation on how much he can

pull?

A. No, sir.

Q. Is there any limitation on how high he

can put weight?

Q. Limited only by his size, I presume?

A. Yes, sir.

Q. Doctor, let me show you what I've marked

as Exhibit 1 for identification. Is this a true and

correct copy of your most current curriculum vitae?

A. Yes, sir, it is.

that marked as the first numbered

exhibit, please, Mr. Dodson.

(Said document was marked as

Deposition Exhibit No.1.)

Q. Doctor, let me hand you what I've marked

as Exhibit 2 for identification. Are those true and

correct copies of your office records on Mr.

McGovern?

A. Yes, sir.

Q. Long question. Are these records that

are prepared in the ordinary course of business at

Semmes-Murphey by persons having a regular business

duty to prepare the records, are they then kept in

the ordinary course of business in your offices by a

custodian?

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A.

A.

No, sir.

No, sir.

MR. MOORE: I would like to have

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CROSS-EXAMINATION

BY MR. HOLLAND:

Q. Dr. Gaines, my name is Jim Holland. I am

kind of a surrogate attorney in this matter. I

think Daniel Griffith is the attorney in my firm

that's been handling this matter, and I believe you

have had correspondence with him and sent him your

records and things upon which I am going to base

most of my questions.

I want to start just by clearing up a few

things. You say you understood Mr. McGovern's job

description from the history that he gave you. Can

you tell me what you know about that job? What is

it he was doing? If you are clearing him for work,

I want to be sure we have the same understanding of

his job duties.

A. It was my understanding that he was -- as

part of that, he would lift cases of drinks and move

them from one place to another.

Q. Do you know the approximate weights of

those drinks?

A. I don't know how much a Pepsi-Cola

weighs.

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A. Yes, sira

MR. MOORE: Like to have that

marked as Exhibit 2. Doctor, I have no

further questions.

(Said documents were marked as

Deposition Exhibit No.2.)

19

Q. Would your opinion that you gave earlier

regarding able to lift and do the things necessary

for his job, would it change any if you knew that

those cases weighed in excess of 50 pounds apiece?

A. No, sir, based upon my evaluation, I

found that he was neurologically doing well based on

that last evaluation.

Q. That was based on the electrical studies?

A. That's correct.

Q. At the time you performed those

electrical studies, was he still complaining of low

back pain and sensory deprivation in the lower

extremities?

A. At that time, he was -- he had complained

of some continued back pain. And he was not

describing to me the symptoms of numbness.

Q. Could it be -- And I'll ask you this as a

neurosurgeon. At that point, he had been not

lifting the various weights and cases of things of

Pepsi product for approximately five months; is that

correct?

A. That's right.

Q. And if he had injured his back or

reinjured an existing injury, would not five months

rest be beneficial and possibly contribute to

reducing the amount of problems he was experiencing?

speculation.

It might decrease his back pain.

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MR. MOORE: Object to the

It

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Q. Are you familiar with the Jacksonian

seizure or focal point seizure?

A. Sure.

Q. Was the clinical symptomology presented

to you consistent with that?

A. No, sir.

Q. I didn't think it was eihter. My

understanding of that is that's an automatic,

nonvoluntary muscle jerk?

Ae That's righte

Q. But what I read seemed to me to be very

wouldn't have any effect on the neuropathy, which

was the major neurologic disease.

Q. In your neuropathy, and I am not a

medical physician, but I saw in the records where

someone had mentioned a Jacksonian seizure. That

was from one of the other physicians who speculated,

I am assuming, that he had a Jacksonian seizure. My

understanding -- Well, tell me what a Jacksonian

seizure is. My understanding didn't fit the

description that was in the clinical symptomology.

A. Let me just clarify. Are you getting

this from my records?

Q. It was

Let me rephrase.

records?

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Q.

A.

-- Dr.

No.

MR. MOORE: Dr. Sage's records.

Sage's records which I assume -­

Have you had access to Dr. Sage's

21

similar to cauda equina syndrome, c-a-u-d-a

e-q-u-i-n-a. Are you familiar with that syndrome?

A. Yes, sir.

Q. Did you rule out that particular

potential causal factor?

physician. I just saw the symptomology and

recognize it and curious as to how that was ruled

out.

A. Well, it would be very difficult for the

numbness in his arms and face, for example, to be

due to the cauda equina, which is down in the lower

part of the back, really has nothing to do with the

arms and face. Bnt he had, in fact, a scan of his

spine which showed no evidence of that.

