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2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 044B - Exhibit 2 Thurson Report For Richman
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: Jody Minch RE: Claimant: Katrina Richman Dear Jody Minch, Attached is the Chart Review report regarding Katrina Richman 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 2 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 29 To: Andrew Callahan c/o: Wick & Trautwein, LLC Katrina Richman Automobile-Chart Review Date of Birth: 7/30/1969 Date of Injury: 6/7/2017 Reviewer: Lloyd J Thurston, DO, CIME Date of Report: 7/5/2021 To prepare this report I reviewed 5 inches of medical records listed below. 1. Accident Report (6/7/2017) 2. Pre-Hospital Care Report (9/27/2017) 3. Labs 4. Integrated Center: 3/30/2010-5/12/2015 5. Radiology: 1/1/2011-10/18/2014 6. UCHealth: 1/20/2014-7/15/2019 7. Banner Health: 12/19/2014 8. Northern Colorado Pain: 1/21/2015-5/20/2015 9. Colin Carpenter MD: 9/15/2016-8/14/2019 10.Rocky Mountain Physical Therapy: 4/24/2017-10/16/2018 11.Bills 12.Legal Documents i) Plaintiff Katrina Richman’s Amended Responses to Defendant’s Interrogatories 13.Deposition of Katrina Richman 6/2/2021 14.Photographs 15.Rocky Mountain Physical Therapy/Daniel Cantarini DPT: 6/7/2017-6/9/2017 Description of the Accident: On 6/7/2017 Mr. Stuward 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 onto 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 proceeded to the bridge and stopped. Then we all proceeded on our way. 1 Fort Collins Police Report, 6/7/2017, page 1 Exhibit 2 Page 2 of 29 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 the cab driver let a 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 passed 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. The city truck stopped for a second 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 Stuward Cross Statement: “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 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 2 Page 3 of 29 and it was backed up from the next intersection at Mulberry all the way back to Poudre River Drive. On Poudre River Drive there is a line of heavy trucks waiting at the stop sign. As traffic began to stop for the red light up ahead (Mulberry) it backed 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 had been waiting had a chance to slip out and cross to southbound LeMay and they started rolling out. Quickly 3 trucks slipped out without stopping at all and right about now the traffic that was blocking our way was starting to move as well. One more truck went past without stopping. There was 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 (emphasis mine) 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 of 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.” Ms. Richman’s Statement: “Just before the incident we were at the light on Riverside and LeMay, at a red light, in the right lane. We were turning north onto LeMay to head to Walmart, and as we made the turn-there is a railroad stack right there- the light at Mulberry and LeMay had changed, and traffic started to slow again. We were stopped on the other side of the railroad tracks, at Poudre River Drive, without blocking the intersection. While traffic was slowed and the intersection cleared to let a car turning left from Poudre on the South LeMay in front of us. Exhibit 2 Page 4 of 29 The car in front of the dump truck made it through the break in traffic before we crossed the intersection with traffic. The light at Mulberry changed again, so our right lane crept forward with traffic into the intersection. At that point the dump truck was moving toward the intersection. The dump truck did not stop at the stop sign- but we had already moved with traffic forward, and the dump truck was turning directly toward us. My driver, Stu, moved left to avoid getting T-boned, and the dump truck still hit the back passenger side. Then we pulled over, Stu put on the hazards, and we watched the dump truck continue southbound on LeMay. Witness followed us to the Plaza parking lot center. We took pictures, talked to witnesses, and waited for police.”7 Physical, Mental or Emotional Injuries Ms. Richman Attributes to the 6/7/2017 MVA “Neck Pain: I have substantially more neck pain since incident. Upper & Lower Back Pain: I have substantially more back pain since incident. Migraines: I have significantly more migraines. Memory Loss: New and significant short-term memory loss since incident. Anxiety & PTSD: significantly worse.”8 Complaints Ms. Richman Still Attributes to the 6/7/2017 MVA9 Memory Loss: “It is extremely embarrassing and humiliating; I cannot remember simple things I have known my whole life. It is extremely difficult to plan, fill out paperwork, and recall information. I forget deadlines, appointments, and I have to have several reminders for everything. It is increasingly worse and nonstop.” Anxiety & PTSD: “Due to the incident I cannot be transported anywhere, either by driving myself or anyone else- especially by medical cab- without having panic attacks. It triggers my PTSD to be in any car, which also increases the anxiety and physical pain. It is becoming worse. Anxiety is nonstop.” Neck and Back Pain: “I am in constant, daily pain, and I have to do so much maintenance to have a semblance of a life. It is significantly worse, making it painful even to walk. It is nonstop.” Migraines: “Severe migraines becoming worse, (occur) daily.” 7 Plaintiff Katrina Richman’s Amended Responses to Defendant’s Interrogatories, 5/26/2021, pp. 12-13/13 8 Plaintiff Katrina Richman’s Amended Responses to Defendant’s Interrogatories, 5/26/2021, page 4/13 9 Plaintiff Katrina Richman’s Amended Responses to Defendant’s Interrogatories, 5/26/2021, pp. 4-5/13 Exhibit 2 Page 5 of 29 Future Medical Care Recommended by a Healthcare Provider Which Ms. Richman Attributes to the 6/7/2017 Incident10 “Recommended Future Treatments Include: Additional Imaging; within 6 months; estimated cost to be supplemented Physical Therapy; as soon as possible; estimated cost to be supplemented Manipulative and Body-based Complementary Therapy; as soon as possible;estimated cost to be supplemented Oxygen Tent; as soon as possible, estimated cost to be supplemented Pain Management with OTC and Prescription Medicines; for the foreseeable future; estimated cost to be supplemented Pain Management with Epidurals 3X/year; for the foreseeable future; estimated cost to be supplemented Pain Management with Manipulative and Body-based Complementary Therapy; as soon as possible; estimated cost to be supplemented Reviewer’s Note: It is my medical opinion any further care from her providers is at their discretion, along with that of Ms. Richman. No further imaging, testing, therapy, treatment, pain management, or ESI’s are attributable to the 6/7/2017 MVA. Complaints or Injuries That Involve the Same Part of Your Body Claimed to Have Been Injured in the Incident11 Stress-induced memory loss: present 5+ years Low back pain with radiating leg pain: since 2007 Neck pain with pain into the shoulders: since 2011 Anxiety & PTSD: for 10+ years Reviewer’s Note: Ms. Richman claims her memory loss, low back pain with radiation, neck pain with radiation, and anxiety/PTSD are worse since the 6/7/2017 MVA. Based on my review of the mechanism of injury and the entire medical record it is my medical opinion these symptoms have continued on the same trajectory before and after the 6/7/2017 MVA. I.e., it is my medical opinion Ms. Richman was not physically or psychologically injured by the 6/7/2017 MVA. Past Medical History Prior Surgery: 1. Tonsillectomy 2. Laparoscopy 3. Cervical Conization Prior Injuries: 1. Parasailing accident 6/21/2007, 2. MVA 2/22/2008, 4/19/2008, 3/28/2009, 2/19/2011 (passenger in Saturn SUV left rear seat when it rear-ended another vehicle while going ~45 mph), 7/30/2012 (totaled her van) Medical Conditions: 1. Hypothyroid, 2. Insomnia, 3. Stress, 4. PMS, 5. Low back pain, 6. Sacroiliitis Allergies: Wellbutrin, Celexa, oxycodone, codeine, pregabalin, trazodone 10 Plaintiff Katrina Richman’s Amended Responses to Defendant’s Interrogatories, 5/26/2021, pp. 6-7/13 11 Plaintiff Katrina Richman’s Amended Responses to Defendant’s Interrogatories, 5/26/2021, pp. 8-10/13 Exhibit 2 Page 6 of 29 Social History: divorced ~2013, she gave birth to 4 children but only 2 are living Education: GED, attended 2 1/2 years of college without a degree Imaging & Diagnostic Studies 7/1/2011: lumbar MRI without contrast, “1. Multilevel spondylosis worst at L5- S1 resulting in moderate bilateral foraminal stenosis, slightly worse on the left. There is no significant narrowing of the central canal. 