MY APPEAL TO THE STATE COURT - WORKERS COMPENSATION BOARD

 

IN THE COURT OF APPEALS

OF

THE STATE OF OREGON

EDWARD M. JOHNSTON )


) Case No. ___________________

plaintiff
) Appeal of Workers Compensation Board


) Decision in re:


) Case No.: 05-08315


) Claim No. C6404749910

vs.
) ORS 656.298 Right to Appeal


) 183.480; 183.284, 183.490

WORKERS COMPENSATION )and OAR

OF THE STATE OF OREGON , )
436-0170(1) and (6) and

DEPARTMENT OF HUMAN SERVICES ) 436-001-0225

And
)and 438-012-0037 through 438-012-0061

JOHN SCHILTZ, DIRECTOR of the )

Workers Compensation Board )

defendants
)

I, Edward M. Johnston, acting for myself, hereby file
this Appeal of the Workers Compensation Board decision
in my case against the above named defendants.

Following is my Statement of the Facts of the Appeal.
All documents and papers mentioned below are in the
record.

The defendant agency is an agency of the state of
Oregon and is present within Oregon and subject to the
jurisdiction of this court and the defendant
individual is the director of that agency and is
present within Oregon and subject to the jurisdiction
of this court. ORS 656.298

ORS 30.275 has been met by extensive, ongoing, and
detailed filings, letters and other communications
with WCB and actual notice thereby more than given
under 30.275(6).

In addition, Plaintiff requests the court to act under
the following:

ORS 183.480(1), because this is an appeal from a final
order, issued by the Workers Compensation Board when
it reviewed the decision and order of ALJ Jenny Ogawa
after several years of exhaustive – and exhausting –
contesting of a series of maneuvers by Liberty NW
insurer and orders by the Workers Compensation Board.

183.482(5) I am filing this, in what must be a
contested case, as I and the Workers Compensation
Division (and Liberty Northwest, the insurer) have
been in contest over this, with a long string of paper
work to prove it. I am an “adversely affected or
aggrieved” party here.

183.482(9) I request under this section that the
court reverse the final order in this case, issued by
the Workers Compensation Board upholding the decision
of ALJ Jenny Ogawa, and ,

183.490, I request the court to order the WCB board to
provide me the remedies I request, or other as the
court may deem just. I specifically request the court
do not remand this back – again – to those who have
already treated me unfairly and I believe illegally.
If this keeps going on, I will die before I receive
justice, or fair compensation.

STATEMENT OF FACTS

1. I was first injured on 11/4/89 at
the Pip-Tide restaurant, (now under a different name)
address 836 SW Bay Blvd , Newport . I was hit with a
pipe on and around the back of the neck. The injury
is referenced in the Notice of Claim Acceptance dated
Dec. 13, 1989.

2. The injury was initially described
as “acute strain” and “non disabling” by the insurer,
Liberty Northwest. See the Notice of Claim Acceptance
for 11/4/89 injury issued by Liberty Northwest
Insurance, dated Dec. 13, 1989 ,

3. I was not then medically
stationary. See Supplemental Med Report 828 by Dr.
Gilbert Lee describing me as not medically stationary,
dated 12/26/89 .

4. The pain from the injury had grown
wider over the next few months. See Note by Dr. Lee
stating “the pain is now in the back of his head, neck
and upper back.” It was dated 4/12/90

5. I got into another fight at the
Pip Tide, 4/27/90 , mentioned in the Physical Therapy
Authorization” by Dr. Lee dated 5/8/90 . There was no
significant medical consequence in the immediate or
near-term aftermath.

6. Liberty accepted the 11/4/89
injury as disabling. See Insurer’s Report dated
5-31-1990 .

7. Dr. Gilbert would not release me
for work, and could not give a date when I might be
medically stationary. See Supplemental Med Report 828
by Dr. Gilbert Lee dtd 6/6/90 .

8. I was found to have suffered a
closed head injury, moderate cervical strain, upper
cervical area and to be unable to pursue employment as
a doorman/bouncer any more. The chief cause of my
injuries and pain were the Nov. 4, 1989 injury. My
condition was still not stable. There was a concern at
this point for a “neurological base” to some of my
pains. Medical Arbiters Report, by Drs. Thad Stanford,
Orthopedic Surgeon and Berle Barth, Neurologist, BBV
Medical Report, dtd July 9, 1990 .

9. I was allowed to go to work, but
under restrictions (only sedentary work and light
work, lifting 20 pounds maximum, carrying ten) and the
restrictions were judged permanent. See Work Release
by Dr. Bernstein dtd 9/24/90

10. My main physician at the time, Dr.
Lee, concurred with BBV report, see note from him,
7/23/90

11. I was found to have a very small
central disc herniation at the C4-5 level; left
paracentral disc herniation at the C5-6 level and a
narrow AP diameter of the spinal canal. Portland
Magnetic Imaging Lab, Dr. John English, MRI
Interpretation: Dtd 11/28/90

12. Bernstein sent me to Dr. John Serbu,
who found me “neurologically negative,” denied any
herniated disk, although admitting there is a “slight
central bulge.” He concluded “I believe this man’s
best treatment would be to return back to heavy work
which he did previously.” Letter of Dr. John Serbu
dated 1/7/91 .

13. Dr. Bernstein disagreed with
conclusions regarding work, saying I could do just
“lighter, sedentary physical work … less than 20
pounds on a regular basis.” Ltr from Dr. Bernstein
1/17/91 .

14. I was found to have a herniated disc
at C5-6, on the left, capable of modified, but not
regular work, and not medically stationary. See
“Impressions” section of letter of Western Medical
Consultants, Dr Thomas Gritzka, Orthopedist, and R.
Glenn Snodgrass, neurologist, dtd 1/17/91.

15. Liberty NW sought to deny or diminish
my injuries, See letter to Dr. Bernstein dtd 1/25/91 ,
signed by Liberty Claims Examiner Hepp,

16. Dr. Bernstein repeated his agreement
with Western Medical findings, and his disagreeing
with Serbu re: my ability to do regular work. Letter
Feb. 4, 1991 by Dr. Bernstein.

17. Bernstein concluded in a somewhat
qualified and uncertain manner that I was medically
stationary but needed physical therapy 3x per week.
Letter from Dr. Bernstein dtd 2/11/91 .

18. Dr. Bernstein was indicated as having
been worn down by treatment by Liberty NW. Text of one
document states “On 2/11/91, Dr. Bernstein was
apparently worn down by Liberty Northwest’s
harrassment and responded to a phone call from the
claims examiner by saying: ‘I believe that he is
currently medically stationary’, but that he also
believed that Johnston will need three times a week
physical therapy for the next three months in order to
maintain that. The text says the “coerced and
qualified statement does not even come close to a
medically stationary finding, despite the use of the
‘magic’ words.” Document with text “Request for
Reconsideration, Page 2” at the top, the origin of
which is unclear, but probably from an attorney for
me. The date is not given. It is attached to a Request
for Reconsideration sheet. See its 3rd paragraph.

19. Workers Compensation in a
Determination Order stated that “The Department orders
you entitled to compensation for temporary disability,
less time worked, … The insurer is ordered to pay you
$3,200.” Determination Order dated April 9, 1991 .

20. Dr. Bernstein found I had not just
cervical strain as alleged by Liberty but also a disk
herniation in the cervical spine. Letter of Dr.
Bernstein 4/10/91 .

21. I was found to be in severe pain and
need of pain treatment program. See OREGON PAIN CENTER
(OPC) initial review of my case and recommendations in
OPC case assessment document dated May 23, 1991 .

22. OPC found that my permanent
disability award was appropriate, and I will probably
be limited to work in the medium category. Its
Findings included “Mild herniated disc C5-6 left by
MRI. OPC medical review dated May 23-24.

23. OPC found me “limited to work in the
medium category.” Oregon Pain Center medical review
dated May 29, 1991 .

24. Workers Compensation Board reduced
disability to none. See ORDER ON RECONSIDERATION. WCB
order is dated May 7, 1992 .

25. I was found to have an “Unscheduled
permanent partial disability of 25.6 degrees for 8
percent equal to $2,500 for neck.” Time loss
compensation paid is given as $7,958; medical
compensation paid $22,139. 10/25/91 Notice of
Closure, Workers Comp. Div.

26. Workers Comp board gave me 15% for
unscheduled neck and left shoulder permanent partial
disability and allocated monies. The attorney got a
share; Liberty got an offset; all other relief I had
requested was denied. Misbehavior by Workers
Compensation Div. was noted in this document by the
Board finding itself, where it states “The award was
reduced to zero by Order on Reconsideration dated May
7, 1992 on a finding of no impairment by Dr. Stanford
the appointed medical arbiter. “Dr. Stanford, should
not have been appointed medical arbiter since he was
previously involved with this case as an agent of a
party” That party was the insurance company, for which
Dr. Stanford acted as consultant. (page 3) See
Referee D. W. Daughtry OPINION AND ORDER: dated August
26, 1992 . (Underline added.)

27. ORDER ON REVIEW by W/C Board. WC
Board agreed with my doctors finding that “claimant
does have permanent impairment.”

28. Board found it would “rely on the
impairment values concurred in by claimants attending
physician (Dr. Bernstein) as found in Dr. Holmes
Discharge Status Report.” This Discharge report is not
in the record but this reference to it is, see report
dated June 18, 1993 , David Lipton and Donald Hooton.

29. I went to the Pacific Communities
Hospital Emergency Room (PCHER) several times
thereafter for pain and related symptoms. See PCH E/R
note: cervical disk disease, Feb 5, (1994, sensitive
at C4, 5 and 6); also PCH ER note: black-out while
driving, and pain and tingling 11/19/94; PCH E/R note:
speaks of history of closed head injury, 5/16/95; PCH
E/R note “Patient has a pattern of left upper
extremity weakness that does not clearly correspond to
any discreet myotomal level. It seemingly would
involve at least C5, C6 and C7.” 6/9/95

30. Brain image found brain normal. PCH
Diagnostic Imaging Report Brain MRI 2/22/96 .

31. I was found to have some degenerative
change at C4-5 and C5-6 consisting primarily of
intervertebral disc narrowing and anterior bulging.
There is some suggestion of spasm.” PCH Diagnostic
Imaging Report 9/22/97 .

32. Dr. Hacker found I likely have “a
painful cervical spondylosis disorder,” (emphasis
added) and recommended a repeat MRI scan “to determine
whether there have been late changes with significant
root or spinal cord entrapment.” Robert Hacker,
Neurosurgeon ltr to Dr Ceplus Allin. Dated 11/12/98
(Underline added.)

33. Evidence was lost in this case, as
noted in Medical report, which also found continued
degeneration in C4-5 and C5-6, stating ”A review of
outside films confirms degenerative changes, most
pronounced at the C4-5 and C5-6 level. There is
nothing to suggest an obvious deformity or
subluxation. The patient has an MRI report that is
several years old, documenting spondylotic change at
C4-5 and C5-6. These studies apparently have been
lost.” It also stated that “... symptoms potentially
related to spinal cord and nerve root entrapment,
without clear cut obvious neurological deficit. Rule
out spondylotic radiculopathy or myelopathy.” Document
was Neurosurgical History and Physical, by Dr. Hacker,
dtd Nov. 12, 1997

34. I was found to have 1) Abnormality at
C5-6 on the left that was larger than expected from
plain-film findings and probably a combination of
cervical spondylosis, foraminal narrowing, and disc
herniation. 2) Smaller midline left abnormality at
C4-5, probably representing cervical spondylosis
rather than disc herniation.” MR Imaging Associates,
12/12/97 ltr from Dr Hacker, unsigned, from “RCHjh”

35. I had an MRI on 12/22/97 which began
process leading to my First Operation. It stated “The
MRI scan is reviewed, documenting a large osteophyhtic
deformity with perhaps associated disc protrusion at
the left C5-6 level compressing the nerve root and
spinal cord on the left side. At the C4-5 level there
is a small lesion which appears to be an asymptomatic
cervical disc protrusion. … Symptomatic cervical
spondylosis with disc herniation, C4-5 left.” The
recommendation was to “Proceed with anterior cervical
microdiscectomy with fusion, allograft and internal
fixation.” MRI Brief note 12/22/97

36. I filed a Notice of Claim for
AGGRAVATION of my conditions, signed by me 1/16/98 ,
and signed by Dr Hacker 1-11-98 .

37. Dr. Vincent Allin was, or felt he
was, harassed by Liberty NW. See letter note on
Internal Medicine Associates letterhead, obviously a
cover letter, dtd Feb 9, 1998 . Only text is: “Ms.
Jones, 384 pages. Go to hell. Cephus Daniel Vincent
Allin M.D.” This is evidence of further harassment of
doctors. (Pamela Jones is the recipient, at Liberty
NW.) (Emphasis added.)

38. Dr. Hacker also feels that
communications from insurer are unhelpful. Hacker
replies to a request for information from Liberty NW
by numbered paragraphs, presumably reflecting the
questions Liberty had asked. 1. includes: “my
examination is different now in the sense that his MRI
scan documents a large deformity with disc protrusion
at the left C5-6 level with compression of the nerve
root and spinal cord. Also, the patient has evidence
of diminished biceps strength on his left side.” 2.
“Yes. Be so advised.” 3. “Is this a question?” 4. To
characterize the nature of this accident as 'neck
strain,' in my opinion, is probably incorrect. On the
other hand, I expect that cervical spine injury with
the episode described has resulted in an osteophyte
formation and disc hernia. ... my MRI findings, as
well as Dr. Holmes' report are continued within your
medical record file.” 6. “The patient's present
condition is due to a cervical disc herniation, as
mentioned above. It is not related to a cervical
strain. Cervical sponsylosis and foraminal narrowing
may indeed be superimposed upon this condition.” See
ltr to Liberty , dated Feb 21, 1998 from Dr Hacker.
The letter from Liberty it responds to is not in the
record but is evidently dated 2/6/98 . (Emphasis
added.)

39. Further exam by MRI confirms certain
specific conditions. “Outside films confirm
degenerative changes at C4-5 and C5-6. My MRI was
found to show a “large osteophyhtic deformity with
disk protrusion at the left C5-6 level compressing the
nerve root and spinal cord. At the C4-5 level there is
a small lesion which appears to be asymptomatic.”
Plan: proceed with (operation). Physician Robert
Hacker: Document entitled “Current Complaint,” dtd
03/03/98 , McKenzie-Willamette Hospital letterhead.

