Spine Claim Questions

[rdnkjeeper]

I am new here and been reading information on this site for the last couple of days. There is so much information here that it has made my head spin. A little history so maybe someone can help me ask for the right things. I hit a towel bar in the military on my middle back and a few days later I was playing racketball and jumped to get the ball and went numb from my chest down. Spent three days on bedrest. I do have all the records supporting this. These injuries occured a few months before getting out. The Dr at my final physical told me to keep my mouth shut about my back, until I get got out and then put in a claim with the VA.

I got out and put a claim in with the VA, it took them about a year and service connected my middle back with chronic muscle spasms. I have been complaining about my back for years, but the VA didn't want to do anything. I opened a claim in June about connecting my lower back. I started noticing shooting pains down both legs for about a year before opening a claim. The VA got a new Dr at the clinic I go to. He said he reviewed my records and found that I have had back issues for years and what did any Dr say was wrong with my back. I told him muscle spasms....he then asked if I had had an MRI, told him no. He was shocked and order one right away.

The MRI showed that I have......(will type in the report and maybe someone will help me decode it)

Finding:

Thoracic spine: There is preservation of vertebral body height and alighment throughout the thoracic spine. The bone marrow signal is unremarkable. The thoracic cord demonstrates normal caliber and signal. There is a prominent central disc herniation at T9/T10 resulting in a mild indentation of the cord at this level. There is also a disc herniation, asymmetric to the right resulting in narrowing of the right portion of the thecal sac at T3/T4. Disc bulges are also present at T4/T5, T7/T8, T8/T9, and T11/T12.

Lumbar spine: There is preservation of vertebral body height and alignment throughout the lumbar spine. The bone marrwow signal is unremarkable. There is a loss of T2 signal within the L4/L5 and the space height at L5/S1. There is a focus of increased T2 signal within the posterior aspect of the L5/S1 disc compatible with annular tear. The conus ends at L1. No abnormal conal signal is present.

The L1/L2 and L2/L3 levels were not image in the axial plane but appear unremarkable on sagittal images.

L3/L4: There is a diffuse posterior disc bulge with bilateral facet hypertrophy in mild to moderate central canal and mild bilateral neural foraminal stenosis.

L4/L5: There is a left posterolateral disc herniation resulting in mild narrowing of the left lateral recess and mild left neural foraminal stenosis.

L5/S1: There is a central disc herniation resulting in mild central canal stenosis.

Impression:

Multilevel degenerative changes are present as described within the thoracic and lumbar spine.

Like I said my head is spinning so any help anyone can give me would be greatly appreciated. I plan on waiting until this claim is done then opening another or appealing depending on what happens. Sorry for such a long post, but I also need to know what to ask for. I don't know what I am entitled to. They are pushing for surgery on the T9/T10 one right now. I am really nervous because I am the only bread winner in my house and if I can't work after the surgery what am I going to do? I have not decided if I am going to have surgery or not, but it is getting harder and harder to make it through a shift at work.

Thanks everyone.

[sunfish34]

Wow rentalguy Great Job I work for orthopaedic Dr's that don't seem to explain things to

pt's in that depth, As for ESI we do those at the office I work at and sometimes they work

and sometimes they don't my DH has had a few and only lasted one day, and some pt's say

they last for about 3mths at the most, Thanks for all the great advise here,,,,

[Stretch]

Rentalguy

You must have put some time into your post, as I was posting much latter than your start time. My post came up after yours. Your explanation of rdnkjeeper's back diagnosis has helped me to better understand a lot.

Thank you.

I can really identify with your explanation of getting better and then overdoing it. The VA doc started me on fluoxitine several years back. When I felt kind of speeded up I started fixing an electric barbed wire fence way out back. For the next two weeks I suffered in terrible pain not being able to anything. It took a while to adjust and understand what was going on.

[Detonator]

I just wanted to say that was a great reply Rentalguy! I am service connected for DDD L4 / L5 and L5 / S1. I had a herniated disc repaired at the VA Loma Linda 1 1/2 years ago. I've been down the whole lower back road and everything you wrote was perfect advice. FYI, if anyone wants a GREAT spine surgeon, Dr. Shook at Loma Linda is IMO great! I was told the VA did everything they could to get him from Loma Linda University!

I look forward to reading more in the Spine Repository section.

Good Luck rdnkjeeper!

