Dr Eric Herman, a workers compensation doctor testifying for the insurance company

Dr Eric Herman, a workers compensation doctor testifying for the insurance company


We are now on the video record. Today is September 17th, 2013. The time is 5:12 p.m. This the matter of the Circuit Court of the
Twelfth Judicial Circuit in and for Sarasota County, Florida; Dannette Griffith, plaintiff,
versus Roy L. Baptiste, defendant. Today’s deposition is with Erik S. Herman, M.D. Counsel, please introduce yourselves
for the record, and then we will swear in the witness. My is Matt Powell, and I represent Dannette
Griffith. Nat Fisher representing Roy Baptiste. I do. Good afternoon, Doctor. Hi. We had the opportunity to speak a little bit
before your deposition today. I represent Mr. Baptiste, and I’m going to
start off your deposition by asking you some questions. You do have in front of you the medical records
from your visits with with Dannette Griffith, correct? Yes. All right. And what I would like to do also is just start
off by asking you some questions about your background and education, and what sort of
doctor are you? My specialty is called physical medicine and
rehabilitation. Okay. And describe to the jury what sort of practice
that is, sir. Well, physical medicine essentially is the
diagnosis and treatment of musculoskeletal problems, which means I take care of nonsurgical
orthopedic-type of problems, aches and pains, a lot of neck and back problems, pains in
the joints, nerve and muscle diseases, things of that nature. Okay. And do you have a medical degree? I do. I’m an M.D. All right. And when did you get your medical degree,
from where? I graduated in 1993 from Southern Illinois
University School of Medicine. All right. And are you board-certified? I am. All right. And what are you board-certified in? I’m board-certified in physical medicine and
rehabilitation by the American Board of Physical Medicine & Rehabilitation. I’m also board-certified in electrodiagnostic
medicine by the American Board of Electrodiagnostic Medicine. All right. Very good. Now, you have a practice here in Sarasota,
correct? Correct. And you’ve had the occasion to treat Dannette
Griffith, correct? Correct. And you were asked to examine Dannette Griffith
by whom? She was sent to me through the workers’ compensation
system. All right. And it’s your understanding that Dannette
Griffith was involved in a motor vehicle accident of June the 6th, 2007? Yes. And is it your understanding that she was
working at that time? Yes. And who was she working for? Do you recall? I don’t recall. I would have to go through the record. Okay. Well, what we’ll do, it’s it’s been several years since you last treated
her, correct? Six years, correct. Yes. And so why don’t we just start off first by
going over the records from your first visit with her? That would have been August the 7th, 2007,
correct? Yes. And she presented at your offices for a physical
examination at that time? Yes. And you personally examined her? Yes. And when you meet with a patient, you take
a history of their complaints, correct? Yes. And that would include prior injuries, prior
accidents, complaints, et cetera, correct? Yes. Did Dannette Griffith give you a history on
August the 7th, 2007? Yes. What did she tell you? She according to my records, we talked about initially
her her history. She had had a neck injury and fusion in 1999,
and at the prior injury was due to a different motor
vehicle accident. She was actually a pedestrian and hit by a
car. She had a prior workers’ compensation injury
where she tore her Achilles, and had surgery for that in 1998, but oh, it says, actually, surgery was two years
after the injury. She had another car accident and neck pain
in 2003, but then said she recovered from that accident and was was stable until the most recent accident,
which was the June 8th, 2007, accident. She was a restrained driver, meaning she had
her seatbelt on, and a car backed into her. She told me it was caught on the median and
was working its way to back off. And she had honked, but they didn’t hear her,
and the other vehicle struck the front of her vehicle. She could drive her car afterwards. And she actually worked for the rest of the
day, and she wasn’t in any pain that day. The next day, though, she was a little bit
sore. And within two days, the pain became severe
in her neck, mid and low back, and she developed some numbness and tingling in her left arm
and leg and had had pain ever since that. She, actually, on my pain diagram, marked
nine out of ten as the pain intensity level, which means, you know, extremely severe pain. She said that she felt she was getting worse
over time. She wasn’t sleeping well. She tried treating with a chiropractor, who
actually passed away. She noted it was emotionally hard for her,
as well as the physical person, as he was one of the only people that had helped her
in the past. Now, let me ask you Uh-huh. she told you that she was an inspector and
in sales for Terminix, correct, at the time of the accident? Terminix, right. All right. And she was treating following the accident
of June the 6th, 2007, with a chiropractor, a Dr. Dietz, who had passed away? Correct. All right. And she’s told you that she has had many jobs
over the years and had moved from Fort Wayne, Indiana, correct? That’s what my note says, yes. All right. Now, you you take this history, and you asked them,
“Well, what’s bothering you?” Uh-huh. What did she tell you was bothering her at
the time of the visit, her subjective complaints? Her her chief complaints were neck, mid- and low-back
pain and numbness or pain in her left arm and left leg. All right. Did you note whether she had any MRI films
with her? Yes. And did you actually see the films that day,
or did you just read the reports themselves? Let’s see. It says that I only had the reports, not the
actual films that day. All right. And the reports, from from what you looked at, what were they telling
you? Was it of the cervical spine only, or was
it cervical MRI It looks like I had both. Okay. The cervical and lumbar. What were the reports for the cervical spine
that you saw? The reports said there were postsurgical changes
at C5 through C7, stable since 2002; moderate disc bulges at C4-5, asymmetric to the left
laterally. There were no frank cervical disc herniations
noted. Her lumbar spine MRI suggested borderline
canal stenosis due to encroachment on the lateral recess and proximal neural foramina
at L4-5 due to disc bulge, facet and ligament hypertrophy. So, essentially, she had some arthritis in
her low back that was narrowing the openings for the nerves in the spine. And then in the neck, she had degenerative
changes and then the old surgical changes in her neck, but no new ruptured discs. All right. And were there any findings in the reports