2. No significant interval change compared to previous lumbar MRI performed at McKee 2/2/2011. 1/5/2012: head CT without contrast, History: recent seizure, “Normal head CT. No evidence of mass, acute ischemia or hemorrhage.” 6/28/2012: head CT without contrast, HISTORY: possible seizure, “Negative unenhanced CT of the brain.” 3/20/2013: lumbar MRI without contrast (comparison with lumbar MRI of 7/1/2011), “Bilateral concentric disc bulge and associated degenerative changes spanning the L3-L4-L5-S1 vertebral levels. Findings result in no significant central canal stenosis at any level. There is mild bilateral neural foraminal narrowing at L4-L5.” 1/20/2014: cervical spine CT without contrast, INDICATION: assaulted, “Negative for acute fracture or spondylolisthesis. Incidental note is made of an air-fluid level within the sphenoid sinus.” 1/20/2014: CT of face without contrast, “Air-fluid levels within the sphenoid and maxillary sinuses. This is consistent with inflammatory disease. There is no evidence of facial bone fracture.” 1/20/2014: brain CT without contrast, “Unremarkable CT scan of the brain without contrast.” 7/8/2014: lumbar spine x-rays (3 views), “Minimal spondylitic change in the lower lumbar spine. No acute appearing bony abnormalities.” 7/8/2014: thoracic spine x-rays (2 views), “Spondylitic change involving the mid to lower thoracic spine. No acute appearing bony abnormalities.” 10/18/2014: cervical spine MRI without contrast (comparison with cervical CT of 1/20/2014), “Unchanged straightening of the normal cervical lordosis with multilevel disc, osteophyte, and facet pathology from C2-C3 through C6-C7 causing mild central canal narrowing in the AP dimension at C4-C5 and C6-C7. There is mild bilateral neural foraminal narrowing at C6-C7.” 6/20/2017: head CT without contrast, HISTORY: severe sudden onset headache, “Negative age-appropriate non-contrast head CT.” 6/5/2018: EMG/NCV bilateral lower extremities, for chronic neck/back pain and right leg pain/numbness. “Chronic cervical and lumbar pain secondary to myofascial pain syndrome, lumbar paraspinal spasms, and underlying Exhibit 2 Page 7 of 29 degenerative disc disease. Normal nerve conduction study/EMG of bilateral lower extremities.”12 Reviewer’s Note: Ms. Richman has undergone 2 lumbar MRIs (in 2011 and 2013) and a cervical spine CT (2014) and a cervical spine MRI in 2014. These were all performed years before the 6/7/2017 MVA and are consistent with her history of neck and low back pain present and actively being treated long before the 6/7/2017 MVA. Chart Entries 11/29/2011: “Is very stressed with teenaged daughter, had psych evaluation for disability yesterday.”13 12/19/2014: HPI: the patient presents with chronic conditions of migraines, cervical radiculopathy with left arm paresthesias, body pain, anxiety, “seizures,”, PTSD, and chronic pain. (emphasis mine) All started after physical assault and abuse. Today patient feels her pain is accelerating and she is concerned about a near syncope or “seizure” that put her on the floor today, no head injury from the fall. No new symptoms from her chronic issues.”14 Reviewer’s Note: Ms. Richman was experiencing significant body pain, paresthesias, anxiety, PTSD and chronic pain 2 ½ years before the 6/7/2017 MVA. 1/21/2015: medications at that time were Dilaudid 8 mg 3 to 4 times/day, Exalgo 12 mg daily, fentanyl 50 µg every 48 hours, Pristiq ER 100 mg daily, Xanax 1 mg, 1-1 ½ PO BID, Klonopin 0.5 mg at HS, diazepam 5 mg PRN for muscle spasms, Zofran 4 mg SL QID, promethazine 25 mg PO 2-3X/day, lithium 100 mg 1-2 at HS, medical marijuana.15 Reviewer’s Note: This is an example of polypharmacy with multiple narcotics, at least 3 benzodiazepines, and medical marijuana. This combination can interfere with memory encoding. 1/26/2015: cervical ESI at C7-T1 by Jan Gillespie Wagner, MD 2/10/2015: DIAGNOSIS: Opioid Dependence, (Emphasis Mine) Continuous16 2/23/2015: 2nd cervical ESI 5/21/2015: “Complaint: neck pain, psych, nausea. HPI: patient states she has a history of depression, PTSD, and a neck injury. (emphasis mine) For the past several days she has felt depressed and upset. Her neck pain has not been managed by home medications.” “She is crying off and on and admits telling her therapist she was thinking about suicide. The patient takes morphine for her neck pain, but it has not been helping.”17 12 UCHealth, Harmony PMR Outpatient, 6/5/2018, page 15 13 Integrated Center, 11/29/2011 14 Banner Health ED, 12/19/2014, page 1/4 15 Northern Colorado Pain, Jan Gillespie Wagner MD, 1/21/2015, page 45/48 16 Northern Colorado Pain, Jan Gillespie Wagner MD, 2/10/2015, page 33/48 17 UCHealth EMS, 5/21/2015, page 188 Exhibit 2 Page 8 of 29 Reviewer’s Note: Ms. Richman was dealing with depression, PTSD, chronic pain, and a neck injury more than 2 years before the 6/7/2017 MVA. 9/15/2015: “46-year-old female presenting to the ED for back pain. She states she has a history of chronic back pain. (emphasis mine) She states the pain has become more severe. She states she got up from sitting and felt worsening pain and spasm in her legs which had her collapse to her knees. She states she was unable to get up from this position and had to call EMS. She states this has happened before. She states this is when she knows she needs an epidural injection for her discomfort.”18 9/15/2015: “GENERAL ADMISSION H & P: “Patient reports years of chronic back pain after sustaining domestic violence, several MVAs, and a parasailing accident. (emphasis mine) Was previously on several medications including MS Contin, MS IR, Dilaudid, fentanyl, Nucynta, and Voltaren gel. States she took herself off these medications approximately 60 days ago after having a negative interaction with her PCP. Pain has progressively gotten worse, especially over the past 3 days. Discharge Diagnoses: 1. Acute on chronic back pain, previous opioid dependence, 2. Anxiety/depression/PTSD, 3. Hypothyroidism, 4. History of uterine and ovarian cancer, 5. Tobacco and marijuana abuse.19 10/14/2015: “Used to see Dr. McDonald for 17 years. Had a disagreement with her and has changed care.”20 9/7/2016: “47-year-old female contacted 911 after falling down 30 minutes earlier and hitting her back on furniture. Patient complained of back pain lower/upper and numbness/tingling on her right arm. Patient relays she has been very stressed recently and ‘I knew my body would give out eventually.’ Patient relayed generalized weakness and history of chronic back pain from slipped discs caused her fall today. Patient relayed she had this back pain and numbness sensation on her right hand roughly a year ago when she injured her back with a slipped disc. Patient rated the pain 9/10.”21 9/13/2016: “The patient presents to clinic with neck and low back pain. She feels like the pain is equal in both spots. The neck pain started after she was strangled. (emphasis mine) She has had epidurals in the past with significant relief. She has had a significant flare in the last few weeks. The pain is located in the low back and radiates out to the buttocks and down the posterior aspect of the thighs. R>L. Worse with activity. She has a lot of outside stressors. She has done PT in the past and takes multiple medications, none of which have been helpful.”22 18 UCHealth ED, 5/21/2015, page 16 19 UCHealth ED, 5/21/2015, page 33 20 UCHealth, 10/14/2015, page 6 21 UCHealth EMS, 9/7/2016, page 6 22 Colin Carpenter MD, 9/13/2016 Exhibit 2 Page 9 of 29 9/15/2016: caudal ESI, right L5-S1 TFESI (L5 nerve root) and left L5-S1 TFESI (L5 nerve root) by Dr. Colin M Carpenter MD 1/20/2017: “Patient reports her daughter had her in a ‘head lock.’ Patient reports she has been having increased neck and right shoulder pain since the incident.”23 2/9/2017: “Was assaulted by her daughter in December and then her daughter placed restraining order against her in January. Daughter also stole from her, including her medication which was reported to the police.”24 4/24/2017: “Chief Complaint: patient is a 47-year-old female presenting to physical therapy with complaint of cervical spine pain with radiating symptoms into the shoulders and upper arms with progressive insidious onset since 2010. (Emphasis mine) Patient states she has been in multiple MVAs and has been assaulted in the past (emphasis mine) and feels this has contributed to her current condition. Recent imaging reveals lumbar and cervical disc degeneration per patient report. Pain starts at cervical spine and extends into both shoulders/upper arms. Denies consistent neurological symptoms in the upper extremities. Pain described as a burning/shooting sensation with tingling and sharp stabbing pains at times. (Emphasis mine) Pain ranges from 5/10 at best to 8/10 at worst. Pain increased with lifting/reaching or head turning activities.”25 Reviewer’s Note: Ms. Richman admits progressive insidious neck, shoulder, and upper arm pain since 2010, ~7 years before the 6/7/2017 MVA. 5/3/2017: “She continues to state she is in pain all over her body. (emphasis mine)”26 5/10/2017: “She continues to state that most of her body just hurts all of the time.”27 6/9/2017: “Patient reports she was involved in a small MVA (emphasis mine) while riding in a taxi on the way home from her last PT visit. Feels that her neck and left hip are more sore due to the accident. Has not been able to perform her home exercise program very consistently.”28 Reviewer’s Note: It is my medical opinion this is a significant entry. Two days after the MVA she described 6/7/2017 MVA as a small MVA. I have thoroughly reviewed the mechanism of the accident and it is my medical opinion this was a minor or small incident which caused no physical injury to Ms. Richman. 6/13/2017: “Patient reports she is having more L>R cervical pain since the MVA last week. Patient notes an increase in headaches and migraines.”29 23 UCHealth, 1/20/2017, 24 UCHealth, 2/9/2017, 25 Rocky Mountain Physical Therapy, 4/24/2017, page 1 26 Rocky Mountain Physical Therapy, 5/3/2017, page 1 27 Rocky Mountain Physical Therapy, 5/10/2017, page 1 28 Rocky Mountain Physical Therapy, 6/9/2017, page 1 29 Rocky Mountain Physical Therapy, 6/13/2017, page 1 Exhibit 2 Page 10 of 29 6/20/2017: “47-year-old female who presents for evaluation of headache, abdominal pain. Patient has had abdominal pain over the last week associated with constipation. Patient has had some nausea and vomiting intermittently throughout the week. She has been eating intermittently as well. She did have a coughing episode and developed a severe headache 2 days ago.”30 Reviewer’s Note: 13 days after the 6/7/2017 MVA no injuries attributed to the MVA are mentioned in the record. This is consistent with a minor MVA. 6/21/2017: “Cervicalgia exacerbation today.”31 Reviewer’s Note: there is no mention in this visit of the 6/7/2017 MVA. This is consistent with a minor MVA. 6/23/2017: “The patient reports severe neck pain and headaches. She called before coming to treatment to ask if she should go to the emergency room or come in to therapy today.”32 6/27/2017: “Patient reports she did go to the ER following the last visit. Patient states the pain has been too much, ER did not do too much for the headache.”33 7/26/2017: “Patient reports she felt 80% better with her overall condition prior to her car accident which occurred on 6/9/2017 (sic-6/7/2017). She reports she was in a cab leaving PT when the cab was struck on the passenger side rear by a city of Fort Collins dump truck. She reports she went home after the accident and had soreness the next day. Since the accident she has felt increased pain and stiffness, as well as an onset of increased pain on her left side of neck. She began having headaches and went to the ER one week later. She has continued PT treatment and reports 40% improvement since the accident. Currently pain is 9/10 at worst, 7/10 currently, and 5/10 at best.”34 9/27/2017: “EMS was called today by the patient after she stated the pain in her back was too much for her to handle. She has chronic neck and back pain and today her back pain was more than she could handle. Patient stated she has not been going to physical therapy appointments for about a month and she got up and moved around this week more than she typically does and stated that she thinks she “overdid” it enough to cause her back to be in unbearable pain. Patient stated her pain was worse when she sat down as well. She denied any other pain, complaints, or injuries. Patient stated she smokes marijuana for the pain and uses hash oil on the location of her pain as well. Patient stated she has run out of her marijuana and the hash oil does not seem to be working for her.”35 30 UCHealth, Inpatient Services, 6/20/2017, page 110 31 UCHealth, 6/21/2017, page 1 32 Rocky Mountain Physical Therapy, 6/23/2017, page 1 33 Rocky Mountain Physical Therapy, 6/27/2017, page 1 34 Rocky Mountain Physical Therapy, 7/26/2017, page 1 35 UCHealth, Harmony Emergency, Poudre Valley Hospital EMS, 9/27/2017 Exhibit 2 Page 11 of 29 9/27/2017: “This patient presents with acute on chronic low back pain. This is similar pain to what she has had in the past. No new injury. (emphasis mine) She has received epidural steroid injections in the past with some relief. She has been recently managed on MS Contin as well as morphine immediate release.”36 Reviewer’s Note: There is no indication in this visit she is complaining of increased or different pain related to the 6/7/2017 MVA. 10/19/2017: right L5-S1 TF ESI steroid injection (L5 nerve root) and left L5-S1 TF ESI steroid injection (L5 nerve root) by Dr. Colin M Carpenter MD Reviewer’s Note: this is 13 months since her prior lumbar ESI. This is consistent with her history of receiving an ESI ~annually. 12/18/2017: “Had an epidural injection in lumbar spine which has helped some.” “Everything I do hurts.” 1/22/2018: “48-year-old woman presenting to PT with complaint of neck pain and stiffness she believed to be related to cervical disc degeneration which she reports was seen on imaging last spring. She describes her pain as burning and tingling, originating in the cervical spine and extending into both shoulders, R>L. She was treated here previously for these symptoms 4/2017-8/2017. She reports she had made 80% improvement in her condition with PT initially. However, she was involved in a minor MVA (emphasis mine) in 6/2017, which she states exacerbated her neck pain and stiffness. Currently her neck pain is 8/10, 9/10 at worst and 6/10 at best and she reports experiencing 2-3 migraines per month. She reports history of chronic pain, including low back pain for which she received an epidural 9/22/2017. She reports minimal relief from the epidural and has just been accepted to the Pain Clinic at the Family Medicine Center where she will have an evaluation on 2/5/2018. She also reports a history of depression, anxiety and psychological trauma (emphasis mine) for which she has been receiving EMDR therapy. She relates she is also beginning an episode of care with another therapist and has made a February appointment for a neuro- feedback session.”37 Reviewer’s Note: Ms. Richman again describes the 6/7/2017 MVA as “minor.” 2/2/2018: “Patient presents for follow-up chronic pain. Continues to follow with outpatient psychiatrist. Is struggling because of recent death of ex-husband. Is frustrated that she still hurts all over.”38 Reviewer’s Note: there is no mention of the 6/7/2017 MVA. 2/14/2018: “Location of pain: right shoulder, neck pain, back (entire; lower back and neck are the worst sections); occasional migraines, 3 days of the week she wakes up and her back pain hurts so much she can’t bend to wipe herself. 36 UCHealth, Harmony Emergency, 6/20/2017, page 6 37 Rocky Mountain Physical Therapy, 1/22/2018, page 1 38 UCHealth, 2/2/2018, page 22 Exhibit 2 Page 12 of 29 Duration of pain: since 2007. (Emphasis mine) Quality of pain: sharp, stabbing pain, burning pain, shooting pain, some achy pain.”39 Reviewer’s Note: “Duration of pain: since 2007.” 