Only evidence necessary to support this award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. All exhibits offered by the parties have been received into evidence without objection with the exception of Exhibit K offered by Claimant. The objection to Exhibit K was taken under advisement, and is now hereby sustained. Exhibit K is not received into evidence.
Certain exhibits offered into evidence contained handwritten markings, underlining and/or highlighting on portions of the documents. Any such markings on the exhibits were present at the time they were offered by the parties. Further, any such notes, markings and/or highlights were ignored by the undersigned ALJ in reaching any decision on the issues presented in this case.
Claimant testified at the hearing. He testified he began working for Employer in 1994. He testified his work required him at times to lift and push heavy objects. He stopped working for Employer in September or October 1997. He testified at that time he had sharp pains in his back that would get worse in cold and damp weather conditions. He testified he stopped working for Employer because of the pain. The primary back injury from this case settled on December 20, 2001 for 4.1 % PPD of the body as a whole. The stipulation for compromise settlement was received into evidence as Exhibit I.
Claimant testified he had a pre-existing hernia injury from 1995. The Stipulation for compromise settlement was received into evidence as Exhibit H. That case, injury number 95-192511 settled on December 20, 2001, the same day as the primary injury settlement in this case. The hernia case settled for 1.5 % PPD of the body as a whole.
Claimant testified he had a prior lung operation in 1977. He testified he has emphysema and can't perform physical labor like he used to. He stated he gets out of breath when climbing stairs. Claimant testified that the condition of his back, his hernia, and a pre-existing shoulder injury have all gotten worse since he left his job with Employer in 1997.
Claimant's wife, Sandra McMahon, testified on behalf of Claimant at the hearing. Mrs. McMahon testified she also worked for Employer and observed Claimant on the job. She further testified that his description of his job duties were accurate and that he did experience pain in his back in 1997.
Dr. Alan C. Umbright testified by deposition on behalf of Claimant on October 26, 2006 (Exhibit A). The deposition transcript has three exhibits attached. Exhibit 1 is Dr. Umbright's curriculum vitae. Exhibit 2 is a report of Dr. Umbright dated August 1, 2000. Exhibit 3 is a report of Dr. Umbright dated August 22, 2000. During testimony, Dr. Umbright stated that Exhibit 3 had been prepared by Mr. Franke's office and then given to him to sign. He later testified that the report contains his opinions.
Dr. Umbright diagnosed that Claimant, "Did develop a work related left inguinal hernia which still causes him restriction in movement in his left leg. In addition, Mr. McMahon has degenerative disc disease with osteoporosis and osteoarthritis of the facet joints."
Dr. Umbright opines that Claimant is permanently and totally disabled. He further opines that Claimant has 50 % PPD to the body as a whole attributable to his back, 25 % PPD to the body as a whole
attributable to the hernia, and a 20\% PPD to the body as a whole attributable to his lungs. The second report, Exhibit 3, in the section labeled "Causation", states:
The repetitive trauma of pushing and lifting objects caused Mr. McMahon's hernia and greatly aggravated his back problems amounting to a repetitive trauma injury. His lung problem (obstructive pulmonary disease) was initially caused by smoking and the development of spontaneous pneumothorax disease. The back injury which has left
Mr. McMahon with so much pain and limitation in his range of motion is superimposed on his weakened hernia injury and his weakened lungs leaving his total body unable to work.
During cross examination, Dr. Umbright testified as follows:
Q As of the time of your August 1, 2000 report, you did not in this report mention any type of repetitive trauma or give any type of opinion regarding repetitive trauma; is that correct?
A That's correct.
Q Were you aware at the time that you evaluated him in August of 2000, how much, and by that, I mean how much weight Mr. McMahon would have to lift in a given day?
A No, I was not.
Q Were you aware of how often he would have to do any lifting in a given day?
A No.
Q How much carrying? Weight-wise.
A About how much, no, I did not have a specific job description.
Q Or how much or how often he had to carry?
A Correct.
Q Or how often he had to bend from the waist?
A Correct.
Q Or how often he would have to lift from the floor?
A That's correct.
Q So you really weren't aware of any specific job duties; is that fair to say?
A Correct.
Dr. Jeffrey Magrowski, a vocational rehabilitation specialist, testified on behalf of Claimant by deposition on March 2, 2007 (Exhibit B). Dr. Magrowski opined that Claimant is not employable in the open labor market. In order to reach this opinion, he administered vocational testing and reviewed Claimant's medical records. Dr. Magrowski conducted his evaluation in October 2005 and on March 30, 2006.
During cross examination, Dr. Magrowski testified it was his understanding there had been no change in Claimant's physical condition since 1997. He also stated that he relied on what he observed of Claimant's physical condition in October 2005.