that there were any new injuries caused by trauma? There were not those types of findings, no. Okay. And the findings on the MRIs of the cervical,
thoracic and lumbar were degenerative in nature? Correct. All right. Now, she she did state to you that she had a past medical
history of cervical and lumbar pain, correct? Correct. And she had had migraine headaches in the
past? Yes. And diverticulitis? Yes. Okay. Now, at the time of your meeting her on August
the 7th, 2007, did you ask her what medication she was taking? I did. And what did she tell you? She told me medicines are just stool softeners
and Tylenol P.M. All right. Now, why do patients take stool softeners? Constipation. Right. And can constip- what is constipation caused by? It can be physical. There’s many causes for constipation. It can be medication-related, it can be stress,
it can be their anatomy. Just many causes. All right. So it can be from from taking medication such as narcotics? That is a cause of constipation. Now, she told you that she was allergic to
morphine, correct? Correct. All right. It would be contraindicated for her to be
taking morphine today, would that be correct, if she’s allergic to it? If she’s truly allergic to morphine, she shouldn’t
take it, no. All right. At the time that she saw you in August of
2007, she was smoking a pack of cigarettes a day, as she reported? Yes. Okay. Now, you performed a physical examination
of her, correct? I did. All right. And you you got her height. She’s five foot eight inches? Uh-huh. And at the time, she’s 170 pounds, correct? Yes. All right. Now, when you were examining her, you note
that she was lying on the exam table through most of the history that she gave you Uh-huh. and that it hurt for her to stand and walk,
but but then what do you find on your physical
examination? She’s capable of walking. She walked around the room without any loss
of balance or any major limp or anything of that nature. Now, when you say she was able to walk around
without any major antalgia, what does that means in laymen’s terms? It means a limp. So she didn’t have any noticeable limp or
altered gait at that time, correct? Correct. Okay. Now, in your report, you write down that it
sounds like a relatively low impact with someone reversing into her. Is that would that be based on what she told you? Yes. Well, by the way she described the accident. Okay. And how did she describe the accident from
what you see in your records? That someone backed into her. Okay. And what about the property damage? That’s a
question I ask. I’m not seeing that here. If you can direct me to it. Yeah, sure. It’s page three just above number five. It says, “There’s not any major damage to
her car other than the bumper.” Okay. And she didn’t hit her head or lose consciousness,
correct? Correct. All right. And at the time, what did you recommend for
her? Several things. She had had pain in the mid-back, so I recommended
an MRI of the thoracic spine, as they looked at the neck and the low back, but not the
mid-back. It looks like I’m missing a page on my Are you missing number five? Yeah, I’m missing one page of my records. It looks like I had given her some medications,
a muscle relaxant. Is this the page, Doctor? Let me show it. I think you’re missing that page. Oh, yeah, I was. Okay. Will you look at that, Doctor, and Thank you, Matt. Yeah, no problem. Yes, this is the page I was missing. So let’s see. So I gave her, like I said, a muscle relaxant,
as well I gave her an anti-inflammatory medication similar to an Advil, a prescription-strength
medicine called Lodine, a pain reliever called Ultram for the most severe pain. I wanted her to use that sparingly. I wanted to see how she also did with physical
therapy. I wrote out an order for physical therapy
three times a week for a month. I released her to sedentary work for four
hours a day. And, like I said, the thoracic, the mid-back
MRI. Okay. And you also getting to the last page, you had her fill
out a McGill-type pain questionnaire? Yes. What is that? It’s a survey of an individual’s emotional
response to pain. There’s several words on a sheet of paper,
and the person’s asked to circle various words that would describe the type of pain they’re
having. And if a person circles 20 or more words on
this list, it’s a suggestion that there’s an emotional component to the problem, more
than just a physical, or in addition to the physical. Okay. And based on what she told you about her chiropractor
having recently passed away, did you did you have any opinions about that? She already said she was having an emotional
reaction to that, so Okay. it’s not surprising. Okay. All right. So you presented this report to the to the workers’ compensation people? Yes. All right. And then she came back to you and visited
you again August the 21st, 2007? Yes. All right. Did she receive, to your knowledge, any treatment
in the interim between August the 7th and August the 21st, 2007? Did she undergo any physical therapy? I had ordered the therapy. I’m looking at my note here. She had just had her first physical therapy
when she had seen me at that time. Okay. Now, August the 21st, 2007, you had her in
to go over the MRI results of the thoracic spine? Correct. And the thoracic spine is the middle part
of the back, correct? Yes. All right. And what did you tell her that you saw on
the MRI film of the thoracic spine? There are degenerative types of changes but
not ruptured discs or cord lesions. There was no problem with the spinal cord
or any compression to the nerves in the spine. Okay. Was there anything shown on the MRI of the
thoracic spine that would indicate any sort of traumatic injury? There was not. And, again, you conducted a physical examination,
and what were your findings? She had good strength in her arms and legs. She had somewhat widespread tenderness when
I when I pressed on her neck and the entire
spine, the cervical, thoracic and lumbar. I thought she was a little less tender on
her exam than the prior visit, and she marked eight out of eight to nine out of ten on her pain diagram,
so a little bit less than when I saw her the first time. Okay. And what sort of medication was she taking
at the time? Well, I had prescribed those three medicines,
the Lodine, Robaxin and Ultram, and it looks like I changed that to Darvocet from the Ultram. Okay. And what was your assessment for her at that
time? At that time, as far as a diagnosis, I called
this myofascial pain. And what is myofascial pain? It means soreness and tenderness to the muscles
of the body. Okay. Like what may be referred as sprain/strains? Well, a sprain refers to damage to ligaments
that connect one bone to another. A sprain is actual or a strain a strain is actual muscle damage. So myofascial pain, there’s not necessarily