[hollywoodnc]

Sorry should have said I am 20% on my back. I have read his links, but like I said the more I read the more confused I become. I am assuming that part of that is that I don't really know what my results mean. I also talked with my union and they told me to keep the herniated disc to myself, if my employeer found out about it I would be fired. I can't do my job anymore. I am more than frustrated and more than a little stressed.

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Oh for christ sake rdnkjeeper...

I also talked with my union and they told me to keep the herniated disc to myself, if my employeer found out about it I would be fired.

I HATE hearing this!!! I read this and I GRIT my teeth!

It's not about you rdnkjeeper...it's the BLATANT mentality that employers use to terminate someones employment.

NO...DO NOT KEEP IT QUIET! Part of any adverse action taken against you, will be based on their knowledge that you have a disabling condition, and that they took action against you, based on this very fact!

(see EEOC Terms: "Individuals with Disabilities")

It is absolutely imperative that your employer, and Union are made aware that you are a disabled Veteran, and that you have a record of, and are regarded as such!

Ask for an accommodation verbally and WRITTEN, request a WRITTEN statement placing you in a more suitable position, and submit documentation that support your claim, to both your Union. Getting everything in a written format, keeps employers in a legal guideline, because it can be used against them in a courtroom!

IF you see a change in any of your coworkers and/or managements' attitude, against you and you are starting to be shunned by your coworkers, then this will let you know that people are aware of your condition(s). Depending on the level, this can be construed as a Hostile Environment.

If you are a member of a Union, then study your Union bylaws governing discriminatory acts against its' members. DO NOT listen to your shop steward regarding laws...call the National Headquarters.

Let it be known that you will file an EEO complaint if any retaliatory action is taken against you!!! Your Union should be behind you every step of the way. Find out if they have attorneys that handle cases, if things get hairy for you, after you ask for accommodations.

If you notice a change in their mentality or attitude, start documenting each episode that you deem suspicious, DATE IT, and let it be known that you are observing and documenting this.

Also let it be known, that an attorney will be contacted if the actions continue, and they had better Cease and Desist from any further actions taken against you.

This can be in the form, of Harassment, Retaliation tactics, Constructive Discharge tactics (trying to force you to quit).

There is a lot of information listed below. IF you seek more, I have a lot more!

If you are a Federal Employee, I have a slew of US Code and case law supporting Age, Disability, Rehab Act, OWCP, etc. E-mail me if you want it.

Here are some 'Tidbits' that I had in my computer from working on MY case:

There will be times when an employer who wishes to dismiss an employee will offer the individual the opportunity to resign. This may amount to a forced resignation and thus a constructive discharge. In Faruki v. Parsons, 123 F.3d 315 (5th Cir. 1997), a Title VII national origin discrimination case, the plaintiff resigned after he was told that he could not be retained and that in one week he would be placed on unpaid leave. He was found to have been constructively discharged.

Intolerability of working conditions ... is assessed by the objective standard of whether a 'reasonable person' in the employee's position would have felt compelled to resign ... An employee is protected from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers.

Damages - money claimed by, or ordered to be paid to, a person as compensation for a loss or injury. Compensatory Damages: reimbursement damages awarded that are sufficient to cover and repay the loss suffered. Punitive Damages: damages awarded in addition to actual (compensatory) damages when the defendant acted with recklessness, malice, or deceit. These damages are meant to deter future blameworthy conduct.

Harassment - words, conduct, or action (usually repeated or persistent) that, being directed at a specific person, annoys, alarms or causes substantial emotional distress that serves no legitimate purpose.

Intent - the state of mind accompanying an act, especially a wrong act. This is not an inducement to do the action but rather the mental resolution or determination to do it.

RETALIATION UNDER THE FAIR LABOR STANDARDS ACT

What conduct is prohibited?

The majority of cases decided under the anti-retaliatory provisions involve retaliatory discharge - an employee is terminated for engaging in a protected activity.

A claim of constructive discharge can be sustained if the employer makes the working

conditions so intolerable that the employee is forced to involuntarily resign.

YES...they pull this kind of crap on a daily basis!

Start learning the following EEOC terms. Cut and Paste this and put in in your computer. TRUST ME...Learn this NOW, so that IF something happens, such as an Adverse Action, you aren't learning it while formulating your claim/case!

EEO TERMINOLOGY

EEO, like any other field, has its own terminology. The definitions given below will help you understand any technical language you may come across either in official court decisions or in other literature on EEO.

Accessibility

A barrier-free environment in which the mobility of physically handicapped persons is not inhibited by external forces such as architectural design.

