Robinson v. United States (330 F. Supp. 2d 261, 2004)

CURTIN, District Judge.

Plaintiff Charles Robinson brings this action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671, et seq., to recover money damages for injuries he claims to have sustained when he slipped and fell on a service area floor at the United States Postal Service (“USPS”) Buffalo Processing and Distribution Center, located at 1200 William Street, Buffalo, New York, on December 10,1999.

A non-jury trial was held before this court in December 2003. Plaintiff testified at trial, and offered the testimony of John B. Abram, Nancy Berry-Laporta, Charles L. Johnson, Kathleen Skeide, Richard Widmer, Gerald Tadak, Cameron Huckell, M.D., and Andrew Matteliano, M.D. Defendant offered the testimony of Niema Erving, Dawn Szezechowiak, Kenneth Murray, and Thomas Pastore, M.D. Efforts to settle after trial failed, and the court considered briefing and summations. The following constitutes the court’s findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

A. Background

There is no dispute that plaintiff slipped and fell on the service area floor of the cafeteria at the USPS William Street facility on December 10, 1999 between 12:30 a.m. and 1:00 a.m. (Tr. 84). At the time of the accident, plaintiff was an employee of the Eurest Corporation (Eurest), which provided cafeteria services at the William Street facility. However, the maintenance of the premises is the responsibility of the USPS. At the time of the accident, plaintiff had worked for Eurest at the William Street Post Office cafeteria for about two or three weeks. Before that, he had worked for Eurest at other facilities since June or July of 1998 (Tr. 322-24).

The cafeteria at the William Street facility is open 24 hours a day to postal workers only. It consists of a kitchen area used only by Eurest employees, a service area with tables where the food was laid out along the side of the room, a salad cart in the middle of the room, a cashier’s station, and beyond that tables and chairs for customers of the cafeteria. There is a door between the kitchen and the service area which had a small window at eye level, measuring approximately 2/6 feet high by 6 inches wide (see plaintiff’s Ex. 8). If a person looked through the window approaching the door, he could see someone on the other side of the door, but he could not see the floor.

In the center of the service area there is a salad cart measuring approximately 10 feet long by 4 feet wide. Beyond that and away from the door at a distance of about 15 or 20 feet is the cashier’s station. The hot service entree area was only a few feet from the door leading from the kitchen to the service area. The floor of the service area has a ceramic tile and concrete surface (Tr. 47, 78).

It was the practice of Richard Widmer and Gerald Tadak, who were maintenance employees of the Postal Service at the time of plaintiffs accident, to start mopping the cafeteria area at some time between 12:05 and 12:15 a.m. after the customers in the cafeteria area had thinned out. They followed their usual practice on the morning of December 10, 1999. At the time of plaintiffs fall, Mr. Widmer had already mopped the area near the door between the kitchen and the service area. When plaintiff fell, Mr. Widmer was on the other side of the salad cart where he could not see the door or plaintiff coming into the service area.

B. The Accident

On the night of the accident, plaintiff began work at his usual shift about midnight. Shortly thereafter, his supervisor, Niema Erving, asked him to take a case of coffee, which was stored in the kitchen, into the service area. The coffee was in a box described as 20 inches by 13 inches by 10 inches, weighing between 24 and 30 pounds (Tr. 341-42; Ex. 15). Plaintiff obtained the box from the kitchen and entered the service area, where he slipped on the wet floor and fell.

Several USPS employees were in the service area at the time plaintiff slipped and fell: Charles Johnson, Nancy Berry-Laporta, Kathleen Skeide, Richard Wid-mer, and Gerald Tadak. Eurest employee Niema Erving was also present. These witnesses testified at the trial. Their testimony with respect to their observations of the circumstances of the accident, along with that of the plaintiff, is summarized below.

1. Plaintiff Charles Robinson

Plaintiff testified that at the time Ms. Erving made a request for him to bring a case of coffee from the kitchen into the service area, she was at the cash register (Tr. 427). Plaintiff was in the kitchen “panning up bacon” (Tr. 337). He proceeded to the dry storage area in the kitchen, obtained a case of coffee, and carried it to the door. As he approached the door, he pulled the door inward while continuing to hold the box. He held the door open with his left foot and walked through it (Tr. 344-45, 433).

As he walked into the service area, he was carrying the box in both hands (Tr. 435). He took “[t]wo or three steps” into the service area, and then turned left toward the cupboard where he intended to place the coffee (Tr. 345). He testified that at that point “[his] feet just flew out from under [him], and [he] went down” (id). He did not observe the condition of the floor before he fell, and did not become aware that the floor was wet until after he fell (Tr. 347, 437, 513). It is not disputed that there were no warning signs anywhere in the immediate area at the time.

Plaintiff testified that he had been in the service area earlier in his shift, and the floor was dry (Tr. 360). As he was lying on the floor after he fell, he observed the condition of the floor and later stated that “it was like someone had put five gallons of water on the floor” (Tr. 446). His whole back and side were soaked, and his head was wet (id). He was wearing black slip-resistant hiking boots at the time. He had worn these boots at work on a regular basis, and no one ever told him the boots were not in compliance with Eurest requirements (Tr. 375-76). He had never had any other slipping incidents before while wearing them (Tr. 517).

2. Richard Widmer

Richard Widmer is a USPS maintenance employee who was on duty on the night of the accident. He and fellow maintenance worker Gerald Tadak were assigned to clean the cafeteria and service area at the William Street facility. The cafeteria and service area were cleaned every night after midnight and before 1:00 a.m., after customers had thinned out (Tr. 20, 42, 46-47, 79-80, 84).

Mr. Widmer testified that USPS maintenance procedures required “wet floor” signs to be placed in the area to be mopped prior to mopping. The signs are required to be left in place until the floors are dry (Tr. 69). It was common practice for custodians at the William Street facility to place the “wet floor” signs at the general entrances and exits to and from the service area of the cafeteria, but not within the service area itself (Tr. 42-44). The mopping procedure involved dispensing water and cleaning solution into the bucket (in the “slop room”), wheeling the bucket and mop to the area to be cleaned, placing the mop in the bucket, and “wringing] it out good” before mopping in a “circle 8” (Tr. 47-48, 69).

