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2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 044A - Exhibit 1 - Thurston Report For Cross
INTEGRATED MEDICAL EVALUATIONS, INC. ______________________________________________________________________________________ ♦6087 S. Quebec St., Suite 200, Centennial, Colorado 80111 ♦Phone: 303.328.0128 ♦ Toll Free: 866.584.9810 ♦Fax: 303.577.0297 ♦ www.imewest.com Arizona Colorado Montana Nevada New Mexico Oregon Utah Washington Wyoming © 2016 Integrated Medical Evaluations, Inc. All rights reserved. This material is confidential and may not be distributed without the written permission of Integrated Medical Evaluations, Inc. July 06, 2021 Wick & Trautwein 323 South College Ave.# 3 Fort Collins, CO 80524 ATTN: Andrew Callahan RE: Claimant: Stuward Cross Dear Andrew Callahan, Attached is the chart review report regarding Stuward Cross dictated by Lloyd J. Thurston, D.O., C.I.M.E. Please do not hesitate to contact our office at 303-328-0128 or toll free 866-584-9810 if you have questions regarding this report or if we can be of any further assistance. Thank you for your business and we look forward to working with you in the future. Sincerely, Integrated Medical Evaluations, Inc. Exhibit 1 SERVED ONLY: July 9, 2021 4:25 PM FILING ID: 6DE3028EF10DA CASE NUMBER: 2020CV30363 DATE FILED: October 11, 2021 9:41 PM FILING ID: DA8F83C2EB94C CASE NUMBER: 2020CV30363 Page 1 of 18 To: Andrew Callahan c/o: Wick & Trautwein, LLC Stuward Cross Automobile-Chart Review Date of Birth: 1/13/1977 Date of Injury: 6/7/2017 Reviewer: Lloyd J Thurston, DO, CIME Date of Report: 7/5/2021 To prepare the report, I reviewed ~2 inches of records listed below. 1. Accident Report (6/7/2017) 2. UCHealth: 7/19/2013-12/6/2019 3. Radiology: 12/21/2015-10/30/2019 4. Salud Family Health Centers/John Clifford Mann PA/Zachary Shelton, DDS: 12/21/2015-4/27/2020 5. Colorado in Motion: 1/4/2016-7/17/2020 6. Concentra: 6/13/2017-2/26/2018 7. Colorado Clinic/Alicia Feldman MD/Arnaldo Da Silva MD: 10/17/2017-1/9/2018 8. Miscellaneous 9. Bills 10.Legal Documents i) Plaintiff’s Stuward Cross and Katrina Richman’s CRCP 26 A1 Initial Disclosures ii) Plaintiff Stuward Cross’ First Amended Responses to Defendant’s Interrogatories iii) Plaintiff’s Stuward Cross and Katrina Richman’s First Supplemental Disclosures 11.Deposition of Stuward Cross 12.Photographs Description of the Accident: On 6/7/2017 Mr. Cross was driving a 2010 Ford Yellow Cab northbound on South LeMay at Poudre River Drive. A 2005 International, Fort Collins city truck, was westbound on Poudre River Drive from a stop sign. Mr. Cross’ vehicle collided with the rear passenger side corner of the truck.1 “The city truck was waiting to get onto South LeMay off Hoffman Mill Road. A yellow taxi cab had all of the traffic stopped letting vehicles on South LeMay. The driver of the cab motioned for Tony (truck driver) to go-he got into the road, about that time the yellow cab shot in front of the truck. The truck stopped very quickly to avoid an accident. The yellow cab 1 Fort Collins Police Report, 6/7/2017, page 1 Exhibit 1 Page 2 of 18 proceeded to the bridge and stopped. Then we all proceeded on our way. The cab was at fault for what happened. It was like a set up to me. I was behind the city truck.”2 “I was on Hoffman Mill Road coming up to LeMay. Cars were stopped and the cab driver was waving (us) on. He had all the traffic stopped so I started across the street when he cut in front of me and swerved. I did not think I hit him.”3 “(I was) traveling north on LeMay Avenue approaching Poudre River Drive. I stopped short of the intersection in order to keep it clear and allow some cars through. Several cars took the chance and went. As traffic started moving I started moving as well. As I was passing the front of the truck I realized he was still coming and accelerated to try and get clear but he hit the back passenger corner of my cab. I pulled to the side, activated hazard blinkers and looked back to see the driver leaving the scene south on LeMay.”4 “I was just picked up by the cab from physical therapy. When we turned from Riverside to LeMay going north (traffic was backed up so cab driver let few cars through until the light changed and traffic was moving) so we crept up with traffic when a huge city of Fort Collins dump truck was coming straight for me and never looked to his left. Hit the back end of the cab.”5 “Joseph Zastron was in the right lane of LeMay behind a taxi, red light on Mulberry had us backed up through another intersection. The cab left space as to not gridlock traffic. After a couple of vehicles pass through the traffic in front of the cab had moved forward. The cab started to advance. He must’ve noticed the city of Fort Collins truck run the stop sign and attempted to evade. He moved into the left lane and appeared to get hit in the right rear quarter behind the wheel. City truck stop for a 2nd and then proceeded forward (left turn) to clear traffic. He appeared to grab LB and talk to someone while leaving the scene. Did not see if/where he stopped after clearing traffic. I followed the cab to Home Depot Plaza, the first place for him to clear traffic.”6 “I was driving my taxi down Lemay Avenue northbound approaching Poudre River Drive. I was in the outside lane of this 2-lane road. There was heavy traffic in the area and it was backed up from the next intersection at Mulberry all the way back to Poudre 2 Fort Collins Police Report, personal statement by Glenn D Vigil, DOB 9/21/1943, dated 5/8/2017 (sic- 6/8/2017) 3 Fort Collins Police Report, personal statement by Antonio R Lopez, driver of the truck, DOB 1/31/1943, dated 6/8/2017 4 Fort Collins Police Report, personal statement by Stuward L Cross, driver of the yellow cab, DOB 1/13/1977, dated 6/7/2017 5 Fort Collins Police Report, personal statement by Katrina Richman, DOB 7/30/1969, dated 6/7/2017 6 Fort Collins Police Report, personal statement