physical damage that you can see, but it’s a soreness, achiness people can have after after injuries. The muscles are just sore. Sure. Now, your findings don’t represent any disc
herniations or nerve compressions, correct? Correct. And why would that be important if you were
to find that? Well, there are different ramifications if
there’s a ruptured disc. The length of time it takes a person to recover
will be longer. There can be nerve damage associated. There are different treatment options, from
different types of medications, surgical options, different types of therapy that can help. So it really knowing the proper diagnosis helps lead you
to the proper treatment for the person. Okay. Now, I see here that she was asking you about
epidural injections as a possible treatment. And what are epidural injections? It an epidural refers to the location of the
injection. Epidural the word epi or the root epi means on top
of, and dura refers to the covering of the nerves, so you’re putting medicine on top
of the nerve covering. Classically, they’re done in the low back
or the neck. You can also have them in the thoracic area. But these shots are done when there’s some
type of inflammation to the nerves, so people have a sciatica type of pain down the leg,
down the arm. You’re trying to reduce inflammation, so there
should be a cause, a ruptured disc, spinal stenosis, something like that. All right. And did you have any findings on exam of Dannette
Griffith on August the 21st, 2007, that would indicate the need for epidural injections? I didn’t think she she was a candidate for it at that time. All right. Now, in your practice, do you conduct epidural
injections? I do lumbar epidural injections for people. Okay. Now, you note that she should stick with physical
therapy and other conservative care, correct? That was my recommendation. All right. And just for the benefit of the jury, explain
what a person may do generally in physical therapy and what conservative care is. Conservative care refers to care outside of
interventional care. So there’s conservative and interventional. Interventional would be shots, surgery, you
know, something where you’re making physical changes to the body. And conservative care are more starting points
for treatment, things like medications, exercises. Physical therapy can involve modalities, which
modalities are things like heat, ultrasound, deep type of heating. There can be traction where there’s distraction
of different body parts, massage, and then there’s therapeutic exercise, where there’s
strengthening of muscles, stretching, things like that, to get a person physically fit
and reducing their pain. Excuse me. And at this time of August 21st, 2007, it
was your understanding that Dannette Griffith was undergoing physical therapy and conservative
care? Yes. Okay. And she she was telling you about NSAID as helping
her. What is that? That’s an NSAID. That refers to a nonsteroidal anti-inflammatory,
and that those medicines are like Advil or Aleve, ibuprofen, naproxen. Okay. And were those reportedly helping her? Let’s see. It says helped it does say the NSAID had helped her, so we
continued with it. We talked about potential risks, that she
didn’t have any side effects. Okay. Now, at that time, what sort of restrictions
did you give her, if any, and report to the workers’ compensation folks? As I said before, four hours I kept her at the four hours a day of sedentary
work. Okay. All right. So then we get to your next visit, would be
September 24th, 2007, correct? Correct. All right. And at that time, she she came in to ask you for a refill of her
Darvocet? Yes. All right. And did you give it to her? I may be missing a page. I don’t know. Number six. Do you have it? It looks like I have under “Assessment/Plan,” just a one. Yeah, I did not have this in this stack. Let’s see. I did refill her Darvocet, yes. Okay. Very good. Now, from the time previous on August 21st,
2007, up until September 24th, 2007, about a month of time, she told you that she had
been on a cruise, correct? It looks like she was on vacation, yes. Well, she told you that she was on a cruise
and had felt worse after coming back from the cruise. Do you see that in your records? I do. Okay. And she gained seven pounds on a cruise, so
that’s That’s what my note my note says that, which is pretty typical. Right. Okay. And she was back to physical therapy and had
been working four hours a day over the last month with Terminix, correct? Yes. Okay. Now, on physical examination at that time,
what what were your findings? Again, widespread pain in the neck, thoracic,
mid-back and lumbar, the low back. Now, let me ask you, when you when you, in your report, write she has diffuse
pain, what does that mean? Diffuse means widespread. All right. So you’ll you’ll actually Not just in one place, but throughout the
entire back. Okay. And you determine that by by palpating Correct. which is touching her? Pressing yeah, pressing on the muscles, and the person’s
sore all over, and that I refer to as diffuse. Okay. And they’ll tell you that they’re sore at
that point Correct. where you’re touching them? Correct. All right. And you state that this is consistent, again
with myofascial pain that she had in the past, correct? Yes. And her strength was a five out of five in
the major muscle groups in the upper and lower extremities. How do you test that? You ask the person to resist, and you test
individual motions of each limb independently to determine their grade of strength, and
a five means full, normal strength. It’s graded. Four is there’s some weakness, but they can
give you a little resistance. Three is they can move antigravity, but when
you give some type of resistance, they can’t give any type of support back. Two is slight movement but not fully antigravity. They can they can move their arm without gravity, but
against gravity, they can’t move it. And then one is just very trace movement where
you can just see it, but there’s no functional motion. And then zero is no movement at all. All right. And you found that she had full strength,
a five out of five in her both her both of her arms and both of her legs, correct? Correct. All right. And you state that her sensation is intact
to pin and touch in the upper and lower extremities. What does that test for? There’s various pathways within the spinal
cord that govern different types of sensation, from light touch to pin, to vibration sensation,
so there’s there’s different tests you can do to try
to ascertain if there’s some type of neurologic damage to a person. And what and those testings were normal, correct? Correct. Signifying that you didn’t find any neurologic
damage, correct? Correct. And at that time, September 24th, 2007, her