40. FIRST OPERATION: 03/03/98 , it was at
McKenzie-Willamette Hospital , by Physician Robert
Hacker: The document entitled “Name of Operation,” dtd
03/03/98 discussed reasons for the operation. It
confirmed diagnosis of “cervical spondylosis with
cervical disk hernia” And it gave a “Post-operative
diagnosis: cervical disk hernia, C5-6, left. Findings:
There was osteophyte formation at the C5-6 level, but
this was broad based without focal foraminal
encroachment. At the C5-6 level, there was disruption
of the annulus to the left of the midline with disc
material extruding into the epidural space. This soft
material resulted in compression of the origin of the
C6 nerve root.”

41. The operation helped for a while: See
Dr. Hacker note, 3/31/98 , when I told doctor the
“pressure is gone,”

42. But a month later, I was hurting
again. See 4/19/98 Pacific Communities Hospital E/R
Note: neck pain.

43. I received a rejection of my request
for recognition of aggravation of conditions, from
Liberty . LTR from Liberty to me: reject claim for
aggravation April 30, 1998 .

44. Liberty denied me medical benefits.
See April 30, Insurer's Report states “Liberty NW is
denying medical benefits only.”

45. Doctor Hacker, my neurosurgeon,
confirmed in a note dated 7/27/98,“the fact that the
patient found the onset of his symptoms with the
injury described would point to the injury as being
the major contributing cause of his disk herniation
and need for surgical treatment.” (Emphasis added.)

46. Liberty sought to still deny
medical coverage for me, See, OWN MOTION ORDER
REFERRING FOR CONSOLIDATED HEARING ( Liberty still
referring to “acute neck strain”), dated July 7, 1998
. Liberty had denied compensation for “current
cervical disc herniation C5-6 left condition. … (and)
opposes reopening on the following grounds: (1) the
insurer is not responsible for claimants current
condition, (2) surgery of hospitalization is not
reasonable and necessary for the compensable injury;
and (3) claimant was not in the work force at the time
of disability.”

47. A letter from my then attorney
Strooband to Hacker, asked Hacker to confirm views of
Drs. Gritzka and Snodgrass that the herniated disk at
C5-6 was due to the 11/4/89 injury. Hacker agreed, and
mentioned the MRI of 11/28/90 .

48. Workers compensation finally agreed
with me and the weight of medical review. Answer to
question of, is the neck injury compensable? IT is
therefore ordered that the insurer's denial, dated
April 30, 1998 , is set aside. The insurer shall
accept and process claimant's claim...” OPINION AND
ORDER; Dec 21, 1998 .

49. Liberty accepted the C-56 condition,
but still not C4-5. See NOTICE OF ACCEPTANCE from
Liberty dtd 12/29/98 “C5-6 left sided disk protrusion”
is an accepted condition. Classified as Disabling.

50. Liberty did not appeal the findings.
See OWN MOTION ORDER: Feb 10, 1999 . authorizing
reopening of my 1989 injury claim to provide temporary
disability compensation beginning March 8, 1998 ...”

51. Board closed Own Motion Claim. See
NOTICE OF CLOSURE BOARDS OWN MOTION CLAIM. Dtd 3/11/99
, awarded me time loss compensation $8,473, for period
3/8/98 through 2/3/99 . Nothing, however, was stated
regarding payments in the future for what would likely
be a permanent disability.

52. Despite the surgery, my neck
continued to be a serious problem. See Dr Sayre
medical visit note: 5/24/99 “something pop in neck;
compression feeling.” Diagnosis strain & spasm.

53. My neck situation at the time was
worse than that. See May, 1999 Diagnostic Imaging Rpt:
“some narrowing of the C4-5 and C6-7 discs,
potentially secondary to the decreased mobility at
C5-6…” Fusion (operation) seems stable.

54. I went to E/R again on May 30, 1999 ,
with pain in neck: E/R note. (I had been rear ended in
an accident, but it seemed to have little lasting
effect.) See Diagnostic Imaging Rpt 7/25/99 – no
change from prior exam.

55. However, by October there were
further degenerative changes. See 10/11/99 Hacker
note; some degenerative change at C4-5 and C6-7.

56. I remained in frequent pain, but as
yet it had not worsened into neurological problems.
See 11/9/99 , note by Dr Fraser, “neck pain, chronic.
No evidence of any neurologic component at this
point.”

57. SECOND INJURY. On July 28, 2001 I
slipped and fell on wet floor Saturday night while
working at GEORGIES restaurant. See Initial Notice of
Acceptance, from Liberty: 11/6/2001. for acute
cervical and lumbar strains. Non-disabling. And
letter to OSHAand OSHA report. Medical report
thereafter found I had severe low back pain and some
tingling in knees … reflexes at knees are
unobtainable” It urged that I don’t lift more than15
pounds.

58. I received a medical exam on
10/10/2001 by Health Solutions Independent Med Exam.
by Richard Arbeene, He adhered to the Liberty theory I
had cervical strain. He wrote he “did not identify any
work related condition objectively limiting … his
regular work. … I would expect the cervical strains to
resolve within a period of six to eight weeks. .. No
permanent impairment as a result of the 07/2/01
reported work injury.” He also noted that he performed
the medical exam without having taken or seen any
X-Ray or MRI images. ///

59. My condition continued to get worse.
There was now identifiable compression on my spinal
chord. See Diagnostic Imaging Report 10/23/01 Dr Gary
Theuson. “Broad based disc protrusion C4-5 which is
slightly biased to the left and compresses the cord
along its ventral surface.”

60. Arbeene stuck with the “strain”
theory. See 10/30/2001 Health Solutions Independent
Med Exam. By Richard Arbeene, “cervical and lumbar
strains.”

61. Liberty went with the Arbeene
diagnosis, despite the fact of past surgery, the lack
of basis for Arbene’s report, and the weight of
contrary medical opinion. See Initial Notice of
Acceptance, from Liberty : 11/6/2001 . for acute
cervical and lumbar strains. Non-disabling.

62. Dr. Theuson disagreed with that. See
his replies on the letter to Theuson from Liberty .
Letter from Liberty is dated Oct 10, 2001 . Date of
Theuson response not certain. Theuson checked box: I
do not concur, and wrote. “I agree with findings but
also agree that final determination [text unclear] on
comparison with prior condition. I have referred
patient to original surgeon who did his cervical
fusion for re eval with current MRx.”

63. I had another MRI which made it clear
my neck was in fact getting worse. See 11/26/01 Hacker
ltr: “Current Complaint.” “A review of his MRI scan
confirms spinal cord compression and a disc herniation
at the C4-5 level … Cervical myelopathy due to disc
hernia, C4-5

64. Liberty then denied anything but
strain. See faxed memo from Liberty to Liberty. “We
only accepted an acute cervical and lumbar strain.
These are not surgical conditions and therefore we are
not authorizing the surgery for a cervical disc.”
12/7/2001

65. I had another MRI. It showed that
things were getting worse now in my spine; that is,
the deterioration was spreading. See 2/27/02 MRI of
lumbar spine, notes by Dr. Greg Bear. “There is mild
disc space narrowing from L3-4 through L5-S1; these
discs also demonstrate decreased signal intensity
consistent with desiccation. There is somewhat
prominent lumbosacral lordisis….. L3-4 mild
broad-based posterior disc bulge, resulting in mild
stenosis of the spinal canal. There is mild
encroachment on both neural foramina, but no evident
impingement upon the existing nerve roots. L4-5. there
is a broad-based posterior disc bulge/osteocyte,
resulting in minimal stenosis of the spinal canal. The
disc bulge is slightly more pronounced
posterolaterally to the right. There are mild
hypertropic changes in the facets. These factors
combine to result in encroachment upon the right
neural foramen. There is mild partial effacement of
the perineural fat planes associated with the existing
portion of the right L4 nerve root.

66. That led to my SECOND OPERATION See
the 3/4/2002 STAT REPORT: NAME OF OPERATION: It
described this operation: Anterior cervical
microdiskectomy with canal decompression with
instrumented interbody fusion with allograft C4-5,
with repeat exposure and explanation of previous
fixation plates C5-6. PREOPERATIVE DIAGNOSIS:
transition segment disease with cervical spondylotic
myelopathy with disk hernia C4-5. POSTOPERATIVE
DISAGNOSIS (same). FINDINGS: “Spinal cord compression
was obvious at the C4-5 level due to disc protrusion,
as well as bony osteophyte formation. At the
conclusion the canal was thoroughly decompressed with
satisfactorily positioned 8 mm allograft in place at
C4-5 interspace. The previous Orion plate had been
removed at C4-5 and a new plate positioned at C4-5.”
It was signed by Dr. Robert Hacker.

67. The disc hernia at C4-5 was confirmed
in the 3/5/2002 DISCHARGE REPORT. This was a condition
that Liberty refused to accept and that Workers
Compensation did not try to obtain or order
compensation for, for me.

68. Liberty wrote my doctor seeking
replies to questions. See the 3/18/2002 Ltr from Case
Manager Theresa Tracy, Liberty to Dr. Theuson. It
asked if Theuson agreed with certain propositions.
Thus: Liberty asked, is the acute cervical/lumbar
strain resolved? Theuson replied: “As of 10/23/01 MRI
my Rx changed from strain to herniated disc C4-5 level
… ” Liberty also asked: “Do you agree that with
regards to his accepted strain only he could do his
regular work?” Theuson: “He worked until the time of
his surgery and cannot work now until recovered.” “Do
you agree that with regards to his strains he did not
suffer any permanent impairment?” Theuson checked NO
box.

69. Liberty next declined to link the
C4-5 injury to the accident. Workers Compensation made
no comment. See letter of 5/2/2002 from Liberty to me:
“we find that your work injury/activity is not the
major cause of your C4-5 cervical disc herniation.”

70. The Occupational Safety and Health
Administration of Oregon found that my slip and fall
had occurred at a place with a hazardous condition at
the Georgie’s restaurant See 5/2/2002 OSHA Citation
and Notification of Penalty. “The floor area between
the dishwashing department and the grill work area, in
the kitchen, becomes slick when water from the
dishwashing department is tracked or spilled and
grease from the grill area is tracked on to the wet
floor.”

71. Liberty still concluded that both of
my injuries were nondisabling. See 5/8/2002 Insurer’s
Report. Status of claim: partially denied;
nondisabling; injury; original injury; claim was
previously deferred/nondisabling; notice of partial
denial.

72. I still continued to get worse: the
area of injury was spreading, to C6-7 and to C3. See
8/16/02 Diagnostic Imaging Rpt, Samaritan Pacific
Communities Hospital , 4 views. “There (are) inferior
plate screws inset at the inferior aspect of the C5-6
disk space, and the disk space appears to be ossified.
There are moderate degenerative changes at C6-7. … The
immediate prevertebral soft tissues are abnormally
thickened at the C3 level.”

73. I continued to hurt and have other
symptoms. See Hacker note 9/23/02 that patient
“continues to have symptoms consistent with
myelopathy, with electric shocks which will radiate
into his arms and won into his legs. He tells me these
symptoms do not seem to have changed much.”

74. It got worse. C3-4 level reveals mild
disk bulging with no focal or discrete herniation and
no significant canal or foraminal narrowing. C4-5 and
C5-6 levels reveal interbody fusions. … No significant
canal or foraminal stenosis. Identified. There appears
to be a mild disc bulge at C6-7 with no significant
canal or foraminal narrowing. Mild left foraminal
narrowing is noted. Dr. Larry Wampler 10/09/2002 MRI
cervical spine report.

75. Sponsylosis continued to be
identified and – something new - displacement of my
cervical chord was found, along with other problems,
by a doctor who, in other regards, I disagreed with.
There is vertebral body endplate spondylosis or
hypertropic degenerative change. The intervertebral
disc has a corresponding protrusion which is central
to left paracentral. There is some compromise of the
central canal and apparent displacement of the
traversing cervical cord at this level.” He also wrote
that “the examinations are not appreciably or
objectively changed between 12/12/97 and 10/23/2001 ,
which was clearly incorrect. He also believed,
without evidence, that the hernia pre-existed the
injury. Dr. Munier, 10/29/2002 letter to attorney
McAllister.

76. My physician viewed me as in worse
condition than did Munier. In a letter to Attorney
Jacqueline Jacobson, Hacker disagreed with Munier.
Letter was dated 2/20/2003 . “… it appears that both
radiologists and myself have a different opinion than
Dr. Munier in regard to the significance of the disc
herniation and significance of the disc herniation and
its size.” Hacker believed the hernia larger and
worse. Munier’s “characterization … appears quite
incorrect.”

77. My then attorney, Mr. Welch, in
letter of 2/25/2003, requested to Liberty that it
accept herniated disc C4-5 as directly caused by
injury of Nov 4, 1989 or as having developed as
consequence thereof.

78. Dr. Greg Bear did a new MRI on my
cervical spine, on 3/20/2003 . He found expansion of
my condition into lumbar region and possible nerve
involvement now. “Mild degenerative disk disease from
L3-4 through L5-S1; Minor posterior disk
bulges/osteophytes at L3-4 and L4-5; consequent
compromise at the neural foramina at L4-5, more
pronounced on the right. There may be impingement upon
the existing portion of the right L4 nerve root.”

79. C3-4 became also a problem. Dr.
Hacker, note: 4/15/2003: “His most recent MRI study
performed 3/22//2003 shows some straightening of the
cervical spine and degenerative disc changes at C3-4
and C6-7 with minimal if any canal stenosis…. Suspect
persistent changes, perhaps with an underlying
myelopathy without clear-cut ongoing compression.”

80. There was another MRI: see Fax cover
sheet to LNW from Hacker: refers to Cervical MRI of
3-20-03

81. Spondolyosis was by now considered
chronic by examining doctor. See Lippincott exam
4/30/2003 : “chronic cervical spondolysis with history
of cervical fusion at C5-6 on 1998 and C4-5 in 2002.
Rest of his report found little problem with me. “A
recent MRI study, however, does not show signs of
compression of the spinal cord or exiting nerve roots.
While the deep tendon reflexes are symmetrically brisk
.., I do not see any other signs to suggest active
myleopathy. I also do not see signs on examination to
suggest an intracranial abnormality.” And, though he
wrote “Lumbar spondylosis… no signs of active
radicular disease or lumbar stenosis,” he also wrote
“Poor endurance in the legs could, however, be related
to lumbar stenosis. An MRI scan of the lumbar spine in
Feb 2002 showed only mild stenosis at L3-4. Remote
closed head injury in 1989. An MRI scan in 1991 did
not show any signs of structural abnormalities of the
brain.”

82. Liberty denied that the C4-5 disc
herniation was a result of work injuries. See letter
to me from Liberty: 5/23/2003 Claim Denial letter, re
injury 11/4/89; Denial of C4-5 disc herniation as
result of off work activities or result of new injury
while employed with a new employer.

