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Poellot v. Sioux City Stationery Co.1/18/2005
ot take any other prescribed medication for his knee pain.
In August 2002, Biga referred Poellot to a knee specialist, whom Poellot testified he never saw because he could not afford to see a specialist. In a letter dated August 30, 2002, Biga set forth his response to a letter from Poellot's counsel. Biga stated that he had noted calcific tendonitis and that he gave a diagnosis of degenerative joint disease based upon the x rays. Biga then stated, "Apparently a radiologist did not think that the joint is that bad, however the calcium deposits remain. One would get calcific tendonitis from repetitive motion. In my medical opinion the calcific tendonitis would be related to frequent flexing of the knees and lifting."
At the request of counsel for Office Systems and Employers Mutual Casualty, its workers' compensation insurance carrier, a Dr. Ichtertz examined Poellot on January 15, 2003, and reviewed Poellot's medical records. In Ichtertz' examination, he found no swelling or palpable effusion, no crepitation (grating), and "no varus valgus or anterior posterior instability." Ichtertz also had bent-knee standing and lateral x rays of each of Poellot's knees. Ichtertz found that the right knee had a normal appearance, with no obvious osteophytosis, soft-tissue calcification, or erosion. He found that both knees had a normal lateral "view" to the extent that the patellofemoral articulation could be evaluated. On the left knee, Ichtertz noted a narrowing of about 50 percent of the joint space in the medial compartment, but he did not observe osteophytes or soft-tissue calcification.
At trial, when asked whether he believed that Poellot's degenerative joint disease of the left knee arose out of and in the course of Poellot's employment, Ichtertz stated, "No. Degenerative arthritis is a spontaneous process genetically mediated[;] thus the term 'degenerative.' [Poellot] does not have a history of trauma or evidence of having fractured any of the bones about the knee to account for posttraumatic arthritis." Ichtertz did not believe that Poellot had experienced an injury to his knees; nor had Ichtertz found any evidence of calcific tendonitis on the x rays or via physical examination. Regarding work restrictions, Ichtertz stated that Poellot should avoid trying to carry heavy tools upstairs and that it would be useful for Poellot to wear kneepads when kneeling or to avoid kneeling.
On February 3, 2003, Poellot visited the Veterans' Administration Medical Center in Omaha to establish care. Three "views" of the "bilateral knees" were performed, and the diagnosis was bilateral minimal degenerative joint disease of the knees.
Poellot again saw Biga on March 28, 2003, regarding the knee pain. The record from that visit states in the "EXAM" section that Poellot had stiffness of the knees, that there was tenderness on the lateral aspect of the right knee and the medial aspect of the left knee, that "the knee cap" was nontender, and that Poellot had some discomfort climbing onto the examination table. Biga's impression was that Poellot suffered " ilateral knee pain, right greater than left." An MRI was performed on Poellot's right knee on March 31. Biga's impression based upon the MRI was that Poellot had mild prepatellar bursitis, but an otherwise normal condition, of the right knee. In a letter dated April 5, 2003, from Biga to Poellot's counsel, Biga stated that Poellot "does have some swelling with bursitis which is related to overuse of an extremity or trauma to the extremity."
The trial judge filed an order of dismissal on April 30, 2003. The judge noted that Poellot's injury was not objective and that expert medical opinion was therefore required to es
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