Opposition_plaintiffs_opposition_to_defendants_motion_in_limine_no_3MotionCal. Super. - 2nd Dist.September 10, 2014Electronically FILEP O e = ) O N bh Bs Ww MN B N O R N O N N O N M N O N R N RN e m e m e m e m e d m d p d p e d p t 0 0 ~ J O v L h Ba W N = O D N 0 ~~ ) S h th hl W N — OO ’ by Superior Court of California, County of Los Angeles on 03/12/2019 08:16 PM Sherri R. Carter, Executive Officer/Clerk of Court, by D. Kukich,Deputy Clerk Justin Ehrlich {Bar #217606] lan Herzog [Bar #41396] Eric Freedman [Bar #213449] HERZOG, YUHAS, EHRLICH & ARDELL, 11400 West Olympic Boulevard, Suite 1150 Los Angeles, California 90064 Telephone: (310) 458-6660 Facsimile: (310) 458-9065 Attorneys for Plaintiff KEITH MULLALLY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES KEITH MULLALLY, CASE NO BC 557084 Plaintiff, [Assigned to Hon. Deirdre Hill, Dept. B] PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATION OF ERIC FREEDMAN V8. ROBERT CARBAIJAL; and DOES 1 through 50, Inclusive, Defendants. FSC TIME: 8:30am. DEPT.: B TRIAL DATE: March 13, 2019 TRIAL TIME: 9:30 AM. DEPT. B ) ) ) ) ) ) ) ) ) ) ) ) FSC DATE: March 6, 2019 ) ) ) ) ) ) ) File date: 09/10/2014 ) ) Plaintiff Keith Mullally submits the following opposition to defendant’s Motion in Limine No., 3 to preclude argument, testimony and evidence of future loss of earnings. 1 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATION OF ERIC FREEDMAN o e ~~ y n RR WwW N e B N R O R O R O N N O R e m me m es e e e s e e a 0 ~~ vn W h hk W N = O O N n R W NY = D Defendant would have this Court believe that there is no evidence supporting Plaintiff’s inability to work.' Not so. A cursory review of the evidence reveals that there is ample evidence supporting Plaintiff's lost future earnings. Defendant’s Motion ought to be denied. A cursory review of the medical testimony reveals that as a result of the injuries sustained in the collision, Plaintiff is not capable of gainful employment. According to Dr. Karrazi: Q. All right. And in terms of -- once this patient experience the trauma that he did, and once he underwent the reconstruction -- or that you did, the surgery that you did, do you have an opinion as to whether he would be able to operate as a sworn police officer, assuming that a desk job. a totally sedentary desk job, was not available? A. So I would recommend that he definitely stay away from any lifting, pushing, pulling, things of that kind. Certainly with a position of riding a motorcycle is not ideal for what he's got with his rotator cuff injury. So a desk job would be okay as long as he's pushing paper, and not lifting, even the repetitive use of that would be sometimes problematic, but let's leave that aside. But I definitely don't recommend he goes back to a motorcycle type job. Q. What about having him ride in a police cruiser, but be in a position where, as police officers are often are, they have to be prepared for a physical altercation. Does that sound — A. Given the combination of things. he is not a candidate to return to a job as a police officer because that's an arduous level. They have to push, pull, lift, maintain their physical fitness by doing all sorts of -- that's not what his shoulder is made for any longer. what he actually opined Not so. Freedman Decl., § 2, Exhibit 1, Karrazi Depo., 28:14-29:12 (emphasis supplied). Dr. Zackler testified that: I think the overlapping symptoms that Mr. Mullally is describing and is being described by his wife, daughter, and friends are incapacitating, that he certainly cannot return to working as a police officer. I wouldn't put a gun in this man's hands. And that his problems with insight and judgment have made it difficult to try treatments that may improve his quality of life, but I would doubt, even with the best outcome from medication and psychotherapy. that he would be cleared to return to duties as a police officer or cleared to return to duty in any capacity that requires interaction with the public. Freedman Decl., q 3, Exhibit 2, Zackler Depo., 57:22-58:8 (emphasis supplied). Dr. Florin stated that: ! Indeed, Defendant makes vague references to the testimony of Dr. Lester Zackler without citation to his actual opinion. See, Motion 2:24-27. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION fV LIMINE NO. 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATION OF ERIC FREEDMAN o w N U BA W N bh O R R N O M N R N N N R N R D ee e e e m e m e m e d e d pm b mb pe C o ~ 1 O n hh hk WW N = OO W O w h BR W N = OD Q. And we've already reviewed your permanent and stationary report? A. Correct. Q. And that's where you concluded that given his symptoms, he could not return to be employed as a police officer; is that correct? A. Correct. Q. He could be employed but just not as a police officer; is that correct? A. I don't think I stated that. dee Kk Q. When vou issued your permanent and stationary report. do vou feel he's disabled from all forms of employment or only that of a police officer? A. According to the severity of the headaches and his rating scales. I would say he is disabled from all forms of employment. Freedman Decl., 4 4, Exhibit 3, Florin Depo., 48:11-20; 49:21-50:1 (emphasis supplied). Dr. Florin also reported that Mir. Mullally was experiencing panic attacks “in spaces such as a restaurant or a car.” Freedman Decl., § 5, Exhibit 4, Florin Neurological Re-Evaluation. Dr. Edelman IME report provides that: Can the applicant return to his occupation? Answer: No. His physical and psychological symptoms are such that he cannot effectively function as a police officer. There is no modified duty that I'm aware of which would be suitable for him. Freedman Decl., 6, Exhibit 5, Fredric Edelman IME Report. Simply put, there is ample evidence to let the jury decide the issue. If Plaintiff experiences anxiety and panic attacks in public spaces such as restaurants, because of his shoulder injury he suffered is unable to meaningfully push, pull and lift items, and his neurological injuries prevent him from meaningfully interacting with the public, what sort of employment can he realistically expect. This is an issue for the jury. As Bob Dylan wrote, “You don’t need to a weatherman to know which way the wind blows. Defendant’s Motion in Limine No. 3 must be denied. iH Hl 1H mn 3 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION /N LIMINE NO. 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATION OF ERIC FREEDMAN O 0 0 Nn t h Rh W N M O R O N N O N RN R N R mm e m e m e m o e m m m e m mt e m c o ~ 1 on bh bh W N = OO WY D I = ) N h BR WwW R e s OO III. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Court, deny Defendant’s Motion in Limine, No. 3. DATED: March 12, 2019 HERZOG, YUHAS, EHRLICH & ARDELL A Professional Corporation i pl— By: Justin Ehrlich Eric Freedman Attorneys for Plaintiff, KEITH MULLALLY 4 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION /N LIMINE NO. 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATION OF ERIC FREEDMAN v u e ~~ S h b h a WwW b e M O R N O R O N OB R R N R B R D mm e m e m em em e d e m e h 0 0 ~ 1 o n Lh o b W N = D D 0 =~) O N hh pb Ww = O DECLARATION OF ERIC FREEDMAN I, Eric Freedman, declare as follows: 1. I am an attorney duly admitted to practice before this Court. I am an associate with Herzog, Yuhas, Ehrlich & Ardell, APC, attorneys of record for Plaintiff Keith Mullally, I have personal knowledge of the facts set forth herein, except as to those stated on information and belief and, as to those, I am informed and believe them to be true. If called as a witness, I could and would competently testify to the matters stated herein. 