At the time of the accident, Mr. Widmer had already mopped the area near the door where plaintiff later fell (Tr. 54-56). Mr. Widmer testified that the condition of the floor in that area was “damp” (Tr. 55). He was mopping the floor in the middle of the service area, between the movable salad cart and the stationary beverage counter, when he heard a sound “like a body hitting the ground” (Tr. 30, 33-34; Ex. 12). He did not see plaintiff fall (Tr. 30). Mr. Widmer walked to his right, around the salad cart, and saw plaintiff lying on the floor, turned to the right and more or less up on his right elbow (Tr. 60-61, 80). Plaintiffs clothes did not appear to be wet (Tr. 81-82). Mr. Widmer asked plaintiff if he was okay. Plaintiff “seemed to be okay, except for rubbing his arm, he hurt his elbow” (Tr. 62). Mr. Widmer “apologized for the mopping, but not that [he] did anything wrong” (Tr. 81), and went back to work.

3. Charles Johnson

Charles Johnson, a USPS employee, was in the service area on the night of the accident (Tr. 93-94). He usually started work at 11:30 p.m., and went to the cafeteria to get coffee between 12:20 and 12:40 a.m. (Tr. 103). USPS maintenance personnel were usually in the cafeteria area when Mr. Johnson got his coffee (Tr. 105, 114).

On the night of the accident, between 12:20 and 12:40 a.m., Mr. Johnson entered the service area, got a cup of coffee, and proceeded to the cashier’s station (Tr. 95, 103, 115,116). He did not notice any signs posted at the cafeteria entrance, although he had observed “wet floor” signs there on previous occasions (Tr. 95-96). As Mr. Johnson entered the service area, he noticed that the entire floor of the service area was “very wet” (Tr. 97, 100). There was more water on the floor than he had observed on other occasions (Tr. 100-01). He changed his manner of walking because he was concerned he would slip and fall on the wet floor (Tr. 99).

After he got his coffee, Mr. Johnson walked to the cash register, but there was no cashier (Tr. 95, 106). While he was waiting at the cash register, he saw Kathy Skeide and Nancy Berry-Laporta at the hot entree area (Tr. 101, 115). As he turned to speak to them, he saw the door from the kitchen open and he saw a person come into the service area carrying a box (Tr. 106-07). The person’s elbows were bent, and the box was being carried at chest height (Tr. 118-19). The person was later identified to him as plaintiff (Tr. 108).

Mr. Johnson testified that he did not see plaintiff fall (Tr. 119, 120-21). He heard a “thud,” and one of the women screamed, “oh my God” (Tr. 121). Mr. Johnson set his coffee on the counter and proceeded to where plaintiff had fallen, taking “baby steps” because the floor was slippery (Tr. 109-110). Plaintiff was kneeling, trying to get up. Mr. Johnson grabbed him under his arm and helped lift him up (Tr. 109). When Mr. Johnson asked plaintiff if he was okay (Tr. 109), plaintiff replied that he was and brushed himself off (Tr. 122, 127). Mr. Johnson noticed that the floor in the area where plaintiff fell was “very wet” (Tr. 110,117).

4. Kathleen J. Skeide

Ms. Skeide is employed by the USPS as a sorting clerk. Her hours of work in December 1999 were 10:00 p.m. to 6:30 a.m. (Tr. 131-132). It was her general routine to go to the cafeteria at about 12:30 a.m. with her friend, Nancy Berry-Laporta, to get something to eat (Tr. 133, 152). She would often see custodians mopping the floor of the service area around 12:30 a.m. (Tr. 152), but never noticed any “wet floor” signs (Tr. 134).

Ms. Skeide testified that when she entered the service area with Ms. Berry-Laporta on December 10,1999, she noticed that the floor was wet (Tr. 135). She did not see any warning signs. She walked to the “grill area” where the hot entrees were served. She changed her normal way of walking because of the wet floor (Tr. 137). She walked lighter on her feet and more slowly to avoid slipping and falling (Tr. 136,153).

Ms. Skeide testified that while she and Ms. Berry-LaPorta were standing in the grill area, she saw plaintiff come through the door to the kitchen area holding a box with both hands in front of his body. She could see the door peripherally because it was very close to the grill area. She identified the box entered in evidence as Exhibit 15 as similar in size to the box carried by plaintiff. She saw plaintiff slip and fall almost immediately after he entered the service area. He fell hard, landing on his back. Ms. Skeide said, “oh my God,” and both she and Ms. Berry-Lapor-ta turned around and observed plaintiff lying on his back with his head about one or two feet from the door (Tr. 140-45). Ms. Skeide marked the location of plaintiffs head and feet in green marker on Exhibit 12 (Tr. 154).

5.Nancy Berry-LaPorta

Nancy Berry-Laporta is employed by the USPS as a mail processor. In December 1999, her work hours were 7:50 p.m. to 4:20 a.m. Her usual routine was to take a lunch break with Ms. Skeide at about 12:30 a.m. At that time, she would normally see maintenance workers mopping the floor of the service area, but she never saw any “wet floor” signs, and she saw none on the night of the accident (Tr.166-68, 171-72, 182-83).

Ms. Berry-Laporta testified that on the night of the accident, she saw a custodian in the service area when she walked in (Tr. 175). She walked to the right side of the salad cart and proceeded to the grill area. She noticed right away that the floor was wet, so she tiptoed (Tr. 167). Her path of travel is marked in orange on Exhibit 12. She circled in orange the location where she and Ms. Skeide were standing when plaintiff fell (Tr. 183).

While Ms. Berry-Laporta was standing at the grill area, she heard a “loud thud” and turned to see plaintiff a couple of feet away, “on the floor on his back end” (Tr. 176-77). She did not see plaintiff come through the doorway or fall (Tr. 177, 187-88). She noted the location where plaintiffs feet came to rest with blue pen on Exhibit 12 (Tr. 171). She asked plaintiff how he was, and he said he thought he was all right (Tr. 188).

6. Gerald Tadak

Gerald Tadak is a retired maintenance employee of the USPS. On the evening of the accident, he was cleaning in the seating area of the cafeteria (Tr. 214-17). He did not see the accident, and he did not know the condition of the service area floor at the time plaintiff fell (Tr. 231).

Mr. Tadak testified that USPS procedures required the placing of “wet floor” signs at the three areas of public access to the service area during floor maintenance, but not on either side of the doorway leading to and from the kitchen (Tr. 218-21). He also testified as to the proper procedures for “damp mopping,” which was the process he and Mr. Widmer employed on the night of the accident (Tr. 229-30). At some point prior to the day of the accident, Mr. Tadak had suggested to the cafeteria manager that the cafeteria should be closed for half an hour during floor maintenance, but the suggestion was never implemented (Tr. 232-33).