gait is normal? Correct. And gait, again, is the way she walks, correct? Yes. Okay. And she was able to forward flex, which is
moving bending over forward? Yes. She was able to bend at her waist and extend
backwards. And rotate? Uh-huh. And lateral bend, and you say “actually very
well today”? Correct. So she was was she at a normal range of movement at that
time? Yes. And you state that “She seems to have more
flexibility than when I saw her last,” and that she agreed with you that she has more
flexibility since she started the therapy, correct? Correct. So does it appear to you, as we’re moving
along here in time with her treatment, that she’s improving through the physical therapy? Yes. Okay. And what was your diagnosis at that time? Cervical, thoracic and lumbar pain consistent
with myofascial pain. Okay. And I see here you report that the symptoms
are somewhat increased, and you think that’s probably due to increased activity from her
vacation? Yes. All right. And you encouraged her to get back into physical
therapy again? Yes. All right. You saw her October the 23rd Yes. of 2007? And at that time, she reported to you that
she was treating with a Dr. Priewe? Priewe, yes. Priewe, excuse me. Uh-huh. Yep. And she reported to you that she was at that
time having a 65 to 70-percent improvement? Yes. Okay. And she told you that she was having what
sounded like epidural steroid injections, but you didn’t have any records of his, correct? Correct. And
she stated to you then that she was substantially
better from last Tuesday, and she’s already back to feeling close to normal? That’s what my note says. Okay. Now, she was telling you at that time that
she still didn’t feel like she could go up and down on ladders or return to her regular
job just yet. So it’s your understanding, from looking at
your notes, that her job would entail having to get up on a ladder? That’s Okay. And she was still undergoing physical therapy? Yes. And was she coming to you for refills on her
Robaxin and Darvocet? Yes. Okay. And on physical examination, you state that
she was less tender than before? Uh-huh. Yes? Yes. Yes, sir. Thank you. And she has some soreness in the cervical,
thoracic and lumbar paraspinals. What are paraspinals? It’s the muscles along the side of the spine. But they were less than last time, correct? Yes. And you were finding the same sort of strength
in the upper and lower extremities as before? Yes. And, again, her gait was normal, correct? Her excuse me? Gait. Gait was normal? Yes. Okay. Now, what was your diagnosis at that time? Again, was it cervical, thoracic and lumbar
pain, improving? That’s what my note says, yes. Okay. And, again, you recommended that she continue
on with physical therapy, correct? Yes. And you believe that the physical therapy
was improving her? I did. All right. Now, in your records from September 24th,
2007, she asked you again about injections, and what did you tell her at that point? On which date? September 24th, 2007. Okay. So we’re going back to the prior. Oh, I’m sorry. It’s out of order. Yep, yep, there’s that record. Okay. Sorry. So this is going back. Yep. That’s why I was messed up. Sorry, Doctor. So Well, at the September 24th, I didn’t recommend
injections because her pain was so widespread. Right. And so the injections are when you use these injections, going back
to September 24th, are they because they’re the pain is in a localized area? Correct, and you’re targeting a specific part
of the body with the injection. Right. And you did you explain to her why you didn’t believe
that there was not the need for epidural or trigger-point injections? I would have explained why I didn’t think
it was the medically correct thing to do at the time. Okay. And she wasn’t experiencing any radiculopathy
at the time, correct? If you go back to Right. It says that there’s not a clear radiculopathy. Yeah. And what is radiculopathy? That’s a sciatica type of pain, pain down
the arm or down the leg. Okay. Now, getting back to September 24th and I apologize to the jury and to you for
skipping here around, but September 24th, 2007, you increased her work to four to eight
hours, correct? Yes. All right. So at that time, you thought she was able
to get back to eight hours’ worth of work? Yes. And you said that you didn’t think she was
quite ready to climb ladders and do the inspection work, correct? Yes. So it would be more of going back to eight
hours, but sedentary-type work? No ladders. Yeah. And at that point in time, were you finding
her continuing to improve? Yes. September 24th? Uh-huh. Okay. And now we can get to October 23rd, 2007,
and
you treated with her that day, and she reported to you then that she was improving, correct? So we’re going back then? I mean, we already talked about October 23rd. We’re going to do that again? Well, let’s on October 23rd, she was reporting 65 to 70
percent improving Right. improvement, correct? Right. That was the yes. And she she continued to have the same sort of diffuse
pain? Correct. All right. And, essentially, you you found the same diagnosis as before and
refilled her prescriptions, and she was able to go back to work, correct? Yes. All right. Okay. So we now go to November the 20th, 2007? Yes. And that was your last treatment date for
her, I believe? It looks like it, yes. Okay. Now, she reported to you again, and she reported
to you that she had no radicular symptoms, correct? Correct. All right. And, again, that would be any sort of pain,
numbness or tingling going down the arms or the legs, correct? Yes. She didn’t report that? Correct. She reported to you that she did have a slight
neck ache from sleeping wrong the night before? That’s what my note says, yes. Okay. Well, she initially said it was from the last
night, and then she changed it to a week ago. Okay. So she was getting the time frame mixed up
some there, right? Correct. All right. And she reported to you that she has had some
thoracic and lumbar aches? Yes. But overall, she was getting better? Correct. And she had been continuing to treat with
physical therapy? Yes. And she had a few visits left of physical
therapy? Yes. You noted that she’s doing well? Yes. And that would have been from what she was
reporting to you? Yes. She stated to you she’s not back to her maximum
level of strength yet. That’s what she told you, correct? Correct. And she told you that she’s not trained to
do any home exercises at that time, correct? Yes. All right. And you noted that from her past notes, they
had been working on some home exercise programs, however, correct? The physical therapy notes said that the therapists
were working on home exercises. Okay. Now, when she’s seeing you in the June 8th,
2007, visit, she was taking what sort of medications? She had been taking the Darvocet and the methocarbamol. And what is methocarbamol? It’s a muscle relaxant. Okay. And you were talking to her about the need