Q. SO a compression injury to the spinal

nerves would have been shown in that particular

imaging?

A. Yes, sir, that's right.

Q. Okay. Again, I am not familiar enough

with those kind of things to know. You had

indicated that you had ruled out or that you didn't

feel the numbness was necessarily related to the

back problems. Could it have been?

A. No, sir, there would really be no

anatomic way that the numbness that he described

could be due to a problem with his back, that it had

to be separate problems, and they were.

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A.

Q.

Yes, sir, we did.

How is that ruled out? I am not a

22

1 Q. Well, I must be real lost. The numbness

2 was due to a neuropathy somewhere in the peripheral

3 nerves?

4 A. That's correct.

5 Q. What was the cause of the low back pain?

6 A. I found no explanation for that. I found

7 no structural abnormality of his spine which would

8 explain his back pain.

9 Q. Could a soft-tissue injury have caused

10 that particular problem?

11 A. Could have. Be just didn't have any real

12 physical findings that would have corroborated that

13 either.

14 Q. Okay. I am going to get back to where I

15 originally started, if I can remember where I

16 started. With the job description, you had

17 indicated it would not make any difference if cases

18 weighed in excess of 50 pounds?

19 A. (Witness nods head affirmatively.)

20 Q. I want to give you a brief hypothetical

21 on my understanding of his job description, subject

22 to objection of counsel. My understanding was that

23 he worked eight to ten hours a day driving a truck

24 to various clients of Pepsi and loading from the

25 truck onto a dolly and offloading and stacking in

26 the stores between four and five hundred cases of

27 soft drink product a day, five days a week, I

28 assume.

29 Given the symptomology that he pres-ented

23

Q. Is that an accurate and c omp.Le t e copy

that you provided to Mr. Griffith?

to you and given the results of your tests in April

of 1991, was he capable of performing a job of that

description?

A. At that time, yes.

Q. Prior to that time, was he capable of

performing those job duties?

A. At the time I last saw him, I had

released him to go back to the activities that we

had discussed. Prior to that time, during the

process of evaluating, looking for the cause of his

back pain, I felt a restriction was appropriate

during that time.

Q. I want to call your attention -- You

prepared for Mr. Griffith a physical capacities

evaluation, and I'll hand you a copy.

MR. HOLLAND: Have you seen this?

That's the only other copy I have. I

didn't think about it.

Q. Do you recognize that document that I've

handed to you? Can you identify that document?

A. Yes.

Q. Could you identify it, please.

A. Yes, this is a physical capacities form.

Q. All right. Is that a document that you

prepare as a physician in the regular course of

business?

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A. It is.

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Q. Now, if he should never lift 50 pounds

and he's to lift 400 50-pound cases in work a day, I

(Said document was marked as

Deposition Exhibit No.3.)

Q. Doctor, could you tell me the date of

that physical capacities evaluation, please?

A. June 11th of '91.

Q. And this was filled out by you?

Q. Okay. Now, you indicate, and I am going

to just start at the beginning, number ooe, you

indicate that an eight-hour workday, the claimant,

which is Mark McGovern in this instance, could sit

for approximately four hours a day. Is that not a

limitation on how long he can sit?

A. That's correct.

approximately five hours a day?

A. That's correct.

Q. And in section two, we're discussing the

amount that he could lift, and you say that he could

continuously lift or frequently lift up to 20

pounds, but that he should only occasionally lift in

excess of 20 pounds and never in excess of 50?

That's correct.

And that he could stand or walk

Yes, sir.

Yes, sir.

3.

MR. HOLLAND, Can I have that

marked as an exhibit? I believe we're to

A.

Q.

A.

A.

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have a small problem in that. I don't know how I

can justify the two.

A. You want to go through the rest of the

form, and I'll explain it?

Q. Yes. Under section three you indicated

that he should never carry in excess of 20 pounds

although up to 20 pounds he is free to continuously

carry?

A. Uh-huh.

Q. Be can bend, squat, kneel, crawl, reach

above his head occasionally?

A. That's correct.

Q. And that you expect him to improve and

that you did not put a maximum medical improvement

rating?

A. That's correct.

Q. If you could explain those for my benefit

and for the court's benefit, I would appreciate it.

A. Well, this was asked to be provided

during the course of his treatment, and really his

last evaluation occurred after this form was

completed. As I said, during the course of his

evaluation for a problem of neuropathy or back pain,

I felt it reasonable to put a limitation on him

until we saw what his response to therapy was going

to be and what type of resolution we would see of

his problem. I had also recommended that he see

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Q.