7. Niema Erviny

Niema Erving testified as a witness for defendant. Ms. Erving is an employee of Eurest Corporation. On the night of the accident, she was working as night supervisor and cashier. In the course of her duties, she operated the cash register and supervised plaintiff and other Eurest employees as they prepared food on the menu. She was familiar with the USPS maintenance routine for cleaning the cafeteria, which usually occurred between 12:30 and 1:30 a.m. and included mopping the floor (Tr. 274-76).

Ms. Erving testified that at some point during the night of the accident, she asked plaintiff to get her a case of coffee from the storage area (Tr. 278, 314-15). At trial, she did not recall where she was when she made this request (Tr. 279), but at her deposition she indicated that she was in the storage room and plaintiff was in the kitchen when she asked him to get the coffee (Tr. 317). At the time plaintiff fell, she was standing near the cashier’s station, indicated by the pink box located at the center bottom of Exhibit 12 (Tr. 277, 314-15).

As plaintiff entered the service area with the box of coffee, Ms. Erving was at the cash register, facing him. Ms. Erving saw him come through the door carrying the box in front of his body, and she saw him take five to six steps before he slipped and fell. She saw him fall into a sitting position. She “heard a big thud” and “actually felt it” when he hit the ground (Tr. 305). His neck, back, and head did not hit the ground, and his feet did not flip over his head (Tr. 281-84). She was unsure whether he struck any other parts of his body (Tr. 299).

Ms. Erving testified that she immediately went over to plaintiff after he fell. The floor was wet between the cashier’s station and the area where Robinson fell, and Ms. Erving changed her normal way of walking because she was concerned about falling (Tr. 282-84). She described the floor in the area where plaintiff fell as being “very wet” (Tr. 308).

USPS Maintenance Supervisor John Abram and Eurest Food Service Director Dawn Szczechowiak also testified at the trial. Their testimony is summarized below.

8. John Abram

Mr. Abram testified on behalf of plaintiff. At the time of plaintiffs accident, Mr. Abram held the position of Supervisor of Maintenance Operations. His duties included supervising custodial employees and investigation of employee incidents. He is currently retired (Tr. 240-42).

Mr. Abram learned of plaintiffs accident at approximately 2:00 a.m. on December 10, 1999, when he received a telephone call from the Manager of Distribution Operations. Mr. Abram’s investigation included interviews of plaintiff, Mr. Johnson, the custodians, and the Health Unit nurse (Tr. 242-43). He also filled out various accident report forms, including an “Injury Management” form (Ex. 25; Item 54, Ex. E), and an “Accident Analysis Report” (Ex. 23; Item 54, Ex. F).

On the Injury Management form, Mr. Abram indicated that plaintiff “[f]ell on the wet floor in the service area of the cafeteria” (Tr. 247), and suffered “cervical and back strain, contusion of right elbow” (id.). On the Accident Analysis Report, Mr. Abram listed “Management Factors” contributing to the accident as “no warning sign posted inside door” to the service area, and “kitchen help allowed to work during cleaning” (Tr. 252). With regard to “Employee Factors” contributing to the accident, Mr. Abram listed “unfamiliar with cleaning routine,” and “no sign posted at door” (id.).

During his interview, which took place a few days after the accident, plaintiff told Mr. Abram that he had fallen down and hurt his right side. When Mr. Abram asked him how he was doing, he said he was okay, and that he was “a little sore” (Tr. 263-65).

9. Dawn Szczechowiak

Dawn Szczechowiak is employed by Eu-rest Dining Service as the food service director for Eurest at HSBC. In March 2001, she was food service director for Eurest at the William Street facility when plaintiff returned to light duty work. Pri- or to that time, she had no contact with him (Tr. 554-55).

She testified that she is familiar with the layout of the cafeteria and service area having worked there, on and off, for 15 years. She was very familiar with the door between the service area and the kitchen. She said that in order to open that door from the kitchen side of the door, one must pull the handle down and pull the door to open it. She identified Exhibit 15 as a box of “World’s Finest Coffee,” which has been used by Eurest “forever” (Tr. 557). It weighs approximately 24 pounds (Tr. 556-58).

Plaintiff called Ms. Szczechowiak in March 2001 to inform her that he had been medically cleared and was ready to return to work. She advised him that he would need to bring a doctor’s note explaining any limitations placed on his work activity. Based on that information, Ms. Szczechow-iak restricted plaintiff to six-hour workdays and lifting no more than 25 pounds, which was 5 pounds less than what his doctor recommended (Tr. 558-61).

C. Treatment

Plaintiffs medical records reveal that he reported to the post office health unit at 1:00 a.m. on December 10, 1999, a short time after the accident. He told the nurse that he had fallen on a wet floor, striking the back of his head, his right posterior back, and his right arm. He said that his back was stiff, that he had limited motion in his right arm, and complained of stiffness and a burning sensation in his neck (Ex. 78-S, attached as Appendix to Item 56). He was taken to Sisters Hospital for further examination, which revealed that his neck was supple, tender over the cervical spine and right lateral neck. He had a small bruise over his right elbow and normal range of motion with tenderness. His back was tender over the right scapular border, but with normal range of motion and a normal straight leg raise. He told the nurse that he had a headache, but had no blurred vision. He complained of pain in his right elbow, between the shoulder blades, and in his back (Ex. 75-S [Item 56 Appx.] pp. 2-4).

X-rays of his cervical spine taken on the morning of the accident revealed degenerative disc disease at C5-6 with disc space narrowing and vertebral spurring. There was no evidence of fracture or subluxation {id. at p. 6). Plaintiff was told that he could return to light duty work that day, and that he could resume regular work on December 11, 1999. He was also instructed to follow up with Corporate Health Services {id. at p. 5).

Plaintiff was referred to Healthworks for physical therapy. On December 20, 1999, he completed a Rehabilitation Department past medical history sheet, which included a drawing of the human body upon which he indicated that he had pain in his neck, his middle and lower back, his elbow, and his right leg from hip to the thigh {id. at p. 24). He stated, “I have pain burning down my leg, my low back hurts, I have a shooting pain between my shoulder blades and I can only lift my arms so far without pain” {id. at p. 11). He made no mention of numbness or tingling in his arms. He continued to work.

He returned to physical therapy on December 27, 1999, at which time he was referred for back therapy three times a week for three weeks {id. at p. 14). He testified that one of the doctors at Health-works told him that he ought to see an orthopedic specialist (Tr. 361). He can-celled his appointment for therapy on January 11, 2000, and instead went to see Dr. Cameron Huckell on January 5, 2000.

Dr. Huckell is an orthopedic surgeon specializing in spinal problems. He saw plaintiff on several occasions between January 2000 and October 2001, when he referred plaintiff to Dr. Andrew C. Matteliano. Dr. Matteliano is a physia-trist specializing in physical medicine and rehabilitation. He saw plaintiff on several occasions between October 2001 and November 2002.

