Opinion
CLAIM NO. E213303
OPINION FILED MARCH 30, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT CLOAR, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
[2] Claimant appeals and respondent cross-appeals from a decision of the Administrative Law Judge filed August 27, 1996. We affirm as modified the decision of the Administrative Law Judge finding that claimant's healing period ended nine months after the date of claimant's compensable injury, that claimant is entitled to temporary total disability benefits for the first nine months following his injury; that claimant is entitled to all reasonably necessary medical expenses related to the treatment of claimant's compensable injury; that claimant has failed to prove by credible evidence a causal relationship between his back injury and his psychological problems; and finding that claimant has failed to prove entitlement to permanent partial disability benefits. Based upon our de novo review of the entire record, we find that claimant's healing period ended nine months after his compensable injury or on May 3, 1993; that claimant has failed to prove that his psychological problems are causally related to his compensable back injury and that claimant has failed to prove entitlement to any permanent physical impairment or permanent partial disability benefits.Claimant sustained an injury to his lower back on August 3, 1992. Respondent initially controverted the claim. A hearing was held and in an opinion dated February 5, 1993, the Administrative Law Judge found that claimant's back injury was compensable. This opinion was affirmed and adopted by the Full Commission on June 15, 1993. At a second hearing held on July 29, 1996, claimant contended that he was entitled to additional temporary total disability benefits for his back injury as well as for his psychological problems which he contended were causally related to his compensable injury, and that he was entitled to a permanent physical impairment and wage loss disability benefits. Respondent controverted claimant's entitlement to any additional benefits.
Claimant initially received treatment for his back injury from Dr. Randall Carson. Dr. Carson diagnosed claimant with a lumbar strain and treated claimant conservatively. When claimant's problem failed to resolve, an MRI was ordered which was performed on September 9, 1992. The MRI revealed:
Degenerative changes and signaled characteristics involving the T-11 interspace, as well as the L4-5 disc. There is minimal disc protrusion at these levels; however, no definite disc herniation is recognized.
Dr. Carson referred claimant to Dr. Jerry Lenington, an anesthesiologist for nerve block injections. Claimant was seen by Dr. Lenington on two occasions in the fall of 1992, however, Dr. Lenington's medical records from those visits were not made a part of the record. Claimant reported to Dr. Carson that the injections provided by Dr. Lenington in the fall of 1992 "were not of any benefit." The record reveals that claimant continued his treatments with Dr. Carson and Dr. Lenington through at least October 16, 1992, possibly even into November and December of 1992. The November and December records from Dr. Carson, appear to be correspondence from Dr. Carson to the claimant's attorney and to the Department of Human Services. Thus it is unclear whether actual treatment was received during these two months. After having received the opinion finding his claim compensable, claimant resumed his treatment with Dr. Carson in July of 1993. At that time, Dr. Carson determined that claimant had situational depression and referred claimant to Dr. Tony Payson, a psychiatrist, for evaluation. The record reveals that claimant began treatment with Dr. Payson on July 9, 1993.
In September of 1993 claimant underwent an independent medical evaluation performed by Dr. Jim J. Moore, a neurosurgeon in Little Rock. Dr. Moore reviewed claimant's medical records, including, but not limited to the reports of Dr. Carson, Dr. Payson, and the radiographic films, as well as physically examined the claimant. Dr. Moore determined that claimant had degenerative disc disease which was caused by age, and not by an acute injury. According to Dr. Moore, claimant suffered from a simple strain or sprain of the lumbar spine. Upon examination, Dr. Moore noted that claimant was neurologically intact. Dr. Moore was unable to palpitate any spasms and he did not note any restriction in the claimant's range of motion. According to Dr. Moore, he felt that his examination and findings were consistent with that of Dr. Carson. Dr. Moore stated in his written independent medical evaluation report and in his deposition that a healing period for a muscle strain such as claimant's would last approximately 6 to 9 months.
Dr. Carson continued to treat claimant through November of 1993. He stated in correspondence that he thought claimant had reached maximum medical improvement by at least October 21, 1993. However, during his deposition, Dr. Carson agreed with Dr. Moore's opinion that a muscle strain or sprain would heal within 6 to 9 months from the date of injury.