2/23/2018: “Patient states she has been sick and depressed these last 2 weeks and has not done much exercise.”40 3/7/2018: “The patient has not called in 2 weeks to set up appointments and will therefore be DCed at this time.”41 8/21/2018: “The patient presents for follow-up. She was last seen one year ago for repeat bilateral L5 TF ESI steroid injections. This has improved her pain for almost a year. Now the pain has slowly started to return. It is across her low back and radiating into bilateral legs, right greater than left in the same distribution. She also has some mid back and right-sided neck pain with neuropathic pain down her right arm at times. This has been a chronic intermittent issue in the past as well, but she has not had an MRI since 2014. She reports only symptoms stemmed after a MVA (sic-?) last year and the symptoms have changed somewhat since then. Reviewer’s Note: the meaning of this entry is unclear. 8/30/2018: “Right L5-S1 TF ESI (L5 nerve root) and left L5-S1 TF ESI (L5 nerve root) by Dr. Colin M Carpenter MD. 10/16/2018: “The patient is a 49-year-old female who presents with low back pain which has been going on since 2010. (Emphasis mine) She has been in multiple car accidents as well as a parasailing accident. She has suffered domestic violence in the past. Last year she was in a hit and run which flared up her neck and she was receiving PT for that until recently. She is seen by the pain clinic regularly and has been having an epidural almost every year. (Emphasis mine) She most recently had an epidural on 8/30/2018 so she is feeling her upper back and neck slightly more now. She reports constant pain which is aching/burning pain with occasional sharp and shooting pain down her legs R>L. She quit smoking 4 months ago and has put on some weight which has increased her pain level. In 2017 she had x-rays/MRI which showed herniated discs in her neck, DDD in her thoracic and lumbar spine and bulging discs in her lumbar spine. She would like to avoid back surgery. She is not working and is on disability.”42 Reviewer’s Note: Ms. Richman has been receiving ESI’s ~annually since well before the 6/7/2017 MVA. I.e., no significant change in her annual ESI’s after the MVA. 6/18/2019: “She sustained an accident and developed chronic low back pain 15 years ago. She was started on pain medications and has been on use of 39 UCHealth, 2/14/2018, page 28 40 Rocky Mountain Physical Therapy, 2/23/2018, page 1 41 Rocky Mountain Physical Therapy, 3/7/2018, page 1 42 Rocky Mountain Physical Therapy, 10/16/2018, page 1 Exhibit 2 Page 13 of 29 opiates since 2014. States she only receives epidural injection since 2014 once per year.”43(emphasis mine) 8/14/2019: “The patient presents for follow-up. She was last seen from lumbar ESI. This has continued to provide significant benefit for her over the past year. This was done ~12 months ago. Today she follows up with a significant increase in her neck pain, L>R radiating down her left arm. She gets numbness and tingling in her fingers. She has updated x-rays ordered. She has an MRI from 2014 showing some degenerative changes in her cervical spine with adequate posterior epidural space at C7-T1. Her neck is worse than her back at this point.”44 Reviewer’s Note: There is no mention of the 6/7/2017 MVA. There is no indication of increased symptoms since the 6/7/2017 MVA. I did not find any reference in the medical records of a physician recommending surgery to Ms. Richman. “The things that I need to be doing, such as reflexology, massage therapy, different types of things that help with aligning and moving you, going to sulfur pools, stuff like that, that stuff nobody’s going to pay for, so as long as I am in an uphill battle against the medical community for dealing with chronic pain without being an opioid trash dumpster. I am very limited to what I have available to me that is paid for per—you know, via my insurance.”45 Reviewer’s Note: It is my medical opinion Ms. Richman was not injured in the 6/7/2017 MVA. Discussion Regarding Accuracy of Medical History The question of how to explain residual pain after a minor injury to a joint or body area the patient describes as previously asymptomatic has been extensively studied. Barsky literature review:46 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). 43 UCHealth, Harmony Endocrine Outpatient, 6/18/2019, page 26 44 Colin Carpenter MD, 8/14/2019 45 Katrina Richman 6/2/2021 deposition, page 89 46 Barsky AJ. Forgetting, fabricating, and telescoping: the instability of the medical history. Archives of Internal Medicine, 2002 May 13; 162(9): 981-4. Exhibit 2 Page 14 of 29 Lees-Haley studies:47 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.48 Claimants misrepresent their pre-claim functioning as having been super-human. Provided a review of scientific studies that demonstrated that there is a pronounced tendency for claimants to exaggerate the current complaint. Carragee research:49 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) 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.50 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."51 Specifically, involvement in a medical-legal claim is itself a risk factor for a 47 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. 48 Lees-Haley, PR et al (1997). Response bias in plaintiff’s histories. Brain Injury, 11, 791-799. 49 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. 50 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. 51 Melhorn, JM, and Ackerman, WE. Guides to the Evaluation of Disease and Injury Causation. 2008. American Medical Association. Exhibit 2 Page 15 of 29 poor health outcome.52 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 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.53 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).54 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.55 (emphasis mine) The Caragee article (reference 49) 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 52 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. 53 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. 54 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. 55 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 2 Page 16 of 29 factors that are consistently and systematically hidden from clinicians, the claimants are denying themselves opportunities for credible treatment planning. The literature reviewed above also highlighted another problematic aspect of claimant reports involving elevated rates of exaggeration of current impairment.56 TBI DISCUSSION Reviewer’s Note: It is my medical opinion Ms. Richman did not experience an mTBI/concussion as a result of the 6/7/2017 MVA. She claims some memory problems after the MVA, but these are subjective and potentially self-serving, and the mechanism of injury was in my medical opinion insufficient to cause an mTBI. I have included this rather extensive explanation of mTBI/concussion to explain and support my opinion TBI Explanation Traumatic Brain Injury (TBI)/Concussion/Neurocognitive Disorder (NCD) “Major or mild neurocognitive disorder (NCD) due to traumatic brain injury (TBI) is caused by an impact to the head, or other mechanisms of rapid movement or displacement of the brain within the skull as can happen with blast injuries. Traumatic brain injury is defined as brain trauma with specific characteristics that include at least one of the following: loss of consciousness, posttraumatic amnesia, disorientation and confusion, or, in more severe cases, neurological signs (e.g., positive neural imaging, new onset of seizures or a marked worsening of a pre-existing seizure disorder, visual field cuts, anosmia (loss of smell), or hemiparesis (paralysis of ½ of the body) (Criterion B). To be attributable to TBI, the NCD must present either immediately after the brain injury occurs or immediately after the individual recovers consciousness after the injury and persist past the acute post-injury period (Criterion C).” (Emphasis mine) Examiner’s Note: It is my medical opinion Ms. Richman did not meet these diagnostic criteria for a concussion/mTBI. The cognitive presentation is variable. Difficulties in the domains of intricate attention, executive ability, learning, and memory are common and slowing in the speed of information processing and disturbances in social cognition. In more severe TBI in which there is brain contusion, intracranial hemorrhage, or penetrating injury, there may be additional neurocognitive deficits, such as aphasia, neglect, and constructional dyspraxia.”57 Examiner’s Note: Neurologic or cognitive symptoms resulting from a head injury occur in a “worst-first” pattern. It is my medical opinion Ms. Richman did not experience a traumatic brain injury, mild or otherwise. Her self-described symptoms were minimal, nonspecific, potentially self-serving, and easily exaggerated. 