by Joseph Zastron, DOB 10/10/1971, dated 6/7/2017 Exhibit 1 Page 3 of 18 River Drive. On Poudre River Drive there is a line of heavy trucks waiting at the stop sign. As traffic begins to stop for the red light up ahead (Mulberry) it backs up the traffic all the way to the line of waiting trucks. If I had continued and come to a stop behind the next vehicle I would’ve been blocking access to the side street and the line of impatiently waiting trucks so I stopped short to keep the intersection clear. The driver in the next lane followed my lead and stopped short as well. Now the trucks that have been waiting have a chance to slip out and cross to southbound LeMay and they start rolling out. Quickly 3 trucks slip out without stopping at all and right about now the traffic that was blocking our way is starting to move as well. One more truck goes past without stopping. There is a gap in the truck line before the next one, I figured he saw the moving traffic and realized he couldn’t just roll through the stop sign like the rest and was stopping. I looked up to try to make eye contact, we were both wearing sunglasses but I felt he was looking so I started moving. At this time the traffic ahead was moved up nearly 40 feet and we were starting to be the holdup. As I started creeping forward (5 mph) I noticed the front bumper of the oncoming truck jump up in a sign of acceleration and we were already in front of him so I dropped the gas and veered left a bit trying to avoid the collision (I was over 25 mph at impact but was not looking at the meter). The truck was likely close to 20 mph at impact. He hit our back tire at 90° to the car and dragged the bumper all the way around the back of the taxi leaving transferred paint. The impact didn’t seem very hard at the time but it shook the whole car on its suspension and I was watching the oncoming vehicle so I was twisted up to the right when he hit us.” “After the impact I got control the car and brought it to a stop on the side of the road. Where I stopped is in the middle of the bridge about 60 feet past Poudre River Drive. After checking on Katrina and glancing back in my mirror I see the truck driver with his window down look our way and make a fist in the air. Then he drove off. He was able to drive off in heavy traffic because those that witnessed the dump truck hit me stopped making room for him to get into the southbound side of LeMay Avenue and then turned west on Riverside out of my site.” “I walked around the car and saw it seemed to be lightly damaged and still operable. Now I’m left on the side of the road holding up a very busy area so I decided to go to the next available off street lot to call authorities to report the accident. (The driver of the dump truck left the scene of the accident without stopping or trading any information with me.)”7 7 Plaintiff Stuward Cross’ First Amended Responses to Defendant’s Interrogatories, 5/25/2021, page 3/11 Exhibit 1 Page 4 of 18 Each Injury Mr. Cross Attributes to the 6/7/2017 Incident “Neck, shoulder, both arms, headaches, memory loss, speech issues, libido issues.”8 Current Complaints Mr. Cross Attributes to the 6/7/2017 Incident9 Lower left neck and shoulder. Constant pinching and pain. My neck has gotten a little stronger over the years but is no longer improving. The neck pain has not stopped since the crash. Numbness is a little less severe but almost all the time to some degree and the shooting pains and cramping are what tend to keep me up most nights. Both arms. Frequent numbness and tingling in both arms. The left arm is often worse with common shooting pains through arms, hands, ribs, legs. Headaches, sometimes severe. Major limitations on movement, I can’t lift over 20 pounds without triggering a headache. Frequent problem being able to communicate clearly, problems thinking clearly and conveying thoughts and emotions, inability to remember dates and times of appointments and events worsened when triggered by trauma (if frustrated becoming more and more angry and not being able to verbally convey what’s going on in my mind or calm down). This also leaves me with speech issues (not being able to find words or to say what I’m trying to say without difficulty) there has also been a lack of libido due to extreme physical pain and emotional distress from lack of mobility. The speech and brain issues seem to be getting worse along with my mental and emotional state. The issues with libido have not changed. Imaging & Diagnostic Studies 12/21/2015: right shoulder x-rays (3 views), “Negative.” 1/5/2016: right shoulder MRI without contrast, “1. Mild undersurface fraying of the distal posterior infraspinatus fibers. 2. Mild tendinopathy of the distal supraspinatus and infraspinatus.” Reviewer’s Note: Mr. Cross had sought care of right shoulder pain before the 6/7/2017 MVA. 6/13/2017: thoracic spine x-rays (3 views) Ordering Provider Comments: MVA 5 days ago pain in left neck, shoulder and upper back. “Normal thoracic spine.” 6/14/2017: cervical spine x-rays (4 views), pain in left neck, shoulder, and upper back, “No acute cervical spine fractures are seen.” 11/4/2017: thoracic MRI without contrast, HISTORY: thoracic back pain. Extremity numbness and pain. “1. Scoliosis. 2. Mild (narrowing of the bony cervical canal. 3. Left paracentral to posterolateral disc extrusion at the C5-C6 level measuring 4x10x10 mm. This indents the left anterolateral thecal sac and contributes to mild-to-moderate central spinal canal stenosis and severe left 8 Plaintiff Stuward Cross’ First Amended Responses to Defendant’s Interrogatories, 5/25/21, page 8-9/11 9 Plaintiff Stuward Cross’ First Amended Responses to Defendant’s Interrogatories, 5/25/21, apage 8-9/11 Exhibit 1 Page 5 of 18 foraminal stenosis. 