The first issue to be determined is claimant's entitlement to additional temporary total disability benefits from February 5, 1993, to a date yet to be determined as a result of claimant's compensable back injury. The record is clear that claimant suffered from pre-existing degenerative disc disease and that on August 3, 1992, he sustained a compensable injury in the form of a muscle strain or sprain to his lumbar spine. Both Dr. Moore and Dr. Carson testified that the healing period for such an injury should not extend beyond 6 to 9 months. Although Dr. Carson originally stated that claimant reached the end of his healing period by October 21, 1993, he did not disagree with Dr. Moore's opinion that a healing period for a muscle strain should not last beyond 6 to 9 months.
Claimant argues that respondent hindered claimant's healing period by failing to provide medical treatment, however, we cannot find this to be the case. Claimant's medical condition noted in Dr. Carson's October 1992 medical report when compared to claimant's medical condition as noted by Dr. Carson in July 1993 and as noted by Dr. Moore in September 1993 are all essentially the same. Claimant continued to have subjective complaints of pain but did not demonstrate any objective measurable medical findings other than the pre-existing degenerative disc disease. It is clear from reviewing Dr. Moore's deposition that the degenerative disc disease pre-existed claimant's compensable injury due to the extent of the degenerative disc disease and the relatively short period of time between claimant's injury and the date of the MRI. Accordingly, we find that claimant's healing period ended no later than 9 months from the date of claimant's compensable injury. Therefore, we modify the decision of the Administrative Law Judge and find that claimant's healing period ended on May 3, 1993. Apparently, the Administrative Law Judge miscalculated 9 months from the date of claimant's injury. Although we agree with the Administrative Law Judge that 9 months is the correct time period for claimant to undergo a period of healing, we find that 9 months from the date of claimant's injury is May 3, 1993.
The second issue to be addressed is whether claimant's psychological condition is causally related to claimant's compensable injury. As we review the evidence in this case, we cannot find that a causal relationship exists.
Claimant contends entitlement to temporary total disability benefits on the grounds that his psychological condition is causally related to his compensable injury. Again, after reviewing the evidence impartially, and without giving the benefit of the doubt to either party, we cannot find that claimant has met his burden of proof. Claimant contends that there is a causal connection between his psychological problems and his compensable back injury. Claimant relies, in part upon the medical records of Dr. Winston Wilson and Dr. Tony Payson. In short, claimant argues that since the doctors have stated that claimant's back injury is a contributing factor to his psychological problems, the psychological problems were caused by his back injury. However, in our opinion, claimant has over simplified the law in this regard. It is not whether claimant's injury substantially contributed to claimant's depression, but whether the injury caused claimant's depression. See C.D.I. Contractors v. McKell, 41 Ark. App. 57, 848 S.W.2d 941 (1993). As outlined by the Administrative Law Judge in his opinion, the claimant had significant stressors in his life both before, during and after his compensable injury. These stressors actually manifested themselves into somatic complaints resulting in claimant presenting to the emergency room on several occasions with chest pain which he believed to be a heart attack. The medical records in evidence reveal that these chest pains were merely stress-related symptoms.
Claimant had numerous stress factors which have nothing to do with his compensable injury. In 1985 claimant developed carpal tunnel syndrome as a result of a specific incident at work. Claimant underwent surgery for that condition and was required to be off work for approximately 6 months. During that time frame, claimant's wife had serious health problems with her kidneys. Prior to sustaining his injury, claimant had been advised by claimant's wife's doctors that his wife could die at any time due to her serious kidney disease. At the time of claimant's injury, claimant's wife had yet to undergo a transplant and her condition had deteriorated to the point where her kidneys no longer worked. Claimant had four children ages 9 to 15 during his wife's most serious kidney failure. Claimant was not accustomed to being the primary care giver for his children, a task which was thrust upon him during his wife's illness. Prior to claimant's injury in August of 1992, claimant had presented to the hospital in 1990 and 1991 with complaints of chest pain which was determined to be stress-related. Claimant even advised the emergency room personnel on one of these visits that he was afraid he would lose his job due to excessive absenteeism during the time frame he was caring for his wife and children.
Clearly, the record reveals that claimant has been under extreme amounts of stress for a number of years preceding his compensable injury. This stress is related to claimant's wife's illness, having to provide for the care of his four children, and the fear of losing his job due to excessive absenteeism. This stress manifested itself in somatic complaints requiring claimant to go to the emergency room with chest-related pain. It was during this time frame and under these circumstances that claimant sustained his compensable injury in August of 1992. However, even prior to sustaining his compensable injury, claimant made comments to his co-workers that if he could find a way to stay at home and take care of his family without having to work yet earning an income he would do it.