Adverse Impact (effect)

Applying certain personnel policies: e.g., word-of-mouth recruiting, diploma requirements, intelligence tests, etc.., uniformly to all applicants or employees, which has the effect of denying employment or advancement to members of affected class.

Aggrieved

An employee, a former employee, or an applicant for Army employment who files an informal complaint of discrimination based his or her race, color, religion, sex, national origin, age, physical or mental handicap, and/or reprisal.

Affirmative Employment Plan (AEP)

A plan whose execution will assure measurable yearly improvement in hiring, training, and promotion of minorities and women in all parts of an organization. The effectiveness of the plan is measured by the results it is intended to achieve.

Bona Fide Occupational Qualification (BFOQ)

A job requirement which permits an employer to legally discriminate on the basis of sex, age, religion or national origin. Such requirements are rare. For example, sex is a BFOQ for working in a women's locker room or modeling dresses. Sex is not a BFOQ for heavy physical work since some women are physically powerful. Race and color are never a BFOQ.

Barrier

Personnel principle, policy or practice which restricts or tends to limit the representative employment or applicants and employees, especially minorities, women, and individuals with handicaps.

Class Action Suit

A court action on behalf of an affected class alleging an unlawful pattern of discrimination by an employer. A class action suit can be initiated by an individual, a group, and/or a government agency.

Conspicuous Absence

Particular EEO group that is nearly or totally non-existent from a particular occupation or grade level in the work force.

Disabled Veteran

A person whose discharge or release form active duty was for a disability incurred or aggravated in the line of duty and who is entitle to a 30% disability compensation under the law administered by the Veteran's Administration.

Discrimination

Any act or failure to act, impermissible based in whole or in part on a person's race, color, religion, national origin, sex, age, physical or mental handicap, and/or reprisal, that adversely affects privileges, benefits, working conditions, and results in disparate treatment, or has a disparate impact on employees or applicants.

Disparate Effect

See Adverse Impact

Diversity

Recognizing and valuing differences in our employees and using those differences to make the organization more efficient and effective.

Equal Employment Opportunity

Administering all terms and conditions of employment without regard to age, color, handicap, national origin, race, religion, or sex.

(EEOC)

The Federal agency with overall responsibility for federal sector complaints. The EEOC issues policy and regulations on discrimination complaint system, holds hearings and makes finding and recommends actions on discrimination complains that have been appealed.

EEOC Guidelines

Interpretations of Title VII expressed by the Equal Employment Opportunity Commission that have the force of law, and tend to be supported by the courts. These positions are outlined in various EEOC publications.

Disability

A physical or mental impairment which substantially limits one or more major life activity.

Individuals with Disabilities

A person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, or a person has a record of such impairment, or a person regarded as having such an impairment.

Intent vs. Effect

In EEO law, corporate or personal intentions have no bearing on discrimination. What does count are the effects of what is done. If discrimination has occurred, the intention not the discrimination is of no value in defending one's position.

Job Relatedness

According to EEO court decisions, any criterion employed to determine whether a person will be hired, fired, transferred promoted, given a salary increase, and so forth, must be directly related to job performance

Labor Force Parity

The percentage of women and minorities in the total local labor force regardless of occupational specialty.

Major Life Activity

Functions, such as caring for oneself, performing manual task, walking, seeing, hearing, speaking, breathing, learning, and working.

Manifest Imbalance

Representation of EEO groups in a specific occupational grouping or grade level in the agency's work force that is substantially below it's representation in the work force.

Office of Complaint Investigations

The Department of Defense (DOD) organization that investigates and makes recommended findings on formal EEO complaints filed against the DOD.

Protected Classes

Any group or member of that group) specified in, and therefore protected by the anti-discrimination laws or the affirmative employment obligations of Federal contractors. The anti-discrimination laws protect individuals from discrimination because of age, color, race, handicap, national origin, religion, or sex. The groups for whom affirmative employment is required are racial minorities, women, persons with a handicap, disabled veterans and veterans of the Vietnam era.

Prima Facie Evidence

Legally sufficient evidence to establish a fact or a case unless disapproved. For example, s/he belongs to a covered or "protected" group; s/he is employed by an agency in a specified position; s/he is treated differently by the agency with respect to some incident of employment from persons outside his/her group occupying the same specified position.

Racial Minority

A protected class, members of which have been defined by the EEOC as:

Black - Persons having origins in any of the Black racial groups of Africa.