A.

Of course until he tires ont?

Correct.

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someone about a work-hardening program and also that

he see one of our surgeons for surgical evaluation.

At the end of his evaluation period, my original

statements still apply. I found nothing abnormal

with his spine. His neuropathy problem had resolved

based on electrophysiologic studies, and at the end

of my evaluation, my original statements, which is

what I was asked originally was at the end of my

evaluation what did I think, at that time I felt

that he had no disability and no limitations.

Q. That was the June -- was it 19th?

A. That was June 18th, 1991.

Q. SO the June 11th report was based on your

examinations of Mr. McGovern up to the -- I believe

it was the end of May was the last time you saw him

before the January 18th point?

A. That's correct.

Q. Now, prior to this time, I believe it was

on the 18th you wrote a clearance letter to the

Mississippi Workers' Compensation Commission

indicating that Mark McGovern could be released to

work without restrictions. At that time shouldn't

it have still been sUbjected to these restrictions

pending the electric -- well, the studies that you

were doing?

A. As of what date now?

Q. As of the 4/8, on 4/18/91, you wrote a

letter, and I will call it a clearance letter

because again I don't practice workers' compensation

27

1 law, excuse me, dated May 14th where you released

2 Marc McGovern to work as of May 15, and I just have

3 a copy of my notes on it to refresh your memory.

4 You released him at that point without any

5 restrictions. At that point should he still have

6 been limited to the restrictions in your physical

7 capacity evaluation?

8 A. Yes, those limitations should go through

9 the date of the last visit which is June 18th, 1991.

10 Q. Okay. So the two letters, and I

11 understand there were two letters written clearing

12 him for work, but prior to June 18th he should not

13 have been released to work other than subject to the

14 limitations in the physical capacity evaluation of

15 June 11?

16 A. I think the appropriate date for all of

17 these is June 18th, 1991.

got my scratching on it.

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19

Q. Okay. Could I have that note back? It's

Thank you.

20 Did you ever have an opportunity to talk

21 to Mr. McGovern concerning why he was not consistent

22 in coming back up here, why he is not returning for

23 the work-hardening programs?

with Mr. McGovern to your recollection?

A. Not to my recollection, no.

Q. But would you have noted it had you had

one if it had been just a telephone call and no

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A.

Q.

No, sir.

You didn't have a telephone conversation

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1 medical discussion?

2 A. Not necessarily, particularly if it were

3 an after hours time.

4 Q. SO if he indicated that he had contacted

5 you regarding financial inability to continue to

6 return, you would not necessarily have noted that?

7 A. That could be, yes.

8 Q. All right. When he first presented to

9 you with the problems, I won't go back into it, you

10 indicated in the history that he had had a back

11 injury approximately four years prior to his

12 presenting to you?

13 A. That's correct.

14 Q. And in that history, did he tell you that

15 he had continued to have debilitating problems with

16 that or had he basically overcome any injuries

17 sustained at that time?

18 A. My understanding of his symptoms was that

19 he had had that initial episode and that then much

20 of his back pain had resolved up until eight months

21 prior to that January 24th, '91 visit.

22 Q. And during that eight months, was he

23 still working according to your work history?

24 A. As far as I know, he was, yes.

25 Q. Bad he continued to work up until fairly

26 recently just prior to that 1/24 visit?

27 A. Yes, sir.

28 Q. When he indicated that he had done some

29 lifting as a merchandiser at Pepsi-Cola but defined

29

no other recent injury, did he indicate to you that

he had had any problems lifting or that he had

experienced any pain while lifting anything?

A. Well, he described to me of course that

he had a difficult job, which he does, lifting heavy

objects a But what I was trying to get from him was

the history of something specific that might have

represented an injury. And I think my record

reflects that we really sought that information

specifically and didn't get it.

Q. In response to your inquiry to him as to

whether he had any specific injury, was his response

nothing other than lifting heavy drinks of Pepsi?

A. That's right. Be said -- You know, I

don't know of anything specific I did. I am not

quoting him, but what I recall him saying was, "I

don't know of anything specific I did, but I do have

a difficult jobw I lift heavy things most every

day. "

Q. Did he indicate to you that at one point

when he was lifting, he thought he felt something

pop in his back?

A. I don't have any record that he described

that.

Do you recall whether he did or didn't?

I don't have any independent recollection

It's not in my record that he described

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Q.

A.

of that.

that.