56 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. 57 DSM-5, 2013 American Psychiatric Association, page 625 Exhibit 2 Page 17 of 29 With mild neurocognitive disorder (NCD) due to TBI, individuals may report reduced cognitive efficiency, difficulty concentrating, and lessened ability to perform usual activities.58 It is my medical opinion Ms. Richman did not experience sufficient trauma to cause a TBI. Therefore her vague, subjective symptoms with memory, concentration, and decision making were not caused by a brain injury. These symptoms are easily feigned, manipulated, or exaggerated. It is my medical opinion her memory problems are more likely related to narcotic and benzodiazepine polypharmacy and use of “medical” marijuana and are not related to brain injury because she thinks she may have hit her head against the passenger window. The impact with the dump truck involved a low ΔV, the taxi was shaken but not spun or moved by the impact. There was insufficient speed and force to cause Ms. Richman a TBI/concussion. The neurobehavioral sequelae of TBI (traumatic brain injury) consist of a spectrum of somatic, neurologic, and psychiatric symptoms. The challenge for clinicians lies in understanding the various symptoms' interface and how they interrelate with other entities. Specifically, the challenge is differentiating post-TBI-related symptoms from pre-existing or de novo psychiatric, neurologic, and/or systemic disorders.59 There is no single test to confirm the presence of traumatic brain injury. Acutely, within the first 7- 14 days, specific objective findings might be apparent on brain CT or MRI. The brain CT performed on Ms. Richman 6/20/2017 was completely normal. Her symptoms have been minimal and vague; the forces involved in the 6/7/2017 MVA were minimal to mild, and the timing and course of her symptoms were inconsistent with an mTBI. It is my medical opinion Ms. Richman did not experience an mTBI. Traumatic brain injury typically occurs in a "worst-first" pattern. In other words, a significant head injury manifests recognizable symptoms within a short time of the injury. The symptoms are typically a considerable headache, confusion or disorientation, discoordination, or amnesia. Without these crucial symptoms shortly after an injury, vague symptoms such as those described by Ms. Richman months after the MVA are not correctly classified as traumatic brain injury. The clinical features typically come on rapidly after an injury and resolve spontaneously over a sequential course.60 It is my medical opinion, within a reasonable degree of medical probability, Ms. Richman’s lack of head impact or rapid acceleration/deceleration head injury without acute findings are not consistent with a diagnosis of TBI or TBI symptoms. "It is evident that a considerable force is required to produce a mild traumatic brain injury (MTBI). Research on concussive and non-concussive impacts in American football athletes has indicated that the magnitude of concussion impact was, on average, 95 58 DSM-5, 2013 American Psychiatric Association, page 627 59 Neurol Clin. 2011 Feb;29(1):35-47 60 Australian Family Physician, 2010; Vol. 39, No. ½ (Jan./Feb.), p. 13 Exhibit 2 Page 18 of 29 gravitational translation forces (gtf), with a range of 60-120 gtf. According to McCrea, current thinking is to sustain a mild TBI; one needs to experience the gravitational acceleration of between 80 and 100 gtf. A 100 gravitational translational force is roughly equivalent to a vehicle traveling at 25 mph, hitting a brick wall and the occupant striking his or her head against the dashboard."61 With these figures in mind, it is my medical opinion Ms. Richman did not experience forces near this intensity. "The sports medicine literature on injured athletes with MTBI is entirely consistent in its findings, namely that it is unusual for symptoms not to improve over time, and they certainly do not worsen. (Emphasis mine) When this happens, we need to consider alternative explanations."62 "One of the ways how we can understand the impact of brain injury and cognitive functioning is to look at its effect size. There are data that summarize the impact of mTBI on neuropsychological test performance. They are based on data from hundreds of studies and thousands of patients, so they should be considered quite robust. The data here show us two things. Firstly, that mTBI has no appreciable effects on neuropsychological test performance 30 days post-injury. (emphasis mine) Secondly, mTBI has a relatively small effect compared with conditions like attention deficit disorder, dysthymia, depression, etc. There is a dose-response relationship regarding head injury severity, and a moderately severe head injury will have an appreciable effect on test performance."63 "In summary, we can expect a good neuropsychological outcome with no indication of impairment on neuropsychological tests three months post-injury in the majority of cases. It is a great pity that more neuropsychologists seem unaware of this because this evidence base is impressive."64 In mTBI, the outcome is almost universally complete recovery. It is my medical opinion; Ms. Richman did not suffer a TBI, mild, or otherwise. "We can look at what we can expect to see regarding malingering and symptom exaggeration across different clinical groups. The study reported most frequently in the literature; is one conducted by Mittenberg in 2002,65 which referred to an extensive 61 McCrea MA. Mild Traumatic Brain Injury and Postconcussion Syndrome: The New Evidence Base for Diagnosis and Treatment. New York: Oxford University Press, 2008 62 Dr. Stuart Anderson. Fact or Fraud? Medico-Legal Journal. Volume 78 number 2, pp. 56-65. June 2010. 63 Dr. Stuart Anderson. Fact or Fraud? Medico-Legal Journal. Volume 78 number 2, pp. 56-65. June 2010 64 Dr. Stuart Anderson. Fact or Fraud? Medico-Legal Journal. Volume 78 number 2, pp. 56-65. June 2010 65 Mittenberg W, Patton C, Canyock EM, Condit DC. Base rates of malingering and symptom exaggeration. J Clin Exp Neuropsychol 2002; 24:1094-1102 Exhibit 2 Page 19 of 29 data sample of over 33,000 cases. What it suggests is that 39% of mild head injury claims resulted in a diagnostic impression of probable malingering."66 (emphasis mine) “Psychologists are required to base the opinions in reports and testimony on information and techniques sufficient to substantiate their findings (APA 2010, EPPCC 9.01). This is consistent with the legal system requirements that expect testimony to meet certain standards, including that it be based on sufficient facts and data and reliable methods (FRE 702). This means that the evaluator must collect data that are comprehensive, relevant, and valid. Also, someone must interpret the data appropriately. The inferences made must be reasonable and based on the data that were collected. The SGFP stresses the importance of utilizing multiple data sources and attempting to corroborate data by comparing information across sources (emphasis mine) (APA, 2013). In circumstances when such cross-validation is not possible, one should identify the resulting limitation.”67 The physicians and medical providers did not enlist corroborative information beyond what Ms. Richman told them. “It is also important to focus on collecting data that are relevant to the legal question at hand. Relevant, in this context, is defined as ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’” (FRE 401).68 “Litigation status is an important, albeit controversial, factor in recovery from TBI. Litigation status involves individuals who are seeking financial compensation for residual injuries following a TBI. This type of post-incident factor can create a clinical syndrome in someone without any residual deficits or distort a true clinical picture such that deficits and symptoms that normally would recover continue to be reported over time. Litigation is a prominent and consistent factor accounting for poor outcomes and prolonged recovery from mild TBI. Individuals seeking financial compensation are 4 