Plaintiff was also examined by Drs. Thomas E. Pastore and Kenneth E. Murray, on behalf of defendant. Dr. Pastore is retired from his practice as an orthopedic surgeon. He saw plaintiff twice, once in September 2000 and again in February 2002. Dr. Murray is a clinical neurologist who saw plaintiff on one occasion in April 2002.

All of these treating and examining physicians testified at trial. Because of its bearing on the ultimate issues to be determined by the court, the testimony of these physicians is set forth in considerable detail below.

1. Cameron B. Huckell, M.D.

Dr. Huckell attended medical school at McGill University in Montreal, Canada, receiving his degree in 1985. He completed a surgical internship at Montreal General Hospital, and was accepted into the orthopedic residency program at the University of Toronto in 1986. He completed his residency in 1992. He also completed a six-month fellowship in spine surgery, received further training in his speciality in Switzerland and France, and spent one year in advanced spinal training at Johns Hopkins University in Baltimore, Maryland. In 1993, after seven years of study, he came to Buffalo. He restricts his practice to spinal issues (Tr. 743-46).

Dr. Huckell first saw plaintiff on January 5, 2000. Plaintiff reported that he had slipped on soapy water while carrying a 30-pound package of coffee at work. His feet went out from under him, and he fell flat on his back. He stated that he twisted and strained both his neck and middle and low back, and that he had been experiencing severe lower neck and mid-thoracic ache ever since (T. 748-49). He had no spinal problems before the accident, and had never previously seen a doctor or chiropractor for his spine (Tr. 750). He reported that since the accident, he had experienced some permanent numbness in his right small ring and long fingers, as well as low backache shooting into the front and inside of his right thigh. He also reported moderate mid-thoracic pain. His main pain was in the neck and mid-back. He reported that he was having a hard time working 24 hours per week, even with light duty activities. He had no difficulty with the control of bowel or bladder function and no numbness in the genital area (Tr. 751-53).

Physical and neurological examination revealed that plaintiff was generally fit, but he had 25 percent reduced range of motion and forward bending in the lumbar spine. He had some numbness to light touch in the right ring, long, and small fingers, indicating some sensory nerve dysfunction. This usually results from compression or alteration in the function of one of the nerves coming out of the neck (Tr. 754-55).

X-rays of plaintiffs lumbar, cervical, and thoracic spine taken on January 5, 2000 showed mild lumbar degenerative disc disease from L2 to L5. There was some disc space narrowing and some early bone spurs, which Dr. Huckell termed as marginal osteophytes. There was also disc degeneration with disc space narrowing at C5-6, indicating moderate-to-severe degenerative disc disease accompanied by posterior marginal osteophytes throughout the thoracic spine (Tr. 755-57).

Dr. Huckell’s impression was that these findings were normal for a man of plaintiffs age. He concluded that plaintiff had suffered a disc and ligament strain injury as a result of the December 10, 1999 accident, and ordered MRIs at all spinal levels to rule out disc herniation or annular disc tear. Based on plaintiffs report of an intolerable level of pain when twisting, turning, or doing heavy lifting, and difficulty tolerating even light duty, Dr. Huckell took him out of work (Tr. 757).

The MRIs were taken in February 2000 at Physicians Imaging Center, which employs state-of-the-art 1.5 Tesla magnetic imaging. The MRI report, dated February 9, 2000, was provided by Dr. Lawrence Rand, a board-certified radiologist. Dr. Huckell reviewed Dr. Rand’s report, and also viewed the MRI films (Tr. 758-63).

Dr. Huckell testified that the MRI of the thoracic spine (where the ribs are attached) showed disc bulge and degeneration at both T7-8 and T8-9, indicating herniation and drying out of the discs. These are abnormal findings. The MRI of the lumbap spine (lower back) showed disc herniation causing a pinching of the nerve roots at L3 and L4. According to Dr. Huckell, these findings matched plaintiffs complaints of anteromedial thigh pain. The cervical MRI showed advanced C5-6 degeneration with a disc herniation and mild pressure on both C6 nerve roots (Tr. 764-66).

Plaintiff was seen at Dr. Huckell’s office on March 29, 2000 by Kelly McKee, a physician’s assistant. Ms. McKee noted the results of Dr. Rand’s MRI report. She also examined plaintiff. He indicated that his worst pain at that time was in the mid-thoracic region, followed in intensity by neck and lower back pain. Numbness in the fingers and pain in the right anter-omedial thigh were also still present (Tr. 766-67).

Plaintiff was next seen by Dr. Huckell on April 27, 2000. He reported chronic and persistent neck, back, leg, and arm pain. He was walking in a slightly stooped-forward position. People with lumbar spinal narrowing will often walk in this manner because it opens up the tunnel a little bit and will relieve discomfort. Dr. Huckell noted limited motion with positive MRIs showing disc problems in the neck and mid- and lower back, and some degree of stenosis (narrowing). Dr. Huckell found plaintiff to have a temporary partial disability of marked severity. He noted that plaintiff was starting physical therapy, which Dr. Huckell hoped would improve his condition (Tr. 767-69).

On July 27, 2000, plaintiff reported that therapy was making him worse. According to Dr. Huckell, this is not an uncommon complaint for people with Robinson’s injuries. Upon examination, plaintiff showed reduced truncal mobility and reduced range of motion from the previous visit. He also had weakness in his right grip, which Dr. Huckell rated at plus four. He had plus five in the left grip, which is normal. Plus four is reduced from normal, but able to withstand gravity. Plaintiff reported severe pain that did not appear to be responding to conservative treatment. He had some trouble getting dressed and he could not sit or stand for a long period of time. Dr. Huckell referred him to a chiropractor to see if it might help, but told him that if it did not help he should not continue (Tr. 769-773).

In November 2000, plaintiff reported that he went to a chiropractor, but it did not help. He reported that his thoracic spine hurt him the most. Dr. Huckell discussed with plaintiff the possibility of performing thoracic surgery, but he did not strongly recommend it because it requires a very extensive incision to correct problems at that level, and the success rate is only 50 to 60 percent. Plaintiff told Dr. Huckell he wanted to get back to the way he was, and Dr. Huckell responded that he did not think surgery would get him there (Tr. 773-75).

