Based upon the competent and substantial evidence, I find:
Claimant is a 56 year old man who did not complete high school. During the eleventh grade he dropped out of school and began working for his father in the construction business.
He worked as a machinist for Emerson Electric in the early 1980s. Starting in the 1980s, he began working as a truck driver hauling equipment, and has worked in that job ever since.
During his youth, Claimant performed auto work with his father. In the early 1980s, he opened his own body shop. This business lasted only a few months, because there was not enough work. Claimant maintained a great passion and hobby for working on cars. He has purchased, built, and repaired multiple cars including some rare or classic automobiles.
Claimant sustained injuries to his right knee in the early 1980s and to his right elbow in the early 1990s. Claimant testified he underwent surgeries for both, but stated he has no ongoing complaints regarding either his right knee or right elbow.
Claimant had several heart attacks. In 1996, he underwent a coronary angioplasty for treatment of an inferior myocardial infarction. He was hospitalized again in 2002 for acute inferior wall myocardial infarction. He underwent surgery for placement of aortic stents and regularly takes heart medications. Claimant testified that since his heart attacks he has been on daily medication. Claimant testified leading up to March 20, 2001, his heart attacks did not affect his work performance in any way, it just slowed him down a little bit.
On March 20, 2001, while working for Employer, Claimant picked up an air compressor. While twisting hoses from the compressor he felt a pop in his low back. He reported the injury to Employer, and was referred to BJC Corporate Health the next day for evaluation and treatment. The initial diagnosis was lumbar strain and right mild trapezius strain. After a couple of weeks of physical therapy, Claimant underwent an MRI of his lumbar spine on April 9, 2001. The MRI revealed disc dessication and a loss in height at the L5-S1 levels and subligamentous disc bulge at L5-S1. Claimant was referred to Dr. Sandra Tate for further evaluation.
Dr. Tate recommended additional physical therapy and epidural steroid injections, and continued Claimant's Vicodin prescription. Dr. Tate initially discharged Claimant from treatment on June 5, 2001. Claimant returned to Dr. Tate on July 23, 2001, because the pain in his left lower lumbar region had returned. Claimant underwent trigger point injections but experienced minimal resolution. On August 27, 2001, Dr. Tate referred Claimant for a surgical consultation.
Claimant was referred to Dr. Philip George on September 11, 2001, who recommended ongoing conservative treatment. Claimant was instructed to perform home therapy, to quit smoking and lose weight, and Dr. George prescribed Vicodin for pain management. Another MRI was performed on March 1, 2002, which was essentially unchanged. On June 12, 2002, Dr. George noted Claimant failed conservative treatment and stated Claimant could either seek another line of work or consider lumbar spine surgery.
Claimant was referred to Dr Robert Bernardi on April 10, 2002 for a second opinion. Dr. Bernardi concluded ongoing conservative measures would not likely benefit Claimant and recommended Claimant consider an anterior fusion at L5-S1. Dr. Bernardi stated Claimant would need to decide whether his current pain had persisted long enough and adversely affected his daily activities that he would be willing to accept the risks of surgery. Dr. Bernardi told Claimant he would need to quit smoking before surgery.
Claimant continued to receive prescriptions for Vicodin from Dr. George, and was referred by Employer to Dr. David Kennedy on June 20, 2002. Dr. Kennedy found Claimant's studies showed a fairly large significant disc abnormality at L5-S1 and pain which was substantially caused by his injury. Dr. Kennedy concurred with Dr. Bernardi and recommended surgery. Dr. Kennedy advised Claimant to stop smoking. On April 18, 2003, Dr. Kennedy and Dr. Robson performed a bilateral lumbar laminectomy from L4 to S1 with a posterior fusion utilizing cages, pedicle screw fixation and an iliac crest bone graft. Following his surgery, Claimant underwent physical therapy and pain management including trigger point injections.
After surgery, Claimant testified he was feeling pretty good. He received physical therapy and the notes showed he was improving. The physical therapy records reflect Claimant was able to work on cars, go to auto shows and do social activities. They reveal Claimant removed a dashboard from a car, played pool for three hours, attended a family reunion, was doing yard work, and took a vacation to Florida.
Dr. Mishkin performed an IME on behalf of Employer on October 29, 2003. Dr. Mishkin found Claimant to be at MMI, and found Claimant's subjective complaints did not correlate with his lack of objective findings. Dr. Mishkin opined Claimant was employable, and could perform occupational duties that did not involve lifting more than 10 pounds, and allowed him to sit, stand and/or walk intermittently as desired. Dr. Mishkin did not find Claimant's incident of March 20, 2001 caused his physical findings. Employer also referred Claimant to Dr. Yadava for another IME on January 29, 2004. Dr. Yadava recommended work hardening, followed by a Functional Capacity Evaluation.