for getting off of these medications and going only to Tylenol-type medications? Yes. All right. And she told you that she’s not back on ladders
yet, but otherwise, going to her job six hours a day? Yes. Okay. And what did you find on physical examination? It says that she had normal strength, once
again, in her arms and legs, full range of motion of her neck. Again, in the low back, she could bend forward,
extend backwards, rotate and bend to the side without any major pain, a little soreness
in the right neck with palpation in that area, normal sensation in her arms and legs to touch. Okay. And what was your diagnosis at that time? The same as before, myofascial pain syndrome. In the cervical, thoracic and lumbar spine Correct. which had improved to that point? Yes. And you actually write in your report that
“She really has made a tremendous recovery”? Yes. And at that time, she had slight aches and
only in the thoracic and lumbar region? Uh-huh. And that the cervical spine pain is related
to her recent sleeping incident that she noted to you, correct? Yes. Sleeping wrong? Uh-huh. And you didn’t believe that the cervical spine
pain that would be the neck? Uh-huh. was related to the accident of June the 6th,
2007, which you called the original issue? Correct. Okay. And that was because before, it was you said it was more of a muscle pain when
you saw her before, correct? Right. And you weren’t finding that muscle pain then,
right? It was a different kind of pain? It was a different type of pain. Right. And you recommended that she go on a home
exercise program? Yes. And per the therapy notes, you stated she’d
already been doing some home exercises, and they had been working with her on that. But she told you that they hadn’t done that
with her? Right. I recommended a couple of extra visits for
the home exercise program. Sorry, repeat your question. Well, she you state, per the notes, “She has already
been doing home exercise, and they had been working on that with her.” Yes. “She told me that they had not done so, which
is inconsistent with the notes,” correct? Yes. And she had a few visits left of physical
therapy to go through, correct? Yes. Now, you have number three of the Of my problem list? Yes, on your assessment and plan list. Yes. Tell me what what were your what were your findings in paragraph three
there? Well, I was making a note of some of the inconsistencies
with the stories that she was telling me that day from the neck situation. She was changing the time from it happened
the night before to a week ago. Visits the visits were very different, so I just
made a mention of that. And what were your findings at that time starting
from where you state, “At this point, there’s certainly a good sign that she’s made a full
recovery”? Object to the form. I’m not sure I understand the question. Well, if you look at paragraph number three Uh-huh. what’s your opinion as of November 20th, 2007,
as to her recovery from the June 6th, 2007, motor vehicle accident? Well, at that point, from my assessment, it
seemed that she had it says there’s a good sign that she had made
a full recovery at that point. Okay. And at that time, you you thought that she was done with the workers’
compensation rehabilitation process, correct? Correct. And at that time, you set her at what is called
MMI, correct? Yes. And what is MMI? It means maximum medical improvement. It means she was at the maximum level that
I thought my medical care could take her. Okay. And you found what were your opinions as far as the workup
there that you did with her up until that time? Again, I don’t know if I understand your question. Okay. In your report, you state, “Per her workup,
there was no acute disc herniation or major trauma associated with the accident.” Yes. Okay. And did you give her a permanent impairment
rating from this accident of June the 6th, 2007? Yes. I made that comment because the permanent
impairment rating specifically assesses the amount of damage that’s done to the body. So since there were no trauma there wasn’t a trauma found with her MRIs,
it was a zero percent permanent impairment rating. Okay. And you advised her that she could follow
up with you on a p.r.n.basis, which means on an as-needed basis, correct? Yes. Okay. And from your perspective at that time, you
thought that she was doing well? I did. And you your personal opinion, as far as your examinations
and your findings were that she would benefit from home exercise and over-the-counter medications? Yes. And she would be able to return to work with
no restrictions, correct? Yes. And so at that time, she would be able to
climb ladders? Yes. All right. And to your understanding, what the work was
that she was doing for Terminix, you were you were saying that she was able to return
to work and do her full duties at Terminix, correct? Yes. Okay. And she continued to have good strength? Uh-huh. Yes? Yes. Okay. And being five months since the accident,
she you found that she got back to a good condition
of being back to full activity, correct? Yes. And you it was your opinion that the motor vehicle
accident, per her account, was a reasonably low-impact accident and did not result in
any major new traumas; is that correct? Correct. You didn’t believe that she required any specialist’s
care at that time, correct? No other specialist’s care. That’s what I meant to say. Now, you had an addendum, that apparently
you got some therapy notes after the visit and you wrote the report. What were your findings from the therapy notes? The therapy notes had suggested there was
some inconsistencies between visits as far as her effort was concerned. Some days she was more fatigued than others. They noted improved muscle tone and were working
on stabilization exercises. The notes described progressive improvement
and tolerance in activity level. Stated she woke with pain in her neck, you
know, confirming that story that she had told me, which matched the week-ago date. Initially, she had said, you know, that it
was the day before, but then she updated to a week ago. So the physical therapy note confirmed that
week-ago date. And, again, that just confirmed that I didn’t
think that that was related to the work injury. There was something else causing the neck her neck pain. Okay. Thank you. So did you visit with her after that? I don’t see that there were any other visits. Okay. And you gave these reports to the workers’
compensation folks? Yes. All right. And is it your opinion that the plaintiff,
Dannette Griffith, returned to a baseline condition after having seen her? According to my notes, it looks like she did. Okay. All right. Thank you, Doctor. You’re welcome. Hi, Dr. Herman. My name is Matt Powell, and I represent Ms.