Q. That's fine. I will ask you a question

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It's a very poorly

Object to the form ofMR. MOORE:

the question.

MR. HOLLAND:

asked question.

MR. MOORE: On two grounds; one,

it's a very poorly asked question, so I

object to the form. It's multiple and

complex. Secondly, according to the

history as related to the other doctor,

these problems of peripheral neuropathy

and increasing back pain began before he

started working for Pepsi. Subject to

those objections, Doctor, if you are able

to answer the question, go ahead.

You wouldn't want to repeat that, wouldA.

you?

Q. I can't repeat it in those words, but

I'll try to make it a little cleaner. Let me just

as a neurosurgeon; if you have a patient who has

continued to work and in fact had been consistently

working well in a position like Marc's, lifting,

stooping, bending, and during the course of that

work several months into that job he started

experiencing additional pains and problems and

prevented him from working, do you have any opinion

as to whether or not continued lifting and things of

that sort contributed to or was a substantial factor

in his subsequent limitations and his pain that he

cannot work?

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1 ask you to assume a few things, okay.

2 One, let I s assume that Marc was

3 satisfactorilY performing his job duties as a

4 merchandiser with Pepsi-Cola Company for three or

5 four months preceding January, 1991, lifting,

6 toting, stacking, putting four to five hundred cases

7 of Pepsi product a day on a dolly and stacking them

8 in a store, admitted complaining of some back pain

9 during this but still capable of performing his job.

10 Four months into his job he SUddenly develops

11 increased back pain, increased numbness to the point

12 where he is unable to perform that work load. Okay.

13 So based on that hypothetical, is it more likely

14 than not to a degree of medical probability that he

15 suffered some injury while lifting and toting and

16 stacking those cases that exacerbated or caused

17 exacerbated a preexisting condition or caused a new

18 condition that prevented him from working during the

19 period that he was under your care up through June

20 18th of '91?

21 MR. MOORE: Object to the form.

22 It's an unfair and untrue hypothetical.

23 You may answer.

24 A. The questin would have to start off by

25 separating the problem of back pain and numbness

26 because I don't think the two are related to one

27 another, as I have stated in my earlier testimony.

28 Q. We'll limit it to the back pain.

29 A. The back pain which he suffered, based on

32

Q. You indicated that he needed to be

involved in this work-hardening physical therapy?

A. (Witness nods head affirmatively.)

Q. Is that an indication that he has or has

not reached maximum medical improvement?

A. I had felt that by going through the

work-hardening program he might be better able to

my information, was something which had been present

for some time. We did consider the possibility that

his -- that he had suffered some type of injury to

his back which might have been an exacerbation of

his back pain. As we went through his physical

examination and his subsequent test, we really found

no objective documentation that there had been a

subsequent injury or that he had had any disease of

the spine. And given the fact that he has -- that

he has a difficult job that involves heavy lifting,

our response was to suggest that he go through a

work-hardening program to try to strengthen his back

to see if he could continue with the type of work

that he was doing. I think that to answer your

question, I found no history of an injury to his

back that occurred in the several months prior to my

seeing him January 24th of 1991. And I really found

nothing on his subsequent work-up that would have

substantiated an injury.

Q. Did you find any evidence of a prior

injury?

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A. No, sir.

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---~--

resolve quickly over time and don't leave any

deal with the job that he had which he said he

wanted to continue with. And then I felt that based

on the improvement in his electrophysiologic studies

based on the last visit that I saw him, that he had

reached maximum medical recovery and that any

restrictions would not apply at that point.

Q. Doctor, would a man with back problems be

able to carry out the job that was described to you

Marc McGovern had satisfactorily, competent?

A. Well, I think there are some people with

spinal disease, people with disc disease, disc

herniations, abnormal spines that we can -- that we

can document on MRI studies and similar tests who

should not be doing the kind of work that he was

doing. Based on our studies, we couldn't document

anything specifically abnormal that was created by

his worka I suspect he might be wise to consider

some different type of employment, but if he wanted

to continue with that, I found no medical evidence

that he was going to damage himself by doing that

anymore than the next person would.

Q. The fact that you found in your tests no

indication of injury, is that an absolute preclusion

of an injury?

Aa There can be people who have what was

mentioned earlier which are soft-tissue injuries to

the spine that are not demonstrated on the studies

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that we dida However, those problems do typically

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- -- _._---------------------_._-

evidence of an injury, and as I mentioned to you

earlier, had Marc told you day one something popped

in my back lifting a case of drinks, would that

change the complex of your opinion today?