83. Liberty next gave me a partial denial
of claim, see Insurer’s Rpt - 5/27/2003, partially
denied.

84. Liberty opposed reopening the case,
in a letter to the Own Motion Unit at WCB dated
6/13/2003 , based on technical argument: “Our position
is that this motion is actually a new, but unrelated
condition, and therefore, continue to recommend denial
of reopening for Own Motion benefits.” Also see
“Carriers Own Motion Recommendation form: “claimant
submitted claim for a compensable new medical
condition or omitted medical condition and the claim
was initiated after expiration of aggravation rights”
.(Note: At this point, the “accepted conditions” were:
cervical strain, C5-6 herniation; the C4-5 herniation
not accepted. It had been operated upon 15 months
earlier.)

85. Dr. Theuson concluded I had permanent
impairment. See 8/12/2003 , Theuson: Workers and
Physicians Report for W/C Claims – “cannot lift
greater than 20 pounds occasionally. Limit standing or
walking.” “Has the injury/illness caused permanent
impairment?” Answer: Yes.

86. I had another MRI, of my lumbar spine
8/19/2003 , and it found the degenerative changes and
other problems expanding into my lumbar region, and
evidence of possible nerve impingement. It found
“Mild degenerative disk disease from L3-4 through
L5-S1; minor posterior disk bulges/osteophytes at L3-4
and L4-5; consequent compromise at the neural foramina
at L4-5, more pronounced on right. There may be
impingement upon the exiting portion of the right L4
nerve root.” MRI report Dr Greg Bear 8/19/03 .

87. It was now clear I would have a
lifetime of pain and problems. See Ltr by Dr. Hacker
to Ada Wainmayer, WC Division, “I expect that Mr.
Johnston will likely have a lifetime problem with
cervical myelopathy,” dated 11/5/2003 .

88. There was a possible settlement
negotiated by my then-attorney Brian Welch. I was very
unhappy with it. It made an offer I had not
authorized. Letter to me by Welch, dated 4/23/04 )
Also, Liberty had reopened an issue left behind by the
medical history, the red herring that I had carpal
tunnel. See letter from Welch to atty Sally Curey (
Liberty ) 4/12/04 Note that Liberty was asked to
delete reference to carpal tunnel.

89. My then attorney got Liberty into a
STIPULATION on 2/4/05 : Liberty accepted the C4-5
herniation. I was, however, not happy with the
stipulations; I wanted greater compensation. See my
letter dated 3/2/05 to WC Bd,

90. I was also becoming less employable,
with little hope of going back to being a bouncer, and
work as a cook was also unwise. See Note to Liberty
NW, from Hacker: “I don’t think he can return to any
vigorous demand job with cervical myelopathy.” 3/4/05

91. Liberty finally accepted C4-5 disc
herniation, though still clinging to claim it was
“strain” in larger part. See Modified Notice of
Acceptance, from Liberty , accepts “Cervical and
lumbar strain, C4-5 disc herniation” dated 3/4/05

92. On 3/7/05 a check was sent to me by
Liberty for $9,847. There was no explanation of how
calculated, what was included in or out.

93. On 3/21/2005 WCB issued an Order of
Abatement, referring to my previous letter to them,
and gave the attorneys involved 14 days to respond.

94. Stenosis was confirmed, along with
neural encroachment in my cervical spine. See
Diagnostic Imaging Rpt, 3/30/05 date visit, signed
4/06/05 Dr. Bear: MRI of cervical spine found:
“Multi-level fusion; Posterior disk bulges/osteophytes
at most cervical levels” – C3-4, C4-5, C5-6, C6-7 –
“more pronounced to left of midline. There is
resultant mild to moderate stenosis… There is also
encroachment on numerous neural foramina, most severe
on the left at C6-7. Correlate with clinical evidence
of compression of the left C7 nerve root. There may
also be impingement of the left C4 through C6 nerve
roots.”

95. The regions with stenosis and other
problems grew more numerous. Another Diagnostic
Imaging Rpt (this time of lumbar region), of the same
date as above, 3/30/05 date visit, signed 4/06/05 Dr.
Bear: MRI lumbar spine, found: T12-L1, mild posterior
disk bulge/osteophyte, with mild spinal stenosis.
L3-4, mild broad-based posterior disk bulge/osteophyte
with mild spinal stenosis. Nerve root exits freely. L3
nerve exists without impingement. L4-5 mild posterior
disk bulge/osteophyte. No significant compromise at
the spinal canal. There is mild encroachment on the
neural foramina, without definite root impingement.
L5-S1, degenerative changes in the facet joints.

96. Dr. Theuson found me 41 percent
impaired, attributable to the two injuries. Ltr to
Tracy at Liberty from Theuson, found 41% impairment.
“Estimate 60% of problem is from his injury, rest,
degenerative or from prior injury.” “The worker is not
able to do the work he used to do prior to his injury.
He is capable of reduced work hours with different
work duties. He is able to lift 5 lbs continuously, 10
lbs occasionally, 25 lbs rarely. He also set limits
against work that “requires stooping, bending,
crouching, crawling, kneeling, climbing, balancing. He
has significant limitations in twisting, reaching,
pushing, pulling as well.” (This is undated, but
states it is after seeing Ed March 18 and 31st, which
was in 2005.

97. I wrote to John Schiltz, WC Director,
and ALJ Hoquet, saying the system has failed me and
that there has been mysteriously disappeared medical
evidence. Letter dated April 17, 2005 .

98. The attorney for Liberty , Sally
Curey, argued to let the dismissal of my most recent
request for additional compensation and additional
accepted conditions stand unchanged. At this point,
the C5-6 injury and associated operation were still
not accepted by Liberty . Workers Compensation was not
taking them to task. See 4/25/05 Ltr from Curey to
ALJ, saying basically, let the Dismissal stand, he’s
got his C4-5 acceptance.

99. WCB sent me for an Independent
Medical Exam, at Star Medical, by Paul Williams, MD.
The exam was on 4/22/05 On the issues of permanent
impairment and work limits, he contradicted the
medical opinion of my doctor, Dr. Theuson. Williams
found me medically stationary for the accepted
conditions, and wrote “There is no permanent
impairment associated with a cervical or lumbar strain
due to range of motion.” His recommendation was that I
“May lift occasionally 50 pounds frequently, more or
less weight.” “There is no impairment related to a
cervical or lumbar strain.” Even so, he also accepted
that “The C4-5 disc herniation has been accepted as it
relates to the work related event of 07/28/01 , and
apparently was 100% caused by the work activity of
07/28/01 .” He also wrote that “There is impairment
associated with the C4-5 disc herniation.” And he also
wrote, “Mr. Johnston will likely experience
intermittent and transient increase in neck pain.” See
Star Medical report 4/22/05 .

100. There was a further attempt to annoy or
harass Dr. Theuson on 5/2/05 . It was a “Please Rush”
faxed ltr to Theuson from Tracy at Liberty , asking
his concurrence with the relatively modest findings of
the Star Medical exam. Theuson did not, generally,
concur. In response, in a 5/5/05 letter to Liberty ,
“Yes, I would consider his acute lumbar/cervical
strain with C4-5 cervical disc herniation medically
stationary as does your IME.” But he found my Ranges
of Motion not normal, indicating “a whole person
impairment of 41%,” and agreed with IME this is not
normal for me. He stated “at least in his neck (this)
is obviously due to his injury and subsequent surgery.
This should be attributed to the herniated disc which
is what the final diagnosis was concerning his injury
rather than the original diagnosis of cervical strain
only.” As to work load limits, Theuson disagreed with
IME Williams. “Objectively it would seem he is more
capable than this but if his fatigability is accurate
then he should not be expected to work in any task
that requires stooping, bending, crouching, crawling,
kneeling, climbing, balancing. He has significant
limitations in twisting, reaching, pushing, pulling as
well.”

101. The insurer accepted my claim of
aggravation and disabling injury. See Insurers Report
5/18/05 Accepted, disabling injury, aggravation. First
report of aggravation 2/22/2005 .

102. Liberty accepted the C4-5 disc hernia
injury. C6-7 still was not on the accepted list. As
noted above, both sites had been operated open. See
text: “accepted conditions: cervical and lumbar
strain, C4-5 disc herniation. Reopened for the
following Conditions: C4-5 disc herniation.” Date of
injury 7/28/01 . Classified as Disabling. Modified
Notice of Acceptance Dtd 5/18/2005

103. Liberty accepted some restricted duty
for me. Accepted injury as disabling (box checked).
Insurer Notice of Closure Summary 5/18/05 restricted
duty.

104. Liberty appeared to change its mind
regarding disabling nature of the injuries. Updated
Notice of Acceptance at Closure dtd 6/15/2005 :
(repeated text of above except for not checking box
stating it is disabling).

105. I was given 46 percent disability.
Notice of Closure Worksheet: 46%, and total dollars
$34,027. See Worksheet 6/15/05

106. I was deemed medically stationary, and
my aggravating rights given an end date. See Notice of
Closure 6/15/05 saying I became medically stationary
12/16/02 and my aggravating rights end 7/28/06 . It
found I had 46% disability, and payment for that was
$34,027.

107. That figure was indicated as
approximately $2,000 too high, indicated by hand
written figures on Statement/Request. To Liberty from
WC Div. dated 6/21/05

108. Case was closed by insurer. See Insurer
Notice of Closure Summary: dtd 6/21/2005

109. Liberty changed its mind, wanted to
further reduce compensation. See Liberty : Rescinding
Notice of Closure: replaces prior Notice of Closure.
42%, dollar amount of disability is $28,619.77 now.
Dtd 6/21/05

110. There were then some technical issues
that confused matters but do not appear to have had
any big effect on my status. (Ltr from WC Div to
Liberty: June 21 Notice of Closure not meet statutory
requirements – wrong form, provided no medically
stationary date of aggravation rights end date; no
form 2807 (Notice of Closure Worksheet) or Updated
Notice of Acceptance at Closure provided. Dtd 7/5/05 )


111. I was given 42% disability at the end of
what appears was that process of repairing the
technical mistakes. Notice of Closure Worksheet 7/22 –
42% disability.

112. Liberty re-opened case for C4-5
herniation. Updated Notice of Acceptance at Closure:
accepted conditions: cervical & lumbar strain, C4-5
herniation. Reopened for C4-5 disc herniation.

113. I was given, again, a finding of 42%
disability, and my aggravation rights were to end
7/28/06 . Notice of Closure 7/25/05 .

114. The total medical costs paid on my
behalf were stated as $25,319 and time loss for me
$9,847, a fraction of one year’s work. Notice of
Closure Summary 7/25/05 . This was four years after
the second injury.

115. On July 25, 2005 , in the same document
noted above in the Insurer Notice of Closure Summary,
Liberty identified me as a “Return to work type” that
could not return to “job at injury” nor to “job at
aggravation” and indeed, checked the box “No Job.” –
contrary to its previous conclusions about my
employability.

116. I filed a Worker Request for
Reconsideration, arguing that the compensation was too
small, the aggravation reality would continue, and the
injuries were worse than stated by WCB. Dated 9/21/05

117. Liberty sought to nail down a prior
medically stationary date, and it was now back to the
2002 date; Theuson did not agree. See 10/5/05 Liberty
fax to Theuson. Do you confirm he was med stationary
12-16-02. Answer: No … “12/02 was ‘guesstimate … [text
unclear] he was medically stationary as date May 5,
2005 .” Dated 10/5/2005

118. Notice of Postponement of
Reconsideration, dated 10/14/05 from the WC office,
with a list of six doctors to choose from. Shortly
thereafter, there was a choice, by Liberty , of Dr.
Throop, and a No Conflict of Interest letter signed by
Dr Throop and dated 10/24/05 . “This examination is
only for the newly accepted condition of C4-5 disc
herniation.” This was three years after my operation
for C4-5 hernia.

119. Dr. Throop’s medical exam report, dated
11/15/05 , went contrary to the great weight of prior
medical evaluations. He found “no evidence of
peripheral nerve or nerve root malfunction.” Also,
“there is no limitation to repetitive use of the
cervical spine.” And, he wrote, “The only abnormal
finding is a decreased range of motion and this is due
to his severe diffuse degenerative disease of the
cervical spine at a 94% level. The degenerative
disease is unrelated to the C4-5 disk herniation. …
He said I can “Occasionally carry 50 pounds,
frequently 35, constantly 25…” and “sit, stand, and
walk eight hours. There is no preclusion from any of
the activities listed.” His work addressed only C4-5.


120. Throop’s report drove the ORDER ON
RECONSIDERATION, by ALJ Ogawa, on 11/28/05 , in
reviewing the “newly accepted condition of C4-5
herniation.” She would, Ogawa wrote, use the Throop
report, because she found it “thorough and
persuasive.” With that, she cut the payment to me to
$5,875 and my disability to a mere 12 percent
disability, down from 42%. (itself down from 46%).

121. Order of Dismissal dated Jan. 10, 2006
signed by Board members Lowell and Biehl

***

ASSIGNMENTS OF ERROR

The Workers Compensation Board in its Order On Review
made the following errors:

A. It mistakenly failed to overturn Ogawa’s
finding of “no spinal stenosis” in my case;

B. It mistakenly failed to overturn Ogawa’s
finding that no relevant physician had found me not
medically stationary or worse;

C. It mistakenly failed to address the “closed
head injury” in my case;

D. It mistakenly failed to overturn ALJ Ogawa’s
decision, which it should have overturned on grounds I
am totally or near totally disabled due to my initial,
continuing, expanding and worsening medical
conditions;

E. It mistakenly failed to overturn
Administrative Law Judge Ogawa’s mistaken refusal to
address my first, as well as my second injury;

F. It mistakenly failed to address ALJ Ogawa’s
failure to assess the evidence of harassment and
pressuring of my doctors, loss of evidence, by Liberty
Northwest;

G. And mistakenly failed to overturn ALJ
Ogawa’s decision not to award me compensation and
increased disability percentage, as a permanent
disability as appropriate for my harms and losses, my
loss of employment, and my medical expenses.

A. The Workers Compensation Board mistakenly
failed to overturn Ogawa’s finding of “no spinal
stenosis” in my case;

The ALJ found, and the WC Board mistakenly upheld,
that there is no Stenosis at C4-5 and also that the
Stenosis at C4-5 did not come from the injury.

Spinal stenosis is defined as “narrowing of the spinal
canal.”

The spinal canal will be narrowed when other parts of
the body around it swell up or intrude into that
canal.

ALJ Ogawa addressed C4-5 because she stayed with
reviewing only the second injury, which affected, at
least initially, C4-5. In her Order On Reconsideration
she wrote that (page 3 of 4) “Here, the medical
evidence does not clearly establish that the March
2005 MRI findings of spinal stenosis stem from the
accepted C4-5 disc condition.” She then goes on to,
contradictorily, state (same paragraph) that “…Spinal
stenosis was not reported at the C4-5 disc level.”