2. Attached hereto as Exhibit 1 is a true and correct copy of relevant excerpts from the Deposition of Daniel Kharrazi, M.D. 3. Attached hereto as Exhibit 2 is a true and correct copy of relevant excerpts from the Deposition of Lester Zackler, M.D. 4. Attached hereto as Exhibit 3 is a true and correct copy of relevant excerpts from the Deposition of Jack Florin, M.D. 5. Attached hereto as Exhibit 4 is a true and correct copy of the neurological re-evaluation of Keith Mullally dated July 10, 2014. 6. Attached hereto as Exhibit 5 is a true and correct copy of relevant excerpts from the IME performed by Fredric Edelman, M.D. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 12% day of March, 2019, at Los Angeles, California. wo FREEDMAN 5 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATICN OF ERIC FREEDMAN EXHIBIT 1 Daniel Kharrazi, M.D., 2/7/2019 Keith Mullally v. Robert Carbajal SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES-TORRANCE COURTHOUSE JC0306004 KEITH MULLALLY, Plaintiff, vs. Case No. BC557084 ROBERT CARBAJAL; and DOES 1 through 50, Inclusive, Defendant. T a ” To me ma ? om a o m ? om g om g To ng ? o m e l e t ? To me ? DEPOSITION OF DANIEL KHARRAZI, M.D. PASADENA, CALIFORNIA THURSDAY, FEBRUARY 7, 2019 Reported by: Jinna Grace Kim, CSR No. 14151 Job No.: 43052 ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 e e 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Daniel Kharrazi, M.D., 2/7/2019 Keith Mullally v. Robert Carbajal to a shoulder, it can bring to surface something that's silent. And it may not even be associated with a rotator cuff, but it's very commonly associated. The trauma that causes the torn rotator cuff can also cause post-traumatic impingement which causes pain, swelling, stiffness, all those things. Q. And given your experience with workers' compensation patients, does it -- is it atypical in your experience to have someone with this surgery get, say, 24 sessions of physical therapy, have you request another 12, and then be denied of on the final 12? A. It's not unusual. It's sad. But it is what it Q. All right. And in terms of -- once this patient experience the trauma that he did, and once he underwent the reconstruction -- or that you did, the surgery that you did, do you have an opinion as to whether he would be able to operate as a sworn police officer, assuming that a desk job, a totally sedentary desk job, was not available? ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Daniel Kharrazi, M.D., 2/7/2019 Keith Mullally v. Robert Carbajal Q. Okay. MR. EHRLICH: That's all I have. MR. TAYLOR: Thank you, Doctor. THE WITNESS: You're welcome. I would propose that we relieve the court reporter of her duties under Code. The deposition will be sent directly to the doctor. We'll ask the court reporter to provide an envelope with our firm's postage and address. Doctor, we'd like you to review it, sign it, an put it in that envelope, and mail it to us. Will you do that? THE WITNESS: Absolutely. MR. TAYLOR: I'll maintain custody of the original, 29 ADVANCED DEPOSITIONS www .advanceddepositions.com | 855.811.3376 1c 1.1. 12 13 14 15 16 17 18 15 20 21 22 23 24 25 Daniel Kharrazi, M.D., 2/7/2019 Keith Mullally v. Robert Carbajal CERTIFICATE oF CERTIFIED SHORTHAND REPORTER I, JINNA GRACE KIM, CSR No. 14151, a Certified Shorthand Reporter of the State of California, do hereby certify: That the foregoing proceedings were taken before me at the time and place herein set forth; That any witnesses in the foregoing proceedings, prior to testifying, were placed under oath; That a verbatim record of the proceedings was made by me, using machine shorthand, which was thereafter transcribed under my direction; Further, that the foregoing is an accurate transcription thereof. I further certify that I am neither financially interested in the action, nor a relative or employee of any attorney of any of the parties. IN WITNESS WHEREQOF, I have subscribed my name, this date: February 7, 2019. Jinna Grace Kim, CSR No. 14151 