Hispanic - Persons of Mexican, Puerto Rican, Cuban, Central/South American or other Spanish culture or origin, regardless of race.

American Indian/Alaskan Native - Persons having origins in any of the original peoples of North America

Asian/Pacific Islanders -Persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands.

Reasonable Accommodations

1) Used in connection with Affirmative Employment for individuals with disabilities. If an employee with a disability or applicant has the skills necessary to perform a job, an employer must make reasonable accommodations to the physical environment, equipment, schedules or procedures that would enable the individual to function in the position.

2) Used in connection with discrimination because of religion. If an employee needs to be absent for religious reasons, an employer must make reasonable accommodation to grant the employee that absence even though it may conflict with, or differ from, the employer’s schedules, standards or other business conditions unless such absences causes employer undue hardship.

Report of Investigation

The investigative file prepared by an OCI investigator after a formal EEO complaint is filed.

Principal Agency Witness (PAW)

A person identified or implicated by the complainant as responsible for a specific act or policy alleged to be discriminatory.

Sexual Harassment

Influencing, offering to influence, or threatening the career, pay or job of another person (man or woman) in exchange for sexual favors; or deliberate or repeated offensive comments, gestures, or physical contact or a sexual nature in a work or work-related environment.

Undue Hardship

In order for an employer to legally refuse to accommodate an applicant's or employee's disability or religious beliefs, the employer must be able to show that such accommodation would place a severe burden on the operation of the business.

The following are a small list of definitions on findlaw.com.

Coercion: [ko-'er-zhen, -shen]

: the use of express or implied threats of violence or reprisal (as discharge from employment) or other intimidating behavior that puts a person in immediate fear of the consequences in order to compel that person to act against his or her will.

pre·text ( P ) Pronunciation Key (prtkst)

n.

An ostensible or professed purpose; an excuse.

An effort or strategy intended to conceal something

pre·text Audio pronunciation of "pretext" ( P ) Pronunciation Key (prtkst)

n.

1. An ostensible or professed purpose; an excuse.

2. An effort or strategy intended to conceal something.

pretext

n 1: something serving to conceal plans; a fictitious reason that is concocted in order to conceal the real reason [syn: stalking-horse] 2: an artful or simulated semblance; "under the guise of friendship he betrayed them" [syn: guise, pretense, pretence]

Employer Liable for Dismissal of Employee Regarded as Having Disability

Description

Appeals court held that a jury could find that an employer dismissed an employee with hepatitis because the employer regarded the employee as disabled and the jury can determine if punitive damages for malicious action by the employer are justified.

Topic

Employment Discrimination

Key Words Disability; Regarded As Having Disability, Hepatitis; Punitive Damages

C A S E S U M M A R Y

Facts

In 2000, Edwards was diagnosed with hepatitis C, a virus transmitted by blood-to-blood contact. The disease is chronic and requires lifetime monitoring. In 2001, she applied for a job in the kitchen at a nursing home. On the application she checked that she was not under a doctor's care, despite the on-going supervision of hepatitis. Later, when she cut herself at work, her sister, who also worked at the nursing home, told the supervisor that Edwards had hepatitis. She was fired. Her doctor said it would be safe for her to work there, but the nursing home would not reinstate her because she lied on her application. She sued for disability discrimination. The EEOC brought suit on her behalf, contending that she was fired because she was regarded as having a disability. A jury awarded her $20,000 compensatory damages and recommended back pay of $30,000, but the trial judge changed that to $1,240. The trial court held that punitive damages would not be appropriate. The EEOC and the nursing home appealed.

Decision

Reversed in part. For an employee to prevail on a "regarded as" claim of disability, there must be evidence that the employer believed the employee to be significantly restricted as to a class of jobs. It was for the jury to determine if the nursing home regarded Edwards to be disabled with respect to being a cook. If she were discriminated against because she was regarded as having a disability, it is for the jury to determine if the employer acted with malice and, so, punitive damages could be awarded.

EEOC v. Heartway Corp., 466 F.3d 1156 (10th Cir., 2006)

[rentalguy1]

Just be cautious. If you are in a heavy manual labor job, the employer has every right to let you go over a spine condition, because there is no way to make reasonable accommodations within the scope of the ADA laws.

[rdnkjeeper]

I work for a local City and I am a Wastewater Treatment Operator. The only things I have issues with about my job is the bending and lifting (not that much), the maintenance (again not that much), and the rags/grit (daily). I have to lift the rags/grit into a dumpster and it is usually in an ackward position.