I do not see how there can be no stenosis reported at
C4-5 when there is also a failure to “establish that
the March 2005 MRI findings of spinal stenosis stem
from the accepted C4-5 disc condition.” Obviously,
there was and is a finding of stenosis at C4-5. On
thbis basis alone, the Board should have overturned
Ogawa’s decision.

The Samaritan Pacific Communities Hospital Diagnostic
Imaging Report for exam date 03/30/2005 relating to an
MRI of the cervical spine by Dr. Greg Bear (EXHIBIT
12), performed for Dr. Theuson confirmed this. It
reported that at C4-5 “There is a mild to moderate
broad-based posterior disk bulge/osteophyte, with
minor AP narrowing of the spinal canal. There is mild
to moderate narrowing of the right neural foramen, and
moderate narrowing on the left.” (Emphasis added.)

There were other findings of stenosis.

See, much earlier, 2/27/02 MRI of lumbar spine, notes
by Dr. Greg Bear. “There is mild disc space narrowing
from L3-4 through L5-S1; these discs also demonstrate
decreased signal intensity consistent with
desiccation. … L3-4 mild broad-based posterior disc
bulge, resulting in mild stenosis of the spinal canal.
There is mild encroachment on both neural foramina,
but no evident impingement upon the existing nerve
roots. L4-5. there is a broad-based posterior disc
bulge/osteocyte, resulting in minimal stenosis of the
spinal canal. The disc bulge is slightly more
pronounced posterolaterally to the right.”

There was stenosis found elsewhere, too. See
Lippincott exam 4/30/2003 : “He wrote “Lumbar
spondylosis… no signs of active radicular disease or
lumbar stenosis,” but he also wrote “Poor endurance in
the legs could, however, be related to lumbar
stenosis. An MRI scan of the lumbar spine in Feb 2002
showed only mild stenosis at L3-4.”

Whatever the prior medical disagreements, stenosis was
confirmed, along with neural encroachment in my
cervical spine in 2005. See Diagnostic Imaging Rpt,
3/30/05 date visit, signed 4/06/05 Dr. Bear: MRI of
cervical spine found: “Multi-level fusion; Posterior
disk bulges/osteophytes at most cervical levels” –
C3-4, C4-5, C5-6, C6-7 – “more pronounced to left of
midline. There is resultant mild to moderate stenosis…
There is also encroachment on numerous neural
foramina, most severe on the left at C6-7. Correlate
with clinical evidence of compression of the left C7
nerve root. There may also be impingement of the left
C4 through C6 nerve roots.”

The regions with stenosis grew more numerous over
time. Another Diagnostic Imaging Rpt (this time of
lumbar region), also taken 3/30/05 and signed 4/06/05
by Dr. Bear addressed MRIs taken of my lumbar spine.
These found: “T12-L1, mild posterior disk
bulge/osteophyte, with mild spinal stenosis. L3-4,
mild broad-based posterior disk bulge/osteophyte with
mild spinal stenosis. Nerve root exits freely. L3
nerve exists without impingement. L4-5 mild posterior
disk bulge/osteophyte. No significant compromise at
the spinal canal. There is mild encroachment on the
neural foramina, without definite root impingement.”

In addition, there are numerous statements in the
medical record regarding osteophytes – bulges – some
of which are identified as going outward away from the
canal, but some of which are not specified as to
whether they went inward or outward, or went in both
directions. There are also several comments about
encroachment into the spinal canal, which would be by
definition equivalent to stenosis’ narrowing of the
canal.

Ogawa also asserted that the C4-5 stenosis did not
come from the injury (second injury, July 28, 2001 )
she was addressing. But then what did the C4-5
stenosis come from?

The question becomes what other source beside the
“accepted condition” the stenosis could come from. I
am not a doctor and do not know the universe of
possible answers, but it seems to me that if it did
not come from the injury that underlay the “accepted
condition,” it must have come from degenerative
changes. I quote from the Nov. 15, 2005 letter from
Dr. Throop (Exhibit 9). (page 4): “The degenerative
disease is unrelated to the C4-5 disk herniation
condition.” If degenerative disease is unrelated, the
stenosis must have come from the underlying
injury-based, accepted condition.

B. The Workers Compensation Board mistakenly
failed to overturn Ogawa’s finding that no physician
had found me not medically stationary or worse in
regards to C4-5.

The record on “medically stationary or worse”

Ogawa centrally asserted, though she did so in a
footnote (FN number 1) that “Neither Dr. Theuson, who
last saw claimant in July 2005, nor Dr. Throop, who
saw claimant in November 2005, indicated that
claimant’s C4-5 disc condition was not medically
stationary or was worse. Rather, Dr. Theuson noted in
May 2005 that claimant would probably have gradual
deterioration due to aging. Dr. Theuson also reported
that, although claimant stated he had worsened, Dr.
Theuson found little change, objectively, since the
March 2002 surgery.”

These were not, however, the only doctors to offer an
opinion or observation relevant to the issue of me
being medically stationary or worse, and I will quote
rom evidence from various doctors on the subject.

Right at the start, I was found not then medically
stationary. See Supplemental Med Report 828 by Dr.
Gilbert Lee describing me as not medically stationary,
dated 12/26/89 .

Six months later, Dr. Gilbert would not release me for
work, and could not give a date when I might be
medically stationary. See Supplemental Med Report 828
by Dr. Gilbert Lee dtd 6/6/90 .

The pain from the injury grew wider over the next few
months. See Note by Dr. Lee stating “the pain is now
in the back of his head, neck and upper back.” It was
dated 4/12/90 .

I was found to have a herniated disc at C5-6, on the
left, capable of modified, but not regular work, and
not medically stationary. See “Impressions” section of
letter of Western Medical Consultants, Dr Thomas
Gritzka, Orthopedist, and R. Glenn Snodgrass,
neurologist, dtd 1/17/91.

In February 1991, Dr. Bernstein concluded in a
qualified and uncertain manner that I was medically
stationary but needed physical therapy 3x per week.
Letter from Dr. Bernstein dtd 2/11/91 . But then,
the actual text was “‘I believe that he is currently
medically stationary’, but that he also believed that
Johnston will need three times a week physical therapy
for the next three months in order to maintain that.”
As was noted in another document, this appears to have
been a “coerced and qualified statement (that) does
not even come close to a medically stationary finding,
despite the use of the ‘magic’ words.” See Document
with text “Request for Reconsideration, Page 2” at the
top, the origin of which is unclear, but probably from
an attorney for me. The date is not given. It is
attached to a Request for Reconsideration sheet. See
its 3rd paragraph.

In 1997, I was found to have some degenerative change
at C4-5 and C5-6 consisting primarily of
intervertebral disc narrowing and anterior bulging.
There is some suggestion of spasm.” PCH Diagnostic
Imaging Report 9/22/97 . I could not have been
degenerating and also been medically stationary.

From her language, it is not clear if Ogawa meant what
she wrote – that I had not been found not medically
stationary (that is, at all, in any regard) or solely
as regards the C4-5 injury. She was addressing the
C4-5 injury, but her language seems plain enough and
to the contrary, all-inclusive. The above is from
before the second injury (on 7/28/01 ) which led to my
second operation ( 3/4/02 ), on C4-5. The below is
from documents after that date, when a finding of
medically stationary or not could relate to conditions
caused by either or both injuries unless specified as
relating to a particular condition, or the condition
not stationary is identifiable from the context.

My condition continued to get worse. There was now
identifiable compression on my spinal chord. See
Diagnostic Imaging Report 10/23/01 Dr Gary Theuson.
“Broad based disc protrusion C4-5 which is slightly
biased to the left and compresses the cord along its
ventral surface.” This directly contradicts Ogawa.

I had another MRI which made it clear my neck at C4-5
was in fact getting worse. See 11/26/01 Hacker ltr:
“Current Complaint.” “A review of his MRI scan
confirms spinal cord compression and a disc herniation
at the C4-5 level … Cervical myelopathy due to disc
hernia, C4-5.” The spinal chord compression was a
new finding, and helped lead to my second surgery.

The 3/4/2002 STAT REPORT: NAME OF OPERATION document
described my second operation, the one on C4-5 – the
subject of Ogawa’s Order. It stated: Anterior cervical
microdiskectomy with canal decompression with
instrumented interbody fusion with allograft C4-5,
with repeat exposure and explanation of previous
fixation plates C5-6. PREOPERATIVE DIAGNOSIS:
transition segment disease with cervical spondylotic
myelopathy with disk hernia C4-5. POSTOPERATIVE
DISAGNOSIS (same). FINDINGS: Spinal cord compression
was obvious at the C4-5 level due to disc protrusion,
as well as bony osteophyte formation.

On Oct. 29, 2002 , Dr. Paul Meunier wrote to attorney
Conway McAllister (EXHIBIT 10) about my case. “I have
for comparison two MRI examinations dated 12/12/1997
and 10/23/2001 . Additionally, I have a number of
x-ray examinations dated 04/09/1998 , 07/22/1998 ,
02/03/1999 and 11/26/2001 . … There is some disc space
narrowing at C4-5 and early posterior osteophytic
ridging at this same level. There is a small linear
calcification anterior to the C4-5 disc level which
appears to be ligamentous in origin. Accounting for
differences in position and technique, the
examinations likewise reveal stable findings at the
C4-5 disc level. The findings on MRI correspond with
the findings on plain film examination. There is
vertebral body endplate spondylosis or hypertrophic
degenerative change. The invertebral disc has a
corresponding protrusion which is central to left
paracentral. There is some compromise of the central
canal and apparent displacement of the traversing
cervical cord at this level. …”

The Samaritan Pacific Communities Hospital Diagnostic
Imaging Report (DIR) for exam date 03/30/2005 relating
to an MRI of the cervical spine by Dr. Bear, performed
for Dr. Theuson. (EXHIBIT 5) It reported that at C4-5
“There is a mild to moderate broad-based posterior
disk bulge/osteophyte, with minor AP narrowing of the
spinal canal. There is mild to moderate narrowing of
the right neural foramen, and moderate narrowing on
the left.” The active changes – “narrowing” (twice
noted) – are compared, evidently, to the “Plain films
dated August 16, 2002 ” that also “were reviewed” by
Dr. Bear. This comparison clearly indicates changed
and worsened conditions since that time (i.e., August
2002, after the March 2002 surgery). This DRI also
states that “The AP diameter of the spinal canal is
narrowed from C3-4 through C6-7.” That, obviously,
must include C4-5. To be narrowed, it had to have
changed, for the worse. (Note also that this MRI found
further worsening conditions at C3-4, C5-6 AND C6-7,
also.)

I had two MRIs done on 3/30/2005 by Dr. Bear, one on
my cervical region, one on lumbar. The Diagnostic
Imaging Report, signed 4/06/05 by Dr. Bear, reported
that the cervical spine (EXHIBIT 62) MRI found:
“Multi-level fusion; Posterior disk bulges/osteophytes
at most cervical levels” (C3-4, C4-5, C5-6, C6-7) more
pronounced to left of midline. There is resultant mild
to moderate stenosis… There is also encroachment on
numerous neural foramina, most severe on the left at
C6-7. Correlate with clinical evidence of compression
of the left C7 nerve root. There may also be
impingement of the left C4 through C6 nerve roots.”

I was getting worse generally, and there was now also
possible impingement on the C4-5 nerve.

Thus, from the Oct. 29, 2002 exam noted above to the
03/03/2005 exam, it appears there have been worsened
conditions., contrary to Ogawa’s conclusion.

WCB sent me for an Independent Medical Exam, at Star
Medical, by Paul Williams, MD. The exam was on 4/22/05
On the issues of permanent impairment and work limits,
he found me medically stationary “for the accepted
conditions.” Note that the accepted conditions did not
include anything relating to C4-5. Therefore, if Ogawa
meant to refer only to the C4-5 question, this claim
of medically stationary is irrelevant.

Dr. Theuson found me 41 percent impaired, attributable
to the two injuries. In a letter to Tracy at Liberty
from Theuson, found 41% impairment. “Estimate 60% of
problem is from his injury, rest, degenerative or from
prior injury.” “The worker is not able to do the work
he used to do prior to his injury. He is capable of
reduced work hours with different work duties. He is
able to lift 5 lbs continuously, 10 lbs occasionally,
25 lbs rarely. He also set limits against work that
“requires stooping, bending, crouching, crawling,
kneeling, climbing, balancing. He has significant
limitations in twisting, reaching, pushing, pulling as
well.” (This is undated, but states it is after seeing
Ed March 18 and 31st, I believe, in 2005.) While the
date is uncertain, it clearly is not logical to think
a person medically stationary if he could be further
harmed by twisting, reaching, pushing and pulling, and
by stooping, bending, crawling, kneeling, climbing or
balancing.

These limitations were reiterated by Dr. Theuson on
5/2/05 .

There was an faxed letter to Dr. Theuson on 5/2/05 ,
from Tracey at Liberty NW. It was a “Please Rush”
letter asking his concurrence with the Star Medical
exam. Theuson gave a mixed reply. In response, in a
5/5/05 letter to Liberty , “Yes, I would consider his
acute lumbar/cervical strain with C4-5 cervical disc
herniation medically stationary as does your IME.” But
he found my Ranges of Motion not normal, indicating “a
whole person impairment of 41%,” and that this is not
normal for me. He stated “at least in his neck (this)
is obviously due to his injury and subsequent surgery.
This should be attributed to the herniated disc which
is what the final diagnosis was concerning his injury
rather than the original diagnosis of cervical strain
only.” This would suggest that, if all I had at the
start was “strain,” I was getting worse. As to work
load limits, Theuson disagreed with IME Williams.
“Objectively it would seem he is more capable than
this but if his fatigability is accurate then he
should not be expected to work in any task that
requires stooping, bending, crouching, crawling,
kneeling, climbing, balancing. He has significant
limitations in twisting, reaching, pushing, pulling as
well.” This does not sound like a medically stationary
situation, if pushing and pulling, reaching or
twisting could worsen my condition.

Generally, I was deteriorating, and so not medically
stationary

There is a lot of evidence in support of the point
about my general medical trajectory making it clear I
have not been and am not, medically stationary. For
instance:

The injury was initially described as “acute strain”
and “non disabling” by the insurer, Liberty Northwest.
See the Notice of Claim Acceptance for 11/4/89 injury
issued by Liberty Northwest Insurance, dated Dec. 13,
1989 ,

Doctor Hacker, my neurosurgeon, confirmed in a note
dated 7/27/98,“the fact that the patient found the
onset of his symptoms with the injury described would
point to the injury as being the major contributing
cause of his disk herniation and need for surgical
treatment.” Since I had not been deemed needing
surgery at the outset, obviously, I was not medically
stationary.