Upon examination, plaintiff showed limited range of motion in his neck and mid- and low back, 50 percent of normal. A straight-leg-raising test was positive for nerve root irritation on the right leg at 60 degrees, and negative on the left leg. According to Dr. Huckell, plaintiff had a moderate-to-marked permanent disability-due to his cervical, lumbar, and thoracic spinal condition which was caused by the accident of December 10, 1999. He thought that plaintiff would be a good candidate for VESID training (Tr. 775-77).

When plaintiff saw Dr. Huckell on March 22, 2001, he reported that he was on light duty and was tolerating it, but he still had low back pain radiating down his legs, the right side greater than the left, and he had some slight tingling in his hands. Dr. Huckell instructed him to limit his bending, stooping, crawling, reaching, and twisting. He was also instructed not to lift more than 30 pounds, and not to sit, stand, or walk greater than two hours at any one time. Dr. Huckell limited plaintiff tó a six-hour work day. He prescribed Motrin and Robaxin, a muscle relaxer (Tr. 777-78).

Plaintiff next saw Dr. Huckell on May 22, 2001. He reported that on May 16, he was kneeling behind a doorway when someone opened the door quickly and knocked him over onto his shoulder and arm. Since that incident he had increased pain in the middle of his back. He was still working at light duty. Dr. Huckell ordered further MRIs to see if there was any aggravation of plaintiffs condition. He reported that the new incident may have slightly exacerbated plaintiffs preexisting condition from December 1999, and his level of disability remained moderate to marked. He recommended that plaintiff retrain to a permanent light-duty position (Tr. 779-80).

At the July 10, 2001 visit to Dr. Huckell, plaintiff told him that he was basically doing his old job and not getting much help with the heavy lifting, resulting in exacerbation of his condition. Dr. Huckell noted reduced range of motion in the neck, mid-, and low back. Reflexes were normal, with some finger numbness. His symptoms were well controlled by reduction of activity and light duty. Dr. Huckell again recommended retraining for a permanent light-duty position, and new MRIs (Tr. 781-85).

Plaintiff last saw Dr. Huckell on October 18, 2001. He reported that his mid-back bothered him most, followed by low back, and then neck. Upon physical examination, plaintiff showed equal reflexes, with difficulty moving from a seated to standing position. Straight-leg testing was positive on both the right and left. Dr. Huckell noted that plaintiff had tried to return to his previous occupation as a cook, but was unable to continue with that work because of severe-to-excruciating pain in the neck, mid-back, and low back. He also noted that plaintiff found his symptoms tolerable, and was not interested in surgical intervention. He recommended VESID training, and referred him to a physiatrist for non-surgical pain management (Tr. 785-87).

Dr. Huckell again stated that the injury of December 1999 caused plaintiffs present condition. He stated his opinion that plaintiff will eventually need surgery on his neck, where the spinal cord shows some plastic deformation and where there is evidence of nerve function problems causing weakness in his hand and numbness in his fingers. He stated that he would expect surgery to be necessary within five to fifteen years, and estimated the cost of the surgery at about $20,000 in present day dollars. He also gave the opinion that plaintiffs condition was permanent, and would slowly worsen over time. He further stated his opinion that plaintiff did have preexisting degenerative changes in the spine at the time of the fall. He concluded that plaintiff would require medications similar to those he was presently taking for the rest of his life (Tr. 787-92).

On cross-examination, Dr. Huckell testified that plaintiff was referred to him by his Workers’ Compensation attorneys, Sawyers and Sackell. Dr. Huckell accepted plaintiffs history that he had no prior back pain before the December 1999 accident as true, and that history was critical in determining the cause of his herniated discs. Plaintiff did not tell Dr. Huckell, however, about an automobile accident he was involved in when he was a teenager, or that he had plastic surgery to his face. He did not tell the doctor that he heard a pop in his back at the time he fell, and he said he fell flat on his back (Tr. 792-97).

Dr. Huckell testified that at the first visit, plaintiff told him that he had numbness in his right small ring and long fingers since the accident but did not mention numbness in his left side. Dr. Huckell did not check the records from Sisters Hospital or check the range of motion of the cervical spine. He did not know whether plaintiff had any range of motion limitations at the time of the accident. Dr. Huckell did not perform a straight-leg-raising test, and there was no indication of any pain or sensory problem in his legs or any indication of muscle spasm. He did test biceps strength, and the results were normal (Tr. 798-800).

Dr. Huckell testified that he ordered x-rays and looked at them on the day of the first examination. He also ordered MRIs, which were taken later. The x-rays revealed that plaintiffs lumbar spine was within normal limits. There were mild degenerative changes at L2 to L5, but this finding was not unusual for someone his age. The thoracic spine x-ray was likewise normal. Dr. Huckell testified that he probably did not review the x-ray of the cervical spine that was taken at Sisters Hospital on the night of the accident, but any degenerative changes revealed at the time of those x-rays, as well as those revealed in the x-rays taken a month later, would have been preexisting prior to the accident. He agreed that a significant minority of persons plaintiffs age would have similar findings (Tr. 801-03).

When plaintiff returned to Dr. Huckell’s office on March 29, 2000, the pain was worse in his thoracic region. He also complained of low back pain radiating into his right thigh. Dr. Huckell recommended conservative treatment consisting of physical therapy. The doctor told him to try therapy, and if it didn’t work, he should stop. He also recommended that he see a physiatrist, but plaintiff did not see one until November 2001 (Tr. 803-05).

Dr. Huckell testified that based on the MRIs alone, he could not tell whether the herniations that were found in plaintiffs spine were caused by the December 10, 1999 accident. He said that plaintiffs history relating that he had no symptoms of herniated discs before the accident was a very important factor in this determination, and it was possible that the herniated discs existed prior to the accident (Tr. 806).

When Dr. Huckell next saw plaintiff on April 27, 2000, he reported that he had neck, mid-, and low back pain and was neurologieally intact. He also reported persistent leg and arm pain, without noting on which side. Plaintiff had started physical therapy, which was recommended to help strengthen muscles, but physical therapy cannot reverse a herniated disc. Dr. Huckell noted that plaintiff walked in a slightly stooped position, but this was the only time that he noticed this limitation for at other times he had a normal gait (Tr. 806-08).

In July 2000, plaintiff said that he had completed two months of physical therapy, but was not getting any pain relief. He was concerned the therapy was making him worse. Dr. Huckell had received an initial evaluation, dated April 27, 2000, from physical therapist Julie Perry, connected with Western New York Ortho-paedic and Spine Therapy. Ms. Perry indicated that the plan was for plaintiff to be seen twice a week. The goals were to decrease his complaints of pain, to increase his cervical range of motion, and to resume the activities of daily living with minimal pain. Ms. Perry reported that plaintiff had attended only three of eight sessions and that his poor attendance had affected his progress in physical therapy. Her opinion was that he could benefit from physical therapy if he attended consistently. Forms from Western New York Or-thopaedic showed that plaintiff had six no-shows between June 20 and July 20, 2000, when he was discharged from the physical therapy program (Tr. 809-14).