Griffith. How many years has it been since you’ve seen
Mrs. Griffith? Almost six years. Do you recall her? I really don’t. You don’t remember what she looks like? If I saw a picture, I probably would. Okay. This whole story sounds vaguely familiar,
but, I mean, in six years, I’ve seen thousands of people Sure. so it’s hard to know. Okay. And you are a physical medicine specialist? Correct. All right. And your participation in her care was through
the workers’ compensation system, correct? Yes. In other words, workers’ compensation says
to her, “Please go see Dr. Herman”? Yes. Okay. All right. What was your understanding of her work history
and work ethic before she was injured in this motor vehicle crash? I don’t know if I know her work ethic. I don’t see that I refer to that in my notes. Okay. All right. You don’t know whether she was a good worker? I don’t think I had that type of input, other
than what she would tell me. Okay. Do you know if she was working 40 hours a
week? I believe she was prior to. Okay. And she was going up and down ladders into
attics? Uh-huh. And crawling through basements? Right. And inspecting for termites, I think, right? Correct. That’s somewhat of a physical job? Yes. Carrying the ladders, going up and down? Yes. All right. Do you know if she had any preexisting conditions
that affected her health in any way before the motor vehicle crash? I mean, she had preexisting conditions. Like I initially said, she had had a car accident,
she had a cervical surgery and a fusion. She had injured her Achilles at one point,
so she had some and had surgery. So there she did have medical conditions that could
have could affect her physically. Okay. And for the sake of the jury, can you explain
to us what a cervical fusion is? Well, there are different types. There bones kind of stay together so they don’t
move, or there are instrumented fusions where they take plates, and they put them against
the bones and screw the different bones together so they won’t move, to make the neck more
stable. Okay. And I’m sure you’ve treated many patients
that have had some sort of cervical fusion? Uh-huh. How does that affect their range of motion? It limits their range of motion to some degree. Okay. And, Doctor, does it cause any extra stress
on the joints above and below the fusion? It does. Can you explain that to the jury? Why does that happen? Well, it’s the areas that are fused can’t move, so just
the physics of what’s involved with the motion in your body, the forces have to go somewhere. So rather than those areas moving, there’s
just increased forces that are put on the levels above and below. So those levels will wear out quicker than
they would if the bones were allowed to take take on the, you know, the normal shocks that
they would that they would receive. All right. Thank you. And, Doctor, would you agree that a person
such as Dannette Griffith, who has a fusion in their neck, is more easily injured if they’re
in a motor vehicle crash than someone who doesn’t have a fusion? Potentially, yes. Okay. And have you heard the old saying, “A chain
is only as strong as its weakest link”? Correct. Would that apply to Ms. Griffith’s neck in
this situation when she’s involved in a trauma? Well, the question is how weak are you you’re talking about. I don’t know if her neck was the weakest link
in her body, but certainly she had underlying factors that that make her unique in the way she would
respond to an injury or accident. Okay. All right. And when you did examinations of her, she
told you about the motor vehicle collision? Correct. And what was it, that the car was stuck on
a median? That’s what my note says. And did she explain to you how the driver
had rocked the car forward and backward trying to get off the median and couldn’t do it,
so he had to gun the car to get off of it? That’s what I remember she had said. Okay. And were you surprised if she said, “Look,
I didn’t feel any pain that day”? Is that a common experience from your patients? It can be. Sometimes people don’t feel pain immediately
after the accident, but several hours later, then start to get stiff and sore. Okay. And did that seem pretty consistent with the
way the next day she had a little problem? I mean, she did. She had some pain by the next day, and then
it worsened over a couple of days, which is not an uncommon story. Okay. And I think that you mentioned somewhere in
your testimony earlier that there was damage to her bumper? Uh-huh. Would you agree that there’s really no correlation
in the medical field between property damage and an injury to a patient? Object to form. I don’t know if that’s a true statement. I mean, certainly the forces that are impacted
on the vehicles do do affect how much damage can occur to the
body. So knowing how much damage is done to the
car is sort of a generalized way of assessing how much actual stress to the vehicle there
was. I mean, if someone’s hit very lightly, and
there’s not much damage, they’re probably going to suffer a light injury. But if the car was completely totalled, obviously
more serious injuries to the body will occur. BY Well, is it possible that that’s kind of
a misconception, because if the car crumbles, then the metal fatigues, and that takes away
the energy from the impact, and the occupant is actually a little safer? Object to form. What’s wrong with the form? You’re you’re arguing the issue of property damage
to him. You’re not asking him a question. Well, I’m asking you, would you agree that
cars are designed to absorb energy when they’re in a collision, and so if it’s totalled, sometimes
that’s done to sacrifice the car rather than the patient? Object to form. I would say that’s the way cars are designed,
but when it comes to injuries, low-impact injuries have much less injury associated
than high-impact car accidents. BY Okay. All right. Have you ever taken a class or do they teach
in medical school that you should look at the car rather than the patient? No, they don’t say that. But in the pathology courses that we’re taught,
they actually go through the physics of various situations, gunshot wounds, car accidents,
and do talk about the forensic pathology and whatnot that that is important when looking at how a person’s
injured. Did you look at the property-damage photographs
in this situation? I didn’t. Okay. Have you ever treated patients in the past
who are in a motor vehicle crash that had no property damage, and yet they had very
serious and debilitating injuries? Yes. Okay. So would you agree that there’s really not
a clean, clear correlation that the jury shouldn’t say just because there’s only damage to the
bumper, that she can’t be hurt? That’s that’s a true statement. Okay. All right. Because there’s somewhat of an innuendo going
on. Right. It’s just another way of assessing Object to form. the situation. The more information you have, the more, you
know, specific you can get to a person’s situation. Okay. There was also some comment about the fact
that she smoked a pack of cigarettes. Do you think that affects or has anything
to do with her neck and back pain? There’s correlation between smoking and neck
and back problems, yes. Okay. And if she’s smoked before the motor vehicle
crash and didn’t change it at all, would that do you think that has anything to do with
it? People that smoke heal slower. The nicotine itself actually can affect the
physical your body’s ability to heal itself, so people
tend to make slower recoveries. It’s definitely associated with treatment
issues along the way. Okay. So is smoking an additional risk factor that
she had before she got in the crash, that if she got in a crash, it would make it worse
for her? Correct. Okay. All right. And, Doctor, this is just sort of a general
summary question. All the care and treatment that you gave her,