32 ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 EXHIBIT 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lester Zackler, M.D., 2/6/2019 Keith Mullally v. Robert Carbajal SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - TORRANCE COURTHGUSE KEITH MULLALLY, Plaintiff, vs. No. BCE557084 ROBERT CARBAJAL; and DOES 1 through 50, Inclusive, Defendants. Deposition of LESTER M. ZACKLER, M.D., taken on behalf of Defendant Robert Carbajal, at 13320 Riverside Drive, Suite 206, Sherman Oaks, California, beginning at 10:38 a.m. and ending at 12:54 p.m. on Wednesday, February 6, 2019, before KATE SONOMA STICKEL, Certified Shorthand Reporter No. 10409. ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 10 11 12 13 14 15 16 17 18 19 20 21 22 2.3 24 25 Lester Zackler, M.D., 2/6/2019 Keith Mullally v. Robert Carbajal headaches and some of the physical conditions. Dr. Jacks reviews additional records. He concludes that the depression, agoraphobia, and cognitive difficulties have improved without difficulties causing any permanent disability. It's not clear if that was his statement or a statement coming out of the medical records. He did have it printed out in bold print. Dr. Jacks noted motivation varies, gives up easily, as he has noted previously, and if -- again, reviews problems, noting that there were minimal significant psychological difficulties. Q Do you disagree with that? A Yes. Q Okay. A And, you know, he has refused psychological treatments that could result in improvement. And then -- Q How would you characterize his psychological condition? You said minimal. Would you say mild or moderate, major? ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 10 il 12 13 14 15 16 17 18 19% 20 21 22 23 24 25 Lester Zackler, M.D., 2/6/2019 Keith Mullally v. Robert Carbajal Gifficult to try treatments that may improve his quality of life, but I would doubt, even with the best outcoms from medication and psychotherapy, that he would be cleared to return to duties as a police officer or 0 cs Le public. Q Okay. A And so I have my notes. Q Okay. Let me just -- housekeeping. We will mark all of those as Exhibit 3 to the deposition with his highlights on it. (Deposition Exhibit 3 was marked for identification and attached hereto.) THE WITNESS: Bill Swain is now calling. Shall I take the call? THE REPORTER: Can we go off the record? MR. GRAMLING: Sure. {Recess.) BY MR. GRAMLING: Q Dr. Zackler, we are back on the record. I understand you just had an opportunity to speak with Mr. -- or Officer Swain? A Yes. 58 ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 10 1.1. 12 13 14 15 16 17 18 19 20 2. 22 23 24 25 Lester Zackler, M.D., 2/6/2019 Keith Mullally v. Robert Carbajal I, the undersigned, a Certified Shorthand Reporter of the State of California, do hereby certify: That the foregoing proceedings were taken before me at the time and place herein set forth; that any witnesses in the foregoing proceedings, prior to testifying, were duly sworn; that a record of the proceedings was made by me using machine shorthand which was thereafter transcribed under my direction; that the foregoing transcript is a true record of the testimony given. Further, that if the foregoing pertains to the original transcript of a deposition in a Federal Case, before completion of the proceedings, review of the transcript [ ] was [ ] was not requested. I further certify I am neither financially interested in the action nor a relative or employee of any attorney or party to this action. IN WITNESS WHEREQF, I have this date subscribed my name. Dated: KATE SONOMA STICKEL CSR No. 10409 THE DISMANTLING, UNSEALING, OR UNBINDING OF THE ORIGINAL OR CERTIFIED COPY OF THIS TRANSCRIPT WILL RENDER THE REPORTER'S CERTIFICATE NULL AND VOID. 81 ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 EXHIBIT 3 JC0208011 Jack H. Florin, M.D., 2/6/2019 Keith Mullally v. Robert