A review of Dr. Payson and Dr. Wilson's testimony also reveal that claimant has failed to show that his psychological problems were caused by his back injury. Dr. Payson admitted that claimant's emotional problems indicated on the MMPI could be due to claimant's wife's health problems. Although Dr. Payson stated that the emotional problems were related to the compensable injury, under cross examination he could not rule out claimant's wife's deteriorating health. Likewise, Dr. Payson admitted that claimant's personality type was consistent for one with somatic complaints. Dr. Payson admitted that there are numerous reasons to cause claimant's depression. Depression can occur without any precipitant or it can occur as a result of a loved one's deteriorating health as well as one's inability to live with a compensable injury. According to Dr. Payson, there is no way to objectively tell what actually caused claimant's psychological problems. The only objective test Dr. Payson administered, the MMPI, does not reveal whether claimant's psychological problems are related to his injury.
Dr. Wilson testified that there is no isolated factor in claimant's case which caused claimant's depression. At the time claimant saw Dr. Wilson, he had reached a serious state of depression, which according to Dr. Wilson, is inconsistent with the short period of time claimant had been off work, if the work and injury were in fact the cause of the depression. Moreover, Dr. Wilson testified that one would expect to see claimant have suffered some disabling depression when he was off work for his previous injuries, something which has not been shown in the record. According to Dr. Wilson, claimant's severe state of depression is consistent with a longstanding problem which has taken years to develop. While the on-the-job injury was yet another factor added into claimant's already depressed lifestyle, according to Dr. Wilson, claimant's numerous stress factors involving his family indicate that claimant has been depressed for a period of time.
Moreover, it cannot be ignored that during the most stressful periods in claimant's life involving claimant's wife's health is when claimant presented to the emergency room with chest pains. Claimant did not present to the emergency room with chest pains merely because he was unable to work. The severe episodes of chest pains occurred during very trying times related to his wife's health. The only episode of chest pain resulting in a hospital visit after claimant's injury occurred just prior to claimant's wife undergoing the kidney transplant.
Medical opinions are admissible and frequently helpful in workers' compensation cases, but they are not conclusive. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1989). The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of the Workers' Compensation Law.Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996).
We are not persuaded by the sweeping statements of Dr. Payson that claimant's condition is related to his work-related injury. When these statements are compared to the remainder of Dr. Payson's testimony indicating numerous other causes of claimant's depression and when Dr. Wilson's testimony is reviewed, we not persuaded by the conclusive nature of these opinions. It is for the Commission to weigh the opinions of all the medical care providers and to review the other facts in the case in order to resolve any conflicts in evidence. While the pain from claimant's back injury might be a minor factor in his depression, we cannot find that claimant's overall psychological problems for which he is receiving treatment were caused by his back injury.
Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that his psychological condition was caused by claimant's compensable injury.
The third issue to be addressed is claimant's entitlement to permanent partial disability benefits for his physical impairment rating. Claimant was assigned a 5 to 10% impairment rating by Dr. Randall Carson and a 0% impairment rating by Dr. Jim J. Moore. Dr. Moore explained in his deposition that there were no objective and measurable findings to support an impairment rating. Dr. Moore examined the claimant along with claimant's medical records and radiographic films. Dr. Moore explained that there was a slight prominence on the MRI at the L4-5 and L5-S1 levels which indicated degenerative disc disease. According to Dr. Moore, it was clear that this degenerative disc disease pre-existed claimant's minimal compensable injury. After reviewing these films, Dr. Moore conducted a thorough examination of the claimant. Dr. Moore explained this examination as follows:
Well, I mean, determining how stiffly he would move in removing his trousers or his shirt or his shoes or socks. And I did not see any evidence of any abnormality as far as the muscle components. There was no withering, no atrophy, there were no unusual motions, such as — fasciculations would be the proper term to use, and the tone was good. There was no flabbiness in the muscle. He had a normal gait. He was able to walk on his heels and on his toes satisfactorily. I thought motor power was preserved. Toe strength in dorsiflexion is tested, specifically for the L5 dermatome function, and it was excellent. His reflexes were found to be active, and they were equal, upper and lower, right and left. There was a deformity in the left shin area, which was as a result of a previous tibial fracture of years past. . . . I measured his calves, and that indeed confirmed that he had good bulk. There was no statistical difference in the sides, 13 1/2 on the right and 13 1/4 on the left, this being about 2 1/2 inches below the fibular head. Sensation testing I thought was intact to different modalities, including light touch, pin stick, temperature, vibration, and position sense. He demonstrated a very good straight leg raising. There was no abnormal reflexes, pathologic reflexes. The posture was good. There was no spasm palpable along the cervical, thoracic or lumbar. I found that his back range of motion was free. There was no evidence of restriction or complaints of pain. There was no tenderness in the sacrosciatic notches.
