A hearing was held on this matter on February 22, 2005. At that hearing only one issue was presented for determination, the liability of the Second Injury Fund for any permanent disability benefits to claimant. Claimant alleges permanent total disability against the Fund. The parties agree that the rate of compensation in this case is $\$ 488.60 / \ 347.05.
Claimant was an employee of Sitton Motor Lines when he was injured on September 16, 2003, while "yanking" a pin bar on a tandem to move it forward to redistribute the weight, he heard a pop that sounded like a loud hand clap. He felt pain from his shoulder down to his hand. Employer/insurer provided claimant with treatment for his injury which included two surgeries. The first surgery was an arthroscopic subacromial decompression and mini-open rotator cuff repair on October 6, 2003. Following the complication of adhesive capsulitis or frozen shoulder syndrome, claimant was treated by subacromial bursal injection of cortisone on November 10, 2003, and by a manipulation under anesthesia and arthroscopic debridement on February 11, 2004. Following his two surgical interventions and release from treatment, claimant was given a permanent lifting and pushing/pulling restriction of less than ten pounds with the right arm. He also was restricted tono overhead reaching. His treating physician, Todd Gothelf, an orthopedic surgeon of Lawton, Oklahoma, rated claimant's impairment as being 15 percent of the right upper extremity or 9 percent of the whole person. Claimant's examining physician, Dr. Koprivica, rated claimant's disability to be 50 percent of the right arm and restricted his lifting and carrying ability to 10 pounds maximum and to perform no activities above the shoulder level on the right. He also restricted claimant to no climbing activities using his right upper extremity and restricted him to avoid forceful pushing and pulling using the right arm at the right shoulder girdle. Claimant settled his claim with the employer/insurer for that injury at 35 percent of the right shoulder on October 13, 2004.
Claimant alleges that he is permanently and totally disabled as a result of the combination of the disability from his last injury and his preexisting disabilities. It is clear that claimant has had significant prior medical problems. One prior injury of January 20, 1995, involved an injury to claimant's back in which he underwent a right L5-S1 hemi-laminectomy and diskectomy. He was rated as having an 11 percent impairment by one physician and 25 percent by another. He settled his claim in South Dakota for an 18 percent body as a whole impairment for that injury.
Claimant additionally claims prior disabilities resulting from a 1984 injury in which he alleged that he had been run over by a loader he was hauling in 1984 in California resulting in what he alleges to be a right foot fracture and compound fracture of the right leg which resulted in a rod being placed in his leg and then removed. Claimant's testimony was that he didn't have a lot of problems with anything other than his right knee following the injury. The only information concerning claimant's injuries are from his testimony and the history he gave to his physicians which included the information concerning the insertion and removal of a rod as well as an arthroscopy of the right knee performed at that time. Claimant also indicated to Dr. Koprivica that he was limited in his "tolerance to squatting or crawling, kneeling" and that he has worn a brace on his right knee since 1989 associated with his injury. Claimant also reported to Dr. Koprivica a 1995 injury from which he was limited in his ability to sit and his ability to tolerate repetitive bending at the waist, perform pushing or pulling activities and which restricted his lifting capacity to 35 pounds. From information in the record it appears that claimant's treating physician for the 1995 injury was Dr. G.W. Jenter -- rather than Genter, as Dr. Koprivica referred to him. The records from Dr. Jenter contained in Claimant's Exhibit H do not include a rating. However, there were some additional Dr. Jenter records that were contained in Second Injury Fund Exhibit
1A. Claimant continued to receive treatment with Dr. Jenter into 1996. It is apparent that Dr. Jenter had rated claimant as having a 25 percent impairment to the body as a whole compared to the rating of 11 percent to the body as a whole by Dr. Dwight Caughfield as set out in the compromise agreement as to compensation in South Dakota as set out in Claimant's Exhibit O. However, neither rating was attached to the settlement agreement nor could I find it in the medical records presented by either party. Nevertheless, it appears that those records were presented to Mr. Eldred for his vocational evaluation of claimant. However, nothing cited by Mr. Eldred nor in any of the records in evidence indicated that Dr. Jenter placed any restrictions upon claimant. Mr. Eldred simply cited the last record of Dr. Jenter of March 1, 1996, which was included in the material provided by the Second Injury Fund in its Exhibit 1A in which Dr. Jenter stated that "[t]he patient has slowly evolved into a good candidate as far as returning to work." Dr. Jenter then continued that claimant would hopefully return to work in one month. There is no additional medical record of Dr. Jenter in evidence. Mr. Eldred cites the rating of Dr. Jenter as being entered on December 16, 1995. However, from the medical records admitted into evidence, I cannot find any entry on that date that would indicate a rating or the findings asserted in Mr. Eldred's summary of the records. Nevertheless, it is clear that claimant settled his claim for the 1995 injury for 18 percent impairment to the body as a whole.
Claimant also alleged that in 1998 he was pulled out of a cab and hit with a baseball bat on the head. He made that allegation at trial, to Dr. Koprivica, and to the physicians who treated him in California. Nevertheless, it is clear from the medical records that claimant instead suffered a stroke from excessive high blood pressure rather that any injury through blunt force trauma. Claimant filed a claim in Arkansas for that injury which apparently was denied by the employer/insurer. There is nothing admitted into evidence to indicate an adjudication of that claim in Arkansas, but it is clear as set forth by Dr. Koprivica and the examining doctors in California that claimant did not suffer an industrial disability from an accident at work in 1998. Indeed, Dr. Koprivica has indicated that claimant created the factual basis for his claim through what he termed "confabulation since he was operating under incomplete data because of neurologic defect." It was noted in the records at the time of claimant's allegation of injury that claimant had at least two drinks of an alcoholic beverage on the date of the alleged injury and had used marijuana within two weeks of the injury. The medical records in that case also indicate that claimant had used marijuana since his discharge from the military in 1969 .
Claimant stated that he had seizures since the alleged 1998 work injury and was taking anti-convulsants. Nevertheless, claimant gave a history of weaning himself off of his seizure medication and that his last seizure was in August of 2000.
Claimant also alleges that he had an injury in 2001 when he fell out of his cab hitting the back of his head and neck on the pavement in April of 2001. Following the fall claimant underwent an anterior cervical diskectomy and fusion at C6, C7 on July 2, 2001, by Dr. Adamentz. Claimant was off work only two weeks following his surgery and returned to light duty activities. He was released on October 3, 2001, to full duty as a truck driver. Claimant stated to Dr. Koprivica that he had a permanent limitation from his injury and surgery from doing ov