I had another MRI in February 2002. It showed that
things were getting worse now in my spine; that is,
the deterioration was spreading. See 2/27/02 MRI of
lumbar spine, notes by Dr. Greg Bear. “There is mild
disc space narrowing from L3-4 through L5-S1; these
discs also demonstrate decreased signal intensity
consistent with desiccation. There is somewhat
prominent lumbosacral lordisis….. L3-4 mild
broad-based posterior disc bulge, resulting in mild
stenosis of the spinal canal. There is mild
encroachment on both neural foramina, but no evident
impingement upon the existing nerve roots. L4-5. there
is a broad-based posterior disc bulge/osteocyte,
resulting in minimal stenosis of the spinal canal. The
disc bulge is slightly more pronounced
posterolaterally to the right. There are mild
hypertropic changes in the facets. These factors
combine to result in encroachment upon the right
neural foramen. There is mild partial effacement of
the perineural fat planes associated with the existing
portion of the right L4 nerve root. It also found
problems at C4-5, which led to my second operation.
See the 3/4/2002 STAT REPORT: NAME OF OPERATION: It
described this operation: Anterior cervical
microdiskectomy with canal decompression with
instrumented interbody fusion with allograft C4-5,
with repeat exposure and explanation of previous
fixation plates C5-6. PREOPERATIVE DIAGNOSIS:
transition segment disease with cervical spondylotic
myelopathy with disk hernia C4-5. POSTOPERATIVE
DISAGNOSIS (same). FINDINGS: Spinal cord compression
was obvious at the C4-5 level due to disc protrusion,
as well as bony osteophyte formation.//////// At the
conclusion the canal was thoroughly decompressed with
satisfactorily positioned 8 mm allograft in place at
C4-5 interspace. The previous Orion plate had been
removed at C4-5 and a new plate positioned at C4-5.”
It was signed by Dr. Robert Hacker.

Even Dr. Throop – the Independent Medical Examiner,
upon whom ALJ Ogawa so heavily depends - stated in his
Nov. 15, 2005 letter (EXHIBIT 9) to Tamara L. Schnack
at WCD (page 1) “The last MRI scan was done on
03/30/05, which showed a number of disk bulges at the
cervical level and osteophytes at all levels, with
multiple areas of foraminal encroachment, especially
at C6-7 on the left and at C-4 on the left. There was
multiple spinal stenosis at multiple levels.” This
represented a continued broadening of my medical
problems – a worse condition. (We note that “C-4” has
to have been intended as C4-5.) I note that the
foraminal encroachment was new at that point

To get a visually clearer picture of the reality of my
continued deterioration, please see the Spreedsheet
“Ed’s Medical History,” a timeline, which is in the
file. It makes clear that the continued worsening at
the initial injury sites and the continued spread of
medical problems to additional areas – and their
subsequent worsening – makes clear that the various
medial reports and exams, whether by IMEs or
otherwise, that downplayed, minimized or dismissed my
ailments were clearly wrong. The attempts to minimize
my medical problems are shown up as false best over
time, and the time line spreadsheet may be the
clearest and most dramatic way of showing that.

C. The WC Board and ALJ Ogawa mistakenly failed
to address the “closed head injury” in my case.

Under 436-001-0170 (1), “The administrative law judge
may conduct the hearing in any manner, consistent with
these rules, that will achieve substantial justice,”
and (6) “The administrative law judge may consolidate
matters in which there are common parties or common
issues of law or fact.”

The medical record from that First Injury clearly
includes discussion of a closed head injury from that
first incident. I asked the ALJ and WC Board to
include that, and they did not. They could have, in
the interests of justice, with their authority to
consolidate “matters” with common parties or issues.
Not doing so was against the interests of justice.

The original 1989 injury, for which Liberty NW totally
disabled me on 5/31/90 , referenced C4-5 and C5-6 and
“closed head injury.” (EXHIBIT 13) Liberty NW in
fact, gave me a total disability finding in 1990 for
C4-5 and C5-6 and closed head injury. Thereafter, the
recognition of the closed head injury by Liberty and
by the Workers Compensation Division dropped off their
computers. Note that the closed head injury is
mentioned in the July 9, 1990 letter to Liberty from
Drs. Stanford and Barth at BBV medical service
(EXHIBIT 14) – even before the cervical disc injuries
had been property identified as significantly more
than “strains.” On Jan. 17, 1991 , Western Medical
Consultants, Dr. Grizka and Dr. Snodgrass (EXHIBIT 15)
also found closed head injury, as well as other
injuries. I have never received compensation for this,
nor even a review of it.

D. The Workers Compensation Board mistakenly
failed to overturn ALJ Ogawa’s decision, which it
should have overturned on grounds I am totally or near
totally disabled due to my initial, continuing,
expanding and worsening medical conditions;

I also requested of Ogawa and then of the Board that I
be granted (a) total disability, returning back to the
First Injury, (b) full and total compensation of all
medical expenses incurred, (c) full and fair
compensation for lost income. I believe not being
granted these requests was a mistake by the Board.

Ogawa found I had a mere 12 percent disability.

Here’s the history of it:

This began with Liberty NW Insurance concluding I was
totally disabled. Liberty in 1990 for C4-5 and C5-6
and closed head injury. (See Exhibit 13)

I was found to have an “Unscheduled permanent partial
disability of 25.6 degrees for 8 percent equal to
$2,500 for neck.” Time loss compensation paid is given
as $7,958; medical compensation paid $22,139 in the
10/25/91 Notice of Closure, Workers Comp. Div., for
the first injury.

On May 7, 1992 , the Workers Compensation ORDER ON
RECONSIDERATION (EXHIBT 19) reduced what had by then
become my partial disability “to NONE.” The logic of
this escaped me at the time and still escapes me. That
decision did not, however, make the pain go away. I
had pain, and even some black-outs, subsequently.

Workers Comp board next gave me 15% for unscheduled
neck and left shoulder permanent partial disability
and allocated monies. Misbehavior by Workers
Compensation Div. was noted in this document by the
Board finding itself, where it states “The award was
reduced to zero by Order on Reconsideration dated May
7, 1992 on a finding of no impairment by Dr. Stanford
the appointed medical arbiter. “Dr. Stanford, should
not have been appointed medical arbiter since he was
previously involved with this case as an agent of a
party” That party was the insurance company, for which
Dr. Stanford acted as consultant. (page 3) See
Referee D. W. Daughtry OPINION AND ORDER: dated August
26, 1992 . (Underline added.)

Dr. Theuson found me 41 percent impaired, attributable
to the two injuries. Ltr to Tracy at Liberty from
Theuson, found 41% impairment. “Estimate 60% of
problem is from his injury, rest, degenerative or from
prior injury.” “The worker is not able to do the work
he used to do prior to his injury. He is capable of
reduced work hours with different work duties. He is
able to lift 5 lbs continuously, 10 lbs occasionally,
25 lbs rarely. He also set limits against work that
“requires stooping, bending, crouching, crawling,
kneeling, climbing, balancing. He has significant
limitations in twisting, reaching, pushing, pulling as
well.” (This is undated, but states it is after seeing
me March 18 and 31st, which occurred in 2005.

On June 15, 2005 I was given 46 percent disability.
Notice of Closure Worksheet: 46%, and total dollars
$34,027. See Worksheet 6/15/05

Liberty changed its mind, and reduced it, without any
hearing or chance for me to have input. See Liberty :
Rescinding Notice of Closure: replaces prior Notice of
Closure. 42%, dollar amount of disability is
$28,619.77 now. Dtd 6/21/05 .

There were then some technical issues that confused
matters but do not appear to have had any effect on my
status. (See letter from WC Div to Liberty: June 21
Notice of Closure not meet statutory requirements –
wrong form, provided no medically stationary date of
aggravation rights end date; no form 2807 (Notice of
Closure Worksheet) or Updated Notice of Acceptance at
Closure provided. Notice of these issues was dated
7/5/05 )

I was given 42% disability at the end of what appears
was that process of repairing the technical mistakes.
Notice of Closure Worksheet 7/22/05

Liberty re-opened case for C4-5 herniation. Updated
Notice of Acceptance at Closure: they finally accepted
the C4-5 herniation as real. (“accepted conditions:
cervical & lumbar strain, C4-5 herniation.) and
reopened the matter for C4-5 disc herniation. The
result was that I was given, again, a finding of 42%
disability, and my aggravation rights were to end
7/28/06 . See the Notice of Closure 7/25/05 .

Next came another exam by independent examiner, Dr.
Throop’s. His medical exam report, dated 11/15/05 ,
found “no evidence of peripheral nerve or nerve root
malfunction.” Also, “there is no limitation to
repetitive use of the cervical spine.” And, he wrote,
“The only abnormal finding is a decreased range of
motion and this is due to his severe diffuse
degenerative disease of the cervical spine at a 94%
level. The degenerative disease is unrelated to the
C4-5 disk herniation. … He said I can “Occasionally
carry 50 pounds, frequently 35, constantly 25…” and
“sit, stand, and walk eight hours. There is no
preclusion from any of the activities listed.” His
work addressed only C4-5, but his findings addressed
the entirety of my disability, and was used as such by
ALJ Ogawa.

Dr. Throop’s report drove the ORDER ON
RECONSIDERATION, by ALJ Ogawa, on 11/28/05 , in
reviewing the “newly accepted condition of C4-5
herniation.” She would, Ogawa wrote, use the Throop
report, because she found it “thorough and
persuasive.” With that, she cut the payment to me to
$5,875 and my disability to a mere 12 percent
disability. By this time, it appears, there as no
disability percentage for my C5-6 injuries!

With two major operations, spreading problems that now
reach down into my lumbar region, osteophyhtes,
bulges, myelopathy, encroachment on my never roots,
and my head attached to my neck by a metal plate (can
you imagine how that feels), with ongoing treatment
for severe pain, and with my physician limiting my
work capabilities severely (no pushing or pulling,
twisting or reaching) I am now given a 12 percent
disability level.

This is wrong, and the Workers Compensation Board had
ample opportunity to correct it, on its Own Motion
decision, just as Ogawa could have decided
differently. These are errors that should be
corrected. But one problem is, how can anybody make a
sane determination of my actual disability level, if
he or she is reviewing only ONE of my two major
ailment – or, actually, one of my now numerous medical
problems.

As the record shows, there are now medical problems
all up and down my back,. (See, I had another MRI. It
showed that things were getting worse now in my spine;
that is, the deterioration was spreading. (See 2/27/02
MRI of lumbar spine, notes by Dr. Greg Bear. “There is
mild disc space narrowing from L3-4 through L5-S1;
these discs also demonstrate decreased signal
intensity consistent with desiccation. There is
somewhat prominent lumbosacral lordisis….. L3-4 mild
broad-based posterior disc bulge, resulting in mild
stenosis of the spinal canal. There is mild
encroachment on both neural foramina, but no evident
impingement upon the existing nerve roots. L4-5. there
is a broad-based posterior disc bulge/osteocyte,
resulting in minimal stenosis of the spinal canal. The
disc bulge is slightly more pronounced
posterolaterally to the right. There are mild
hypertropic changes in the facets. These factors
combine to result in encroachment upon the right
neural foramen. There is mild partial effacement of
the perineural fat planes associated with the existing
portion of the right L4 nerve root.” See also 8/16/02
Diagnostic Imaging Rpt, Samaritan Pacific Communities
Hospital. “There (are) inferior plate screws inset at
the inferior aspect of the C5-6 disk space, and the
disk space appears to be ossified. There are moderate
degenerative changes at C6-7. … The immediate
prevertebral soft tissues are abnormally thickened at
the C3 level.” See also Dr. Larry Wampler 10/09/2002
MRI cervical spine report: C3-4 level reveals mild
disk bulging with no focal or discrete herniation and
no significant canal or foraminal narrowing. C4-5 and
C5-6 levels reveal interbody fusions. … No significant
canal or foraminal stenosis. Identified. There appears
to be a mild disc bulge at C6-7 with no significant
canal or foraminal narrowing. Mild left foraminal
narrowing is noted.” See also, Diagnostic Imaging Rpt,
3/30/05 date visit, signed 4/06/05 Dr. Bear: MRI of
cervical spine found: “Multi-level fusion; Posterior
disk bulges/osteophytes at most cervical levels” –
C3-4, C4-5, C5-6, C6-7 – “more pronounced to left of
midline. There is resultant mild to moderate stenosis…
There is also encroachment on numerous neural
foramina, most severe on the left at C6-7. Correlate
with clinical evidence of compression of the left C7
nerve root. There may also be impingement of the left
C4 through C6 nerve roots.” See also Diagnostic
Imaging Rpt (this time of lumbar region), of the same
date as above, 3/30/05 date visit, signed 4/06/05 Dr.
Bear: MRI lumbar spine, found: T12-L1, mild posterior
disk bulge/osteophyte, with mild spinal stenosis.
L3-4, mild broad-based posterior disk bulge/osteophyte
with mild spinal stenosis. Nerve root exits freely. L3
nerve exists without impingement. L4-5 mild posterior
disk bulge/osteophyte. No significant compromise at
the spinal canal. There is mild encroachment on the
neural foramina, without definite root impingement.
L5-S1, degenerative changes in the facet joints.)

Be that as it may, it would seem to be impossible for
any reviewer to make any reasonable conclusion as to
my percentage of disability when reviewing only one of
the two biggest injuries – the ones that led to
surgery, and which continue to be the areas of worst
pain – and excluding the other such injury.

E. The Workers Compensation Board mistakenly
failed to overturn Administrative Law Judge Ogawa’s
mistaken refusal to address my first (C5-6), as well
as my second (C4-5) injury.

Under 436-001-0170 (1), “The administrative law judge
may conduct the hearing in any manner, consistent with
these rules, that will achieve substantial justice,”
and (6) “The administrative law judge may consolidate
matters in which there are common parties or common
issues of law or fact.”

Under OAR 438-001-0037 through 438-001-0061 the
Workers Compensation Board the power to take in new
matters of claimed injury and/or compensation. It
could have done so, and addressed BOTH my cases,
rather than just one of them, and failed to do so.,
including not only the present one but also:

WCB Case No. 03-04430,

Claim No. C604255450,

DOI: 11/04/1989,

WCD File No. G537856,

which addressed my C5-6 injury, also be reviewed here
along with the case formally on appeal.

The WC case referred to above regards the extent of
and compensation for my C4-5 injury from 2001 at
Hallmark Inns & Resorts. This was the second injury to
my neck; there was an earlier one, deemed not a part
of the process that led to this appeal. However, I
have only one neck and have throughout the process
insisted on my right to review and compensation for
both injuries. Denying me this was a mistake.