Dr. Moore was asked if objectively there were any abnormalities found during his examination to which he responded negatively. Dr. Moore stated that claimant's history and the examination were consistent with a diagnosis of muscloligamentous sprain or strain superimposed on mild degenerative disc disease which had previously healed.
Likewise, Dr. Carson agreed that claimant did not have any objective physical and measurable findings during the examinations after the initial muscle spasms noted on claimant's first visit subsided. Dr. Carson explained that his 5 to 10% impairment rating "will be based on what range of motion loss he had, if any, that would be measured, and his findings on MRI scan and not having an operable problem." It is clear from Dr. Carson's comment that a range of motion test had not been conducted since he clarified loss of range of motion with the phrase "if any, that would be measured." Thus the only true objective and measurable findings actually noted by Dr. Carson were the findings on the MRI scan. However, as noted above the degenerative disc disease pre-existed claimant's injury. Dr. Carson attempted to state that since the MRI was taken after the injury the MRI findings did not pre-exist the claimant's injury. However, we cannot find the logic in this statement. When asked if the changes actually pre-existed the injury Dr. Carson neither agreed nor disagreed. Logically, the degenerative disc disease could not have reached the state of degeneration as noted on the MRI scan in just the one month time frame from the date of injury to when the MRI was conducted.
In his brief, claimant argues that the muscle spasms are objective findings to base an impairment rating on. Although this Commission has held that muscle spasms are an objective finding, in our opinion muscle spasms must be of a continuing nature to be the basis for an impairment rating. It is noted that claimant's muscle spasms were only noted on claimant's first examination following his compensable injury. All subsequent examinations clearly reveal that claimant was not suffering from any muscle spasms. Thus, in this case claimant's muscle spasms were merely a one time only, temporary finding, and cannot be a permanent objective and measurable finding upon which an impairment rating can be based. To find otherwise would be tantamount saying that a one time only bruise on one's shin is an objective finding to base an impairment rating to one's leg. Without more significant permanent objective findings this would result in untenable conclusions.
Since we find that claimant has failed to prove entitlement to a physical impairment rating, we find that claimant has failed to prove entitlement to any wage loss disability. Ark. Code Ann. § 11-9-522(b) states, "In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment . . ." In our opinion, this clearly implies that a physical impairment rating must first have been sustained in order for claimant to be entitled to any wage loss disability benefits.
Finally, we feel compelled to address claimant's argument regarding the Administrative Law Judge's failure to consider Dr. Winston Wilson's deposition. During Dr. Wilson's deposition, claimant's attorney elicited improper testimony from Dr. Wilson regarding a doctor/patient relationship between Dr. Wilson and respondent's attorney. Prior to the hearing, this testimony was stricken from the deposition transcript by the Administrative Law Judge and placed under seal in the Commission file. A review of the Commission file indicates that claimant's attorney elicited this testimony for the sole purpose of showing bias on Dr. Wilson's behalf. The Administrative Law Judge was aware of claimant's allegations of bias since he ruled on respondent's motion to remove the improper testimony from Dr. Wilson's deposition. On one hand, claimant argues that Dr. Wilson is biased and on the other hand contends that Dr. Wilson's deposition should be relied on to find a compensable psychological injury. In reaching our conclusions, we have reviewed Dr. Wilson's deposition, including those portions regarding the alleged bias under seal. Dr. Wilson has provided this Commission with numerous independent medical evaluations over the years and his opinions have been of valuable assistance. We cannot find that the Administrative Law Judge erred in removing improper evidence regarding a relationship between Dr. Wilson and respondent's attorney from the record. Nor can we find that the Administrative Law Judge erred when he failed to read Dr. Wilson's deposition. Rather than be persuaded of a bias or be criticized for failing to recognize a bias which we find did not exist, the Administrative Law Judge simply chose not to consider that evidence as a whole. Under the circumstances, we can find no error in this. The Administrative Law Judge would have come under criticism by claimant regardless of whether he read the deposition or not. For those reasons stated herein, we affirm the decision of the Administrative Law Judge as modified.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