Carbajal SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - TORRANCE CQURTHOUSE KEITH MULLALLY, Plaintiff, vs. Case No. B(CS557084 ROBERT CARBAJAL; and DOES 1 through 50, inclusive, Defendant. T a m e ” m t mg t To g So pa ? o t t p t o p t om g T o m ? V t So ma t So p No g? om e DEPOSITION OF: JACK H. FLORIN, M.D. Wednesday, February 6, 2019 Fullerton, California Reported By: Nila Webber CSR No. 4882 Job No. 42933 Pages 1 - 99 ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 10 il 12 13 14 15 16 17 18 18 20 21 22 23 24 25 Jack H. Florin, M.D., 2/6/2019 Keith Mullally v. Robert Carbajal MR. TAYLOR: P and 5, is that not the date? MR. EHRLICH: a ~- well, same conclusion from a different doctor. MR. TAYLOR: it's not his? MR. EHRLICH: that Dr. Florin -- MR. TAYLOR: yeah, no, that's definitely the wrong date. MR. EHRLICH: the -- I mean, on July 9th made the conclusion that he would never return to his employment as a police officer. BY MR. TAYLOR: Q Gotcha. MR. EHRLICH: THE WITNESS: because I didn't state that. BY MR. TAYLOR: Q When you issued your permanent and stationary Wait. Is that not the date of the It's a different conclusion from Oh, but it's not his? I misspoke, Don't believe July 9th is a date Here, I can tell you when it is -- I think that Dr. Fenton was Did you agree with that? I agree with your statement 49 ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 10 11 12 13 14 15 le 17 18 19 20 21 22 23 24 25 Jack H. Florin, M.D, 2/6/2019 Keith Mullally v. Robert Carbajal forms of e ployment. Q Under recommendations you again refer to September 17th office visit, he refuses counseling. Had you suggested counseling? A Yes. Q He refuses hypnotics. You're referring to sleep medication? A Yes. Q And he refuses antidepressants; is that correct? A Correct. Q And he also refused repeat Botox; is that correct? A Correct. Q Do you believe that if he became compliant with your recommendations, that the frequency and intensity of headaches could be affected? MR. EHRLICH: Lacks foundation, calls for speculation. THE WITNESS: I think assuming -- I think I could answer that question in some way. So the response to Botox was very good. And I believe that if he allowed to be continued to be treated with Botox and if that response was maintained, headaches would have been much better. 50 ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Jack H. Florin, M.D., 2/6/2019 Keith Mullally v. Robert Carbajal CERTIFIED SHORTHAND REPORTER'S CERTIFICATE The undersigned Certified Shorthand Reporter, licensed by the State of California, does hereby certify: That the foregoing deposition was taken before me at the time and place therein set forth, at which time the witness was duly sworn by me; That said deposition was recorded stenographically by me and thereafter transcribed, said transcript being a true copy of my shorthand notes thereof. In witness thereof I have subscribed my name this date: Nila Webber Certificate No. 4982 98 ADVANCED DEPOSITIONS www.advanceddepositions.com | 855.811.3376 EXHIBIT 4 Fullerton Neurology and Headache Center 100 Laguna Road, Suite 208, Fullerton, CA 92835 714.738.0800 - Fax: 714.738.3758 FullertonNeuro@sbcglobal.net Member of the Consortium of Multiple Sclerosis Cenlers Jack H. Florin, M.D. A. Andrew Morovatl, D.O. Founder, Migraine and Multiple Sclarosls Centers Director, Neuromuscular Center Board Certified in Neurology, Headache Medicine Board Certified in Neurology and Clinical Neurophysiology and Electrodiagnostic Medicine Teresa B. Sokol, PA-C, MPAS Laurie Diangson, RN, MSCN Physician Assistant Multiple Sclerosis Certified Nurse Karissa L. Hodges, PA-C Patricia Cleere Physician Assistant Administrator July 10, 2014 RE: MULLALLY, KEITH DOB: 02/22/1964 DOI. 02/25/2014 CL# 20141106 EMP: City of Long Beach NEUROLOGIC RE-EVALUATION / PR-2 INTERIM HISTORY Seen May 29, 2014. Has a new treating