Blaine Lyman v. Allmon Construction, LLC

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partial disability compensation for 122.8 weeks, and thereafter for weekly payments of $494.69 for employee's lifetime.

Each of the parties to this case filed an Application for Review with the Commission. The Second Injury Fund filed an Application for Review arguing that the employee was rendered permanently and totally disabled due to the last injury alone. The employee filed an Application for Review arguing that, if the Second Injury Fund was successful in its appeal to the Commission, permanent total disability benefits should be assessed against the employer/insurer. Employer/insurer filed an Application for Review arguing the administrative law judge erred: (1) in concluding that hyperbaric oxygen treatments caused employee to develop cataracts and deterioration in eyesight; (2) in finding employer/insurer liable for temporary total disability benefits from January 25, 2008 through July 25, 2008; and (3) in finding that employee did not unreasonably refuse cataract surgery. Employer/insurer concedes that the evidence shows that employee is permanently and totally disabled, but urges that this is solely due to the combination of employee's preexisting disabilities and disability stemming from the work injury. Accordingly, employer/insurer requests this Commission to find the Second Injury Fund liable for permanent total disability payments after December 14, 2004.

The findings of fact and stipulations of the parties are set forth in the award of the administrative law judge. We have incorporated those findings to the extent that they are not inconsistent with the modifications set forth in our award. Therefore, we address only those findings of fact pertinent to our modification herein.

The administrative law judge appears to have credited the testimony of employee for the most part; we specifically find employee's testimony credible. Employee was born with nystagmus, which makes it difficult for employee to focus and prevents 20/20 vision, even with correction. Employee had surgery to correct crossed eyes when he was five years old. Employee has worn hard contact lenses since age 16. He used the same prescription lenses until his vision began to deteriorate after the primary injury. Employee was unable to get into the military due to poor vision. Other than the military, however, employee's visual impairment did not cause him to lose jobs, miss work, or fail to obtain steady work. Claimant framed houses for employer. Employee's visual condition required him to double-check measurements to make sure he was seeing them correctly, and to take extra care when reading and writing. Before the primary injury, employee was able to drive a car and do most things notwithstanding his poor vision.

1 We do note and correct an error in the findings of the administrative law judge. While we agree that Dr. Rolfe A. Becker is more credible with regard to the issue whether hyperbaric oxygen treatments were a causative factor in employee developing cataracts, the administrative law judge's award mistakenly refers to Dr. Becker's reliance on a "Palmquist article." Dr. Becker did not cite or rely on the Palmquist article. Rather, the article was used in cross-examination at the deposition of Dr. Elliot L. Korn.

On May 24, 2002, employee fell 6 or 8 feet from a ladder, suffering a femoral neck fracture of his left hip. Employee elected to undergo a closed reduction with pinning rather than surgery to implant a prosthetic. Employee suffered a bone infection after the surgery, and subsequently underwent 4 surgeries and 66 hyperbaric oxygen treatments in order to cure the infection. Employee noticed his vision becoming more nearsighted a couple of weeks after beginning the hyperbaric oxygen therapy, and later developed cataracts in both eyes, for which he underwent surgery. Employee stopped driving as a result of his vision deteriorating, and can no longer do things that he was able to do.

Employee went back to work on May 24, 2004, as an electrician's helper. Employee's supervisor had known employee for five to ten years and gave employee the job so employee could try to get back into the workplace again. Employee's duties included running a drill and pulling wires. Employee had no difficulty working at chest height, but could only do so for short periods due to the limited amount of time employee could be on his feet. Employee had great difficulty climbing ladders and getting down on the floor (activities that were frequently required by the work), and was much slower than other employees. Employee sometimes worked two to three days a week because his supervisor only called him for jobs he thought employee could physically perform. Employee's supervisor was worried that employee's disabilities were so great that employee might get injured again so they both agreed to end the arrangement in December 2004. The supervisor testified and specifically cited employee's mobility and eyesight as the deciding factors for ending the employment. Employee likewise cited his deteriorating vision and his hip condition, which made him very slow in performing his tasks and made it painful to walk across a room.

Currently, employee has great difficulty walking and moving around because his right leg is now longer than his left. Employee must use a cane to walk and can only go about $1 / 8$ of a mile before having to rest. Because of the need to use the cane, employee can only carry an object weighing five pounds or less with his one free hand while walking. Employee has increased back pain after the primary injury. Employee has to alternate between sitting and standing every 45 minutes. Employee is unable to stand up fully straight and needs to lie down during the day.

On November 23, 2004 and December 13, 2004, Dr. Jeffrey Woodward saw employee for chronic left hip pain. Dr. Woodward opined that the work injury resulted in a permanent partial disability of 15 % of the body as a whole. Dr. Woodward acknowledged that claimant will always be at risk for reactivation of the infection in his hip due to the work injury. Dr. Woodward released employee to full-time modified duty, half standing, half sitting, no climbing, no working at heights greater than 4 to 6 feet, and occasional ladder use. Dr. Woodward noted employee had a severely limping gait. Dr. Woodward acknowledged that the type of hip condition suffered by employee following the work injury can change sitting and standing posture and have a direct effect on the back; Dr. Woodward also noted that a patient with such an abnormal left hip joint region as employee will most likely have significant pain. Dr. Woodward opined that, absent employee's visual difficulties, he would be a good candidate for the following positions: construction cost estimator, building systems repair supervisor, answer desk staff in a

home remodeling facility, security work, cashiering, or counter clerk work. Dr. Woodward opined that employee's visual difficulties negate his ability to perform any of these types of work. Dr. Woodward opined that employee is permanently and totally disabled due to the combination of his limitations stemming from the work injury and employee's visual disability. Notably, Dr. Woodward did not specifically consider or quantify the degree of employee's preexisting visual impairment. Rather, Dr. Woodward clearly rendered his opinion of total disability based upon employee's visual condition at the time he examined employee.

On December 16, 2005, Dr. P. Brent Koprivica saw employee for an independent medical examination. Dr. Koprivica rated employee's disabilities as follows: 50\% permanent partial disability at the 207-week level for the hip injury, 15\% permanent partial disability to the body as a whole for mechanical back pain secondary to the hip injury, and 5\% permanent partial disability to the body as a whole for deep venous thrombosis (a complication of treatment for the hip injury). Dr. Koprivica noted that employee has the risk of reactivation of the bone infection at any time. Dr. Koprivica assigned the following restrictions: captive sitting/standing intervals of less than 30 minutes; use of a cane; avoidance of uneven surfaces; no crawling, kneeling, squatting, or climbing; ground level work only; no pushing, pulling, twisting, or bending at waist; and no standing for more than 2 to 4 hours per day. Dr. Koprivica opined that employee's altered gait, the result of his shorter left leg, puts wear and tear and limits the flexion of employee's low back, resulting in a severe impact on employee's ability to do any activities that require bending at the waist. Dr. Koprivica opined that employee suffered "profound disability due to visual acuity deficits," which was "of significance" prior to the work injury, while noting he would defer to an eye expert. Dr. Koprivica opined that employee is permanently and totally disabled due to a combination of the preexisting v