A. Well, not really because the result of

his physical findings which were negative and his

SUbsequent x-ray studies of his spine really failed

to demonstrate the kind of problem that should be

residual structural abnormalities of the spine.

Q. Is that not in some -- The way you

described Marc's course of treatment, is that not

consistent with that course?

A. We had no history of a specific injury

that would be relevant to this particular

circumstance, and with the history of back pain that

had gone on for, you know, some eight months prior

to my seeing him in January and then for five months

during the -- approximately five months during the

treatment course that I saw him, it would be hard to

understand how that would continue for that long.

Q. It would be difficult for a soft-tissne

injury of a nature you would get by picking up cases

and things to continue for that length of time?

A. In the absence of other physical findings

on his exam, yes.

Q. Well, I am assuming they were absent, you

have identified no physical findings?

A. That's correct a

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Q. If your medical history had included some

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(Discussion off the record.)

MR. BOLLAND: Back on record,

Doctor, we had a brief pause off the

record

(The deposition was interrupted.)

MR. HOLLAND: After another brief

pause, I think that I've had all my

questions that I know how to ask

answered, and I appreciate your time, and

I have no further questions. I tender

for redirect.

REDIRECT EXAMINATION

BY MR. MOORE:

Q. Doctor, when you tell Mr. Bolland that

there were no physical findings to corroborate a

soft-tissue injury, what are the specific findings

that were absent that you would expect to find if

you had a soft-tissue injury?

A. Be had no abnormal findings relevant to

the lumbar spine such as muscle spasm, tenderness,

limitation of motion of his spine, which would -­

which would corroborate a significant injury, and

then you combine that with the EMG and lumbar spine

MRI evidence, and there was certainly nothing to

document a persistent injury.

Q. Did you lay a hand on the patient?

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------ ---

persistent for a year plus.

MR. BOLLAND:

record?

Can we go off the

36

- -~- - ----~------

1 A. Yes.

2 Q. You found no spasm?

3

4

A.

Q.

No.

Did you put him through a full range of

5 motion exercise?

Is that true?

When Mr. McGovern is taking his thiamin

No.

That's true.

Did he have any swelling?

On Exhibit 3, you've indicated some

No, sir.

No.

Any point tenderness?

interim findings that you made.

A.

Q.

A.

Q.

A.

Q.

flexion of

pain?

A.

Q.

A.

Q.

A.

Q.

8 No.

6 Yes.

9 At the fullest extension in the fullest

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21 and his folic acid, is there any limitation at all

22 that he would have?

23 A. Not as of the date of my last visit with

24 him, no.

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27

Q.

A.

Q.

June 18, 19911

That's correct.

Doctor, how would you describe the way

28 you approach workers' camp cases, liberal or

29 conservative?

37

findings at all other than the peripheral neuropathy

that's related to his protein imbalance?

the time that I was seeing him until we were clear

of the origin of his problems that he should have

some limitation on his physical activities but not

following that June visit.

MR. MOORE: No further questions.

AND FURTHER THIS DEPONENT SAITH NOT.

(Signature waived.)

significant neurological problem.

a protein imbalance.

No, peripheral neuropathy was a

You can

And I felt during

I object to the

I would object to

Did you find any abnormal

MR. HOLLAND:

MR. HOLLAND:

I don't know that he said it wasform.

that question, to the form.

answer it.

I think I try to be objective.

Fair enough.

A.

A.

Q.

-- ---

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38

1 STATE OF TENNESSEEss C E R T I F I CAT E

2 COUNTY OF SHELBY

3 If Mark S. Dodson, Notary Public at Large

4 for the State of Tennessee, do hereby certify:

5 That the foregoing deposition was taken

6 pursuant to the provisions and conditions set forth

7 in the preamble, commencing at the hour, on the date

8 and at the place stated therein;

9 That prior to testifying, the witness was

10 duly sworn by me to tell the truth, the whole truth,

11 and nothing but the truth in said cause;

12 That the foregoing transcript contains a

13 true and correct transcription of the testimony of

14 said witness as recorded in machine shorthand by me

15 and thereafter reduced to printed copy by me;

16 That I am not of kin or in anyway associated

17 with any of the parties litigant, or their counsel,

18 and I am not interested in the events thereof.

19 IN WITNESS WHEREOF, I have hereunto set my

20

21

hand and seal on this day of _______ , 1992.

22

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My Commission ExpiresMay 2, 1995.

-----MARK-S:-OOOSON----­Notary Public at Large

State of Tennessee

39