The basic background is this:

On Nov. 4, 1989 , while working as a bouncer at the
PipTide Restaurant in Newport , insured by Liberty NW,
I was beaten over the back of the neck with a pipe.
(The injury is referenced in the Notice of Claim
Acceptance dated Dec. 13, 1989.) This FIRST INJURY,
though initially described by Liberty as “neck strain”
(See the Notice of Claim Acceptance for 11/4/89 injury
issued by Liberty Northwest Insurance, dated Dec. 13,
1989) was eventually the source of an accepted
condition for C5-6. This led to my FIRST SURGERY, an
anterior cervical discetomy and fusion at C5-6, done
at McKenzie-Willamette Hospital by Physician Robert
Hacker 03/03/98 – nearly nine years after the damage
was done. (Document, on letterhead of
McKenzie-Willamette Hospital, by Physician Robert
Hacker, entitled “Name of Operation,” dtd 03/03/98.)

I suffered a SECOND INJURY on July 28, 2001, when I
slipped and fell in a puddle of water, working as a
cook, at Georgie’s Grill, a.k.a. (and organizationally
a part of) Hallmark Inn. (See Initial Notice of
Acceptance, from Liberty : 11/6/2001. for acute
cervical and lumbar strains. Non-disabling.)

Both the PipTide and Georgies are insured by Liberty .
This second injury affected chiefly my neck C4-5. This
led to my SECOND SURGERY, another anterior cervical
discectomy and fusion with canal decompression with
instrumented interbody fusion with allograft at C4-5
on 3/4/2002 . The underlying case now at issue, the
basis of this appeal, addressed the C4-5 injury and
conditions. (See See the 3/4/2002 STAT REPORT: NAME
OF OPERATION.)

It is unfair and against the interests of justice to
not also address handling of and compensation for the
First, C5-6, Injury, as well as the second. That
initial injury damaged both vertebrae and more; the
later injury worsened both and more. The two vertebrae
are next to each other. They are medically, physically
and experientially linked. The 2001 event that caused
the Second Injury (which is formally on appeal here)
might not have caused as bad an injury if the First
Injury (in 1989) had not occurred. The effects of the
First injury might not now be as bad as it is if the
second injury had not happened. The two vertebrae
involved in the first and the second injuries are
right next to each other in my neck; other vertebrae
adjacent to them also show clear and substantial
medical evidence of harm and have for a long time. My
compensation for the first injury was minimal, and
that condition has grown worse since then, in part due
to the second injury. Therefore, on December 18, 2006
, in the Petition for Review of ALJ Ogawa’s decision
that I sent to the Workers Compensation Board, I
asked the WC Board and the ALJ Ogawa to review that
case, too:

WCB Case No. 03-04430,

Claim No. C604255450,

DOI: 11/04/1989,

WCD File No. G537856,

which addressed my C5-6 injury, also be reviewed here
along with the case formally on appeal.

In the Transcript of the hearing on which
this appeal is based, page 6, ALJ Ogawa states “Any
issues regarding the C5-6 condition is what is called
under the Board’s own motion. I do not have the
authority to decide any issues regarding the C5-6.
Your C4-5 disc condition was accepted by Liberty under
the 2001 injury claim with Hallmark Inns & Resorts. I
have the legal authority to decide issues regarding
the C4-5 disc condition under the 2001 injury.”

This appears contradicted by OAR 436-001-0170 (1) and
(6)., which gives the ALJ the power to consolidate
matters involving the same parties and/or same issues,
and I had raised the issue of the unfairness and
inadequacy of the compensation for the initial, C5-6,
injury. Further, the WC Board, could, under its Own
Motion authority, have opened the scope of Ogawa’s
hearing on its own.

I believe both Ogawa and, in reviewing her, the WC
Board have the authority to review both of my cases
and all of my medical conditions.

While C4-5 was “accepted,” the benefits that have come
to me from this have been minimal. I requested that
the Board review and address it now, in the interests
of justice, fairness, and expediting the WC Department
process (that is, the hope that all the outstanding
issues between me and WC Department and Liberty can be
addressed at one time, instead of further strung out
over yet more years, at more cost to taxpayers and in
the hope this can be completed before I die.

My reasonable remaining lifespan is not long, by any
reasonable standard. I need only to slip and fall
again and I can slice my spinal cord, either killing
me or paralyzing me.

Beside the OARs noted above, there is
basis in the case history for combining review of both
injuries/claims. On July 22, my then attorney Welch
wrote Liberty attorney Sally Anne Curey seeking
consolidation of hearings on the two different
Injuries. (EXHIBIT 1) On July 24, 2003 , Liberty NW
Insurance lawyer Sally Anne Curey wrote to my then
attorney Brian Welch, “First of all, Liberty has no
objection, of course, to your moving to combine the
two hearings.” (EXHIBIT 2) On 8/12/2003 the Board
consolidated the hearings on the different claims.
(EXHIBIT 3) If it could do so once, it could have
done so again. I ask the Appeals Court, as part of any
order it issues in this case, to Order the
consolidation of these two cases and their underlying
injuries, so that the damages and compensation the
Appeals Court decides upon will have clear grounding
in the record at the Appeals Court.

The C5-6 injury, despite the surgery, worsened over
time. Given that worsening, ALJ Ogawa could and should
have reopened that matter for review and possible
higher disability percentage and higher compensation;
so, too, could the Workers Compensation Board. To show
that C5-6 did worsen after it was accepted and
minimally compensated for, a history follows.

The C5-6 issue

Liberty accepted the 11/4/89 injury as disabling. See
Insurer’s Report dated 5-31-1990 .

On Jan. 17, 1991, Western Medical Consultants, Dr.
Grizka and Dr. Snodgrass, (see previous Exhibit 15)
found (besides a closed head injury), “very small
central disc herniation at the C4-5 level, left
paracental disc herniation considered to be present at
the C5-6 level, but not well visualized.” (Emphasis
added.) They found I was “not medically stationary”
and that I probably would not be for four months.
Thus, the C5-6 injury is shown, again, to have began
as a result of the First Injury. My compensation for
C5-6 should go all the way back to the First Injury.

On 9/22/97 a Diagnostic Imaging Report taken at
Samaritan Pacific Communities Hospital Emergency Room
(EXHIBIT 20) found “There is some degenerative change
at C4-5 and C5-6 consisting primarily of
intervertebral disc narrowing and anterior bulging.
There is some suggestion of spasm.”

But it was not just degenerative matters or merely
spasm, as subsequent medical reviews, and surgery,
proved. Two months later, Robert Hacker,
Neurosurgeon, wrote (EXHIBIT 21) in a letter to Dr.
Cephus Allin (dated 11/12/97 ): “In my opinion Mr.
Johnson may well have a painful cervical spondylosis
disorder. ... repeat MRI scan is probably reasonable
to determine whether there have been late changes with
significant root or spinal cord entrapment.”

That was done. There is a letter dated Dec 12, 1997,
in which MR Imaging Associates (EXHIBIT 22) wrote to
Dr Hacker finding “Abnormality at C5-6 on the left is
larger than expected from plain film findings and
probably a combination of cervical spondylosis,
foraminal narrowing and disc herniation.” In December
1997, when the pain had grown excruciating to me, Dr.
Hacker recommended surgery on C4-5 and C5-6 discs;
Liberty refused to accept 4-5 and accepted only 5-6.
In the interim, I had only gotten worse, and who knows
what further damage has been done me – first from the
initial delay due to Liberty after the surgery became
(in my physicians’ opinion) worth the risk it
entailed, then due to Liberty’s refusal to deem the
condition one that needed an operation, and also from
Liberty’s refusal to support an operation on the 4-5
disc until 2002. With Liberty still denying I had
anything worse than cervical strain, it took me till
1997 to get authorization from OMAP for the surgery at
C5-6, and OMAP did pay for the surgery, which occurred
March 3, 1998 (my first surgery).

On July 30, 1998 , a letter from my then attorney
Strooband (EXHIBIT 23), notes on page 2 that IME
Western Medical on 1/16/91 (Gritzka and Snodgrass) had
“concluded Mr. Johnston had a herniated disc at C5-6
caused from the work incident of 11/4/89 .” The
attorney’s letter then asked Dr Hacker if he had
reviewed the Western Med 1/17/91 report and if he
agreed or disagreed with Gritzka and Snodgrass
regarding existence of a herniated disc at C5-6 and
their view that it was due to the 11/4/89 injury. Dr.
Hacker circled the “I agree” words.

In (EXHIBIT 24) the July 7, 1998 OWN MOTION ORDER
REFERRING FOR CONSOLIDATED HEARING (still, despite all
the above, referring to my problem as “acute neck
strain”), the Board noted that Liberty had denied
compensation for “current cervical disc herniation
C5-6 left condition. … (and) opposes reopening on the
following grounds: (1) the insurer is not responsible
for claimant’s current condition, (2) surgery of
hospitalization is not reasonable and necessary for
the compensable injury; and (3) claimant was not in
the work force at the time of disability.” This was
wrong because (1) the insurer insured both employers
of mine and is only “no responsible” for my condition
in the sense it is not responsible for anybody’s
injury except the injury of persons hurt by an
employer or vehicle or other equipment employed or
owned by the insurer; (2) the medical record
established that surgery was reasonable and necessary
for both injuries by the date of that assertion by
Liberty, and (3) because I was working at the time,
and h claim to the contrary was a bald lie.

In effect, Liberty passed me off to the taxpayer, as a
burden to the system. Now, because of what Liberty has
done, because of its delays and dishonesty, I am
indeed a burden to that system and to the taxpayer,
when I should not be. Thus, the issue of compensation
of C5-6 should be reopened, because that matter was
mishandled by the Liberty , and at points the agency,
over an extended period of years.

The Board, by its OWN MOTION ORDER of Feb
10, 1999 , (EXHIBIT 25) authorized reopening of my
1989 injury claim re: C5-6 to “provide temporary
disability compensation beginning March 8, 1998 ...”
(I do not believe I ever got compensation for a
decades worth of suffering relating to C5-6 and
incapacity – and have not gotten same for continued
suffering related to C5-6 and incapacity thereafter to
the extent it arose from C5-6. And the compensation I
have gotten relating to C4-5 has been fairly minimal.)
However, this Order got some of it right. This order
states that “on December 21, 1998 , ALJ Spangler
issued an Opinion and Order which set aside the
insurer’s denial. In doing so, ALJ Spangler found the
claimant’s cervical disk herniation at C5-6 was
causally related to the November 1989 compensable
injury. The ALJ’s order has not been appealed” by
Liberty , this noted. (They knew they were lying. But
they still haven’t paid compensation.) “On March 8,
1998 , claimant underwent anterior cervical fusion.
Thus we conclude that claimant’s compensable injury
has worsened requiring surgery. Furthermore, as
previously noted, we find that claimant was in the
work force at the time of his disability. Accordingly,
we authorize the reopening of claimant’s 1989 injury
claim to provide temporary disability compensation
beginning March 8, 1998 , the date claimant was
hospitalized. When claimant is medically stationary,
the insurer shall close the claim pursuant to OAR
438-012-0055.”

Thus, C5-6 is an issue in my life and in
this case and the Board has already found that “C5-6
was causally related to the November 1989 compensable
injury” (exhibit 25). There is no sane reason why the
C5-6 injury and compensation for it should not be
addressed by the Board now, when it clearly is related
to the second injury, and the harms from that second
injury are, to some extent, “medical sequalae” of the
first injury, and when the medical problems have
worsened after this injury was “accepted” by Liberty.

For justice to be rendered to me, the Board should
have addressed not just C4-5 (and its injury and
surgery) but also C5-6 (and its injury and surgery).

F. The Workers Compensation Board mistakenly
failed to address ALJ Ogawa’s failure to assess the
evidence of harassment and pressuring of my doctors,
loss of evidence, by Liberty Northwest;

Lost evidence

1. When I was injured at Georgie’s Beachside
Grill (the second injury), Liberty ’s investigator
picked up the video tape of the event. It has not been
seen since, though I have asked for a copy of the tape
of the investigative interview between me and him.
Unfortunately I do not have a paper record of that.

2. There should be a letter from Samaritan
Pacific Communities Hospital already in evidence
discussing a number of missing MRIs. I made the
mistake of innocently turning over to Liberty the MRIs
in the hope and expectation the insurer would use them
to arrive at a fair and just conclusion as to my case.
Evidently, the transfer of possession of such MRIs to
the insurer is normal – which makes sense, otherwise
how could it make its own assessment of the
disability? But it only makes sense if the insurer is
not going to lose the MRIs. Liberty lost and never
found those MRIs. But the MRI technician at the MRI
imaging trailer at Samaritan Pacific Communities
Hopsital had retained copies in his system and was
able to regenerate them for me. They are in evidence.
Why did Liberty lose them? And isn’t it a general rule
of law that when a party loses or destroys evidence it
is taken that the evidence supported the arguments of
the other side?

As evidence of the loss of the MRIs, I
note a letter regarding my Neurosurgical History and
Physical, by Dr. Hacker, dated Nov. 12, 1997 .
(EXHIBIT 26) ”A review of outside films confirms
degenerative changes, most pronounced at the C4-5 and
C5-6 level. There is nothing to suggest an obvious
deformity or subluxation. The patient has an MRI
report that is several years old, documenting
spondylotic change at C4-5 and C5-6. These studies
apparently have been lost.” I turned them over the
Liberty , as is normal procedure; it wasn’t me that
lost them.

There is the January 17, 2003 letter from
my then-attorney Brian Welch (EXHIBIT 27) to attorney
McAllister for Liberty , “I would appreciate your
kindness in locating those x-rays and forwarding them
to Dr. Hacker…” To the best of my knowledge, Dr.
Hacker never got them.

Liberty Bad faith

There is so much mishandling of the evidence, so many
false assertions, so much skewered evidence that, in
some instances individually, and together as a whole,
they must indicate bad faith or worse. Because of the
volume of this, I will (to make it easier for you to
follow and me to present) break it down into groups of
years.


The 1990s

There is the note (EXHIBIT 33) from an unidentified
party that is undated, as it appears to be only one
part of a larger document, but which refers to an
incident which apparently occurred the next month . It
could be from my then attorney at Bishop Strooband, as
it came as part of a page entitled Notes for
Reconsideration. It states

“On 2/11/91, Dr. Bernstein was apparently worn down by
Liberty Northwest’s harassment and responded to a
phone call from the claims examiner by saying ‘I
believe that he is currently medically stationary,’
but he continued that he also believed that ‘(Edward
Johnston) will need three times a week physical
therapy for the next three months in order to maintain
this.’ This coerced and qualified statement does not
even come close to a medically stationary finding,
despite the use of the ‘magic’ words. On April 10,
1991 , Dr. Bernstein referred Edward Johnston for
‘evaluation and possible’ entry into the Oregon Pain
Center . Edward Johnston is obviously not medically
stationary.”

