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Markovich v. Helmsman Management Services1/31/2003
ile his neck was not improving. (Id. at 62-63.) The PT notes do not reflect a total subsidence of the back pain.
Back pain is not thereafter mentioned in medical records until May 30, 2000. Meanwhile, on January 27, 2000, Dr. John I. Moseley, a neurosurgeon who examined claimant on that date, noted that claimant's " ow back and legs are symptom free." (Id. at 69.) But on May 31, 2000, when he examined claimant again, Dr. Moseley noted that claimant reported "in the past three months he has had back pain going down the left leg." (Id. at 81, emphasis added.) There are no medical reports between January 30 and May 30, 2000.
Dr. Stuart Goodman, another neurosurgeon, examined claimant on May 31, 2000, and comments in his record of that date that claimant "has also been trying to walk a lot to stay in shape and has developed left leg pain radiating down the posterior leg with some numbness in the foot." (Id. at 14.)
The lack of recorded low-back and leg complaints between October 7, 1999 and May 30, 2000, plays an important part in the medical opinions expressed by Dr. Dean C. Sukin, an orthopedic surgeon, who examined claimant at the insurer's request. Claimant, however, testified at trial that he did have back pain between October 7th and May 30th, and had in fact reported the pain during some of the medical examinations he had during that time period even though those complaints were not recorded in the medical records. In this case, I find claimant's testimony credible, and here is why:
a Claimant's back complaints on May 30 and 31, 2000 were similar to those reported to the physical therapist on October 7, 1999. His May report attributing his back pain to walking was similar to his belief on October 7th that his pain was brought on by standing. His reports and complaints, although many months apart are consistent.
b Claimant did not work after late October. According to his own testimony, his back pain subsided when not standing or walking.
c On May 30, 2000, he reported the duration of his pain as three months and related to his walking to try to stay in shape. As stated earlier, there are no medical reports from January 30 until May 30, 2000, apparently because the request for neck surgery was in limbo.
d Claimant's primary and overwhelming problem following his September 1999 industrial accident was his neck. While Dr. Scott Ross, a specialist in occupational medicine, brushed off claimant's neck complaints as simple cervical and trapezius pain, and released him to return to work without restrictions as of December 7, 1999 (id. at 142), less than two months after Dr. Ross' release, the claimant was diagnosed by Dr. Moseley with cervical radiculopathy. (Id. at 71.) Dr. Moseley recommended a posterior cervical foraminotomy. In a letter dated March 29, 2000, Dr. Moseley noted that claimant suffered "neurologic abnormalities" and had "numbness in his left arm and some weakness in his shoulder girdle." (Id. at 80.) He attributed claimant's cervical condition to his industrial accident (id.), and on August 10, 2000, performed surgery on claimant's neck, noting spinal cord and nerve root compression in his operative findings. (Id. at 84.) The surgery was successful. (Id. at 95, 103, 108.)
e Claimant testified that he had significant neck pain from the time of his accident until his surgery, at times taking hydrocodone for pain. Claimant's pain is evident in the medical records. (See Ex. 2 at 47-64, 69, 71, 76, 124, 130, 148.) By the beginning of November, claimant was complaining of "significant discomfort" of his neck with significant aching and burning in his left arm. (Id. at 152.) The pain was signific
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