4. Spondylosis and facet joint osteoarthritis involving the cervical and visualized upper thoracic spine. There is mild bone edema associated with the right facet joint osteoarthritis at T3-T4. There is mild to moderate central spinal canal stenosis at C5-C6 and C6-C7. There are a few foraminal stenoses including moderate left C4-C5, severe right C4-C5, severe bilateral C5-C6, and moderate to severe bilateral C6-C7.” Reviewer’s Note: The thoracic MRI describes primarily cervical findings. It is my medical opinion the facet arthrosis, mild to moderate central spinal canal stenosis, foraminal stenosis, and the C5-C6 disc extrusion were present before the 6/7/2017 MVA, did not cause symptoms, and were not “lit up,” exacerbated, aggravated, accelerated, or caused by the 6/7/2017 MVA. 11/4/2017: cervical MRI without contrast, HISTORY: neck pain. Left upper extremity pain and numbness. Radiculopathy. “1. Scoliosis. 2. Broad-based 5 mm left paracentral to posterolateral disc protrusion at T5-T6 focally indents the left anterolateral thecal sac and contacts the thoracic spinal cord. 3. Broad-based 2 mm central disc protrusion at T6-T7 mildly indents the thecal sac 4. Left paracentral to posterolateral disc extrusion with mild cranial and caudal migration at T7-T8 measuring 4x4x11 mm. This indents the left anterolateral thecal sac and contacts the anterolateral aspects of the thoracic spinal cord. 5. Broad-based 4 mm central disc protrusion at T8-T9 indents the thecal sac and mildly indents the anterior aspect of the thoracic spinal cord. This contributes to mild central spinal canal stenosis. 6. Spondylosis and facet joint osteoarthritis involving the visualized thoracolumbar spine as detailed above. No other significant spinal stenosis. There is bone edema associated with right facet joint osteoarthritis at T3-T4. Reviewer’s Note: The cervical MRI describes primarily thoracic findings. It is my medical opinion the spondylosis and facet joint osteoarthritis, disc protrusions, and the disc extrusion were present before the 6/7/2017 MVA, did not cause symptoms, and were not “lit up,” exacerbated, aggravated, accelerated, or caused by the 6/7/2017 MVA. 6/8/2019: brain MRI without contrast, “No acute intracranial abnormality. Small T2 hyperintense focus in the right frontal subcortical white matter. This is nonspecific.” Reviewer’s Note: This is a common, nonspecific finding not related to trauma which typically is not associated with and does not cause symptoms. 9/10/2019: bilateral upper extremity EMG/NCV, Chief Complaint: pain everywhere, “1. Electrodiagnostic evidence of bilateral median neuropathy at the wrist, carpal tunnel syndrome, very mild in severity bilaterally. (emphasis mine) 2. No electrodiagnostic evidence of ulnar neuropathy bilaterally. 3. No electrodiagnostic evidence of acute or chronic left cervical radiculopathy, brachial plexopathy, or myopathy.” Exhibit 1 Page 6 of 18 Reviewer’s Note: see the “chief complaint.” This is consistent with symptom magnification. 10/3/2019: left shoulder x-ray (3 views), INDICATIONS: shoulder pain and decreased ROM and strength, “Negative.” Disc Pathology Definitions 1.Disc Bulge: the outer disc margin extends beyond the endplates of the vertebrae above and below 2.Disc Protrusion: (simple herniation) the margins of the disc are still contained within the longitudinal annular fibers (Sharpey’s fibers), the base of the protrusion is wider than the outer margin of the protruded disc 3.Extruded Disc (true “herniation”): the margins of the disc extend beyond the annular fibers and the stalk of the extrusion is narrower than the outer margin of the herniated material 4.Sequestered Disc: a free fragment of the extruded nucleus pulposus, the fragment loses connection to the disc Medical Record Entries 10/17/2017: “Facet joint injection with fluoroscopic guidance at right L4-L5 and left L4-L5 by Alicia Feldman MD. Diagnoses were: 1. Lumbago, 2. Lumbar facet arthropathy NOS, (not otherwise specified). 3. Lumbar spondylosis NOS." 12/12/2017: “History of MVA on 6/4/2017, (sic) side collision (back passenger side) car did not spin. He did not hit his head but had a cervical whiplash. Did not lose consciousness but may have had a 20-30 second memory lapse following the accident. Never went to the ER. 4 days later after lawyer’s advice he went to see a doctor. MRI with DDD C4-C5, C5-C6, C6-C7. EMG of upper extremities ordered.”10 Reviewer’s Note: it is my medical opinion Mr. Cross did not experience a “whiplash.” It is also my medical opinion Mr. Cross’ self-described “20-30 second memory lapse,” is not consistent with the forces involved in the MVA it is of no clinical or forensic significance. 1/9/2018: “DIAGNOSES: 1. Cervicogenic headache, 2. Cervical sprain/strain. Still did not do the EMG of upper extremities. Will refer to Eric Hoffman.”11 Reviewer’s Note: this shows an example where Mr. Cross is not cooperating with his physician’s medical advice, one of the 4 criteria associated with Malingering. 10 Colorado Clinic, Arnoldo Da Silva MD, 12/12/2017, 11 Colorado Clinic, Arnoldo Da Silva MD, 1/9/2018, Exhibit 1 Page 7 of 18 2/26/2018: “Mr. Close was placed at MMI “with no permanent impairment and no restrictions.” (emphasis mine) ASSESSMENT: 1. Thoracic myofascial strain, 2. Cervical myofascial strain.”12 Reviewer’s Note: Concentra cared for Mr. Cross’ injuries arising from the 6/7/2017 MVA. They only diagnosed thoracic and cervical strains. These diagnoses were based only on subjective symptoms and they determined his symptoms had resolved and there were no permanent injuries, no impairment, and no need for restrictions. Since that time his injuries have morphed into “Neck, shoulder, both arms, headaches, memory loss, speech issues, libido issues.” It is my medical opinion this does not make sense physiologically, especially knowing the mechanism of the MVA. 2/20/2019: “Stuward Cross is here to establish care and for back pain. His back was tensing and he moved wrong about 3 weeks ago. Pinching, shooting pain and could not extend his legs. Could not walk for 2 weeks but has been able to walk with his walking stick now. Has shooting pains on his left leg that