The “magic words” which Liberty harassed my doctor to
try to elicit were, of course, ‘medically stationary.’
Liberty was not trying to determine or asses actual
medical facts; it was trying to achieve a pre-set goal
and justify a pre-determined conclusion.

On May 6, 1991 , in a letter (EXHIBIT 34) to Liberty
’s Linda Hepp, Dr. William Bernstein noted I was
“worsening” as a matter of his “objective findings,”
thereby reversing his unhappy donation of the
“medically stationary” tooth that Liberty had pulled
from him three months earlier.

On July 9, 1990 there was a Medical Arbiter Report by
BBV (two doctors, Dr. Thad Stanford, orthopedic
surgeon, and Dr. Berle Barth, a neurologist) (see
previous exhibit 14), somewhat more than a year after
my First Injury. In it, the problems that would grow
worse had begun to manifest, and the medical report
was a mixed one. It found a closed head injury, and
“moderate cervical strain, upper cervical area…” The
doctors wrote “we do not feel this man is able to
pursue employment as a doorman/bouncer. … Estimate of
resuming employment is difficult. We would guess three
months. We would expect that this man will recover
from these injuries and have no restrictions. His
current problems are primarily due to his November 4,
1989 injury though he probably did not do it any good
when he was injured again, in April of 1990. It does
not appear that his condition is stationary at this
point. We feel that the neurological base has to be
touched.”

Despite the conclusion the two doctors made about my
not being able to resume my regular employment, On
5/5/92 , the Appellate Unit Worksheet states that Dr
Thad Stanford found no objective bases of impairment.
(EXHIBIT 35) This Worksheet presented a one-sided
representation of a complex and nuanced set of
conclusions that Dr. Stanford and Dr. Berle Barth had
made.. But it nonetheless led to a May 7, 1992 ORDER
ON RECONSIDERATION: Claimant requested
reconsideration…. Partial disability is reduced to
NONE.” (EXHIBIT 36) On the basis of a subtle
misrepresentation about Dr. Stanford’s report, I was
demoted to zero disability.

That was changed, in the OPINION AND ORDER dated
August 26, 1992, (EXHIBIT 37) which assigned me a 15%
disability for unscheduled neck and left shoulder
permanent partial disability. It noted that the “award
was reduced to zero by Order on Reconsideration dated
May 7, 1992 on a finding of no impairment by Dr.
Stanford the appointed medical arbiter. … Dr. Stanford
should not have been appointed medical arbiter since
he was previously involved with this case as an agent
of a party” – i.e., as an insurance company
consultant. By Referee D. W. Daughtry (underline
added.)

Also, there is Dr. Cephus Allin’s brief February 9,
1998 cover letter (EXHIBIT 38) to Liberty , which
evidently went with a large volume of papers to
Liberty . For that cover letter, Dr. Allin wrote only:
“Ms. Jones, 384 pages. Go to hell.” That was the point
after which Dr. Allin refused to see me any more,
because of the harassment he was suffering from the
insurer.

On February 21, 1998 , my surgeon Dr Hacker wrote
(EXHIBIT 39), evidently in some frustration, to
Liberty (page 2) that “The patient’s present condition
is due to a cervical disc herniation, as mentioned
above. It is not related to a cervical strain.
Cervical spondylosis and foraminal narrowing may
indeed be superimposed upon his condition.” The
evident frustration rings through; the doctor was
getting tired of having Liberty press for an
inappropriate or untrue diagnosis.

The letter from Liberty Hacker responded to is not in
the record but is evidently dated 2/6/98 , as per the
Hacker letter. It evidently asked for answers to a
series of questions, as the Hacker response is
organized that way. The Hacker letter makes it clear
the Liberty letter must have been manipulative and
misleading. Hacker replied by numbered paragraphs,
presumably in response to numbered questions from
Liberty . 1. “… my examination is different now in the
sense that his MRI scan documents a large deformity
with disc protrusion at the left C5-6 level with
compression of the nerve root and spinal cord. Also,
the patient has evidence of diminished biceps strength
on his left side.” 2. “Yes. Be so advised.” 3. “Is
this a question?” 4. “To characterize the nature of
this accident as ‘neck strain,’ in my opinion, is
probably incorrect. On the other hand, I expect that
cervical spine injury with the episode described has
resulted in an osteophyte formation and disc hernia.
... my MRI findings, as well as Dr. Holmes’ report are
continued within your medical record file.” … 6. “The
patient’s present condition is due to a cervical disc
herniation, as mentioned above. It is not related to a
cervical strain. Cervical sponsylosis and foraminal
narrowing may indeed be superimposed upon this
condition.”

It is evident this doctor was being
pressured by Liberty .

There is also a note by Dr. Hacker dated 7/27/98
(EXHIBIT 41), where Hacker wrote that, after talking
with “an attorney” – “the fact that the patient found
the onset of his symptoms with the injury described
would point to the injury as being the major
contributing cause of his disk herniation and need for
surgical treatment.” The logic should be obvious; so,
too, should the reality that Dr. Hacker – like Dr.
Bernstein, and Dr. Allin – was responding to
assertions by Liberty and to pressure from Liberty to
adopt those misdiagnoses and give them cover of
medical legitimacy.

2000 (no relevant papers), 2001, early/mid 2002,

1. On October 10, 2001 , Richard Arbeene, an
IME, examined me. He ordered no diagnostic imaging
(X-rays or MRIs), and had none available, he wrote.
(EXHIBIT 42) Nonetheless, he found work-related
“strain” only and predicted they would “resolve within
a period of six to eight weeks.” The strain, was a
result, he wrote, of the 7/28/01 injury, and he
concluded that it produced the “strains,” and no more.
Other doctors would disagree strongly with that. He
also felt there was some pre-existing condition, of
which he wrote “We are dealing with subjective
complaints in this type of care.” This, of course, was
not so. Whichever injury he was referring to – it is
not clear – as “strains” – I ended up with operations
for both. Nonetheless, he predicted, as noted above,
that I’d be okay in 6 to 8 weeks. So much for Dr.
Arbene. Nonetheless, Liberty rested its opposition to
doing its duty to me as an insured injured worker, on
the basis of this medical examination of the spine
done without benefit of prior or a new MRI or x-ray.

There is a 11/26/01 Hacker document entitled: “Current
Complaint” (EXHIBIT 43) that followed my Second Injury
of July 28, 2001 and preceded my Second Surgery, for
C4-5, by 4 months. It states “A review of his MRI scan
confirms spinal cord compression and a disc herniation
at the C4-5 level with previous cervical fusion at
C5-6. Cervical myelopathy due to disc hernia, C4-5.”

About two weeks later ( 12/7/2001 ), we have a faxed
memo from Liberty apparently to Liberty (“To: Alice
”). (EXHIBIT 44) “We only accepted an acute cervical
and lumbar strain. These are not surgical conditions
and therefore we are not authorizing the surgery for a
cervical disc.” This is dated 12/7/2001 . So, when
facts meet insurer opinion, insurer will not change
opinion. In three months I would be operated on, and
the basis and cause for that operation were already
evident at the time of Liberty ’s internal memo.

On 2/27/02 Dr. Greg Bear did a MRI of my lumbar spine
(note, not neck).Dr. Bear found (EXHIBIT 45): “There
is mild disc space narrowing from L3-4 through L5-S1;
these discs also demonstrate decreased signal
intensity consistent with desiccation. There is
somewhat prominent lumbosacral lordisis….. L3-4 mild
broad-based posterior disc bulge, resulting in mild
stenosis of the spinal canal. There is mild
encroachment on both neural foramina, but no evident
impingement upon the existing nerve roots. L4-5, there
is a broad-based posterior disc bulge/osteocyte,
resulting in minimal stenosis of the spinal canal. The
disc bulge is slightly more pronounced
posterolaterally to the right. There are mild
hypertropic changes in the facets. These factors
combine to result in encroachment upon the right
neural foramen. There is mild partial effacement of
the perineural fat planes associated with the existing
portion of the right L4 nerve root.”

In short, the damage from the two injuries was
spreading, and was now clearly present in my lumbar
spine, as well as neck. Meanwhile, on another planet,
Liberty was still denying I had any problem other than
“strain.”

On March 18, 2002 , in a letter to Dr. Theuson
(EXHIBIT 46), Liberty assumes facts not agreed to by
the doctor or patient, writing, “It was later
determined that Mr. Johnston had some disc problems,
but that these were degenerative in nature and
unrelated to his work injury.” No such determination
was ever made, of course, except by a doctor who did a
spinal exam without benefit of X-rays or MRIS. But
having slipped this misrepresentation into the letter,
Liberty then asked my doctor “Do you agree that his
acute cervical/lumbar strain resolved and is medically
stationary?” There is, without the doctor answering in
some detail, no way the doctor can fail to do what
Liberty wants, since the key finding – that there was
just a “strain” – is taken as a given, and the
question the doctor is asked to answer assumes that
there is strain present and nothing more. Dr. Theuson
did not buy into Liberty ’s game. In reply he wrote,
by hand, “As of 10/23/01 MRI my Rx changed from strain
to herniated dics C4-5 level & (unclear) due to this
injury.”

The next question Liberty had asked of him also is of
the “have you stopped beating your wife?” kind. It
asked, “Do you agree that with regards to his accepted
strain only he could do his regular work?” This again
assumes that there is only a strain, because it is the
only “accepted” condition (accepted, of course, by
Liberty ) – which assumption was false. Dr. Theuson
replied to this question, too, in handwriting, “He
worked up until the time of his surgery & cannot work
now until recovered.” The doctor was being reasonable
and also a bit curt, evidence of his frustration with
Liberty . And Liberty ’s basis for doing all this was
the IME report by a doctor who thought it proper to do
a cervical/spinal exam without benefit of x-ray or
MRI!

The next item is EXHIBIT 47. On 5/2/2002: Liberty
wrote to me “we find that your work injury/activity is
not the major cause of your C4-5 cervical disc
herniation.” They didn’t say what was. On the very
same day, 5/2/2002 , the state Occupational Safety and
Health Administration issued a “Citation and
Notification of Penalty” to Georgies. “The floor area
between the dishwashing department and the grill work
area, in the kitchen, becomes slick when water from
the dishwashing department is tracked or spilled and
grease from the grill area is tracked on to the wet
floor.” OSHA got it, and fined Georgies for allowing
the continuation of a hazardous condition that had
created my Second Injury. Liberty didn’t get it – or
pretended not to – and was still manning the fort of a
hypothetical and minimal “strain.”

3. There followed a series of medical reports
indicating various medical problems. On 8/16/02, a
Diagnostic Imaging Report, (EXHIBIT 48) from Samaritan
Pacific Communities Hospital, regarding 4 views of my
cervical spine, found “… generalized straightening of
the cervical curvature … There (are) inferior plate
screws inset at the inferior aspect of the C5-6 disk
space, and the disk space appears to be ossified.
There are moderate degenerative changes at C6-7. … The
immediate prevertebral soft tissues are abnormally
thickened at the C3 level.”

On 9/23/02 in another report (EXHIBIT 49), Dr. Hacker
found the patient “continues to have symptoms
consistent with myelopathy, with electric shocks which
will radiate into his arms and won into his legs. He
tells me these symptoms do not seem to have changed
much.”

A report on a 10/09/2002 MRI of my cervical spine by
Dr. Larry Wampler (EXHIBIT 50) found: “C3-4 level
reveals mild disk bulging with no focal or discrete
herniation and no significant canal or foraminal
narrowing. C4-5 and C5-6 levels reveal interbody
fusions. … No significant canal or foraminal stenosis
identified. There appears to be a mild disc bulge at
C6-7 with no significant canal or foraminal narrowing.
Mild left foraminal narrowing is noted.”

Late 2002, 2003 and 2004

The plot thickens a bit more with a 10/29/2002 letter
to attorney Liberty McAllister, answering questions
(EXHIBIT 51). The letter is written by Dr Paul Munier,
who had done some x-rays of me. “There is some disc
space narrowing at C4-5 and early posterior
osteophytic ridging at the same level. There is a
small linear calcification anterior to the C4-5 disc
level which appears to be ligamentous in origin. …
this entire series of examinations are not appreciable
changed. The MRI examinations likewise reveal stable
findings at the C4-5 level. The findings on MRI
correspond with the findings on plain film… There is
vertebral body endplate spondylosis or hypertropic
degenerative change. The intervertebral disc has a
corresponding protrusion which is central to left
paracentral. There is some compromise of the central
canal and apparent displacement of the traversing
cervical cord at this level. … the examinations are
not appreciably or objectively changed between
12/12/97 and 10/23/2001 .” Meunier finds an extruded
disc fragment, and explains that the difference
between this and a disc herniation is “a semantic
difference that really has no importance in this
situation…” He believes the hernia pre-existed the
slip and fall incident of 2001. He does not say why.

There are a number of points to note here.
One is the numerous, widespread, cervical problems at
C4-5, upon which I did not get – could not get –
surgery till 3/5/02 . Another is the disconnect
between the flippant conclusion of no change and the
identified problems:

- disc space narrowing at C4-5 and


- early posterior osteophytic
ridging at the same level;

- small linear calcification
anterior to the C4-5 disc level;

- vertebral body endplate
spondylosis or hypertropic degenerative change

- the intervertebral disc has a
corresponding protrusion which is central to left
paracentral.;

- some compromise of the central
canal and apparent displacement of the traversing
cervical cord at this level;

This is the picture of a badly deteriorating central
cervical spine. If there is little deterioration from
the exam cited of 10/23/2001 , it is almost certainly
false to say there is little deterioration from
12/12/97 , four years earlier.

Compare, for instance to the October 10, 2001 ,
Richard Arbeene, IME report, or, for a view from the
other side, compare to the 11/26/01 Hacker document
entitled: “Current Complaint” (EXHIBIT 43) that
preceded my Second Surgery.

I had gotten worse. My neck was, by this time,
suffering numerous and serious medical ailments, all
of them are traceable to the two injuries.

Here we have a second supposedly independent Medical
Examiner making unsupportable conclusions (the first
was Arbenene, who reached his conclusions without any
X-Rays or MRIs.) Dr. Munier may have been saying what
Liberty wanted to hear – an Independent Medical
Examiner, if he says otherwise may stop getting
selected from the WC Board’s list of six choices it
sends to the insurer - but, at least he is not saying
there is only “strain.”