On July 27, 2000, Dr. Huckell referred plaintiff to a chiropractor. When Dr. Huc-kell saw plaintiff again on November 2, 2000, he reported that he had tried chiropractic treatment but did not get any benefit. Dr. Huckell never spoke to plaintiffs chiropractor, and never received a chiropractic report (Tr. 815).

At the November 2000 visit, Dr. Huckell noted that plaintiffs most symptomatic problem continued to be the thoracic spine, but there was no obvious paraspinal muscle spasm at that time, and he was neurologically intact. He had noted in July that plaintiff showed some reduced grip strength, but this was the only time that this was reported. At no time did plaintiff appear to have any trouble getting up and down from the table or getting dressed or undressed (Tr. 817-19).

Dr. Huckell discussed surgery with plaintiff, but he did not recommend it as a treatment option because he thought the risks outweighed the benefits. Plaintiff did not appear to be interested in proceeding with surgery in any event. Dr. Huc-kell recommended on several occasions that plaintiff be retrained through VESID, but he did not know whether plaintiff followed that recommendation (Tr. 819-20).

When Dr. Huckell next saw plaintiff in March 2001 plaintiff, said that he had returned to light duty work and was tolerating it. He also said that he had low back pain radiating down his legs, greater on the right than on the left. This was a subjective complaint, but it roughly matched the corresponding nerve roots where there was evidence of pinching. He also complained of occasional tingling in his hand, but he found the symptoms tolerable. There was no indication of numbness, range of motion, or muscle spasms. Dr. Huckell told him that he could continue working with his previously noted limitations (Tr. 820-23).

On May 15, 2001, plaintiff called Dr. Huckell’s office leaving a telephone note with Dr. Huckell’s secretary that he had injured his back at work on the previous night, when a door slammed on him. Dr. Huckell saw plaintiff at his regularly scheduled appointment seven days later, on May 22. Plaintiff said that he was kneeling behind a doorway when someone opened the door and knocked him over on his shoulder and arm, and it jarred his back and neck. He said he had increased thoracic spine pain, which had always been his most serious complaint. Dr. Huckell did not render any treatment at that time, but noted that he would order repeat MRIs if the pain continued during the next six weeks (Tr. 823-27).

When Dr. Huckell saw plaintiff on July 10, 2001, plaintiff said that he had tried to go back to light duty work, but when he went back to his old job he was given no help with vigorous activities. He told the doctor that his symptoms were more tolerable since he had stopped working. Dr. Huckell noted that plaintiff was neurologically intact, with some reduced range of motion, some bilateral paraspinal muscle spasms, and some finger numbness. He ordered repeat MRIs (Tr. 827-29).

The second set of MRIs taken at Seton MRI were “blunder” than the original MRIs from Physicians Imaging. When Dr. Huckell reviewed both sets at one time in preparation for his deposition, he found no fundamental difference between them, although the radiologist’s review of the Seton MRIs sounded worse than the report from the Physicians Imaging MRIs. Dr. Huckell thought that the first report underreported the results, and the second overreported. Based on his review of the films, the results were essentially the same (Tr. 829-31).

At the last visit with Dr. Huckell in October 2001, plaintiff reported that he had severe-to-excruciating pain in all parts of his back while working. Dr. Huckell again told him he was a good candidate to be retrained by VESID, but he does not know whether plaintiff ever contacted VE-SID (Tr. 831-32).

Dr. Huckell repeated that plaintiff had preexisting degenerative disc disease. He said that in most people, this disease slowly worsens over time, and there are some who do not have accidents who become symptomatic without any apparent cause (Tr. 833-35).

Dr. Huckell testified that thoracic pain can sometimes be caused by a neck condition. This is called “referred pain.” He suggested that the risks of thoracic surgery outweighed the benefits for plaintiff because the surgery is quite involved and dangerous. It involves taking out a rib, collapsing the lungs, moving the lungs and heart over to the side, removing the disc, putting in bone, putting in screws, and the lungs end up being adjacent to where all these instruments are. Dr. Huckell reserves this type of surgery for someone who is facing paralyzation from a disc herniation, or who has such severe pain that they cannot function in any reasonably tolerable way (Tr. 836-38).

Finally, Dr. Huckell explained that it was not unusual for people with multi-level disc herniations to be unable to tolerate physical therapy due to pain. Therapy is designed to strengthen the muscles supporting the spine, and if the therapy is going to do any good at all, it is best to continue with a regular course (Tr. 840-43).

2. Andrew C. Matteliano, M.D.

Dr. Matteliano is a Board certified specialist in rehabilitation and physical medicine. He completed medical school at the State University of New York Upstate Medical Center in Syracuse, and completed postgraduate training at the University of Buffalo. Physical medicine deals with musculoskeletal injuries, amputation, fractures, burns, stroke-related injuries, spine injuries, and head injuries. The majority of his caseload is musculoskeletal and spine-related. He also does shoulder rehabilitation and some head injury cases. He works mostly in consultation with spine surgeons, performing electro-diagnostic work, EMG, and nerve conduction velocity studies (Tr. 620-24).

Dr. Matteliano first saw plaintiff on November 6, 2001, on referral from Dr. Huc-kell for non-surgical case management. Plaintiff related his case history, stating that he was carrying a 30-pound package when he slipped on soapy water on the floor, his feet came out from under him, and he landed on his spine. He had low back pain with a burning quality down the right lower extremity, as well as neck and mid-back pain, with some numbness and muscle spasms. He had numbness in the fingers of his right hand and complained of a pressure-like sensation between the scapula. Doctor Matteliano did not find any spasms and plaintiffs reflexes were normal. At that time, he was not working. He said that he tried to return to light duty work, but the work was not light duty and he could not continue. He was using Motrin and muscle relaxants as well as other pain medication (Tr. 624-28; 695-99).

As of November 6, 2001, straight-leg-raising tests showed no evidence of impingement on the nerve roots of the lumbar spine. He had tenderness in the lower back area upon palpation' — i.e., when the doctor felt his back. Dr. Matteliano did not know what plaintiffs ability to bend was, or what his range of motion of the cervical spine was, before the accident (Tr. 704-07).