orthopaedist, Dr Fenton. Had 2 visits. Physical therapy to the neck, back, right leg planned. Told his shoulder issue involves "bone-on-bone.” Regarding headaches, still complains of a constant vise-like feeling in his head with sensitivity at the top of the scalp and occasional sharp, stabbing PEE. Flas blurred vision In whie reading gone Sifficutty with peony paperwork and concentration. Had at leas nic attacks without | 185 MEDICATIONS Naproxen 550 mg 2 a day, prescribed by Dr Fenton; Norco 10/325 two to 3 a day, which | am prescribing; amlodipine / benazepril; lansoprazole; Singulair. Never started nortriptyline or nadolol. NEUROLOGIC EXAMINATION Blood pressure is 120/88 and pulse rate 96. Both calf circumferences are 17-1/2 inches. Cervical spine range of motion unchanged from last visit. DIAGNOSTIC IMPRESSION 1. Status post traumatic brain injury with posttraumatic headaches and affective symptoms with panic attacks. 2. Orthopaedic injuries, deferred to his treating orthopaedist. RE: MULLALY, KEITH July 10, 2014 Page 2 RECOMMENDATIONS Because of tachycardia, | will not start nortriptyline, which may be helpful for panic attacks and headaches, as it may worsen this. Instead, will start nadolol 20 mg a day. This should reduce pulse rate and may help prevent panic attacks. Wife to take pulse and blood pressure and telephone me. Could probably start nortriptyline in about 2 weeks. Will continue temporary total disability until next office visit in about 45 days. Also requesting referral for cognitive therapy for traumatic brain injury. “Il have not violated Labor Code Section 139. 3 and the contents of the report and bill are true and correct to the best of my knowledge. This statement is made under penalty of perjury.” Dated this 10th day of July 2014 af Orange County, California. JACK H. FLORIN, MD 7 1 \ JHF:shilm ce: Robert B. Fenton, MD 3475 Torrance Boulevard, Suite F Torrance, CA 90503 EXHIBIT 5 09/17/2015 . SUBJECT TO PROTECTIVE ORDER CONFIDENTIAL - SUBJE R11] OL FREDRIC L. EDELMAN. ML.D,, F.A.C.S. A PROFESSIONAL CORPORATION NEUROLOGICAL SURGERY 4849 VAN NUYS BLYTL #610 8, SERULYEDA BLVD SUITE 217 SUITE 20% EHZAMAN OAKS, CA 31400 LOS ANGELES, CA 80043 TEL (BIB) 781-3250 TEL (210) B4]-4487 BAX (813) 781-7237 FAX (210) 641-4398 July 9, 2015 City Attorney's Office Workers’ Compensation Section 333 W. Ocean Blvd., 8" Floor Long Beach, CA 90802 I W Be Patient: Mullally, Keith D/Injury: 2-25-14 Employer: City of Long Beach Claim No: 20141106 cE UY INDEPENDENT MEDICAL EXAMINATION This examination is considered to be at the level of a complex medicolegal evaluation (ML103), considering the time involved in obtaining the patient’s history, reviewing the submitted medical records, and addressing issues of causation and apportionment. One hour was spent obtaining the history and performing the physical examination. One hour was spent reviewing the inedical records. Two hours were spent preparing, dictating and editing this report. A total time of four hours was spent on this examination and I am billing appropriately. Dear Claims Examiner: The patient is a 51-year-old, rnght-handed man referred for neurosurgical Independent Medical Examination. His chief complaint is that he has a number of symptoms that he relates to an accident which occurred an duty as a police officer with Long Beach Police Department in COLB PITCHESS 000379 Exh 37-2 08/17/2015 CONFIDENTIAL - SUBJECT TO PROTECTIV E ORDER Re: Mullally, Keith Tuly 17,2015 Page 7 Answer: He is Permanent and Stationary, as of July 9, 2015. Does the patient have any permanent disability attributable to industrial injury? If s0, please assess the level of disability using criteria established by the WCAB, Answer: His disability is due to the accident of February 25, 2014. He had prior injuries working for the same employer, but they resulted only in brief periods of TTD, after which he was