times more likely to give poor effort on neuropsychological testing, with other studies reporting about a 40% base rate of poor effort/test invalidity in personal injury cases. (Emphasis mine) Others have found that those in litigation presented with greater subjective complaints and did worse on neuropsychological performance than non- litigating mild TBI individuals matched for injury severity. Moreover, mild TBI patients seeking compensation take more medications and report twice the symptoms as matched non-litigating mild TBI patients. Thus, litigation status may mediate the profile of neuropsychological performance and symptoms. The presence of active litigation should be carefully considered when determining the etiology of cognitive impairment 66 Dr. Stuart Anderson. Fact or Fraud? Medico-Legal Journal. Volume 78 number 2, pp. 56-65. June 2010 67 The Handbook of Forensic Psychology, fourth edition, 2014, page 178 68 The Handbook of Forensic Psychology, fourth edition, 2014, page 178 Exhibit 2 Page 20 of 29 seen following TBI. Though unclear, there is likely an admixture of iatrogenic factors and intentionality accounting for these differences.”69 “Regardless of the rationale for poor effort, measuring effort is essential in TBI, as approximately 40% of people with mild TBI have exaggerated symptoms during an assessment.” 70Reviewer’s Note: though Ms. Richman did not actually experience a concussion, this additional information should be considered by the providers. “An important ‘first step’ in the neuropsychological assessment of TBI involves estimating the individual’s pre-injury level of ability and cognitive functioning using a combination of demographic variables and actual test performances.” “Education is the premorbid factor with the most powerful effect on neuropsychological performance.”71 Neurobehavioral symptoms tend to be most severe in the immediate aftermath of the TBI. (Emphasis mine) Except in severe TBI, the typical course is that of complete or substantial improvement in associated neurocognitive, neurological, and psychiatric symptoms and signs. Neurocognitive symptoms associated with mild TBI tend to resolve within days to weeks after the injury, with complete resolution typical in three months. (Emphasis mine) Other symptoms that may potentially co-occur with the neurological symptoms (e.g., depression, irritability, fatigue, headache, photosensitivity, sleep disturbance) also tend to resolve in the weeks following mild TBI.72 Examiner’s Note: the simple fact Ms. Richman complains of delayed and prolonged subjective symptoms is not evidence of a severe TBI but, in my medical opinion, is most consistent with a possible diagnosis of anxiety disorder, somatic symptom disorder, or malingering. With mild neurocognitive disorder (NCD) due to TBI, individuals may report reduced cognitive efficiency, difficulty concentrating, and lessened ability to perform usual activities.73 It is my medical opinion Ms. Richman did not experience sufficient trauma to cause a TBI. Therefore her vague, subjective symptoms concerning memory, losing things, concentration, and decision making were not caused by a head contusion and certainly not a brain injury. PTSD (Post Traumatic Stress Disorder) 69 Psychiatric Clinics of North America, Traumatic Brain Injury: Defining Best Practice, Neuropsychological Assessment in Traumatic Brain Injury, Dec 2010, page 858 70 page 858 Psychiatric Clinics of North America, Traumatic Brain Injury: Defining Best Practice, Neuropsychological Assessment in Traumatic Brain Injury, Dec 2010 71 page 860 Psychiatric Clinics of North America, Traumatic Brain Injury: Defining Best Practice, Neuropsychological Assessment in Traumatic Brain Injury, Dec 2010 72 Handbook of PTSD: Science and Practice, 2007 The Guilford Press, page 462-463, 73 Handbook of PTSD: Science and Practice, 2007 The Guilford Press, page 462-463, Exhibit 2 Page 21 of 29 Reviewer’s Note: it is my medical opinion Ms. Richman did not experience sufficient emotional or physical trauma in the 6/7/2017 MVA necessary to cause PTSD. I do believe her prior history of PTSD based on abuse from her stepfather, her ex-husband, and her daughter was sufficient to support the diagnosis of PTSD documented before the MVA. "The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war as a combatant or civilian, threatened or actual physical assault (e.g., physical attack, robbery, mugging, childhood physical abuse), threatened or actual sexual violence, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe (emphasis mine) motor vehicle accidents."74 Examiner’s Note: It is my medical opinion the medical records do not support the assertion Ms. Richman experienced a harrowing, emotionally traumatic experience because of the 6/7/2017 MVA. The symptoms she described were consistent with typical (minor) anxiety. She was not diagnosed with PTSD by a qualified psychiatrist or psychologist. It is my medical opinion diagnosing PTSD because a person complains of driving and riding anxiety after a relatively minor MVA is irresponsible and trivializes the correct diagnosis of PTSD in deeply traumatized persons who have experienced severe trauma. It is my medical opinion Ms. Richman does not meet Criterion A. It is my medical opinion Ms. Richman was correctly diagnosed with PTSD secondary to her previous traumas involving her stepfather, her husband, and her daughter. She did not experience PTSD from the 6/7/2017 MVA. It is my medical opinion; Ms. Richman does not meet the criteria for a diagnosis of PTSD; she did not experience sufficient emotional trauma or manifest the psychological symptoms consistent with this diagnosis. Ms. Richman did not experience sufficient emotional and psychological trauma arising from the 6/7/2017 MVA. Evaluation of the Traumatic Event “The DSM-IV-TR characterizes PTSD as a syndrome that is a result of exposure to an event involving a serious threat of injury, death, or the physical integrity of oneself or others. This event also must prompt the individual to respond with extreme fear, helplessness, or horror.”75 (emphasis mine) “Guidelines That Are Only of Clear and Direct Relevance to PTSD: The loss of memory with PTSD primarily involves the circumscribed aspect of a traumatic event, usually the most psychologically painful part. In general, most studies indicate that PTSD symptoms and impairment decline in severity over time. 74 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5). Arlington, VA, American Psychiatric Association, 2013. Page 271-280 75 PTSD and Mild Traumatic Brain Injury, 2012, editors: JJ Vasterling, RA Bryant, TM Keane, page150 Exhibit 2 Page 22 of 29 Even when symptoms persist, the level of functional impairment usually declines significantly. No level of disability should be directly or indirectly associated with a diagnosis of PTSD.”76 (emphasis mine) Examiner’s Note: Ms. Richman did not experience PTSD. “In the intervening years since we first addressed this issue (Pitman & Sparr, 1998; Pitman et al., 1996; Sparr, 1990, 1996; Sparr & Atkinson, 1986; Sparr & Boehnlein, 1990; Sparr & Pankratz, 1983; Sparr et al., 1987), PTSD has continued to influence, and be influenced by the law. The most dramatic change is the geometric rise in PTSD claims in civil litigation. Much of this can be attributed generally to society’s increasing concern with, and acceptance of, psychological trauma, specifically to the liberalization of the stressor criteria in DSM-IV. A continued concern is laws and regulations that provide financial incentives for plaintiffs or claimants to remain ill and to disclaim responsibility for their emotional problems. (emphasis mine) In particular, these have become key issues in the conduct of Workers’ Compensation and VA disability claims. In this context, evaluating professionals are obligated not only to educate themselves in the way the diagnosis can be used and abused in the legal setting but also to remain conscious of the vulnerability of PTSD patients and their capacity for re-traumatization by the legal process. Healthy skepticism must be tempered with an ethical obligation to deal with PTSD claimants in an honest and empathic manner.”77 (emphasis mine) In the general population in the United States, the prevalence of PTSD has been estimated at 8% (American Psychiatric Association, 2000).” 