Dr. Mattelliano reviewed plaintiffs MRI films. The Physicians Imaging MRI of the cervical spine showed advanced disc degeneration at C5-6 with bilobar disc herniation and pressure against both C6 nerve roots. Bilobar herniation is sometimes referred to as “dumbbell” herniation. It is bigger on the edges where the nerve roots are and skinnier in the middle (Tr. 628-30).

The MRI of the thoracic spine shows a small central to right paracentral T7-8 disc herniation, and a bulge at the T8-9 level; that of the lumbar spine shows an L4-5 disc degenerative change, with a small left lateral foraminal disc herniation, bilateral L4-5 stenosis of the foramen, and a small left lateral extraforaminal L3-4 disc herniation (Tr. 631).

Upon examination, Dr. Matteliano found plaintiffs reflexes to be normal. He had C6 sensory loss on the right side, and tap testing showed irritation of the peripheral nerves in his right wrist. He had neck tenderness most prominent at the C5 and C6 level. Neck turning was 50 to 60 degrees, while normal is 90 degrees. Side bending was short by 20 degrees(one-half), and painful. Neck extension-ie., looking straight up at the ceiling-was short by 20 degrees (one-third). There was diffuse tenderness in the shoulder blades, particularly on the right side. Side bending and trunk turning were restricted by one-third, and painful. These findings were all consistent with the disc injuries shown on the MRIs (Tr. 634-38).

Examination of the lower back revealed a reduction of the normal lumbar lordosis, which is the inward curve in the lower back. Forward bending was 60 degrees. Normal is 90 degrees. Extension testing, or backward bending, was 15 degrees. Normal is 30 degrees. Straight leg-raising was negative bilaterally, indicating no pain or numbness (Tr. 639-42).

Dr. Matteliano’s impression was that plaintiff was status post-fall, with injuries to his cervical, thoracic, and lumbosacral spine. There was also soft-tissue disruption. He repeated his findings with respect to disc herniations and stenosis. He put in a request for EMG testing, which is a study of nerve conduction velocity, but no EMG testing had been done at the time of trial. Dr. Matteliano said that Workers’ Compensation refused the testing. In his opinion, plaintiff had a moderate-to-marked partial permanent disability as a direct result of his injuries. He limited plaintiff to light duty work only, with no significant lifting of more than 10 to 15 pounds on a repetitive basis (Tr. 642-48).

During his testimony, Dr. Matteliano reviewed the Physicians Imaging MRIs, pointing out the disc herniations in plaintiffs cervical, thoracic and lumbar spines, as well as related nerve encumbrances (Tr. 649-656). He testified that these findings were consistent with a person slipping and falling on a wet floor and, depending on where they are located, even small disc herniations can be very painful (Tr. 656-58).

He saw plaintiff again on November 29, 2001. His diagnosis did not change. Most of plaintiffs complaints related to the neck and lower back, and not the thoracic region. Dr. Matteliano recommended additional physical therapy, which he said generally helps patients stay more flexible and sometimes reduces symptoms. There was no notation in the report about any radiating pain from the low back into the legs. He did not perform the leg-raising test. Throughout the time of Dr. Matteliano’s supervision, the range of motion in plaintiffs cervical and lumbar spine has remained about the same (Tr. 707-10).

On January 10, 2002, plaintiff reported neck tenderness upon turning, with radiation into the shoulders. There was no indication in the report with respect to thoracic pain, numbness in the hands, or pain radiating into the legs. On February 14, 2002, plaintiff reported pain in his low back and neck. He did not mention tenderness in his mid-back. At that time, Dr. Matteliano noted numbness and tingling in the fingers, consistent with herniated cervical disc at C5-6 with nerve root irritation. He felt that plaintiff needed to continue with diagnostic testing and physical therapy, although it was difficult to predict whether someone with similar injuries would have success with either therapy or chiropractic treatment (Tr. 662-64). On April 23, 2002, he reported pain in his low back, mid-back, and neck, with numbness in both hands. There was no indication of pain radiating into his legs. Plaintiffs complaints, and Dr. Mattelliano’s findings, were similar at office visits on June 4, August 9, October 1, and November 21, 2002. Dr. Matteliano agreed that plaintiffs condition had remained essentially the same since the time he started treating plaintiff in November 2001 (Tr. 710-19).

Dr. Matteliano disagreed with the findings of the government’s examining physician, Dr. Pastore, who stated after examining plaintiff in February 2001 that he did not need further treatment (Tr. 662). When Dr. Matteliano saw plaintiff in April 2002, he noted continuation of numbness and tingling in both hands. He continued to restrict plaintiff to light duty at work, with moderate-to-marked partial permanent disability as a result of his injuries. He sent paperwork to the VESID program to assist plaintiff to enter the program (Tr. 664-66).

Dr. Matteliano stated that plaintiff is going to need medications on a permanent basis as the result of the injuries caused by the fall. He testified that, in his opinion as a physiatrist, plaintiff had some preexisting degenerative changes which may have been nonsymptomatic prior to the fall, but his cervical, thoracic, and lumbar spine injuries were causally related to the December 10, 1999 incident (Tr. 666-72). He believed the cervical disc herniation would worsen over time, and would eventually require surgery “at some point in the future” (Tr. 674). One level cervical surgery, with minimal aftercare, would cost approximately $20,000. According to Dr. Matteliano, the risk of thoracic surgery outweighed the benefits, and it was not clear whether plaintiff would require lumbar surgery in the future (Tr. 674-77).

On cross-examination, Dr. Matteliano testified that over the past 15 years, he has treated and testified on behalf of more than 100 patients who were represented in litigation by the law firm representing plaintiff. He testifies about 10 times per year, primarily on behalf of plaintiffs. His speciality is physical medicine and rehabilitation, and he has no training or experience as a neurologist, orthopedic surgeon, or radiologist (Tr. 678-80).

Plaintiff was 48 years old at the time Dr. Matteliano first examined him in November 2000. According to Dr. Matteliano, the majority of 48-year-old people do not have back pain. However, he agreed that people who do heavy labor are more likely to have episodes of back pain, and more likely to develop degenerative disc disease. He was unaware of plaintiffs work history before his job with Eurest (Tr. 680-84).

Plaintiffs records from Sisters Hospital dated December 10, 1999 indicated a small bruise over the right elbow and normal range of motion without tenderness. There was tenderness over the right scapular border. Straight-leg raising was normal. Dr. Matteliano did not review the x-rays taken either at Sisters Hospital or at Dr. Huckell’s office. He agreed that the radiologist’s report of the Sisters Hospital x-rays indicated no evidence of fracture, and showed degenerative changes at C5-6 with disc space narrowing and spurring. He was asked whether these changes developed in the few hours between the time of the accident and the time of the x-ray, and he said, “[n]o, they did not” (Tr. 688). No x-rays were taken of the thoracic or lumbar spine at that time.