[29] While I certainly concur with the majority's finding that claimant is entitled to all reasonably necessary medical expenses, I must respectfully dissent from the remaining portions of the opinion.The first issue addressed by the parties is whether the claimant remains within his healing period and is entitled to temporary total disability benefits. The Arkansas Court of Appeals and this Commission have consistently held that in order to be entitled to temporary total disability benefits, the claimant must prove that he remained within his healing period and totally incapacitated to earn wages. Palazzolo v. Nelms Chevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994); Larry Graham v. Chamber Door Industries, Inc., Workers' Compensation Commission, Opinion filed January 9, 1997 ( E400258). The "healing period" is defined as that period necessary for the healing of an injury that continues until the employee is as far restored as the permanent character of the injury will permit. Carroll General Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Arkansas Highway Transp. Dep't v. McWilliams, 41 Ark. App. 1, 7, 846 S.W.2d 670, 674 (1993). The Commission has the duty of weighing the medical evidence, and the resolution of any conflict is a question of fact for the Commission. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). The determination of when a claimant's healing period has ended is a factual determination for the Commission to resolve. Carroll General Hosp. v. Green, supra.
The claimant's primary treating physician, Dr. Randall L. Carson, stated the following in his progress sheet of July 8, 1993:
[The claimant] comes in today for the first time in approximately 17-18 months. Since his last visit, he has had quite a battle with the Worker's Compensation carrier at his previous employer and was not receiving any benefits during all of that time. At any rate, he has been through a long court battle and apparently his coverage has been reinstituted and now medical therapy can be restarted.
* * *
It is my opinion that this patient would not have been able to work during the entire time, since his last visit to see me in November, 1992.
The claimant continued under Dr. Carson's care through the Fall of 1993. In his report of October 21, 1993, Dr. Carson stated that, "I feel that we have plateaued [sic] and I don't really have anything more to offer with regard to further improvement." This is the first time that the claimant's treating physician had opined that the claimant had reached the end of his healing period. It was not until November 19, 1993, that Dr. Carson formally released the claimant from his care. In his progress sheet from that date, Dr. Carson stated, "He is released from a medical standpoint but apparently not released from a psychiatric standpoint at this time."
While the respondent is correct that Dr. Carson agreed that six to nine months would be the typical time for a person with the claimant's type of injury to recover, the claimant was obviously not the typical case. The medical records indicate that the claimant's healing period, as far as his medical condition, did not end until October 21, 1993 at the earliest, and possibly as late as November 19, 1993. Accordingly, I would reverse the Administrative Law Judge's decision in this regard, and award the claimant additional temporary total disability benefits through October 21, 1993 for his back injury alone. Additionally, since I also find that the claimant's depression was causally related to his compensable injury, I would award temporary total disability benefits to a date yet to be determined.
The second issue to be addressed is whether the claimant's treatment for his depression is causally related to the claimant's compensable injury. The Court of Appeals has stated that "[t]he threshold issue is whether the effects of this kind of mental disorder . . . if causally related to an on-the-job injury, are compensable." Boyd v. General Industries, 22 Ark. App. 103, 108, 733 S.W.2d 750 (1987). While the majority is correct that there were other stressors in the claimant's life, the evidence indicates that the claimant's depression was causally related to his compensable injury, and was in part due to the legal battle the respondent waged against the claimant. The respondent contends that the claimant's depression grew out of his wife's kidney disease and the fact that he had to care for his young children. However, the record clearly indicates that the claimant's wife had been suffering from kidney problems beginning in 1984, and the claimant did not seek psychological treatment until 1993. Also, at the time of the hearing below, the claimant testified that his wife had undergone a kidney transplant operation and was doing "great." However, the claimant remained under the psychiatrist's care for at least a year after the kidney problems had resolved.