wrap from his hip to the top of his calf the past week and a half. He was in a car accident July 2017. He was driving a cab and was hit and run by a city dump truck. He felt fine at the time and finished his shift. Workers’ Comp settled in August. He had an MRI at PVH. Showed degenerative disc disease, 3 compressed discs and arthritis down his spine and across his shoulders. Injury base of neck. He feels like his left arm has rotator cuff issues. Pain is getting worse the past 6 months. Has shooting, “explosive” pains that last 15-30 seconds. Severe sciatic pain, thoracic pain, sternal pain, his back cracks often and he has been experiencing memory issues. Did not have numbness or tingling prior to the accident.” “DIAGNOSES: 1. Pain in left shoulder, 2. Post-concussive syndrome, 3. Chronic pain after traumatic injury, 4. Tobacco use, 5. Low back pain at multiple sites.”13 Reviewer’s Note: Mr. Cross demonstrates multiple symptoms nearly 2 years after the very minor MVA. He did not suffer a “concussion,” and therefore does not manifest symptoms of “post-concussive syndrome.” Mr. Mann is simply listing complaints and did not understand the minor mechanism and minimal forces involved in the 6/7/2017 MVA. Mr. Cross also exaggerates his MRI findings and symptoms. These are subjective symptoms in the context of a personal injury with possible motivation for potential secondary gain. 9/10/2019: “Stuward Cross is a right-handed 42-year-old male with a history of chronic pain since sustaining a work-related injury in an MVA ~2 years ago. His Workers’ Compensation claim has been closed but he is now pursuing legal action with a private lawyer. He reports burning in his bones and pain everywhere. (emphasis mine) He reports neck pain is the most significant and can radiate into the left upper limb. Both of his hands will be numb in the 12 Concentra, Robert Nystrom DO, 2/26/2018, page 1/3 13 Salud Family Health Centers, John Mann PA, 2/20/2019, page 5-6 of 11 Exhibit 1 Page 8 of 18 morning and improve with time after he is up out of bed. At times he will have numbness in his hands when lying on his back reading a book or looking at his phone. He reports left shoulder pain and weakness in the left shoulder. He reports weakness in both of his hands. He reports a family history of degenerative spine issues. (emphasis mine) He has not worked since his injury. (emphasis mine) He is seeking disability benefits. (Emphasis mine) He had a variety of treatments through Workers’ Compensation including PT, chiropractic, and massage therapy without benefit. (Emphasis mine) He reports his pain has progressed over time (emphasis mine) and limits his function and is intolerable. He does not participate in regular exercise.”14 Reviewer’s Note: not only have Mr. Cross’ symptoms not improved, they have progressed! It is my medical opinion this is not physiologic. His lack of improvement with passage of time and appropriate conservative treatments is also, in my medical opinion, not physiologic. 6/16/2020: “3 years ago was running a cab and was sideswiped. Does have a case open litigation but has already had medical side of case closed. Had recent MRI with some abnormal findings at the cervical spine. Constantly has pain in the thoracic spine, sternum and upper extremities. Has done 200+ hours of PT (emphasis mine) and patient does feel some animosity of having to start the process over with Medicaid in order to get disability. (emphasis mine) In 1988 was shot in the knee with a .45 caliber. He has a lot of comorbidities and has had some serious depression since onset of Covid-19. (emphasis mine) He feels limited in all head and neck movements in addition to RUE movements. He really wants to get onto some regular routine with PT in order to create some order and discipline in his life at this time.”15 Reviewer’s Note: It is my medical opinion his depression is a likely significant contributor to his memory and speech difficulties. Also, this was a minor MVA. The idea additional PT will provide any benefit when over 200 hours of PT did not resolve his symptoms it is unrealistic. Based on medical treatment guidelines such as CDLE (Colorado Department of Labor and Employment) and ODG (Official Disability Guidelines) a maximum of 18 physical therapy treatments is reasonable before transitioning to a home exercise program. 7/17/2020: Stuward reports significant life stressor developments over the past 2 days. They are being evicted from their current residence (emphasis mine) of 12 years and he will have to discontinue PT for the next month or so until things are more settled. Continues to have pain but feels like PT has been very helpful up to this point.”16 14 UCHealth, Neurology Clinic, 9/10/2019, pages UC health records 000042-43 15 Colorado in Motion, 6/16/2020, Jordan Allison PT DPT, Colorado in Motion records 040-041 16 Colorado in Motion, 7/17/2020, Jordan Allison PT DPT, Colorado in Motion records 06the1 Exhibit 1 Page 9 of 18 Reviewer’s Note: This is obviously a very stressful event which could contribute to his anxiety, anger, frustration, and “speech and brain issues.” Discussion Cervical Spine Injuries in MVAs “McConnell et al. (1995) found that un-braced human subjects in rear impact with a ΔV up to 6.8 mph are not injured.”17 McConnell et al. (1993) also used human volunteers (males aged 45 to 56 years) to examine rear impact at ΔV levels between 2.5 and 5.0 mph. In all the tests, the cervical spine extension and flexion displacement are always found to fall within the subject’s physiological limits (normal range of motion).”18 Reviewer’s Note: it is my medical opinion based on my review of the mechanism of injury and the photos of the cab the ΔV was less than 5 mph and was a scraping mechanism with much of the force absorbed by the rear bumper and bumper cover. “There have now been over 650 volunteer exposures to low-speed rear impacts reported in the literature. The volunteer data include 59 tests involving