able to return to work. - The AMA Quides do not address post traumatic head syndrome. However, invoking Almaraz-Guzman fi, his symptoms can be + considered analogous to DRE Lumbar Category TH, 10% Impairment of the Whole Person (Table 15-3, P.384) His lumbar strain and history of a fractured transverse process of 1.2 fall into DRE Lumbar Category II, 5% Impairment of the Whole Person. This is because he has tenderness on physical examination, and there was documented alteration of structural integrity of the L2 transverse process. Using the Combined Values Chart, his total neurosurgical WPI is | 15%. : 4, a. Self-procured treatment. | Answer: None i b. Will future medical treatment be required? Answer; Yes. He should continue with Dr. Florin/Neurology for treatment of headache until discharged by Dr. Florin. Also, he should be referred back to Dr. Ingalls/Psychology, for treatment until discharged by Dr. Ingalls. 6. Is he temporarily disabled? Answer: No. COLB PITCHESS 000391 Exh 37 - 14 O M 0 0 = ) hy bn Ba L d B D ee B O R O N N O N R N R BR e m e m e m p m e m e m p m e m e m pe C o ~~ O N WL A WwW N = O O 0 O N ih BA W N PROOF OF SERVICE A v. CARBAJA Case No. BC557084 State of California ) County of Los Angeles ) I, Martha Diaz, am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 11400 W. Olympic Boulevard, Suite 1150, Los Angeles, CA 90064. On March 12, 2019, I served the within document(s): PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO, 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATION OF ERIC FREEDMAN by placing a true and correct copy thereof in sealed envelopes as stated on the attached mailing list, BY FACSIMILE TRANSMISSION: Based on a court order or by written agreement of the parties to accept service by facsimile, I transmitted said document(s) via facsimile machine pursuant to C.R.C. Rule 2.306 to fax number at o'clock __.M. The facsimile machine I used complied with Rule 2.306 and no error was reported by the machine. Pursuant to Rule 2.306, I caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, a true copy would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. 1am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. XX | PERSONAL SERVICE (if marked with **): I caused personal delivery by of said document(s) to the addressee(s) as set forth on the attached list. BY OVERNIGHT DELIVERY SERVICE: I caused such envelope to be deposited with an overnight delivery service (Federal Express/Express Mail) for delivery the next court day, or at most, within two court days of the above date. xx | BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed on the service list. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (State) I declare under penalty of perjury under the law of the State of California that the above is true and correct. (Federal) I declare that | am employed in the office of a member of the bar of this court at whose direction the Executed March 12, 2019, at Los Angeles, California. service was made. Martha Diaz 6 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATION OF ERIC FREEDMAN oD W W J h n bh W N B O R O R O N N O N O R N R N R N e m e m e m o s s b d be m bm p m p d pe d 00 ~ 1 O h t h la W M = O O O e s ) O N t h BR WwW R Y SERVICE LIST MULLALLY v. CARBAJAL Case No. BC557084 HAND DELIVERED KLINEDINST Brian P. Murphy, Esq. Kevin J, Gramling, Esq. 777 S Figueroa St #2800, Los Angeles, CA 90017 Tel: (714) 542-1800 Fax: (714) 542-3592 Charles Parkin, City Attorney Nicholas Masero, Attorney 333 W. Ocean Blvd., 11" Floor Long Beach, CA 90802-4664 Tel: (562) 570-2200 Fax: (562) 436-1579 Nicholas. maseroi@longbeach.gov PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 3: TO PRECLUDE ARGUMENT, TESTIMONY AND EVIDENCE OF FUTURE LOSS OF EARNINGS; DECLARATION OF ERIC FREEDMAN Attorneys for Defendant; ROBERT CARBAJAL Attorneys for Lien Claimant, CITY OF LONG BEACH