He reviewed the records of plaintiffs chiropractor, Enrique Rodriguez, who reported that plaintiff tolerated the chiropractic program well and showed progressive improvement after four visits. Plaintiff told Dr. Matteliano he stopped going to the chiropractor because it did not give him any longstanding relief. He also reviewed plaintiffs physical therapy reports, which showed that plaintiff attended only two sessions and did not achieve any of his goals. (Tr. 689-94).

Dr. Matteliano testified that he never requested epidural or other spine injections for temporary pain relief because the Workers’ Compensation insurance carrier would not approve such a request. It was his opinion that plaintiffs cervical symptoms were related to radiculopathy, indicating pain radiating from the spine. He found no objective evidence upon which to base an opinion as to whether plaintiff had any neuropathy relating to the accident. He did not recommend EMG with respect to the lumbar spine (Tr. 700-04).

Dr. Matteliano testified that plaintiff is not a candidate for spine surgery at the present time, since his symptoms are reasonably well-controlled. He may need cervical surgery at some time in the future, but the decision on surgery would be made by plaintiff after consultation with Dr. Huckell, the neurosurgeon. Dr. Matteli-ano stopped recommending physical therapy because the Workers’ Compensation carrier would not approve it, but he had just recently become aware that approval from that carrier is no longer required for treatment. There was a variety of other conservative treatments that could be tried before surgery, such as epidural injections, a TENS (transcutaneous electrical nerve stimulator) unit, back brace, additional physical therapy, and cervical traction (Tr. 720-23).

Dr. Matteliano testified that in his opinion, plaintiff has low back pain radiating down into his legs on both sides. However, plaintiff did not report to Dr. Matteli-ano that he had pain radiating into his left leg. The MRI study of the lumbar spine showed herniation on the left side. If radicular pain from that herniation was present, one would expect to see those symptoms in the left leg. The MRI study did not indicate any evidence of impingement on the right side, and the radiologist who read it did not see any impingement on the right side. Dr. Matteliano accepted as true plaintiffs statement that he had no history of prior back problems. This was a very significant factor in Dr. Matteliano’s determination regarding causation (Tr. 723-27).

3. Thomas Pastore, M.D.

Dr. Thomas Pastore testified as a witness for the defendant. He is currently retired from his full-time practice as an orthopedic surgeon. He graduated from the University of Buffalo School of Medicine, and completed four years of orthopedic residency there. He began his practice in 1974, and became certified by the American Board of Orthopedic Surgery in 1975. He retired in approximately 1995, and performs partial medical examinations on a contractual basis. His examination of Mr. Robinson on behalf of defendant was arranged through First Choice Evaluations (Tr. 854-59).

Dr. Pastore saw plaintiff in September 2000, and again in February 2002. At the first visit, plaintiff gave his history, which Dr. Pastore reported without reference to any prior records. Plaintiff said that he sustained an injury to his back on December 10, 1999, when he slipped and fell on a wet floor. He told Dr. Pastore he fell backward and twisted himself in a somersault motion, and injured his neck and back. Dr. Pastore testified that this description was consistent with the findings he later made upon examination. He also explained that the patient’s history comprises anywhere from 50 to 75 percent of the ultimate diagnosis (Tr. 860-62).

When he saw Dr. Pastore in September 2000, plaintiff complained of pain in his spine, radiating into both of his arms. He also had stiffness of his neck and back, pain with bending and lifting, and difficulty with sitting, standing, and driving. He had not worked since January 2000, but being off work had not made him feel better. He said that sitting, standing, lying down, coughing, and sneezing did not affect his complaints, and he had no loss of bowel or bladder function. He reported no muscle spasms, which indicated no irritation of the back muscles. He had full motion in his lower back and a normal gait. He had negative crawl sign, meaning he did not require support in order to stand erect. He had no trouble getting up or down from the examining table but had a pulling sensation in his back upon straight-leg raising, with no sciatic irritation. He did not complain of any pain in the mid-back area, but he was tender to very light pressure over the thoracic spine area and had some pain in the scapula area of the shoulder blade (Tr. 863-70).

Dr. Pastore looked at the MRI of plaintiffs lumbar spine, which showed a small left-sided disc herniation. The pain radiating down the left leg was consistent with this finding. Examination of the cervical spine showed full motion of his neck without muscle spasms, indicating no significant injury to the muscles, bones, and ligaments of the neck. He performed a cervical compression test, in which pressure is put on the head that translates to the cervical nerve roots, and that examination was negative. If positive, this would cause radiating pain down to his arms or hand. He did find the neck region tender to very light pressure, and decreased sensation to a pin-prick in his entire left arm. He found no disabilities regarding muscle strength in the neck (Tr. 870-72).

Dr. Pastore testified that the cervical MRI showed a slight bulge or herniation at C5-6. If this herniation caused pressure, it would basically effect the C5-6 dermato-mal, which is the nerve route running from the spine to the thumb and biceps area. He would not expect this type of herniation to cause complaints of pain and numbness in the entire arm. He made a finding of a questionable positive voluntary release sign, which indicated no definite weakness in the nerves of the arm muscle (Tr. 872-76).

Dr. Pastore reviewed plaintiffs cervical MRI, which showed degenerative disc disease and also an arthritic change in the neck in addition to the bulging at C5-6. He gave the opinion that the finding of decreased sensation from the tips of the fingers to the shoulders involving the derma-tomal on the left side was not consistent with the finding on the MRI. This is because the bulge at C5-6 was “mild,” and was not causing a significant degree of pressure on the nerve. In addition, a C5-6 disc herniation would result in a specific pattern of numbness in the thumb and weakness in the biceps. He did not find any muscle weakness. His conclusion after the September 2000 examination was that plaintiff had a mild disability and could return to light duty work, with restrictions on bending, crawling, creeping, and climbing. He recommended that plaintiff undergo chiropractic treatment because of the arthritic condition in his neck area (Tr. 877-78).

When Dr. Pastore saw plaintiff again in February 2002, he was complaining of a burning sensation in his right leg and in both hands, more so on the right side, but had no complaint about shoulder pain. He had soreness in his mid-back, but the most painful area was his lower back and neck area, where he had increased pain with coughing and sneezing. He was able to sit one and one-half hours without pain, which seemed to be an improvement from his earlier visit. He had full motion of his back, no muscle spasm, no crawl signs, and had a normal gait. He was able to stand on his toes and heels. It was determin