women, and age range from 22 to 63 years, with a ΔV from 1-10.3 mph. The human subjects reported no injury symptoms from the majority of these studies. The most severe symptom reported was minor neck pain lasting one week, which resolved without treatment.”19 Highlights from an article: Cervical Whiplash: Assessment, Treatment, and Impairment Rating20 “Attention to a symptom amplifies it, whereas distractions diminish it.” “The fear of pain and what we do about it may be more disabling than the pain itself.” “Patients must accept they are responsible for their own recovery.” “Recovery from acute whiplash follows a predictable course, with the majority of uncomplicated WAD (Whiplash Associated Disorder) cases recovering in 4-6 weeks.” “Pain is a subjective experience influenced by biological, social, psychological, and other factors. Research shows that people will seek treatment if one of these influences exceeds a personal tolerance level. Immediately following a collision, biological factors predominate. The biological influence decreases with tissue 17 McConnell W, Guzman H, Bomar J, "Human Head and Neck Kinematics after Low Velocity Rear-End Impacts-Understanding ‘Whiplash.’" (SAE paper 930889) Society of Automotive Engineers, Inc. (1995) 18 McConnell W, Guzman H, Bomar J, "Analysis of Human Test Subject Kinematic Responses to Low Velocity Rear End Impacts." (SAE paper 930889) Society of Automotive Engineers, Inc. (1993) 19 Hannon P, Knapp K, Forensic Biomechanics, 2008 20 The Guides Newsletter, May/June 2007 Exhibit 1 Page 10 of 18 healing to the point where, in the absence of social and psychological stimuli, symptoms usually resolve completely. However, if psychological or social issues exceed an individual’s personal tolerance level, complaints persist despite the fact tissue healing has occurred.” “Patients who maintain normal activities despite pain, and who remain at work even while in pain, experience more rapid recovery than patients who remain off work until they are pain-free.”21 Examiner’s Note: It is my medical opinion Mr. Cross did not experience even a mild whiplash injury. It is my medical opinion Mr. Cross is an excellent example where none of the 6 suggestions listed immediately above were followed. It is my medical opinion had he been treated as recommended above, his minor neck symptoms would have resolved spontaneously within 1-2 weeks, he would have continued his normal activity, and he would not have been told he had a concussion. Even if a patient experiences a mild concussion/mTBI it is my medical opinion proper supportive care means telling the patient this is a minor injury and to expect full recovery with no long-term effects. Accuracy of Medical History Provided by Claimant Barsky literature review:22 Even outside of a claim context, patient reports are not a credible basis for clinical decision-making. Under-reporting is especially pronounced in certain circumstances: o When the patients believe that a specific event (such as an accident) is the cause of current complaints, they are more likely to under-report their health history for the time preceding the event, and over-state the extent of their problems for the time period that follows that event. o Behavioral issues are more prone to under-reporting (e.g., recreational drug use). Lees-Haley studies:23 Claimants offer reports that indicated that they were portraying their pre-claim functioning as having been significantly superior to that of people who had not filed medical-legal claims.24 Claimants misrepresent their pre-claim functioning as having been super-human. 21 Waddell G, Feder G, Lewis M. “Systematic Reviews of Bed Rest and Advice to Stay Active for Acute Low Back Pain.” British Journal of Gen. Practice 1997; 47 (423): 647-652 22 Barsky AJ. Forgetting, fabricating, and telescoping: the instability of the medical history. Archives of Internal Medicine, 2002 May 13; 162(9): 981-4. 23 Lees-Haley, PR et al (1996). Response bias in self-reported history of plaintiffs compared with non- litigating patients. Psychological Reports, 79, p. 811-818. 24 Lees-Haley, PR et al (1997). Response bias in plaintiff’s histories. Brain Injury, 11, 791-799. Exhibit 1 Page 11 of 18 Provided a review of scientific studies that demonstrated that there is a pronounced tendency for claimants to exaggerate the current complaint. Carragee research:25 Claimants systematically underreported every pre-claim health issue that might have provided a non-injury-related explanation for their pain complaints. The rate of falsely denied relevant health history approximated 100%. It has been recommended clinicians/evaluators should consider adopting a strict policy of refusing to base any conclusions on examinee self-report, especially any forensic conclusions. (emphasis mine) Examiner’s Note: virtually all of Mr. Cross’ care has been directed at subjective symptoms without forensic considerations or support. The diagnostic determination should be based on findings that are beyond the control of claimants. E.g., is not credible to conclude that an injury has occurred, when the only basis for the conclusion is the claimant's report that “the pain began when they lifted an object.” (or were involved in an MVA) Any basis for the conclusion of injury should instead be based on objective and scientifically credible findings, which would have indicated that an injury had occurred even in the absence of any information having been reported by the claimant.26 Examiner’s Note: Mr. Cross’ complaints are completely subjective, the MVA involved minor forces, his response to reasonable treatments has been abysmal, his symptoms have continued more than 3 years since the original MVA, and he demonstrated no “objective or scientifically credible findings.” According to the AMA's Guides to the Evaluation of Disease and Injury Causation, "causation considerations, such as injury-relatedness or work-relatedness, should be based on scientifically credible information that is independent of the claimant's reports."27 Specifically, involvement in a medical-legal claim is itself a risk factor for a poor health outcome.28 Therefore if the acceptance of a claim is based on reports from a claimant, such acceptance is not only lacking a credible basis, it also jeopardizes the health of the claimant by non-credibly continuing his or her exposure to the detrimental health effects of being in a claims context. The unreliability of examinee reports is 25 Caragee EJ. Validity of self-reported history in patients with acute back or neck pain after motor vehicle accidents. The Spine Journal, 7(5), page 64S-65S, Sep 2007. 