In a letter dated 2/11/2003 , from Dr. Hacker to
Liberty lawyer Jacqueline Jacobson, (EXHIBIT 52), Dr.
Hackers disagreed with Munier. This must be quoted at
some length:

“I have read your attached report authored by Dr.
Munier dated 10/29/2002 . I find myself in
disagreement with Dr. Munier’s report. Dr. Munier
tells us that Mr. Johnston’s MRI scans from 1997 and
2001 are essentially the same. This is not accurate
and is not supported by my interpretation as well. Dr.
Hall, the radiologist who read Mr. Johnston’s
12/12/1997 MRI described the C4-5 level as follows:
‘Smaller, midline left abnormality at C4-5, probably
representing cervical spondylosis rather than disc
herniation.’ Dr. Wampler described the abnormality at
the C4-5 level identified on the October 2001 scan as
follows: ‘Broad-based disc protrusion, C4-5, which is
biased slightly to the left and compresses the cord
along its ventral surface. The AP diameter of the
canal if reduced approximately 7 mm at this level and
the AP diameter of the disc protrusion is estimated to
be approximately 4 mm.’ In my chart review, I
described the patient’s MRI scan as showing spinal
cord compression and a disc herniation at the C4-5
level on 11/26/2001. This is in comparison to my
description dated 12/22/1997 in which I said: ‘The MRI
scan is reviewed, documenting a large osteophytic
deformity with perhaps associated disc protrusion at
the left C5-6 level compressing the nerve root and
spinal cord on the left side. At the C4-5 level, there
is a small lesion which appears to be an asymptomatic
cervical disc protrusion.’ In any event, it appears
that both radiologists and myself have a different
opinion than Dr. Munier in regard to the significance
of the disc herniation and the significance of the
disc herniation and its size. I do not find myself
able to agree with this characterization , as it
appears quite incorrect, based on my own as well as
the other two doctors’ interpretation.”

My conclusion is that we have had two (Arbeene and now
Munier) biased IMEs, or two IMEs who were pressured,
like some of my own doctors, to reach certain
conclusions.

/

Shortly thereafter, on 2/25/2003, my then attorney
Welch wrote Liberty (EXHIBIT 53) requesting Liberty
accept herniated disc C4-5 as directly caused by
injury of Nov 4, 1989 or as having developed as
consequence thereof. I don’t have an earlier response
from Liberty , but Liberty , in a letter to the WCB’s
Own Motion Unit (dated 6/13/2003 ) (EXHIBIT 57)
declined to do so.

I had been operated on a year earlier for C4-5 on
3/4/02 . Apparently, Liberty believed the operation –
the second one, on top of a first which was risky
enough – was unnecessary, and by extension, that my
surgeon was unnecessarily risking my life, or
paralysis, for no good reason.

On 2/26/2003 I wrote to my then attorney Welch
(EXHIBIT 54) saying the evidence shows C4-5 was
herniated, as of the Nov. 4, 1989 injury and became
compressed July 28, 2001 from that date injury. Welch
replied on March 19, 2003 (EXHIBIT 55) that there are
benefits available to me on “LIFETIME BASIS, including
medical care and treatment related to the accepted
condition.” If this is legally so, why haven’t I seen
anything like it?

The reality of spreading, serious, medical
deterioration is furthered by the 3/20/2003 MRI by Dr.
Greg Bear of my spine (as opposed to neck). (EXHIBIT
56) Its Findings include “Mild degenerative disk
disease from L3-4 through L5-S1; Minor posterior disk
bulges/osteophytes at L3-4 and L4-5; consequent
compromise at the neural foramina at L4-5, more
pronounced on the right. There may be impingement upon
the existing portion of the right L4 nerve root.” My
problems were spreading further.

After I had sought further review, Liberty, in a
letter to the WCB’s Own Motion Unit (as noted above)
(dated 6/13/2003) (EXHIBIT 57) asserted “our position
is that this motion” to accept C4-5 as a accepted
condition “is actually a new, but unrelated condition,
and therefore, continue to recommend denial of
reopening for Own Motion benefits.“ By this time, C4-5
had gotten bad enough to require the 3/3/02 operation.
Liberty was looking for a legalistic way to evade
its obligations.

2005

1. There is also implicit evidence of
harassment in the record from Dr. Gary Theuson where
he wrote, on O3/04/05, upon and in response to a “Rush
Please” note from Liberty ’s Theresa Tracy (EXHIBIT
59). He was in evident frustration with Liberty ’s
agent putting words in his mouth. He wrote that he
(Dr. Theuson) did not concur with the claim from
Liberty that I was able to go back to work at Georgies
effective January 1, 2003 . In reply to the
familiarly misleading question that followed – “If no,
when” – the doctor handwrote a blunt answer: “I don’t
think he can return to any vigorous demand job with
cervical myelopathy.”

Here, the frustration is again evident. Once again,
Liberty was seeking to lead or mislead the physician,
and once again, Liberty was assuming facts not agreed
to by the physician. In this instance it was the
assumption I could go back to the kind of work that I
had done, and that paid me best, the “vigorous”
physical work of being a bouncer (or, perhaps, as a
short-order cook, which was also too demanding and too
risky for me to think it wise medically to do,
either.)

On 10/05/05 , in another, similar transmittal,
(EXHIBIT 60) Liberty ’s Theresa Tracey requested that
Dr. Theuson concur with Liberty ’s claim that I was
medically stationary on 12-16-02 .

This was asking Theuson to roll the clock back nearly
three years.

In response, Theuson wrote by hand (excluding the
unclear/unreadable handwriting), “12/02 was
‘guesstimate’ … 7/1/03 IME eval 4/22/05 & my agreement
he was medically stationary was dated May 5, 2005 .”

If I was not medically stationary till May 2005, where
are my time loss payments for 2002, 2003, 2004 and the
first half of 2005 - and my medication costs for all
that time?

On 2/4/05 Liberty finally, in a STIPULATION, accepted
the C4-5 herniation as an accepted condition. (EXHIBIT
61) This was nearly three years after the surgery at
that site. The taxpayers paid for it, I guess, because
I didn’t and Liberty didn’t.

I had two MRIs done on 3/30/2005 by Dr. Bear, one on
my cervical region, one on lumbar. The Diagnostic
Imaging Report, signed 4/06/05 by Dr. Bear, reported
that the cervical spine (EXHIBIT 62) MRI found:
“Multi-level fusion; Posterior disk bulges/osteophytes
at most cervical levels” (C3-4, C4-5, C5-6, C6-7) more
pronounced to left of midline. There is resultant mild
to moderate stenosis… There is also encroachment on
numerous neural foramina, most severe on the left at
C6-7. Correlate with clinical evidence of compression
of the left C7 nerve root. There may also be
impingement of the left C4 through C6 nerve roots.”

This is now a group of really serious medical
problems.

The Diagnostic Imaging Rpt, on the lumbar spine MRI
(EXHIBIT 63), reported: T12-L1, mild posterior disk
bulge/osteophyte, with mild spinal stenosis. L3-4,
mild broad-based posterior disk bulge/osteophyte with
mild spinal stenosis. Nerve root exists freely. L3
nerve exists without impingement. L4-5 mild posterior
disk bulge/osteophyte. No significant compromise at
the spinal canal. There is mild encroachment on the
neural foramina, without definite root impingement.
L5-S1, degenerative changes in the facet joints.

In short, I was getting even worse – and in my back as
well as cervical spine.

I received Liberty ’s Notice of Closure
dated 6/15/05 ((EXHIBIT 68). It asserted I became
medically stationary 12/16/02 and my aggravating
rights would ended 7/28/06 . By pushing back my
medically stationary date way beyond what my doctor
had actually identified as this, Liberty was able to
end my aggravation rights period sooner.

On July 25, 2005, (EXHIBIT 71) to make things worse,
in its Insurer Notice of Closure Summary, Liberty
identified me as a “Return to work type” that could
not return to “job at injury” nor to “job at
aggravation” and indeed, checked the box “No Job.”
This, despite its consistent earlier assertions that I
could go back to work, could do anything I could ever
have done, and could do them in various capacities and
in ways that my own doctor consistently said were
unsafe to me. All of a sudden, now I can’t do
anything. Which is perhaps closer to the truth, but
still not the truth.

I am not yet in a wheelchair or bed-ridden. Not yet.
With the claim I can take “No Job,” Liberty has made
me, for all practical purposes, unemployable and
uninsurable (and, as uninsurable, doubly unemployable)
– even while still refusing to cover the great
majority of my medical ailments, needs and costs. This
was vicious and deceitful and complex.

There was more to come: I received a
Notice of Postponement of Reconsideration, dated
10/14/05 . (EXHIBIT 72) The WC office was sending it
to a medical arbiter for review. With it was a list of
six doctors to choose from. Shortly thereafter, there
was a choice, by Liberty , of one Dr. Throop, and a No
Conflict of Interest letter signed by Dr Throop and
dated 10/24/05 . “This examination is only for the
newly accepted condition of C4-5 disc herniation.”
Three years after I had had an operation for this
condition, Liberty and the WC Division wanted a
medical exam to see if I had a problem at C4-5.

Dr. Throop’s medical exam report, dated
11/15/05 , was four pages long. It was a whopper.
(EXHIBIT 9) “There is no evidence of peripheral nerve
or nerve root malfunction,” he wrote, contrary, to
virtually everything that had gone before. Also,
“there is no limitation to repetitive use of the
cervical spine.” And, he wrote, “The only abnormal
finding is a decreased range of motion and this is due
to his severe diffuse degenerative disease of the
cervical spine at a 94% level. The degenerative
disease is unrelated to the C4-5 disk herniation. …
The worker had surgery at one of these levels for this
condition and 50% of the problem at this level (C4-5)
was due to degenerative disease, hence the calculated
percentage.” He said I can “Occasionally carry 50
pounds, frequently 35, constantly 25…” and “sit,
stand, and walk eight hours. There is no preclusion
from any of the activities listed. But Throop’s work
included a brief, one page cervical range of motion
study, and addressed only C4-5. That was not his
fault; an administrative rule or ORS (see page 1 of
his statement) restricted him to it, even though my
neck vertebra are connected (albeit with a metal plate
in a couple places).

If one ignores or discounts the most severe of my
accepted medical problems and ignores the great
majority of my total list of problems one can achieve
almost any desired conclusion. And that is what Throop
did.

For a perspective on how wrong he was, please review
the spreadsheet “Ed’s Medical History” which gives a
timeline showing when each new medical problem was
first diagnosed.

Throop’s bizarre report led to an ORDER ON
RECONSIDERATION, by ALJ Ogawa, on 11/28/05 , in
reviewing the “newly accepted condition of C4-5
herniation” (by then several years old, and identified
as such for several years). She would, Ogawa wrote,
use the Throop report, because she found it “thorough
and persuasive.” With that, she cut the payment to me
to $5,875 and my disability to a mere 12 percent
disability, down from 42%. (itself down from 46%). As
I argued in papers to the WC Board and ALJ Ogawa –
Please see my EXHIBIT 73 - the report blatently
contradicted the great majority of what had gone
before it, was absurd on the face of it, and based on
a brief and inadequate medical exam by Throop.

G. The Workers Compensation Board mistakenly
failed to overturn ALJ Ogawa’s decision not to award
me compensation and increased disability percentage,
as a permanent disability as appropriate for my harms
and losses, my loss of employment, and my medical
expenses.

Given all the above facts, cites and
arguments, it should be clear the WC Board could have
reasonably reviewed the record and concluded that
Ogawa erred in assigning me an 8 percent disability
and chosen one more close to the facts, which are, by
the evidence, that I am totally or nearly totally
disabled, cannot work ever again in my most lucrative
employment as a bouncer, nor risk employment as a cook
anymore; that my disability is permanent and
worsening, and that the WC Board should order Liberty
to make an appropriate compensation to me for monies
not paid due to the above misbehaviors, money that
should have been paid for lost employment, medical
costs and expenses, and to the degree permitted, pain
and suffering, which has been very great.

BASED ON THE ASSIGNMENTS OF ERROR, I THEREFORE MAKE
THE FOLLOWING PLEA FOR REMEDY AND RELIEF : I SEEK AN
ORDER OF THIS COURT TO THE EFFECT THAT THE WORKERS
COMPENSATION BOARD

A. mistakenly failed to overturn Ogawas
finding of “no spinal stenosis” in my case;

B. mistakenly failed to overturn Ogawas
finding that no relevant physician had found me not
medically stationary or worse;

C. mistakenly failed to address the “closed
head injury” in my case;

D. mistakenly failed to overturn ALJ Ogawas
decision, which it should have overturned on grounds I
am totally or near totally disabled due to my initial,
continuing, expanding and worsening medical
conditions;

E. mistakenly failed to overturn
Administrative Law Judge Ogawas mistaken refusal to
address my first, as well as my second injury;

F. mistakenly failed to address ALJ Ogawas
failure to assess the evidence of harassment and
pressuring of my doctors, loss of evidence, by Liberty
Northwest;

G. And mistakenly failed to overturn ALJ
Ogawas decision not to award me compensation and
increased disability percentage, as a permanent
disability as appropriate for my harms and losses, my
loss of employment, and my medical expenses.

In addition, if it is permitted, I request an Order to
the Workers Compensation Board

1. for it to pay me $10 million for
lost wages and employment, pain and suffering, medial
and pharmaceutical costs expended, and emotional and
psychological pain and suffering;

2. for it to Order Liberty Northwest
Insurance to pay me $10 million for lost wages and
employment, pain and suffering, medical and
pharmaceutical costs expended, and emotional and
psychological pain and suffering;

3. and for it to Order Liberty
Northwest to pay me an additional punitive damages of
$15 million for losing or destroying evidence,
conspiracy to mis-identify and deny my disability,
fraud, conspiracy and insurance fraud.

Respectfully Submitted by Edward M. Johnston.

Signed: ___________________________________ dated:
____________________

Edward M. Johnston

NOTARIZATION:

In The State of Oregon )


)

In the County of _______________ )

The foregoing was signed and sworn to before me
personally by Edward Johnston on this

____________ day of December, 2006;

Notary Seal:

I am a Notary Public of the state of Oregon ; my
commission expires ________________.

#######

Certificate of mailing follows:

I, EDWARD M. JOHNSTON, do hereby swear and state that
I have placed a copy of this COMPLAINT into the US
mail to the following:

Workers Compensation Department

State of Oregon

Attn: Mr. John Schiltz, Director

Liberty NW Insurance

POB 4400

Portland , OR 97208

Anderson & Nyberg,

POB 4400

Portland , OR 97208

Georgies Beachside Grill

Newport , Oregon

Insured party and owner of the site of the first
injury

Hallmark Resorts,

15455 Hallmark Drive, Ste 200,

Lake Oswego, OR 97035

I am not sending them copies of the evidence. They
have it all.

Signed:

__________________________________________
dated __________________

Edward M. Johnston



____________________________________________________________________________________

 

 

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