On May 11, 2004, Dr. Kennedy released Claimant to full duty without restrictions. Dr. Kennedy found Claimant to be at maximum medical improvement on May 25, 2004. Employer discontinued TTD benefits on May 25, 2004. Claimant returned to full duty work on June 21, 2004. By the time he returned to full duty, Claimant's employment with Employer was taken over by NES Equipment Services, Inc. AIG Domestic Claims represented the third party administrator for Insurance Co. of the State of Pennsylvania which provided workers' compensation insurance for both employers.
On June 24, 2004, four days after his return to full duty at NES, Claimant sustained a new low back injury. He was returning a scissors lift to a garage when it got stuck on a ramp. When he pushed the scissors lift up the ramp, he felt another pop in his low back with pain radiating down his left leg. He reported the injury to Employer, and was immediately referred to BarnesCare, then to Dr. Kennedy.
On June 29, 2004, Dr. Kennedy evaluated Claimant, and noted he reinjured his low back. Dr. Kennedy testified Claimant sustained a new injury on June 24, 2004. Dr. Kennedy testified even though Claimant's injury was at the same level as the previous injury, he had a change in complaints. Dr. Kennedy testified although x-rays taken in March 2004 showed lucencies, that is not 100 % predictive of a non-fusion, and lucencies alone are not enough to justify surgery. Because Claimant was doing better in March, 2004, Dr. Kennedy was not concerned with a nonfusion. Dr. Kennedy recommended physical therapy, and work restrictions. When NES could not accommodate his restrictions, Employer started TTD payments beginning June 26, 2004. Dr. Kennedy recommended a Functional Capacity Examination ("FCE"), to determine Claimant's potential for returning to his former line of work. The FCE report indicated Claimant failed 11
Issued by DIVISION OF WORKERS' COMPENSATION
of 16 validity criteria indicating sub-maximal effort. Dr. Kennedy reviewed the FCE and concluded Claimant was not able to perform his normal activities. Dr. Kennedy restricted Claimant to lift no more than 10 pounds occasionally and do minimal bending, twisting, and stooping. Dr. Kennedy concluded Claimant had reached MMI as of August 17, 2004. Employer ended Claimant's TTD benefits.
Claimant returned to Dr. Kennedy on October 14, 2004 because of increased back pain radiating into both legs. Dr. Kennedy recommended a lumbar myelogram/CT scan that was performed on October 29, 2004. The studies showed that L4-5 was not fused and a relative loosening of the screws at this level. Dr. Kennedy recommended removal of the instrumentation from a posterior approach with re-instrumentation anterior fusion. Payment of TTD benefits was reinstated by Employer on October 28, 2004.
Claimant was sent to Dr. Kitchens for a second opinion on December 9, 2004. Dr. Kitchens opined Claimant had a narcotics dependency due to using narcotics for the previous 3 to 4 years. Dr. Kitchens opined surgery was indicated for his non-union, but it was unclear whether Claimant would see any true benefit from re-operation. Dr. Kitchens indicated Claimant would need to address his tobacco use and narcotics dependency. At that point in time, Claimant declined surgery.
Claimant continued to take Vicodin prescribed by Dr. Kennedy. On August 2, 2005, Dr. Kennedy rated Claimant at 25% PPD, but recommended he return for further evaluation. On October 18, 2005 Dr. Kennedy found Claimant to be at MMI, but anticipated he would need future medical treatment by way of surgery.
Claimant returned to Dr. Kennedy on January 25, 2006. Another myelogram/CT scan was performed on April 7, 2006 and continued to show unstable alignment at L4-5. On August 1, 2006, Claimant followed up with Dr. Kennedy and agreed to proceed with the fusion. On August 29, 2006, Drs. Kennedy and Robson surgically removed hardware and performed a posterior revision fusion. On September 6, 2006, Drs. Kennedy and Arenos performed an anterior lumbar fusion.
Following his surgery, Claimant underwent aquatic therapy, and on May 9, 2007, Dr. Kennedy found Claimant to be at MMI. Dr. Kennedy recommended restrictions of no lifting over 10 pounds, only occasional bending, twisting or stooping, and no sitting or standing for more than a few minutes, and he will likely need to lie down throughout the day due to his ongoing pain. Dr. Kennedy also noted Claimant would need prescription pain medication.
TTD benefits were stopped by Employer as of July 5, 2007.
Dr. Thomas Musich evaluated Claimant at his lawyer's request on September 11, 2007. On physical examination, Dr. Musich noted significantly diminished lumbar range of motion. Dr. Musich concluded the work injury on March 20, 2001, resulted in PPD of 45% of the body as a whole, and the work injury on June 24, 2004, resulted in additional PPD of 45% of the body as a whole. Dr. Musich testified Claimant should be on narcotics indefinitely, and a pain management program might be helpful for him. Dr. Musich opined Claimant's work injuries of March 20, 2001 and June 24, 2004, were the prevailing factors in the development of acute low back pain and radiculopathy that required extensive conservative management, followed by
extensive surgical treatment due to failure of non-surgical treatments. Dr. Musich opined Claimant is permanently and totally disabled due to a combination of all of his disabilities.