was that, in your opinion, related directly to the motor vehicle crash? Yes. And was it reasonably, medically necessary
that she get this care and treatment? Yes. Okay. I think you mentioned that on your iPad, you
have some electronic records, which are kind of in a jumbled mess due to the way technology
changes and stuff. Does that 136 pages contain the bill? No. Would it contain emails between the workers’
compensation carrier and your office? Potentially, it could have that. I think my records mainly have the medical
portion, but sometimes there can be some communications with our staff and the workers’ compensation. Okay. I would have to look to see if there are those
types of records. All right. Could you look? I could. All right. We’ll take a little break and let you look
through it. Go off the record. Want to go off? Sure. Off the video record at 6:10. We are back on the video record at 6:14. Dr. Herman, thanks for looking through your
chart, and apparently there’s no bill in there. But there was, I guess, one email with Zurich
with Catherine Adams? Yes. Okay. Let me ask you this. Some of the work that Ms. Griffith missed,
do you think that was reasonably related to this motor vehicle crash? Yes. Okay. And your job as a workers’ comp doctor is
try to get her back to work as quickly as possible? It’s my job to get her better. Okay. When they ask you to do an assessment of her Uh-huh. do they ask you to do an assessment of her
whole life and her whole body or, really, just as a functional capacity of her ability
to work when you say there’s no permanent impairment? The permanent impairment rating is a specific
situation in Florida where there’s a there’s a guidebook that tells us doctors
how to actually rate a person. There are so it’s impairment doesn’t mean pain. It means physical damage to the body. So when we’re assessing that permanent impairment,
it is of the whole person. Okay. Well, let’s say a person was hurt on the job
and just has a scar. Uh-huh. Would that be a permanent impairment? It would. Okay. Is there a rating in our guidebook for that? I don’t think so, for just a scar. It depends on how, probably, much of the body
and disfiguring it would be. Okay. It wouldn’t affect her ability to work? Corr- disability is a whole separate disability is function. Impairment is just damage to the body. I see. Okay. All right. Doctor, do you have an opinion within a reasonable
degree of medical probability as to whether or not Dannette Griffith’s preexisting conditions
were aggravated or made worse by the motor vehicle crash? At the time I was treating her, I don’t believe
I was treating preexisting conditions. I was treating myofascial pain that was secondary
to the accident. Okay. All right. So let’s talk about myofascial pain. If I help me understand this. It’s the muscles are having a problem; is that
right? Well, myofascial refers to the muscles and
the connective tissues. Okay. And so when the connective tissue and the
muscles are spasming, how I wouldn’t use the term “spasming. Okay. What word do you like to use? Injured. Okay. When you’ve got a muscle that’s injured, what’s
the physical manifestation that you’re able to palpate when you touch them? I mean, you you rely on the person’s ability to tell you
how much pain they’re in. Okay. But do you palpate people’s spine? Uh-huh, yes, and you can feel knots in the
muscle. You can feel actual tight portions of the
muscle, and then the person tells you if it hurts or not. Okay. I mean, let me ask you this. When you do a palpation examination of a patient,
do you think that’s a subjective examination from your perspective or an objective examination? The palpation itself is objective. You feel the muscle, you feel how tight it
is, you feel if there’s knots in it. But then you also rely on the subjective amount
of pain that a person is in, because you can have knots that are not painful, or you can
have painful knots. Sure. It certainly depends on how you’re going to
treat it. So when you feel a knot in someone’s back,
what do you you just call that a knot in the muscle? It’s called a nodule. A nodule. Okay. Is that a voluntary-type thing that the patient
can do consciously, or is that an involuntary type of manifestation of the muscle? It’s involuntary. Okay. So that’s an objective finding? Correct. Okay. And if they say it hurts or doesn’t hurt,
that’s purely subjective? Correct. Okay. And, Doctor, what happens when a muscle is
in that knot situation for a prolonged period of time? What happens in well, I mean, people can have pain related
to that. And there’s something called a trigger point,
where these knots, when you push on them, actually trigger on and bring on the symptoms
that the person is having. So these knots can actually cause pain, or
people can have knots and have no pain at all, but tight muscles can restrict range
of motion, worsen function. Okay. And how about on the cellular level? How does that affect the cells of the muscle
that are in this knot position? Does it restrict the flow of blood and nutrients,
and does it inhibit the discharge of waste? Well, I mean, that’s certainly an area of
research, to try to sort out exactly what is going on in these muscles, and, unfortunately,
there’s not some type of medication or something specific for myofascial pain that does resolve
it, or there’s not a blood test for myofascial pain. There’s certainly things at cellular levels. If you take biopsies of tissues, there’s inflammatory
cells and things of that nature, but there’s prolonged tight muscles aren’t necessarily,
unfortunately, something that we have a test for. The classic example is fibromyalgia, where
a person has sore muscles in their entire body, and there’s not a blood test. And, again, you can’t see it, but people,
nonetheless, have sore muscles and pain. And have you made the fibromyalgia diagnosis
in your practice? Sure. Even though there’s really no objective tests? Well, there there are objective physical exam tests, but
there’s not a blood test or, you know, biopsy or something to prove it. Okay. And, I guess, if you do the physical test,
and you find the 16 trigger points, then you diagnose it as fibromyalgia? Tender points. There’s a different term for that. I’m sorry. That’s okay. Okay. Right. But that’s how you make the diagnosis? Sure. That’s that’s the rheumatologic description of what
a what establishes a diagnosis for fibromyalgia. Okay. And you’re not suggesting that Ms. Griffith
has fibromyalgia? I did not make that diagnosis. Okay. Myofascial pain is more of a regional type
of description for that type of muscle pain, where fibromyalgia is where a person has that
over their entire body, and then there’s other associated medical issues that can go with
that. Okay. The fact that someone doesn’t have a ruptured
or a frank herniated disc, that doesn’t mean they don’t have a permanent injury, does it? Correct. Okay. And just because someone’s upper and lower
muscle strength is a five over five doesn’t mean they don’t have a permanent injury, does
it? No. Okay. And just because their sensation is intact
in their arms and legs doesn’t mean they don’t have a permanent injury? Correct. Okay. And they can have a normal range of motion
and still have a permanent injury? Sure. Okay. And the fact that she went on a cruise and
was a little more active, that seemed to kind of help her a little bit? Object to the form. She said she was feeling worse afterwards,
but Okay. I don’t know I think you said she – as far as therapeutic value increased range of motion? Cause and effect, I don’t know if I would
say it was the cruise. You know, it would be hard to know exactly
cause and effect there. Okay. All right. And I think at every visit that you saw her,
you continued her medication, correct? Yes. And you continued her physical therapy, correct? Yes. Even on the very last one? Yes. Okay. And some days when she came in and saw you,