26 Don AS, Caragee EJ. Is the self-reported history accurate in patients with persistent axial pain after a motor vehicle accident? Spine Journal 2009 Jan-Feb; 9(1): 4-12. 27 Melhorn, JM, and Ackerman, WE. Guides to the Evaluation of Disease and Injury Causation. 2008. American Medical Association. 28 Australasian Faculty of Occupational Medicine and Royal Australasian College of Physicians, Health Policy Unit. Compensable Injuries and Health Outcomes. Published by The Royal Australasian College of Physicians, Sydney 2001. Exhibit 1 Page 12 of 18 especially pronounced when the examinee has filed a medical-legal claim. Consequently, reports from claimants are simply not a credible basis for clinical, forensic, or administrative decision-making.29 (emphasis mine) The researchers explained that a more plausible explanation for the findings is that claimants systematically distort their reported history in a fashion which potentially inflates the financial compensation for their claims. The researchers further explained that such misrepresentation might be a consequence of the medical-legal claim process, rather than simply being a process of premeditated deceit (they review scientific literature that indicates that such misrepresentations can be a non-deliberate consequence of the various social pressures that are inherently placed on claimants).30 Taken as a whole, the scientific findings that are reviewed and presented in the Barsky and Lees-Haley articles indicate that the clinical presentations of claimants are vulnerable to the cumulative effect of several types of distortion: the distortions that are prominent in the self-reports for all types of examinees, the exaggeration of current impairment that is relatively unique for claimants, and claims of super-human pre-claim functioning which are also relatively unique for claimants. Given these multiple layers of distortion, the fundamental purposes of impairment evaluations and other types of forensic evaluations cannot be credibly addressed through reliance upon examinee self- report.31 (emphasis mine) The Caragee article (reference 25) notes that claimants consistently and systematically demonstrate false denials of historical health issues (to an extent that is much greater than the rate of such false denials by patients who are not filing legal claims). The issues that claimants are most likely to falsely deny are actually those which are the most significant risk factors for persistent health complaints, and, therefore, of greatest relevance (and threat) to their medical-legal claims. Because it is the most significant factors that are consistently and systematically hidden from clinicians, the claimants are denying themselves opportunities for credible treatment planning. Reviewer’s Note: The literature reviewed above also highlighted another problematic aspect of claimant reports, involving elevated rates of exaggeration of current impairment.32 I have listed passages from an article entitled Biomechanics of Minor Automobile Accidents that are relevant to this case. 29 Barth, RJ. Claimant Reported History Is Not a Credible Basis for Clinical or Administrative Decision- Making. The Guides Newsletter, September/October, 2009. American Medical Association. 30 Barth, RJ. Claimant Reported History Is Not a Credible Basis for Clinical or Administrative Decision- Making. The Guides Newsletter, September/October, 2009. American Medical Association. 31 Barth, RJ. Claimant Reported History Is Not a Credible Basis for Clinical or Administrative Decision- Making. The Guides Newsletter, September/October, 2009. American Medical Association. 32 Barth, RJ. Claimant Reported History Is Not a Credible Basis for Clinical or Administrative Decision- Making. The Guides Newsletter, September/October, 2009. American Medical Association. Exhibit 1 Page 13 of 18 1. Biomedical experimental data indicate that automobile accidents with no vehicle damage are unlikely to cause injury to the occupants. 2. Soft tissue injuries heal in a few weeks. 3. For a given occupant and vehicles, the likelihood of injury increases as the speed of the impacting vehicle increases. 4. The principle of conservation of momentum indicates that when 2 automobiles collide, the mass (m) of one vehicle multiplied by its change in velocity (∆V) equals the product of m and ∆V for the other vehicle. Knowing the masses of each vehicle, accident reconstructionists use computer programs to calculate ∆V from car damage data; ∆V is used to evaluate the potential for occupant injury. Potential for injury is proportional to the energy absorbed by the body. (emphasis mine) In a study by West et al., cars traveling less than 5 mph impacting the rear of a stationary vehicle did not cause damage to the vehicles, and the occupants had no symptoms. Slightly higher impact speeds caused damage to the stationary vehicle, yet the occupants still had no symptoms. 5. Pain depends less on tissue injury than on cultural norms and patient expectations. 