Dr. Musich also evaluated Claimant's prior injuries and medical conditions. Dr. Musich examined scarring over the right lateral elbow due to surgery for tennis elbow in 1991. Dr. Musich noted increased right lateral elbow pain with resisted right wrist extension. Dr. Musich rated PPD of 25 % of the right elbow. Dr. Musich noted Claimant underwent surgery in 1982 for a torn ACL in his right knee. On examination, Dr. Musich noted laxity of Claimant's right ACL and a positive Lachman test. Dr. Musich rated PPD of 35 % of the right knee. Claimant testified he had no ongoing complaints with his right elbow or his right knee.
Dr. Musich also noted Claimant suffered coronary artery disease resulting in myocardial infarctions for which he had undergone coronary angioplasties and stent placements. Dr. Musich noted Claimant treats with prescription medication for chronic cardiovascular disease and experiences easy fatigueability and occasional chest pain. Dr. Musich rated Claimant's coronary symptoms at PPD of 30 % of the body as a whole. Claimant testified the heart problems have slowed him down a bit, and he is not as active.
Susan Shea performed a vocational assessment of Claimant on December 12, 2007 at the request of his attorney. Ms. Shea concluded Claimant is not employable in the national labor market. Her conclusion was based primarily on the restrictions placed on Claimant by Dr. Kennedy, and Claimant's pain level which necessitates narcotic pain medication that causes drowsiness.
Claimant returned to Dr. Kennedy on February 19, 2008, for ongoing pain management and medication. Dr. Kennedy noted Claimant is not employable in any gainful capacity on a permanent basis based on his ongoing pain and limitations with mobility. Dr. Kennedy continues to regularly see Claimant on a monthly basis to monitor his narcotic pain management.
Employer sent Claimant to Dr. Russell Cantrell on July 23, 2008, for further evaluation. Dr. Cantrell concluded the work injuries in 2001 and 2004 were aggravating, but not substantial factors in the cause of Claimant's current complaints. Dr. Cantrell testified these work injuries caused mechanical low back pain that still necessitates non-narcotic pain relieving medications. Dr. Cantrell concluded Claimant could return to work with restrictions of lifting less than 20 pounds occasionally, avoid repetitive bending, and alternate sitting and standing every hour. Dr. Cantrell concluded that overall Claimant had 30 % PPD of the person as a whole. Of that, Dr. Cantrell assessed 10 % to pre-existing degenerative changes within his lumbar spine, 10 % to his 2001 work injury, and 10 % related to a combination of factors equally divided between his work injury in 2004 and pseudoarthrosis attributed to his long term tobacco use.
James England performed a vocational rehabilitation evaluation of Claimant on October 27, 2008 at the request of Employer. Mr. England testified the determination of Claimant's functional capacity is based largely on the variance of medical limitations or restrictions. Assuming Dr. Cantrell's' restrictions and Claimant's history of auto mechanic work, Mr. England concluded Claimant would have transferable skills down to a light level of exertion such as service writing or damage estimation. Assuming Dr. Kennedy's restrictions, Claimant would be limited to less than sedentary work and would not be employable. Mr. England
testified Claimant's permanent and total disability is due to a combination of his injuries and preexisting degenerative problems.
Claimant testified he continues to have significant problems with his low back. With prolonged sitting, his low back throbs. His low back is irritated if he walks long distances. It is difficult for him to lay flat. His sleep time is limited because of back pain. He lives alone. He maintains his house and takes care of laundry, dishwashing and lawn care, but it takes extended time to perform regular chores. He takes several Vicodin every day for pain management.
Claimant testified he maintains his passion for cars. He regularly attends car shows and still performs repair and maintenance work on the multiple vehicles he owns. He is unable to perform the work to his prior capabilities because of excessive physical limitations and he must take regular breaks.
Brett Lantz testified on behalf of NES Equipment Services and AIG Domestic Claims. Mr. Lantz is a private investigator, who performed video surveillance of Claimant for more than 46 hours over 8 days from January through April, 2009. The surveillance depicted auto work being performed at Claimant's house. Mr. Lantz testified Claimant was performing auto work for approximately 30 minutes lying beneath a vehicle. Claimant testified he had operated a car jack to elevate the vehicle but that it was his step son who was lying underneath the car doing the work. The digital film depicting this event is not very helpful in identifying the involved individuals or activities. Based upon his observations, Mr. Lantz concluded Claimant is operating his own car repair and sales business.