78 Ms. Richman did not experience "an extreme traumatic stressor." It is my medical opinion attributing the vague psychological symptoms to a diagnosis of “PTSD” is inaccurate and irresponsible. The AMA Guides to the Evaluation of Disease and Injury Causation, 2nd edition, Chapter 16 is titled Mental Illness. “Legal claims focused on mental illness almost always involve a claim that some experience or event caused the mental illness.” The legal standard or threshold for most judicial and administrative systems places the burden of proof on the claimant’s/plaintiff’s side of the argument. That legal standard has consequently become a guiding principle for forensic work. Given this burden of proof issue, and given the causation considerations that are discussed, it will be an uphill battle, in any individual case, to credibly justify claims of work-relatedness, injury- 76 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, page 517 77 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, page 463-464 78 The Handbook of Forensic Psychology, 4th edition, 2014page 181 Exhibit 2 Page 23 of 29 relatedness, accident-relatedness, or any relationship that involves civilian adult life events as a cause of mental illness.”79 Causation Analysis The requirements of step 1 of the causation analysis protocol include:80 The establishment of a definitive diagnosis The diagnosis should be explanatory (i.e., it should explain, or at least provide a partial reason, for the clinical presentation) The diagnosis be based on objective findings, Examiner’s Note: there are no objective findings with PTSD. The method by which this diagnosis is established be scientifically validated, Examiner’s Note: there is no scientific validation of PTSD. “Relevant scientific knowledge base creates additional barriers to justifying legal claims of causation for mental illness. The mental illness diagnostic system is fundamentally inadequate for purposes of causation analysis. For mental illness, the nature of the diagnostic system creates a pervasive obstacle to credibly claiming that a person’s experiences are the cause of the clinical presentation.”81 “Use of DSM-5 to assess for the presence of a mental disorder by nonclinical, nonmedical, or otherwise insufficiently trained individuals is not advised. Nonclinical decision-makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the etiology or causes of the individual’s mental disorder or the individual’s degree of control over behaviors associated with the disorder. Even when diminished control over one’s behavior is a feature of the disorder, having the diagnosis, in itself, does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time.”82 Some people have been traumatized by horrific events. This condition has been manipulated by society, politicians, medical providers, and the legal profession. People can quickly lookup symptoms of PTSD and report they have experienced them. They can dramatize a traumatic event. How does the physician (ideally a psychiatrist) confirm the veracity of the description of the specific event with no objective findings which support the subjective symptoms? In this case, somebody should have considered the severity of the MVA and estimated forces and impacts involved before a diagnosis of “concussion” or PTSD was proffered. 79 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, page 486 80 ibid., page 487 81 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, page 487 82 Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), page 25 Exhibit 2 Page 24 of 29 “Regarding the call for the diagnosis to be based on objective findings: There is nothing objective about the diagnostic system for mental illness. Almost every diagnostic protocol within the system is subjective. They are primarily based on the subjective complaints of the examinee and the personal impressions of the diagnostician. One can review the diagnostic system's details to confirm that this is the essential nature of the system. Psychological testing has been scientifically validated to introduce some objectivity into this utterly subjective process. However: i) Such testing is not comprehensive. For example, the Millon Clinical Multiaxial Inventory has been validated to add objectivity to the diagnostic process. Still, it directly addresses a few more than 20 of the nearly 300 mental illnesses listed in the DSM-IV-TR. All other relevant tests are similarly far from being comprehensive. ii) Such objective testing is dependent on cooperation from the examinee. The most well-designed and validated test results from an uncooperative (manipulative? malingering?) examinee will probably reveal the lack of cooperation (if the analysis of the results is thorough and unbiased). However, that lack of cooperation from examinees towards diagnostic efforts is pervasive in forensic cases. iii) Individual diagnostic protocols have not incorporated any such testing (with minimal exceptions, such as intelligence testing for mental retardation). The details of the diagnostic system can be reviewed directly to confirm that the vast majority of diagnostic protocols failed to consider objective test results (even when directly relevant tests are available). The diagnostic system only makes an indirect call for such testing in that the malingering protocol that is built into that system calls for a comparison of the examinee’s subjectively claimed distress or disability to objective findings, and the only reliable source of such factual findings for mental illnesses is relevant, scientifically-validated psychological testing. This indirect call for introducing accurate testing into the process fails to take advantage of such testing’s ability to add objectivity to differential diagnostic considerations other than malingering. iv) Consequently, the mental illness diagnostic system does not provide a comprehensive mechanism, or even a nearly complete tool, for objectively establishing a diagnosis.”83 “The flaws of the mental illness system and its vulnerability to misuse have contributed to a ‘basic background of over-diagnosis.’ The over-diagnosis phenomena also produce ‘false epidemics’ of mental illness.”84 “This widespread over-diagnosis creates another obstacle to the credible endorsement of mental illness claims. Specifically, 83 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, pp. 488-489 84 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, page 489 Exhibit 2 Page 25 of 29 clinical/forensic evaluators and judicial/administrative decision-makers need to be aware that there is an elevated risk of false diagnosis in cases that involve claims of mental illness. Consequently, those evaluators and decision-makers must be prepared to apply unusually intensive scrutiny to the diagnoses presented in such claims.”85 “The DSM-IV-TR addresses its inadequacies for forensic purposes, directly and repeatedly. Very specifically, it states: ‘In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal (emphasis mine) purposes of a mental disorder, mental disability, mental disease, or mental defect.’ The DSM-IV-TR consequently warns that attempts to impose the mental illness diagnostic system onto the legal system will create significant risks of misunderstanding and misuse.”86 (emphasis mine) “Scientific findings predominantly contradict claims that adult life experiences cause psychopathology.”87 “Perhaps the strongest generic contradiction of the premise that adult life experience causes psychopathology is the history of scientific findings that address the normal human response to challenging experiences. Specifically, findings have reliably revealed that the normal response is a phenomenon that has been labeled ‘Post-traumatic Growth.’ We define this term as ‘positive psychological change experienced as a result of the struggle with highly challenging life circumstances.’ Research findings have consistently indicated that this phenomenon is reported by 75% to 90% of the survivors of traumatic experiences.”88 “Primary examples of this dominant tendency for humans to respond to traumatic and challenging experiences by demonstrating psychological improvement include: Developing ‘psychological preparedness’ -an increased ability to face future challenges with less distress, Experiencing greater satisfaction with life Finding more meaning in life Developing a greater sense of purpose Experiencing an enhanced realization of psychological strength Developing new interests, new activities, and significant new paths in life Developing a stronger sense of connection, intimacy, or closeness to other people Developing increased compassion for other people Developing an increased sense of freedom to be oneself.”89 85 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, pp. 489-490 86 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014 page 490 87 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014 page 490 88 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014 page 491 89 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, page 491 Exhibit 2 Page 26 of 29 “Well-designed research focused on the stress that is both chronic and life-threatening (e.g., cancer) has produced results that indicate that: Severe psychological disturbance in response to chronic, life-threatening stress is rare. Psychological disturbance attributable to the stress is generally not enduring when it occurs. Most of the relevant research participants resumed normal psychological functioning. A majority reported experiencing psychological benefits from the experience. Overall, such research participants report significantly more positive psychological effects than adverse psychological effects. Likewise, it has been found that psychological disturbance in response to catastrophic injuries (spinal cord injury) demonstrates a similarly temporary course.” Other research on chronic, life-threatening stress (i.e., HIV/AIDS) has produced reports that the positive effects of such stress actually ‘buffer against’ mental illness. 90 “Courts have long allowed claims based on physical harm, and all jurisdictions now allow claims of emotional harm proximately related to physical injuries. However, courts are less receptive to claims based solely on psychological damage absent a physical injury (Kane et al. 2013). According to Koch, O’Neill, and Douglas (2005), courts have long been skeptical of claims of psychological injury because of fears that, without objective markers for the existence of mental health conditions, such disorders would be easy to fabricate.”91 “With the understanding that establishing a diagnosis is not required for a claim of psychological injury, there are some conditions that are commonly claimed by plaintiffs in tort cases. Witt and Weitz (2007) reported that the most common symptoms seen following motor vehicle accidents include chronic pain, depression, and anxiety (including PTSD). Melton et al. (2007) reported that the condition, known as traumatic neurosis/PTSD/acute stress disorder (ASD), is the most commonly observed mental injury in personal injury cases. (emphasis mine) Koch et al. (2005) listed PTSD, ASD, and major depressive episodes as conditions that may be the subject of personal injury litigation. Kane et al. (2013) pointed to PTSD as the most common diagnosis in personal injury cases.”92 (emphasis mine) There is a common misperception in the lay public that human beings, much like machines, wear out or deteriorate over time due to strenuous physical, mostly 90 AMA Guides the Evaluation of Disease and Injury Causation (second edition), 2014, page 492-493 91 The Handbook of Forensic Psychology, fourth edition, 2014, page 179 92 The Handbook of Forensic Psychology, fourth edition, 2014, pp. 179-180 Exhibit 2 Page 27 of 29 repetitive work. This is not true. We are living organisms and adjust very effectively to increased physical activity. Our muscles, bones, tendons, and ligaments strengthen to adapt to physical stresses. Our heart and lungs become more efficient at oxygenating and circulating blood. And our brains produce additional, more efficient neural pathways. Why else would athletes train and exercise many hours daily and weekly? Our mental health, mood, and psychological functioning similarly adapt to stress. Emotional stress and adversity generally improve our resilience, emotional balance, and ability to respond appropriately to future adversity. It is not beneficial for human beings to avoid vigorous activity and exercise. Avoiding emotional hardship and emotional pain does not improve our quality of life but diminishes the richness of life experiences and our ability to respond, benefit, and learn from them. “Many persons who seek redress in the legal system after a traumatic event have genuine claims. Others, however, come to exaggerate a compensation claim. In a forensic context, in particular, clinicians who evaluate patients after a major stressor must consider malingering in their differential diagnosis. (Emphasis mine) As mentioned earlier, plaintiff’s attorneys strongly favor the diagnosis of PTSD because the diagnosis itself constitutes evidence that the symptoms are due to the traumatic event in question. Resnick (1998) observes that PTSD has been described by various names, many of which are pejorative and suggestive of malingering (e.g., litigation neurosis, compensation neurosis). Lees-Haley and Dunn (1994) have demonstrated that a significant majority of untrained college students (86%) could endorse symptoms to meet the criteria for a PTSD diagnosis from examiners. Reviewer’s Note: in other words, untrained college students were able to review the symptoms and typical presentation of PTSD, pretend to have those subjective symptoms, and deceive a majority of trained observers. The symptoms necessary for a diagnosis of PTSD are widely disseminated. Demonstration of symptoms is easily feigned even without a medical background and can deceive trained observers. Resnick (1998) has developed a list of clues to malingered PTSD: 1. Malingerers are more likely to be marginal members of society, with few binding ties or committed, long-standing financial responsibilities, such as homeownership. 2. The malingerer may have a history of spotty employment, previous incapacitating injuries, and extensive work absences. 3. Malingerers frequently depict themselves and their prior functioning in exclusively favorable terms. 4. The malingerer may incongruously assert an inability to work but retain the capacity for recreation. In contrast, the patient with genuine PTSD is more likely to withdraw from recreational activities. Exhibit 2 Page 28 of 29 5. The malingerer may pursue a legal claim with impressive tenacity while alleging depression or incapacitation in other pursuits. 6. Malingerers are unlikely to volunteer information about sexual dysfunction, although they are generally eager to emphasize their physical complaints. 7. Malingerers are also unlikely to volunteer information about nightmares unless they have read the diagnostic criteria for PTSD. When they occur in PTSD, real nightmares typically show variations on the theme of the traumatic event. In contrast, the malingerer may claim repetitive dreams that always reenact the traumatic event in the same way.”93 Examiner’s Note: I am not making a diagnosis of Malingering in this case. I include this information to emphasize the importance of consideration of Malingering and observance for evidence of symptom exaggeration or magnification and healthy skepticism when considering subjective symptoms. The mechanism of injury and review of forces involved must always be thoughtfully considered. Incidence of Psychosocial Comorbidities94 Chronic Pain Syndrome 1. 80% depressed 2. 70% anxiety/panic attacks 3. 30-60% personality disorders 4. >25% incidence of addiction 5. 10% qualify as psychogenic pain 6. Majority with maladaptive coping strategies “The causes of Pain Disorder are associated exclusively with psychological factors (which are usually stressful for the person), or psychological factors together with some type of medical illness that the patient suffers from. Psychological factors include stressful or traumatic events for the patient, an accelerated pace of life that causes anxiety, poorly managed grief, the death of a loved one, etc.” 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 93 Handbook of PTSD: Science and Practice, 2007 The Guilford Press, page 462-463, 94 Manchikanti et al, Pain Physician, 2013 Exhibit 2 Page 29 of 29 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. 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 2