6. Lawsuits and associated potential financial gain prolonged and increased the severity of symptoms. Reviewer’s Note: there was a significant disparity in the mass between the dump truck and the cab. Based on the minor damage to the cab it is my medical opinion the driver of the dump truck likely did not feel the impact. The mechanism was a scraping or tangential force transmitted primarily to the cab rear bumper which absorbed most of the force. Biomechanics in Rear-end Motor Vehicle Collisions. Below I have listed passages from this article that are relevant to this case. 1. “Those who perceive themselves the innocent victim of another’s negligence often exaggerate the magnitude of a collision, while at fault drivers tend to minimize its severity.” 2. “The consensus of human subject research conducted to date is that a single exposure to a rear-end impact with a ∆V of 5 mph or less is unlikely to result in injury, assuming a reasonably healthy, restrained occupant in a relatively normal initial position, and the existence of a head restraint.” 3.“∆V is dependent in large part upon the kinetic energy of the bullet vehicle (KE = ½ mass X velocity2). Understandably, one would be less likely injured when rear- ended by a motorcycle than a high mass vehicle such as a dump truck. Velocity is also an important factor, and since it is squared, it assumes greater relative importance at higher speeds. Not surprisingly, collisions occurring at highway or freeway speeds are more likely injurious than those on city streets or in parking lots.” Exhibit 1 Page 14 of 18 4. “Energy-absorbing bumpers and vehicle crush zones (if any) dissipate energy that would otherwise be available to accelerate (or decelerate) the subject vehicle and occupant.” Reviewer’s Note: it is my medical opinion the energy absorbing rear bumper of the cab dissipated the majority of the forces from the dump truck. 5. “In cases where there is anger and/or potential compensation, the severity, distribution, and duration of complaints often correlate poorly with the mechanism and magnitude of the real or alleged trauma.” “The examiner must base impairment rating on objective factors to the fullest extent possible. Patient subjectivity during the examination process itself may potentially contribute to inconsistency of examination findings and test results; for example, a patient may self-limit during the assessment of an active range of motion or exert submaximal effort on manual strength testing because of pain and/or apprehension. Physical findings in such cases are often inconsistent and disproportionate. Such ‘symptom magnification’ (the display of exaggerated pain behavior and self-inhibition of effort out of proportion to the observable pathology), when detected, should be appropriately discounted by the examiner without impugning the patient for being unmotivated or malingering. When such findings clearly appear to conflict with what is expected according to established medical principles, they must not be used to justify an impairment rating.”33 Symptom Magnification “The subjective complaints are not consistent with any objective findings. Symptomatic pain behavior was evident. There is evidence of significant symptom magnification behavior, as evidenced by inappropriate healthcare utilization, subjective complaints inconsistent with objective findings, disability more than indicated, reported function inconsistent with findings, abnormal pain inventories, reported pain level inconsistent, pain behavior demonstrated, and non-physiologic findings on examination. I cannot exclude the possibility of malingering.”34 “The diagnosis of Symptom Magnification Syndrome is not intended to discredit the subjective complaint of pain, it’s possible basis in organic pathology, or the existence of a certain degree of objective disability. This individual reports symptoms that are essentially nonnegotiable, serve to control the environment, and result in significant amplification of perceived and expressed functional limitations. This should 33 AMA Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 American Medical Association, page 24. 34 The Comprehensive IME System, Christopher Brigham MD, page 93 Exhibit 1 Page 15 of 18 not be interpreted to suggest an intentional misrepresentation of pain and disability, but more likely represents a learned pattern of illness behavior.”35 Malingering Guidelines from the American Psychiatric Association: “Malingering should be strongly suspected if any combination (2 or more) of the following is noted: 1. Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for example) 2. Marked discrepancy between the person’s claimed stress or disability and the objective findings. 3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen. 4. The presence of Antisocial Personality Disorder.” Mr. Cross satisfies at least 2 of the 4 criteria. My Opinions: Mr. Cross did not experience a concussion/traumatic brain injury. During the 6/7/2017 MVA he did not strike his head, there was no LOC, and no retrograde or anterograde amnesia. There was no rapid brain acceleration or deceleration within the calvarium necessary to cause a traumatic brain injury. Mr. Cross complains of difficulty expressing himself and becoming frustrated as a result. It is my medical opinion if this is true, it is unrelated to the 6/7/2017 MVA. It is my medical opinion these symptoms are more likely related to his admitted depression and stress related to financial issues secondary to chronic unemployment. The 11/4/2017 thoracic MRI did not demonstrate any acute injuries reasonably attributable to the 6/7/2017 MVA. The “narrowing of the bony cervical canal” is congenital (present since birth). Spinal stenosis is typically present for many years and often does not cause symptoms. In this situation the spinal stenosis was identified on the MRI but was unrelated to the 6/7/2017 MVA. No physician or other medical provider claimed Mr. Cross’ cervical and thoracic disc bulges and protrusions were caused by, “lit up” by, accelerated, exacerbated, or aggravated by the 6/7/2017 MVA. It is my medical opinion Mr. Cross’ cervical and thoracic disc bulges and protrusions were not caused by, “lit up” by, accelerated, exacerbated, or aggravated