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Cooper v. Chevron Corp.3/5/2003
nerve root, and causing compression of the S1 nerve root." (Id.÷
In a letter to Cathy Anderson, who was the adjuster for Chevron, Dr. Vasileff opined,
It is my opinion that this [herniated disk] is as a result of his previous problem - that is, it is a continuation of his previous ruptured dis . If he had not had the ruptured dis years ago at this level, he might not have had his herniated dis at this level. (Id. at 7.)
There are two problems in evaluating Dr. Vasileff's opinion. First, there is no indication in his records that he was aware of the washing machine incident described in the ER note of April 10, 2001. Second, his statement that "he might not have had his herniated dis at this level" may only indicate that the claimant's 1988 injury merely predisposed him to subsequent injury at the L5-S1 level.
Claimant was examined and evaluated by Dr. Thomas Dietrich, a board certified neurosurgeon. Dr. Dietrich is a former professor of neurosurgery at the University of Oregon. His current medical practice is limited to consultations and charity work. Dr. Dietrich opined that claimant's recurrent herniated disk and the resulting surgery were due to a new injury or aggravation that claimant suffered in April 2001, while moving a washing machine. (Dietrich Dep. at 36-37.) He noted the new MRI finding on April 17, 2001, of a significant herniated disk. Based on claimant's history of moving the washing machine, the severity of his pain following the incident, and the MRI finding within days afterwards, he testified that he was "reasonably certain" that the herniated disk occurred when the claimant moved the washing machine. (Id. at 16.) He testified that a reherniation of the L5-S1 disk is not inevitable. He noted that the rate of recurrence of herniated disks at the L5-S1 level is 15%, most of which occur within two years. (Id. at 19.) After two years, the rate of recurrence falls to 5%. Thus, while the claimant's original herniation predisposed him to further herniation, reherniation was not inevitable or even probable. (Id. at 20.)
I find Dr. Dietrich's opinions persuasive. The MRI finding of April 17th was shortly after the claimant moved the washing machine: It was a new and different finding than the December 1999 MRI. Further, claimant reported his moving the washing machine as giving rise to his increased pain. His increased pain was significantly greater and more extensive than before, requiring hospitalization, then surgery.
The more difficult question is whether claimant's treatment in 1998 through April 2001 is attributable to his 1988 injury. My decision on this question largely depends on my assessment of his credibility concerning his continued pain since 1991 and his testimony that he did not suffer any new injuries or aggravations.
When I heard claimant's testimony at trial and observed his demeanor, my first impression was that he was not telling the truth about some matters but that he might be telling the truth about most things. After reflecting on his testimony and going back through the exhibits, I am absolutely convinced that my first impression was wrong. After further consideration and evaluation, I am convinced that claimant has lied to his medical providers and lied to the Court. I am not sure he knows where the truth begins, and I certainly am unable to determine that point.
Careful review of his medical records reveals significant contradictions between the claimant's assertion that he had continuous pain in his back since 1990 and that he suffered no further exacerbations of his low-back condition.
a There was no verifiable medical care for his back betwee
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