The claimant's depression did not manifest itself until six months after the claimant's compensable injury, which fails to explain why he was not depressed sooner, if it was related to his wife's condition which had been going on for eight years. In his progress notes of July 27, 1993, Dr. Tony A. Payson, the claimant's psychiatrist, stated that, "[p]atient cites numerous financial stressors as workmen's compensation has not paid for his medical bills nor have they provided disability income." In a later progress note of December 10, 1993, Dr. Payson stated, "I am not sure if the patient really never responded to the Zoloft or if the depression worsened because of the problems with his court case concerning his injury." Dr. Payson opined in his deposition that the claimant's compensable back injury substantially contributed to his depression.
The majority states that "[i]t is not whether claimant's injury substantially contributed to his depression, but whether the injury caused claimant's depression. See C.D.I. Contractors v. McKell, 41 Ark. App. 57, 848 S.W.2d 941 (1993)." (Original emphasis). This is an incorrect statement of the law as applied to claimant's pre-Act 796 injury. The Court in Lockaby v. Massey Pulpwood, Inc., 35 Ark. App. 108, 812 S.W.2d 700 (1991) stated that "[i]t is not necessary that the employment activities be thesole cause of a worker's injury in order to receive compensation benefits. It is enough that there is a substantially contributory causal connection between the injury and the business in which the employer employs the claimant." (Original emphasis).
Further, in C.D.I. Contractors, a causal connection was found to exist even though claimant had a myriad of preexisting psychological problems, as well as nonwork-related stressors.
Dr. David B. Dean stated in his report of September 21, 1993 that "[t]his gentleman has experienced significant social isolation and estrangement as a result of being unemployed and as a result of chronic back pain." Dr. Anitra S. Fay, who evaluated the claimant's MMPI, stated that the claimant's psychological testing revealed "a functional component for neurological complaints and low back pain."
I find that the only psychological opinions offered in this case clearly indicate that the claimant's depression is causally related to his compensable injury. While I would agree that the claimant had other stressors that contributed to his depression, the triggering event was the claimant's compensable injury and the ongoing legal battle to prove he was entitled to benefits. The respondent has prolonged the claimant's receipt of both medical treatment and psychological treatment by challenging every aspect of this case. The respondent lost at the initial hearing and yet continued to deny the claimant medical treatment. The psychological reports indicate that the respondent's actions have been a major part of the claimant's stress and depression, caused by the legal battle itself, as well as the financial stress of not being able to provide for his family and pay for his needed medical treatment. The respondent has attempted to phrase this issue as requiring the claimant to prove his injury was the major cause of his depression, without directly stating such an erroneous position. However, the claimant must simply prove that the depression is causally related to his compensable injury, making his other personal problems just a factor and not determinative of his case. I find that the claimant's psychological treatment is causally related to his compensable injury and the respondent is liable for all such treatment. Also, the claimant is entitled to temporary total disability benefits as a result of his continued psychological treatment for his depression.
The last issue that needs to be addressed is whether the claimant is entitled to benefits for permanent anatomical impairment and wage loss disability. The Administrative Law Judge in this case held that the claimant was not entitled to permanent partial disability benefits, finding that there were no objective and measurable physical findings to support such a finding. While the majority cites to Dr. Jim Moore's deposition in support of their position, Dr. Moore stated in his letter of September 8, 1993, that the claimant had a permanent anatomical impairment of no more than five percent.
The medical evidence shows that the claimant had objective findings to support his rating. The claimant's MRI performed on September 9, 1992, indicated that "[t]here is minimal disc protrusion at these levels [L4 and L5]." Dr. Carson indicated in his progress note of September 16, 1992, that the claimant had a disk protrusion. Dr. Carson also felt muscle spasms on examination, which is another objective finding to support the claimant's position. Dr. Carson opined that the claimant was entitled to a five to ten percent impairment rating as a result of his compensable injury. Because the medical evidence and opinions indicate that the claimant had objective medical evidence to support his claim, I would find that the claimant is entitled to benefits for a permanent anatomical impairment of 5% to the body as a whole.
I would also find that the claimant is entitled to benefits for wage loss disability as a result of his compensable injury. The claimant's treating physician has placed certain restrictions on the claimant which will hinder his ability to find gainful employment. The claimant's employer has stated that the claimant would not be able to perform his former heavy manual labor position with such restrictions. The claimant is a forty-six-year-old man who has performed manual labor for the majority of his life. The claimant has a high school education, but did not perform very well in terms of his grades. Accordingly, I would find that the claimant is entitled to permanent disability benefits.
For the foregoing reasons, I dissent.
PAT WEST HUMPHREY, Commissioner