by the 6/7/2017 MVA. The multiple cervical foraminal stenoses were not causing symptoms. “Stenosis” simply means narrowing of the opening (foramen) where a spinal nerve root exits the spinal canal. Unless the nerve root is clearly being compressed and 35 The Comprehensive IME System, Christopher Brigham MD, page 93 Exhibit 1 Page 16 of 18 irritated, simple stenosis does not cause symptoms and develops slowly over multiple years. Facet osteoarthrosis and osteoarthritis also develop over years and there is no indication from the mechanism of injury or Mr. Cross’ symptoms these facet joints were injured in the 6/7/2017 MVA. Injury to the passengers of vehicles involved in impact accidents is typically inversely related to the ΔV of the involved vehicles. I.e., the more rapidly the forces are transferred to the passengers (the shorter the ΔV) the greater the injuries to the passengers. The impact from the dump truck was prolonged, slow, and transmitted tangentially to the rear bumper. It appears the plastic bumper cover dissipated some force when it indented at impact before rebounding to its original shape. It is my medical opinion the forces transferred to the vehicle inhabitants was minimal and did not cause any physical or emotional injuries. The “left paracentral to posterolateral disc extrusion with mild cranial and caudal migration at T7-T8” was a chronic, pre-existing condition which was not, in my medical opinion, “lit up,” exacerbated, aggravated, caused by, or accelerated by the 6/7/2017 MVA. The forces were minor. The central disc protrusion at T8-T9 “indents the thecal sac and mildly indents the anterior aspect of the thoracic spinal cord.” It is my medical opinion this protrusion did not cause symptoms and was a chronic, pre-existing condition which was not, “lit up,” exacerbated, aggravated, caused by, or accelerated by the 6/7/2017 MVA. The forces were minor. After reviewing all the information concerning the 6/7/2017 MVA it is my medical opinion Mr. Cross did not experience any physical injury to his neck, shoulder, arms, head, or brain. It is also my medical opinion he did not experience psychological trauma sufficient to interfere with his speech, cause emotional stress or frustration, or inhibit his libido. The EMG/NCV diagnosed “carpal tunnel syndrome” was not, in my medical opinion, “lit up,” exacerbated, aggravated, caused by, or accelerated by the 6/7/2017 MVA. It is my medical opinion this diagnosis was clinically irrelevant, i.e., it needed no treatment and was unrelated to any specific event or injury. It is my medical opinion there is no physiological reason related to 6/7/2017 MVA Mr. Cross cannot safely and comfortably lift the same amount of weight he was lifting before the MVA. Even if Mr. Cross had experienced a mild cervical and/or thoracic myofascial strain these physical injuries would have spontaneously resolved in 2-3 weeks at most, without residual. It is my medical opinion if Mr. Cross does truly experience headaches, they are unrelated to the 6/7/2017 MVA. Exhibit 1 Page 17 of 18 It is my medical opinion Mr. Cross can and should be working. Working is in his best interest physically, emotionally, and financially. There is no reason for him to have missed any work because of the 6/7/2017 MVA. Mr. Cross complains of word finding and speech difficulty after the 6/7/2017 MVA. It is my medical opinion attributing these subjective symptoms to the MVA is a post hoc fallacy. If these subjective symptoms truly exist (in my opinion questionable) they are in no way directly or indirectly related to the MVA. Because they started after the MVA is not evidence they were caused by the MVA. Mr. Cross’ symptoms are inconsistent with the severity of the injury. Regarding injury producing potential, it is not so much the velocity change, but how fast it occurs (acceleration or deceleration). It is my medical opinion the velocity change of Mr. Cross’ cab was low (slow). “Peak Acceleration” is superior to ΔV when estimating potential injury. “In medical treatment, a causal relationship between a lumbar (or cervical) disc injury diagnosis (or any physical injury) and a recent vehicular collision is often the result of ‘diagnosis by history’ (i.e. the treatment provider is relying strictly on the history as reported by the injured party). Alternatively, the causal relationship results from a ‘diagnosis of exclusion’ (i.e., there is no obvious injurious event to reference other than the recent collision). Secondary monetary gains often exaggerate or muddle the medical issues as patients, physicians and attorneys may financially benefit from insurance settlements. Also, physicians who provide treatment under a financial agreement such as a lien now have a vested interest in the outcome of the case; hence they may not be unbiased in their testimony.”36 The above statements have been made within a reasonable degree of medical probability. The opinions rendered in this case are mine alone. Recommendations regarding treatment, work, and impairment are given totally independently from the requesting agents. These opinions do not constitute per se a recommendation for specific claims or administrative functions to be made or enforced. This evaluation is based on information obtained from the review of prior medical records presented, with the assumption this material is true and correct. If additional information is provided to me in the future, an additional service/report/reconsideration may be requested. Such information may or may not change my opinions rendered in this evaluation. 36 Lumbar Intervertebral Disc Injuries in Low Velocity Rear-end Vehicular Collisions: The Current Evidence, Lee et al, Ann Orthop Rheum, 2(4):1036 10/13/2014, page 2 of the Exhibit 1 Page 18 of 18 If further information is required, please contact me. Respectfully submitted, Lloyd J Thurston, DO, CIME Diplomate, American Board of Family Medicine Level II Certified, State of Colorado Exhibit 1