she said, “Hey, Doctor, I’m doing better,” right? Yes. Okay. Each time she came in and saw me. All right. And you don’t disagree with Dr. Priewe’s treatment
when he gave her the injections to her, do you? I would disagree probably with that treatment,
yes. Have you seen his records? I do have some of his records on on my notes, yes. Did you call him up on the phone and say,
“Hey, I think what you’re doing is like below the standard of care, I think you shouldn’t
do that”? It’s not that’s a misrepresentation of my opinion. Oh, tell me what it is. There is certainly as a physician, there are many ways to treat
individual conditions. We don’t always agree. It doesn’t mean one person’s necessarily right
and one person is wrong. And, unfortunately, when you have two different two doctors treating a person in two different
ways, and a person’s getting better, it’s impossible to say who’s the doctor who’s giving
the care that’s improving the person. She was having these shots. Are the shots getting her better, or is it
the physical therapy, is it the medicines, is it time and healing? It was not my opinion that the injuries to
her body warranted those type of interventions. They may have helped her. They may have not helped the situation. They weren’t clearly weren’t hurting her. So there wasn’t a reason for me to tell him
not to do what he’s doing. I know Dr. Priewe. He’s certainly a competent physician, and
it was of his opinion that that was the right medical decision, and it’s certainly okay
for doctors to disagree with one another. It’s not my position to tell him how to practice,
as it’s not his to tell me how to practice. We can differ in our opinions. Okay. Did Ms. Griffith seem to think that Dr. Priewe’s
therapies were beneficial? Yes. Okay. Now, when you indicated that Ms. Griffith
made a tremendous recovery, that doesn’t mean that she was perfectly healed, does it? No. She still could have a permanent injury? Object to form. At that time, I believe she did not have a
permanent injury, that she was back to baseline level of function. Okay. Let me ask you this, Doctor. Have you ever had a patient that you treated
over a long period of time, and they got to what you thought was pretty good, and then
suddenly, they started to decline and go into, you know, a real serious condition? I have seen that happen, yes. Okay. And you haven’t seen Ms. Griffith for six
years, so you don’t know what her condition is like today? Correct. Okay. You’re not offering any opinions today as
to how she is, are you? I do not know how she is today. Okay. One of the things that I think came up is,
you know, the inconsistencies in her story that had to do with I think she told you her neck bothered her,
and she said it was from sleeping? Uh-huh. But the inconsistency was whether it was a
night ago or a week ago; is that right? Correct. And the other inconsistency was whether she
was taught home exercises or whether she wasn’t taught home exercises? Correct. Are you here today, I mean, telling the jury
that you think that she was faking it or malingering in any way? Not in any way. Okay. Thank you, Doctor. That’s all the questions I have. I appreciate your help. A quick follow-up. Uh-huh. Doctor, you’re not saying that Dannette Griffith
was not injured from the accident of June the 6th of 2007, correct? Object to form. I believe I’ve described the injuries that
she did suffer from the accident. And the injuries are myofascial pains, which
went back to their baseline conditions before the accident, correct? That’s what I believe occurred, yes. With no permanent injury from the accident,
correct? The last I saw her, I did not believe so. All right. Thank you, sir. That’s it. Thank you, Doctor. Off the video record at 6:26

5 comments

  1. The attorney for the defendant (patient) did very well to identify objective findings and confirm with the doctor that the patient was not malingering or in some way attempting to fake their condition. The doctor was clear, concise, and not coming off outside of layperson capacity for new information. I am a doctor that has been in that seat.

  2. Let me rant for awhile about on the job injuries. The states has totally shut the injured workers out of being able to seek a judge and a jury in Ohio when it pertains to injured workers. If you think I'm wrong please get with me!
    I was injured back 1979, since my injury I have endured nineteen horrible spinal surgeries. My x-rays looks like a titanium junkyard. I now spend a great deal of my time in a power chair. The BWC has been replacing my power chairs and lifts over the years, but it usually takes the entire process over a year when something breaks and I have to do without the wheels under me to get me to my doctors. I have had even more surgery ordered for several years that has been refused that my surgeons have ordered. I recently filed for permanent disability but it was rejected as well. I hear about many case where people are treated like garbage, but I have heard of very few cases that was as extensive as mine that was rejected for disability? But I'm still looking, maybe their is a case out there somewhere that's was rejected that was worse than mine that I have haven't seen? I was injured many years ago and pride wouldn't allow me file because I was able to survive without it, but today I certainly wish I had filed years ago, today there is no question that a injured worker has to be three days dead before they can qualify for BWC disability. No one is getting authorized for disability from what I'm hearing. If I don't qualify who does? How extensive does a injured workers medical condition have to be for them to authorize it if nineteen surgeries isn't enough? My neck is fuses in two places and my lumbar is fuses from L5-S1 all the way up to T12. If it were up to me I would shut the doors on the BWC and close them down until things were redone with a little common sense. It has become a organization that is like a snake eating it's own tail due to all the costly bureaucratic red tape. Trust me, I've seen it up close and personal for close to forty years. They've become pretty much useless today, specially for the badly injured workers that really needs the help. However, I would absolutely 100% open the doors wide to the law suits against the employers again. It certainly wouldn't hurt to open up the law suits against the states as well. That's the only thing people have is the judicial system and a jury to make things right, but the injured workers have been shut totally shut out of that process and the state and the employers can do whatever they want to the injured workers without ramifications. It's just not right folks, the injured workers as well as others ought to be rebelling like crazy right now, but it seems they never recognize the problem until it directly affects them. I've become totally ashamed of my county as well as my state of Ohio in my older years.

  3. I had a pelvic crush @ my job 3 months ago and im still suffering from profuse swelling in my abdominal area from my injury and the doctor is trying to send me back with no restrictions despite wat my therapist has told him in the report about the hematoma in my abdomen. When i walked in his office, the dr didnt ask how i was doing or anythng, the first thing he said was,"WE GOTTA GET YOU BACK TO WORK!" My attorney had me rake pictures of the obvious unnatural swelling and send it to him. The doctor looked @ my stomach and said,"Looks like regular abdominal belly fat although it is protruding unnaturally and as hard as a basketball. What should i be expecting my lawyer to be doing?

  4. We hope to stand up to all Injured workers in U.S, we need partition to embrace workers and less stress for court. This has to stop, and if No Worker's nobody to produce to pay Taxes. #StandUpforWorkers

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